{"formats":[{"name":"JSON","format":"json","url":"\/downloads\/2025\/code-json\/62.1-44.15_23.json"},{"name":"Plain Text","format":"text","url":"\/downloads\/2025\/code-text\/62.1-44.15_23.txt"},{"name":"XML","format":"xml","url":"\/downloads\/2025\/code-xml\/62.1-44.15_23.xml"},{"name":"HTML","format":"html","url":"\/downloads\/2025\/code-html\/62.1-44.15_23.html"}],"law_id":64474,"edition_id":1,"section_id":64474,"structure_id":16155,"section_number":"62.1-44.15:23","catch_line":"Wetland and stream mitigation banks","history":"2007, c. 659; 2008, c. 173; 2011, c. 253; 2012, c. 631; 2014, c. 332; 2021, Sp. Sess. I, c. 265; 2023, c. 245.","full_text":"A\n\nFor purposes of this section:\n\t\t\t“Physiographic province” means one of the five physiographic provinces of Virginia designated as the Appalachian Plateaus, Blue Ridge, Coastal Plain, Piedmont, and Ridge and Valley physiographic provinces as identified on Figure 2 in the Overview of the Physiography and Vegetation of Virginia prepared by the Department of Conservation and Recreation, Division of Natural Heritage and dated February 2016. The Department of Environmental Quality may adjust the boundaries of a physiographic province to reflect site-specific boundaries based on relative elevation, relief, geomorphology, and lithology provided by the bank sponsor.\n\t\t\t“Primary service area” means the fourth order subbasin in which the bank is located, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset or the hydrologic unit system or dataset utilized and depicted or described in the bank’s approved mitigation banking instrument, and any adjacent fourth order subbasin within the same river watershed.\n\t\t\t“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 Complex; Chesapeake Bay and its Small Coastal Basins; Atlantic Ocean; York River Basin; and New River Basin.\n\t\t\t“Secondary service area” means 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.\n\t\t\t“Tree canopy” includes all of the area of canopy coverage by self-supporting and healthy woody plant material exceeding five feet in height.B\n\nWhen a Virginia Water Protection Permit is conditioned upon compensatory mitigation for adverse impacts to wetlands or streams, the applicant may be permitted to satisfy all or part of such mitigation requirements by the purchase or use of credits from any wetland or stream mitigation bank in the Commonwealth, or in Maryland on property wholly surrounded by and located in the Potomac River if the mitigation banking instrument provides that the Board shall have the right to enter and inspect the property and that the mitigation bank instrument and the contract for the purchase or use of such credits may be enforced in the courts of the Commonwealth, 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 impacted site is located in the bank’s primary or secondary service area as provided in subsection C 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 onsite and offsite 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 impacted site is not located in the bank’s primary or secondary service area, the purchase or use of credits shall not be allowed unless the applicant demonstrates to the satisfaction of the Department of Environmental Quality 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. 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.C\n\nFor impacts to a site for which no credits are available to purchase (i) in the primary service area of any mitigation provider or (ii) at a price below 200 percent of the current price of credits applicable to that site from a Board-approved fund dedicated to achieving no net loss of wetland acreage and functions, a permit applicant may be permitted to purchase or use credits from the secondary service area of a mitigation provider to satisfy all or any part of such applicant’s mitigation requirements. For purposes of this subsection, the permit applicant shall provide a determination of credit availability and credit price no later than the time such applicant submits to the Department (a) its proof of credit acquisition or (b) a later change to such proof.