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     CUMULATIVE TABLE OF VIRGINIA                                                    adding 9 VAC 25-670-95). ............................................... 1248
     ADMINISTRATIVE CODE SECTIONS                                                    Virginia Water Protection General Permit for Linear
    ADOPTED, AMENDED, OR REPEALED                                                    Transportation Projects (amending 9 VAC 25-680-10 through
                                                                                     9 VAC 25-680-100; adding 9 VAC 25-680-95)................. 1268
Cumulative Table..............................................................1221
                                                                                     Virginia Water Protection General Permit for Impacts from
                                                                                     Development and Certain Mining Activities (amending 9 VAC
            PETITIONS FOR RULEMAKING                                                 25-690-10 through 9 VAC 25-690-100; adding 9 VAC 25-690-
                                                                                     95).................................................................................... 1289
TITLE 18. PROFESSIONAL AND OCCUPATIONAL
                                                                                     TITLE 18. PROFESSIONAL AND OCCUPATIONAL
LICENSING
                                                                                     LICENSING
                         BOARD OF MEDICINE
                                                                                        VIRGINIA BOARD FOR ASBESTOS, LEAD, AND HOME
                                                                                                        INSPECTORS
                             Agency Decision
                                                                                     Virginia Asbestos Licensing Regulations (amending 18 VAC
Regulations Governing the Practice of Medicine, Osteopathic                          15-20-20, 18 VAC 15-20-60, 18 VAC 15-20-70, 18 VAC 15-
Medicine, Podiatry and Chiropractic (18 VAC 85-20). ......1229                       20-400 through 18 VAC 15-20-451, 18 VAC 15-20-453,
                                                                                     18 VAC 15-20-456, 18 VAC 15-20-470; adding 18 VAC 15-20-
                                                                                     31, 18 VAC 15-20-32, 18 VAC 15-20-33, 18 VAC 15-20-34,
   NOTICES OF INTENDED REGULATORY                                                    18 VAC 15-20-51, 18 VAC 15-20-52, 18 VAC 15-20-53,
                ACTION                                                               18 VAC 15-20-461, 18 VAC 15-20-462, 18 VAC 15-20-463,
                                                                                     18 VAC 15-20-464; repealing 18 VAC 15-20-30, 18 VAC 15-
TITLE 2. AGRICULTURE                                                                 20-40, 18 VAC 15-20-50, 18 VAC 15-20-80 through 18 VAC
                                                                                     15-20-150, 18 VAC 15-20-250 through 18 VAC 15-20-361,
Virginia Pesticide Control Board .......................................1230         18 VAC 15-20-459.6 through 18 VAC 15-20-460). .......... 1312

TITLE 4. CONSERVATION AND NATURAL RESOURCES                                          Virginia Lead-Based Paint Activities Regulations (amending
                                                                                     18 VAC 15-30-420, 18 VAC 15-30-510, 18 VAC 15-30-810,
Virginia Soil and Water Conservation Board ....................1230                  and 18 VAC 15-30-820; adding 18 VAC 15-30-51 through
                                                                                     18 VAC 15-30-54, 18 VAC 15-30-161 through 18 VAC 15-30-
TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS                                            167, 18 VAC 15-30-332, and 18 VAC 15-30-334; repealing
                                                                                     18 VAC 15-30-30, 18 VAC 15-30-40, 18 VAC 15-30-50, and
State Board of Juvenile Justice ........................................1231         18 VAC 15-30-100 through 18 VAC 15-30-330). ............. 1333

TITLE 12. HEALTH                                                                              BOARD FOR BARBERS AND COSMETOLOGY
Department of Medical Assistance Services ....................1231                   Body-Piercing Regulations (adding 18 VAC 41-60-10 through
State Mental Health, Mental Retardation and Substance                                18 VAC 41-60-220). ......................................................... 1348
Abuse Services Board ......................................................1232

TITLE 22. SOCIAL SERVICES                                                                                  FINAL REGULATIONS
State Board of Social Services .........................................1232         TITLE 4. CONSERVATION AND NATURAL RESOURCES

                                                                                        DEPARTMENT OF CONSERVATION AND RECREATION
               PROPOSED REGULATIONS
                                                                                     Standard Fees for Use of Department of Conservation and
TITLE 9. ENVIRONMENT                                                                 Recreation Facilities, Programs, and Services (amending
                                                                                     4 VAC 5-36-10, 4 VAC 5-36-20, 4 VAC 5-36-40 through
                STATE WATER CONTROL BOARD                                            4 VAC 5-36-160, and 4 VAC 5-36-180 through 4 VAC 5-36-
                                                                                     210).................................................................................. 1367
Virginia Water Protection General Permit for Impacts Less
Than One-Half of an Acre (amending 9 VAC 25-660-10                                   TITLE 9. ENVIRONMENT
through 9 VAC 25-660-100; adding 9 VAC 25-660-95). ...1234
Virginia Water Protection General Permit for Facilities and                                            STATE WATER CONTROL BOARD
Activities of Utility and Public Service Companies Regulated                         General Virginia Pollutant Discharge Elimination System
by the Federal Energy Regulatory Commission or the State                             (VPDES) Permit for Seafood Processing Facilities (amending
Corporation Commission and Other Utility Line Activities                             9 VAC 25-115-10 through 9 VAC 25-115-50). ................. 1395
(amending 9 VAC 25-670-10 through 9 VAC 25-670-100;

Volume 22, Issue 9                                                                                                                          Monday, January 9, 2006

                                                                                 1217
Table of Contents
General Virginia Pollutant Discharge Elimination System                                                        GENERAL NOTICES/ERRATA
(VPDES) Permit for Concrete Products Facilities (amending
9 VAC 25-193-10, 9 VAC 25-193-20, 9 VAC 25-193-40
                                                                                                     DEPARTMENT OF AGRICULTURE AND CONSUMER
through 9 VAC 25-193-70). .............................................. 1395
                                                                                                                    SERVICES
General Virginia Pollutant Discharge Elimination System
                                                                                                Referendum on the Levy of an Increase on the Assessment of
(VPDES) Permit for Coin-Operated Laundry (adding 9 VAC
                                                                                                Cotton .............................................................................. 1426
25-810-10 through 9 VAC 25-810-70). ............................. 1396
                                                                                                      DEPARTMENT OF CRIMINAL JUSTICE SERVICES
TITLE 13. HOUSING
                                                                                                Edward Byrne Memorial Justice Assistance Grant (JAG)
       VIRGINIA HOUSING DEVELOPMENT AUTHORITY                                                   Program ........................................................................... 1427
Rules and Regulations for the Allocation of Low-Income                                          Compulsory Minimum Training Standards for Entry Level Law
Housing Tax Credits (amending 13 VAC 10-180-10, 13 VAC                                          Enforcement Officers ....................................................... 1427
10-180-50, 13 VAC 10-180-60, and 13 VAC 10-180-90).. 1403
                                                                                                         DEPARTMENT OF ENVIRONMENTAL QUALITY
                             BOARD OF MEDICINE
                                                                                                Notice of Availability of Data Concerning the Presence of
Regulations Governing the Practice of Medicine, Osteopathic                                     Toxic Contaminants ......................................................... 1428
Medicine, Podiatry, and Chiropractic (amend 18 VAC 85-20-
                                                                                                Notice of Periodic Review - Litter Receptable Regulations1428
22). ................................................................................... 1418
                                                                                                Updates to the Enforceable Policies of the Virginia Coastal
Regulations Governing the Practice of Respiratory Care
                                                                                                Resources Management Program ................................... 1428
Practitioners (amending 18 VAC 85-40-35)...................... 1418
                                                                                                Total Maximum Daily Load (TMDL) for Chestnut Creek .. 1429
Regulations Governing the Practice of Physician Assistants
(amending 18 VAC 85-50-35)........................................... 1418                      Total Maximum Daily Load (TMDL) for Knox Creek and
                                                                                                Pawpaw Creek................................................................. 1429
Regulations Governing the Licensure of Occupational
Therapists (amending 18 VAC 85-80-26). ........................ 1418                            Total Maximum Daily Load (TMDL) for Laurel Fork ......... 1430
Regulations Governing the Licensure of Radiologic                                               Total Maximum Daily Load (TMDL) for North Fork Holston
Technologists and Radiologic Technologists-Limited                                              River ................................................................................ 1431
(amending 18 VAC 85-101-25)......................................... 1418
                                                                                                Total Maximum Daily Load (TMDL) for Pigg River Watershed
Regulations Governing the Practice of Licensed                                                  ......................................................................................... 1431
Acupuncturists (amending 18 VAC 85-110-35). ............... 1418
                                                                                                Total Maximum Daily Load (TMDL) for Staunton (Roanoke)
Regulations Governing the Licensure of Athletic Trainers                                        River Watershed .............................................................. 1431
(amending 18 VAC 85-120-150)....................................... 1418
                                                                                                Total Maximum Daily Load (TMDL) for Stock Creek........ 1432
                         BOARD OF SOCIAL WORK                                                   Lynnhaven Watershed No Discharge Zone ..................... 1432
Regulations Governing the Practice of Social Work (amending
18 VAC 140-20-30). ......................................................... 1420                                            BOARD OF MEDICINE
                                                                                                Periodic Review of Regulations ....................................... 1433
               STATE BOARD OF SOCIAL SERVICES
Investigation of Child Abuse and Neglect in Out of Family                                                          STATE WATER CONTROL BOARD
Complaints (amending 22 VAC 40-730-115).................... 1421                                Approval of Eleven Total Maximum Daily Load (TMDL)
                                                                                                Reports ............................................................................ 1433

               EMERGENCY REGULATIONS                                                            Approval of Two Total Maximum Daily Load Implementation
                                                                                                Plans (TMDL IPs) ............................................................ 1435
TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS                                                       Proposed Consent Special Order for Augusta Cooperative
                                                                                                Farm Bureau, Inc. ............................................................ 1436
               STATE BOARD OF JUVENILE JUSTICE
                                                                                                Proposed Consent Special Order for Town of Culpeper .. 1436
Regulations Governing Juvenile Work Release Programs
(adding 6 VAC 35-190-10 through 6 VAC 35-190-120). ... 1423                                                           VIRGINIA CODE COMMISSION
                                                                                                Notice to State Agencies.................................................. 1436
                                                                                                Forms for Filing Material for Publication in the Virginia
                                                                                                Register of Regulations.................................................... 1436

                                                                        Virginia Register of Regulations

                                                                                            1218
                                                                                                Table of Contents
                                    ERRATA
TITLE 12. HEALTH

                       STATE BOARD OF HEALTH
Regulations for the Licensure of Hospitals in Virginia (12 VAC
5-410) ...............................................................................1445


                    CALENDAR OF EVENTS
EXECUTIVE
Open Meetings and Public Hearings ................................1438

INDEPENDENT
Open Meetings and Public Hearings ................................1458

LEGISLATIVE
Open Meetings and Public Hearings ................................1459

CHRONOLOGICAL LIST
Open Meetings .................................................................1460
Public Hearings ................................................................1462




Volume 22, Issue 9                                                                                 Monday, January 9, 2006

                                                                                         1219
Table of Contents




                    Virginia Register of Regulations

                                 1220
        CUMULATIVE TABLE OF VIRGINIA ADMINISTRATIVE CODE
           SECTIONS ADOPTED, AMENDED, OR REPEALED

  The table printed below lists regulation sections, by Virginia Administrative Code (VAC) title, that have been amended, added
  or repealed in the Virginia Register since the regulations were originally published or last supplemented in VAC (the Fall 2005
  VAC Supplement includes final regulations published through Virginia Register Volume 21, Issue 24, dated August 8, 2005).
  Emergency regulations, if any, are listed, followed by the designation “emer,” and errata pertaining to final regulations are
  listed. Proposed regulations are not listed here. The table lists the sections in numerical order and shows action taken, the
  volume, issue and page number where the section appeared, and the effective date of the section.


                                                    CUMULATIVE TABLE OF VIRGINIA ADMINISTRATIVE CODE SECTIONS ADOPTED, AMENDED, OR REPEALED




SECTION NUMBER                                                                                                         ACTION                          CITE            EFFECTIVE DATE
Title 1. Administration
1 VAC 55-20-320                                                                                                  Amended                      22:8 VA.R. 1174               3/15/06
Title 4. Conservation and Natural Resources
4 VAC 3-10-10                                                                                                    Amended                      22:5 VA.R. 706                12/14/05
4 VAC 3-10-20                                                                                                    Amended                      22:5 VA.R. 707                12/14/05
4 VAC 3-10-30                                                                                                    Amended                      22:5 VA.R. 707                12/14/05
4 VAC 3-10-40                                                                                                    Repealed                     22:5 VA.R. 709                12/14/05
4 VAC 5-15-10                                                                                                    Amended                      22:7 VA.R. 1000                1/11/06
4 VAC 5-15-40                                                                                                    Amended                      22:7 VA.R. 1004                1/11/06
4 VAC 5-15-60                                                                                                    Amended                      22:7 VA.R. 1004                1/11/06
4 VAC 5-15-80                                                                                                    Amended                      22:7 VA.R. 1005                1/11/06
4 VAC 5-15-100                                                                                                   Amended                      22:7 VA.R. 1005                1/11/06
4 VAC 5-15-110                                                                                                   Amended                      22:7 VA.R. 1006                1/11/06
4 VAC 5-15-130                                                                                                   Repealed                     22:7 VA.R. 1006                1/11/06
4 VAC 5-15-140                                                                                                   Amended                      22:7 VA.R. 1006                1/11/06
4 VAC 5-15-150                                                                                                   Amended                      22:7 VA.R. 1008                1/11/06
4 VAC 15-20-210                                                                                                  Added                        22:6 VA.R. 888                  1/1/06
4 VAC 15-30-40                                                                                                   Amended                      22:6 VA.R. 888                 12/1/05
4 VAC 15-90-293                                                                                                  Amended                      22:6 VA.R. 891                 11/1/05
4 VAC 15-380-70                                                                                                  Amended                      22:6 VA.R. 891                  3/1/06
4 VAC 15-380-71                                                                                                  Added                        22:6 VA.R. 892                  3/1/06
4 VAC 15-430-60                                                                                                  Amended                      22:6 VA.R. 892                  3/1/06
4 VAC 15-430-160                                                                                                 Amended                      22:6 VA.R. 892                  3/1/06
4 VAC 20-20-20                                                                                                   Amended                      22:8 VA.R. 1183           12/1/05-12/30/05
4 VAC 20-20-50                                                                                                   Amended                      22:8 VA.R. 1183           12/1/05-12/30/05
4 VAC 20-70-30                                                                                                   Amended                      22:4 VA.R. 575                 12/1/05
4 VAC 20-70-70                                                                                                   Amended                      22:4 VA.R. 575                 12/1/05
4 VAC 20-70-140                                                                                                  Amended                      22:4 VA.R. 576                 12/1/05
4 VAC 20-80-30                                                                                                   Amended                      21:25 VA.R. 3469               7/29/05
4 VAC 20-110-60                                                                                                  Amended                      22:4 VA.R. 576                 12/1/05
4 VAC 20-150-60                                                                                                  Amended                      22:4 VA.R. 576                 12/1/05
4 VAC 20-230-30                                                                                                  Amended                      22:4 VA.R. 576                 12/1/05
4 VAC 20-230-50                                                                                                  Amended                      22:4 VA.R. 576                 12/1/05
4 VAC 20-252-30 emer                                                                                             Amended                      22:4 VA.R. 627            9/29/05-10/28/05
4 VAC 20-252-30                                                                                                  Amended                      22:7 VA.R. 1013               11/14/05
4 VAC 20-252-90                                                                                                  Amended                      22:1 VA.R. 81                   9/1/05
4 VAC 20-252-100                                                                                                 Amended                      22:1 VA.R. 81                   9/1/05
4 VAC 20-252-135                                                                                                 Amended                      22:7 VA.R. 1013               11/14/05
4 VAC 20-252-160                                                                                                 Amended                      22:7 VA.R. 1014               11/14/05
4 VAC 20-270-30                                                                                                  Amended                      21:25 VA.R. 3469               7/29/05
4 VAC 20-310-15                                                                                                  Added                        22:4 VA.R. 582                 10/1/05
4 VAC 20-310-20                                                                                                  Amended                      22:4 VA.R. 582                 10/1/05
4 VAC 20-310-40                                                                                                  Amended                      22:4 VA.R. 583                 10/1/05
4 VAC 20-310-50                                                                                                  Amended                      22:4 VA.R. 583                 10/1/05
4 VAC 20-490-20                                                                                                  Amended                      22:8 VA.R. 1113                12/1/05

 Volume 22, Issue 9                                                                                                                                              Monday, January 9, 2006

                                                                                       1221
 Cumulative Table of VAC Sections Adopted, Amended, or Repealed
SECTION NUMBER                                                       ACTION                CITE           EFFECTIVE DATE
4 VAC 20-490-40                                                     Amended       22:8 VA.R. 1114               12/1/05
4 VAC 20-490-41                                                     Added         22:8 VA.R. 1115               12/1/05
4 VAC 20-490-42                                                     Added         22:8 VA.R. 1115               12/1/05
4 VAC 20-490-43                                                     Added         22:8 VA.R. 1115               12/1/05
4 VAC 20-490-50                                                     Amended       22:8 VA.R. 1115               12/1/05
4 VAC 20-490-60                                                     Repealed      22:8 VA.R. 1115               12/1/05
4 VAC 20-566-10 through 4 VAC 20-566-50 emer                        Added         21:25 VA.R. 3552          8/16/05-9/14/05
4 VAC 20-566-10 through 4 VAC 20-566-50                             Added         22:1 VA.R. 81-82              9/15/05
4 VAC 20-610-40                                                     Amended       22:4 VA.R. 576                12/1/05
4 VAC 20-610-50                                                     Amended       22:4 VA.R. 577                12/1/05
4 VAC 20-650-10 through 4 VAC 20-650-40 emer                        Amended       22:4 VA.R. 628           10/1/05-10/30/05
4 VAC 20-650-20                                                     Amended       22:6 VA.R. 893               10/28/05
4 VAC 20-670-20                                                     Amended       22:4 VA.R. 577                12/1/05
4 VAC 20-670-30                                                     Amended       21:25 VA.R. 3470              7/29/05
4 VAC 20-670-50                                                     Amended       21:25 VA.R. 3470              7/29/05
4 VAC 20-720-20                                                     Amended       22:4 VA.R. 584                10/1/05
4 VAC 20-720-40                                                     Amended       22:4 VA.R. 585                10/1/05
4 VAC 20-720-50                                                     Amended       22:4 VA.R. 586                10/1/05
4 VAC 20-720-60                                                     Amended       22:4 VA.R. 586                10/1/05
4 VAC 20-720-70                                                     Amended       22:4 VA.R. 586                10/1/05
4 VAC 20-720-70                                                     Amended       22:8 VA.R. 1184          12/1/05-12/30/05
4 VAC 20-720-75                                                     Amended       22:4 VA.R. 587                10/1/05
4 VAC 20-720-80                                                     Amended       22:4 VA.R. 587                10/1/05
4 VAC 20-720-100                                                    Amended       22:4 VA.R. 587                10/1/05
4 VAC 20-730-20                                                     Repealed      22:4 VA.R. 577                12/1/05
4 VAC 20-751-20                                                     Amended       22:6 VA.R. 893                11/1/05
4 VAC 20-890-25                                                     Amended       22:4 VA.R. 577                12/1/05
4 VAC 20-900-30                                                     Amended       22:4 VA.R. 578                12/1/05
4 VAC 20-910-45                                                     Amended       22:8 VA.R. 1184          12/1/05-12/30/05
4 VAC 20-920-30                                                     Amended       22:4 VA.R. 578                12/1/05
4 VAC 20-920-40                                                     Amended       22:4 VA.R. 578                12/1/05
4 VAC 20-950-46 emer                                                Amended       22:4 VA.R. 628           10/1/05-10/30/05
4 VAC 20-950-46                                                     Amended       22:6 VA.R. 894                11/1/05
4 VAC 20-950-48 emer                                                Amended       22:4 VA.R. 629           10/1/05-10/30/05
4 VAC 20-950-48                                                     Amended       22:6 VA.R. 894                11/1/05
4 VAC 20-950-48.2 emer                                              Added         22:4 VA.R. 629           10/1/05-10/30/05
4 VAC 20-950-48.2                                                   Added         22:6 VA.R. 895                11/1/05
4 VAC 20-950-49 emer                                                Amended       22:4 VA.R. 630           10/1/05-10/30/05
4 VAC 20-950-49                                                     Amended       22:6 VA.R. 895                11/1/05
4 VAC 20-1090-10 through 4 VAC 20-1090-40                           Added         22:4 VA.R. 579-582            12/1/05
4 VAC 20-1090                                                       Erratum       22:8 VA.R. 1198                  --
4 VAC 25-10-90                                                      Added         22:6 VA.R. 896               12/28/05
4 VAC 25-20 (Forms)                                                 Amended       22:5 VA.R. 720                   --
4 VAC 25-130-816.11                                                 Amended       21:26 VA.R. 3706          8/10/05-8/9/06
4 VAC 25-130-816.64                                                 Amended       21:26 VA.R. 3707          8/10/05-8/9/06
Title 6. Criminal Justice and Corrections
6 VAC 20-230-10 through 6 VAC 20-230-350                            Added         21:26 VA.R. 3680-3691        10/5/05
6 VAC 20-230-160                                                    Erratum       22:2 VA.R. 296                  --
6 VAC 20-230-210                                                    Erratum       22:2 VA.R. 296                  --
Title 8. Education
8 VAC 20-21-80                                                      Amended       21:25 VA.R. 3471             9/22/05
8 VAC 20-21-90                                                      Amended       21:25 VA.R. 3473             9/22/05
8 VAC 20-21-660                                                     Amended       21:25 VA.R. 3473             9/22/05
8 VAC 20-21-680                                                     Amended       21:25 VA.R. 3474             9/22/05
8 VAC 40-30                                                         Repealed      22:6 VA.R. 925           11/8/05-11/7/06
8 VAC 40-31-10 through 8 VAC 40-31-320                              Added         22:6 VA.R. 925-939       11/8/05-11/7/06

                                               Virginia Register of Regulations

                                                            1222
            Cumulative Table of VAC Sections Adopted, Amended, or Repealed
SECTION NUMBER                                                                               ACTION             CITE              EFFECTIVE DATE
Title 9. Environment
9 VAC 5-50-400                                                                              Amended    22:4 VA.R. 588                   12/1/05
9 VAC 5-60-60                                                                               Amended    22:4 VA.R. 588                   12/1/05
9 VAC 5-60-90                                                                               Amended    22:4 VA.R. 588                   12/1/05
9 VAC 5-60-100                                                                              Amended    22:4 VA.R. 588                   12/1/05
9 VAC 10-10-10                                                                              Amended    22:5 VA.R. 709                  12/14/05
9 VAC 10-10-20                                                                              Amended    22:5 VA.R. 710                  12/14/05
9 VAC 10-10-30                                                                              Amended    22:5 VA.R. 710                  12/14/05
9 VAC 20-80-60                                                                              Amended    21:26 VA.R. 3691                 10/5/05
9 VAC 20-80-400                                                                             Amended    21:26 VA.R. 3694                 10/5/05
9 VAC 20-80-480                                                                             Amended    21:26 VA.R. 3697                 10/5/05
9 VAC 20-80-485                                                                             Amended    21:26 VA.R. 3698                 10/5/05
9 VAC 20-80-485                                                                             Erratum    22:2 VA.R. 296                      --
9 VAC 20-80-790                                                                             Amended    22:1 VA.R. 104                  12/19/05
9 VAC 25-40-10                                                                              Amended    22:3 VA.R. 370                  11/16/05
9 VAC 25-40-20                                                                              Repealed   22:3 VA.R. 370                  11/16/05
9 VAC 25-40-25                                                                              Added      22:3 VA.R. 370                  11/16/05
9 VAC 25-40-30                                                                              Amended    22:3 VA.R. 371                  11/16/05
9 VAC 25-40-40                                                                              Amended    22:3 VA.R. 371                  11/16/05
9 VAC 25-40-50                                                                              Amended    22:3 VA.R. 371                  11/16/05
9 VAC 25-40-70                                                                              Added      22:3 VA.R. 371                  11/16/05
9 VAC 25-110-10                                                                             Amended    22:4 VA.R. 595                  11/30/05
9 VAC 25-110-20                                                                             Amended    22:4 VA.R. 595                  11/30/05
9 VAC 25-110-60                                                                             Amended    22:4 VA.R. 596                  11/30/05
9 VAC 25-110-70                                                                             Amended    22:4 VA.R. 596                  11/30/05
9 VAC 25-110-80                                                                             Amended    22:4 VA.R. 597                  11/30/05
9 VAC 25-180-10 through 9 VAC 25-180-70                                                     Repealed   22:4 VA.R. 605                  11/30/05
9 VAC 25-260-30                                                                             Amended    22:3 VA.R. 381                      *
9 VAC 25-260-310                                                                            Amended    22:7 VA.R. 1015                    **
9 VAC 25-260-410                                                                            Amended    22:7 VA.R. 1017                    **
9 VAC 25-260-530                                                                            Amended    22:7 VA.R. 1018                    **
9 VAC 25-630-50                                                                             Amended    22:2 VA.R. 229                   11/2/05
9 VAC 25-720-10                                                                             Amended    22:3 VA.R. 372                  11/16/05
9 VAC 25-720-30                                                                             Amended    22:3 VA.R. 374                  11/16/05
9 VAC 25-720-40                                                                             Amended    22:3 VA.R. 374                  11/16/05
9 VAC 25-720-50                                                                             Amended    22:2 VA.R. 236                   11/2/05
9 VAC 25-720-50                                                                             Amended    22:3 VA.R. 376                  11/16/05
9 VAC 25-720-50                                                                             Amended    22:6 VA.R. 896                  12/28/05
9 VAC 25-720-60                                                                             Amended    22:7 VA.R. 1019                  1/11/06
9 VAC 25-720-70                                                                             Amended    22:3 VA.R. 378                  11/16/05
9 VAC 25-720-80                                                                             Amended    22:6 VA.R. 897                  12/28/05
9 VAC 25-720-90                                                                             Amended    22:2 VA.R. 237                   11/2/05
9 VAC 25-720-90                                                                             Amended    22:6 VA.R. 899                  12/28/05
9 VAC 25-720-110                                                                            Amended    22:3 VA.R. 380                  11/16/05
9 VAC 25-720-120                                                                            Amended    22:7 VA.R. 1021                  1/11/06
9 VAC 25-720-130                                                                            Amended    22:2 VA.R. 238                   11/2/05
9 VAC 25-720-130                                                                            Amended    22:6 VA.R. 900                  12/28/05
9 VAC 25-750-10 through 9 VAC 25-750-50                                                     Repealed   22:4 VA.R. 605                  11/30/05
9 VAC 25-780-10 through 9 VAC 25-780-190                                                    Added      22:2 VA.R. 238-246               11/2/05
9 VAC 25-780-30                                                                             Erratum    22:4 VA.R. 660                      --
9 VAC 25-780-50                                                                             Erratum    22:4 VA.R. 660                      --
9 VAC 25-780-90                                                                             Erratum    22:4 VA.R. 660                      --



 * Effective upon filing notice of approval by U.S. EPA.
 **
      Effective upon submittal of notice of EPA approval to the Registrar of Regulations.

 Volume 22, Issue 9                                                                                                         Monday, January 9, 2006

                                                                                   1223
 Cumulative Table of VAC Sections Adopted, Amended, or Repealed
SECTION NUMBER                                                       ACTION                CITE          EFFECTIVE DATE
9 VAC 25-780-140                                                    Erratum       22:4 VA.R. 660               --
Title 10. Finance and Financial Institutions
10 VAC 5-20-50                                                      Added         22:3 VA.R. 383             9/30/05
Title 11. Gaming
11 VAC 15-22-10 through 11 VAC 15-22-120                            Amended       22:6 VA.R. 901-915        12/28/05
11 VAC 15-22-35                                                     Added         22:6 VA.R. 906            12/28/05
11 VAC 15-31-10                                                     Amended       22:6 VA.R. 915             1/1/06
11 VAC 15-31-20                                                     Amended       22:6 VA.R. 917             1/1/06
11 VAC 15-31-30                                                     Amended       22:6 VA.R. 919             1/1/06
11 VAC 15-31-50                                                     Amended       22:6 VA.R. 922             1/1/06
11 VAC 15-31-60                                                     Amended       22:6 VA.R. 922             1/1/06
Title 12. Health
12 VAC 5-70-10 through 12 VAC 5-70-50 emer                          Repealed      22:5 VA.R. 713          3/1/06-2/28/07
12 VAC 5-71-10 through 12 VAC 5-71-170 emer                         Added         22:5 VA.R. 713-719      3/1/06-2/28/07
12 VAC 5-371-180                                                    Amended       22:7 VA.R. 1023             1/11/06
12 VAC 5-371-210                                                    Amended       22:7 VA.R. 1024             1/11/06
12 VAC 5-371-240                                                    Amended       22:7 VA.R. 1024             1/11/06
12 VAC 5-371-300                                                    Amended       22:7 VA.R. 1025             1/11/06
12 VAC 5-371-320                                                    Amended       22:7 VA.R. 1025             1/11/06
12 VAC 5-371-340                                                    Amended       22:7 VA.R. 1025             1/11/06
12 VAC 5-371-350                                                    Repealed      22:7 VA.R. 1026             1/11/06
12 VAC 5-371-360                                                    Amended       22:7 VA.R. 1026             1/11/06
12 VAC 5-371-370                                                    Amended       22:7 VA.R. 1027             1/11/06
12 VAC 5-371-410                                                    Amended       22:7 VA.R. 1027             1/11/06
12 VAC 5-371-425                                                    Added         22:7 VA.R. 1028             1/11/06
12 VAC 5-371-430 through 12 VAC 5-371-560                           Repealed      22:7 VA.R. 1028-1031        1/11/06
12 VAC 5-380                                                        Repealed      22:3 VA.R. 388               1/1/06
12 VAC 5-381-10 through 12 VAC 5-381-360                            Added         22:3 VA.R. 388-406           1/1/06
12 VAC 5-381-120                                                    Erratum       22:4 VA.R. 659                 --
12 VAC 5-410-260 through 12 VAC 5-410-290                           Amended       22:8 VA.R. 1116-1117        1/25/06
12 VAC 5-410-340 through 12 VAC 5-410-390                           Amended       22:8 VA.R. 1117-1119        1/25/06
12 VAC 5-410-442                                                    Amended       22:8 VA.R. 1119             1/25/06
12 VAC 5-410-444                                                    Amended       22:8 VA.R. 1121             1/25/06
12 VAC 5-410-445                                                    Amended       22:8 VA.R. 1125             1/25/06
12 VAC 5-410-450                                                    Amended       22:8 VA.R. 1128             1/25/06
12 VAC 5-410-480                                                    Amended       22:8 VA.R. 1128             1/25/06
12 VAC 5-410-490                                                    Amended       22:8 VA.R. 1128             1/25/06
12 VAC 5-410-500                                                    Amended       22:8 VA.R. 1128             1/25/06
12 VAC 5-410-510 through 12 VAC 5-410-640                           Repealed      22:8 VA.R. 1129-1130        1/25/06
12 VAC 5-410-650                                                    Amended       22:8 VA.R. 1130             1/25/06
12 VAC 5-410-655                                                    Added         22:8 VA.R. 1130             1/25/06
12 VAC 5-410-660 through 12 VAC 5-410-710                           Repealed      22:8 VA.R. 1131-1132        1/25/06
12 VAC 5-410-720                                                    Amended       22:8 VA.R. 1132             1/25/06
12 VAC 5-410-730                                                    Repealed      22:8 VA.R. 1132             1/25/06
12 VAC 5-410-740                                                    Repealed      22:8 VA.R. 1132             1/25/06
12 VAC 5-410-750                                                    Repealed      22:8 VA.R. 1132             1/25/06
12 VAC 5-410-760                                                    Amended       22:8 VA.R. 1134             1/25/06
12 VAC 5-410-770 through 12 VAC 5-410-1140                          Repealed      22:8 VA.R. 1134-1151        1/25/06
12 VAC 5-410-1250                                                   Amended       22:8 VA.R. 1151             1/25/06
12 VAC 5-410-1260                                                   Amended       22:8 VA.R. 1151             1/25/06
12 VAC 5-410-1290                                                   Amended       22:8 VA.R. 1151             1/25/06
12 VAC 5-410-1310 through 12 VAC 5-410-1340                         Repealed      22:8 VA.R. 1151-1152        1/25/06
12 VAC 5-410-1350                                                   Amended       22:8 VA.R. 1152             1/25/06
12 VAC 5-410-1360                                                   Repealed      22:8 VA.R. 1152             1/25/06
12 VAC 5-410-1370                                                   Repealed      22:8 VA.R. 1153             1/25/06


                                               Virginia Register of Regulations

                                                            1224
       Cumulative Table of VAC Sections Adopted, Amended, or Repealed
SECTION NUMBER                                                   ACTION             CITE              EFFECTIVE DATE
12 VAC 5-410-1380                                               Amended    22:8 VA.R. 1153                1/25/06
12 VAC 5-410-1390 through 12 VAC 5-410-1420, Appendices A, B,   Repealed   22:8 VA.R. 1153-1154           1/25/06
and C
12 VAC 5-500-10 through 12 VAC 5-500-350                        Repealed   22:3 VA.R. 407                     1/1/06
12 VAC 5-501-10 through 12 VAC 5-501-350                        Added      22:3 VA.R. 407-413                 1/1/06
12 VAC 30-30-60                                                 Added      22:8 VA.R. 1185              1/1/06-12/31/06
12 VAC 30-40-10                                                 Amended    22:8 VA.R. 1186              1/1/06-12/31/06
12 VAC 30-50-35                                                 Added      22:8 VA.R. 1187              1/1/06-12/31/06
12 VAC 30-50-75                                                 Added      22:8 VA.R. 1187              1/1/06-12/31/06
12 VAC 30-50-130                                                Amended    22:8 VA.R. 1155                   1/25/06
12 VAC 30-50-530                                                Amended    22:8 VA.R. 1188              1/1/06-12/31/06
12 VAC 30-60-61                                                 Amended    22:8 VA.R. 1157                   1/25/06
12 VAC 30-80-30                                                 Amended    22:8 VA.R. 1188              12/2/05-12/1/06
12 VAC 30-80-40                                                 Amended    22:3 VA.R. 414                   11/16/05
12 VAC 30-120-280                                               Amended    22:8 VA.R. 1178                    4/3/06
12 VAC 30-120-370                                               Amended    22:8 VA.R. 1180                    4/3/06
12 VAC 30-120-1600 through 12 VAC 30-120-1660 emer              Added      22:2 VA.R. 255-261           9/14/05-9/13/06
12 VAC 30-130-860 through 12 VAC 30-130-890                     Amended    22:8 VA.R. 1158-1163              1/25/06
12 VAC 30-141-10 emer                                           Amended    21:25 VA.R. 3553             8/1/05-7/31/06
12 VAC 30-141-10 emer                                           Amended    21:25 VA.R. 3561             8/1/05-7/31/06
12 VAC 30-141-40 emer                                           Amended    21:25 VA.R. 3555             8/1/05-7/31/06
12 VAC 30-141-100 emer                                          Amended    21:25 VA.R. 3555             8/1/05-7/31/06
12 VAC 30-141-100 emer                                          Amended    21:25 VA.R. 3563             8/1/05-7/31/06
12 VAC 30-141-120 emer                                          Amended    21:25 VA.R. 3564             8/1/05-7/31/06
12 VAC 30-141-150 emer                                          Amended    21:25 VA.R. 3564             8/1/05-7/31/06
12 VAC 30-141-160 emer                                          Amended    21:25 VA.R. 3557             8/1/05-7/31/06
12 VAC 30-141-170 emer                                          Repealed   21:25 VA.R. 3557             8/1/05-7/31/06
12 VAC 30-141-175 emer                                          Added      21:25 VA.R. 3559             8/1/05-7/31/06
12 VAC 30-141-200 emer                                          Amended    21:25 VA.R. 3560             8/1/05-7/31/06
12 VAC 30-141-660                                               Amended    22:8 VA.R. 1182                    4/3/06
12 VAC 30-141-810 through 12 VAC 30-141-1660 emer               Added      21:25 VA.R. 3566-3573         8/1/05-7/31/06
12 VAC 35-45-25                                                 Added      22:8 VA.R. 1191              12/2/05-12/1/06
12 VAC 35-105-925                                               Added      22:8 VA.R. 1193              12/6/05-12/5/06
Title 13. Housing
13 VAC 5-21-10 through 13 VAC 5-21-70                           Amended    22:3 VA.R. 416-419              11/16/05
13 VAC 5-21-45                                                  Added      22:3 VA.R. 418                  11/16/05
13 VAC 5-21-61                                                  Erratum    22:5 VA.R. 734                     --
13 VAC 5-31-20                                                  Amended    22:3 VA.R. 420                  11/16/05
13 VAC 5-31-40                                                  Amended    22:3 VA.R. 420                  11/16/05
13 VAC 5-31-50                                                  Amended    22:3 VA.R. 421                  11/16/05
13 VAC 5-31-80                                                  Amended    22:3 VA.R. 421                  11/16/05
13 VAC 5-31-100                                                 Amended    22:3 VA.R. 422                  11/16/05
13 VAC 5-31-190                                                 Amended    22:3 VA.R. 422                  11/16/05
13 VAC 5-31-200                                                 Added      22:3 VA.R. 422                  11/16/05
13 VAC 5-31-210                                                 Added      22:3 VA.R. 422                  11/16/05
13 VAC 5-51-21                                                  Amended    22:3 VA.R. 422                  11/16/05
13 VAC 5-51-31                                                  Amended    22:3 VA.R. 423                  11/16/05
13 VAC 5-51-41                                                  Amended    22:3 VA.R. 423                  11/16/05
13 VAC 5-51-51                                                  Amended    22:3 VA.R. 424                  11/16/05
13 VAC 5-51-51                                                  Erratum    22:5 VA.R. 734                     --
13 VAC 5-51-61                                                  Amended    22:3 VA.R. 425                  11/16/05
13 VAC 5-51-81                                                  Amended    22:3 VA.R. 425                  11/16/05
13 VAC 5-51-91                                                  Amended    22:3 VA.R. 432                  11/16/05
13 VAC 5-51-121                                                 Amended    22:3 VA.R. 433                  11/16/05
13 VAC 5-51-130                                                 Amended    22:3 VA.R. 434                  11/16/05
13 VAC 5-51-131                                                 Amended    22:3 VA.R. 434                  11/16/05

 Volume 22, Issue 9                                                                             Monday, January 9, 2006

                                                         1225
 Cumulative Table of VAC Sections Adopted, Amended, or Repealed
SECTION NUMBER                                                     ACTION                CITE           EFFECTIVE DATE
13 VAC 5-51-132                                                   Amended       22:3 VA.R. 435              11/16/05
13 VAC 5-51-133                                                   Amended       22:3 VA.R. 435              11/16/05
13 VAC 5-51-133.5                                                 Added         22:3 VA.R. 436              11/16/05
13 VAC 5-51-134                                                   Added         22:3 VA.R. 436              11/16/05
13 VAC 5-51-135                                                   Amended       22:3 VA.R. 436              11/16/05
13 VAC 5-51-135.5                                                 Added         22:3 VA.R. 437              11/16/05
13 VAC 5-51-136                                                   Repealed      22:3 VA.R. 437              11/16/05
13 VAC 5-51-145                                                   Added         22:3 VA.R. 437              11/16/05
13 VAC 5-51-150                                                   Amended       22:3 VA.R. 438              11/16/05
13 VAC 5-51-152                                                   Added         22:3 VA.R. 442              11/16/05
13 VAC 5-51-154                                                   Added         22:3 VA.R. 442              11/16/05
13 VAC 5-51-155                                                   Amended       22:3 VA.R. 443              11/16/05
13 VAC 5-62-10 through 13 VAC 5-62-480                            Repealed      22:3 VA.R. 444              11/16/05
13 VAC 5-63-10 through 13 VAC 5-63-550                            Added         22:3 VA.R. 444-497          11/16/05
13 VAC 5-63-120                                                   Erratum       22:5 VA.R. 734                  --
13 VAC 5-63-210                                                   Erratum       22:5 VA.R. 734                  --
13 VAC 5-63-270                                                   Erratum       22:5 VA.R. 734                  --
13 VAC 5-63-300                                                   Erratum       22:5 VA.R. 734                  --
13 VAC 5-91-10                                                    Amended       22:3 VA.R. 498              11/16/05
13 VAC 5-91-20                                                    Amended       22:3 VA.R. 499              11/16/05
13 VAC 5-91-40                                                    Amended       22:3 VA.R. 499              11/16/05
13 VAC 5-91-50                                                    Amended       22:3 VA.R. 499              11/16/05
13 VAC 5-91-70                                                    Amended       22:3 VA.R. 499              11/16/05
13 VAC 5-91-80                                                    Amended       22:3 VA.R. 499              11/16/05
13 VAC 5-91-90                                                    Amended       22:3 VA.R. 499              11/16/05
13 VAC 5-91-110 through 13 VAC 5-91-220                           Amended       22:3 VA.R. 499-501          11/16/05
13 VAC 5-91-245 through 13 VAC 5-91-270                           Amended       22:3 VA.R. 502              11/16/05
13 VAC 5-112-10 through 13 VAC 5-112-560 emer                     Added         22:4 VA.R. 630-649       9/30/05-9/29/06
13 VAC 10-160-10                                                  Amended       22:7 VA.R. 1032              12/1/05
13 VAC 10-160-30                                                  Amended       22:7 VA.R. 1033              12/1/05
13 VAC 10-160-55                                                  Amended       22:7 VA.R. 1034              12/1/05
13 VAC 10-160-60                                                  Amended       22:7 VA.R. 1034              12/1/05
13 VAC 10-160-80                                                  Amended       22:7 VA.R. 1035              12/1/05
13 VAC 10-160-90                                                  Amended       22:7 VA.R. 1035              12/1/05
Title 14. Insurance
14 VAC 5-170-20 through 14 VAC 5-170-105                          Amended       21:25 VA.R. 3477-3490       8/15/05
14 VAC 5-170-120                                                  Amended       21:25 VA.R. 3490            8/15/05
14 VAC 5-170-130                                                  Amended       21:25 VA.R. 3492            8/15/05
14 VAC 5-170-150                                                  Amended       21:25 VA.R. 3493            8/15/05
14 VAC 5-170-150                                                  Erratum       22:1 VA.R. 114                 --
14 VAC 5-170-160                                                  Amended       21:25 VA.R. 3525            8/15/05
14 VAC 5-170-190 Appendices A through D                           Amended       21:25 VA.R. 3527-3548       8/15/05
Title 16. Labor and Employment
16 VAC 15-21-20                                                   Amended       22:4 VA.R. 606              12/1/05
16 VAC 15-21-30                                                   Amended       22:4 VA.R. 606              12/1/05
Title 18. Professional and Occupational Licensing
18 VAC 47-20-10 emer                                              Amended       21:25 VA.R. 3574         8/1/05-7/31/06
18 VAC 47-20-35 emer                                              Added         21:25 VA.R. 3575         8/1/05-7/31/06
18 VAC 47-20-70 emer                                              Amended       21:25 VA.R. 3575         8/1/05-7/31/06
18 VAC 47-20-70                                                   Amended       22:6 VA.R. 923               1/1/06
18 VAC 47-20-140 emer                                             Amended       21:25 VA.R. 3575         8/1/05-7/31/06
18 VAC 47-20-140                                                  Amended       22:6 VA.R. 923               1/1/06
18 VAC 47-20-240 emer                                             Repealed      21:25 VA.R. 3575         8/1/05-7/31/06
18 VAC 47-20-250 emer                                             Added         21:25 VA.R. 3576         8/1/05-7/31/06
18 VAC 47-20-260 emer                                             Added         21:25 VA.R. 3576         8/1/05-7/31/06


                                             Virginia Register of Regulations

                                                          1226
       Cumulative Table of VAC Sections Adopted, Amended, or Repealed
SECTION NUMBER                                        ACTION             CITE             EFFECTIVE DATE
18 VAC 47-20-270 emer                                Added      21:25 VA.R. 3576            8/1/05-7/31/06
18 VAC 50-22-10                                      Amended    22:8 VA.R. 1163                  2/1/06
18 VAC 50-22-20                                      Amended    22:8 VA.R. 1164                  2/1/06
18 VAC 50-22-30                                      Amended    22:8 VA.R. 1165                  2/1/06
18 VAC 50-22-50                                      Amended    22:8 VA.R. 1168                  2/1/06
18 VAC 50-22-60                                      Amended    22:8 VA.R. 1169                  2/1/06
18 VAC 50-22-260                                     Amended    22:8 VA.R. 1169                  2/1/06
18 VAC 50-22-270                                     Repealed   22:8 VA.R. 1171                  2/1/06
18 VAC 60-20-10 emer                                 Amended    22:1 VA.R. 106              9/1/05-8/31/06
18 VAC 60-20-20 emer                                 Amended    22:1 VA.R. 107              9/1/05-8/31/06
18 VAC 60-20-71 emer                                 Amended    22:1 VA.R. 107              9/1/05-8/31/06
18 VAC 60-20-105 emer                                Amended    22:1 VA.R. 107              9/1/05-8/31/06
18 VAC 60-20-106 emer                                Amended    22:1 VA.R. 108              9/1/05-8/31/06
18 VAC 60-20-210 emer                                Amended    22:1 VA.R. 108              9/1/05-8/31/06
18 VAC 60-20-230 emer                                Amended    22:1 VA.R. 109              9/1/05-8/31/06
18 VAC 76-20-20 emer                                 Amended    21:25 VA.R. 3577           7/25/05-7/24/06
18 VAC 76-20-30 emer                                 Amended    21:25 VA.R. 3577           7/25/05-7/24/06
18 VAC 76-20-50 emer                                 Amended    21:25 VA.R. 3577           7/25/05-7/24/06
18 VAC 76-20-60 emer                                 Amended    21:25 VA.R. 3577           7/25/05-7/24/06
18 VAC 76-20-70 emer                                 Added      21:25 VA.R. 3578           7/25/05-7/24/06
18 VAC 85-20                                         Erratum    22:1 VA.R. 114                     --
18 VAC 85-20-25                                      Added      22:1 VA.R. 82                  10/19/05
18 VAC 85-20-26                                      Added      22:1 VA.R. 83                  10/19/05
18 VAC 85-20-27                                      Added      22:1 VA.R. 83                  10/19/05
18 VAC 85-20-28                                      Added      22:1 VA.R. 83                  10/19/05
18 VAC 85-20-29                                      Added      22:1 VA.R. 84                  10/19/05
18 VAC 85-20-30                                      Amended    22:1 VA.R. 84                  10/19/05
18 VAC 85-20-40                                      Amended    22:1 VA.R. 84                  10/19/05
18 VAC 85-20-50                                      Amended    22:1 VA.R. 84                  10/19/05
18 VAC 85-20-80                                      Amended    22:1 VA.R. 84                  10/19/05
18 VAC 85-20-90                                      Amended    22:1 VA.R. 84                  10/19/05
18 VAC 85-20-100                                     Amended    22:1 VA.R. 85                  10/19/05
18 VAC 85-20-105                                     Amended    22:1 VA.R. 85                  10/19/05
18 VAC 85-40-66                                      Amended    22:7 VA.R. 1036                 1/11/06
18 VAC 85-40-85 through 18 VAC 85-40-91              Added      22:1 VA.R. 87-89               10/19/05
18 VAC 85-50-175 through 18 VAC 85-50-184            Added      22:1 VA.R. 89-91               10/19/05
18 VAC 85-80-120 through 18 VAC 85-80-125            Added      22:1 VA.R. 92-93               10/19/05
18 VAC 85-80-120 through 18 VAC 85-80-125            Erratum    22:4 VA.R. 659                     --
18 VAC 85-101-161 through 18 VAC 85-101-166          Added      22:1 VA.R. 94-95               10/19/05
18 VAC 85-110-175 through 18 VAC 85-110-183          Added      22:1 VA.R. 95-98               10/19/05
18 VAC 85-120-50                                     Amended    22:2 VA.R. 254                 12/17/05
18 VAC 85-120-155 through 18 VAC 85-120-162          Added      22:1 VA.R. 98-100              10/19/05
18 VAC 90-25-80                                      Amended    22:8 VA.R. 1171                 1/25/06
18 VAC 105-20-5                                      Added      22:4 VA.R. 607                 11/30/05
18 VAC 105-20-10                                     Amended    22:4 VA.R. 607                 11/30/05
18 VAC 105-20-15                                     Amended    22:4 VA.R. 607                 11/30/05
18 VAC 105-20-16                                     Added      22:4 VA.R. 608                 11/30/05
18 VAC 105-20-20                                     Amended    22:4 VA.R. 608                 11/30/05
18 VAC 105-20-70                                     Amended    22:4 VA.R. 608                 11/30/05
18 VAC 105-30-10 through 18 VAC 105-30-120           Repealed   22:4 VA.R. 606                 11/30/05
18 VAC 110-20-20                                     Amended    22:2 VA.R. 246                  11/2/05
18 VAC 110-20-320                                    Amended    22:7 VA.R. 1037                 1/11/06
18 VAC 112-20-135                                    Amended    22:1 VA.R. 100                 10/19/05
18 VAC 112-20-150                                    Amended    22:1 VA.R. 101                 10/19/05
18 VAC 112-20-151                                    Repealed   22:1 VA.R. 101                 10/19/05
18 VAC 115-20-20                                     Amended    22:2 VA.R. 249                  1/14/06

 Volume 22, Issue 9                                                                 Monday, January 9, 2006

                                              1227
 Cumulative Table of VAC Sections Adopted, Amended, or Repealed
SECTION NUMBER                                                      ACTION                CITE        EFFECTIVE DATE
18 VAC 115-20-130                                                  Amended       22:7 VA.R. 1039          1/11/06
18 VAC 115-20-140                                                  Amended       22:7 VA.R. 1040          1/11/06
18 VAC 115-20-150                                                  Amended       22:7 VA.R. 1041          1/11/06
18 VAC 115-30-30                                                   Amended       22:2 VA.R. 250           1/21/06
18 VAC 115-50-110                                                  Amended       22:7 VA.R. 1041          1/11/06
18 VAC 115-50-120                                                  Amended       22:7 VA.R. 1042          1/11/06
18 VAC 115-50-130                                                  Amended       22:7 VA.R. 1043          1/11/06
18 VAC 115-60-130                                                  Amended       22:7 VA.R. 1043          1/11/06
18 VAC 115-60-140                                                  Amended       22:7 VA.R. 1045          1/11/06
18 VAC 115-60-150                                                  Amended       22:7 VA.R. 1045          1/11/06
18 VAC 150-20-100                                                  Amended       21:26 VA.R. 3701         10/5/05
Title 20. Public Utilities and Telecommunications
20 VAC 5-400-80                                                    Repealed      22:4 VA.R. 612            11/1/05
20 VAC 5-427-10                                                    Erratum       22:1 VA.R. 114               --
20 VAC 5-427-10 through 20 VAC 5-427-170                           Added         22:4 VA.R. 613-625        11/1/05
20 VAC 5-427-100                                                   Erratum       22:1 VA.R. 114               --
20 VAC 5-427-110                                                   Erratum       22:1 VA.R. 114               --
20 VAC 5-427-130                                                   Erratum       22:1 VA.R. 114               --
Title 22. Social Services
22 VAC 40-71-10 emer                                               Amended       22:2 VA.R. 261       12/28/05-12/27/06
22 VAC 40-71-50 emer                                               Amended       22:2 VA.R. 266       12/28/05-12/27/06
22 VAC 40-71-55 emer                                               Added         22:2 VA.R. 266       12/28/05-12/27/06
22 VAC 40-71-60 emer                                               Amended       22:2 VA.R. 267       12/28/05-12/27/06
22 VAC 40-71-65 emer                                               Added         22:2 VA.R. 269       12/28/05-12/27/06
22 VAC 40-71-80 emer                                               Amended       22:2 VA.R. 269       12/28/05-12/27/06
22 VAC 40-71-120 emer                                              Amended       22:2 VA.R. 270       12/28/05-12/27/06
22 VAC 40-71-130 emer                                              Amended       22:2 VA.R. 270       12/28/05-12/27/06
22 VAC 40-71-150 emer                                              Amended       22:2 VA.R. 270       12/28/05-12/27/06
22 VAC 40-71-400 emer                                              Amended       22:2 VA.R. 274       12/28/05-12/27/06
22 VAC 40-71-485 emer                                              Added         22:2 VA.R. 277       12/28/05-12/27/06
22 VAC 40-71-485                                                   Erratum       22:4 VA.R. 659               --
22 VAC 40-71-630 emer                                              Amended       22:2 VA.R. 278       12/28/05-12/27/06
22 VAC 40-71-630                                                   Erratum       22:4 VA.R. 660               --
22 VAC 40-71-650 emer                                              Amended       22:2 VA.R. 279       12/28/05-12/27/06
22 VAC 40-71-660 emer                                              Repealed      22:2 VA.R. 280       12/28/05-12/27/06
22 VAC 40-71-670 emer                                              Amended       22:2 VA.R. 280       12/28/05-12/27/06
22 VAC 40-71-700 emer                                              Amended       22:2 VA.R. 281       12/28/05-12/27/06
22 VAC 40-80-120 emer                                              Amended       22:2 VA.R. 285       12/28/05-12/27/06
22 VAC 40-80-340 emer                                              Amended       22:2 VA.R. 286       12/28/05-12/27/06
22 VAC 40-80-345 emer                                              Added         22:2 VA.R. 287       12/28/05-12/27/06
22 VAC 40-730-10                                                   Amended       22:2 VA.R. 251            11/2/05
22 VAC 40-730-115                                                  Amended       22:2 VA.R. 252            11/2/05




                                              Virginia Register of Regulations

                                                           1228
                                                      PETITIONS FOR RULEMAKING
                               PETITIONS FOR RULEMAKING




        TITLE 18. PROFESSIONAL AND
         OCCUPATIONAL LICENSING

                   BOARD OF MEDICINE
                       Agency Decision
Title of Regulation: 18 VAC 85-20. Regulations Governing
the Practice of Medicine, Osteopathic Medicine, Podiatry
and Chiropractic.
Statutory Authority: § 54.1-2400 of the Code of Virginia.
Name of Petitioner: David A. Ellington, M.D., on behalf of the
Medical Society of Virginia.
Nature of Petitioner's Request:    Amend regulations to
eliminate the requirement that 15 of the Type 1 hours of
continuing education be earned in face-to-face or other
interactive courses.
Agency's Decision: Request granted.
Statement of Reasons for Decision: At the meeting on
December 16, 2005, the Legislative Committee recommended
that the board proceed with the publication of a Notice of
Intended Regulatory Action to consider elimination of the face-
to-face hours and the ratio of Type 1 and Type 2 hours. Also,
on December 16, the Executive Committee adopted the
recommendation.
Agency Contact: William L. Harp, M.D., Executive Director,
Board of Medicine, 6603 West Broad Street, Richmond, VA
23230-1712, telephone (804) 662-7423, FAX (804) 662-9943,
or e-mail william.harp@dhp.virginia.gov.
       VA.R. Doc. No. R06-94; Filed December 20, 2005, 9:16 a.m.




Volume 22, Issue 9                                                               Monday, January 9, 2006

                                                                   1229
                    NOTICES OF INTENDED REGULATORY ACTION

                                                                     Symbol Key
                                          † Indicates entries since last publication of the Virginia Register



               TITLE 2. AGRICULTURE                                          action plan to meet federal requirements; (iv) amend
                                                                             references to new and existing dams to clarify that the
                                                                             regulations refer to all dams unless otherwise specified; (v)
       VIRGINIA PESTICIDE CONTROL BOARD                                      improve the applicability and consistency of Table 1 in 4 VAC
                                                                             50-20-50 and improve the risk classification system; (vi)
                                                                             establish permit application fees for the administration of the
         Notice of Intended Regulatory Action
                                                                             dam safety program; (vii) amend or remove the forms that are
Notice is hereby given in accordance with § 2.2-4007 of the                  incorporated by reference; (viii) clarify the meanings of
Code of Virginia that the Virginia Pesticide Control Board                   terminologies such as "significantly," "appropriate," and
intends to consider amending regulations entitled 2 VAC 20-                  "reasonable" as well as the threshold at which "probable"
20, Rules and Regulations for Enforcement of the Virginia                    becomes "possible"; and (ix) revise the regulations as needed
Pesticide Law, and promulgating regulations entitled 2 VAC                   to improve the administration and implementation of the
20-25, Rules and Regulations for the Registration of                         Virginia Dam Safety Program.
Pesticides and Pesticide Products Under Authority of the
                                                                             The agency intends to hold a public hearing on the proposed
Virginia Pesticide Control Act. The purpose of the proposed
                                                                             action after publication in the Virginia Register.
action is to promulgate a new regulation that deals solely with
all processes and procedures relating to the registration and                Statutory Authority: § 10.1-604 of the Code of Virginia.
subsequent sale and use of pesticides and pesticide products
in Virginia as well as to review 2 VAC 20-20 for effectiveness               Public comments may be submitted until February 24, 2006.
and continued need. The agency invites comment on whether                    Contact: David C. Dowling, Policy, Planning and Budget
there should be an advisor.                                                  Director, Department of Conservation and Recreation, 203
The agency does not intend to hold a public hearing on the                   Governor St., Suite 302, Richmond, VA 23219, telephone
proposed regulation after publication in the Virginia Register.              (804) 786-2291, FAX (804) 786-6141 or e-mail
                                                                             david.dowling@dcr.virginia.gov.
Statutory Authority: § 3.1-249.30 of the Code of Virginia.
                                                                                      VA.R. Doc. No. R06-130; Filed December 7, 2005, 9:51 a.m.
Public comments may be submitted until January 20, 2006.
Contact: Dr. W. Wayne Surles, Program Manager, Virginia                                 Notice of Intended Regulatory Action
Pesticide Control Board, P.O. Box 1163, Richmond, VA
23218, telephone (804) 371-6558, FAX (804) 786-9149 or                       Notice is hereby given in accordance with § 2.2-4007 of the
e-mail wayne.surles@vdacs.virginia.gov.                                      Code of Virginia that the Virginia Soil and Water Conservation
                                                                             Board intends to consider amending regulations entitled
        VA.R. Doc. No. R06-110; Filed November 8, 2005, 3:51 p.m.
                                                                             4 VAC 50-60, Stormwater Management Regulations. The
      ––––––––––––––––––                                                     Virginia Stormwater Management Program was created by
                                                                             Chapter 372 of the 2004 Virginia Acts of Assembly (HB1177)
                                                                             and this action transferred the responsibility of the permitting
 TITLE 4. CONSERVATION AND NATURAL                                           programs for MS4s and construction activities from the State
                                                                             Water Control Board and DEQ to the Virginia Soil and Water
             RESOURCES                                                       Conservation Board and DCR. The law authorized the board
                                                                             to delegate to the department or to an approved locality any of
                                                                             the powers and duties vested in it except the adoption and
    VIRGINIA SOIL AND WATER CONSERVATION
                                                                             promulgation of regulations. The purpose of this proposed
                    BOARD                                                    action is to consider the development and adoption of revised
                                                                             regulations to establish minimal criteria of a local stormwater
         Notice of Intended Regulatory Action                                management program and board approval procedures for the
                                                                             delegation of the stormwater management program for
Notice is hereby given in accordance with § 2.2-4007 of the
                                                                             construction activities, or parts thereof, to localities per §10.1-
Code of Virginia that the Virginia Soil and Water Conservation
                                                                             603.3 of the Code of Virginia; and to revise the regulation, as
Board intends to consider amending regulations entitled
                                                                             needed, to improve the administration and implementation of
4 VAC 50-20, Impounding Structure Regulations. The
                                                                             the Virginia Stormwater Management Act (§ 10.1-603.2 et
purpose of the proposed action is to (i) establish an alternative
                                                                             seq.) per the requirements set forth in the federal Clean Water
procedure (decision matrix) that would allow for the evaluation
                                                                             Act and its attendant regulations.
of spillway design floods (SDF) less than the probable
maximum flood (PMF) where there would be unreasonable or                     The agency intends to hold a public hearing on the proposed
significant increase in hazard to life and property; (ii) establish          action after publication in the Virginia Register.
alteration permit requirements similar to construction permit
requirements; (iii) expand the requirements of an emergency

                                                         Virginia Register of Regulations

                                                                        1230
                                                                    Notices of Intended Regulatory Action
Statutory Authority: §§ 10.1-107 and 10.1-603.4 of the Code            business or (ii) attend educational or other related community
of Virginia.                                                           activity programs outside of a juvenile correctional facility.
                                                                       Chapter 648 requires the department to provide juveniles
Public comments may be submitted until February 24, 2006.              committed to the department with opportunities to work and
Contact: David C. Dowling, Policy, Planning and Budget                 participate in career training or technical education programs
Director, Department of Conservation and Recreation, 203               as operated by DJJ or by the Department of Correctional
Governor St., Suite 302, Richmond, VA 23219, telephone                 Education (DCE) and sets forth requirements to be included in
(804) 786-2291, FAX (804) 786-6141 or e-mail                           the regulation, including eligibility for work release,
david.dowling@dcr.virginia.gov.                                        compensation, custody, and penalties for violating the terms
                                                                       of work release.
       VA.R. Doc. No. R06-128; Filed December 7, 2005, 10:04 a.m.
                                                                       The agency does not intend to hold a public hearing on the
                                                                       proposed regulation after publication in the Virginia Register.
         Notice of Intended Regulatory Action
                                                                       Statutory Authority: § 66-10 of the Code of Virginia.
Notice is hereby given in accordance with § 2.2-4007 of the
Code of Virginia that the Virginia Soil and Water Conservation         Public comments may be submitted until February 8, 2006.
Board intends to consider amending regulations entitled                Contact: Donald R. Carignan, Regulatory Coordinator,
4 VAC 50-60, Stormwater Management Regulations. The                    Department of Juvenile Justice, 700 E. Franklin Street, P.O.
purpose of the proposed action is to consider the development          Box 1110, Richmond, VA 23218-1110, telephone (804) 371-
and adoption of regulations that establish or revise the               0743,      FAX       (804)     371-0773,      or      e-mail
statewide stormwater permit fees at a level sufficient to carry        don.carignan@djj.virginia.gov.
out the stormwater management program per § 10.1-603.4.5
of the Code of Virginia; and to revise the related provisions in             VA.R. Doc. No. R06-139; Filed December 14, 2005, 11:42 a.m.
the regulations, as needed, to improve the administration and
implementation of fees under the Virginia Stormwater                         ––––––––––––––––––
Management Act (§ 10.1-603.2 et seq.).
The agency intends to hold a public hearing on the proposed                               TITLE 12. HEALTH
action after publication in the Virginia Register.
Statutory Authority: §§ 10.1-107 and 10.1-603.4 of the Code                  DEPARTMENT OF MEDICAL ASSISTANCE
of Virginia.                                                                            SERVICES
Public comments may be submitted until February 24, 2006.
                                                                                Notice of Intended Regulatory Action
Contact: David C. Dowling, Policy, Planning and Budget
Director, Department of Conservation and Recreation, 203               Notice is hereby given in accordance with § 2.2-4007 of the
Governor St., Suite 302, Richmond, VA 23219, telephone                 Code of Virginia that the Department of Medical Assistance
(804) 786-2291, FAX (804) 786-6141 or e-mail                           Services intends to consider amending regulations entitled
david.dowling@dcr.virginia.gov.                                        12 VAC      30-30,   Groups     Covered   and     Agencies
                                                                       Responsible for Eligibility Determinations; 12 VAC 30-30,
       VA.R. Doc. No. R06-129; Filed December 7, 2005, 10:04 a.m.
                                                                       Eligibility Conditions and Requirements; and 12 VAC 30-
      ––––––––––––––––––                                               50, Amount, Duration and Scope of Medical and Remedial
                                                                       Care Services. The purpose of the proposed action is to
                                                                       implement a new program for prescription drug coverage for
       TITLE 6. CRIMINAL JUSTICE AND                                   Medicaid/Medicare dual eligibles.
                CORRECTIONS                                            The agency does not intend to hold a public hearing on the
                                                                       proposed regulation after publication in the Virginia Register.
        STATE BOARD OF JUVENILE JUSTICE                                Statutory Authority: §§ 32.1-324 and 32.1-325 of the Code of
                                                                       Virginia.
        † Notice of Intended Regulatory Action                         Public comments may be submitted until January 27, 2006.
Notice is hereby given in accordance with § 2.2-4007 of the            Contact: Jack Quigley, Policy and Research Division,
Code of Virginia that the State Board of Juvenile Justice              Department of Medical Assistance Services, 600 E. Broad St.,
intends to consider adopting regulations entitled 6 VAC 35-            Suite 1300, Richmond, VA 23219, telephone (804) 786-1300,
190, Regulations Governing Juvenile Work Release                       FAX          (804)        786-1680         or        e-mail
Programs. The purpose of the proposed action is establish a            jack.quigley@dmas.virginia.gov.
new regulation, mandated by Chapter 648 of the 2005 Acts of
                                                                              VA.R. Doc. No. R06-132; Filed December 7, 2005, 9:51 a.m.
Assembly, that sets forth the rules and criteria by which the
department may operate work release programs whereby
committed juveniles may (i) be employed by private
individuals, corporations, or state agencies at places of


Volume 22, Issue 9                                                                                               Monday, January 9, 2006

                                                                    1231
Notices of Intended Regulatory Action
         Notice of Intended Regulatory Action                                       TITLE 22. SOCIAL SERVICES
Notice is hereby given in accordance with § 2.2-4007 of the
Code of Virginia that the Department of Medical Assistance
                                                                                  STATE BOARD OF SOCIAL SERVICES
Services intends to consider amending regulations entitled
12 VAC 30-80, Methods and Standards for Establishing
Payment Rates; Other Types of Care. The purpose of the                             Notice of Intended Regulatory Action
proposed action is to implement a new supplemental payment               Notice is hereby given in accordance with § 2.2-4007 of the
method for faculty in dental pediatric residency programs.               Code of Virginia that the State Board of Social Services
The agency does not intend to hold a public hearing on the               intends to consider repealing regulations entitled 22 VAC 40-
proposed regulation after publication in the Virginia Register.          20, Food Stamp Program - Income Conversion Method.
                                                                         The purpose of the proposed action is to repeal 22 VAC 40-
Statutory Authority: §§ 32.1-324 and 32.1-325 of the Code of             20, which requires local social services workers to use
Virginia.                                                                conversion factors of 4.3 for weekly income amounts and 2.15
Public comments may be submitted until January 25, 2006.                 for biweekly amounts when calculating income to determine
                                                                         eligibility and benefit level for the Food Stamp Program. The
Contact: William Lessard, Provider Reimbursement Division,               provisions of this regulation will be included in a proposed new
Department of Medical Assistance Services, 600 E. Broad St.,             regulation, 22 VAC 40-601, Food Stamp Program.
Suite 1300, Richmond, VA 23219, telephone (804) 225-4593,
FAX           (804)       786-1680         or        e-mail              The agency does not intend to hold a public hearing on the
william.lessard@dmas.virginia.gov.                                       proposed regulation after publication in the Virginia Register.

       VA.R. Doc. No. R06-125; Filed December 2, 2005, 4:36 p.m.         Statutory Authority: § 63.2-217 of the Code of Virginia.
                                                                         Public comments may be submitted until January 25, 2006.
STATE MENTAL HEALTH, MENTAL RETARDATION                                  Contact: Celestine Jackson, Program Specialist, Division of
  AND SUBSTANCE ABUSE SERVICES BOARD                                     Benefit Programs, Department of Social Services, 7 N. 8th St.,
                                                                         Richmond, VA 23219, telephone (804) 726-7376, FAX (804)
         Notice of Intended Regulatory Action                            726-7356 or e-mail celestine.jackson@dss.virginia.gov.
                                                                                 VA.R. Doc. No. R06-135; Filed December 7, 2005, 10:32 a.m.
Notice is hereby given in accordance with § 2.2-4007 of the
Code of Virginia that the State Mental Health, Mental
Retardation And Substance Abuse Services Board intends to                          Notice of Intended Regulatory Action
consider amending regulations entitled 12 VAC 35-45,
Regulations for Providers of Mental Health, Mental                       Notice is hereby given in accordance with § 2.2-4007 of the
Retardation and Substance Abuse Residential Services                     Code of Virginia that the State Board of Social Services
for Children. The purpose of the proposed action is to add               intends to consider repealing regulations entitled 22 VAC 40-
provisions for issuing an order of summary suspension of the             540, Allowance of Telephone Costs in the Food Stamp
license to operate a group home or residential facility for              Program. The purpose of the proposed action is to repeal 22
children.                                                                VAC 40-20, which requires local social services workers to
                                                                         use a standard telephone amount when calculating shelter
The agency does not intend to hold a public hearing on the               expenses to determine eligibility and benefit level for the Food
proposed regulation after publication in the Virginia Register.          Stamp Program. The provisions of this regulation will be
Statutory Authority: § 37.2-203 of the Code of Virginia.                 included in a proposed new regulation, 22 VAC 40-601, Food
                                                                         Stamp Program.
Public comments may be submitted until January 25, 2006.
                                                                         The agency does not intend to hold a public hearing on the
Contact: Leslie Anderson, Director, Office of Licensing,                 proposed regulation after publication in the Virginia Register.
Department of Mental Health, Mental Retardation and
Substance Abuse Services, P.O. Box 1797, Richmond, VA                    Statutory Authority: § 63.2-217 of the Code of Virginia.
23218-1797, telephone (804) 371-6885, FAX (804) 692-0066                 Public comments may be submitted until January 25, 2006.
or e-mail leslie.anderson@co.dmhmrsas.virginia.gov.
                                                                         Contact: Celestine Jackson, Program Specialist, Division of
       VA.R. Doc. No. R06-123; Filed December 2, 2005, 11:27 a.m.
                                                                         Benefit Programs, Department of Social Services, 7 N. 8th St.,
      ––––––––––––––––––                                                 Richmond, VA 23219, telephone (804) 726-7376, FAX (804)
                                                                         726-7356 or e-mail celestine.jackson@dss.virginia.gov.
                                                                                 VA.R. Doc. No. R06-136; Filed December 7, 2005, 10:32 a.m.




                                                        Virginia Register of Regulations

                                                                     1232
                                                                    Notices of Intended Regulatory Action
         Notice of Intended Regulatory Action                          Contact: L. Richard Martin, Jr., Manager, Office of Legislative
                                                                       and Regulatory Affairs, Department of Social Services, 7 N.
Notice is hereby given in accordance with § 2.2-4007 of the            8th St., Richmond, VA 23219, telephone (804) 726-7902 or e-
Code of Virginia that the State Board of Social Services               mail richard.martin@dss.virginia.gov.
intends to consider repealing regulations entitled 22 VAC 40-
600,    Food     Stamp      Program       -     Administrative                VA.R. Doc. No. R05-109; Filed December 16, 2005, 1:47 p.m.
Disqualification Hearings. The purpose of the proposed
action is to repeal 22 VAC 40-600, which establishes an                      ––––––––––––––––––
administrative process to determine if an individual has
committed an intentional act against the Food Stamp
Program. The provisions of this regulation will be included in a
proposed new regulation, 22 VAC 40-601, Food Stamp
Program.
The agency does not intend to hold a public hearing on the
proposed regulation after publication in the Virginia Register.
Statutory Authority: § 63.2-217 of the Code of Virginia.
Public comments may be submitted until January 25, 2006.
Contact: Celestine Jackson, Program Specialist, Division of
Benefit Programs, Department of Social Services, 7 N. 8th St.,
Richmond, VA 23219, telephone (804) 726-7376, FAX (804)
726-7356 or e-mail celestine.jackson@dss.virginia.gov.
       VA.R. Doc. No. R06-137; Filed December 7, 2005, 10:32 a.m.



         Notice of Intended Regulatory Action
Notice is hereby given in accordance with § 2.2-4007 of the
Code of Virginia that the State Board of Social Services
intends to consider adopting regulations entitled 22 VAC 40-
601, Food Stamp Program. The purpose of the proposed
action is to promulgate a new regulation for determining
eligibility and benefit level for the Food Stamp Program. The
new regulation will establish calculation methods for
determining monthly income, require use of a standard
amount for telephone expenses, and establish a process for
administrative hearings to determine when intentional acts
have been committed. 22 VAC 40-20, 22 VAC 40-540, and
22 VAC 40-600 will be repealed and provisions incorporated
into the proposed regulation, 22 VAC 40-601.
The agency does not intend to hold a public hearing on the
proposed regulation after publication in the Virginia Register.
Statutory Authority: § 63.2-217 of the Code of Virginia.
Public comments may be submitted until January 25, 2006.
Contact: Celestine Jackson, Program Specialist, Division of
Benefit Programs, Department of Social Services, 7 N. 8th St.,
Richmond, VA 23219, telephone (804) 726-7376, FAX (804)
726-7356 or e-mail celestine.jackson@dss.virginia.gov.
       VA.R. Doc. No. R06-138; Filed December 7, 2005, 10:32 a.m.



   † Withdrawal of Notice of Intended Regulatory
                      Action
At its meeting on December 14, 2005, the State Board of
Social Services voted to withdraw the Notice of Intended
Regulatory Action for 22 VAC 40-705, Child Protective
Services, that was published 21:11 VA.R. 1279 February 7,
2005.

Volume 22, Issue 9                                                                                                Monday, January 9, 2006

                                                                    1233
                                       PROPOSED REGULATIONS
                                For information concerning Proposed Regulations, see Information Page.

                                                                Symbol Key
                         Roman type indicates existing text of regulations. Italic type indicates proposed new text.
                                Language which has been stricken indicates proposed text for deletion.



              TITLE 9. ENVIRONMENT                                         formatting, consolidating and reordering of text to improve
                                                                           readability; clarification of existing requirements; prohibiting
                                                                           the use of this general permit for wetlands, open waters and
           STATE WATER CONTROL BOARD                                       streams that are protected by deed restrictions or similar
                                                                           protective covenants imposed by previous state or federal
REGISTRAR'S NOTICE: The following regulations filed by the                 permit actions; extending the life of the general permit
State Water Control Board are exempt from the Administrative               regulations to 10 years instead of the current five years;
Process Act in accordance with § 2.2-4006 A 9 of the Code of               reiteration of provisions in the main VWP regulation for
Virginia, which exempts general permits issued by the State                purposes of emphasis; and amending the thresholds of
Water Control Board pursuant to the State Water Control Law                coverage for wetlands and open waters and stream
(§ 62.1-44.2 et seq.), Chapter 24 (§ 62.1-242 et seq.) of Title            impacts, which were previously combined together as
62.1 and Chapter 25 (§ 62.1-254 et seq.) of Title 62.1 of the              "surface waters." The proposed revisions to General Permit
Code of Virginia if the board (i) provides a Notice of Intended            WP1 govern the permanent and temporary impacts to less
Regulatory Action in conformance with the provisions of § 2.2-             than 1/2 acre of nontidal wetlands or open water and up to
4007 B, (ii) following the passage of 30 days from the                     300 linear feet of nontidal stream bed.
publication of the Notice of Intended Regulatory Action, forms
                                                                        9 VAC 25-660-10. Definitions.
a technical advisory committee composed of relevant
stakeholders, including potentially affected citizens groups, to        The words and terms used in this chapter shall have the
assist in the development of the general permit, (iii) provides         meanings defined in the State Water Control Law (§ 62.1-44.2
notice and receives oral and written comment as provided in             et seq. of the Code of Virginia) and the Virginia Water
§ 2.2-4007 F, and (iv) conducts at least one public hearing on          Protection (VWP) Permit Regulation (9 VAC 25-210) unless
the proposed general permit.                                            the context clearly indicates otherwise or unless otherwise
                                                                        indicated below.
Title of Regulation:   9 VAC 25-660. Virginia Water                     "Bank protection" means measures employed to stabilize
Protection General Permit for Impacts Less Than One-Half                channel banks and combat existing erosion problems. Such
of an Acre (amending 9 VAC 25-660-10 through 9 VAC 25-                  measures may include the construction of riprap revetments,
660-100; adding 9 VAC 25-660-95).                                       sills, rock vanes, beach nourishment, breakwaters, bulkheads,
Statutory Authority: §§ 62.1-44.15 and 62.1-44.15:5 of the              groins, spurs, levees, marsh toe stabilization, anti-scouring
Code of Virginia; § 401 of the Clean Water Act (33 USC                  devices, and submerged sills.
§ 1251 et seq.).                                                        "Bioengineering method" means a biological measure
Public Hearing Date: February 6, 2006 - 3:30 p.m.                       incorporated into a facility design to benefit water quality and
  Public comments may be submitted until 5 p.m. on March                minimize adverse effects to aquatic resources, to the
  10, 2006.                                                             maximum extent practicable, for long-term aquatic resource
    (See Calendar of Events section                                     protection and improvement.
    for additional information)                                         "Channelization" means the alteration of a stream channel by
Agency Contact:    Catherine M. Harold, Department of                   widening, deepening, straightening, cleaning or paving certain
Environmental Quality, P.O. Box 10009, Richmond, VA                     areas.
23240, telephone (804) 698-4047, FAX (804) 698-4347, or                 "Conversion" means changing one type of surface water to
e-mail cmharold@deq.virginia.gov.                                       another type of surface water, either permanently or
Summary:                                                                temporarily. The permanent conversion of a forested wetland
                                                                        to an emergent wetland is considered to be a permanent
  Virginia Water Protection (VWP) General Permit WP1 will               impact for the purposes of this regulation.
  expire on October 1, 2006. The proposed revisions include
  minor changes to improve the processing and coordination              "Cross-sectional drawing" means a graph or plot of ground
  of authorizations, both for the public, DEQ, and other                elevation across a waterbody or a portion of it, usually along a
  agencies. These VWP general permit regulations generally              line perpendicular to the waterbody or direction of flow.
  reduce the permitting burden to the public and minimize the           "Emergent wetland" means a class of wetlands characterized
  amount of agency duplication in processing permit                     by erect, rooted, herbaceous plants growing in water or on a
  authorizations and it is in the interest of all to continue to        substrate that is at least periodically deficient in oxygen as a
  provide this level of service through the renewal of this             result of excessive water content, excluding mosses and
  general permit.                                                       lichens. This vegetation is present for most of the growing
  The substance of the revisions include the addition and               season in most years and is usually dominated by perennial
  deletion of definitions; minor grammatical changes;                   plants.

                                                    Virginia Register of Regulations

                                                                   1234
                                                                                             Proposed Regulations
"FEMA" means the Federal Emergency Management Agency.                 "Permanent impacts" are means those impacts to surface
                                                                      waters, including wetlands, that cause a permanent alteration
"Forested wetland" means a class of wetlands characterized            of the physical, chemical, or biological properties of the
by woody vegetation that is six meters (20 feet) tall or taller.      surface waters, or of the functions and values of a wetland.
These areas typically possess an overstory of trees, an
understory of trees or shrubs, and an herbaceous layer.               "Person" means an individual, corporation, partnership,
                                                                      association, government governmental body, municipal
"Histosols" means organic soils that are often called mucks,          corporation, or any other legal entity.
peats, or mucky peats. The list of histosols in the
Commonwealth includes, but is not limited to, the following           "Riprap" means a layer of nonerodible material such as stone
soil series: Back Bay, Belhaven, Dorovan, Lanexa,                     or chunks of concrete.
Mattamuskeet, Mattan, Palms, Pamlico, Pungo, Pocaty, and
Rappahannock. Histosols are identified in the Hydric soils list       "Single and complete project" means the total project
generated by the United States Department of Agriculture's            proposed or accomplished by a person and , which also has
Natural Resources Conservation Service.                               independent utility, as defined in this section. For linear
                                                                      projects, the "single and complete project" (i.e e.g., a single
"Impacts" means results caused by human-induced activities            and complete crossing) may but does not always will apply to
conducted in surface waters as specified in § 62.1-44.15:5 D          each crossing of a separate surface water (i.e e.g., a single
of the Code of Virginia.                                              waterbody) and to multiple crossings of the same waterbody
                                                                      at separate and distinct locations. Phases of a project that
"Independent utility" means a test to determine what                  have independent public and economic utility may each be
constitutes a single and complete project. A project is               considered single and complete.
considered to have independent utility if it would be
constructed absent the construction of other projects in the          "State programmatic program general permit (SPGP)" means
project area. Portions of a multi-phase phased project that           a general permit that is issued by the Department of the Army
depend upon other phases of the project do not have                   in accordance 33 USC 1344(e), with 33 CFR Part 32S
independent utility. Phases Portions of a phased project that         325.2(e)(2), and 33 CFR 325.3(b) and that is founded on a
would be constructed even if the other phases are not built           state program and . The SPGP is designed to avoid
can be considered as separate single and complete projects            duplication between the federal and state programs.
with independent utility.
                                                                      “Stream bed” means the substrate of a stream, as measured
“Isolated Wetland of Minimal Ecological Value (IWOMEV)”               between the ordinary high water marks along a length of
means a wetland that (i) does not have a surface water                stream. The substrate may consist of organic matter, bedrock
connection to other state waters; (ii) is less than one-tenth of      or inorganic particles that range in size from clay to boulders,
an acre in size; (iii) is not located in a Federal Emergency          or a combination of both. Areas contiguous to the stream bed,
Management Agency designated 100-year floodplain; (iv) is             but outside of the ordinary high water marks, are not
not identified by the Virginia Natural Heritage Program as a          considered part of the stream bed. Ditches, swales, and open
rare or state significant natural community; (v) is not forested;     water are not considered to be stream bed for the purposes of
and (vi) does not contain listed federal or state threatened or       this regulation.
endangered species.
                                                                      “Surface waters” means all state waters that are not ground
"Less than one-half of an acre" means 0.00 to 0.49 acre (0 to         water as defined in § 62.1-255 of the Code of Virginia.
21,779 square feet) or less.
                                                                      "Temporary impacts" are those impacts to surface waters,
“Open water” means an area that, during a year with normal            including wetlands, that do not cause a permanent alteration
patterns of precipitation, has standing water for sufficient          of the physical, chemical, or biological properties of the
duration to establish an ordinary high water mark. The term           surface water, or of the functions and values of a wetland.
“open water” includes lakes and ponds but does not include            Temporary impacts include activities in which the ground is
ephemeral waters, stream beds, or wetlands.                           restored to its preconstruction conditions, contours and , or
                                                                      elevations, such that previous functions and values are
“Ordinary high water” or “ordinary high water mark” means the         restored.
line on the shore established by the fluctuations of water and
indicated by physical characteristics such as clear, natural line     "Up to 125 linear feet of perennial stream channel" means
impressed on the bank; shelving; changes in the character of          0.00 to 125.00 linear feet of perennial stream, rounded to the
soil; destruction of terrestrial vegetation; the presence of litter   second decimal place, as measured along the center of the
and debris; or other appropriate means that consider the              main channel of the stream segment.
characteristics of the surrounding areas.
                                                                      "Up to 300 linear feet of stream channel" means >0.00 to
"Perennial stream" means a well-defined channel that                  300.00 linear feet of any stream, rounded to the second
contains water year round during a year of normal rainfall.           decimal place, as measured along the center of the main
Generally, the water table is located above the streambed for         channel of the stream segment.
most of the year and groundwater is the primary source for
stream flow. A perennial stream exhibits the typical biological,      "Up to 1500 linear feet of nonperennial stream channel"
hydrological, and physical characteristics commonly                   means 0.00 to 1500.00 linear feet of nonperennial stream,
associated with the continuous conveyance of water.                   rounded to the second decimal place, as measured along the
                                                                      center of the main channel of the stream segment.

