As announced in a June 29 press release and memo to stakeholders, DEQ will work with Professional Wetland Delineators to make its own State Surface Water Determinations for Virginia Water Protection permits. This will keep Virginia’s economy moving forward while providing certainty in light of the U.S. Supreme Court’s May 25 decision in Sackett v. U.S. Environmental Protection Agency (Sackett). 

NOIRAs for VWP General Permits

The existing four Virginia Water Protection General Permits listed below and authorized by Chapter 3.1 of Title 62.1 of the Code of Virginia, by Virginia Administrative Code 9VAC25-210 et seq., and by the respective VWP General Permit Regulations are expiring on August 1, 2026. The proposed action provides efficiency to the permit coverage process for activities having minor impacts to state surface waters, simplifies permit issuance procedures, and makes clarifying amendments for improved understanding of regulatory provisions and permit processes. If the existing VWP general permits are not reissued prior to expiration on August 1, 2026, no general permit coverage can be extended to applicants submitting new applications for regulated activities or to existing permittees wishing to continue authorized activities beyond August 1, 2026, and these applicants would be required to wait for reissuance of the next applicable general permit or obtain a VWP individual permit instead. 

1. the Virginia Water Protection General Permit for Impacts Less Than One-Half Acre (9VAC25-660);
2. the Virginia Water Protection General Permit for Facilities and Activities of Utility and Public Service Companies Regulated by the Federal Energy Regulatory Commission or the State Corporation Commission and Other Utility Line Activities (9VAC25-670);
3. the Virginia Water Protection General Permit for Linear Transportation Projects (9VAC25-680);
4. the Virginia Water Protection General Permit for Impacts from Development and Certain Mining Activities (9VAC25-690) 

The potential amendments to the regulation may include provisions related to application forms, form formats, coverage issuance, and continuation of activities. The Board intends to amend the expiration and effective dates in the general permits for another ten-year term.  This amendment will include updates to citations, references, form names and dates, as well as correct typographical and grammatical errors. 

The Board is providing an opportunity for comments on these regulations. The Notices of Intended Regulatory Action (NOIRAs) are posted on the Virginia Regulatory Town Hall web site at: https://townhall.virginia.gov. Comments may also be submitted by mail or email to Dave Davis, DEQ Office of Wetland and Stream Protection, 1111 East Main Street, Suite 1400, Richmond, VA 23219; 804-698-4105; or vwppublicnotices@deq.virginia.gov. In order to be considered, comments must be received by 11:59 pm on the last day of the public comment period, Wednesday, November 20, 2024. The Board is using a technical advisory committee (TAC) to develop a proposal as detailed in the NOIRAs.

Projects proposing specific activities within surface waters, including wetlands, stream channels and open waters as defined by the Code of Virginia as ‘State Waters,’ often requires authorization from DEQ under the VWP Permit Program. Such activities include new activities to cause draining that significantly alters or degrades existing wetland acreage or functions; filling or dumping; permanent flooding or impounding; or new activities that cause significant alteration or degradation of existing wetland acreage or function. The definition of State Waters is broader than those defined by Waters of the United States under federal jurisdiction. A VWP permit is most often needed when there is development of undisturbed land, for example: residential, industrial, or commercial developments. The presence of surface waters, streams and wetlands is not always obvious and is best identified by a professional wetland delineator. In addition, a VWP permit is required for the withdrawal from surface waters.

VWP Surface Water Withdrawal Permits

If your project has a surface water withdrawal activity, please visit DEQ’s Surface Water page.