\n\t\t\tIf a permit applicant purchases or uses credits from a secondary service area, the permit applicant shall:1\n\nAcquire three times the credits it would have had to acquire from a bank in the primary service area for wetland impacts and two times the number of credits it would have had to acquire in the primary service area for stream impacts;2\n\nWhen submitting proof of acquisition of credits for a subdivision or development, provide to the Department a plan that the permit applicant will implement that is certified by a licensed professional engineer, surveyor, or landscape architect for the planting, preservation, or replacement of trees on the development site such that the minimum tree canopy percentage 20 years after development is projected to be as follows:\n\t\t\t\ta. Ten percent tree canopy for a site zoned for business, commercial, or industrial use;\n\t\t\t\tb. Ten percent tree canopy for a residential site zoned for 20 or more units per acre;\n\t\t\t\tc. Fifteen percent tree canopy for a residential site zoned for more than eight but fewer than 20 units per acre;\n\t\t\t\td. Twenty percent tree canopy for a residential site zoned for more than four but not more than eight units per acre;\n\t\t\t\te. Twenty-five percent tree canopy for a residential site zoned for more than two but not more than four units per acre; and\n\t\t\t\tf. Thirty percent tree canopy for a residential site zoned for two or fewer units per acre.\n\t\t\t\tFor a mixed-use development, the tree canopy percentage required pursuant to this subdivision shall be that which is applicable to the predominant use.\n\t\t\t\tThe tree canopy requirements established under this subsection shall not supersede any additional requirements imposed by a locality pursuant to § 15.2-961 or 15.2-961.1.D\n\nThe Department is authorized to serve as a signatory to agreements governing the operation of mitigation banks. The Commonwealth and its officials, agencies, and employees shall not be liable for any action taken under any agreement developed pursuant to such authority.E\n\nState agencies and localities are authorized to purchase credits from mitigation banks.F\n\nA locality may establish, operate and sponsor wetland or stream single-user mitigation banks within the Commonwealth that have been approved and are operated in accordance with the requirements of subsection B, provided that such single-user banks may only be considered for compensatory mitigation for the sponsoring locality’s municipal, joint municipal or governmental projects. For the purposes of this subsection, the term “sponsoring locality’s municipal, joint municipal or governmental projects” means projects for which the locality is the named permittee, and for which there shall be no third-party leasing, sale, granting, transfer, or use of the projects or credits. Localities may enter into agreements with private third parties to facilitate the creation of privately sponsored wetland and stream mitigation banks having service areas developed through the procedures of subsection B.G\n\nNotwithstanding any provision of this section restricting the location of the source of credits, the Department may, for tidal wetland impacts, authorize the use of, including without the application of subsection C, 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":234620,"text":"For purposes of this section:\n\t\t\t“Physiographic province” means one of the five physiographic provinces of Virginia designated as the Appalachian Plateaus, Blue Ridge, Coastal Plain, Piedmont, and Ridge and Valley physiographic provinces as identified on Figure 2 in the Overview of the Physiography and Vegetation of Virginia prepared by the Department of Conservation and Recreation, Division of Natural Heritage and dated February 2016. The Department of Environmental Quality may adjust the boundaries of a physiographic province to reflect site-specific boundaries based on relative elevation, relief, geomorphology, and lithology provided by the bank sponsor.\n\t\t\t“Primary service area” means the fourth order subbasin in which the bank is located, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset or the hydrologic unit system or dataset utilized and depicted or described in the bank’s approved mitigation banking instrument, and any adjacent fourth order subbasin within the same river watershed.\n\t\t\t“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 Complex; Chesapeake Bay and its Small Coastal Basins; Atlantic Ocean; York River Basin; and New River Basin.\n\t\t\t“Secondary service area” means 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.\n\t\t\t“Tree canopy” includes all of the area of canopy coverage by self-supporting and healthy woody plant material exceeding five feet in height.","type":"section","prefixes":["A"],"prefix":"A","entire_prefix":"A","prefix_anchor":"A","level":1,"next_prefix":"B"},"1":{"id":234621,"text":"When a Virginia Water Protection Permit is conditioned upon compensatory mitigation for adverse impacts to wetlands or streams, the applicant may be permitted to satisfy all or part of such mitigation requirements by the purchase or use of credits from any wetland or stream mitigation bank in the Commonwealth, or in Maryland on property wholly surrounded by and located in the Potomac River if the mitigation banking instrument provides that