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                                                                  1235
Proposed Regulations
"Up to one acre" means 0.00 to 1.00 acre (0 to 43,560 square         requirements of 9 VAC 25-660-100, receives approval from
feet).                                                               the board, and provided that:
"Up to one-tenth of an acre" means 0.00 to 0.10 acre (0 to           1. The applicant submits notification as required in 9 VAC 25-
4,356 square feet) or less.                                          660-50 and 9 VAC 25-660-60.
"Up to two acres" means 0.00 to 2.00 acres (0 to 87,120              2. The applicant remits the required application processing fee
square feet).                                                        in accordance with 9 VAC 25-20.
"Utility line" means any a pipe or pipeline for the transportation   3. The applicant complies with the limitations and other
of any a gaseous, liquid, liquifiable liquefiable or slurry          requirements of 9 VAC 25-660-100.
substance, for any purpose, and any a cable, line, or wire for
the transmission for any purpose of electrical energy,               4. The applicant receives approval from the Virginia
telephone, and telegraph messages and radio and television           Department of Environmental Quality.
communication. The term "utility line" does not include              1. 5. The applicant shall has not have been required to obtain
activities that drain a surface water to convert it to an upland,    a VWP individual permit under the VWP permit regulation
such as drainage tiles or french drains; however, it does apply      (9 VAC 25-210) for the proposed project impacts. The
to pipes conveying drainage from another area.                       applicant, at his discretion, may seek a VWP individual permit,
9 VAC 25-660-20. Purpose; delegation              of   authority;    or coverage under another applicable VWP general permit, in
effective date of VWP general permit.                                lieu of coverage under this VWP general permit.

A. The purpose of this regulation is to establish VWP General        2. 6. Impacts, both temporary and permanent, result from a
Permit Number WP1 under the VWP permit program                       single and complete project, including all attendant features.
regulation to govern permanent and temporary impacts to less         a. Where a road segment (i.e e.g., the shortest segment of a
than one-half of an acre of nontidal surface waters including        road with independent utility that is part of a larger project) has
wetlands or open water and up to 125 300 linear feet of              multiple crossings of surface waters (several single and
perennial stream channel and up to 1,500 linear feet of              complete projects), the board may, at its discretion, require a
nonperennial nontidal stream channel bed. Applications for           VWP individual permit.
coverage under by this VWP general permit shall be
processed for approval, approval with conditions, or denial by       b. For the purposes of this chapter, when an interchange has
the board. Authorization, authorization with conditions, or          multiple crossings of surface waters, the entire interchange
denial by the board shall constitute the VWP general permit          shall be considered the single and complete project.
action. Each VWP general permit action shall follow all              3. 7. The stream impact criterion applies to all components of
provisions in the State Water Control Law (§ 62.1-44.2 et seq.       the project, including any structures and stream channel
of the Code of Virginia), except for the public comment and          manipulations.
participation provisions, from which each VWP general permit
action is exempt.                                                    4. 8. Compensation for unavoidable impacts is provided in the
                                                                     form of the purchase or use of credits from an approved
B. The director, or his designee, may perform any act of the         mitigation bank credits or a contribution to an approved in-lieu
board provided under this chapter, except as limited by              fee fund.
§ 62.1-44.14 of the Code of Virginia.
                                                                     B. Only activities in nontidal waters may qualify for coverage
C. This VWP general permit regulation will become effective          under this VWP general permit.
on October 1, 2001 (insert effective date), and will expire on
October 1, 2006 (insert date that is 10 years after effective        C. The board waives the requirement for coverage under a
date).                                                               VWP general permit for activities that occur in an isolated
                                                                     wetland of minimal ecological value as defined in 9 VAC
D. Authorization to impact surface waters under this VWP             25-210-10 9 VAC 25-660-10. Any person claiming this waiver
general permit is effective upon compliance with all the             bears the burden to demonstrate that he qualifies for the
provisions of 9 VAC 25-660-30. Notwithstanding the expiration        waiver.
date of this general permit regulation, authorization to impact
surface waters under this VWP general permit will continue for       D. Receipt of this VWP general permit does not relieve any
a maximum of three years.                                            the permittee of the responsibility to comply with any other
                                                                     applicable federal, state or local statute, ordinance or
9 VAC 25-660-30. Authorization to impact surface waters.             regulation.
A. Any person governed by this VWP general permit is                 E. In issuing this VWP general permit, the board has not taken
authorized to permanently or temporarily impact less than            into consideration the structural stability of the proposed
one-half of an acre of surface waters including nontidal             structure or structures.
wetlands or open water and up to 125 300 linear feet of
perennial nontidal stream channel and up to 1,500 linear feet        F. Coverage under a nationwide or regional permit
of nonperennial stream channel bed, provided that the person         promulgated by the U.S. Army Corps of Engineers (USACE),
submits notification as required in 9 VAC 25-660-50 and              and for which the board has issued § 401 certification existing
9 VAC 25-660-60, remits the required application processing          as of October 1, 2001 the effective date of this regulation,
fee (9 VAC 25-20), complies with the limits and other                shall constitute coverage under this VWP general permit

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                                                                 1236
                                                                                             Proposed Regulations
unless a state programmatic program general permit is                E. This VWP general permit does not authorize activities that
approved for the covered activity or impact. Notwithstanding         cause more than minimal changes to the peak hydraulic flow
any other provision, activities authorized under a nationwide        characteristics, that significantly increase flooding, or that
or regional permit promulgated by the USACE and certified by         cause more than minimal degradation of the water quality of
the board in accordance with 9 VAC 25-210-130 do not need            any a stream.
to obtain coverage under this VWP general permit unless a
state programmatic general permit is approved for the covered        F. This VWP general permit may not be used for:
activity or impact.                                                  1. Any stormwater management facility that is located in
G. When the board determines on a case-by-case basis that            perennial streams or in waters designated as oxygen or
concerns for water quality and the aquatic environment so            temperature impaired; (does not include wetlands).
indicate, the board may require individual applications and          2. The construction of an irrigation impoundment on a
VWP individual permits rather than approving coverage under          perennial stream;.
this VWP general permit.
                                                                     3. Any water withdrawal activities;.
9 VAC 25-660-40. Exceptions to coverage.
                                                                     4. The location of animal feeding operations or waste storage
A. Authorization for coverage under this VWP general permit          facilities in state waters;.
will not apply in the following areas:
                                                                     5. The pouring of wet concrete or the use of tremie concrete
1. Wetlands composed of 10% or more of the following                 or grout bags in state waters, unless the area is contained
species (singly or in combination) in any a vegetative stratum:      within a cofferdam or the work is performed in the dry;.
Atlantic white cedar (Chamaecyparis thyoides), bald cypress
(Taxodium distichum), water tupelo (Nyssa aquatica), or              6. Dredging or maintenance dredging;.
overcup oak (Quercus lyrata). Percentages shall be based on          7. Return flow discharges from dredge disposal sites;.
either basal area or percent areal cover in the area of impact.
                                                                     8. The construction of new ski areas or oil and gas wells;.
2. Wetlands underlain by histosols.
                                                                     9. The taking of threatened or endangered species in
3. Nontidal wetlands adjacent to tidal waters.                       accordance with the following:
4. 100-year floodplains as identified by FEMA's flood                a. As pursuant to § 29.1-564 of the Code of Virginia: ", the
insurance rate maps or FEMA-approved local floodplain                taking, transportation, processing, sale or offer for sale within
maps.                                                                the Commonwealth of any fish or wildlife appearing on any list
5. Surface waters where the proposed activity will impact            of threatened or endangered species published by the United
federal or state listed or proposed threatened or endangered         States Secretary of the Interior pursuant to the provisions of
species or proposed or designated critical habitat.                  the federal Endangered Species Act of 1973 (P.L. 93-205), or
                                                                     any modifications or amendments thereto, is prohibited except
B. Authorization for coverage under this VWP general permit          as provided in § 29.1-568."
cannot be used in combination with authorizations for
coverage under other VWP general permits in order to impact          b. As pursuant to § 29.1-566 of the Code of Virginia and
greater than one-half of an acre of nontidal surface waters, up      4 VAC 15-20-130 B and C, the taking, transportation,
to 125 wetlands or open water or greater than 300 linear feet        processing, sale, or offer for sale within the Commonwealth of
of perennial stream channel, or up to 1,500 linear feet of           any state-listed endangered or threatened species is
nonperennial nontidal stream channel bed. More than one              prohibited except as provided in § 29.1-568 of the Code of
authorization for coverage under this VWP general permit for         Virginia.
a single and complete project is prohibited, except when the         10. Proposed activities in wetlands, open water, streams, or
cumulative impact to surface waters does not exceed the              compensatory mitigation sites that are under a deed
limits specified here.                                               restriction, conservation easement, restrictive covenant, or
C. The activity to impact surface waters shall not have been         other land use protective instrument (hereafter protected
prohibited by state law or regulations, nor shall it contravene      areas), where such restriction, easement, covenant, or
applicable Water Quality Standards (9 VAC 25-260).                   instrument is the result of a federal or state permit action and
                                                                     is specific to activities in wetlands and compensatory
D. The board shall deny coverage under this VWP general              mitigation sites, and where the proposed activities incur up to
permit to any applicant for activities that cause, may               1/10 acre of wetland or open water impacts or up to 300 linear
reasonably be expected to cause, or may be contributing to a         feet of stream bed impacts. Where the proposed activities in
violation of water quality standards, including discharges or        protected areas impact greater than 1/10 acre wetlands or
discharge-related activities that are likely to adversely            open water, or greater than 300 linear feet of stream bed, the
significantly affect aquatic life, or for activities that together   applicant may submit a full and complete permit application for
with other existing or proposed impacts to wetlands will cause       further consideration by the board.
or contribute to a significant impairment of state waters or fish
and wildlife resources.                                              9 VAC 25-660-50. Notification.
                                                                     A. Notification to the board will be required prior to
                                                                     commencing construction, as follows:

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                                                                 1237
Proposed Regulations
1. An application for authorization for of proposed, permanent      1. The applicant's name, mailing address, and telephone
nontidal wetland or open water impacts greater than one-tenth       number; and, if applicable, fax number.
of an acre, or for of proposed, permanent nontidal stream
channel bed impacts greater than 300 linear feet shall be           2. The authorized agent's (if applicable) name, mailing
submitted via an application that includes all information          address, telephone number and, if applicable, fax number and
pursuant to 9 VAC 25-660-60 B. Once permanent impacts               electronic mail address;.
exceed these limits, compensatory mitigation may be required        3. The existing VWP permit number (if applicable);.
for all permanent impacts in accordance with Parts I, II, and III
of this VWP general permit regulation. All temporary impacts        4. The name of the project, narrative description of project
shall be restored to preexisting conditions, as per Parts I, II,    purpose, and a description of the proposed activity in surface
and III of this VWP general permit regulation.                      waters;.

2. An application for the authorization of proposed, permanent      5. The name of the water body or water bodies or receiving
surface nontidal wetland or open water impacts up to                stream, as applicable;.
one-tenth of an acre, which may include up to or of proposed,       6. The hydrologic unit code (HUC) for the project area;.
permanent nontidal stream bed impacts up to 300 linear feet
of stream channel, shall be reported submitted via an               7. The name of the city or county where the project is located;.
application that includes only the following information:
                                                                    8. Latitude and longitude (to the nearest second) from a
subdivisions 1 through 8, 9, 13, 15, 20, and 20 21 of 9 VAC
                                                                    central location within the project limits;.
25-660-60 B, and documentation that verifies the quantity and
type of impacts. If permanent impacts remain below these            9. A detailed location map (e.g., a United States Geologic
limits, compensatory mitigation is not required for permanent       Survey topographic quadrangle map) of the project area,
impacts.    All temporary impacts shall be restored to              including the project boundary. The map shall be of sufficient
preexisting conditions, as per Parts I and III of this VWP          detail such that the site may be easily located for site
general permit regulation.                                          inspection;.
B. A Joint Permit Application (JPA) or Virginia Department of       10. (Reserved.);
Transportation Interagency Coordination Meeting Joint Permit
Application (VDOT IACM JPA) shall serve as an application           11. The project plan view. All Plan view sketches shall include,
under this regulation.                                              at a minimum, north arrow, scale, existing structures, existing
                                                                    contours, proposed contours (if available), limit of surface
C. The board will determine whether the proposed activity           water areas, direction of flow, ordinary high water, impact
requires coordination with the United States Fish and Wildlife      limits, and location and dimension of all proposed structures in
Service, the Virginia Department of Conservation and                impact areas. In addition, cross-sectional or profile sketches,
Recreation, the Virginia Department of Agriculture and              as appropriate, with the above information in this subdivision,
Consumer Services and the Virginia Department of Game and           shall may be required as appropriate to demonstrate
Inland Fisheries regarding the presence of any federal or state     minimization of impacts; detail impact areas.
proposed or listed threatened and endangered species or
proposed or designated critical habitat. Based upon                 12. (Reserved.);
consultation with these agencies, the board may deny                13. Surface water impact information (wetlands, streams, or
coverage under this general permit. The applicant may also          open water) for both permanent and temporary impacts,
consult with these agencies prior to submitting an application.     including a description of the impact, the areal extent of the
Species or habitat information that the applicant provides will     impact (area of wetland in square feet and acres; area of
assist DEQ in reviewing and processing the application.             stream, length of stream, and average width),; the location
9 VAC 25-660-60. Application.                                       (latitude and longitude) at the center of the impact, or at the
                                                                    center of each impact for linear projects; and the type of
A. Applications shall be filed with the board as follows:           surface water impact (open water; wetlands according to the
                                                                    Cowardin classification or similar terminology; or perennial
1. The applicant shall file a complete application as described
                                                                    and nonperennial for streams);. The board encourages
in accordance with 9 VAC 25-660-50 for a VWP General
                                                                    applicants to coordinate the determination of perennial or
Permit WP1 for impacts to surface waters nontidal wetlands or
                                                                    nonperennial streams with the appropriate local government
open water of less than one-half of an acre, including and up
                                                                    agency in Tidewater Virginia.
to 125 300 linear feet of perennial stream channel and up to
1,500 linear feet of nonperennial nontidal stream channel bed,      14. (Reserved.);
which will serve as a notice of intent for coverage under this
VWP general permit.                                                 15. A description of the specific on-site measures considered
                                                                    or taken during project design and development both to avoid
2. The VDOT may use its monthly IACM process for                    and minimize impacts to surface waters to the maximum
submitting applications.                                            extent practicable;.
B. The required application shall contain the following             16. A conceptual plan for the intended compensation for
information, if applicable to the project:                          unavoidable impacts, including:



                                                   Virginia Register of Regulations

                                                                1238
                                                                                          Proposed Regulations
a. Any applicant Applicants proposing compensation involving       in accordance with a system designed to assure that qualified
contributions to an in-lieu fee fund shall state such as their     personnel properly gather and evaluate the information
conceptual compensation plan. Written documentation of the         submitted. Based on my inquiry of the person or persons who
willingness of the entity to accept the donation and               manage the system or those persons directly responsible for
documentation of how the amount of the contribution was            gathering the information, the information submitted is to the
calculated shall be submitted prior to issuance of this VWP        best of my knowledge and belief true, accurate, and complete.
general permit authorization; and                                  I am aware that there are significant penalties for submitting
                                                                   false information including the possibility of fine and
b. Any applicant Applicants proposing compensation involving       imprisonment for knowing violations."
the purchase or use of mitigation banking credits shall include
as their conceptual compensation plan:                             C. The application shall be signed in accordance with 9 VAC
                                                                   25-210-100. If an agent is acting on behalf of an applicant, the
(1) The name of the proposed mitigation bank and the HUC in        applicant shall submit an authorization of the agent that
which it is located;                                               includes the signatures of both the applicant and the agent.
(2) The number of credits proposed to be purchased or used;        D. Upon receipt of an application by the appropriate DEQ
and                                                                office, the board has 15 days to review the application and
(3) Certification from the bank owner of the availability of       either determine that the information requested in subsection
credits;.                                                          B of this section is complete or inform the applicant that
                                                                   additional information is required to make the application
17. A delineation map of the geographic area of a delineated       complete. Coverage under this VWP general permit shall be
wetland for all wetlands on the site, in accordance with 9 VAC     approved, approved with conditions, or denied within 45 days
25-210-45, including the wetlands data sheets.              The    of receipt of a complete application. If the board fails to act
delineation map shall also include the on-site location of         within 45 days on a complete application, coverage under this
streams, open water, and the approximate limits of                 VWP general permit shall be deemed approved.
Chesapeake Bay Resource Protection Areas (RPAs), as other
state or local requirements may apply if the project is located    1. In evaluating the application, the board shall make an
within an RPA. Wetland types shall be noted according to           assessment of the impacts associated with the project in
their Cowardin classification or similar terminology. A copy of    combination with other existing or proposed impacts.
the USACE delineation confirmation, or other correspondence        Coverage under this VWP general permit shall be denied if
from the USACE indicating their approval of the wetland            the cumulative impacts will cause or contribute to a significant
boundary, shall also be provided at the time of application, or    impairment of state waters or fish and wildlife resources.
if not available at that time, as soon as it becomes available     2. The board may place additional conditions on a project in
during the VWP permit review. The delineation map shall also       order to approve authorization under this VWP general permit.
include the location of streams, open water and other surface      However, these conditions must be consistent with the VWP
waters on the site. The approximate limits of any Chesapeake       permit program regulation.
Bay Resource Protection Areas (RPAs) shall be shown on the
map, as other state or local requirements may apply if the         E. Incomplete application. Where an application is incomplete,
project is located within an RPA;                                  the board may require the submission of additional information
                                                                   and shall may suspend processing the application until such
18. A copy of the FEMA flood insurance rate map or                 time as the applicant has supplied the missing or deficient
FEMA-approved local floodplain map for the project site;           requested information and the application is complete.
(impacts that include linear feet of stream bed must be            Further, Where the applicant becomes aware that he omitted
converted to a square footage or acreage using the stream          one or more relevant facts from an application, or submitted
width in order to calculate the permit application fee).           incorrect information in an application or in any report reports
19. The appropriate application processing fee for a VWP           to the board, he the applicant shall immediately submit such
general permit ( in accordance with 9 VAC 25-20); and . The        facts or the correct information. Such A revised application
permit application fee for VWP permit authorizations is based      with new information shall be deemed a new application, but
on acres only. Therefore, impacts that include linear feet of      shall not require an additional permit application fee. An
stream bed must be converted to an acreage in order to             incomplete permit application may be administratively
calculate the permit application fee.                              withdrawn from processing by the board after 180 days from
                                                                   the date that the original permit application was received by
20. A written disclosure identifying all wetlands, open water,     the board. Resubmittal of a permit application for the same or
streams, and associated upland buffers within the proposed         similar project, after such time that the original permit
project or compensation areas that are under a deed                application was administratively withdrawn, shall require
restriction, conservation easement, restrictive covenant, or       submittal of an additional permit application fee.
other land use protective instrument (protected areas). Such
disclosure shall include the nature of the prohibited activities   9 VAC 25-660-70. Compensation.
within the protected areas.                                        A. In accordance with 9 VAC 25-660-50 A 1, compensatory
20. 21. The following certification:                               mitigation may be required for all permanent, nontidal surface
                                                                   water impacts once the notification limits are exceeded. All
"I certify under penalty of law that this document and all
attachments were prepared under my direction or supervision

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                                                               1239
Proposed Regulations
temporary, nontidal surface water impacts shall be restored to      G. In order for purchase or use of bank credits to be an
preexisting conditions.                                             acceptable form of compensation, the bank shall be operating
                                                                    in accordance with the provisions of§ 62.1-44.15:5 E of the
A. B. Generally, the sequence of preferred compensation             Code of Virginia and 9 VAC 25-210-115 F. The applicant shall
options shall be restoration, then creation, then mitigation        provide proof of purchase, use, or debit to DEQ prior to
banking, and then in-lieu fee fund. Also, on-site, in-kind          commencing activities in impact areas.
compensatory mitigation, when available, shall be deemed the
most ecologically preferable form of compensation for project       9 VAC 25-660-80. Notice of planned changes.
impacts, in most cases. However, for the purposes of this
VWP general permit, the board shall assume that the                 A. The permittee shall notify the board in advance of the
purchase or use of mitigation bank credits or a contribution to     planned change, and the planned change request will be
an in-lieu fee fund is ecologically preferable to practicable       reviewed according to all provisions of this regulation.
on-site or other off-site surface water compensation options,       A. B. Authorization under this VWP general permit may be
and no further demonstration is necessary.                          modified subsequent to issuance if the permittee determines
C. In order for contribution to an in-lieu fee fund to be an        that additional permanent wetland, open water, or stream
acceptable form of compensation, the fund must be approved          impacts are necessary, provided that the additional impacts
for use by the board according to the provisions of 9 VAC 25-       are associated with the previously authorized activities in
210-115 E. The applicant shall provide proof of contribution to     authorized locations within the same phase of development,
DEQ prior to commencing activities in impact areas.                 the cumulative increase in acreage of wetland or open water
                                                                    impacts is not greater than 1/4 acre and, the cumulative
D. In order for purchase or use of bank credits to be an            increase in stream bed impacts is not greater than 50 100
acceptable form of compensation, the bank shall be operating        linear feet, and provided that the additional impacts are fully
in accordance with the provisions of § 62.1-44.15:5 E of the        mitigated. In no case can this authorization be modified to
Code of Virginia and 9 VAC 25-210-115 F. The applicant shall        exceed the general permit threshold for use. Prior to a
provide proof of purchase, use, or debit to DEQ prior to            planned change approval, DEQ may require submission of a
commencing activities in impact areas.                              compensatory mitigation plan for the additional impacts. In
                                                                    cases where the original impacts totaled less than 1/10 acre of
B. E. Compensation for unavoidable, permanent wetland               wetlands or open water, or less than 300 linear feet of stream
impacts shall be provided at a 2:1 replacement to impact ratio,     bed, and the additional impacts result in these limits being
as calculated on an area basis.                                     exceeded, the notice of planned change will not be approved.
C. Compensation for unavoidable stream impacts shall be             However, the applicant may submit a new permit application
provided through the purchase or use of stream mitigation           and permit application fee for the total impacts to be
bank credits or contribution to an in-lieu fee fund that includes   considered under this VWP general permit, another VWP
watershed enhancements. F. Compensation for stream bed              general permit, or a VWP individual permit.
impacts shall be appropriate to replace lost functions and          B. C. Authorization under this VWP general permit may be
water quality benefits. One factor determining the required         modified after issuance if the project results in less wetland or
compensation shall be an analysis of stream impacts utilizing       stream impacts. Compensation requirements may be modified
a stream impact assessment methodology approved by the              in relation to the adjusted impacts at the request of the
board acceptable to DEQ.                                            permittee, provided that the adjusted compensation meets the
D. G. Compensation for permanent open water impacts other           initial authorization compensation goals. DEQ shall not be
than to streams may be required, as appropriate, at a 1:1           responsible for ensuring refunds for mitigation bank credit
replacement to impact ratio, as calculated on an area basis, to     purchases, mitigation bank usage, or in-lieu fee fund
protect offset impacts to state waters and fish and wildlife        contributions.
resources from significant impairment.                              C. D. Authorization under this VWP general permit may be
E. H. Compensation for conversion impacts to wetlands shall         modified after issuance for a change in project plans that does
be required at a 1:1 replacement to impact ratio, as calculated     not result in a change in project impacts.
on an area basis, when such conversion results in a                 D. E. Authorization under the VWP general permit may be
permanent alteration of the functions and values of the             modified for a change to the mitigation bank at which credits
wetland. For example, the permanent conversion of a                 are purchased or used, provided that the same amount of
forested wetland to an emergent wetland is considered to be a       credits are purchased or used and all criteria for use in 9 VAC
permanent impact for the purposes of this regulation.               25-210-115 F are met.
Compensation for conversion of other types of surface waters
may be required, as appropriate, to offset impacts to state         E. F. Authorization under the VWP general permit may be
waters and fish and wildlife resources from significant             modified after issuance for typographical errors.
impairment.
                                                                    F. G. A Notice of Planned Change is not required after
F. In order for contribution to an in-lieu fee fund to be an        authorization issuance for additional temporary impacts to
acceptable form of compensation, the fund must be approved          surface waters, provided that DEQ is notified in writing
for use by the board according to the provisions of 9 VAC           regarding additional temporary impacts, and the area is
25-210-115 E.                                                       restored to preexisting conditions in accordance with Part I C
                                                                    11 of this general permit. In no case can the additional

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                                                                                               Proposed Regulations
temporary impacts exceed the general permit threshold for             c. For events beyond permittee control, the permittee shall
use.                                                                  provide a detailed explanation of the events, to be approved
                                                                      by DEQ, and the following certification statement:
G. The permittee shall notify the board in advance of the
planned change, and the planned change request shall be               "I certify under penalty of law that all the activities or the
reviewed according to all provisions of this regulation. H. In        required compensatory mitigation authorized by a VWP
no case can this authorization be modified to exceed the              general permit have changed as the result of events beyond
general permit threshold for use.                                     my control (see attached). I understand that by submitting this
                                                                      notice of termination I am no longer authorized to perform
I. A notice of planned change shall be denied if fish and             activities in surface waters in accordance with the VWP
wildlife resources are significantly impacted or if the criteria in   general permit, and that performing activities in surface waters
subsection B are not met. However, the original VWP general           is unlawful where the activity is not authorized by a VWP
permit authorization shall remain in effect. The applicant may        permit. I also understand that the submittal of this notice does
submit a new permit application and permit application fee for        not release me from liability for any violations of this VWP
consideration under a VWP individual permit.                          general permit authorization, nor does it allow me to resume
9 VAC 25-660-90. Termination of authorization by consent.             the     permitted   activities   without    reapplication    and
                                                                      reauthorization."
When all permitted activities requiring notification under
9 VAC 25-660-50 A 1 and all compensatory mitigation                   9 VAC 25-660-95. Transition.
requirements have been completed, or if the authorized                A. All applications received on or after (insert effective date)
impacts will not occur, the permittee shall submit a request for      will be processed in accordance with these new procedures.
termination by consent within 30 days of project completion or
project cancellation. When submitted for project completion,          B. VWP general permit authorizations issued prior to (insert
the termination by consent shall constitute a notice of               effective date) will remain in full force and effect until such
completion in accordance with 9 VAC 25-210-130. The                   authorizations expire, are revoked, or are terminated.
director may accept this termination of authorization on behalf
of the board. The permittee shall submit the following                C. Notices of Planned Change and all other types of
information:                                                          notification that are received by the board prior to (insert
                                                                      effective date) will be processed in accordance with the VWP
1. Name, mailing address and telephone number of the                  general permit regulation in effect at that time. Notices of
permittee;                                                            Planned Change and all other types of notification to the
                                                                      board that are received on or after (insert effective date) will
2. Name and location of the activity;                                 be processed in accordance with these new procedures.
3. The VWP permit authorization number; and                           9 VAC 25-660-100. VWP general permit.
4. One of the following certifications:                               Any applicant whose application has been accepted by the
a. For project completion:                                            board shall be subject to the following requirements:
"I certify under penalty of law that all activities and any           VWP General Permit No. WP1
required compensatory mitigation authorized by a VWP                  Authorization effective date:
general permit have been completed. I understand that by
submitting this notice of termination I am no longer authorized       Authorization expiration date:
to perform activities in surface waters in accordance with the
VWP general permit, and that performing activities in surface         Authorization Note(s):
waters is unlawful where the activity is not authorized by a          VWP GENERAL PERMIT FOR IMPACTS LESS THAN
VWP permit. I also understand that the submittal of this notice       ONE-HALF OF AN ACRE UNDER THE VIRGINIA WATER
does not release me from liability for any violations of this         PROTECTION PERMIT AND THE VIRGINIA STATE WATER
VWP general permit authorization."                                    CONTROL LAW
b. For project cancellation:                                          Based upon an examination of the information submitted by
"I certify under penalty of law that the activities and any           the applicant and in compliance with § 401 of the Clean Water
required compensatory mitigation authorized by this VWP               Act as amended (33 USC § 1341) and the State Water
general permit will not occur. I understand that by submitting        Control Law and regulations adopted pursuant thereto, the
this notice of termination I am no longer authorized to perform       board has determined that there is a reasonable assurance
activities in surface waters in accordance with the VWP               that the activity authorized by this VWP general permit, if
general permit, and that performing activities in surface waters      conducted in accordance with the conditions set forth herein,
is unlawful where the activity is not authorized by a VWP             will protect instream beneficial uses and will not violate
permit. I also understand that the submittal of this notice does      applicable water quality standards. The board finds that the
not release me from liability for any violations of this VWP          effect of the impact, together with other existing or proposed
general permit authorization, nor does it allow me to resume          impacts to wetlands, will not cause or contribute to a
the     permitted    activities  without    reapplication    and      significant impairment of state waters or fish and wildlife
reauthorization."                                                     resources.


Volume 22, Issue 9                                                                                          Monday, January 9, 2006

                                                                  1241
Proposed Regulations
Subject to the provisions of the Clean Water Act, as amended,       which time the board will determine if continuation of the VWP
and pursuant to the State Water Control Law and regulations         general permit authorization is necessary.
adopted pursuant to it, the permittee is authorized to
permanently or temporarily impact less than one-half of an          C. Overall project conditions.
acre of nontidal surface waters including wetlands or open          1. The activities authorized by this VWP general permit shall
water and up to 125 300 linear feet of perennial stream             be executed in a manner so as to minimize any adverse
channel and up to 1,500 linear feet of nonperennial nontidal        impact impacts on instream beneficial uses as defined in
stream channel bed.                                                 § 62.1-10 (b) of the Code of Virginia.
Permittee:                                                          2. No activity may substantially disrupt the movement of
Address:                                                            aquatic life indigenous to the water body, including those
                                                                    species that normally migrate through the area, unless the
Activity Location:                                                  primary purpose of the activity is to impound water. Culverts
                                                                    placed in streams must be installed to maintain low flow
Activity Description:                                               conditions. The requirement to countersink does not apply to
The authorized activity shall be in accordance with this cover      extensions or maintenance of existing culverts that are not
page, Part I--Special Conditions, Part II-Compensation,             countersunk, floodplain culverts being placed above ordinary
Monitoring, and Reporting, and Part III--Conditions Applicable      high water, culverts being placed on bedrock, or culverts
to All VWP General Permits, as set forth herein.                    required to be placed on slopes 5.0% or greater. No activity
                                                                    may cause more than minimal adverse effect on navigation.
_____________________________________                  _______      Furthermore, the activity must not impede the passage of
Director, Department of Environmental Quality             Date      normal or expected high flows and the structure or discharge
                     Part I. Special Conditions.                    must withstand expected high flows.

A. Authorized activities.                                           3. Wet or uncured concrete shall be prohibited from entry into
                                                                    flowing surface waters. Excess or waste concrete shall not be
1. This permit authorizes permanent or temporary impacts to         disposed of in flowing surface waters or washed into flowing
less than one-half of an acre of nontidal surface waters,           surface waters.
including wetlands or open water and up to 125 300 linear feet
of perennial stream channel, and up to 1,500 linear feet of         4. All fill material shall be clean and free of contaminants in
nonperennial nontidal stream channel bed, according to the          toxic concentrations or amounts in accordance with all
information provided in the approved and complete                   applicable laws and regulations.
application.                                                        5. Erosion and sedimentation controls shall be designed in
2. Any changes to the authorized permanent impacts to               accordance with the Virginia Erosion and Sediment Control
surface waters associated with this project shall require either    Handbook, Third Edition, 1992. These controls shall be placed
a notice of planned change in accordance with 9 VAC                 prior to clearing and grading and maintained in good working
25-660-80, or another VWP permit application.                       order to minimize impacts to state waters. These controls shall
                                                                    remain in place until the area is stabilized and shall then be
3. Any changes to the authorized temporary impacts to               removed.
surface waters associated with this project shall require
written notification to DEQ and restoration to preexisting          6. Any Exposed slopes and streambanks shall be stabilized
conditions in accordance with the conditions of this permit         immediately upon completion of work in each permitted impact
authorization.                                                      area. All denuded areas shall be properly stabilized in
                                                                    accordance with the Virginia Erosion and Sediment Control
4. Modification to compensation requirements may be                 Handbook, Third Edition, 1992.
approved at the request of the permittee when a decrease in
the amount of authorized surface waters impacts occurs,             7. All construction, construction access (e.g., cofferdams,
provided that the adjusted compensation meets the initial           sheetpiling, and causeways) and demolition activities
authorization compensation goals.                                   associated with this project shall be accomplished in a manner
                                                                    that minimizes construction or waste materials from entering
5. The activities authorized by this VWP general permit must        surface waters to the maximum extent practicable, unless
commence and be completed within three years of the date of         authorized by this VWP general permit.
this authorization.
                                                                    8. No machinery may enter flowing waters, unless authorized
B. Continuation of coverage. Reapplication for continuation of      by this VWP general permit.
coverage under this VWP general permit or a new VWP
permit may be necessary if any portion of the authorized            9. Heavy equipment in temporarily impacted wetland areas
activities or any VWP general permit requirement (including         shall be placed on mats, geotextile fabric, or other suitable
compensation) has not been completed within three years of          material to minimize soil disturbance to the maximum extent
the date of authorization. The request for continuation of          practicable. Equipment and materials shall be removed
coverage must be made no less than 60 days prior to the             immediately upon completion of work.
expiration date of this VWP general permit authorization, at        10. All nonimpacted surface waters and compensatory
                                                                    mitigation areas within 50 feet of any permitted activities and

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                                                                1242
                                                                                             Proposed Regulations
within the project or right-of-way limits shall be clearly flagged   practices shall be deemed suitable treatment prior to
or marked for the life of the construction activity at that          discharge into state waters.
location to preclude any unauthorized disturbances to these
surface waters and compensatory mitigation areas during              18. If stream channelization or relocation is required, all work
construction. The permittee shall notify all contractors that no     in surface waters shall be done in the dry, unless authorized
activities are to occur in these marked areas are surface            by this VWP general permit, and all flows shall be diverted
waters where no activities are to occur.                             around the channelization or relocation area until the new
                                                                     channel is stabilized. This work shall be accomplished by
11. Temporary disturbances to surface waters during                  leaving a plug at the inlet and outlet ends of the new channel
construction shall be avoided and minimized to the maximum           during excavation. Once the new channel has been stabilized,
extent practicable. All temporarily disturbed wetland areas          flow shall be routed into the new channel by first removing the
shall be restored to preconstruction preexisting conditions          downstream plug and then the upstream plug. The rerouted
within 30 days of completing work at each respective                 stream flow must be fully established before construction
temporary impact area, which shall include reestablishing            activities in the old stream channel can begin.
preconstruction contours, and planting or seeding with
appropriate wetland vegetation according to cover type               D. Road crossings.
(emergent, scrub/shrub, or forested). The permittee shall take       1. Access roads and associated bridges or culverts shall be
all appropriate measures to promote and maintain                     constructed to minimize the adverse effects on surface waters
revegetation of temporarily disturbed wetland areas with             to the maximum extent practicable. Access roads constructed
wetland vegetation through the second year post-disturbance.         above preconstruction contours and elevations in surface
All temporarily impacted streams and streambanks shall be            waters must be bridged or culverted to maintain surface flows.
restored to their original contours within 30 days following the
construction at that stream segment, and the banks seeded or         2. Installation of road crossings shall occur in the dry via the
planted with the same vegetation cover type originally present       implementation of cofferdams, sheetpiling, stream diversions,
along the streambanks, including supplemental erosion                or other similar structures.
control grasses if necessary, except for invasive species            E. Utility lines.
identified on DCR's Invasive Alien Plant Species of Virginia
list.                                                                1. All utility line work in surface waters shall be performed in a
                                                                     manner that minimizes disturbance, and the area must be
12. All Materials (including fill, construction debris, and          returned to its original contours and restored within 30 days of
excavated and woody materials) temporarily stockpiled in             completing work in the area, unless otherwise authorized by
wetlands shall be placed on mats or geotextile fabric,               this VWP general permit. Restoration shall be the seeding or
immediately stabilized to prevent entry into state waters,           planting of the same vegetation cover type originally present,
managed such that leachate does not enter state waters, and          including supplemental erosion control grasses if necessary,
completely removed within 30 days following completion of            except for invasive species identified on DCR's Invasive Alien
that construction activity. Disturbed areas shall be returned to     Plant Species of Virginia list.
original contours, restored within 30 days following removal of
the stockpile, and restored with the same vegetation cover           2. Material resulting from trench excavation may be
type originally present, including supplemental erosion control      temporarily sidecast into wetlands not to exceed a total of 90
grasses if necessary, except for invasive species identified on      days, provided the material is not placed in a manner such
DCR's Invasive Alien Plant Species of Virginia list.                 that it is dispersed by currents or other forces.
13. Continuous flow of perennial springs shall be maintained         3. The trench for a utility line cannot be constructed in a
by the installation of spring boxes, french drains, or other         manner that drains wetlands (e.g., backfilling with extensive
similar structures.                                                  gravel layers creating a french drain effect). For example,
                                                                     utility lines may be backfilled with clay blocks to ensure that
14. The permittee shall employ measures to prevent spills of         the trench does not drain surface waters through which the
fuels or lubricants into state waters.                               utility line is installed.
15. The permittee shall conduct his activities in accordance         F. Stream modification and stream bank protection.
with any the time-of-year restrictions recommended by the
Virginia Department of Game and Inland Fisheries or , the            1. Riprap bank stabilization shall be of an appropriate size and
Virginia Marine Resources Commission, or other interested            design in accordance with the Virginia Erosion and Sediment
and affected agencies and shall ensure that all contractors are      Control Handbook, Third Edition, 1992.
aware of any the time-of-year restrictions imposed.
                                                                     2. Riprap apron for all outfalls shall be designed in accordance
16. Water quality standards shall not be violated as a result of     with the Virginia Erosion and Sediment Control Handbook,
the construction activities, unless allowed by this permit           Third Edition, 1992.
authorization.
                                                                     3. For stream bank protection activities, the structure and
17. Untreated stormwater runoff shall be prohibited from             backfill shall be placed as close to the stream bank as
directly discharging into any surface waters, unless allowed by      practicable. No material shall be placed in excess of the
this permit authorization. Appropriate best management               minimum necessary for erosion protection.



Volume 22, Issue 9                                                                                          Monday, January 9, 2006

                                                                 1243
Proposed Regulations
4. All stream bank protection control structures shall be          final compensation plan for the approved project. A site
located to eliminate or minimize impacts to vegetated              change will require a modification to the authorization. The
wetlands to the maximum extent practicable.                        board shall review and provide written comments on the plan
                                                                   within 30 days of receipt or it shall be deemed approved. The
5. Asphalt and materials containing asphalt or other toxic         final compensation plan as approved by the board shall be an
substances shall not be used in the construction of                enforceable requirement of this VWP general permit
submerged sills or breakwaters.                                    authorization. Deviations from the approved plan must be
6. Redistribution of existing stream substrate for the purpose     submitted and approved in advance by the board.
of erosion control is prohibited.                                  4. The permittee shall not initiate work in permitted impact
7. No material removed from the stream bottom shall be             areas until documentation of the mitigation bank credit
disposed of in surface waters, unless authorized by this           purchase or usage or of the fund contribution has been
permit.                                                            submitted to and received by DEQ.

G. Stormwater management facilities.                               5. The compensation plan shall be approved by the board
                                                                   prior to any construction activity in permitted impact areas.
1. Stormwater management facilities shall be installed in          The board shall review and provide written comments on the
accordance with best management practices and watershed            plan within 30 days of receipt or it shall be deemed approved.
protection techniques (i.e e.g., vegetated buffers, siting         The final compensation plan as approved by the board shall
considerations to minimize adverse effects to aquatic              be an enforceable requirement of this VWP general permit
resources, bioengineering methods incorporated into the            authorization. Any deviations from the approved plan must be
facility design to benefit water quality and minimize adverse      submitted and approved in advance by the board.
effects to aquatic resources) that provide for long-term aquatic
resources protection and enhancement, to the maximum               B. Impact site construction monitoring.
extent practicable.                                                1. Construction activities authorized by this permit that are
2. Compensation for unavoidable impacts shall not be allowed       within impact areas shall be monitored and documented. The
within maintenance areas of stormwater management                  monitoring shall document the preconstruction preexisting
facilities.                                                        conditions,     activities    during     construction,      and
                                                                   post-construction conditions. Monitoring shall consist of one of
3. Maintenance activities within stormwater management             the following options:
facilities shall not require additional permit authorization, or
compensation, provided that the maintenance activities do not      a. Photographs shall be taken during construction at the end
exceed the original contours of the facility, as approved and      of the first, second and third months of after commencing
constructed, and are accomplished in designated                    construction, and then semi-annually every six months
maintenance areas as indicated in the facility maintenance or      thereafter, for the remainder of the construction project,
design plan.                                                       except. Photos are not required during periods of no activity
                                                                   within impact areas;.
   Part II. Construction and Compensation Requirements,
                  Monitoring, and Reporting.                       b. An ortho-rectified photograph shall be taken prior to
                                                                   construction, and then annually thereafter until all impacts are
A. Compensation Minimum compensation requirements.                 taken, and. All photos shall clearly show the delineated
1. The permittee shall provide appropriate and practicable         surface waters and authorized impact areas; or.
compensation for all impacts meeting the conditions outlined       c. In lieu of photographs, and with prior approval from DEQ,
in this VWP general permit.                                        the permittee may submit a written narrative that summarizes
2. The types of compensation options that may be considered        site construction activities in impact areas. The narrative shall
under this VWP general permit include: the purchase or use of      be submitted at the end of the first, second, and third months
mitigation bank credits or a contribution to an in-lieu fee fund   of after commencing construction in impact areas, and then
in accordance with 9 VAC 25-210-115 and 9 VAC 25-660-70,           semi-annually every six months thereafter, for the remainder
provided that all impacts are compensated at a 2:1 ratio.          of the construction activities in impact areas, except.
                                                                   Narratives are not required during periods of no activity within
a. Purchases or use of credits from approved mitigation banks      the impact areas.
meeting the requirements of 9 VAC 25-210-115 F in
accordance with 9 VAC 25-660-70 and provided that all              2. As part of construction monitoring, photographs taken at the
impacts are compensated at a 2:1 ratio; or                         photo stations or the narrative shall document site activities
                                                                   and conditions, which may include installation and
b. Contributions to an in lieu fee fund approved in accordance     maintenance of erosion and sediment controls; surface water
with 9 VAC 25-210-115 E and dedicated to the achievement           discharges from the site; condition of adjacent nonimpact
of no net loss of wetland acreage and function, provided that      surface waters; flagged nonimpact surface waters;
wetland impacts are compensated at a 2:1 ratio.                    construction access and staging areas; filling, excavation, and
                                                                   dredging activities; culvert installation; dredge disposal; and
3. A written statement that conveys the applicant's proposal to
                                                                   site stabilization, grading, and associated restoration activities.
use a mitigation bank or in-lieu fee fund for compensation
                                                                   With the exception of the preconstruction photographs,
shall be submitted with the application and shall constitute the
                                                                   photographs at an individual impact site shall not be required

                                                 Virginia Register of Regulations

                                                               1244
                                                                                              Proposed Regulations
until construction activities are initiated at that site. With the   include the date and time of the photo, the name of the person
exception of the post-construction photographs, photographs          taking the photograph, and a brief description, and VWP
at an individual impact site shall not be required once the site     permit number) showing representative of the construction
is stabilized following completion of construction at that site.     activities (including, but not limited to, flagging nonimpact
                                                                     wetland areas, site grading and excavation, installation and
3. Each photograph shall be labeled to include the following         maintenance of erosion and sediment controls, culvert
information: permit number, impact area and photo station            installation, bridge and ramp construction, dredging, dredge
number, date and time of the photograph, name of the person          disposal, etc.). The post-construction photographs shall be
taking the photograph, photograph orientation, and                   submitted within 30 days of documenting post-construction
photograph subject description.                                      conditions. The first construction monitoring report shall
4. Monitoring of water quality parameters shall be conducted         include the photographs taken at each impact site prior to
during permanent relocation of perennial streams through new         initiation of construction in any a permitted impact area.
channels in the following manner: noted below. The permittee         Written notification and photographs demonstrating that all
shall report violations of water quality standards to DEQ in         temporarily disturbed wetland and stream areas have been
accordance with the procedures in Part II E. Corrective              restored in compliance with the permit conditions shall be
measures and additional monitoring may be required if water          submitted within 30 days of restoration. The post-construction
quality standards are not met. Reporting shall not be required       photographs shall be submitted within 30 days of documenting
if water quality standards are not violated.                         post-construction conditions.
a. A sampling station shall be located upstream and                  c. Summary of activities conducted to comply with the permit
immediately downstream of the relocated channel;                     conditions.

b. Temperature, pH and dissolved oxygen (D.O.)                       d. Summary of permit noncompliance events or problems
measurements shall be taken every 30 minutes for at least            encountered, subsequent notifications, and corrective actions.
two hours at each station prior to opening the new channels          e. Summary of anticipated work to be completed during the
and immediately before opening new channels.                         next monitoring period and an estimated date of construction
c. Temperature, pH and D.O. readings shall be taken after            completion at all impact areas.
opening the channels and every 30 minutes for at least three         f. Labeled site map depicting all impact areas and photo
hours at each station.                                               stations.
The permittee shall report violations of water quality standards     4. DEQ shall be notified in writing within 30 days following the
to DEQ in accordance with the procedures in Part II E.               completion of all activities in all permitted impact areas
Corrective measures and additional monitoring may be                 authorized under this permit.
required if water quality standards are not met. Reporting shall
not be required if water quality standards are not violated.         5. The permittee shall notify DEQ in writing when unusual or
                                                                     potentially complex conditions are encountered that require
C. Reporting.                                                        debris removal or involve a potentially toxic substance.
1. Written communications required by this VWP general               Measures to remove the obstruction, material, or toxic
permit shall be submitted to the appropriate Department of           substance or to change the location of any a structure are
Environmental Quality (DEQ) office. The VWP general permit           prohibited until approved by DEQ.
authorization number shall be included on all correspondence.        6. The permittee shall report any fish kills or spills of oil or fuel
2. DEQ shall be notified in writing at least 10 days prior to the    immediately upon discovery. If spills or fish kills occur between
start of construction activities at the first permitted site         the hours of 8:15 a.m. to 5 p.m., Monday through Friday, the
authorized by this VWP general permit authorization so that          appropriate DEQ regional office shall be notified; otherwise,
inspections of the project can be planned, if deemed                 the Department of Emergency Management shall be notified
necessary by DEQ. The notification shall include a projected         at 1-800-468-8892.
schedule for initiation and completion of work at each               7. Violations of state water quality standards shall be reported
permitted impact area.                                               within 24 hours to the appropriate DEQ office.
3. Construction monitoring reports shall be submitted to DEQ         8. All Submittals required by this VWP general permit shall
no later than the 10th day of the month following the month in       contain the following signed certification statement:
which the monitoring event specified in Part II B takes place.
The reports shall include the following, as appropriate:             "I certify under penalty of law that this document and all
                                                                     attachments were prepared under my direction or supervision
a. For each permitted impact area, a written narrative stating       in accordance with a system designed to assure that qualified
whether work was performed during the monitoring period,             personnel properly gather and evaluate the information
and if work was performed, a description of the work                 submitted. Based on my inquiry of the person or persons who
performed, when the work was initiated, and expected date of         manage the system, or those persons directly responsible for
completion.                                                          gathering the information, the information submitted is, to the
b. Properly Photographs labeled photographs with the permit          best of my knowledge and belief, true, accurate, and
number, the photo station number, the photo orientation, (to         complete. I am aware that there are significant penalties for


Volume 22, Issue 9                                                                                           Monday, January 9, 2006

                                                                 1245
Proposed Regulations
submitting false information, including the possibility of fine    H. Transferability of VWP general permit authorization. This
and imprisonment for knowing violation."                           VWP general permit authorization may be transferred to
                                                                   another person by a permittee if: when all of the criteria listed
 Part III. Conditions Applicable to All VWP General Permits.       below are met. On the date of the VWP general permit
A. Duty to comply. The permittee shall comply with all             authorization transfer, the transferred VWP general permit
conditions of the VWP general permit. Nothing in this VWP          authorization shall be as fully effective as if it had been issued
general permit shall be construed to relieve the permittee of      directly to the new permittee.
the duty to comply with all applicable federal and state           1. The current permittee notifies the board of the transfer of
statutes, regulations and toxic standards and prohibitions. Any    the title to the facility or property;.
VWP general permit noncompliance is a violation of the Clean
Water Act and State Water Control Law, and is grounds for          2. The notice to the board includes a written agreement
enforcement action, VWP general permit authorization               between the existing current and new permittee permittees
termination for cause, VWP general permit authorization            containing a specific date of transfer of VWP general permit
revocation, or denial of a continuation of coverage request.       authorization responsibility, coverage and liability to the new
                                                                   permittee, or that the existing current permittee will retain such
B. Duty to mitigate. The permittee shall take all reasonable       responsibility, coverage, or liability, including liability for
steps to minimize or prevent any impacts in violation of the       compliance with the requirements of any enforcement
VWP general permit which may have a reasonable likelihood          activities related to the permitted activity; and
of adversely affecting human health or the environment.
                                                                   3. The board does not notify the existing current and new
C. Reopener. This VWP general permit authorization may be          permittee permittees of its intent to modify or revoke and
reopened to modify its conditions when the circumstances on        reissue the VWP general permit authorization within 15 days.
which the previous VWP general permit authorization was
based have materially and substantially changed, or special        On the date of the VWP general permit authorization transfer,
studies conducted by the board or the permittee show material      the transferred VWP general permit authorization shall be as
and substantial change since the time the VWP general permit       fully effective as if it had been issued directly to the new
authorization was issued and thereby constitute cause for          permittee.
VWP general permit authorization revocation and reissuance.
                                                                   I. Notice of planned change. Authorization under this VWP
D. Compliance with state and federal law. Compliance with          general permit may be modified subsequent to issuance if: (i)
this VWP general permit constitutes compliance with the VWP        the in one or more of the cases listed below. A notice of
permit requirements of the State Water Control Law. Nothing        planned change is not required if the project results in
in this VWP general permit shall be construed to preclude the      additional temporary impacts to surface waters, provided that
institution of any legal action under or relieve the permittee     DEQ is notified in writing, the additional temporary impacts are
from any responsibilities, liabilities, or other penalties         restored to preexisting conditions in accordance with Part I C
established pursuant to any other state law or regulation or       11 of this general permit, and the additional temporary
under the authority preserved by § 510 of the Clean Water          impacts do not exceed the general permit threshold for use.
Act.                                                               The permittee shall notify the board in advance of the planned
                                                                   change, and the planned change request will be reviewed
E. Property rights. Coverage under this VWP general permit         according to all provisions of this regulation.
does not convey any property rights in either real or personal
property, or any exclusive privileges, nor does it authorize any   1. The permittee determines that additional permanent
injury to private property or any invasion of personal property    wetland, open water, or stream impacts are necessary,
rights, nor any infringement of federal, state or local laws or    provided that the additional impacts are associated with the
regulations.                                                       previously authorized activities in authorized locations within
                                                                   the same phase of development, the cumulative increase in
F. Severability. The provisions of this VWP general permit         acreage of wetland or open water impacts is not greater than
authorization are severable.                                       1/4 acre and, the cumulative increase in stream bed impacts
G. Right of entry. The permittee shall allow the board or its      is not greater than 50 100 linear feet, and provided that the all
agents, upon the presentation of credentials, at reasonable        additional impacts are fully compensated; (ii) the.
times and under reasonable circumstances: 1. to enter the          2. The project results in less wetland or stream impacts, in
permittee's property, public or private, and have access to,       which case compensation requirements may be modified in
inspect and copy any records that must be kept as part of the      relation to the adjusted impacts at the request of the
VWP general permit conditions; 2. to inspect any facilities,       permittee, provided that the adjusted compensation meets the
operations or practices (including monitoring and control          initial authorization compensation goals; (iii) there.
equipment) regulated or required under the VWP general
permit; 3. and to sample or monitor any substance, parameter       3. There is a change in the project plans that does not result in
or activity for the purpose of assuring compliance with the        a change in project impacts; (iv) there.
conditions of the VWP general permit or as otherwise
authorized by law. For the purpose of this section, the time for   4. There is a change in the mitigation bank at which credits
inspection shall be deemed reasonable during regular               are purchased or used, provided that the same amount of
business hours. Nothing contained herein shall make an             credits are purchased or used and all criteria for use are met,
inspection time unreasonable during an emergency.                  as detailed in 9 VAC 25-210-115; or (v) typographical F.

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                                                                                              Proposed Regulations
5. Typographical errors need to be corrected. A notice of             waters is unlawful where the activity is not authorized by a
planned change is not required if the project results in              VWP permit. I also understand that the submittal of this notice
additional temporary impacts to surface waters, provided that         does not release me from liability for any violations of this
DEQ is notified in writing, the additional temporary impacts are      VWP general permit authorization."
restored to preexisting conditions in accordance with Part I C
11 of this general permit, and the additional temporary               b. For project cancellation:
impacts do not exceed the general permit threshold for use.           "I certify under penalty of law that the activities and any
The permittee shall notify the board in advance of the planned        required compensatory mitigation authorized by this VWP
change, and the planned change request will be reviewed               general permit will not occur. I understand that by submitting
according to all provisions of this regulation.                       this notice of termination I am no longer authorized to perform
J. VWP general permit authorization termination for cause.            activities in surface waters in accordance with the VWP
This VWP general permit authorization is subject to                   general permit, and that performing activities in surface waters
termination for cause by the board after public notice and            is unlawful where the activity is not authorized by a VWP
opportunity for a hearing. Reasons for termination for cause          permit. I also understand that the submittal of this notice does
are as follows:                                                       not release me from liability for any violations of this VWP
                                                                      general permit authorization, nor does it allow me to resume
1. Noncompliance by the permittee with any condition of the           the     permitted    activities  without    reapplication    and
VWP general permit authorization;                                     reauthorization."
2. The permittee's failure in the application or during the VWP       c. For events beyond permittee control, the permittee shall
general permit authorization issuance process to disclose fully       provide a detailed explanation of the events, to be approved
all relevant facts or the permittee's misrepresentation of any        by DEQ, and the following certification statement:
relevant facts at any time;
                                                                      "I certify under penalty of law that all the activities or the
3. The permittee's violation of a special or judicial order; and      required compensatory mitigation authorized by a VWP
                                                                      general permit have changed as the result of events beyond
4. A determination by the board that the permitted activity           my control (see attached). I understand that by submitting this
endangers human health or the environment and can be                  notice of termination I am no longer authorized to perform
regulated to acceptable levels by a VWP general permit                activities in surface waters in accordance with the VWP
authorization planned change or termination for cause.                general permit, and that performing activities in surface waters
K. VWP general permit authorization termination by consent.           is unlawful where the activity is not authorized by a VWP
This VWP general permit authorization may be terminated by            permit. I also understand that the submittal of this notice does
consent when all permitted activities requiring notification          not release me from liability for any violations of this VWP
under 9 VAC 25-690-50 9 VAC 25-660-50 A 1 and all                     general permit authorization, nor does it allow me to resume
compensatory mitigation have been completed, or when the              the     permitted   activities   without    reapplication    and
authorized impacts will not occur, or when a planned change           reauthorization."
occurs that involves substituting a specified, approved               L. Civil and criminal liability. Nothing in this VWP general
mitigation bank or banks with another specified, approved             permit shall be construed to relieve the permittee from civil
mitigation bank. The permittee shall submit a request for             and criminal penalties for noncompliance.
termination by consent within 30 days of project completion or
project cancellation. When submitted for project completion,          M. Oil and hazardous substance liability. Nothing in this VWP
the termination by consent shall constitute a notice of               general permit shall be construed to preclude the institution of
completion in accordance with 9 VAC 25-210-130.The director           legal action or relieve the permittee from any responsibilities,
may accept this termination of authorization on behalf of the         liabilities, or penalties to which the permittee is or may be
board. The request for termination by consent shall contain           subject under § 311 of the Clean Water Act or §§ 62.1-
the following information:                                            44.34:14 through 62.1-44.34:23 of the State Water Control
                                                                      Law.
1. Name, mailing address and telephone number of the
permittee;                                                            N. Duty to cease or confine activity. It shall not be a defense
                                                                      for a permittee in an enforcement action that it would have
2. Name and location of the activity;                                 been necessary to halt or reduce the activity for which a VWP
3. The VWP permit authorization number; and                           permit has been granted in order to maintain compliance with
                                                                      the conditions of the VWP permit.
4. One of the following certifications:
                                                                      O. Duty to provide information.
a. For project completion:
                                                                      1. The permittee shall furnish to the board any information
"I certify under penalty of law that all activities and any           which the board may request to determine whether cause
required compensatory mitigation authorized by a VWP                  exists for modifying, revoking, and reissuing, and terminating
general permit have been completed. I understand that by              the VWP permit authorization, or to determine compliance
submitting this notice of termination I am no longer authorized       with the VWP permit authorization. The permittee shall also
to perform activities in surface waters in accordance with the        furnish to the board, upon request, copies of records required
VWP general permit, and that performing activities in surface         to be kept by the permittee.

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                                                                   1247
Proposed Regulations
2. Plans, maps, conceptual reports and other relevant             d. New activities that cause significant alteration                  or
information shall be submitted as required by the board prior     degradation of existing wetland acreage or functions.
to commencing construction.                                               VA.R. Doc. No. R05-286; Filed December 16, 2005, 9:41 a.m.
P. Monitoring and records requirements.
                                                                                               ********
1. Monitoring of parameters, other than pollutants, shall be
conducted according to approved analytical methods as             Title of Regulation: 9 VAC 25-670. Virginia Water Protection
specified in the VWP permit. Analysis of pollutants will be       General Permit for Facilities and Activities of Utility and
conducted according to 40 CFR Part 136 (2000), Guidelines         Public Service Companies Regulated by the Federal
Establishing Test Procedures for the Analysis of Pollutants.      Energy Regulatory Commission or the State Corporation
                                                                  Commission and Other Utility Line Activities (amending
2. Samples and measurements taken for the purpose of
                                                                  9 VAC 25-670-10 through 9 VAC 25-670-100; adding 9 VAC
monitoring shall be representative of the monitored activity.
                                                                  25-670-95).
3. The permittee shall retain records of all monitoring
                                                                  Statutory Authority: §§ 62.1-44.15 and 62.1-44.15:5 of the
information, including all calibration and maintenance records
                                                                  Code of Virginia; § 401 of the Clean Water Act (33 USC
and all original strip chart or electronic recordings for
                                                                  § 1251 et seq.).
continuous monitoring instrumentation, copies of all reports
required by the VWP permit, and records of all data used to       Public Hearing Date: February 6, 2006 - 3:30 p.m.
complete the application for the VWP permit, for a period of at     Public comments may be submitted until 5 p.m. on March
least three years from the date of the expiration of a granted      10, 2006.
VWP permit. This period may be extended by request of the             (See Calendar of Events section
board at any time.                                                    for additional information)
4. Records of monitoring information shall include, as            Agency Contact: Catherine M. Harold, Department of
appropriate:                                                      Environmental Quality, P.O. Box 10009, Richmond, VA
                                                                  23229, telephone (804) 698-4047, FAX (804) 698-4347, or e-
a. The date, exact place and time of sampling or
                                                                  mail cmharold@deq.virginia.gov.
measurements;
                                                                  Summary:
b. The name of the individuals who performed the sampling or
measurements;                                                        Virginia Water Protection (VWP) General Permit WP2 will
                                                                     expire on October 1, 2006. The proposed revisions include
c. The date and time the analyses were performed;
                                                                     minor changes to improve the processing and coordination
d. The name of the individuals who performed the analyses;           of authorizations, both for the public, DEQ, and other
                                                                     agencies. These VWP general permit regulations generally
e. The analytical techniques or methods supporting the               reduce the permitting burden to the public and minimize the
information such as observations, readings, calculations and         amount of agency duplication in processing permit
bench data used;                                                     authorizations; it is in the interest of all to continue to
f. The results of such analyses; and                                 provide this level of service through the renewal of this
                                                                     general permit.
g. Chain of custody documentation.
                                                                     The amendments (i) modify definitions; (ii) make minor
Q. Unauthorized discharge of pollutants. Except in compliance        grammatical changes; (iii) format, reconsolidate and reorder
with this VWP general permit, it shall be unlawful for the           text to improve readability; (iv) clarify existing requirements;
permittee to:                                                        (v) prohibit the use of this general permit for wetlands, open
1. Discharge into state waters sewage, industrial wastes,            waters and streams that are protected by deed restrictions
other wastes, or any noxious or deleterious substances;              or similar protective covenants imposed by previous state or
                                                                     federal permit actions; (vi) extend the life of the general
2. Excavate in a wetland;                                            permit regulations to 10 years instead of the current five
                                                                     years; (vii) extend the permit authorization period to up to
3. Otherwise alter the physical, chemical, or biological             seven years; (viii) reiterate provisions in the main VWP
properties of state waters and make them detrimental to the          regulation for purposes of emphasis; and (ix) amend the
public health, to animal or aquatic life, to the uses of such        thresholds of coverage for wetlands and open waters and
waters for domestic or industrial consumption, for recreation,       stream impacts, which were previously combined together
or for other uses; or                                                as “surface waters.” Due to limited interest expressed in the
4. On and after October 1, 2001, conduct the following               discussions among the Technical Advisory Committee,
activities in a wetland:                                             consideration for repealing this general permit and
                                                                     incorporating its provisions into WP4 has been dropped.
a. New activities to cause draining that significantly alter or
degrade existing wetland acreage or functions;                    9 VAC 25-670-10. Definitions.

b. Filling or dumping;                                            The words and terms used in this chapter shall have the
                                                                  meanings defined in the State Water Control Law (§ 62.1-44.2
c. Permanent flooding or impounding; or

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                                                              1248
                                                                                           Proposed Regulations
et seq. of the Code of Virginia) and the Virginia Water            an acre in size; (iii) is not located in a Federal Emergency
Protection (VWP) Permit Regulation (9 VAC 25-210) unless           Management Agency designated 100-year floodplain; (iv) is
the context clearly indicates otherwise or unless otherwise        not identified by the Virginia Natural Heritage Program as a
indicated below.                                                   rare or state significant natural community; (v) is not forested;
                                                                   and (vi) does not contain listed federal or state threatened or
"Bank protection" means measures employed to stabilize             endangered species.
channel banks and combat existing erosion problems. Such
measures may include the construction of riprap revetments,        "Less than one-half of an acre" means 0.00 to 0.49 acre (0 to
sills, rock vanes, beach nourishment, breakwaters, bulkheads,      21,779 square feet) or less.
groins, spurs, levees, marsh toes stabilization, anti-scouring
devices, and submerged sills.                                      “Open water” means an area that, during a year with normal
                                                                   patterns of precipitation, has standing water for sufficient
"Channelization" means the alteration of a stream channel by       duration to establish an ordinary high water mark. The term
widening, deepening, straightening, cleaning or paving certain     “open water” includes lakes and ponds but does not include
areas.                                                             ephemeral waters, stream beds, or wetlands.
"Conversion" means changing one type of surface water to           “Ordinary high water” or “ordinary high water mark” means the
another type of surface water, either permanently or               line on the shore established by the fluctuations of water and
temporarily. The permanent conversion of a forested wetland        indicated by physical characteristics such as clear, natural line
to an emergent wetland is considered to be a permanent             impressed on the bank; shelving; changes in the character of
impact for the purposes of this regulation.                        soil; destruction of terrestrial vegetation; the presence of litter
                                                                   and debris; or other appropriate means that consider the
"Cross-sectional sketch" means a graph or plot of ground           characteristics of the surrounding areas.
elevation across a waterbody or a portion of it, usually along a
line perpendicular to the waterbody or direction of flow.          "Perennial stream" means a well-defined channel that
                                                                   contains water year round during a year of normal rainfall.
"Emergent wetland" means a class of wetlands characterized         Generally, the water table is located above the streambed for
by erect, rooted, herbaceous plants growing in water or on a       most of the year and groundwater is the primary source for
substrate that is at least periodically deficient in oxygen as a   stream flow. A perennial stream exhibits the typical biological,
result of excessive water content, excluding mosses and            hydrological, and physical characteristics commonly
lichens. This vegetation is present for most of the growing        associated with the continuous conveyance of water.
season in most years and are usually dominated by perennial
plants.                                                            "Permanent impacts" are means those impacts to surface
                                                                   waters, including wetlands, that cause a permanent alteration
"FEMA" means Federal Emergency Management Agency.                  of the physical, chemical, or biological properties of the
"Forebay" means a deeper area at the upstream end of a             surface waters, or of the functions and values of a wetland.
stormwater management facility that would be maintained            "Person" means an individual, corporation, partnership,
through excavation.                                                association, government governmental body, municipal
"Forested wetland" means a class of wetlands characterized         corporation, or any other legal entity.
by woody vegetation that is six meters (20 feet) tall or taller.   "Riprap" means a layer of nonerodible material such as stone
These areas normally possess an overstory of trees, an             or chunks of concrete.
understory of trees or shrubs, and an herbaceous layer.
                                                                   "Scrub-shrub wetland" means a class of wetlands dominated
"Greater than one acre" means more than 1.00 acre (43,560          by woody vegetation less than six meters (20 feet) tall. The
square feet).                                                      species include tree shrubs, young trees, and trees or shrubs
"Impacts" means results caused by human-induced activities         that are small or stunted because of environmental conditions.
conducted in surface waters, as specified in § 62.1-44.15:5 D      "Single and complete project" means the total project
of the Code of Virginia.                                           proposed or accomplished by a person and, which also has
"Independent utility" means a test to determine what               independent utility, as defined in this section. For linear
constitutes a single and complete project. A project is            projects, the "single and complete project" (i.e. e.g., a single
considered to have independent utility if it would be              and complete crossing) may but does not always will apply to
constructed absent the construction of other projects in the       each crossing of a separate surface water (i.e. e.g., a single
project area. Portions of a multi-phase phased project that        waterbody) and to multiple crossings of the same waterbody
depend upon other phases of the project do not have                at separate and distinct locations. Phases of a project that
independent utility. Phases Portions of a phased project that      have independent public and economic utility may each be
would be constructed even if the other phases are not built        considered single and complete.
can be considered as separate single and complete projects         "State programmatic program general permit (SPGP)" means
with independent utility.                                          a general permit issued by the Department of the Army in
“Isolated Wetland of Minimal Ecological Value (IWOMEV)”            accordance with 33 USC 1344(e), 33 CFR Part 32S
means a wetland that: (i) does not have a surface water            325.2(e)(2), and 33 CFR 325.3(b) that is founded on a state
connection to other state waters; (ii) is less than one-tenth of   program and. The SPGP is designed to avoid duplication
                                                                   between the federal and state programs.

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                                                               1249
Proposed Regulations
Stream bed” means the substrate of a stream, as measured             denial by the board shall constitute the VWP general permit
between the ordinary high water marks along a length of              action. Each VWP general permit action shall follow all
stream. The substrate may consist of organic matter, bedrock         provisions in the State Water Control Law (§ 62.1-44.2 et seq.
or inorganic particles that range in size from clay to boulders,     of the Code of Virginia), except for the public comment and
or a combination of both. Areas contiguous to the stream bed,        participation provisions, from which each VWP general permit
but outside of the ordinary high water marks, are not                action is exempt.
considered part of the stream bed. Ditches, swales, and open
water are not considered to be stream bed for the purposes of        B. The director, or his designee, may perform any act of the
this regulation.                                                     board provided under this chapter, except as limited by
                                                                     § 62.1-44.14 of the Code of Virginia.
“Surface waters” means all state waters that are not ground
water as defined in § 62.1-255 of the Code of Virginia.              C. This VWP general permit regulation will become effective
                                                                     on October 1, 2001 (insert effective date), and will expire on
"Temporary impacts" are those impacts to surface waters,             October 1, 2006 (insert date that is 10 years after effective
including wetlands, that do not cause a permanent alteration         date).
of the physical, chemical, or biological properties of the
surface water, or of the functions and values of a wetland.          D. Authorization to impact surface waters under this VWP
Temporary impacts include activities in which the ground is          general permit is effective upon compliance with all the
restored to its preconstruction conditions, contours and, or         provisions of 9 VAC 25-670-30. Notwithstanding the expiration
elevations, such that previous functions and values are              date of this general permit regulation, authorization to impact
restored.                                                            surface waters under this VWP general permit will continue for
                                                                     a maximum of three seven years.
"Up to 300 linear feet of stream channel" means >0.00 to
300.00 linear feet of any stream, rounded to the second              9 VAC 25-670-30. Authorization to impact surface waters.
decimal place, as measured along the center of the main              A. Any person governed by this VWP general permit is
channel of the stream segment.                                       authorized to permanently or temporarily impact up to one
"Up to 500 linear feet of perennial stream channel" means            acre of nontidal surface waters, including wetlands or open
0.00 to 500.00 linear feet of perennial stream, rounded to the       water and up to 500 1,500 linear feet of perennial nontidal
second decimal place, as measured along the center of the            stream channel and up to 1,500 linear feet of nonperennial
main channel of the stream segment.                                  stream channel, bed for facilities and activities of utilities and
                                                                     public service companies regulated by the Federal Energy
"Up to 1500 linear feet of nonperennial stream channel"              Regulatory Commission or the State Corporation Commission
means >0.00 to 1500.00 linear feet of nonperennial stream,           and other utility line activities, provided that the person
rounded to the second decimal place, as measured along the           submits notification as required in 9 VAC 25-670-50 and
center of the main channel of the stream segment.                    9 VAC 25-670-60, remits the required application processing
                                                                     fee (9 VAC 25-20), complies with the limitations and other
"Up to one-tenth of an acre" means 0.00 to 0.10 acre (0 to           requirements of 9 VAC 25-670-100, receives approval from
4,356 square feet) or less.                                          the board, and provided that:
"Up to one acre" means 0.00 to 1.00 acre (0 to 43,560 square         1. The applicant submits notification as required in 9 VAC 25-
feet).                                                               670-50 and 9 VAC 25-670-60.
"Up to two acres" means 0.00 to 2.00 acres (0 to 87,120              2. The applicant remits the required application processing fee
square feet) or less.                                                in accordance with 9 VAC 25-20.
"Utility line" means any a pipe or pipeline for the transportation   3. The applicant complies with the limitations and other
of any a gaseous, liquid, liquifiable liquefiable or slurry          requirements of 9 VAC 25-670-100.
substance, for any purpose, and any a cable, line, or wire for
the transmission for any purpose of electrical energy,               4. The applicant receives approval from the Virginia
telephone, and telegraph messages and radio and television           Department of Environmental Quality.
communication. The term utility line does not include activities
which drain a surface water to convert it to an upland, such as      1. 5. The applicant shall not have been required to obtain a
drainage tiles or french drains; however, it does apply to pipes     VWP individual permit under the VWP permit regulation
conveying drainage from another area.                                (9 VAC 25-210) for the proposed project impacts. The
                                                                     applicant, at his discretion, may seek a VWP individual permit
9 VAC 25-670-20. Purpose; delegation              of   authority;    or coverage under another applicable VWP general permit in
effective date of VWP general permit.                                lieu of this VWP general permit.
A. The purpose of this regulation is to establish VWP General        2. 6. Impacts, both temporary and permanent, result from a
Permit Number WP2 under the VWP permit program                       single and complete project, including all attendant features.
regulation to govern permanent and temporary impacts
related to the construction and maintenance of utility lines.        a. Where a utility line has multiple crossings of surface waters
Applications for coverage under this VWP general permit shall        (several single and complete projects) with more than minimal
be processed for approval, approval with conditions, or denial       impacts, the board may at its discretion require a VWP
by the board. Authorization, authorization with conditions, or       individual permit for the project.


