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 9VAC25-210-10 - Definitions

Current through Register Vol. 40, No. 24, July 15, 2024
A. Definitions
				  specific to surface water withdrawals are in
				  9VAC25-210-300.
B. Unless a different meaning is required by
				  the context, the following terms as used in this chapter shall have the
				  following meanings:
"Adjacent" means bordering, contiguous, or neighboring
					 wetlands separated from other surface water by man-made dikes or barriers,
					 natural river berms, sand dunes, and the like.
"Administratively withdrawn" means a decision by the
					 department that permanently discontinues the review or processing of a VWP
					 permit application.
"Applicant" means a person applying for a VWP individual
					 permit or for coverage under a VWP general permit.
"Aquatic environment" means surface waters and the habitat
					 they provide, including both plant and animal communities.
"Avoidance" means not taking or modifying a proposed action
					 or parts of an action so that there is no adverse impact to the aquatic
					 environment.
"Beneficial use" means both instream and offstream uses.
					 Instream beneficial uses include the protection of fish and wildlife resources
					 and habitat, maintenance of waste assimilation, recreation, navigation, and
					 cultural and aesthetic values. The preservation of instream flows for purposes
					 of the protection of navigation, maintenance of waste assimilation capacity,
					 the protection of fish and wildlife resources and habitat, recreation, and
					 cultural and aesthetic values is an instream beneficial use of Virginia's
					 waters. Offstream beneficial uses include domestic uses (including public water
					 supply), agricultural uses, electric power generation, commercial uses, and
					 industrial uses.
"Best management practices" or "BMPs" means a schedule of
					 activities, prohibition of practices, maintenance procedures, and other
					 management practices that prevent or reduce the pollution of surface
					 waters.
"Board" means the State Water Control Board. When used
					 outside the context of the promulgation of regulations, including regulations
					 to establish general permits, "board" means the Department of Environmental
					 Quality.
"Channelization" means the alteration of a stream channel
					 by widening, deepening, straightening, cleaning, or paving certain
					 areas.
"Compensation" or "compensatory mitigation" means (i) the
					 restoration (reestablishment or rehabilitation), establishment (creation),
					 enhancement, or in certain circumstances preservation of aquatic resources or
					 (ii) in certain circumstances an out-of-kind measure having a water quality,
					 habitat, or other desirable benefit for the purposes of offsetting unavoidable
					 adverse impacts to aquatic resources that remain after all appropriate and
					 practicable avoidance and minimization has been achieved.
"Controversial permit" means a water permitting action for
					 which a public hearing has been granted pursuant to
					 9VAC25-210-160
					 and 9VAC25-210-165.
"Construction site" means any site where land-disturbing
					 activity is conducted or physically located for the purpose of erecting
					 buildings, roads, or other discrete structures, including on-site or off-site
					 areas used for dependent, support facilities, such as quarries, mines, or
					 temporary stormwater management or erosion control structures.
"Conversion" means those impacts to surface waters that
					 permanently change an existing wetland or aquatic resource type to a different
					 wetland or aquatic resource type.
"Coverage" means authorization to conduct a project in
					 accordance with a VWP general permit.
"Cowardin classification" or "Cowardin classification
					 method," unless otherwise specified in this chapter, means the waters
					 classification system in Classification of Wetlands and Deepwater Habitats of
					 the United States (Cowardin, Lewis M. II, et al., U.S. Fish and Wildlife
					 Service, December 1979, Reprinted 1992).
"Creation" means the establishment of a wetland or other
					 aquatic resource where one did not formerly exist.
"Cross-sectional drawing" means a scaled graph or plot that
					 represents the plane made by cutting across an object at right angles to its
					 length. Objects may include a surface water body or a portion of it, a man-made
					 channel, an above-ground structure, a below-ground structure, a geographical
					 feature, or the ground surface itself.
"Department" or "DEQ" means the Department of Environmental
					 Quality.
"Director" means the Director of the Department of
					 Environmental Quality (DEQ) or an authorized representative.
"Discharge" means, when used without qualification, a
					 discharge of a pollutant, or any addition of any pollutant or combination of
					 pollutants, to state waters.
"Draft VWP permit" means a document indicating the
					 department's tentative decision relative to a VWP permit action.
"Draining" means human-induced activities such as ditching,
					 excavation, installation of tile drains, hydrologic modification by surface
					 water runoff diversion, pumping water from wells, or similar activities such
					 that the activities have the effect of artificially dewatering the wetland or
					 altering its hydroperiod.
