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Coastal Zone Information Center Commonwealth of Virginia Coastal Resources Management Program and Draft Environmental Impact Statement U.S. Department of Commerce National Oceanic and Atmospheric Administration Office of Ocean and Coastal Resource Management Volume 11 - Appendices VOLUME II APPENDICES TO THE VIRGINIA COASTAL RESOURCES MANAGEMENT PROGRAM Property Of CSC Library Prepared by: Commonwealth of Virginia's Council on the Environment 930 Ninth Street Richmond, Virginia 23219 U . S . DEPARTMENT OF COMMERCE NOA A COASTAL SERVICES CENTER 2234 SOUTH HOBSON AVENUE CHARLESTON SC 29405-2413 The preparation of this publication was financed through the Office of Ocean and Coastal Resource Management,NOAA. Cover art courtesy of John M. Barber. LIST OF APPENDIXES APPENDIX I-I List of Activities Which Contribute to the Management of Virginia's Coastal Resources APPENDIX II-1 Federal Holdings in Virginia's CRM Management Area by Planning Districts, and a Map of Virginia's Planning Districts APPENDIX III-1 Legal Authority to Manage Virginia's Proposed Coastal Resources Program APPENDIX 111-2 Laws of Virginia Relating to the Coastal Resources of the Commonwealth APPENDIX 111-3 Subaqueous Guidelines: Guidelines for the Permitting of Activities Which Encroach in, on or over the Subaqueous Lands of the Commonwealth of Virginia APPENDIX 111-4 Wetlands Guidelines APPENDIX 111-5 Coastal Primary Sand Dune Guidelines: Guidelines for the Permitting of Activities Which Encroach into Coastal Primary Sand Dunes APPENDIX 111-6 Regulations of the Commission of Game and inland Fisheries, Commonwealth of Virginia APPENDIX 111-7 Commonwealth of Virginia State Water Control Board Wetlands Policy APPENDIX 111-8 General Criteria for Controlling Erosion and Sediment from Land Disturbing Activities APPENDIX 111-9 Commonwealth of Virginia State Water Control Board Regulation No.6 National Pollutant Discharge Elimination System (NPDES) Permit Program APPENDIX III-10 Commonwealth of Virginia State Water Control Board Policy for the Protection of Water Quality in Virginia.'s Shellfish-Growing Waters APPENDIX III-11 Commonwealth of Virginia State Water Control Board, Water Quality Standards APPENDIX 111-12 Commonwealth of Virginia State Water Control Board Procedural Rule No.2 APPENDIX 111-13 Commonwealth of Virginia State Board of Health, Sewage Handling and Disposal Regulations APPENDIX 111-14 Commonwealth,of Virginia State Air Pollution Control Board Regulations for the Control,and Abatement of-Air Pollution APPENDIX V-1 Regulation XXIX of the Marine Resources Commission APPENDIX V-2 Areas of Significant Shoreline Erosion APPENDIX V-3 Policy Memorandum 3-78, Flood Plain Management Program for State Agencies APPENDIX I-I LIST OF ACTIVITIES WHICH CONTRIBUTE TO THE MANAGEMENT OF VIRGINIA'S COASTAL RESOURCES LIST OF ACTIVITIES WHICH CONTRIBUTE TO THE MANAGEMENT OF VIRGINIA'S COASTAL RESOURCES 1. Localities Local comprehensive and land use planning. Subdivision, site planning, zoning and other land use regulations including erosion and sediment controls. Protec- tion of wetlands and coastal primary sand dunes by local wetlands boards. 2. Water Control Board Regulation of pollutant dis- charges to State waters (National Pollutant Discharge Elimination System Permit program and State No-Discharge Certification Program). 3. Water Control Board '1401" Certification of Water Quality for federally permitted dredging and other projects. 4. Marine Resources Commission Protection of wetlands through review of local Wetlands Boards' decisions 9@nd administration of state wetlands act. 5. Marine Resources Commission Custodianship of state owned sub- aqueous bottomland. Subaqueous Permits. 6. Division of Soil and Administration of the State Water Conservation Erosion and Sediment Control Laws. 7. Department of Housing Administration of Uniform and Community Development Statewide Building Code. 8. Department of Health Approval of non-municipal wastewater disposal systems (septic systems, etc.) 9. Water Control Board, Municipal wastewater disposal Department of Health system approval. 10. Department of Health Regulation of solid waste disposal sites and operations. 11. Marine Resources Commissi Marina*constrac;tion pe rmiIts. ion 12. Department of Health Marina sanitation plan approval prior to MRC permit.. 13. Department of Health, Permits for residential and transient trailer parks. 14. Department of Conservation Regulation of surface mining and Historic Resources other than coal. 15. Department of Agriculture Pesticide regulatory program. and Consumer Services 16. Air.Pollution Control Board Permit approval to ensure; compliance with air quality -standards for direct and indirect pollution sources. 17. ...Marine Resources Commission Fisheries Management. 18. Department of Health Shellfish sanitation program which regulates taking of shellfish from condemned waters. 19. Marine Resources Commission Enforcement.of Health Department shellfish condemnation area regulations. 20. Department of Health, Inspection and regulation of Department of Agriculture seafood processing facilities. .and Consumer Services 21. Department of Conservation State parks acquisition, and Historic Resources development and management. 22. Department of Conservation Natural Areas System. 23. Commission of Game and Acquisition and development of Inland Fisheries public boat landings. 24. Commission of Game and Ownership and management of Inland Fisheries wildlife management areas And fishing lakes. 25. Virginia Outdoors Foundation, Scenic easemen't program. Division of Historic Landmarks 26. Division 'of Parks and Funding of pr.o.jects which acquire Recreation, and develop'lands for recreational and open space. 27. Department of Highways Recreational and industrial road and Transportation Access program. 28. Virginia Port Authori-ty Construction and operation of port facilities. 29. Water Control Board Grants for@'the-con'struction of municipal wastewater treatment facilities. 30. Water Control Board Investigation,of fish kills, oil spills and pollution complaints. 31. Water Contrul Board Emergency response for cleanup of oil and hazardous spills. 32. Department of Emergency Coordination of emergency weather, ..Services @warnings and the evacuation of high hazard areas. 33. Department of Health Environmental health complaint investigation and abatement. 34. Department of Heal'th Shellfish sanitation identification and abatement of pollution problems. 35. Marine Resources Commission Shellfish conservation and repletion. 36. Marine Resources Commission,,,Coordidated permitting of minor other-State'a'nd Federal shoreline alteration projects. agencies 37. Council on the Environment .Environmental impact review, evaluation, coordination and comment. 38. Council',,on.the Environment Project coordination liaison and optional multiple permit services. 39. Water Control Board Flood insurance program coordination. 40. Department of Economic Industrial promotion and.-site Development- location services@., 41. Department of Conservation Promotion of tourism. and Historic Resources 42. Department.of Conservation Promotion of-saltwater fishing. and Historic Resources 43. Marine Resources Commission Artificial reef development. 44. Virginia Institute of Fisher-ies.conservation,,. Marine Science development and replenishment. 45. Water Control Board Water quality and water resource planning. 46. Division of Parks and State Comprehensive Outdoor Recreation Recreation Plan development. 47. @Planning District Regional comprehensive and land..-. commissions use planning. 48. Air Pollution Control "State Implementation,Plan'@ for Board the achievemen-t of -the National Ambient Air Quality Standards. 49. Virginia Port Authority Port Development Plan. 50. Virginia Institute of Tidal Marsh Inventories. Marine Science .51. Virginia Institute of Shoreline Situation Reports. Marine Science Survey of shoreline conditions. 52. Board Floodplain studies. 53. Department of Emergency Assistance to coastal localities Services for storm hazard planning. 54. Department of Conservation Topographic, geologic and land use and Historic Resources mapping and mineral resources program. 55. Marine Resources Commission Surveys and records of public and private oyster rocks,,condemned areas. L4 56. Division of Soil and Natural resource inventories Water Conservation .(through districts). 57. Division of Soil and Soil survey and mapping. Water Conservation 58. Department of Health Soil and other,-studies to ascertain land suitability for septic and other "no discharge" sewage disposal systems. 59. Department of Agriculture Technical assistance in .Consumer Services management of animal waste and land application of sewage sludge. 60. Division of Historic Virginia Landmarks Register, Landmarks Survey and mapping of historic landmarks. 61. Water Control Board Development of "Best Management Practices Handbooks". 62. Department of Housing Local and regional planning and Community Development assistance. 63. Division of Parks and Assistance in local and regional Recreation recreation and open space planning. 64. Virginia Institute of Environmental assessment of Marine Science proposed projects in navigable waters or adjacent wetlands. 65. Virginia Institute of Technical assistance to state and Marine Science local officials and landowners on. shoreline and wetlands alternations. 66. Virginia Institute of Seafood and commercial and -Marine Science sportfishing studies. 67. Virginia Institute of Water pollution studies. Marine Science 68. Virginia Institute of Hydrographic and biological Marine Science studies of Chesapeake Bay, tributaries and contiguous shelf waters. 69. Virginia Institute of Marine Advisory Services. Marine Science 70. Virginia Institute of Educational, informational and Marine Science technical assistance programs. 71. Department of Agriculture Rural resources services program. and Consumer Services 72. Department of Conservation Forestry and non-forestry and,Historic Resources conservation and natural resource management (through districts). 73. Division of Soil and Agricultural and non-agricultural Water Conservation conservation and natural resource management (through districts). 74. Division of Soil and Educational, informational and Water Conservation technical assistance programs (through districts). 75. Public Beach Commission Review financial need of localities for beach protection and allocate state funds. . 76. Division of Soil and Shoreline erosion advisory service Water Conservation with staff in Tidewater area. 77. Virginia Institute of Provide assistance to Division of Marine Science Soil and Water Conservation and Public Beach.Commission for research, training and technical advice. 78. Marine Resources Commission Protection of coastal primary sand dunes by Marine Resources Commission in any area -not covered by a local wetlands board. 79. Chesapeake Bay Commission Analysis of Bay management issues and development of appropriate interstate policies and agreements. 80. Commission of Game and Protection and management of Inland Fisheries non-marine fauna and their habitats. 81. Commission of Game and Boating law enforcement Inland Fisheries (shared with Marine Resources Commission and Coast Guard). 82. Council on the Environment Coordinate state involvement in OCS activities. 83. Division of Consolidated Technical and analytical Laboratories. supportfor state agencies. 84. Department of Health Classification of shellfish waters. 85. Department of Health Heavy metals surveillance. 86. Department of Health Pesticide surveillance. 87. Department of Health Kepone surveillance. 88. Department of Health Radiological surveillance. 89. Department of Health Pollution investigations. 90. Department of Health Interagency memorandum of understand. 91. Department of Health Coal collier monitoring. 92. Department of Health Hydrograpbic surveys. 93. Department of Health Depuration of shellfish. 94. Department of Health Animal pollution surveillance. 95., Department of Highways Wetlands mitigation/ and Transportation enhancement. 96. Virginia State Fire Marine fire protection. Services Commission evaluation and planning. f APPENDIX II-1 FEDERAL HOLDINGS IN VIRGINIA'S CRM MANAGEMENT AREA BY PLANNING DISTRICTS AND A MAP OF VIRGINIA'S PLANNING DISTRICTS APPENDIX 11 PLANNING DISTRICT 8 INSTALLATION OWNED LESSER INT. LOCALITY AGENCY Marine Corps Air Station 310.26 Prince William Navy Air Force Technical Application Center 79.59 Fairfax Army Alexandria U.S.0, Site .41 Alexandria City Army Army Map Service Herndon Site 29.31 31.69 Fairfax Army Arlington Hall Station 86.57 Fairfax Army Arlington Us tional Cemetary 509.84 1.51 Arlington Army JZ Cameron Station 169.62 Alexandria City Army Fort Belvoir 9,015.75 206 .53 Fairfax Army Fort Meyer 355.71 Arlington Army Fort, Ritchie Tyson Corner Site 2.69- Fairfax Army Manassas Communication Facility Annex 2 50 1.80 Prince William Army Pentagon Building Site, Va 259.00 Arlington Army Quantico Microwave Site .60 Prince William Army Army Reserce Center Alexandria 7.76 Alexandria Army Woodbridge Housing Site 7.00 Prince William Army 73,846.20 344.12 APPENDIX 11 PLANNING DISTRICT 8 INSTALLMION OWNED LESSER INT. LOCALITY AGENCY Barracks K 2.40 Alexandria Fed'I. Mqy. Admin. Naval Reserve Center 1.24 Alexandria Navy Henderson Hall Hartne Headquarters 21.40 Arlington Navy Navy Department Service Center 17.10 Arlington Navy Quarters K 16.40 Arlington Navy Harine Corps Development and Education Center, Quantico 25,189.26 Prince William Navy APPENDIX II PLANNING DISTRICT 16 INSTALLATION OWNED IESSER INT, LOCALITY AGENCY Brooks, Virginia VORTAC 22.50 Stafford Federal Aviation Admin. Naval Surface Weapons Center, Dahlgren 4s318.66 King George Navy Stoney Point .02 King George Navy Fort A. P. Hill 77,027.82 111.39 Carolina Army Fredericksburg and Spotaylvanta 5,886.00 Fredericksburg National Military Park Spotiylvanta National Park Federal Minerals/Non-federal Land 303.17 Carolina BLM Federal Minerals/Non-faderal Land 96.00 Spotsylvanta BLM Marine Corps Development and Education Command, Quantico 320830.00 120.084.98 510.58 APPENDIX 11 PLANNING DISTRICT 15 INSTALLATION OWNED LESSER INT. LOCALITY AGENCY Byrd Field 137.00 Henrico Air Force Richmond National Battlefield Park 746.56 Henrico National Park Presquile 16329.0 Chesterfield Fish & Wildlife Harrison Lake 445.00 Charles City Fish & Wildlife Dancing Point Shoal Channel Rear Range Light .80 Charles City Coast Guard Naval and Marine Reserve Training Center, Navy Recruiting, Richmond 22.0 City of Richmond Navy James River Channel (Real Estate) 1,035.95 Chesterfield Army Improvements 489.68 Henrico USARC - DGSG, Richmond 7.42 Henrico Army Arlington Road Photographic Storage Facility 4.74 .29 Henrico Army Army Reserve Center, Richmond .6.0 Chesterfield Army Defense General Supply Center 639.06 6.69 Chesterfield Army Byrd Field National Guard Site 160.0 .93 Henrico Army Army Reserve Center Sherwood Ave., Richmond 4.28 Henrico Army Appomattox River Diversion Channel 118.89 .74 Chesterfield Army 39471.43 1,766.79 APPENDIX 11 PLANNING DISTRICT 17 INSTALLATION OWNED LESSER INT* LOCALITY AGENCY George Washington Birthplace National Monument 393.68 Westmoreland National Park Bluff Point 07 .34 Westmoreland Navy Colonial Beach 09 .20 Westmoreland Navy Colonial Beach Oil .03 Westmoreland Navy Colonial Beach 013 .06 Westmoreland Navy Paynes Point 015 .34 Westmoreland Navy Wakefield 017 .01 Westmoreland Navy Muses Beacb 021 .87 Westmoreland Navy Stafford Hall #27 Westmoreland Navy Nomint Cliffs #29 .01 Westmoreland Navy King Copsoco #37A .26 Westmoreland Navy Ragged Point #45 .41 Westmoreland 'Navy Green Vale Crack (Real Estate) .25 Lancaster Army Smith Point Light 5.00 Northumberland Coast Guard Windmill Point Light 5.00 Lancaster Coast Guard 404.22 2.29 APPENDIX 11 PLANNING DISTRICT 18 INSTALLATION OWNED LESSER INT. LOCALITY AGENCY Hilford Haven Station 8.40 Mathews Coast Guard Hoskins Creek Range Rear Light .03 Essex Coast Guard Sting Ray Point Light 5.00 Middlesex Coast Guard Pages Rock Light 5.00 Gloucester Coast Guard York River Channel Light #48 5.00 King & Queen Coast Guard Federal Hinerale/Non-federal Land 558.98 King & Queen BLM Federal 14inerals/Ron-federal Land 373.90 Prince William BLN 23.43 932.88 APPENDIX II PLANNING DISTRICT 19 INSTALLATION OWNED LESSER INT. LOCALITY AGENCY Petersburg National Battlefield 2,731.00 Prince George National Park Service Jordan Point Range Rear Light .10 Prince George Coast Guard Fort Lee 5,430.22 216.76 Prince George Army 8,161.32 216.76 APPENDIX 11 PLANNING DISTRICr 20 INSTALLATION OWNED LESSER INT, LOCALITY AGENCY Back Bay 4j589.0 Virginia Beach Fish & Wildlife Great Dismal Swamp 53,587.00 Chesapeake Fish & Wildlife Mackay Island 842,0 Virginia Beach Fish & Wildlife Hansemond 208.0 Suffolk Fish & Wildlife Atlantic Marine Center 1.3 Norfolk Dept. of Commerce Nansemond River Light 5.0 Suffolk Coast Guard Cape Henry Light Station 4.7 Norfolk Coast Guard Little Creek Station 1.5 Norfolk Coast Guard Craney Island Day Beacon 5.0 Norfolk Coast Guard Support Center Portsmouth 187.3 Portsmouth Coast Guard Virginia Beach Station 1.2 Virginia Beach Coast Guard Portsmouth Flag Quarters .3 Portsmouth Coast Guard Portsmouth Communication Station 222.5 Portsmouth Coast Guard Sewells Point Area 49528.45 Norfolk Navy West Norfolk Degaussing facility 14 Norfolk Navy Shore Patrol Headquarters 1.38 Norfolk Navy. APPENDIX11 PLANNING DISTRICT 20 !NSTALLATION OWNED LESSER INT., LOCALITY AGENCY FLTCOHBATDIRSYSTRACENLANT 11036.15 Virginia Beach Navy Nortwest Security Group Activity 3,186.22 Chesapeake Navy NAVCOHSTA Driver 605.23 Suffolk Navy Gallop Farm Housing Site 87.99 Virginia Beach Navy Norfolk District Engineer Site 20.05 Norfolk Army Black Water River and Chowan River Channel Improvements 60.11 Suffolk Army Intra-Coaatal Water - Norfolk 256.5 Virginia Beach Army to N.C. and Dismal Swamp Canal 2,804.40 34.52 Chesapeake Lynnhaven Inlet Bay (Real Estate) 61.56 Virginia Beach Army Craney Island Disposal Site 3,439.02 Portsmouth Army Tylers Beach (Real Estate) 4.85 Isle of Wight Army Fort Storey 1,433.65 17.40 Virginia Reach Army Army Rtserve Center (Suf folk) 9.95 .04 Suffolk Army Army Reserve Center Norfolk 1.72 Norfolk Army 90v831.51 178.62 APPENDIX 11 PLANNING DISTRICT 20 INSTALLATION OWNED LESSER INT* LOCALITY AGENCY Navy Housing'Area, Hewitt Farms 73.74 Norfolk Navy Naval Ship Engineering Center .05 Norfolk Navy Human Resource Hanagement Center .05 Norfolk Navy NAVYSUPCEN Craney Island Fuel Section 873.67 Portsmouth Navy Regional Hedical Center 114.37 Portsmouth Navy Norfolk Naval Shipyard 806.2 Portsmouth Navy Naval Ammunition Depot, St, Juliana 489.,47 Portsmouth Navy Naval Electronics Systems Engineering Center 2.4 Portsmouth Navy Antenna Test Facility 2.0 Virginia Beach Navy Naval Amphibious Baset Little Creek 20919.44 Norfolk Navy Amphibious Base Landing Beach Area, Camp Pendleton 390.19 Virginia Beach Navy Uplosive Ordnance Disposal Group 30.0 Virginia Beach Navy Virginia Reach Officers Club 1.72 Virginia Beach Navy Naval Air Station, Oceana 50455.05 Virginia Beach Navy Naval Auxiliary Landing Field 39306.65 Chesapeake Navy APPENDIX II PLANNING DISTRICT 21 INSTALLATION OWNED LESSER INT* LOCALITY AGENCY Naval Ordnance Lab Test Facility 1.28 Hampton Navy Camp Peary 10,298.99 Williamsburg, Navy York, James City Navy Reserve Center, Newport News 5.03 Newport News Navy Deep Creek (Real Estate) 8.5 Newport News Army Big Bethel Nilitary Reservation 460.74 46.53 York, Hampton Army Newport News Fort Eustis 8,382.06 .05 Newport News Army Fort Monroe 568*31, 5.50 Hampton Army Army Reserve Center, Hampton 20.18 Hampton Army Army Reserve Cen'ter, Newport News -5024 Newport News Army 429776.42 325.48 APPENDIX 11 PLANNING DISTRICT 21 INSTALLATION OWNED LESSER INT, LOCALITY AGENCY Langley Missile Site 86A Hampton Air Force Langley AFB 2,837.14 269.44 Hampton Air Force Langley Family Housing Annex 286.51 3.67 York Air Force Morrison Radio Beacon Annex .44 .29 Hampton Air Force Colonial National Historical Park 943.0 James City, York National Park Jamestown National Historic Site 1$477.0 James City National Park Plum Tree Island 3,276.0 York Fish & Wildlife Langley Reserach Center 474.0 Hampton NASA NASA Space Radiations Effects Lab 110.0 Newport News NASA Area East of Langley AF Runway 23.00 Hampton NASA Tue Marshes Light 9.00 ifork Coast Guard Yorktown Reserve Training Center 152.00 York Coast Guard Deepwater Shoal Light 5.00 Newport News Coast Guard Old Point Comfort Light Station 1.80 Hampton Coast Guard Newport News Middle Ground Light 5.00 Newport News Coast Guard Naval Weapons Station 10,990.99 James City, York Navy NAVSUPCEN Yorktown fuel Section 110.02 York Navy NAVSUPCEN Cheatham Annex 2,358.49 York Navy Copeland Park 6.0 he-opart News Navy Appendix It PLANNING DISTRICT 22 INSTALLATION OWNED LESSER INT. LOCALITY AGENCY Cape Charles Communication Facility 78.t Northampton Air force Cape Charles Facility Annex 23.0 Northampton Air Force Chincoteague Nat. Wildlife Refuge 9jO39.0 Accomack Fish & Wildlife Fisherman's Island t9025.0 Northampton Fish & Wildlife Wallops Island 3,000.0 Accomack Fish & Wildlife Wallops Main Base, Marsh Area 397.0 Accomack Fish & Wildlife Marine Fisheries Service 5.6 Accomack Fish & Wildlife Wallops Main Bass 19833.0 Accomack NASA Wallops Island 39084.0 Accomack NASA Wallops Mainland 108.0 Accomack NASA Marsh land (Wallops) 10140.0 Accomack NASA Cape Charles City Daybeacon 5.0 Northampton Coast Guard Cape Charles Family Housing 2.0 Northampton Coast Guard Cape Charles Station 7.2 Northampton Coast Guard cape Charles Lighthouse .8 Northampton Coast Guard Old Plantation.Vlats Light 5.0 Northampton Coast Guard Chincoteague Station 3.5 Apeamack Coast Guard Appendix 11 PLANNING DISTRICT 22 INSTALLATION OWNED LESSER INT. LOCALITY AGENCY Assateague Light .2 Accomack Coast Guard Parramore Beach Station 6.8 Accomack Coast Guard Tangier Sound Light 5.0 Accomack Coast Guard Cape Charles City Range Rear Light .13 Northampton Coast Guard Cape Charles VORTAC 31.31 Northampton FAA Harbor Defense Unit, Fisherman's IsId. 25.0 Northampton Navy Tangier North Site 23.98 Accomack Navy Tangier South Site 6.34 Accomack Navy Onancock Municipal Dock .2 Accomack. Navy Chincoteague Bay Harbor Improvement 4.48 Accomack Army Chincoteague Bay Harbon (Real Estate) 6.32 Accomack. Army Cape Charles City Harbor (Real Estate) 4.4 Accomack Army Porker Creek (Real Estate) .63 Accomack Army Quinby Creek Channel Improvement (Real Estate) 6.0 Accomack Army Star Lingo Creek (Real Estate) 9.36 Accomack Army Tangier Creek (Real Estate) 52.57- Accomack Army 199884.15 160.14 APPENDIX 11 FEDERAL LAND IN TIDEWATER BY SITE INSTALLATION OWNED LESSER INT. LOCALITY AGENCY Thimble Shoals Light 5.0 Chesapeake Bay Coast Guard Wolf Trap Light 5.0 Chesapeake Bay Coast Guard York Spit Light 5.0 Chesapeake Bay Coast Guard 15.0 PLANNING DISTRICTS Plateau s 9 Moukv "GUS 4JV9h WAU V So "W 1619"ft ska assimil a 00414AL SHIMANDOAd 6 a WAD OASOFAX : Waabig" VIRGUMA b AAWAHU 010 A - RAMAN ThOMAS AF1106460 UNIOAL W14GINIA W'St Fdam"I southalot 13 rifew,611 SO alchma" miaww" 6, 6 MA'" SO Men". unal"910% bilcK U po"ts el"SULA IS camia rLmuma to ./. SOL&N& )' -#66j%- acul"EASTER&I WISGSHIA 36 4L44.k4&4 % T* S 06WIMSULA 11 r We AccwAcm - "04111AMPION .4 ...... Al 4,4664 .0 . &1. '. f# so-fast L =,,go .6.640 0044@L ..6014 69WASPI 21 6-4-446414, 1 1 6 8 ,go - 6,6@ I- v - -,, 040656sig .