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                                                                                           Proposed Regulations
b. Where an access road segment (i.e. e.g., the shortest           and utility line substations, provided the activity in combination
segment of a road with independent utility that is part of a       with any substation does not exceed the threshold limit of this
larger project) has multiple crossings of surface waters           VWP general permit.
(several single and complete projects), the board may, at its
discretion, require a VWP individual permit.                       C. The board waives the requirement for coverage under a
                                                                   VWP general permit for activities that occur in an isolated
7. The stream impact criterion applies to all components of the    wetland of minimal ecological value, as defined in 9 VAC 25-
project, including any structures and stream channel               210-10 9 VAC 25-670-10. Any person claiming this waiver
manipulations.                                                     bears the burden to demonstrate that he qualifies for the
                                                                   waiver.
8. When functions and values of surface waters are
permanently adversely affected, such as for conversion of          D. Receipt of this VWP general permit does not relieve any
forested to emergent wetlands in a permanently maintained          the permittee of the responsibility to comply with any other
utility right-of-way, compensation shall be required for impacts   applicable federal, state or local statute, ordinance or
outside of a 20-foot wide permanently maintained corridor.         regulation.
Compensation shall not be required for impacts within the 20-
foot wide portion of permanently maintained corridor. For          E. In issuing this VWP general permit, the board has not taken
example, with a 50-foot wide, permanently maintained               into consideration the structural stability of the proposed
corridor, compensation on each side of the 20-foot portion         structure or structures.
would be required for impacts that occur between the 20-foot       F. Coverage under a nationwide or regional permit
and the 50-foot marks.                                             promulgated by the U.S. Army Corps of Engineers (USACE),
3. 9. Compensation for unavoidable impacts is provided in the      and for which the board has issued § 401 certification existing
form of any one or combination of the following: creation,         as of October 1, 2001 (insert the effective date of this
restoration, the purchase or use of mitigation bank credits, or    regulation), shall constitute coverage under this VWP general
a contribution to an approved in-lieu fee fund. For wetlands       permit unless a state programmatic program general permit is
compensation may incorporate preservation of wetlands, or          approved for the covered activity or impact. Notwithstanding
preservation or restoration of upland buffers adjacent to state    any other provision, activities authorized under a nationwide
waters, when utilized in conjunction with creation, restoration    or regional permit promulgated by the USACE and certified by
or mitigation bank credits. For other surface waters,              the board in accordance with 9 VAC 25-210-130 do not need
compensation       may     incorporate    preservation     and     to obtain coverage under this VWP general permit unless a
enhancement of stream channels, or preservation or                 state programmatic general permit is approved for the covered
restoration and enhancement of adjacent riparian buffers           activity or impact.
accordance with 9 VAC 25-670-70.                                   G. When the board determines on a case-by-case basis that
4. The stream impact criterion applies to all components of the    concerns for water quality and the aquatic environment so
project, including any structures and stream channel               indicate, the board may require individual applications and
manipulations.                                                     VWP individual permits rather than approving coverage under
                                                                   this VWP general permit.
5. When functions and values of surface waters are
permanently adversely affected, such as for conversion of          9 VAC 25-670-40. Exceptions to coverage.
forested to emergent wetlands in permanently maintained            A. Authorization for coverage under this VWP general permit
utility right-of-ways, compensation will be required.              will not apply in the following areas:
Permanently maintained access corridors no wider than 20
feet will be allowed without compensation.                         1. Wetlands composed of 10% or more of the following
                                                                   species (singly or in combination) in any a vegetative stratum:
B. Activities that may be authorized under this VWP general        Atlantic white cedar (Chamaecyparis thyoides), bald cypress
permit include the following:                                      (Taxodium distichum), water tupelo (Nyssa aquatica), or
1. The construction, maintenance or repair of utility lines,       overcup oak (Quercus lyrata). Percentages shall be based
including outfall structures and the excavation, backfill or       upon either basal area or percent areal cover in the area of
bedding for utility lines provided there is no change in           impact.
preconstruction contours;.                                         2. Surface waters where the proposed activity will impact
2. The construction, maintenance or expansion of a substation      federal or state listed or proposed threatened or endangered
facility or pumping station associated with a power line or        species or proposed or designated critical habitat.
utility line;.                                                     B. Authorization for coverage under this VWP general permit
3. The construction or maintenance of foundations for              cannot be used in combination with authorizations for
overhead utility line towers, poles or anchors, provided the       coverage under other VWP general permits in order to impact
foundations are the minimum size necessary and separate            greater than one acre of nontidal surface waters, or more
footings for each tower leg (rather than a single pad) are used    wetlands or open water or greater than 500 1,500 linear feet
where feasible; and.                                               of perennial nontidal stream channel or more than 1,500 linear
                                                                   feet of nonperennial stream channel bed. More than one
4. The construction of access roads for the construction or        authorization for coverage under this VWP general permit for
maintenance of utility lines including overhead power lines        a single and complete project is prohibited, except when the

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                                                               1251
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cumulative impact to surface waters does not exceed the              applicant may submit a full and complete permit application for
limits specified here.                                               further consideration by the board.
C. The activity to impact surface waters shall not have been         9 VAC 25-670-50. Notification.
prohibited by state law or regulations, nor shall it contravene
applicable Water Quality Standards (9 VAC 25-260).                   A. Notification to the board is not required for utility line
                                                                     activities that have only temporary impacts provided they the
D. The board shall deny coverage under this VWP general              impacts do not involve mechanized land clearing of forested
permit to any applicant for activities that cause, may               wetlands.
reasonably be expected to cause, or may be contributing to a
violation of water quality standards, including discharges or        B. Notification to the board will be required prior to
discharge-related activities that are likely to adversely            commencing construction, as follows:
significantly affect aquatic life, or for activities that together   1. An application for authorization of proposed, permanent
with other existing or proposed impacts to wetlands will cause       nontidal wetland or open water impacts greater than one-tenth
or contribute to a significant impairment of state waters or fish    of an acre of surface waters, or for proposed permanent
and wildlife resources.                                              nontidal stream bed impacts greater than 300 linear feet of
E. This VWP general permit does not authorize activities that        stream channel, shall be submitted via an application that
cause more than minimal changes to the peak hydraulic flow           includes all information pursuant to 9 VAC 25-670-60 B. Once
characteristics, that significantly increase flooding, or that       permanent impacts exceed these limits, compensatory
cause more than minimal degradation of the water quality of          mitigation may be required for all permanent impacts in
any a stream.                                                        accordance with Parts I, II, and III of this VWP general permit
                                                                     regulation. All temporary impacts shall be restored to
F. This VWP general permit may not be used for:                      preexisting conditions, as per Parts I, II, and III of this VWP
                                                                     general permit regulation.
1. Any Construction of a stormwater management facility;.
                                                                     2. An application for the authorization of proposed, permanent
2. Any water withdrawal activity; activities.                        surface nontidal wetland or open water impacts up to one-
3. The pouring of wet concrete or the use of tremie concrete         tenth of an acre, which may include or or proposed,
or grout bags in state waters, unless the area is contained          permanent nontidal stream bed impacts up to 300 linear feet
within a cofferdam or the work is performed in the dry;.             of stream channel, shall be reported submitted via an
                                                                     application that includes only the following information:
4. Dredging or maintenance dredging;.                                subdivisions 1 through 8, 9, 13, 15, 20, and 20 21 of 9 VAC
5. The taking of threatened or endangered species in                 25-670-60 B, and documentation that verifies the quantity and
accordance with the following:                                       type of impacts. If permanent impacts remain below these
                                                                     limits, compensatory mitigation is not required for permanent
a. As pursuant to § 29.1-564 of the Code of Virginia: ", the         impacts. All temporary impacts shall be restored to preexisting
taking, transportation, processing, sale or offer for sale within    conditions, as per Parts I and III of this VWP general permit
the Commonwealth of any fish or wildlife appearing on any list       regulation.
of threatened or endangered species published by the United
States Secretary of the Interior pursuant to the provisions of       C. A Joint Permit Application (JPA) or Virginia Department of
the federal Endangered Species Act of 1973 (P.L. 93-205), or         Transportation Interagency Coordination Meeting Joint Permit
any modifications or amendments thereto, is prohibited except        Application (VDOT IACM JPA) shall serve as an application
as provided in § 29.1-568."                                          under this regulation.

b. As pursuant to § 29.1-566 of the Code of Virginia and             D. The board will determine whether the proposed activity
4 VAC 15-20-130 B and C, the taking, transportation.,                requires coordination with the United States Fish and Wildlife
processing, sale or offer for sale within the Commonwealth of        Service, the Virginia Department of Conservation and
any state-listed endangered or threatened species is                 Recreation, the Virginia Department of Agriculture and
prohibited except as provided in § 29.1-568 of the Code of           Consumer Services and the Virginia Department of Game and
Virginia.                                                            Inland Fisheries regarding the presence of any federal or state
                                                                     proposed or listed threatened and endangered species or
6. Proposed activities in wetlands, open water, streams, or          proposed or designated critical habitat. Based upon
compensatory mitigation sites that are under a deed                  consultation with these agencies, the board may deny
restriction, conservation easement, restrictive covenant, or         coverage under this general permit. The applicant may also
other land use protective instrument (hereafter protected            consult with these agencies prior to submitting an application.
areas), where such restriction, easement, covenant, or               Species or habitat information that the applicant provides will
instrument is the result of a federal or state permit action and     assist DEQ in reviewing and processing the application.
is specific to activities in wetlands and compensatory
mitigation sites, and where the proposed activities incur up to      9 VAC 25-670-60. Application.
1/10 acre of wetland or open water impacts or up to 300 linear       A. Applications shall be filed with the board, as follows:
feet of stream bed impacts. Where the proposed activities in
protected areas impact greater than 1/10 acre wetlands or            1. The applicant shall file a complete application as described
open water, or greater than 300 linear feet of stream bed, the       in accordance with 9 VAC 25-670-50 for a VWP General
                                                                     Permit WP2 for impacts to surface waters resulting from

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                                                                                             Proposed Regulations
activities of utilities, which will serve as a notice of intent for   field observations of the existing wetland functions and values
coverage under this VWP general permit.                               and an assessment of the impact that the project will have on
                                                                      these functions and values. The following parameters/ and
2. The VDOT may use its monthly IACM process for                      functions shall be directly addressed: surrounding land uses
submitting applications.                                              and cover types; nutrient, sediment, and pollutant trapping;
B. The required application shall contain the following               flood control and flood storage capacity; erosion control and
information, if applicable to the project:                            shoreline stabilization; groundwater recharge and discharge;
                                                                      aquatic and wildlife habitat; and unique or critical habitats;.
1. The applicant's name, mailing address, and telephone
number; and, if applicable, fax number.                               15. A description of the specific on-site measures considered
                                                                      or and taken during project design and development both to
2. The authorized agent's (if applicable) name, mailing               avoid and minimize impacts to surface waters to the maximum
address, telephone number and, if applicable, fax number and          extent practicable;.
electronic mail address;.
                                                                      16. A conceptual plan for the intended compensation for
3. The existing VWP permit number (if applicable);.                   unavoidable impacts, including:
4. The name of the project, narrative description of project          a. For wetlands, the conceptual compensation plan shall
purpose, and a description of the proposed activity in surface        include: the goals and objectives in terms of replacement of
waters;.                                                              wetland acreage and function; a detailed location map (e.g., a
5. The name of the water body or water bodies or receiving            United States Geologic Survey topographic quadrangle map),
stream, as applicable;.                                               including latitude and longitude (to the nearest second) at the
                                                                      center of the site; a description of the surrounding land use; a
6. The hydrologic unit code (HUC) for the project area;.              hydrologic analysis, including a draft water budget based on
                                                                      expected monthly inputs and outputs which will project water
7. The name of the city or county where the project is located;.
                                                                      level elevations for a typical year, a dry year, and a wet year;
8. Latitude and longitude, to the nearest second, from a              groundwater elevation data, if available, or the proposed
central location within the project limits;.                          location of groundwater monitoring wells to collect these data;
                                                                      a map for existing surface water areas on the proposed site or
9. A detailed location map (e.g., a United States Geologic            sites, including a wetland delineation confirmation for any
Survey topographic quadrangle map) of the project area,               existing wetlands; a conceptual grading plan; a conceptual
including the project boundary. The map shall be of sufficient        planting scheme, including suggested plant species and
detail such that the site may be easily located for site              zonation of each vegetation type proposed; and a description
inspection;.                                                          of existing soils, including general information on topsoil and
10. (Reserved.);                                                      subsoil conditions, permeability, and the need for soil
                                                                      amendments.
11. Project plan view. All Plan view sketches shall include, at
a minimum, north arrow, scale, existing structures, existing          b. For streams, the conceptual compensation plan shall
and proposed contours (if available), limit of surface water          include: the goals and objectives in terms of water quality
areas, direction of flow, ordinary high water, impact limits, and     benefits and replacement of stream functions; a detailed
location and dimension of all proposed structures in impact           location map (e.g., a United States Geologic Survey
areas. In addition, cross-sectional or profile sketches, as           topographic quadrangle map), including the latitude and
appropriate, with the above information, shall may be required        longitude and the hydrologic unit code (HUC) at the center of
as appropriate to demonstrate minimization of impacts; detail         the site to the nearest second; the proposed stream segment
impact areas.                                                         restoration locations, including plan view and cross-section
                                                                      sketches; the stream deficiencies that need to be addressed;
12. (Reserved.)                                                       the proposed restoration measures to be employed, including
13. Surface water impact information (wetlands, streams, or           channel measurements, proposed design flows and types of
open water) for both permanent and temporary impacts,                 instream structures; and reference stream data, if available.
including a description of the impact, the areal extent of the        c. Applicants proposing to compensate off-site, including
impact (area of wetland in square feet and acres; area of             purchase or use of mitigation bank credits, or contribution to
stream, length of stream, and average width), the location            an in-lieu fee fund shall submit an evaluation of the feasibility
(latitude and longitude at the center of the impact, or at the        of on-site compensation. If on-site compensation is
center of each impact for linear projects) and the type of            practicable, applicants shall provide documentation as to why
surface water impact (open water; wetlands according to the           the proposed off-site compensation is ecologically preferable.
Cowardin classification or similar terminology); or perennial         The evaluation shall include, but not be limited to, the
and nonperennial for streams). The board encourages                   following assessment criteria: water quality benefits,
applicants to coordinate the determination of perennial or            hydrologic source, hydrologic regime, watershed, surface
nonperennial streams with the appropriate local government            water functions and values, vegetation type, soils, impact
agency in Tidewater Virginia.                                         acreage, distance from impacts, timing of compensation
14. Functional values assessment for impacts to wetlands              versus impacts, acquisition, constructability, and cost.
greater than one acre, which shall consist of a summary of

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                                                                  1253
Proposed Regulations
d. Any applicant Applicants proposing compensation involving       manage the system or those persons directly responsible for
contributions to an in-lieu fee fund shall state such as the       gathering the information, the information submitted is to the
conceptual compensation plan. Written documentation of the         best of my knowledge and belief true, accurate, and complete.
willingness of the entity to accept the donation and               I am aware that there are significant penalties for submitting
documentation of how the amount of the contribution was            false information including the possibility of fine and
calculated shall be submitted prior to issuance of this general    imprisonment for knowing violations."
permit authorization.
                                                                   C. The application shall be signed in accordance with 9 VAC
e. Any applicant Applicants proposing compensation involving       25-210-100. If an agent is acting on behalf of an applicant, the
the purchase or use of mitigation banking credits shall include    applicant shall submit an authorization of the agent that
as their conceptual compensation plan:                             includes the signatures of both the applicant and the agent.
(1) The name of the proposed mitigation bank and the HUC in        D. Upon receipt of an application by the appropriate DEQ
which it is located;                                               office, the board has 15 days to review the application and
                                                                   either determine the information requested in subsection B of
(2) The number of credits proposed to be purchased or used;        this section is complete or inform the applicant that additional
and                                                                information is required to make the application complete.
(3) Certification from the bank owner of the availability of       Coverage under the VWP general permit shall be approved,
credits;.                                                          approved with conditions, or denied within 45 days of receipt
                                                                   of a complete application. If the board fails to act within 45
17. A delineation map must be provided of the geographic           days on a complete application, coverage under the VWP
area of a delineated wetland for all wetlands on the site, in      general permit shall be deemed approved.
accordance with 9 VAC 25-210-45, including the wetlands
data sheets. The delineation map shall also include the            1. In evaluating the application, the board shall make an
location of streams, open water, and the approximate limits of     assessment of the impacts associated with the project in
Chesapeake Bay Resource Protection Areas (RPAs), as other          combination with other existing or proposed impacts.
state or local requirements may apply if the project is located    Coverage under the VWP general permit shall be denied if the
within an RPA. Wetland types shall be noted according to their     cumulative impacts will cause or contribute to a significant
Cowardin classification or similar terminology. A copy of the      impairment of surface waters or fish and wildlife resources.
USACE delineation confirmation, or other correspondence            2. The board may place additional conditions on a project in
from the USACE indicating their approval of the wetland            order to approve authorization under this VWP general permit.
boundary, shall also be provided at the time of application, or    However, these conditions must be consistent with the VWP
if not available at that time, as soon as it becomes available     permit regulation.
during the VWP permit review. The delineation map shall also
include the location of streams, open water and other surface      E. Incomplete application. Where an application is incomplete,
waters on the site. The approximate limits of any Chesapeake       the board shall require the submission of additional
Bay Resource Protection Areas (RPAs) shall be shown on the         information and shall may suspend processing the application
map, as other state or local requirements may apply if the         until such time as the applicant has supplied the missing or
project is located within an RPA;                                  deficient requested information and the application is
                                                                   complete. Further, Where the applicant becomes aware that
18. A copy of the FEMA flood insurance rate map or FEMA-           he omitted one or more relevant facts from an application, or
approved local floodplain map for the project site;.               submitted incorrect information in an application or in any
19. The appropriate application processing fee for a VWP           report reports to the board, he shall immediately submit such
general permit (in accordance with 9 VAC 25-20); and. The          facts or the correct information. Such A revised application
permit application fee for VWP permit authorizations is based      with new information shall be deemed a new application, but
on acres only. Therefore, impacts that include linear feet of      shall not require an additional permit application fee. An
stream bed must be converted to an acreage in order to             incomplete permit application may be administratively
calculate the permit application fee.                              withdrawn from processing by the board after 180 days from
                                                                   the date that the original permit application was received by
20. A written disclosure identifying all wetlands, open water,     the board. Resubmittal of a permit application for the same or
streams, and associated upland buffers within the proposed         similar project, after such time that the original permit
project or compensation areas that are under a deed                application was administratively withdrawn, shall require
restriction, conservation easement, restrictive covenant, or       submittal of an additional permit application fee.
other land use protective instrument (protected areas). Such
disclosure shall include the nature of the prohibited activities   9 VAC 25-670-70. Compensation.
within the protected areas.                                        A. In accordance with 9 VAC 25-670-50 B 1, compensatory
20. 21. The following certification:                               mitigation may be required for all permanent, nontidal surface
                                                                   water impacts once the notification limits are exceeded. All
"I certify under penalty of law that this document and all         temporary, nontidal surface water impacts shall be restored to
attachments were prepared under my direction or supervision        preexisting conditions.
in accordance with a system designed to assure that qualified
personnel properly gather and evaluate the information             B. Generally, the sequence of preferred compensation options
submitted. Based on my inquiry of the person or persons who        shall be restoration, then creation, then mitigation banking,

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                                                               1254
                                                                                            Proposed Regulations
and then in-lieu fee fund. Also, on-site, in-kind compensatory       F. In order for purchase or use of bank credits to be an
mitigation, when available, shall be deemed the most                 acceptable form of compensation, the bank shall be operating
ecologically preferable form of compensation for project             in accordance with the provisions of § 62.1-44.15:5 E of the
impacts, in most cases. However, off-site or out-of-kind             Code of Virginia and 9 VAC 25-210-115 F. The applicant shall
compensation opportunities that prove to be more ecologically        provide proof of purchase, use, or debit to DEQ prior to
preferable or practicable may be considered. When the                commencing activities in impact areas.
applicant can demonstrate satisfactorily that an off-site or out-
of-kind compensatory mitigation proposal is practicable and          B. G. Compensation for unavoidable permanent wetland
ecologically preferable, then such proposal may be deemed            impacts shall be provided at the following minimum
appropriate for compensation of project impacts.                     compensation to impact ratios:

A. C. For the purposes of this VWP general permit, the board         1. Impacts to forested wetlands shall be mitigated at 2:1, as
may accept any one or combination of the following as                calculated on an area basis.
compensation compensatory mitigation for unavoidable                 2. Impacts to scrub-shrub wetlands shall be mitigated at 1.5:1,
wetland impacts may be met through the following: wetland            as calculated on an area basis.
creation, wetland or stream restoration, the purchase or use of
mitigation bank credits, or a contribution to an in-lieu fee fund.   3. Impacts to emergent wetlands shall be mitigated at 1:1, as
Preservation of wetlands, or preservation or restoration of          calculated on an area basis.
upland buffers adjacent to state waters, may only be applied         C. Compensation for unavoidable impacts to streams shall be
toward wetland compensation when utilized in conjunction             provided and shall include, as practicable and appropriate,
with one or more of the above-mentioned compensation                 stream restoration, riparian buffer restoration or enhancement,
options. Preservation or enhancement of stream channels, or          or preservation or enhancement of stream corridors. The
preservation, restoration, or enhancement of adjacent riparian       purchase or use of stream mitigation bank credits or
buffers, may be applied toward stream compensation as                contribution to an in-lieu fee fund that includes watershed
appropriate.                                                         enhancements is also acceptable. H. Compensation for
1. Wetland creation.                                                 stream bed impacts shall be appropriate to replace lost
                                                                     functions and water quality benefits. One factor in determining
2. Wetland restoration.                                              the required compensation shall be an analysis of stream
3. The purchase or use of credits from a mitigation bank,            impacts utilizing a stream impact assessment methodology
pursuant to § 62.1-44.15:5 E of the Code of Virginia.                approved by the board acceptable to DEQ.

4. A contribution to an approved in-lieu fee fund.                   D. I. Compensation for permanent open water impacts other
                                                                     than to streams may be required at a 1:1 replacement to
5. Preservation of upland buffers adjacent to state waters,          impact ratio, as appropriate calculated on an area basis, to
when utilized in conjunction with subdivision 1, 2, or 3 of this     protect offset impacts to state waters and fish and wildlife
subsection and when consistent with 9 VAC 25-210-115 C.              resources from significant impairment.
6. Restoration of upland buffers adjacent to state waters,           E. J. Compensation for conversion impacts to wetlands shall
when utilized in conjunction with subdivision 1, 2, or 3 of this     be required at a 1:1 replacement to impact ratio, as calculated
subsection and when consistent with 9 VAC 25-210-115 C.              on an area basis, when such conversion results in a
                                                                     permanent alteration of the functions and values of the
7. Preservation of wetlands, when utilized in conjunction with       wetland. For example, the permanent conversion of a forested
subdivision 1, 2, or 3 of this subsection.                           wetland to an emergent wetland is considered to be a
D. For the purposes of this VWP general permit,                      permanent impact for the purposes of this regulation.
compensatory mitigation for unavoidable stream impacts may           Compensation for conversion of other types of surface waters
be met through the following:                                        may be required, as appropriate, to offset impacts to state
                                                                     waters and fish and wildlife resources from significant
1. Stream channel restoration or enhancement.                        impairment.
2. Riparian buffer restoration or enhancement.                       F. In order for contribution to an in-lieu fee fund to be an
3. Riparian buffer preservation, when consistent with 9 VAC          acceptable form of compensation, the fund must be approved
25-210-115 C.                                                        for use by the board according to the provisions of 9 VAC 25-
                                                                     210-115 E.
4. A contribution to an approved in-lieu fee fund.
                                                                     G. In order for purchase or use of bank credits to be an
5. The purchase or use of credits from a mitigation bank,            acceptable form of compensation, the bank shall be operating
pursuant to § 62.1-44.15:5 E of the Code of Virginia.                in accordance with the provisions of § 62.1-44.15:5 E of the
                                                                     Code of Virginia and 9 VAC 25-210-115 F. The applicant shall
E. In order for contribution to an in-lieu fee fund to be an
                                                                     provide proof of purchase, use, or debit to DEQ prior to
acceptable form of compensation, the fund must be approved
                                                                     commencing activities in impact areas.
for use by the board according to the provisions of 9 VAC 25-
210-115 E. The applicant shall provide proof of contribution to
DEQ prior to commencing activities in impact areas.


Volume 22, Issue 9                                                                                        Monday, January 9, 2006

                                                                 1255
Proposed Regulations
9 VAC 25-670-80. Notice of planned changes.                         case can this authorization be modified to exceed the general
                                                                    permit threshold for use.
A. The permittee shall notify the board in advance of the
planned change, and the planned change request will be              I. A notice of planned change shall be denied if fish and
reviewed according to all provisions of this regulation.            wildlife resources are significantly impacted or if the criteria in
                                                                    subsection B of this section are not met. However, the original
B. Authorization under this VWP general permit may be               VWP general permit authorization shall remain in effect. The
modified subsequent to issuance if the permittee determines         applicant may submit a new permit application and permit
that additional permanent wetland, open water, or stream            application fee for consideration under a VWP individual
impacts are necessary, provided that the additional impacts         permit..
are associated with the previously authorized activities in
authorized locations within the same phase of development,          9 VAC 25-670-90. Termination of authorization by consent.
the cumulative increase in acreage of wetland or open water
impacts is not greater than 1/4 acre and, the cumulative            When all permitted activities requiring notification under
increase in stream bed impacts is not great greater than 50         9 VAC 25-670-50 B 1 and all compensatory mitigation
100 linear feet, and provided that the additional impacts are       requirements have been completed, or if the authorized
fully mitigated. In no case can this authorization be modified to   impacts will not occur, the applicant permittee shall submit a
exceed the general permit threshold for use. Prior to a             request for termination by consent within 30 days of project
planned change approval, DEQ may require submission of a            completion or project cancellation. When submitted for project
compensatory mitigation plan for the additional impacts. In         completion, the termination by consent shall constitute a
cases where the original impacts totaled less than 1/10 acre of     notice of completion in accordance with 9 VAC 25-210-130.
wetlands or open water, or less than 300 linear feet of stream      The director may accept this termination of authorization on
bed, and the additional impacts result in these limits being        behalf of the board. The permittee shall submit the following
exceeded, the notice of planned change will not be approved.        information:
However, the applicant may submit a new permit application          1. Name, mailing address and telephone number of the
and permit application fee for the total impacts to be              permittee;
considered under this VWP general permit, another VWP
general permit, or a VWP individual permit.                         2. Name and location of the activity;

B. C. Authorization under this VWP general permit may be            3. The VWP permit authorization number; and
modified after issuance if the project results in less wetland or   4. One of the following certifications:
stream impacts. Compensation requirements may be modified
in relation to the adjusted impacts at the request of the           a. For project completion:
permittee, provided that the adjusted compensation meets the
                                                                    "I certify under penalty of law that all activities and any
initial authorization compensation goals. DEQ shall not be
                                                                    required compensatory mitigation authorized by a VWP
responsible for ensuring refunds for mitigation bank credit
                                                                    general permit have been completed. I understand that by
purchases, mitigation bank usage, or in-lieu fee fund
                                                                    submitting this notice of termination I am no longer authorized
contributions.
                                                                    to perform activities in surface waters in accordance with the
C. D. Authorization under this VWP general permit may be            VWP general permit, and that performing activities in surface
modified after issuance for a change in project plans that does     waters is unlawful where the activity is not authorized by a
not result in a change in project impacts.                          VWP permit. I also understand that the submittal of this notice
                                                                    does not release me from liability for any violations of this
D. E. Authorization under the VWP general permit may be             VWP general permit authorization."
modified for a change to the mitigation bank at which credits
are purchased or used, provided that the same amount of             b. For project cancellation:
credits are purchased or used and all criteria for use in 9 VAC
                                                                    "I certify under penalty of law that the activities and any
25-210-115 F are met.
                                                                    required compensatory mitigation authorized by this VWP
E. F. Authorization under the VWP general permit may be             general permit will not occur. I understand that by submitting
modified after issuance for typographical errors.                   this notice of termination I am no longer authorized to perform
                                                                    activities in surface waters in accordance with the VWP
F. G. A Notice of Planned Change is not required after              general permit, and that performing activities in surface waters
authorization issuance for additional temporary impacts to          is unlawful where the activity is not authorized by a VWP
surface waters, provided that DEQ is notified in writing            permit. I also understand that the submittal of this notice does
regarding additional temporary impacts, and the area is             not release me from liability for any violations of this VWP
restored to preexisting conditions in accordance with Part I C      general permit authorization, nor does it allow me to resume
11 of this general permit. In no case can the additional            the     permitted    activities  without    reapplication    and
temporary impacts exceed the general permit threshold for           reauthorization."
use.
                                                                    c. For events beyond permittee control, the permittee shall
G. The permittee shall notify the board in advance of the           provide a detailed explanation of the events, to be approved
planned change, and the planned change request will be              by DEQ, and the following certification statement:
reviewed according to all provisions of this regulation H. In no


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                                                                1256
                                                                                            Proposed Regulations
"I certify under penalty of law that all the activities or the     Subject to the provisions of the Clean Water Act, as amended,
required compensatory mitigation authorized by a VWP               and pursuant to the State Water Control Law and regulations
general permit have changed as the result of events beyond         adopted pursuant to it, the permittee is authorized to
my control (see attached). I understand that by submitting this    permanently or temporarily impact up to one acre of nontidal
notice of termination I am no longer authorized to perform         surface waters, including wetlands or open water and up to
activities in surface waters in accordance with the VWP            500 1,500 linear feet of perennial nontidal stream channel and
general permit, and that performing activities in surface waters   up to 1,500 linear feet of nonperennial stream channel bed.
is unlawful where the activity is not authorized by a VWP
permit. I also understand that the submittal of this notice does   Permittee:
not release me from liability for any violations of this VWP       Address:
general permit authorization, nor does it allow me to resume
the     permitted   activities   without    reapplication    and   Activity Location:
reauthorization."                                                  Activity Description:
9 VAC 25-690-95. Transition.                                       The authorized activity shall be in accordance with this cover
A. All applications received on or after (insert effective date)   page, Part I-Special Conditions, Part II- Compensation,
will be processed in accordance with these new procedures.         Monitoring, and Reporting, and Part III-Conditions Applicable
                                                                   to All VWP Permits, as set forth herein.
B. VWP general permit authorizations issued prior to (insert
effective date) will remain in full force and effect until such    _____________________________________                ________
authorizations expire, are revoked, or are terminated.             Director, Department of Environmental Quality            Date

C. Notices of Planned Change and all other types of                                     Part I. Special Conditions.
notification that are received by the board prior to (insert       A. Authorized activities.
effective date) will be processed in accordance with the VWP
general permit regulation in effect at that time. Notices of       1. This permit authorizes permanent or temporary impacts of
Planned Change and all other types of notification to the          up to one acre of nontidal surface waters, including wetlands
board that are received on or after (insert effective date) will   or open water and up to 500 1,500 linear feet of perennial
be processed in accordance with these new procedures.              nontidal stream channel and up to 1,500 linear feet of
                                                                   nonperennial stream channel bed according to the information
9 VAC 25-670-100. VWP general permit.                              provided in the approved application.
Any applicant whose application has been accepted by the           2. Any changes to the authorized permanent impacts to
board shall be subject to the following requirements:              surface waters associated with this project shall require either
VWP General Permit No. WP2                                         a notice of planned change in accordance with 9 VAC 25-670-
                                                                   80 or another VWP permit application.
Authorization effective date:
                                                                   3. Any changes to the authorized temporary impacts to
Authorization expiration date:                                     surface waters associated with this project shall require
Authorization Note(s):                                             written notification to DEQ and restoration to preexisting
                                                                   conditions in accordance with the conditions of this permit
VWP GENERAL PERMIT FOR FACILITIES AND ACTIVITIES                   authorization.
OF UTILITIES AND PUBLIC SERVICE COMPANIES
REGULATED BY THE FEDERAL ENERGY REGULATORY                         4. Modification to compensation requirements may be
COMMISSION     OR   THE   STATE    CORPORATION                     approved at the request of the permittee when a decrease in
COMMISSION AND OTHER UTILITY LINE ACTIVITIES                       the amount of authorized surface waters impacts occurs,
UNDER THE VIRGINIA WATER PROTECTION PERMIT AND                     provided that the adjusted compensation meets the initial
THE VIRGINIA STATE WATER CONTROL LAW                               authorization compensation goals.

Based upon an examination of the information submitted by          5. The activities authorized for coverage under this VWP
the applicant and in compliance with § 401 of the Clean Water      general permit must commence and be completed within three
Act as amended (33 USC § 1341) and the State Water                 seven years of the date of this authorization.
Control Law and regulations adopted pursuant thereto, the          B. Continuation of coverage. Reapplication for continuation of
board has determined that there is a reasonable assurance          coverage under this VWP general permit or a new VWP
that the activity authorized by this VWP general permit, if        permit may be necessary if any portion of the authorized
conducted in accordance with the conditions set forth herein,      activities or any VWP permit requirement (including
will protect instream beneficial uses and will not violate         compensation) has not been completed within three seven
applicable water quality standards. The board finds that the       years of the date of authorization. Notwithstanding any other
effect of the impact, together with other existing or proposed     provision, a request for continuation of coverage under a VWP
impacts to wetlands, will not cause or contribute to a             general permit in order to complete monitoring requirements
significant impairment of surface waters or fish and wildlife      shall not be considered a new application, and no application
resources.                                                         fee will be charged. The request for continuation of coverage
                                                                   must be made no less than 60 days prior to the expiration

Volume 22, Issue 9                                                                                         Monday, January 9, 2006

                                                               1257
Proposed Regulations
date of this VWP general permit authorization, at which time      10. All nonimpacted surface waters and compensatory
the board will determine if continuation of the VWP general       mitigation areas within 50 feet of any permitted activities and
permit authorization is necessary.                                within the project or right-of-way limits shall be clearly flagged
                                                                  or marked for the life of the construction activity at that
C. Overall project conditions.                                    location to preclude any unauthorized disturbances to these
1. The activities authorized by this VWP general permit shall     surface waters and compensatory mitigation areas during
be executed in a manner so as to minimize any adverse             construction. The permittee shall notify all contractors that no
impact impacts on instream beneficial uses as defined in          activities are to occur in these marked areas are surface
§ 62.1-10 (b) of the Code of Virginia.                            waters where no activities are to occur.

2. No activity may substantially disrupt the movement of          11. Temporary disturbances to surface waters during
aquatic life indigenous to the water body, including those        construction shall be avoided and minimized to the maximum
species which normally migrate through the area, unless the       extent practicable. All temporarily disturbed wetland areas
primary purpose of the activity is to impound water. Culverts     shall be restored to preconstruction preexisting conditions
placed in streams must be installed to maintain low flow          within 30 days of completing work at each respective
conditions. The requirement to countersink does not apply to      temporary impact area, which shall include reestablishing
extensions or maintenance of existing culverts that are not       preconstruction contours, and planting or seeding with
countersunk, floodplain culverts being placed above ordinary      appropriate wetland vegetation according to cover type
high water, culverts being placed on bedrock, or culverts         (emergent, scrub-shrub or forested). The permittee shall take
required to be placed on slopes 5.0% or greater. No activity      all appropriate measures to promote and maintain
may cause more than minimal adverse effect on navigation.         revegetation of temporarily disturbed wetland areas with
Furthermore the activity must not impede the passage of           wetland vegetation through the second year post-disturbance.
normal or expected high flows and the structure or discharge      All temporarily impacted streams and streambanks shall be
must withstand expected high flows.                               restored to their original contours within 30 days following the
                                                                  construction at that stream segment, and the banks seeded or
3. Wet or uncured concrete shall be prohibited from entry into    planted with the same vegetation cover type originally present
flowing surface waters. Excess or waste concrete shall not be     along the streambanks, including supplemental erosion
disposed of in flowing surface waters or washed into flowing      control grasses if necessary, except for invasive species
surface waters.                                                   identified on DCR's Invasive Alien Plant Species of Virginia
4. All fill material shall be clean and free of contaminants in   list.
toxic concentrations or amounts in accordance with all            12. All Materials (including fill, construction debris, and
applicable laws and regulations.                                  excavated and woody materials) temporarily stockpiled in
5. Erosion and sedimentation controls shall be designed in        wetlands shall be placed on mats or geotextile fabric,
accordance with the Virginia Erosion and Sediment Control         immediately stabilized to prevent entry into state waters,
Handbook, Third Edition, 1992. These controls shall be placed     managed such that leachate does not enter state waters, and
prior to clearing and grading and maintained in good working      completely removed within 30 days following completion of
order to minimize impacts to state waters. These controls shall   that construction activity. Disturbed areas shall be returned to
remain in place until the area is stabilized and shall then be    original contours, restored within 30 days following removal of
removed.                                                          the stockpile, and restored with the same vegetation cover
                                                                  type originally present, including supplemental erosion control
6. Any Exposed slopes and streambanks shall be stabilized         grasses if necessary, except for invasive species identified on
immediately upon completion of work in each permitted area.       DCR's Invasive Alien Plant Species of Virginia list.
All denuded areas shall be properly stabilized in accordance
with the Virginia Erosion and Sediment Control Handbook,          13. Continuous flow of perennial springs shall be maintained
Third Edition, 1992.                                              by the installation of spring boxes, french drains, or other
                                                                  similar structures.
7. All construction, construction access (e.g., cofferdams,
sheetpiling, and causeways) and demolition activities             14. The permittee shall employ measures to prevent spills of
associated with this project shall be accomplished in such a      fuels or lubricants into state waters.
manner that minimizes construction or waste materials from        15. The permittee shall conduct his activities in accordance
entering surface waters to the maximum extent practicable,        with any the time-of-year restrictions recommended by the
unless authorized by this VWP general permit.                     Virginia Department of Game and Inland Fisheries or, the
8. No machinery may enter flowing waters, unless authorized       Virginia Marine Resources Commission, or other interested
by this VWP general permit.                                       and affected agencies and shall ensure that all contractors are
                                                                  aware of any the time-of-year restrictions imposed.
9. Heavy equipment in temporarily impacted wetland areas
shall be placed on mats, geotextile fabric, or other suitable     16. Water quality standards shall not be violated as a result of
material, to minimize soil disturbance to the maximum extent      the construction activities unless allowed by this permit
practicable. Equipment and materials shall be removed             authorization.
immediately upon completion of work.                              17. Untreated stormwater runoff shall be prohibited from
                                                                  directly discharging into any surface waters unless allowed by

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this permit authorization. Appropriate best management               4. All stream bank protection structures shall be located to
practices shall be deemed suitable treatment prior to                eliminate or minimize impacts to vegetated wetlands to the
discharge into state waters.                                         maximum extent practicable.
18. If stream channelization or relocation is required, all work     5. Asphalt and materials containing asphalt or other toxic
in surface waters shall be done in the dry, unless authorized        substances shall not be used in the construction of
by this VWP general permit, and all flows shall be diverted          submerged sills or breakwaters.
around the channelization or relocation area until the new
channel is stabilized. This work shall be accomplished by            6. Redistribution of existing stream substrate for the purpose
leaving a plug at the inlet and outlet ends of the new channel       of erosion control is prohibited.
during excavation. Once the new channel has been stabilized,         7. No material removed from the stream bottom shall be
flow shall be routed into the new channel by first removing the      disposed of in surface waters, unless authorized by this
downstream plug and then the upstream plug. The rerouted             permit.
steam flow must be fully established before construction
activities in the old stream channel can begin.                         Part II. Construction and Compensation Requirements,
                                                                                       Monitoring, and Reporting.
D. Road crossings.
                                                                     A. Minimum compensation requirements.
1. Access roads and associated bridges or culverts shall be
constructed to minimize the adverse effects on surface waters        1. The permittee shall provide appropriate and practicable
to the maximum extent practicable. Access roads constructed          compensation for all impacts meeting the conditions outlined
above preconstruction contours and elevations in surface             in this VWP general permit.
waters must be bridged or culverted to maintain surface flows.       2. The types of Compensation options that may be considered
2. Installation of road crossings shall occur in the dry via the     under this VWP general permit include wetland or stream
implementation of cofferdams, sheetpiling, stream diversions,        creation or restoration, the purchase or use of mitigation bank
or similar structures.                                               credits, or a contribution to an approved in-lieu fee fund shall
                                                                     meet the criteria in 9 VAC 25-670-70.
E. Utility lines.
                                                                     3. For wetlands, compensation may incorporate preservation
1. All utility line work in surface waters shall be performed in a   of wetlands or preservation or restoration of upland buffers
manner that minimizes disturbance, and the area must be              adjacent to state waters when utilized in conjunction with
returned to its original contours and restored within 30 days of     creation, restoration or mitigation bank credits. For other
completing work in the area, unless otherwise authorized by          surface waters, compensation may incorporate preservation,
this VWP general permit. Restoration shall be the seeding or         restoration, or enhancement of stream channels, or
planting of the same vegetation cover type originally present,       preservation, restoration, or enhancement of adjacent riparian
including supplemental erosion control grasses if necessary,         buffers.
except for invasive species identified on DCR's Invasive Alien
Plant Species of Virginia list.                                      4. 3. The site or sites depicted in the conceptual
                                                                     compensation plan submitted with the application shall
2. Material resulting from trench excavation may be                  constitute the compensation site for the approved project. A
temporarily sidecast into wetlands, not to exceed 90 days,           site change will require a modification to the authorization.
provided the material is not placed in a manner such that it is
dispersed by currents or other forces.                               5. 4. For compensation involving the purchase or use of
                                                                     mitigation bank credits or a contribution to an in-lieu fee fund,
3. The trench for a utility line cannot be constructed in a          the permittee shall not initiate work in permitted impact areas
manner that drains wetlands (e.g., backfilling with extensive        until documentation of the mitigation bank credit purchase or
gravel layers creating a trench drain effect.). For example,         usage or of the fund contribution has been submitted to and
utility lines may be backfilled with clay blocks to ensure that      received by DEQ.
the trench does not drain surface waters through which the
utility line is installed.                                           6. For projects proposing a contribution to an in-lieu fee fund,
                                                                     the permittee shall not initiate work in permitted impact areas
F. Stream modification and stream bank protection.                   until documentation of the in-lieu fee fund contribution has
1. Riprap bank stabilization shall be of an appropriate size and     been submitted to and received by DEQ.
design in accordance with the Virginia Erosion and Sediment          7. 5. All aspects of the compensation plan shall be finalized,
Control Handbook, Third Edition, 1992.                               submitted and approved by the board prior to any construction
2. Riprap apron for all outfalls shall be designed in accordance     activity in permitted impact areas. The board shall review and
with the Virginia Erosion and Sediment Control Handbook,             provide written comments on the plan within 30 days of receipt
Third Edition, 1992.                                                 or it shall be deemed approved. The final compensation plan
                                                                     as approved by the board shall be an enforceable requirement
3. For stream bank protection activities, the structure and          of this VWP general permit authorization. Any Deviations from
backfill shall be placed as close to the stream bank as              the approved plan must be submitted and approved in
practicable. No material shall be placed in excess of the            advance by the board.
minimum necessary for erosion protection.
                                                                     8. 6. The final wetlands compensation plan shall include:

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a. The goals and objectives of the plan in terms of                geomorphologic measurements             (e.g., stream      width,
replacement of wetland acreage and functions, by wetland           entrenchment ratio, width-depth        ratio, sinuosity,   slope,
type;                                                              substrate, etc.);
b. Location map, including latitude and longitude (to the          d. The identification of existing geomorphological stream type
nearest second) at the center of the site;                         being impacted and proposed geomorphological stream type
                                                                   for compensation purposes;
c. Summary of the type and acreage of the existing wetland
impacts anticipated during the construction of the                 e. Detailed design information for the proposed restorative
compensation site and proposed compensation for these              measures, including geomorphological measurements and
impacts;                                                           reference reach information as appropriate;
d. Grading plan with existing and proposed elevations at one-      f. Riparian buffer plantings, including planting scheme,
foot or less contours;                                             species, buffer width;
e. Schedule for compensation site construction, including          g. Livestock access limiting measures, to the greatest extent
sequence of events with estimated dates;                           possible;
f. Hydrologic analysis, including a water budget based on          h. A site access plan;
expected monthly inputs and outputs that will project water
level elevations for a typical year, a dry year, and a wet year;   i. An erosion and sedimentation control plan, if appropriate;

g. Groundwater elevation data for the site, or the proposed        j. An abatement and control plan covering all undesirable plant
location of groundwater monitoring wells to collect these data,    species, as listed on DCR's Invasive Alien Plant Species of
and groundwater data for reference wetlands, if applicable;        Virginia list, that includes the proposed procedures for
                                                                   notifying DEQ of a their presence, methods for removal, and
h. Design of water control structures;                             the control of any such species;
i. Planting scheme and schedule, indicating plant species,         k. A schedule for compensation site construction including
zonation, and acreage of each vegetation type proposed;            projected start date, sequence of events with projected dates,
                                                                   and projected completion date;
j. An abatement and control plan covering all undesirable plant
species, as listed on DCR's Invasive Alien Plant Species of        l. A monitoring plan, including a monitoring and reporting
Virginia list, that includes the proposed procedures for           schedule; monitoring design and methodologies to evaluate
notifying DEQ of their presence, methods of removal, and the       the success of the proposed compensation measures,
control of any such species;                                       allowing comparison from year to year; proposed success
                                                                   criteria for appropriate compensation measures; location of all
k. Erosion and sedimentation control plan;                         monitoring stations including photo stations, vegetation
l. A soil preparation and amendment plan addressing both           sampling points, survey points, bank pins, scour chains, and
topsoil and subsoil conditions;                                    reference streams;
m. A discussion of any structures and features considered          m. The mechanism for protection of the compensation area;
necessary for the success of the site;                             and
n. A monitoring plan, including success criteria, monitoring       n. Plan view sketch depicting the pattern and all compensation
goals and methodologies, monitoring and reporting schedule,        measures being employed, a profile sketch, and cross-section
and the locations of photographic stations and monitoring          sketches of the proposed compensation stream.
wells, any sampling points, and, if applicable, reference          10. 8. For final wetland or stream compensation plans, any the
wetlands;                                                          vegetation used shall be native species common to the area,
o. Site access plan;                                               shall be suitable for growth in local wetland or stream
                                                                   conditions, and shall be from areas within the same or
p. The location and composition of any buffers; and                adjacent USDA Plant Hardiness Zone or NRCS Land
q. The mechanism for protection of the compensation areas.         Resource Region as that of the project site.

9. 7. The final stream compensation plan shall include:            11. 9. The final wetland or stream compensation plan(s) shall
                                                                   include a mechanism for protection in perpetuity of the
a. The goals and objectives of the compensation plan in terms      compensation site(s) to include all state waters within the
of replacement of stream functions and values water quality        compensation site boundary or boundaries. Such protections
benefits;                                                          shall be in place within 120 days of final plan approval. The
                                                                   restrictions, protections, or preservations, or similar instrument
b. A location map, including latitude and longitude (to the
                                                                   shall state that no activity will be performed on the property in
nearest second) at the center of the site;
                                                                   any area designated as a compensation area with the
c. An evaluation, discussion, and plan sketches of existing        exception of maintenance or corrective action measures
conditions on the proposed compensation stream, including          authorized by the board. Unless specifically authorized by the
the identification of functional and physical deficiencies for     board through the issuance of a VWP individual or general
which the measures are proposed, and summary of                    permit, or waiver thereof, this restriction applies to ditching,

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land clearing or the discharge of dredge or fill material. Such      19. 17. Undesirable plant species shall be identified and
instrument shall contain the specific phrase "ditching, land         controlled as described in the undesirable plant species
clearing or discharge of dredge or fill material" in the             control plan, such that they are not dominant species or do not
limitations placed on the use of these areas. The protective         change the desired community structure. The control plan
instrument shall be recorded in the chain of title to the            shall include procedures to notify the board of any invasive
property, or any equivalent instrument for government-owned          species occurrences DEQ when undesirable plant species
lands. Proof of recordation shall be submitted within 120 days       comprise greater than 5.0% of the vegetation by areal
of survey or plat approval.                                          coverage on wetland or stream compensation sites. The
                                                                     notification shall include the methods of removal and control,
12. 10. All work in permitted impact areas shall cease if            and whether the methods are successful.
compensation site construction has not commenced within
180 days of commencement of project construction, unless             20. 18. If the wetland or stream compensation area(s) fail fails
otherwise authorized by the board.                                   to meet the specified success criteria in a particular monitoring
                                                                     year (with the exception of, other than the final monitoring
13. 11. DEQ shall be notified in writing at least 10 days prior to   year), the reasons for this failure shall be determined and a
the initiation of construction activities at the compensation        corrective action plan (including proposed actions, a schedule,
site(s).                                                             and monitoring plan) shall be submitted to DEQ for approval
14. 12. Planting of woody plants shall occur when vegetation         with or before that year's monitoring report. The approved
is normally dormant unless otherwise approved in the final           corrective action plan shall contain at a minimum the
wetland or stream compensation plan(s).                              proposed actions, a schedule for those actions, and a
                                                                     monitoring plan, and shall be implemented by the permittee in
15. 13. Point sources of stormwater runoff shall be prohibited       accordance with the approved schedule. Should significant
from entering any a wetland compensation site prior to               changes be necessary to ensure success, the required
treatment by appropriate best management practices.                  monitoring cycle shall begin again, with monitoring year one
Appropriate best management practices may include                    being the year that the changes are complete, as confirmed
sediment traps, grassed waterways, vegetated filter strips,          by DEQ. 21. If all success criteria have not been met in the
debris screens, oil and grease separators, or forebays.              wetland or stream compensation area fails to meet the
16. 14. The success of the compensation shall be based on            specified success criteria by the final monitoring year, or if the
meeting the success criteria established in the approved final       wetland or stream compensation site area has not met the
compensation plan.                                                   stated restoration goals, reasons for this failure shall be
                                                                     determined and a corrective action plan, including proposed
17. 15. Wetland hydrology shall be considered established if         actions, a schedule, and a monitoring plan, shall be submitted
depths to the seasonal high water table are equal to or less         with the final year monitoring report for DEQ approval.
than 12 inches below ground surface for at least 12.5% of the        Corrective action shall be implemented by the permittee in
region's killing frost-free growing season, as defined in the soil   accordance with the approved schedule. Annual monitoring
survey for the locality of the compensation site or the NRCS         shall be required for each consecutive year to continue until
WETS table, measured in consecutive days under typical               two sequential, annual reports indicate that all criteria have
precipitation conditions, and as defined in the water budget of      been successfully satisfied and the site has met the overall
the final compensation plan. For the purpose of this                 restoration goals (i.e.e.g., that corrective actions were
regulation, the growing season is defined as the period in           successful). The reasons for this failure shall be determined
which temperatures are expected to be above 28 degrees               and a corrective action plan (including proposed actions, a
Fahrenheit in five out of 10 years, or the period during which       schedule, and a monitoring plan) shall be submitted with the
the soil temperature in a wetland compensation site is greater       monitoring report to DEQ for approval and implemented by the
than biological zero (five degrees Celsius) at a depth of 50         permittee in accordance with the approved schedule.
centimeters (19.6 inches), if such data is available.
                                                                     22. 19. The surveyed wetland boundary for the compensation
18. 16. The wetland plant community shall be considered              site shall be based on the results of the hydrology, soils, and
established according to the performance criteria specified in       vegetation monitoring data and shall be shown on the site
the final compensation plan and approved by the board. The           plan. Calculation of total wetland acreage shall be based on
proposed vegetation success criteria in the final compensation       that boundary at the end of the monitoring cycle. Data shall be
plan shall include the following:                                    submitted by December 31 of the final monitoring year.
a. Species composition shall reflect the desired plant               23. 20. Herbicides or algicides shall not be used in or
community types stated in the final wetlands compensation            immediately adjacent to the compensation site or sites without
plan by the end of the first growing season and shall be             prior authorization by the board. All vegetation removal shall
maintained through the last monitoring year.                         be done by manual means, unless authorized by DEQ in
                                                                     advance.
b. Species composition shall consist of greater than 50%
facultative (FAC) or wetter (FACW or OBL) vegetation, as             B. Impact site construction monitoring.
expressed by plant stem density or areal cover, by the end of
the first growing season and shall be maintained through the         1. Construction activities authorized by this permit that are
last monitoring year.                                                within impact areas shall be monitored and documented. The
                                                                     monitoring shall document the preexisting conditions, activities


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during construction, and post-construction conditions.                c. Temperature, pH and D.O. readings shall be taken after
Monitoring shall consist of one of the following options:             opening the channels and every 30 minutes for at least three
                                                                      hours at each station.
a. Photographs shall be taken during construction at the end
of the first, second, and third months after commencing               C. Wetland compensation site monitoring.
construction, and then every six months thereafter for the
remainder of the construction project. Photos are not required        1. An as-built ground survey, or an aerial survey provided by a
during periods of no activity within impact areas.                    firm specializing in aerial surveys, shall be conducted for the
                                                                      entire compensation site or sites including invert elevations for
b. An ortho-rectified photograph shall be taken by a firm             all water elevation control structures and spot elevations
specializing in ortho-rectified photography prior to                  throughout the site or sites. Aerial surveys shall include the
construction, and then annually thereafter, until all impacts are     variation from actual ground conditions, such as +/- 0.2 feet.
taken. Photos shall clearly show the delineated surface waters        Either type of survey shall be certified by a licensed surveyor
and authorized impact areas.                                          or by a registered professional engineer to conform to the
                                                                      design plans. The survey shall be submitted within 60 days of
c. In lieu of photographs, and with prior approval from DEQ,          completing compensation site construction. Any Changes or
the permittee may submit a written narrative that summarizes          deviations in the as-built survey or aerial survey shall be
site construction activities in impact areas. The narrative shall     shown on the survey and explained in writing.
be submitted at the end of the first, second, and third months
after commencing construction, and then every six months              2. Photographs shall be taken at the compensation site or
thereafter, for the remainder of the construction activities.         sites from the permanent markers identified in the final
Narratives are not required during periods of no activity within      compensation plan, and established to ensure that the same
the impact areas.                                                     locations and view directions at the site or sites are monitored
                                                                      in each monitoring period. These photographs shall be taken
2. As part of construction monitoring, photographs taken at the       after the initial planting and at a time specified in the final
photo stations or the narrative shall document site activities        compensation plan during every monitoring year.
and conditions, which may include installation and
maintenance of erosion and sediment controls; surface water           3. Compensation site monitoring shall begin on the first day of
discharges from the site; condition of adjacent nonimpact             the first complete growing season (monitoring year 1) after
surface waters; flagged nonimpact surface waters;                     wetland compensation site construction activities, including
construction access and staging areas; filling, excavation, and       planting, have been completed. Monitoring shall be required
dredging activities; culvert installation; dredge disposal; and       for monitoring years 1, 2, 3, and 5, unless otherwise approved
site stabilization, grading, and associated restoration activities.   by DEQ. In all cases, if all success criteria have not been met
With the exception of the preconstruction photographs,                in the fifth monitoring year, then monitoring shall be required
photographs at an individual impact site shall not be required        for each consecutive year until two annual sequential reports
until construction activities are initiated at that site. With the    indicate that all criteria have been successfully satisfied.
exception of the post-construction photographs, photographs
at an individual impact site shall not be required once the site      4. The establishment of wetland hydrology shall be measured
is stabilized following completion of construction at that site.      during the growing season., with the location and number of
                                                                      monitoring wells, and frequency of monitoring for each site,
3. Each photograph shall be labeled to include the following          set forth in the final monitoring plan. All Hydrology monitoring
information: permit number, impact area and photo station             well data shall be accompanied by precipitation data, including
number, date and time of the photograph, name of the person           rainfall amounts, either from on site, or from the closest
taking the photograph, photograph orientation, and                    weather station. Once the wetland hydrology success criteria
photograph subject description.                                       have been satisfied for a particular monitoring year, weekly
                                                                      monitoring may be discontinued for the remainder of that
4. Monitoring of water quality parameters shall be conducted          monitoring year following DEQ approval. After a period of
during permanent relocation of perennial streams through new          three monitoring years, the permittee may request that
channels in the manner noted below. The permittee shall               hydrology monitoring be discontinued, providing that adequate
report violations of water quality standards to DEQ in                hydrology has been established and maintained. Hydrology
accordance with the procedures in Part II E. Corrective               monitoring shall not be discontinued without written approval
measures and additional monitoring may be required if water           from DEQ.
quality standards are not met. Reporting shall not be required
if water quality standards are not violated.                          5. The presence of hydric soils or soils under hydric conditions
                                                                      shall be evaluated in accordance with the final compensation
a. A sampling station shall be located upstream and                   plan.
immediately downstream of the relocated channel.
                                                                      6. The establishment of wetland vegetation shall be in
b. Temperature, pH and dissolved oxygen (D.O.)                        accordance with the final compensation plan. Monitoring shall
measurements shall be taken every 30 minutes for at least             take place in August, September, or October during the
two hours at each station prior to opening the new channels           growing season of each monitoring year, unless authorized in
and immediately before opening new channels.                          the monitoring plan.
                                                                      7. The presence of undesirable plant species shall be
                                                                      documented.

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8. All wetland compensation monitoring reports shall be              4. Stream channel restoration activities shall be conducted in
submitted by December 31 of the monitoring year. The reports         the dry or during low flow conditions. When site conditions
shall include, as applicable, the following: in accordance with      prohibit access from the streambank, heavy equipment shall
9 VAC 25-670-100 Part II E 6.                                        be authorized for use within the stream channel.
a. General description of the site including a site location map     5. Photographs shall be taken at the compensation site from
identifying photo stations, vegetative and soil monitoring           the vicinity of the permanent photo stations identified in the
stations, monitoring wells, and wetland zones.                       final compensation plan. The photograph orientation shall
                                                                     remain constant during all monitoring events. At a minimum,
b. Summary of activities completed during the monitoring             photographs shall be taken from the center of the stream,
year.                                                                facing downstream, with a sufficient number of photographs to
c. Description of monitoring methods.                                view the entire length of the restoration site. Photographs shall
                                                                     document the completed restoration conditions. Photographs
d. Analysis of all hydrology information, including monitoring       shall be taken prior to site activities, during instream and
well data, precipitation data, and gauging data from streams         riparian compensation construction activities, within one week
or other open water areas, as set forth in the final                 of completion of activities, and during at least one day of each
compensation plan.                                                   monitoring year to depict restored conditions.
e. Evaluation of hydric soils or soils under hydric conditions,      6. An as-built ground survey, or an aerial survey provided by a
as appropriate.                                                      firm specializing in aerial surveys, shall be conducted for the
f. Analysis of all vegetative community information, including       entire compensation site or sites. Aerial surveys shall include
woody and herbaceous species, both planted and volunteers,           the variation from actual ground conditions, such as +/- 0.2
as set forth in the final compensation plan.                         feet. The survey shall be certified by the licensed surveyor or
                                                                     by a registered, professional engineer to conform to the
g. Photographs labeled with the permit number, the name of           design plans. The survey shall be submitted within 60 days of
the compensation site, the photo station number, the                 completing compensation site construction. Any Changes or
photograph orientation, the date and time of the photograph,         deviations from the final compensation plans in the as-built
the name of the person taking the photograph, and a brief            survey or aerial survey shall be shown on the survey and
description of the photograph subject. This information shall        explained in writing.
be provided as a separate attachment to each photograph, if
necessary. Photographs taken after the initial planting shall be     7. Compensation site monitoring shall begin on day one of the
included in the first monitoring report after planting is            first complete growing season (monitoring year 1) after stream
complete.                                                            compensation site construction activities, including planting,
                                                                     have been completed. Monitoring shall be required for
h. Discussion of wildlife or signs of wildlife observed at the       monitoring years 1 and 2, unless otherwise determined by
compensation site.                                                   DEQ. In all cases, if all success criteria have not been met in
                                                                     the final monitoring year, then monitoring shall be required for
i. Comparison of site conditions from the previous monitoring
                                                                     each consecutive year until two annual sequential reports
year and reference site, if applicable.
                                                                     indicate that all criteria have been successfully satisfied.
j. Discussion of corrective measures or maintenance activities
                                                                     8. All stream compensation monitoring reports shall be
to control undesirable species, to repair any damaged water
                                                                     submitted by December 31 of the monitoring year. The reports
control device, or to replace any damaged planted vegetation.
                                                                     shall include, as applicable, the following: in accordance with
k. Corrective action plan, which includes proposed actions, a        9 VAC 25-670-100 Part II E 6.
schedule, and monitoring plan.
                                                                     a. General description of the site including a site location map
C. D. Stream compensation, restoration and monitoring.               identifying photo stations and monitoring stations.
1. Any Riparian buffer restoration activities shall be detailed in   b. Summary of activities completed during the monitoring
the final compensation plan and shall include, as appropriate,       year.
the planting of a variety of native species currently growing in
                                                                     c. Description of monitoring methods.
the site area, including appropriate seed mixtures and woody
species that are bare root, balled, or burlapped. A minimum          d. An evaluation and discussion of the monitoring results in
buffer width of 50 feet, measured from the top of the stream         relation to the success criteria and overall goals of
bank at bankfull elevation landward on both sides of the             compensation.
stream, shall be required where practical.
                                                                     e. Photographs labeled with the permit number, the name of
2. The installation of root wads, vanes, and other instream          the compensation site, the photo station number, the
structures, shaping of the stream banks, and channel                 photograph orientation, the date and time of the photograph,
relocation shall be completed in the dry whenever practicable.       the name of the person taking the photograph, and a brief
                                                                     description of the photograph subject. Photographs taken prior
3. Livestock access to the stream and designated riparian
                                                                     to compensation site construction activities, during instream
buffer shall be limited to the greatest extent practicable.
                                                                     and riparian restoration activities, and within one week of


Volume 22, Issue 9                                                                                         Monday, January 9, 2006

                                                                 1263
Proposed Regulations
completion of activities shall be included in the first monitoring    3. Each photograph shall be labeled to include the following
report.                                                               information: permit number, impact area and photo station
                                                                      number, date and time of the photograph, name of the person
f. A discussion of alterations, maintenance, or major storm           taking the photograph, photograph orientation, and
events resulting in significant change in stream profile or cross     photograph subject description.
section, and corrective actions conducted at the stream
compensation site.                                                    4. Monitoring of water quality parameters shall be conducted
                                                                      during permanent relocation of perennial streams through new
g. Documentation of undesirable plant species and summary             channels in the following manner:
of abatement and control measures.
                                                                      a. A sampling station shall be located upstream and
h. A summary of wildlife or signs of wildlife observed at the         immediately downstream of the relocated channel.
compensation site.
                                                                      b. Temperature, pH and dissolved oxygen (D.O.)
i. Comparison of site conditions from the previous monitoring         measurements shall be taken every 30 minutes for at least
year and reference site, and as-built survey, if applicable.          two hours at each station prior to opening the new channels
j. A corrective action plan, which includes proposed actions, a       and immediately before opening new channels.
schedule and monitoring plan.                                         c. Temperature, pH and D.O. readings shall be taken after
k. Any additional submittals that were approved by DEQ in the         opening the channels and every 30 minutes for at least three
final compensation plan.                                              hours at each station.
D. Impact site construction monitoring.                               The permittee shall report violations of water quality standards
                                                                      to DEQ in accordance with the procedures in Part II E.
1. Construction activities authorized by this permit that are         Corrective measures and additional monitoring may be
within impact areas shall be monitored and documented. The            required if water quality standards are not met. Reporting shall
monitoring shall document the preconstruction conditions,             not be required if water quality standards are not violated.
activities  during   construction,    and    post-construction
conditions. Monitoring shall consist of one of the following          E. Reporting.
options:                                                              1. Written communications required by this VWP general
a. Photographs shall be taken during construction at the end          permit shall be submitted to the appropriate Department of
of the first, second and third months of construction, and then       Environmental Quality (DEQ) office. The VWP general permit
semi-annually for the remainder of the construction project,          authorization number shall be included on all correspondence.
except during periods of no activity within impact areas;             2. DEQ shall be notified in writing at least 10 days prior to the
b. An ortho-rectified photograph shall be taken by a firm             start of construction activities at the first permitted site
specializing in ortho-rectified photography prior to                  authorized by this VWP general permit authorization so that
construction, and annually thereafter until all impacts are           inspections of the project can be planned, if deemed
taken, and shall clearly show the delineated surface waters           necessary by DEQ. The notification shall include projected
and authorized impact areas; or                                       schedule for initiation and completion of work at each
                                                                      permitted impact area.
c. In lieu of photographs, and with prior approval from DEQ,
the permittee may submit a written narrative that summarizes          3. Construction monitoring reports shall be submitted to DEQ
site construction activities in impact areas. The narrative shall     not no later than the 10th day of the month following the
be submitted at the end of the first, second, and third months        month in which the monitoring event specified in Part II D B
of construction in impact areas, and then semi-annually for the       takes place. The reports shall include the following, as
remainder of the construction activities in impact areas, except      appropriate:
during periods of no activity within the impact areas.                a. For each permitted impact area, a written narrative stating
2. As part of construction monitoring, photographs taken at the       whether work was performed during the monitoring period,
photo stations or the narrative shall document site activities        and if work was performed, a description of the work
and conditions, which may include installation and                    performed, when the work was initiated, and the expected
maintenance of erosion and sediment controls; condition of            date of completion.
adjacent nonimpact surface waters; flagged nonimpact                  b. Properly Photographs labeled photographs (to include with
surface waters; construction access and staging areas; filling,       permit number, the photo station number, the photo
excavation, and dredging activities; culvert installation; dredge     orientation, the date and time of the photo, the name of the
disposal; and site stabilization, grading, and associated             person taking the photograph, and a brief description, and
restoration activities. With the exception of the preconstruction     VWP permit number) showing representative of the
photographs, photographs at an individual impact site shall           construction activities (including, but not limited to, flagging
not be required until construction activities are initiated at that   nonimpact wetland areas, site grading and excavation,
site. With the exception of the post-construction photographs,        installation and maintenance of erosion and sediment
photographs at an individual impact site shall not be required        controls, culvert installation, bridge and ramp construction,
once the site is stabilized following completion of construction      dredging, dredge disposal, etc.). The post-construction
at that site.                                                         photographs shall be submitted within 30 days of documenting

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                                                                  1264
                                                                                              Proposed Regulations
post-construction conditions. The first construction monitoring       photograph orientation, the date and time of the photograph,
report shall include the photographs taken at each impact site        the name of the person taking the photograph, and a brief
prior to initiation of construction in any a permitted impact         description of the photograph subject. This information shall
area. Written notification and photographs demonstrating that         be provided as a separate attachment to each photograph, if
all temporarily disturbed wetland and stream areas have been          necessary. Photographs taken after the initial planting shall be
restored in compliance with the permit conditions shall be            included in the first monitoring report after planting is
submitted within 30 days of restoration. The post-construction        complete.
photographs shall be submitted within 30 days of documenting
post-construction conditions.                                         (8) Discussion of wildlife or signs of wildlife observed at the
                                                                      compensation site.
c. Summary of activities conducted to comply with the permit
conditions.                                                           (9) Comparison of site conditions from the previous monitoring
                                                                      year and reference site.
d. Summary of permit noncompliance events or problems
encountered, subsequent notifications, and corrective actions.        (10) Discussion of corrective measures or maintenance
                                                                      activities to control undesirable species, to repair damaged
e. Summary of anticipated work to be completed during the             water control devices, or to replace damaged planted
next monitoring period and an estimated date of construction          vegetation.
completion at all impact areas.
                                                                      (11) Corrective action plan, which includes proposed actions,
f. Labeled site map depicting all impact areas and photo              a schedule, and monitoring plan.
stations.
                                                                      b. All stream compensation monitoring reports shall include,
4. DEQ shall be notified in writing within 30 days following the      as applicable, the following:
completion of all activities in all permitted impact areas
authorized under this permit.                                         (1) General description of the site including a site location map
                                                                      identifying photo stations and monitoring stations.
5. DEQ shall be notified in writing at least 10 days prior to the
initiation of activities at the compensation site. The notification   (2) Summary of activities completed during the monitoring
shall include a projected schedule of activities and                  year, including alterations or maintenance conducted at the
construction completion.                                              site.

6. All compensation monitoring reports shall be submitted             (3) Description of monitoring methods.
annually by December 31, with the exception of the last year          (4) An evaluation and discussion of the monitoring results in
of authorization, in which case the report shall be submitted at      relation to the success criteria and overall goals of
least 60 days prior to expiration of authorization under the          compensation.
general permit. Any alterations and maintenance conducted
on the compensation sites shall be reported. Undesirable              (5) Photographs shall be labeled with the permit number, the
plant species occurrences and control of these occurrences            name of the compensation site, the photo station number, the
shall also be reported to DEQ.                                        photograph orientation, the date and time of the photograph,
                                                                      the name of the person taking the photograph, and a brief
a. All wetland compensation monitoring reports shall include,         description of the photograph subject. Photographs taken prior
as applicable, the following:                                         to compensation site construction activities, during instream
(1) General description of the site including a site location map     and riparian restoration activities, and within one week of
identifying photo stations, vegetative and soil monitoring            completion of activities shall be included in the first monitoring
stations, monitoring wells, and wetland zones.                        report.

(2) Summary of activities completed during the monitoring             (6) A discussion of alterations, maintenance, or major storm
year, including alterations or maintenance conducted at the           events resulting in significant change in stream profile or cross
site.                                                                 section, and corrective actions conducted at the stream
                                                                      compensation site.
(3) Description of monitoring methods.
                                                                      (7) Documentation of undesirable plant species and summary
(4) Analysis of all hydrology information, including monitoring       of abatement and control measures.
well data, precipitation data, and gauging data from streams
or other open water areas, as set forth in the final                  (8) A summary of wildlife or signs of wildlife observed at the
compensation plan.                                                    compensation site.

(5) Evaluation of hydric soils or soils under hydric conditions,      (9) Comparison of site conditions from the previous monitoring
as appropriate.                                                       year and reference site, and as-built survey, if applicable.

(6) Analysis of all vegetative community information, including       (10) A corrective action plan, which includes proposed
woody and herbaceous species, both planted and volunteers,            actions, a schedule and monitoring plan.
as set forth in the final compensation plan.                          (11) Additional submittals that were approved by DEQ in the
(7) Photographs labeled with the permit number, the name of           final compensation plan.
the compensation site, the photo station number, the

Volume 22, Issue 9                                                                                           Monday, January 9, 2006

                                                                  1265
Proposed Regulations
7. The permittee shall notify DEQ in writing when unusual or            established pursuant to any other state law or regulation or
potentially complex conditions are encountered which require            under the authority preserved by § 510 of the Clean Water
debris removal or involve potentially toxic substance.                  Act.
Measures to remove the obstruction, material, or toxic
substance or to change the location of any a. structure are             E. Property rights. The issuance of this VWP general permit
prohibited until approved by DEQ.                                       does not convey any property rights in either real or personal
                                                                        property, or any exclusive privileges, nor does it authorize any
8. The permittee shall report any fish kills or spills of oil or fuel   injury to private property or any invasion of personal property
immediately upon discovery. If spills or fish kills occur between       rights, nor any infringement of federal, state or local laws or
the hours of 8:15 a.m. to 5 p.m., Monday through Friday, the            regulations.
appropriate DEQ regional office shall be notified; otherwise,
the Department of Emergency Management shall be notified                F. Severability. The provisions of this VWP general permit
at 1-800-468-8892.                                                      authorization are severable.

9. Violations of state water quality standards shall be reported        G. Right of entry. The permittee shall allow the board or its
within 24 hours to the appropriate DEQ office.                          agents, upon the presentation of credentials, at reasonable
                                                                        times and under reasonable circumstances: 1. to enter the
10. All Submittals required by this VWP general permit shall            permittee's property, public or private, and have access to,
contain the following signed certification statement:                   inspect and copy any records that must be kept as part of the
                                                                        VWP general permit conditions; 2. to inspect any facilities,
"I certify under penalty of law that this document and all              operations or practices (including monitoring and control
attachments were prepared under my direction or supervision             equipment) regulated or required under the VWP general
in accordance with a system designed to assure that qualified           permit; 3. and to sample or monitor any substance, parameter
personnel properly gather and evaluate the information                  or activity for the purpose of assuring compliance with the
submitted. Based on my inquiry of the person or persons who             conditions of the VWP general permit or as otherwise
manage the system, or those persons directly responsible for            authorized by law. For the purpose of this section, the time for
gathering the information, the information submitted is, to the         inspection shall be deemed reasonable during regular
best of my knowledge and belief, true, accurate, and                    business hours. Nothing contained herein shall make an
complete. I am aware that there are significant penalties for           inspection time unreasonable during an emergency.
submitting false information, including the possibility of fine
and imprisonment for knowing violation."                                H. Transferability of VWP general permit authorization. This
                                                                        VWP general permit authorization may be transferred to
  Part III. Conditions Applicable to All VWP General Permits.           another person by a permittee if: when all of the criteria listed
A. Duty to comply. The permittee shall comply with all                  below are met. On the date of the VWP general permit
conditions of the VWP general permit. Nothing in this VWP               authorization transfer, the transferred VWP general permit
general permit shall be construed to relieve the permittee of           authorization shall be as fully effective as if it had been issued
the duty to comply with all applicable federal and state                directly to the new permittee.
statutes, regulations and toxic standards and prohibitions. Any         1. The current permittee notifies the board of the transfer of
VWP general permit noncompliance is a violation of the Clean            the title to the facility or property;.
Water Act and State Water Control Law, and is grounds for
enforcement action, VWP general permit authorization                    2. The notice to the board includes a written agreement
termination for cause, VWP general permit authorization                 between the existing current and new permittee permittees
revocation, or denial of a continuation of coverage request.            containing a specific date of transfer of VWP general permit
                                                                        authorization responsibility, coverage and liability to the new
B. Duty to mitigate. The permittee shall take all reasonable            permittee, or that the existing current permittee will retain such
steps to minimize or prevent any impacts in violation of the            responsibility, coverage, or liability, including liability for
VWP general permit which may have a reasonable likelihood               compliance with the requirements of any enforcement
of adversely affecting human health or the environment.                 activities related to the permitted activity; and.
C. Reopener. This VWP general permit authorization may be               3. The board does not notify the existing current and new
reopened to modify its conditions when the circumstances on             permittee permittees of its intent to modify or revoke and
which the previous VWP general permit authorization was                 reissue the VWP general permit authorization within the 15
based have materially and substantially changed, or special             days.
studies conducted by the board or the permittee show material
and substantial change since the time the VWP general permit            On the date of the VWP general permit authorization transfer,
authorization was issued and, thereby, constitute cause for             the transferred VWP general permit authorization shall be as
VWP general permit authorization revocation and reissuance.             fully effective as if it had been issued directly to the new
                                                                        permittee.
D. Compliance with state and federal law. Compliance with
this VWP general permit constitutes compliance with the VWP             I. Notice of planned change. Authorization under this VWP
permit requirements of the State Water Control Law. Nothing             general permit may be modified subsequent to issuance if: (i)
in this VWP general permit shall be construed to preclude the           in one or more of the cases listed below. A notice of planned
institution of any legal action under or relieve the permittee          change is not required if the project results in additional
from any responsibilities, liabilities, or other penalties              temporary impacts to surface waters, provided that DEQ is

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                                                                    1266
                                                                                              Proposed Regulations
notified in writing, the additional temporary impacts are             consent when all permitted activities requiring notification
restored to preexisting conditions in accordance with Part I C        under 9 VAC 25-690-50 A 9 VAC 25-670-50 B 1 and all
11 of this general permit, and the additional temporary               compensatory mitigation have been completed, or when the
impacts do not exceed the general permit threshold for use.           authorized impacts do not occur, or when a planned change
The permittee shall notify the board in advance of the planned        occurs that involves substituting a specified, approved
change, and the planned change request will be reviewed               mitigation bank or banks with another specified, approved
according to all provisions of this regulation.                       mitigation bank. The permittee shall submit a request for
                                                                      termination by consent within 30 days of project completion or
1. The permittee determines that additional permanent                 project cancellation. When submitted for project completion,
wetland, open water, or stream impacts are necessary,                 the termination by consent shall constitute a notice of
provided that the additional impacts are associated with the          completion in accordance with 9 VAC 25-210-130. The
previously authorized activities in authorized locations within       director may accept this termination of authorization on behalf
the same phase of development, the cumulative increase in             of the board. The request for termination by consent shall
acreage of wetland or open water impacts is not greater than          contain the following information:
1/4 acre and, the cumulative increase in stream bed impacts
is not greater than 50 100 linear feet, and provided that the         1. Name, mailing address and telephone number of the
additional impacts are fully compensated; (ii).                       permittee;
2. The project results in less wetland or stream impacts, in          2. Name and location of the activity;
which case, compensation requirements may be modified in
relation to the adjusted impacts at the request of the                3. The VWP permit authorization number; and
permittee, provided that the adjusted compensation meets the          4. One of the following certifications:
initial authorization compensation goals; (iii).
                                                                      a. For project completion:
3. There is a change in the project plans that does not result in
a change in project impacts; (iv)                                     "I certify under penalty of law that all activities and any
                                                                      required compensatory mitigation authorized by a VWP
4. There is a change in the mitigation bank at which credits          general permit have been completed. I understand that by
are purchased or used, provided that the same amount of               submitting this notice of termination I am no longer authorized
credits are purchased or used and all criteria for use are met,       to perform activities in surface waters in accordance with the
as detailed in 9 VAC 25-210-115; or (v) F.                            VWP general permit, and that performing activities in surface
5. Typographical errors need to be corrected. A notice of             waters is unlawful where the activity is not authorized by a
planned change is not required if the project results in              VWP permit. I also understand that the submittal of this notice
additional temporary impacts to surface waters, provided that         does not release me from liability for any violations of this
DEQ is notified in writing, the additional temporary impacts are      VWP general permit authorization."
restored to preexisting conditions in accordance with Part I C        b. For project cancellation:
11 of this general permit, and the additional temporary
impacts do not exceed the general permit threshold for use.           "I certify under penalty of law that the activities and any
The permittee shall notify the board in advance of the planned        required compensatory mitigation authorized by this VWP
change, and the planned change request will be reviewed               general permit will not occur. I understand that by submitting
according to all provisions of this regulation.                       this notice of termination I am no longer authorized to perform
                                                                      activities in surface waters in accordance with the VWP
J. VWP general permit authorization termination for cause.            general permit, and that performing activities in surface waters
This VWP general permit authorization is subject to                   is unlawful where the activity is not authorized by a VWP
termination for cause by the board after public notice and            permit. I also understand that the submittal of this notice does
opportunity for a hearing. Reasons for termination for cause          not release me from liability for any violations of this VWP
are as follows:                                                       general permit authorization, nor does it allow me to resume
1. Noncompliance by the permittee with any condition of the           the     permitted    activities  without    reapplication    and
VWP general permit authorization;                                     reauthorization."

2. The permittee's failure in the application or during the VWP       c. For events beyond permittee control, the permittee shall
general permit authorization issuance process to disclose fully       provide a detailed explanation of the events, to be approved
all relevant facts or the permittee's misrepresentation of any        by DEQ, and the following certification statement:
relevant facts at any time;                                           "I certify under penalty of law that all the activities or the
3. The permittee's violation of a special or judicial order; and      required compensatory mitigation authorized by a VWP
                                                                      general permit have changed as the result of events beyond
4. A determination by the board that the permitted activity           my control (see attached). I understand that by submitting this
endangers human health or the environment and can be                  notice of termination I am no longer authorized to perform
regulated to acceptable levels by VWP general permit                  activities in surface waters in accordance with the VWP
authorization planned change or termination for cause.                general permit, and that performing activities in surface waters
                                                                      is unlawful where the activity is not authorized by a VWP
K. VWP general permit authorization termination by consent.           permit. I also understand that the submittal of this notice does
This VWP general permit authorization may be terminated by            not release me from liability for any violations of this VWP

Volume 22, Issue 9                                                                                              Monday, January 9, 2006

                                                                   1267
Proposed Regulations
general permit authorization, nor does it allow me to resume       d. The name of the individuals who performed the analyses;
the   permitted    activities  without    reapplication  and
reauthorization."                                                  e. The analytical techniques or methods supporting the
                                                                   information such as observations, readings, calculations and
L. Civil and criminal liability. Nothing in this VWP general       bench data used;
permit shall be construed to relieve the permittee from civil
and criminal penalties for noncompliance.                          f. The results of such analyses; and

M. Oil and hazardous substance liability. Nothing in this VWP      g. Chain of custody documentation.
general permit shall be construed to preclude the institution of   Q. Unauthorized discharge of pollutants. Except in compliance
legal action or relieve the permittee from any responsibilities,   with this VWP general permit, it shall be unlawful for the
liabilities, or penalties to which the permittee is or may be      permittee to:
subject under § 311 of the Clean Water Act or §§ 62.1-
44.34:14 through 62.1-44.34:23 of the State Water Control          1. Discharge into state waters sewage, industrial wastes,
Law.                                                               other wastes, or any noxious or deleterious substances;

N. Duty to cease or confine activity. It shall not be a defense    2. Excavate in a wetland;
for a permittee in an enforcement action that it would have        3. Otherwise alter the physical, chemical, or biological
been necessary to halt or reduce the activity for which a VWP      properties of state waters and make them detrimental to the
permit has been granted in order to maintain compliance with       public health, to animal or aquatic life, to the uses of such
the conditions of the VWP permit.                                  waters for domestic or industrial consumption, for recreation,
O. Duty to provide information.                                    or for other uses; or

1. The permittee shall furnish to the board any information        4. On and after October 1, 2001, conduct the following
which the board may request to determine whether cause             activities in a wetland:
exists for modifying, revoking, and reissuing and terminating      a. New activities to cause draining that significantly alters or
the VWP permit authorization, or to determine compliance           degrades existing wetland acreage or functions;
with the VWP permit authorization. The permittee shall also
furnish to the board, upon request, copies of records required     b. Filling or dumping;
to be kept by the permittee.
                                                                   c. Permanent flooding or impounding; or
2. Plans, maps, conceptual reports and other relevant
                                                                   d. New activities that cause significant alteration                 or
information shall be submitted as required by the board prior
                                                                   degradation of existing wetland acreage or functions.
to commencing construction.
                                                                                                  FORMS
P. Monitoring and records requirements.
                                                                   Department of Environmental Quality Water Division Permit
1. Monitoring of parameters, other than pollutants, shall be
                                                                   Application Fee Form (eff. 7/04).
conducted according to approved analytical methods as
specified in the VWP permit. Analysis of pollutants will be        Joint Permit Application for Activities in Waters and Wetlands
conducted according to 40 CFR Part 136 (2000), Guidelines          of the Commonwealth of Virginia (rev. 10/04).
Establishing Test Procedures for the Analysis of Pollutants.
                                                                   Joint Permit Application for Projects in Tidewater, Virginia (eff.
2. Samples and measurements taken for the purpose of               10/04).
monitoring shall be representative of the monitored activity.
                                                                   Virginia   Department    of   Transportation      Inter-Agency
3. The permittee shall retain records of all monitoring            Coordination Meeting Joint Permit Application (eff. 10/02).
information, including all calibration and maintenance records
                                                                          VA.R. Doc. No. R05-287; Filed December 16, 2005, 9:46 a.m.
and all original strip chart or electronic recordings for
continuous monitoring instrumentation, copies of all reports
required by the VWP permit, and records of all data used to                                    ********
complete the application for the VWP permit, for a period of at
least three years from the date of the expiration of a granted     Title of Regulation:   9 VAC 25-680. Virginia Water
VWP permit. This period may be extended by request of the          Protection General Permit for Linear Transportation
board at any time.                                                 Projects (amending 9 VAC 25-680-10 through 9 VAC 25-
                                                                   680-100; adding 9 VAC 25-680-95).
4. Records of monitoring information shall include, as
appropriate:                                                       Statutory Authority: §§ 62.1-44.15 and 62.1-44.15:5 of the
                                                                   Code of Virginia; § 401 of the Clean Water Act (33 USC
a. The date, exact place and time of sampling or                   § 1251 et seq.).
measurements;
                                                                   Public Hearing Date: February 6, 2006 - 3:30 p.m.
b. The name of the individuals who performed the sampling or         Public comments may be submitted until 5 p.m. on March
measurements;                                                        10, 2006.
c. The date and time the analyses were performed;                      (See Calendar of Events section
                                                                       for additional information)

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                                                               1268
                                                                                            Proposed Regulations
Agency Contact:    Catherine M. Harold, Department of                "Cross-sectional drawing" means a graph or plot of ground
Environmental Quality, P.O. Box 10009, Richmond, VA                  elevation across a waterbody or a portion of it, usually along a
23240, telephone (804) 698-4047, FAX (804) 698-4347, or              line perpendicular to the waterbody or direction of flow.
e-mail cmharold@deq.virginia.gov.
                                                                     "Emergent wetland" means a class of wetlands characterized
Summary:                                                             by erect, rooted, herbaceous plants growing in water or on a
                                                                     substrate that is at least periodically deficient in oxygen as a
  Virginia Water Protection (VWP) General Permit WP3 will            result of excessive water content, excluding mosses and
  expire on August 1, 2006. The proposed revisions include           lichens. This vegetation is present for most of the growing
  minor changes to improve the processing and coordination           season in most years and is usually dominated by perennial
  of authorizations, both for the public, DEQ, and other             plants.
  agencies. The VWP general permit regulations generally
  reduce the permitting burden to the public and minimize the        "FEMA" means Federal Emergency Management Agency.
  amount of agency duplication in processing permit
  authorizations and it is in the interest of all to continue to     "Forebay" means a deeper area at the upstream end of a
  provide this level of service through the renewal of this          stormwater management facility that would be maintained
  general permit.                                                    through excavation.

  The substance of the revisions include the addition and            "Forested wetland" means a class of wetlands characterized
  deletion of definitions; minor grammatical changes;                by woody vegetation that is six meters (20 feet) tall or taller.
  formatting, consolidating and reordering of text to improve        These areas normally possess an overstory of trees, an
  readability; clarification of existing requirements; prohibiting   understory of trees or shrubs, and an herbaceous layer.
  the use of this general permit for wetlands, open waters and       "Greater than one acre" means more than 1.00 acre (43,560
  streams that are protected by deed restrictions or similar         square feet).
  protective covenants imposed by previous state or federal
  permit actions; extending the life of the general permit           "Impacts" means results caused by human-induced activities
  regulations to 10 years instead of the current five years;         conducted in surface waters, as specified in § 62.1-44.15:5 D
  extending the permit authorization period to up to seven           of the Code of Virginia.
  years; reiteration of provisions in the main VWP regulation        "Independent utility" means a test to determine what
  for purposes of emphasis; and amending the thresholds of           constitutes a single and complete project. A project is
  coverage for wetlands and open waters and stream                   considered to have independent utility if it would be
  impacts, which were previously combined together as                constructed absent the construction of other projects in the
  “surface waters.”                                                  project area. Portions of a multi-phase project that depend
9 VAC 25-680-10. Definitions.                                        upon other phases of the project do not have independent
                                                                     utility. Phases of a project that would be constructed even if
The words and terms used in this chapter shall have the              the other phases are not built can be considered as separate
meanings defined in the State Water Control Law (§ 62.1-44.2         single and complete projects with independent utility.
et seq. of the Code of Virginia) and the Virginia Water
Protection (VWP) Permit Regulation (9 VAC 25-210) unless             “Isolated Wetland of Minimal Ecological Value (IWOMEV)”
the context clearly indicates otherwise or unless otherwise          means a wetland that (i) does not have a surface water
indicated below.                                                     connection to other state waters; (ii) is less than one-tenth of
                                                                     an acre in size; (iii) is not located in a Federal Emergency
"Bank protection" means measures employed to stabilize               Management Agency designated 100-year floodplain; (iv) is
channel banks and combat existing erosion problems. Such             not identified by the Virginia Natural Heritage Program as a
measures may include the construction of riprap revetments,          rare or state significant natural community; (v) is not forested;
sills, rock vanes, beach nourishment, breakwaters, bulkheads,        and (vi) does not contain listed federal or state threatened or
groins, spurs, levees, marsh toe stabilization, anti-scouring        endangered species.
devices, and submerged sills.
                                                                     "Less than one-half of an acre" means 0.00 to 0.49 acre (0 to
"Bioengineering method" means a biological measure                   21,779 square feet).
incorporated into a facility design to benefit water quality and
minimize adverse effects to aquatic resources, to the                "Linear transportation project" means a project for the
maximum extent practicable, for long-term aquatic resource           construction, expansion, modification or improvement of
protection and improvement.                                          features such as, but not limited to, roadways, railways, trails,
                                                                     bicycle and pedestrians paths, and airport runways and
"Channelization" means the alteration of a stream channel by         taxiways, including all attendant features both temporary and
widening, deepening, straightening, cleaning or paving certain       permanent. Nonlinear features commonly associated with
areas.                                                               transportation projects, such as, but not limited to, vehicle
"Conversion" means changing one type of surface water to             maintenance or storage buildings, parking lots, train stations,
another type of surface water, either permanently or                 or aircraft hangars are not included in this definition.
temporarily. The permanent conversion of a forested wetland          "Less than one-half of an acre" means 0.00 to 0.49 acre (0 to
to an emergent wetland is considered to be a permanent               21,779 square feet).
impact for the purposes of this regulation.

