[From the U.S. Government Printing Office, www.gpo.gov]




                                                 Virginia Coastal Resources
                                                                Management Program

                                                                                                           Appendic'es
                                                     Routine Program Implementation Changes
                                                                                                 July 1985 - May 1994





                                DEPARTMENT OF ENVIRONMENTAL QUALITY
                                                                COMMONWEALTH OF VIRGINIA






                                                                                    629 East Main Street, 6th Floor
                                                                                             Richmond, Virginia 23219


                                                                                                                            May 1994


                                                   vi                                 NIA
                                             COASTAL RESOURCES
                                 MANAGEMENT PROGRAM
                                                                                                                 Izj
                                                                 RGI


                                                                                                                                                      f

   j
      he Virginia Coastal Resources Management Program links state programs to manage coastai
     esources. The program's coastal boundary includes the 29 counties and 15 cities within Tidewater
      virgi.tu.a. The program is coordinated and monitored by








                                        APPENDICES

                                   TABLE OF CONTENTS


           Appi@ndix I - Addition of Legislative Changes to the Coastal Primary Dune
                        Protection Act, October 1988



           Appendix 11 - 401 Certification Addition to Point Source Water Pollution Control
                         Regulatory Program, October 1988


           Appendix III - Use of Tributyltin (TBT) Compounds - Regulatory Program,
                          October 1988



           Appendix IV - 1990-1992 Amendments & Additions to Law and Regulations:
                          Erosion and Sediment Control Program, January 1993


           Appendix V - Changes to Barrier Island Policy of the Coastal Primary Sand
                         Dunes/Reaches Guidelines, January 1993


           Appendix VI - Restoration Orders, Civil Charges and Penalties Available to
                         VN4RC and Local Wetlands Boards, August 1993


           Appendix VII - Virginia Water Protection Permit and Regulations, August 1993










             @p








                                  Appendix 1,



                   ROUTINE PROGRAM IMPLEMENTATION
                 Virginia Coastal Resources Management Program.





                       Addition of Legislative Changes to the
                  Coastal Primary Dune Protection Act, October 1988












                                        October 31, 1988


              VCRMP RPI Nunber  One

              Proaram Change:      Routine Program Implementation

              Title:    The addition of legislative changes to the Coastal
                        Primary Sand Dune Protection Act

              Description:    The Coastal Primary Sand Dune Protection,Act, as
              amended in 1985, is a regulatory policy of the Virginia Coastal
              Resources Management Program, as approved in 1986. In March of
              1987, the Virginia legislature made changes and additions to the
              language in the 1985 amendment (see Appendix 1-1). These changes
              served to more clearly delineate the Sandbridge Beach area in
              jeopardy from erosion, protected the rights of adjacent property
              owners, and supplied measures designed to prevent the p
                                                                         ,pssibility
              of erosion between adjoining but non-contiguous bulkheads.
                                                                         It
                   The description was changed to read:
                          ... the area bounded on the north by Dam Neck Naval
                   Base, on the west by Sandfiddler Road, and on the south
                   by White Cap Lane..."                                       F

                   The new language also states  'that the properties of those
              homeowners who wish to erect bulkheads must, in determination of
              the Virginia Beach Wetlands Board, subject to review by the
              Virginia Marine Resources Commission (VMRC), be, "...in clear and
              imminent danger from erosion and storm damage due to severe wave
              action or storm surge."

                   Other language appended to the Act required the applicant(s)
              to obtain written consent from adjacent property owners for the
              construction of the bulkhead, and required that the applicant(@)
              consent to allow those adjacent owners to tie in to said
              bulkhead, at some future time, at no additional cost.

                   The 1988 legislature eliminated the requirement for adjacent
              property owner's consent to proposed construction of bulkheads.
              It further requires that such construction be completed in three
              years (see Appendix 1-1)..

                   Appendix 1-2 presents the opinion of the Attorney General's
              office on the legality of the Virginia Beach Wetlands Board
              action declaring an emergency at Sandbridge.

              Effects of Program Change on   Enforceable and/or Advisory
              Policies:   These changes reflect a clarification in the
              enforceable authority of the VMRC's primary sand dune regulations
              as adopted by the Virginia Beach Wetlands Board. It restricts
              bulkheading or structural improvements to those properties in
              danger of erosion from severe forces, thereby closing a
              "loophole" which could have allowed any Sandbridge beachfront
              property owner to erect structural improvements without regard to











              the properties' susceptibility to erosion. It also allows the
              Wetlands Board to preclude the possibility of erodible gaps
              between the bulkheads by allowing them to be integrated or "tied
              in" at their junction.

                   These changes will allow for a more critical review of
              applications for structural improvement along the Sandbridge
              ,oceanfront.

                   The change will be incorporated into Chapter 111, Core
              Regulatory Program, p. 9, Dunes Management. Paragraph four under
              this subsection will be changed to read:

                   "The Coastal Primary Sand Dune Protection Act (Virginia Code
                   Section 62.1-13.21 through 62.1-13.28 as amended and re-
                   enacted in 1987 and 1988)."

              Program Change Meets Approval Criteria:   This proposwl meets
              approval criteria by clarifying the existing program under
              Chapter III, p. 9, D., Dunes Management, to prevent
              misconstruction.