the Board shall have the right to enter and inspect the property and that the mitigation bank instrument and the contract for the purchase or use of such credits may be enforced in the courts of the Commonwealth, 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 impacted site is located in the bank’s primary or secondary service area as provided in subsection C 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 onsite and offsite 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 impacted site is not located in the bank’s primary or secondary service area, the purchase or use of credits shall not be allowed unless the applicant demonstrates to the satisfaction of the Department of Environmental Quality 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. 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":["B"],"prefix":"B","entire_prefix":"B","prefix_anchor":"B","level":1,"prior_prefix":"A","next_prefix":"C"},"2":{"id":234622,"text":"For impacts to a site for which no credits are available to purchase (i) in the primary service area of any mitigation provider or (ii) at a price below 200 percent of the current price of credits applicable to that site from a Board-approved fund dedicated to achieving no net loss of wetland acreage and functions, a permit applicant may be permitted to purchase or use credits from the secondary service area of a mitigation provider to satisfy all or any part of such applicant’s mitigation requirements. For purposes of this subsection, the permit applicant shall provide a determination of credit availability and credit price no later than the time such applicant submits to the Department (a) its proof of credit acquisition or (b) a later change to such proof.\n\t\t\tIf a permit applicant purchases or uses credits from a secondary service area, the permit applicant shall:","type":"section","prefixes":["C"],"prefix":"C","entire_prefix":"C","prefix_anchor":"C","level":1,"prior_prefix":"B","next_prefix":"C1"},"3":{"id":234623,"text":"Acquire three times the credits it would have had to acquire from a bank in the primary service area for wetland impacts and two times the number of credits it would have had to acquire in the primary service area for stream impacts;","type":"section","prefixes":["C","1"],"prefix":"1","entire_prefix":"C1","prefix_anchor":"C1","level":2,"prior_prefix":"C","next_prefix":"C2"},"4":{"id":234624,"text":"When submitting proof of acquisition of credits for a subdivision or development, provide to the Department a plan that the permit applicant will implement that is certified by a licensed professional engineer, surveyor, or landscape architect for the planting, preservation, or replacement of trees on the development site such that the minimum tree canopy percentage 20 years after development is projected to be as follows:\n\t\t\t\ta. Ten percent tree canopy for a site zoned for business, commercial, or industrial use;\n\t\t\t\tb. Ten percent tree canopy for a residential site zoned for 20 or more units per acre;\n\t\t\t\tc. Fifteen percent tree canopy for a residential site zoned for more than eight but fewer than 20 units per acre;\n\t\t\t\td. Twenty percent tree canopy for a residential site zoned for more than four but not more than eight units per acre;\n\t\t\t\te. Twenty-five percent tree canopy for a residential site zoned for more than two but not more than four units per acre; and\n\t\t\t\tf. Thirty percent tree canopy for a residential site zoned for two or fewer units per acre.\n\t\t\t\tFor a mixed-use development, the tree canopy percentage required pursuant to this subdivision shall be that which is applicable to the predominant use.\n\t\t\t\tThe tree canopy requirements established under this subsection shall not supersede any additional requirements imposed by a locality pursuant to § 15.2-961 or 15.2-961.1.","type":"section","prefixes":["C","2"],"prefix":"2","entire_prefix":"C2","prefix_anchor":"C2","level":2,"prior_prefix":"C1","next_prefix":"D"},"5":{"id":234625,"text":"The Department is authorized to serve as a signatory to agreements governing the operation of mitigation banks. The Commonwealth and its officials, agencies, and employees shall not be liable for any action taken under any agreement developed pursuant to such authority.","type":"section","prefixes":["D"],"prefix":"D","entire_prefix":"D","prefix_anchor":"D","level":1,"prior_prefix":"C2","next_prefix":"E"},"6":{"id":234626,"text":"State agencies and localities are authorized to purchase credits from mitigation banks.","type":"section","prefixes":["E"],"prefix":"E","entire_prefix":"E","prefix_anchor":"E","level":1,"prior_prefix":"D","next_prefix":"F"},"7":{"id":234627,"text":"A locality may establish, operate and sponsor wetland or