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“Open water” means an area that, during a year with normal            water are not considered to be stream bed for the purposes of
patterns of precipitation, has standing water for sufficient          this regulation.
duration to establish an ordinary high water mark. The term
“open water” includes lakes and ponds but does not include            “Surface waters” means all state waters that are not ground
ephemeral waters, stream beds, or wetlands.                           water as defined in § 62.1-255 of the Code of Virginia.

“Ordinary high water” or “ordinary high water mark” means the         "Temporary impacts" are those impacts to surface waters,
line on the shore established by the fluctuations of water and        including wetlands, that do not cause a permanent alteration
indicated by physical characteristics such as clear, natural line     of the physical, chemical, or biological properties of the
impressed on the bank; shelving; changes in the character of          surface water, or of the functions and values of a wetland.
soil; destruction of terrestrial vegetation; the presence of litter   Temporary impacts include activities in which the ground is
and debris; or other appropriate means that consider the              restored to its preconstruction conditions, contours and , or
characteristics of the surrounding areas.                             elevations, such that previous functions and values are
                                                                      restored.
"Perennial stream" means a well-defined channel that
contains water year round during a year of normal rainfall.           "Up to 300 linear feet of stream channel" means >0.00 to
Generally, the water table is located above the streambed for         300.00 linear feet of any stream, rounded to the second
most of the year and groundwater is the primary source for            decimal place, as measured along the center of the main
stream flow. A perennial stream exhibits the typical biological,      channel of the stream segment.
hydrological, and physical characteristics commonly                   "Up to 500 linear feet of perennial stream channel" means
associated with the continuous conveyance of water.                   0.00 to 500.00 linear feet of perennial stream, rounded to the
"Permanent impacts" are means those impacts to surface                second decimal place, as measured along the center of the
waters, including wetlands, that cause a permanent alteration         main channel of the stream segment.
of the physical, chemical, or biological properties of the            "Up to 1500 linear feet of nonperennial stream channel"
surface waters, or of the functions and values of a wetland.          means >0.00 to 1500.00 linear feet of nonperennial stream,
"Person" means an individual, corporation, partnership,               rounded to the second decimal place, as measured along the
association, government governmental body, municipal                  center of the main channel of the stream segment.
corporation, or any other legal entity.                               "Up to one acre" means 0.00 to 1.00 acre (0 to 43,560 square
"Riprap" means a layer of nonerodible material such as stone          feet).
or chunks of concrete on an embankment slope for the                  "Up to one-tenth of an acre" means 0.00 to 0.10 acre (0 to
purpose of preventing erosion.                                        4,356 square feet) or less.
"Scrub-shrub wetland" means a class of wetlands dominated             "Up to two acres" means 0.00 to 2.00 acres (0 to 87,120
by woody vegetation less than six meters (20 feet) tall. The          square feet) or less.
species include tree shrubs, young trees, and trees or shrubs
that are small or stunted because of environmental conditions.        "Utility line" means any a pipe or pipeline for the transportation
                                                                      of any gaseous, liquid, liquifiable liquefiable or slurry
"Single and complete project" means the total project                 substance, for any purpose, and any a cable, line, or wire for
proposed or accomplished by a person and, which also has              the transmission for any purpose of electrical energy,
independent utility, as defined in this section. For linear           telephone, and telegraph messages and radio and television
projects, the "single and complete project" (i.e e.g., a single       communication. The term utility line does not include activities
and complete crossing) may but does not always will apply to          which drain a surface water to convert it to an upland, such as
each crossing of a separate surface water (i.e. e.g., a single        drainage tiles or french drains; however, it does apply to pipes
waterbody) and to multiple crossings of the same waterbody            conveying drainage from another area.
at separate and distinct locations. Phases of a project that
have independent public and economic utility may each be              9 VAC 25-680-20. Purpose; delegation              of   authority;
considered single and complete.                                       effective date of VWP general permit.

"State programmatic program general permit (SPGP)" means              A. The purpose of this regulation is to establish VWP General
a general permit issued by the Department of the Army in              Permit Number WP3 under the VWP permit program
accordance with 33 USC 1344(e), 33 CFR Part 32S                       regulation to govern impacts related to the construction and
325.2(e)(2), and 33 CFR 325.3(b) and that is founded on a             maintenance of Virginia Department of Transportation (VDOT)
state program and.       The SPGP is designed to avoid                or other linear transportation projects. Applications for
duplication between the federal and state programs.                   coverage under this VWP general permit shall be processed
                                                                      for approval, approval with conditions, or denial by the board.
“Stream bed” means the substrate of a stream, as measured             Authorization, authorization with conditions, or denial by the
between the ordinary high water marks along a length of               board shall constitute the VWP general permit action. Each
stream. The substrate may consist of organic matter, bedrock          VWP general permit action shall follow all provisions in the
or inorganic particles that range in size from clay to boulders,      State Water Control Law (§ 62.1-44.2 et seq. of the Code of
or a combination of both. Areas contiguous to the stream bed,         Virginia), except for the public comment and participation
but outside of the ordinary high water marks, are not                 provisions, from which each VWP general permit action is
considered part of the stream bed. Ditches, swales, and open          exempt.

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B. The director or his designee may perform any act of the            3. 7. The stream impact criterion applies to all components of
board provided under this chapter except as limited by                the project, including any structures and stream channel
§ 62.1-44.14 of the Code of Virginia.                                 manipulations.
C. This VWP general permit regulation will become effective           4. 8. Dredging does not exceed 5,000 cubic yards.
on October 1, 2001 (insert effective date), and will expire on
October 1, 2006, for general linear transportation projects and       5. 9. Compensation for unavoidable impacts is provided in the
will become effective August 1, 2001, and will expire August 1,       form of any one or combination of the following: creation,
2006, for linear transportation projects of the Virginia              restoration, the purchase or use of mitigation bank credits, or
Department of Transportation (insert date that is 10 years            a contribution to an approved in-lieu fee fund. For wetlands
after effective date).                                                compensation may incorporate preservation of wetlands, or
                                                                      preservation or restoration of upland buffers adjacent to
D. Authorization to impact surface waters under this VWP              surface waters, when utilized in conjunction with creation,
general permit is effective upon compliance with all the              restoration or mitigation bank credits. For other surface
provisions of 9 VAC 25-680-30. Notwithstanding the expiration         waters, compensation may incorporate preservation and
date of this general permit regulation, authorization to impact       enhancement of stream channels, or preservation or
surface waters under this VWP general permit will continue for        restoration and enhancement of adjacent riparian buffers
a maximum of five seven years.                                        accordance with 9 VAC 25-680-70.
9 VAC 25-680-30. Authorization to impact surface waters.              B. Activities that may be authorized under this VWP general
                                                                      permit include the construction, expansion, modification or
A. Any person governed by this VWP general permit is                  improvement of linear transportation crossings (e.g.,
authorized to permanently or temporarily impact up to two             highways, railways, trails, bicycle and pedestrian paths, and
acres of nontidal surface waters including wetlands or open           airport runways and taxiways, including all attendant features
water and up to 500 1,500 linear feet of perennial nontidal           both temporary and permanent).
stream channel and up to 1,500 linear feet of nonperennial
stream channel, bed for linear transportation projects,               C. The board waives the requirement for coverage under a
provided that the applicant submits notification as required in       VWP permit for activities that occur in an isolated wetland of
9 VAC 25-680-50 and 9 VAC 25-680-60, remits the required              minimal ecological value as defined in 9 VAC 25-210-10
application processing fee (9 VAC 25-20), complies with the           9 VAC 25-680-10. Any person claiming this waiver bears the
limitations and other requirements of 9 VAC 25-680-100,               burden to demonstrate that he qualifies for the waiver.
receives approval from the board, and provided that:
                                                                      D. Receipt of this VWP general permit does not relieve any
1. The applicant submits notification as required in 9 VAC 25-        the permittee of the responsibility to comply with any other
680-50 and 9 VAC 25-680-60.                                           applicable federal, state or local statute, ordinance or
                                                                      regulation.
2. The applicant remits the required application processing fee
in accordance with 9 VAC 25-20.                                       E. In issuing this VWP general permit, the board has not taken
                                                                      into consideration the structural stability of the proposed
3. The applicant complies with the limitations and other              structure or structures.
requirements of 9 VAC 25-680-100.
                                                                      F. Coverage under a nationwide or regional permit
4. The applicant receives approval from the Virginia                  promulgated by the U.S. Army Corps of Engineers (USACE),
Department of Environmental Quality.                                  and for which the board has issued § 401 certification existing
1. 5. The applicant shall has not have been required to obtain        as of the effective date of this regulation, shall constitute
a VWP individual permit under the VWP permit regulation               coverage under this VWP general permit unless a state
(9 VAC 25-210) for the proposed project impacts. The                  programmatic program general permit is approved for the
applicant, at his discretion, may seek a VWP individual permit,       covered activity or impact. Notwithstanding any other
or coverage under another applicable VWP general permit, in           provision, activities authorized under a nationwide or regional
lieu of coverage under this VWP general permit.                       permit promulgated by the USACE and certified by the board
                                                                      in accordance with 9 VAC 25-210-130 do not need to obtain
2. 6. Impacts, both temporary and permanent, result from a            coverage under this VWP general permit unless a state
single and complete project, including all attendant features.        programmatic general permit is approved for the covered
a. Where a road segment (i.e e.g., the shortest segment of a          activity or impact.
road with independent utility that is part of a larger project) has   G. When the board determines on a case-by-case basis that
multiple crossings of state waters (several single and                concerns for water quality and the aquatic environment so
complete projects), the board may at its discretion require a         indicate, the board may require individual applications and
VWP individual permit.                                                VWP individual permits rather than approving coverage under
b. For the purposes of this chapter, when an interchange has          this VWP general permit.
multiple crossings of state waters, the entire interchange shall      9 VAC 25-680-40. Exceptions to coverage.
be considered the single and complete project.
                                                                      A. Authorization for coverage under this VWP general permit
                                                                      will not apply in the following areas:


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                                                                  1271
Proposed Regulations
1. Wetlands composed of 10% or more of the following                 within a cofferdam or the work is performed in the dry, or
species (singly or in combination) in any a vegetative stratum:      unless approved by DEQ;.
Atlantic white cedar (Chamaecyparis thyoides), bald cypress
(Taxodium distichum), water tupelo (Nyssa aquatica), or              6. Return flow discharges from dredge disposal sites;.
overcup oak (Quercus lyrata). Percentages shall be based             7. Overboard disposal of dredge materials;.
upon either basal area or percent areal cover in the area of
impact.                                                              8. Dredging in marinas;.

2. Surface waters where the proposed activity will impact            9. Dredging of shellfish areas, submerged aquatic vegetation
federal or state listed or proposed threatened or endangered         beds and other highly productive areas;.
species or proposed or designated critical habitat.                  10. Federal navigation projects;.
B. Authorization for coverage under this VWP general permit          11. The taking of threatened or endangered species in
cannot be used in combination with authorizations for                accordance with the following:
coverage under other VWP general permits in order to impact
greater than two acres of nontidal surface waters, more              a. As pursuant to § 29.1-564 of the Code of Virginia: " , the
wetlands or open water or greater than 500 1,500 linear feet         taking, transportation, processing, sale or offer for sale within
of perennial nontidal stream channel, or more than 1,500             the Commonwealth of any fish or wildlife appearing on any list
linear feet of nonperennial stream channel bed. More than one        of threatened or endangered species published by the United
authorization for coverage under this VWP general permit for         States Secretary of the Interior pursuant to the provisions of
a single and complete project is prohibited, except when the         the federal Endangered Species Act of 1973 (P.L. 93-205), or
cumulative impact to surface waters does not exceed the              any modifications or amendments thereto, is prohibited except
limits specified here.                                               as provided in § 29.1-568."
C. This VWP general permit may not be used to authorize              b. As pursuant to § 29.1-566 of the Code of Virginia and
nonlinear features commonly associated with transportation           4 VAC 15-20-130 B and C, the taking, transportation,
projects, such as, but not limited to, vehicle maintenance or        processing, sale, or offer for sale within the Commonwealth of
storage buildings, parking lots, train stations, or aircraft         any state-listed endangered or threatened species is
hangars.                                                             prohibited except as provided in § 29.1-568 of the Code of
                                                                     Virginia.
D. The activity to impact surface waters shall not have been
prohibited by state law or regulations, nor shall it contravene      12. Proposed activities in wetlands, open water, streams, or
applicable Water Quality Standards (9 VAC 25-260).                   compensatory mitigation sites that are under a deed
                                                                     restriction, conservation easement, restrictive covenant, or
E. The board shall deny coverage under this VWP general              other land use protective instrument (hereafter protected
permit to any applicant conducting activities that cause, may        areas), where such restriction, easement, covenant, or
reasonably be expected to cause, or may be contributing to a         instrument is the result of a federal or state permit action and
violation of water quality standards, including discharges or        is specific to activities in wetlands and compensatory
discharge-related activities that are likely to adversely            mitigation sites, and where the proposed activities incur up to
significantly affect aquatic life, or for activities that together   1/10 acre of wetland or open water impacts or up to 300 linear
with other existing or proposed impacts to wetlands will cause       feet of stream bed impacts. Where the proposed activities in
or contribute to a significant impairment of state waters or fish    protected areas impact greater than 1/10 acre wetlands or
and wildlife resources.                                              open water, or greater than 300 linear feet of stream bed, the
F. This VWP general permit does not authorize activities that        applicant may submit a full and complete permit application for
cause more than minimal changes to the peak hydraulic flow           further consideration by the board.
characteristics, that significantly increase flooding, or that       9 VAC 25-680-50. Notification.
cause more than minimal degradation of the water quality of
any a stream.                                                        A. Notification to the board will be required prior to
                                                                     commencing construction, as follows:
G. This VWP general permit may not be used for:
                                                                     1. An application for authorization for of proposed, permanent
1. Any Construction of a stormwater management facility that         nontidal wetland or open water impacts greater than one-tenth
is located in perennial streams or in oxygen- or temperature-        of an acre, or for of proposed permanent nontidal stream
impaired waters; (does not include wetlands).                        channel bed impacts greater than 300 linear feet, shall be
2. The construction of an irrigation impoundment on a                submitted via an application that includes all information
perennial stream;.                                                   pursuant to 9 VAC 25-680-60 B. Once permanent impacts
                                                                     exceed these limits, compensatory mitigation may be required
3. Any water withdrawal activities;.                                 for all permanent impacts in accordance with Parts I, II, and III
4. The location of animal feeding operations or waste storage        of this VWP general permit regulation. All temporary impacts
facilities in state waters;.                                         shall be restored to preexisting conditions, as per Parts I, II,
                                                                     and III of this VWP general permit regulation.
5. The pouring of wet concrete or the use of tremie concrete
or grout bags in state waters, unless the area is contained          2. An application for the authorization of proposed, permanent
                                                                     surface nontidal wetland or open water impacts up to

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one-tenth of an acre, which may include or of proposed,            8. Latitude and longitude (to the nearest second) from a
permanent nontidal stream bed impacts up to 300 linear feet        central location within the project limits;.
of stream channel, shall be reported submitted via an
application that includes only the following information:          9. A detailed location map (e.g., a United States Geologic
subdivisions 1 through 8, 9, 13, 15, 20, and 20 21 of 9 VAC        Survey topographic quadrangle map) of the project area,
25-680-60 B, and documentation that verifies the quantity and      including the project boundary. The map shall be of sufficient
type of impacts. If permanent impacts remain below these           detail such that the site may be easily located for site
limits, compensatory mitigation is not required for permanent      inspection;
impacts.    All temporary impacts shall be restored to             10. (Reserved.);
preexisting conditions, as per Parts I and III of this VWP
general permit regulation.                                         11. Project plan view. All Plan view sketches shall include, at
                                                                   a minimum, north arrow, scale, existing structures, existing
B. A Joint Permit Application (JPA) or Virginia Department of      and proposed contours (if available), limit of surface water
Transportation Interagency Coordination Meeting Joint Permit       areas, direction of flow, ordinary high water mark, impact
Application (VDOT IACM JPA) shall serve as an application          limits, location and dimension of all proposed structures in
under this regulation.                                             impact areas. In addition cross-sectional or profile sketches,
C. The board will determine whether the proposed activity          as appropriate, with the above information, shall may be
requires coordination with the United States Fish and Wildlife     required as appropriate to demonstrate minimization of
Service, the Virginia Department of Conservation and               impacts; detail impact areas.
Recreation, the Virginia Department of Agriculture and             12. Dredge material management plan (for dredging projects
Consumer Services and the Virginia Department of Game and          only) including plan and cross-section view drawings of the
Inland Fisheries regarding the presence of any federal or state    disposal or dewatering area, the dimensions and design of the
proposed or listed threatened and endangered species or            proposed berm and spillway, and the capacity of the proposed
proposed or designated critical habitat. Based upon                disposal or dewatering site;.
consultation with these agencies, the board may deny
coverage under this general permit. The applicant may also         13. Surface water impact information (wetlands, streams, or
consult with these agencies prior to submitting an application.    open water) for both permanent and temporary impacts,
Species or habitat information that the applicant provides will    including a description of the impact, the areal extent of the
assist DEQ in reviewing and processing the application.            impact (area of wetland in square feet and acres; area of
                                                                   stream, length of stream, and average width),; the location
9 VAC 25-680-60. Application.                                      (latitude and longitude at the center of the impact, or at the
A. Applications shall be filed with the board as follows:          center of each impact for linear projects)) and the type of
                                                                   surface water impact (open water; wetlands according to the
1. The applicant shall file a complete application, as described   Cowardin classification or similar terminology); or perennial
in accordance with 9 VAC 25-680-50, for a VWP General              and nonperennial for streams).       The board encourages
Permit Number WP3 for impacts to surface waters from linear        applicants to coordinate the determination of perennial or
transportation projects, which will serve as a notice of intent    nonperennial streams with the appropriate local government
for coverage under this VWP general permit.                        agency in Tidewater Virginia.
2. The VDOT may use its monthly IACM process for                   14. Functional values assessment for impacts to wetlands
submitting applications.                                           greater than one acre, which shall consist of a summary of
                                                                   field observations of the existing wetland functions and values
B. The required application shall contain the following            and an assessment of the impact that the project will have on
information, if applicable to the project:                         these functions and values. The following parameters/ and
1. The applicant's name, mailing address, and telephone            functions shall be directly addressed: surrounding land uses
number and, if applicable, fax number;.                            and cover types; nutrient, sediment, and pollutant trapping;
                                                                   flood control and flood storage capacity; erosion control and
2. The authorized agent's (if applicable) name, mailing            shoreline stabilization; groundwater recharge and discharge;
address, telephone number and, if applicable, fax number and       aquatic and wildlife habitat; and unique or critical habitats;.
electronic mail address;.
                                                                   15. A description of the specific on-site measures considered
3. The existing VWP permit number (if applicable);.                or and taken during project design and development both to
4. The name of the project, narrative description of project       avoid and minimize impacts to surface waters to the maximum
purpose, and a description of the proposed activity in surface     extent practicable;.
waters;.                                                           16. A conceptual plan for the intended compensation for
5. The name of the water body or water bodies or receiving         unavoidable impacts, including:
stream, as applicable;.                                            a. For wetlands, the conceptual compensation plan shall
6. The hydrologic unit code (HUC) for the project area;.           include: the goals and objectives in terms of replacement of
                                                                   wetland acreage and function; a detailed location map (e.g., a
7. The name of the city or county where the project is located;.   United States Geologic Survey topographic quadrangle map),
                                                                   including latitude and longitude (to the nearest second) at the

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                                                               1273
Proposed Regulations
center of the site; a description of the surrounding land use; a    data sheets. The delineation map shall also include the
hydrologic analysis, including a draft water budget based on        location of streams, open water, and the approximate limits of
expected monthly inputs and outputs which will project water        Chesapeake Bay Resource Protection Areas (RPAs), as other
level elevations for a typical year, a dry year, and a wet year;    state or local requirements may apply if the project is located
groundwater elevation data, if available, or the proposed           within an RPA. Wetland types shall be noted according to
location of groundwater monitoring wells to collect these data;     their Cowardin classification or similar terminology. A copy of
a map for existing surface water areas on the proposed site or      the USACE delineation confirmation, or other correspondence
sites, including a wetland delineation confirmation for any         from the USACE indicating their approval of the wetland
existing wetlands; a conceptual grading plan; a conceptual          boundary, shall also be provided at the time of application, or
planting scheme, including suggested plant species and              if not available at that time, as soon as it becomes available
zonation of each vegetation type proposed; and a description        during the VWP permit review. The delineation map shall also
of existing soils, including general information on topsoil and     include the location of streams, open water and other surface
subsoil conditions, permeability, and the need for soil             waters on the site. The approximate limits of any Chesapeake
amendments.                                                         Bay Resource Protection Areas (RPAs) shall be shown on the
                                                                    map, as other state or local requirements may apply if the
b. For streams, the conceptual compensation plan shall              project is located within an RPA;
include: the goals and objectives in terms of water quality
benefits and replacement of stream functions; a detailed            18. A copy of the FEMA flood insurance rate map or FEMA-
location map (e.g., a United States Geologic Survey                 approved local floodplain map for the project site;.
topographic quadrangle map), including the latitude and
longitude and the hydrologic unit code (HUC) at the center of       19. The appropriate application processing fee for a VWP
the site to the nearest second; the proposed stream segment         permit ( in accordance with 9 VAC 25-20-10 et seq.); and. The
restoration locations, including plan view and cross-section        permit application fee for VWP permit authorizations is based
sketches; the stream deficiencies that need to be addressed;        on acres only. Therefore, impacts that include linear feet of
the proposed restoration measures to be employed, including         stream bed must be converted to an acreage in order to
channel measurements, proposed design flows and types of            calculate the permit application fee.
instream structures; and reference stream data, if available.       20. A written disclosure identifying all wetlands, open water,
c. Applicants proposing to compensate off-site, including           streams, and associated upland buffers within the proposed
purchase or use of mitigation bank credits, or contribution to      project or compensation areas that are under a deed
an in-lieu fee fund shall submit an evaluation of the feasibility   restriction, conservation easement, restrictive covenant, or
of on-site compensation. If on-site compensation is                 other land use protective instrument (protected areas). Such
practicable, applicants shall provide documentation as to why       disclosure shall include the nature of the prohibited activities
the proposed off-site compensation is ecologically preferable.      within the protected areas.
The evaluation shall include, but not be limited to, the            20. 21. The following certification:
following assessment criteria: water quality benefits,
hydrologic source, hydrologic regime, watershed, surface            "I certify under penalty of law that this document and all
water functions and values, vegetation type, soils, impact          attachments were prepared under my direction or supervision
acreage, distance from impacts, timing of compensation              in accordance with a system designed to assure that qualified
versus impacts, acquisition, constructability, and cost.            personnel properly gather and evaluate the information
                                                                    submitted. Based on my inquiry of the person or persons who
d. Any applicant Applicants proposing compensation involving        manage the system or those persons directly responsible for
contributions to an in-lieu fee fund shall state such as the        gathering the information, the information submitted is to the
conceptual compensation plan. Written documentation of the          best of my knowledge and belief true, accurate, and complete.
willingness of the entity to accept the donation and                I am aware that there are significant penalties for submitting
documentation of how the amount of the contribution was             false information including the possibility of fine and
calculated shall be submitted prior to issuance of this general     imprisonment for knowing violations."
permit authorization.
                                                                    C. The application shall be signed in accordance with 9 VAC
e. Any applicant Applicants proposing compensation involving        25-210-100. If an agent is acting on behalf of an applicant, the
the purchase or use of mitigation banking credits shall include     applicant shall submit an authorization of the agent that
as their conceptual compensation plan:                              includes the signatures of both the applicant and the agent.
(1) The name of the proposed mitigation bank and the HUC in         D. Upon receipt of an application by the appropriate DEQ
which it is located;                                                office, the board has 15 days to review the application and
(2) The number of credits proposed to be purchased or used;         either determine the information requested in subsection B of
and                                                                 this section is complete or inform the applicant that additional
                                                                    information is required to make the application complete.
(3) Certification from the bank owner of the availability of        Coverage under this VWP general permit shall be approved,
credits;.                                                           approved with conditions, or denied within 45 days of receipt
                                                                    of a complete application. If the board fails to act within 45
17. A delineation map must be provided of the geographic            days on a complete application, coverage under this VWP
area of a delineated wetland for all wetlands on the site, in       general permit shall be deemed approved.
accordance with 9 VAC 25-210-45, including the wetlands

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                                                                1274
                                                                                              Proposed Regulations
1. In evaluating the application, the board shall make an           stream channels, or preservation, restoration, or enhancement
assessment of the impacts associated with the project in            of adjacent riparian buffers, may be applied toward stream
combination with other existing or proposed impacts.                compensation as appropriate.
Coverage under this VWP general permit shall be denied if
the cumulative impacts will cause or contribute to a significant    1. Wetland creation.
impairment of state waters or fish and wildlife resources.          2. Wetland restoration.
2. The board may place additional conditions on a project in        3. The purchase or use of credits from a mitigation bank,
order to approve authorization under this VWP general permit.       pursuant to § 62.1-44.15:5 E of the Code of Virginia.
However, these conditions must be consistent with the VWP
permit regulation.                                                  4. A contribution to an approved in-lieu fee fund.

E. Incomplete application. Where an application is incomplete,      5. Preservation of upland buffers adjacent to state waters,
the board shall require the submission of additional                when utilized in conjunction with subdivision 1, 2, or 3 of this
information and shall may suspend processing the application        subsection and when consistent with 9 VAC 25-210-115 C.
until such time as the applicant has supplied the missing or        6. Restoration of upland buffers adjacent to state waters,
deficient requested information and the application is              when utilized in conjunction with subdivision 1, 2, or 3 of this
complete. Further, Where the applicant becomes aware that           subsection and when consistent with 9 VAC 25-210-115 C.
he omitted one or more relevant facts from an application, or
submitted incorrect information in an application or in any         7. Preservation of wetlands, when utilized in conjunction with
report reports to the board, he shall immediately submit such       subdivision 1, 2, or 3 of this subsection.
facts or the correct information. Such A revised application
                                                                    D. For the purposes of this VWP general permit,
with new information shall be deemed a new application, but
                                                                    compensatory mitigation for unavoidable stream impacts may
shall not require an additional permit application fee. An
                                                                    be met through the following:
incomplete permit application may be administratively
withdrawn from processing by the board after 180 days from          1. Stream channel restoration or enhancement.
the date that the original permit application was received by
the board. Resubmittal of a permit application for the same or      2. Riparian buffer restoration or enhancement.
similar project, after such time that the original permit           3. Riparian buffer preservation, when consistent with 9 VAC
application was administratively withdrawn, shall require           25-210-115 C.
submittal of an additional permit application fee.
                                                                    4. A contribution to an approved in-lieu fee fund.
9 VAC 25-680-70. Compensation.
                                                                    5. The purchase or use of credits from a mitigation bank,
A. In accordance with 9 VAC 25-680-50 A 1, compensatory             pursuant to § 62.1-44.15:5 E of the Code of Virginia.
mitigation may be required for all permanent, nontidal surface
water impacts once the notification limits are exceeded. All        E. In order for contribution to an in-lieu fee fund to be an
temporary, nontidal surface water impacts shall be restored to      acceptable form of compensation, the fund must be approved
preexisting conditions.                                             for use by the board according to the provisions of 9 VAC 25-
                                                                    210-115 E. The applicant shall provide proof of contribution to
B. Generally, the sequence of preferred compensation options        DEQ prior to commencing activities in impact areas.
shall be restoration, then creation, then mitigation banking,
and then in-lieu fee fund. Also, on-site, in-kind compensatory      F. In order for purchase or use of bank credits to be an
mitigation, when available, shall be deemed the most                acceptable form of compensation, the bank shall be operating
ecologically preferable form of compensation for project            in accordance with the provisions of § 62.1-44.15:5 E of the
impacts, in most cases. However, off-site or out-of-kind            Code of Virginia and 9 VAC 25-210-115 F. The applicant shall
compensation opportunities that prove to be more ecologically       provide proof of purchase, use, or debit to DEQ prior to
preferable or practicable may be considered. When the               commencing activities in impact areas.
applicant can demonstrate satisfactorily that an off-site or out-   B. G. Compensation for unavoidable, permanent wetland
of-kind compensatory mitigation proposal is practicable and         impacts shall be provided at the following minimum
ecologically preferable, then such proposal may be deemed           compensation to impact ratios:
appropriate for compensation of project impacts.
                                                                    1. Impacts to forested wetlands shall be mitigated at 2:1, as
A. C. For the purposes of this VWP general permit, the board        calculated on an area basis.
may accept any one or combination of the following as
compensation compensatory mitigation for unavoidable                2. Impacts to scrub shrub wetlands shall be mitigated at 1.5:1,
wetland impacts may be met through the following: wetland           as calculated on an area basis.
creation, wetland or stream restoration, the purchase or use of
                                                                    3. Impacts to emergent wetlands shall be mitigated at 1:1, as
mitigation bank credits, or a contribution to an approved in-lieu
                                                                    calculated on an area basis.
fee fund. Preservation of wetlands, or preservation or
restoration of upland buffers adjacent to state waters, may         C. Compensation for unavoidable impacts to streams shall be
only be applied toward wetland compensation when utilized in        provided and shall include, as practicable and appropriate,
conjunction with one or more of the above-mentioned                 stream restoration, riparian buffer restoration or enhancement,
compensation options. Preservation or enhancement of                or preservation or enhancement of stream corridors. The

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Proposed Regulations
purchase or use of stream mitigation bank credits or              and permit application fee for the total impacts to be
contribution to an in-lieu fee fund that includes watershed       considered under this VWP general permit, another VWP
enhancements is also acceptable. H. Compensation for              general permit, or a VWP individual permit.
stream bed impacts shall be appropriate to replace lost
functions and water quality benefits. One factor in determining   B. C. Authorization under this VWP general permit may be
the required compensation shall be an analysis of stream          modified after issuance if the project results in less wetland or
impacts utilizing a stream impact assessment methodology          stream impacts. Compensation requirements may be modified
approved by the board acceptable to DEQ.                          in relation to the adjusted impacts at the request of the
                                                                  permittee, provided that the adjusted compensation meets the
D. I. Compensation for permanent open water impacts other         initial authorization compensation goals. DEQ shall not be
than to streams may be required at a 1:1 replacement to           responsible for ensuring refunds for mitigation bank credit
impact ratio, as appropriate calculated on an area basis, to      purchases, mitigation bank usage, or in-lieu fee fund
protect offset impacts to state waters and fish and wildlife      contributions.
resources from significant impairment.
                                                                  C. D. Authorization under this VWP general permit may be
E. J. Compensation for conversion impacts to wetlands shall       modified after issuance for a change in project plans that does
be required at a 1:1 replacement to impact ratio, as calculated   not result in a change in project impacts.
on an area basis, when such conversion results in a
permanent alteration of the functions and values of the           D. E. Authorization under the VWP general permit may be
wetlands. For example, the permanent conversion of a              modified for a change to the mitigation bank at which credits
forested wetland to an emergent wetland is considered to be a     are purchased or used, provided that the same amount of
permanent impact for the purposes of this regulation.             credits are purchased or used and all criteria for use in 9 VAC
Compensation for conversion of other types of surface waters      25-210-115 are met.
may be required, as appropriate, to offset impacts to state       E. F. Authorization under the VWP general permit may be
waters and fish and wildlife resources from significant           modified after issuance for typographical errors.
impairment.
                                                                  F. G. A Notice of Planned Change is not required after
F. In order for contribution to an in-lieu fee fund to be an      authorization issuance for additional temporary impacts to
acceptable form of compensation, the fund must be approved        surface waters, provided that DEQ is notified in writing
for use by the board according to the provisions of 9 VAC         regarding additional temporary impacts, and the area is
25-210-115 E.                                                     restored to preexisting conditions in accordance with Part I C
G. In order for the purchase or use of bank credits to be an      11 of this general permit. In no case can the additional
acceptable form of compensation, the bank shall be operating      temporary impacts exceed the general permit threshold for
in accordance with the provisions of § 62.1- 44.15:5 E of the     use.
Code of Virginia and 9 VAC 25-210-115 F. The applicant shall      G. The permittee shall notify the board in advance of the
provide proof of purchase, use, or debit to DEQ prior to          planned change, and the planned change request will be
commencing activities in impact areas.                            reviewed according to all provisions of this regulation. H. In
9 VAC 25-680-80. Notice of planned changes.                       no case can this authorization be modified to exceed the
                                                                  general permit threshold for use.
A. The permittee shall notify the board in advance of the
planned change, and the planned change request will be            I. A notice of planned change shall be denied if fish and
reviewed according to all provisions of this regulation.          wildlife resources are significantly impacted or if the criteria in
                                                                  subsection B of this section are not met. However, the
A. B. Authorization under this VWP general permit may be          original VWP general permit authorization shall remain in
modified subsequent to issuance if the permittee determines       effect. The applicant may submit a new permit application and
that additional permanent wetland, open water, or stream          permit application fee for consideration under a VWP
impacts are necessary, provided that the additional impacts       individual permit.
are associated with the previously authorized activities in
authorized locations within the same phase of development,        9 VAC 25-680-90. Termination of authorization by consent.
the cumulative increase in acreage of wetland or open water       When all permitted activities requiring notification under
impacts is not greater than 1/4 acre and , the cumulative         9 VAC 25-680-50 A 1 and all compensatory mitigation
increase in stream bed impacts is not greater than 50 100         requirements have been completed, or if the authorized
linear feet, and provided that the additional impacts are fully   impacts will not occur, the permittee shall submit a request for
mitigated. In no case can this authorization be modified to       termination by consent within 30 days of project completion or
exceed the general permit threshold for use. Prior to a           project cancellation. When submitted for project completion,
planned change approval, DEQ may require submission of a          the termination by consent shall constitute a notice of
compensatory mitigation plan for the additional impacts. In       completion in accordance with 9 VAC 25-210-130. The
cases where the original impacts totaled less than 1/10 acre of   director may accept this termination of authorization on behalf
wetlands or open water, or less than 300 linear feet of stream    of the board. The permittee shall submit the following
bed, and the additional impacts result in these limits being      information:
exceeded, the notice of planned change will not be approved.
However, the applicant may submit a new permit application        1. Name, mailing address and telephone number of the
                                                                  permittee;

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                                                                                                Proposed Regulations
2. Name and location of the activity;                                 board that are received on or after (insert effective date) will
                                                                      be processed in accordance with these new procedures.
3. The VWP permit authorization number; and
                                                                      9 VAC 25-680-100. VWP general permit.
4. One of the following certifications:
                                                                      Any applicant whose application has been accepted by the
a. For project completion:                                            board shall be subject to the following requirements:
"I certify under penalty of law that all activities and any           VWP General Permit No. WP3
required compensatory mitigation authorized by a VWP
general permit have been completed. I understand that by              Authorization Effective Date:
submitting this notice of termination I am no longer authorized
to perform activities in surface waters in accordance with the        Authorization Expiration date:
VWP general permit, and that performing activities in surface         Authorization Notes(s):
waters is unlawful where the activity is not authorized by a
VWP permit. I also understand that the submittal of this notice       VWP GENERAL PERMIT FOR LINEAR TRANSPORTATION
does not release me from liability for any violations of this         PROJECTS UNDER THE VIRGINIA WATER PROTECTION
VWP general permit authorization."                                    PERMIT AND THE VIRGINIA STATE WATER CONTROL
                                                                      LAW
b. For project cancellation:
                                                                      Based upon an examination of the information submitted by
"I certify under penalty of law that the activities and any           the applicant and in compliance with § 401 of the Clean Water
required compensatory mitigation authorized by this VWP               Act as amended (33 USC § 1341) and the State Water
general permit will not occur. I understand that by submitting        Control Law and regulations adopted pursuant thereto, the
this notice of termination I am no longer authorized to perform       board has determined that there is a reasonable assurance
activities in surface waters in accordance with the VWP               that the activity authorized by this VWP general permit, if
general permit, and that performing activities in surface waters      conducted in accordance with the conditions set forth herein,
is unlawful where the activity is not authorized by a VWP             will protect instream beneficial uses and will not violate
permit. I also understand that the submittal of this notice does      applicable water quality standards. The board finds that the
not release me from liability for any violations of this VWP          effect of the impact, together with other existing or proposed
general permit authorization, nor does it allow me to resume          impacts to wetlands, will not cause or contribute to a
the     permitted    activities  without    reapplication    and      significant impairment of state waters or fish and wildlife
reauthorization."                                                     resources.
c. For events beyond permittee control, the permittee shall           Subject to the provisions of the Clean Water Act, as amended,
provide a detailed explanation of the events, to be approved          and pursuant to the State Water Control Law and regulations
by DEQ, and the following certification statement:                    adopted pursuant to it, the permittee is authorized to
"I certify under penalty of law that all activities or the required   permanently or temporarily impact up to two acres of nontidal
compensatory mitigation authorized by a VWP general permit            surface waters including wetlands or open water and up to
have changed as the result of events beyond my control (see           500 1,500 linear feet of perennial nontidal stream channel and
attached). I understand that by submitting this notice of             up to 1,500 linear feet of nonperennial stream channel bed.
termination I am no longer authorized to perform activities in        Permittee:
surface waters in accordance with the VWP general permit,
and that performing activities in surface waters is unlawful          Address:
where the activity is not authorized by a VWP permit. I also          Activity Location:
understand that the submittal of this notice does not release
me from liability for any violations of this VWP general permit       Activity Description:
authorization, nor does it allow me to resume the permitted
                                                                      The authorized activity shall be in accordance with this cover
activities without reapplication and reauthorization."
                                                                      page, Part I-Special Conditions, Part II-Compensation,
9 VAC 25-680-95. Transition.                                          Monitoring, and Reporting, and Part III-Conditions Applicable
                                                                      to All VWP Permits, as set forth herein.
A. All applications received on or after (insert effective date)      _____________________________________              ________
will be processed in accordance with these new procedures.            Director, Department of Environmental Quality            Date
B. VWP general permit authorizations issued prior to (insert                               Part I. Special Conditions.
effective date) will remain in full force and effect until such
authorizations expire, are revoked, or are terminated.                A. Authorized activities.
C. Notices of Planned Change and all other types of                   1. This permit authorizes permanent or temporary impacts of
notification that are received by the board prior to (insert          up to two acres of nontidal surface waters including wetlands
effective date) will be processed in accordance with the VWP          or open water and up to 500 1,500 linear feet of perennial
general permit regulation in effect at that time. Notices of          nontidal stream channel and up to 1,500 linear feet of
Planned Change and all other types of notification to the             nonperennial stream channel bed according to the information
                                                                      provided in the approved and complete application.


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                                                                  1277
Proposed Regulations
2. Any changes to the authorized permanent impacts to              4. All fill material shall be clean and free of contaminants in
surface waters associated with this project shall require either   toxic concentrations or amounts in accordance with all
a notice of planned change in accordance with 9 VAC                applicable laws and regulations.
25-680-80 or another VWP permit application.
                                                                   5. Erosion and sedimentation controls shall be designed in
3. Any changes to the authorized temporary impacts to              accordance with the Virginia Erosion and Sediment Control
surface waters associated with this project shall require          Handbook, Third Edition, 1992. These controls shall be placed
written notification to DEQ and restoration to preexisting         prior to clearing and grading and maintained in good working
conditions in accordance with the conditions of this permit        order to minimize impacts to state waters. These controls shall
authorization.                                                     remain in place until the area is stabilized and shall then be
                                                                   removed.
4. Modification to compensation requirements may be
approved at the request of the permittee when a decrease in        6. Any Exposed slopes and streambanks shall be stabilized
the amount of authorized surface waters impacts occurs,            immediately upon completion of work in each permitted impact
provided that the adjusted compensation meets the initial          area. All denuded areas shall be properly stabilized in
authorization compensation goals.                                  accordance with the Virginia Erosion and Sediment Control
                                                                   Handbook, Third Edition, 1992.
5. The activities authorized for coverage under this VWP
general permit must commence and be completed within five          7. All construction, construction access (e.g., cofferdams,
seven years of the date of this authorization.                     sheetpiling, and causeways) and demolition activities
                                                                   associated with this project shall be accomplished in a manner
B. Continuation of Coverage. Reapplication for continuation of     that minimizes construction or waste materials from entering
coverage under this VWP general permit or a new VWP                surface waters to the maximum extent practicable, unless
permit may be necessary if any portion of the authorized           authorized by this VWP general permit.
activities or any VWP permit requirement (including
compensation) has not been completed within five seven             8. No machinery may enter flowing waters, unless authorized
years of the date of authorization. Notwithstanding any other      by this VWP general permit.
provision, a request for continuation of coverage under a VWP
general permit in order to complete monitoring requirements        9. Heavy equipment in temporarily impacted wetland areas
shall not be considered a new application and no application       shall be placed on mats, geotextile fabric, or other suitable
fee will be charged. The request for continuation of coverage      material, to minimize soil disturbance to the maximum extent
must be made no less than 60 days prior to the expiration          practicable. Equipment and materials shall be removed
date of this VWP general permit authorization, at which time       immediately upon completion of work.
the board will determine if continuation of the VWP general        10. All nonimpacted surface waters and compensatory
permit authorization is necessary.                                 mitigation areas within 50 feet of any permitted activities and
C. Overall project conditions.                                     within the project or right-of-way limits shall be clearly flagged
                                                                   or marked for the life of the construction activity at that
1. The activities authorized by this VWP general permit shall      location to preclude any unauthorized disturbances to these
be executed in a manner so as to minimize any adverse              surface waters and compensatory mitigation areas during
impact impacts on instream beneficial uses as defined in           construction. The permittee shall notify all contractors that no
§ 62.1-10 (b) of the Code of Virginia.                             activities are to occur in these marked areas are surface
                                                                   waters where no activities are to occur.
2. No activity may substantially disrupt the movement of
aquatic life indigenous to the water body, including those         11. Temporary disturbances to surface waters during
species which normally migrate through the area, unless the        construction shall be avoided and minimized to the maximum
primary purpose of the activity is to impound water. Culverts      extent practicable. All temporarily disturbed wetland areas
placed in streams must be installed to maintain low flow           shall be restored to preconstruction preexisting conditions
conditions. The requirement to countersink does not apply to       within 30 days of completing work at each respective
extensions or maintenance of existing culverts that are not        temporary impact area, which shall include reestablishing
countersunk, floodplan culverts being placed above ordinary        preconstruction contours, and planting or seeding with
high water, culverts being placed on bedrock, or culverts          appropriate wetland vegetation according to cover type
required to be placed on slopes 5.0% or greater. No activity       (emergent, scrub/shrub, or forested). The permittee shall take
may cause more than minimal adverse effect on navigation.          all appropriate measures to promote and maintain
Furthermore the activity must not impede the passage of            revegetation of temporarily disturbed wetland areas with
normal or expected high flows and the structure or discharge       wetland vegetation through the second year post-disturbance.
must withstand expected high flows.                                All temporarily impacted streams and streambanks shall be
                                                                   restored to their original contours within 30 days following the
3. Wet or uncured concrete shall be prohibited from entry into     construction at that stream segment, and the banks seeded or
flowing surface waters, unless otherwise approved by DEQ.          planted with the same vegetation cover type originally present
Excess or waste concrete shall not be disposed of in flowing       along the streambanks, including supplemental erosion
surface waters or washed into flowing surface waters.              control grasses if necessary, except for invasive species
                                                                   identified on DCR's Invasive Alien Plant Species of Virginia
                                                                   list.

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                                                                                             Proposed Regulations
12. All Materials (including fill, construction debris, and          completing work in the area, unless otherwise authorized by
excavated and woody materials) temporarily stockpiled in             this VWP general permit. Restoration shall be the seeding or
wetlands shall be placed on mats or geotextile fabric,               planting of the same vegetation cover type originally present,
immediately stabilized to prevent entry into state waters,           including supplemental erosion control grasses if necessary,
managed such that leachate does not enter state waters, and          except for invasive species identified on DCR's Invasive Alien
completely removed within 30 days following completion of            Plant Species of Virginia list.
that construction activity. Disturbed areas shall be returned to
original contours, restored within 30 days following removal of      2. Material resulting from trench excavation may be
the stockpile, and restored with the same vegetation cover           temporarily sidecast into wetlands not to exceed a total of 90
type originally present, including supplemental erosion control      days, provided the material is not placed in a manner such
grasses if necessary, except for invasive species identified on      that it is dispersed by currents or other forces.
DCR's Invasive Alien Plant Species of Virginia list.                 3. The trench for a utility line cannot be constructed in a
13. Continuous flow of perennial springs shall be maintained         manner that drains wetlands (e.g., backfilling with extensive
by the installation of spring boxes, french drains, or other         gravel layers creating a french drain effect). For example,
similar structures.                                                  utility lines may be backfilled with clay blocks to ensure that
                                                                     the trench does not drain surface waters through which the
14. The permittee shall employ measures to prevent spills of         utility line is installed.
fuels or lubricants into state waters.
                                                                     F. Stream modification and stream bank protection.
15. The permittee shall conduct his activities in accordance
with any the time-of-year restrictions recommended by the            1. Riprap bank stabilization shall be of an appropriate size and
Virginia Department of Game and Inland Fisheries or , the            design in accordance with the Virginia Erosion and Sediment
Virginia Marine Resources Commission, or other interested            Control Handbook, Third Edition, 1992.
and affected agencies and shall ensure that all contractors are      2. Riprap aprons for all outfalls shall be designed in
aware of any the time-of-year restrictions imposed.                  accordance with the Virginia Erosion and Sediment Control
16. Water quality standards shall not be violated as a result of     Handbook, Third Edition, 1992.
the construction activities, unless allowed by this permit           3. For bank protection activities, the structure and backfill shall
authorization.                                                       be placed as close to the stream bank as practicable. No
17. Untreated stormwater runoff shall be prohibited from             material shall be placed in excess of the minimum necessary
directly discharging into any surface waters, unless allowed by      for erosion protection.
this permit authorization. Appropriate best management               4. All stream bank protection structures shall be located to
practices shall be deemed suitable treatment prior to                eliminate or minimize impacts to vegetated wetlands to the
discharge into state waters.                                         maximum extent practicable.
18. If stream channelization or relocation is required, all work     5. Asphalt and materials containing asphalt or other toxic
in surface waters shall be done in the dry, unless authorized        substances shall not be used in the construction of
by this VWP general permit, and all flows shall be diverted          submerged sills or breakwaters.
around the channelization or relocation area until the new
channel is stabilized. This work shall be accomplished by            6. Redistribution of existing stream substrate for the purpose
leaving a plug at the inlet and outlet ends of the new channel       of erosion control is prohibited.
during excavation. Once the new channel has been stabilized,         7. No material removed from the stream bottom shall be
flow shall be routed into the new channel by first removing the      disposed of in surface waters unless authorized by this permit.
downstream plug and then the upstream plug. The rerouted
stream flow must be fully established before construction            G. Dredging.
activities in the old stream channel can begin.
                                                                     1. Dredging depths shall be determined and authorized
D. Road crossings.                                                   according to the proposed use and controlling depths outside
                                                                     the area to be dredged.
1. Access roads and associated bridges or culverts shall be
constructed to minimize the adverse effects on surface waters        2. Dredging shall be accomplished in a manner that minimizes
to the maximum extent practicable. Access roads constructed          disturbance of the bottom and minimizes turbidity levels in the
above preconstruction contours and elevations in surface             water column.
waters must be bridged or culverted to maintain surface flows.
                                                                     3. If evidence of impaired water quality, such as a fish kill, is
2. Installation of road crossings shall occur in the dry via the     observed during the dredging, dredging operations shall
implementation of cofferdams, sheetpiling, stream diversions,        cease and the Department of Environmental Quality (DEQ)
or similar structures.                                               shall be notified immediately.
E. Utility lines.                                                    4. Barges used for the transportation of dredge material shall
                                                                     be filled in such a manner to prevent any the overflow of
1. All utility line work in surface waters shall be performed in a   dredged materials.
manner that minimizes disturbance, and the area must be
returned to its original contours and restored within 30 days of

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                                                                 1279
Proposed Regulations
5. Double handling of dredged material in state waters shall          Part II. Construction and Compensation Requirements,
not be permitted.                                                                    Monitoring and Reporting.
6. For navigation channels the following shall apply:              A. Compensation Minimum compensation requirements:
a. A buffer of four times the depth of the dredge cut shall be     1. The permittee shall provide appropriate and practicable
maintained between the bottom edge of the design channel           compensation for all impacts meeting the conditions outlined
and the channelward limit of wetlands or mean low water, or a      in this VWP general permit.
buffer of 15 feet shall be maintained from the dredged cut and
the channelward edge of wetlands or mean low water,                2. The types of Compensation options that may be considered
whichever is greater. This landward limit of buffer shall be       under this VWP general permit include wetland or stream
flagged and inspected prior to construction.                       creation or restoration, the purchase or use of mitigation bank
                                                                   credits, or a contribution to an approved in-lieu fee fund shall
b. Side slope cuts of the dredging area shall not exceed a         meet the criteria in 9 VAC 25-680-70.
two-horizontal-to-one-vertical slope to prevent slumping of
material into the dredged area.                                    3. For wetlands compensation may incorporate preservation
                                                                   of wetlands or preservation or restoration of upland buffers
7. A dredged material management plan for the designated           adjacent to state waters when utilized in conjunction with
upland disposal site shall be submitted and approved 30 days       creation, restoration, or mitigation bank credits. For other
prior to initial dredging activity.                                surface waters, compensation may incorporate preservation,
                                                                   restoration, or enhancement of stream channels, or
8. Pipeline outfalls and spillways shall be located at opposite    preservation, restoration, or enhancement of adjacent riparian
ends of the dewatering area to allow for maximum retention         buffers.
and settling time. Filter fabric shall be used to line the
dewatering area and to cover the outfall pipe to further reduce    4. 3. The site or sites depicted in the conceptual
sedimentation to state waters.                                     compensation plan submitted with the application shall
                                                                   constitute the compensation site for the approved project. A
9. The dredge material dewatering area shall be of adequate        site change will require a modification to the authorization.
size to contain the dredge material and to allow for adequate
dewatering and settling out of sediment prior to discharge         5. 4. For compensation involving the purchase or use of
back into state waters.                                            mitigation bank credits or a contribution to an in-lieu fee fund,
                                                                   the permittee shall not initiate work in permitted impact areas
10. The dredge material dewatering area shall utilize an           until documentation of the mitigation bank credit purchase or
earthen berm or straw bales covered with filter fabric along the   usage or of the fund contribution has been submitted to and
edge of the area to contain the dredged material, and shall be     received by DEQ.
properly stabilized prior to placing the dredged material within
the containment area.                                              6. For projects proposing a contribution to an in-lieu fee fund,
                                                                   the permittee shall not initiate work in permitted impact areas
11. Overtopping of the dredge material containment berms           until documentation of the in-lieu fee fund contribution has
with dredge materials shall be strictly prohibited.                been submitted to and received by DEQ.
H. Stormwater management facilities.                               7. 5. All aspects of the compensation plan shall be finalized,
1. Stormwater management facilities shall be installed in          submitted and approved by the board prior to any a
accordance with best management practices and watershed            construction activity in permitted impact areas. The board
protection techniques (i.e. e.g., vegetated buffers, siting        shall review and provide written comments on the plan within
considerations to minimize adverse effects to aquatic              30 days of receipt or it shall be deemed approved. The final
resources, bioengineering methods incorporated into the            compensation plan as approved by the board shall be an
facility design to benefit water quality and minimize adverse      enforceable requirement of this VWP general permit
effects to aquatic resources) that provide for long-term aquatic   authorization. Any Deviations from the approved plan must be
resources protection and enhancement, to the maximum               submitted and approved in advance by the board.
extent practicable.                                                8. 6. The final wetlands compensation plan shall include:
2. Compensation for unavoidable impacts shall not be allowed       a. The goals and objectives of the plan in terms of
within maintenance areas of stormwater management                  replacement of wetland acreage and functions, by wetland
facilities.                                                        type;
3. Maintenance activities within stormwater management             b. Location map, including latitude and longitude (to the
facilities shall not require additional permit authorization or    nearest second) at the center of the site;
compensation, provided that the maintenance activities do not
exceed the original contours of the facility, as approved and      c. Summary of the type and acreage of existing wetland
constructed, and is accomplished in designated maintenance         impacts anticipated during the construction of the
areas as indicated in the facility maintenance or design plan.     compensation site and proposed compensation for these
                                                                   impacts;
                                                                   d. Grading plan with existing and proposed elevations at
                                                                   one-foot or less contours;

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                                                                                            Proposed Regulations
e. Schedule for compensation site construction, including          g. Livestock access limiting measures, to the greatest extent
sequence of events with estimated dates;                           possible;
f. Hydrologic analysis, including a water budget based on          h. A site access plan;
expected monthly inputs and outputs that will project water
level elevations for a typical year, a dry year, and a wet year;   i. An erosion and sedimentation control plan, if appropriate;

g. Groundwater elevation data for the site, or the proposed        j. Abatement and control plan covering all undesirable plant
location of groundwater monitoring wells to collect these data,    species, as listed on DCR's Invasive Alien Plant Species of
and groundwater data for reference wetlands, if applicable;        Virginia list that includes the proposed procedures for notifying
                                                                   DEQ of their presence, methods for removal, and the control
h. Design of water control structures;                             of any such species;
i. Planting scheme and schedule, indicating plant species          k. A schedule for compensation site construction including
zonation, and acreage of each vegetation type proposed;            projected start date, sequence of events with projected dates,
                                                                   and projected completion date;
j. An abatement and control plan covering all undesirable plant
species, as listed on DCR's Invasive Alien Plant Species of        l. A monitoring plan, including a monitoring and reporting
Virginia list, that includes the proposed procedures for           schedule; monitoring design and methodologies to evaluate
notifying DEQ of their presence, methods of removal, and the       the success of the proposed compensation measures,
control of any such species;                                       allowing comparison from year to year; proposed success
                                                                   criteria for appropriate compensation measures; location of all
k. Erosion and sedimentation control plan;                         monitoring stations including photo stations, vegetation
l. A soil preparation and amendment plan addressing both           sampling points, survey points, bank pins, scour chains, and
topsoil and subsoil conditions;                                    reference streams;

m. A discussion of any structures and features considered          m. The mechanism for protection of the compensation area;
necessary for the success of the plan;                             and

n. A monitoring plan, including success criteria, monitoring       n. Plan view sketch depicting the pattern and all compensation
goals and methodologies, monitoring and reporting schedule,        measures being employed, a profile sketch, and cross-section
and the locations of photographic stations and monitoring          sketches of the proposed compensation stream.
wells, any sampling points and, if applicable, reference           10. 8. For final wetland or stream compensation plans, any the
wetlands;                                                          vegetation used shall be native species common to the area,
o. Site access plan;                                               shall be suitable for growth in local wetland or stream
                                                                   conditions, and shall be from areas within the same or
p. The location and composition of any buffers; and                adjacent USDA Plant Hardiness Zone or NRCS Land
q. The mechanism for protection of the compensation areas.         Resource Region as that of the project site.

9. 7. The final stream compensation plan shall include:            11. 9. The final wetland or stream compensation plan or plans
                                                                   shall include a mechanism for protection in perpetuity of the
a. The goals and objectives of the compensation plan in terms      compensation sites to include all state waters within the
of replacement of stream functions and values water quality        compensation site boundary or boundaries. Such protections
benefits;                                                          shall be in place within 120 days of final plan approval. The
                                                                   restrictions, protections, or preservations, or similar
b. A location map, including latitude and longitude (to the
                                                                   instrument, shall state that no activity will be performed on the
nearest second) at the center of the site;
                                                                   property in any area designated as a compensation area with
c. An evaluation, discussion, and plan sketches of existing        the exception of maintenance or corrective action measures
conditions on the proposed compensation stream, including          authorized by the board. Unless specifically authorized by the
the identification of functional and physical deficiencies for     board through the issuance of a VWP individual or general
which the measures are proposed, and summary of                    permit, or waiver thereof, this restriction applies to ditching,
geomorphologic measurements (e.g., stream               width,     land clearing or the discharge of dredge or fill material. Such
entrenchment ratio, width-depth ratio, sinuosity, slope,           instrument shall contain the specific phrase "ditching, land
substrate, etc.);                                                  clearing or discharge of dredge or fill material" in the
                                                                   limitations placed on the use of these areas. The protective
d. The identification of existing geomorphological stream type     instrument shall be recorded in the chain of title to the
being impacted and proposed geomorphological stream type           property, or an equivalent instrument for government-owned
for compensation purposes;                                         lands. Proof of recordation shall be submitted within 120 days
e. Detailed design information for the proposed restorative        of plat approval.
measures, including geomorphological measurements and              12. 10. All work in permitted impact areas shall cease if
reference reach information as appropriate;                        compensation site construction has not commenced within
f. Riparian buffer plantings, including planting scheme,           180 days of commencement of project construction, unless
species, buffer width;                                             otherwise authorized by the board.


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13. 11. DEQ shall be notified in writing at least 10 days prior to   determined and a corrective action plan (including proposed
the initiation of construction activities at the compensation        actions, a schedule, and a monitoring plan) shall be submitted
sites.                                                               to DEQ for approval with or before that year's monitoring
                                                                     report. The approved corrective action plan shall contain at
14. 12. Planting of woody plants shall occur when vegetation         minimum the proposed actions, a schedule for those actions,
is normally dormant unless otherwise approved in the final           and a monitoring plan, and shall be implemented by the
wetlands or stream compensation plan(s).                             permittee in accordance with the approved schedule. Should
15. 13. Point sources of stormwater runoff shall be prohibited       significant changes be necessary to ensure success, the
from entering any a wetland compensation site prior to               required monitoring cycle shall begin again, with monitoring
treatment by appropriate best management practices.                  year one being the year that the changes are complete as
Appropriate best management practices may include                    confirmed by DEQ. 21. If all success criteria have not been
sediment traps, grassed waterways, vegetated filter strips,          met in the wetland or stream compensation area fails to meet
debris screens, oil and grease separators, or forebays.              the specified success criteria by the final monitoring year, or if
                                                                     the wetland or stream compensation site area has not met the
16. 14. The success of the compensation shall be based on            stated restoration goals, reasons for this failure shall be
meeting the success criteria established in the approved final       determined and a corrective action plan, including proposed
compensation plan.                                                   actions, a schedule, and a monitoring plan, shall be submitted
17. 15. Wetland hydrology shall be considered established if         with the final year monitoring report for DEQ approval.
depths to the seasonal high water table are equal to or less         Corrective action shall be implemented by the permittee in
than 12 inches below ground surface for at least 12.5% of the        accordance with the approved schedule. Annual monitoring
region's killing frost-free growing season, as defined in the soil   shall be required for each consecutive year to continue until
survey for the locality of the compensation site or the NRCS         two sequential, annual reports indicate that all criteria have
WETS table, measured in consecutive days under typical               been successfully satisfied and the site has met the overall
precipitation conditions, and as defined in the water budget of      restoration goals (i.e. e.g., that corrective actions were
the final compensation plan. For the purpose of this                 successful). The reasons for this failure shall be determined
regulation, the growing season is defined as the period in           and a corrective action plan (including proposed actions, a
which temperatures are expected to be above 28 degrees               schedule, and a monitoring plan) shall be submitted with the
Fahrenheit in five out of 10 years, or the period during which       monitoring report to DEQ for approval and implemented by the
the soil temperature in a wetland compensation site is greater       permittee in accordance with the approved schedule.
than biological zero (five degrees Celsius) at a depth of 50         22. 19. The surveyed wetland boundary for the compensation
centimeters (19.6 inches), if such data is available.                site shall be based on the results of the hydrology, soils, and
18. 16. The wetland plant community shall be considered              vegetation monitoring data and shall be shown on the site
established according to the performance criteria specified in       plan. Calculation of total wetland acreage shall be based on
the final compensation plan and approved by the board. The           that boundary at the end of the monitoring cycle. Data shall be
proposed vegetation success criteria in the final compensation       submitted by December 31 of the final monitoring year.
plan shall include the following:                                    23. 20. Herbicides or algicides shall not be used in or
a. Species composition shall reflect the desired plant               immediately adjacent to the compensation site or sites without
community types stated in the final wetland compensation             prior authorization by the board. All vegetation removal shall
plan by the end of the first growing season and shall be             be done by manual means only, unless authorized by DEQ in
maintained through the last monitoring year.                         advance.

b. Species composition shall consist of greater than 50%             B. Impact site construction monitoring.
facultative (FAC) or wetter (FACW or OBL) vegetation, as             1. Construction activities authorized by this permit that are
expressed by plant stem density or areal cover, by the end of        within impact areas shall be monitored and documented. The
the first growing season and shall be maintained through the         monitoring shall document the preexisting conditions, activities
last monitoring year.                                                during construction, and post-construction conditions.
19. 17. Undesirable plant species shall be identified and            Monitoring shall consist of one of the following options:
controlled as described in the undesirable plant species             a. Photographs shall be taken during construction at the end
control plan, such that they are not dominant species or do not      of the first, second and third months of commencing
change the desired community structure. The control plan             construction, and then every six months thereafter for the
shall include procedures to notify DEQ when undesirable plant        remainder of the construction project. Photos are not required
species comprise greater than 5.0% of the vegetation by areal        during periods of no activity within impact areas.
coverage on wetland or stream compensation sites. The
notification shall include the methods of removal and control,       b. An ortho-rectified photograph shall be taken by a firm
and whether the methods are successful.                              specializing in ortho-rectified photography prior to
                                                                     construction, and annually thereafter, until all impacts are
20. 18. If the wetland or stream compensation area(s) fail area      taken. Photos shall clearly show the delineated surface waters
fails to meet the specified success criteria in a particular         and authorized impact areas.
monitoring year (with the exception of, other than the final
monitoring year), the reasons for this failure shall be

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c. In lieu of photographs, and with prior approval from DEQ,          deviations in the as-built survey or aerial survey shall be
the permittee may submit a written narrative that summarizes          shown on the survey and explained in writing.
site construction activities in impact areas. The narrative shall
be submitted at the end of the first, second, and third months        2. Photographs shall be taken at the compensation site or
after commencing construction, and then every six months              sites from the permanent markers identified in the final
thereafter, for the remainder of the construction activities.         compensation plan, and established to ensure that the same
Narratives are not required during periods of no activity with        locations and view directions at the site or sites are monitored
the impact areas.                                                     in each monitoring period. These photographs shall be taken
                                                                      after the initial planting and at a time specified in the final
2. As part of construction monitoring, photographs taken at the       compensation plan during every monitoring year.
photo stations or the narrative shall document site activities
and conditions, which may include installation and                    3. Compensation site monitoring shall begin on the first day of
maintenance of erosion and sediment controls; surface water           the first complete growing season (monitoring year 1) after
discharges from the site; condition of adjacent nonimpact             wetland compensation site construction activities, including
surface waters; flagged nonimpact surface waters;                     planting, have been completed. Monitoring shall be required
construction access and staging areas; filling, excavation, and       for monitoring years 1, 2, 3, and 5, unless otherwise approved
dredging activities; culvert installation; dredge disposal; and       by DEQ. In all cases, if all success criteria have not been met
site stabilization, grading, and associated restoration activities.   in the final monitoring year, then monitoring shall be required
With the exception of the preconstruction photographs,                for each consecutive year until two annual sequential reports
photographs at an individual impact site shall not be required        indicate that all criteria have been successfully satisfied.
until construction activities are initiated at that site. With the    4. The establishment of wetland hydrology shall be measured
exception of the post-construction photographs, photographs           weekly during the growing season, with the location and
at an individual impact site shall not be required once the site      number of monitoring wells, and frequency of monitoring for
is stabilized following completion of construction at that site.      each site, set forth in the final monitoring plan. All Hydrology
3. Each photograph shall be labeled to include the following          monitoring well data shall be accompanied by precipitation
information: permit number, impact area and photo station             data, including rainfall amounts, either from on site or from the
number, date and time of the photograph, name of the person           closest weather station. Once the wetland hydrology success
taking the photograph, photograph orientation, and                    criteria have been satisfied for a particular monitoring year,
photograph subject description.                                       monitoring may be discontinued for the remainder of that
                                                                      monitoring year following DEQ approval. After a period of
4. Monitoring of water quality parameters shall be conducted          three monitoring years, the permittee may request that
during permanent relocation of perennial streams through new          hydrology monitoring be discontinued, providing that adequate
channels in the manner noted below. The permittee shall               hydrology has been established and maintained. Hydrology
report violations of water quality standards to DEQ in                monitoring shall not be discontinued without written approval
accordance with the procedures in Part II E. Corrective               from DEQ.
measures and additional monitoring may be required if water
quality standards are not met. Reporting shall not be required        5. The presence of hydric soils or soils under hydric conditions
if water quality standards are not violated.                          shall be evaluated in accordance with the final compensation
                                                                      plan.
a. A sampling station shall be located upstream and
immediately downstream of the relocated channel.                      6. The establishment of wetland vegetation shall be in
                                                                      accordance with the final compensation plan. Monitoring shall
b. Temperature, pH and dissolved oxygen (D.O.)                        take place in August, September, or October during the
measurements shall be taken every 30 minutes for at least             growing season of each monitoring year, unless otherwise
two hours at each station prior to opening the new channels           authorized in the monitoring plan.
and immediately before opening new channels.
                                                                      7. The presence of undesirable plant species shall be
c. Temperature, pH and D.O. readings shall be taken after             documented.
opening the channels and every 30 minutes for at least three
hours at each station.                                                8. All wetland compensation monitoring reports shall be
                                                                      submitted by December 31 of the monitoring year. The reports
B. C. Wetland compensation site monitoring.                           shall include, as applicable, the following: in accordance with
                                                                      9 VAC 25-680-100 Part II E 6.
1. An as-built ground survey, or an aerial survey provided by a
firm specializing in aerial surveys, shall be conducted for the       a. General description of the site including a site location map
entire compensation site or sites, including invert elevations        identifying photo stations, vegetative and soil monitoring
for all water elevation control structures and spot elevations        stations, monitoring wells, and wetland zones.
throughout the site or sites. Aerial surveys shall include the
variation from actual ground conditions, such as +/- 0.2 feet.        b. Summary of activities completed during the monitoring
Either type of survey shall be certified by a licensed surveyor       year.
or by a registered professional engineer to conform to the            c. Description of monitoring methods.
design plans. The survey shall be submitted within 60 days of
completing compensation site construction. Any Changes or             d. Analysis of all hydrology information, including monitoring
                                                                      well data, precipitation data, and gauging data from streams

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or other open water areas, as set forth in the final                 of completion of activities, and during at least one day of each
compensation plan.                                                   monitoring year to depict restored conditions.
e. Evaluation of hydric soils or soils under hydric conditions,      6. An as-built ground survey, or an aerial survey provided by a
as appropriate.                                                      firm specializing in aerial surveys, shall be conducted for the
                                                                     entire compensation site or sites. Aerial surveys shall include
f. Analysis of all vegetative community information, including       the variation from actual ground conditions, such as +/- 0.2
woody and herbaceous species, both planted and volunteers,           feet. The survey shall be certified by the licensed surveyor or
as set forth in the final compensation plan.                         by a registered, professional engineer to conform to the
g. Photographs labeled with the permit number, the name of           design plans. The survey shall be submitted within 60 days of
the compensation site, the photo station number, the                 completing compensation site construction. Any Changes or
photograph orientation, the date and time of the photograph,         deviations from the final compensation plans in the as-built
the name of the person taking the photograph, and a brief            survey or aerial survey shall be shown on the survey and
description of the photograph subject. This information shall        explained in writing.
be provided as a separate attachment to each photograph, if          7. Compensation site monitoring shall begin on day one of the
necessary. Photographs taken after the initial planting shall be     first complete growing season (monitoring year 1) after stream
included in the first monitoring report after planting is            compensation site constructions activities, including planting,
complete.                                                            have been completed. Monitoring shall be required for
h. Discussion of wildlife or signs of wildlife observed at the       monitoring years 1 and 2, unless otherwise determined by
compensation site.                                                   DEQ. In all cases, if all success criteria have not been met in
                                                                     the final monitoring year, then monitoring shall be required for
i. Comparison of site conditions from the previous monitoring        each consecutive year until two annual sequential reports
year and reference site, if applicable.                              indicate that all criteria have been successfully satisfied.
j. Discussion of corrective measures or maintenance activities       8. All stream compensation monitoring reports shall be
to control undesirable species, to repair any damaged water          submitted by December 31 of the monitoring year. The reports
control device, or to replace any damaged planted vegetation.        shall include, as applicable, the following: in accordance with
k. Corrective action plan, which includes proposed actions, a        9 VAC 25-680-100 Part II E 6.
schedule, and monitoring plan.                                       a. General description of the site including a site location map
C. D. Stream compensation, restoration, and monitoring.              identifying photo stations and monitoring stations.

1. Any Riparian buffer restoration activities shall be detailed in   b. Summary of activities completed during the monitoring
the final compensation plan and shall include, as appropriate,       year.
the planting of a variety of native species currently growing in     c. Description of monitoring methods.
the site area, including appropriate seed mixtures and woody
species that are bare root, balled, or burlapped. A minimum          d. An evaluation and discussion of the monitoring results in
buffer width of 50 feet, measured from the top of the stream         relation to the success criteria and overall goals of
bank at bankfull elevation landward on both sides of the             compensation.
stream, shall be required where practical.                           e. Photographs labeled with the permit number, the name of
2. The installation of root wads, vanes, and other instream          the compensation site, the photo station number, the
structures, shaping of the stream banks and channel                  photograph orientation, the date and time of the photograph,
relocation shall be completed in the dry whenever practicable.       the name of the person taking the photograph, and a brief
                                                                     description of the photograph subject. Photographs taken prior
3. Livestock access to the stream and designated riparian            to compensation site construction activities, during instream
buffer shall be limited to the greatest extent practicable.          and riparian restoration activities, and within one week of
4. Stream channel restoration activities shall be conducted in       completion of activities shall be included in the first monitoring
the dry or during low flow conditions. When site conditions          report.
prohibit access from the streambank, heavy equipment shall           f. A discussion of alterations, maintenance, or major storm
be authorized for use within the stream channel.                     events resulting in significant change in stream profile or cross
5. Photographs shall be taken at the compensation site from          section, and corrective actions conducted at the stream
the vicinity of the permanent photo stations identified in the       compensation site.
final compensation plan. The photograph orientation shall            g. Documentation of undesirable plant species and summary
remain constant during all monitoring events. At a minimum,          of abatement and control measures.
photographs shall be taken from the center of the stream,
facing downstream, with a sufficient number of photographs to        h. A summary of wildlife or signs of wildlife observed at the
view the entire length of the restoration site. Photographs shall    compensation site.
document the completed restoration conditions. Photographs           i. Comparison of site conditions from the previous monitoring
shall be taken prior to site activities, during instream and         year and reference site, if applicable.
riparian compensation construction activities, within one week


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j. A corrective action plan, which includes proposed actions, a       two hours at each station prior to opening the new channels
schedule and monitoring plan.                                         and immediately before opening new channels.
k. Any additional submittals that were approved by DEQ in the         c. Temperature, pH and D.O. readings shall be taken after
final compensation plan.                                              opening the channels and every 30 minutes for at least three
                                                                      hours at each station.
D. Impact site construction monitoring.
                                                                      The permittee shall report violations of water quality standards
1. Construction activities authorized by this permit that are         to DEQ in accordance with the procedures in Part II E.
within impact areas shall be monitored and documented. The            Corrective measures and additional monitoring may be
monitoring shall document the preconstruction conditions,             required if water quality standards are not met. Reporting shall
activities  during   construction,    and    post-construction        not be required if water quality standards are not violated.
conditions. Monitoring shall consist of one of the following
options:                                                              E. Reporting.
a. Photographs shall be taken during construction at the end          1. Written communications required by this VWP general
of the first, second and third months of construction, and then       permit shall be submitted to the appropriate DEQ office. The
semi-annually for the remainder of the construction project,          VWP general permit authorization number shall be included
except during periods of no activity within impact areas; or          on all correspondence.
b. An ortho-rectified photograph shall be taken by a firm             2. DEQ shall be notified in writing at least 10 days prior to the
specializing in ortho-rectified photography prior to                  start of construction activities at the first permitted site
construction, and annually thereafter until all impacts are           authorized by this VWP general permit authorization so that
taken, and shall clearly show the delineated surface waters           inspections of the project can be planned, if deemed
and authorized impact areas.                                          necessary by DEQ. The notification shall include a projected
                                                                      schedule for initiation and completion of work at each
c. In lieu of photographs, and with prior approval from DEQ,          permitted impact area.
the permittee may submit a written narrative that summarizes
site construction activities in impact areas. The narrative shall     3. Construction monitoring reports shall be submitted to DEQ
be submitted at the end of the first, second, and third months        not later than the 10th day of the month following the month in
of construction in impact areas, and then semi-annually for the       which the monitoring event specified in Part II D takes place,
remainder of the construction activities in impact areas, except      unless otherwise specified below. The reports shall include
during periods of no activity with the impact areas.                  the following, as appropriate:
2. As part of construction monitoring, photographs taken at the       a. For each permitted impact area, a written narrative stating
photo stations or the narrative shall document site activities        whether work was performed during the monitoring period,
and conditions, which may include installation and                    and if work was performed, a description of the work
maintenance of erosion and sediment controls; condition of            performed, when the work was initiated, and the expected
adjacent nonimpact surface waters; flagged nonimpact                  date of completion.
surface waters; construction access and staging areas; filling,
excavation, and dredging activities; culvert installation; dredge     b. Properly Photographs labeled photographs (to include with
disposal; and site stabilization, grading, and associated             the permit number, the photo station number, the photo
restoration activities. With the exception of the preconstruction     orientation, the date and time of the photo, the name of the
photographs, photographs at an individual impact site shall           person taking the photograph, and a brief description, and
not be required until construction activities are initiated at that   VWP permit number) showing representative of the
site. With the exception of the post-construction photographs,        construction activities (including, but not limited to, flagging
photographs at an individual impact site shall not be required        nonimpact wetland areas, site grading and excavation,
once the site is stabilized following completion of construction      installation and maintenance of erosion and sediment
at that site.                                                         controls, culvert installation, bridge and ramp construction,
                                                                      dredging, dredge disposal, etc.). The post-construction
3. Each photograph shall be labeled to include the following          photographs shall be submitted within 30 days of documenting
information: permit number, impact area and photo station             post-construction conditions. The first construction monitoring
number, date and time of the photograph, name of the person           report shall include the photographs taken at each impact site
taking the photograph, photograph orientation, and                    prior to initiation of construction in any a permitted impact
photograph subject description.                                       area. Written notification and photographs demonstrating that
                                                                      all temporarily disturbed wetland and stream areas have been
4. Monitoring of water quality parameters shall be conducted          restored in compliance with the permit conditions shall be
during permanent relocation of perennial streams through new          submitted within 30 days of restoration. The post-construction
channels in the following manner:                                     photographs shall be submitted within 30 days of documenting
a. A sampling station shall be located upstream and                   post-construction conditions.
immediately downstream of the relocated channel.                      c. Summary of activities conducted to comply with the permit
b. Temperature, pH and dissolved oxygen (D.O)                         conditions.
measurements shall be taken every 30 minutes for at least             d. Summary of permit noncompliance events or problems
                                                                      encountered, subsequent notifications, and corrective actions.

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e. Summary of anticipated work to be completed during the             water control devices, or to replace damaged planted
next monitoring period and an estimated date of construction          vegetation.
completion at all impact areas.
                                                                      (11) Corrective action plan, which includes proposed actions,
f. Labeled site map depicting all impact areas and photo              a schedule, and monitoring plan.
stations.
                                                                      b. All stream compensation monitoring reports shall include,
4. DEQ shall be notified in writing within 30 days following the      as applicable, the following:
completion of all activities in all permitted impact areas
authorized under this permit.                                         (1) General description of the site including a site location map
                                                                      identifying photo stations and monitoring stations.
5. DEQ shall be notified in writing at least 10 days prior to the
initiation of activities at the compensation site. The notification   (2) Summary of activities completed during the monitoring
shall include a projected schedule of activities and                  year, including alterations or maintenance conducted at the
construction completion.                                              site.

6. All compensation monitoring reports shall be submitted             (3) Description of monitoring methods.
annually by December 31, with the exception of the last year          (4) An evaluation and discussion of the monitoring results in
of authorization, in which case the report shall be submitted at      relation to the success criteria and overall goals of
least 60 days prior to expiration of authorization under the          compensation.
general permit. Any alterations and maintenance conducted
on the compensation sites shall be reported. Undesirable              (5) Photographs shall be labeled with the permit number, the
plant species occurrences and control of these occurrences            name of the compensation site, the photo station number, the
shall also be reported to DEQ.                                        photograph orientation, the date and time of the photograph,
                                                                      the name of the person taking the photograph, and a brief
a. All wetland compensation monitoring reports shall include,         description of the photograph subject. Photographs taken prior
as applicable, the following:                                         to compensation site construction activities, during instream
(1) General description of the site including a site location map     and riparian restoration activities, and within one week of
identifying photo stations, vegetative and soil monitoring            completion of activities shall be included in the first monitoring
stations, monitoring wells, and wetland zones.                        report.

(2) Summary of activities completed during the monitoring             (6) A discussion of alterations, maintenance, or major storm
year, including alterations or maintenance conducted at the           events resulting in significant change in stream profile or cross
site.                                                                 section, and corrective actions conducted at the stream
                                                                      compensation site.
(3) Description of monitoring methods.
                                                                      (7) Documentation of undesirable plant species and summary
(4) Analysis of all hydrology information, including monitoring       of abatement and control measures.
well data, precipitation data, and gauging data from streams
or other open water areas, as set forth in the final                  (8) A summary of wildlife or signs of wildlife observed at the
compensation plan.                                                    compensation site.

(5) Evaluation of hydric soils or soils under hydric conditions,      (9) Comparison of site conditions from the previous monitoring
as appropriate.                                                       year and reference site, and as-built survey, if applicable.

(6) Analysis of all vegetative community information, including       (10) A corrective action plan, which includes proposed
woody and herbaceous species, both planted and volunteers,            actions, a schedule and monitoring plan.
as set forth in the final compensation plan.                          (11) Additional submittals that were approved by DEQ in the
(7) Photographs labeled with the permit number, the name of           final compensation plan.
the compensation site, the photo station number, the                  7. The permittee shall notify DEQ in writing when unusual or
photograph orientation, the date and time of the photograph,          potentially complex conditions are encountered which require
the name of the person taking the photograph, and a brief             debris removal or involve potentially toxic substance.
description of the photograph subject. This information shall         Measures to remove the obstruction, material, or toxic
be provided as a separate attachment to each photograph, if           substance or to change the location of any a structure are
necessary. Photographs taken after the initial planting shall be      prohibited until approved by DEQ.
included in the first monitoring report after planting is
complete.                                                             8. The permittee shall report any fish kills or spills of oil or fuel
                                                                      immediately upon discovery. If spills or fish kills occur between
(8) Discussion of wildlife or signs of wildlife observed at the       the hours of 8:15 a.m. to 5 p.m., Monday through Friday, the
compensation site.                                                    appropriate DEQ regional office shall be notified; otherwise,
(9) Comparison of site conditions from the previous monitoring        the Department of Emergency Management shall be notified
year and reference site.                                              at 1-800-468-8892.

(10) Discussion of corrective measures or maintenance                 9. Violations of state water quality standards shall be reported
activities to control undesirable species, to repair damaged          within 24 hours to the appropriate DEQ office.

