Vol. 28, No. 14  ●  November 16, 2020

Draft §401 Water Quality Certification for Nationwide Permits Released 

On October 27, 2020, the Virginia Department of Environmental Quality issued a Notice of Tentative Section 401 Water Quality Certifications of Proposed U.S. Army Corps of Engineers 2020 Nationwide Permits, General Conditions and Regional Conditions.  Comments are due by midnight on November 30, 2020.  Wetland Studies and Solutions, Inc. has reviewed the proposed §401 water quality certifications, and significant changes include:

• 14 General Conditions to the majority of all active NWPs. Many of these conditions were historically always applicable but not explicitly stated and are consistent with the Overall Conditions of the VWP General Permit. However, particular general conditions of note include:

  •  General Condition #1: State Waters
    Activities occurring in solely state waters will require coordination with DEQ to determine if a permit is needed; this determination will be based on cumulative impacts in all state surface waters. Note that if a DEQ permit is needed, the permit application should include all impacts associated with the project (not just those that are solely state surface waters).

  • General Condition #2: Impact to a mitigation area
    Activities in mitigation areas (e.g. a proposed utility through a recorded preservation area), will require coordination with DEQ for a permit(s) need determination (again based on cumulative impacts to state waters)

  • General Condition #6: Stormwater management facilities
    Cannot be placed in perennial streams OR in a wetland. The inclusion of wetland is new in this instance and could mean a DEQ General Permit is required¹.

  • General Condition #7: Flagging to prevent unauthorized disturbance
    In addition to the previous mitigation conditions, a requirement to flag all non-impacted surface waters and compensatory mitigation areas within 50-feet of authorized activities has been added.  While this is a standard condition in the DEQ General Permit – this is a new condition explicitly stated in the 401-conditional certification.

• New Specific Certification Conditions have also been added. Pertinent changes include:

  • NWP #43 SWM Facilities: Now includes a cumulative impact threshold of 0.10 acre or 300 LF. This threshold is not just for mitigation, but instead requires  a separate permit from DEQ should these impact limitations be exceeded.

  • NWP #12 Oil and Gas Pipelines: References the State Water Control Law (§ 62.1-44.15:20 and Article 2.6 of Title 62.1 of the Code of Virginia) which outlines specific conditions associated with pipelines that are greater than 36” in diameter. With this, DEQ notes that a permit need determination will have to be made for these pipelines.

  • NWP #51 Land Based Renewable Energy Facility:  The impact threshold has been reduced from 2 acres of wetlands or 1500 LF of stream bed to 0.10 acre of wetland or 300 linear feet of stream bed. This would now mean that any projects exceeding that impact limitation will now need a separate permit from DEQ.

Main Takeaway

Some significant changes are proposed and the recent changes to the definition of federal waters in addition to the proposed changes to the NWPs could result in the need for a separate DEQ VWP permit.  If this is the case, WSSI recommends early coordination with the agencies to determine the best permitting strategy for your project. Early coordination with DEQ in particular will help your project move forward and avoid delays.

Comments 

Comments on the proposed §401 water quality certification conditions are due by midnight on November 30, 2020 and should be submitted to DEQ via the following methods:

1. Hand-delivery to Department of Environmental Quality, Office of Wetlands and Stream Protection, 1111 East Main Street, Suite 1400, Richmond, Virginia 23219;

2. Email vwppublicnotices[at]deq.virginia.gov;

3. Fax 804-698-4178; or

4. Postal mail to Department of Environmental Quality, Office of Wetlands & Stream Protection, P.O. Box 1105, Richmond, Virginia 23218. 

Per DEQ instructions, written comments should include the name, address, and telephone number of the writer and shall contain a complete, concise statement of the factual basis for comments. 

WSSI Can Help

If you have questions regarding how these proposed 401 certifications may affect your project, please contact Christie Blevins, Mark Headly, Rebecca Napier, or Bob Kerr. 

Check out past issues in the Field Notes Archive.

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