stream single-user mitigation banks within the Commonwealth that have been approved and are operated in accordance with the requirements of subsection B, provided that such single-user banks may only be considered for compensatory mitigation for the sponsoring locality’s municipal, joint municipal or governmental projects. For the purposes of this subsection, the term “sponsoring locality’s municipal, joint municipal or governmental projects” means projects for which the locality is the named permittee, and for which there shall be no third-party leasing, sale, granting, transfer, or use of the projects or credits. Localities may enter into agreements with private third parties to facilitate the creation of privately sponsored wetland and stream mitigation banks having service areas developed through the procedures of subsection B.","type":"section","prefixes":["F"],"prefix":"F","entire_prefix":"F","prefix_anchor":"F","level":1,"prior_prefix":"E","next_prefix":"G"},"8":{"id":234628,"text":"Notwithstanding any provision of this section restricting the location of the source of credits, the Department may, for tidal wetland impacts, authorize the use of, including without the application of subsection C, 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":["G"],"prefix":"G","entire_prefix":"G","prefix_anchor":"G","level":1,"prior_prefix":"F"}},"ancestry":[{"id":16155,"edition_id":1,"name":"Virginia Water Resources and Wetlands Protection Program","identifier":"2.2","label":"article","depth":3,"order_by":1,"parent_id":13014,"metadata":{},"date_created":"2026-06-26 04:07:33","date_modified":"2026-06-26 04:07:33","permalink":{"id":269459,"object_type":"structure","relational_id":16155,"identifier":"2.2","token":"62.1\/3.1\/2.2","url":"\/62.1\/3.1\/2.2\/","edition_id":1,"permalink":0,"preferred":1}},{"id":13014,"edition_id":1,"name":"State Water Control Law","identifier":"3.1","label":"chapter","depth":2,"order_by":1,"parent_id":12909,"metadata":{},"date_created":"2026-06-26 03:44:08","date_modified":"2026-06-26 03:44:08","permalink":{"id":269169,"object_type":"structure","relational_id":13014,"identifier":"3.1","token":"62.1\/3.1","url":"\/62.1\/3.1\/","edition_id":1,"permalink":0,"preferred":1}},{"id":12909,"edition_id":1,"name":"Waters of the State, Ports and Harbors","identifier":"62.1","label":"title","depth":1,"order_by":1,"parent_id":null,"metadata":{},"date_created":"2026-06-26 03:44:00","date_modified":"2026-06-26 03:44:00","permalink":{"id":268199,"object_type":"structure","relational_id":12909,"identifier":"62.1","token":"62.1","url":"\/62.1\/","edition_id":1,"permalink":0,"preferred":1}}],"structure_contents":[{"id":82929,"structure_id":16155,"section_number":"62.1-44.15:20","catch_line":"Virginia Water Protection Permit","url":"\/62.1-44.15_20\/","token":"62.1\/3.1\/2.2\/62.1-44.15_20","metadata":false},{"id":64181,"structure_id":16155,"section_number":"62.1-44.15:21","catch_line":" Impacts to wetlands","url":"\/62.1-44.15_21\/","token":"62.1\/3.1\/2.2\/62.1-44.15_21","metadata":false},{"id":80548,"structure_id":16155,"section_number":"62.1-44.15:22","catch_line":"(For contingent effective date, see Acts 2021, Sp. Sess. I, c. 100) Water withdrawals and preservation of instream flow","url":"\/62.1-44.15_22\/","token":"62.1\/3.1\/2.2\/62.1-44.15_22","metadata":false},{"id":64474,"structure_id":16155,"section_number":"62.1-44.15:23","catch_line":"Wetland and stream mitigation banks","url":"\/62.1-44.15_23\/","token":"62.1\/3.1\/2.2\/62.1-44.15_23","metadata":false},{"id":78947,"structure_id":16155,"section_number":"62.1-44.15:23.1","catch_line":"Wetland and Stream Replacement Fund established","url":"\/62.1-44.15_23.1\/","token":"62.1\/3.1\/2.2\/62.1-44.15_23.1","metadata":false}],"previous_section":{"id":80548,"structure_id":16155,"section_number":"62.1-44.15:22","catch_line":"(For contingent effective date, see Acts 2021, Sp. Sess. I, c. 100) Water withdrawals and preservation of instream flow","url":"\/62.1-44.15_22\/","token":"62.1\/3.1\/2.2\/62.1-44.15_22","metadata":false},"next_section":{"id":78947,"structure_id":16155,"section_number":"62.1-44.15:23.1","catch_line":"Wetland and Stream Replacement Fund established","url":"\/62.1-44.15_23.1\/","token":"62.1\/3.1\/2.2\/62.1-44.15_23.1","metadata":false},"metadata":false,"official_url":"https:\/\/law.lis.virginia.gov\/vacode\/62.1-44.15:23\/","history_text":"