                   The State of Virginia considers this change to be a routine
              program implementation and requests concurrence in that
              determination by the OCRM.








                                 Appendix 11



                   ROUTINE PROGRAM IMPLEMENTATION
                 Virginia Coastal Resources Management Program





                     401 Certification Addition to Point Source
              Water PoRution Control Regulatory Program, October 1988












                                        October 31" 1988


              VCRMP RPI NUMBER TWO

              Program Change: Routine Program Implementation

              Title:    401 Certification Addition to Point Source Water
                        Pollution Control Regulatory Program

              Description:    The VCRMP already contains a core regula@ory
              program addressing point source water pollution control.,
              including the State's National Pollution Discharge Elimination
              System (NPDES) permit program. The purpose of this program change
              is to add the State's 401 certification program as authorized by
              the Clean Water Act to the point source water pollution control
              regulatory program of the VCRMP.
                   Implementation of Section 401 of the Clean Water ict is
              vital to successful protection of water quality and li%Ning
              resources in Virginia's coastal zone. Applicants for federal
              Section 404 permits (and other permits) to conduct any activity,
              including but not limited to the construction or operation of
              facilities which may result in a discharge to State waters, inust
              provide the federal permitting authority with a certification
              from the State Water Control Board (SWCB) in accordance with
              Section 401 of the federal Clean Water Act. The certification
              sets forth any effluent limitations and other limitations and
              monitoring requirements necessary to comply with the Clean Water
              Act and the State Water Control Law. These conditions then become
              a part of the federal license or permit.

                   The application for 401 certification shall be filed prior
              to or concurrently with the application for the federal permit or
              license for which 401 certification is required. The Army Corps
              of Engineers and Virginia Marine Resources Commission provide
              Joint Permit Applications through which application for 401
              certification can be made. The final authority for issuance of..a
              401 certification rests with the State Water Control Board
              pursuant to Virginia State Code Section 62.1-44.2 et. seq. (see
              Appendix II-1 and 11-2) and is further explained in the SWCB
              Procedural Rule No. 3 (see Appendix 11-3).

                   It is the opinion of the SWCB's Deputy Executive Director
              for Policy that there is no provision for EPA delegation of the
              401 program since the federal statute itself requires state
              certification (see Appendix 11-4.).                         1

              Effects of Program Change on Enforceable and/or Advisory
              Policies:   Section 401 certification will be expanded in the
              VCRMP as part of Core Regulatory Program F to address point
              source water pollution control. It is imporr-ant that the
              Commonwealth's 401 certification, which will be a part of the
              Army Corps of Engineer's Section 404 permir-, be explicitly
              defined as a core regulatory program of the VCRMP. This will











            strengthen the ability of the Commonwealth to review Section 404
            permit applications and permit decisions for consistency with the
            VCRMP


                 The inclusion of the State Water Control Board's 401
            Certification Progran in the VCRMP will allow Virginia to support
            the goal of protecting water quality and living resources in the
            coastal zone in areas where present core regulatory programs
            provide no jurisdiction. The effect will be to strengthen the
            ,Comarionwealth's ability to influence how development occurs in the
            coastal zone, but it will not create new regulatory burdens with
            regard to development activities planned for the coastal zone.
                 The proposed changes to the* VCRMP will be inserted in the
            VCRMP document in Chapter III as part 3 of core regulatory
            program F. The SWCB Procedural Rule 3 will be inserted as
            Appendix 111-13. The "Part I - Overview" section of the-VCRMP
            will be expanded slightly to incorporate the addition of 401
            certification to the existing Core Regulatory Programs.'

            Program Change Meets Approval Criteria:    The proposed program
            change will strengthen our ability to make constructive
            suggestions on project design when a Section 404 permit is
            needed. The Commonwealth of Virginia considers this.a routine
            program implementation change and*requests concurrence in that
            determination by OCRM.








                                Appendix III



                  ROUTINE PROGRAM IMPLEMENTATION
                Virginia Coastal Resources Management Program




                       Use of Tributylin (TBT) Compounds
                        Regulatory Program, October 1988










                                       October 31-, 1988

             VCRMP RPI NUMBER THREE

             Program Change:      Routine Program Inplementation

             Title:     Use of Tributyltin (TBT) compounds - Regulatory Program
             iescription:    The purpose of this program change is to
             incorporate the State's (TBT) regulatory program into the VCRMP.

                   Tributyltin is a chemical compound used as a pestibide to
             prevent the growth of barnacles and other undesirable marine
             organisms. Restricting such growth reduces drag between water and
             the outer boat hull thus increasing speed and maneuverability
             while reducing fuel costs. It also reduces the time a boat must
             be in dry dock for cleaning.

                   TBT pesticide is mixed (free-associated) or bonded,
             (copolymer) with boat paints where it slowly leaches into the
             water, killing aquatic life that can foul the boat hull. The
             largest portion of TBT detected in both fresh and salt water
             originates from boat hulls coated with TBT paint. In the late
             1970's, it was discovered that TBT was affecting more than just
             fouling organisms. TBT paint (tin-based) is 7 to 40 times as
             toxic to barnacles as traditionally used copper based-paint. It
             is lethal at even extremely low concentrations, measured in parts
             per trillion (ppt), to organisms other tisan those for which it
             has been targeted:

                      Shellfish tend to bioaccumulate the toxins.
                      As little as 15 ppt can be lethal to hard clam larvae.
                      Paint particles inhaled while painting and scraping boat
                      hulls may be harmful to humans.

