DEQ and USACE MOA

DEQ and the US Army Corps of Engineers – Norfolk District (USACE) entered a Memorandum of Agreement (MOA) on March 29, 2023, outlining where each agency will take the lead in the compensatory mitigation program. In accordance with the MOA, DEQ will be the lead agency for review of as-built, monitoring, and financial reports, corrective action plans, and credit and financial assurance releases.

2023 Monitoring Report Template Released

All third-party compensatory mitigation site monitoring reports submitted to DEQ and USACE after April 12, 2023, should use the 2023 Monitoring Report Template. Please see the Monitoring Report Template documents in the Templates tab. 

Compensatory mitigation is the last step in the three-step mitigation process as part of receiving a Virginia Water Protection (VWP) permit. Compensatory mitigation involves compensating for remaining unavoidable wetland or stream impacts of a proposed permit action, after avoiding and minimizing impacts to the maximum extent practicable.  The purpose of compensatory mitigation is to replace the acreage and biological, chemical, and physical functions of wetland and stream resources by quantifying the replaced acreage and function as a 'credit,' which can be purchased by permittees to compensate or 'debit' for unavoidable wetland or stream losses. Compensatory mitigation may take the form of the following options (9 VAC 25-210-116 (C)(2) – (C)(3)). Applicants should consider the options in the order they are written, which is commonly referred to as the mitigation hierarchy:

• Purchase of wetland or stream mitigation credits from a DEQ approved mitigation bank;
• Purchase of wetland or stream mitigation credits from a DEQ approved in-lieu fee mitigation program;
• Permittee-responsible mitigation under a watershed approach; 
• Permittee-responsible mitigation through onsite and in-kind mitigation;
• Permittee-responsible mitigation through off-site or out-of-kind mitigation;
• Restoration, enhancement, or preservation of upland buffers adjacent to wetlands and/or streams when utilized in conjunction with the options above; and,
• Preservation of wetlands and/or streams when utilized in conjunction with the options listed above.

State law and regulation specifies that if all mitigation options in the hierarchy are available for a given permit action, the permittee shall purchase available credits in the order of the hierarchy or justify the proposed use of any preferred option that does not follow the hierarchy. The applicant may provide an analysis of all available mitigation options to assist DEQ to determine whether the preferred option is ‘environmentally and ecologically preferable and practicable’ to the purchase of available mitigation bank and in-lieu fee credits (9 VAC 25-210-116 (B)). The analysis will include evidence for each available mitigation option for the ‘replacement of acreage and functions, which option offers the greatest likelihood of success, and avoidance of temporal loss of acreage and function’ (9 VAC 25-210-116 (C)(2) – (C)(3)).  Please contact your VWP permit writer or DEQ Regional Office for more information on mitigation options, especially if you are considering an option that does not follow the hierarchy.

In 2008, the U.S. Environmental Protection Agency (USEPA) and USACE, through a joint rulemaking, expanded the Clean Water Act Section 404(b)(1) Guidelines to include more comprehensive standards for compensatory mitigation. This joint federal rulemaking is called “Compensatory Mitigation for Losses of Aquatic Resources: Final Rule” (Final Mitigation Rule). In 2008, the Commonwealth revised VWP permit regulations to align with the Final Mitigation Rule to promote no net loss of wetland acreage and function, and stream functions and water quality benefits.

Wetlands

The following wetland compensatory mitigation ratios are used to calculate compensatory mitigation requirements for unavoidable impacts to wetlands. These ratios are generally accepted, especially when compensation is required for a VWP general permit. DEQ may require alternative ratios for activities permitted under a VWP individual permit.