+. so. @qllff f %-, 400 6,4 r 6 a a & a 0 6 LL ........4 .40-10. got `6644 I APPENDIX III-1 LEGAL AUTHORITY TO MANAGE VIRGINIA'S PROPOSED COASTAL RESOURCES PROGRAM Gerald L. Baliles COMMONWEALTH of VIRGINIA Donald c.J.Gehring Attorney General Deputy Attorney General Office of the Attomey General Criminal Law Enforcement Division William G. Broaddus Mellon T. Jacks Chief Deputy Attorney General Deputy Attorney General Human & Natural Resources Division Siza0eth 8. LaCY July 16, 1985 Deputy Attorney General Judicial Affairs Division Walter A. McFarlane Deputy Attorney General Mr. Keith J. Buttleman Finance & Transportation Division Administrator, Council on the Environment Karl E. Bren 903 Ninth Street Office Building Director of Administration Richmond, Virginia 23219 Re: Legal Authority to Manage Virginia's Proposed Coastal Resources Management Program Dear Keith: You have asked that I evaluate the enforceability of Virginia's coastal policies, and of the administrative procedures necessary to network existing coastal policy enforcement authori- ties to carry out the proposed Virginia Coastal Resources Manage- ment Program. This program designates certain uses of Virginia's coastal resources for coordinated management under authority contained in existing law. The regulations needed for the admin- istration of such statutes are already in place. The first part of this letter will identify the Program's enforceable coastal policies and the existing legal authority to enforce those policies. The second part will address the networking of these authorities to carry out the proposed Virginia Coastal Resources Management Program. This letter reflects may own views and does not constitute an official opinion of the Attorney General. The identified means of enforcing the State's coastal policies provide for effective State control. In each case enforcement by injunction is authorized. in each case the policy and usually the execution is done at the State levelp or subject to State review. In many cases there are criminal penalties for violation of the law, regulations, and permit or plan conditions. VIRGINIA'S ENFORCEABLE COASTAL POLICIES The uses subject to management identified by Virginia's Coastal Resources Management Program are commercial fishing; recreational fishing in freshwater tidal rivers; encroachments on subaqueous lands; encroachments on wetlands; encroachments on sand dunes; land disturbing activities needing erosion and sedi- ment control; actual or potential wastewater discharges; control Supreme Court Building - 101 North Eighth Street - Richmond, Virginia 23219 - 804 - 786 -2071 ar7 Mr. Keith J. Buttleman July 16, 1985 Page 2 of septic and other on-site domestic waste systems; and air pol- lution control. The enforceable policies for each use are dis- cussed below. 1. Commercial Fishing Title 28.1 of the Code of Virginia gives the Marine Re- sources Commission jurisdiction over all commercial fishing up to the fall line of all tidal rivers and streams. Section 28.1-23 sets the policy which is "to promote the general welfare of the seafood industry and to conserve and promote the seafood and marine resources of the State and it gives the Marine Re- sources Commission authority to make regulations including regu- lations as to the taking of seafood. That same section makes the violation of any such regulation a misdemeanor. See 5 7 below for the State Water Control Board's authority to protect Virginia's water quality standards for all beneficial uses which specifically include protection of all aquatic life. 2. Recreational Fishing in Tidal Freshwater Rivers Section 29-13 sets forth the State's policy of protecting and preserving all "fish in the inland waters ... which ... shall be construed to mean and to include ... the brackish and fresh- water streams, creeks, bays, including Back Bay, inlets and ponds in the tidewater counties," and it gives the Commission of Game and Inland Fisheries the power to enforce all laws to accomplish such purposes. Sections 29-125 and 29-127 provide authority to adopt regulations to control fishing; 5 29-129 provides that it shall be a misdemeanor to violate a regulation of the Game Com- mission; and S 29-51 requires fishing licenses. Section 29-129.1 provides the power "to prescribe [by regulation] the seasons and ... limits for fishing ... or otherwise taking fish...." Section 29-130 provides authority to close or shorten a season when .extreme weather threatens the birds, animals or fish. Section 29-14 directs the Commission to "prosecute all persons who vio- late" the fish and game laws. 3. Encroachment on Subaqueous Lands Section 62.1-1 states the Commonwealth's subaqueous lands policy: All the beds of the bays, rivers, creeks and the shores of the sea within the jurisdiction of this Commonwealth, and not conveyed by special grant or compact according to law, shall continue and remain the property of the Qz Mr. Keith J. Buttleman July 16, 1985 Page 3 Commonwealth of Virginia, and may be used as a common by all the people of the State for the purpose of fishing and fowling, and of taking and catching' oysters and other shellfish, subject to the provisions of Title 28.1, and any future laws that may be passed by the k7eneral Assembly. Section 62.1-3 makes it unlawful "for anyone to build, dump or. otherwise trespass upon or over or encroach upon or take-or use any materials from. the beds of the bays and oceans, rivers, streams, creeks, which are the property of the Commonwealth unless such act is pursuant to statutory authority or a permit from the Marine Resources Commission." It gives the Maxine' Resources Commission authority to issue permits for all reason- able uses of state-owned bottom lands which are not statutorily, permitted., Such permits shall be in writing and shall specify such conditions as the Commission deems appropriate. 'It directs. that the Commission be guided by 1 of Article XI of the Virginia Constitution and consider, among -other things, the effect of the proposed project upon other reasonable and permissible uses of State waters and state- owned lands, its effect upon the marine and fisheries resources of the Commonwealth, its effect upon the wetlands of the Commonwealth, .except when its effect upon said wetlands has been or will be determined under the provi- sions of Chapter.2.1 (5 62.1-13.1 et seq.) of this title and its effect upon aj'jr-acent or nearby properties, its anticipated public and private benefits, and, in addition thereto, the Commission shall give due consideration to standards of water quality as established by the State Water Control Board. No permit for a marina or boat yard for com- mercial use shall be granted unless the owner or other applicant prior to issue presents a plan for sewage treatment or disposal facili- ties which is approved by the State Department of Health. The Marine Resources Commission shall consult with any State agency, including the Virginia Institute of Marine Science, the Water Control Board, the State Department of Highways and Transportation and the State Corporation Commission whenever the decision Mr. Keith J. Buttleman July 16, 1985 Page 4 of the Marine Resources Commission on an application for a permit relates to or affects the.particular concerns or activities of other State agencies.... Section 62.1-3.1 gives the Marine Resources Commission the authority to go to court to seek an injunction against any act which -violates 3 62.1-3 and gives the court authority to direct the guilty person or the Marine Resources Commission, "at the cost of the person found to have acted unlawfully, to remove, tear down or otherwise take such steps as are necessary to pro- tect and preserve the subject property of the Commonwealth." 4. Encroachments on Wetlands Section 62.1-13.1 declares that Virginia's public policy is "to preserve the wetlands and to prevent their despoliation and destruction and to accommodate necessary economic development in a manner consistent with wetlands preservation." ' The Virginia Wetlands Act, 5 62.1-13.1 et seg., authorizes local governments to set up a wetlands board i-o -issue permits for wetlands develop- ment, S 62.1-13.6, and to adopt the wetlands zoning ordinance set forth in 5 62.1-13-5. Section 62.1-13.3 provides the following standards for the use and de.velopment of wetlands: (1) Wetlands of primary ecological significance shall not be altered so that the ecological systems.ih the wetlands are unreasonably dis- turbedl, (2) Development in Tidewater Virginia, to the maximum extent possible, shall be concentrated in wetlands-of lesser ecological significance,* in vegetated wetlands which have been irre- versibly disturbed before July 1, 1972, in nonvegetated wetlands as described herein which have been irreversibly disturbed prior to January 1, 1983, and in areas of Tidewater Virginia apart from the wetlands." Sections 62.1-13.5(4) and 62.1-13.9 prohibit the use or develop- ment of any wetland without a permit except for those uses speci- fied in S 62.1-13.5(3). . If a locality does not elect to set up a wetlands board, permits for wetlands development must be obtained from the marine Resources Commission. 5 62.1-13.9. Under SS 62.1-13.10 and 62.1-13.11(2) the Commissioner reviews all decisions of local Mr. Keith J. Buttleman July 16, 1985 Page 5 wetland s boards and notifies the Marine Resources Commission of any decision which in his opinion should be reviewed because he feels it does not follow the. policy, standards and guidelines. Section 62.1-13.13 empowers the Commission to modify, remand or reverse the decision of a local wetlands board. Sec'tion 62.1-13.16 gives the Commission "the power to prose- c'ute all violations of any order, rule or regulation of the commission or of a wetlands board" or of the Wetlands Act. Wet@ lands boards may prosecute violations of their orders or of the wetlands zoning ordinance. Section 62.1-13.1-8 makes the viola-, tion of "any order, rule or 'regulation of the Commission or of a wetlands board ... [or of] any provision of this chapter or of a wetlands zoning ordinance or any provision of a permit granted by a wetlands board or the Commission" a misdemeanor. tach day of violation following conviction is a separate offense. Section 62.*1-13.18:1 provides injunctive relief for any act unlawful'under the Wetlands Act. 5. Coastal Primary Sand Dunes Section 62.1-13.21 declares Virginia's public policy: [Iln order to reasonably protect the public interest, promote public health, safety, the general welfare of the Commonwealth, protect private and public property from erosion and flooding and protect wildli-fe and the natural environment, it is declared, to be the public policy of the Commonwealth whenever reasonably necessary to' preserve and protect coastal primary sand dunes and- to prevent their despoliation and destruction and whenever practical to accommodate necessary economic development in a manner consistent with the protection of such features., Section 62.1-13.23 provides that "[n,]o permanent alteration of or construction upon any coastal primary sand dune shall take place which would: (i) impair the natural functions of the dune as described herein; (ii) physically alter the contour of the dunes; (iii) destroy vegetation growing thereon as defined herein unless the wetlands board, or in its absence the Commission, determines that. there will be no significant adverse ecological impact, or that the granting of a permit hereunder @is clearly necessary and consistent with the public interest considering all material factors." Mr. Keith J. Buttleman July 16, 1985 Page 6 Section 62. 1-13-25 (4) provides that "[a]ny person who desires to use or alter any coastal primary sand dune ... shall first file an application with the wetlands board...." Section 62.1-13.27 provides that the Sand Dune Act shall be enforced as provided in 39 62.1-13.7 through 62.1-13.19 of the Wetlands Act. @ This gives the Marine Resources Commission the same power to modify, remand or reverse local sand dune decisions which it has with respect to wetlands decisions. 6. Land Disturbing Activities Needing Erosion and Sediment Control The Erosion and Sediment Control Law, S 21-89.1. et seq., provides control over erosion and sedimentation caused by development. Section 21-89.2 sets forth the Commonwealth's policy of conserving and protecting the land, water, air and other natural resources of the Commonwealth. Section 21-89.4 provides that the Virginia Soil and Water Conservation Commission "shall establish minimum standards, guidelines and criteria for the effective control of soil erosion, sediment deposition and nonagricultural runoff which must be met in any control pro- gram." Section 21-89.5-requires either the local Soil and Water Conservation District or the county, cifty or town, to adopt an erosion and sediment control program which is consistent with the state program and guidelines. Section 21-89.6 provides that except for State plans filed with the Commission and for agricul- tural operations, "no person may engage in any land-disturbing activity after the adoption of the conservation standards by the districts, counties, cities or towns until he has submitted to the district, county, city or town an erosion and sediment con- trol plan for such land-disturbing activity and such plan has been reviewed and approved by the plan-approving authority." Section 21-89.7 provides that "no agency authorized under any other law to issue grading, building, or other permits for activities involving land-disturbing activities may issue any such permits unless the applicant therefor submits with his application the approved erosion and sediment control plan or certification of such approved plan from the local plan-approving author,ity or from the Commission where appropriate, as well as certification that such plan will be followed." Provision is also made for requiring a reasonable performance bond. Section 21-89.8 provides for the inspection of land-dis- turbing activities to ensure compliance with the erosion and sediment control plan. It provides that where the plan is not being' complied with, the permittee shall be notified and if he fails to comply his permit is subject to revocation and he 2ka Mr. Keith J. Buttleman July 16, 1985 Page 7 becomes subject to the other penalties provided. To insure that land disturbing activities are, controlled in accordance with the State program, S 21-89.11 provides that the Soil and Water Con- servation Commission may sue in circuit court for an injunction against a violation or threatened violation under 5 21-89.6 (having an approved plan before disturbing land) or 5 21-89.8 (complying with the plan); that the Attorney General shall, upon request of the Soil and Water Conservation Commission, take appropriate legal action to enforce the provisions of the Erosion and Sediment Control Law; and that a violation of such sections is a misdemeanor, punishable by a fine up to $1,000 and/or 30 days imprisonment for each violation. 7. Actual or Potential Discharges of Waste Water Into State Waters Section 62.1-44.2 provides that ..It is the policy of the Commonwealth of Virginia ... to: (1) protect existing high quality State waters and restore all * other State waters to such condition of quality that any such waters will permit all reasonable public uses 'and will support the propagation and growth of all aquatic life, including game fish, which might reasonably be expected to inhabit them, (2) safeguard the clean waters of the State from pollution, (3) prevent any increase in pollution, (4) reduce existing pollution, and (5) promote water resource conservation, management and distribution, and encourage wa 'ter consumption reduction in order to provide for the health, safety, and welfare of the present and future citizens of the Commonwealth. Section 62.1-44.15 gives the State Water Control Board (the Water Board) authority "to. exercise general supervision and control over the quality. ... of all state waters .... Section 62.1-44.3 broadly defines "state waters" to mean "all water, on the surface and under the ground, wholly or partially within or bordering the State or within its jurisdiction ..... Section 62.1-44.15(3) (a) gives the Water Board authority to set "such standards of quality and policies for any state waters consistent with the general policy.set forth in this chapter ... and to take all appropriate steps to prevent quality alteration contrary to the public interest or to standards or policies thus estab- lished." 33 Mr. Keith J. Buttleman July 16, 1985 Page 8 Subsection 5 gives the Water Board authority "[t]o issue certificates for the discharge of sewage, industrial wastes and other wastes into or adjacent to or the alteration otherwise of the physical, chemical or biological properties of state waters under prescribed conditions and to revoke or amend such certifi- cates." Section 62.1-44.16(l) provides that "[a]ny, owner; who erects, constructs, opens, reopens, expands or employs new pro- cesses in or operates any establishment from which there is a potential or actual discharge of industrial wastes or other wastes to State waters shall first provide facilities approved by the Board for the treatment or control of such industrial wastes or other wastes." Pursuant to its authority the Water Board has adopted Regu- lation 6 which requires that all discharges to state waters must have a national pollution discharge elimination system (NPDES) permit. All other operations involving wastes which will not be discharged require a no-discharge certificate. Procedural Rule #2 sets forth the procedures to be followed in connection with securing a no-discharge certificate. Section 62.1-44..23 autho- rizes the Water Board to sue for an injunction against the viola- tion of "any rule, regulation, order, water quality standard, or ... provision of any certificate issued by the Board or any pro- visions of the Water Control Law." Section 62.1-44.31 makes it unlawful not to comply with a Water Board special order, or to discharge sewage, industrial wastes or other wastes in violation of a certificate. Section 62.1-44.32 provides civil and criminal penalties for the violation of the Water Control Law or of a special final order of the Board, or a final court order. Section 62.1-44.33 gives the Water Board power to adopt rules and regulations to control discharges from boats on all waters within the State, but such regulation must not be more restrictive than federal regulations unless needed to limit or avoid the closing of shellfish grounds. Violating such rules and regulations is a misdemeanor. Every law-enforcement officer of the State and its subdivisions has the authority to enforce such rules and regulations. Additional provisions control and pro- hibit the discharge of oil to state waters. Section 62.1-44.34:1 et seq. 8. Shoreline Sanitation Program Section 32.1-2 gives the Commonwealth's policy to "provide a comprehensive program of ... environmental health services ... thereby improving the quality of life in the Commonwealth," and 31 Mr. Keith J. Buttleman July 16, 1985 Page 9 directs the State Board of Health and the State Health Commis- s'ioner to provide a comprehensive program to protect the public health. Unless shoreline domestic waste systems are properly super- vised, they form a potentLal source of water pollution. Section 32.1-164 provides that the Board of Health shall have supervision and control over the safe and sanitary collection, conveyance, transportation, treatment and disposal of sewage, all sewerage systems and treatment works as they affect the public health and welfare.... B. The regulations of the Board shall govern the collection, conveyance, transportation, treatment and disposal of sewage. Such regulations shall be designed to protect the public health and promote the public welfare and may include, without limi- tation: 5. Standards specifying the minimum distance between sewerage systems or treatment works and: ... (c) Streams and rivers (d) Shellfish waters (e) Groundwaters (f) Areas and places of human habitation.... 