{"formats":[{"name":"JSON","format":"json","url":"\/downloads\/2025\/code-json\/28.2-1308.json"},{"name":"Plain Text","format":"text","url":"\/downloads\/2025\/code-text\/28.2-1308.txt"},{"name":"XML","format":"xml","url":"\/downloads\/2025\/code-xml\/28.2-1308.xml"},{"name":"HTML","format":"html","url":"\/downloads\/2025\/code-html\/28.2-1308.html"}],"law_id":82717,"edition_id":1,"section_id":82717,"structure_id":15028,"section_number":"28.2-1308","catch_line":"Standards for use and development of wetlands; utilization of guidelines","history":"1972, c. 711, \u00a7 62.1-13.3; 1982, c. 300; 1992, c. 836; 1996, c. 736; 1999, c. 8; 2011, c. 253; 2014, cc. 131, 332; 2020, c. 809; 2023, c. 245.","full_text":"A\n\nFor the purposes of this section, “river watershed” means the Potomac River Basin, Shenandoah River Basin, James River Basin, Rappahannock River Basin, Roanoke and Yadkin Rivers Basin, Chowan River Basin (including the Dismal Swamp and Albemarle Sound), Tennessee River Basin, Big Sandy River Basin, Chesapeake Bay and its Small Coastal Basins, Atlantic Ocean, York River Basin, and the New River Basin.B\n\nThe following standards shall apply to the use and development of wetlands and shall be considered in the determination of whether any permit required by this chapter should be granted or denied:1\n\nWetlands of primary ecological significance shall not be altered so that the ecological systems in the wetlands are unreasonably disturbed; and2\n\nDevelopment in Tidewater Virginia, to the maximum extent practical, shall be concentrated in wetlands of lesser ecological significance, in vegetated wetlands which have been irreversibly disturbed before July 1, 1972, in nonvegetated wetlands which have been irreversibly disturbed prior to January 1, 1983, and in areas of Tidewater Virginia outside of wetlands.C\n\nThe provisions of guidelines and minimum standards promulgated by the Commission pursuant to § 28.2-1301 shall be considered in applying the standards listed in subsection B.D\n\nWhen any activity authorized by a permit issued pursuant to this chapter is conditioned upon compensatory mitigation for adverse impacts to wetlands, the applicant may be permitted to satisfy all or part of such mitigation requirements by the purchase or use of credits from any wetlands mitigation bank, including any banks owned by the permit applicant, 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 as long as (i) the bank is in the same fourth order subbasin, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset or by the hydrologic unit system or dataset utilized and depicted or described in the bank’s approved mitigation banking instrument, as the impacted site, or in an adjacent subbasin within the same river watershed, as the impacted site, or it meets all the conditions found in clauses (a) through (d) and either clause (e) or (f); (ii) the bank is ecologically preferable to practicable on-site and off-site individual mitigation options, as defined by federal wetland regulations; and (iii) the banking instrument, if approved after July 1, 1996, has been approved by a process that included public review and comment. When the bank is not located in the same subbasin or adjacent subbasin within the same river watershed as the impacted site, the purchase or use of credits shall not be allowed unless the applicant demonstrates to the satisfaction of the Commission that (a) the impacts will occur as a result of a Virginia Department of Transportation linear project or as the result of a locality project for a locality whose jurisdiction encompasses multiple river watersheds; (b) there is no practical same river watershed mitigation alternative; (c) the impacts are less than one acre in a single and complete project within a subbasin; (d) there is no significant harm to water quality or fish and wildlife resources within the river watershed of the impacted site; and either (e) impacts within the Chesapeake Bay watershed are mitigated within the Chesapeake Bay watershed as close as possible to the impacted site or (f) impacts within subbasins 02080108, 02080208, and 03010205, as defined by the National Watershed Boundary Dataset, are mitigated in-kind within those subbasins as close as possible to the impacted site. After July 1, 2002, the provisions of clause (f) shall apply only to