• 2:1 (2 acres compensation for each 1 acre of impact) for forested wetland impacts
• 1.5:1 for scrub-shrub wetland impacts
• 1:1 for emergent wetland impacts
• 1:1 for conversion impacts (ex. forested wetland converted to emergent wetland)
• Project-specific ratios for other surface water impacts such as open waters when necessary

Streams

The Unified Stream Methodology (USM) is a collaborative effort between USACE and DEQ. The purpose of USM is to outline a method to rapidly assess the stream compensation requirements for permitted stream impacts and the amount of stream credits obtained through implementation of various stream mitigation activities. The USM is used for projects requiring stream compensation under the USACE’s Norfolk District Regulatory Program and DEQ’s VWP Permit Program.

The USM describes a process to: 

• Assign a Reach Condition Index to the stream to be impacted
• Assess the type or severity of impact
• Determine the compensation requirement
• Determine what types of and amounts of the various mitigation practices that will satisfy the compensation requirement. 

A list of approved mitigation banks and sites can be found on the USACE’s RIBITS website. Interested parties may search RIBITS for available credits for a particular project, using the RIBITS Menu options for the ‘Norfolk District’ and for ‘Find Credits.’ In addition, you may check an individual mitigation bank’s credit ledger and utilize the contact information for a mitigation bank sponsor. DEQ highly recommends contacting a mitigation bank sponsor directly to confirm available credits and that your project is within the mitigation bank’s geographic service area.  Please see the Mitigation Banks tab for more information.

For available mitigation credits from an in-lieu fee mitigation program, DEQ highly recommends contacting an in-lieu fee mitigation program directly to confirm available credits and that your project is within the in-lieu fee program’s geographic service area. Please see the In-Lieu Fee Programs tab for more information.

No Mitigation Credits Available?

If there are no mitigation bank credits or in-lieu fee credits available for your project, you may consider other options on the mitigation hierarchy discussed in the What is Compensatory Mitigation tab. Please contact your VWP permit writer or DEQ Regional Office to discuss other potential mitigation options, including permittee responsible mitigation options and requirements.

What is mitigation banking?

The Commonwealth of Virginia defines a mitigation bank in VWP permit regulation as ‘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 [mitigation] banking instrument' (9 VAC 25-210-10).

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’ (9 VAC 25-210-10). The purpose of mitigation banks is to replace the acreage and biological, chemical, and physical functions of wetland and stream resources by quantifying the replaced acreage and function as a ‘credit,’ which can be purchased by permittees to compensate or 'debit' for unavoidable wetland or stream losses. Advantages of mitigation banks include: 

• Larger sites with potentially increased functions and values
• Economies of scale for financial resources, maintenance, and long-term management
• Compensation usually occurs in advance of the impact
• Potentially reduces permit review time frames
• Permittees are relieved of the responsibility of implementing, monitoring, and managing a permittee-responsible mitigation site

How do I become a mitigation bank sponsor?

Any individual, organization, locality, or other entity may propose to establish a mitigation bank. Virginia State Water Control Law states that ‘a locality may establish, operate, and sponsor wetland or stream single-user mitigation banks within the Commonwealth… provided that such single-user [mitigation] banks may only be considered for compensatory mitigation for the sponsoring locality's municipal, joint municipal, or governmental projects’ (Code of Virginia § 62.1-44.15:23 (F)). Mitigation bank sponsors are responsible for demonstrating to the federal and state regulatory agencies that their proposal meets federal and state mitigation program requirements and continues to do so throughout operation of the mitigation bank by following the requirements outlined in their approved mitigation banking instrument.  The establishment and operation of a mitigation bank requires significant time, money, and resources that are entirely the responsibility of the mitigation bank sponsor.

State law (Code of Virginia § 62.1-44.15:20-23) and VWP regulation (9 VAC 25-210) authorize DEQ to review, approve, and sign mitigation banking instruments and in-lieu fee program instruments. State regulation specifies that a permit applicant may purchase credits from a mitigation bank that ‘has been approved and is operating in accordance with applicable federal and state guidance, laws, or regulations for the establishment, use, and operation of mitigation banks,’ and that mitigation bank ‘has been approved by a process that included public review and comment’ (Code of Virginia § 62.1-44.15:23 (B)). Therefore, mitigation bank or site must meet all federal and state mitigation requirements in order to gain DEQ’s regulatory approval and signature.