This law was first created in 2007. The record of its establishment is cataloged in chapter 659<\/a> 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. It has been modified 5 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 2008, chapter 173<\/a>; in 2011, chapter 253<\/a>; in 2012, chapter 631<\/a>; in 2014, chapter 332<\/a>; in 2023, chapter 245<\/a>.<\/p>","references":[{"id":64181,"section_number":"62.1-44.15:21","catch_line":" Impacts to wetlands","order_by":null,"url":"\/62.1-44.15_21\/"},{"id":78947,"section_number":"62.1-44.15:23.1","catch_line":"Wetland and Stream Replacement Fund established","order_by":null,"url":"\/62.1-44.15_23.1\/"},{"id":73113,"section_number":"62.1-44.29","catch_line":"Judicial review","order_by":null,"url":"\/62.1-44.29\/"}],"refers_to":[{"id":68912,"section_number":"15.2-961","catch_line":"Replacement of trees during development process in certain localities","order_by":null,"url":"\/15.2-961\/"}],"permalink":{"id":269473,"object_type":"law","relational_id":64474,"identifier":"62.1-44.15:23","token":"62.1\/3.1\/2.2\/62.1-44.15_23","url":"\/62.1-44.15_23\/","edition_id":1,"permalink":0,"preferred":1},"url":"\/62.1-44.15_23\/","token":"62.1\/3.1\/2.2\/62.1-44.15_23","dublin_core":{"Title":"Wetland and stream mitigation banks","Type":"Text","Format":"text\/html","Identifier":"\u00a7 62.1-44.15:23","Relation":"Code of Virginia"},"html":"\n\t\t\t\t\t\t

A.<\/span> For purposes of this section:\n\t\t\t“Physiographic province<\/span>” means one of the five physiographic provinces<\/span> of Virginia designated as the Appalachian Plateaus, Blue Ridge, Coastal Plain, Piedmont, and Ridge and Valley physiographic provinces<\/span> as identified on Figure 2 in the Overview of the Physiography and Vegetation of Virginia prepared by the Department<\/span> of Conservation and Recreation, Division of Natural Heritage and dated February 2016. The Department<\/span> of Environmental Quality may adjust the boundaries of a physiographic province<\/span> to reflect site-specific boundaries based on relative elevation, relief, geomorphology, and lithology provided by the bank sponsor.\n\t\t\t“Primary service area<\/span>” means the fourth order<\/span> subbasin in which the bank is located, as defined by the hydrologic unit boundaries of the National Watershed Boundary Dataset or the hydrologic unit system or dataset utilized and depicted or described in the bank’s approved mitigation banking instrument, and any adjacent fourth order<\/span> subbasin within the same river watershed<\/span>.\n\t\t\t“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 Complex; Chesapeake Bay and its Small Coastal Basins; Atlantic Ocean; York River Basin; and New River Basin.\n\t\t\t“Secondary service area<\/span>” means the area outside the primary service area<\/span> but within the same physiographic province<\/span> in which the bank is located and any adjacent physiographic province<\/span> within the same river watershed<\/span>.\n\t\t\t“Tree canopy<\/span>” includes all of the area of canopy coverage by self-supporting and healthy woody plant material<\/span> exceeding five feet in height. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

B.<\/span> When a Virginia Water Protection Permit is conditioned upon compensatory mitigation for adverse impacts to wetlands<\/span> or streams, the applicant may be permitted to satisfy all or part of such mitigation requirements by the purchase or use of credits from any wetland or stream mitigation bank in the Commonwealth, or in Maryland on property wholly surrounded by and located in the Potomac River if the mitigation banking instrument provides that the Board<\/span> shall have the right to enter and inspect the property and that the mitigation bank instrument and the contract<\/span> for the purchase or use of such credits may be enforced in the courts<\/span> of the Commonwealth, 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<\/span> for the establishment<\/span>, use, and operation of mitigation banks as long as (i) the impacted site is located in the bank’s primary or secondary service area<\/span> as provided in subsection C 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 onsite and offsite individual mitigation options as defined by federal wetland regulations<\/span>; 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 impacted site is not located in the bank’s primary or secondary service area<\/span>, the purchase or use of credits shall not be allowed unless the applicant demonstrates to the satisfaction of the Department<\/span> of Environmental Quality that (a) the impacts will occur as a result of a Virginia Department<\/span> 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 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. 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<\/span> 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