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10. All Submittals required by this VWP general permit shall       permittee's property, public or private, and have access to,
contain the following signed certification statement:              inspect and copy any records that must be kept as part of the
                                                                   VWP general permit conditions; 2. to inspect any facilities,
"I certify under penalty of law that this document and all         operations or practices (including monitoring and control
attachments were prepared under my direction or supervision        equipment) regulated or required under the VWP general
in accordance with a system designed to assure that qualified      permit; 3. and to sample or monitor any substance, parameter
personnel properly gather and evaluate the information             or activity for the purpose of assuring compliance with the
submitted. Based on my inquiry of the person or persons who        conditions of the VWP general permit or as otherwise
manage the system, or those persons directly responsible for       authorized by law. For the purpose of this section, the time for
gathering the information, the information submitted is, to the    inspection shall be deemed reasonable during regular
best of my knowledge and belief, true, accurate, and               business hours. Nothing contained herein shall make an
complete. I am aware that there are significant penalties for      inspection time unreasonable during an emergency.
submitting false information, including the possibility of fine
and imprisonment for knowing violation."                           H. Transferability of VWP general permit authorization. This
                                                                   VWP general permit authorization may be transferred to
 Part III. Conditions Applicable to All VWP General Permits.       another person by a permittee if: when all of the criteria listed
A. Duty to comply. The permittee shall comply with all             below are met. On the date of the VWP general permit
conditions of the VWP general permit. Nothing in this VWP          authorization transfer, the transferred VWP general permit
general permit shall be construed to relieve the permittee of      authorization shall be as fully effective as if it had been issued
the duty to comply with all applicable federal and state           directly to the new permittee.
statutes, regulations and toxic standards and prohibitions. Any    1. The current permittee notifies the board of the transfer of
VWP general permit noncompliance is a violation of the Clean       the title to the facility or property;.
Water Act and State Water Control Law, and is grounds for
enforcement action, VWP general permit authorization,              2. The notice to the board includes a written agreement
termination for cause, VWP general permit authorization,           between the existing current and new permittee permittees
revocation, or denial of a continuation of coverage request.       containing a specific date of transfer of VWP general permit
                                                                   authorization responsibility, coverage and liability to the new
B. Duty to mitigate. The permittee shall take all reasonable       permittee, or that the existing current permittee will retain such
steps to minimize or prevent any impacts in violation of the       responsibility, coverage, or liability, including liability for
VWP general permit that may have a reasonable likelihood of        compliance with the requirements of any enforcement
adversely affecting human health or the environment.               activities related to the permitted activity; and.
C. Reopener. This VWP general permit authorization may be          3. The board does not notify the existing current and new
reopened to modify its conditions when the circumstances on        permittee permittees of its intent to modify or revoke and
which the previous VWP general permit authorization was            reissue the VWP general permit authorization within 15 days.
based have materially and substantially changed, or special
studies conducted by the board or the permittee show material      On the date of the VWP general permit authorization transfer,
and substantial change since the time the VWP general permit       the transferred VWP general permit shall be as fully effective
authorization was issued and thereby constitute cause for          as if it had been issued directly to the new permittee.
VWP general permit authorization revocation and reissuance.
                                                                   I. Notice of planned change. Authorization under this VWP
D. Compliance with state and federal law. Compliance with          general permit may be modified subsequent to issuance if: (i)
this VWP general permit constitutes compliance with the VWP        the in one or more of the cases listed below. A notice of
permit requirements of the State Water Control Law. Nothing        planned change is not required if the project results in
in this VWP general permit shall be construed to preclude the      additional temporary impacts to surface waters, provided that
institution of any legal action under or relieve the permittee     DEQ is notified in writing, the additional temporary impacts are
from any responsibilities, liabilities, or other penalties         restored to preexisting conditions in accordance with Part I C
established pursuant to any other state law or regulation or       11 of this general permit, and the additional temporary
under the authority preserved by § 510 of the Clean Water          impacts do not exceed the general permit threshold for use.
Act.                                                               The permittee shall notify the board in advance of the planned
                                                                   change, and the planned change request will be reviewed
E. Property rights. The issuance of this VWP general permit        according to all provisions of this regulation.
does not convey any property rights in either real or personal
property, or any exclusive privileges, nor does it authorize any   1. The permittee determines that additional permanent
injury to private property or any invasion of personal property    wetland, open water, or stream impacts are necessary,
rights, nor any infringement of federal, state or local laws or    provided that the additional impacts are associated with the
regulations.                                                       previously authorized activities in authorized locations within
                                                                   the same phase of development, the cumulative increase in
F. Severability. The provisions of this VWP general permit         acreage of wetland or open water impacts is not greater than
authorization are severable.                                       1/4 acre and , the cumulative increase in stream bed impacts
G. Right of entry. The permittee shall allow the board or its      is not greater than 50 100 linear feet, and provided that the
agents, upon the presentation of credentials, at reasonable        additional impacts are fully compensated: (ii) the.
times and under reasonable circumstances: 1. to enter the

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                                                               1287
Proposed Regulations
2. The project results in less wetland or stream impacts, in          2. Name and location of the activity;
which case compensation requirements may be modified in
relation to the adjusted impacts at the request of the                3. The VWP permit authorization number; and
permittee, provided that the adjusted compensation meets the          4. One of the following certifications:
initial authorization compensation goals; (iii) there.
                                                                      a. For project completion:
3. There is a change in the project plans that does not result in
a change in project impacts; (iv) there.                              "I certify under penalty of law that all activities and any
                                                                      required compensatory mitigation authorized by a VWP
4. There is a change in the mitigation bank at which credits          general permit have been completed. I understand that by
are purchased or used, provided that the same amount of               submitting this notice of termination I am no longer authorized
credits are purchased or used and all criteria for use are met,       to perform activities in surface waters in accordance with the
as detailed in 9 VAC 25-210-115; or (v) typographical F.              VWP general permit, and that performing activities in surface
5. Typographical errors need to be corrected. A notice of             waters is unlawful where the activity is not authorized by a
planned change is not required if the project results in              VWP permit. I also understand that the submittal of this notice
additional temporary impacts to surface waters, provided that         does not release me from liability for any violations of this
DEQ is notified in writing, the additional temporary impacts are      VWP general permit authorization."
restored to preexisting conditions in accordance with Part I C        b. For project cancellation:
11 of this general permit, and the additional temporary
impacts do not exceed the general permit threshold for use.           "I certify under penalty of law that the activities and any
The permittee shall notify the board in advance of the planned        required compensatory mitigation authorized by this VWP
change, and the planned change request will be reviewed               general permit will not occur. I understand that by submitting
according to all provisions of this regulation.                       this notice of termination I am no longer authorized to perform
                                                                      activities in surface waters in accordance with the VWP
J. VWP general permit authorization termination for cause.            general permit, and that performing activities in surface waters
This VWP general permit authorization is subject to                   is unlawful where the activity is not authorized by a VWP
termination for cause by the board after public notice and            permit. I also understand that the submittal of this notice does
opportunity for a hearing. Reasons for termination for cause          not release me from liability for any violations of this VWP
are as follows:                                                       general permit authorization, nor does it allow me to resume
1. Noncompliance by the permittee with any condition of the           the     permitted    activities  without    reapplication    and
VWP general permit authorization;                                     reauthorization."

2. The permittee's failure in the application or during the VWP       c. For events beyond permittee control, the permittee shall
general permit authorization issuance process to disclose fully       provide a detailed explanation of the events, to be approved
all relevant facts or the permittee's misrepresentation of any        by DEQ, and the following certification statement:
relevant facts at any time;                                           "I certify under penalty of law that all the activities or the
3. The permittee's violation of a special or judicial order; and      required compensatory mitigation authorized by a VWP
                                                                      general permit have been completed (see attached). I
4. A determination by the board that the permitted activity           understand that by submitting this notice of termination I am
endangers human health or the environment and can be                  no longer authorized to perform activities in surface waters in
regulated to acceptable levels by a VWP general permit                accordance with the VWP general permit, and that performing
authorization planned change or termination for cause.                activities in surface waters is unlawful where the activity is not
                                                                      authorized by a VWP permit. I also understand that the
K. VWP general permit authorization termination by consent.           submittal of this notice does not release me from liability for
This VWP general permit authorization may be terminated by            any violations of this VWP general permit authorization, nor
consent when all permitted activities requiring notification          does it allow me to resume the permitted activities without
under 9 VAC 25-690-50 9 VAC 25-680-50 A 1 and all                     reapplication and reauthorization."
compensatory mitigation have been completed, or when the
authorized impacts will not occur, or when a planned change           L. Civil and criminal liability. Nothing in this VWP general
occurs that involves substituting a specified, approved               permit shall be construed to relieve the permittee from civil
mitigation bank or banks with another specified, approved             and criminal penalties for noncompliance.
mitigation bank. The permittee shall submit a request for
termination by consent within 30 days of project completion or        M. Oil and hazardous substance liability. Nothing in this VWP
project cancellation. When submitted for project completion,          general permit shall be construed to preclude the institution of
the termination by consent shall constitute a notice of               legal action or relieve the permittee from any responsibilities,
completion in accordance with 9 VAC 25-210-130. The                   liabilities, or penalties to which the permittee is or may be
director may accept this termination of authorization on behalf       subject under § 311 of the Clean Water Act or
of the board. The request for termination by consent shall            §§ 62.1-44.34:14 through 62.1-44.34:23 of the State Water
contain the following information:                                    Control Law.

1. Name, mailing address and telephone number of the                  N. Duty to cease or confine activity. It shall not be a defense
permittee;                                                            for a permittee in an enforcement action that it would have
                                                                      been necessary to halt or reduce the activity for which a VWP

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                                                                   1288
                                                                                            Proposed Regulations
permit has been granted in order to maintain compliance with      3. Otherwise alter the physical, chemical, or biological
the conditions of the VWP permit.                                 properties of state waters and make them detrimental to the
                                                                  public health, to animal or aquatic life, to the uses of such
O. Duty to provide information.                                   waters for domestic or industrial consumption, for recreation,
1. The permittee shall furnish to the board any information       or for other uses; or
which the board may request to determine whether cause            4. On and after August 1, 2001, for linear transportation
exists for modifying, revoking, and reissuing and terminating     projects of the Virginia Department of Transportation, or on
the VWP permit authorization, or to determine compliance          and after October 1, 2001 for all other projects, conduct the
with the VWP permit authorization. The permittee shall also       following activities in a wetland:
furnish to the board, upon request, copies of records required
to be kept by the permittee.                                      a. New activities to cause draining that significantly alters or
                                                                  degrades existing wetland acreage or functions;
2. Plans, maps, conceptual reports and other relevant
information shall be submitted as required by the board prior     b. Filling or dumping;
to commencing construction.
                                                                  c. Permanent flooding or impounding; or
P. Monitoring and records requirements.
                                                                  d. New activities that cause significant alteration                 or
1. Monitoring of parameters, other than pollutants, shall be      degradation of existing wetland acreage or functions.
conducted according to approved analytical methods as
specified in the VWP permit. Analysis of pollutants will be       NOTICE: The forms used in administering 9 VAC 25-680,
conducted according to 40 CFR Part 136 (2000), Guidelines         Virginia Water Protection General Permit for Linear
Establishing Test Procedures for the Analysis of Pollutants.      Transportation Projects, are not being published; however, the
                                                                  name of each form is listed below. The forms are available for
2. Samples and measurements taken for the purpose of              public inspection at the Department of Environmental Quality,
monitoring shall be representative of the monitored activity.     629 East Main Street, Richmond, Virginia, or at the office of
3. The permittee shall retain records of all monitoring           the Registrar of Regulations, General Assembly Building, 2nd
information, including all calibration and maintenance records    Floor, Richmond, Virginia.
and all original strip chart or electronic recordings for
continuous monitoring instrumentation, copies of all reports                                     FORMS
required by the VWP permit, and records of all data used to
complete the application for the VWP permit, for a period of at   Department of Environmental Quality Water Division Permit
least three years from the date of the expiration of a granted    Application Fee (eff. 7/04).
VWP permit. This period may be extended by request of the         Joint Permit Application for Activities in Waters and Wetlands
board at any time.                                                of the Commonwealth of Virginia (eff. 10/04).
4. Records of monitoring information shall include, as            Joint Permit Application for Projects in Tidewater, Virginia (eff.
appropriate:                                                      10/04).
a. The date, exact place and time of sampling or                  Virginia   Department    of   Transportation      Inter-Agency
measurements;                                                     Coordination Meeting Joint Permit Application (eff. 10/02).
b. The name of the individuals who performed the sampling or      Quarterly Reporting of Impacts Less than One-Tenth Acre
measurements;                                                     (insert reporting period) Statewide (eff. 4/03).
c. The date and time the analyses were performed;                        VA.R. Doc. No. R05-288; Filed December 16, 2005, 9:47 a.m.

d. The name of the individuals who performed the analyses;
                                                                                              ********
e. The analytical techniques or methods supporting the
information such as observations, readings, calculations and      Title of Regulation: 9 VAC 25-690. Virginia Water Protection
bench data used;                                                  General Permit for Impacts from Development and Certain
                                                                  Mining Activities (amending 9 VAC 25-690-10 through
f. The results of such analyses; and                              9 VAC 25-690-100; adding 9 VAC 25-690-95).
g. Chain of custody documentation.                                Statutory Authority: §§ 62.1-44.15 and 62.1-44.15:5 of the
Q. Unauthorized discharge of pollutants. Except in compliance     Code of Virginia; § 401 of the Clean Water Act (33 USC
with this VWP general permit, it shall be unlawful for the        § 1251 et seq.).
permittee to:                                                     Public Hearing Date: February 6, 2006 - 3:30 p.m.
1. Discharge into state waters sewage, industrial wastes,           Public comments may be submitted until 5 p.m. on March
other wastes, or any noxious or deleterious substances;             10, 2006.
                                                                      (See Calendar of Events section
2. Excavate in a wetland;                                             for additional information)



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                                                              1289
Proposed Regulations
Agency Contact: Catherine M. Harold, Department of                   "Cross-sectional drawing" means a graph or plot of ground
Environmental Quality, P.O. Box 10009, Richmond, VA                  elevation across a waterbody or a portion of it, usually along a
23240, telephone (804) 698-4047, FAX (804) 698-4347, or              line perpendicular to the waterbody or direction of flow.
e-mail cmharold@deq.virginia.gov.
                                                                     "Emergent wetland" means a class of wetlands characterized
Summary:                                                             by erect, rooted, herbaceous plants growing in water or on a
                                                                     substrate that is at least periodically deficient in oxygen as a
  Virginia Water Protection (VWP) General Permit WP4 will            result of excessive water content, excluding mosses and
  expire on October 1, 2006. The proposed revisions include          lichens. This vegetation is present for most of the growing
  minor changes to improve the processing and coordination           season in most years and is usually dominated by perennial
  of authorizations, both for the public, DEQ, and other             plants.
  agencies. The VWP general permit regulations generally
  reduce the permitting burden to the public and minimize the        "FEMA" means Federal Emergency Management Agency.
  amount of agency duplication in processing permit
  authorizations and it is in the interest of all to continue to     "Forebay" means a deeper area at the upstream end of a
  provide this level of service through the renewal of this          stormwater management facility that would be maintained
  general permit.                                                    through excavation.

  The substance of the revisions include the addition and            "Forested wetland" means a class of wetlands characterized
  deletion of definitions; minor grammatical changes;                by woody vegetation that is six meters (20 feet) tall or taller.
  formatting, consolidating and reordering of text to improve        These areas typically possess an overstory of trees, an
  readability; clarification of existing requirements; prohibiting   understory of trees or shrubs, and an herbaceous layer.
  the use of this general permit for wetlands, open waters and       "Greater than one acre" means more than 1.00 acre (43,560
  streams that are protected by deed restrictions or similar         square feet).
  protective covenants imposed by previous state or federal
  permit actions; extending the life of the general permit           "Histosols" means organic soils that are often called mucks,
  regulations to 10 years instead of the current five years;         peats, or mucky peats. The list of histosols in the
  extending the permit authorization period to up to seven           Commonwealth includes, but is not limited to, the following
  years; reiteration of provisions in the main VWP regulation        soil series: Back Bay, Belhaven, Dorovan, Lanexa,
  for purposes of emphasis; and amending the thresholds of           Mattamuskeet, Mattan, Palms, Pamlico, Pungo, Pocaty, and
  coverage for wetlands and open waters and stream                   Rappahannock. Histosols are identified in the Hydric soils list
  impacts, which were previously combined together as                generated by United States Department of Agriculture Natural
  “surface waters.”                                                  Resources Conservation Service.

9 VAC 25-690-10. Definitions.                                        "Impacts" means results caused by human-induced activities
                                                                     conducted in surface waters, as specified in § 62.1-44.15:5 D
The words and terms used in this regulation shall have the           of the Code of Virginia.
meanings defined in the State Water Control Law (§ 62.1-44.2
et seq. of the Code of Virginia) and the Virginia Water              "Independent utility" means a test to determine what
Protection (VWP) Permit Regulation (9 VAC 25-210) unless             constitutes a single and complete project. A project is
the context clearly indicates otherwise or unless otherwise          considered to have independent utility if it would be
indicated below.                                                     constructed absent the construction of other projects in the
                                                                     project area. Portions of a multi-phase phased development
"Bank protection" means measures employed to stabilize               project that depend upon other phases of the project do not
channel banks and combat existing erosion problems. Such             have independent utility. Phases Portions of a phased
measures may include the construction of riprap revetments,          development project that would be constructed even if the
sills, rock vanes, beach nourishment, breakwaters, bulkheads,        other phases are not built can be considered as separate
groins, spurs, levees, march marsh toe stabilization, anti-          single complete projects with independent utility.
scouring devices, and submerged sills.
                                                                     "In-stream mining" means operations that remove
"Bioengineering method" means a biological measure                   accumulated sand, gravel, and mineral deposits directly from
incorporated into a facility design to benefit water quality and     stream channels using equipment such as, but not limited to,
minimize adverse effects to aquatic resources, to the                hydraulic dredges, clamshell dredges, or draglines for the sole
maximum extent practicable, for long-term aquatic resource           purpose of processing and selling the material. In-stream
protection and improvement.                                          mining does not include dredging activities, whose main
"Channelization" means the alteration of a stream channel by         purpose is to maintain channels and harbors for navigation,
widening, deepening, straightening, cleaning or paving certain       nor does it include the recovery of spilled material, such as
areas.                                                               sand, gravel, and aggregate, that was inadvertently spilled
                                                                     into a waterway during loading activities.
"Conversion" means changing one type of surface water to
another type of surface water, either permanently or                 “Isolated Wetland of Minimal Ecological Value (IWOMEV)”
temporarily. The permanent conversion of a forested wetland          means a wetland that (i) does not have a surface water
to an emergent wetland is considered to be a permanent               connection to other state waters; (ii) is less than one-tenth of
impact for the purposes of this regulation.                          an acre in size; (iii) is not located in a Federal Emergency
                                                                     Management Agency designated 100-year floodplain; (iv) is

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not identified by the Virginia Natural Heritage Program as a          projects, the "single and complete project" (i.e. e.g., a single
rare or state significant natural community; (v) is not forested;     and complete crossing) may but does not always will apply to
and (vi) does not contain listed federal or state threatened or       each crossing of a separate surface water (i.e. e.g., a single
endangered species.                                                   waterbody) and to multiple crossings of the same waterbody
                                                                      at separate and distinct locations. Phases of a project that
"Less than one-half of an acre" means 0.00 to 0.49 acre (0 to         have independent public and economic utility may each be
21,779 square feet) or less.                                          considered single and complete.
“Open water” means an area that, during a year with normal            "State programmatic program general permit (SPGP)" means
patterns of precipitation, has standing water for sufficient          a general permit issued by the Department of the Army in
duration to establish an ordinary high water mark. The term           accordance with 33 USC 1344(e), 33 CFR Part 32S
“open water” includes lakes and ponds but does not include            325.2(e)(2), and 33 CFR 325.3(b) and that is founded on a
ephemeral waters, stream beds, or wetlands.                           state program and. The SPGP is designed to avoid duplication
“Ordinary high water” or “ordinary high water mark” means the         between the federal and state programs.
line on the shore established by the fluctuations of water and        “Stream bed” means the substrate of a stream, as measured
indicated by physical characteristics such as clear, natural line     between the ordinary high water marks along a length of
impressed on the bank; shelving; changes in the character of          stream. The substrate may consist of organic matter, bedrock
soil; destruction of terrestrial vegetation; the presence of litter   or inorganic particles that range in size from clay to boulders,
and debris; or other appropriate means that consider the              or a combination of both. Areas contiguous to the stream bed,
characteristics of the surrounding areas.                             but outside of the ordinary high water marks, are not
"Perennial stream" means a well-defined channel that                  considered part of the stream bed. Ditches, swales, and open
contains water year round during a year of normal rainfall.           water are not considered to be stream bed for the purposes of
Generally, the water table is located above the streambed for         this regulation.
most of the year and groundwater is the primary source for            "Surface waters" means all state waters that are not ground
stream flow. A perennial stream exhibits the typical biological,      water as defined in § 62.1-255 of the Code of Virginia.
hydrological, and physical characteristics commonly
associated with the continuous conveyance of water.                   "Temporary impacts" are those impacts to surface waters,
                                                                      including wetlands, that do not cause a permanent alteration
"Permanent impacts" are means those impacts to surface                of the physical, chemical, or biological properties of the
waters, including wetlands, that cause a permanent alteration         surface waters, or of the functions and values of a wetland.
of the physical, chemical, or biological properties of the            Temporary impacts include activities in which the ground is
surface waters, or of the functions and values of a wetland.          restored to its preconstruction conditions, contours and, or
"Person" means an individual, corporation, partnership,               elevations, such that previous functions and values are
association, government governmental body, municipal                  restored.
corporation, or any other legal entity.                               "Up to 300 linear feet of stream channel" means >0.00 to
“Phased development” means more than one project                      300.00 linear feet of any stream, rounded to the second
proposed for a single piece of property or an assemblage of           decimal place, as measured along the center of the main
contiguous properties under consideration for development by          channel of the stream segment.
the same person, or by related persons, that will begin and be        "Up to 500 linear feet of stream perennial channel" means
completed at different times. Depending on the relationship           0.00 to 500.00 linear feet of perennial stream, rounded to the
between the projects, a phased development may be                     second decimal place, as measured along the center of the
considered a single and complete project or each project may          main channel of the stream segment.
be considered a single and complete project, if each project
has independent utility, as defined in this subsection.               "Up to 1500 linear feet of nonperennial stream channel"
                                                                      means >0.00 to 1500.00 linear feet of nonperennial stream,
"Recreational facility" means a facility that is integrated into      rounded to the second decimal place, as measured along the
the natural landscape and does not substantially change               center of the main channel of the stream segment.
preconstruction grades or deviate from natural landscape
contours.                                                             "Up to one acre" means 0.00 to 1.00 acre (0 to 43,560 square
                                                                      feet).
"Riprap" means a layer of nonerodible material such as stone
or chunks of concrete on an embankment slope for the                  "Up to one-tenth of an acre" means 0.00 to 0.10 acre (0 to
purpose of preventing erosion.                                        4,356 square feet) or less.
"Scrub-shrub wetland" means a class of wetlands dominated             "Up to two acres" means 0.00 to 2.00 acres (0 to 87,120
by woody vegetation less than six meters (20 feet) tall. The          square feet) or less.
species include true shrubs, young trees, and trees or shrubs
that are small or stunted because of environmental conditions.        "Utility line" means any a pipe or pipeline for the transportation
                                                                      of any a gaseous, liquid, liquifiable liquefiable or slurry
"Single and complete project" means the total project                 substance, for any purpose, and any a cable, line, or wire for
proposed or accomplished by a person and , which also has             the transmission for any purpose of electrical energy,
independent utility, as defined in this section. For linear           telephone, and telegraph messages and radio and television

Volume 22, Issue 9                                                                                           Monday, January 9, 2006

                                                                  1291
Proposed Regulations
communication. The term utility line does not include activities   4. The applicant receives approval from the Virginia
which drain a surface water to convert it to an upland, such as    Department of Environmental Quality.
drainage tiles or french drains; however, it does apply to pipes
conveying drainage from another area.                              1. 5. The applicant shall has not have been required to obtain
                                                                   a VWP individual permit under the VWP permit program
9 VAC 25-690-20. Purpose; delegation            of   authority;    regulation (9 VAC 25-210) for the proposed project impacts.
effective date of VWP general permit.                              The applicant, at his discretion, may seek a VWP individual
                                                                   permit, or coverage under another applicable VWP general
A. The purpose of this regulation is to establish VWP General      permit, in lieu of coverage under this VWP general permit.
Permit Number WP4 under the VWP permit program
regulation to govern permanent and temporary impacts               2. 6. Impacts, both temporary and permanent, result from a
related to the construction and maintenance of development         single and complete project including all attendant features.
activities, and activities directly associated with aggregate
mining (i.e. e.g., sand, gravel, and crushed or broken stone);     a. Where a road segment (i.e. e.g., the shortest segment of a
hard rock/mineral mining (i.e. e.g., metalliferous ores); and      road with independent utility that is part of a larger project) has
surface coal, natural gas, and coalbed methane gas mining,         multiple crossings of surface waters (several single and
as authorized by the Virginia Department of Mines, Minerals        complete projects), the board may, at its discretion, require a
and Energy. Applications for coverage under this VWP               VWP individual permit.
general permit shall be processed for approval, approval with      b. For the purposes of this chapter, when an interchange has
conditions, or denial by the board. Authorization, authorization   multiple crossings of surface waters, the entire interchange
with conditions, or denial by the board shall follow all           shall be considered the single and complete project.
provisions in the State Water Control Law (§ 62.1-44.2 et seq.
of the Code of Virginia), except for the public comment and        3. 7. The stream impact criterion applies to all components of
participation provisions, from which each VWP general permit       the project, including any structures and stream channel
authorization, authorization with conditions, or denial is         manipulations.
exempt.                                                            4. 8. Dredging does not exceed 5,000 cubic yards.
B. The director or his designee may perform any act of the         5. 9. Compensation for unavoidable impacts is provided in the
board provided under this chapter, except as limited by            form of any one or combination of the following: creation,
§ 62.1-44.14 of the Code of Virginia.                              restoration, the purchase or use of mitigation bank credits, or
C. This VWP general permit regulation will become effective        a contribution to an approved in-lieu fee fund. For wetlands,
on October 1, 2001 (insert effective date), and will expire on     compensation may incorporate preservation of wetlands or
October 1, 2006 (insert date that is 10 years after effective      preservation or restoration of upland buffers adjacent to state
date).                                                             waters when utilized in conjunction with creation, restoration
                                                                   or mitigation bank credits. For other surface waters,
D. Authorization to impact surface waters under this VWP           compensation       may     incorporate    preservation     and
general permit is effective upon compliance with all the           enhancement of stream channels, or preservation, restoration,
provisions of 9 VAC 25-690-30. Notwithstanding the expiration      or enhancement of adjacent riparian buffers accordance with
date of this general permit regulation, authorization to impact    9 VAC 25-690-70.
surface waters under this VWP general permit will continue for
a maximum of five seven years.                                     B. Activities that may be authorized under this VWP general
                                                                   permit include the following:
9 VAC 25-690-30. Authorization to impact surface waters.
                                                                   1. Residential, commercial, institutional. The construction or
A. Any person governed by this VWP general permit is               expansion of building foundations, building pads and
authorized to permanently or temporarily impact up to two          attendant features for residential, commercial and institutional
acres of nontidal surface waters, including wetlands or open       development activities.
water and up to 500 1,500 linear feet of perennial nontidal
stream channel and up to 1,500 linear feet of nonperennial         a. Residential developments include both single and multiple
stream channel bed for general development and certain             units.
mining activities, provided that the applicant submits             b. Commercial developments include, but are not limited to,
notification as required in 9 VAC 25-690-50 and 9 VAC 25-          retail stores, industrial facilities, restaurants, business parks,
690-60, remits the required application processing fee (9 VAC      office buildings and shopping centers.
25-20), complies with the limitations and other requirements of
9 VAC 25-690-100, receives approval from the board, and            c. Institutional developments include, but are not limited to,
provided that:                                                     schools, fire stations, government office buildings, judicial
                                                                   buildings, public works buildings, libraries, hospitals, and
1. The applicant submits notification as required in 9 VAC 25-     places of worship.
690-50 and 9 VAC 25-690-60.
                                                                   d. Attendant features include, but are not limited to, roads,
2. The applicant remits the required application processing fee    parking lots, garages, yards, utility lines, stormwater
in accordance with 9 VAC 25-20.                                    management facilities, and recreation facilities (such as
3. The applicant complies with the limitations and other           playgrounds, playing fields and golf courses). Attendant
requirements of 9 VAC 25-690-100.

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features must be necessary for the use and maintenance of             (4) To the maximum extent practicable, provide for retaining
the structures.                                                       excess flows from the site, provide for maintaining surface
                                                                      flow rates from the site similar to preconstruction conditions,
2. Recreational facilities. The construction or expansion of          and not increase water flows from the project site, relocate
recreational facilities and small support facilities.                 water, or redirect flow beyond preconstruction conditions;.
a. Recreational facilities include, but are not limited to, hiking    (5) To the maximum extent practicable, reduce adverse
trails, bike paths, horse paths, nature centers, and                  effects such as flooding or erosion downstream and upstream
campgrounds (but not trailer parks). Boat ramps (concrete or          of the project site, unless the facility is part of a larger system
open-pile timber), boathouses, covered boat lifts, mooring            designed to manage water flows; and.
piles and dolphins, fender piles, camels (wooden floats
serving as fenders alongside piers), and open-pile piers              (6) Be designed using best management practices (BMPs)
(including floating piers, travel-lift piers, etc.) associated with   and watershed protection techniques. Examples of such
recreational facilities are also included.                            BMPs are described in the Virginia Stormwater Management
                                                                      Handbook and include, but are not limited to, forebays,
b. Recreational facilities do not include as a primary function       vegetated buffers, bioengineering methods, and siting
the use of motor vehicles, buildings or impervious surfaces.          considerations to minimize adverse effects to aquatic
c. Golf courses and ski area expansions may qualify as                resources.
recreational facilities provided the construction of the              c. Maintenance excavation shall be in accordance with the
proposed facility does not result in a substantial deviation from     facility maintenance plan and shall not exceed the original
the natural contours and the facility is designed to minimize         contours of the facility as approved and constructed.
adverse effects on state waters and riparian areas. Measures
that may be used to minimize adverse effects on waters and            4. Mining facilities. The construction or expansion of mining
riparian areas include the implementation of integrated pest          facilities and attendant features for a single and complete
management plans, adequate stormwater management,                     project. This general permit may not be used to authorize
vegetated buffers, and fertilizer management plans.                   impacts from in-stream activities as defined in 9 VAC 25-690-
                                                                      10.
d. Small support facilities are authorized provided they are
directly related to the recreational activity. Small support          a. Mining facilities include activities directly associated with
facilities include, but are not limited to, maintenance storage       aggregate mining (i.e. e.g., sand, gravel, and crushed or
buildings and stables.                                                broken stone); hard rock/mineral mining (i.e. e.g.,
                                                                      metalliferous ores); and surface coal, natural gas, and coalbed
e. The following do not qualify as recreational facilities: hotels,   methane gas mining, as authorized by the Virginia
restaurants, playing fields (e.g., baseball, soccer or football       Department of Mines, Minerals, and Energy.
fields), basketball and tennis courts, racetracks, stadiums,
arenas or new ski areas.                                              b. Attendant features are authorized provided they are directly
                                                                      related to the mining facility, and include, but are not limited
f. The recreational facility must have an adequate water              to, access road construction, parking lots, offices,
quality management plan, such as a stormwater management              maintenance shops, garages, and stormwater management
plan, to ensure that the recreational facility results in no          facilities.
substantial adverse effects to water quality.
                                                                      c. Both direct impacts (i.e. e.g., footprints of all fill areas, road
3. Stormwater management facilities. The construction,                crossings, sediment ponds, and stormwater management
maintenance, and excavation of stormwater management                  facilities; mining through state waters; stockpile of overburden,
facilities; the installation and maintenance of water control         and excavation) and indirect impacts (i.e. e.g., diversion of
structures, outfall structures, and emergency spillways; and          surface water and reach of state waters affected by sediment
the maintenance           dredging  of existing stormwater            pond pool and sediment transport) shall be considered when
management facilities.                                                issuing an authorization under this general permit.
a. Stormwater management facilities include stormwater                C. The board waives the requirement for coverage under a
ponds and facilities, detention basins, retention basins, and         VWP general permit for activities that occur in an isolated
other facilities designed to reduce pollutants in stormwater          wetland of minimal ecological value, as defined in 9 VAC 25-
runoff.                                                               210-10 9 VAC 25-690-10. Any person claiming this waiver
b. The stormwater management facility must:                           bears the burden to demonstrate that he qualifies for the
                                                                      waiver.
(1) To the maximum extent practicable, be designed to
maintain preconstruction downstream flow conditions (e.g.,            D. Receipt of this VWP general permit does not relieve any
location, capacity and flow rates);.                                  the permittee of the responsibility to comply with any other
                                                                      applicable federal, state or local statute, ordinance or
(2) Not permanently restrict or impede the passage of normal          regulation.
or expected high flows, unless the primary purpose of the
facility is to impound waters;.                                       E. In issuing this VWP general permit, the board has not taken
                                                                      into consideration the structural stability of the proposed
(3) Withstand expected high flows;.                                   structure of structures.


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F. Coverage under a nationwide or regional permit                  or more than 1,500 linear feet of nonperennial stream channel
promulgated by the U.S. Army Corps of Engineers (USACE),           bed.
and for which the board has issued § 401 certification existing
as of October 1, 2001 the effective date of this regulation,       D. The activity to impact surface waters shall not have been
shall constitute coverage under this VWP general permit            prohibited by state law or regulations, nor shall it contravene
unless a state programmatic program general permit is              applicable Water Quality Standards (9 VAC 25-260).
approved for the covered activity or impact. Notwithstanding       E. The board shall deny coverage under this VWP general
any other provision, activities authorized under a nationwide      permit to any applicant for activities that cause, may
or regional permit promulgated by the USACE and certified by       reasonably be expected to cause, or may be contributing to a
the board in accordance with 9 VAC 25-210-130 do not need          violation of water quality standards, including discharges or
to obtain coverage under this VWP general permit unless a          discharge-related activities that are likely to adversely
state programmatic general permit is approved for the covered      significantly affect aquatic life, or for activities that together
activity or impact.                                                with other existing or proposed impacts to wetlands will cause
G. Coverage under a permit issued by the Department of             or contribute to a significant impairment of state waters or fish
Mines, Minerals and Energy under the Virginia Coal Surface         and wildlife resources.
Mining Control and Reclamation Act, Chapter 19 (§ 45.1-226         F. This VWP general permit does not authorize activities that
et seq.) of Title 45.1 of the Code of Virginia, where such         cause more than minimal changes to the peak hydraulic flow
permit authorizes activities that may be permitted by this         characteristics, that significantly increase flooding, or that
regulation and contains a mitigation plan for the impacts from     cause more than minimal degradation of the water quality of
the mining activities, shall also constitute coverage under this   any a stream.
VWP general permit.
                                                                   G. This VWP general permit may not be used for:
H. When the board determines on a case-by-case basis that
concerns for water quality and the aquatic environment so          1. Any Construction of a stormwater management facility that
indicate, the board may require individual applications and        is located in perennial streams or in waters designated as
VWP individual permits rather than approving coverage under        oxygen- or temperature-impaired; (does not include wetlands).
this VWP general permit.                                           2. The construction of an irrigation impoundment on a
9 VAC 25-690-40. Exceptions to coverage.                           perennial stream;.

A. Authorization for coverage under this VWP general permit        3. Any water withdrawal activities;.
will not apply in the following areas:                             4. The location of animal feeding operations or waste storage
1. Wetlands composed of 10% or more of the following               facilities in state waters;.
species (singly or in combination) in any a vegetative stratum:    5. The pouring of wet concrete or the use of tremie concrete
Atlantic white cedar (Chamaecyparis thyoides), bald cypress        or grout bags in state waters, unless the area is contained
(Taxodium distichum), water tupelo (Nyssa aquatica), or            within a cofferdam and the work is performed in the dry;.
overcup oak (Quercus lyrata). Percentages shall be based
upon either basal area or percent areal cover in the area of       6. Return flow discharges from dredge disposal sites;.
impact.
                                                                   7. Overboard disposal of dredge materials;.
2. Wetlands underlain by histosols.
                                                                   8. Dredging in marinas;.
3. Surface waters where the proposed activity will impact
                                                                   9. Dredging of shellfish areas, submerged aquatic vegetation
federal or state listed or proposed threatened or endangered
                                                                   beds or other highly productive areas;.
species or proposed or designated critical habitat.
                                                                   10. Federal navigation projects;.
B. Authorization for coverage under this VWP general permit
cannot be used in combination with authorization for coverage      11. The construction of new ski areas; and.
under other VWP general permits in order to impact greater
than two acres of nontidal surface waters, more wetlands or        12. The taking of threatened or endangered species in
open water or greater than 500 1,500 linear feet of perennial      accordance with the following:
nontidal stream channel, or more than 1,500 linear feet of         a. As pursuant to § 29.1-564 of the Code of Virginia the
nonperennial stream channel bed. More than one                     taking, transportation, processing, sale or offer for sale within
authorization for coverage under this VWP general permit for       the Commonwealth of any fish or wildlife appearing on any list
a single and complete project is prohibited, except when the       of threatened or endangered species published by the United
cumulative impact to surface waters does not exceed the            States Secretary of the Interior pursuant to the provisions of
limits specified here.                                             the federal Endangered Species Act of 1973 (P.L. 93-205), or
C. This VWP general permit cannot be used for any an activity      any modifications or amendments thereto, is prohibited except
in a phased development which would cause the aggregate            as provided in § 29.1-568 of the Code of Virginia.
total loss of nontidal surface waters wetlands or open water in    b. As pursuant to § 29.1-566 of the Code of Virginia and
the subdivision to exceed two acres, or more than 500 to           4VAC15-20-130 B and C, the taking, transportation,
exceed 1,500 linear feet of perennial nontidal stream channel,     processing, sale or offer for sale within the Commonwealth of

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                                                               1294
                                                                                             Proposed Regulations
any state-listed endangered or threatened species is                 coverage under this general permit. The applicant may also
prohibited except as provided in § 29.1-568 of the Code of           consult with these agencies prior to submitting an application.
Virginia.                                                            Species or habitat information that the applicant provides will
                                                                     assist DEQ in reviewing and processing the application.
13. Proposed activities in wetlands, open water, streams, or
compensatory mitigation sites that are under a deed                  9 VAC 25-690-60. Application.
restriction, conservation easement, restrictive covenant, or
other land use protective instrument (hereafter protected            A. Applications shall be filed with the board as follows:
areas), where such restriction, easement, covenant, or               1. The applicant shall file a complete application, as described
instrument is the result of a federal or state permit action and     in accordance with 9 VAC 25-690-50 for a VWP general
is specific to activities in wetlands and compensatory               permit number WP4 for impacts to surface waters from
mitigation sites, and where the proposed activities incur up to      development and certain mining activities, which will serve as
1/10 acre of wetland or open water impacts or up to 300 linear       a notice of intent for coverage under this VWP general permit.
feet of stream bed impacts. Where the proposed activities in
protected areas impact greater than 1/10 acre wetlands or            2. The VDOT may use its monthly IACM process for
open water, or greater than 300 linear feet of stream bed, the       submitting applications.
applicant may submit a full and complete individual permit           B. The required application shall contain the following
application for further consideration by the board.                  information, if applicable to the project:
9 VAC 25-690-50. Notification.                                       1. The applicant's name, mailing address, telephone number
A. Notification to the board will be required prior to               and, if applicable, fax number;.
commencing construction as follows:                                  2. The authorized agent's (if applicable) name, mailing
1. An application for authorization for of proposed, permanent       address, telephone number and, if applicable, fax number and
nontidal wetland impacts greater than one-tenth of an acre, or       electronic mail address;.
for of proposed permanent nontidal stream channel bed                3. The existing VWP permit number (if applicable);.
impacts greater than 300 linear feet, shall be submitted via an
application that includes all information pursuant to 9 VAC 25-      4. The name of the project, narrative description of project
690-60 B. Once permanent impacts exceed these limits,                purpose, and a description of the proposed activity in surface
compensatory mitigation may be required for all permanent            waters;.
impacts in accordance with Parts I, II, and III of this VWP
                                                                     5. The name of the water body or water bodies or receiving
general permit regulation. All temporary impacts shall be
                                                                     stream, as applicable;.
restored to preexisting conditions, as per Parts I, II, and III of
this VWP general permit regulation.                                  6. The hydrologic unit code (HUC) for the project area;.
2. An application for the authorization of proposed, permanent       7. The name of the city or county where the project is located;.
surface nontidal wetland or open water impacts up to one-
tenth of an acre, which may include or of proposed,                  8. Latitude and longitude (to the nearest second) from a
permanent nontidal stream bed impacts up to 300 linear feet          central location within the project limits;.
of stream channel, shall be reported submitted via an                9. A detailed location map (e.g., a United States Geologic
application that includes only the following information:            Survey topographic quadrangle map) of the project area,
subdivisions 1 through 8, 9, 13, 15, 20 and 20 21 of 9 VAC 25-       including the project boundary. The map shall be of sufficient
690-60 B, and documentation that verifies the quantity and           detail such that the site may be easily located for site
type of impacts. If permanent impacts remain below these             inspection;.
limits, compensatory mitigation is not required for permanent
impacts. All temporary impacts shall be restored to preexisting      10. (Reserved.);
conditions, as per Parts I and III of this VWP general permit        11. Project plan view. All plan view sketches shall include, at a
regulation.                                                          minimum, north arrow, scale, existing structures, existing
B. A Joint Permit Application (JPA) or Virginia Department of        contours, proposed contours (if available), limit of surface
Transportation Interagency Coordination Meeting Joint Permit         water areas, direction of flow, ordinary high water, impact
Application (VDOT IACM JPA) shall serve as an application            limits, and location and dimension of all proposed structures in
under this regulation.                                               impact areas. In addition, cross-sectional or profile sketches,
                                                                     as appropriate, with the above information, shall may be
C. The board will determine whether the proposed activity            required as appropriate to demonstrate minimization of
requires coordination with the United States Fish and Wildlife       impacts; detail impact areas.
Service, the Virginia Department of Conservation and
Recreation, the Virginia Department of Agriculture and               12. Dredge material management plan (for dredging projects
Consumer Services and the Virginia Department of Game and            only) including plan and cross-section view drawings of the
Inland Fisheries regarding the presence of any federal or state      disposal or dewatering area, the dimensions and design of the
proposed or listed threatened and endangered species or              proposed berm and spillway, and the capacity of the proposed
proposed or designated critical habitat. Based upon                  disposal or dewatering site;.
consultation with these agencies, the board may deny

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                                                                 1295
Proposed Regulations
13. Surface water impact information (wetlands, streams, or        channel measurements, proposed design flows and types of
open water) for both permanent and temporary impacts,              instream structures; and reference stream data, if available.
including a description of the impact, the areal extent of the
impact (area of wetland in square feet and acres; area of          c. Applicants proposing to compensate off-site, including
stream, length of stream, and average width),; the location        purchase or use of mitigation bank credits, or contribution to
(latitude and longitude at the center of the impact, or at the     an in-lieu fee fund shall submit an evaluation of the feasibility
center of each impact for linear projects); and the type of        of on-site compensation. If on-site compensation is
surface water impact (open water; wetlands according to the        practicable, applicants shall provide documentation as to why
Cowardin classification or similar terminology; or perennial       the proposed off-site compensation is ecologically preferable.
and nonperennial for streams);. The board encourages               The evaluation shall include, but not be limited to, the
applicants to coordinate the determination of perennial or         following assessment criteria: water quality benefits,
nonperennial streams with the appropriate local government         hydrologic source, hydrologic regime, watershed, surface
agency in Tidewater Virginia.                                      water functions and values, vegetation type, soils, impact
                                                                   acreage, distance from impacts, timing of compensation
14. Functional values assessment for impacts to wetlands           versus impacts, acquisition, constructability, and cost.
greater than one acre, which shall consist of a summary of
field observations of the existing wetland functions and values    d. Any applicant Applicants proposing compensation involving
and an assessment of the impact that the project will have on      contributions to in-lieu fee programs shall state such as the
these functions and values. The following parameters/ and          conceptual compensation plan. Written documentation of the
functions shall be directly addressed: surrounding land uses       willingness of the entity to accept the donation and
and cover types; nutrient, sediment, and pollutant trapping;       documentation of how the amount of the contribution was
flood control and flood storage capacity; erosion control and      calculated shall be submitted prior to issuance of this general
shoreline stabilization; groundwater recharge and discharge;       permit authorization.
aquatic and wildlife habitat; and unique or critical habitats;.    e. Any applicant Applicants proposing compensation involving
15. A description of the specific on-site measures considered      the purchase or use of mitigation banking credits shall include
or and taken during project design and development both to         as their conceptual compensation plan:
avoid and minimize impacts to surface waters to the maximum        (1) The name of the proposed mitigation bank and the HUC in
extent practicable;.                                               which it is located;
16. A conceptual plan for the intended compensation for            (2) The number of credits proposed to be purchased or used;
unavoidable impacts, including:                                    and
a. For wetlands, the conceptual compensation plan shall            (3) Certification from the bank owner of the availability of
include: the goals and objectives in terms of replacement of       credits;.
wetland acreage and function; a detailed location map (e.g., a
United States Geologic Survey topographic quadrangle map),         17. A delineation map must be provided of the geographic
including latitude and longitude (to the nearest second) at the    area of a delineated wetland for all wetlands on the site, in
center of the site; a description of the surrounding land use; a   accordance with 9 VAC 25-210-45, including the wetlands
hydrologic analysis, including a draft water budget based on       data sheets. The delineation map shall also include the
expected monthly inputs and outputs which will project water       location of streams, open water, and the approximate limits of
level elevations for a typical year, a dry year, and a wet year;   Chesapeake Bay Resource Protection Areas (RPAs), as other
groundwater elevation data, if available, or the proposed          state or local requirements may apply if the project is located
location of groundwater monitoring wells to collect these data;    within an RPA. Wetland types shall be noted according to
a map for existing surface water areas on the proposed site or     their Cowardin classification or similar terminology. A copy of
sites, including a wetland delineation confirmation for any        the USACE delineation confirmation, or other correspondence
existing wetlands; a conceptual grading plan; a conceptual         from the USACE indicating their approval of the wetland
planting scheme, including suggested plant species and             boundary, shall also be provided at the time of application, or
zonation of each vegetation type proposed; and a description       if not available at that time, as soon as it becomes available
of existing soils including general information on topsoil and     during the VWP permit review. The delineation map shall also
subsoil conditions, permeability, and the need for soil            include the location of streams, open water and other surface
amendments.                                                        waters on the site. The approximate limits of any Chesapeake
                                                                   Bay Resource Protection Areas (RPAs) shall be shown on the
b. For streams, the conceptual compensation plan shall             map, as other state or local requirements may apply if the
include: the goals and objectives in terms of water quality        project is located within an RPA;
benefits and replacement of stream functions; a detailed
location map (e.g., a United States Geologic Survey                18. A copy of the FEMA flood insurance rate map or FEMA-
topographic quadrangle map), including the latitude and            approved local floodplain map for the project site;.
longitude and the hydrologic unit code (HUC) at the center of      19. The appropriate application processing fee for a VWP
the site to the nearest second; the proposed stream segment        general permit (in accordance with 9 VAC 25-20); and. The
restoration locations, including plan view and cross-section       permit application fee for VWP permit authorizations is based
sketches; the stream deficiencies that need to be addressed;       on acres only. Therefore, impacts calculated using linear feet
the proposed restoration measures to be employed, including


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                                                               1296
                                                                                             Proposed Regulations
of stream bed must be converted to an acreage in order to          application fee. An incomplete permit application may be
calculate the total permit application fee.                        administratively withdrawn from processing by the board after
                                                                   180 days from the date that the original permit application was
20. A written disclosure identifying all wetlands, open water,     received by the board. Resubmittal of a permit application for
streams, and associated upland buffers within the proposed         the same or similar project, after such time that the original
project or compensation areas that are under a deed                permit application was administratively withdrawn, shall
restriction, conservation easement, restrictive covenant, or       require submittal of an additional permit application fee.
other land use protective instrument (protected areas). Such
disclosure shall include the nature of the prohibited activities   9 VAC 25-690-70. Compensation.
within the protected areas.
                                                                   A. In accordance with 9 VAC 25-690-50 A 1, compensatory
20. 21. The following certification:                               mitigation may be required for all permanent, nontidal surface
                                                                   water impacts once the notification limits are exceeded. All
"I certify under penalty of law that this document and all         temporary, nontidal surface water impacts shall be restored to
attachments were prepared under my direction or supervision        preexisting conditions.
in accordance with a system designed to assure that qualified
personnel properly gather and evaluate the information             B. Generally, the sequence of preferred compensation options
submitted. Based on my inquiry of the person or persons who        shall be restoration, then creation, then mitigation banking,
manage the system or those persons directly responsible for        and then in-lieu fee fund. Also, on-site, in-kind compensatory
gathering the information, the information submitted is to the     mitigation, when available, shall be deemed the most
best of my knowledge and belief true, accurate, and complete.      ecologically preferable form of compensation for project
I am aware that there are significant penalties for submitting     impacts, in most cases. However, off-site or out-of-kind
false information including the possibility of fine and            compensation opportunities that prove to be more ecologically
imprisonment for knowing violations."                              preferable or practicable may be considered. When the
                                                                   applicant can demonstrate satisfactorily that an off-site or out-
C. The application shall be signed in accordance with 9 VAC        of-kind compensatory mitigation proposal is practicable and
25-210-100. If an agent is acting on behalf of an applicant, the   ecologically preferable, then such proposal may be deemed
applicant shall submit an authorization of the agent that          appropriate for compensation of project impacts.
includes the signatures of both the applicant and the agent.
                                                                   A. C. For the purposes of this VWP general permit, the board
D. Upon receipt of an application by the appropriate DEQ           may accept any one or combination of the following as
office, the board has 15 days to review the application and        compensation compensatory mitigation for unavoidable
either determine the information requested in subsection B of      wetland impacts may be met through the following: wetland
this section is complete or inform the applicant that additional   creation, wetland or stream restoration, the purchase or use of
information is required to make the application complete.          mitigation bank credits, or a contribution to an approved in-lieu
Coverage under this VWP general permit shall be approved,          fee fund. Preservation of wetlands, or preservation or
approved with conditions, or denied within 45 days of receipt      restoration of upland buffers adjacent to state waters, may
of a complete application. If the board fails to act within 45     only be applied toward wetland compensation when utilized in
days on a complete application, coverage under this VWP            conjunction with one or more of the above-mentioned
permit general permit shall be deemed approved.                    compensation options. Preservation or enhancement of
1. In evaluating the application, the board shall make an          stream channels, or preservation, restoration, or enhancement
assessment of the impacts associated with the project in           of adjacent riparian buffers, may be applied toward stream
combination with other existing or proposed impacts.               compensation as appropriate.
Coverage under this VWP general permit shall be denied if          1. Wetland creation.
the cumulative impacts will cause or contribute to a significant
impairment of state waters or fish and wildlife resources.         2. Wetland restoration.
2. The board may place additional conditions on a project in       3. The purchase or use of credits from a mitigation bank,
order to approve authorization under this VWP general permit.      pursuant to § 62.1-44.15:5 E of the Code of Virginia.
However, these conditions must be consistent with the VWP
permit regulation.                                                 4. A contribution to an approved in-lieu fee fund.

E. Incomplete application. Where an application is incomplete,     5. Preservation of upland buffers adjacent to state waters,
the board shall require the submission of additional               when utilized in conjunction with subdivision 1, 2, or 3 of this
information and shall may suspend processing the application       subsection and when consistent with 9 VAC 25-210-115 C.
until such time as the applicant has supplied the missing or       6. Restoration of upland buffers adjacent to state waters,
deficient requested information and the application is             when utilized in conjunction with subdivision 1, 2, or 3 of this
complete. Further, Where the applicant becomes aware that          subsection and when consistent with 9 VAC 25-210-115 C.
he omitted one or more relevant facts from an application, or
submitted incorrect information in an application or in any        7. Preservation of wetlands, when utilized in conjunction with
report reports to the board, the applicant shall immediately       subdivision 1, 2, or 3 of this subsection.
submit such facts or the correct information. Such A revised
application with new information shall be deemed a new
application, but shall not require an additional permit

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                                                               1297
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D. For the purposes of this VWP general permit,                       permanent impact for the purposes of this regulation.
compensatory mitigation for unavoidable stream impacts may            Compensation for conversion of other types of surface waters
be met through the following:                                         may be required, as appropriate, to offset impacts to state
                                                                      waters and fish and wildlife resources from significant
1. Stream channel restoration or enhancement.                         impairment.
2. Riparian buffer restoration or enhancement.                        F. In order for contribution to an in-lieu fee fund to be an
3. Riparian buffer preservation, when consistent with 9 VAC           acceptable form of compensation, the fund must be approved
25-210-115 C.                                                         for use by the board according to the provisions of 9 VAC 25-
                                                                      210-115 E.
4. A contribution to an approved in-lieu fee fund.
                                                                      G. In order for purchase or use of bank credits to be an
5. The purchase or use of credits from a mitigation bank,             acceptable form of compensation, the bank shall be operating
pursuant to § 62.1-44.15:5 E of the Code of Virginia.                 in accordance with the provisions of § 62.1-44.15:5 E of the
E. In order for contribution to an in-lieu fee fund to be an          Code of Virginia and 9 VAC 25-210-115 F. The applicant shall
acceptable form of compensation, the fund must be approved            provide proof of purchase, use, or debit to DEQ prior to
for use by the board according to the provisions of 9 VAC 25-         commencing activities in impact areas.
210-115 E. The applicant shall provide proof of contribution to       9 VAC 25-690-80. Notice of planned changes.
DEQ prior to commencing activities in impact areas.
                                                                      A. The permittee shall notify the board in advance of the
F. In order for purchase or use of bank credits to be an              planned change, and the planned changes request will be
acceptable form of compensation, the bank shall be operating          reviewed according to all provisions of this regulation.
in accordance with the provisions of § 62.1-44.15:5 E of the
Code of Virginia and 9 VAC 25-210-115 F. The applicant shall          A. B. Authorization under this VWP general permit may be
provide proof of purchase, use, or debit to DEQ prior to              modified subsequent to issuance if the permittee determines
commencing activities in impact areas.                                that additional permanent wetland, open water, or stream
                                                                      impacts are necessary, provided that the additional impacts
B. G. Compensation for unavoidable, permanent wetland                 are associated with the previously authorized activities in
impacts shall be provided at the following minimum                    authorized locations within the same phase of development,
compensation to impact ratios:                                        the cumulative increase in acreage of wetland or open water
1. Impacts to forested wetlands shall be mitigated at 2:1, as         impacts is not greater than 1/4 acre and, the cumulative
calculated on an area basis.                                          increase in stream bed impacts is not greater than 50 100
                                                                      linear feet, and provided that the additional impacts are fully
2. Impacts to scrub shrub wetlands shall be mitigated at 1.5:1,       mitigated. In no case can this authorization be modified to
as calculated on an area basis.                                       exceed the general permit threshold for use. Prior to a
                                                                      planned change approval, DEQ may require submission of a
3. Impacts to emergent wetlands shall be mitigated at 1:1, as
                                                                      compensatory mitigation plan for the additional impacts. In
calculated on an area basis.
                                                                      cases where the original impacts totaled less than 1/10 acre of
C. Compensation for unavoidable impacts to streams shall be           wetlands or open water, or less than 300 linear feet of stream
provided and shall include, as practicable and appropriate,           bed, and the additional impacts result in these limits being
stream restoration, riparian buffer restoration or enhancement,       exceeded, the notice of planned change will not be approved.
or preservation or enhancement of stream corridors. The               However, the applicant may submit a new permit application
purchase or use of stream mitigation bank credits or                  and permit application fee for the total impacts to be
contribution to an in-lieu fee fund that includes watershed           considered under this VWP general permit, another VWP
enhancements is also acceptable. H. Compensation for                  general permit, or a VWP individual permit.
stream bed impacts shall be appropriate to replace lost
                                                                      B. C. Authorization under this VWP general permit may be
functions and water quality benefits. One factor in determining
                                                                      modified after issuance if the project results in less wetland or
the required compensation shall be an analysis of stream
                                                                      stream impacts. Compensation requirements may be modified
impacts utilizing a stream impact assessment methodology
                                                                      in relation to the adjusted impacts at the request of the
approved by the board acceptable to DEQ.
                                                                      permittee, provided that the adjusted compensation meets the
D. I. Compensation for permanent open water impacts other             initial authorization compensation goals. DEQ shall not be
than to streams may be required at a 1:1 replacement to               responsible for ensuring refunds for mitigation bank credit
impact ratio, as appropriate calculated on an area basis, to          purchases, mitigation bank usage, or in-lieu fee fund
protect offset impacts to state waters and fish and wildlife          contributions.
resources from significant impairment.
                                                                      C. D. Authorization under this VWP general permit may be
E. J. Compensation for conversion impacts to wetlands shall           modified after issuance for a change in project plans that does
be required at a 1:1 replacement to impact ratio, as calculated       not result in a change in project impacts.
on an area basis, when such conversion results in a
                                                                      D. E. Authorization under the VWP general permit may be
permanent alteration of the functions and values of the
                                                                      modified for a change to the mitigation bank at which credits
wetland. For example, the permanent conversion of a forested
                                                                      are purchased or used, provided that the same amount of
wetland to an emergent wetland is considered to be a

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                                                                                                Proposed Regulations
credits are purchased or used and all criteria for use in 9 VAC       "I certify under penalty of law that the activities and any
25-210-115 F are met.                                                 required compensatory mitigation authorized by this VWP
                                                                      general permit will not occur. I understand that by submitting
E. F. Authorization under the VWP general permit may be               this notice of termination I am no longer authorized to perform
modified after issuance for typographical errors.                     activities in surface waters in accordance with the VWP
F. G. A Notice of Planned Change is not required after                general permit, and that performing activities in surface waters
authorization issuance for additional temporary impacts to            is unlawful where the activity is not authorized by a VWP
surface waters, provided that DEQ is notified in writing              permit. I also understand that the submittal of this notice does
regarding additional temporary impacts, and the area is               not release me from liability for any violations of this VWP
restored to preexisting conditions in accordance with Part I C        general permit authorization, nor does it allow me to resume
11 of this general permit. In no case can the additional              the     permitted    activities  without    reapplication    and
temporary impacts exceed the general permit threshold for             reauthorization."
use.                                                                  c. For events beyond permittee control, the permittee shall
G. The permittee shall notify the board in advance of the             provide a detailed explanation of the events, to be approved
planned change, and the planned change request will be                by DEQ, and the following certification statement:
reviewed according to all provisions of this regulation.              "I certify under penalty of law that all the activities or the
H. In no case can this authorization be modified to exceed the        required compensatory mitigation authorized by a VWP
general permit threshold for use.                                     general permit have changed as the result of events beyond
                                                                      my control (see attached). I understand that by submitting this
I. A notice of planned change shall be denied if fish and             notice of termination I am no longer authorized to perform
wildlife resources are significantly impacted or if the criteria in   activities in surface waters in accordance with the VWP
subsection B are not met. However, the original VWP general           general permit, and that performing activities in surface waters
permit authorization shall remain in effect. The applicant may        is unlawful where the activity is not authorized by a VWP
submit a new permit application and permit application fee for        permit. I also understand that the submittal of this notice does
consideration under a VWP individual permit.                          not release me from liability for any violations of this VWP
9 VAC 25-690-90. Termination of authorization by consent.             general permit authorization, nor does it allow me to resume
                                                                      the     permitted   activities   without    reapplication    and
When all permitted activities requiring notification under            reauthorization."
9 VAC 25-690-50 A 1 and all compensatory mitigation
requirements have been completed, or if the authorized                9 VAC 25-690-95. Transition.
impacts will not occur, the permittee shall submit a request for      A. All applications received on or after (insert effective date)
termination by consent within 30 days of project completion or        will be processed in accordance with these new procedures.
project cancellation. When submitted for project completion,
the termination by consent shall constitute a notice of               B. VWP general permit authorizations issued prior to (insert
completion in accordance with 9 VAC 25-210-130. The                   effective date) will remain in full force and effect until such
director may accept this termination of authorization on behalf       authorizations expire, are revoked, or are terminated.
of the board. The permittee shall submit the following                C. Notices of Planned Change and all other types of
information:                                                          notification that are received by the board prior to (insert
1. Name, mailing address and telephone number of the                  effective date) will be processed in accordance with the VWP
permittee;                                                            general permit regulation in effect at that time. Notices of
                                                                      Planned Change and all other types of notification to the
2. Name and location of the activity;                                 board that are received on or after (insert effective date) will
3. The VWP permit authorization number; and                           be processed in accordance with these new procedures.

4. One of the following certifications:                               9 VAC 25-690-100. VWP general permit.

a. For project completion:                                            Any applicant whose application has been accepted by the
                                                                      board shall be subject to the following requirements:
"I certify under penalty of law that all activities and any
required compensatory mitigation authorized by a VWP                  VWP General Permit No. WP4
general permit have been completed. I understand that by              Authorization effective date:
submitting this notice of termination I am no longer authorized
to perform activities in surface waters in accordance with the        Authorization expiration date:
VWP general permit, and that performing activities in surface         Authorization Notes(s):
waters is unlawful where the activity is not authorized by a
VWP permit. I also understand that the submittal of this notice       VWP GENERAL PERMIT FOR IMPACTS FROM
does not release me from liability for any violations of this         DEVELOPMENT AND CERTAIN MINING ACTIVITIES
VWP general permit authorization."                                    UNDER THE VIRGINIA WATER PROTECTION PERMIT AND
                                                                      THE VIRGINIA STATE WATER CONTROL LAW
b. For project cancellation:


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                                                                  1299
Proposed Regulations
Based upon an examination of the information submitted by           5. The activities authorized for coverage under this VWP
the applicant and in compliance with § 401 of the Clean Water       general permit must commence and be completed within five
Act as amended (33 USC § 1341) and the State Water                  seven years of the date of this authorization.
Control Law and regulations adopted pursuant thereto, the
board has determined that there is a reasonable assurance           B. Continuation of coverage. Reapplication for continuation of
that the activity authorized by this VWP general permit, if         coverage under this VWP general permit or a new VWP
conducted in accordance with the conditions set forth herein,       permit may be necessary if any portion of the authorized
will protect instream beneficial uses and will not violate          activities or any VWP general permit requirement (including
applicable water quality standards. The board finds that the        compensation) has not been completed within five seven
effect of the impact, together with other existing or proposed      years of the date of authorization. Notwithstanding any other
impacts to wetlands, will not cause or contribute to a              provision, a request for continuation of coverage under a VWP
significant impairment of state waters or fish and wildlife         general permit in order to complete monitoring requirements
resources.                                                          shall not be considered a new application, and no application
                                                                    fee will be charged. The request for continuation of coverage
Subject to the provisions of the Clean Water Act, as amended,       must be made no less than 60 days prior to the expiration
and pursuant to the State Water Control Law and regulations         date of this VWP general permit authorization, at which time
adopted pursuant to it, the permittee is authorized to              the board will determine if continuation of the VWP general
permanently or temporarily impact up to two acres of nontidal       permit authorization is necessary.
surface waters, including wetlands or open water and up to
500 1,500 linear feet of perennial nontidal stream channel and      C. Overall project conditions.
up to 1,500 linear feet of nonperennial stream channel bed.         1. The activities authorized by this VWP general permit shall
Permittee:                                                          be executed in a manner so as to minimize any adverse
                                                                    impact impacts on instream beneficial uses as defined in
Address:                                                            § 62.1-10 (b) of the Code of Virginia.
Activity Location:                                                  2. No activity may substantially disrupt the movement of
                                                                    aquatic life indigenous to the water body, including those
Activity Description:                                               species which normally migrate through the area, unless the
The authorized activity shall be in accordance with this cover      primary purpose of the activity is to impound water. Culverts
page, Part I—Special Conditions, Part II—Compensation,              placed in streams must be installed to maintain low flow
Monitoring, and Reporting, and Part III-Conditions Applicable       conditions. The requirement to countersink does no apply to
to All VWP Permits, as set forth herein.                            extensions or maintenance of existing culverts that are not
                                                                    countersunk, floodplain culverts being placed above ordinary
_____________________________________               __________      high water, culverts being placed on bedrock, or culverts
Director, Department of Environmental Quality             Date      required to be placed on slopes 5.0% or greater. No activity
                     Part I. Special Conditions.                    may cause more than minimal adverse effect on navigation.
                                                                    Furthermore the activity must not impede the passage of
A. Authorized activities.                                           normal or expected high flows and the structure or discharge
                                                                    must withstand expected high flows.
1. This permit authorizes permanent or temporary impacts of
up to two acres of nontidal surface waters including wetlands       3. Wet or uncured concrete shall be prohibited from entry into
or open water and up to 500 1,500 linear feet of perennial          flowing surface waters. Excess or waste concrete shall not be
nontidal stream channel and up to 1,500 linear feet of              disposed of in flowing surface waters or washed into flowing
nonperennial stream channel bed according to the information        surface waters.
provided in the approved and complete application.
                                                                    4. All fill material shall be clean and free of contaminants in
2. Any changes to the authorized permanent impacts to               toxic concentrations or amounts in accordance with all
surface waters associated with this project shall require either    applicable laws and regulations.
a notice of planned change in accordance with 9 VAC 25-690-
80, or another VWP permit application.                              5. Erosion and sedimentation controls shall be designed in
                                                                    accordance with the Virginia Erosion and Sediment Control
3. Any changes to the authorized temporary impacts to               Handbook, Third Edition, 1992, or for mining activities covered
surface waters associated with this project shall require           by this general permit, the standards issued by the Virginia
written notification to DEQ and restoration to preexisting          Department of Mines, Minerals and Energy that are effective
conditions in accordance with the conditions of this permit         as those in the Virginia Erosion and Sediment Control
authorization.                                                      Handbook, Third Edition, 1992. These controls shall be placed
                                                                    prior to clearing and grading and maintained in good working
4. Modification to compensation requirements may be
                                                                    order to minimize impacts to state waters. These controls shall
approved at the request of the permittee when a decrease in
                                                                    remain in place until the area is stabilized and shall then be
the amount of authorized surface waters impacts occurs,
                                                                    removed.
provided that the adjusted compensation meets the initial
authorization compensation goals.                                   6. Any Exposed slopes and streambanks shall be stabilized
                                                                    immediately upon completion of work in each permitted impact
                                                                    area. All denuded areas shall be properly stabilized in

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                                                                1300
                                                                                             Proposed Regulations
accordance with the Virginia Erosion and Sediment Control            13. Continuous flow of perennial springs shall be maintained
Handbook, Third Edition, 1992.                                       by the installation of spring boxes, french drains, or other
                                                                     similar structures.
7. All construction, construction access (e.g., cofferdams,
sheetpiling, and causeways) and demolition activities                14. The permittee shall employ measures to prevent spills of
associated with this project shall be accomplished in a manner       fuels or lubricants into state waters.
that minimizes construction or waste materials from entering
surface waters to the maximum extent practicable, unless             15. The permittee shall conduct activities in accordance with
authorized by this VWP general permit.                               any the time-of-year restrictions recommended by the Virginia
                                                                     Department of Game and Inland Fisheries or , the Virginia
8. No machinery may enter flowing waters, unless authorized          Marine Resources Commission, or other interested and
by this VWP general permit.                                          affected agencies and shall ensure that all contractors are
                                                                     aware of any the time-of-year restrictions imposed.
9. Heavy equipment in temporarily-impacted wetland areas
shall be placed on mats, geotextile fabric, or other suitable        16. Water quality standards shall not be violated as a result of
material to minimize soil disturbance to the maximum extent          the construction activities, unless allowed by this permit
practicable. Equipment and materials shall be removed                authorization.
immediately upon completion of work.
                                                                     17. Untreated stormwater runoff shall be prohibited from
10. All nonimpacted surface waters and compensatory                  directly discharging into any surface waters, unless allowed by
mitigation areas within 50 feet of any permitted activities and      this permit authorization. Appropriate best management
within the project or right-of-way limits shall be clearly flagged   practices shall be deemed suitable treatment prior to
or marked for the life of the construction activity at that          discharge into state waters.
location to preclude any unauthorized disturbances to these
surface waters and compensatory mitigation areas during              18. If stream channelization or relocation is required, all work
construction. The permittee shall notify all contractors that no     in surface waters shall be done in the dry, unless authorized
activities are to occur in these marked areas are surface            by this VWP general permit, and all flows shall be diverted
waters where no activities are to occur.                             around the channelization or relocation area until the new
                                                                     channel is stabilized. This work shall be accomplished by
11. Temporary disturbances to surface waters during                  leaving a plug at the inlet and outlet ends of the new channel
construction shall be avoided and minimized to the maximum           during excavation. Once the new channel has been stabilized,
extent practicable. All temporarily disturbed wetland areas          flow shall be routed into the new channel by first removing the
shall be restored to preconstruction preexisting conditions          downstream plug and then the upstream plug. The rerouted
within 30 days of completing work at each respective                 stream flow must be fully established before construction
temporary impact area, which shall include reestablishing            activities in the old stream channel can begin.
preconstruction contours, and planting or seeding with
appropriate wetland vegetation according to cover type               D. Road crossings.
(emergent, scrub/shrub, or forested). The permittee shall take       1. Access roads and associated bridges or culverts shall be
all appropriate measures to promote and maintain                     constructed to minimize the adverse effects on surface waters
revegetation of temporarily disturbed wetland areas with             to the maximum extent practicable. Access roads constructed
wetland vegetation through the second year post-disturbance.         above preconstruction contours and elevations in surface
All temporarily impacted streams and streambanks shall be            waters must be bridged or culverted to maintain surface flows.
restored to their original contours within 30 days following the
construction at that stream segment, and the banks seeded or         2. Installation of road crossings shall occur in the dry via the
planted with the same vegetation cover type originally present       implementation of cofferdams, sheetpiling, stream diversions,
along the streamsbanks, including supplemental erosion               or similar structures.
control grasses if necessary, except for invasive species            E. Utility lines.
identified on DCR's Invasive Alien Plant Species of Virginia
list.                                                                1. All utility line work in surface waters shall be performed in a
                                                                     manner that minimizes disturbance, and the area must be
12. All Materials (including fill, construction debris, and          returned to its original contours and restored within 30 days of
excavated and woody materials) temporarily stockpiled in             completing work in the area, unless otherwise authorized by
wetlands shall be placed on mats or geotextile fabric,               this VWP general permit. Restoration shall be the seeding of
immediately stabilized to prevent entry into state waters,           planting of the same vegetation cover type originally present,
managed such that leachate does not enter state waters, and          including supplemental erosion control grasses if necessary,
completely removed within 30 days following completion of            except for invasive specifies identified on DCR's Invasive
that construction activity. Disturbed areas shall be returned to     Alien Plant Species of Virginia list.
original contours, restored within 30 days following removal of
the stockpile, and restored with the same vegetation cover           2. Material resulting from trench excavation may be
type originally present, including supplemental erosion control      temporarily sidecast into wetlands not to exceed a total of 90
grasses if necessary, except for invasive species identified on      days, provided the material is not placed in a manner such
DCR's Invasive Alien Plant Species of Virginia list.                 that it is dispersed by currents or other forces.



Volume 22, Issue 9                                                                                          Monday, January 9, 2006

                                                                 1301
Proposed Regulations
3. The trench for a utility line cannot be constructed in a         b. Side slope cuts of the dredging area shall not exceed a two-
manner that drains wetlands (e.g., backfilling with extensive       horizontal-to-one-vertical slope to prevent slumping of material
gravel layers creating a french drain effect.). For example,        into the dredged area.
utility lines may be backfilled with clay blocks to ensure that
the trench does not drain surface waters through which the          7. A dredged material management plan for the designated
utility line is installed.                                          upland disposal site shall be submitted and approved 30 days
                                                                    prior to initial dredging activity.
F. Stream modification and stream bank protection.
                                                                    8. Pipeline outfalls and spillways shall be located at opposite
1. Riprap bank stabilization shall be of an appropriate size and    ends of the dewatering area to allow for maximum retention
design in accordance with the Virginia Erosion and Sediment         and settling time. Filter fabric shall be used to line the
Control Handbook, Third Edition, 1992.                              dewatering area and to cover the outfall pipe to further reduce
                                                                    sedimentation to state waters.
2. Riprap apron for all outfalls shall be designed in accordance
with the Virginia Erosion and Sediment Control Handbook,            9. The dredge material dewatering area shall be of adequate
Third Edition, 1992.                                                size to contain the dredge material and to allow for adequate
                                                                    dewatering and settling out of sediment prior to discharge
3. For stream bank protection activities, the structure and         back into state waters.
backfill shall be placed as close to the stream bank as
practicable. No material shall be placed in excess of the           10. The dredge material dewatering area shall utilize an
minimum necessary for erosion protection.                           earthen berm or straw bales covered with filter fabric along the
                                                                    edge of the area to contain the dredged material, and shall be
4. All stream bank protection structures shall be located to        properly stabilized prior to placing the dredged material within
eliminate or minimize impacts to vegetated wetlands to the          the containment area.
maximum extent practicable.
                                                                    11. Overtopping of the dredge material containment berms
5. Asphalt and materials containing asphalt or other toxic          with dredge materials shall be strictly prohibited.
substances shall not be used in the construction of
submerged sills or breakwaters.                                     H. Stormwater management facilities.
6. Redistribution of existing stream substrate for the purpose      1. Stormwater management facilities shall be installed in
of erosion control is prohibited.                                   accordance with best management practices and watershed
                                                                    protection techniques (i.e., e.g., vegetated buffers, siting
7. No material removed from the stream bottom shall be              considerations to minimize adverse effects to aquatic
disposed of in surface waters, unless authorized by this            resources, bioengineering methods incorporated into the
permit.                                                             facility design to benefit water quality and minimize adverse
G. Dredging.                                                        effects to aquatic resources) that provide for long-term aquatic
                                                                    resources protection and enhancement, to the maximum
1. Dredging depths shall be determined and authorized               extent practicable.
according to the proposed use and controlling depths outside
the area to be dredged.                                             2. Compensation for unavoidable impacts shall not be allowed
                                                                    within maintenance areas of stormwater management
2. Dredging shall be accomplished in a manner that minimizes        facilities.
disturbance of the bottom and minimizes turbidity levels in the
water column.                                                       3. Maintenance activities within stormwater management
                                                                    facilities shall not require additional permit authorization or
3. If evidence of impaired water quality, such as a fish kill, is   compensation provided that the maintenance activities do not
observed during the dredging, dredging operations shall             exceed the original contours of the facility, as approved and
cease and the DEQ shall be notified immediately.                    constructed, and is accomplished in designated maintenance
4. Barges used for the transportation of dredge material shall      areas as indicated in the facility maintenance or design plan.
be filled in such a manner to prevent any the overflow of              Part II. Construction and Compensation Requirements,
dredged materials.                                                                    Monitoring, and Reporting.
5. Double handling of dredged material in state waters shall        A. Compensation Minimum compensation requirements.
not be permitted.
                                                                    1. The permittee shall provide appropriate and practicable
6. For navigation channels the following shall apply:               compensation for all impacts meeting the conditions outlined
a. A buffer of four times the depth of the dredge cut shall be      in this VWP general permit.
maintained between the bottom edge of the design channel            2. The types of Compensation options that may be considered
and the channelward limit of wetlands or mean low water, or a       under this VWP general permit include wetland or stream
buffer of 15 feet shall be maintained from the dredged cut and      creation or restoration, the purchase or use of mitigation bank
the channelward edge of wetlands or mean low water,                 credits, or a contribution to an approved in-lieu fee fund shall
whichever is greater. This landward limit of buffer shall be        meet the criteria in 9 VAC 25-690-70.
flagged and inspected prior to construction.


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                                                                1302
                                                                                             Proposed Regulations
3. For wetlands compensation may incorporate preservation           i. Planting scheme and schedule, indicating plant species,
of wetlands or preservation or restoration of upland buffers        zonation, and acreage of each vegetation type proposed;
adjacent to state waters when utilized in conjunction with
creation, restoration, or mitigation bank credits. For other        j. An abatement and control plan covering all undesirable plant
surface waters, compensation may incorporate preservation,          species, as listed on DCR's Invasive Alien Plant Species of
restoration, or enhancement of stream channels, or                  Virginia list, that includes the proposed procedures for
preservation, restoration, or enhancement of adjacent riparian      notifying DEQ of their presence, methods of removal, and the
buffers.                                                            control of any such species;

4. 3. The site or sites depicted in the conceptual                  k. Erosion and sedimentation control plan;
compensation plan submitted with the application shall              l. A soil preparation and amendments plan addressing both
constitute the compensation site for the approved project. A        topsoil and subsoil conditions;
site change will require a modification to the authorization.
                                                                    m. A discussion of any structures and features considered
5. 4. For compensation involving the purchase or use of             necessary for the success of the site;
mitigation bank credits or a contribution to an in-lieu fee fund,
the permittee shall not initiate work in permitted impact areas     n. A monitoring plan, including success criteria, monitoring
until documentation of the mitigation bank credit purchase or       goals and methodologies, monitoring and reporting schedule,
usage or of the fund contribution has been submitted to and         and the locations of photographic stations and monitoring
received by DEQ.                                                    wells, any sampling points, and, if applicable, reference
                                                                    wetlands;
6. For projects proposing a contribution to an in-lieu fee fund,
the permittee shall not initiate work in permitted impact areas     o. Site access plan;
until documentation of the in-lieu fee fund contribution has        p. The location and composition of any buffers; and
been submitted to and received by DEQ.
                                                                    q. The mechanism for protection of the compensation area(s).
7. 5. All aspects of the compensation plan shall be finalized,
submitted and approved by the board prior to any a                  9. 7. The final stream compensation plan shall include:
construction activity in permitted impact areas. The board
                                                                    a. The goals and objectives of the compensation plan in terms
shall review and provide written comments on the plan within
                                                                    of replacement of stream functions and values water quality
30 days of receipt or it shall be deemed approved. The final
                                                                    benefits;
compensation plan as approved by the board shall be an
enforceable requirement of this VWP general permit                  b. A location map, including latitude and longitude (to the
authorization. Any Deviations from the approved plan must be        nearest second) at the center of the site;
submitted and approved in advance by the board.
                                                                    c. An evaluation, discussion, and plan sketches of existing
8. 6. The final wetlands compensation plan shall include:           conditions on the proposed compensation stream, including
                                                                    the identification of functional and physical deficiencies for
a. The goals and objectives of the plan in terms of
                                                                    which the measures are proposed, and summary of
replacement of wetland acreage and functions, by wetland
                                                                    geomorphologic measurements (e.g., stream               width,
type;
                                                                    entrenchment ratio, width-depth ratio, sinuosity, slope,
b. Location map, including latitude and longitude (to the           substrate, etc.);
nearest second) at the center of the site;
                                                                    d. The identification of existing geomorphological stream type
c. Summary of the type and acreage of existing wetland              being impacted and proposed geomorphological stream type
impacts anticipated during the construction of the                  for compensation purposes;
compensation site and proposed compensation for these
                                                                    e. Detailed design information for the proposed restorative
impacts;
                                                                    measures, including geomorphological measurements and
d. Grading plan with existing and proposed elevations at one-       reference reach information as appropriate;
foot or less contours;
                                                                    f. Riparian buffer plantings, including planting scheme,
e. Schedule for compensation site construction, including           species, buffer width;
sequence of events with estimated dates;
                                                                    g. Livestock access limiting measures, to the greatest extent
f. Hydrologic analysis, including a water budget based on           possible;
expected monthly inputs and outputs that will project water
                                                                    h. A site access plan;
level elevations for a typical year, a wet year, and a dry year;
                                                                    i. An erosion and sedimentation control plan, if appropriate;
g. Groundwater elevation data for the site, or the proposed
location of groundwater monitoring wells to collect these data,     j. An abatement and control plan covering all undesirable plant
and groundwater data for reference wetlands, if applicable;         species, listed on DCR's Invasive Alien Plant Species of
                                                                    Virginia list, that includes the proposed procedures for
h. Design of water control structures;
                                                                    notifying DEQ of their presence, methods for removal, and the
                                                                    control of any such species;

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                                                                1303
Proposed Regulations
k. A schedule for compensation site construction including           sediment traps, grassed waterways, vegetated filter strips,
projected start date, sequence of events with projected dates,       debris screens, oil and grease separators, or forebays.
and projected completion date;
                                                                     16. 14. The success of the compensation shall be based on
l. A monitoring plan, including a monitoring and reporting           meeting the success criteria established in the approved final
schedule; monitoring design and methodologies to evaluate            compensation plan.
the success of the proposed compensation measures,
allowing comparison from year to year; proposed success              17. 15. Wetland hydrology shall be considered established if
criteria for appropriate compensation measures; location of all      depths to the seasonal high water table are equal to or less
monitoring stations including photo stations, vegetation             than 12 inches below ground surface for at least 12.5% of the
sampling points, survey points, bank pins, scour chains, and         region's killing frost-free growing season, as defined in the soil
reference streams;                                                   survey for the locality of the compensation site or the NRCS
                                                                     WETS table, measured in consecutive days under typical
m. The mechanism for protection of the compensation area;            precipitation conditions, and as defined in the water budget of
and                                                                  the final compensation plan. For the purpose of this
                                                                     regulation, the growing season is defined as the period in
n. Plan view sketch depicting the pattern and all compensation       which temperatures are expected to be above 28 degrees
measures being employed, a profile sketch, and cross-section         Fahrenheit in five out of 10 years, or the period during which
sketches of the proposed compensation stream.                        the soil temperature in a wetland compensation site is greater
10. 8. For final wetland or stream compensation plans, any the       than biological zero (five degrees Celsius) at a depth of 50
vegetation used shall be native species common to the area,          centimeters (19.6 inches), if such data is available.
shall be suitable for growth in local wetland conditions, and        18. 16. The wetland plant community shall be considered
shall be from areas within the same or adjacent USDA Plant           established according to the performance criteria specified in
Hardiness Zone or NRCS Land Resource Region as that of               the final compensation plan and approved by the board. The
the project site.                                                    proposed vegetation success criteria in the final compensation
11. 9. The final wetland or stream compensation plan(s) shall        plan shall include the following:
include a mechanism for protection in perpetuity of the              a. Species composition shall reflect the desired plant
compensation sites(s) to include all state waters within the         community types stated in the final wetland compensation
compensation site boundary or boundaries. Such protections           plan by the end of the first growing season and shall be
shall be in place within 120 days of final plan approval. The        maintained through the last monitoring year.
restrictions, protections, or preservations, or similar
instrument, shall state that no activity will be performed on the    b. Species composition shall consist of greater than 50%
property in any area designated as a compensation area with          facultative (FAC) or wetter (FACW or OBL) vegetation, as
the exception of maintenance or corrective action measures           expressed by plant stem density or areal cover, by the end of
authorized by the board. Unless specifically authorized by the       the first growing season and shall be maintained through the
board through the issuance of a VWP individual or general            last monitoring year.
permit, or waiver thereof, this restriction applies to ditching,
land clearing or the discharge of dredge or fill material. Such      19. 17. Undesirable plant species shall be identified and
instrument shall contain the specific phrase "ditching, land         controlled as described in the undesirable plant species
clearing or discharge of dredge or fill material" in the             control plan, such that they are not dominant species or do not
limitations placed on the use of these areas. The protective         change the desired community structure. The control plan
instrument shall be recorded in the chain of title to the            shall include procedures to notify DEQ when undesirable plant
property, or an equivalent instrument for government-owned           species comprise greater than 5.0% of the vegetation by areal
lands. Proof of recordation shall be submitted within 120 days       coverage on wetland or stream compensation sites. The
of plat approval.                                                    notification shall include the methods of removal and control,
                                                                     and whether the methods are successful.
12. 10. All work in impact areas shall cease if compensation
site construction has not commenced within 180 days of               20. 18 If the wetland or stream compensation area(s) fail fails
commencement of project construction, unless otherwise               to meet the specified success criteria in a particular monitoring
authorized by the board.                                             year (with the exception of, other than the final monitoring
                                                                     year), the reasons for this failure shall be determined, and a
13. 11. DEQ shall be notified in writing at least 10 days prior to   corrective action plan (including proposed actions, a schedule,
the initiation of construction activities at the compensation        and a monitoring plan) shall be submitted to DEQ for approval
site(s).                                                             with or before that year's monitoring report. The approved
                                                                     corrective action plan shall contain at minimum the proposed
14. 12. Planting of woody plants shall occur when vegetation         actions, a schedule for those actions, and a monitoring plan,
is normally dormant unless otherwise approved in the final           and shall be implemented by the permittee in accordance with
wetlands or stream compensation plan(s).                             the approved schedule. Should significant changes be
15. 13. Point sources of stormwater runoff shall be prohibited       necessary to ensure success, the required monitoring cycle
from entering any wetland compensation site prior to                 shall begin again, with monitoring year one being the year that
treatment by appropriate best management practices.                  the changes are complete, as confirmed by DEQ. 21. If all
Appropriate best management practices may include                    success criteria have not been met in the wetland or stream

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                                                                 1304
                                                                                            Proposed Regulations
compensation area fails to meet the specified success criteria      maintenance of erosion and sediment controls; surface water
by the final monitoring year, or if the wetland or stream           discharges from the site; condition of adjacent nonimpact
compensation site area has not met the stated restoration           surface waters; flagged nonimpact surface waters;
goals, reasons for this failure shall be determined and a           construction access and staging areas; filling, excavation, and
corrective action plan, including proposed actions, a schedule,     dredging activities; culvert installation; dredge disposal; and
and a monitoring plan, shall be submitted with the final year       site stabilization, grading, and associated restoration activities.
monitoring report for DEQ approval. Corrective action shall be      With the exception of the preconstruction photographs,
implemented by the permittee in accordance with the                 photographs at an individual impact site shall not be required
approved schedule. Annual monitoring shall be required for          until construction activities are initiated at that site. With the
each consecutive year to continue until two sequential, annual      exception of the post-construction photographs, photographs
reports indicate that all criteria have been successfully           at an individual impact site shall not be required once the site
satisfied and the site has met the overall restoration goals        is stabilized following completion of construction at that site.
(i.e., e.g., that corrective actions were successful). The
reasons for this failure shall be determined and a corrective       3. Each photograph shall be labeled to include the following
action plan (including proposed actions, a schedule, and a          information: permit number, impact area and photo station
monitoring plan) shall be submitted with the monitoring report      number, date and time of the photograph, name of the person
to DEQ for approval and implemented by the permittee in             taking the photograph, photograph orientation, and
accordance with the approved schedule.                              photograph subject description.