The Final Mitigation Rule established the use of an Interagency Review Team (IRT) to review and approve mitigation banks and in-lieu fee programs and sites. The IRT brings numerous federal and state agencies together to evaluate and ensure compliance of proposed mitigation sites.  The USACE Norfolk District is the federal chair and administrator of the Norfolk District IRT.  DEQ is the state chair of the IRT for non-tidal compensatory mitigation.  The Virginia Marine Resource Commission (MRC) is the state chair of the IRT for tidal compensatory mitigation.  Other non-chair members participate on the Norfolk District IRT, including representatives of the National Oceanic and Atmospheric Administration, U.S. Department of Agriculture, U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, Virginia Department of Conservation and Recreation, Virginia Department of Forestry, Virginia Department of Historic Resources, and Virginia Department of Wildlife Resources, as well as local and/or tribal representatives on a site-specific basis.  The non-chair IRT members assist the chairs in assessing potential mitigation sites and addressing proper operation and adaptive management of approved mitigation sites.  The Norfolk District IRT collaborated to outline requirements for the establishment, operation, and long-term management of mitigation banks and sites in the 2018 Site Selection Criteria and 2018 Mitigation Banking Instrument template, described in the How Do I Select a Mitigation Site and What is a Mitigation Banking Instrument sections. 

DEQ recommends discussing a potential mitigation bank with regulatory personnel prior to expending significant amounts of time or money. You may contact DEQ or USACE for more information on mitigation banking, using the Contacts tab.

How do I select a mitigation site?

The USACE Norfolk District and DEQ, in consultation with the Norfolk District IRT, developed the 2018 Site Selection Criteria, which is also available in RIBITS by selecting ‘Norfolk District’ in the filter and the Menu option for ‘Bank & ILF Establishment.’ The current site selection criteria integrate many previous federal and state site selection guidance documents into one set of recommendations, and are for use on proposed mitigation banks, in-lieu-fee mitigation sites, and permittee responsible mitigation sites. The criteria identify priority areas for mitigation sites, mitigation sites that have a higher likelihood of success, and mitigation sites that may satisfy more than one conservation goal.

What is a mitigation banking instrument?

A Mitigation Banking Instrument (MBI) is a written document outlining regulatory requirements for the establishment, operation, and long-term management of an individual mitigation bank. The USACE Norfolk District and DEQ, in consultation with the Norfolk District IRT, developed the 2018 Mitigation Banking Instrument (MBI) Template, which is available in RIBITS by selecting ‘Norfolk District’ and the Menu option for ‘Bank & ILF Establishment.’ A sponsor may develop a site-specific MBI for review, after receiving written notification to proceed from the USACE Norfolk District. Once the Norfolk District IRT approves the proposed mitigation bank, the appropriate chairs will provide the sponsor written notification of approval and forward the final MBI to the sponsor for the sponsor’s signature accepting the terms and conditions of the approved MBI. The MBI is valid once signed by all appropriate entities authorized to act on behalf of the USACE, DEQ, MRC, and the sponsor.

How do I calculate compensatory mitigation credits?

Compensatory mitigation is defined in the VWP Program regulation as ‘the restoration, creation, enhancement, or in certain circumstances preservation of aquatic resources, or 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’ (9 VAC 25-210-10). Compensatory mitigation may include: 

• Wetland creation, restoration, enhancement, and/or preservation;
• Stream restoration, enhancement, and/or preservation;
• Riparian or Upland Buffer re-establishment, restoration, enhancement, and/or preservation adjacent to streams and wetlands;
• Exclusion of grazing livestock from streams and riparian buffers;
• Preservation of an entire watershed, in conjunction with other stream mitigation activities;
• Preservation and/or improvement of streams that are confirmed Rare, Threatened, or Endangered species habitat;
• Other compensatory mitigation measures, on a case-by-case basis;
• Out-of-kind compensatory mitigation measures, on a case-by-case basis.