C.<\/span> For impacts to a site for which no credits are available to purchase (i) in the primary service area<\/span> of any mitigation provider or (ii) at a price below 200 percent of the current price of credits applicable to that site from a Board<\/span>-approved fund dedicated to achieving no net loss of wetland acreage and functions, a permit applicant may be permitted to purchase or use credits from the secondary service area<\/span> of a mitigation provider to satisfy all or any part of such applicant’s mitigation requirements. For purposes of this subsection, the permit applicant shall provide a determination of credit availability and credit price no later than the time such applicant submits to the Department<\/span> (a) its proof of credit acquisition or (b) a later change to such proof.\n\t\t\tIf a permit applicant purchases or uses credits from a secondary service area<\/span>, the permit applicant shall: <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

1.<\/span> Acquire three times the credits it would have had to acquire from a bank in the primary service area<\/span> for wetland impacts and two times the number of credits it would have had to acquire in the primary service area<\/span> for stream impacts; <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

2.<\/span> When submitting proof of acquisition of credits for a subdivision or development, provide to the Department<\/span> a plan that the permit applicant will implement that is certified by a licensed professional engineer, surveyor, or landscape architect for the planting, preservation, or replacement of trees on the development site such that the minimum tree canopy<\/span> percentage 20 years after development is projected to be as follows:\n\t\t\t\ta. Ten percent tree canopy<\/span> for a site zoned for business, commercial, or industrial use;\n\t\t\t\tb. Ten percent tree canopy<\/span> for a residential site zoned for 20 or more units per acre;\n\t\t\t\tc. Fifteen percent tree canopy<\/span> for a residential site zoned for more than eight but fewer than 20 units per acre;\n\t\t\t\td. Twenty percent tree canopy<\/span> for a residential site zoned for more than four but not more than eight units per acre;\n\t\t\t\te. Twenty-five percent tree canopy<\/span> for a residential site zoned for more than two but not more than four units per acre; and\n\t\t\t\tf. Thirty percent tree canopy<\/span> for a residential site zoned for two or fewer units per acre.\n\t\t\t\tFor a mixed-use development, the tree canopy<\/span> percentage required pursuant to this subdivision shall be that which is applicable to the predominant use.\n\t\t\t\tThe tree canopy<\/span> requirements established under this subsection shall not supersede any additional requirements imposed by a locality pursuant to § 15.2-961<\/a> or 15.2-961.1<\/a>. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

D.<\/span> The Department<\/span> is authorized to serve as a signatory to agreements governing the operation of mitigation banks. The Commonwealth and its officials, agencies, and employees shall not be liable for any action taken under any agreement developed pursuant to such authority. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

E.<\/span> State agencies and localities are authorized to purchase credits from mitigation banks. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

F.<\/span> A locality may establish, operate and sponsor wetland or stream single-user mitigation banks within the Commonwealth that have been approved and are operated in accordance with the requirements of subsection B, provided that such single-user banks may only be considered for compensatory mitigation for the sponsoring locality’s municipal, joint municipal or governmental projects. For the purposes of this subsection, the term “sponsoring locality’s municipal, joint municipal or governmental projects” means projects for which the locality is the named permittee, and for which there shall be no third-party<\/span> leasing, sale, granting, transfer, or use of the projects or credits. Localities may enter into agreements with private third parties to facilitate the creation of privately sponsored wetland and stream mitigation banks having service areas developed through the procedures of subsection B. <\/i><\/a><\/p><\/section>\n\t\t\t\t\t\t