22. 19. The surveyed wetland boundary for the wetlands              4. Monitoring of water quality parameters shall be conducted
compensation site shall be based on the results of the              during permanent relocation of perennial streams through new
hydrology, soils, and vegetation monitoring data and shall be       channels in the manner noted below. The permittee shall
shown on the site plan. Calculation of total wetland acreage        report violations of water quality standards to DEQ in
shall be based on that boundary at the end of the monitoring        accordance with the procedures in Part II E. Corrective
cycle. Data shall be submitted by December 31 of the final          measures and additional monitoring may be required if water
monitoring year.                                                    quality standards are not met. Reporting shall not be required
                                                                    if water quality standards are not violated.
23. 20. Herbicides or algicides shall not be used in or
immediately adjacent to the wetlands or stream compensation         a. A sampling station shall be located upstream and
site or sites without prior authorization by the board. All         immediately downstream of the relocated channel.
vegetation removal shall be done by manual means, unless            b. Temperature, pH and dissolved oxygen (D.O.)
authorized by DEQ in advance.                                       measurements shall be taken every 30 minutes for at least
B. Impact site construction monitoring.                             two hours at each station prior to opening the new channels
                                                                    and immediately before opening new channels.
1. Construction activities authorized by this permit that are
within impact areas shall be monitored and documented. The          c. Temperature, pH and D.O. readings shall be taken after
monitoring shall document the preexisting conditions, activities    opening the channels and every 30 minutes for at least three
during construction, and post-construction conditions.              hours at each station.
Monitoring shall consist of one of the following options:           B. C. Wetland compensation site monitoring.
a. Photographs shall be taken during construction at the end        1. An as-built ground survey, or an aerial survey provided by a
of the first, second, and third months after commencing             firm specializing in aerial surveys, shall be conducted for the
construction, and then every six months thereafter for the          entire compensation site or sites including invert elevations for
remainder of the construction project. Photos are not required      all water elevation control structures and spot elevations
during periods of no activity within impact areas.                  throughout the site or sites. Aerial surveys shall include the
b. An ortho-rectified photograph shall be taken by a firm           variation from actual ground conditions, such as +/- 0.2 feet.
specializing in ortho-rectified photography prior to                Either type of survey shall be certified by a licensed surveyor
construction, and then annually thereafter, until all impacts are   or by a registered professional engineer to conform to the
taken. Photos shall clearly show the delineated surface waters      design plans. The survey shall be submitted within 60 days of
and authorized impact areas.                                        completing compensation site construction. Any Changes or
                                                                    deviations in the as-built survey or aerial survey shall be
c. In lieu of photographs, and with prior approval from DEQ,        shown on the survey and explained in writing.
the permittee may submit a written narrative that summarizes
site construction activities in impact areas. The narrative shall   2. Photographs shall be taken at the compensation site or
be submitted at the end of the first, second, and third months      sites from the permanent markers identified in the final
after commencing construction, and then every six months            compensation plan, and established to ensure that the same
thereafter, for the remainder of the construction activities.       locations and view directions at the site or sites are monitored
Narratives are not required during periods of no activity within    in each monitoring period. These photographs shall be taken
the impact areas.                                                   after the initial planting and at a time specified in the final
                                                                    compensation plan during every monitoring year.
2. As part of construction monitoring, photographs taken at the
photo stations or the narrative shall document site activities      3. Compensation site monitoring shall begin on day one of the
and conditions, which may include installation and                  first complete growing season (monitoring year 1) after

Volume 22, Issue 9                                                                                         Monday, January 9, 2006

                                                                1305
Proposed Regulations
wetland compensation site construction activities, including       the name of the person taking the photograph, and a brief
planting, have been completed. Monitoring shall be required        description of the photograph subject. This information shall
for monitoring years 1, 2, 3, and 5, unless otherwise approved     be provided as a separate attachment to each photograph, if
by DEQ. In all cases if all success criteria have not been met     necessary. Photographs taken after the initial planting shall be
in the final monitoring year, then monitoring shall be required    included in the first monitoring report after planting is
for each consecutive year until two annual sequential reports      complete;
indicate that all criteria have been successfully satisfied.
                                                                   h. Discussion of wildlife or signs of wildlife observed at the
4. The establishment of wetland hydrology shall be measured        compensation site;
during the growing season, with the location and number of
monitoring wells, and frequency of monitoring for each site,       i. Comparison of site conditions from the previous monitoring
set forth in the final monitoring plan. All Hydrology monitoring   year and reference site, if applicable;
well data shall be accompanied by precipitation data, including    j. Discussion of corrective measures or maintenance activities
rainfall amounts either from on site or from the closest           to control undesirable species, to repair any damaged water
weather station. Once the wetland hydrology success criteria       control device, or to replace any damaged planted vegetation;
have been satisfied for a particular monitoring year,              and
monitoring may be discontinued for the remainder of that
monitoring year following DEQ approval. After a period of          k. Corrective action plan, which includes proposed actions, a
three monitoring years, the permittee may request that             schedule, and monitoring plan.
hydrology monitoring be discontinued, providing that adequate      C. D. Stream compensation, restoration and monitoring.
hydrology has been established and maintained. Hydrology
monitoring shall not be discontinued without written approval      1. Any Riparian buffer restoration activities shall be detailed in
from DEQ.                                                          the final compensation plan and shall include, as appropriate,
                                                                   the planting of a variety of native species currently growing in
5. The presence of hydric soils or soils under hydric conditions   the site area, including appropriate seed mixtures and woody
shall be evaluated in accordance with the final compensation       species that are bare root, balled, or burlapped. A minimum
plan.                                                              buffer width of 50 feet, measured from the top of the stream
6. The establishment of wetland vegetation shall be in             bank at bankfull elevation landward on both sides of the
accordance with the final compensation plan. Monitoring shall      stream, shall be required where practical.
take place in August, September, or October during the             2. The installation of root wads, vanes, and other instream
growing season of each monitoring year, unless otherwise           structures, shaping of the stream banks, and channel
authorized in the monitoring plan:                                 relocation shall be completed in the dry whenever practicable.
7. The presence of undesirable plant species shall be              3. Livestock access to the stream and designated riparian
documented.                                                        buffer shall be limited to the greatest extent practicable.
8. All wetland compensation monitoring reports shall be            4. Stream channel restoration activities shall be conducted in
submitted by December 31 of the monitoring year. The reports       the dry or during low flow conditions. When site conditions
shall include, as applicable, the following: in accordance with    prohibit access from the streambank, heavy equipment shall
9 VAC 25-690-100 Part II E 6.                                      be authorized for use within the stream channel.
a. General description of the site including a site location map   5. Photographs shall be taken at the compensation site from
identifying photo stations, vegetative and soil monitoring         the vicinity of the permanent photo stations identified in the
stations, monitoring wells, and wetland zones;                     final compensation plan. The photograph orientation shall
b. Summary of activities completed during the monitoring           remain constant during all monitoring events. At a minimum,
year;                                                              photographs shall be taken from the center of the stream,
                                                                   facing downstream, with a sufficient number of photographs to
c. Description of monitoring methods;                              view the entire length of the restoration site. Photographs shall
d. Analysis of all hydrology information, including monitoring     document the completed restoration conditions. Photographs
well data, precipitation data, and gauging data from streams       shall be taken prior to site activities, during instream and
or other open water areas, as set forth in the final               riparian compensation construction activities, within one week
compensation plan;                                                 of completion of activities, and during at least one day of each
                                                                   monitoring year to depict restored conditions.
e. Evaluation of hydric soils or soils under hydric conditions,
as appropriate;                                                    6. An as-built ground survey, or an aerial survey provided by a
                                                                   firm specializing in aerial surveys, shall be conducted for the
f. Analysis of all vegetative community information, including     entire compensation site or sites. Aerial surveys shall include
woody and herbaceous species, both planted and volunteers,         the variation from actual ground conditions, such as +/- 0.2
as set forth in the final compensation plan;                       feet. The survey shall be certified by the licensed surveyor or
                                                                   by a registered, professional engineer to conform to the
g. Photographs labeled with the permit number, the name of         design plans. The survey shall be submitted within 60 days of
the compensation site, the photo station number, the               completing compensation site construction. Any Changes or
photograph orientation, the date and time of the photograph,       deviations from the final compensation plans in the as-built

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                                                                                             Proposed Regulations
survey or aerial survey shall be shown on the survey and             a. Photographs shall be taken during construction at the end
explained in writing.                                                of the first, second, and third months of construction, and then
                                                                     semi-annually for the remainder of the construction project,
7. Compensation site monitoring shall begin on day one of the        except during periods of no activity within impact areas;
first complete growing season (monitoring year 1) after stream
compensation site construction activities, including planting,       b. An ortho-rectified photograph shall be taken by a firm
have been completed. Monitoring shall be required for                specializing in ortho-rectified photography prior to
monitoring years 1 and 2, unless otherwise determined by             construction, and annually thereafter until all impacts are
DEQ. In all cases, if all success criteria have not been met in      taken, and shall clearly show the delineated surface waters
the final monitoring year, then monitoring shall be required for     and authorized impact areas; or
each consecutive year until two annual sequential reports
indicate that all criteria have been successfully satisfied.         c. In lieu of photographs, and with prior approval from DEQ,
                                                                     the permittee may submit a written narrative that summarizes
8. All stream compensation monitoring reports shall be               site construction activities in impact areas. The narrative shall
submitted by December 31 of the monitoring year. The reports         be submitted at the end of the first, second, and third months
shall include, as applicable, the following: in accordance with      of construction in impact areas, and then semi-annually for the
9 VAC 25-690-100 Part II E 6.                                        remainder of the construction activities in impact areas, except
                                                                     during periods of no activity within the impact areas.
a. General description of the site including a site location map
identifying photo stations and monitoring stations.                  2. As part of construction monitoring, photographs taken at the
                                                                     photo stations or the narrative shall document site activities
b. Summary of activities completed during the monitoring             and conditions, which may include installation and
year.                                                                maintenance of erosion and sediment controls; condition of
c. Description of monitoring methods.                                adjacent nonimpact surface waters; flagged nonimpact
                                                                     surface waters; construction access and staging areas; filling,
d. An evaluation and discussion of the monitoring results in         excavation, and dredging activities; culvert installation; dredge
relation to the success criteria and overall goals of                disposal; and site stabilization, grading, and associated
compensation.                                                        restoration activities. With the exception of the preconstruction
e. Photographs shall be labeled with the permit number, the          photographs, photographs at an individual impact site shall
name of the compensation site, the photo station number, the         not be required until construction activities are initiated at that
photograph orientation, the date and time of the photograph,         site. With the exception of the post-construction photographs,
the name of the person taking the photograph, and a brief            photographs at an individual impact site shall not be required
description of the photograph subject. Photographs taken prior       once the site is stabilized following completion of construction
to compensation site construction activities, during instream        at that site.
and riparian restoration activities, and within one week of          3. Each photograph shall be labeled to include the following
completion of activities shall be included in the first monitoring   information: permit number, impact area and photo station
report.                                                              number, date and time of the photograph, name of the person
f. A discussion of alterations, maintenance, or major storm          taking the photograph, photograph orientation, and
events resulting in significant change in stream profile or cross    photograph subject description.
section, and corrective actions conducted at the stream              4. Monitoring of water quality parameters shall be conducted
compensation site.                                                   during permanent relocation of perennial streams through new
g. Documentation of undesirable plant species and summary            channels in the following manner:
of abatement and control measures.                                   a. A sampling station shall be located upstream and
h. A summary of wildlife or signs of wildlife observed at the        immediately downstream of the relocated channel;
compensation site.                                                   b. Temperature, pH and dissolved oxygen (D.O.)
i. Comparison of site conditions from the previous monitoring        measurements shall be taken every 30 minutes for at least
year and reference site, and as-built survey, if applicable.         two hours at each station prior to opening the new channels
                                                                     and immediately before opening new channels.
j. A corrective action plan, which includes proposed actions, a
schedule and monitoring plan.                                        c. Temperature, pH and D.O. readings shall be taken after
                                                                     opening the channels and every 30 minutes for at least three
k. Any additional submittals that were approved by DEQ in the        hours at each station.
final compensation plan.
                                                                     The permittee shall report violations of water quality standards
D. Impact site construction monitoring.                              to DEQ in accordance with the procedures in Part II E.
                                                                     Corrective measures and additional monitoring may be
1. Construction activities authorized by this permit that are
                                                                     required if water quality standards are not met. Reporting shall
within impact areas shall be monitored and documented. The
                                                                     not be required if water quality standards are not violated.
monitoring shall document the preconstruction conditions,
activities  during   construction,    and    post-construction       E. Reporting.
conditions. Monitoring shall consist of one of the following
options:

Volume 22, Issue 9                                                                                          Monday, January 9, 2006

                                                                 1307
Proposed Regulations
1. Written communications required by this VWP general                shall include a projected        schedule    of   activities   and
permit shall be submitted to the appropriate DEQ office. The          construction completion.
VWP general permit authorization number shall be included
on all correspondence.                                                6. All compensation monitoring reports shall be submitted
                                                                      annually by December 31, with the exception of the last year
2. DEQ shall be notified in writing at least 10 days prior to the     of authorization, in which case the report shall be submitted at
start of construction activities at the first permitted site          least 60 days prior to expiration of authorization under the
authorized by this VWP general permit authorization so that           general permit. Any alterations and maintenance conducted
inspections of the project can be planned, if deemed                  on the compensation sites shall be reported. Undesirable
necessary by DEQ. The notification shall include a projected          plant species occurrences and control of these occurrences
schedule for initiation and completion of work at each                shall also be reported to DEQ.
permitted impact area.
                                                                      a. All wetland compensation monitoring reports shall include,
3. Construction monitoring reports shall be submitted to DEQ          as applicable, the following:
not later than the 10th day of the month following the month in
which the monitoring event specified in Part II D takes place,        (1) General description of the site including a site location map
unless otherwise specified below. The reports shall include           identifying photo stations, vegetative and soil monitoring
the following, as appropriate:                                        stations, monitoring wells, and wetland zones.

a. For each permitted impact area, a written narrative stating        (2) Summary of activities completed during the monitoring
whether work was performed during the monitoring period,              year, including alterations or maintenance conducted at the
and if work was performed, a description of the work                  site.
performed, when the work was initiated, and the expected              (3) Description of monitoring methods.
date of completion.
                                                                      (4) Analysis of all hydrology information, including monitoring
b. Properly Photographs labeled photographs (to include with          well data, precipitation data, and gauging data from streams
the permit number, the photo station number, the photo                or other open water areas, as set forth in the final
orientation, the date and time of the photo, name of the              compensation plan.
person taking the photograph, and a brief description and
VWP permit number) showing representative of the                      (5) Evaluation of hydric soils or soils under hydric conditions,
construction activities (including, but not limited to, flagging      as appropriate.
nonimpact wetland areas, site grading and excavation,                 (6) Analysis of all vegetative community information, including
installation and maintenance of erosion and sediment                  woody and herbaceous species, both planted and volunteers,
controls, culvert installation, bridge and ramp construction,         as set forth in the final compensation plan.
dredging, dredge disposal, etc.). The post-construction
photographs shall be submitted within 30 days of documenting          (7) Photographs labeled with the permit number, the name of
post-construction conditions. The first construction monitoring       the compensation site, the photo station number, the
report shall include the photographs taken at each impact site        photograph orientation, the date and time of the photograph,
prior to initiation of construction in any a permitted impact         the name of the person taking the photograph, and a brief
area. Written notification and photographs demonstrating that         description of the photograph subject. This information shall
all temporarily disturbed wetland and stream areas have been          be provided as a separate attachment to each photograph, if
restored in compliance with the permit conditions shall be            necessary. Photographs taken after the initial planting shall be
submitted within 30 days of restoration. The post-construction        included in the first monitoring report after planting is
photographs shall be submitted within 30 days of documenting          complete.
post-construction conditions.
                                                                      (8) Discussion of wildlife or signs of wildlife observed at the
c. Summary of activities conducted to comply with the permit          compensation site.
conditions.
                                                                      (9) Comparison of site conditions from the previous monitoring
d. Summary of permit noncompliance events or problems                 year and reference site.
encountered, subsequent notifications, and corrective actions.
                                                                      (10) Discussion of corrective measures or maintenance
e. Summary of anticipated work to be completed during the             activities to control undesirable species, to repair damaged
next monitoring period, and an estimated date of construction         water control devices, or to replace damaged planted
completion at all impact areas.                                       vegetation.
f. Labeled site map depicting all impact areas and photo              (11) Corrective action plan, which includes proposed actions,
stations.                                                             a schedule, and monitoring plan.
4. DEQ shall be notified in writing within 30 days following the      b. All stream compensation monitoring reports shall include,
completion of all activities in all permitted impact areas            as applicable, the following:
authorized under this permit.
                                                                      (1) General description of the site including a site location map
5. DEQ shall be notified in writing at least 10 days prior to the     identifying photo stations and monitoring stations.
initiation of activities at the compensation site. The notification


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                                                                  1308
                                                                                               Proposed Regulations
(2) Summary of activities completed during the monitoring               best of my knowledge and belief, true, accurate, and
year, including alterations or maintenance conducted at the             complete. I am aware that there are significant penalties for
site.                                                                   submitting false information, including the possibility of fine
                                                                        and imprisonment for knowing violation."
(3) Description of monitoring methods.
                                                                           Part III. Conditions Applicable to All VWP General Permits
(4) An evaluation and discussion of the monitoring results in
relation to the success criteria and overall goals of                   A. Duty to comply. The permittee shall comply with all
compensation.                                                           conditions of the VWP general permit. Nothing in this VWP
                                                                        general permit shall be construed to relieve the permittee of
(5) Photographs shall be labeled with the permit number, the            the duty to comply with all applicable federal and state
name of the compensation site, the photo station number, the            statutes, regulations, and toxic standards and prohibitions.
photograph orientation, the date and time of the photograph,            Any VWP general permit noncompliance is a violation of the
the name of the person taking the photograph, and a brief               Clean Water Act and State Water Control Law, and is grounds
description of the photograph subject. Photographs taken prior          for enforcement action, VWP general permit authorization
to compensation site construction activities, during instream           termination for cause, VWP general permit authorization
and riparian restoration activities, and within one week of             revocation, or denial of a continuation of coverage request.
completion of activities shall be included in the first monitoring
report.                                                                 B. Duty to mitigate. The permittee shall take all reasonable
                                                                        steps to minimize or prevent any impacts in violation of the
(6) A discussion of alterations, maintenance, or major storm            VWP general permit which may have a reasonable likelihood
events resulting in significant change in stream profile or cross       of adversely affecting human health or the environment.
section, and corrective actions conducted at the stream
compensation site.                                                      C. Reopener. This VWP general permit authorization may be
                                                                        reopened to modify its conditions when the circumstances on
(7) Documentation of undesirable plant species and summary              which the previous VWP general permit authorization was
of abatement and control measures.                                      based have materially and substantially changed, or special
(8) A summary of wildlife or signs of wildlife observed at the          studies conducted by the board or the permittee show material
compensation site.                                                      and substantial change since the time the VWP general permit
                                                                        authorization was issued and thereby constitute cause for
(9) Comparison of site conditions from the previous monitoring          VWP general permit authorization revocation and reissuance.
year and reference site, and as-built survey, if applicable.
                                                                        D. Compliance with state and federal law. Compliance with
(10) A corrective action plan, which includes proposed                  this VWP general permit constitutes compliance with the VWP
actions, a schedule and monitoring plan.                                permit requirements of the State Water Control Law. Nothing
(11) Additional submittals that were approved by DEQ in the             in this VWP general permit shall be construed to preclude the
final compensation plan.                                                institution of any legal action under or relieve the permittee
                                                                        from any responsibilities, liabilities, or other penalties
7. The permittee shall notify DEQ in writing when unusual or            established pursuant to any other state law or regulation or
potentially complex conditions are encountered which require            under the authority preserved by § 510 of the Clean Water
debris removal or involve potentially toxic substance.                  Act.
Measures to remove the obstruction, material, or toxic
substance or to change the location of any a structure are              E. Property rights. The issuance of this VWP general permit
prohibited until approved by DEQ.                                       does not convey any property rights in either real or personal
                                                                        property, or any exclusive privileges, nor does it authorize any
8. The permittee shall report any fish kills or spills of oil or fuel   injury to private property or any invasion of personal property
immediately upon discovery. If spills or fish kills occur between       rights, nor any infringement of federal, state or local laws or
the hours of 8:15 a.m. to 5 p.m., Monday through Friday, the            regulations.
appropriate DEQ regional office shall be notified; otherwise,
the Department of Emergency Management shall be notified                F. Severability. The provisions of this VWP general permit
at 1-800-468-8892.                                                      authorization are severable.

9. Violations of state water quality standards shall be reported        G. Right of entry. The permittee shall allow the board or its
within 24 hours to the appropriate DEQ office.                          agents, upon the presentation of credentials, at reasonable
                                                                        times and under reasonable circumstances: 1. to enter the
10. All Submittals required by this VWP general permit shall            permittee's property, public or private, and have access to,
contain the following signed certification statement:                   inspect and copy any records that must be kept as part of the
                                                                        VWP general permit conditions; 2. to inspect any facilities,
"I certify under penalty of law that this document and all
                                                                        operations or practices (including monitoring and control
attachments were prepared under my direction or supervision
                                                                        equipment) regulated or required under the VWP general
in accordance with a system designed to assure that qualified
                                                                        permit; and 3. to sample or monitor any substance, parameter
personnel properly gather and evaluate the information
                                                                        or activity for the purpose of assuring compliance with the
submitted. Based on my inquiry of the person or persons who
                                                                        conditions of the VWP general permit or as otherwise
manage the system, or those persons directly responsible for
                                                                        authorized by law.
gathering the information, the information submitted is, to the

Volume 22, Issue 9                                                                                           Monday, January 9, 2006

                                                                    1309
Proposed Regulations
For the purpose of this section, the time for inspection shall be    4. There is a change in the mitigation bank at which credits
deemed reasonable during regular business hours. Nothing             are purchased or used, provided that the same amount of
contained herein shall make an inspection time unreasonable          credits are purchased or used and all criteria for use are met,
during an emergency.                                                 as detailed in 9 VAC 25-210-115; or (v) F.
H. Transferability of VWP general permit authorization. This         5. Typographical errors need to be corrected. A notice of
VWP general permit authorization may be transferred to               planned change is not required if the project results in
another person by a permittee if: when all of the criteria listed    additional temporary impacts to surface waters, provided that
below are met. On the date of the VWP general permit                 DEQ is notified in writing, the additional temporary impacts are
authorization transfer, the ransferred VWP general permit            restored to preexisting conditions in accordance with Part I C
authorization shall be as fully effective as if it had been issued   11 of this general permit, and the additional temporary
directly to the new permittee.                                       impacts do not exceed the general permit threshold for use.
                                                                     The permittee shall notify the board in advance of the planned
1. The current permittee notifies the board of the transfer of       change, and the planned change request will be reviewed
the title to the facility or property;.                              according to all provisions of this regulation.
2. The notice to the board includes a written agreement              J. VWP general permit authorization termination for cause.
between the existing current and new permittee permittees            This VWP general permit authorization is subject to
containing a specific date of transfer of VWP general permit         termination for cause by the board after public notice and
authorization responsibility, coverage and liability to the new      opportunity for a hearing. Reasons for termination for cause
permittee, or that the existing current permittee will retain such   are as follows:
responsibility, coverage or liability, including liability for
compliance with the requirements of any enforcement                  1. Noncompliance by the permittee with any condition of the
activities related to the permitted activity; and.                   VWP general permit authorization;
3. The board does not notify the existing current and new            2. The permittee's failure in the application or during the VWP
permittee permittees of its intent to modify or revoke and           general permit authorization issuance process to disclose fully
reissue the VWP general permit authorization within 15 days.         all relevant facts or the permittee's misrepresentation of any
                                                                     relevant facts at any time;
On the date of the VWP general permit authorization transfer,
the transferred VWP general permit authorization shall be as         3. The permittee's violation of a special or judicial order; and
fully effective as if it had been issued directly to the new
permittee.                                                           4. A determination that the permitted activity endangers
                                                                     human health or the environment and can be regulated to
I. Notice of planned change. Authorization under the VWP             acceptable levels by a VWP general permit authorization
general permit may be modified subsequent to issuance if: (i)        planned change or termination for cause.
the in one or more of the cases listed below. A notice of
planned change is not required if the project results in             K. VWP general permit authorization termination by consent.
additional temporary impacts to surface waters, provided that        This VWP general permit authorization may be terminated by
DEQ is notified in writing, the additional temporary impacts are     consent when all permitted activities requiring notification
restored to preexisting conditions in accordance with Part I C       under 9 VAC 25-690-50 A 1 and all compensatory mitigation
11 of this general permit, and the additional temporary              have been completed, or when the authorized impacts will not
impacts do not exceed the general permit threshold for use.          occur, or when a planned change occurs that involves
The permittee shall notify the board in advance of the planned       substituting a specified, approved mitigation bank with another
change, and the planned change request will be reviewed              specified, approved mitigation bank. The permittee shall
according to all provisions of this regulation.                      submit a request for termination by consent within 30 days of
                                                                     project completion or project cancellation. When submitted for
1. The permittee determines that additional permanent                project completion, the termination by consent shall constitute
wetland, open water, or stream impacts are necessary,                a notice of completion in accordance with 9 VAC 25-210-130.
provided that the additional impacts are associated with the         The director may accept this termination of authorization on
previously authorized activities in authorized locations within      behalf of the board. The request for termination by consent
the same phase of development, the cumulative increase in            shall contain the following information:
acreage of wetland or open water impacts is not greater than
1/4 acre and, the cumulative increase in stream bed impacts          1. Name, mailing address and telephone number of the
is not greater than 50 100 linear feet, and provided that the        permittee;
additional impacts are fully compensated; (ii).                      2. Name and location of the activity;
2. The project results in less wetland or stream impacts, in         3. The VWP permit authorization number; and
which case, compensation requirements may be modified in
relation to the adjusted impacts at the request of the               4. One of the following certifications:
permittee, provided that the adjusted compensation meets the         a. For project completion:
initial authorization compensation goals; (iii).
                                                                     "I certify under penalty of law that all activities and any
3. There is a change in the project plans that does not result in    required compensatory mitigation authorized by a VWP
a change in project impacts; (iv).                                   general permit have been completed. I understand that by

                                                   Virginia Register of Regulations

                                                                 1310
                                                                                          Proposed Regulations
submitting this notice of termination I am no longer authorized    with the VWP permit authorization. The permittee shall also
to perform activities in surface waters in accordance with the     furnish to the board, upon request, copies of records required
VWP general permit, and that performing activities in surface      to be kept by the permittee.
waters is unlawful where the activity is not authorized by a
VWP permit. I also understand that the submittal of this notice    2. Plans, maps, conceptual reports and other relevant
does not release me from liability for any violations of this      information shall be submitted as required by the board prior
VWP general permit authorization."                                 to commencing construction.

b. For project cancellation:                                       P. Monitoring and records requirements.

"I certify under penalty of law that the activities and any        1. Monitoring of parameters, other than pollutants, shall be
required compensatory mitigation authorized by this VWP            conducted according to approved analytical methods as
general permit will not occur. I understand that by submitting     specified in the VWP permit. Analysis of pollutants will be
this notice of termination I am no longer authorized to perform    conducted according to 40 CFR Part 136 (2000), Guidelines
activities in surface waters in accordance with the VWP            Establishing Test Procedures for the Analysis of Pollutants.
general permit, and that performing activities in surface waters   2. Samples and measurements taken for the purpose of
is unlawful where the activity is not authorized by a VWP          monitoring shall be representative of the monitored activity.
permit. I also understand that the submittal of this notice does
not release me from liability for any violations of this VWP       3. The permittee shall retain records of all monitoring
general permit authorization, nor does it allow me to resume       information, including all calibration and maintenance records
the     permitted    activities  without    reapplication    and   and all original strip chart or electronic recordings for
reauthorization."                                                  continuous monitoring instrumentation, copies of all reports
                                                                   required by the VWP permit, and records of all data used to
c. For events beyond permittee control, the permittee shall        complete the application for the VWP permit, for a period of at
provide a detailed explanation of the events, to be approved       least three years from the date of the expiration of a granted
by DEQ, and the following certification statement:                 VWP permit. This period may be extended by request of the
"I certify under penalty of law that all the activities or the     board at any time.
required compensatory mitigation authorized by a VWP               4. Records of monitoring information shall include, as
general permit have changed as the result of events beyond         appropriate:
my control (see attached). I understand that by submitting this
notice of termination I am no longer authorized to perform         a. The date, exact place and time of sampling or
activities in surface waters in accordance with the VWP            measurements;
general permit, and that performing activities in surface waters   b. The name of the individuals who performed the sampling or
is unlawful where the activity is not authorized by a VWP          measurements;
permit. I also understand that the submittal of this notice does
not release me from liability for any violations of this VWP       c. The date and time the analyses were performed;
general permit authorization, nor does it allow me to resume
                                                                   d. The name of the individuals who performed the analyses;
the     permitted   activities   without    reapplication    and
reauthorization."                                                  e. The analytical techniques or methods supporting the
                                                                   information such as observations, readings, calculations and
L. Civil and criminal liability. Nothing in this VWP general
                                                                   bench data used;
permit shall be construed to relieve the permittee from civil
and criminal penalties for noncompliance.                          f. The results of such analyses; and
M. Oil and hazardous substance liability. Nothing in this VWP      g. Chain of custody documentation.
general permit shall be construed to preclude the institution of
legal action or relieve the permittee from any responsibilities,   Q. Unauthorized discharge of pollutants. Except in compliance
liabilities, or penalties to which the permittee is or may be      with this VWP general permit, it shall be unlawful for the
subject under § 311 of the Clean Water Act or §§ 62.1-             permittee to:
44.34:14 through 62.1-44.34:23 of the State Water Control          1. Discharge into state waters sewage, industrial wastes,
Law.                                                               other wastes, or any noxious or deleterious substances;
N. Duty to cease or confine activity. It shall not be a defense    2. Excavate in a wetland;
for a permittee in an enforcement action that it would have
been necessary to halt or reduce the activity for which a VWP      3. Otherwise alter the physical, chemical, or biological
permit has been granted in order to maintain compliance with       properties of state waters and make them detrimental to the
the conditions of the VWP permit.                                  public health, to animal or aquatic life, to the uses of such
                                                                   waters for domestic or industrial consumption, for recreation,
O. Duty to provide information.                                    or for other uses; or
1. The permittee shall furnish to the board any information        4. On and after October 1, 2001, conduct the following
which the board may request to determine whether cause             activities in a wetland:
exists for modifying, revoking, and reissuing and terminating
the VWP permit authorization, or to determine compliance

Volume 22, Issue 9                                                                                        Monday, January 9, 2006

                                                               1311
Proposed Regulations
a. New activities to cause draining that significantly alters or          projects and must perform certain functions to assure that all
degrades existing wetland acreage or functions;                           asbestos fiber is removed before a project is completed. The
                                                                          amendments focus on assuring that property owners are
b. Filling or dumping;                                                    aware of the requirement for the presence of a project monitor
c. Permanent flooding or impounding; or                                   on asbestos projects and appropriate modifications to duties,
                                                                          responsibilities and functions of project monitors.
d. New activities that cause significant alteration                  or
degradation of existing wetland acreage or functions.                     Also, the proposed amendments empower the board to deny
                                                                          license and approval as well as to take disciplinary action
     DOCUMENTS INCORPORATED BY REFERENCE                                  against those acting as or being an ostensible licensee for
Virginia Erosion and Sediment Control Handbook, Third                     undisclosed persons who do or will control or direct, directly or
Edition, 1992, Department of Conservation and Recreation.                 indirectly, the operations of the licensed or approved entity.
                                                                          The board will be able to deny application to or take
Virginia Stormwater Management Handbook, First Edition,                   disciplinary action against individuals who have been
1999, Department of Conservation and Recreation.                          disciplined and have found others to become licensed on their
         VA.R. Doc. No. R05-289; Filed Dec. 16, 2005, 9:43 a.m.           behalf.

      ––––––––––––––––––                                                  Amending the requirements for recordkeeping by accredited
                                                                          training programs and requiring certain records to be
                                                                          submitted electronically will enable faster data processing and
         TITLE 18. PROFESSIONAL AND                                       license issuance by the board. The language allows manual
                                                                          reporting for those entities that lack the necessary software
          OCCUPATIONAL LICENSING                                          and hardware.
                                                                          The intent of reorganizing the regulations is to present the
   VIRGINIA BOARD FOR ASBESTOS, LEAD, AND                                 regulatory requirements in a format that is easier to
              HOME INSPECTORS                                             understand and to make them more consistent with other
                                                                          DPOR board regulations. This will further the efficient and
Title of Regulation:  18 VAC 15-20. Virginia Asbestos                     economical performance of important government functions.
Licensing Regulations (amending 18 VAC 15-20-20,
18 VAC 15-20-60, 18 VAC 15-20-70, 18 VAC 15-20-400                        Substance: Licensed asbestos project monitors are required
through 18 VAC 15-20-451, 18 VAC 15-20-453, 18 VAC 15-                    on all asbestos projects in buildings that are occupied or
20-456, 18 VAC 15-20-470; adding 18 VAC 15-20-31,                         intended to be occupied upon completion of an asbestos
18 VAC 15-20-32, 18 VAC 15-20-33, 18 VAC 15-20-34,                        project exceeding 260 linear feet or 35 cubic feet of asbestos-
18 VAC 15-20-51, 18 VAC 15-20-52, 18 VAC 15-20-53,                        containing material or whenever the building or property
18 VAC 15-20-461, 18 VAC 15-20-462, 18 VAC 15-20-463,                     owner deems it necessary to monitor asbestos projects.
18 VAC 15-20-464; repealing 18 VAC 15-20-30, 18 VAC 15-                   Asbestos is a naturally occurring fiber with insulation and fire
20-40, 18 VAC 15-20-50, 18 VAC 15-20-80 through 18 VAC                    retardant characteristics that has been used for many years in
15-20-150, 18 VAC 15-20-250 through 18 VAC 15-20-361,                     building construction. Inhaling the fibers may cause a very
18 VAC 15-20-459.6 through 18 VAC 15-20-460).                             serious form of cancer that can result in disability and death.
                                                                          For this reason, the project monitor’s role in assuring that all
Statutory Authority: §§ 54.1-201 and 54.1-501 of the Code of              aspects of an asbestos abatement project are properly
Virginia.                                                                 executed and that all asbestos fiber has been removed and
Public Hearing Date: March 30, 2006 - 11 a.m.                             safely disposed of before a project is considered to be
  Public comments may be submitted until April 14, 2006.                  complete is vital to the health of those working on the
    (See Calendar of Events section                                       asbestos abatement project, those in the nearby vicinity and
    for additional information)                                           those who may occupy the premises in the future. The
                                                                          amendments will assure that building owners are aware of the
Agency Contact: David E. Dick, Executive Director, Virginia               requirement for project monitors on asbestos abatement
Board for Asbestos, Lead, and Home Inspectors, 3600 West                  projects and will modify the functions to be performed by
Broad Street, Richmond, VA 23230-4917, telephone (804)                    project monitors to assure public protection from the hazards
367-2648,      FAX      (804)  367-6128,     or     e-mail                of asbestos fibers.
alhi@dpor.virginia.gov.
                                                                          The board has, from time to time, taken disciplinary action
Basis: The Board for Asbestos, Lead, and Home Inspectors is               against certain firms and individuals or denied licensure or
empowered to promulgate regulations under the legal                       approval to those firms and individuals under its regulatory
authority found in § 54.1-201 of the Code of Virginia, which              authority and its affirmative obligation to protect the public.
empowers regulatory boards generally, and § 54.1-501 of the               The board is concerned that those so disciplined or denied
Code of Virginia, which empowers the Board for Asbestos,                  may find others who have not been so disciplined or denied to
Lead, and Home Inspectors specifically.                                   apply for and become licensed or approved.               Those
Purpose: The intent of the proposed amendments is to                      disciplined or denied will then operate as the ostensible
assure that project monitors are used on asbestos abatement               licensee, or approved entity or individual, thus rendering the
projects. Project monitors are required on certain asbestos               board’s regulatory authority ineffective. The board’s proposed


                                                         Virginia Register of Regulations

                                                                      1312
                                                                                                    Proposed Regulations
amendments empower the board to deny the application of or              days after any change in address or name” as grounds for
take disciplinary action against anyone found to be an                  discipline, 3) require the asbestos contractor to obtain written
ostensible owner acting on the behalf of a disqualified                 acknowledgement from the building owner indicating that the
individual.                                                             asbestos contractor has provided notification that an asbestos
                                                                        project monitor is required on the asbestos project, 4) clarify
The keeping and submission to the board of certain records              that the asbestos project monitor must be on the job site each
by accredited training programs is the foundation of this               day that asbestos abatement activities are taking place, 5)
program’s protection to its regulants as well as to the public.         clarify that the asbestos training manager notify the board
Rapid and accurate reporting of information electronically will         when an accredited asbestos training program will begin on a
enable faster application processing. A provision is made for           date other than the start date specified in the original
those entities that do not have the software and hardware to            notification, and 6) require that notifications and training
report electronically.                                                  program participants lists be submitted electronically on forms
Issues: No disadvantages to the public or the Commonwealth              provided by the board.
have been identified.                                                   Estimated economic impact. Over the years, asbestos has
Amendments that hold the asbestos contractor accountable                been used in many ways. Pipe insulation, automotive brakes,
for notifying the building owner that a licensed project monitor        shingles, wallboard, and blown-in insulation are just a few of
is required on asbestos project and amendments that require             the products that once contained asbestos. Although the
the project monitor to be present on the job site each day              federal government suspended production of most asbestos
asbestos activities are being conducted will benefit the public         products in the early 1970s, installation of these products
by ensuring that project monitors are present on asbestos               continued through the late 1970s and even into the early
project that require monitoring and to assure that all asbestos         1980s. Currently, asbestos fibers are at times released during
fiber is removed before a project is completed.                         renovations of older buildings.1

The public is further protected by empowering the board to              According to the U.S. Center for Disease Control and
take disciplinary action against those acting as or being an            Prevention, Agency for Toxic Substances and Disease
ostensible licensee for undisclosed persons who do or will              Registry, "Significant exposure to any type of asbestos will
control or direct the operations of the licensed or approved            increase the risk of lung cancer, mesothelioma and
entity.                                                                 nonmalignant lung and pleural disorders, including asbestosis,
                                                                        pleural plaques, pleural thickening, and pleural effusions."2
The agency will benefit by requiring all training program               These regulations address the licensure of individuals and
notifications and rosters to be submitted in a uniform manner           entities who work with asbestos.
that will lead to streamlining the processing of applications
and will ultimately get licenses to applicants sooner.                  New grounds for disciplinary action. The board and the
                                                                        Department of Professional and Occupational Regulation
The agency’s Compliance and Investigations Division will                (department) have seen situations where firms or individuals
benefit from reorganizing the regulations by making the                 who having had their license revoked or license application
regulations more consistent with other DPOR board                       denied, have found others who have not been so disciplined
regulations. The public, government officials and the industry          or denied to apply for and become licensed. The individual
will benefit by reorganizing the regulations in a format that is        who had his license revoked or license application denied
easier to understand.                                                   then directs the operations of the licensee’s business. Since
Department of Planning and Budget's Economic Impact                     the license was presumably denied or revoked due to
Analysis: The Department of Planning and Budget (DPB) has               incompetence or dishonest or sloppy practice, then the
analyzed the economic impact of this proposed regulation in             situation where the disciplined individual can effectively
accordance with § 2.2-4007 H of the Administrative Process              operate as licensed despite the denial or revocation minimizes
Act and Executive Order Number 21 (02). Section 2.2-4007 H              the board and department’s ability to protect the public from
requires that such economic impact analyses include, but                the effects of incompetent or dishonest asbestos work.
need not be limited to, the projected number of businesses or           Consequently, the board proposes to add the following to the
other entities to whom the regulation would apply, the identity         list of grounds for disciplinary action: "acting as or being an
of any localities and types of businesses or other entities             ostensible licensee for undisclosed persons who do or will
particularly affected, the projected number of persons and              control or direct, directly or indirectly, the operations of the
employment positions to be affected, the projected costs to             licensee’s business." In practice, it may be difficult to prove
affected businesses or entities to implement or comply with             that a licensee is actually permitting someone else to control
the regulation, and the impact on the use and value of private          their business. Nevertheless, as long as the board does not
property. The analysis presented below represents DPB’s                 mistakenly discipline legitimate licensees, this proposed
best estimate of these economic impacts.                                amendment has the potential to produce a net benefit for the
Summary of the proposed regulation.                 The Board for       Commonwealth by reducing the likelihood that dishonest or
Asbestos, Lead, and Home Inspectors (board) proposes to: 1)
list “acting as or being an ostensible licensee for undisclosed
                                                                        1
persons who do or will control or direct, directly or indirectly,         Source: U.S. Center for Disease Control and Prevention, Agency for Toxic
the operations of the licensee’s business” as grounds for               Substances and Disease Registry
                                                                        2
                                                                          U.S. Center for Disease Control and Prevention, Agency for Toxic Substances
discipline, 2) list “failure to notify the board in writing within 30   and Disease Registry, October 10, 2003

Volume 22, Issue 9                                                                                                    Monday, January 9, 2006

                                                                    1313
Proposed Regulations
                                                                                            3
incompetent individuals can continue to practice and expose       facilitate communication.   The proposed clarification may
the public to unnecessary health and financial risks.             have some impact for those that misunderstood the intent of
                                                                  the current regulations and intend to comply with the daily
The board also proposes to add "failure to notify the board in    presence requirement now that the new language leaves no
writing within 30 days after any change in address or name"       room for different interpretations. Phone interviews with
as grounds for discipline. The board needs to keep track of       asbestos project monitors and asbestos project monitor
licensees’ identity and location in order to monitor their        training programs indicated that each additional day of
compliance with the regulations. The risk to public health of     asbestos project monitor work costs from $250 to $500.
incompetent or dishonest asbestos abatement work is
significant. The cost for licensees of keeping the board          Training manager to notify board. Under the current
informed is small since they can prepare and email                regulations, asbestos training providers must notify the board
notifications in a matter of minutes. Thus, the proposal to       no less than 48 hours prior to conducting an accredited
allow the board to enforce a requirement that will help enable    asbestos training program. The board and department use
it to monitor licensees’ compliance with the regulations will     this information to conduct occasional surprise inspections of
likely produce a net benefit.                                     training sessions to ensure that the training meets legal
                                                                  requirements. According to the department, these inspections
Notification of required asbestos project monitor. These          have at times found inadequate training.
regulations require that an asbestos monitor be employed for
projects performed in buildings that are occupied or intended     The board proposes to add what it considers clarifying
to be occupied upon completion of the asbestos project            language. The proposed regulations will specifically require
exceeding 260 linear feet or 160 square feet or 35 cubic feet     that the training manager notify the board when an accredited
of asbestos-containing material. The board proposes to            asbestos training program will begin on a date other than the
require     asbestos      contractors   to    obtain    written   start date listed in the original notification within the following
acknowledgement from the building owner indicating that the       specified timeframes. 1) For accredited asbestos training
asbestos contractor has provided notification that an asbestos    programs beginning prior to the start date provided to the
project monitor is required on the asbestos project.              board, an updated notification must be received by the board
                                                                  at least 48 hours before the new start date. 2) For accredited
This proposed change will likely provide a net benefit. In        asbestos training programs beginning after the start date
practice, some property owners may not be aware of the            provided to the board, an updated notification must be
requirement for asbestos monitors on projects exceeding the       received by the board at least 48 hours before the start date
minimum size. The property owner could be subject to              provided to the board. Also the training manager will be
lawsuits, and the quality of some asbestos abatement work         required to update the board of any change in location or
may be reduced if project monitors are not present. Improper      cancellation of accredited asbestos training programs at least
or inadequate asbestos abatement could put the public at risk     48 hours prior to the start date provided to the board. The
as described above. Thus, the proposed requirement for            proposed regulations do specify that the notification
asbestos contractors to obtain written acknowledgement from       requirements shall not apply to circumstances beyond the
the building owner indicating that the asbestos contractor has    control of the training provider. For example, the training
provided notification that an asbestos project monitor is         provider could postpone training with less than 48 hours
required on the asbestos project has clear benefits. The cost     notice due to sudden instructor illness or unexpected severe
of compliance for competent, honest contractors is small.         weather.
                                                                           4
One extra line with a signature at the time of contract signing
would suffice for compliance with the proposed requirement.       The board considers the proposed language to be
                                                                  clarifications of what is already required. As discussed below,
Daily presence of asbestos project monitor. The board             the board also proposes to require that notifications and
proposes to clarify that the asbestos project monitor "shall be   training program participant lists be submitted electronically on
on the job site each day that asbestos abatement activities are   forms provided by the board. Filling out and emailing the
being conducted …." The current regulations state that            board’s forms should typically take no longer than 10 minutes
project monitors must “maintain a daily log of all work           according to the department. Thus for those that may have
performed. The daily log shall include, but not be limited to,    interpreted the current regulations to not require notifications
inspection reports, air sampling data, type of work performed     in all the newly specified situations, the proposed
by the contractor, problems encountered and corrective action     requirements to inform the board of changes to the time or
taken.” According to the department, the board’s intent has       place of scheduled accredited asbestos training programs will
always been for the project monitor to be present everyday        produce some small costs.            Ensuring the board and
that asbestos abatement activities are taking place in order to   department’s knowledge of where and when asbestos training
conduct all the duties required for the daily log. The board      is taking place is beneficial in that department staff can make
and department have heard that some individuals have              surprise inspections to help ensure that asbestos training is
interpreted the current regulations to not necessarily require    adequate. Inadequate training can lead to incompetent
the daily presence of the project monitor when asbestos           asbestos abatement work, which can in turn increase risk to
abatement work was performed. The department is not aware         public health. Thus, the proposed notification requirements do
of whether or not this misapprehension has been widespread.
This industry does not have a trade group or association to
                                                                  3
                                                                      Source: Department of Professional and Occupational Regulation
                                                                  4
                                                                      Confirmed by the Department of Professional and Occupational Regulation

                                                Virginia Register of Regulations

                                                              1314
                                                                                                            Proposed Regulations
produce public benefit. There is insufficient data available to                   additional employment of asbestos project monitors. The
estimate by how much department inspections improve actual                        value of businesses offering asbestos project monitoring
training quality and by how much improved training leads to                       services will increase commensurately. Property owners who
less incompetent work. Therefore, the reduction in risk to                        otherwise would have been ignorant of the law concerning the
public health cannot be accurately measured. Nevertheless, it                     requirement of the daily presence of asbestos project monitors
seems likely that the benefits of keeping the board and                           will spend more on asbestos project monitoring services if
department well-informed of the time and place of training                        they wish to comply with the law. Doing so will likely reduce
exceed the small costs in training provider staff time to provide                 their risk of liability. So the value of the property owners’
change notifications via email.                                                   businesses may or may not decrease in total.
Format of communication. The board proposes to amend                              Small businesses: costs and other effects. The proposed
these regulations to state that "Notifications and training                       amendments do not produce large additional costs for small
program participant lists shall be submitted electronically in                    businesses that have understood the current regulations. The
the manner established by the board specifically to receive                       proposed requirement that asbestos contractors obtain written
this documentation using a sample form designed by and                            acknowledgement from the building owner indicating that the
available from the board. Any variation upon this procedure                       contractor has provided notification that an asbestos project
shall be approved by the board prior to submission."                              monitor is required on the asbestos project will produce a
According to the department, those without access to the                          small cost for asbestos contractors. The contractors can meet
necessary equipment to submit electronically will be permitted                    the proposed notification requirement by adding a line to the
to submit notifications and training program participant lists by                 contact stating that the contractor has notified the owner of the
alternative means. The proposed standard electronic method                        project monitor requirement. Or alternatively, the contractor
of submitting notifications and training program participant lists                could ask the owner to sign a separate piece of paper with the
will enable the department to process the information more                        appropriate language. The total cost would essentially be the
rapidly. The saved staff time can thus be used more                               time and dollar cost of typing and printing one sentence and
productively on other work.                                                       perhaps one piece of paper per contract.
Businesses and entities affected. The proposed regulations                        Small businesses: alternative method that minimizes adverse
affect the 150 licensed asbestos contractors, 36 accredited                       impact. The proposed regulations essentially do minimize the
asbestos training providers and 279 licensed asbestos                             adverse impact to small businesses given the goals of public
monitors in the Commonwealth, as well as owners of property                       safety.
with asbestos.5 Data are not available to determine what
portion of these licensees are associated with small                              Agency's Response to the Department of Planning and
businesses.                                                                       Budget's Economic Impact Analysis: The agency agrees with
                                                                                  the economic impact analysis.
Localities particularly affected. The proposed regulations
affect localities throughout Virginia.                                            Summary:

Projected impact on employment. Requiring that the asbestos                           The proposed amendments (i) require a project monitor on
contractor obtain written acknowledgement from the building                           the job site each day that asbestos abatement activities are
owner indicating that the asbestos contractor has provided                            being conducted; (ii) make the asbestos contractor
notification that an asbestos project monitor is required on the                      responsible for notifying the building owner that a project
asbestos project, and clarifying that the asbestos project                            monitor is required on the asbestos project and obtain
monitor must be on the job site each day that asbestos                                written acknowledgment of such notification from the
abatement activities are taking place may result in some                              building owner; (iii) empower the board to deny license and
additional employment of asbestos project monitors. The                               approval as well as to take disciplinary action against those
magnitude of the potential increase in employment of                                  "acting as or being an ostensible licensee for undisclosed
asbestos project monitors depends on the frequency that                               persons who do or will control or direct, directly or indirectly,
building owners are unaware of the requirements for project                           the operations of the licensee’s business"; (iv) modify the
monitors prior to notification by contractors, and the relative                       requirements for recordkeeping by accredited asbestos
proportion of those that are aware of the requirements that                           training providers and submission of records to the board to
believe that the current regulations do not require the daily                         outline specific procedures for accredited asbestos training
presence of project monitors. The greater the magnitude of                            providers when submitting course notifications and class
owners of buildings containing asbestos that are unaware of                           rosters, as well as listing specific information that these
the requirements and the greater the relative proportion that                         notifications and rosters must contain; and (v) reorganize
misunderstand the current requirement for daily presence, the                         the regulations to present the regulatory requirements in a
greater the potential increase in asbestos project monitor                            format that is easier to understand and to provide
employment.                                                                           consistency with other DPOR regulations.

Effects on the use and value of private property. As described                    18 VAC 15-20-20. Definitions.
above, the proposed amendments may result in some                                 The following words and terms, when used in this chapter,
                                                                                  shall have the following meanings, unless the context clearly
                                                                                  indicates otherwise:
5
  Numbers of licensed individuals and entities provided by the Department of
Professional and Occupational Regulation                                          "AAR" means Asbestos Analyst Registry.

Volume 22, Issue 9                                                                                                         Monday, January 9, 2006

                                                                               1315
Proposed Regulations
"AAT" means Asbestos Analyst Testing.                             siding material which when installed, encapsulated or
                                                                  removed does not become friable.
"Accredited asbestos training program" means a training
program that has been approved by the board to provide            "Asbestos project design" means any descriptive form written
training for individuals to engage in asbestos abatement,         as instructions or drafted as a plan describing the construction
conduct asbestos inspections, prepare management plans,           of an asbestos abatement area or site, response action or
prepare project designs or act as a project monitor.              work practices to be utilized on the asbestos abatement
                                                                  project.
"Accredited asbestos training provider" means a firm or
individual who has been approved by the board to offer an         "Asbestos project designer" means any person providing an
accredited asbestos training program.                             asbestos project design or specifications for an asbestos
                                                                  abatement project.
"ACM" means asbestos-containing material.
                                                                  "Asbestos Project Designer's License" means an authorization
"AHERA" means Asbestos Hazard Emergency Response Act,             issued by the board permitting a person to design an asbestos
40 CFR Part 763, Subpart E.                                       abatement project.
"AIHA" means American Industrial Hygiene Association.             "Asbestos project monitor" means any person hired by a
"Approval letter" means a written notice confirming the firm or   building owner, lessee or his agent to monitor, inspect,
individual applicant's licensure or accreditation by the board.   provide visual clearance or clearance monitoring of an
                                                                  asbestos abatement project.
"Asbestos" means the asbestiform varieties of actinolite,
amosite, anthophyllite, chrysotile, crocidolite, and tremolite.   "Asbestos Project Monitor's License" means an authorization
                                                                  issued by the board permitting a person to monitor an
"Asbestos Analytical Laboratory License" means an                 asbestos project, subject to board regulations.
authorization issued by the board to perform phase contrast,
polarized light, or transmission electron microscopy on           "Asbestos supervisor" means any person so designated by an
material known or suspected to contain asbestos.                  asbestos contractor who provides on-site supervision and
                                                                  direction to the workers engaged in asbestos projects.
"Asbestos-containing material" or "ACM" means any material
or product which contains more than 1.0% asbestos or such         "Asbestos Supervisor's License" means an authorization
percentage as established by EPA final rule.                      issued by the board permitting an individual to supervise and
                                                                  work on an asbestos project.
"Asbestos contractor" means any person who has met the
board's requirements and has been issued an asbestos              "Asbestos worker" means any person who engages in an
contractor's license by the board to enter into contracts to      asbestos abatement project.
perform asbestos projects.                                        "Asbestos Worker's License" means an authorization issued
"Asbestos Contractor's License" means an authorization            by the board permitting an individual to work on an asbestos
issued by the board permitting a person to enter into contracts   project.
to perform an asbestos abatement project.                         "ASHARA" means Asbestos School Hazard Abatement
"Asbestos inspector" means any person who performs an             Reauthorization Act, 40 CFR Part 763, Subpart E.
inspection as defined in this chapter.                            "Board" means the Virginia Board for Asbestos, Lead, and
"Asbestos Inspector's License" means an authorization issued      Home Inspectors.
by the board permitting a person to perform on-site               "Department" means the Department of Professional and
investigations to identify, classify, record, sample, test and    Occupational Regulation.
prioritize by exposure potential asbestos-containing materials.
                                                                  "Direct supervision" means a licensed or accredited inspector,
"Asbestos Management Plan" means a program designed to            management planner, project monitor or project designer, who
control or abate any potential risk to human health from          undertakes to supervise the activities of an unlicensed
asbestos.                                                         inspector, management planner, project monitor or project
"Asbestos management planner" means any person preparing          designer, shall be physically present on the premises at all
or updating a management plan.                                    times while any unlicensed inspector, management planner,
                                                                  project monitor or project designer under his supervision is
"Asbestos Management Planner's License" means an                  engaged in the activities of an inspector, management
authorization issued by the board permitting a person to          planner, project monitor or project designer.
prepare or update an asbestos management plan.
                                                                  "Director" means the Director of the           Department     of
"Asbestos project" or "asbestos abatement project" means an       Professional and Occupational Regulation.
activity involving job set-up for containment, removal,
encapsulation, enclosure, encasement, renovation, repair,         "Employee" means all persons in the service of another under
construction or alteration of asbestos-containing materials. An   any contract of hire, express or implied, oral or written.
asbestos project or asbestos abatement project shall not          "Encapsulation" means the treatment of asbestos-containing
include nonfriable asbestos-containing roofing, flooring and      material (ACM) with a material that surrounds or embeds

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                                                              1316
                                                                                           Proposed Regulations
asbestos fibers in an adhesive matrix to prevent the release of     children, or (v) any other person residing in the same
fibers, as the encapsulant creates a membrane over the              household as the individual.
surface (bridging encapsulant) or penetrates the material and
binds its components together (penetrating encapsulant).            "Inspection" means an activity undertaken to determine the
                                                                    presence or location, or to access the condition of, friable or
"Encasement" means any process by which an asbestos-                nonfriable asbestos-containing material (ACM) or suspected
containing material (ACM) is sprayed with an insulating sealer      ACM, whether by visual or physical examination, or by
which is then mechanically fastened to the asbestos covered         collecting samples of such material. This term includes
substrate. The insulating sealer is then covered with a sealer      reinspections of friable and nonfriable known or assumed
to give structural strength and durability.                         ACM that has been previously identified. The term does not
                                                                    include the following:
"Enclosure" means the construction or installation over or
around the asbestos-containing material (ACM) of any leak              1. Periodic surveillance of the type described in 40 CFR
tight solid or flexible coverings, which will not deteriorate or       763.92(b) solely for the purpose of recording or reporting a
decompose for an extended period of time, so as to conceal             change in the condition of known or assumed ACM;
the ACM, contain ACM fibers, and render the ACM
inaccessible.                                                          2. Inspections performed by employees or agents of federal,
                                                                       state, or local governments solely for the purpose of
"Environmental remediation activity" means any activity                determining compliance with applicable statutes or
planned or carried out for the purpose of reducing or                  regulations; or
eliminating any environmental hazard, including activities
necessary to train individuals in the proper or lawful conduct of      3. Visual inspections solely for the purpose of determining
such activities, which are regulated by federal or state law or        completion of response actions.
regulation.                                                         "Instructor" means a person who instructs one or more
"EPA" means United States Environmental Protection Agency.          accredited asbestos training programs, to include the principal
                                                                    instructor, but excluding guest instructors.
"Financial interest" means financial benefit accruing to an
individual or to a member of his immediate family. Such             "Licensee" means any person, as defined by § 54.1-500 of the
interest shall exist by reason of (i) ownership in a business if    Code of Virginia, who has been issued and holds a currently
the ownership exceeds 3.0% of the total equity of the               valid license as an asbestos worker, asbestos supervisor,
business; (ii) annual gross income that exceeds, or may be          asbestos inspector, asbestos management planner, asbestos
reasonably anticipated to exceed $1,000 from ownership in           project designer, asbestos project monitor or asbestos
real or personal property or a business; (iii) salary, other        contractor under this chapter.
compensation, fringe benefits, or benefits from the use of          "NIOSH" means National Institute of Occupational Safety and
property, or any combination of it, paid or provided by a           Health.
business that exceeds or may be reasonably expected to
exceed $1,000 annually; (iv) ownership of real or personal          "NIST" means National Institute of Standards and Technology.
property if the interest exceeds $1,000 in value and excluding      "NVLAP" means National Voluntary Laboratory Accreditation
ownership in business, income, salary, other compensation,          Program.
fringe benefits or benefits from the use of property.
                                                                    "Occupied" means any area of any building designed or
"Firm" means any company, partnership, corporation, sole            intended for human occupancy for any purpose.
proprietorship, association, or other business entity.
                                                                    "OSHA" means the U.S. Department of Labor Occupational
"Friable" means that the material when dry, may be crumbled,        Safety and Health Administration.
pulverized or reduced to powder by hand pressure and
includes previously nonfriable material after such previously       "OSHA Class III Work" means repair and maintenance
nonfriable material becomes damaged to the extent that when         operations where asbestos-containing material (ACM),
dry it may be crumbled, pulverized, or reduced to powder by         including thermal system insulation and surfacing material, is
hand pressure.                                                      likely to be disturbed.
"Guest instructor" means an instructor who is invited to            "PAT" means Proficiency Analytical Testing.
instruct a specific topic or topics in an accredited asbestos
                                                                    "PCM" means phase contrast microscopy.
training program and whose instruction is limited to two hours
per day.                                                            "Person"     means       a  corporation,    partnership,    sole
                                                                    proprietorship, firm, enterprise, franchise, association or any
"Hands-on experience" means the physical participation of
                                                                    other individual or entity.
students in an asbestos training program. The physical
participation includes mock sampling and inspection                 "PLM" means polarized light microscopy.
techniques, report preparation, writing project specifications,
glovebag demonstrations and containment construction.               "Preliminary review" means a review conducted by the
                                                                    department following the submission of training materials to
"Immediate family" means (i) a spouse, (ii) a sibling or step       ascertain if the proposed asbestos training program meets the
sibling, (iii) a parent or step parent, (iv) children or step       standards established by this chapter.


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                                                                1317
Proposed Regulations
"Principal instructor" means an instructor whose main                D. Each individual applying for initial licensure as a worker
responsibility is to instruct accredited asbestos training           shall provide proof of successful completion of (i) an
programs, supervise other instructors and manage the overall         EPA/AHERA or board-approved initial accredited asbestos
asbestos training program curriculum.                                worker training program and all subsequent EPA/AHERA or
                                                                     board-approved accredited asbestos worker refresher training
"Removal" means the physical removal of asbestos-containing          programs or (ii) an EPA/AHERA or board-approved initial
material (ACM) in accordance with all applicable regulations.        accredited supervisor asbestos training program and all
"Renovation" means altering in any way, one or more facility         subsequent EPA/AHERA or board-approved accredited
components.                                                          asbestos supervisor refresher training programs. The training
                                                                     certificate must indicate that the training was taken within 12
"Repair" means returning damaged asbestos-containing                 months preceding the date the department receives the
material (ACM) to an undamaged condition or to an intact             application.
state so as to prevent fiber release.
                                                                     E. Each applicant for licensure as an asbestos contractor shall
"Residential buildings" means site-built homes, modular              submit a completed asbestos contractor application to the
homes, condominium units, mobile homes, manufactured                 department.
housing, and duplexes, or other multi-unit dwellings consisting
of four units or fewer that are currently in use or intended for     F. Each applicant for licensure as an asbestos analytical
use only for residential purposes.                                   laboratory shall submit a completed asbestos analytical
                                                                     laboratory application and all documents required by this
"Response action" means any method, including removal,               chapter to the department.
encapsulation, enclosure, encasement, or operation and
maintenance, that protects human health and the environment          G. Each applicant for approval as an accredited asbestos
from friable asbestos-containing material.                           training program shall submit to the board a completed
                                                                     accredited asbestos training program application and all
"Substantial change" means a change in overall asbestos              documents required by this chapter.
training program, materials, principal instructors, training
managers, directors, ownership, facilities, equipment,               H. Each application for a license shall be signed by the
examinations, and certificates of completion. The addition of        applicant and shall include a certification, by the applicant,
updated regulations, exam questions or news articles shall not       that the applicant's license or other authorization to perform
be considered a substantial change.                                  asbestos related work has not been suspended or revoked by
                                                                     any jurisdiction and that no enforcement action by any
"TEM" means transmission electron microscopy.                        jurisdiction is pending against the applicant.
"Training manager" means the individual responsible for              I. In the event disciplinary actions have been taken against the
administering a training program and monitoring the                  applicant, in any jurisdiction, the applicant shall submit the
performance of the instructors.                                      following information:
"Visual inspection" means a process of looking for conditions,           1. A complete list of all prior disciplinary actions, including
which if not corrected during the asbestos abatement project,            any sanctions imposed on the applicant by any jurisdiction
will lead to residual asbestos-containing dust or debris. Visual         or any state or federal court.
inspection includes examination of an asbestos abatement
project area prior to clearance air monitoring for evidence that         2. A description of any asbestos abatement or inspection
the project has been successfully completed as indicated by              activities, or both, conducted by the applicant that were
the absence of residue, dust and debris.                                 terminated prior to completion, including the circumstances
                                                                         of the termination.
                   PART III.
   GENERAL ENTRY AND RENEWAL REQUIREMENTS.                               3. A copy of all reports compiled by the enforcement agency
                                                                         or a copy of a final report.
18 VAC 15-20-30. License application. (Repealed.)
                                                                     J. Each application shall be completed according to the
A. Application for asbestos licensure shall be made on forms         instructions provided by the department with the application.
provided by the department.                                          Incomplete applications will be returned to the applicant; fees
B. Each individual applicant shall be at least 18 years of age.      received shall not be refunded.

C. Each individual applying for initial licensure as a supervisor,   18 VAC 15-20-31. Application procedures.
inspector, management planner, project designer or project           All applicants seeking licensure shall submit an application
monitor shall provide evidence of successful completion of an        with the appropriate fee specified in 18 VAC 15-20-52.
EPA/AHERA or board-approved initial accredited asbestos              Application shall be made on forms provided by the
training program and all subsequent EPA/AHERA or                     department.
board-approved accredited asbestos refresher training
programs, relevant to the applicant's discipline. The training       By signing the application or submitting it electronically to the
certificate must indicate that the training was taken within 12      department, the applicant certifies that he has read and
months preceding the date the department receives the                understands the board’s statutes and regulations.
application.

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                                                                  1318
                                                                                            Proposed Regulations
The receipt of an application and the deposit of fees by the                experience required is dependent on the applicant’s
board does not indicate approval by the board.                              formal education and is as follows:
The board may make further inquiries and investigations with                  (a) An applicant with a bachelor's degree in
respect to the applicant’s qualifications to confirm or amplify               engineering, architecture, industrial hygiene, physical
information supplied.                                                         science or a related field shall have at least six
                                                                              months' experience or have completed a minimum of
Applicants will be notified if their application is incomplete.               five inspections;
Applicants who fail to complete the process within 12 months
after the date the department receives the application shall                  (b) An applicant with a two-year associate's degree in
submit a new application and fee.                                             engineering, architecture, industrial hygiene, physical
                                                                              science or a related field shall have at least 12
18 VAC 15-20-32.        Qualifications     for    licensure     –             months' experience or have completed a minimum of
individuals.                                                                  10 inspections; or
A. General.     Applicants shall meet all applicable entry                    (c) An applicant with a high school diploma shall
requirements at the time application is made.                                 have at least 24 months' experience or have
B. Name. The applicant shall disclose his full legal name.                    completed a minimum of 15 inspections.
C. Age. The applicant shall be at least 18 years old.                    b. Experience may be obtained by:
D. Address. The applicant shall disclose a physical address.                (1) Conducting asbestos inspections in jurisdictions
A post office box is only acceptable when a physical address                outside of Virginia in accordance with all federal, state
is also provided.                                                           and local statutes.
E. Specific entry requirements.                                             (2) Conducting asbestos inspections under the direct
                                                                            supervision, as defined in this chapter, of a licensed
  1. Worker. Each individual applying for an initial asbestos               inspector or EPA-accredited inspector where no license
  worker license shall provide proof of successful completion               is required. All reports prepared by the unlicensed
  of (i) an EPA/AHERA or board-approved initial accredited                  individual shall be signed by the licensed or EPA-
  asbestos worker training program and all subsequent                       accredited inspector in charge. The licensed or EPA-
  EPA/AHERA or board-approved accredited asbestos                           accredited inspector assumes responsibility for all
  worker refresher training programs or (ii) an EPA/AHERA or                sampling and reports prepared by the unlicensed
  board-approved initial accredited supervisor training                     individual.
  program and all subsequent EPA/AHERA or board-
  approved accredited asbestos supervisor refresher training            4. Management planner.
  programs. The training certificate must indicate that the              a. Each individual applying for an initial asbestos
  training was taken within 12 months preceding the date the             management planner license shall provide:
  department receives the application.
                                                                            (1) Proof of successful completion of an EPA/AHERA
  2. Supervisor.       Each individual applying for an initial              or board-approved initial accredited management
  asbestos supervisor license shall provide proof of                        planner training program and all subsequent
  successful completion of an EPA/AHERA or board-                           EPA/AHERA or board-approved accredited asbestos
  approved initial accredited supervisor training program and               management planner refresher training programs; and
  all subsequent EPA/AHERA or board-approved accredited
  asbestos supervisor refresher training programs.           The            (2) Evidence of experience evaluating inspection
  training certificate must indicate that the training was taken            reports, selecting response actions, analyzing the cost
  within 12 months preceding the date the department                        of response actions, ranking response actions,
  receives the application.                                                 preparing operations and maintenance plans and
                                                                            preparing management plans. The amount of
  3. Inspector.                                                             experience required is dependent on the applicant’s
    a. Each individual applying for an initial asbestos                     formal education and is as follows:
    inspector license shall provide:                                          (a) An applicant with a bachelor's degree in
      (1) Proof of successful completion of an EPA/AHERA                      engineering, architecture, industrial hygiene, physical
      or board-approved initial accredited inspector training                 science or a related field shall have at least six
      program and all subsequent EPA/AHERA or board-                          months' experience or shall have completed a
      approved accredited asbestos inspector refresher                        minimum of five management plans.
      training programs; and                                                  (b) An applicant with a two-year associate's degree in
      (2) Evidence of experience in performing asbestos                       engineering, architecture, industrial hygiene, physical
      inspections in buildings or industrial facilities, including            science or a related field shall have at least 12
      collecting bulk samples, categorizing ACM, assessing                    months' experience or shall have completed a
      ACM and preparing inspection reports. The amount of                     minimum of 10 management plans.



Volume 22, Issue 9                                                                                        Monday, January 9, 2006

                                                                 1319
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       (c) An applicant with a high school diploma shall                designer in charge. The licensed or EPA-accredited
       have at least 24 months' experience or shall have                project designer assumes responsibility for all project
       completed a minimum of 15 management plans.                      design reports prepared by the unlicensed individual.
   b. Experience may be obtained by:                                6. Project monitor.
     (1) Preparing management plans or conducting                     a. Each individual applying for an initial asbestos project
     asbestos inspections in jurisdictions outside of Virginia        monitor license shall provide:
     in accordance with all federal, state and local statutes;
     or                                                                 (1) Proof of (i) a current certification by EPA as an
                                                                        asbestos project designer or asbestos supervisor and
     (2) Preparing management plans or conducting                       successful completion of a board-approved asbestos
     asbestos inspections under the direct supervision, as              project monitor training program of 16 hours, including
     defined in this chapter, of a licensed management                  the examination or (ii) successful completion of a
     planner or inspector, or EPA-accredited management                 board-approved asbestos project monitor training
     planner or inspector where no license is required. All             program of 40 hours, including examination. Only
     reports prepared by the unlicensed individual shall be             project monitor training programs that are board
     signed by the licensed or EPA-accredited management                approved shall be accepted for meeting the training
     planner or inspector in charge. The licensed or EPA-               requirement; and
     accredited management planner or inspector assumes
     responsibility for all sampling and reports prepared by            (2) Evidence of 160 hours of experience in performing
     the unlicensed individual.                                         asbestos project monitoring through field work on
                                                                        project sites. This includes, but is not limited to,
 5. Project designer.                                                   evaluating and monitoring asbestos work practices,
                                                                        collecting environmental asbestos air samples during
   a. Each individual applying for an initial asbestos project          abatement, performing visual inspections and taking
   designer license shall provide:                                      final air samples to grant clearance for asbestos
     (1) Proof of successful completion of an EPA/AHERA                 abatement projects.
     or board-approved initial accredited project designer            b. Experience may be obtained by:
     training program and all subsequent EPA/AHERA or
     board-approved accredited asbestos project designer                (1) Acting as an asbestos project monitor in
     refresher training programs; and                                   jurisdictions outside of Virginia in accordance with all
                                                                        federal, state and local statutes.
     (2) Evidence of experience in the preparation of project
     designs or project specifications. The amount of                   (2) Acting as an asbestos project monitor under the
     experience required is dependent on the applicant’s                direct supervision, as defined in this chapter, of a
     formal education and is as follows:                                licensed asbestos project monitor or an accredited
                                                                        asbestos project monitor where no license is required.
       (a) An applicant with a bachelor's degree in                     All project monitoring reports prepared by the
       engineering, architecture, industrial hygiene, physical          unlicensed individual shall be signed by the licensed or
       science or a related field shall have six months'                accredited project monitor in charge. The licensed or
       experience or shall have completed a minimum of                  accredited project monitor assumes responsibility for all
       five project designs.                                            reports and documents prepared by the unlicensed
       (b) An applicant with a two-year associate's degree in           individual.
       engineering, architecture, industrial hygiene, physical   F. Experience and education verification. Each application for
       science or related field shall have 12 months'            inspector, management planner, project monitor and project
       experience or shall have completed a minimum of 10        designer shall include a completed Experience Verification
       project designs.                                          Form signed by a supervisor verifying the applicant’s
       (c) An applicant with a high school diploma shall         experience. In lieu of a verifying signature for experience, an
       have at least 24 months' experience or shall have         applicant who is self employed may submit a copy of three
       completed a minimum of 15 project designs.                completed inspections, management plans, project designs or
                                                                 project monitor reports, whichever is applicable. A letter from
   b. Experience may be obtained by:                             a supervisor verifying the experience may be submitted in lieu
     (1) Preparing asbestos project designs in jurisdictions     of the Experience Verification Form. If verification of a degree
     outside of Virginia in accordance with all federal, state   is required, the Education Verification Form shall be sent
     and local statutes.                                         directly from the school to the department.

     (2) Preparing asbestos project designs under the direct     G. Conviction or guilt. The applicant shall not have been
     supervision, as defined in this chapter, of a licensed      convicted or found guilty, regardless of adjudication, in any
     asbestos project designer, or EPA-accredited asbestos       jurisdiction of any felony or of any misdemeanor involving
     project designer where no license is required. All          lying, cheating or stealing or any violation while engaged in
     project designs prepared by the unlicensed individual       environmental remediation activity that resulted in the
     shall be signed by the licensed EPA-accredited project      significant harm or the imminent and substantial threat of

                                               Virginia Register of Regulations

                                                             1320
                                                                                           Proposed Regulations
significant harm to human health or the environment, there             accordance with § 13.1-1105 of the Code of Virginia. The
being no appeal pending therefrom or the time of appeal                company shall be in good standing with the State
having lapsed.       Any plea of nolo contendre shall be               Corporation Commission at the time of application to the
considered a conviction for the purposes of this section. The          board and at all times when the license is in effect.
record of conviction, finding or case decision shall be
considered prima facie evidence of a conviction or finding of          3. Partnerships.      All applicants shall have a written
guilt. The board, at its discretion, may deny licensure or             partnership agreement. The partnership agreement shall
certification to any applicant in accordance with § 54.1-204 of        state that all professional services of the partnership shall
the Code of Virginia.                                                  be under the direction and control of a licensed or certified
                                                                       professional.
H. Standards of practice and conduct. Applicants shall be in
compliance with the standards of practice and conduct set              4. Sole proprietorships. Sole proprietorships desiring to use
forth in 18 VAC 15-20-400 through 18 VAC 15-20-450 and                 an assumed or fictitious name, that is, a name other than
18 VAC 455 through 18 VAC 15-20-459.1, as applicable at the            the individual’s full name, shall have their assumed or
time of application to the board, while the application is under       fictitious name recorded by the clerk of the court of the
review by the board, and at all times when the license is in           county or jurisdiction wherein the business is to be
effect.                                                                conducted.