impacts within subdivisions of the listed subbasins where overlapping watersheds exist, as determined by the Department of Environmental Quality, provided the Department has made such a determination by that date. For the purposes of this subsection, the hydrologic unit boundaries of the National Watershed Boundary Dataset or other hydrologic unit system may be adjusted by the Department of Environmental Quality to reflect site-specific geographic or hydrologic information provided by the bank sponsor.E\n\nWhere an agreed-upon permit condition requires the contribution of in-lieu fees to offset permitted wetland losses, the wetlands board shall credit the applicant for any in-lieu fee payments made to the Virginia Aquatic Resources Trust Fund or another dedicated wetlands restoration fund with reference to the same activity.F\n\nNotwithstanding any provision of this section restricting the location of the source of credits, an applicant may be permitted to purchase or use credits from a tidal wetland mitigation bank located in an adjacent river watershed when such bank contains the same plant community type and salinity regime as the impacted wetlands, which shall be the preferred form of compensation. This subsection shall apply only (i) to tidal wetland mitigation banks with a polyhaline salinity regime located in subbasins 02080102, 02080107, 02080108, and 02080208 and (ii) when a tidal wetland mitigation bank with the same plant community type and salinity regime as the impacted wetlands is not available in the same river watershed as the impacted wetland.","order_by":null,"text":{"0":{"id":296340,"text":"For the purposes of this section, “river watershed” means the Potomac River Basin, Shenandoah River Basin, James River Basin, Rappahannock River Basin, Roanoke and Yadkin Rivers Basin, Chowan River Basin (including the Dismal Swamp and Albemarle Sound), Tennessee River Basin, Big Sandy River Basin, Chesapeake Bay and its Small Coastal Basins, Atlantic Ocean, York River Basin, and the New River Basin.","type":"section","prefixes":["A"],"prefix":"A","entire_prefix":"A","prefix_anchor":"A","level":1,"next_prefix":"B"},"1":{"id":296341,"text":"The following standards shall apply to the use and development of wetlands and shall be considered in the determination of whether any permit required by this chapter should be granted or denied:","type":"section","prefixes":["B"],"prefix":"B","entire_prefix":"B","prefix_anchor":"B","level":1,"prior_prefix":"A","next_prefix":"B1"},"2":{"id":296342,"text":"Wetlands of primary ecological significance shall not be altered so that the ecological systems in the wetlands are unreasonably disturbed; and","type":"section","prefixes":["B","1"],"prefix":"1","entire_prefix":"B1","prefix_anchor":"B1","level":2,"prior_prefix":"B","next_prefix":"B2"},"3":{"id":296343,"text":"Development in Tidewater Virginia, to the maximum extent practical, shall be concentrated in wetlands of lesser ecological significance, in vegetated wetlands which have been irreversibly disturbed before July 1, 1972, in nonvegetated wetlands which have been irreversibly disturbed prior to January 1, 1983, and in areas of Tidewater Virginia outside of wetlands.","type":"section","prefixes":["B","2"],"prefix":"2","entire_prefix":"B2","prefix_anchor":"B2","level":2,"prior_prefix":"B1","next_prefix":"C"},"4":{"id":296344,"text":"The provisions of guidelines and minimum standards promulgated by the Commission pursuant to § 28.2-1301 shall be considered in applying the standards listed in subsection B.","type":"section","prefixes":["C"],"prefix":"C","entire_prefix":"C","prefix_anchor":"C","level":1,"prior_prefix":"B2","next_prefix":"D"},"5":{"id":296345,"text":"When any activity authorized by a permit issued pursuant to this chapter is conditioned upon compensatory mitigation for adverse impacts to wetlands, the applicant may be permitted to satisfy all or part of such mitigation requirements by the purchase or use of credits from any wetlands mitigation bank, including any banks owned by the permit applicant, 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 as long as (i) the bank is in the same fourth order subbasin, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset or by the hydrologic unit system or dataset utilized and depicted or described in the bank’s approved