G.<\/span> Notwithstanding any provision of this section restricting the location of the source of credits, the Department<\/span> may, for tidal wetland impacts, authorize the use of, including without the application of subsection C, 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<\/span>, 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<\/span> is not available in the same river watershed<\/span> as the impacted wetland. <\/i><\/a><\/p><\/section>","plain_text":" CODE OF VIRGINIA\n\nWETLAND AND STREAM MITIGATION BANKS (\u00a7 62.1-44.15:23)\n\nA. For purposes of this section:\n\t\t\t“Physiographic province” means one of the five physiographic\nprovinces of Virginia designated as the Appalachian Plateaus, Blue Ridge,\nCoastal Plain, Piedmont, and Ridge and Valley physiographic provinces as\nidentified on Figure 2 in the Overview of the Physiography and Vegetation of\nVirginia prepared by the Department of Conservation and Recreation, Division of\nNatural Heritage and dated February 2016. The Department of Environmental\nQuality may adjust the boundaries of a physiographic province to reflect\nsite-specific boundaries based on relative elevation, relief, geomorphology, and\nlithology provided by the bank sponsor.\n\t\t\t“Primary service area” means the fourth order subbasin in which\nthe bank is located, as defined by the hydrologic unit boundaries of the\nNational Watershed Boundary Dataset or the hydrologic unit system or dataset\nutilized and depicted or described in the bank’s approved mitigation\nbanking instrument, and any adjacent fourth order subbasin within the same river\nwatershed.\n\t\t\t“River watershed” means the Potomac River Basin; Shenandoah River\nBasin; James River Basin; Rappahannock River Basin; Roanoke and Yadkin Rivers\nBasin; Chowan River Basin, including the Dismal Swamp and Albemarle Sound;\nTennessee River Basin\/Big Sandy River Basin Complex; Chesapeake Bay and its\nSmall Coastal Basins; Atlantic Ocean; York River Basin; and New River Basin.\n\t\t\t“Secondary service area” means the area outside the primary\nservice area but within the same physiographic province in which the bank is\nlocated and any adjacent physiographic province within the same river watershed.\n\t\t\t“Tree canopy” includes all of the area of canopy coverage by\nself-supporting and healthy woody plant material exceeding five feet in height.\n\nB. When a Virginia Water Protection Permit is conditioned upon compensatory\nmitigation for adverse impacts to wetlands or streams, the applicant may be\npermitted to satisfy all or part of such mitigation requirements by the purchase\nor use of credits from any wetland or stream mitigation bank in the\nCommonwealth, or in Maryland on property wholly surrounded by and located in the\nPotomac River if the mitigation banking instrument provides that the Board shall\nhave the right to enter and inspect the property and that the mitigation bank\ninstrument and the contract for the purchase or use of such credits may be\nenforced in the courts of the Commonwealth, including any banks owned by the\npermit applicant, that has been approved and is operating in accordance with\napplicable federal and state guidance, laws, or regulations for the\nestablishment, use, and operation of mitigation banks as long as (i) the\nimpacted site is located in the bank’s primary or secondary service area\nas provided in subsection C or it meets all the conditions found in clauses (a)\nthrough (d) and either clause (e) or (f); (ii) the bank is ecologically\npreferable to practicable onsite and offsite individual mitigation options as\ndefined by federal wetland regulations; and (iii) the banking instrument, if\napproved after July 1, 1996, has been approved by a process that included public\nreview and comment. When the impacted site is not located in the bank’s\nprimary or secondary service area, the purchase or use of credits shall not be\nallowed unless the applicant demonstrates to the satisfaction of the Department\nof Environmental Quality that (a) the impacts will occur as a result of a\nVirginia Department of Transportation linear project or as the result of a\nlocality project for a locality whose jurisdiction encompasses multiple river\nwatersheds; (b) there is no practical same river watershed mitigation\nalternative; (c) the impacts are less than one acre in a single and complete\nproject within a subbasin; (d) there is no significant harm to water quality or\nfish and wildlife resources within the river watershed of the impacted site; and\neither (e) impacts within the Chesapeake Bay watershed are mitigated within the\nChesapeake Bay watershed as close as possible to the impacted site or (f)\nimpacts within subbasins 02080108, 02080208, and 03010205, as defined by the\nNational Watershed Boundary Dataset, are mitigated in-kind within those\nsubbasins, as close as possible to the impacted site. For the purposes of this\nsubsection, the hydrologic unit boundaries of the National Watershed Boundary\nDataset or other hydrologic unit system may be adjusted by the Department of\nEnvironmental Quality to reflect site-specific geographic or hydrologic\ninformation provided by the bank sponsor.