Certain activities or impacts to regulated surface water are excluded from the requirement for a VWP permit (see 9VAC25-210-60). General categories of excluded activities are listed below. Further guidance may be found in Chapter 2 of the VWP Permit and Compliance Manual:

• Discharges of dredged or fill material regulated by USACE Regional, General or Nationwide Permit, and for which no § 401 Water Quality Certificate is required.
• Discharges of stormwater authorized by MS4 or VSMP construction stormwater permits.
• Discharges of effluent authorized by another form of VPDES or VPA permit.
• Activities in tidal wetlands that are governed by VMRC under Chapter 13 of the Tidal Wetlands Act, unless §401 certification is required.
• Activities in tidal wetlands permitted by a Section 10 Permit from the Corps, which does not require 401 certification.
• Normal residential gardening and lawn and landscape maintenance in a wetland, or other similar activity.
• Maintenance activities.
• Minor open water impacts. To facilitate review of projects requesting exclusion of minor open water impacts, please submit the VWP Open Water Exclusion Checklist.
• Temporary sediment basins or traps during construction activities.
• Normal, ongoing agricultural or silvicultural activities.
• Construction or maintenance of farm ponds or impoundments, stock ponds or impoundments, or irrigation ditches, or the maintenance drainage ditches.
• Construction or maintenance of farm roads, forest roads, or temporary mining roads.
• Impacts to wetlands or open waters existing within stormwater management facilities that were created on dry land to manage stormwater.

The regulation provides detailed requirements for each exclusion and states that upon request by DEQ, a person claiming an exclusion must demonstrate to the satisfaction of the department an activity qualifies for the exclusion.

There are five types of VWP Permits: four general permits and one individual permit. VWP General Permits cover specific activities that are considered to have minimal impacts to human health and the environment, and the VWP Individual Permit covers activities not qualifying for a General Permit. The current permit term for VWPP General Permits is August 1, 2026. VWP Individual Permits can be authorized up to 15 years.

• VWP General Permit WP1 covers activities with impacts less than one-half of acre or up to 300 linear feet of stream channel.
• VWP General Permit WP2covers facilities and activities of utility and public service companies regulated by the Federal Energy Commission or the State Corporation Commission; and other utility line activities. Authorizes impacts up to 1 acre of wetlands and open waters, and/or 1,500 linear feet of stream channel.
• VWP General Permit WP3 covers activities for linear transportation projects. Authorizes impacts up to 2 acres of wetlands and open waters, and/or 1,500 linear feet of stream channel.
• VWP General Permit WP4  covers activities with impacts from development and certain mining activities. Authorizes impacts up to 2 acres of wetlands and open waters, and/or 1,500 linear feet of stream channel.
• VWP Individual Permit covers activities not qualifying for a General Permits. Individual Permits are valid for a maximum of up to 15 years by law; but the actual length of time your individual permit is valid may vary depending on the nature of the authorized project. Individual Permits also authorize projects that exceed general permit impact thresholds.

Target Schedule for VWP Permits

Virginia DEQ’s Permitting and Evaluation Platform (PEEP) details pending and recently completed VWP General Permits and Individual Permit applications.

The target schedule for a typical VWP General Permit Coverage to obtain a final decision is 75 days. The target schedule for a VWP Individual Permit is 150 days. It is important to note that these targets are based on a typical process and rely on all parities in the application review process providing complete and timely information. Please visit DEQ’s PEEP page for more detailed information. 

This section details other potential permits that may be necessary to obtain from DEQ and/or external agencies in relation to a VWP permit.

United States Army Corp of Engineers

The U.S Army Corps of Engineers (USACE) issues Nationwide Permits (NWPs) and Regional Permits (RPs) to authorize certain activities that require Department of the Army permits under Section 404 of the clean Water Act and/or Section 10 of the River and Harbor Act of 1899. Section 404(e) of the Clean Water Act states that NWPs and other general permits authorize activities that "will cause only minimal adverse environmental effects when performed separately and will have only minimal cumulative adverse effects on the environment." NWPs and RPs can be issued for a maximum five-year period and must be renewed prior to expiration.

The USACE has general permits called Nationwide Permits for projects with minimal impacts. The Norfolk District of the USACE also has Regional Permits for types of projects specific to their district with minimal impacts. When projects do not qualify for a USACE General Permit, a USACE Individual Permit can be requested. For additional information about USACE Permits, visit the website for the Norfolk District Regulatory program.

As the certifying authority, DEQ provides a Section 401 Water Quality Certification (WQC) decision for USACE Nationwide permits, and Regional permits. DEQ can also provide a WQC decision by issuing a VWP permit (§ 62.1-44.15:20.D).