8. A prohibition against the discharge of untreated sewage onto land or into waters of the Commonwealth 9. A requirement that such residences, buildings, structures and other places designed for human occupancy as the Board may prescribe be provided with a sewerage system or treatment works. Pursuant to its responsibilities, the Health Department administers a program to inspect the shoreline adjacent to shell- fish growing waters to detect failing septic systems. Mr. Keith J. Buttleman July 16, 1985 Page 10 Section 32. 1-165 provides that " [n] o county.. city,, town or employee thereof shall issue a permit for a building designed for human occupancy without the prior written authorization of the Commissioner or his agent." Section 32.1-246 provides that the Board of Health "is empowered and directed to adopt and promul- gate all necessary regulat;ions establishing minimum requirements for adequate sewerage facilities at marinas and other places where boats are moored according to the number of boat slips and persons such marinas and places are designed to accommodate." Section 32.1-12 provides that the Board of Health "may make, adopt, promulgate and enforce such regulations and provide for reasonable variances and.exemptions therefrom as may be necessary to carry out" the laws it administers. Section 32.1-26 autho- rizes the Board to issue orders to require any person to comply with the laws and regulations it administers. Section 32.1-27 makes failure to comply with such orders or any regulation a misdemeanor. It also provides for relief by injunction, mandamus or other appropriate remedy, and provides a civil penalty not to exceed $10,000 for each-violation. .9., Air Pollution Control. Section 10-17.18(b) . gives the Air Pollution Control Board "the, power to formulate, adopt and promulgate, amend and repeal rules and regulations abating, controlling and prohibiting air pollution throughout the State or in such areas of the State as shall be affected thereby..... Section 10-17.10 defines "air pollution".to mean "the presence in the outdoor atmosphere of one or more substances which are or may be harmful or injurious to human health, welfare or safety, to animal or plant life, or to property, or which unreasonably interfere with the enjoyment by the people of life or property." Section 10-17.18(d) gives the Board -the power. to "enter orders diminishing or abating the causes of-air pollution and orders for the purpose of enforcement of its rules and regulations... ; institute legal proceedings, including suits for injunctions for the enforcement of its orders, rules and regulations and the abatement and control of air pollution and fot the enforcement of penalties, all in accordance with this chapter." Section 10-17.23 provides that "any owner violating, failing, neglecting or refusing to obey any .rule, regulation or order of the Board may be compelled to obey the same and comply therewith by injunction, mandamus or other appropriate r.emedy." -It also provides for a civil penalty not to exceed $25,000 for each violation, with each day of violation constituting a separate offense. '3 co Mr. Keith J. Buttleman July 16, 1985 Page 11 Pursuant to its authorityl the State Air Pollution Control Board has adopted regulations to control air pollution which, among other things, meet the requirements of the Clean Air Act.. NETWORKING AND CONFLICT RESOLUTION Each of the uses subject to management can be controlled by the State agencies identified. Can administrative procedures be developed which will network these authorities and provide the conflict resolution mechanisms called for by 44 C.F.R. 923.43(c)? The discussion above demonstrates that existing authorities can be used to implement the full range of policies and management purposes as required by S 923.43(c)(1). Paragraph (2) of subsection (c) requires that the State must bind each party exercising statutory authority which is part of the manage- ment program to conform with the policies and management tech- niques. The policies are set forth in the statutes and regulations governing the various State agencies. What is needed is central coordination and a central statement of the Coastal Resources Management Program policies to provide a- unified Coastal Re- sources Management Program. This can best be done through an executive order. This would establish a substantial amount of uniformity since the Governor appoints all of the State agency heads concerned with coastal resources except the Executive Director of the Commission of Game and Inland Fisheries. Those he appoints serve at his pleasure. Section 2.1-4l.;2. The members of the Commission of Game and Inland Fisheries elect their own executive director, but the Governor still has effec- tive control because S 29-4 permits the Governor to remove a member from the Commission during his term. Section 2. 1-43 authorizes the Governor to remove the members of any state board or commission for failure to carry out a lawful directive, and -makes the Governor the sole judge of the sufficiency of the cause for removal. In order to see that the General Assembly's intent to use and protect Virginia's Coastal Resources is properly carried out, the Governor will promulgate the Coastal Resources Management Program pursuant to his responsibility under S 2.1-41.1 "for the formulation and administration of the policies of the executive branch, including resolution of policy and administrative con- flicts between and among agencies." Section 2.1-39.1 authorizes the Governor to delegate any of his powers to any cabinet secre- tary. The proposed Executive Order delegates authority to the Secretary of Commerce and Resources to resolve conflicts with and 3-7 Mr. Keith J. Buttleman July 16, 1985 Page 12 disputes concerning the Coastal Resources Management Program. All agencies will have a right of appeal to the Governor. I am attaching herewith a proposed form of Executive Order for your consideration. This order is to network the existing authorities and provide the conflict resolution mechanism called for. With kindest regards, I remain Sincerely, 4. Frederick S. Fisher Assistant Attorney General 63:53-c648 D R A F T July 16, 1985 EXECUTIVE ORDER NO. COASTAL RESOURCES MANAGEMENT PROGRAM The, General Assembly has enacted numerous statutes to pro- tect the Commonwealth's abundant and varied coastal resources. These statutes establish the Commonwealth's coastal resources management policy, but they lack coordination. Each statute has a specific focus and is enforced by a specific agency. Each. agency has its defined mission and goals, but too frequently they are unaware of other Commonwealth goals which are. the responsi- bility of different agencies. To insure that the Executive Branch carries out the Common- wealth's coastal resources management policy in full compliance with its letter. and spirit as adopted by the General Assembl , I y hereby establish the Virginia Coastal Resources Management Pro- gram: DIRECTIVE: By virtue of the authority.vested in my by the Constitution of Virginia and the provisions of 2.1-41.1 of the Code of Virginia, and subject to my continuing and ultimate authority and responsibility to act in such matters, I hereby direct all state agencies to so carry out their legally established duties as to be consistent with and supportive of Virginia's Coastal Resources Management Program. COASTAL RESOURCES POLICY: The Commonwealth's coastal resources policy is set forth in various sections of the Code of Virginia. The following agencies are primarily responsible for implementing the enforceable poli- cies of the program: Marine Resources Commission Commission of Game and Inland Fisheries Soil and Water Conservation Commission in the Department of Conservation and Historic Resources Water Control Board Department of Health Air Pollution Control Board Council on the Environment In addition, other agencies that may conduct activities which may affect coastal resources shall conduct such activities consistent with and supportive of Virginia's Coastal Resources Management Program. For purposes of this Program the Coastal Zone shall mean Tidewater Virginia as defined in S 62.1-13.2(d). The following goals set forth the policy framework within which Virginia's network of regulatory and other programs will operate when coastal resources are involved: Promotion of Economic Development 1. To promote the wise use of coastal resources for the economic benefit and employment of our citizens. 2. To protect and maintain existing uses of estuarine waters for shellfish propagation and marketing. 3. To encourage provision of commercial and industrial access to coastal waters where essential to desired economic activities. 4. To coordinate State planning processes for major pro- jects so as to facilitate consideration of alternative locations for such facilities within the context of long-term development patterns and implications. 5. To improve or maintain productive fisheries. 6. To encourage exploration and production of outer conti- nental shelf energy reserves. 7. To provide for the extraction of mineral resources in a manner consistent with proper environmental practices. Prevention of Environmental Pollution and Protection of Public Health 8. To maintain, protect and improve the quality of coastal waters suitable for the propagation of aquatic life and recreation involving body contact. 9. To reduce non-point pollution in tidal streams, estuaries, embayments and coastal waters caused by in- appropriate land uses and inadequate land management practices. 10. To reduce the potential for damage to coastal resources from toxic and other hazardous materials through effec- tive site selection and planning as well as improved containment and cleanup programs. 11. To prevent signi ficant deterioration of air quality. 12. To protect the public health from contaminated seafood. Prevention of Damage to Natural Resource Base 13. To protect ecologically significant tidal marshes from despoliation or destruction. 14. To minimize damage to the productivity and diversity of the marine environment resulting from alteration of subaqueous lands and aquatic vegetation. 15. To minimize damage to the productivity and diversity of the marine environment resulting from the disruption of finfish and shellfish population balances. 16. To reduce the adverse effects of sedimentation on pro- ductive marine systems. -41 Protection of Public and Private Investment 17. To conserve coastal sand dune systems. 18. To reduce or prevent losses of property, tax base and public facilities caused by shorefront erosion. 19. To minimize dangers to life and property from coastal flooding and storms. Promotion of Public Recreation Opportunities 20. To provide and increase public recreational access to coastal waters and shorefront lands. Promotion of Efficient Government Operation 21. To provide a shoreline permitting procedure which assures both adequate review and mitigation of probable impacts as well as timely response to applicants, admin- isterL,,d at the local level wherever possible. Provision of Technical Assistance and Information 22. To provide state and local governing officials and private citizens with technical advice necessary to make wise decisions regarding uses of and impacts on coastal resources. 23. To conduct continuing educational programs in Coastal Resources Management for local and state officials. 24. To maintain and improve' base data, maps and photo- imagery supportive of decision-makers' needs. All the agencies listed above, and all other state agencies, shall carry out their assigned duties in the manner most consis- tent with the Commonwealth's coastal resources goals and policies. ENFORCEMENT The staff of the Council on the Environment 'shall monitor all state actions which could affect coastal resources. Where conflicts with the Coastal Resources Management Program appear, Al the Council's staff will advise the Secretary of Commerce and Resources. All officials and agencies having knowledge of any known or proposed conflict between any part of the Coastal Re- sources Management Program and any action or proposed acti,on or failure to act of any state agency shall report such conflict or proposed conflict to the Secretary of Commerce .and Resources through the Council on the Environment. The Secretary of Com- merce and Resources shall resolve all conflicts between agency decisions and the provisions of the Coastal Resources Management Program by insuring that the agency in question carries out its statutory duties in the way which is most in harmony with the Coastal Resources Management Program. Any state agency may appeal any decision made by the Secretary of Commerce and Resources to the Governor. EFFECTIVE DATE This Executive Order is effective immediately and, will remain in full force and effect until amended or rescinded by further Executive Order. Given under my hand and the Seal of the Commonwealth of Virginia this day of 1985. GOVERNOR Attest: SECRETARY OF THE COMMONWEALTH APPENDIX 111-2 Laws of Virginia Relating to the Coastal Resources of the Commonwealth AUTHORITY OF DIRECTOR OF CONSERVATION AND HISTORIC RESOURCES TO PROTECT STATE PARKS 10-9. Other officers, agents and employees. - The Director may employ or authorize the employment of such other officers, agents and employees as may be needed, in the exercise of the rights, powers and duties by law conferred or Imposed upon him or upon the Board, or otherwise by law placed in the Department or any division thereof, and in order to effect a proper organization and carry on the work of the Department. The duties and titles of such officers. agents and employees may be fixed or authorized to be fixed by the Director, and they, shall receive such compensation as may be provided in accordance with law for the purpose. Proper bonds shall be required of all such officers, agents and employees who shall handle any of the funds which may come into the custody or control of the Department. (1926, p. 308; Michie Code. 1942, 585(39); R.P. 1948, � 10-9.) AIR POLLUTION CONTROL 10-17-9.1 Public policy. - It is declared to be the public policy of the Commonwealth, and the purpose of this chapter, to achieve and maintain such levels of air quality as will protect human health, welfare and safety and to the greatest degree practicable prevent injury to plant and animal life and property, will foster the comfort and conveniences of its people and their enjoyment of life and property, and will promote the economic and social development of the Commonwealth and facilitate enjoyment of its attractions. (1970, c. 469.) 10-17.10 Definitions - The following words, for the purposes of this chapter, shall have the following meanings: (a) "Board" means the State Air Pollution Control Board, sometimes hereinafter referred to as "Board" or "State Board." (b) "'Air pollution" means the presence in the outdoor atmosphere of one or more substances which are or may be harmful or injurious to human health, welfare or safety, to animal or plant life, or to property, or which unreasonably interfere with the enjoyment by the people of life or property. (c) "Owner" as used in this chapter shall have no connotation other than that customarily assigned to the term "person," but shall include bodies politic and corporate, associations, partnerships, personal representatives, trustees and committees, as well as individuals. (d) "Special order" means a special order issued under � 10-17.18:1. 10-17.17. Inspections, investigations, etc. - The Board shall make or cause to be made, such inspections, conduct such investigations and do such other things as are reasonably necessary to carry out the provisions of this chapter, within the limits of the appropriations, study grants, funds, or personnel which are, or become, available from any source for the Purposes of this chapter. 45 � 10-17.18. Further powers and duties of Board. - (a) The Board at all times shall have the power to control, and regulate its internal affairs; initiate and supervise research programs for the purpose of determining the causes, effects and hazards of air pollution; initiate and supervise statewide programs of air pollution control education; cooperate with and receive money from the federal government or any county or municipal government, and receive money from any other source, whether public or private; develop a comre- hensive program for the study, abatement and control of all sources of air pollution in the Commonwealth; advise, consult and cooperate with agencies, of the United States, and all agencies of the Commonwealth, political subdi- visions, private industries and any other affected groups in furtherance of the purposes of this chapter. (a1) The Board may adopt emissions standards controlling the release into the atmosphere of air pollutants from motor vehicle; provided that any such emissions standards shall have effect only in Arlington County, Fairfax County, Prince William County, city of Alexandria, city of Fairfax, city of Falls Church, city of Manassas, city of Manassas Park, city of Richmond, Henrico County, and Chesterfield County and shall have no force or effect in any other locality in Virginia. (b) The Board, after having made an intensive and comprehensive study of air pollution in the various areas of the Commonwealth, its causes, prevention, control, and abatement, shall have the power to formulate, adopt and promul- gate, amend and repeal rules . and regulations abating, controlling and prohi biting air pollution throughout the Commonwealth or in such areas of the Commonwealth as shall be affected thereby. No such rule or regulation and no such amendment or repeal shall be adopted, so as to prohibit the burning of leave from trees by persons on property where they reside if. the local governing body of the county, city or town in which such persons reside has enacted an otherwise valid ordinance regulating such burning in all or a. part of said county, city or town, nor shall any other rule or regulation and no such amendment shall be adopted except after public hearing to be held after thirty days' prior notice thereof by public advertisement of the date, time and place at such hearing, at which opportunity to be heard with respect thereto shall be given to the public. No such rule or regulation and no such amendment or repeal shall be or become effective until sixty days after the adoption or entry thereof as aforesaid. The rules and regulations shall not promote or encourage any substantial degradation of present air quality in basin or region which has an air quality superior to that stipulated in the rules and regu- lations. (c) After any rule or regulation has been adopted by the Board pursuant to subsection (b) of this section, it may in its discretion grant local variances; therefrom, if it finds after a thorough investigation and hearing. that local conditions warrant. In the event local variances are permitted, the Board shall issue an order to this effect, after a hearing is held, which order shall be subject to revocation or amendment at any time if the Board after hearing determines. such amendment or revocation is warranted. (d) After the Board shall have adopted the rules or regulations provided for in subsection (b) of this section, it shall have the power to: initiate and receive complaints as to air pollution; hold or cause to be held hearings and enter orders diminishing or abating the causes of air pollution and orders for the purpose of enforcement of it rules or regulations pursuant to 10-17.18:1; institute legal proceedings, including suits for injunctions for the enforcement of its orders, rules and regulations and the abatement and control of air pollu- tion and for the enforcement of penalties, all in accordance with this chapter. (e) The Board, in making rules and regulations, in approving variances, control programs, or permits, and the courts in granting injunctive relief under the provisions of this chapter, shall take into consideration such relevant facts and circumstances as may be presented bearing upon the reasonableness of the activity involved and the regulations proposed to control it, including: (1) The character and degree of injury to, or interference with safety, health or the reasonable use of property which is caused or threatened -to be caused,-. (2) The social and economic value of the activity involved; (3) The suitability or unsuitability of such activity to the area in which it is located; and; 46 (4) The practicability, both scientific and economic, of reducing or eliminating the discharge resulting from such activity. (f) In all cases the Board and in cases involving injunctive relief, the courts shall exercise a wide discretion in weighing the equities involved and the advantages and disadvantages to the residents of the area involved and to any lawful business, occupation or activity involved resulting from requiring com- pliance with the specific requirements of any order, rule or regulation. (g) (Repealed.) (h) The Board may designate one of its members, the executive director, or a staff assistant to conduct the hearings provided for in this chapter, provided that a record of the hearing proceedings shall be made and furnished to the Board for its use in arriving at its decision resulting from each hearing so conducted. (i) The Board shall submit an annual report to the Governor and General Assembly on or before October 1 of each year on matters relating to the state's air pollution control policies and on the status of the state's air quality. The annual report shall be distributed in accordance with the provisions of 2.1-487. 