Virginia Law

A. When a permit is issued for the use, development of, or activities in wetlands, the permit shall where appropriate require the provision of compensatory mitigation.

B. If compensatory mitigation is required, the permit must specify the appropriate mitigation option and amount of mitigation required as a condition of the permit. Permit applicants are responsible for proposing an appropriate compensatory mitigation option to offset unavoidable impacts. Unless otherwise permitted by law, the compensatory mitigation should occur in or have an approved service area that includes the same U.S. Geological Survey (USGS) cataloging unit or adjacent USGS cataloging unit in the same watershed as the permitted project. The commission or a wetlands board shall select the compensatory mitigation option in the following order of preference: (i) use of an approved mitigation bank, (ii) use of an approved in-lieu fee program, (iii) permittee-responsible on-site and in-kind mitigation, or (iv) permittee-responsible mitigation through off-site or out-of-kind mitigation within the same watershed.

C. Use of mitigation banks. Pursuant to § 28.2-1308 of the Code of Virginia, when any activity involving the loss of tidal wetlands authorized by the commission or a wetlands board is conditioned upon compensatory mitigation, the applicant may be permitted to satisfy all or part of such mitigation requirements by the purchase or use of credits from any approved wetlands mitigation bank. When approving the use of a compensatory mitigation bank, the number and type of credits the permittee is required to secure must be specified by the commission or a wetlands board. The credits secured should be of a type to replicate, as nearly as practicable, the functions of the impacted wetlands.

D. Approved in-lieu fee programs. An applicant may be permitted to satisfy all or part of any compensatory mitigation requirements by the purchase or use of credits from an approved in-lieu fee program. When approving the use of an approved in-lieu fee program, the number and type of credits the permittee is required to secure must be specified by the commission or a wetlands board. The credits secured should be of a type to replicate, as nearly as practicable, the functions of the impacted wetlands.

E. Use of on-site and off-site compensation. When on-site or off-site compensation is required as a condition of permit approval, the following items apply:

1. The applicant must provide a detailed plan, including a scaled plan view drawing, describing the objectives of the wetland compensation, the type of wetland to be created, the mean tide range at the site, the proposed elevations relative to a tidal datum, the exact location, the areal extent, the method of wetland establishment, the vegetation to be planted, the exact timeframe from initial work to completion, and an abatement plan for any plants listed on the Virginia Invasive Species Plant List promulgated by the Virginia Department of Conservation and Recreation. The plan should also address replanting areas where vegetation fails to grow. The permittee must secure approval of the plan by the commission or a wetlands board prior to commencing impacts to tidal wetlands.

2. Once the grading is completed at the planting site, it should be inspected by a competent authority to ensure that the elevations are appropriate for the vegetation to be planted and that the surface drainage is effective.

3. The compensation plan and its implementation should be accomplished by experienced professionals knowledgeable of the general and site-specific requirements for wetland establishment and long-term survival.

4. A performance bond or letter of credit should be required and remain in force until a minimum of two growing seasons have passed and a planting success rate established by the commission or a wetlands board has been achieved.

5. The replacement wetland should be designed to replace as nearly as possible the functions of the lost resource on an equal or greater basis.

6. The compensatory mitigation should be accomplished prior to or concurrently with the construction of the proposed project. Before any activity under the permit may begin, the permittee must hold all interests in the compensatory mitigation site that are needed to carry out the compensatory mitigation.

7. All reasonable steps must be taken to avoid or minimize any adverse environmental effects associated with the compensatory mitigation activities.

8. Both short-term and long-term monitoring of compensatory mitigation sites should be considered on a case-by-case basis. The permittee will be responsible for funding such monitoring as is deemed necessary.

9. An appropriate site protection instrument that will protect the site in perpetuity should be required for the compensatory mitigation site, except in cases where both the impact to wetlands and the compensatory mitigation required are determined by the wetlands board or the commission to be de minimis.