mitigation banking instrument, as the impacted site, or in an adjacent subbasin within the same river watershed, as the impacted site, or it meets all the conditions found in clauses (a) through (d) and either clause (e) or (f); (ii) the bank is ecologically preferable to practicable on-site and off-site individual mitigation options, as defined by federal wetland regulations; and (iii) the banking instrument, if approved after July 1, 1996, has been approved by a process that included public review and comment. When the bank is not located in the same subbasin or adjacent subbasin within the same river watershed as the impacted site, the purchase or use of credits shall not be allowed unless the applicant demonstrates to the satisfaction of the Commission that (a) the impacts will occur as a result of a Virginia Department of Transportation linear project or as the result of a locality project for a locality whose jurisdiction encompasses multiple river watersheds; (b) there is no practical same river watershed mitigation alternative; (c) the impacts are less than one acre in a single and complete project within a subbasin; (d) there is no significant harm to water quality or fish and wildlife resources within the river watershed of the impacted site; and either (e) impacts within the Chesapeake Bay watershed are mitigated within the Chesapeake Bay watershed as close as possible to the impacted site or (f) impacts within subbasins 02080108, 02080208, and 03010205, as defined by the National Watershed Boundary Dataset, are mitigated in-kind within those subbasins as close as possible to the impacted site. After July 1, 2002, the provisions of clause (f) shall apply only to impacts within subdivisions of the listed subbasins where overlapping watersheds exist, as determined by the Department of Environmental Quality, provided the Department has made such a determination by that date. For the purposes of this subsection, the hydrologic unit boundaries of the National Watershed Boundary Dataset or other hydrologic unit system may be adjusted by the Department of Environmental Quality to reflect site-specific geographic or hydrologic information provided by the bank sponsor.","type":"section","prefixes":["D"],"prefix":"D","entire_prefix":"D","prefix_anchor":"D","level":1,"prior_prefix":"C","next_prefix":"E"},"6":{"id":296346,"text":"Where an agreed-upon permit condition requires the contribution of in-lieu fees to offset permitted wetland losses, the wetlands board shall credit the applicant for any in-lieu fee payments made to the Virginia Aquatic Resources Trust Fund or another dedicated wetlands restoration fund with reference to the same activity.","type":"section","prefixes":["E"],"prefix":"E","entire_prefix":"E","prefix_anchor":"E","level":1,"prior_prefix":"D","next_prefix":"F"},"7":{"id":296347,"text":"Notwithstanding any provision of this section restricting the location of the source of credits, an applicant may be permitted to purchase or use credits from a tidal wetland mitigation bank located in an adjacent river watershed when such bank contains the same plant community type and salinity regime as the impacted wetlands, which shall be the preferred form of compensation. This subsection shall apply only (i) to tidal wetland mitigation banks with a polyhaline salinity regime located in subbasins 02080102, 02080107, 02080108, and 02080208 and (ii) when a tidal wetland mitigation bank with the same plant community type and salinity regime as the impacted wetlands is not available in the same river watershed as the impacted wetland.","type":"section","prefixes":["F"],"prefix":"F","entire_prefix":"F","prefix_anchor":"F","level":1,"prior_prefix":"E"}},"ancestry":[{"id":15028,"edition_id":1,"name":"Permits and Review","identifier":"3","label":"article","depth":4,"order_by":1,"parent_id":15027,"metadata":{},"date_created":"2026-06-26 03:51:35","date_modified":"2026-06-26 03:51:35","permalink":{"id":192025,"object_type":"structure","relational_id":15028,"identifier":"3","token":"28.2\/III\/13\/3","url":"\/28.2\/III\/13\/3\/","edition_id":1,"permalink":0,"preferred":1}},{"id":15027,"edition_id":1,"name":"Wetlands","identifier":"13","label":"chapter","depth":3,"order_by":1,"parent_id":13040,"metadata":{},"date_created":"2026-06-26 03:51:35","date_modified":"2026-06-26 