                                 CODE OF VIRGINIA

STANDARDS FOR USE AND DEVELOPMENT OF WETLANDS; UTILIZATION OF GUIDELINES (§
28.2-1308)

A. For the purposes of this section, &#8220;river watershed&#8221; 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. 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:

   1. Wetlands of primary ecological significance shall not be altered so that
   the ecological systems in the wetlands are unreasonably disturbed; and

   2. 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.

C. The provisions of guidelines and minimum standards promulgated by the
Commission pursuant to &#xA7; 28.2-1301 shall be considered in applying the
standards listed in subsection B.

D. 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&#8217;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. 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.

F. 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.

HISTORY: 1972, c. 711, § 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.