                   Concentrations of TBT in Virginia waters have been found to
             be as high as 190 ppt. Many commercial marine vessels and an
             estimated 50% of pleasure craft use TBT-based paint.

                   The General Assembly and the Governor amended the Virginia
             Pesticide Law as it related to the possession, sale or use of
             marine anti-foulant paints containing TBT, effective July 1, 1987
             (see attached Virginia Code Sections 3.1-249.22 et. seq. as
             Appendix III-1, p.25 and Appendix 111-2, Rules and Regulations
             for Enforcement of the Virginia Pesticide Law). The Departments
             of Game and Inland Fisheries, Agriculture and Consumer Services
             (VDACS) and the Virginia Marine Resources Commission share the
             responsibility for enforcing regulations promulgated pursuant to
             the amendment. The statute pro  vides the following:

                   0 The use of anti-foulant paints containing TBT on vessels
                      less than 25 meters in length is prohibited, except those
                      with aluminum hulls.











                   9 Formulations containing TBT in concentrated form and
                       labelled for mixing with paint by the user to produce an
                       anti-foulant boat paint are prohibited from retail sale
                       or private use.

                   Except as provided  below,  no person nay distribute, possess,
              sell, offer for sale, apply or:,offer for use or application any
              marine anti-foulant paint containing TBT compounds:

                       A person may distribute or sell a marine anti-foulant
                       paint containing TBT with an acceptable release rate to
                       the owner or agent of a commercial boatyard wh6, in turn,
                       nay possess and apply it only on vessels'in excess of
                       twenty-five meters (82.02 feet) in length or which have
                       aluminum hulls.

                   ï¿½   No vessel exceeding 25 meters in length shall be painted
                       with an anti-foulant paint containing TBT unleis the
                       paint meets the "acceptable release rate." The-Y
                       "acceptable release rate" is defined as a measured
                       release rate of 5.0 micrograms, per square centimeter per
                       day at steady state conditions as defined by the
                       Environmental Protection Agency.

                   ï¿½   All registrations of marine anti-foulaint paints
                       containing TBT must be registered with the VDACS and the
                       manufacturer or distributor must certify that the
                       "acceptable release rate" is met.

                       A person may distribute, sell or apply to any vessel a
                       marine anti-foulant paint containing TBT having an
                       acceptable release rate if the paint is distributed or
                       sold in an aerosol spray can in a quantity of sixteen
                       liquid ounces or less and is commonly referred to as',
                       outboard or lower unit paint.

                   The use of TBT in boat paint constitutes a serious threat.to
              important marine animal species, especially in the Chesapeake
              Bay. Therefore, in cooperation with appropriate state agencies,
              boating activities and boat painting activities conducted in the
              coastal zone will be monitored to ensure TBT is not used in
              Virginia's coastal area except as allowed by law.

                   In addition, the State Water Control Board recently adopted
              new regulations which provide more stringent standards than EPA's
              for the instream water quality standard for TBT in salt water.
              The standard is 0.001 parts per billion (ug/1) rather than 0.10
              ppb. Please see Appendix 111-3.

              Effects of Program Chances on Enforceable and/or Advisory
              Policies:   The inclusion of a TBT regulatory program will
              support the Fisheries Management Core Regulatory Program











              indirectly and will enhance the conservation goals of the
              fisheries management program to support viable finfish and
              shellfish resources.

                   The goals of the advisory policy contained.in the VCRmp
              designed to increase the protection of spawning, nursery, and
              feeding grounds will be supported by incorporating the TBT
              ,regulatory program into the VCRMP. Both the aforementioned policy
              and program are designed to maintain the biological productivity
              and integrity of Virginia's fisheries resources.

                   The proposed changes to the VCRMP will occur by inserting
              the above "Description" section into the VCRMP document in
              Chapter III under Core Regulatory Program 1.

              Program Change Meets Approval Criteria: The TBT regulatory
              program complements the State's nonpoint source and po@nt source
              pollution programs and adds to the protection of the living
              resources and water quality of coastal waters.        1@

                   The Commonwealth of Virginia considers this a routine
              program implementation change and requests concurrence in that
              determination by OCRM.








                                 Appendix IV



                  ROUTINE PROGRAM IMPLEMENTATION
                 Virginia Coastal Resources Management Program





             1990-1992 Amendments & Additions to Law and Regulations:
                    Erosion and Sediment Control, January 1993





                                                                                  Attachment 92-1

                                                                                        B



                  VIRGIMA COASTAL RESOURCES MANAGEMENT PROGRAM
                                                  RPI 92-1


             Program Change Routine Program Implementation
             IWS_.' Virginia Erosion and Sediment Control Program
             DekHption: The purpose of this program change is to update the existing nonpoint
             source water pollution control regulatory program of the VCRMP by incorporaling the
             amodments to the Erosion and Sediment Control Law during the period 1988-1992,
             as authorized by the Virginia General Assembly and the resulting Erosion and
             Sediment Control Regulations adopted by the Virginia Soil and Water Conservation
             Board. The objective of the amendments is to more effectively control soil erosion,
             sediment deposition and non-agri cultural runoff to protect the unreasonable
             degradation of properties, stream channels, waters and other natural resources of the
             state.