10-17.18:1. Issuance of special orders.- The Board shall have the power: (a) To issue special orders: (1) to owners who are permitting or causing air pollution as defined by subsection (b) of 10-17.10, to cease and desist from such pollution; (2) to owners who have failed to construct facilities in accordance with or have failed to comply with plans for the control of air pollution submitted by them to, and approved by the Board, to construct such facilities in accordance with or otherwise comply with, such approved plans; (3) to owners who have violated or failed to comply with the terms and provisions of any order or directive issued by the Board, to comply with such terms and provisions; (4) to owners who have contravened duly adopted and promulgated air quality standards and policies, to cease and desist from such contravention and to comply with such air quality standards and policies; and (5) to require any owner to comply with the provisions of this chapter and any decision of the Board. (b) Such special orders are to be issued only after a hearing with reasonable notice to the affected owners of the time, place and purpose thereof, and they shall become effective not less than five days after service as provided in subsection (c) below; provided, that if the Board finds that any such owner is unreasonably affecting the public health, safety or welfare, or the health of animal or plant life, or property, whether used for recreational, commercial, industrial, agricultural or other reasonable uses, after a reasonable attempt to give notice, it shall declare a state of emergency and it may issue without hearing an emergency special order directing the owner to cease such pollution immediately, and shall within ten days hold a hearing, after reasonable notice as to the time and place thereof to the owner, to affirm, modify, amend or cancel such emergency special order. If the Board finds that an owner who has been issued a special order or an emergency special order is not complying with the terms thereof, it may proceed in accordance with 10-17.23 or 10-17.29. (c) Any special order issued under the provisions of this section need not be filed with the Secretary of the Commonwealth, but the owner to whom such special order is directed shall be notified by certified mail, return receipt requested, sent to the last known address of such owner, or by personal delivery by an agent of the Board, and the time limits specified shall be counted from the date of receipt. (d) Nothing in this section or in 10-17.18 shall limit the Board's authority to proceed against such owner directly under 10-17.23 or 10-17.29 without the prior issuance of order, special or otherwise. 10-17.18:2. Decision of Board pursuant to hearing.- Any decision by the Board rendered pursuant to hearings under 10-17.18:1 shall be reduced to writing, and shall contain the explicit findings of fact and conclusions of law upon which the decision of the Board is based. Certified copies of such written decision shall be delivered to, or mailed by certified mail to the parties affected by it. Failure to comply with the provisions of this section shall render such decision invalid. 47 10-17.18:3. Penalties for noncompliance; judicial review. - A. The Board is authorized to promulgate regulations providing for the determination of a formula for the basis of the amount of any noncompliance penalty to be assessed by a court pursuant to subsection B hereof, in conformance with the requirements of Section 120 of the federal Clean Air Act, as amended, and any regulations promulgated thereunder. Any regulations promulgated pursuant to this section shall be in accordance with the provisions of the Administrative Process Act (� 9-6.14:1 et seq.). B. Upon a determination of the amount by the Board, the Board shall peti- tion the circuit court of the county or city wherein the owner subject to such non-compliance assessment resides, regularly or systematically conducts affairs or business activities, or where such owner's property affected by the administrative action is located for an order requiring payment of a noncompliance penalty in such sum as the court shall deem' appropriate. C. Any order issued by a court pursuant to this section may be enforced as a judgment of the court. All sums collected, less the costs of assessing and collecting same, shall be paid into the general fund of the State treasury by the Board pursuant to such court order. D. Any penalty assessed under this section shall be in addition to permits, fees, orders, payments, sanctions, or other requirements under this chapter, and shall in no way affect any civil or criminal enforcement proceedings brought under other provisions of this chapter. (1979, c. 65.) 10-17.19. Air pollution control districts. - (a) The Board may create, within any am of the State, local air pollution control districts comprising a city or county or a part or parts of each, or two or more cities or counties, or any combination or parts thereof. Such local districts may be established by the Board on its own motion or upon request of the governing body or bodies of the am Involved. (b) In each district there shall be a local air pollution control committee, the members of which shall, be appointed by the State Board from lists Of recommended nominees submitted by the respective governing, bodies of each locality, all or a. portion of which an included in the district. The number of members on each such committees shall be in the discretion of the State Board. When a district includes two or more localities or portions thereof, the State Board shall apportion the membership of the committee among- the localities, provided that each locality shall have at least one representative on such committee. The members shall not be compensated out of State funds, but may- be reimbursed for expenses out of State funds. Such localities may provide for the payment of compensation and reimbursement of expenses to the members, the portion of such payment to be borne by each locality to be prescribed by agreement, and may appropriate funds therefor. (c) The local committee is empowered to observe compliance with the regulations of the Board and report instances. of noncompliance to the Board, to conduct educational programs relating to air pollution and its effects, to assist the staff of the Board in its air monitoring programs, to initiate and make studies relating to air pollution and its effects, and to make recommendations to the Board. (d) The governing body of any locality, wholly or partially included within any such district, may appropriate funds for use by the local committee in air pollution control and studies. (1966, c. 497; 1969, Ex. Sess, c. 8; 1972, c. 781.) 10-17.20. State Advisory Committee on Air Pollution. - The Board is authorized to name technically qualified citizens to a State Advisor Committee on Air Pollution. (1966, c. 497.) 48 � 1017.21. Owners to furnish-plans, specifications and information. - Every owner which the Board has reason to believe is causing, or may be about to cause, an air pollution problem shall on request of the Board furnish such plans, specifications and information as may be required by the Board in the discharge of its duties under this chapter. Any information, except emission data, as to secret processes, formulae or methods of manufacture or production shall not be disclosed in public hearing and shall be kept confidential. If samples are taken for analysis, a duplicate of the analytical report shall be furnished promptly to the person from whom such sample is requested. (1966, c. 497; 1968, c. 311; 1075, c. 126) 10-17.22. Right of entry. - Whenever it is necessary for the purposes of this chapter, the Board or any member, agent or employee when duly authorized by the Board may at reasonable times enter any establishment or upon any property, public or private, for the purpose of obtaining information or conducting surveys or investigations. (1966, c. 497.) 10-17.23. Compelling compliance with rules, regulations or orders of Board; penalty for violations. - A. Any owner violating, failing, neglecting or refusing to obey any rule, regulation or order of the Board may- be compelled to obey the same an comply therewith by injunction, mandamus or other appropriate remedy. B. Without limiting the remedies which may be Obtained in subsection A, any owner violating or failing, neglecting or refusing to obey any rule, regu- lation or order of the Board or any provision of this chapter, shall be subject, in the discretion of the court, to a civil penalty not to exceed twenty-five thousand dollars far each violation. Each day of violation shall constitute a separate offense. In determining the amount of any civil penalty to be assessed Pursuant to this subsection, the court shall Consider, in addition to such other factors as it may deem appropriate, the size of such owner's business, the severity of the economic impact of the penalty on the business, and the seriousness of the violation. Such civil penalties may, in the discretion of the court assessing them, be directed to be paid into the treasury of the county, city or town in which the violation occurred, to be used for the purpose of abating environmental pollution therein in such manner as the court may, by order, direct, except that where the owner in violation is such county, city or town itself or its agent, the court shall direct such penalty to be paid into the State treasury. C. With the consent of an owner who has violated or failed, neglected or refused to obey any, rule, regulation or order of the Board or any provision of this chapter the Board may provide, in any order issued by the Board against the owner for the payment of civil charges in specific sums not to exceed the limit of subsection B. Such civil charges shall be instead of any appropriate civil penalty which could be imposed under subsection B. 10-17.29. Penalties; chapter not to affect right to relief or to maintain action. - (a) Any, owner violating any provision of this chapter or of the rules and regulations of the Board, or failing, neglecting, or refusing to comply with any order of the Board, lawfully issued as herein provided shall upon conviction be guilty of a misdemeanor and shall be liable to a fine of not more than One. thousand dollars for each violation within the discretion of the court. Each day of continued violation after conviction whall constitute a separate offense. (b) Nothing in this chapter shall be construed to abridge, limit, impair, create, enlarge or otherwise affect substantively or procedurally the right of any person to damages or other relief on account of injury to persons or property. 49 STATE ENvIRONMENTAL IMPACT REviEw PROCESS 10-17.107. Definitions. - For the purposes of this chapter, the following words shall have the meanings ascribed to them by this section: (a) "Environment" means the natural, scenic and historic attributes of the Commonwealth. (b) "Major State project" means the acquisition of land for any State facility construction, the construction of any facility or expansion of an existing facility which is hereafter undertaken by any State agency, board, commission, authority or any branch of the State government, including state-supported institutions of higher learning, which costs one hundred thousand dollars or more; provided, this term shall not apply to any highway or road construction or any part thereof. For the purposes of this chapter, authority shall not include any industrial development authority created pursuant to the provisions of chapter 33 of Title 15.1 of this Code or chapter 643, as amended, of the 1964 Acts of Assembly. Nor shall authority include any housing development or redevelopment authority established pursuant to State law. For purposes of this chapter, branch of the State government shall not be construed to include any county, city or town of the Commonwealth. (c) "Council" shall mean the Council on the Environment. 10-17.108. State agencies to submit environmental impact reports on major projects. -All State agencies, boards, authorities and commissions or any branch of the State government shall prepare and submit a report to the- Council on each major State project. Such reports shall include, but shall not be limited to, the following: (1) The environmental impact of the major State project; (2) Any adverse environmental effects which cannot be avoided if the major State project is undertaken; (3) Measures proposed to minimize the impact of the major State project; (4) Any alternatives to the proposed construction; and (5) Any irreversible environmental changes which would be involved in the major State project. For the purposes of subsection (4), the report shall contain all alternatives considered and the reasons why the alternatives were rejected. If a report does not set forth alternatives, it shall state why no alternatives were considered. (1973, c. 384; 1974, c. 270; 1977, c. 667.) The 1977 amendment rewrote the State project" for "proposed construction" in introductory paragraph and substituted "major subdivisions (1), (2), (3), and (5). � 10-17.109. Council to review report and make statement to Governor. - Within sixty days of the receipt of the environmental impact report by the Council, the Council shall review and make a statement to the Governor commenting on the environmental impact of each major State facility. The statement of the Council shall be available to the General Assembly and to the general public at the time of submission by the Council to the Governor. (1973, c. 384; 1974, c. 270; 1977, c. 667.) 50 POWER To AcQuIRE RECREATIONAL LANDS � 10-21 Lands of scenic beauty, recreational utility or historical interest. (1) Acquisition - The Director, with the approval of the Board, shall have full power and authority to acquire by gift or purchase or by the exercise of the power of eminent domain, areas, properties, lands or any estate or interest therein, of scenic beauty, recreational utility, historical interest, remarkable, phenomena or any other unusual features which in the judgment of the Board should be acquired preserved and maintained for the use, observation, education, health and pleasure of the people of Virginia; provided, that such power and authority of acquisition shall be within the limits of any appropriation which may be made by the General Assembly for the purchase of such properties, or of voluntary gifts or contributions placed at the disposal of the Department for such purposes; and the Director shall have no power to purchase or contract for the purchase of any property beyond the amount contained in. such appropriation or provided by such voluntary gifts or contributions. (2) Eminent domain proceedings.- The Director shall have the power to institute and prosecute any proceedings in the exercise of the power of eminent domain for the acquisition of such properties for public use in accordance with the laws relating to the exercise of such right and power, being chapters I and 4 (� 25-120 et seq.) of Title 25. (3) Report of Attorney General upon title.- Before any such property shall be purchased or acquired by condemnation, the Director may call upon the Attorney General to examine and render a report upon the title thereto, and it shall be the duty of the Attorney General to make such examination and report at the request of the Director. (4) Leasing property or placing in custody of others.-When any property is acquired by the Director under the provisions of this section without the aid of any appropriation made by the General Assembly and exclusively with the aid of gifts or contributions placed at the disposal of the Department for that purpose, he may place such property in the custody of the person, persons, or association making such gifts or contributions, or lease the property to such person, persons, or association, for a period not to exceed ninety-nine years, upon terms and conditions approved by the Governor, which, in the opinion of the Board, will best preserve and maintain such property or properties for the use, observation, education, health or pleasure of the people of Virginia. (1926, P. 312; 1928, p. 1155; Michie Code 1942, � 585(47); R.P. 1948, 10-16; 1950, p. 394.) THE OPEN SPACE LAND ACT � 10-151. Title of chapter. - This chapter shall be known and may be cited as the "Open-Space Land Act." (1966, c. 461.) The numbers of 10-151 to 10-158 were designation of interests and rights in real assigned by the Virginia, Code Commission, the property by public bodies to provide or preserve 1966 act having assigned no numbers. permanent open-space land is essential to the Legislative findings; purpose of chapter.- solution of these problem% the accomplishment Acts 1966, c. 461, 2. provides: "The General of these purposes, and the health and welfare of Assembly finds that the rapid growth and the citizens of the State; and that the exercise spread of urban development are creating of authority to acquire or designate interests critical problems of service and finance for the and rights in real property to provide or preserve State and local governments; that the present permanent open-space land and the expenditure and future rapid population growth in urban of public funds for these purposes would be for areas is creating severe problems of urban and a public purpose. suburban living; that the provision and "Pursuant to these findings, the General preservation of permanent open-Space land are Assembly states that the purposes of this act are necessary to help curb urban sprawl, to prevent to authorize and enable public bodies, including the spread of urban blight and deterioration. to as public bodies political Subdivisions. to encourage and assist more economic and preserve permanent open-space land in urban desirable urban development, to help provide or areas (as herein defined) in order to assist in the preserve necessary park, recreational, historic solution of the problems and the attainment of and scenic areas, and to conserve land and other the objectives stated in its findings." natural resources; that the acquisition or 10-152. Authority of public bodies to acquire or designate property for use. as open-space land. -To carry out the purposes of this chapter, any public body may (a); acquire by purchase. gift devise, bequest, grant or otherwise title to or any interests or rights of not less than "thirty years" duration in real property that will provide a means for the preservation or provision of open-space land and (b) designate any real property in which it has an interest of not less than thirty years' duration to be retained and used for the preservation and provision of open-space land. Any such interest may also be perpetual. The use of the real property for open-space land shall conform to the official comprehensive plan for the area in which the property is located. No property or interest therein shall be acquired by eminent domain by any public body for the purposes of this chapter, provided, however, this provision shall in no way limit the power of eminent domain as it was possessed by any public body prior to the passage of this chapter. (1966, c. 461; 1974, c. 259.) 10-153. Diversion of property from open-space land use; conveyance or lease of open-space land. - (a) No open-space land, the title to or interest of right in which has been acquired under this chapter and which has been designated as open-space land under the authority of this chapter, shall be converted or diverted from open-space land use unless the conversion or diversion is determined by the public body to be (1) essential to the orderly development and growth of the urban area, and (2) in accordance with the official comprehensive plan for the urban area in effect at the time of conversion or diversion. Other real property of at least equal fair market value and of as nearly as feasible equivalent usefulness and location for use as permanent open-space land shall be substituted within a reasonable period not exceeding one year for any real property converted or diverted from open-space land use, unless the public body should determine that such open-space land or its equivalent is no longer needed. The public body shall assure that the property substituted will be subject to the provisions of this chapter. (b) A public body may convey or lease any real property it has acquired and which has been designated for the purposes of this chapter. The conveyance or lease shall be subject to contractual arrangements that will preserve the property as open-space land, unless the property is to be converted or diverted from open-space land use in accordance with the provisions of subsection (a) of this section. (1966, c. 461.) 