"Dredged material" means material that is excavated or
					 dredged from surface waters.
"Dredging" means a form of excavation in which material is
					 removed or relocated from beneath surface waters.
"Ecologically and environmentally preferable" means capable
					 of providing a higher likelihood than alternative proposals of replacing
					 existing wetland acreage and functions, stream functions, water quality, and
					 fish and wildlife resources.
"Emergent wetland" means a class of wetlands dominated by
					 erect, rooted, herbaceous plants growing in water or on a substrate, excluding
					 mosses and lichens. This vegetation is present for most of the growing season
					 in most years and is usually dominated by perennial plants.
"Enhancement" means activities conducted in existing
					 wetlands or other portions of the aquatic environment that increase one or more
					 aquatic functions.
"Excavate" or "excavation" means ditching, dredging, or
					 mechanized removal of earth, soil, or rock.
"Fill" means replacing portions of surface water with
					 upland, or raising the bottom elevation of a surface water for any purpose, by
					 placement of any pollutant or material including rock, sand, earth, and
					 man-made materials and debris.
"Fill material" means any pollutant that replaces portions
					 of surface water with dry land or that raises the bottom elevation of a surface
					 water for any purpose.
"Forested wetland" means a class of wetlands dominated by
					 woody vegetation that is approximately 20 feet (six meters) tall or taller and
					 three inches (7.6 centimeters) or larger in diameter at breast height (DBH).
					 These areas typically possess an overstory of trees, an understory of trees or
					 shrubs, and an herbaceous layer.
"Hydrologic regime" means the entire state of water
					 movement in a given area. It is a function of the climate and includes the
					 phenomena by which water first occurs as atmospheric water vapor, passes into a
					 liquid or solid form, falls as precipitation, moves along or into the ground
					 surface, and returns to the atmosphere as vapor by means of evaporation and
					 transpiration.
"Impacts" means results caused by those activities
					 specified in § 62.1-44.15:20 A of the Code of Virginia.
"Impairment" means the damage, loss, or degradation of the
					 acreage or functions of wetlands or the functions of state waters.
"Independent utility" means a test to determine what
					 constitutes a single and complete project. A project is considered to have
					 independent utility if it would be constructed absent the construction of other
					 projects in the project area. Portions of a phased development project that
					 depend upon other phases of the project do not have independent utility.
					 Portions of a phased development project that would be constructed even if the
					 other phases are not built can be considered as separate single complete
					 projects with independent public and economic utility.
"In-lieu fee program" means a program operated by a
					 nonprofit organization or governmental agency that receives moneys from persons
					 impacting wetlands or streams pursuant to an authorized, permitted activity and
					 that expends the moneys received to provide consolidated compensatory
					 mitigation for permitted wetland or stream impacts.
"Isolated wetlands of minimal ecological value" means those
					 wetlands that (i) do not have a surface water connection to other state waters,
					 (ii) are less than one-tenth of an acre (0.10 acre or 4,356 square feet) in
					 size, (iii) are not located in a Federal Emergency Management Agency designated
					 100-year floodplain, (iv) are not identified by the Virginia Natural Heritage
					 Program as a rare or state significant natural community, (v) are not forested,
					 and (vi) do not contain listed federal or state threatened or endangered
					 species.
"Joint Permit Application" or "JPA" means an application
					 form that is used to apply for permits from the Norfolk District Army Corps of
					 Engineers, the Virginia Marine Resources Commission, the Virginia Department of
					 Environmental Quality, and local wetland boards for work in waters of the
					 United States and in surface waters of Virginia.
"Law" means the State Water Control Law of Virginia.
"Legal name" means the full legal name of an individual,
					 business, or other organization. For an individual, legal name means the first
					 name, middle initial, last name, and suffix. For an entity authorized to do
					 business in Virginia, the legal name means the exact name set forth in the
					 entity's articles of incorporation, organization or trust, or formation
					 agreement, as applicable.
"Minimization" means lessening impacts by reducing the
					 degree or magnitude of the proposed action and its implementation.
"Mitigation" means sequentially avoiding and minimizing
					 impacts to the maximum extent practicable, and then compensating for remaining
					 unavoidable impacts of a proposed action.
