Virginia Administrative Code › Title 9 - ENVIRONMENT › Agency 25 - STATE WATER CONTROL BOARD › Chapter 210 - VIRGINIA POLLUTANT DISCHARGE ELIMINATION SYSTEM (VPDES) PERMIT REGULATION › Part I - VWP Permit Program Definitions, Exclusions, Prohibitions and Requirements › Section 9VAC25-210-60 - Exclusions

Current through Register Vol. 40, No. 24, July 15, 2024
The activities in this section do not require a VWP permit
					 but may require other permits under state and federal law. Upon request by the
					 department, any person claiming one of these exclusions shall demonstrate to
					 the satisfaction of the department that he qualifies for the exclusion.
					 Exclusions pertaining to surface water withdrawals are established in
					 9VAC25-210-310.
1. Discharges of dredged or fill material
				  into state waters, except wetlands, which are addressed under a USACE Regional,
				  General, or Nationwide Permit, and for which no § 401 Water Quality
				  Certificate is required.
2. Any
				  discharge of stormwater from municipal separate storm sewer systems or land
				  disturbing activities authorized by 9VAC25-870, or the discharge of sewage,
				  industrial wastes, or other wastes or any noxious or deleterious substances
				  into surface waters that is authorized by a Virginia Pollutant Discharge
				  Elimination System (VPDES) permit in accordance with 9VAC25-31 or a Virginia
				  Pollution Abatement (VPA) permit in accordance with 9VAC25-32.
3. Any activity governed under Chapter 13
				  (§ 28.2-1300 et seq.) of Title 28.2 of the Code of Virginia, unless state
				  certification is required by § 401 of the Clean Water Act. State
				  certification is waived if the activity meets the provisions of subdivision 10
				  a of this section. The activity does not require a VWP permit pursuant to
				  § 62.1-44.15:21 G of the Code of Virginia.
4. Normal residential gardening and lawn and
				  landscape maintenance in a wetland, or other similar activity, that is
				  incidental to an occupant's ongoing residential use of property and is of
				  minimal ecological impact. The criteria governing this exclusion are set forth
				  in the definition of "normal residential gardening and lawn and landscape
				  maintenance" in
				  9VAC25-210-10.
5. Maintenance of currently serviceable
				  structures, such as purpose-built stormwater and utility structures,
				  transportation structures, dikes, groins, levees, dams, riprap breakwaters,
				  causeways, or bridge abutments or approaches. Maintenance includes the
				  emergency reconstruction of recently damaged parts but does not include
				  modifications that change the character, scope, or size of the original design.
				  If the original design is not available, the permittee shall submit the best
				  available information on the design for consideration and approval by the
				  department. In order to quality for this exclusion, emergency reconstruction
				  shall occur as soon as practicable after damage occurs.
6. Impacts to open waters that do not have a
				  detrimental effect on public health, animal life, or aquatic life or to the
				  uses of such waters for domestic or industrial consumption, recreation, or
				  other uses.
7. Flooding or
				  back-flooding impacts to surface waters resulting from the construction of
				  temporary sedimentation basins on a construction site when such structures are
				  necessary for erosion and sediment control or stormwater management
				  purposes.
8. Normal agriculture and
				  silviculture activities in a wetland such as plowing; seeding; cultivating;
				  minor drainage and harvesting for the production of food, fiber, and forest
				  products; or upland soil and water conservation practices.
a. To fall under this exclusion, the
				  activities specified in this subdivision 8 must be part of an established
				  (i.e., ongoing) agriculture or silviculture operation, and must be in
				  accordance with applicable best management practices set forth in either
				  Forestry Best Management Practices for Water Quality in Virginia Technical
				  Guide (Fourth Edition, July 2002) or Virginia Agricultural BMP Manual (2000),
				  which facilitate compliance with the § 404(b)(1) Guidelines (40 CFR Part
				  230) . Activities on areas lying fallow as part of a conventional, rotational
				  cycle are part of an established operation.
b. Activities which bring a new area into
				  agricultural or silvicultural use are not part of an established operation. An
				  operation ceases to be established when the area in which it was conducted has
				  been converted to another use or has lain idle so long that modifications to
				  the hydrological regime are necessary to resume operation. If the activity
				  takes place outside surface waters, it does not need a VWP permit, whether or
				  not it is part of an established agriculture or silviculture
				  operation.
c. For the purposes of
				  this subdivision 8, cultivating, harvesting, minor drainage, plowing, and
				  seeding are defined as follows:
(1)
				  "Cultivating" means physical methods of soil treatment employed within
				  established agriculture and silviculture lands on farm or forest crops to aid
				  and improve their growth, quality, or yield.