52 9 .10-154. Further powers of pt@bllc bodies. - (a) A public body shall have all the powers necessary or convenient to carry put the purposes and provisions of this 6apter, including the following powers in addition to others granted by this chapter. (1) To borrow funds, and make expenditures necessary to carry out the purposes of this chapter, (2) To advance or accept advances of public funds; (3) To apply for and accept and utilize grants and any other assistance from the federal government ana any other public or private sources, to give such security as may be required and to enter into and carry out contracts or agreements in connection with the assistance, and to include in anv contract for assistance from the federal government such conditions imposea pursuant to federal laws as the public body may deem reasonable and appropriate and which are not inconsistent with the purposes of this chapter; (4) To make and exedute contracts and other instruments necessary or convenient to the exercise of its powers under this chapter-, (5) In connection with tRe real property acquired and designated for the purposes of thLs chapter, to provide or to arrange or contract for the provision, construction, maintenance, operation. or repair by any person or agency, public or private, of services, privileges, works, streets, roads, public utflities, or other facilities or structures that may be necessary to the provision, Oreser7ation, Maintenance and management of the property as open-space IanCL-- (6) To insure or provide for the insurance of any real or personal property or operations of the public body against any risks or hazards, including the power to pay premiums on the insurance,- (7) To demolish or dispose of any structures or facilities which may be detrimental to or-inconsiscent with the use'of real property as open-space Jand; and (8) To exercise any or an of its functions and powers under this chapter jointly or cooperatively- with public bodies of one or more states, if they are so authorized bv State law, and with one or more public bodies of this State, and to enter into" agreements for joint or cooperative action. (B) For the purposes of this chapter, the State or a city, town, or county mar. (1) Appropriate funds; (2) Levy taxes and assessments; (3) Issue and sell its general obligation bonds in the manner and within the limitations prescribed by the applicable la-wa of the State: and (4) Exercise its powers under this chapter through a board or commission, or through such office or officers as its governinsr body by re2olution determines or as the Governor determines in the case of Is State. (1966, c. 46L) 1 10-153. Assessment of real property where interest less than fee is held by publIc body; exemption of interest of public body from twcadon. - Where an interest in real property less than the fee is held by a public body for the pwposes of this alLipter' assessments made on the property for taxation shall ieflect any ch= i the market value of the property which- may result from the interest heldry Mthe pliblic body. The value of & interest held by the public body shall be exempt from prope taxation to the same extent as other ProPerty owned by the public body.71966, c. 46L) � 10-156. Definitions - The following terms whenever used or referred to in this chapter shall have the following meanings unless a different meaning is clearly indicated by the context: (a) "Public body" means any State agency having present authority to a land for a public use, or any county or municipality, or any park authority or public recreational facilities authority. (b) "Urban area" means any area which is urban or urbanizing in character, including semiurban areas and surrounding areas which form an economic and socially related region, taking into consideration such factors as present and future population trends and patterns of urban growth, location of transportation facilities and systems, and distribution of industrial, commercial, residential, governmental, institutional, resort, and other activities. (c) "Open-space Land" means any land in an urban area which is provided of preserved for (1) park or recreational purposes, (2) conservation of land or other natural resources, (3) historic or scenic purposes, (4) assisting in the shaping of the character, direction and timing of community development or (5) wetlands as defined in � 62.1-13.2 of the Code- of Virginia. (1966, c. 461; 1974, c. 348.) 10-157. Chapter controlling over other laws; powers supplemental. - Insofar as the provisions of this chapter are inconsistent with the provisions of any other law, the provisions of this chapter shall be controlling. The powers conferred by this chapter shall be in addition and supplemental to the powers conferred by any other law. (1966, c. 461.) � 10-158. Acquisition of title subject to reservation of farming or timber rights; acquisition of easements, etc.; property to be made available for farming and timber uses. - Any public body is, hereby expressly authorized, without limiting the authority of the public body to acquire unrestricted fee simple title to tracts, to acquire, by gift or purchase, (1) fee simple title to such land subject to reservation of rights to use, such lands for farming or to reservation of timber rights thereon, or (2) easements in gross or such other interests in real estate of not less than thirty years' duration as are designed to maintain the character of such land as open-space land. Any such interest may also be perpetual. Whenever practicable in the judgment of such public body, real property acquired pursuant to this chapter shall be made available for agricultural and timbering uses which are compatible with the purposes of this chapter. (1966, c. 461; 1974, c. 259.) ENVIRONMENTAL QUALITY ACT � 10-177. Short title; definitions.- This chapter may be cited as the "Virginia Environmental Quality Act". For the purposes of this chapter, the following words are defined: (1) "Person" means any individual or group; any partnership, corporation, association. organization or other legal entity, including any public body. (2) "Public body" means any municipal corporation, county, or other political subdivision of the State; or any agency, department, or instrumentality of the State or of any political subdivision of the State., (1972, c. 774.) The numbers of If 10-177 to 10-186 were provided that it should expire at midnight on assigned by the Virginia Code Commission, the that date unless earlier reenacted. was itself numbers in the 1972 act having been 10-176 to repealed by Acts 1974. c. 96, effective March 22, 10-185. 1974, and therefore never went into effect. Code Commission note. - This chapter was Law Review. - For note on relations between repealed by Acts 1973, c. 471. The 1973 act. states and Environmental Protection Agency, which was made effective July 1, 1974, and see 33 Wash. & Lee L. Rev. 590 (1976). 10-178. Declaration of policy. - In furtherance of Article XI of the Constitution Of Virginia and in recognition of the vital need of citizens of the Commonwealth to live in a healthful and pleasant environment, it is hereby declared to be the policy of the Commonwealth to promote the wise use of its air, water, land and other natural resources and to protect them from pollution, impairment or destruction so as to improve the quality of its environment. It shall be the continuing policy of the government of the Commonwealth - in cooperation with the federal government, other state governments, local governments, other public and private organizations, and individuals. --- to initiate, implement, improve, and coordinate environmental plans, prgrams, and functions of the State in order to promote the general welfare of the people of the Commonwealth and fulfill the State's responsibility as trustee of the environment for the present and future generations. (1972, c. 774.) 10-179. Implementation of policy. -The General Assembly authorizes and directs that, to the fullest extent practicable, the laws, regulations, and policies of the Commonwealth shall be interpreted and administered in accordance with the policies set forth in this chapter, and that the efforts of all State officers and employees shall be coordinated so as to effectuate said policy. (1972, c. 774.) 10-180. Council established. - To implement the policy set forth in this chapter, there is hereby established in the office of the Governor a Council on the Environment. (1972, c. 774.) � 10-181. Membership: chairman. - The Council on the Environment shall be composed of ten members and an administrator who shall all be citizens of the State. Three shall be appointed by the Governor on the basis of merit without regard to political affiliation, subject to confirmation by the General Assembly, but they shall be permitted to serve in the interim between appointment and confirmation or rejection. They shall hold office at the pleasure of the Governor until their successors take office. The administrator of the Council on the Environment shall serve as chairman. The chairmen of the State Water Control Board, the Board of Conservation and Economic Development, the Game and Inland Fisheries Commission, the Marine Resources Commission, the Soil and Water Conservation Commission and the State Air Pollution Control Board and the Commissioner of Health shall also be members of the Council. (1972, c. 774; 1974, c. 354; 1975, c. 263.) 55 10-182 Compensation of members. - The members of the Council shall receive their necessary expenses incurred in the discharge of functions as members of the Council. (1972, c. 774.) � 10-183. Meetings. - The Council shall meet at least once every three months, and ocher meetings may be held at any time or place determined by the Council or upon call of the administrator. All members shall be notified of the time and place of any meeting at least five days in advance. Five members shall constitute a quorum for the transaction of business. The Council shall keep a complete and accurate record of the proceedings at all its meetings, a copy of whiich shall be kept on file in the office of tie Council and open to public inspection. (1972, c. 774; 1974, c. 354.) 10-184: Repealed by Acts 1974, c. 354. Crow reference. - For present provisions as to administrator and personnel, see 10-184.1. 10-184.1. Appointment, etc., powers and duties of administrator. - The administrator of the Council on the Environment shall be appointed by the Governor, subject to confirmation by the General Assembly, for a term coincident to that of the appointing Governor. Any vacancies occurring in the office of administrator shall be filled by the Governor subject to confirmation by the General Assembly. The administrator of the Council on the Environment shall devote full time to the duties and responsibilities of his office, which shall include the following: (1) Developing uniform management and administrative systems which will assure coherent environmental policies and which will facilitate provision of environmental services to the public; (2) Taking necessary steps to promote the efficiency of management and coordinate administrative practices within and among the boards and agencies of the Council including the effective use of personnel resources among the agencies; (3) [Repealed.] (4) Coodinating the preparation of a joint environmental agencies' budget, containing subbudgets, each of which shall be approved by the appropriate board or agency and thereafter submitted to the administrator who shall convey without change said budget or budgets to the Secretary and Governor for approval; (5) Preparing and submitting annually, with the cooperation of the boards and agencies, an environmental and management report to the Governor and the General Assembly in which he shall assess in detail:- (a) The Council's success in achieving the purposes of the enabling legislation. (b) The reasons for any failure to achieve those purposes. (c) Any changes in legislation that the Council believes necessary to better achieve those purposes. (d) Management actions taken in support of the enabling legslation. (e) New environmental programs to be considered for legislative action. (f) New environmentally related programs which should be considered by the General Assembly for transfer to another board or agency or to the jurisdiction of the administrator. Such reports may be prepared in conjunction with the reports of the Council on the Environment as directed by 10-186. The administrator shall employ such personnel and procure the necessary professional services to perform the duties of the office. (1974, c. 354; 1976, c. 466.) 56 6 10-184.2. 51ultiple permit process; powers and duties of administrator, rales and regulations. - A. If a project requires a State permit or certificate from more than one State environmental regulatory agency, the applicant may make a single unified application to the administrator on a form prescribed by the administrator. B. Notwithstanding any other provision of law, the administrator shall receive and review the a li , twen"ne days and at his discretion may pp cation withm' Consolidate, coordinate and expedite the permit review process including but not limited to the elimination of redinidant or overlapping procedures; consolidation of any formal hearings that may be re d in - and coordination quire into one near g, of the Rrocessing of permits where both federal and State requirements are involved. C. For the purposes of this section the State environmental regulatory agencies shall include: the State Air Pollution Control Board-, the Board of Conservation and Economic Development; the State Health Department; the Marine Resources Commissi6n; the Soil and Water Conservation Commission and the State Water Control Board. D. Notwithstanding any other provision of law, the acceptance of an fication for multFe permits by the administrator, after the administrator ascertained that the application is complete and otherwise acceptable, shall commence the processing period as to each board or commission involved. The hearing for a multiple State permit shall be held within --ixtT days after the application to the administrator is complete; and each board or commission diiision on a multiple permit shall be made within ninety days after the a li on to the administrator is complete. In exceptional circumstances or in l,p C; cad t of new information presented. during a public hearing, a board or commission may extend the time period for consideration of the multiple pe =.it by a board or commission; provided that the extension shall be for a period not to exceed thirty days.' E. Judgment of the merits of each germit that is required shall. remain the resp.qns ibilit:7 of each respective board or commission. Each board or commission shall make every effort to coordinate its per7hit review. process with the administmtor. F. The Council on Environment shall have the authority to issue necessary rules and regulations to carry out the provisions of this section. (1976, c. 466.) Law, Review. - For survey on Virginia adminis*Wlve law for the year 1975-1976,3n 62 Va. T. Rev. 135T (1 V 6). 9 10-185. Further responsibility and authority of administrator. - It shall be the further responsibilit7 of the administrator of the Council, in accordance with provisions and limitations as may be elsewhere set forth in law, to carry out the policy of this chapter. In so doing. the administrator is authorized to: (1) Coordinate all State communications with federal agencies involving State concern ha-m , relation to environmental problems, and to call meetings as needed of he&& of State agencies and other personnel to review policies and programs of mutual concern relating to environmental problems; (2) Make rules and regulations for his own staff organization; (3) Sao and be sued in the Councirs official name; (4) Enter into and perform contracts; and acquire in any lawful manner personal or real tgroperty or any interest therein deemed necessary in the performance of e Council's functions-, and to maintain and improve such property or dispose of it when necessIrr, (55) Accept and administer services, ;if4 and other funds donated to the Council to carry out the policy of this chapter; (6) Engage and pay for the services of professional consultants; M Initiate and supervise research programs. (8), (9) (Repealed.] (1972, c. 77 4; 1974, c. 354; 1976, c 466.) 5,7 10-186. Duties. - It shall be the duty of the Council to implement the policy of this chapter. Specifically, the Council shall, among other things: (1) After holding public hearings annually throughout the State, issue a report on the activities of the Council and the state of the environment The report shall include, among other things: (a) An assessment, updated. annually, of the environmental choice* and their trends and implications projected over a twenty-year period substantially affecting the Commonwealth that are made by any person; (b) Recommendations to the Governor, updated annually, concerning the policies necessary to exert the influence. of the Commonwealth to the fullest extent practicable to change the environmental choices identified in subsection (1) (a) above so as to insure, over the next succeeding twenty-year period, the wise use and wise protection of the State's natural resources to the end that a balance is achieved and maintained between environmental protection and economic well-being of the Commonwealth, such recommendations being made by coordinating to the fullest extent practicable with interested State agencies; aid (a) An assessment of the effects of State policy in insuring that the objectives in subsection (1) (b) above are being and will be met. Each report shall be published, issued to the Governor, and made available for purchase by citizens. (2) Advise the Governor and General Assembly, and, on request, assist other officers, employees, and public bodies of the State, on matters relating to environmental quality; and the effectiveness of actions and programs designed to enhance that quality; and recommend to the officers and public bodies of the State measures it believes are necessary to enhance the quality of the State's environment; (3) Conduct public hearings throughout the State to give citizens the opportunity to contribute ideas regarding environmental quality; and (4) Initiate and supervise programs designed to educate citizens on ecology, pollution and its control, technology and its relationship to environmental problems and their solution, population and its relation to environmental problems, and other matters concerning environmental quality. (1972, c. 774.) 58 PUBLIC BEACH CONSERVATION AND DEVELOPMENT ACT 10-215. Findings of the General Assembly. - The General Assembly of Virginia finds that: 1. The Constitution of Virginia sets forth that it shall be the policy of the Commonwealth to protect its atmosphere, lands and waters from pollution, impairment or destruction, for the benefit, enjoyment, and general welfare of the people of the, Commonwealth, 2. The shores of the Commonwealth of Virginia constitute a resource of inestimable value to all persons of the State: 3. Public beaches provide important recreational and aesthetic opportunities to, the general public as well as contribute significantly to the economic welfare of the Commonwealth and its localities; 4. Public beaches are a rare and valuable resource and should be conserved 5. Public beaches are eroding, thereby diminishing important recreational, aesthetic and economic benefits associated with such areas; 6. Public awareness of *the values of shore areas, the causes and effects of erosion and techniques to control erosion is low: and 7. The level of research and development activities in the area of new erosion control methods and new sources of sand for public beach conservation and, development is inadequate to satisfactorily address the magnitude of the prob- lem. (1080 c. 428.) 10.216. Declaration of policy. - In consideration of the findings in 10-215, the General Assembly hereby declares that it is the policy of the Commonwealth: 1. To conserve, protect, improve, maintain and develop public beaches for the benefit, use and enjoyment of the citizens of the Commonwealth; 2. To promote understanding of the value of public beaches and the causes and effects of erosion; 3. To make available information concerning erosion of public beaches; 4. To encourage research and development of new erosion control techniques and new sources of sand for public beach. enhancement; 5. To provide a program by which localities can apply for funding of conserva- tion, protection, improvement, maintenance and development of public beaches; and 6. To address erosion on a reach basis where possible. (1980, c. 428; 1984, c. 235.) 