                   In 1986, when Virginia's Coastal Resources Management Program was
             established, the Erosion and Sediment Control Law of 1973 was incorporated   asa
             core program. During the General Assembly session of that year, a report was
             conunissioned to identify the financial, technical and statutory impediments to
             compliance with the Erosion and Sediment Control Law of 1973. House Document
             No. 15 was based upon the outcome of a study of state and local Erosion and
             Sediment Control Programs, as well as recommendations from Department staff,
             concerned citizens and environmental organizations. This document was presented to
             the Governor and General Assembly in the fall of 1987, and prompted the 1988
             General Assembly to enact six biUs which amended or otherwise improved the 1973
             law. The 1992 General Assembly re-examined and amended the enforcement options
             and the definition of land-disturbing activity. (See Appendix 92-la, Virginia Erosion
             and Sediment Law as amended through 1992, reprinted from Title 10.1, Chapter 5,
             Article 4 of the Virginia Code.)

                   The amended legislation contained the following changes:

                                              General -Provisions:

                   Unclear or unnec essary exemptions were eliminated or further qualified. The
             exemption for projects on federal lands was eliminated, thus allowing the
             Commonwealth to exercise federal consistency requirements. Exemptions were also
             removed for telephone and electric utility lines and for railroad construction. The
             exemption for projects begun prior to program adoption by local government or soil
             conservation district was removed. The exemption for agricultural engineering
             operations was clarified by specifically listing exempt activities. Additionally, the
             exemption for separately built, single-family residences was modified in 1988, and fine
             tuned in 1991 and 1992.   Certain localities are now empowered to regulate these








             single-family residences whether or not they are developed in conjunction with
             multiple construction in subdivision development. -This authorization was granted to:
             (1) any county formally operating under the urban county executive form of
             government, (2) all localities adjacent, contiguous to, or surrounded by such a county,
             and (3) the portions of the counties of Bedford, Franklin, and Pittsylvania. draining
             into Smith Mountain Lake.

                    State authority was strengthened and clarified for oversight of local Erosion and
             Sediment Control Programs through a provision requiring periodic review of local
             programs by Department of Conservation's Division of Soil and Water Conservation.
             Authority was added to regulate significantly eroding areas that are not related, to
             current land-disturbing areas. These areas, termed "erosion impact areas," may be
             regulated, provided there is documented delivery of sediment onto neighboring
             properties or into state waters.
                    Administrative changes were authorized. Staff was increased from' 2   to 20
             positions for Erosion and Sediment Control within the Division of Soil and Water
             Conservation. A certification program for local Erosion and Sediment Control
             officials was authorized to increase competency and consistency. Local plan
             review/permitting and inspection fees were raised from $300 per project to a
             maximum of $1000 per project to increase the recovery of funds to provide for
             increasing local program administrative costs.

                                             Enforcement Provisions

                    Provisions authorizing performance guarantees were strengthened. Surety
             requirements were addeJ to bonding provisions. Local govemments were authorized
             to recover from the permittee any difference in cost should the amount of reasonable
             initiation of maintenance of measures carried out by the locality exceed the amount of
             the bond. Tle basis for the release of the guarantee was changed to adequate
             stabilization of the disturbed area, not simply completion of the land-disturbing
             activity.

                    In 1988, civil penalties and charges were authorized as an enforcement tool,
             with a maximum of $2000 per violation. A consent clause was added to provide
             incentive to resolve the violation at an administrative level; if the violator agrees to
             accept the civil charges, then such charges will be in lieu of a civil penalty. The 1992
             General Assembly authorized localities to adopt a schedule of civil penalties as an
             enforcement option for violations of the Program. The intent is for localities to
             streamline enforcement by standardizing the penalties for types of violations, rather
             than trying to determine monetary damages on a case by case basis. Upon the
             determination of 2 violation by the appropriate general district court, the violator is
             assessed a civil penalty in accordance with the schedule, not to exceed $3000.
             Designation of a particular violation for a civil penalty is in lieu of criminal sanctions
             and precludes the prosecution of the violation as a misdemeanor.

                    In addition, the 1988 amendments directed the Virginia Soil and Water
             Conservation Board to "promulgate regulations for the effective control of Soil erosion,
             sediment deposition and non-agricultural runoff which must be met in any control