03:51:35","permalink":{"id":191995,"object_type":"structure","relational_id":15027,"identifier":"13","token":"28.2\/III\/13","url":"\/28.2\/III\/13\/","edition_id":1,"permalink":0,"preferred":1}},{"id":13040,"edition_id":1,"name":"Habitat","identifier":"III","label":"subtitle","depth":2,"order_by":1,"parent_id":12813,"metadata":{},"date_created":"2026-06-26 03:44:10","date_modified":"2026-06-26 03:44:10","permalink":{"id":191915,"object_type":"structure","relational_id":13040,"identifier":"III","token":"28.2\/III","url":"\/28.2\/III\/","edition_id":1,"permalink":0,"preferred":1}},{"id":12813,"edition_id":1,"name":"Fisheries and Habitat of the Tidal Waters","identifier":"28.2","label":"title","depth":1,"order_by":1,"parent_id":null,"metadata":{},"date_created":"2026-06-26 03:43:54","date_modified":"2026-06-26 03:43:54","permalink":{"id":190589,"object_type":"structure","relational_id":12813,"identifier":"28.2","token":"28.2","url":"\/28.2\/","edition_id":1,"permalink":0,"preferred":1}}],"structure_contents":[{"id":57296,"structure_id":15028,"section_number":"28.2-1306","catch_line":"Permits required for certain activities; issuance of permits by Commission","url":"\/28.2-1306\/","token":"28.2\/III\/13\/3\/28.2-1306","metadata":false},{"id":85775,"structure_id":15028,"section_number":"28.2-1307","catch_line":"Expedited permits; administrative procedures","url":"\/28.2-1307\/","token":"28.2\/III\/13\/3\/28.2-1307","metadata":false},{"id":82717,"structure_id":15028,"section_number":"28.2-1308","catch_line":"Standards for use and development of wetlands; utilization of guidelines","url":"\/28.2-1308\/","token":"28.2\/III\/13\/3\/28.2-1308","metadata":false},{"id":57529,"structure_id":15028,"section_number":"28.2-1309","catch_line":"Emergency sand grading activities on nonvegetated wetlands located on the Atlantic Shoreline of Virginia Beach","url":"\/28.2-1309\/","token":"28.2\/III\/13\/3\/28.2-1309","metadata":false},{"id":65998,"structure_id":15028,"section_number":"28.2-1310","catch_line":"Commissioner to review all decisions of wetlands boards","url":"\/28.2-1310\/","token":"28.2\/III\/13\/3\/28.2-1310","metadata":false},{"id":57644,"structure_id":15028,"section_number":"28.2-1311","catch_line":"When Commission to review decision of wetlands board","url":"\/28.2-1311\/","token":"28.2\/III\/13\/3\/28.2-1311","metadata":false},{"id":78775,"structure_id":15028,"section_number":"28.2-1312","catch_line":"Procedure for review; notice of decision","url":"\/28.2-1312\/","token":"28.2\/III\/13\/3\/28.2-1312","metadata":false},{"id":59920,"structure_id":15028,"section_number":"28.2-1313","catch_line":"When Commission to modify, remand, or reverse decision of wetlands board","url":"\/28.2-1313\/","token":"28.2\/III\/13\/3\/28.2-1313","metadata":false},{"id":82110,"structure_id":15028,"section_number":"28.2-1314","catch_line":"Time for issuance of permit","url":"\/28.2-1314\/","token":"28.2\/III\/13\/3\/28.2-1314","metadata":false},{"id":85266,"structure_id":15028,"section_number":"28.2-1315","catch_line":"Judicial review","url":"\/28.2-1315\/","token":"28.2\/III\/13\/3\/28.2-1315","metadata":false}],"previous_section":{"id":85775,"structure_id":15028,"section_number":"28.2-1307","catch_line":"Expedited permits; administrative procedures","url":"\/28.2-1307\/","token":"28.2\/III\/13\/3\/28.2-1307","metadata":false},"next_section":{"id":57529,"structure_id":15028,"section_number":"28.2-1309","catch_line":"Emergency sand grading activities on nonvegetated wetlands located on the Atlantic Shoreline of Virginia Beach","url":"\/28.2-1309\/","token":"28.2\/III\/13\/3\/28.2-1309","metadata":false},"metadata":false,"official_url":"https:\/\/law.lis.virginia.gov\/vacode\/28.2-1308\/","history_text":"

