Virginia Law

A. An applicant requesting certification of nutrient credits shall submit an application to the department in accordance with this part. Applicants requesting a renewal of a certification of term nutrient credits shall submit an application to the department at least 60 days prior to the expiration of the nutrient credit term. If the renewal application is not received by the department at least 60 days prior to the expiration of the nutrient credit term, the application will be deemed a new application. The application or renewal application shall be in the form required by the department including signature in accordance with 9VAC25-900-130 and shall include the following elements:

1. A brief narrative description of the nutrient credit-generating project.

2. Contact information for the applicant including name, address, and telephone number.

3. Contact information for the nutrient credit-generating project, including the project's mailing address, street address, telephone number, and the contact person's name and email address.

4. Status of the applicant as owner, co-owner, operator, or lessee of the nutrient credit-generating project or the site on which the project is located. The applicant shall provide documentation of the applicant's right to exercise control of the nutrient credit-generating project and the site on which it is located for the purposes of generating and maintaining the proposed nutrient credit-generating project via a title, deed, grant, lease, or easement agreement. Evidence of such documentation must be recorded in the property chain of title and must identify contact information for the applicant or long-term steward for perpetual credits. If the applicant cannot demonstrate control, those parties who singularly or in conjunction with the applicant exercise control over the nutrient credit-generating project or the site on which it is located shall be required to jointly apply for nutrient credit certification with the applicant.

5. The name, mailing address, telephone number, and responsibilities of all known contractors responsible for any operational or maintenance aspects of the nutrient credit-generating project.

6. The number and type of potential nutrient credits to be generated and supporting information including (i) a description of the baseline practices in place within the management area and the nutrient credit-generating project's practices that may result in generation of nutrient credits beyond baseline requirements; (ii) the potential nutrient credit calculation including the efficiencies and factors used; and (iii) the associated documentation supporting the potential nutrient credits calculation. Baseline shall be determined in accordance with the requirements of 9VAC25-900-100. The number of potential nutrient credits shall be as calculated in accordance with 9VAC25-900-110.

7. A topographic map, survey, or another type of map deemed acceptable by the department that delineates the property boundary of the management area and clearly shows the location of all practices, including nutrient credit-generating projects and any baseline practices.

8. A description of current site conditions with photographs.

9. The 8-digit, 10-digit, and 12-digit HUC in which the nutrient credit-generating project is located.

10. For land use conversion projects, documentation of the condition of the land and land use controls in place as of the date specified in 9VAC25-900-100 E noting any changes in the condition of the land or land use controls since that date.

11. An implementation plan that meets the requirements of 9VAC25-900-120.

12. For structural BMPs or restoration projects required to submit and maintain financial assurance in accordance with 9VAC25-900-230, the draft financial assurance documents and financial assurance cost estimate calculated pursuant to Part VI (9VAC25-900-230 et seq.) of this chapter. As required by the schedule of release provisions of subsection B of 9VAC25-900-90, prior to the release of nutrient credits all required financial assurance mechanisms shall be established per Part VI (9VAC25-900-230 et seq.) of this chapter and approved by the department.

13. The appropriate fee required pursuant to Part V (9VAC25-900-190 et seq.) of this chapter.

14. For perpetual credits, a draft of the proposed site protection instrument for the site on which the nutrient credit-generating project is located. If the landowner is not an individual, documentation will be required establishing that the person executing the protection instrument has the authority to do so.

15. A description of other permits and approvals that may be necessary to operate the nutrient credit-generating project.

16. A description of any state or federal water quality grants received for water quality actions in the management area.

17. For perpetual credits, demonstration by the applicant that the site on which the nutrient credit-generating project is located is held with title free from all defects, liens, and encumbrances that would interfere with or be in conflict with the establishment and operation of the nutrient credit-generating project. The demonstration may include documentation of the subordination of property interests (e.g., mineral rights, mortgages, easement) if the department determines that the property interest would interfere with or be in conflict with the establishment and operation of the nutrient credit-generating project.

