62.1-44.15:23 - Wetland and stream mitigation banks
§ 62.1-44.15:23. Wetland and stream mitigation banks.
A. When a Virginia Water Protection Permit is conditioned upon compensatorymitigation for adverse impacts to wetlands or streams, the applicant may bepermitted to satisfy all or part of such mitigation requirements by thepurchase or use of credits from any wetland or stream mitigation bank in theCommonwealth, or in Maryland on property wholly surrounded by and located inthe Potomac River if the mitigation banking instrument provides that theBoard shall have the right to enter and inspect the property and that themitigation bank instrument and the contract for the purchase or use of suchcredits may be enforced in the courts of the Commonwealth, including anybanks owned by the permit applicant, that has been approved and is operatingin accordance with applicable federal and state guidance, laws, orregulations for the establishment, use, and operation of mitigation banks aslong as: (1) the bank is in the same U.S.G.S. cataloging unit, as defined bythe Hydrologic Unit Map of the United States (U.S.G.S. 1980), as the impactedsite or in an adjacent cataloging unit within the same river watershed or itmeets all the conditions found in clauses (i) through (iv) and either clause(v) or (vi) of this section; (2) the bank is ecologically preferable topracticable onsite and offsite individual mitigation options as defined byfederal wetland regulations; and (3) the banking instrument, if approvedafter July 1, 1996, has been approved by a process that included publicreview and comment. When the bank is not located in the same cataloging unitor adjacent cataloging unit within the same river watershed as the impactedsite, the purchase or use of credits shall not be allowed unless theapplicant demonstrates to the satisfaction of the Department of EnvironmentalQuality that (i) the impacts will occur as a result of a Virginia Departmentof Transportation linear project or as the result of a locality project for alocality whose jurisdiction crosses multiple river watersheds; (ii) there isno practical same river watershed mitigation alternative; (iii) the impactsare less than one acre in a single and complete project within a catalogingunit; (iv) there is no significant harm to water quality or fish and wildliferesources within the river watershed of the impacted site; and either (v)impacts within the Chesapeake Bay watershed are mitigated within theChesapeake Bay watershed as close as possible to the impacted site or (vi)impacts within U.S.G.S. cataloging units 02080108, 02080208, and 03010205, asdefined by the Hydrologic Unit Map of the United States (U.S.G.S. 1980), aremitigated in-kind within those hydrologic cataloging units, as close aspossible to the impacted site.
B. The Department of Environmental Quality is authorized to serve as asignatory to agreements governing the operation of mitigation banks. TheCommonwealth, its officials, agencies, and employees shall not be liable forany action taken under any agreement developed pursuant to such authority.
C. State agencies and localities are authorized to purchase credits frommitigation banks.
D. A locality may establish, operate and sponsor wetland or streamsingle-user mitigation banks within the Commonwealth that have been approvedand are operated in accordance with the requirements of subsection A,provided that such single-user banks may only be considered for compensatorymitigation for the sponsoring locality's municipal, joint municipal orgovernmental 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 whichthere shall be no third-party leasing, sale, granting, transfer, or use ofthe projects or credits. Localities may enter into agreements with privatethird parties to facilitate the creation of privately sponsored wetland andstream mitigation banks having service areas developed through the proceduresof subsection A.
(2007, c. 659; 2008, c. 173.)