This law was first created in 1972. The record of its establishment is cataloged in chapter 711 of that year\u2019s edition of \u201cActs of Assembly,\u201d the annual state publication listing all changes made to the Code of Virginia in that year. Unfortunately, the 1972 \u201cActs\u201d aren\u2019t available online. It has been modified 8 times. Those modifications are cataloged by \u201cThe Acts of Assembly,\u201d a state publication, by year and chapter. Those modifications that can be read on the General Assembly\u2019s website will be linked accordingly. Those modifications are as follows: in 1982, chapter 300; in 1992, chapter 836; in 1996, chapter 736<\/a>; in 1999, chapter 8<\/a>; in 2011, chapter 253<\/a>; in 2014, chapters 131<\/a> and 332<\/a>; in 2020, chapter 809<\/a>; in 2023, chapter 245<\/a>.<\/p>","references":[{"id":64516,"section_number":"28.2-1301","catch_line":"Powers and duties of the Commission","order_by":null,"url":"\/28.2-1301\/"},{"id":62624,"section_number":"28.2-1302","catch_line":"Adoption of wetlands zoning ordinance; terms of ordinance","order_by":null,"url":"\/28.2-1302\/"}],"refers_to":[{"id":64516,"section_number":"28.2-1301","catch_line":"Powers and duties of the Commission","order_by":null,"url":"\/28.2-1301\/"}],"permalink":{"id":192035,"object_type":"law","relational_id":82717,"identifier":"28.2-1308","token":"28.2\/III\/13\/3\/28.2-1308","url":"\/28.2-1308\/","edition_id":1,"permalink":0,"preferred":1},"url":"\/28.2-1308\/","token":"28.2\/III\/13\/3\/28.2-1308","dublin_core":{"Title":"Standards for use and development of wetlands; utilization of guidelines","Type":"Text","Format":"text\/html","Identifier":"\u00a7 28.2-1308","Relation":"Code of Virginia"},"html":"\n\t\t\t\t\t\t

A.<\/span> For the purposes of this section, “river watershed<\/span>” means the Potomac River Basin, Shenandoah River Basin, James River Basin, Rappahannock River Basin, Roanoke and Yadkin Rivers Basin, Chowan River Basin (including the Dismal Swamp and Albemarle Sound), Tennessee River Basin, Big Sandy River Basin, Chesapeake Bay and its Small Coastal Basins, Atlantic Ocean, York River Basin, and the New River Basin. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

B.<\/span> The following standards shall apply to the use and development of wetlands<\/span> and shall be considered in the determination of whether any permit required by this chapter should be granted or denied: <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

1.<\/span> Wetlands<\/span> of primary ecological significance shall not be altered so that the ecological systems in the wetlands<\/span> are unreasonably disturbed; and <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

2.<\/span> Development in Tidewater Virginia<\/span>, to the maximum extent practical, shall be concentrated in wetlands of lesser ecological significance, in vegetated wetlands<\/span> which have been irreversibly disturbed before July 1, 1972, in nonvegetated wetlands<\/span> which have been irreversibly disturbed prior to January 1, 1983, and in areas of Tidewater Virginia<\/span> outside of wetlands. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

C.<\/span> The provisions of guidelines and minimum standards promulgated by the Commission<\/span> pursuant to § 28.2-1301<\/a> shall be considered in applying the standards listed in subsection B. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

D.<\/span> When any activity authorized by a permit issued pursuant to this chapter is conditioned upon compensatory mitigation for adverse impacts to wetlands, the applicant may be permitted to satisfy all or part of such mitigation requirements by the purchase or use of credits from any wetlands mitigation bank, including any banks owned by the permit applicant, that has been approved and is operating in accordance with applicable federal and state guidance, laws<\/span>, or regulations for the establishment, use and operation of mitigation banks as long as (i) the bank is in the same fourth order<\/span> subbasin, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset or by the hydrologic unit system or dataset utilized and depicted or described in the bank’s approved mitigation banking instrument, as the impacted site, or in an adjacent subbasin within the same river watershed<\/span>, as the impacted site, or it meets all the conditions found in clauses (a) through (d) and either clause (e) or (f); (ii) the bank is ecologically preferable to practicable on-site and off-site individual mitigation options, as defined by federal wetland regulations; and (iii) the banking instrument, if approved after July 1, 1996, has been approved by a process that included public review and comment. When the bank is not located in the same subbasin or adjacent subbasin within the same river watershed<\/span> as the impacted site, the purchase or use of credits shall not be allowed unless the applicant demonstrates to