59 � 10-217. Definitions. - For the' purposes of this chapter the following words shall have the meanings ascribed to them: "Agency of this State" includes the government of this Commonwealth and any subdivision, agency, or instrumentality, corporate or otherwise, of the government of this Commonwealth. "Commission" means the Public Beach Conservation and Development Com- mission created in � 10-218. "Director" means the Director of the Department of Conservation and Historic Resources. "Erosion" means the process of destruction by the action of wind, water, or' ice of the land bordering the tidal waters of the Commonwealth of Virginia, "Government" or "governmental" includes the government of this Common- wealth, the government of the United States, and any subdivision, agency, or instrumentality, corporate or otherwise, of either of them. "Locality" means a city, county or town. "Program" means the provisions of the Public Beach Conservation and Development Act. "Public beach" means a sandy beach located on a tidal shoreline suitable for bathing in a city, county or town and open to indefinite public use. "Reach" means a shoreline segment wherein there is mutual interaction of the forces of erosion, sediment transport and accretion. "State" or "Commonwealth " means the Commonwealth of Virginia. "united States" or "agencies of the United States" includes the United States of America, the United States Department of Agriculture, and any other agency or instrumentality, corporate or otherwise, of the United States of America. "Develop" or "development" means the replenishment and restoration of existing public beaches. (1980, c. 428; 1984, c. 750.) 10-218. (Effective January 1, 1985) Commission created, duties, meetings; compensation: allocation of funds. - A. There is hereby crented a Commission on Conservation and Development of Public Beaches. The Com- mission shall: (i) review the financial needs of localities for implementation of the Public Beach Conservation and Development Ad; (ii) determine successful applicants and the equitable allocation of funds among participating localities; and (iii) oversee local implementation of approved projects. B. The Commission shall be composed of eight members as follows: One member ex officio shall be selected from each Department or Commission by the Directors of the Virginia Marine Resources Commission and the Depart- ment of Conservation and Historic Resources and six members-at-large shall be appointed by the Governor subject to confirmation by the General Assembly. Members-at-large shall be appointed for terms of four years. Members-at-large are ineligible for reappointment after two terms until four years have elapsed since their last appointment. All terms shall begin July 1, and appointments to fill vacancies occuring shall be for the unexpired term. A chairman shall be selected from among the members-at-large. C. The Commission shall meet once prior to the beginning of each fiscal year to receive applications for grants from localities and to determine the alloca- tion of such grants, and as often throughout the year as necessary. D. Commission members shall be compensated at the rate and manner pro- vided by � 14.1-18 of this Code. E. The Department of Conservation and Historic Resources shall provide staff assistance from time to time if required and shall maintain such financial records of activities as are necessary. (1980, c. 428: 1984, cc. 739, 750.) 10-219. Relationship of Commission and Director; regulations.- The Commission shall be responsible for the allocation of the grant fund estab- lished in � 10-220. The Commission shall submit the names of recipient localities to the Director of the Department of Conservation and Historic Resources and the Director shall disburse funds to designated localities. The Commission may promulgate regulations governing application procedures, allocation guideiines or implementation standards. (1980, c. 428; 1984. c. 750.) 60 10-220. Establishment of fund. unexpended money. - A. A fund shall be established to provide grants to local governments covering up to one-half of the costs of erosion abatement measures designed to conserve, protect, improve, maintain and develop public beaches. No grants to any locality shall exceed thirty Percent of the money appropriated to such fund for the biennium. Money appropriated from such fund shall be matched equally by local funds. Federal funds shall not be used by localities to match money given from such fund. Localities may, however, combine state and local funds to match equally federal funds for purposes of securing federal grants. B. Money which remains unexpended from such fund at the end of the biennium for which it was appropriated shall be retained and shall become at Special Emergency Assistance Fund to be used at the discretion of the Gover- nor for the emergency conservation and development of public beaches dam- aged or destroyed by an unusually severe storm, hurricane or other natural disaster. (1980, c. 428; 1982, c. 329.) The 1982 amendment substituted "percent" for "per centum" and "the biennium" for "that year" in the second sentence of subsection A. 10-221. Guidelines for allocation of grant funds. - The Commission shall consider the following when selecting localities for program participation and in determining grant allocations: 1. Present and future beach ownership;, 2. Erosion caused by public navigational works; 3. Intensity of use; 4. Availability of public beaches in the vicinity; 5. Evidence of a locality's ability and willingness to develop a long term capacity to combat erosion; 6. Rate of erosion; 6a. Actions of a locality which lead to, or may result in, the erosion of beaches; and 7. Such other matters as the Commission shall deem sufficient for con- sideration. (1980, c. 428; 1984, c. 235.) 10.222. Local erosion advisory commissions. - In order to qualify for the program, localities shall establish local erosion advisory commissions which shall determine local erosion problems; review the locality's erosion control projects, suggest strategies for the future, and assess program imple- mentation. (1980, c. 428; 1984, c. 235.) UNDERWATER HISTORIC PROPERTY 10-262. (Effective January 1, 1985)Underwater historic property. A. "Underwater historic property" shall mean any submerged, shipwreck, vessel, cargo, tackle or underwater archaelogical specimen, including any object found at underwater refuse sites or submerged sites of former habitation, that has remained unclaimed an the state-owned subaqueous bottom and has historic value as determined by the Department of Conservation and Historic Resources. B. Underwater historic property shall be preserved and protected and shall be the exclusive property of the Commonwealth. Preservation and protection of such property shall be the responsibility of all state agencies including but not limited to the Department, the Virginia Institute of Marine Science, and the Virginia Marine Resources Commission. Insofar as may be practicable,, such property shall be preserved, protected and displayed for the public benefit within the county or city within which it is found, or within a museum operated by a state agency. C. It shall be unlawful for any person, firm or corporation to conduct any type of recovery operations involving the removal, destruction or in any way disturbing any underwater historic property without first making application to and receiving a permit from the Virginia Marine Resources Commission for a permit to conduct such operations pursuant to � 62.1-3 of the Code of Virginia. If the Virginia Marine Resources Commission, with the concurrence of the Department, and in consultation with the Virginia Institute of Marine Science and other concerned state agencies, finds that granting the permit is in the best interest of the Commonwealth, it shall grant the applicant a permit. The permit shall require that all objects recovered shall be the exclusive prop- erty of the Commonwealth. The permit shall provide the applicant with a fair share of the objects recovered, or in the discretion of the Department, a reason- able percent of the cash value of the objects recovered to be paid by the Depart- ment. Title to all objects recovered shall be retained by the Commonweath unless or until they are released to the applicant by the Department. All recovery operations undertaken pursuant to permit issued under this section shall be carried out under the general supervision of the Department and in accordance with 62.1-3 of the Code of Virginia and in such a manner that the maximum amount of historic, scientific, archaeologic and educational informa- tion may be recovered and preserved in addition to the physical recovery of items. The Virginia Marine Resources Commission shall grant no such permit to conduct such operations at substantially the same location described and covered by a permit previously granted if recovery operations are being actively pursued under such previously granted permit, unless the person, firm, or corporation holding the previously granted permit concurs in the grant of another permit/ D. The Department may seek a permit pursuant to this section, and 62.1-3 of the Code of Virginia to preserve and protect or recover any underwater historic property. E. Any person violating the provisions of this section shall be guilty of a Class I misdemeanor and, in addition, shall forfeit to the Commonwealth any objects recovered. (1984, c. 750.) AUTHORIZATION OF LOCAL GOVERNMENT To REGULATE LAND AND WATER USEs THROUGH ZONING 1 15.1-486. Zoning ardin.Inces gen erallr, jurisdiction of counties and municipalities respectively. --The governing body of any county or munic. ipality may, by ordinance, classify. the territor:y' under its jurisdiction or any substantiai portion thereof into districts of such number, shape and size as it may deem best suited to carry out the purposes of this article, and in each district it may regulate, restrict, permit, prohibit, and determine the fblloA@inq: (a) The use of land, buildings, structures and other premises for agricul- tunil, business, industrial, residential, flood plain and other specific uses; (b) The size, height, area, buk location, erection.' construction, reconstruction, alteration, repair, maintenance, razing, or removal of struc- tures; (c) The areas and dimensions of land, water, and- air space to"be occupied by buildings, structures and uses, and of courts, yards, and other open'spaces to be left. unoccupied by uses and structures, including variations in the sizes of lots based on whether a public or community water supply or sewer system is available and used; (d) The excavation or mining of soil or other natural resources. (e) (Repealed.] For the purpose of zoning, the governing body of a county shall have jurisdic- tion over all the unincorporated territory in the county, and the governing body of a municipality shall have jurisdiction over the incorporated area of the municipality. (Code 1950, H. 15-819, 15-844; Code 1950 (Suppl.), � 15-968; 1962, c@ 407; 1966, c. 344; 1969, EX. Sess.,- c. 1. 1972, c. 789; 1975, c. 641.) 1154-486.2. Zoning- ordinances relating to homes for certain handi- capped -per:sons;. policy-, permitted use of property. - A. It is the policy of this Stati that, physically. handicapped, mentally ill, or mentally retarded and other devolopmental.ly disabled persons should not be excluded by county or municipal zoning ordinances from the benefits of normal. residential sUrroundings. Furthermore, it is the policy of this State to encourage and promote the dispersion of residences for the physically handicapped, mentally- M, mentally retarded and other developmentally disabled persons to achieve opt1m assimilation and mainstreaming into the community. Toward this end it is t policy of this'State that the number of such group homes and their location throughout the State and within any given political subdivision should be proportional, insofar as possible, to the population and population dens'#y within the State a -local P?li'tical Subdivisions. B. Notwithstanding any otherprovision of law, pursuant to the policy set out in subsection A, locally 'adopted zoning regulations shall provide for family care homes, foster homes or group homes serving physically handicapped, mentally ill, mentally retarded or other developmen -tally disabled persons, not rclated by blood or marriar districts. ge, in'a -n appropriate residential zoning district or C. Conditions which-are not required of other dwellings in the same zone may be imposed on such homes only ivhen such additional conditions are related to the physical or mental handicap of the residents and- are necessary to protect the health and safety of the residents of such homes. Reasonable conditions may also be imposed on such homes to assure their compatibility with other permitted us.-5 in the area. (1977, c. 648; 1981, c. 611.) 15.1-487. Repealed by Acts 1975, c. 641. 15.1-488. Reguladons to be uniform. - All such regulations shall be uniform for each class or kind of buildings and uses throughout each district, but the regulations in one district may differ from those in other districts. (Code 1950, 15-820, 15-845, Code 1950 (Suppl.), �- 15-968.2; 1962, c. 407.) � 15.1-489. Purpose of zoning ordinances. - Zoning ordinances shall be for the general purpose of promoting the health, safety or general welfare of the public and of further accomplishing the objectives of � 15.1-427. To these ends, such ordinances shall be designed (1) to provide for adequate light, air, convenience of access, and safety from fire, flood and other dangers; (2) to reduce or prevent congestion in the public streets; (3) to facilitate the creation of a convenient, attractive and harmonious community; (4) to facilitate the provision of adequate police and fire protection, disaster evacuation, civil defense, transportation, water, sewerage, flood protection, schools, parks, forests, playgrounds, recreational facilities, airports and other public require- ments; (5) to protect against destruction of or encroachment upon historic areas; (6) to protect against one or more of the following: overcrowding of land, undue density of population in relation to the community facilities existing or available, obstruction of light and air, danger and congestion in travel and transportation, or loss of life, health, or property from fire, flood, panic or other dangers; (7) to encourage economic development activities that provide desirable employment and enlarge the tax base; and (8) to provide for the preservation of agricultural and forestal lands. (Code 1950, � 15-821; Code 1950 (Suppl.), � 15-968.3; 1962, c. 407; 1966, c. 344; 1968, c. 407; 1975, c. 641; 1976, c. 642; 1980, c. 321.) 15.1-490. Matters to be considered in drawing zoning ordinances and districts. - Zoning ordinances and districts shall be drawn with reason- able consideration for the existing use and character of property, the existing land use plan, the comprehensive plan where, adopted, the suitability of prop- erty for various uses, the trends of growth or change, the current and future requirements of the co as to land for various purposes as determined by population and economic studies and other studies, the transportation requirements of the community, and the requirements for housing, schools, parks, playgrounds, recreation areas, and other public services; for the conser- vation of natural resources; and preservation of flood plains; for the preserva- tion of agricultural and forestal land; and for the conservation of properties and their values and the encouragement of the most appropriate use of land throughout the county or municipality. (Code 1950, � 15-821; Code 1950 (Suppl.), � 15-968.4; 1962, c. 407; 1966, c. 344; 1974, c. 526; 1978, c. 279; 1981, c. 418.) � 15.1-491. Permitted provisions in ordinances; amendments. - A zoning ordinance may include, among other things, reasonable regulations and provisions as to any or all of the following matters: (a) For variations in or exceptions to thetrneral regulations in any district in cases of unusual situations or to ease I e transition from one district to another or for buildings, structures or uses having special requirements, and for the adoption. in counties, or towns therein which have planning commis- sion3, wherein the urban county executive form of government is in effect, or in a city completely surrounded by such a county, or in a county contiguous to any such county, or in a city completely surrounded by such a contiguous county, and in the counties east of the Chesapeake Bay as a part of an amend- ment to the zoning map of reasonable conditions, in addition to the regulations provided for the zoning district by the ordinance, when such conditions shall tiave been proffered- in writing, in advance of the public hearing before the governing body required by � 15.1-493 by the owner of the property which is the subject of the proposed zoning map amendment. Once proffered and arcapted as part of an amendment to the zoning ordinance, such conditions i@Z continue in full force ind effect until a subsequent amendment changes the zoning on the prorrty covered by such conditions; provided, however, t, at such conditions shal continue if the subsequent amendment is part of a comprehensive implementation of a riew or substantially revised zoning ordinance. (b) For the temporary application of the ordinance to any property coming into the territorial jurisdiction of the governing body by annexation or otherwise, subsequent to the adoption of the zoning ordinance, and pending the orderly amendment of the ordinance. (c) For the granting of special exceptions under suitable regulations and notwithstanding any other provisions of this article, the ;overnin; body of any city, county or town may reserve unto itself the right to issue such special exception or use permit. (d) For the administration and entorcement of the ordinance including the appointment or designation of a zoning administrator who may also hold an- other office in the county or municipality. The zoning administrator shall have aU necessary authority on behalf of the governing body to administer and enforce the zoning ordinance, including the ordering in writing of-the rem- edring of any condition found in violation of the ordinance, and the bringing of legal action to insure compliance with the ordinancc, including injunction, abatement, or other appropriate action or proceeding. (e) For the imposition of penalties upon conviction of any violation of the M ordinance. Any such violation shall be a misdemeanor punishable by a mof not less than ten dollars nor more than one thousand dollars. (f) For the collection of fees to cover the cost of making inspections, issuing permits, advertising of notices and other expenses incident to the administra- tion of a zoning ordinance or to the filing or processing of any appeal or amendment thereto. (g). For the amendment of the regulations or district maps from time to time, or for their repeal. Whenever the public necessity, convenience, general wel- fare, or good zoning practice require, the gove body may by ordinance, amend. supolement. or chanae the reaulations,21trict boundaries, or classifi- cations of property. Any such amendment may be initiated by resolution of the governing body, or by motion of the local commission, or by petition of any p�ro erty owner addressed to the governing body or-the local commission, who forward such petition to the governing bodr, provided, that the ordinance may provide for the consideration of proposed amendments only at specified intervals of time, and may further provide that substantially the same petition wiU not be reconsidered 'Within a specific period, not exceeding one year. Any such resolution or motion by such governing body or commission proposing the rezoning shall state the above pubUc purposes iherefor. In any county having adopted such zoning ordinance all motions, resolutions or petitions for amendment to the zoning ordinance, and/or' map, pending on July one, nineteen hundred seventy-four, shall be acted upon and decision made on or before December thirty-one, nineteen hundred seventy-five; all of such motions, resolutions or petitions accepted for filing after July one, nineteen hundred seventy-four, but prior to July one, nineteen hundred seventv-five shall he acted upon and a decision made on or before June thirtieth, nineteen hundred seventy-six; all such motions, resolutions or peti- tions, accepted for filing after July one, nineteen hundred seventy-five, shall be acted upon and a decision made within such reasonable time as may be neces- sary which shall not exceed twelve months, unless accepted for filing prior to December thirty-one, nineteen hundred seventy-five, in which case they shall be acted upon and a decision made on or before December thirty-one, nineteen hundred seventy-six. (h) For the submission and approval of a plan of development prior to the issuance of building permits to assure compliance with regulations contained in such zoning ordinance. The ordinance may also provide that petitions brought by property owners or their agents shall be sworn to under oath before a notary public or other official before whom oaths may. be taken, stating whether or not any member of the local commission or governing body has any interest in such property, either individually, by ownership of stock in a corporation owning such land, or partnership, or whether a member of the immediate household of an mem- ber of the commission or governing body has any such interest. (Code 1950 (Suppl), � 15-968.5; 1962, c. 407; 1964, c. 564; 1966, c. 455; 1968, cc. 543, 595; 1973, c. 286; 1974, c. 547; 1975, cc. 99, 575, 579, 582, 641; 1976, cc. 71, 409, 470, 683; 1977, c. 177; 1978, c. 543; 1979, c. 182.) PERMIT' REQUIRMENT FOR SEPTIc TANK INSTALLATION 15.1-520. Regulation of installation of septic tanks. - Any county may regulate the installation of septic tanks on property located therein, and may require any person desiring to install a septic tank to secure a permit to do so and may prescribe reasonable fees for the issuance of such permits. AUTHORITY TO ISSUE BONDS FOR LAND AQUISTION 15.1-1278. Authority to issue bonds; source of payment. - The The authority is hereby authorized to issue bonds, from time to time in its discretion for the, purpose of paying all or any part of the cost of acquiring, purchasing, constructing, reconstructing, improving or extending any project and acquir- ing necessary land and equipment therefor. The authority may issue such types of bonds as it may determine, including (without limiting the generality of the foregoing) bonds payable as to principal and interest: (a) from its reve- nues generally; (b) exclusively from the income and revenues of a particular project; or (c) exclusively from the income and revenues of certain designated projects, whether or not they are financed in whole or in part from the proceeds of such bonds. Any such bonds may be additionally secured by a pledge of any grant or contribution from a participating political subdivision, the Commonwealth or any political subdivision, agency or instrumentality thereof, any federal agency or any unit, private corporation, copartnership, association, or individ- ual, or a pledge of any income or revenues of the authority or a mortgage or any project or other property of the authority. Neither the commissioners of the authority nor any person executing the bonds shall be liable personally on the bonds by reason of the issuance thereof. The bonds and other obligations of the authority (and such bonds and obli- gations shall so state on their face) shall not be a debt of the Commonwealth or any political subdivision thereof and neither the Commonwealth nor any political subdivision thereof other than the authority shall be liable thereon, nor shall such bonds or obligations be payable out of any funds or properties other than those of the authority. The bonds shall not constitute an indebted- ness within the meaning of any debt limitation or restriction. Bonds of the authority are declared to be issued for an essential public and governmental purpose. (Code 1950 (Suppl.), � 15-714.20; 1962, c. 393, � 8.) 