(2) "Harvesting" means physical measures
				  employed directly upon farm, forest, or crops within established agricultural
				  and silviculture lands to bring about their removal from farm or forest land,
				  but does not include the construction of farm or forest roads.
(3) "Minor drainage" means:
(a) The discharge of dredged or fill material
				  incidental to connecting upland drainage facilities to surface waters, adequate
				  to effect the removal of excess soil moisture from upland croplands.
				  Construction and maintenance of upland (dryland) facilities, such as ditching
				  and tiling, incidental to the planting, cultivating, protecting, or harvesting
				  of crops;
(b) The discharge of
				  dredged or fill material for the purpose of installing ditching or other water
				  control facilities incidental to planting, cultivating, protecting, or
				  harvesting of rice, or other wetland crop species, where these activities and
				  the discharge occur in surface waters which are in established use for such
				  agricultural and silviculture wetland crop production;
(c) The discharge of dredged or fill material
				  for the purpose of manipulating the water levels of, or regulating the flow or
				  distribution of water within, existing impoundments that have been constructed
				  in accordance with applicable requirements of the Clean Water Act, and that are
				  in established use for the production of rice, or other wetland crop
				  species;
(d) The discharge of
				  dredged or fill material incidental to the emergency removal of sandbars,
				  gravel bars, or other similar blockages which are formed during flood flows or
				  other events, where such blockages close or constrict previously existing
				  drainageways and, if not promptly removed, would result in damage to or loss of
				  existing crops or would impair or prevent the plowing, seeding, harvesting, or
				  cultivating of crops on land in established use for crop production. Such
				  removal does not include enlarging or extending the dimensions of, or changing
				  the bottom elevations of, the affected drainageway as it existed prior to the
				  formation of the blockage. Removal must be accomplished within one year after
				  such blockages are discovered in order to be eligible for exclusion;
				  and
(e) Minor drainage in surface
				  waters is limited to drainage within areas that are part of an established
				  agriculture or silviculture operation. It does not include drainage associated
				  with the immediate or gradual conversion of a wetland to a nonwetland (for
				  example, wetland species to upland species not typically adapted to life in
				  saturated soil conditions), or conversion from one wetland use to another (for
				  example, silviculture to agriculture). In addition, minor drainage does not
				  include the construction of any canal, ditch, dike, or other waterway or
				  structure which drains or otherwise significantly modifies a stream, lake,
				  swamp, bog, or any other wetland or aquatic area constituting surface water.
				  Any discharge of dredged or fill material into surface water incidental to the
				  construction of any such structure or waterway requires a VWP permit, unless
				  otherwise excluded or exempted by this chapter.
(4) "Plowing" means all forms of primary
				  tillage, including moldboard, chisel, or wide-blade plowing, discing,
				  harrowing, and similar physical means used on farm or forest land for the
				  breaking up, cutting, turning over, or stirring of soil to prepare it for the
				  planting of crops. Plowing does not include the redistribution of soil, rock,
				  sand, or other surficial materials in a manner which changes any area of
				  surface water to dry land. For example, the redistribution of surface materials
				  by blading, grading, or other means to fill in wetland areas is not plowing.
				  Rock crushing activities which result in the loss of natural drainage
				  characteristics, the reduction of water storage and recharge capabilities, or
				  the overburden of natural water filtration capacities does not constitute
				  plowing. Plowing as described above will never involve a discharge of dredged
				  or fill material.
(5) "Seeding"
				  means the sowing of seed and placement of seedlings to produce farm or forest
				  crops and includes the placement of soil beds for seeds or seedlings on
				  established farm and forest lands.