I. Standing. The applicant shall be in good standing in every       E. Qualifications.
jurisdiction where licensed and the applicant shall not have           1. Asbestos contractor. Each applicant shall hold a valid
had a license that was suspended, revoked or surrendered in            Virginia contractor license issued by the Virginia Board for
connection with any disciplinary action in any jurisdiction prior      Contractors with an asbestos specialty and shall be in
to applying for licensure in Virginia. The board, at its               compliance with all other requirements found in Chapter 11
discretion, may deny licensure or certification to any applicant       (§ 54.1-1100 et seq.) of Title 54.1 of the Code of Virginia
based on disciplinary action by any jurisdiction.                      governing the regulation of contractors.
18 VAC 15-20-33. Qualifications for licensure – business               2. Asbestos analytical laboratory. Each applicant shall
entities.                                                              submit evidence of meeting the standards to perform one or
A. General. Every business entity shall secure a license               more of the following analysis:
before transacting business.                                             a. For PLM analysis, a current NVLAP accreditation for
B. Name. The business name shall be disclosed on the                     bulk asbestos fiber analysis or a current AIHA
application. The name under which the entity conducts                    accreditation and proficiency in the AIHA bulk asbestos
business and holds itself out to the public (i.e., the trade or          program.      A copy of the NVLAP Certificate of
fictitious name) shall also be disclosed on the application.             Accreditation, Scope of Accreditation and documentation
Business entities shall register their trade or fictitious names         of NVLAP proficiency or a copy of an AIHA accreditation
with the State Corporation Commission or the clerk of court in           certificate and proof of proficiency in the AIHA bulk
the county or jurisdiction where the business is to be                   program shall be submitted with the application.
conducted in accordance with §§ 59.1-69 through 59.1-76 of               b. For PCM analysis:
the Code of Virginia before submitting their application to the
board.                                                                     (1) At fixed laboratory sites, a current accreditation by
                                                                           AIHA or evidence that each facility has been rated
C. Address. The applicant shall disclose the firm’s mailing                "proficient" in the PAT Program’s most recent round of
address, and the firm’s physical address. A post office box is             asbestos evaluations, or evidence that each analyst is
only acceptable as a mailing address when a physical address               listed or has applied for listing in the Asbestos Analyst
is also provided.                                                          Registry (AAR) and has a performance rating of
D. Form of organization. Applicants shall meet the additional              "acceptable" for the most recent Asbestos Analyst
requirements listed below for their business type:                         Testing (AAT) round.          Each analyst shall have
                                                                           completed the NIOSH 582 training program or
  1. Corporations.        All applicants shall have been                   equivalent.
  incorporated in the Commonwealth of Virginia or, if a foreign
  corporation, shall have obtained a certificate of authority to           (2) For on-site analysis, each on-site analyst shall be
  conduct business in Virginia from the State Corporation                  listed or shall have applied for listing in the AAR and
  Commission in accordance with § 13.1-544.2 of the Code of                have a performance rating of "acceptable" for the most
  Virginia. The corporation shall be in good standing with the             recent AAT round, or is accredited by AIHA or has
  State Corporation Commission at the time of application to               been rated “proficient” in the PAT Program’s most
  the board and at all times when the license is in effect.                recent round of asbestos evaluations. Each analysis
                                                                           shall have completed the NIOSH 582 training program
  2. Limited liability companies. All applicants shall have                or equivalent.
  obtained a certificate of organization in the Commonwealth
  of Virginia or, if a foreign limited liability company, shall          c. For TEM analysis, a current accreditation by NVLAP to
  have obtained a certificate of registration to do business in          analyze asbestos airborne fibers using TEM. A copy of
  Virginia from the State Corporation Commission in                      the NVLAP Certificate of Accreditation, Scope of


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                                                                1321
Proposed Regulations
    Accreditation and documentation of NVLAP proficiency               5. A narrative explanation that states how the training
    shall be submitted with the application.                           program meets the requirements for approval in the
                                                                       following areas:
F. Conviction or guilt. Neither the firm nor the owners, officers
or directors shall have been convicted or found guilty,                  a. Length of training in hours.
regardless of adjudication, in any jurisdiction of any felony or
of any misdemeanor involving lying, cheating or stealing or of           b. Amount and type of hands-on training.
any violation while engaged in environmental remediation                 c. Examinations (length, format and passing score).
activity that resulted in the significant harm or the imminent
and substantial threat of significant harm to human health or            d. Topics covered in the training program.
the environment, there being no appeal pending therefrom or              e. Assurances of test security and how exams are
the time of appeal having lapsed. Any plea of nolo contendre             administered.
shall be considered a conviction for the purposes of this
section. A certified copy of the final order, decree or case           6. A copy of all training program materials including, but not
decision by a court or regulatory agency with lawful authority         limited to, student manuals, instructor notebooks, handouts,
to issue such order, decree or case decision shall be                  and training aids.
admissible as prima facie evidence of such conviction or
                                                                       7. A copy of the examination(s) used and applicable answer
discipline. The board, at its discretion, may deny licensure to
                                                                       sheets.
any applicant in accordance with § 54.1-204 of the Code of
Virginia.                                                              8. The names and qualifications, including education and
                                                                       experience, of each instructor and subject areas that each
G. Standards of practice and conduct. Applicants shall be in
                                                                       instructor will teach.
compliance with the standards of practice and conduct set
forth 18 VAC 15-20-400 through 18 VAC 15-20-454 and                    9. A description of and an example of a certificate that will
18 VAC 15-20-459.2 through 18 VAC 15-20-459.5 at the time              be issued to students who successfully complete the
of application to the board, while the application is under            accredited asbestos training program. The certificate shall
review by the board, and at all times when the license is in           contain the information required by this chapter.
effect.
                                                                       10. A proposed training program date for auditing purposes.
H. Standing. Both the firm and the owners, officers and                The proposed date will be confirmed or an alternate date
directors shall be in good standing in every jurisdiction where        will be proposed within 10 business days after receipt of a
licensed and the applicant shall not have had a license that           complete accredited asbestos training program submission
was suspended, revoked or surrendered in connection with               and the required fee.
any disciplinary action in any jurisdiction prior to applying for
licensure in Virginia. The board, at its discretion, may deny       B. A complete submission shall consist of all information
licensure to any applicant based on disciplinary action by any      required by this section. Receipt of application and deposit of
jurisdiction.                                                       fees by the department in no way indicates approval of a
                                                                    training program.
I. Denial of license. The board may refuse to issue a license
to any asbestos contractor or asbestos analytical laboratory        C. A complete application shall be submitted to the
applicant if the applicant or its owners, officers or directors     department no less than 45 days prior to the requested audit
have a financial interest in an asbestos contractor whose           date.
asbestos license has been revoked, suspended, or denied             D. Upon receipt of a completed application, a preliminary
renewal in any jurisdiction.                                        review will be conducted to ensure all written material and
18 VAC 15-20-34. Qualifications for accredited asbestos             other documentation is accurate and up to date. If any
training program approval.                                          deficiencies are noted, a letter will be sent to the applicant
                                                                    indicating the deficiencies and necessary steps to correct
A. Training programs desiring board approval shall meet the         them. All deficiencies noted during the preliminary review shall
minimum requirements established in this chapter. Persons           be corrected prior to the on-site audit.
requesting approval as an accredited asbestos training
program to prepare training program participants for licensure      E. Upon successful completion of the preliminary review, an
requirements shall submit an accredited asbestos Training           on-site audit shall be conducted to complete the application
Program Review and Audit Application with the following             process. If any deficiencies are noted during the audit, the
required information:                                               training provider will be informed, either in writing or verbally,
                                                                    and offered an opportunity to correct them. Once the audit is
  1. Training provider’s business name, physical address,           complete and any deficiencies corrected, a letter of approval
  mailing address, and phone number.                                will be sent to the accredited asbestos training program.
  2. Copies of approval letters issued by EPA or other states       F. All accredited asbestos training programs approved by the
  granting approval of asbestos training programs presented         board shall have a monitored, final written examination,
  by the provider.                                                  except for asbestos workers needing an oral examination. The
                                                                    board recommends the examination include a practical
  3. Applicable fee specified in 18 VAC 15-20-52.
                                                                    component to test skill in asbestos abatement techniques.
  4. The training program curriculum.                               Students shall obtain a minimum examination grade of 70%

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                                                                1322
                                                                                            Proposed Regulations
correct. Records of the participant’s examination shall be         I. The renewal fee for accredited asbestos training programs
maintained in accordance with this chapter.                        not renewed within 30 days after its expiration date shall be
                                                                   $75.
G. Letters of approval for accredited asbestos training
programs shall be maintained at the business address listed        J. A license not renewed within six months after the expiration
on the approval letter and made accessible to the public. Each     date printed on the license shall not be renewed and the
provider of an approved accredited asbestos training program       person shall apply for a new license.
shall maintain all records at the business address. The
required records shall be available for review upon demand by      K. All checks or money orders shall be made payable to the
the board or its representatives.                                  Treasurer of Virginia.

18 VAC 15-20-40. Experience and Education Verification             L. Fees received shall not be refunded.
Forms. (Repealed.)                                                 18 VAC 15-20-51. General fee requirements.
Each application for inspector, management planner, project        All fees are nonrefundable and shall not be prorated. The
monitor and project designer shall include an Experience           date on which the fee is received by the department or its
Verification Form completed by the applicant and signed by a       agent will determine whether the fee is on time. Checks or
supervisor verifying the job description of the applicant during   money orders shall be made payable to the Treasurer of
the term of employment. The form shall contain the name and        Virginia.
address of the employer, a complete and concise job
description, a job title, the dates of employment or dates of      18 VAC 15-20-52. Application fees.
work performed and the signature, typewritten or printed           Application fees are set out in this section.
name, address and phone number of the supervisor verifying
the experience. In lieu of a verifying signature for experience,      Fee Type                        Fee Amount     When Due
an applicant who is self employed may submit a copy of three          Application for worker,
completed inspections, management plans, project designs or           supervisor, inspector,
project monitor reports, whichever is applicable. A letter from                                                        With
                                                                      management planner,                  $25
a supervisor verifying the experience may be submitted in lieu                                                       application
                                                                      project designer or project
of the Experience Verification Form. If verification of a degree      monitor license
is required, the Education Verification Form shall be sent
directly from the school to the department.                           Application for asbestos                         With
                                                                                                           $40
                                                                      analytical laboratory license                  application
                           PART IV.                                   Application for an asbestos                      With
                            FEES.                                                                          $40
                                                                      contractor license                             application
18 VAC 15-20-50. Fees. (Repealed.)                                    Application for accredited        $400 per
                                                                                                                       With
                                                                      asbestos training program           day of
A. The fee for an initial application for or a renewal of an                                                         application
                                                                      approval                           training
asbestos worker, supervisor, inspector, management planner,
project designer, or project monitor license shall be $25.         18 VAC 15-20-53. Renewal and late renewal fees.
B. The renewal fee for an asbestos worker, supervisor,             Renewal and late renewal fees are set out in this section.
inspector, management planner, project designer, or project
monitor license not renewed within 30 days after its expiration       Fee Type                        Fee Amount     When Due
date shall be $50.                                                    Renewal for worker,
C. The fee for an initial application for or a renewal of an          supervisor, inspector,
                                                                                                                    With renewal
asbestos analytical laboratory license shall be $40.                  management planner,                  $25
                                                                                                                     application
                                                                      project designer or project
D. The renewal fee for asbestos analytical laboratory licenses        monitor license
not renewed within 30 days after its expiration date shall be
$65.                                                                  Renewal for asbestos                          With renewal
                                                                                                           $40
                                                                      analytical laboratory license                  application
E. The fee for an initial application for or a renewal of an
asbestos contractor's license shall be $40.                           Renewal for asbestos                          With renewal
                                                                                                           $40
                                                                      contractor’s license                           application
F. The renewal fee for asbestos contractor licenses s not
renewed within 30 days after its expiration date shall be $65.        Renewal for accredited
                                                                                                                    With renewal
                                                                      asbestos training program            $50
G. The fee for an initial application for approval of an                                                             application
                                                                      approval
accredited asbestos training program shall be $400 per day of
training.                                                             Late renewal for worker,
                                                                      supervisor, inspector,
H. The renewal fee for an accredited asbestos training                management planner,                           With renewal
                                                                                                           $50
program shall be $50.                                                 project designer or project                    application
                                                                      monitor license (includes a
                                                                      $25 late renewal fee in

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                                                               1323
Proposed Regulations
 addition to the regular $25                                       C. Prior to the expiration date shown on the individual's
 renewal fee)                                                      current license, the individual desiring to renew that license
                                                                   shall provide evidence of meeting the annual refresher training
 Late renewal for asbestos                                         requirement for license renewal and the appropriate fee
 analytical laboratory license                                     specified in 18 VAC 15-20-53. The board will accept any
                                                  With renewal
 (includes a $25 late renewal         $65                          asbestos training programs that are approved by EPA/AHERA
                                                   application
 fee in addition to the regular                                    or the board. A copy of the training certificate documenting the
 $40 renewal fee)                                                  successful completion of the refresher training for the license
 Late renewal for asbestos                                         discipline being renewed and meeting the requirements
 contractor’s license                                              outlined in this chapter shall accompany the renewal notice
                                                  With renewal     and fee.
 (includes a $25 late renewal         $65
                                                   application
 fee in addition to the regular
                                                                   D. Prior to the expiration date shown on the approval letter,
 $40 renewal fee)
                                                                   each accredited asbestos training program desiring to renew
 Late renewal for accredited                                       the approval shall return the renewal notice to the department
 asbestos training program                                         together with the following:
                                                  With renewal
 approval (includes a $25 late        $75
                                                   application        1. Appropriate fee specified in 18 VAC 15-20-53.
 renewal fee in addition to the
 regular $50 renewal fee)                                             2. Any changes made to the training program.
                                                                      3. Dates on which the training material was last updated.
                           PART V.
                          RENEWAL.                                    4. Statement indicating that the training program continues
                                                                      to meet the regulation requirements established in this
18 VAC 15-20-60. Expiration Renewal required.                         chapter.
A. Each individual asbestos license issued under this chapter      Should an approved accredited asbestos training program fail
shall expire one year from the last day of the month in which it   to receive the renewal notice, a letter indicating the desire to
was issued.                                                        renew and the applicable fee may be submitted.
B. Each asbestos contractor and each asbestos analytical           D. E. Project monitors who also hold a valid Virginia asbestos
laboratory license issued under this chapter shall expire one      supervisor or project designer license may meet the renewal
year from the last day of the month in which it was issued.        training requirements by completing the supervisor refresher
C. Each accredited asbestos training program approved prior        or project designer refresher, whichever is applicable. Project
to January 2, 2002 shall expire on January 31, 2004, and may       monitors who hold only a project monitor license shall
be renewed for 24 months at a time thereafter. Each                complete an accredited asbestos project monitor refresher
accredited asbestos training program approved after January        training program to meet the renewal training requirements.
2, 2002, shall expire 24 months from the last day of the month     E. F. Annual refresher training certificates shall only be used
in which it was approved.                                          once to renew an individual license.
D. A fee shall be required for renewal as specified in 18 VAC      F. G. Each license and each accredited asbestos training
15-20-53.                                                          program approval that is not renewed within 30 days of the
18 VAC 15-20-70. Procedures for renewal application.               expiration date on the license or approval shall be subject to
                                                                   late renewal fees as established in 18 VAC 15-20-50 18 VAC
A. The department shall mail a renewal notice to each              15-20-53.
licensee and to each approved accredited asbestos training
program at the last known address. The notice shall outline        G. H. Each license and each approved accredited asbestos
the procedures for renewal and the renewal fee amount.             training program not renewed within six months after the
Failure to receive the notice shall not relieve the licensee or    expiration date shall not be renewed and the licensee or
the approved accredited asbestos training program of the           approved accredited asbestos training program shall apply for
obligation to renew in a timely fashion.                           a new license or new approval.

B. Prior to the expiration date shown on the license or            18 VAC 15-20-80. Change of address or name. (Repealed.)
approval letter, each licensed asbestos contractor, and            Each licensee and approved accredited asbestos training
licensed asbestos analytical laboratory and approved               program shall notify the board, in writing, of any change of
accredited asbestos training program desiring to renew the         address or name. This notification shall be sent to the board
license or approval shall return the renewal notice and            within 30 days of such relocation or name change.
together with the appropriate fee specified in 18 VAC 15-20-
53 to the department. Should the licensee fail to receive the                         PART IV.
renewal notice, a copy of the current license may be                   ASBESTOS WORKER LICENSING REQUIREMENTS.
submitted with the required fee. Should an approved                18 VAC 15-20-90. Qualifications for licensure. (Repealed.)
accredited asbestos training program fail to receive the
renewal notice, a letter indicating the desire to renew and the    Each individual applying to the board for licensure as an
applicable fee may be submitted.                                   asbestos worker shall submit a completed application, all

                                                 Virginia Register of Regulations

                                                               1324
                                                                                           Proposed Regulations
training documentation as required by 18 VAC 15-20-30 D                3. An applicant with a high school diploma shall have at
and the appropriate fee as required by 18 VAC 15-20-50.                least 24 months' experience or have completed a minimum
                                                                       of 15 inspections.
                   PART V.
 ASBESTOS SUPERVISOR LICENSING REQUIREMENTS.                        18 VAC 15-20-251. Qualifying experience. (Repealed.)
18 VAC    15-20-101.       Qualifications     for     licensure.    Experience may be obtained by:
(Repealed.)
                                                                       1. Conducting asbestos inspections in jurisdictions outside
Each individual applying to the board for licensure as an              of Virginia in accordance with all federal, state and local
asbestos supervisor shall submit a completed application, all          statutes.
training documentation as required by 18 VAC 15-20-30 C
and the appropriate fee as required by 18 VAC 15-20-50.                2. Conducting asbestos inspections under the direct
                                                                       supervision, as defined in this chapter, of a licensed
                 PART VI.                                              inspector, or EPA-accredited inspector where no license is
ASBESTOS CONTRACTOR LICENSING REQUIREMENTS.                            required. All reports prepared by the unlicensed individual
                                                                       shall be signed by the licensed or EPA-accredited inspector
18 VAC    15-20-110.       Qualifications     for     licensure.       in charge. The licensed or EPA-accredited inspector
(Repealed.)                                                            assumes responsibility for all sampling and reports
A. Each applicant shall submit a completed asbestos                    prepared by the unlicensed individual.
contractor application and fee as required by 18 VAC                                    PART VIII.
15-20-50.                                                                ASBESTOS MANAGEMENT PLANNER LICENSING
B. Each applicant shall hold a valid Virginia contractor license                     REQUIREMENTS.
with an asbestos specialty and shall be in compliance with all      18 VAC    15-20-270.      Qualifications     for    licensure.
other requirements found in Chapter 11 (§ 54.1-1100 et seq.)        (Repealed.)
of Title 54.1 of the Code of Virginia governing the regulation of
contractors.                                                        A. Each individual applying to the board for licensure as an
                                                                    asbestos management planner shall submit a completed
18 VAC 15-20-150. Denial of license. (Repealed.)                    application, all training documents as required by 18 VAC
The board may refuse to issue a license to any asbestos             15-20-30 C, the appropriate fee as required by 18 VAC
contractor applicant if the applicant or its owners, officers or    15-20-50, and evidence of meeting the experience
directors have a financial interest in an asbestos contractor       requirements established by 18 VAC 15-20-250 B and
whose asbestos license has been revoked, suspended or               subsection B of this section. The applicant shall also meet all
denied renewal in any jurisdiction.                                 qualifications to be licensed as an asbestos inspector,
                                                                    whether or not the license is held. Evidence of experience and
                   PART VII.                                        education shall comply with 18 VAC 15-20-40.
  ASBESTOS INSPECTOR LICENSING REQUIREMENTS.
                                                                    B. The applicant shall provide evidence of experience
18 VAC    15-20-250.       Qualifications     for     licensure.    evaluating inspection reports, selecting response actions,
(Repealed.)                                                         analyzing the cost of response actions, ranking response
A. Each individual applying to the board for licensure as an        actions, preparing operations and maintenance plans and
asbestos inspector shall submit a completed application, all        preparing management plans. The amount of experience
training documents as required by 18 VAC 15-20-30 C, the            required is dependent on the applicant's formal education and
appropriate fee as established in 18 VAC 15-20-50, and              is as follows:
evidence of meeting the experience requirements as                     1. An applicant with a bachelor's degree in engineering,
established in subsection B of this section. Evidence of               architecture, industrial hygiene, physical science or a
experience and education shall comply with 18 VAC 15-20-40.            related field shall have at least six months' experience or
B. The applicant shall provide evidence of experience in               shall have completed a minimum of five management plans.
performing asbestos inspections in buildings or industrial             2. An applicant with a two-year associate's degree in
facilities, including collecting bulk samples, categorizing ACM,       engineering, architecture, industrial hygiene, physical
assessing ACM and preparing inspection reports. The amount             science or a related field shall have at least 12 months'
of experience required is dependent on the applicant's formal          experience or shall have completed a minimum of 10
education and is as follows:                                           management plans.
  1. An applicant with a bachelor's degree in engineering,             3. An applicant with a high school diploma shall have at
  architecture, industrial hygiene, physical science or a              least 24 months' experience or shall have completed a
  related field shall have at least six months' experience or          minimum of 15 management plans.
  have completed a minimum of five inspections.
  2. An applicant with a two-year associate's degree in
  engineering, architecture, industrial hygiene, physical
  science or a related field shall have at least 12 months'
  experience or have completed a minimum of 10 inspections.

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                                                                1325
Proposed Regulations
18 VAC 15-20-271. Qualifying experience. (Repealed.)                    signed by the licensed EPA-accredited project designer in
                                                                        charge. The licensed or EPA-accredited project designer
Experience may be obtained by:                                          assumes responsibility for all project design reports
  1. Preparing management plans or conducting asbestos                  prepared by the unlicensed individual.
  inspections in jurisdictions outside of Virginia in accordance                          PART X.
  with all federal, state and local statutes.                                ASBESTOS PROJECT MONITOR LICENSING
  2. Preparing management plans or conducting asbestos                                 REQUIREMENTS.
  inspections under the direct supervision, as defined in this       18 VAC    15-20-330.       Qualifications     for    licensure.
  chapter, of a licensed management planner or inspector, or         (Repealed.)
  EPA-accredited management planner or inspector where no
  license is required. All reports prepared by the unlicensed        A. Each individual applying for licensure as an asbestos
  individual shall be signed by the licensed or EPA-accredited       project monitor shall submit a completed application, all
  management planner or inspector in charge. The licensed            training documents as required by 18 VAC 15-20-30 C, the
  or EPA-accredited management planner or inspector                  appropriate fee as established in 18 VAC 15-20-50, and
  assumes responsibility for all sampling and reports                evidence of meeting the experience requirements as
  prepared by the unlicensed individual.                             established in subsection B of this section. Evidence of
                                                                     experience and education shall comply with 18 VAC 15-20-40.
                    PART IX.
      ASBESTOS PROJECT DESIGNER LICENSING                            B. The applicant shall provide evidence of experience in
                REQUIREMENTS.                                        performing asbestos project monitoring through field work on
                                                                     project sites. This includes, but is not limited to, evaluating
18 VAC    15-20-290.      Qualifications      for      licensure.    and monitoring asbestos work practices, collecting
(Repealed.)                                                          environmental asbestos air samples during abatement,
A. Each individual applying to the board for licensure as an         performing visual inspections and taking final air samples to
asbestos project designer shall submit a completed                   grant clearance for asbestos abatement projects. Each
application, all training documents as established in 18 VAC         applicant shall provide evidence of 160 hours of said
15-20-30 C, the appropriate fee as established in 18 VAC             experience.
15-20-50, and evidence of meeting the experience                     18 VAC 15-20-331. Qualifying experience. (Repealed.)
requirements as established in subsection B of this section.
Evidence of experience and education shall comply with               Experience may be obtained by:
18 VAC 15-20-40.
                                                                        1. Acting as an asbestos project monitor in jurisdictions
B. The applicant shall provide evidence of experience in the            outside of Virginia in accordance with all federal, state and
preparation of project designs or project specifications. The           local statutes.
amount of experience required is dependent on the applicant's
formal education and is as follows:                                     2. Acting as an asbestos project monitor under the direct
                                                                        supervision, as defined in this chapter, of a licensed
  1. An applicant with a bachelor's degree in engineering,              asbestos project monitor, or an accredited asbestos project
  architecture, industrial hygiene, physical science or related         monitor where no license is required. All project monitoring
  field shall have six months' experience or shall have                 reports prepared by the unlicensed individual shall be
  completed a minimum of five project designs.                          signed by the licensed or accredited project monitor in
                                                                        charge. The licensed or accredited project monitor assumes
  2. An applicant with a two-year associate's degree in                 responsibility for all reports and documents prepared by the
  engineering, architecture, industrial hygiene, physical               unlicensed individual.
  science or related field shall have 12 months' experience or
  shall have completed a minimum of 10 project designs.              18 VAC 15-20-332. Project monitor training requirements.
                                                                     (Repealed.)
  3. An applicant with a high school diploma shall have at
  least 24 months' experience or shall have completed a              A. An applicant currently certified by the EPA as an asbestos
  minimum of 15 project designs.                                     project designer or asbestos supervisor shall successfully
                                                                     complete a board-approved asbestos project monitor training
18 VAC 15-20-291. Qualifying experience. (Repealed.)                 program of 16 hours and examination. Evidence of current
Experience may be obtained by:                                       project designer or current supervisor accreditation shall be
                                                                     submitted with the application.
  1. Preparing asbestos project designs in jurisdictions
  outside of Virginia in accordance with all federal, state and      B. An applicant not currently certified as an asbestos project
  local statutes.                                                    designer or asbestos supervisor shall successfully complete a
                                                                     board-approved asbestos project monitor training program of
  2. Preparing asbestos project designs under the direct             40 hours and examination. Evidence of completion of the
  supervision, as defined in this chapter, of a licensed             40-hour training program shall be submitted with the
  asbestos project designer, or EPA-accredited asbestos              application.
  project designer where no license is required. All project
  designs prepared by the unlicensed individual shall be

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                                                                 1326
                                                                                            Proposed Regulations
C. Only project monitor training programs that are board                               PART XII VI.
approved will be accepted for meeting the training                     GENERAL STANDARDS OF PRACTICE AND CONDUCT.
requirements.
                                                                    18 VAC 15-20-400. Responsibility to the public.
                   PART XI.
   ASBESTOS ANALYTICAL LABORATORY LICENSING                         The primary obligation of the regulant licensee is to the public.
                REQUIREMENTS.                                       If the regulant's licensee's judgment is overruled under
                                                                    circumstances when the safety, health, property and welfare
18 VAC    15-20-361.       Qualifications     for    licensure.     of the public are endangered, the regulant licensee shall
(Repealed.)                                                         inform the employer or client of the possible consequences
                                                                    and notify appropriate authorities if the situation is not
A. Each applicant for an asbestos analytical laboratory license     resolved. The regulant licensee shall take such action only
shall submit a completed application, the appropriate fee as        when his authority to correct a problem has been ignored or
required by 18 VAC 15-20-50, and evidence of meeting the            overruled.
standards to perform one or more of the analyses described in
subsections B, C and D of this section. Each license issued         18 VAC 15-20-410. Public statements.
shall indicate which kind of analysis the asbestos analytical
laboratory is seeking authorization to perform.                     A. The regulant licensee shall be truthful in all matters relating
                                                                    to the performance of asbestos abatement or asbestos
B. For authorization to analyze bulk materials using PLM, the       consulting services.
applicant shall provide evidence that the asbestos analytical
laboratory is currently NVLAP accredited for bulk asbestos          B. When serving as an expert or technical witness, the
fiber analysis or evidence that the asbestos analytical             regulant licensee shall express an opinion only when it is
laboratory is AIHA accredited and proficient in the AIHA bulk       based on an adequate knowledge of the facts in issue and on
asbestos program. A copy of the NVLAP Certificate of                a background of technical competence in the subject matter.
Accreditation, Scope of Accreditation and documentation of          Except when appearing as an expert witness in court or an
NVLAP proficiency or a copy of an AIHA accreditation                administrative proceeding when the parties are represented
certificate and proof of proficiency in the AIHA bulk program       by counsel, the regulant licensee shall issue no statements,
shall be submitted with the application for licensure.              reports, criticisms, or arguments on matters relating to
                                                                    practices which are inspired or paid for by an interested party
C. For authorization to analyze airborne fibers using PCM:          or parties, unless one has prefaced the comment by
                                                                    disclosing the identities of the party or parties on whose behalf
  1. For fixed laboratory sites, the applicant shall provide        the regulant licensee is speaking, and by revealing any
  evidence that each facility is accredited by AIHA or that         self-interest.
  each facility has been rated "proficient" in the PAT
  Program's most recent round of asbestos evaluations, or           C. A regulant Licensees or applicants shall not knowingly
  the applicant shall provide evidence that each analyst is         make a materially false statement, submit falsified documents
  listed or has applied for listing in the Asbestos Analyst         or fail to disclose a material fact requested in connection with
  Registry (AAR) and has a performance rating of                    an application submitted to the board by any individual or
  "acceptable" for the most recent Asbestos Analyst Testing         business entity for licensure or renewal.
  (AAT) round. The applicant shall also provide evidence that
  each analyst has completed the NIOSH 582 training                 18 VAC 15-20-420. Solicitation of work.
  program or equivalent.                                            In the course of soliciting work:
  2. For laboratories that will be conducting on-site analysis,        1. The regulant licensee shall not bribe.
  the applicant shall provide evidence that each on-site
  analyst is listed or has applied for listing in the AAR and has      2. The regulant licensee shall not falsify or permit
  a performance rating of "acceptable" for the most recent             misrepresentation of the regulant's licensee's work or an
  AAT round within six months after January 2, 2002, or is             associate's academic or professional qualifications, nor
  accredited by AIHA or has been rated "proficient" in the             shall the regulant licensee misrepresent the degree of
  PAT Program's most recent round of asbestos evaluations.             responsibility for prior assignments.
  The applicant shall also provide evidence that each analyst          3. Materials used in the solicitation of employment shall not
  has completed the NIOSH 582 training program or                      misrepresent facts concerning employers, employees,
  equivalent.                                                          associates, joint ventures or past accomplishments of any
D. For licensure to analyze asbestos airborne fibers using             kind.
TEM, the applicant shall provide evidence that the asbestos            4. Materials used in the solicitation of services shall not
analytical laboratory is currently NVLAP accredited to analyze         misrepresent facts of approval, federal, or state
asbestos airborne fibers using TEM. A copy of the NVLAP                requirements.
Certificate of Accreditation, Scope of Accreditation and
documentation of NVLAP proficiency shall be submitted with          18 VAC 15-20-430. Professional responsibility.
the application.
                                                                    A. The licensee or approved entity accredited asbestos
                                                                    training provider shall, upon request or demand, produce to
                                                                    the board, or any of its representatives, any plan, document,

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                                                                1327
Proposed Regulations
book, record or copy of it in his possession concerning a              4. Violating any provision of AHERA or ASHARA, or any
transaction covered by this chapter, and shall cooperate in the        federal or state regulation pertinent to asbestos activity.
investigation of a complaint filed with the board against a
licensee or approved entity accredited asbestos training               5. Having been found guilty by the board, an administrative
provider.                                                              body, or by a court of any misrepresentation in the course of
                                                                       performing his asbestos-related operating duties.
B. A licensee or approved entity accredited asbestos training
provider shall not use the design, plans or work of another            6. Subject to the provisions of § 54.1-204 of the Code of
licensee or approved entity accredited asbestos training               Virginia, having been convicted or found guilty, regardless
provider without the original professional's knowledge and             of adjudication in any jurisdiction of the United States, of
consent and after consent, a thorough review to the extent             any felony or of any misdemeanor involving lying, cheating,
that full responsibility shall be assumed by the user.                 or stealing, or of any violation while engaged in
                                                                       environmental remediation activity, which resulted in the
C. Accredited asbestos training providers shall admit board            significant harm or the imminent and substantial threat of
representatives for the purpose of conducting an on-site audit,        significant harm to human health or the environment there
or any other purpose necessary to evaluate compliance with             being no appeal pending therefrom or the time for appeal
this chapter and other applicable laws and regulations.                having elapsed. Any plea of nolo contendere shall be
                                                                       considered a conviction for the purposes of this chapter. A
18 VAC 15-20-440. Good standing in other jurisdictions.                certified copy of the final order, decree or case decision by
A. Regulants Licensees, accredited asbestos training                   a court or regulatory agency with lawful authority to issue
providers, training managers, or principal instructors who             such order, decree or case decision shall be admissible as
perform project monitoring, project design, inspections,               prima facie evidence of such conviction or discipline.
management planning, asbestos abatement training, asbestos             7. Failing to notify the board in writing within 30 days of
contracting or supervisor work in other jurisdictions shall be in      pleading guilty or nolo contendere or being convicted or
good standing in every jurisdiction where licensed, certified, or      found guilty of any felony or of any misdemeanor involving
approved and shall not have had a license, certification or            lying, cheating, or stealing or of any violation while engaged
approval suspended, revoked or surrendered in connection               in environmental remediation activity which resulted in the
with a disciplinary action.                                            significant harm or the imminent and substantial threat of
B. Regulants Licensees, accredited asbestos training                   significant harm to human health or the environment.
providers, training managers, or principal instructors shall           8. Negligence, or a continued pattern of incompetence, in
notify the board in writing no later than 10 days after the final      the practice of the discipline in which the asbestos license is
disciplinary action taken by another jurisdiction against their        held.
license or other approval to conduct asbestos abatement
activities.                                                            9. Failing or neglecting to send any information or
                                                                       documentation that was requested by the board or its
C. Regulants Licensees, accredited asbestos training                   representatives.
providers, training managers, or principal instructors may be
subject to disciplinary action or removal of an asbestos               10. Refusing to allow state or federal representatives
training program accreditation for disciplinary actions taken by       access to any area of an abatement site for the purpose of
another jurisdiction.                                                  lawful compliance inspections.
18 VAC 15-20-450. Grounds for disciplinary action.                     11. Failing to notify the board in writing within 30 days after
                                                                       any change in address or name.
A. The board shall have the authority to fine any licensee or
accredited asbestos training program, accredited asbestos              12. Acting as or being an ostensible licensee for
training provider or instructor, and to deny renewal, suspend,         undisclosed persons who do or will control or direct, directly
revoke or deny application for any license or approval as an           or indirectly, the operations of the licensee’s business.
accredited asbestos training program, accredited asbestos
training provider or instructor provided for under Chapter 5        Any unlawful act or violation of any provision of Chapter 5
(§ 54.1-500 et seq.) of Title 54.1 of the Code of Virginia for:     (§ 54.1-500 et seq.) of Title 54.1 of the Code of Virginia or of
                                                                    the regulations of the board by any asbestos supervisor or
  1. Violating or inducing another person to violate any of the     asbestos worker may be cause for disciplinary action against
  provisions of Chapter 1, 2, 3, or 5 of Title 54.1 of the Code     the asbestos contractor for whom he works if it appears to the
  of Virginia, or any of the provisions of this chapter.            satisfaction of the board that the asbestos contractor knew or
                                                                    should have known of the unlawful act or violation.
  2. Obtaining a license, approval as an accredited asbestos
  training program, approval as an accredited asbestos              B. Any individual or firm whose license, approval as an
  training provider or approval as an instructor through            accredited asbestos training program, or approval as an
  fraudulent means.                                                 accredited asbestos training provider is revoked under this
                                                                    section shall not be eligible to reapply for a period of one year
  3. Altering, or falsifying or issuing a fraudulent Virginia       from the effective date of the final order of revocation. The
  Asbestos License or a training certificate issued by from an      individual or firm shall meet all education, experience and
  accredited asbestos training program.                             training requirements, complete the application and submit the
                                                                    required fee for consideration as a new applicant.

                                                  Virginia Register of Regulations

                                                                1328
                                                                                          Proposed Regulations
                  PART XIII VII.                                     from the building owners' property are exempt from this
    STANDARDS OF PRACTICE AND CONDUCT FOR                            section.
       LICENSED ASBESTOS CONTRACTORS.
                                                                     2. It is a conflict of interest and a violation of these
18 VAC 15-20-451. Asbestos contractor responsibilities.              regulations this chapter for an asbestos contractor to have
                                                                     an employee/employer relationship with an asbestos project
A. Licensed asbestos contractors shall comply with all               monitor working on an asbestos project performed by that
requirements, procedures, standards and regulations covering         asbestos contractor. An asbestos contractor shall not have
any part of an asbestos project established by the U.S.              any financial interests in the firm of which a project monitor
Environmental Protection Agency, the U.S. Occupational               is an employee and provides project monitoring services for
Safety and Health Administration, the Virginia Department of         that contractor. This section does not relieve a contractor of
Labor and Industry, and the Divisions of Air Pollution and           the OSHA personal monitoring requirements set forth in 29
Waste Management of the Department of Environmental                  CFR 1926.1101.
Quality (§ 54.1-517 of the Code of Virginia).
                                                                     3. It is a conflict of interest and a violation of these
B. Licensed asbestos contractors shall comply with the               regulations this chapter for an asbestos contractor to enter
requirements found in § 54.1-1100 of the Code of Virginia            into a contract to perform an asbestos project if the
governing the regulation of general contractors.                     asbestos inspection or project design was performed by
C. A licensed asbestos contractor shall employ only licensed         individuals with an employer/employee relationship with, or
asbestos supervisors and workers to perform work on any              financial interest in, the asbestos contractor, unless the
asbestos project.                                                    asbestos contractor provides the building owner with the
                                                                     Virginia Asbestos Licensing Consumer Information Sheet
D. A licensed asbestos contractor shall ensure that a licensed       and the Virginia Asbestos Licensing Inspector/Project
asbestos supervisor is present at each job site while an             Designer/Contractor Disclosure Form as prescribed by the
asbestos project is in progress.                                     department. The asbestos contractor's relationship with the
E. Prior to the start of any asbestos project, the licensed          asbestos inspector or project designer on the project shall
asbestos contractor shall:                                           be disclosed. The disclosure form shall be signed and dated
                                                                     by the licensed contractor and submitted as part of the bid.
  1. Notify the building or property owner or agent of the           The disclosure form shall be kept on the asbestos project
  owner that a licensed project monitor is required to               site and available for review.
  determine that proper work practices are used and
  compliance with all asbestos laws and regulations is                              PART XIV VIII.
  maintained, to collect environmental air samples during the          STANDARDS OF PRACTICE AND CONDUCT FOR
  asbestos project, to perform visual inspections of the work               ASBESTOS PROJECT MONITORS.
  area, and to grant final clearance upon completion of the       18 VAC 15-20-456. Responsibilities.
  asbestos project.
                                                                  A. Asbestos project monitors shall conduct inspections of the
  2. Obtain a written acknowledgment from the owner that the      contractor's work practices and inspections of the containment
  owner has been notified of the requirement to secure the        when the project monitor is present.
  services of a licensed asbestos project monitor. Such
  acknowledgment must include the address of the building         B. Asbestos project monitors shall be present on the job site
  where the asbestos project is to take place; the date the       each day asbestos abatement activities are being conducted,
  work is to be performed; the name, address, and license         shall perform the duties and functions established in 18 VAC
  number of the licensed asbestos contractor performing the       15-20-455, and shall maintain a daily log of all work
  work; and the signature and date of signature of both the       performed. The daily log shall include, but not be limited to,
  building or property owner and the licensed asbestos            inspection reports, air sampling data, type of work performed
  contractor.                                                     by the contractor, problems encountered and corrective action
                                                                  taken.
  3. Conflict of interest situations and relationships between
  asbestos contractors and asbestos project monitors are set      C. Asbestos project monitors shall take final air samples on all
  forth in subdivision 2 of 18 VAC 15-20-453.                     abatement projects, except for abatement projects in
                                                                  residential buildings.
18 VAC 15-20-453. Conflict of interest.
                                                                  D. Project monitors who analyze PCM air samples on site
The following situations and relationships between license        shall be employed by a licensed analytical laboratory and shall
categories are deemed to represent a conflict of interest and     be listed or have applied for listing in the AAR and rated
are prohibited.                                                   "acceptable" or is accredited by AIHA or has been rated
  1. It is a conflict of interest and a violation of these        "proficient" in the PAT Program's most recent round of
  regulations this chapter for an asbestos contractor to have     asbestos evaluations.
  an employee/employer relationship with, or financial interest
  in, a laboratory utilized by the contractor for asbestos
  sample analysis. Laboratories owned by the building owner
  performing analysis on suspect asbestos samples taken


Volume 22, Issue 9                                                                                      Monday, January 9, 2006

                                                              1329
Proposed Regulations
                  PART XV IX.                                         10. A proposed training program date for auditing purposes.
    STANDARDS OF PRACTICE AND CONDUCT FOR                             The proposed date will be confirmed or an alternate date
         ASBESTOS PROJECT DESIGNERS.                                  will be proposed within 10 business days after receipt of a
                                                                      complete accredited asbestos training program submission
                  PART XVI X.                                         and the required fee.
    STANDARDS OF PRACTICE AND CONDUCT FOR
     ASBESTOS INSPECTORS AND MANAGEMENT                            B. A complete submission shall consist of all information
                  PLANNERS.                                        required by this section. Receipt of application and deposit of
                                                                   fees by the department in no way indicates approval of a
                 PART XVII XI.                                     training program.
    STANDARDS OF PRACTICE AND CONDUCT FOR
      ASBESTOS ANALYTICAL LABORATORIES.                            C. A complete application shall be submitted to the
                                                                   department no less than 45 days prior to the requested audit
                   PART XVIII.                                     date.
     ACCREDITED ASBESTOS TRAINING PROGRAM
                   APPROVAL.                                       18 VAC 15-20-459.7. Approval process. (Repealed.)
18 VAC 15-20-459.6. Accredited            asbestos     training    A. Upon receipt of a completed application, a preliminary
program requirements. (Repealed.)                                  review will be conducted to ensure all written material and
                                                                   other documentation is accurate and up to date. If any
A. Training programs desiring board approval shall meet the        deficiencies are noted, a letter will be sent to the applicant
minimum requirements established in this chapter. Persons          indicating the deficiencies and necessary steps to correct
requesting approval as an accredited asbestos training             them. All deficiencies noted during the preliminary review shall
program to prepare training program participants for licensure     be corrected prior to the on-site audit.
requirements shall submit an accredited asbestos Training
Program Review and Audit Application with the following            B. Upon successful completion of the preliminary review, an
required information:                                              on-site audit shall be conducted to complete the application
                                                                   process. If any deficiencies are noted during the audit, the
  1. Training provider's business name, physical address,          training provider will be informed, either in writing or verbally,
  mailing address, and phone number.                               and offered an opportunity to correct them. Once the audit is
  2. Copies of approval letters issued by EPA or other states      complete and any deficiencies corrected, a letter of approval
  granting approval of asbestos training programs presented        will be sent to the accredited asbestos training program.
  by the provider.                                                 18 VAC 15-20-459.8. Examination. (Repealed.)
  3. Applicable fee.                                               All accredited asbestos training programs approved by the
  4. The training program curriculum.                              board shall have a monitored, final written examination,
                                                                   except for asbestos workers needing an oral examination. The
  5. A narrative explanation that states how the training          board recommends the examination include a practical
  program meets the requirements for approval in the               component to test skill in asbestos abatement techniques.
  following areas:                                                 Students shall obtain a minimum examination grade of 70%
    a. Length of training in hours.                                correct. Records of the participant's examination shall be
                                                                   maintained in accordance with this chapter.
    b. Amount and type of hands-on training.
                                                                   18 VAC 15-20-459.9. Letters of approval. (Repealed.)
    c. Examinations (length, format and passing score).
                                                                   Letters of approval for accredited asbestos training programs
    d. Topics covered in the training program.                     shall be maintained at the business address listed on the
                                                                   approval letter and made accessible to the public. Each
    e. Assurances of test security and how exams are
                                                                   provider of an approved accredited asbestos training program
    administered.
                                                                   shall maintain all records at the business address. The
  6. A copy of all training program materials including, but not   required records shall be available for review upon demand by
  limited to, student manuals, instructor notebooks, handouts,     the board or its representatives.
  and training aids.
                                                                   18 VAC 15-20-459.10. Refresher approval. (Repealed.)
  7. A copy of the examination(s) used and applicable answer
                                                                   A. Refresher training programs shall be one day (8 hours) for
  sheets.
                                                                   supervisors, workers, project designers and project monitors,
  8. The names and qualifications, including education and         and one-half day (4 hours) for inspectors and management
  experience, of each instructor and subject areas that each       planners. The refresher training program shall review federal
  instructor will teach.                                           and state regulations; discuss changes to the regulations, if
                                                                   applicable, and developments in state-of-the-art procedures;
  9. A description of and an example of a certificate that will    and review key aspects of the initial training program.
  be issued to students who successfully complete the
  accredited asbestos training program. The certificate shall
  contain the information required by this chapter.

                                                 Virginia Register of Regulations

                                                               1330
                                                                                            Proposed Regulations
B. Persons wishing to conduct refresher training programs          18 VAC 15-20-459.14.           Access   by   the   department.
shall submit a training program review and audit application as    (Repealed.)
established in 18 VAC 15-20-459.6.
                                                                   Accredited asbestos training providers shall permit
18 VAC 15-20-459.11. Renewal of accredited asbestos                department representatives to attend, evaluate, and monitor
training programs. (Repealed.)                                     any accredited asbestos training program. Prior notice of
                                                                   attendance by agency representatives is not required.
Providers of accredited asbestos training programs desiring to
renew their approval shall submit the renewal notice to the        18 VAC 15-20-459.15. Suspension or revocation of
department along with the following:                               approval of an accredited asbestos training program.
                                                                   (Repealed.)
  1. Appropriate fee.
                                                                   A. The board may withdraw approval of any accredited
  2. Name of the training program for which they are               asbestos training program for the following reasons:
  renewing.
                                                                      1. The school, instructors, or training programs no longer
  3. Any changes made to the training program.                        meet the standards established in this chapter.
  4. Dates on which the training material was last updated.           2. The board determines that the provider is not conducting
  5. Statement indicating that the training program continues         the training in a manner that meets the requirements as set
  to meet the regulation requirements established in this             forth in this chapter.
  chapter.                                                            3. Suspension or revocation of training approval in another
18 VAC 15-20-459.12. Changes to an approved accredited                state or by the EPA.
asbestos training program. (Repealed.)                             B. Decisions regarding withdrawal of approval shall be made
Once an accredited asbestos training program has been              by the board under the provisions of the Virginia
approved, prior to the continuation of the accredited asbestos     Administrative Process Act (§ 2.2-4000 et seq. of the Code of
training program, substantial changes in the information           Virginia).
required by subdivisions 1 through 5 of this section shall be                         PART XIX XII.
submitted to the board for review and approval. The board will           ACCREDITED ASBESTOS TRAINING PROGRAM
state its approval or disapproval of the changes by mail.               PERFORMANCE STANDARDS OF PRACTICE AND
  1. Training program curriculum.                                                      CONDUCT.

  2. Training program examination.                                 18 VAC 15-20-460. General. (Repealed.)

  3. Training program materials.                                   This part outlines the recordkeeping responsibilities for an
                                                                   accredited asbestos training provider (training provider)
  4. Principal instructors.                                        performing asbestos training under Virginia law. All records
  5. Certificate of completion.                                    are required to be available for review by representatives of
                                                                   the board. Records required to be maintained by the training
18 VAC 15-20-459.13. Transfer of approval of                  an   provider shall be maintained at the physical location of the
accredited asbestos training program. (Repealed.)                  accredited asbestos training provider.
The transfer of the approval of an accredited asbestos training    18 VAC 15-20-461. Changes to an approved accredited
program will require a review by the following procedure:          asbestos training program.
  1. The applicant for transfer shall submit an application to     Once an accredited asbestos training program has been
  the department and materials for review to determine if          approved, prior to the continuation of the accredited asbestos
  substantial changes have been made to the program. All           training program, substantial changes in the information
  submissions shall be in accordance with 18 VAC                   required by subdivisions 1 through 5 of this section shall be
  15-20-459.6.                                                     submitted to the board for review and approval. The board will
                                                                   state its approval or disapproval of the changes by mail.
  2. Receipt of applications and deposit of fees submitted
  does not indicate approval of the transfer.                         1. Training program curriculum.
  3. A review of the submitted materials shall be performed to        2. Training program examination.
  determine if substantial changes have been made. A
  substantial change is defined as a change in training               3. Training program materials.
  program materials, curriculum, principal instructors or             4. Principal instructors.
  facilities at the time of transfer of the accredited asbestos
  training program. A complete field audit may be conducted           5. Certificate of completion.
  of any applicant believed to have made a substantial
  change.




Volume 22, Issue 9                                                                                         Monday, January 9, 2006

                                                               1331
Proposed Regulations
18 VAC 15-20-462. Transfer of approval of an accredited                1. For accredited asbestos training programs beginning
asbestos training program.                                             prior to the start date provided to the board, an updated
                                                                       notification must be received by the board at least 48 hours
The transfer of the approval of an accredited asbestos training        before the new start date.
program will require a review by the following procedure:
                                                                       2. For accredited asbestos training programs beginning
  1. The applicant for transfer shall submit an application to         after the start date provided to the board, an updated
  the department and materials for review to determine if              notification must be received by the board at least 48 hours
  substantial changes have been made to the program. All               before the start date provided to the board.
  submissions shall be in accordance with subsections A, B
  and C of 18 VAC 15-20-34.                                         C. The training manager shall update the board of any change
                                                                    in location of an accredited asbestos training program at least
  2. Receipt of applications and deposit of fees submitted          48 hours prior to the start date provided to the board.
  does not indicate approval of the transfer.
                                                                    D. The training manager shall update the board regarding any
  3. A review of the submitted materials shall be performed to      accredited asbestos training program cancellations or any
  determine if substantial changes have been made. A                other change to the original notification at least 48 hours prior
  substantial change is defined as a change in training             to the start date provided to the board. This requirement shall
  program materials, curriculum, principal instructors or           not apply to situations or circumstances beyond the control of
  facilities at the time of transfer of the accredited asbestos     the training provider.
  training program. A complete field audit may be conducted
  of any applicant believed to have made a substantial              E. Each notification, including updates, shall include the
  change.                                                           following:
18 VAC 15-20-463. Access by the department.                            1. Notification type (original, update, cancellation).
Accredited asbestos training providers shall permit                    2. Training program name, Virginia accreditation number,
department representatives to attend, evaluate, and monitor            address, and telephone number.
any accredited asbestos training program. Prior notice of
attendance by agency representatives is not required. All              3. Course discipline, type (initial/refresher), and the
records are required to be available for review by department          language in which the instruction will be given.
representatives. Records required to be maintained by the              4. Dates and times of training.
training provider shall be maintained at the physical location of
the accredited asbestos training provider.                             5. Training locations, telephone number, and address.

18 VAC 15-20-464. Withdrawal of approval                 of   an       6. Principal instructor’s name.
accredited asbestos training program.                                  7. Training manager’s name and signature.
A. The board may withdraw approval of any accredited                A. F. For all accredited asbestos training programs approved
asbestos training program for the following reasons:                by the board, the training provider shall keep a training
  1. The school, instructors, or training programs no longer        program participant list of all training program participants of
  meet the standards established in this chapter.                   the individuals attending the accredited asbestos training
                                                                    program. The training program participant list shall contain the
  2. The board determines that the provider is not conducting       following minimum information:
  the training in a manner that meets the requirements as set
  forth in this chapter.                                               1. Training provider;

  3. Suspension or revocation of training approval in another          2. Date of training;
  state or by the EPA.                                                 3. Location of training program presentation;
B. Decisions regarding withdrawal of approval shall be made            4. Type and length of training;
by the board under the provisions of the Virginia
Administrative Process Act (§ 2.2-4000 et seq. of the Code of          5. Training program manager and principal instructor;
Virginia).
                                                                       6. Training program participant's name as it will appear on
18 VAC 15-20-470. Recordkeeping and provision of                       the Certificate of Completion to be issued by the training
records to the board.                                                  provider;
A. The training manager shall notify the board no less than 48         7. Participant's employer, if applicable;
hours prior to the start date of any accredited asbestos
                                                                       8. Participant's name, address, and social security number;
training program.
                                                                       9. Participant's Virginia asbestos license number, if
B. The training manager shall provide an updated notification
                                                                       applicable;
when an accredited asbestos training program will begin on a
date other than the start date specified in the original               10. The resulting certificate number assigned to a
notification as follows:                                               participant who successfully completes the accredited


                                                  Virginia Register of Regulations

                                                                1332
                                                                                              Proposed Regulations
  asbestos training program when applicable and expiration          the Registrar of Regulations, General Assembly Building, 2nd
  date; and                                                         Floor, Richmond, Virginia.
  11. The participant's examination score, when applicable.
                                                                                                   FORMS
  1. Training program name, Virginia accreditation number,
  address, and telephone number.                                    Asbestos License Application Instructions, 33AINS (eff.
                                                                    10/30/01 rev. 1/02).
  2. Course discipline and type (initial/refresher).
                                                                    Asbestos License Application, 33ALIC (eff. 10/30/01 rev.
  3. Dates of training.                                             1/02).
  4. Location of training program presentation.                     Experience Verification, 33AEXPED (eff. 10/30/01 rev. 1/05).
  5. Each participant’s name, address, social security              Education Verification, 33AEXPED (eff. 10/30/01 rev. 1/05).
  number, course completion certificate number, and course
  test score.                                                       Virginia Asbestos Licensing Consumer Information Sheet,
                                                                    33ACIS (eff. 10/30/01 rev. 1/02).
  6. Principal instructor’s name.
                                                                    Inspector/Project Designer Contractor             Disclosure        Form,
  7. Training manager’s name and signature.                         33ADIS (eff. 10/30/01 rev. 1/02).
B. G. The training program participant list shall be completed      Asbestos Contractor License Application, 33ACON (eff.
by the training provider program principal instructor and           10/30/01 rev. 1/02).
training program participants daily.
                                                                    Asbestos Analytical Laboratory License Application, 33ALAB
C. H. The training program participant list shall be retained by    (eff. 10/30/01 rev. 1/02).
the training provider for three years following the date of
completion of the training program.                                 Asbestos Training Program Review and Audit Application,
                                                                    33ACRS (eff. 10/30/01 rev. 4/02); w/instructions, 33ACRSRQ
D. The training provider shall provide to the board the training    (eff. 10/30/01 rev. 1/02).
program participant list as described in subsection A of this
section within 24 hours of training program completion.                    VA.R. Doc. No. R04-241; Filed December 9, 2005, 11:26 a.m.

I. The training manager shall provide to the board the                                          ********
accredited asbestos training program participant list no later
than 24 hours following the training program completion.            Title of Regulation: 18 VAC 15-30. Virginia Lead-Based
                                                                    Paint Activities Regulations (amending 18 VAC 15-30-420,
J. Notifications and training program participant lists shall be    18 VAC 15-30-510, 18 VAC 15-30-810, and 18 VAC 15-30-
submitted electronically in the manner established by the           820; adding 18 VAC 15-30-51 through 18 VAC 15-30-54,
board specifically to receive this documentation using a            18 VAC 15-30-161 through 18 VAC 15-30-167, 18 VAC 15-
sample form designed by and available from the board. Any           30-332, and 18 VAC 15-30-334; repealing 18 VAC 15-30-30,
variation upon this procedure shall be approved by the board        18 VAC 15-30-40, 18 VAC 15-30-50, and 18 VAC 15-30-100
prior to submission.                                                through 18 VAC 15-30-330).
E. K. The training provider shall retain all examinations           Statutory Authority: §§ 54.1-201 and 54.1-501 of the Code of
completed by training program participants for a period of          Virginia.
three years.
                                                                    Public Hearing Date: March 30, 2006 - 9 a.m.
F. Training providers shall notify the department no less than        Public comments may be submitted until April 14, 2006.
48 hours prior to conducting an accredited asbestos training            (See Calendar of Events section
program.                                                                for additional information)
G. L. The department will shall not recognize training              Agency Contact:       David E. Dick, Executive Director,
certificates from approved training providers that fail to notify   Department of Professional and Occupational Regulation,
or fail to provide a training program participant list.             3600 West Broad Street, Richmond, VA 23230-4917,
                  PART XX XIII.                                     telephone (804) 367-2648, FAX (804) 367-6128, or e-mail
     ACCREDITED ASBESTOS TRAINING PROGRAM                           alhi@dpor.virginia.gov.
                  STANDARDS.                                        Basis: The Board for Asbestos, Lead, and Home Inspectors is
                                                                    empowered to promulgate regulations under the legal
NOTICE: The forms used in administering 18 VAC 15-20,
                                                                    authority found in § 54.1-201 of the Code of Virginia, which
Virginia Asbestos Licensing Regulations are not being
                                                                    empowers regulatory boards generally, and § 54.1-501 of the
published; however, the name of each form is listed below.
                                                                    Code of Virginia, which empowers the Board for Asbestos,
The forms are available for public inspection at the
                                                                    Lead, and Home Inspectors specifically.
Department of Professional and Occupational Regulation,
3600 West Broad Street, Richmond, Virginia, or at the office of     Purpose: The proposed amendments empower the board to
                                                                    deny license and approval as well as to take disciplinary
                                                                    action against those acting as or being an ostensible licensee

Volume 22, Issue 9                                                                                             Monday, January 9, 2006

                                                                1333
Proposed Regulations
for undisclosed persons who do or will control or direct,            will benefit by reorganizing the regulations in a format that is
directly or indirectly, the operations of the licensed or            easier to understand.
approved entity. The board will be able to deny application to
or take disciplinary action against individuals who have been        Department of Planning and Budget's Economic Impact
disciplined and have found others to become licensed on their        Analysis: The Department of Planning and Budget (DPB) has
behalf.                                                              analyzed the economic impact of this proposed regulation in
                                                                     accordance with § 2.2-4007 H of the Administrative Process
Requiring training providers to submit notices and training          Act and Executive Order Number 21 (02). Section 2.2-4007 H
program participant lists electronically will speed up the           requires that such economic impact analyses include, but
processing of license applications and enable licenses to be         need not be limited to, the projected number of businesses or
issued and renewed faster. Language is provided to allow             other entities to whom the regulation would apply, the identity
manual reporting by those who do not have the hardware and           of any localities and types of businesses or other entities
software to submit electronically.                                   particularly affected, the projected number of persons and
                                                                     employment positions to be affected, the projected costs to
The proposed amendments requiring social security numbers            affected businesses or entities to implement or comply with
instead of the date of birth on training program participant lists   the regulation, and the impact on the use and value of private
implements § 54.1-116 of the Code of Virginia, provides a            property. The analysis presented below represents DPB’s
means of quickly matching data to the appropriate record and         best estimate of these economic impacts.
conforms the regulatory requirements of this set of regulations
with the board’s Asbestos Licensing Regulations. Many                Summary of the proposed regulation. The Board for Asbestos,
entities authorized to provide lead-based paint activities           Lead and Home Inspectors (board) proposes to: 1) list "acting
training are also authorized to provide asbestos training.           as or being an ostensible licensee for undisclosed persons
Conforming the reporting requirements will ease the burden           who do or will control or direct, directly or indirectly, the
on those board-authorized entities that offer both types of          operations of the licensee’s business" as grounds for
training by enabling them to report the same data for both.          discipline, 2) list "failure to notify the board in writing within 30
                                                                     days after any change in address or name" as grounds for
The intent of reorganizing the regulations is to present the         discipline, 3) require that notifications and training program
regulatory requirements in a format that is easier to                participants lists be submitted electronically on forms provided
understand and to make them more consistent with other               by the board, and 4) require that each accredited lead training
DPOR board regulations. This will further the efficient and          program maintain and make available to the board each
economical performance of important government functions.            participant’s social security number rather than their birth date.
Substance:      The board has, from time to time, taken              Estimated economic impact.
disciplinary action against certain firms and individuals or
denied licensure or approval to those firms and individuals          Health risks associated with lead-based paint. According to
under its regulatory authority and its affirmative obligation to     the U.S. Center for Disease Control and Prevention, Agency
                                                                                                                    1
protect the public. The board is concerned that those so             for Toxic Substances and Disease Registry, lead can affect
disciplined or denied may find others who have not been so           almost every organ and system in the body. The most
disciplined or denied to apply for and become licensed or            sensitive is the central nervous system, particularly in children.
approved. Those disciplined or denied will then operate as the       A child who swallows large amounts of lead may develop
ostensible licensee, approved entity or individual, thus             blood anemia, severe stomachache, muscle weakness, and
rendering the board’s regulatory authority ineffective. The          brain damage. Lead can also damage kidneys and the male
board’s proposed amendments empower the board to deny                reproductive system. The effects are the same whether it is
the application of or take disciplinary action against anyone        breathed or swallowed. At high levels, lead may decrease
found to be an ostensible owner acting on the behalf of a            reaction time, cause weakness in fingers, wrists, or ankles,
disqualified individual.                                             and possibly affect the memory.
Issues: No disadvantages to the public or the Commonwealth           Purpose of these regulations. These regulations contain
have been identified.                                                procedures and requirements for the accreditation of lead-
                                                                     based paint activities training programs and providers,
The public is protected by empowering the board to take              procedures and requirements for the licensure of individuals
disciplinary action against those acting as or being an              and firms engaged in lead-based paint activities in target
ostensible licensee for undisclosed persons who do or will           housing and child-occupied facilities, and standards for
control or direct the operations of the licensed or approved         performing such activities. Lead-based paint activities are
entity.                                                              defined as risk assessment, inspection, project design and
The agency will benefit by requiring all training program            abatement that affect or relate to target housing and child-
notifications and rosters to be submitted in a uniform manner        occupied facilities. Target housing is defined as any housing
that will lead to streamlining the processing of applications        constructed prior to 1978, except for housing for the elderly, or
and will ultimately get licenses to applicants sooner.               persons with disabilities (unless any one or more children age
                                                                     six years or under resides or is expected to reside in such
The agency’s Compliance and Investigations Division will
benefit from reorganizing the regulations by making the
regulations more consistent with other DPOR board                    1
                                                                       U.S. Center for Disease Control and Prevention, Agency for Toxic Substances
regulations. The public, government officials and the industry       and Disease Registry ToxFAQs: Lead, June 1999.

                                                   Virginia Register of Regulations

                                                                 1334
                                                                                                  Proposed Regulations
housing for the elderly or persons with disabilities) or any         training programs provide to the board a list of program
zero-bedroom dwelling.                                               participants no later than 10 business days following the
                                                                     training program completion. Under the current regulations,
New grounds for disciplinary action. The board and                   the list must include identifying information for each
Department of Professional and Occupational Regulation               participant, including date of birth. The board proposes to
(department) have seen situations where firms or individuals         eliminate the requirement for date of birth and add a
who having had their license revoked or license application          requirement for social security number. Since different
denied, have found others who have not been so disciplined           individuals share dates of birth, but no two individuals share
or denied to apply for and become licensed. The individual           social security numbers, the proposed amendment will
who had his license revoked or license application denied            decrease the probability that program participants are
then directed the operations of the licensee’s business. Since       misidentified. Also, the department has found that social
the license was presumably denied or revoked due to                  security numbers help speed data processing and license
incompetence or dishonest or sloppy practice, then the               issuance.
situation where the disciplined individual can effectively
operate as licensed despite the denial or revocation minimizes       Some individuals may have concerns about giving out their
the board and department’s ability to protect the public from        social security number. But, licensure applicants already
the effects of incompetent, dishonest, or haphazard lead-            submit their social security numbers. Section § 54.1-116 of
based paint activities.                                              the Code of Virginia specifies that:
Consequently, the board proposes to add the following to the             Every applicant for a license, certificate, registration or
list of grounds for disciplinary action: "acting as or being an          other authorization to engage in a business, trade,
ostensible licensee for undisclosed persons who do or will               profession or occupation issued by the Commonwealth
control or direct, directly or indirectly, the operations of the         pursuant to this title, and every applicant for renewal
licensee’s business." In practice, it may be difficult to prove          thereof, shall provide on the application either his social
that a licensee is actually permitting someone else to control           security number or control number issued by the
their business. Nevertheless, as long as the board does not              Department of Motor Vehicles pursuant to § 46.2-342.
mistakenly discipline legitimate licensees, this proposed
amendment has the potential to produce a net benefit for the         Consistent with the above code section, the department has
Commonwealth by reducing the likelihood that dishonest or            stated that it will accept a control number issued by the
incompetent individuals can continue to practice and expose          Department of Motor Vehicles (DMV) in lieu of a social
the public to unnecessary health and financial risks.                security number. Thus, the proposed amendment will produce
                                                                     a small net benefit in that it will reduce the probability of
The board also proposes to add "failure to notify the board in       misidentification and speed data processing, while not
writing within 30 days after any change in address or name"          producing significant security concerns since a control number
as grounds for discipline. The board needs to keep track of          issued by the DMV can be used in lieu of the social security
licensees’ identity and location in order to monitor their           number.
compliance with the regulations. The risk to public health of
incompetent or dishonest lead-based paint activities is              Businesses and entities affected. The proposed amendments
significant.The cost for licensees of keeping the board              affect the 421 licensed lead-paint workers, 204 licensed lead-
informed is small since, according to the department, they can       paint supervisors, 96 licensed lead-paint inspectors, 245
prepare and email notifications in ten minutes or less Thus,         licensed lead-paint risk assessors, 57 licensed lead-paint
the proposal to allow the board to enforce a requirement that        project designers, 145 licensed lead-paint contractors, the 21
will help enable it to monitor licensees’ compliance with the        firms that are accredited to provide lead-based paint activities
                                                                                                                         2
regulations will likely produce a net benefit.                       training, as well as property owners and the public.

Format of communication. The board proposes to amend                 Localities particularly affected. The proposed regulations
these regulations to state that "Notifications and training          apply to all Virginia localities.
program participant lists shall be submitted electronically in       Projected impact on employment. The proposed amendments
the manner established by the board specifically to receive          are unlikely to significantly affect employment.
this documentation using a sample form designed by and
available from the board. Any variation upon this procedure          Effects on the use and value of private property. The
shall be approved by the board prior to submission."                 proposed amendments will not significantly affect the use and
According to the department, those without access to the             value of honest and competent lead-based paint businesses.
necessary equipment to submit electronically will be permitted       A small number of firms or individuals who having had their
to submit notifications and training program participant lists by    license revoked or license application denied, have found
alternative means. The proposed standard electronic method           others who have not been so disciplined or denied to apply for
of submitting notifications and training program participant lists   and become licensed or approved, may not be able to
will enable the department to process the information more           operate, and hence lose value, due to the proposal to add
rapidly. The saved staff time can thus be used more                  "acting as or being an ostensible licensee for undisclosed
productively on other work.                                          persons who do or will control or direct, directly or indirectly,

Training program participant list identity data. These
regulations require that the manager of accredited lead              2
                                                                       Source for numbers of license holders: Department of Professional and
                                                                     Occupational Regulation. Numbers were current as of August 31, 2005.

Volume 22, Issue 9                                                                                                 Monday, January 9, 2006

                                                                 1335
Proposed Regulations
the operations of the licensee’s business" as grounds for                                PART III.
discipline.                                                           APPLICATION AND RENEWAL REQUIREMENTS ENTRY.
Small businesses: costs and other effects. The proposed            18 VAC 15-30-50. General. (Repealed.)
amendments do not produce additional costs for legitimate
small businesses.                                                  A. Each person desiring to be issued a license or accreditation
                                                                   shall apply on forms provided by the department.
Small businesses: alternative method that minimizes adverse
impact. Since the proposed amendments do not produce               B. Individual applicants shall be at least 18 years of age.
additional costs for legitimate small businesses, there is no      C. Each application shall be completed according to the
alternative method that minimizes adverse impact.                  instructions provided with the application form and shall be
Agency's Response to the Department of Planning and                accompanied by the fee established in 18 VAC 15-30-160.
Budget's Economic Impact Analysis: The agency agrees with          Incomplete applications shall not be processed by the board.
the economic impact analysis.                                      Application fees pay the board's costs to evaluate applications
                                                                   and shall not be refunded.
Summary:
                                                                   D. The applicant shall disclose the following information about
    The proposed amendments (i) authorize the board to             himself in the case of an individual, or about the firm and
    deny license and approval as well as to take disciplinary      every member of the responsible management of the firm in
    action against those "acting as or being an ostensible         the case of a firm:
    licensee for undisclosed persons who do or will control or
    direct, directly or indirectly, the operations of the             1. A conviction in any jurisdiction of any felony.
    licensee’s business"; (ii) require training providers to          2. A conviction in any jurisdiction of any misdemeanor.
    submit all notices and training program participant lists
    electronically on forms provided by the board; (iii) replace      3. Any disciplinary action taken in another jurisdiction in
    "date of birth" as a data element required to be submitted        connection with the applicant's environmental remediation
    to the board on each lead-based paint training program            practice including, but not limited to, monetary penalties,
    participant list with "social security number"; and (iv)          fines, suspension, revocation, or surrender of a license in
    reorganize the regulatory requirements in a format that is        connection with a disciplinary action.
    consistent with other DPOR regulations.                           4. Any current or previously held environmental remediation
18 VAC 15-30-30. Licensure required. (Repealed.)                      certifications, accreditations or licenses issued by Virginia or
                                                                      any other jurisdiction.
A. Each person who engages in or offers to engage in any
lead-based paint activity shall first obtain a license from the       Subject to the provisions of § 54.1-204 of the Code of
board.                                                                Virginia, the board may deny any application for licensure or
                                                                      accreditation as a lead training provider when any of the
B. All licenses must be specific for the discipline being             parties listed in this subsection have been convicted of any
performed.                                                            offense listed in this subsection or has been the subject of
C. The board shall issue a license as a lead abatement firm,          any disciplinary action listed in subdivision 3 of this
lead abatement supervisor, lead abatement worker, lead                subsection. Any plea of nolo contendere shall be
inspector, lead risk assessor, or lead project designer to any        considered a conviction for the purposes of this subsection.
person who applies and meets the qualifications specified in          A certified copy of a final order, decree or case decision by
this chapter and who is not otherwise in violation of this            a court or regulatory agency with the lawful authority to
chapter.                                                              issue such order shall be admissible as prima facie
                                                                      evidence of such conviction or discipline.
18 VAC 15-30-40. Accreditation required. (Repealed.)
                                                                   E. Each applicant shall disclose his physical address for all
A. Each person who provides a training program or offers to        licenses or accreditations. A post office box shall not be
provide a training program for any discipline of lead-based        acceptable.
paint activity shall first obtain an approval from the board as
an accredited lead training provider.                              F. The receipt of an application and the deposit of fees by the
                                                                   board does not indicate approval by the board.
B. Accredited lead training providers shall offer and provide
training only for the disciplines for which they are approved.     G. Training requirements shall be verified by submittal to the
                                                                   board of the training certificate issued by the accredited lead
C. The board shall approve an accredited lead training             training provider for that course.
program, training manager and principal instructor for any firm
that applies and meets the qualifications specified in this        H. Education requirements shall be verified by submittal to the
chapter and is not otherwise in violation of this chapter.         board on the Education Verification Form sent directly from
                                                                   the school.
                                                                   I. Experience requirements shall be verified by resumes,
                                                                   letters of reference, or documentation of work experience.



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                                                               1336
                                                                                            Proposed Regulations
J. All persons seeking licensure or accreditation by the board             (1) Successful completion of a board-approved initial
shall have all necessary occupational or professional licenses             lead abatement supervisor course; and
as required by Virginia statute and local ordinance to transact
the business of their profession and shall meet the                        (2) One year experience as a licensed lead abatement
requirements of this chapter.                                              worker or two years experience in a related field (e.g.,
                                                                           lead, asbestos or environmental remediation) or in the
18 VAC 15-30-51. Application procedures.                                   building trades.
All applicants seeking licensure, interim licensure or                   b. Each applicant shall pass a board-approved licensing
accredited lead training program approval shall submit an                examination for supervisors within 36 months after
application with the appropriate fee specified in 18 VAC 15-             completion of the board-approved lead abatement
30-162. Application shall be made on forms provided by the               supervisor initial training course or the board-approved
department.                                                              lead supervisor refresher course. Applicants who fail the
                                                                         examination three times must provide to the board
By signing the application or submitting it electronically to the        evidence, after the date of their third examination failure,
department, the applicant certifies that he has read and                 of having retaken and satisfactorily completed the initial
understands the board’s statutes and regulations.                        training requirements and make new application to the
The receipt of an application and the deposit of fees by the             board. The applicant is then eligible to sit for the
board does not indicate approval by the board.                           examination an additional three times.
The board may make further inquiries and investigations with             c. A licensed lead abatement supervisor may perform the
respect to the applicant’s qualifications to confirm or amplify          duties of a licensed lead abatement worker.
information supplied.                                                  4. Inspector.
Applicants will be notified if their application is incomplete.          a. Each applicant for lead inspector licensure shall
Applicants who fail to complete the process within 12 months             provide evidence of successful completion of a board-
after the date the department receives the application shall             approved initial lead inspector course.
submit a new application and fee.
                                                                         b. Each applicant shall pass a board-approved licensing
18 VAC 15-30-52.        Qualifications     for    licensure    –         examination for lead inspector within 36 months after
individuals.                                                             completion of the board-approved lead inspector initial
A. General. Applicants shall meet all applicable entry                   training course or the board-approved lead inspector
requirements at the time application is made.                            refresher course. Applicants who fail the examination
                                                                         three times must provide to the board evidence, after the
B. Name. The applicant shall disclose his full legal name.               date of their third examination failure, of having retaken
C. Age. The applicant shall be at least 18 years old.                    and satisfactorily completed the initial training
                                                                         requirements and make new application to the board. The
D. Address. The applicant shall disclose a physical address.             applicant is then eligible to sit for the examination an
A post office box is only acceptable when a physical address             additional three times.
is also provided.
                                                                       5. Risk assessor.
E. Specific entry requirements.
                                                                         a. Each applicant for lead risk assessor licensure shall
  1. Worker. Each applicant for lead abatement worker                    provide evidence of successful completion of a board-
  licensure shall provide evidence of successful completion of           approved initial lead risk assessor training course and
  a board-approved initial lead abatement worker course.                 successful completion of a board-approved initial lead
                                                                         inspector training course that was at least three days in
  2. Project designer. Each applicant for lead project designer
                                                                         length and one of the following:
  licensure shall provide evidence of successful completion of
  a board-approved initial lead project designer course and                (1) Certification or licensure as an industrial hygienist, a
  successful completion of a board-approved initial lead                   professional engineer, a registered architect or
  abatement supervisor course and one of the following:                    licensure in a related engineering/health/environmental
                                                                           field;
    a. A bachelor’s degree in engineering, architecture, or a
    related profession, and one year experience in building                (2) A bachelor's degree and one year of experience in
    construction and design or a related field; or                         a related field (e.g., lead, asbestos, environmental
                                                                           remediation work, or construction);
    b. Four years of experience in building construction and
    design or a related field.                                             (3) An associate’s degree and two years experience in
                                                                           a related field (e.g., lead, asbestos, environmental
  3. Supervisor.
                                                                           remediation work, or construction); or
    a. Each applicant for lead abatement supervisor licensure
                                                                           (4) A high school diploma or its equivalent, and at least
    shall provide evidence of:
                                                                           three years experience in a related field (e.g., lead,



Volume 22, Issue 9                                                                                         Monday, January 9, 2006

                                                                1337
Proposed Regulations
       asbestos, environmental         remediation     work,   or    had a license that was suspended, revoked or surrendered in
       construction).                                                connection with any disciplinary action in any jurisdiction prior
                                                                     to applying for licensure in Virginia. The board, at its
    b. Each applicant shall pass a board-approved licensure          discretion, may deny licensure or approval to any applicant
    examination for risk assessor within 36 months after             based on disciplinary action by any jurisdiction.
    completion of the board-approved lead risk assessor
    initial training course or the board-approved lead risk          18 VAC 15-30-53. Qualifications for licensure – business
    assessor refresher course. Applicants who fail the               entities.
    examination three times must provide to the board
    evidence, after the date of their third examination failure,     A. General. Every business entity shall secure a license
    of having retaken and satisfactorily completed the initial       before transacting business.
    training requirements and make new application to the            B. Name. The business name shall be disclosed on the
    board. The applicant is then eligible to sit for the             application. The name under which the entity conducts
    examination an additional three times.                           business and holds itself out to the public (i.e., the trade or
F. Training verification. Training requirements shall be verified    fictitious name) shall also be disclosed on the application.
by submittal to the board of the training certificate issued by      Business entities shall register their trade or fictitious names
the accredited lead training provider for that course.               with the State Corporation Commission or the clerk of court in
                                                                     the county or jurisdiction where the business is to be
G. Education verification. Education requirements shall be           conducted in accordance with §§ 59.1-69 through 59.1-76 of
verified by submittal to the board on the Education Verification     the Code of Virginia before submitting their application to the
Form sent directly from the school.                                  board.
H. Experience verification. Experience requirements shall be         C. Address. The applicant shall disclose the firm’s mailing
verified by resumes, letters of reference, or documentation of       address and the firm’s physical address. A post office box is
work experience.                                                     only acceptable as a mailing address when a physical address
                                                                     is also provided.
I. Conviction or guilt. The applicant shall disclose the following
information:                                                         D. Form of organization. Applicants shall meet the additional
                                                                     requirements listed below for their business type:
  1. A conviction in any jurisdiction of any felony.
                                                                        1. Corporations. All applicants shall have been incorporated
  2. A conviction in any jurisdiction of any misdemeanor.               in the Commonwealth of Virginia or, if a foreign corporation,
  3. Any disciplinary action taken in another jurisdiction in           shall have obtained a certificate of authority to conduct
  connection with the applicant's environmental remediation             business in Virginia from the State Corporation Commission
  practice including, but not limited to, monetary penalties,           in accordance with § 13.1-544.2 of the Code of Virginia. The
  fines, suspension, revocation, or surrender of a license in           corporation shall be in good standing with the State
  connection with a disciplinary action.                                Corporation Commission at the time of application to the
                                                                        board and at all times when the license is in effect.
  4. Any current or previously held environmental remediation
  certifications, accreditations or licenses issued by Virginia or      2. Limited liability companies. All applicants shall have
  any other jurisdiction.                                               obtained a certificate of organization in the Commonwealth
                                                                        of Virginia or, if a foreign limited liability company, shall
Subject to the provisions of § 54.1-204 of the Code of Virginia,        have obtained a certificate of registration to do business in
the board may deny any application for licensure or                     Virginia from the State Corporation Commission in
accreditation as a lead training provider when any of the               accordance with § 13.1-1105 of the Code of Virginia. The
parties listed in this subsection have been convicted of any            company shall be in good standing with the State
offense listed in this subsection or has been the subject of any        Corporation Commission at the time of application to the
disciplinary action listed in subdivision 3 of this subsection.         board and at all times when the license is in effect.
Any plea of nolo contendere shall be considered a conviction
for the purposes of this subsection. A certified copy of a final        3. Partnerships. All applicants shall have a written
order, decree or case decision by a court or regulatory agency          partnership agreement. The partnership agreement shall
with the lawful authority to issue such order shall be                  state that all professional services of the partnership shall
admissible as prima facie evidence of such conviction or                be under the direction and control of a licensed or certified
discipline.                                                             professional.
J. Standards of conduct and practice. Applicants shall be in            4. Sole proprietorships. Sole proprietorships desiring to use
compliance with the standards of conduct and practice set               an assumed or fictitious name, that is a name other than the
forth in Part VIII (18 VAC 15-30-510 et seq.) of this chapter at        individual’s full name, shall have their assumed or fictitious
the time of application to the board, while the application is          name recorded by the clerk of the court of the county or
under review by the board, and at all times when the license is         jurisdiction wherein the business is to be conducted.
in effect.                                                           E. Qualifications.
K. Standing. The applicant shall be in good standing in every           1. Lead contractor. Each applicant for lead contractor
jurisdiction where licensed and the applicant shall not have            licensure shall:

                                                   Virginia Register of Regulations

                                                                 1338
                                                                                            Proposed Regulations
    a. Hold a valid Virginia contractor license with a lead         I. Denial of license. The board may refuse to issue a license to
    specialty issued by the Virginia Board for Contractors and      any lead contractor applicant if the applicant or its owners,
    comply with the provisions of Chapter 11 (§ 54.1-1100 et        officers or directors have a financial interest in a lead
    seq.) of Title 54.1 of the Code of Virginia governing the       contractor whose lead license has been revoked, suspended
    regulation of contractors.                                      or denied renewal in any jurisdiction.
    b. Certify that:                                                18 VAC 15-30-54. Qualifications for accredited lead
                                                                    training program approval.
       (1) Only properly licensed lead abatement supervisors
       and workers will be employed to conduct lead-based           A. For a training program to obtain accreditation from the
       paint activities;                                            board to teach lead-based paint activities, the program shall
                                                                    demonstrate through its application material that it meets the
       (2) A licensed lead abatement supervisor is present at       minimum requirements for principal instructor qualifications,
       each job site during all work site preparation and during    required topic review, length of training, and recordkeeping for
       post-abatement cleanup, and shall be on site or              each discipline for which the program is seeking accreditation.
       available by telephone, pager or answering service and       Training programs shall offer courses that teach the standards
       able to be present at the work site in no more than two      for conducting lead-based paint activities contained in this
       hours when abatement activities are being conducted;         chapter and other such standards adopted by the EPA.
       (3) The standards for conducting lead-based paint            B. Each applicant for approval as an accredited lead training
       activities established in this chapter and standards         provider shall meet the requirements established by this
       established by the EPA and OSHA shall be followed at         chapter before being granted approval to offer an accredited
       all times during the conduct of lead-based paint             lead training program. Applicants requesting approval of a
       activities; and                                              lead training program to prepare participants for licensure
       (4) The company is in compliance with all other              shall apply on a form provided by the board. The application
       occupational and professional licenses and standards         form shall be completed in accordance with the instructions
       as required by Virginia statute and local ordinance to       supplied and shall include the following:
       transact the business of a lead abatement contractor.           1. The course for which it is applying for accreditation.
F. Conviction or guilt. Neither the firm nor the owners, officers      2. A statement signed by the training program manager,
or directors shall have been convicted or found guilty,                which certifies that the training program meets the minimum
regardless of adjudication, in any jurisdiction of any felony or       requirements established in this chapter.
of any misdemeanor involving lying, cheating or stealing or of
any violation while engaged in environmental remediation               3. The names and qualifications, including education and
activity that resulted in the significant harm or the imminent         experience, of each principal instructor.
and substantial threat of significant harm to human health or
the environment, there being no appeal pending therefrom or            4. A copy of the student manuals and instructor manuals or
the time of appeal having lapsed. Any plea of nolo contendre           other materials to be used.
shall be considered a conviction for the purposes of this              5. A copy of the course agenda that includes the time
section. A certified copy of the final order, decree or case           allocation for each course topic.
decision by a court or regulatory agency with lawful authority
to issue such order, decree or case decision shall be                  6. A copy of the test and answer sheet.
admissible as prima facie evidence of such conviction or               7. A description of the facilities and equipment to be used
discipline. The board, at its discretion, may deny licensure to        for lecture and hands-on training.
any applicant in accordance with § 54.1-204 of the Code of
Virginia.                                                              8. A description of the activities and procedures that will be
                                                                       used for conducting the assessment of hands-on skills.
G. Standards of conduct and practice. Applicants shall be in
compliance with the standards of conduct and practice set              9. A copy of the quality control plan as described in this
forth in Part VIII (18 VAC 15-30-510 et seq.) and Part IX (18          chapter.
VAC 15-30-760 et seq.) of this chapter at the time of
                                                                       10. An example of a certificate that will be issued to
application to the board, while the application is under review
                                                                       students who successfully complete the course.
by the board, and at all times when the license is in effect.
                                                                       11. A proposed course date for auditing purposes.
H. Standing. Both the firm and the owners, officers and
directors shall be in good standing in every jurisdiction where        12. The application fee required by 18 VAC 15-30-162.
licensed and the applicant shall not have had a license that
was suspended, revoked or surrendered in connection with            C. The completed application form with attachments and fee
any disciplinary action in any jurisdiction prior to applying for   shall be received by the board no later than 45 days before
licensure in Virginia. The board, at its discretion, may deny       the desired audit date.
licensure to any applicant based on disciplinary action by any      D. An applicant may seek approval for as many initial and
jurisdiction.                                                       refresher courses as it chooses, but shall submit a separate
                                                                    application and fee for each program.