67 RESPONSIBLITIES OF SOIL AND WATER CONSERVATION COMMISSION 21-11.16. Declaration of policy. - The shores of the Commonwealth of Virginia am a most valuable resource -that should. be protacted from erosion which reduces the taxbase, decreases recreational opportunities, decreases the amount of open space and agricultural lands, damages or destroys roads and produces sediment that damages marine resources, fills navigational channels, degrades water quality and, in general, adversely affects the environmental quality; therefore, the General Assembly hereby recognizes shore erosion as a problem which directly or indirectly affects all of the citizens of this State and declares it the policy of the State to bring to bear the state's resources in effectuating effective practical solutions thereto. (1972 c. 855.) 21-11.18. Responsibility of Soil and Water Conservation Commis- sion. - In addition to the other duties and responsibilities conferred by this chapter, the Virginia Soil and Water Conservation Commission shall have the duty and responsibility to make the necessary coordination of shore erosion control programs of all state agencies and institutions, other than those affecting public beaches, and to secure the cooperation and assistance of the United States and any of its agencies to protect waterfront property from destructive erosion; to evaluate the effectiveness and practicability of current Programs; and to explore all facets of the problems and alternative solutions to determine if other practical and economical methods and practices may be devised to control shore erosion. Such coordination shall not restrict the statu- tory authority of the individual agencies having responsibilities relating to shore erosion control. (1972, C. 855: 1980, c. 368) 21-11.20. Cooperation and coordination with Virginia Institute of Marine Science. - The Soil and. Water Conservation Commission shall co- operate and coordinate with the Virginia Institute of Marine Science of the College of William and Mary for research, training and technical advice on erosion-related Problems. (1980, c. 368.) ERosION AND SEDIMENT CONTROL LAw Applied in United Land Corp. of Am v. Clarke, 613 F.2d 497 (4th Cir. 1980). 21-89.2. Findings of General Assembly. - The General Assembly has determined that the lands and waters comprising the watersheds of the State are great natural resources; that as a result of erosion of lands and sediment deposition in waters within the watersheds of the State, said waters are being polluted and despoiled to such a degree that fish, aquatic life, recreation and other uses of lands and waters are being adversely affected; that the rapid shift in land use from agricultural to nonagricultural uses has accelerated the pro- cesses of soil erosion and sedimentation; and further, it is necessary to estab- lish and implement, through the Virginia Soil and Water Conservation Commission, hereinafter referred to as the "Commission", and the soil and water conservation districts, hereinafter referred to as "districts," in coopera- tion with counties, cities, towns, other subdivisions of this State, and other public and private entities, a statewide coordinated erosion and sediment control program to conserve and to protect the land, water, air and other natural resources of the Commonwealth. (1973, c. 486.) 21-89.3. Definitions - As used in this Article, unless the context clearly indicates otherwise: (a) "Land-disturbing activity" shall mean any land change which may result in soil erosion from water or wind and the movement of sediments into state waters or onto lands in the State, including, but not limited to, clearing, grading, excavating, transporting and filling of land, other than federal lands, except that the term shall not include: (i) such minor land-disturbing activities as home gardens and individual home landscaping, repairs and maintenance works; (ii) individual service connections; (iia) construction. installation, or maintenance of electric and telephone utility lines; (iib) installation, mainte- nance, or repair of any underground public utility lines when such activity occurs on an existing hard surfaced road, street or sidewalk provided such land-disturbing activity is confined to the area of the road, street or sidewalk which is hard surfaced; (iii) septic tank lines or drainage fields unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the -septic tank system; (iv) surface or deep raining-, (iva) exploration or drilling for oil and gas including the well site, roads and off-site disposal areas; (v) neither shall it include tilling, planting, or harvesting of agricultural, horticultural, or forest crops; (vi) construction, repair or rebuilding of the tracks, right-of-way, bridges, communication facilities and other related structures and facilities of a railroad company, (vii) preparation for single-family residences separately built, unless in conjunction with multiple construction in subdivision development; (viii)disturbed land areas for commercial or noncommercial uses of less than 10,000 square feet in size; provided, however, that the governing body of the county, city, town or district, may reduce this exception to a smaller area of disturbed land and/or qualify the conditions under which this exception shall apply, (ix) installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles; (x) shore erosion control projects on tidal waters recommended by the soil and water conservation districts in which the projects are located or approved by the Marine Resources Commission; (xi) emergency work to protect life, limb or property, and emergency repairs, provided that if the land-disturbing activity would have required an approved erosion and sediment control plan, if the activity were not an emergency, then the land area disturbed shall be shaped and stabilized in accordance with the require- ment of the local plan-approving authority or the Commission when applicable. (b) "Person" shall mean any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of this State, any interstate body, or any other legal entity. (c) "Town" shall mean an incorporated town. (d) "Conservation standards" or "standards" shall mean standards adopted by the Commission or the districts, counties, cities and towns pursuant to 21-89.4 and 21-89.5, respectively, of this article. (e) "Specifications" shall mean the written procedures, requirements or plans to control erosion and sedimentation as officially adopted by the governing board or commission of a state agency or institution or by an agency's admin- istrative head if there is no board or commission. (f) "Conservation plan,"" erosion and sediment control plan," or "plan," shall mean a document containing material for the conservation of soil and water resources of a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conserva- tion treatment. The plan shall contain all major conservation decisions to assure that the entire unit or units of land will be so treated to achieve the conservation objectives.' (g) "State erosion and sediment control Program" or "state program" shall mean the program adopted by the Commission consisting of conservation stan- dards, guidelines and criteria to minimize erosion and sedimentation. (h) "Local erosion and sediment control program" or "local control program" shall mean an outline or explanation of the various elements or methods employed by a district, county, city, or town to regulate land-disturbing activities and thereby minimize erosion and sedimentation in compliance with the state program and may include such items as a local ordinance, policies and guidelines, technical materials, inspection, enforcement and evaluation. (i) "Plan approving authority" shall mean the district or a county, city, or town, or a department of a county, city, or town, responsible for determining the adequacy of a conservation plan submitted for land-disturbing activities on a unit or units of lands and shall approve such plan if the plan is determined to be adequate. (1973, c. 486 1974, c. 265; 1977, c. 149; 1980, c. 305.) 21-89.4. State erosion and sediment control program. - (a) The Com- mission shall establish minimum standards, guidelines and criteria for the effective control of soil erosion, sediment deposition and nonagricultural runoff which must be met in any control program. To assist in the development of the program, the Commission shall seek the advice of the State Water Control Board (the opinion of the State Water Control Board shall be advisory only) and may, seek the advice of other appropriate state and federal agencies and shall name an advisory board of not Less than seven nor more than eleven members which shall include but not be limited to representatives of such interests as residential development and construction, nonresidential construction, and agriculture. At least two members of the advisory board shall be from the public at large having no direct pecuniary interest, and at least two members shall be from local governments. (b) To implement this program, the Commission shall develop and adopt by July one, nineteen hundred seventy-four, guidelines for erosion and sediment control, which guidelines may be revised from time to time as may be neces- sary. In accordance with Chapter 1.1:1 of Title 9 of this Code, the Commission shall give due notice and conduct public hearings on the proposed guidelines or proposed change in existing guidelines before adopting or revising such guidelines. The guidelines for carrying out the program shall: (1) Be based upon relevant physical and developmental information con- cerning the watersheds and drainage basins of the State, including, but not limited to, data relating to land use, soils, hydrology, geology, size of land area being disturbed, proximate water bodies and their characteristics, transporta- tion, and public facilities and services; (2) Include such survey of lands and waters as may be deemed appropriate by the Commission or required by any applicable law to identify areas, includ- ing multijurisdictional and watershed areas, with critical erosion and sediment problems; and (3) Contain conservation standards for various types of soils and land uses, which standards shall include criteria, techniques, and methods for the control of erosion and sediment resulting from land-disturbing activities. (c) The program and guidelines shall be made available for public inspection at the office of the Commission. (1973, c. 486.) 70 21-89.5. Local erosion and sediment control programs.- (a) Each district. in the Commonwealth, except as provided in subsection (c) of this section, shall within eighteen months after the adoption of the state guidelines, develop and adopt a soil erosion and sediment control program consistent with the state program and guidelines for erosion and sediment control. Districts adopting such programs shall do so pursuant to the provisions of the Admin- istrative Process Act, Chapter 1.1:1(�9-6.14:1 et seq.) of Title 9 of the Code of Virginia. To assist in developing its program, each district shall name an advisory committee of not less than seven nor more than eleven members which shall include but not be limited to representatives of such interest as residential development and construction, nonresidential construction, and agriculture. At least two members of the advisory board shall be from the public at large having no direct pecuniary interest, and at least two members shall be from local governments. Upon the request of a district the Commission shall assist in the preparation of the district's program. Upon adoption of its program, the district shall submit the program to the Commission for review and approval. To carry out its program the district shall, within one year after the program has been approved by the Commission, establish, consistant with the state program and guidelines, conservation standards for various types of soils and land uses, which standards shall include criteria, guidelines, techniques, and methods for the control of erosion and sediment resulting from land-disturbing activities. Such conservation standards may be revised from time to time as may be necessary. Before adopting or revising conservation standards, the district shall, after giving due notice, conduct a public hearing on the proposed conservation standards or proposed changes in existing standards. The pro- gram and conservation standards shall be made available for public inspection at the principal office of the district. (b) In areas where there is no district, a county, city, or town shall develop, adopt and carry out the erosion and sediment control program and exercise the responsibilities of a district with respect thereto, as provided in this article; except that the provisions for an advisory committee shall not be mandatory. (c) Any county, city, or town that, prior to July 1, 1975, has adopted its own erosion and sediment control program which has been approved by the Com- mission shall be treated under this article as a county, city, or town which lies in an area where there is no district, whether or not such district in fact exists. Any town, lying within a county which adopts its own erosion and sediment control program, must adopt its own program, or adopt jointly with the county an erostion and sediment control program or authorize the county to adopt the program for the town. If a town lies within the boundaries of more than one county, such town shall be considered for the purposes of this article to be wholly within the county in which the larger portion of the town lies. Any county, city, or town adopting an erosion and sediment control program may designate its department of public works or a similar local government depart- ment as the plan-approving authority or may designate the district as the plan-approving authority for all or some of the conservation plans. (d) If a district, or county, city, or town not in a district, fails to submit a program to the Commission within the period specified herein, the Commission shall, after such hearings or consultations as it deems appropriate with the various local interests involved, develop and adopt an appropriate program to be carried out by such district, county, city, or town. The Commission shall do likewise with respect to any town lying within a county which adopts its own erosion and sediment control program and such town does not provide for land-disturbing activities within the town to be covered by a local control program. (e) Any district, county, city or town which administers an erosion and sediment control program may charge applicants a reasonable fee to defray the cost of program administration, including costs associated with the issuance of grading or land-disturbing permits, plan review, and periodic inspection for compliance with erosion and sediment control plans; provided, that charges for such costs are not made under any other law, ordinance, or program. Such fees shall in no instance exceed an amount commensurate with the services rendered taking into consideration the time, skill and administrators' expense involved, or $300, whichever is least. 71 (f) Notwithstanding any other provision of this chapter, districts or localities which have adopted local erosion and sediment control programs shall not be required to conduct-public hearings when amending their local programs to conform to any revisions in the state program. Districts or localities which choose to adopt conservation standards which are more stringent than the provisions of the state program, however, shall conduct a public hearing after giving due notice. 21-89.6. Regulated land disturbing activities. - (a) Except as pro- vided in subsections (e) and (f) of this section, no person !may engage in any land-disturbing activity after the adoptionon of the conservation standards by the districts, counties, cities or towns until he has submitted to the district county, city, or town an erosion and sediment control plan for such land disturbing activity and such plan has been reviewed and approved by the plan-approving authority. Where land disturbing activities involve lands under the jurisdic- tion of more than one local contol program an erosion and sediment control plan may, at the option of the applicant, be submitted to the Commission for review and approval rather than submission to each jurisdiction concerned. (b) Upon submission of an erosion and sediment control plan to a plan-approving authority or to the Commission. (1) The plan-approving authority shall, within forty-rive days, approve any such plan, if it determines that the plan meets the conservation standards of the local control program and if the person responsible for Carrying out the plan certifies that he will properly perform the erosion sediment control mea- sure included in the plan and will conform to the provisions of this article-, (2) The Commission shall review plans submitted to it and shall within forty-five days approve any such plan if it determines that the plan is adequate in consideration of the Commission guidelines and the conservation Stan- dards of the local control program or programs involved, and the person responsible for carrying out the plan certifies that he will properly perform the conservation measures included in the plan and will conform to the provisions of this article. (c) The plan-approving authority or Commission must act an all plain sub- mitted within forty-five days from receipt thereof by either approving said plan in writing or by disapproving said plan in writing and giving the specific reasons for its disapproval. When a plan submitted for approval under this section, is found, upon review by the respective agency, to be inadequate, such agency shall specify such modifications, terms, and conditions as will permitit approval of the plan and communicate these requiremets to the applicant an herein required. If no action is taken by the plan-approving authority or Com- mission within the time specified above, the plan shall be deemed approved and the person authorized to proceed with the proposed activity. (d) An approved-plan may be changed by the authority which has approved the plan or by the Commission when it has approved the plan in the following cases: (1) Where inspection has revealed the inadequacy of the plan to accomplish the erosion and sediment control objectives of the plan, and appropriate modifi- cations to correct the deficiencies of the plan are agreed to by the plan-approving authority and the person responsible for carrying out the plan; or (2) Where the person responsible for carrying out the approved plan finds that because of changed circumstances or for other reasons the approved plan cannot be effectively carried out, and proposed amendments to the plan, consis- tent with the requirements of this article, are agreed to by the plan-approving authority and the person responsible for carrying out the plan. (e) Any person owning, occupying, or operating private agricultural, horticultultural or forest lands shall not be deemed to be in violation of this article for land-disturbing activities resulting from the tilling, p lanting or harvesting of agricultural, horticultural or forest crops or products, or engineering oper- ations under _ 21-2 (c) of the Code of Virginia. 