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REGULATION: Projects undertaken by the Virginia Department of Transportation In, On, or Over State-owned Subaqueous Lands Anywhere Within the Commonwealth

Title of Regulation: 4 VAC 20-333-10 et seq. Virginia General Permit #1 (VGP #1) for Projects undertaken by the Virginia Department of Transportation In, On or Over State-owned Subaqueous Lands Anywhere Within the Commonwealth. 

Statutory Authority: 28.2-103 and 28.2-1203 of the Code of Virginia.

Effective Date: July 6, 1999.

Chapter 333.

Virginia General Permit #1 (VGP #1) for Projects undertaken by the Virginia Department of Transportation In, On, or Over State-owned Subaqueous Lands Anywhere Within the Commonwealth. 

4 VAC 20-333-10. Definitions.

"Commission" means Marine Resources Commission.
"VDOT" means the Virginia Department of Transportation. 

4 VAC 20-333-20. Types of permits.

  1. The U. S. Army Corps of Engineers has granted nationwide permits for minor projects requiring notification in waters of the United States.
  2. The U. S. Army Corps of Engineers has granted nationwide permits for minor projects not requiring notification in waters of the United States.
  3. The Norfolk District U. S. Army Corps of Engineers has granted regional permits and a letter of permission for VDOT projects in the waters of the Commonwealth which meet certain rigid criteria.
  4.  Projects, which do not qualify under A, B or C of this section, will be processed in accordance with established joint state/federal permit procedures.
  5. This General Permit may authorize projects, which do not require U. S. Army Corps of Engineers' permits.
  6. Formal monthly state/federal interagency coordination procedures have been established and practiced over the past several years at which each VDOT project is subjected to rigorous review and routinely modified to satisfy agency concerns.
  7. All VDOT projects are routinely given wide public notice in conformance with established state/federal highway project requirements and public hearings are held by VDOT on all significant proposals.
  8. VDOT is exempt by statute from all fees and royalties.

4 VAC 20-333-30. Authorizations and conditions.

All proposals by VDOT to encroach in, on or over State-owned subaqueous land which qualify under 4 VAC 20-333-20 A, B, C and E above are permitted subjected to the following standard conditions:

  1. Any proposed deviation from the preapproved plan must be formally recoordinated and approved prior to undertaking the work.
  2. VDOT shall report annually to the commission on the projects which have been completed. The report shall include a record of the total subaqueous bed impacts. 
  3. This permit grants no authority to VDOT to encroach upon the property rights, including riparian rights, of others. 
  4. The duly authorized agents to the commission shall have the right to enter upon the premises at reasonable times, for the purpose of inspecting the work being done pursuant to this permit.
  5. VDOT shall comply with the water quality standards as established by the Virginia Department of Environmental Quality and all other applicable laws, ordinances, rules and regulations affecting the conduct of the project. The granting of this permit shall not relieve VDOT of the responsibility of obtaining any and all other permits or required authorizations for the project. 
  6. This permit shall not affect or interfere with the right vouchsafed to the people of Virginia concerning fishing, fowling and the catching of and taking of oysters and other shellfish in and from the bottom of areas and waters not included within the terms of this permit.
  7. VDOT shall, to the greatest extent practicable, minimize the adverse effects of the project upon adjacent properties, tidal wetlands and upon the natural resources of the Commonwealth.
  8. This permit may be revoked at any time by the commission upon the failure of VDOT to comply with any of the terms and conditions of this chapter or at the will of the General Assembly of Virginia.
  9. This permit is subject to any lease of oyster planting ground in effect on the date of this permit. Nothing in this permit shall be construed as allowing VDOT to encroach on any lease without the consent of the leaseholder. VDOT shall be liable for any damages to such lease.
  10. The issuance of this permit does not confer upon VDOT any interest or title to beds of the waters.
  11. Specifically prohibited is the sale by subcontractors, without commission approval, of material removed from state-owned bottoms.
  12. All structures authorized by this permit, which are not maintained in good repair shall be completely removed from state-owned bottom within three months after notification by the commission.
  13. This permit authorizes no claim to archaeological artifacts from state-owned bottoms, which may be encountered during the course of construction. If archaeological remains are encountered, VDOT agrees to notify the commission, who will in turn, notify the Virginia Department of Historic Resources (VDHR). VDOT shall cooperate with the commission and the Department of Historic Resources in the recovery of archaeological remains, if deemed necessary.
  14. Projects authorized under this general permit shall be completed within three years from the date of issuance. Upon proper request by the VDOT, the permit may be extended to allow completion of the work authorized.