\n\nC. For impacts to a site for which no credits are available to purchase (i) in\nthe primary service area of any mitigation provider or (ii) at a price below 200\npercent of the current price of credits applicable to that site from a\nBoard-approved fund dedicated to achieving no net loss of wetland acreage and\nfunctions, a permit applicant may be permitted to purchase or use credits from\nthe secondary service area of a mitigation provider to satisfy all or any part\nof such applicant’s mitigation requirements. For purposes of this\nsubsection, the permit applicant shall provide a determination of credit\navailability and credit price no later than the time such applicant submits to\nthe Department (a) its proof of credit acquisition or (b) a later change to such\nproof.\n\t\t\tIf a permit applicant purchases or uses credits from a secondary service\narea, the permit applicant shall:\n\n 1. Acquire three times the credits it would have had to acquire from a bank in\n the primary service area for wetland impacts and two times the number of\n credits it would have had to acquire in the primary service area for stream\n impacts;\n\n 2. When submitting proof of acquisition of credits for a subdivision or\n development, provide to the Department a plan that the permit applicant will\n implement that is certified by a licensed professional engineer, surveyor, or\n landscape architect for the planting, preservation, or replacement of trees on\n the development site such that the minimum tree canopy percentage 20 years\n after development is projected to be as follows:\n \t\t\t\ta. Ten percent tree canopy for a site zoned for business, commercial, or\n industrial use;\n \t\t\t\tb. Ten percent tree canopy for a residential site zoned for 20 or more\n units per acre;\n \t\t\t\tc. Fifteen percent tree canopy for a residential site zoned for more than\n eight but fewer than 20 units per acre;\n \t\t\t\td. Twenty percent tree canopy for a residential site zoned for more than\n four but not more than eight units per acre;\n \t\t\t\te. Twenty-five percent tree canopy for a residential site zoned for more\n than two but not more than four units per acre; and\n \t\t\t\tf. Thirty percent tree canopy for a residential site zoned for two or\n fewer units per acre.\n \t\t\t\tFor a mixed-use development, the tree canopy percentage required pursuant\n to this subdivision shall be that which is applicable to the predominant use.\n \t\t\t\tThe tree canopy requirements established under this subsection shall not\n supersede any additional requirements imposed by a locality pursuant to §\n 15.2-961 or 15.2-961.1.\n\nD. The Department is authorized to serve as a signatory to agreements governing\nthe operation of mitigation banks. The Commonwealth and its officials, agencies,\nand employees shall not be liable for any action taken under any agreement\ndeveloped pursuant to such authority.\n\nE. State agencies and localities are authorized to purchase credits from\nmitigation banks.\n\nF. A locality may establish, operate and sponsor wetland or stream single-user\nmitigation banks within the Commonwealth that have been approved and are\noperated in accordance with the requirements of subsection B, provided that such\nsingle-user banks may only be considered for compensatory mitigation for the\nsponsoring locality’s municipal, joint municipal or governmental projects.\nFor the purposes of this subsection, the term “sponsoring locality’s\nmunicipal, joint municipal or governmental projects” means projects for\nwhich the locality is the named permittee, and for which there shall be no\nthird-party leasing, sale, granting, transfer, or use of the projects or\ncredits. Localities may enter into agreements with private third parties to\nfacilitate the creation of privately sponsored wetland and stream mitigation\nbanks having service areas developed through the procedures of subsection B.\n\nG. Notwithstanding any provision of this section restricting the location of the\nsource of credits, the Department may, for tidal wetland impacts, authorize the\nuse of, including without the application of subsection C, a tidal wetland\nmitigation bank located in an adjacent river watershed when such bank contains\nthe same plant community type and salinity regime as the impacted wetlands,\nwhich shall be the preferred form of compensation. This subsection shall apply\nonly (i) to tidal wetland mitigation banks with a polyhaline salinity regime\nlocated in subbasins 02080102, 02080107, 02080108, and 02080208 and (ii) when a\ntidal wetland mitigation bank with the same plant community type and salinity\nregime as the impacted wetlands is not available in the same river watershed as\nthe impacted wetland.\n\nHISTORY: 2007, c. 659; 2008, c. 173; 2011, c. 253; 2012, c. 631; 2014, c. 332;\n2021, Sp. Sess. I, c. 265; 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}}