"Mitigation bank" means a site providing off-site,
					 consolidated compensatory mitigation that is developed and approved in
					 accordance with all applicable federal and state laws or regulations for the
					 establishment, use, and operation of mitigation banks and is operating under a
					 signed banking agreement.
"Mitigation banking" means compensating for unavoidable
					 wetland or stream losses in advance of development actions through the sale or
					 purchase of credits from a mitigation bank.
"Nationwide permit" means a general permit issued by the
					 U.S. Army Corps of Engineers (USACE) under 33 CFR Part 330 and, except where
					 suspended by individual USACE Corps Districts, applicable nationwide.
"Nontidal wetland" means those wetlands other than tidal
					 wetlands that are inundated or saturated by surface water or groundwater at a
					 frequency and duration sufficient to support, and that under normal
					 circumstances do support, a prevalence of vegetation typically adapted for life
					 in saturated soil conditions, as defined by the U.S. Environmental Protection
					 Agency pursuant to § 404 of the federal Clean Water Act in
					 40
					 CFR 230.3(t). Wetlands
					 generally include swamps, marshes, bogs, and similar areas.
"Normal agricultural activities" means those activities
					 defined as an agricultural operation in § 3.2-300 of the Code of Virginia
					 and any activity that is conducted as part of or in furtherance of such
					 agricultural operation but shall not include any activity for which a permit
					 would have been required as of January 1, 1997, under
					 33 USC §
												1344 or any regulations promulgated pursuant
					 thereto.
"Normal residential gardening and lawn and landscape
					 maintenance" means ongoing noncommercial residential activities conducted by or
					 on behalf of an individual occupant, including mowing; planting; fertilizing;
					 mulching; tilling; vegetation removal by hand or by hand tools; and placement
					 of decorative stone, fencing, and play equipment. Other appurtenant
					 noncommercial activities, provided that they do not result in the conversion of
					 a wetland to upland or to a different wetland type, may also be
					 included.
"Normal silvicultural activities" means any silvicultural
					 activity as defined in § 10.1-1181.1 of the Code of Virginia, and any
					 activity that is conducted as part of or in furtherance of such silvicultural
					 activity but shall not include any activity for which a permit would have been
					 required as of January 1, 1997, under
					 33 USC §
												1344 or any regulations promulgated pursuant
					 thereto.
"Notice of project completion" means a statement submitted
					 by the permittee or authorized agent that the authorized activities and any
					 required compensatory mitigation have been completed.
"Open water" means an area that, during a year with normal
					 patterns of precipitation, has standing water for sufficient duration to
					 establish an ordinary high water mark. The term "open water" includes lakes and
					 ponds but does not include ephemeral waters, stream beds, or wetlands.
"Ordinary high water" or "ordinary high water mark" means
					 that line on the shore established by the fluctuations of water and indicated
					 by physical characteristics such as a clear, natural line impressed on the
					 bank; shelving; changes in the character of soil; destruction of terrestrial
					 vegetation; the presence of litter and debris; or other appropriate means that
					 consider the characteristics of the surrounding areas.
"Out-of-kind compensatory mitigation" or "out-of-kind
					 mitigation" means a measure that does not replace the same type of wetland or
					 surface water as was impacted but does replace lost wetland or surface water
					 functions or provide a water quality, habitat, or other desirable
					 benefit.
"Perennial stream" means a well-defined channel that
					 contains water year round during a year of normal rainfall. Generally, the
					 water table is located above the stream bed for most of the year and
					 groundwater is the primary source for stream flow. A perennial stream exhibits
					 the typical biological, hydrological, and physical characteristics commonly
					 associated with the continuous conveyance of water.
"Permanent flooding or impounding" means a permanent
					 increase in the duration or depth of standing water on a land surface, such as
					 from a dam. Permanent increases in duration or depth of standing water that
					 result from extended-detention basins and enhanced extended-detention basins,
					 when designed, constructed, and maintained to function in accordance with
					 Virginia Department of Conservation and Recreation (DCR) standards for such
					 facilities (Virginia Stormwater Management Handbook, First Edition, 1999,
					 Volume 1, Chapter 3), or when designed in accordance with local standards that,
					 at a minimum, meet the DCR standards, are not considered to be permanent
					 flooding and impounding.
"Permanent impacts" means those impacts to surface waters,
					 including wetlands, that cause a permanent alteration of the physical,
					 chemical, or biological properties of the surface waters or of the acreage or
					 functions of a wetland.