Wetlands

The following wetland mitigation credit ratios are presented for use on wetland mitigation sites, which may be subject to change based on more detailed site-specific information.

• Restoration = 1:1 (one credit per one acre)
• Creation = A range of 1:1 to 1:2 (one credit per one acre to two acres)
• Enhancement = A range of 1:3 to 1:9, depending on functions enhanced
• Preservation = 1:10
• Upland Buffer Restoration = 1:15
• Upland Buffer Preservation = A range of 1:20 to 1:40

Streams

The Unified Stream Methodology (USM), as discussed on the What is My Compensatory Mitigation Requirement tab, is also used to determine the number of stream mitigation credits that are proposed and implemented on a given compensatory mitigation bank or site. The following stream mitigation credit ratios are presented in the USM for use on stream mitigation sites; however site-specific information about the individual mitigation activities is necessary to fill out the USM Forms, which provide the actual number of stream mitigation credits.

• Restoration = 1 credit per 1 linear foot
• Enhancement = 0.09 – 0.3 credits per 1 linear foot per stream bank
• Riparian Buffer Activities = 0 – 0.4 credits per linear foot
• Cattle Exclusion, Watershed Preservation, RT&E Species Protection = Site-specific

Geographic Service Areas

Approved mitigation banks and in-lieu fee mitigation programs may sell mitigation credits within a site-specific Geographic Service Area (GSA) in an approved MBI, which is reviewed and approved by the Norfolk District IRT. The State Water Control Law defines a Primary Geographic Service Area as ‘the fourth order subbasin in which the bank is located, … and any adjacent fourth order subbasin within the same river watershed’ (Code of Virginia § 62.1-44.15:23 (B)). State Law further defines Secondary Geographic Service Area as ‘the area outside the primary service area but within the same physiographic province in which the bank is located and any adjacent physiographic province within the same river watershed.’ The Norfolk District IRT may further define the GSA of an individual mitigation bank or site, depending on site-specific regulatory and/or ecological factors. The sale or use of wetland or stream credits in a Secondary Service Area, if approved, carries additional requirements for the applicant, which are outlined in state law and in the site-specific MBI.

An approved MBI and site-specific GSA determines the ability of a mitigation bank to sell credits for a specific permit. A VWP permit writer, using applicable state law and regulation, determines the ecological preference of a mitigation bank over other available compensatory mitigation options for a specific permit.

What is an in-lieu fee mitigation program?

An in-lieu fee (ILF) mitigation program is ‘a program operated by a nonprofit organization or governmental agency that sells credits to persons impacting wetlands or streams pursuant to an authorized, permitted activity and that expends the moneys received to provide consolidated compensatory mitigation [in credits established at mitigation sites] for permitted wetland or stream impacts’ (9 VAC 25-210-10).

Proposed ILF programs and individual ILF sites are reviewed by the USACE, DEQ, and the Norfolk District IRT. An approved ILF program must operate under the same federal and state law and regulations governing mitigation banks. However, an ILF program may sell advance credits (a definitive number of credits that are released prior to implementation of mitigation sites), tabulated as credit liabilities. The ILF program establishes each mitigation site under an individual Site Development Plan (similar to a Mitigation Banking Instrument) that fulfills their credit liabilities, and the ILF program may sell any credits created in excess of credit liabilities as released credits.