              program to prevent the unreasonable degradation of properties, stream channels,
              watersheds and other natural resources in accordance with the Administrative Process
              Act." The regulations, effective September 13, 1990, were designed to improve the
              content and enforceability of the 14 General Criteria found in the 1980 Virginia
              Er6sion and Sediment Control Handbook, to clarify questions about the law as applied
              to residential subdivisions, and to provide a standard enforcement -procedure at the
              state agency level. (See VR 625-02-00 Erosion and Sediment Control Regulations
              attached in Appendix 92-1a.)
                    The Minimum Standards section strengthens and expands upon the General
              Criteria. Soil stabilization measures must now beapplied in 7, rather than 15 4ays
              after a final grade is reached; temporary stabilization measures must be taken-for
              areas which will be dormant for longer than 30, rather than 60 days. The applicant is
              reiponsible for stabilization of soil stockpiles on site, as well as those intentionally
              transported from the project site. A provision was added to give the local program
              administrator the ultimate determination regarding the establishment of "permanent"
              vegetative cover. Immediate stabilization measures must be applied to earthen
              structures such as dams, dikes and diversions, upon installation. Sediment bas'ins must
              be constructed for disturbed areas draining 3, rather than 5 acres; the outfall device
              must take into account the total drainage area flowing through the disturbed area to
              the basin. A temporary stream crossing of nonerodible material must be constructed if
              a live watercourse is crossed by construction vehicles more than twice. Public roads
              must be cleaned daily where sediment is transported and the regulations detail how
              the sediment is to be removed.   Additionally, the regulations strengthen the General
              Criteria relating to stormwateT discharge; man-made receiving channels must be
              adequate to receive the flow of a 10-year frequency storm without overtopping the
              banks and a 2-year frequency stom, without causing erosion of channel bed or banks.

                    Other substantive changes include the requirement that all variances must be
              approved and documented by the plan approving authority. Periodic inspections by
              the enforcement authority are required on all projects. Inspections are mandated
              immediately following initial installation of erosion and sediment controls, within 48
              hours of a runoff-producing storm event, and at the completion of the project prior, to
              the release of performance bonds.

                    The regulations are more specific in addressing residential subdivisions.
              individual property owners are not exempt from filing a plan or an agreement
              covering erosion and sediment control. Land-disturbing activity of less than 10,000
              square feet on individual lots is not exempt from the law or regulations. Construction
              of permanent roads or driveways that disturb greater than 10,000 square feet and
              serve more than one single-family residence separately built is not exempt.

                    A standard procedure for enforcement of state agency projects is established.
              If a state agency has disturbed land for a non-exempt activity without an approved
              erosion and sediment control plan, a formal "Notice of Permit Requirement" will be
              sent to the responsible state agency. Where inspections reveal deficiencies in carrying
              out an approved plan, failure to comply with prescribed actions and deadlines can
              result in the issuance of a stop work order. Failure of a state agency to comply with
              a final order gives the director of the Department options for compliance petitioning:







              the Secretary.of  -Natural Resources for violations in the Natural Resources Secretariat;
              for violations in other secretariats, to the appropriate secretary; for violations in other
              state agencies, to the head of such agency. The matter can be brought to the
              attention of the Governor if timely compliznce is not achieved.
              Effects of Program Change on Enforceable andjor Advisory Policies Tle inclusion
              of the new Erosion and Sediment Control Law and Regulations will strengthen the
              Nonpoint Source Pollution Control Core Regulatory Program. The Erosion and
              Sediment Control Handbook, repealed in 1990 when the regulations were issued, is
              scheduled to be re-released in the fall of 1992. It has been revised to: (1)
              incorporate the new Regulations, (2) provide state-of-the-art technology.for erosion
              and sediment control practices, and (3) provide information and clarification td those
              working within the Program. Although the general format is the same, almost every
              pa
                .ge has been updated to reflect the advancements in the erosion and sediment
              control field. The handbook will serve local programs in an advisory capacity and
              state agencies in a regulatory capacity. Together, the Program and tbe'revised
              handbook will improve implementation of this core program.

                     Furthermore, this incorporation will support and enhance Virginia's overall
              coastal management goals of prevention of environmental pollution and protettion of
              public health, prevention of damage to our natural resource base, and protection of
              public and private investment. The proposed changes to the VCRMP will occur by,
              updating the Program document in Chapter III under Core Regulatory Program E,

              Prozrarn Chan2e Meets Approval Criteria The Erosion and Sediment Control
              Program supersedes and improves upon the Erosion and Sediment Control Law of
             11973 and the General Criteria, functioning as I,.irther detailing of Virginia's coastal
              program by adding to the protection of living resources and water quality of coastal
              waters.

                     The Commonwealth considers this a Routine Program Implementation and
              requests concurrence in the determination by OCRM.








                                  Appendix V



                   ROUTINE PROGRAM IMPLEMENTATION
                 Virginia Coasta I Resources Management Pr ogram





                       Changes to Barrier Island Policy of the
             Coastal Primary Sand Dunes/Reaches Guidelines, January 1993






                                                                 ment 92-2
                                                            Attach     -
                                                                B



                VIRGINIA COASTAL RESO jLtCES MANAGEMENT PROGRAM
                                 RPI NUNIBER 92-2


         Provram Change: Routine Program Implementation

          @&I: Barrier Island Policy
         Description: The purpose of this program change is to incorporate revisions to the
         Coastal Primary Sand Dunes Guidelines: Barrier Island Policy and Supplemental
         Guidelines. Tle regulations enable the Virginia Marine Resources Commission and
         localities to consider a broader range of impacts and factors when making important
         TeSOUTce management decisions.

                The new regulation stems from a decision by the Commission on October
         12, 1989 to review the existing Barrier Island Policy and Supplemental Guidelines that
         were adopted on June 24, 1986. In addition, 1989 amendments to the Coastal-
         Primary Sand Dune Protection Act, substituted the term 'beaches" for "reaches",
         making revisions to the policy document necessary. On August 28, 1990 the Virginia
         Marine Resources Commission adopted the regulation which became effective October
         24, 1990. (See VR 450-01-0058, attached as Appendix 92-2a.)

