Administrative Code

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Virginia Administrative Code
Title 9. Environment
Agency 25. State Water Control Board
Chapter 900. Certification of Nonpoint Source Nutrient Credits
12/1/2021

9VAC25-900-290. Trust.

A. An owner may satisfy the requirements of this part by establishing a trust fund that conforms to the requirements of this section and by submitting an originally signed triplicate of the trust agreement to the director. The owner shall also place a copy of the trust agreement into the nutrient credit-generating project's operating record. The trustee for the trust fund shall be a bank or financial institution that has the authority to act as a trustee and whose trust operations are regulated and examined by a state or federal agency.

B. Payments into the trust fund shall be made by the owner whenever necessary under the requirements of 9VAC25-900-260 or 9VAC25-900-270.

C. During any annual period when a payment into the fund is necessary under the applicable requirements outlined in 9VAC25-900-260 and 9VAC25-900-270, the owner must submit the following information to the director no later than the anniversary date of the initial approval by the department of the release of credits for exchange:

1. The calculation for determining the appropriate payment amount into the trust; and

2. A statement from the trustee indicating the amount of the currently required deposit into the trust fund and the subsequent balance of the fund.

D. The owner shall compare the cost estimate with the trustee's most recent annual valuation of the trust fund:

1. Annually, at least 60 days prior to the anniversary date of the initial approval by the department of the release of credits for exchange. If the value of the fund is less than the amount of the cost estimate, the owner shall, by the anniversary date of the initial approval by the department of the release of credits for exchange, deposit a sufficient amount into the fund so that its value after payment at least equals the amount of the cost estimate, or obtain other financial assurance as specified in this part to cover the difference. If the value of the trust fund is greater than the total amount of the cost estimate, the owner may submit a written request to the director for release of the amount that is in excess of the cost estimate; and

2. Whenever the cost estimate changes. If the value of the fund is less than the amount of the new cost estimate, the owner shall, within 60 days of the change in the cost estimate, deposit a sufficient amount into the fund so that its value after payment at least equals the amount of the new estimate, or obtain other financial assurance as specified in this part to cover the difference. If the value of the trust fund is greater than the total amount of the cost estimate, the owner may submit a written request to the director for release of the amount that is in excess of the cost estimate.

E. The department shall withdraw funds from the trust when the owner has failed to monitor, operate and maintain, perform long-term maintenance for, or repair or replace, as applicable, the practices utilized by the nutrient credit-generating project in accordance with this chapter and the nutrient credit certification. The department shall use the funds to pay for the performance of monitoring, operation, and maintenance, or the performance of long-term maintenance, or repair and replacement, as applicable, of the practices utilized by the nutrient credit-generating project.

F. Subject to the limitations and requirements outlined in 9VAC25-900-260 and 9VAC25-900-270, if the owner substitutes other financial assurance as specified in this part for all or part of the trust fund, the owner may submit a written request to the director for release of the amount in excess of the current cost estimate covered by the trust fund.

G. Within 60 days after receiving a request from the owner for release of funds as described in subsections F and H of this section, the director shall instruct the trustee to release to the owner such funds as the director deems appropriate, if any, in writing.

H. The director shall agree to terminate the trust when:

1. The owner substitutes alternate financial assurance as specified in this part; or

2. The director notifies the owner that the owner is no longer required by this part to maintain financial assurance for the nutrient credit-generating project.

I. The trust agreement shall be worded as described in 9VAC25-900-350, except that instructions in parentheses are to be replaced with the appropriate information and the parentheses deleted, and the trust agreement shall be accompanied by a formal certification of acknowledgment and Schedules A and B.

Statutory Authority

§ 62.1-44.19:20 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 36, Issue 23, eff. September 1, 2020.

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