In addition to the general mitigation requirements described in state law and regulation for all mitigation banks and sites, state regulation also describes the criteria by which DEQ may approve an ILF program (9 VAC 25-210-116 (D)).  DEQ may authorize an ILF program to operate in the Commonwealth for a maximum of ten (10) years, at which time DEQ may review or approve additional authorizations.  An ILF program must agree to provide:

1. Demonstration of a no net loss policy in terms of wetland acreage and functions or stream functions and water quality benefits by adoption of operational goals or objectives for restoration, creation, enhancement, or preservation;
2. DEQ approval of each site for inclusion in the program [review and approval provided through signature of individual Site Development Plans];
3. A commitment to provide annual reports to the department [DEQ] detailing contributions received [credits sold] and acreage and type of wetlands or streams preserved, created or restored in each watershed with those contributions [credits established at mitigation sites], as well as the compensatory mitigation credits contributed for each watershed of project impact;
4. A mechanism to establish fee amounts that will ensure each contribution will be adequate to compensate for the wetland acreage and functions or stream functions and water quality benefits lost in the impacted watershed; and
5. Such terms and conditions as the department [DEQ] deems necessary to ensure a no net loss of wetland acreage and functions or stream functions and water quality benefits from permitted projects providing compensatory mitigation.

What in-lieu fee programs operate in Virginia?

Living River Restoration Trust
The Living River Restoration Trust (LRRT), formerly named the Elizabeth River Restoration Trust, is an approved ILF program, which has been in operation in Virginia since 2003. LRRT was originally approved by a Memorandum of Understanding in 2003 among the Elizabeth River Project (former sponsor), DEQ, and the USACE, and currently operates under the approved 2018 LRRT Program Instrument between LRRT (current sponsor) and the USACE. The 2018 Program Instrument replaced all previous memorandums of understanding and program instruments. The primary goal of the LRRT is to achieve improvements in the aquatic health of the Elizabeth River (Chesapeake Bay watershed) by compensating for permitted impacts to tidal submerged lands and tidal wetlands within the Elizabeth River and is committed to achieving a goal of no net loss of aquatic resources where required for tidal wetlands.

DEQ authorizes the use of the LRRT ILF program as compensatory mitigation on a case-by-case basis through the VWP Permit Program.  Please see DEQ’s LRRT Determination Letter for more information.

Virginia Aquatic Resources Trust Fund
The Virginia Aquatic Resources Trust Fund (VARTF) is an approved ILF program, operating in Virginia since 1995 by The Nature Conservancy (TNC – sponsor). VARTF was originally approved by a Memorandum of Understanding between TNC and the USACE, and currently operates under the approved 2019 Program Instrument between TNC, the USACE, and DEQ. The 2019 Program Instrument replaced all previous memorandums of understanding and program instruments. VARTF is dedicated to the goal of replacing the greatest value in terms of wetland acreage and wetland and stream functions, while providing a specific emphasis on protecting Virginia’s rare plants, animals, and natural communities.  VARTF operates in thirteen river watersheds out of the fourteen that flow through Virginia.  VARTF drafts an annual report on their credit liabilities and proposed and approved mitigation activities from the previous year, which is published on TNC’s website.

In 2019, DEQ determined that VARTF met state law and regulation necessary for an approved ILF program, and DEQ reauthorized the VARTF ILF program to continue to operate within Virginia for a period of 10 years.  State authorization of VARTF is dependent on the program’s continued compliance to federal and state law and regulations.  Please see DEQ’s VARTF Authorization Letter for more information.  

Please see the USACE/DEQ MOA for a full list of target schedules for 10 major compensatory mitigation review processes. DEQ will track specific requests during the review process in the public Permitting Enhancement and Evaluation Platform. 