                This regulation gives greater acknowledgement to the fragile and transient
         nature of barrier islands as landform features, their inherent value as natural heritage
         resources in their natural state, and their importance as habitat to certain threatened
         or endangered species. The revised Barrier Island Policy is designed to minimize the
         impacts associated with low-density, single-farrffly and recreational development as well
         as to allow for the consideration of both cumulative and secondary impacts in a
         permit decision. Specifically:

           0    The regulation recognizes that adverse impacts will be minimized by
                limiting the density of structures and the percentage of shoreline
                occupied by structures. The regulation requires that all structures,
                including septic systems shall be set back from the dune crest 20 times
                the local 100-year long-term annual shoreline recession rate. Specific
                requirements are defined for relocation and removal of structures.

                Encroachment upon the nesting sites of threatened and endangered
                species identified by the Virginia Department of Game and Inland
                Fisheries or Department of Conservation and Recreation is prohibited
                and evidence of impact or potential impact on threatened and
                endangered species shall be considered in permit application.

                In an effort to more closely govern vehicular use, the regulation contains
                vehicular access restrictions and implements a no-cost, annual permit
                requirement.

                Exempted from regulation are tho se military activities essential to








                      national security as well as the construction, operation and main,enance
                      of Coast Guard facilities.

                Effects of Prop-ram Change on Enforgeable and jor Advisoa Policies: The
                Coastal Primary Sand Dune Guidelines: Barrier Island Policy supports a fuller
                achievement of the purposes of the Coastal Primary Sand Dune Protection Act.
                The Policy advances Virginia's coastal management goal of prevention of
                damage to our natural resource base through the maintenance of wildlife
                habitat areas and the preservation of endangered species. The revised Barrier
                191and Policy also supports Virginia's coastal management goal of protection of
                public and private investment in the reduction or prevention of losses in
                property, tax base and public facilities caused by shorefront erosion and the,
                minimization of dangers to life and property from coastal flooding and storms.

                      77he proposed changes to the VCRMP wiU occur by updating the
                VCRMP document in Chapter 111, under Core Regulatory Program D.

                Proeram Change Meets Approval Criteria: Ile revised policy supersedes and
                improves upon the 1986 Coastal Primary Sand Dunes Guidelines: Barrier island
                Policy and Supplemental Guidelines, functioning as a further detailing of
                Virginia's coastal program.

                      The Commonwealth considers this a Routine Program Implementation
                and requests concurrence in the determination by OCRM.







                                 Appendix V1



                   ROUTINE PROGRAM IMPLEMENTATION
                 Virginia Coastal Resources Management Program





                   Restoration Orders, Civil Charges and Penalties
             Available to VMRC and Local Wetlands Boards, August 1993




                                                                                            93-4 Part B



               VIERGUNIA COASTAL RESOURCES MANAGEMIENT PROGRAM
                                                   RP1 93-1


                                                 August 9, 1993


            Prokram Change Routine Program Implementation
            Title: 'Restoration Orders, Civil Charges and Penalties Authorized by the 1990
            Virginia General Assembly in Chapter 811.
            De-;cril2tion The purpose of this program change is to incorporate the amendm'ents
            and!additions included in Chapter 811 Acts of the Assembly 1990, (See Attached 93-1
            Part A), which are contained in Title 28.2 of the Code of Virginia. Effective July 1,
            1990, these amendments concerning, the regulation of subaqueous lands, tidal wetlands
            and coastal primary sand dunes authorize the Circuit Court to impose civil penalties
            and the Commission or local wetlands board to issue restoration orders and assess
            civil chwges for violations of the applicible statutes.
                   Specifically, Sections 28.2-1213, 1320, and 1420 empower a Circuit Court judge
            to levy a civil penalty up to $25,000 for each day of a violation. These penalties, at
            court discretion, may be paid directly into the treasury of the locality in which the
            violation occurred for the purpose of abating environmental damage to, or the
            restoration of wetlands therein. If the violator is the locality itself, the fines may be
            paid directly into the state treasury. These amendments alsogrant the Commission
            and wetlands boards the authority to assess civil charges of up to $10,000 per
            violation. Civil charges are to be paid in lieu of any appropriate civil penalty and can
            be assessed only with the consent of the person in violation. Civil charges may be
            levied in addition to the cost of any ordered restoration.

                   If the Comn-iission or Wetlands Board deems it desirable for the affected site
            to be  returned to predevelopment conditions, Section 28.2-1316 (D) grants authority
            to issue restoration orders to recover lost resources or. to prevent further damage to
            resources. A restoration order results from The issuance of a sworn complaint along
            with the provision of 30 day notice to the affected party including the time, place and
            purpose of the restoration hearing. The order should require the submission of a
            complete restoration monitoring plan to ensure successful re-establishment of the
            affected resources, detailing the project and formalizing the performance standards by
            which the restored area %%rill be evaluated over the long term. The restoration order
            may also require a prepaid contract acceptable to the board be in effect for the
            purpose of carrying out the monitoring plan. Additionally, the board may require a         t
            reasonable bond or letter of credit in an amount and with surety and conditions
            satisfactory to securing compliance with the conditions set forth in the restoration
            order. Failure to complete the required restoration constitutes a separate violation.
            Effects of ProQram Change on Enforceable an      dZor Advisory Policies: These Chapter
            811 changes significantly strengthen the enforcement capacities of the (tidal) Wetlands
            Act, the Coastal Primary Sand Dunes Protection Act, and the Subaqueous Lands Act.