18. For term credits, the desired term of the credit shall be submitted; however, the term shall not exceed five-years.

19. A tax map showing the management area and adjacent parcels.

20. For nutrient credit-generating projects using innovative practices, the department may request submittal of additional information in order to review the innovative practice. This additional information may include application provisions that are deemed relevant to the innovative practice.

21. Any other information deemed necessary by the department.

B. Applications for certification of nutrient credits based on nutrient reductions from practices other than land conversion shall be processed in accordance with this subsection.

1. Administrative review. Upon receiving an application pursuant to subsection A of this section, the department shall perform a cursory review of the application within 30 calendar days of receipt. If the application does not contain all the necessary elements in accordance with subsection A of this section, the department shall notify the applicant of the missing elements. Otherwise, the department shall notify the applicant that the application will be evaluated for nutrient credit certification.

2. Public notification. After receipt of an application, the department shall post a public notification of the proposed nutrient credit-generating project on its website. The public notification shall include the name of the nutrient credit generating entity that proposes to generate nonpoint source nutrient credits, the location of the nutrient credit-generating project, and a description of the practices utilized. The public notification shall also include the name and contact information for a department staff person.

3. Technical evaluation. Once the application contains all the required elements, the department shall perform a technical evaluation of the application. As part of the evaluation, additional information may be required and the department shall, if warranted, perform a site visit of the proposed nutrient credit-generating project. Additionally, the department may convene a certification advisory committee to provide input regarding the review of an application such as those which incorporate the use of innovative practices by the nutrient credit-generating project. Within 120 days of the department's notification that the application will be evaluated, the department shall notify the applicant of the status of the evaluation of the application and, for innovative practices, provide a projected processing timeline for the application.

4. Completeness. The nutrient credits shall not be certified until the application is complete; however, a determination that an application is complete shall not require the department to issue the nutrient credit certification.

a. An application for nutrient credit certification is complete when the department receives an application in accordance with subsection A of this section, and the application and any supplemental information fulfills the application requirements to the department's satisfaction.

b. For applications for certification of nutrient credits generated from innovative practices, a second public notification shall be provided after the application is complete and prior to the issuance of the nutrient credit certification. The department shall post on its website a public notification of its intent to issue a nutrient credit certification, and the notification shall include the name of the applicant, the location of the nutrient credit-generating project, a description of the innovative practice, and the proposed quantity of term nutrient credits to be certified. The public notification shall also include the name and contact information for a department staff person.

5. Nutrient credit certification. Once the application is deemed complete, the department shall either (i) deny the application and notify the applicant that the nutrient credit-generating project does not qualify for any certified credits pursuant to the requirements of this chapter or (ii) approve the application by issuance of a nutrient credit certification and provide any applicable conditions including the schedule of release and retirement of nutrient credits in accordance with 9VAC25-900-90.

C. Applications for nutrient credit certification based on nutrient reductions solely from land conversion practices shall be processed in accordance with this subsection.

1. Application review. Within 30 days of receipt of an application, the department shall, if warranted, conduct a site visit. Within 45 days of receipt of an application, the department shall either determine that the application is complete or request additional specific information from the applicant. A determination that an application for a land conversion project is complete shall not require the department to issue a nutrient credit certification.

2. Public notification. After receipt of the application, the department shall post a public notification of the proposed nutrient credit-generating project on its website. The public notification shall include the name of the nutrient credit generating entity that proposes to generate nonpoint source nutrient credits, the location of the nutrient credit-generating project, and a description of the land conversion practice. The notification shall also include the name and contact information for the department staff person.

3. Nutrient credit certification. Within 15 days of the department's determination that the application is complete pursuant to subdivision 1 of this subsection, the department shall either (i) deny the application and notify the applicant that the nutrient credit-generating project does not qualify for any certified credits pursuant to the requirements of this chapter or (ii) approve the application by issuance of a nutrient credit certification and provide any applicable conditions including the schedule of release and retirement of nutrient credits in accordance with 9VAC25-900-90.