the satisfaction of the Commission<\/span> that (a) the impacts will occur as a result of a Virginia Department of Transportation linear project or as the result of a locality project for a locality whose jurisdiction<\/span> encompasses multiple river watersheds<\/span>; (b) there is no practical same river watershed<\/span> mitigation alternative; (c) the impacts are less than one acre in a single and complete project within a subbasin; (d) there is no significant harm to water quality or fish<\/span> and wildlife resources within the river watershed<\/span> of the impacted site; and either (e) impacts within the Chesapeake Bay watershed are mitigated within the Chesapeake Bay watershed as close as possible to the impacted site or (f) impacts within subbasins 02080108, 02080208, and 03010205, as defined by the National Watershed Boundary Dataset, are mitigated in-kind within those subbasins as close as possible to the impacted site. After July 1, 2002, the provisions of clause (f) shall apply only to impacts within subdivisions of the listed subbasins where overlapping watersheds exist, as determined by the Department of Environmental Quality, provided the Department has made such a determination by that date. For the purposes of this subsection, the hydrologic unit boundaries of the National Watershed Boundary Dataset or other hydrologic unit system may be adjusted by the Department of Environmental Quality to reflect site-specific geographic or hydrologic information provided by the bank sponsor. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

E.<\/span> Where an agreed-upon permit condition requires the contribution of in-lieu fees to offset permitted wetland losses, the wetlands board<\/span> shall credit the applicant for any in-lieu fee payments made to the Virginia Aquatic Resources Trust Fund or another dedicated wetlands restoration fund with reference to the same activity. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

F.<\/span> Notwithstanding any provision of this section restricting the location of the source of credits, an applicant may be permitted to purchase or use credits from a tidal wetland mitigation bank located in an adjacent river watershed<\/span> when such bank contains the same plant community type and salinity regime as the impacted wetlands, which shall be the preferred form of compensation. This subsection shall apply only (i) to tidal wetland mitigation banks with a polyhaline salinity regime located in subbasins 02080102, 02080107, 02080108, and 02080208 and (ii) when a tidal wetland mitigation bank with the same plant community type and salinity regime as the impacted wetlands is not available in the same river watershed<\/span> as the impacted wetland. <\/i><\/a><\/p><\/section>","plain_text":" CODE OF VIRGINIA\n\nSTANDARDS FOR USE AND DEVELOPMENT OF WETLANDS; UTILIZATION OF GUIDELINES (\u00a7\n28.2-1308)\n\nA. For the purposes of this section, “river watershed” means the\nPotomac River Basin, Shenandoah River Basin, James River Basin, Rappahannock\nRiver Basin, Roanoke and Yadkin Rivers Basin, Chowan River Basin (including the\nDismal Swamp and Albemarle Sound), Tennessee River Basin, Big Sandy River Basin,\nChesapeake Bay and its Small Coastal Basins, Atlantic Ocean, York River Basin,\nand the New River Basin.\n\nB. The following standards shall apply to the use and development of wetlands\nand shall be considered in the determination of whether any permit required by\nthis chapter should be granted or denied:\n\n 1. Wetlands of primary ecological significance shall not be altered so that\n the ecological systems in the wetlands are unreasonably disturbed; and\n\n 2. Development in Tidewater Virginia, to the maximum extent practical, shall\n be concentrated in wetlands of lesser ecological significance, in vegetated\n wetlands which have been irreversibly disturbed before July 1, 1972, in\n nonvegetated wetlands which have been irreversibly disturbed prior to January\n 1, 1983, and in areas of Tidewater Virginia outside of wetlands.\n\nC. The provisions of guidelines and minimum standards promulgated by the\nCommission pursuant to § 28.2-1301 shall be considered in applying the\nstandards listed in subsection B.