             In the past, violations of the aforementioned code.sections usually resulted in either
             voluntary restoration, or more frequently, submittal of an after-the-fact application for
             permit.   The intent of both the civil penalties and charges is to provide strong
             financial disincentives against violating the law while at the same time providing the
             impetus 10 resolve these issues at an administrative level.

                    The amendments support Virginia's overall coastal management goals of.
             protecting ecologically significant tidal marshes; minimizing damage to the productivity
             and diversity of the marine environment resulting form alteration of subaqueous lands
             and-aquatic vegetation; conserving the coastal sand dune system; and, minimizing
             danger to life and property from coastal flooding and storms.

                    The proposed changes to the VCRMP will occur by updating the VCRMP
             document in Chapter III, under Core Regulatory Program D.

             Proo--ram Chann Meets Approval Criteria: The additions and amendments.of
             Chapter  811, Acts of the 1990 Assembly improve upon the (tidal) Wetlands Act, the
             Coastal Primary Sand Dunes Protection Act, and the Subaqueous Lands Act,,
             functioning as further detailing of Virginia's Coastal Program.

                    'ne Commonwealth considers this a Routine Program Implementation and
             requests concurrence in this determination by OCRM.








                                Appendix V11



                   ROUTINE PROGRAM IMPLEMENTATION
                 Virginia Coastal Resources Management Program.




             Virginia Water Protection Permit and Regulations, August 1993





                                                                                                93--2 Part B


                      VIRGINIA COASTAL RESOURCES MANAGEMENT PROGRAM
                                                RPI NUMBER 93-2




             Prozram Change: Routine Program Implementation

             1i UI: Virginia Water Protection Permit and Regulations

             DescriRtion: The VCRMP contains a core regulatory program for point source water
             pollution control which includes the ï¿½ 401 certification program administered by the
             Virginia Water Control Board (refer to VCRMP RPI NUMBER TWO dated October
             31, 1988). The purpose of the present RPI is to incorporate, within this core program@
             the statutory and regulatory provisions of the Virginia Water Protection Permit (VWPP).
             The VWPP statute, Fuginia Code, Section 62.1-44.15:5., was enacted by the Virgimia
             General Assembly in 1989 and amended in 1990. Since the adoption of the. VWPP
             regulations by the Water Control Board in May of 1992, this permit has served as
             VirginWs ï¿½ 401 certification for federally permitted activities (particularly under f 404)
             and has improved the link between the authority of the Clean Water Act and Virginia's
             State Water Control Law. (A copy of the VWPP statute and regulations are included in
             Part A).

                   The VWPP` neither modifies nor expands the federal authority granted to the
             State Water Control Board through Section 401 of the Clean Water Act. The VWPP
             completes the circle of federal/state authorization and legal defensibility for ï¿½ 401
             program implementation in Virginia by providing state level sanction for its operation.
             The VWPP statute is the Commonwealth of Virginia's formal authorization to the State
             Water Control Board to make use of ï¿½ 401 authority. The State Water Control Board
             has interpreted and applied this authority through the VWPP regulations, which provide
             guidance, in certain areas, for how the ï¿½ 401/VWPP program should be implemented.

                   The VWPP program provides a state regulatory framework for implementation of
             federal ï¿½ 401 authority. It also emphasizes the interest of the General Assembly and the
             State Water Control Board that this authority be used to protect mbi =ium instrearn flow
             levels and to regulate activities which may damage nontidal wetlands. The importance of
             the implementation of ï¿½ 401 of the Clean Water Act to the protection of water quality
             and living resources in Virginia's coastal zone is presented and summarized in VCRMP
             RPI Number Two of 1988.

                   Final adoption of the VWPP regulations followed substantial public involvement
             in the regulatory process (a summary of the public involvement into this process is
             included in Part Q. These regulations supersede the State Water Control Board's
             Procedural Rule 3, relating to ï¿½ 401 certification. However, administration of the
             Virginia Water Protection Permit uses the same Joint Permit Application, and is based








             on the same water quality protection goals, as Virginia's ï¿½ 401 Program and win continue
             to meet the same program criteria.

                    Ile regulation of the placement of dredged or      fill material is the principal federal
             authority which leads to ï¿½ 401 review and certification by the Commonwealth of Virginia.
             As a too] for regulating fill activities, it is important to note that the implementation of ï¿½
             401,authority and the VWPP includes elements and requirements which address
             nonpoint source pollutant loadings as well as point source pollutant loadings into
             Virginla!s waters.

                   I The VWPP reinforces the ï¿½ 401 Program's connection to Virginia's State Water
             Control Law, including the concept of "beneficial uses" which is part of the foundation
             for Water resource management decisions in Virginia. This connection is implied, as a
             resu It of judicial interpretations of ï¿½ 401 authority, but is strengthened by the state
             framework of the VWPP. Paragraph B of the VWPP statute requires the-Water
             Control Board to determine "...that the proposed activity is consistent with the provisions
             of the Clean Water Act and will protect instream beneficial uses." T'he statute continues
             in defining the "...preservation of instrearn flows for purposes of the protection of
             navigation, maintenance of waste assimilation capacity, the protection of fish and ;vildlife
             resources and habitat, recreation, cultural, and aesthetic values..." as beneficial uses of
             Virginia's waters.

