Virginia Marine Resources Commission
"General Permit for Emergency Situations and Water Quality Improvement Projects Involving State-owned Subaqueous Beds in Non-tidal Waterways"
Regulation 4 VAC 20-395-10 ET SEQ.
This Regulation describes the qualifications, procedures and manner of applying for a general permit for activities under the jurisdiction of the Marine Resources Commission involving state-owned subaqueous beds in non-tidal waterways for emergency activities required to protect public and private property as well as public health and safety, or intended to improve water quality. It also establishes the minimum stream size above which an individual Commission permit will be required for activities not covered by this general permit.
This Regulation is promulgated pursuant to the authority contained in Sections 28.2-103 and 28.2-1207 of the Code of Virginia. The effective date of this Regulation is-----------,1998.
4 VAC 20-395-10 PURPOSE
The purpose of this regulation is to provide an expedited process for the issuance of a general permit for activities in or on State-owned subaqueous beds whereby property owners adjacent to non-tidal waterways are granted authority to install structures to stabilize water courses and stream banks in emergency situations or construct facilities designed to improve water quality.
Qualification for this general permit constitutes the Commission authorization required in accordance with Sections 28.2-1204 and 28.2-1207 of the Code of Virginia. This general permit shall not conflict with any other Federal, State, or Local permitting requirements or authorization governing the proposed activity.
4 VAC 20-395-20 DEFINITIONS
The following words and terms, when used in this regulation, shall have the following meaning unless the context clearly indicates otherwise:
"Commission" means the Marine Resources Commission.
"Commissioner" means the Commissioner of Marine Resources.
Regulation 4 VAC 20-395-10 ET SEQ.
"Emergency" means that a structure, facility or property is in imminent or potential danger following a flood event or natural disaster and by definition includes those situations which qualify for assistance as part of the Department of Agriculture's Natural Resources Conservation Service (NRCS) Emergency Watershed Protection Program.
"NRCS "means the Natural Resources Conservation Service which is the federal agency under the U.S. Department of Agriculture delegated to administer the Emergency Watershed Protection (EWP) Program.
"Emergency Watershed Protection Program" means the program administered by NRCS to assist in relieving imminent hazards to life and property from floods and products of erosion created by natural disasters. The authority for the EWP Program is given to NRCS in Section 216, Public Law 81-516 and Section 403 of Title IV of the Agriculture Credit Act of 1978, Public Law 95-334. Codified rules are set forth in 7CFR 624.
"Exigency" means a situation presents an immediate threat of damage to life or property. An exigency situation continues to exist as long as the probability of damage continues at such a high level.
"Bioengineering" means an applied science that combines structural, biological, and ecological concepts to construct living structures for erosion, sediment, and flood control.
4 VAC 20-395-30 DISCUSSION
A. At present the Code provides no mechanism for the emergency authorization of projects involving encroachments in, on, or over State-owned submerged beds designed to protect public or private property or safeguard public health and safety. While the Commission has previously entered into a Memorandum of Understanding with the Department of Agriculture's Natural Resources Conservation Service (NRCS) to expedite permit issuance for exigency projects under the Emergency Watershed Protection Program, the process does not eliminate the need for the Commission's required public interest review and comment period. Furthermore, there is no expedited mechanism to authorize projects that are designed to improve water quality in waterways with drainage areas greater than five square miles or with flow rates greater than five cubic feet per second where project impacts are minimal.
B. The principle objective of this general permit is a streamlined public interest review process for projects that are deemed necessary in an emergency or which will result in improved water quality, and will have only minor impacts in waterways with drainage areas greater than five square miles or flow rates greater than five cubic feet per second.
C. Experience has shown that the types of projects covered by this general permit are necessary in emergency situations, would improve water quality and result in only minor impact. In addition, these types or classes of projects would normally receive an individual Commission permit following the normal public interest review.
D. This general permit is valid only for projects that result in encroachments over State- owned submerged lands in non-tidal waterways.
4 VAC 20-395-40 PROCEDURES
A. The Commissioner or his designee, Chief, Habitat Management Division, will oversee administration of the provisions of the general permit.
B. An approved local-State-Federal Application form (Joint Permit Application) or abbreviated General Permit form #5 must be completed and filed in accordance with the instructions contained therein. The application shall be submitted to the Marine Resources Commission. The Commission will assign a processing number and forward copies to the U.S. Army Corps of Engineers and the Department of Environmental Quality for concurrent processing. Copies will also be forwarded to VIMS, the Department of Game and Inland Fisheries, Department of Conservation and Recreation, and Department of Historic Resources for review and comment. If an agency does not respond within 10 working days, the Commission will assume the agency has no comment on the proposed activity.
C. If the proposed project does not satisfy the conditions of this general permit, the environmental impacts are estimated to be more than minimal or there are unresolved objections by other state agencies it will be processed for an individual Commission permit.
D. If the project qualifies for the general permit the Commission's public notice requirement shall be waived.
E. The Commissioner is empowered to issue the general permit for any of the following:
1. The project is part of an Emergency Watershed Protection Project and is being conducted in accordance with all applicable Emergency Watershed Protection Project standards for exigency projects in responses to an emergency following a flood event or natural disaster and the project is covered under the U.S. Army Corps of Engineers Nationwide Permit # 37 (33C.F. R. Part 230).
2. The project is a stream bank restoration, generally including bioengineering approaches and livestock crossings, that has been designed or approved by one or more of the following agencies; Natural Resources Conservation Service, Department of Conservation and Recreation, Soil and Water Conservation District, Department of Game and Inland Fisheries, Department of Forestry or U.S. Fish and Wildlife Service. The project is conducted in accordance with the terms and conditions of a binding agreement between the landowner and the oversight agency; such agreement shall include provisions for maintenance of the project, and the project is covered under the U.S. Army Corps of Engineers Nationwide permit Program (33 C.F. R. Part 230) or qualifies for Regional Permit Number 40 authorized by the Norfolk District of the U. S. Army Corps of Engineers.
3. The project is for the replacement of a previously existing and previously serviceable structure or facility located on State-owned submerged land that has been damaged of lost due to a flood event or natural disaster.
F. Any general permit authorized by this regulation is valid for one year from the date of issuance. If the project has not been commenced within that time, a reapplication and evaluation will be required.
G. Upon a determination that impacts of a proposed project could significantly impact water quality, aquatic resources or other properties, the Commissioner may determine that this general permit does not apply and require that an individual Marine Resources Commission permit be processed.
H. This general permit does not authorize any rechannelization, channel widening, deepening, straightening, levee construction, or water withdrawal. This general permit does not authorize any projects that will impede the migration or other movements of aquatic life.