As-built Report 

• 30 days for completeness and technical sufficiency review
• 15 days for review of additional required information
• 15 days for IRT coordination of report
• 30 days to conduct a site visit (from beginning of IRT coordination)
• 15 days from the site visit or the end of IRT coordination to coordinate DEQ’s recommended credit release decision and other recommendations with the USACE & IRT (The USACE has 15 days to review DEQ’s recommendations) 
• 5 days from USACE concurrence to release credits or deny release for corrective action

Monitoring Report with Credit Release Request

• 30 days for completeness and technical sufficiency review
• 15 days for review of additional required information
• 15 days for IRT coordination of report
• 30 days to conduct a site visit, if needed (from beginning of IRT coordination)
• 15 days from the site visit or the end of IRT coordination to coordinate DEQ’s recommended credit release decision and other recommendations with the USACE & IRT (The USACE has 15 days to review DEQ’s recommendations) 
• 5 days from USACE concurrence to release credits or deny release for corrective action

Monitoring Report (No Credit Release Request)

• 60 days for completeness and technical sufficiency review
• 15 days for review of additional required information
• 15 days for IRT coordination of report
• 30 days to conduct a site visit, if needed (from beginning of IRT coordination)
• 15 days from the site visit or the end of IRT coordination to coordinate DEQ recommendations with the USACE & IRT (The USACE has 15 days to review DEQ’s recommendations)
• 5 days from USACE concurrence to convey any recommendations to Sponsor 

Financial Assurance Release Request

• 15 days for completeness and technical sufficiency review
• 15 days for review of additional required information
• 15 days for IRT coordination of report
• 15 days from the end of IRT coordination to coordinate DEQ’s financial release recommendations with the USACE & IRT (The USACE has 15 days to review DEQ’s recommendations)
• 5 days from USACE concurrence to inform the Sponsor of final decision 

Compensatory Mitigation Templates

Templates for proposing a mitigation bank may be found on USACE’s RIBITS website, by choosing the ‘Norfolk District’ and the ‘Bank and ILF Establishment’ options on the Menu. Look for:

• USACE Pre-Application Request Form
• USACE Complete Prospectus Checklist  
• 2018 Site Selection Criteria
• 2018 MBI Template and Exhibits 

Monitoring Report Template

DEQ and the USACE Norfolk District have released the 2023 Monitoring Report Template for use in the Commonwealth of Virginia. All Third-Party Compensatory Mitigation Site Monitoring Reports, submitted to DEQ and USACE for consideration after April 12, 2023, should use the 2023 Monitoring Report Template. Any questions about the 2023 Monitoring Report Template or the implementation of its use should be directed to DEQ or USACE using the Contacts tab.

Monitoring Report template documents:

• 2023 Monitoring Report Template
• 2023 Monitoring Report Tables Template
• 2023 Monitoring Report Credit Tracking Template
• 2023 Monitoring Report Financial Ledger Template
• 2023 Monitoring Report Q & A

• Code of Virginia § 62.1-44.15:21 B  - Virginia State Water Control Law specifies that when VWP permits are issued, such 'permits should contain requirements for compensating impacts on wetlands’.
• Code of Virginia § 62.1-44.15:23 – Virginia State Water Control Law specifies where applicants may satisfy compensatory mitigation requirements and defines Primary and Secondary Geographic Service Areas where mitigation banks and sites may sell credits in Virginia.
• 9 VAC 25-210 – Virginia Water Protection Permit Program regulations
• 9 VAC 25-210-10  – State regulation that defines 'mitigation means sequentially avoiding and minimizing impacts to the extent practicable, and then compensating for remaining unavoidable impacts of a proposed action.’
• 9 VAC 25-210-80 M - VWP permit regulations outlining Conceptual Compensatory Mitigation Plan requirements.
• 9 VAC 25-210-116  - VWP permit regulations further specify that ‘compensatory mitigation for project impacts shall be sufficient to achieve no net loss of existing wetland acreage and no net loss of functions in all surface waters’. This section also outlines compensatory mitigation options, ecologically and environmentally preferable compensation, the mitigation hierarchy, requirements for DEQ authorization of ILF Programs, and Final Compensatory Mitigation Plan requirements.
• Clean Water Act, §401;
• Section 404(b)(i) Guidelines Mitigation Memorandum of Agreement (2/90); 
• Compensatory Mitigation for Losses of Aquatic Resources:  Final Rule (USEPA/USACE, April 10, 2008) (Final Mitigation Rule).