                    Tle VWPP program addresses the Virginia Water Control Board's state level
             management interest, as authorized federally under ï¿½ 401, over two important natural
             resources: adequate instream flow levels and riontidal wetlands. With respect to
             instream. flow levels, the VWPP statute specifically authorizes the Water Control Board
             to place conditions on any Virginia Water Protection Permit including, but not limited to
             "...the volume of water which may be withdrawn as a part of a permitted activity.".
             Section 2.4.1 of the VWPP regulations elaborate the types of instrearn flow conditions
             which may   be applied to include the "...rate at which water may be withdrawn at certain
             times and conditions that require water conservation and reductions in water use." In
             Section 1.1 of the VWPP regulations, "Surface water" is, specifically defined- to include
             "interstate wetlands", consistent with Federal definition, and in compliance with a
             directive of the U.S. Environmental Protection Agency regarding Water Quality
             Standards for Wetlands. This definition brings wetlands under the regulatory oversight
             of the VWPP Program.

                    Tle VWPP Program, including numerous provisions within the regulations,
             provides a state regulatory framework and permitting process to the protection and
             management of natural and coastal resources through the implementation of existing
             Federal ï¿½ 401 authority. Section 1.1 of the regulations provides consistent statewide
             definitions, to the regulated community, for the implementation of this authority. Part 11
             of the regulations establishes the procedures and requirements for permit application
             and issuance, including requirements for monitoring (Section 2.2.G), implementation of


                                                            2





            Best Management Practices (Section 2.4.6) and for mitigation of adverse *environmental
            impacts (Section 2.5.A-3). Part III of the. regulations sets forth the requirements for
            public involvement into the regulatory process. And Part IV addresses permit
            modification, revocation, reissuance, termination and denial.

            Effects-of Program Change on Enforceablr, andjor AdvisojY Policies: As a regulation of
            the $tate Water Control Board, the regulations (and any associated conditions or
            requirements) of the VWPP Program are enforceable under Articles 5, "Enforcement
            and Appeal Procedure" and 6, "Offenses and Penalties" of Virginia's State Water Control
            Law. (A copy of Articles 5 and 6 of the State Water Control Law is included as
            Attachment 1).

                   The VWPP Program strengthens the    enforceable ï¿½ 401 certification program
            within Virginia's core point source water pollution control program by adding a state
            regulatory framework and process to the existing Federal authority granted to states in ï¿½
            401 of the Clean Water Act. The primary reasons for developing the VWPP program
            include: providing a state regulatory framework for implementation of ï¿½ 401 authority
            and emphasizing the interest of the General Assembly and the State Water Control
            Board that this authority be used to manage and protect minimum instream flow levels
            and nontidal wetlands. However, as concluded by the Virginia Attorney General, the
            VWPP statute "...grants the State Board no additional power" beyond the combined
            authorities it already had under ï¿½ 401 of the Clean Water Act and Virginia's State Water
            Control Law (refer to Attorney General',s opinion, included as Attachment 2).
            Tberefore, this program change is a "...(f)urther detailing of..." Virginia's Coastal
            Resources Management Program and does not warrant full program amendment.

                   The VWPP Program is directly based on statutory and regulatory authority of the
            Commonwealth of Virginia and the federal Clean Water Act. Elements of this program
            are directly supported by an opinion of the Virginia Attorney General.

            Location of Proeram Change in VQRMP Document: Ile proposed changes to the
            VCRMP will be inserted in the VCRMP document in Chapter III as part 3 of core
            regulatory program F. The VWPP statute and regulations will replace SWCB Procedural
            Rule 3 in Appendix M-13. The "Part I - Overview" section of the VCRMP win be
            modified and expanded slightly to incorporate the addition of the VATP program and to
            discuss how the implementation of federal authority over the placement of dredged or
            fill material can be used to protect valuable coastal resources of the Commonwealth.

            Prop-ram Change Meets Approval Criteria: The proposed program change will
            strengthen Virginia's ability to support state decisions on natural and coastal resource
            management, particularly over nontidal wetlands and instrearn flow levels, as
            implemented through ï¿½ 401 authority of the Clean Water Act. Tle Commonwealth of
            Virginia considers this a routine program implementation change and requests
            concurrence in that determination by the Office of Ocean and Coastal Resource Management.


                                                       3







                                                                                        L SE
                                                                                             CES


                                                                                               2938 9
                  This principle of the VWPP Program was supported by an opinion of the Virginia
           Attorney General which states that permit conditions placed on ï¿½ 401 certifications by
           the Cornmonwealth of Virginia can be based on: "...'any other appropriate requirement
           of StAte Uv/ under the State Water Control Uw, consistent with its water quality
           management program. 33 U.S.CA ï¿½ 1341(d). That program includes water quality,
           maintenance of instream flows, maintenance of recreation uses, support of propagation
           and'growth of all aquatic life, and other uses identified by the State Water Control Law
           and itsAmplementing regulations.". (A copy of the Attorney General's opinion is
           included as Attachment C).
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