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                                                                1339
Proposed Regulations
E. Applicants may seek accreditation to offer lead-based paint       18 VAC 15-30-110. Refresher training and individual
activities initial or refresher courses in any of the following      license renewal. (Repealed.)
disciplines: lead abatement worker, lead project designer, lead
abatement supervisor, lead inspector, and lead risk assessor.        A. Licensees desiring to maintain an individual license shall
                                                                     satisfactorily complete the refresher training program
F. Each training program shall be conducted in compliance            established by this chapter and assure that the board receives
with this chapter to qualify for and maintain approval as an         documentation of satisfactory completion no later than the last
accredited lead training program.                                    day of the month that is 36 months after the date of
                                                                     completion of the initial training program or refresher training
G. Upon receipt of an application, the board shall conduct a         program established by Part IV (18 VAC 15-30-170 et seq.) of
preliminary review and shall notify the applicant in writing of      this chapter and not less often than once each 36 months
any deficiencies in the submittal packages. Applicants will          thereafter. In the case of a proficiency-based course
have one year from the board's receipt of the application to         completion, refresher training is required every 60 months
correct any problems noted in the review.                            instead of 36 months.
H. After the application has been found to be complete and in        B. The board shall renew an individual license for an
compliance with this chapter, an on-site audit of the training       additional 12 months upon receipt of a renewal application
program shall be conducted. The board shall conduct an               and fee in compliance with 18 VAC 15-30-140 and 18 VAC
additional on-site audit, grant approval or deny approval            15-30-160, provided that the licensee has complied with
based on the board's evaluation of the level of compliance           subsection A of this section. In no case shall an individual
with this chapter found during the initial on-site audit.            license expire later than the last day of the month that is 36
I. Applicants denied approval shall have one year from the           months, or in the case of proficiency-based course 60 months,
date of receipt of the application by the board to correct any       after the initial training program or most recent refresher
deficiencies and notify the board in writing.                        training program was completed.

J. An accredited training provider shall have been approved          18 VAC    15-30-120.      Licensed     contractor     renewal.
by the board before its training certificates shall be accepted      (Repealed.)
by the board as evidence that an individual has completed an         The board shall renew a contractor license for an additional 12
accredited lead training program.                                    months upon receipt of a renewal application and the renewal
K. Each accredited lead training program that is granted             fee in compliance with 18 VAC 15-30-140 and 18 VAC
approval shall be sent a form indicating the discipline              15-30-160.
approved and an expiration date that shall be maintained at          18 VAC 15-30-130. Accredited training program renewal.
the business address listed on the application.                      (Repealed.)
18 VAC 15-30-100. Expiration. (Repealed.)                            A. Accredited lead training providers desiring to maintain
A. Interim licenses shall expire six months from the last day of     approval of their accredited lead training program shall cause
the month during which the individual completed the board            the board to receive the following no later than 48 months
approved initial or refresher accredited lead training program       after the date of initial approval and not less often than once
required by Part IV (18 VAC 15-30-170 et seq.) of this chapter       each 48 months thereafter:
regardless of the date on which the board received the                  1. The training provider's name, address, and telephone
application for initial licensure or the date the board issued the      number.
license.
                                                                        2. A list of courses for which it is applying for
B. Interim licenses shall not be renewed or extended.                   re-accreditation.
C. Individual licenses shall expire 12 months from the last day         3. A statement signed by the training program manager
of the month wherein the individual completed the initial               which certifies that:
training program or refresher training program required by
Part IV (18 VAC 15-30-170 et seq.) of this chapter, regardless           a. The course materials for each course meet the
of the date on which the board received the application for              requirements of Part VIII (18 VAC 15-30-440 et seq.) of
individual licensure or the date the board issued the license. In        this chapter.
no case shall an individual license expire later than the last
day of the month which is 36 months after the date the                   b. The training manager and principal instructors meet the
individual completed the initial training program or most recent         qualifications listed in 18 VAC 15-30-340.
refresher training program.                                              c. The training program manager complies at all times
D. Contractor licenses shall expire 12 months from the last              with all requirements of this chapter.
day of the month wherein issued.                                         d. The quality control program meets the requirements
E. Accredited lead training programs approval shall expire 24            noted in 18 VAC 15-30-410.
months from the last day of the month in which the board                 e. The recordkeeping requirements of this chapter will be
granted approval.                                                        followed.



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                                                                 1340
                                                                                         Proposed Regulations
B. The board shall renew an accredited lead training program       C. The fee for an initial or a renewal of a lead abatement
for an additional 24 months upon receipt of a renewal              contractor license shall be $40.
application and fee, provided that the accredited lead training
provider is in compliance with subsection A of this section.       D. The renewal fee for a lead abatement contractor license
                                                                   not renewed within 30 days after the expiration date shall be
C. An audit by a board representative may be performed to          $65, which consists of the $40 renewal fee and a $25 late
verify the certified statements and the contents of the            renewal fee.
application before relicensure is granted.
                                                                   E. The application fee for approval of an accredited lead
18 VAC 15-30-140. Renewal application. (Repealed.)                 training program shall be $400 for each eight hours of course
                                                                   duration required by 18 VAC 15-30-380.
A. The board shall mail a renewal notice to the licensee or
accredited lead training provider at the last known address.       F. The application fee for approval of an accredited lead
The notice shall outline the procedures for renewal and the        refresher training program shall be $400, except for the
renewal fee amount. Failure to receive the notice shall not        project designer refresher, which shall be $200.
relieve the licensee or accredited lead training provider of the
obligation to renew.                                               G. The renewal fee for an accredited lead training program
                                                                   and an accredited lead refresher training program shall be
B. Prior to the expiration date shown on the license or            $100 per course.
approval, each licensee or accredited lead training provider
desiring to renew the license or approval shall return to the      H. The renewal fee for an accredited lead training program
board the renewal notice and the renewal fee. Documentation        and an accredited lead refresher training program not
of refresher training programs for individuals and of the          renewed within 30 days after the expiration date shall be $125
requirements in 18 VAC 15-30-130 A for accredited lead             per course, which consists of the $100 renewal fee and a $25
training programs shall be sent to the board.                      late renewal fee.

C. Should the licensee or accredited lead training provider fail   I. Fees for approval of an accredited lead training program
to receive the renewal notice, a photocopy of the current lead     and an accredited lead refresher training program shall not be
license or accredited lead training program approval may be        imposed on any state, local government, or nonprofit training
substituted for the renewal notice and mailed with the required    program.
fee to the board.                                                  J. The examination fee shall consist of the administration
D. Interim licensure shall not be renewed or extended. Each        expenses of the board ensuing from the board's examination
applicant who wishes a second interim license must provide to      procedures and contract charges. Examination service
the board evidence of having retaken and satisfactorily            contracts shall be established through competitive
completed the initial training requirements and make a new         negotiations in compliance with the Virginia Public
application to the board.                                          Procurement Act (§ 2.2-4300 et seq. of the Code of Virginia).
                                                                   The examination shall not exceed a cost of $75 to the
E. If the renewal fee is not received by the board within 30       candidate.
days after the expiration date printed on the license or
accredited lead training program approval, a late renewal fee      K. Applicants who submit a dishonored check will be charged
shall be required in addition to the renewal fee.                  a $25 service fee in addition to the required application fee.

F. Any licensee or accredited lead training provider who fails                               PART IV.
to renew his license or accredited lead training program                                      FEES.
approval within six months after the expiration date on the        18 VAC 15-30-161. General fee requirements.
license or approval shall not be permitted to renew and shall
apply as a new applicant.                                          A. All fees are nonrefundable and shall not be prorated. The
                                                                   date on which the fee is received by the department or its
18 VAC 15-30-150.       Change     of   address     or   name.     agent will determine whether the fee is on time. Checks or
(Repealed.)                                                        money orders shall be made payable to the Treasurer of
Each licensed individual, licensed firm, and accredited lead       Virginia.
training provider shall notify the board, in writing, of any       B. Fees for approval and renewal of an accredited lead
change of address or name. This notification shall be sent to      training program and an accredited lead refresher training
the board within 30 days of such relocation or name change.        program shall not be imposed on any state, local government,
18 VAC 15-30-160. Fees. (Repealed.)                                or nonprofit training program.

A. The fee for an initial or a renewal of a lead abatement         C. The examination fee shall consist of the administration
worker, lead abatement supervisor, lead inspector, lead risk       expenses of the board ensuing from the board's examination
assessor, or lead project designer license shall be $25.           procedures and contract charges. Examination service
                                                                   contracts shall be established through competitive
B. The renewal fee for an individual license not renewed           negotiations in compliance with the Virginia Public
within 30 days after the expiration date on the license shall be   Procurement Act (§ 2.2-4300 et seq. of the Code of Virginia).
$50, which consists of the $25 renewal fee and a $25 late          The examination shall not exceed a cost of $75 to the
renewal fee.                                                       candidate.

Volume 22, Issue 9                                                                                      Monday, January 9, 2006

                                                               1341
Proposed Regulations
18 VAC 15-30-162. Application fees.                                   required by 18 VAC 15-30-52 regardless of the date on which
                                                                      the board received the application for initial licensure or the
Application fees are as follows:                                      date the board issued the license.
 Fee Type                           Fee Amount       When Due         B. Interim licenses shall not be renewed or extended.
 Application for worker,
                                                                      C. Individual licenses shall expire 12 months from the last day
 supervisor, inspector, risk                           With
                                        $25                           of the month wherein the individual completed the initial
 assessor or project designer                        application
                                                                      training program or refresher training program required by
 license
                                                                      18 VAC 15-30-52 regardless of the date on which the board
 Application for a lead                                With           received the application for individual licensure or the date the
                                        $40
 contractor license                                  application      board issued the license. In no case shall an individual license
 Application for accredited lead    $400 per day       With           expire later than the last day of the month which is 36 months
 training program approval           of training     application      after the date the individual completed the initial training
 Application for accredited lead                                      program or most recent refresher training program.
 refresher training program                            With           D. Contractor licenses shall expire 12 months from the last
                                        $400
 approval except for project                         application      day of the month wherein issued.
 designer refresher
 Application for accredited lead                                      E. Accredited lead training programs approval shall expire 24
                                                       With           months from the last day of the month in which the board
 project designer refresher             $200
                                                     application      granted approval.
 training program approval
                                                                      18 VAC 15-30-165. Procedures for renewal.
18 VAC 15-30-163. Renewal and late renewal fees.
                                                                      A. The board shall mail a renewal notice to the licensee or
Renewal and late renewal fees are as follows:
                                                                      accredited lead training provider at the last known address.
 Fee Type                          Fee Amount       When Due          The notice shall outline the procedures for renewal and the
                                                                      renewal fee amount. Failure to receive the notice shall not
 Renewal for worker,                                                  relieve the licensee or accredited lead training provider of the
                                                       With
 supervisor, inspector, risk                                          obligation to renew.
                                       $25           renewal
 assessor or project designer
                                                    application
 license                                                              B. Prior to the expiration date shown on the license or
                                                       With           approval, each licensee or accredited lead training provider
 Renewal for lead contractor’s                                        desiring to renew the license or approval shall return to the
                                       $40           renewal
 license                                                              board the renewal notice and the renewal fee. Documentation
                                                    application
                                                                      of refresher training programs for individuals and of the
 Renewal for accredited                                With           requirements in 18 VAC 15-30-166 C for accredited lead
 asbestos training program            $100           renewal          training programs shall be sent to the board.
 approval                                           application
 Late renewal for worker,                                             C. Should the licensee or accredited lead training provider fail
 supervisor, inspector, risk                                          to receive the renewal notice, a photocopy of the current lead
                                                       With           license or accredited lead training program approval may be
 assessor or project designer
                                       $50           renewal          substituted for the renewal notice and mailed with the required
 license (includes a $25 late
                                                    application       fee to the board.
 renewal fee in addition to the
 regular $25 renewal fee)                                             D. Interim licensure shall not be renewed or extended. Each
 Late renewal for lead                                                applicant who wishes a second interim license must provide to
 contractor’s license (includes                        With           the board evidence of having retaken and satisfactorily
 a $25 late renewal fee in             $65           renewal          completed the initial training requirements and make a new
 addition to the regular $40                        application       application to the board.
 renewal fee)
                                                                      18 VAC 15-30-166. Qualifications for renewal.
 Late renewal for accredited
 lead training program                                 With           A. Individuals.
 approval (includes a $25 late        $125           renewal
                                                                          1. Licensees desiring to maintain an individual license shall
 renewal fee in addition to the                     application
                                                                          satisfactorily complete the refresher training program
 regular $100 renewal fee)
                                                                          established by this chapter and assure that the board
                           PART V.                                        receives documentation of satisfactory completion no later
                          RENEWAL.                                        than the last day of the month that is 36 months after the
                                                                          date of completion of the initial training program or refresher
18 VAC 15-30-164. Renewal required.                                       training program and not less often than once each 36
A. Interim licenses shall expire six months from the last day of          months thereafter. In the case of a proficiency-based course
the month during which the individual completed the board-                completion, refresher training is required every 60 months
approved initial or refresher accredited lead training program            instead of 36 months.


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                                                                   1342
                                                                                             Proposed Regulations
  2. The board shall renew an individual license for an              B. Any licensee or accredited lead training provider who fails
  additional 12 months upon receipt of a renewal application         to renew his license or accredited lead training program
  and fee in compliance with 18 VAC 15-30-163 and 18 VAC             approval within six months after the expiration date on the
  15-30-165, provided that the licensee has complied with            license or approval shall not be permitted to renew and shall
  subdivision 1 of this subsection. In no case shall an              apply as a new applicant.
  individual license expire later than the last day of the month
  that is 36 months, or in the case of proficiency-based                                     PART IV.
  course 60 months, after the initial training program or most                INDIVIDUAL LICENSURE REQUIREMENTS.
  recent refresher training program was completed.                   18 VAC 15-30-170. Licensed lead abatement worker.
B. Contractors. The board shall renew a contractor license for       (Repealed.)
an additional 12 months upon receipt of a renewal application        Each applicant for lead abatement worker licensure shall
and the renewal fee in compliance with 18 VAC 15-30-163              comply with the application requirements established in
and 18 VAC 15-30-165. Return of the renewal application and          18 VAC 15-30-50 and include evidence of successful
renewal fee to the board shall constitute a certification that the   completion of a board-approved initial lead abatement worker
licensee is in full compliance with the board’s regulations.         course.
C. Accredited training programs.                                     18 VAC 15-30-180.        Licensed     lead   project    designer.
  1. Accredited lead training providers desiring to maintain         (Repealed.)
  approval of their accredited lead training program shall           Each applicant for lead project designer licensure shall comply
  cause the board to receive the following no later than 48          with the application requirements established in 18 VAC
  months after the date of initial approval and not less often       15-30-50 and include evidence of successful completion of a
  than once each 48 months thereafter:                               board-approved initial lead project designer course and
    a. The training provider’s name, address, and telephone          successful completion of a board-approved initial lead
    number.                                                          abatement supervisor course and one of the following:

    b. A statement signed by the training program manager               1. A bachelor's degree in engineering, architecture, or a
    that certifies that:                                                related profession, and one year experience in building
                                                                        construction and design or a related field; or
       (1) The course materials for each course meet the
       requirements of Part VII (18 VAC 15-30-440 et seq.) of           2. Four years of experience in building construction and
       this chapter.                                                    design or a related field.

       (2) The training manager and principal instructors meet       18 VAC 15-30-205. Licensed lead abatement supervisor.
       the qualifications listed in 18 VAC 15-30-340.                (Repealed.)

       (3) The training program manager complies at all times        A. Each applicant for lead abatement supervisor licensure
       with all requirements of this chapter.                        shall comply with the application requirements established in
                                                                     18 VAC 15-30-50 and include evidence of:
       (4) The quality control program meets the requirements
       noted in 18 VAC 15-30-410.                                       1. Successful completion of a board approved initial lead
                                                                        abatement supervisor course; and
       (5) The recordkeeping requirements of this chapter will
       be followed.                                                     2. One year experience as a licensed lead abatement
                                                                        worker or two years experience in a related field (e.g., lead,
  2. Return of the renewal application and renewal fee to the           asbestos or environmental remediation) or in the building
  board shall constitute a certification that the accredited lead       trades.
  training provider is in full compliance with the board’s
  regulations.                                                       B. Each applicant shall pass a board-approved licensing
                                                                     examination for supervisors within 36 months after completion
  3. An audit by a board representative may be performed to          of the board-approved lead abatement supervisor initial
  verify the certified statements and the contents of the            training course or the board-approved lead supervisor
  application before relicensure is granted.                         refresher course.
  4. Accredited lead training programs determined by the             C. Applicants who fail the examination three times must
  board to have met the renewal requirements shall be issued         provide to the board evidence, after the date of their third
  an approval for an additional 24 months.                           examination failure, of having retaken and satisfactorily
                                                                     completed the initial training requirements and make new
18 VAC 15-30-167. Late renewal.                                      application to the board. The applicant is then eligible to sit for
A. If the renewal fee is not received by the board within 30         the examination an additional three times.
days after the expiration date printed on the license or             D. A licensed lead abatement supervisor may perform the
accredited lead training program approval, a late renewal fee        duties of a licensed lead abatement worker.
shall be required in addition to the renewal fee.



Volume 22, Issue 9                                                                                          Monday, January 9, 2006

                                                                 1343
Proposed Regulations
18 VAC 15-30-225. Licensed lead inspector. (Repealed.)                 the Virginia Board for Contractors, and shall comply with the
                                                                       provisions of Chapter 11 (§ 54.1-1100 et seq.) of Title 54.1 of
A. Each applicant for lead inspector licensure shall comply            the Code of Virginia governing the regulation of contractors.
with the application requirements established in 18 VAC
15-30-50 and include evidence of successful completion of a            B. Firms seeking contractor licensing shall certify that:
board-approved initial lead inspector course.
                                                                          1. Only properly licensed lead abatement supervisors and
B. Each applicant shall pass a board approved licensing                   workers will be employed to conduct lead-based paint
examination for lead inspector within 36 months after                     activities;
completion of the board-approved lead inspector initial training
course or the board-approved lead inspector refresher course.             2. A licensed lead abatement supervisor is present at each
                                                                          job site during all work site preparation and during
C. Applicants who fail the examination three times must                   post-abatement cleanup, and shall be on site or available by
provide to the board evidence, after the date of their third              telephone, pager or answering service, and able to be
examination failure, of having retaken and satisfactorily                 present at the work site in no more than two hours when
completed the initial training requirements and make new                  abatement activities are being conducted; and
application to the board. The applicant is then eligible to sit for
the examination an additional three times.                                3. The standards for conducting lead-based paint activities
                                                                          established in this chapter and standards established by the
18 VAC 15-30-245.         Licensed      lead    risk     assessor.        EPA and OSHA shall be followed at all times during the
(Repealed.)                                                               conduct of lead-based paint activities; and
A. Each applicant for lead risk assessor licensure shall comply           4. The company is in compliance with all other occupational
with the application requirements established in 18 VAC                   and professional licenses and standards as required by
15-30-50 and include evidence of successful completion of a               Virginia statute and local ordinance to transact the business
board-approved initial lead risk assessor training course and             of a lead abatement contractor.
successful completion of a board-approved initial lead
inspector training course that was at least three days in length                             PART VI.
and one of the following:                                                        TRAINING PROGRAM ACCREDITATION.

  1. Certification or licensure as an industrial hygienist, a          18 VAC 15-30-260. General. (Repealed.)
  professional engineer, a registered architect or licensure in        A. Each applicant for approval as an accredited lead training
  a related engineering/health/environmental field;                    provider shall meet the requirements established by this
  2. A bachelor's degree and one year of experience in a               chapter before being granted approval to offer an accredited
  related field (e.g., lead, asbestos, environmental                   lead training program. Applicants requesting approval of a
  remediation work, or construction);                                  lead training program to prepare participants for licensure
                                                                       shall apply on a form provided by the board. The application
  3. An Associate's degree and two years experience in a               form shall be completed in accordance with the instructions
  related field (e.g., lead, asbestos, environmental                   supplied and shall include the following:
  remediation work, or construction); or
                                                                          1. The course for which it is applying for accreditation.
  4. A high school diploma or its equivalent, and at least three
  years experience in a related field (e.g., lead, asbestos,              2. A statement signed by the training program manager,
  environmental remediation work, or construction).                       which certifies that the training program and each principal
                                                                          instructor meets the minimum requirements established in
B. Each applicant shall pass a board-approved licensure                   this chapter.
examination for risk assessor within 36 months after
completion of the board-approved lead risk assessor initial               3. A copy of the student manuals and instructor manuals or
training course or the board-approved lead risk assessor                  other materials to be used.
refresher course.                                                         4. A copy of the course agenda which includes the time
C. Applicants who fail the examination three times must                   allocation for each course topic.
provide to the board evidence, after the date of their third              5. A copy of the test and answer sheet.
examination failure, of having retaken and satisfactorily
completed the initial training requirements and make new                  6. A description of the facilities and equipment to be used
application to the board. The applicant is then eligible to sit for       for lecture and hands-on training.
the examination an additional three times.                                7. A description of the activities and procedures that will be
                      PART V.                                             used for conducting the assessment of hands-on skills.
        LICENSED CONTRACTOR REQUIREMENTS.                                 8. A copy of the quality control plan as described in this
18 VAC    15-30-250.        Requirements        for      licensure.       chapter.
(Repealed.)                                                               9. An example of a certificate that will be issued to students
A. Each applicant for lead contractor licensure shall hold a              who successfully complete the course.
valid Virginia contractor license with a lead specialty issued by         10. A proposed course date for auditing purposes.

                                                      Virginia Register of Regulations

                                                                   1344
                                                                                               Proposed Regulations
  11. The application fee required by 18 VAC 15-30-160.             The board shall communicate its approval or disapproval in
                                                                    the same manner as for initial applications for accreditation
B. The completed application form with attachments and fee          approval.
shall be received by the board no later than 45 days before
the desired audit date.                                             18 VAC 15-30-300. Change of ownership. (Repealed.)
C. An applicant may seek approval for as many initial and           When an accredited lead training provider offering an
refresher courses as it chooses, but shall submit a separate        accredited lead training program has a change of ownership,
application and fee for each program.                               the new owner shall apply anew.
D. Applicants may seek accreditation to offer lead-based paint                          PART VII VI.
activities initial or refresher courses in any of the following           REQUIREMENTS FOR THE ACCREDITATION OF
disciplines: lead abatement worker, lead project designer, lead           STANDARDS OF PRACTICE AND CONDUCT FOR
abatement supervisor, lead inspector, and lead risk assessor.               ACCREDITED LEAD TRAINING PROGRAMS.
E. Each training program shall be conducted in compliance           18 VAC 15-30-330. General. (Repealed.)
with this chapter to qualify for and maintain approval as an
accredited lead training program.                                   For a training program to obtain accreditation from the board
                                                                    to teach lead-based paint activities, the program shall
18 VAC 15-30-270. Board review and audit procedures.                demonstrate through its application material that it meets the
(Repealed.)                                                         minimum requirements for principal instructor qualifications,
                                                                    required topic review, length of training, and recordkeeping for
A. Upon receipt of an application, the board shall conduct a        each discipline for which the program is seeking accreditation.
preliminary review and shall notify the applicant, in writing, of   Training programs shall offer courses which teach the
any deficiencies in the submittal packages. Applicants will         standards for conducting lead-based paint activities contained
have one year from the board's receipt of the application to        in this chapter, and other such standards adopted by the EPA.
correct any problems noted in the review.
                                                                    18 VAC 15-30-332. Changes to an approved course.
B. After the application has been found to be complete and in
compliance with this chapter, an on-site audit of the training      Once a training course has been approved, substantial
program shall be conducted. The board shall conduct an              changes in any of the approved items must be submitted to
additional on-site audit, grant approval or deny approval           the board for review and approval prior to the continuation of
based on the board's evaluation of the level of compliance          the training course. These items include, but are not limited
with this chapter found during the initial on-site audit.           to:
C. Applicants denied approval shall have one year from the              1. Course curriculum.
date of receipt of the application by the board to correct any
deficiencies and notify the board in writing.                           2. Course examination.

D. An accredited training provider shall have been approved             3. Course materials.
by the board before its training certificates shall be accepted         4. Training manager and principal instructor or instructors.
by the board as evidence that an individual has completed an
accredited lead training program.                                       5. Certificate of completion.

18 VAC 15-30-280. Accreditation approval. (Repealed.)               The board shall communicate its approval or disapproval in
                                                                    the same manner as for initial applications for accreditation
Each accredited lead training program which is granted              approval.
approval shall be sent a form indicating the discipline
approved and an expiration date which shall be maintained at        18 VAC 15-30-334. Change of ownership.
the business address listed on the application.                     When an accredited lead training provider offering an
18 VAC 15-30-290. Changes to an approved course.                    accredited lead training program has a change of ownership,
(Repealed.)                                                         the new owner shall apply anew.

Once a training course has been approved, substantial               18 VAC 15-30-420. Recordkeeping and provision of
changes in any of the approved items must be submitted to           records to the board.
the board for review and approval prior to the continuation of      A. Each accredited lead training program shall maintain and
the training course. These items include, but are not limited to:   make available upon request from the board the following
  1. Course curriculum.                                             records:

  2. Course examination.                                                1. All documents specified in 18 VAC 15-30-360 that
                                                                        demonstrate the qualifications listed in 18 VAC 15-30-340 of
  3. Course materials.                                                  the training manager and principal instructors.
  4. Training manager and principal instructor or instructors.          2. Current curriculum/course materials and documents
  5. Certificate of completion.                                         reflecting any changes made to these materials.
                                                                        3. Course examination.

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                                                                 1345
Proposed Regulations
  4. Information on how the hands-on assessment is                       7. Training manager's name and signature.
  conducted including, but not limited to, who conducts the
  assessment, how the skills are graded, what facilities are          G. The training program participant list shall be completed by
  used, and the pass/fail rate.                                       the training provider and training program participants daily.

  5. The quality control plan described in 18 VAC 15-30-410.          H. The training program participant list shall be retained by the
                                                                      training provider for three years following the date of
  6. Results of the student's hands-on skills assessments and         completion of the training program.
  course examination and a copy of each student's course
  completion certificate.                                             I. The training manager shall provide to the board the
                                                                      accredited lead training program participant list no later than
  7. Any other material not listed in this chapter that was           10 business days following the training program completion.
  submitted to the board as part of the application for               For the purposes of this section, a business day shall mean
  accreditation.                                                      Monday through Friday with the exception of federal holidays.
The accredited lead training provider shall retain these              J. The training program participant list shall include the
records at the location specified on the training program             following:
application for a minimum of three years and six months.
                                                                         1. Training program name, Virginia accreditation number,
B. The training manager shall notify the board at least seven            address, and telephone number.
business days prior to the start date of any accredited lead
training program. For the purposes of this section, a business           2. Course discipline and type (initial/refresher).
day shall mean Monday through Friday with the exception of               3. Dates of training.
federal holidays.
                                                                         4. Each participant's name, address, date of birth social
C. The training manager shall provide an updated notification            security number, course completion certificate number, and
when an accredited lead training program will begin on a date            course test score.
other than the start date specified in the original notification as
follows:                                                                 5. Training manager's name and signature.

  1. For accredited lead training programs beginning prior to         K. Written notifications and training program participant lists
  the start date provided to the board, an updated notification       must be submitted using the U.S. Postal Service, by fax, by
  must be received by the board at least seven business days          commercial delivery service, or hand delivered using a sample
  before the new start date.                                          form available from the board or a similar form that contains
                                                                      the information required by this section. Notifications and
  2. For accredited lead training programs beginning after the        training program participant lists may also shall be submitted
  start date provided to the board, an updated notification           electronically via an e-mail address in the manner established
  must be received by the board at least two business days            by the board specifically to receive this documentation using a
  before the start date provided to the board.                        sample form designed by and available from the board. Any
D. The training manager shall update the board of any change          variation upon this procedure shall be approved by the board
in location of an accredited lead training program at least           prior to submission.
seven business days prior to the start date provided to the           L. The training provider shall retain all examinations
board.                                                                completed by training program participants for a period of
E. The training manager shall update the board regarding any          three years.
accredited lead training program cancellations or any other           M. The department will shall not recognize training certificates
change to the original notification at least two business days        from approved training providers that fail to notify or fail to
prior to the start date provided to the board. This requirement       provide a training program participant list.
shall not apply to situations or circumstances beyond the
control of the training provider.                                                       PART VIII VII.
                                                                          TRAINING COURSE CURRICULA REQUIREMENTS.
F. Each notification, including updates, shall include the
following:                                                                              PART IX VIII.
                                                                         STANDARDS FOR CONDUCTING LEAD-BASED PAINT
  1. Notification type (original, update, cancellation).                                ACTIVITIES.
  2. Training program name, Virginia accreditation number,            18 VAC 15-30-510. General requirements.
  address, and telephone number.
                                                                      A. This part establishes work practice standards for
  3. Course discipline, type (initial/refresher), and the             conducting lead-based paint activities in target housing and
  language in which the instruction will be given.                    child-occupied facilities.
  4. Dates and times of training.                                     B. Notification shall be sent by the licensed lead abatement
  5. Training locations, telephone number, and address.               contractor to the Virginia Department of Labor and Industry
                                                                      prior to the commencement of any lead-based paint
  6. Principal instructor's name.


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                                                                  1346
                                                                                           Proposed Regulations
abatement activities. The notification shall be sent in a manner                      PART X IX.
prescribed by the Virginia Department of Labor and Industry.          GENERAL STANDARDS OF PRACTICE AND CONDUCT.
C. No licensed lead abatement contractor shall enter into a        18 VAC 15-30-810. Grounds for denial of application,
contract to perform a lead abatement project if the lead           denial of renewal, or discipline.
inspection or project design is to be performed by individuals
with an employer/employee relationship with, or financial          A. The board shall have the authority to fine any licensee or
interest in, the lead abatement contractor unless the              accredited lead training provider, training manager or principal
contractor provides the building owner with a "Virginia Lead       instructor, and to deny renewal, to suspend, to revoke or to
Consumer Information and Disclosure Sheet," which is               deny application for any license or approval as an accredited
available from the board. Persons licensed to perform post-        lead training program, accredited lead training provider,
abatement clearance procedures shall be independent of and         training manager or principal instructor provided for under
have no financial interest in or an employer/employee              Chapter 5 of Title 54.1 of the Code of Virginia for:
relationship with the licensed lead abatement contractor.             1. Violating or inducing another person to violate any of the
D. The relationships described in subsection C of this section        provisions of Chapter 1, 2, 3, or 5 of Title 54.1 of the Code
must be disclosed and the disclosure form must be signed              of Virginia, or any of the provisions of this chapter.
and dated by the building owner, or his agent, and the                2. Obtaining a license, approval as an accredited lead
contracting entity prior to the signing of any contract to            training program, approval as an accredited lead training
conduct lead-based paint activities. The contractor must              provider or approval as a training manager or principal
provide the disclosure form to all parties involved in the lead       instructor through fraudulent means.
abatement project. The disclosure form shall be kept on the
lead abatement project site and available for review.                 3. Altering, falsifying or issuing a fraudulent Virginia lead
                                                                      license or a training certificate issued by an accredited lead
E. When performing a lead-based paint inspection, lead-               training provider.
hazard screen, risk assessment or abatement, a licensed
individual must perform that activity in compliance with              4. Violating any provision of any federal or state regulation
documented methodologies. Documented methodologies that               pertinent to lead-based paint activities.
are appropriate for this chapter include the following:               5. Having been found guilty by the board, another regulatory
  1. U.S. Department of Housing and Urban Development                 authority, or by a court, of any misrepresentation in the
  (HUD) Guidelines for the Evaluation and Control of Lead-            course of performing his operating duties.
  Based Paint Hazards in Housing, June 1995 edition,                  6. Subject to the provisions of § 54.1-204 of the Code of
  including the 1997 Revision to Chapter 7: Lead-Based Paint          Virginia, having been convicted or found guilty, regardless
  Inspection.                                                         of adjudication in any jurisdiction of the United States, of
  2. 40 CFR Part 745, Subpart D.                                      any felony or of any misdemeanor involving lying, cheating,
                                                                      or stealing, or of any violation while engaged in
  3. EPA Guidance on Residential Lead-Based Paint, Lead-              environmental remediation activity that resulted in the
  Contaminated Dust and Lead-Contaminated Soil (60 FR                 significant harm or the imminent and substantial threat of
  47248-47257).                                                       significant harm to human health or the environment, there
  4. EPA Residential Sampling for Lead: Protocols for Dust            being no appeal pending therefrom or the time for appeal
  and Soil Sampling, Final Report (EPA 747-R-95-001, March            having elapsed. Any plea of nolo contendere shall be
  1995).                                                              considered a conviction for the purposes of this chapter. A
                                                                      certified copy of the final order, decree or case decision by
  5. Any future EPA or HUD guidance that may replace the              a court or regulatory agency with lawful authority to issue
  above methodologies.                                                such order, decree or case decision shall be admissible as
                                                                      prima facie evidence of such conviction or discipline.
  6. Regulations, guidance, methods or protocols authorized
  by the board.                                                       7. Failing to notify the board in writing within 30 days of
                                                                      pleading guilty or nolo contendere or being convicted or
F. Individuals conducting lead-based paint activities shall           found guilty of any felony or of any misdemeanor involving
comply with the work practice standards enumerated in this            lying, cheating, or stealing or of any violation while engaged
chapter.                                                              in environmental remediation activity that resulted in the
G. Any lead-based paint activities, as described in this              significant harm or the imminent threat of significant harm to
chapter, shall be performed only by individuals licensed by the       human health or the environment.
board to perform such activities.                                     8. Negligence, or a continued pattern of incompetence, in
H. All reports and plans required by 18 VAC 15-30-520                 the practice of the discipline in which a lead license is held.
through 18 VAC 15-30-651 shall be maintained by the                   9. Failing or neglecting to send any information or
licensed firm or individual who prepared the report for at least      documentation that was requested by the board or its
three years. The licensed firm or individual also shall provide       representatives.
copies of these reports to the building owner or person who
contracted for its services.


Volume 22, Issue 9                                                                                        Monday, January 9, 2006

                                                               1347
Proposed Regulations
  10. Refusing to allow state or federal representatives              B. The board shall conduct disciplinary procedures in
  access to any area of an abatement site for the purpose of          accordance with §§ 2.2-4019 and 2.2-4021 of the
  lawful compliance inspections.                                      Administrative Process Act.
  11. Any unlawful act or violation of any provision of Chapter       NOTICE: The forms used in administering 18 VAC 15-30,
  5 of Title 54.1 of the Code of Virginia or of the regulations of    Virginia Lead-Based Paint Activities Regulations, are not
  the board by any lead abatement supervisor or lead                  being published; however, the name of each form is listed
  abatement worker may be cause for disciplinary action               below. The forms are available for public inspection at the
  against the lead abatement contractor for whom he works if          Department of Professional and Occupational Regulation,
  it appears to the satisfaction of the board that the lead           3600 West Broad Street, Richmond, Virginia, or at the office of
  abatement contractor knew or should have known of the               the Registrar of Regulations, General Assembly Building, 2nd
  unlawful act or violation.                                          Floor, Richmond, Virginia.
  12. Failing to notify the board in writing within 30 days after
                                                                                                     FORMS
  any change in address or name.
                                                                      Lead Contractor License Application, 33LCON (rev. 5/03
  13. Acting as or being an ostensible licensee for
                                                                      5/00).
  undisclosed persons who do or will control or direct, directly
  or indirectly, the operations of the licensee’s business.           Lead License Application Requirements, 33LINS (rev. 5/03
                                                                      10/03).
B. Any individual or firm whose license, approval as an
accredited lead training program, approval as an accredited           Lead License Application, 33LLIC (rev. 5/03 10/03).
lead training provider or approval as a training manager or
principal instructor is revoked under this section shall not be       Experience Verification Form, 33LEXP (rev. 5/03 12/04).
eligible to reapply for a period of one year from the effective       Education Verification Form, 33LED (rev. 5/03 5/00).
date of the final order of revocation. The individual or firm shall
meet all education, experience, and training requirements,            Lead Training Course Application Requirements, 33LCRSRQ
complete the application, and submit the required fee for             (rev. 5/03 10/03).
consideration as a new applicant.                                     Lead Training Course Application, 33LCRS (rev. 7/03 10/03).
C. The board shall conduct disciplinary procedures in                 Training Notification, 33LTN (eff. 7/04 rev. 9/04).
accordance with §§ 2.2-4019 and 2.2-4021 of the
Administrative Process Act.                                           Training Program Participant List, 33LPL (eff. 7/04 rev. 9/04).
18 VAC 15-30-820. Suspension or revocation of approval                Inspector/Risk     Assessor/Project              Designer/Contractor
of an accredited lead training provider.                              Disclosure Form, 33LDIS (eff. 1/04).
A. The board may suspend, revoke, or modify an accredited             Virginia Lead Consumer Information and Disclosure Sheet,
lead training program's approval if an accredited lead training       33LCIS (eff. 1/04).
provider, training manager, or other person with supervisory                 VA.R. Doc. No. R04-239; Filed December 9, 2005, 11:27 a.m.
authority over the training program has:
  1. Misrepresented the contents of a training course to the
  board or the student population.                                       BOARD FOR BARBERS AND COSMETOLOGY

  2. Failed to submit required information or notification in a       Title of Regulation:    18 VAC 41-60. Body-Piercing
  timely manner.                                                      Regulations (adding 18 VAC 41-60-10 through 18 VAC 41-
                                                                      60-220).
  3. Failed to submit training program notifications as required
  and in the manner described in 18 VAC 15-30-420.                    Statutory Authority: § 54.1-201 of the Code of Virginia.

  4. Failed to submit training program participant lists as           Public Hearing Date: March 7, 2006 - 10 a.m.
  required and in the manner described in 18 VAC 15-30-420.             Public comments may be submitted until March 10, 2006.
                                                                          (See Calendar of Events section
  5. Failed to maintain required records.                                 for additional information)
  6. Falsified accreditation records, qualifications of the           Agency Contact: William H. Ferguson, II, Executive Director,
  training manager and principal instructors, or other                Board for Barbers and Cosmetology, 3600 West Broad Street,
  accreditation information.                                          Richmond, VA 23230, telephone (804) 367-8590, FAX (804)
                                                                      367-6295, or e-mail barbercosmo@dpor.virginia.gov.
  7. Failed to comply with the federal, state, or local lead-
  based paint statutes or regulations.                                Background: Chapter 869 of the 2002 Acts of Assembly
                                                                      mandated a separate licensing category under the Board for
  8. Acted as an ostensible licensee for undisclosed persons
                                                                      Barbers and Cosmetology for body-piercing practitioners as
  who do or will control or direct, directly or indirectly, the
                                                                      well as the salon where these services are provided. The
  operations of the accredited lead training provider’s
                                                                      regulations contain the requirements for obtaining a license,
  business.


                                                   Virginia Register of Regulations

                                                                  1348
                                                                                             Proposed Regulations
renewal and reinstatement; safety and sanitation procedures;         Assembly. In addition to establishing the requirements for
and standards of professional conduct.                               licensure, these regulations will ensure competency and
                                                                     integrity of all licensees, provide for, and ensure that health
To comply with Chapter 869 of the 2002 Acts of Assembly and          and sanitation standards are adequate in facilities where
fulfill the Board for Barbers and Cosmetology responsibility to      body-piercing services are provided.
promulgate regulations, new regulations are promulgated to
ensure competence and integrity of all licensees and that the        These regulatory requirements include: (i) definitions of words
health and sanitary standards and safety are adequate in             and terms relative to the practice of providing body-piercing
salons and other facilities where body-piercing services are         services that will ensure that licensees understand the scope
provided, and administer the regulatory program. The board           and limitations of their profession; (ii) general requirements for
intends to seek additional comment prior to adoption of final        obtaining a license to provide services as a body piercer or
regulations on training and experience requirements                  body piercer – ear only; (iii) requirements for becoming a
specifically but not limited to length of experience required for    body-piercing      apprenticeship      sponsor;     (iv)  general
an apprenticeship program, length of experience required for         requirements for obtaining a license to operate a body-
an apprenticeship sponsor, curriculum requirements for               piercing salon or body-piercing – ear only salon; (v) fees for
apprenticeship training programs.                                    initial, renewal, and reinstatement applications for body
                                                                     piercers, body-piercing salons, body piercers – ear only, or
This action is a part of a previous regulatory action that began     body-piercing – ear only salons; (vi) sanitation and safety
with a combined set of regulations for tattooing and body            standards for salons that address disinfection and storage of
piercing. On April 26, 2004, the board adopted separate              implements, sanitation of equipment, and safety standards
tattooing emergency regulations and on October 25, 2004, the         pertaining to the use of chemical products, the proper
board adopted separate body-piercing regulations in order to         handling of blood spills, and client health guidelines; and (vii)
promulgate regulations that would pertain specifically to each       measures to be taken to ensure that clients are qualified to
professional service. The separate emergency regulations are         receive piercing services in compliance with § 18.2-371.3 of
intended to provide clarity and flexibility in the promulgation of   the Code of Virginia pertaining to minimum age; and (viii)
regulations that would apply to each professional service.           requirements for obtaining certain disclosures and
Basis:    The proposed regulatory action to promulgate               maintenance of records of notification to the client pertaining
regulations governing the licensure and practice of body             to risks associated with receiving piercing services.
piercing under the Board for Barbers and Cosmetology is              Issues: The primary advantage of the proposed regulatory
mandated by Chapter 869 of the 2002 Acts of Assembly.                action is that it will establish the licensing requirements for the
Section 54.1-201 of the Code of Virginia authorizes the board        practice of body piercing. The proposed regulatory action will
to promulgate regulations in accordance with the                     be an advantage to the public in that it will provide clear and
Administrative process Act (§ 2.2-4000 et seq.) necessary to         effective regulations to ensure competency and integrity and
assure continued competency, to prevent deceptive or                 prevent deceptive or misleading practices by individuals
misleading practices by practitioners and to effectively             providing body-piercing services.
administer the regulatory system administered by the                 There are no disadvantages to the public or the
regulatory board.                                                    Commonwealth with regards to regulations governing the
Purpose: The board proposes to promulgate regulations                licensure and practice of body-piercing practitioners.
governing the licensure and practice of body piercing as             Department of Planning and Budget's Economic Impact
directed by Chapter 869 of the 2002 Acts of Assembly.                Analysis: The Department of Planning and Budget (DPB) has
The proposed regulatory action is necessary to ensure                analyzed the economic impact of this proposed regulation in
minimal competence of body-piercing practitioners. This              accordance with § 2.2-4007 H of the Administrative Process
regulatory action will establish qualifications for licensure,       Act and Executive Order Number 21 (02). Section 2.2-4007 H
standards of practice, requirements for maintaining licensure        requires that such economic impact analyses include, but
as a body piercer, body-piercing salon, body-piercer – ear           need not be limited to, the projected number of businesses or
only, or body-piercing - ear only salon in the Commonwealth          other entities to whom the regulation would apply, the identity
of Virginia. This regulatory action will establish fees necessary    of any localities and types of businesses or other entities
to administer the licensure program.                                 particularly affected, the projected number of persons and
                                                                     employment positions to be affected, the projected costs to
As directed by the 2002 Session of the General Assembly,             affected businesses or entities to implement or comply with
this regulatory action is required to protect the health, safety     the regulation, and the impact on the use and value of private
and welfare of citizens of the Commonwealth in that it will          property. The analysis presented below represents DPB’s
provide for and ensure that licensees have met qualifications        best estimate of these economic impacts.
that demonstrate competency that protects the health, safety
and welfare of citizens of the Commonwealth and that health          Summary of the proposed regulation. Pursuant to Chapter
and sanitary standards and safety are adequate in salons             869 of the 2002 Virginia Acts of Assembly, the Board for
where body-piercing services are being provided.                     Barbers and Cosmetology (board) proposes to promulgate
                                                                     regulations that set out licensure requirements for body
Substance: The proposed regulations contain provisions for           piercing and body-piercing salons.
the licensing of body piercing under the Board for Barbers and
Cosmetology as directed by Chapter 869 of the 2002 Acts of

Volume 22, Issue 9                                                                                          Monday, January 9, 2006

                                                                 1349
Proposed Regulations
Estimated economic impact. Chapter 869 of the 2002 Virginia                            list the needles, piercing gun, lack of baffler precautions such
Acts of Assembly established that "No person shall offer to                            as gloves, and improper skin preparation as some of the
engage in … body-piercing without a valid license issued by                            sources of infection. Proposed requirements for training in
the Board, …" and that "No individual or entity shall operate a                        piercing technique and hygiene, as well as requirements for
… body-piercing salon without a valid license issued by the                            salon equipment will likely reduce adverse health outcomes to
Board." Exceptions are made for those that are not selling                             some degree. No research is currently available to help
services as body piercers.1 The board proposes these                                   estimate by what degree risks of adverse health outcomes will
regulations to detail how licensure may be obtained.                                   be decreased due to the proposed requirements.
Licensure of body piercers and piercing salons can be                                  Costs for Practitioners and Salons
beneficial to the public in that transmission of disease and
occurrences of injury may be reduced due to required                                   The board proposes the following requirements for licensure
instruction   concerning     disease    transmission,  safety                          as a body piercer: 1) completion of a minimum of five hours of
procedures, competent practice, and physical facility and                              health education to include but not be limited to blood borne
operations requirements that are designed to minimize such                             disease, sterilization, and aseptic techniques related to body
risks. On the other hand, licensure requirements do impose                             piercing, and first aid and CPR, 2) payment of a $55 fee, 3)
new costs for providers of body-piercing services.                                     completion of an approved body-piercing apprenticeship
                                                                                       program (unless grandfathered), 4) payment of a fee up to
Health Risks                                                                           $225 examination fee (unless grandfathered), and 5) a
                                                                                       passing grade on the board approved examination. The
Body piercing introduces significant health risks. Koenig and                          proposed regulations include a grandfather clause whereby
Carnes (1999) cite the following complication rates for ear                            persons who have completed five years of documented work
piercing: redness and swelling 30%, drainage 26%, infection                            experience within the preceding eight years as a body piercer,
24%, bleeding 11%, cyst formation 4%, large scars 3%, and                              are not required to go through a board-approved
trauma or tear 2%. Samantha, Tweeten and Rickman (1998)                                apprenticeship and take the exam. Body piercers licensed in
found that patients with genital piercing were at higher risk of                       another U.S. jurisdiction who have completed a training or
contracting a sexually transmitted disease. Body piercing has                          apprenticeship program and an exam that is substantially
                                                 2
been associated with local soft tissue infection, perichondritis                       equivalent can pay the $55 fee and become licensed in
                         3
from high ear piercing, sepsis, and toxic shock syndrome.4                             Virginia. The license expires after two years. The body piercer
                                                   5
Also, piercing has been linked to viral hepatitis. Koenig and                          must complete five hours of health education during the two-
Carnes (1999) cite studies that note that "The possible                                year term, as well as pay a $55 fee, for license renewal.
complications of oral/facial piercings include … airway
obstruction, chipped or cracked teeth, prolonged bleeding                              Given demand to meet the required completion of a minimum
from piercings of high vascularity, cellutis …, gingival injury,                       of five hours of health education to include but not be limited
interference with mastication and swallowing, speech                                   to blood borne disease, sterilization, and aseptic techniques
impediment, increased salivary flow, and obstruction of                                related to body-piercing, and first aid and CPR, a provider
radiographs …"6                                                                        may in the future design a five-hour course to address all
                                                                                       those subjects. Currently, the American Red Cross offers the
Bacterial infection can occur from improper initial piercing                           following: a five-hour course on CPR and proper use of an
technique or from poor hygiene.7 Martel and Anderson (2002)                            automated external defibrillator for $55 and a two-hour course
                                                                                       on first aid for $45. A firm called American Environmental
1
  § 54.1-701 exempts 1) Persons authorized by the laws of the Commonwealth             Health and Safety offers: 1) a one-hour course on blood-borne
to practice medicine and surgery or osteopathy or chiropractic; 2) Registered          pathogens for $10 to $30, 2) a 2.5 to 3.5 hour CPR classes for
nurses licensed to practice in the Commonwealth; 3) Persons employed in state          $15 to $40, and 3) a two- to three-hour first aid course for $15
or local penal or correctional institutions, rehabilitation centers, sanatoria, or             8
institutions for care and treatment of the mentally ill or mentally deficient or for   to $40.
care and treatment of geriatric patients, as barbers, cosmetologists, wax
technicians, nail technicians, hair braiders, barber instructors, cosmetology          Apprenticeship programs must include at least 1,500 hours of
instructors, wax technician instructors or nail technician instructors who practice    instruction in: 1) microbiology, 2) immunization, 3) sanitation
only on inmates of or patients in such sanatoria or institutions; 4) Persons           and disinfection, 4) safety, 5) blood borne pathogen
licensed as funeral directors or embalmers in the Commonwealth; 5) Gratuitous
services as a barber, nail technician, cosmetologist, wax technician, hair braider,    standards, 6) professional standards, and 7) practical training.
tattooer, or body-piercer; 6) Students enrolled in an approved school taking a         The regulations specify required subcategories for each of the
course in barbering, nail care, cosmetology, waxing, hair braiding, tattooing, or      7 categories listed above. The proposed regulations specify
body-piercing; 7) Persons working in a cosmetology salon whose duties are
expressly confined to hair braiding or the shampooing and cleansing of human
                                                                                       that 350 hours are to be devoted to microbiology,
hair under the direct supervision of a cosmetologist or barber; 8) Apprentices         immunization, safety, blood borne pathogen standards, and
serving in a barbershop, nail salon, waxing salon, cosmetology salon, or hair          professional standards, 150 hours are to be devoted to
braiding salon licensed by the Board in accordance with the Board's regulations;       sanitation and disinfection, and that the remaining 1,000 hours
and 9) Schools of barbering, nail care, waxing, cosmetology, or hair braiding in
public schools.                                                                        are to be devoted to practical training and the following
2
  Sources: Samantha, Tweeten and Rickman (1998) and Peticolas, Tilliss and             minimum number of performances: a) 20 ear lobe: 20, b) 15
Cross-Poline (2000)
3
                                                                                       helix-ear, c) 15 concha-ear, d) 15 tragus-ear, e) 20 tongue, f)
  Source: Staley, Fitzgibbon and Anderson (1997)
4
  Source: Koenig and Carnes (1999)
                                                                                       15 navel, g) 15 eyebrow, h) 15 lip, i) 15 septum, j) 20 nostril,
5
  Ibid                                                                                 k) 10 male nipple, l) 10 female nipple, m) 12 Monroe (face
6
  Sources: Perkins, Meisner and Harrison (1997) and Price and Lewis (1997).
Peticolas, Tilliss and Cross-Poline (2000) note similar complications.
7                                                                                      8
  Ibid                                                                                     The fee ranges largely depend on class size.

                                                                 Virginia Register of Regulations

                                                                                   1350
                                                                                                     Proposed Regulations
cheek), n) 12 Prince Albert (male genitalia), o) 12 frenum             distance sensitive13 individuals to obtain their piercings from
(male genitalia), p) 12 clitorial hoods (female genitalia), q) 12      friends or other amateurs rather than from professionals, the
labias (female genitalia). An approved apprenticeship sponsor          benefit of potential reduced unsanitary and unsafe practices
may award up to 500 hours of credit based on an assessment             by professionals may be partially offset.
of the apprentice’s competence in theory and practical
requirements. No hours may be credited toward sanitation and           There are serious health risks associated with body-piercing.
disinfection training. According to the Department of                  The proposed licensure requirements will reduce the risk to
Professional and Occupational Regulation (department), the             public health. As mentioned earlier, no research is currently
typical length of body-piercer apprenticeships in practice are         available to help estimate by what degree risks of adverse
at least 1,500 hours. Apprenticeship sponsors must: 1) have a          health outcomes will be decreased due to the proposed
current Virginia body-piercing license, 2) have been legally           requirements. Thus, a precise comparison of the costs to
practiced body-piercing for at least 7 years, and 3) be in good        benefits cannot be made.
standing in all jurisdictions where body-piercing is regulated.        Businesses and entities affected. The proposed regulations
                                                                                                  14
The proposed requirements for licensure as a body-piercer –            affect body piercing salons and the subset of the 770 jewelry
ear only include: 1) completion of a minimum of three hours of         stores and 268 department stores in Virginia where piercing
health education to include but not be limited to blood borne          services are offered, as well as individuals who perform body
disease and first aid, 2) verification of training on a                piercing and their clients.15 The Department of Professional
mechanized, pre-sterilized ear-piercing system that penetrates         and Occupational Regulation estimates that approximately
the outer perimeter or lobe of the ear or both, and 3) payment         200 body-piercing practitioners and facilities will become
of a $55 fee. The license expires after two years. The body            licensed.
piercer – ear only must complete three hours of health                 Localities particularly affected. The proposed regulations
education during the two-year term, as well as pay a $55 fee,          affect localities throughout the Commonwealth.
for license renewal.
                                                                       Projected impact on employment. Some individuals and
In order to obtain an initial body-piercing or body-piercing-ear       businesses who otherwise would have offered services
only salon license, the applicant must pay a $90 fee and               without the costs associated with required licensure will likely
report the salon address. The proposed regulations list                not sell body-piercer services under the proposed regulations.
several     requirements      for  salons     and    practitioner      Thus, there will likely be a moderate reduction in employment.
responsibilities, most of which pertain to sanitary practice. For
example, "Used instruments that are not ultrasonically cleaned         Effects on the use and value of private property. For those
prior to being placed in the used instrument container shall be        individuals who would not have met all the requirements
kept in a germicidal soap solution until brush scrubbed in hot         needed for licensure, the proposed regulations will increase
water and soap and sterilized by autoclaving." According to            costs. The increased costs will likely discourage some
the department, all the listed requirements are standard for           individuals from professionally selling body-piercing services.
reputable body-piercing salons. Basic ultrasonic cleaners and          Thus, the supply of body piercers will likely be less than if
autoclaves used by body-piercing salons cost from $70 to               there were no licensure requirement. Reduced competition in
                                          9
$200 and $1,000 or less, respectively. The department will             the sale of body-piercing services will result in higher market
not inspect the premises for initial licensure.
                                                       10
                                                              The      prices for those services. Body-piercing salons that stay in the
department will inspect salons in response to complaints.11            market will garner higher revenue. For those salons that were
                                                                       already meeting licensure requirements, the proposed
Costs for Purchasers of Services                                       regulations do not increase costs, other than the nominal fees.
The costs associated with required licensure will likely reduce        Thus, these salons will likely have increased profits and value.
the supply of body-piercing services and increase the market           Small businesses: costs and other effects. As described
prices for those services. Some potential body piercers who            above, the proposed regulations raise the cost of providing
would have chosen to sell their services without the licensure         body-piercing services in Virginia. The Department of
requirement will likely chose not to sell body-piercing services       Professional and Occupational Regulation estimates that
if they must face the time and dollar costs associated with            approximately 200 body-piercing practitioners and facilities will
obtaining licensure. Reduced competition for those that do             become licensed. Body-piercing only firms will all be small
offer services will likely result in higher market prices for body-    businesses. Piercing services are offered at a subset of
                   12
piercing services.                                                     jewelry stores and department stores. According to the
Fewer professional practitioners offering services and higher          Virginia Employment Commission, there are 770 jewelry
prices may encourage more individuals, particularly                    stores and 260 department stores in Virginia with fewer than
teenagers, to obtain piercings from friends or other amateurs.         500 employees.
To the extent that potential higher prices and reduced
numbers of professionals induce some price sensitive and
                                                                       13
                                                                          A reduced supply in body piercers will result in fewer piercing salons and
                                                                       increased average distance to a piercing salon for potential clients.
                                                                       14
                                                                          The U.S. Census Bureau has not created a NAICS code for body-piercing
9
  Source: Association of Professional Piercers                         salons. The NAICS code for Other Personal Care Services includes body-
10
   Source: Department of Professional and Occupational Regulation      piercing salons. The Virginia Employment Commission reports 306 other
11
   Ibid                                                                personal care services firms in the Commonwealth.
12                                                                     15
   Source: Kleiner, M. M. (2000).                                         Source for figures: Virginia Employment Commission

Volume 22, Issue 9                                                                                                     Monday, January 9, 2006

                                                                    1351
Proposed Regulations
Small businesses: alternative method that minimizes adverse         Staley R, Fitzgibbon JJ and C Anderson, "Auricular infections
impact. The board initially proposed regulations that did not       caused by high ear piercing in Adolescents," Pediatrics,
have a separate "ear only" license. Those proposed                  1997;99:610.
regulations would have been tremendously costly for small
businesses that offer ear piercing, but not other forms of body     Agency's Response to the Department of Planning and
piercing. Local jewelers, mall retailers that perform ear           Budget's Economic Impact Analysis: The Board for Barbers
piercing, etc., would have only been legally permitted to           and Cosmetology concurs with the Department of Planning
employ individuals who had completed a 1,500-hour                   and Budget’s economic impact analysis.
apprenticeship that included the following successful number        Summary:
and variety of procedures: 20 ear lobe, 15 helix-ear,15
concha-ear, 15 tragus-ear, 20 tongue, 15 navel, 15 eyebrow,             The     proposed      regulation    establishes       licensing
15 lip, 15 septum, 10 male nipple, 10 female nipple, 12                 requirements for the practice of body piercing. The
Monroe (face cheek), 12 Prince Albert (male genitalia), 12              proposed regulations include (i) definitions of words and
frenum (male genitalia), 12 clitorial hoods (female genitalia),         terms relative to the practice of providing body-piercing
and 12 labias (female genitalia). The supply of individuals who         services; (ii) general requirements for obtaining a license
initially would have completed such training would be far less          to provide services as a body piercer or body piercer - ear
than would be needed to offer ear-piercing services at the              only; (iii) requirements for becoming a body-piercing
various small businesses where such services are now                    apprenticeship sponsor; (iv) general requirements for
offered. Most of these small businesses would likely be no              obtaining a license to operate a body-piercing salon or
longer able to offer ear-piercing services. Most of the                 body-piercing - ear only salon; (v) fees for initial, renewal,
individuals currently employed offering these services would            and reinstatement applications for body piercers, body-
have lost their jobs.                                                   piercing salons, body piercers - ear only, or body-piercing
                                                                        - ear only salons; (vi) sanitation and safety standards for
By including a body-piercer – ear only license, the current             salons that address disinfection and storage of
proposed regulations have a much smaller adverse impact on              implements, sanitation of equipment and safety standards
small businesses. The 1,500-hour apprenticeship is not                  pertaining to the use of chemical products, the proper
required. The proposed requirements for licensure as a body-            handling of blood spills, and client health guidelines; (vii)
piercer – ear only include: 1) completion of a minimum of               measures to be taken to ensure that clients are qualified
three hours of health education to include but not be limited to        to receive piercing services in compliance with § 18.2-
blood borne disease and first aid, 2) verification of training on       371.3 of the Code of Virginia pertaining to minimum age;
a mechanized, pre-sterilized ear-piercing system that                   and (viii) requirements for obtaining certain disclosures
penetrates the outer perimeter or lobe of the ear or both, and          and maintenance of records of notification to the client
3) payment of a $55 fee.                                                pertaining to risks associated with receiving piercing
References                                                              services.

Kleiner MM, "Occupational licensing,"         The   Journal    of                         CHAPTER 60.
Economic Perspectives, Fall 2000;14:4.                                            BODY-PIERCING REGULATIONS

Koenig LM and M Carnes, "Body piercing: medical concerns                                       PART I.
with cutting-edge fashion," Journal of General Internal                                       GENERAL.
Medicine, 1999;14:379.                                              18 VAC 41-60-10. Definitions.
Martel S and JE Anderson, "Decorating the ‘human canvas’:           The following words and terms when used in this chapter shall
Body art and your patients; tattoos and body piercing have          have the following meanings, unless the context clearly
caught on as teenage, and even preteen, fashion statements.         indicates otherwise. All terms defined in Chapter 7 (§ 54.1-
Here’s how to help your patients avoid the pitfalls of this form    700 et seq.) of Title 54.1 of the Code of Virginia are
of self-expression," Contemporary Pediatrics, August 2002           incorporated in this chapter.
v19 i8 p86 (10).
                                                                    "Apprenticeship program" means an approved body-piercing
Muldoon KA, "Body piercing in adolescents," Journal of              training program conducted by an approved apprenticeship
Pediatric Health Care, 1997;11:298.                                 sponsor.
Perkins CS, Meisner J and JM Harrison, "A complication of           "Apprenticeship sponsor" means an individual approved to
tongue piercing," British Dental Journal, 1997;182:147.             conduct body-piercing apprenticeship training who meets the
Peticolas T, Tilliss TSI and GN Cross-Poline, "Oral and             qualifications in 18 VAC 41-60-70.
perioral piercing: A unique form of self-expression," The           "Aseptic technique" means a hygienic practice that prevents
Journal of Contemporary Dental Practice, 2000;1:1.                  and hinders the direct transfer of microorganisms, regardless
Price SS and MW Lewis, "Body piercing involving oral sites,"        of pathogenicity, from one person or place to another person
Journal of American Dental Association, 1997;128:1017.              or place.

Samantha S, Tweeten M and LM Rickman, "Infectious                   "Body piercer – ear only" means any person who uses only a
complications of body piercing, Clinical Infectious Disease,        mechanized, presterilized ear-piercing system that penetrates
1998;26:735.

                                                  Virginia Register of Regulations

                                                                1352
                                                                                            Proposed Regulations
the outer perimeter or lobe of the ear or both for                     a misdemeanor or felony which directly relates to the
compensation.                                                          profession of body piercing. The board shall have the
                                                                       authority to determine, based upon all the information
"Body piercing – ear only" means the use of a mechanized,              available, including the applicant’s record of prior
presterilized ear-piercing system that penetrates the outer            convictions, if the applicant is unfit or unsuited to engage in
perimeter or lobe of the ear or both.                                  the profession of body piercing. The board will decide each
"Body-piercing – ear only salon" means any place in which a            case by taking into account the totality of the circumstances.
fee is charged for the act of using a mechanized, presterilized        Any plea of nolo contendere shall be considered a
ear-piercing system that penetrates the outer perimeter or             conviction for the purposes of this section. The applicant
lobe of the ear or both.                                               shall provide a certified copy of a final order, decree or case
                                                                       decision by a court or regulatory agency with the lawful
"Endorsement" means a method of obtaining a license by a               authority to issue such order, decree or case decision, and
person who is currently licensed in another state.                     such copy shall be admissible as prima facie evidence of
"Gratuitous services" as used in § 54.1-701.5 of the Code              such conviction. This record shall be forwarded by the
Virginia means providing body-piercing services without                applicant to the board within 10 days after all appeal rights
receiving compensation or reward, or obligation. Gratuitous            have expired.
services do not include services provided at no charge when            5. The applicant shall provide evidence satisfactory to the
goods are purchased.                                                   board that the applicant has passed the board-approved
"Licensee" means any person, partnership, association,                 examination, administered either by the board or by a
limited liability company, or corporation holding a license            designated testing service.
issued by the Board for Barbers and Cosmetology.                       6. Persons who (i) make application within one year after
"Reinstatement" means having a license restored                to      the effective date of this chapter; (ii) have completed five
effectiveness after the expiration date has passed.                    years of documented work experience within the preceding
                                                                       eight years as a body piercer; and (iii) have completed a
"Renewal" means continuing the effectiveness of a license for          minimum of five hours of health education including but not
another period of time.                                                limited to blood borne disease, sterilization, and aseptic
                                                                       techniques related to body piercing and first aid and CPR
"Sterilization area" means a separate room or area separate
                                                                       that is acceptable to the board are not required to complete
from workstations with restricted client access in which body-
                                                                       subdivision 5 of this subsection.
piercing instruments are cleaned, disinfected, and sterilized.
                                                                    B. Eligibility   to   sit   for   board-approved     body-piercer
"Temporary location" means a fixed location at which body-
                                                                    examination.
piercing is performed for a specified length of time of not more
than seven days in conjunction with a single event or                  1. Training in the Commonwealth of Virginia. Any person
celebration.                                                           completing an approved body-piercing apprenticeship
                                                                       program in a Virginia licensed body-piercing salon shall be
                           PART II.
                                                                       eligible to sit for the examination.
                           ENTRY.
                                                                       2. Training outside of the Commonwealth of Virginia, but
18 VAC 41-60-20. General requirements.
                                                                       within the United States and its territories. Any person
A. In order to receive a license as a body piercer in                  completing a body-piercing training or apprenticeship
compliance with § 54.1-703 of the Code of Virginia, an                 program that is substantially equivalent to the Virginia
applicant must meet the following qualifications:                      program but is outside of the Commonwealth of Virginia
                                                                       must submit to the board documentation of the successful
  1. The applicant shall be in good standing as a body piercer         completion of training or apprenticeship to be eligible for
  in every jurisdiction where licensed, certified, or registered.      examination.
  The applicant shall disclose to the board at the time of
  application for licensure any disciplinary action taken in        C. In order to receive a license as a body piercer - ear only, an
  another jurisdiction in connection with the applicant's           applicant must meet the following qualifications:
  practice as a body piercer. The applicant shall disclose to
                                                                       1. The applicant shall have completed a minimum of three
  the board at the time of application for licensure whether he
                                                                       hours of health education to include but not limited to blood
  has been previously licensed in Virginia as a body piercer.
                                                                       borne disease and first aid that is acceptable to the board
  2. The applicant shall disclose his physical address. A post         and provide verification of training on a mechanized,
  office box is not acceptable.                                        presterilized ear-piercing system that penetrates the outer
                                                                       perimeter or lobe of the ear or both.
  3. The applicant shall sign, as part of the application, a
  statement certifying that the applicant has read and                 2. The applicant shall be in good standing in every
  understands the Virginia body-piercing license laws and the          jurisdiction where licensed, certified, or registered. The
  board’s body-piercing regulations.                                   applicant shall disclose to the board at the time of
                                                                       application for licensure any disciplinary action taken in
  4. In accordance with § 54.1-204 of the Code of Virginia, the        another jurisdiction in connection with the applicant's
  applicant shall not have been convicted in any jurisdiction of       licensed, certified, or registered practice. The applicant shall

Volume 22, Issue 9                                                                                         Monday, January 9, 2006

                                                                1353
Proposed Regulations
  disclose to the board at the time of application for licensure    the date of the examination. Failure to comply with all
  whether he has been previously licensed in Virginia in any        procedures established by the board and the testing service
  profession regulated by the board.                                with regard to conduct at the examination may be grounds for
                                                                    denial of application.
  3. The applicant shall disclose his physical address. A post
  office box is not acceptable.                                     C. The fee for examination or reexamination is subject to
                                                                    contracted charges to the board by an outside vendor. These
  4. The applicant shall sign, as part of the application, a        contracts are competitively negotiated and bargained for in
  statement certifying that the applicant has read and              compliance with the Virginia Public Procurement Act (§ 2.2-4300
  understands the Virginia body-piercing license laws and the       et seq. of the Code of Virginia). Fees may be adjusted and
  board’s body-piercing regulations.                                charged to the candidate in accordance with these contracts.
  5. In accordance with § 54.1-204 of the Code of Virginia, the     The fee shall not exceed $225 per candidate.
  applicant shall not have been convicted in any jurisdiction of    18 VAC 41-60-70. General requirements for a body-
  a misdemeanor or felony which directly relates to the             piercing apprenticeship sponsor.
  profession of body piercing. The board shall have the
  authority to determine, based upon all the information            A. Upon filing an application with the Board for Barbers and
  available, including the applicant’s record of prior              Cosmetology, any person meeting the qualifications set forth in
  convictions, if the applicant is unfit or unsuited to engage in   this section may be eligible to sponsor a body-piercing
  the profession of body piercing. The board will decide each       apprentice if the person:
  case by taking into account the totality of the circumstances.
  Any plea of nolo contendere shall be considered a                    1. Holds a current Virginia body-piercing license;
  conviction for the purposes of this section. The applicant           2. Provides documentation of legally practicing body
  shall provide a certified copy of a final order, decree or case      piercing for at least seven years; and
  decision by a court or regulatory agency with the lawful
  authority to issue such order, decree or case decision, and          3. Provides documentation indicating that he is in good
  such copy shall be admissible as prima facie evidence of             standing in all jurisdictions where the practice of body
  such conviction. This record shall be forwarded by the               piercing is regulated.
  applicant to the board within 10 days after all appeal rights     B. Apprenticeship sponsors shall be required to maintain a body-
  have expired.                                                     piercer license.
18 VAC 41-60-30. License by endorsement.                            C. Apprenticeship sponsors shall ensure compliance with the
Upon proper application to the board, any person currently          1500-hour Body-Piercing Apprenticeship Program and Body-
licensed to practice as a body piercer in any other state or        Piercing Apprenticeship Standards.
jurisdiction of the United States and who has completed a           18 VAC 41-60-80. Salon license.
training or apprenticeship program and an examination that is
substantially equivalent to that required by this chapter may       A. Any individual wishing to operate a body-piercing salon or
be issued a body-piercer license without an examination. The        body-piercing – ear only salon shall obtain a salon license in
applicant must also meet the requirements set forth in 18 VAC       compliance with § 54.1-704.1 of the Code of Virginia.
41-60-20 A 1 through A 4.
                                                                    B. A body-piercing salon license or body-piercing – ear only
18 VAC 41-60-40. Examination requirements and fees.                 salon license shall not be transferable and shall bear the same
                                                                    name and address of the business. Any changes in the name,
A. Applicants for initial licensure shall pass an examination       address, or ownership of the salon shall be reported to the board
approved by the board. The examinations may be                      in writing within 30 days of such changes. New owners shall be
administered by the board or by a designated testing service.       responsible for reporting such changes in writing to the board
B. Any candidate failing to appear as scheduled for                 within 30 days of the changes.
examination shall forfeit the examination fee.                      C. In the event of a closing of a body-piercing salon or body-
18 VAC 41-60-50. Reexamination requirements.                        piercing – ear only salon, the board must be notified by the
                                                                    owners in writing within 30 days of the closing, and the license
Any applicant who does not pass a reexamination within one          must be returned by the owners to the board.
year of the initial examination date shall be required to submit
a new application and examination fee.                              D. Any individual wishing to operate body-piercing salon in a
                                                                    temporary location must have a body-piercing salon license
18 VAC 41-60-60. Examination administration.                        issued by the board.
A. The examinations may be administered by the board or the
designated testing service.
B. The applicant shall follow all procedures established by the
board with regard to conduct at the examination. Such
procedures     shall    include     any   written    instructions
communicated prior to the examination date and any
instructions communicated at the site, either written or oral, on

                                                  Virginia Register of Regulations

                                                                1354
                                                                                                   Proposed Regulations
                             PART III.                                    licensee shall meet the renewal requirements prescribed in
                              FEES.                                       18 VAC 41-60-130 and apply for reinstatement of the license by
                                                                          submitting to the Department of Professional and Occupational
18 VAC 41-60-90. Fees.                                                    Regulation a reinstatement application along with the required
The following fees apply:                                                 renewal and reinstatement fees.
    FEE TYPE             AMOUNT DUE                 WHEN DUE              B. When a body piercer or body piercer - ear only fails to renew
Individuals:                                                              his license within two years following the expiration date,
   Application                $55                 With application        reinstatement is no longer possible. To resume practice, the
   License by                                                             former body-piercer licensee shall apply for licensure as a new
                              $55                 With application
   endorsement                                                            applicant, shall meet all current application requirements, shall
                                                 With renewal card        pass the board’s current examination and shall receive a new
Renewal:                      $55                prior to expiration      license. To resume practice, the former body-piercer - ear only
                                                         date
                                                                          licensee shall apply for licensure as a new applicant, shall meet
                              $110*
                     *includes $55 renewal      With reinstatement        all current application requirements, and shall receive a new
Reinstatement                                                             license.
                           fee and $55              application
                        reinstatement fee
                                                                          C. When a body-piercing salon or body-piercing - ear only salon
Salons:
  Application                 $90                 With application
                                                                          fails to renew its license within 30 days following the expiration
                                                 With renewal card        date shall be required to apply for reinstatement of the license by
  Renewal                     $90                prior to expiration      submitting to the Department of Professional and Occupational
                                                         date             Regulation a reinstatement application along with the required
                              $180*                                       renewal and reinstatement fees.
                     *includes $90 renewal      With reinstatement
  Reinstatement                                                           D. When a body-piercing salon or body-piercing - ear only salon
                           fee and $90              application
                        reinstatement fee                                 fails to renew its license within two years following the expiration
                                                                          date, reinstatement is no longer possible. To resume practice,
18 VAC 41-60-100. Refunds.                                                the former licensee shall apply for licensure as a new applicant
All fees are nonrefundable and shall not be prorated.                     and shall meet all current application requirements.

                         PART IV.                                         E. The date a renewal fee is received by the Department of
                  RENEWAL/REINSTATEMENT.                                  Professional and Occupational Regulation, or its agent, will be
                                                                          used to determine whether the requirement for reinstatement of
18 VAC 41-60-110. License renewal required.                               a license is applicable and an additional fee is required.
All body-piercer, body-piercer – ear only, body-piercing salon            F. When a license is reinstated, the licensee shall have the same
and body-piercing - ear only salon licenses shall expire two              license number and shall be assigned an expiration date two
years from the last day of the month in which they were issued.           years from the previous expiration date of the license.
18 VAC 41-60-120. Continuing education requirement.                       G. A licensee who reinstates his license shall be regarded as
                                                                          having been continuously licensed without interruption.
All licensed body piercers shall be required to satisfactorily
                                                                          Therefore, a licensee shall be subject to the authority of the
complete a minimum of five hours of health education to include
                                                                          board for activities performed prior to reinstatement.
but not limited to blood borne disease, sterilization, and aseptic
techniques related to body piercing and first aid and CPR during          H. A licensee who fails to reinstate his license shall be regarded
their licensed term. All licensed body piercers – ear only shall be       as unlicensed from the expiration date of the license forward.
required to satisfactorily complete a minimum of three hours of           Nothing in this chapter shall divest the board of its authority to
health education to include but not limited to blood borne                discipline a licensee for a violation of the law or regulations
disease and first aid during their licensed term. Documentation           during the period of time for which the individual was licensed.
of training completion shall be provided at the time of renewal
along with the required fee.                                                                   PART V.
                                                                               BODY-PIERCING APPRENTICESHIP PROGRAMS.
18 VAC 41-60-130. Notice of renewal.
                                                                          18 VAC 41-60-150. Applicants for board approval.
The Department of Professional and Occupational Regulation
will mail a renewal notice to the licensee outlining the procedures       A. Any person desiring to enroll in the body-piercing
for renewal. Failure to receive this notice, however, shall not           apprenticeship program shall be required to provide
relieve the licensee of the obligation to renew. If the licensee fails    documentation of satisfactory completion of a minimum of five
to receive the renewal notice, a copy of the old license may be           hours of health education to include but not limited to blood
submitted as evidence of intent to renew, along with the required         borne disease, sterilization, and aseptic techniques related to
fee.                                                                      body-piercing, and first aid and CPR.

18 VAC 41-60-140. Failure to renew.                                       B. Any body piercer desiring approval to perform the duties of an
                                                                          apprenticeship sponsor and offer the board’s body-piercing
A. When a body piercer or body piercer - ear only fails to renew          apprenticeship program shall meet the requirements in 18 VAC
their license within 30 days following its expiration date, the           41-60-70.

Volume 22, Issue 9                                                                                                Monday, January 9, 2006

                                                                       1355
Proposed Regulations
18 VAC     41-60-160.   Body-piercing             apprenticeship       5. Blood borne pathogen standards:
curriculum requirements.
                                                                         a. OSHA and CDC blood borne pathogen standards;
Body-piercing apprenticeship curriculum requirements are set
out in this section:                                                     b. Control Plan for blood borne pathogens;

  1. Microbiology:                                                       c. Exposure Control Plan for Body Piercers;

    a. Microorganisms, viruses, bacteria, fungi;                         d. Overview of compliance requirements; and

    b. Transmission cycle of infectious diseases; and                    e. Disorders and when not to service a client.

    c. Characteristics of antimicrobial agents.                        6. Professional standards:

  2. Immunization;                                                       a. History of body piercing;

    a. Types of immunizations;                                           b. Ethics;

    b. Hepatitis A – G transmission and immunization;                    c. Recordkeeping:

    c. HIV/AIDS;                                                           (1) Client health history;

    d. Tetanus, streptococcal,        zoonotic,     tuberculosis,          (2) Consent forms; and
    pneumococcal, and influenza;                                           (3) HIPPA Standards.
    e. Measles, mumps, and rubella;                                      d. Preparing station, making appointments, salon ethics:
    f. Vaccines and immunization; and                                      (1) Maintaining professional appearance, notifying
    g. General preventative measures to be taken to protect                clients of schedule changes; and
    the body-piercer and client.                                           (2) Promoting services of the salon and establishing
  3. Sanitation and disinfection:                                          clientele.

    a. Definition of terms:                                              e. Salon management:

      (1) Sterilization;                                                   (1) Licensing requirements; and

      (2) Disinfection and disinfectant;                                   (2) Taxes;

      (3) Sterilizer or sterilant;                                     7. Body piercing:

      (4) Antiseptic;                                                    a. Client consultation;

      (5) Germicide;                                                     b. Client health form;

      (6) Decontamination; and                                           c. Client disclosure form;

      (7) Sanitation;                                                    d. Client preparation;

    b. The use of steam sterilization equipment and                      e. Sanitation and safety precautions;
    techniques;                                                          f. Implement selection and use;
    c. The use of chemical agents, antiseptics, disinfectants,           g. Proper use of equipment; and
    and fumigants;
                                                                         h. Material selection and use.
    d. The use of sanitation equipment;
                                                                    18 VAC 41-60-170. Body-piercing hours of instruction and
    e. Pre-service sanitation procedure; and                        performances.
    f. Post-service sanitation procedure.                           A. Curriculum requirements specified in 18 VAC 41-60-160
  4. Safety:                                                        shall be taught over a minimum of 1,500 hours as follows:

    a. Proper needle handling and disposal;                            1. 350 hours shall be devoted to theory pertaining to
                                                                       subdivisions 1, 2, 4, 5, and 6 of 18 VAC 41-60-160;
    b. How to avoid overexposure to chemicals;
                                                                       2. 150 hours shall be devoted to theory pertaining to
    c. The use of Material Safety Data Sheets;                         subdivision 3 of 18 VAC 41-60-160; and
    d. Blood spill procedures;                                         3. The remaining 1,000 hours shall be devoted to practical
                                                                       training and the following performances pertaining to
    e. Equipment and instrument storage; and                           subdivision 7 of 18 VAC 41-60-160:
    f. First aid and CPR.                                                  Body-Piercing Performances

                                                   Virginia Register of Regulations

                                                                1356
                                                                                             Proposed Regulations
         ear lobe                                 20                 body-piercing salon or body-piercing - ear only salon shall be
         helix - ear                              15                 separated from any living quarters by complete floor to ceiling
         concha - ear                             15                 partitioning and shall contain no access to living quarters.
         tragus - ear                             15
         tongue                                   20                 B. The body-piercing salon, body-piercing - ear only salon, or
         navel                                    15                 temporary location shall be maintained in a clean and orderly
         eyebrow                                  15                 manner.
         lip                                      15                 C. A body-piercing salon, body-piercing - ear only salon, or
         septum                                   15                 temporary location shall have a blood spill clean-up kit in the
         nostril                                  20                 work area.
         male nipple                              10
         female nipple                            10                 D. Work surfaces in a body-piercing salon, body-piercing - ear
         Monroe (face cheek)                      12                 only salon, or temporary location shall be cleaned with an EPA-
         Prince Albert (male genitalia)           12                 registered, hospital grade disinfectant. Surfaces that come in
         Frenum (male genitalia)                  12                 contact with blood or other body fluids shall be immediately
         clitorial hoods (female genitalia)       12                 disinfected with an EPA-registered germicide solution.
         labias (female genitalia)                12                 Appropriate personal protective equipment shall be worn during
                                                                     cleaning and disinfecting procedures.
       Total                                     250
                                                                     E. In a body-piercing salon, body-piercing - ear only salon, or
B. An approved body-piercing apprenticeship program may              temporary location, cabinets or containers for the storage of
conduct an assessment of an apprentice’s competence in the           instruments, single-use articles, and other utensils shall be
theory and practical requirements for body piercing and, based       provided for each operator and shall be maintained in a sanitary
on the assessment, give a maximum of 500 hours of credit             manner.
towards the requirements in subdivisions A 1 and A 3 of this
section. No credit shall be allowed for the 150 hours required in    F. In a body-piercing salon, body-piercing - ear only salon, or
subdivision A 2 of this section.                                     temporary location, bulk single-use articles shall be commercially
                                                                     packaged and handled in such a way as to protect them from
                       PART VI.                                      contamination.
                STANDARDS OF PRACTICE.
                                                                     G. In a body-piercing salon, body-piercing - ear only salon, or
18 VAC 41-60-180. Display of license.                                temporary location, all materials applied to the human skin shall
A. Each body-piercing salon owner or body-piercing - ear only        be from single-use articles or transferred from bulk containers to
salon owner shall ensure that all current licenses issued by the     single use containers and shall be disposed of after each use.
board shall be displayed in the reception area of the salon in       H. In a body-piercing salon or body-piercing - ear only salon, the
plain view of the public. Duplicate licenses shall be posted in a    walls, ceilings, and floors shall be kept in good repair. The body-
like manner in every salon location where the licensee provides      piercing area shall be constructed of smooth, hard, surfaces that
services.                                                            are nonporous, free of open holes or cracks, light colored, and
B. Each body-piercing salon or body-piercing - ear only salon        easily cleaned. New physical facilities shall not include any dark-
owner shall ensure that no licensee performs any service             colored surfaces in the body-piercing area. Existing physical
beyond the scope of practice for the applicable license.             facilities with dark-colored surfaces in the body-piercing area
                                                                     shall replace the dark-colored surfaces with light-colored
C. Each body-piercing salon or body-piercing - ear only salon        surfaces whenever the facilities are extensively remodeled or
owner shall offer to licensees the full series of Hepatitis B        upon relocation of the business.
vaccine.