4 VAC 20-333-40. Procedures.

A. The Chief, Habitat Management Division, will administer this General Permit and establish procedures to ensure: 

1. That all projects authorized by this permit either (i) do not require U. S. Army Corps of Engineers permits (4 VAC 20-333-20 E), (ii) satisfy the Nationwide Permit established by the Department of the Army Regulations (4 VAC 20-333-20 A and B) or, (iii) qualify for the regional permit or letter of permission criteria established by the Norfolk District U. S. Army Corps of Engineers 
(4 VAC 20-333-20 C).

2. Minimum cumulative impact on the marine environment.

3. Adequate opportunity for public review.

4. That a record is maintained on all projects authorized by this permit. Such records will include:

a) The name, address, and telephone number of the VDOT District that wishes to perform the work;
b) The location of the project, including waterway, county/city and route number of roadway;
c) Detailed drawings of the project including a plan view and section view with the mean high and mean low water lines or the ordinary high water mark, whichever is appropriate;
d) The amount of dredging and fill. If dredging is involved, the type of dredge, hydraulic or dragline, the location of disposal sites and the type of erosion and sediment controls, if necessary;
e) When project involves the destruction of tidal wetlands, the type of species involved, the amount to be disturbed, and any plan for compensation, or mitigation; and
f) A copy of the environmental assessment or environmental impact statement when requested by the commission

B. If any objections are raised by either individuals or agencies which cannot be resolved at 
the monthly interagency coordination meeting, that project must then be processed 
for an individual permit to encroach in, on or over state-owned bottomlands.

C. Those projects located within a non-tidal drainage basin of less than five square miles can be undertaken without the review process outlined in 4 VAC 20-333-20 F, unless the project involves one or more of the following resources:

a) A designated or proposed scenic river as determined by the Virginia Department of Conservation and Recreation. 
b) A natural trout stream as designated by the Virginia Department of Game and Inland Fisheries.
c) A public water supply as determined by the Virginia Department of Health or the Water Division.of the Department of Environmental Quality. 
d) A habitat or critical area designated for endangered or threatened species as listed on the Commonwealth of Virginia?s official list.
e) Any spawning area designated by the Virginia Institute of Marine Science or the Department of Game and Inland Fisheries.
f) An archaeological site on state-owned bottoms as recorded in the Virginia Department of Historic Resources inventory.
g) A total area of open water greater than one acre.

D. Those projects not requiring permits from or notification to the U.S.Army Corps of Engineers (4 VAC 20-333-20 B and E) will not require coordination with the U. S. Army Corps of Engineers or other federal agencies to qualify for this General Permit. These projects will be listed on the monthly interagency coordination meeting agenda and will not require a formal presentation as outlined in 4 VAC 20-333-20 F, unless requested by the commission. Any requested formal presentations shall involve state agencies only.

E. The commission may conduct periodic inspections to evaluate compliance with applicable environmental management laws and regulations, and sediment and erosion control practices specified by the Virginia Department of Conservation and Recreation, Division of Soil and Water.

F. The results of any inspections conducted may be utilized by the commission to assess the advisability and continuation of the provisions of this permit. Such continuation may be on a highway district basis. The commission will advise VDOT in writing, if a highway district is not in compliance and may suspend this permit for that district until evidence of compliance satisfactory to the commission is achieved.

G. Where emergency conditions exist in time of flood or other catastrophic event or a declared disaster by the Governor?s office, VDOT, after consultation with the commission, will take whatever actions it deems appropriate to protect life and property of both private citizens and the transportation system of the Commonwealth. The emergency actions will be reported in writing by VDOT to the Commission within three months of the completion of such action.


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