\n\nD. When any activity authorized by a permit issued pursuant to this chapter is\nconditioned upon compensatory mitigation for adverse impacts to wetlands, the\napplicant may be permitted to satisfy all or part of such mitigation\nrequirements by the purchase or use of credits from any wetlands mitigation\nbank, including any banks owned by the permit applicant, that has been approved\nand is operating in accordance with applicable federal and state guidance, laws,\nor regulations for the establishment, use and operation of mitigation banks as\nlong as (i) the bank is in the same fourth order subbasin, as defined by the\nhydrologic unit boundaries of the National Watershed Boundary Dataset or by the\nhydrologic unit system or dataset utilized and depicted or described in the\nbank’s approved mitigation banking instrument, as the impacted site, or in\nan adjacent subbasin within the same river watershed, as the impacted site, or\nit meets all the conditions found in clauses (a) through (d) and either clause\n(e) or (f); (ii) the bank is ecologically preferable to practicable on-site and\noff-site individual mitigation options, as defined by federal wetland\nregulations; and (iii) the banking instrument, if approved after July 1, 1996,\nhas been approved by a process that included public review and comment. When the\nbank is not located in the same subbasin or adjacent subbasin within the same\nriver watershed as the impacted site, the purchase or use of credits shall not\nbe allowed unless the applicant demonstrates to the satisfaction of the\nCommission that (a) the impacts will occur as a result of a Virginia Department\nof Transportation linear project or as the result of a locality project for a\nlocality whose jurisdiction encompasses multiple river watersheds; (b) there is\nno practical same river watershed mitigation alternative; (c) the impacts are\nless than one acre in a single and complete project within a subbasin; (d) there\nis no significant harm to water quality or fish and wildlife resources within\nthe river watershed of the impacted site; and either (e) impacts within the\nChesapeake Bay watershed are mitigated within the Chesapeake Bay watershed as\nclose as possible to the impacted site or (f) impacts within subbasins 02080108,\n02080208, and 03010205, as defined by the National Watershed Boundary Dataset,\nare mitigated in-kind within those subbasins as close as possible to the\nimpacted site. After July 1, 2002, the provisions of clause (f) shall apply only\nto impacts within subdivisions of the listed subbasins where overlapping\nwatersheds exist, as determined by the Department of Environmental Quality,\nprovided the Department has made such a determination by that date. For the\npurposes of this subsection, the hydrologic unit boundaries of the National\nWatershed Boundary Dataset or other hydrologic unit system may be adjusted by\nthe Department of Environmental Quality to reflect site-specific geographic or\nhydrologic information provided by the bank sponsor.\n\nE. Where an agreed-upon permit condition requires the contribution of in-lieu\nfees to offset permitted wetland losses, the wetlands board shall credit the\napplicant for any in-lieu fee payments made to the Virginia Aquatic Resources\nTrust Fund or another dedicated wetlands restoration fund with reference to the\nsame activity.\n\nF. Notwithstanding any provision of this section restricting the location of the\nsource of credits, an applicant may be permitted to purchase or use credits from\na tidal wetland mitigation bank located in an adjacent river watershed when such\nbank contains the same plant community type and salinity regime as the impacted\nwetlands, which shall be the preferred form of compensation. This subsection\nshall apply only (i) to tidal wetland mitigation banks with a polyhaline\nsalinity regime located in subbasins 02080102, 02080107, 02080108, and 02080208\nand (ii) when a tidal wetland mitigation bank with the same plant community type\nand salinity regime as the impacted wetlands is not available in the same river\nwatershed as the impacted wetland.\n\nHISTORY: 1972, c. 711, \u00a7 62.1-13.3; 1982, c. 300; 1992, c. 836; 1996, c. 736;\n1999, c. 8; 2011, c. 253; 2014, cc. 131, 332; 2020, c. 809; 2023, c. 245.","edition":{"id":1,"name":"2025","slug":"2025","date_created":"2026-06-21 22:39:22","date_modified":"2026-06-21 22:39:22","current":1,"order_by":1,"last_import":null}}