• DEQ's Final Section 401 WQC for Regional Permit RP-15
• DEQ's Final Section 401 WQC for Regional Permit RP-01
• DEQ's Final Section 401 WQC for Regional Permit RP-11
• DEQ's Final Section 401 WQC for Regional Permit RP-22
• DEQ’s Final Section 401 WQC for 2021 and 2022 Nationwide Permits (December 21, 2020)
• Clean Water Act (CWA) Section 401 Certification Compliance worksheet (April 1, 2022)

Virginia State Programmatic General Permits

State Programmatic General Permits (SPGPs) are a type of Section 404 permit issued by USACE to the Commonwealth of Virginia. State agencies then provide review of a project to determine it meets the criteria of a specific SPGP. A project must be below applicable wetland and stream impact thresholds and meet all other limitations and conditions of the specific SPGP. If a project meets the eligibility criteria and conditions of the permit, then the state agency can provide verification of coverage rather than the USACE. The 22-SPGP-RCIR and 22-SPGP-LT require that a DEQ Virginia Water Protection individual permit or general permit coverage be issued for the project in order for the SPGP verification to be valid. The 23-SPGP-PASDO may require a Virginia Water Protection individual permit or general permit coverage from DEQ.

There are three 22-SPGPs for use in Virginia:

• 22-SPGP-RCIR authorizes the discharge of dredged or fill material in non-tidal waters of the United States (WOTUS), including wetlands, associated with residential, commercial, institutional, and recreational development (RCIR) projects within the geographical limits of the Commonwealth of Virginia* and under the regulatory jurisdiction of the U.S. Army Corps of Engineers, Norfolk District (Corps or Norfolk District). These projects must not cause the loss of greater than 1 acre of WOTUS, must have no more than minimal individual and cumulative impacts to WOTUS, and must have avoided impacts to WOTUS to the greatest extent practicable.
• 22-SPGP-LT authorizes the discharge of dredged or fill material in non-tidal WOTUS, including wetlands, associated with linear transportation (LT) projects within the geographical limits of the Commonwealth of Virginia* and under the regulatory jurisdiction of the Corps. These projects must not cause the loss of greater than 1/2 acre of WOTUS, must have no more than minimal individual and cumulative impacts to WOTUS, and must have avoided impacts to WOTUS to the greatest extent practicable.
• The 23-SPGP-Pier, Aquaculture, Shoreline, Dredging, and Other (PASDO) replaces Regional Permits 02, 17, 18, and 19. 23-SPGP-PASDO is administered by the U.S. Army Corps of Engineers, and authorizes the following types of activities: Piers, Other structures, Aquaculture, Mariculture, Shoreline stabilization, Dredging, Boat ramps/accessory structures, and Informative signs. See more details on the USACE website.

*SPGP is not available for use in the Commonwealth of Virginia sub-watersheds shared with the State of Tennessee. These watersheds are identified in Appendix A of the 22-SPGP-RCIR and 22-SPGP-LT documents. Applicants may instead apply to the Corps of Engineers for Nationwide Permit or Regional General Permit verifications or a Standard Individual Permit.

SPGP permits, and associated documents can be found below and on the Norfolk District website at: 

https://www.nao.usace.army.mil/Missions/Regulatory/RBregional.aspx.

22-SPGP Permit Verification Letter

Fillable 22-SPGP Federal Coordination Form

As the certifying authority, DEQ provides a Section 401 Water Quality Certification (WQC) decision for the Corps' Nationwide permits, Regional permits and SPGPs. DEQ can also provide a WQC decision by issuing a VWP permit (§62.1-44.15:20.D).

2022 401 WQ Certification for 22-SPGP-RCIR and 22-SPGP-LT
2023 401 WQ Certification for 23-SPGP-PASDO

For additional information please refer to our wetland and stream page under laws and regulations. 

Virginia Marine Resources Commission

Activities occurring subaqueous or bottomlands, tidal wetlands, and coastal primary sand dunes may require authorization and/or permitting from the Virginia Marine Resources Commission (VMRC). Please visit the VMRC’s page about Habitat Management Permits. For assistance with the VMRC permit processes in a specific area of the State, visit VMRC’s territory contacts page.

