                                 CODE OF VIRGINIA

WETLANDS MITIGATION BANKING (§ 33.2-247)

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 New River Basin.

B. When authorization is required by federal or state law for any project
affecting wetlands and such authorization is conditioned upon compensatory
mitigation for adverse impacts to wetlands, the Commissioner of Highways is
authorized to expend funds for the purchase of, or is authorized to use, credits
from any wetlands mitigation bank, including any owned by the Department of
Transportation, 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 Commissioner of Highways demonstrates to the satisfaction of
the agency requiring compensatory mitigation that (a) the impacts will occur as
a result of a Department of Transportation linear project; (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 of Environmental Quality 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.

C. Notwithstanding any provision of this section restricting the location of the
source of credits, the Commissioner of Highways 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: 1996, c. 736, § 33.1-223.2:1; 1999, c. 8; 2011, c. 253; 2014, cc. 332,
805; 2023, c. 245.