"Permittee" means the person who holds a VWP individual or
					 general permit.
"Permittee-responsible compensatory mitigation" or
					 "permittee-responsible mitigation" means compensation or compensatory
					 mitigation, as defined in this section, that is undertaken by the permittee, or
					 an authorized agent or contractor, for which the permittee retains full
					 responsibility.
"Person" means individual, corporation, partnership,
					 association, governmental body, municipal corporation, or any other legal
					 entity.
"Phased development" means more than one project proposed
					 for a single piece of property or an assemblage of contiguous properties under
					 consideration for development by the same person, or by related persons, that
					 will begin and be completed at different times. Depending on the relationship
					 between the projects, a phased development may be considered a single and
					 complete project or each project may be considered a single and complete
					 project if each project has independent utility, as defined in this
					 section.
"Plan view drawing" means a scaled graph or plot that
					 represents the view of an object as projected onto orthogonal planes. Objects
					 may include structures, contours, or boundaries.
"Pollutant" means any substance, radioactive material, or
					 heat that causes or contributes to or may cause or contribute to
					 pollution.
"Pollution" means such alteration of the physical,
					 chemical, or biological properties of any state waters as will or is likely to
					 create a nuisance or render such waters (i) harmful or detrimental or injurious
					 to the public health, safety, or welfare or to the health of animals, fish, or
					 aquatic life; (ii) unsuitable with reasonable treatment for use as present or
					 possible future sources of public water supply; or (iii) unsuitable for
					 recreational, commercial, industrial, agricultural, or other reasonable uses;
					 provided that (a) an alteration of the physical, chemical, or biological
					 property of state waters, or a discharge or deposit of sewage, industrial
					 wastes or other wastes to state waters by any owner which by itself is not
					 sufficient to cause pollution, but which, in combination with such alteration
					 of or discharge or deposit to state waters by other owners is sufficient to
					 cause pollution; (b) the discharge of untreated sewage by any owner into state
					 waters; and (c) contributing to the contravention of standards of water quality
					 duly established by the board, are "pollution" for the terms and purposes of
					 this chapter.
"Practicable" means available and capable of being done
					 after taking into consideration cost, existing technology, and logistics in
					 light of overall project purposes.
"Preservation" means the protection of resources in
					 perpetuity through the implementation of appropriate legal and physical
					 mechanisms.
"Profile drawing" means a scaled graph or plot that
					 represents the side view of an object. Objects may include a surface water body
					 or a portion of it, a man-made channel, an above-ground structure, a
					 below-ground structure, a geographical feature, or the ground surface
					 itself.
"Public hearing" means a fact finding proceeding held to
					 afford interested persons an opportunity to submit factual data, views, and
					 comments to the department.
"Regional permit" means a general permit issued by the U.S.
					 Army Corps of Engineers under 33 CFR Part 330 and applicable within a specified
					 geographic area.
"Restoration" means the reestablishment of a wetland or
					 other aquatic resource in an area where it previously existed. Wetland
					 restoration means the reestablishment of wetland hydrology and vegetation in an
					 area where a wetland previously existed. Stream restoration means the process
					 of converting an unstable, altered, or degraded stream corridor, including
					 adjacent areas and floodplains, to its natural conditions.
"Riprap" means a layer of nonerodible material such as
					 stone or chunks of concrete.
"Section 401 " means § 401 of the Clean Water Act, or
					 33
					 USC §
												1341, as amended in 1987.
"Scrub-shrub wetland" means a class of wetlands dominated
					 by woody vegetation, excluding woody vines, approximately three to 20 feet (one
					 to six meters) tall. The species include true shrubs, young trees, and trees or
					 shrubs that are small or stunted because of environmental conditions.
"Significant alteration or degradation of existing wetland
					 acreage or function" means human-induced activities that cause either a
					 diminution of the areal extent of the existing wetland or cause a change in
					 wetland community type resulting in the loss or more than minimal degradation
					 of its existing ecological functions.
"Single and complete project" means the total project
					 proposed or accomplished by a person, which also has independent utility as
					 defined in this section. For linear projects, the single and complete project
					 (e.g., a single and complete crossing) will apply to each crossing of a
					 separate surface water (e.g., a single water body) and to multiple crossings of
					 the same water body at separate and distinct locations. Phases of a project
					 that have independent utility may each be considered single and
					 complete.