Beginning July 1, activities in nontidal waters will no longer require duplicative permits from DEQ and the Virginia Marine Resources Commission (VMRC). This change in the permitting process is a result of Chapters 258 and 259 of the 2023 Virginia Acts of Assembly (HB 2181 and SB 1074). Streamlining the permitting process will significantly reduce the number of permits required for activities in nontidal waters and will promote economic development while also ensuring that stream and wetland resources remain protected. 

On June 23 DEQ and VMRC signed a Memorandum of Agreement to implement this change. An Amendment to the June 23rd MOA was signed on August 16, 2023. Going forward, DEQ will be the lead agency responsible for permitting impacts to nontidal waters and VMRC will retain responsibility for permitting activities such as subaqueous land.

Stormwater Management

DEQ regulates stormwater as a “point source” of pollution, which means its source can be located. This includes stormwater discharges from:

• Construction activities – Land disturbance associated with construction activities often require approval of erosion and sediment control and post construction stormwater management plans and could require a Virginia Construction Stormwater General Permit. For more information about this program visit DEQ’s webpage for Stormwater-Construction.
• Industrial discharges – Precipitation causes runoff at industrial facilities that delivers pollutants to storm sewers and water bodies. DEQ regulates several types of industrial activities to reduce and mitigate the impacts of their stormwater runoff. For more information about this program, visit DEQ’s webpage for Stormwater-Industrial.

Chesapeake Bay Preservation Act

The Chesapeake Bay Preservation Act protects and improves water quality in the Chesapeake Bay by requiring the implementation of effective land use management practices. The local governments have primary responsibility for ensuring development activities in Chesapeake Bay Preservation Areas are accomplished in a manner that protects the quality of state waters. For more information about this program visit DEQ’s webpage for the Chesapeake Bay Preservation Act.

Virginia Coastal Zone Management;

DEQ serves as the lead agency for the Virginia CZM network of state agencies and coastal localities; and houses the Virginia CZM Program office in Richmond. DEQ helps develop coordinated policies and the network implements the enforceable laws, regulations and policies that protect our coastal resources and foster sustainable development across Virginia’s coastal zone. For more information about CZM visit DEQ’s webpage for Virginia CZM network.

If your project is located in or near Virginia’s coastal zone, and requires a US Army Corps of Engineers Individual Permit, you will need to complete a federal consistency review with DEQ’s Office of Environmental Impact Review. Virginia’s coastal zone is those counties and localities that have some tidal waters, generally its those counties that straddle or are east of I-95.  Federal consistency review can take up to 180 days, and sometimes longer, and requires a public comment period.  The US Army Corps of Engineers cannot issue their Individual Permit until DEQ agrees that the project is consistent with Virginia’s coastal laws and regulations. Additional information on this process can be found on DEQ’s website under the Office of Environmental Impact Review.

Delineations

The delineation process maps out the geographical extent of streams, wetlands and open waters in a given study area. Delineations of these features are typically conducted by private-sector wetland professionals like consultants or environmental engineers. There are specific procedures governing how to delineate wetlands, as detailed in the Corps of Engineers’ 1987 Manual (’87 Manual) and applicable Regional Supplements. In order for a VWP Permit application to be complete, the delineation must be performed in accordance with the ‘87 Manual, approved by DEQ, or receive a U.S. Army Corps of Engineers (USACE) Jurisdictional Determination. In some situations, approval is required from both agencies. When an agency reviews the delineation, they typically also confirm whether the water feature falls within their respective jurisdictions. The jurisdictional extent of waters will depend on each agency’s independent statutory and regulatory authority, policies, and guidance.

DEQ regulates alterations to “state waters”, which are defined as “all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands”. DEQ’s VWP Program specifically regulates state surface waters, which include “all state waters that are not groundwater...”.

Virginia State Waters Delineator (VSWD) Certification

The Department of Environmental Quality (DEQ) has developed a new voluntary certification program, the Virginia State Waters Delineator (VSWD) certification, for the public to submit state surface waters delineations in accordance with 9VAC25-210-10 and 9VAC25-210-45.  The DEQ VSWD certificate signifies that a practitioner assumes professional responsibility for the accuracy of state surface waters field delineations and that the information submitted to DEQ for review is complete.  One benefit of the VSWD certification is that DEQ will prioritize State Surface Waters Delineation (SSWD) reviews by a certified individual ahead of other SSWD requests.  This prioritization acknowledges the professional expertise of the VSWD and allows DEQ to rely on the accuracy and completeness of an SSWD.  With accurate and complete information, DEQ can approve SSWDs faster, which will also increase the efficiency of Virginia Water Protection (VWP) permit issuances.

The overarching objective of this certification program is to identify, document, and geolocate the presence of all state surface waters, including isolated wetlands, on a parcel or study area for due diligence, site development, and DEQ permitting purposes.  The VSWD certification is recommended for anyone who must accurately identify both wetlands and streams on their sites for project planning, project impact avoidance and minimization analyses, and compensatory mitigation planning.  A Professional Wetland Delineator (PWD) certification is a prerequisite to obtain the VSWD certification. A PWD certification can be obtained through the Virginia Dept of Professional and Occupational Regulation (DPOR) website (https://www.dpor.virginia.gov/Boards/SSWPG/).

DEQ provided an informational webinar on August 16, 2023. (VSWD Webinar pdf and recording link). The VSWD training instructions are provided here.

The link to the following document providing further detailed information for the certification is provided as follows: Virginia State Waters Delineation Certification Program - Program Overview & Requirements.

See the Surface Water Determination Request form in the following section.

Surface Water Determination Request

The Surface Water Determination Request Form is for requesting a determination of the absence or presence of surface water(s) under Virginia jurisdiction on a subject property (§ 62.1-44.3 of the Code of Virginia and 9VAC25-210-10). The U.S. Army Corps of Engineers (USACE) regulatory program may or may not accept DEQ's State Surface Water Determination as determinative for their jurisdictional purposes. DEQ recommends coordination with a USACE representative on federal jurisdictional issues.

As announced in a June 29 press release and memo to stakeholders, DEQ will work with Professional Wetland Delineators to make its own State Surface Water Determinations for Virginia Water Protection permits. This will keep Virginia’s economy moving forward while providing certainty in light of the U.S. Supreme Court’s May 25 decision in; Sackett v. U.S. Environmental Protection Agency (Sackett). 

 

VWP Permits, VMRC Permits and most USACE Permits share a common Joint Permit Application form, which is submitted to VMRC and then distributed to DEQ and USACE staff. However, because the application is shared between multiple agencies, DEQ strongly recommends applicants submit the Joint Permit Application and include the VWP Permit Application complete checklist (see below) to ensure all required material is provided.

Application Process for VWP Permits

• Obtain the appropriate application form: either the Standard Joint Permit Application (JPA) for most projects; or the Tidewater JPA for certain projects in tidal areas. Detailed instructions on how to apply are included with each form.
• Submit the Joint Permit Application per the instructions on the applicable JPA form.
• The VMRC assigns a permit number and distributes the application to participating federal, state, and local agencies. VMRC's permit numbers are searchable on their website.
• Each agency reviews the application in accordance with the appropriate regulations and responds separately to the applicant.

VWPP_Checklist 1_GP_Compensation Required – for general permitted projects below compensatory mitigation thresholds

VWPP_Checklist 2_GP_No Compensation Required – for general permitted projects above compensatory mitigation thresholds

VWPP_Checklist 3_IP – for individual permits

VWPP_Checklist 4_SPGP – for USACE State Programmatic General Permits

VWPP_Checklist_GP_45-Day Coverage – an accelerated general permit approval process for specific projects with de minimis surface water impacts and meeting the specified criteria in the VWP General Permit 45-Day Coverage checklist [§ 62.1-44.15:21.F].

For information about how to apply for a VMRC and USACE Permit, please visit Virginia Marine Resources Commission Habitat Management Division page and the Norfolk District Army Corps of Engineers Regulatory page.