"State waters" means all water, on the surface and under
					 the ground, wholly or partially within or bordering the Commonwealth or within
					 its jurisdiction, including wetlands.
"Stream bed" or "stream channel" means the substrate of a
					 stream, as measured between the ordinary high water mark along each side of a
					 stream. The substrate may consist of organic matter, bedrock, or inorganic
					 particles that range in size from clay to boulders, or a combination of both.
					 Areas contiguous to the stream bed, but outside of the ordinary high water mark
					 along each side of a stream, are not considered part of the stream bed.
"Surface water" means all state waters that are not
					 groundwater as groundwater is defined in § 62.1-255 of the Code of
					 Virginia.
"Suspend" or "suspension" means a decision by the
					 department that stops the review or processing of a permit application or
					 request to modify a permit or permit coverage until such time that information
					 requested by the department is provided, reviewed, and deemed adequate.
"Temporal loss" means the time lag between the loss of
					 aquatic resource functions caused by the impacts and the replacement of aquatic
					 resource functions by compensatory mitigation.
"Temporary impacts" means impacts to wetlands or other
					 surface waters that do not cause a permanent alteration of the physical,
					 chemical, or biological properties of surface waters or the permanent
					 alteration or degradation of existing wetland acreage or functions. Temporary
					 impacts include activities in which the impact area is restored to its
					 preconstruction elevations and contours with topsoil from the impact area where
					 practicable, such that previous wetland acreage and functions or surface water
					 functions are restored.
"Tidal wetland" means vegetated and nonvegetated wetlands
					 as defined in § 28.2-1300 of the Code of Virginia.
"Toxic pollutant" means any agent or material including
					 those listed under § 307(a) of the Water Pollution Prevention and Control
					 Act (33 USC §
												1317(a)) , which after
					 discharge will, on the basis of available information, cause toxicity. Toxicity
					 means the inherent potential or capacity of a material to cause adverse effects
					 in a living organism, including acute or chronic effects to aquatic life,
					 detrimental effects on human health, or other adverse environmental
					 effects.
"Undesirable plant species" means any species that invades,
					 naturally colonizes, or otherwise dominates a compensatory mitigation site or
					 mitigation bank, such that it causes or contributes to the failure of the
					 vegetative success criteria for a particular compensatory mitigation site,
					 mitigation bank, or in-lieu fee program project, or it otherwise prohibits the
					 restoration of the same vegetation cover type that was originally
					 present.
"VWP general permit" means the general permit text, terms,
					 requirements, and conditions set forth in a regulation that constitutes a VWP
					 permit authorizing a specified category of activities.
"VWP permit" means an individual permit issued by the
					 department or a general permit issued as a regulation adopted by the board
					 under § 62.1-44.15:20 of the Code of Virginia that authorizes activities
					 otherwise unlawful under § 62.1-44.5 of the Code of Virginia or otherwise
					 serves as the Commonwealth of Virginia's § 401 certification. For any
					 applicant to the Federal Energy Regulatory Commission for a certificate of
					 public convenience and necessity pursuant to § 7c of the federal Natural
					 Gas Act (15 USC §
												717f(c)) to construct any
					 natural gas transmission pipeline greater than 36 inches inside diameter,
					 issuance of an individual VWP permit pursuant to this chapter and a
					 certification issued pursuant to Article 2.6 (§ 62.1-44.15:80 et seq.) of
					 the State Water Control Law shall together constitute the certification
					 required under § 401 of the federal Clean Water Act.
"Water quality standards" means water quality standards
					 adopted by the board and approved by the administrator of the U.S.
					 Environmental Protection Agency under § 303 of the Clean Water Act as
					 defined in
					 9VAC25-260-5.
"Watershed approach" means an analytical process for making
					 compensatory mitigation decisions that support the sustainability or
					 improvement of aquatic resources in a watershed and that ensures authorized
					 impacts and mitigation have been considered on a watershed scale.
"Wetlands" means those areas that are inundated or
					 saturated by surface water or groundwater at a frequency and duration
					 sufficient to support, and that under normal circumstances do support, a
					 prevalence of vegetation typically adapted for life in saturated soil
					 conditions. Wetlands generally include swamps, marshes, bogs, and similar
					 areas.
Statutory Authority: § 62.1-44.15 of the Code of
						Virginia; § 401 of the Clean Water Act (33 USC §
													1251 et
						seq.).