72 (f) Any state agency that undertakes a project involving a land-disturbing activity shall file specifications or a conservation plan with the Commission for review and written comments. The Commission shall have sixty days in which to comment and such comment shall be binding on the state agency or the private business hired by the state agency. Individual approval of separate projects is not necesssary when approved specificiations are followed. The state agency shall submit changes in the conservation plan or spicifica- tions as they occur to the Commission and shall submit specifications and plans at least annually for review. Further, the state agency responsible for the land-disturbing activity shall ensure compliance with the approved plan or specifications. (g) For the purposes of the subsections (a) and (b) of this section, when land-disturbing activity will be required of a contractor performing con- stuction work pursuant to a construction, contract, the preparation, submission and approval of an erosion and sediment control plan shall be the responsiblity of the owner. _ 21-89.7. Approved plan required for issuance of grading, building, or other permits; security for performatnce. - Upon the effective date of the adoption of the conservation standards by the districts, counties, cities or towns, when standards, have not otherwise been adopted, no agency authorized under any other law to issue grading, building, or othern permits for activities involving land-disturbing activities may issue any such permits unless the applicant therefor submits with his application the approved erosion and sediment control plan or certifications of such approved plan from the local plan-approving authority or from the Commission where appropriate, as well as certification that such paln will be followed. Such agency, prior to issuance of any permit, may also require from any applicant a reasonable performance bond, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the agency, to ensure that measures could be taken by the county, city or town at the applicant's expense should he fail, after proper notice, within the time specified to initiate or maintain appropriate conservation action which may be required of him by such approved plan as a result of his land-disturbing activity. Within sixty days of the completion of the land-disturbing activity, such bond, cash escrow, letter of credit or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated, as the case may be. These require- ments are in addition to all other provisions of law relating to the issuance of such permits and are not intended to otherwise affect the requirements for such permits. _ 21.89.8. Monitoring, reports and inspections.- (a) Land-disturbing activities where permit is issued.-With respect to approved plans for erosion and sediment control in connection with land-disturbing activities which involve the issuance of a grading, building, or other permit, either the permit-issuing authority or plan-approving authority shall provide for periodic inspections of the land-disturbing activity to ensure compliance with the approved plan, and to determine whether the measures required in the plan are effective in contorlling erosion and sediment resulting from the land-disturbing activities. Notice of such right of inspection shall be included in the permit. The owner, occupier or operator shall be given an opportunity to accompany the inspectors. If the permit-issuing authority or plan-approving authroity determines that the permittee has failed to comply with the plan, the authority shall immediately serve upon the permittee by registered or certified mail to the address-specified by the permittee in his permit application a notice to comply. Where the plan-approving authority serves notice, a copy of each notice shall also be sent to the issuer of the permit. Such notice shall set forth specifically the measures need to come into compliance with such plan and 73 shall specify the time within which such measures shall be completed. If the permittee fails to comply within the time specified, he may be subject to revoction of the permit; furthermore, he shall be deemed to be in violation of this article and upon conviction shall be subject to the penalties provided by the article. (b) Other regulated land-disturbing activities.-With respect to approved plans for erosion and sediment control in connection with all other regulated land-disturbing activities, the plan-approving authority may require of the person responsible for carrying out the plan such monitoring and reports, and may make such on-site inspections after notice to the resident owner, occupier or operator as are deemed necessary to determine whether the soil erosion and sediment control measures required by the approved plan are being properly performed, and whether such measures are effective in controlling soil erosion and sediment resulting from the land-disturbing activity. Such resident owner, occupier or operator shall be given an opportunity to accompany the inspectors. If it is determined that there is failure to comply with the approved plan, the plan-approving authority shall serve notice upon the person who is responsible for carrying out the plan at the address specified by him in his certification at the time of obtaining his approved plan. Such notice shall set for the mea- sures needed for compliance and the time within which such measures shall be completed. Upon failure of such person to comply within the specified period, he will be deemed to b ein violation of the article and upon conviction shall be subject to the penalties provided by the article. (c) Additional provisions.-Notwithstanding the above provisions of this section the following may be applied. (1) Where a county, city, or town adopts the local program and the permit-issuing authority and plan-approving authority are not within the same local government department, the county, city, or town may designate one department to inspect, monitor, report and insure compliance. In the event a district has been designated as the plan-approving authority for all or some of the conservation plans, the enforcement of the program shall be with the local government department; however, the district may inspect, monitor and make reports for the lcoal government department. (2) Where a district adopts the local control program and permit-issuing authorities have been established by a county, city, or town, the district by joint resolution with the applicable county, city or town may exercise the responsiblities of the permit-issuing authorities with respect to monitoring, reports, inspections and enforcement. (3) Where a permit-issuing authority has been established, and such author- ity is not vested in an employee or officer of local government but is the commissioner of revenue or some other person, the county, city, or town shall exercise the responsibilities of the permit-issuing authority with respect to monitoring, reports, inspections and enforcement unless such responsibilities are transferred as provided for in the above provisions of this section. (1973, c. 486.) _ 21-89.9. Cooperation with federal and state agencies.-The districts, counties, cities or towns operating their own programs, and the Commission are authorized to cooperate and enter into agreements with any federal or state agency in connection with plans for erosion and sediment control with respect to land-disturbing activities. (1973, C. 486.) _ 21.89.10. Appeals.-(a)Final decisions of counties, cities or towns under this article shall be subject to review by the court of record of the county or city, provided an appeal is filed within thirty days from the date of any written decision adversely affecting the rights, duties or privileges of the person engaging in or proposing to engage in land-disturbing activities. 74 (b) Final decision of the districts shall be subject to an administrative review by the Commission, provided an appeal is filed within thirty days from the date of the written decision. (c) Final decisions of the Commission either upon its own action or upon the review of the action of a district shall be subject to review by the Circuit Court of the City of Richmond, provided an appeal is filed within thirty days from the date of the written desicion of the Commission. (1973, c.4 486.) _ 21-89.11. Penalties, injunctions and other legal actions.-(a)A viola- tion under _ 21-89.6 or _ 21-89.8 of this article shall be deemed a misdemeanor and upon conviction shall be subject to a fine not exceeding $1,000 or 30 days imprisonment for each violation or both. (b) The appropriate permit-issuing authority, a district, a county, city, or town oeprating its own program, or the Commission may apply to the court of record in the jurisdiction wherein the land lies, or to the Circuit Court of the City of Richmond should the land lie in more than one jurisdiction, for injunctive relief to enjoin a violation or a threatened violation under _ 21-89.6 or _ 21-89.8 of this article, without the necessity of showing that there does not exist an adequate remedy at law. (c) The Commonwealth's attorney shall, upon request of a district, county, city, or town operation its own program, or the permit-issuing authority, take legal action to enforce the provisions of this article. The State Attorney General shall upon request of the Commission, take appropriate legal action on behalf of the Commission to enforce the provisions of this article. (d) Compliance with the provisions of this article shall be prima facie evi- dance in any legal or equitable proceeding for damages caused by erosion, siltation or sedimentation that all requirements of law have been met and the complaining party must show negligence in order to recover any damages. (1973, c. 486.) _ 21-89.12. Authorization for more stringent standards.-A district, county, city or town is hereby authorized to adopt more stringent soil erosion and siltation standards than those necessary to ensure compliance with the State's minimum standards, guidelines and criteria. However, nothing in this section shall be construed to authorize any district, county, city or town to impose any more stringent regulations for plan approval or permit issuance than those specified in _ _ 21-89.6 and 21-89.7 (1973, c. 486.) _ 21-89.13. No limitation on authority of Water Control Board or Department of Conservation and Economic Development.-Nothing contained within the provisions of this article shall limit the powers or duties presently exercised by the State Water Control Board under Chapter 3.1 (_ 62.1-44.2 et seq.) of Title 62.1 of this Code, or the powers or duties of the Department of Conservation and Economic Development as it relates to strip mine reclamation under Chapters 16 (_ 45.1-180 et seq.) and 17 (_ 45.1-198 et seq.) of Title 45.1 of this Code. (1973, c. 486.) 75 PROCEEDINGS, ACTIONS AND REGULATIONS OF THE VIRGINIA MARINE RESOURCES COMMISSION 28.1-23. Authority to make regulations, establish Uccnses, and P".__ pare fishery rn na ement plans; enforcement penalty for violation of regulation. -The-Cornrni sionshail have authority to make such regulations as it deems necessary to promote the general welfare of the seafood industry and to conserve and promote the seafood and ma:rine resources of the Common- wealth, including regulations as to the taking of seafood. The regulations shall, not conflict with the provis@ions of statutor-y law. The Commission shall hive the power to establish a license commensurate' with other licenses in an amount not to exceed $100 for any device used for the taking or catching of seafood in the waters of the Commonweafth when, the device is not otherwise licensed in this title and when the device is used for -unercial purposes. 2s.1-23.i. Fishery management poUcy. - It shall be the goal of fisheries management within the Commonwealth of Virginia to conse@4e and enh-ar, e Enfish and shellfish resources, and to preserve and promote both commercial and recreational fisheries, and, thereby, to maximize food produc- tion and recreational opportunities. The marine resources of the Common-, wealth shall be managed for their ma.,dm= benefit and long-term use by pm.ent and futurgnerations. The fishery mana ement, plans prepared and implemented acco eIg to law shall also have as a --oal the preservation of the Comnionwealth!s exclusive right to manage the fiAeries within its territorial jurisdiction. Fishery management shall be based upon the best scientific. economic, biological. and sociological infonnation available, shall be responsive to the needs of interested' and affected citizens, shall promote efficiency in the utilization of the resources, and shall draw upon ail available capabilities in carryimt out research, adaninisfiation, management, and enforcement. Any fishery management plan prepared, and any regulation promulgated to IM le ent _e plan, shall be consistent with the following standards for fis ery conservation and management: L Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery. The "optimum yield" of a fisher7 means the amount of fish or shellfish which will provide the greatest overall benefit to the Commonwealth, with particular reference to commercial fishing for food production and to recreational fishing-, 2. Conservation and management measures shall be based upon contemporaneous consideration of the best scientific, economic, biological and sociological information available; 3. To the extent practicable, an individual stock of fish shall be managed as a unit throughout the territorial waters of the Commonwealth, and interrelated ztocks of fish shall be managed as a unit or in close coordination; 4. Conservation and management measures shall not discriminate between user group@. If it becomes necessary to allocate or assign fishing *vileges pr' among various user groups, such allocation shall be W fair and equitable to all :fishermen; (ii) reasonably calculated to promote conservation; and (iii) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges; 5. Conservation. and management shall, where practicable, promote effi- ciency in the utilL-ation of fishery resources, except that no such measure shall have economic allocation as its sole purpose; 6. Conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches-, 7. Conservation and management measures shall, where practicable, mini- mize regulatory burdens which inhibit innovation, expansion, and normal business operations. (1984, c. 463.) r-hp COMMERCIAL FOOD FISH GENERAL LAWS _ 28.1-47. License to fish with certain nets. - Any resident of Virginia or nonresident desiring to take or catch fish with any device other than a hand line in any of the tidal waters of the Commonwealth, or tidal waters within the jurisdiction or under the joint jurisdiction of this Commonwealth, shall apply to any nspector except that the applicant for license to fish with a fixed device shall make application in writing to the inspector of the district in which the fixed device is proposed to be located; and state on oath the true name or names and address or addresses of the person or persons applying for license, the place at which the net, seine, fyke, weir, or other device is to be fished; and that during the period of the license, which sall be from January 1 to December 31, inclusive, of each year, they will not violate any of the laws of this Common- wealth in relation to the taking and catching of fish. (Code 1950, _ 28-42; 1962, c. 406; 1983, c.307.) Cross reference. - As to fishing in Pocomoke Sound and Tangier Sound, see _28.1-128.1. As to fishing in Chesapeake Bay immediately west of Tangier Island, see _28.1-128.2. Law Review. - For article entitled, "Legal Dimensions of Entry Fishery Management," see 17 Wm. & Mary L. Rev. 757 (1976). For article discussing common-law principles underlying public interests in tidal water resources, see 23 Wm. & Mary L. Rev. 835 (1982). _ 28.1-47.1. Special nonresident harvesters license. - Any nonresident desiring to take or catch finfish, crabs or any other seafood except oysters, clams or other shellfish, from any of the tidal waters of the Commonwealth for which a license is required and for which such nonresident is eligible, shall first pay to any district inspector or agent the sum of $350 for a nonresident harvesters license. The license shall be required of each boat used in the tidal waters of Virginia, and shall be in addition to any other licenses required for the activity involved. However, the total fee for a nonresident to engage in any fishing activity in Virginia's waters shall not be less than the total fee charged a Virginia resident to engage in like fishing activities in the state of residence of the nonresident. The nonresident shall state under oath his true name and address, the name and number of the boat being licensed, and that he will not violate any of the laws of this Commonwealth in relation to the taking and catching of seafood. A nonresident harvesters license shall be required and displayed to any inspector or agent prior to the purchase of any other license for the harvesting of seafood. A nonresident harvesters license shall be valid for one calendar year, and no part of the fee for the license shall be prorated. Revocation of this license in accordance with the provision of _ 28.1-36 of this Code shall constitute revocation of any other license held under the provisions of Title 28.1 of this Code by the named nonresident. Any resident of this Commonwealth who enters into a partnership or other agreement with the intent to defeat the object into section shall be deemed quilty of a Class 1 misdemeanor. (1983, c. 299.) Cross reference. - As to punishment for Class 1 misdemeanors, see _ 18.2-11. 77 _ 28.1-48. License tax for fishing in tidal waters; register mark. - (1) Amount of tax; to whom paid. - Every resident or nonresident who shall apply for license to catch or take fish from the tidal waters of the Commonwealth, or the waters within the jurisdiction of the Commonwealth, shall pay to an inspec- tor a specific license tax, which shall be in lieu of all taxes levied upon such persons for taking and catching fish, or for selling the product thereof, as follows: (a) On each pound net twenty-five dollars; (b)(1) On each stake gill net of 1200' in length or under, with a fixed location, $15; (2) On all other gill netss up to 600'., $10; all such nets over 600' and up to 1200', $15; (c) On each thresh net, skirt net, slat traps, prop nets, trap net, or similar device, eight dollars; (d) On each fyke net head, weier, or similar device, eight dollars; (e) On each person taking or catching eels or otherwise fishing by a means commonly known as fish pots, twelve dollars; (f) On each person using or setting fish trotlines, twelve dollars. It shall be unlawful to set a fish trotline on the ocean side of Accomack and Northampton Counties. The Commission inspectors may confiscate any fish trotline set in such area; (g) On each person using or operating a fish dip net, six dollars; (h) On each haul seine used for catching fish, under 500 yards in length, $29; no person shall set a haul seine on Sunday in the Chesapeake Bay or its tributaries; (i) On each haul seine used for catching fish, from 500 yards in length to 1000 yards in length, $88; no person shall set a haul seine on Sunday in the Chesapeake Bay or its tributaries. (2) Licenses for other devices. - The Commission shall have the power to establish a license commensurate with other licenses in an amount not more than $100 for any device used for the taking or catching of finfish, fish or shellfish in the waters of the Commonwealth, that is not mentioned in Title 28.1 of the Code. The Commission shall have the authority to specify any restrictions or control over the device or the person operating the device they may deem advisable when issuing such a license. (3) Register mark and how displayed; length of seine. - Inspectors issuing such licenses shall furnish to the person to whom such licenses are issued a number or register mark, to be placed by the fishermen on their boats or fixed fishing devices. It shall be unlawful for any person, firm, or corporation to use, operate, set or cause to be used, operated, or set, any such drift, or haul seine exceeding in length 1000 yards. If the license be for a fixed fishing device, the holder of the license shall fasten such register mark or number securely to one of the offshore stakes of the fishing device, but such device may be moved at any time within the same inspection district during the season for which the license therefor has been secured with the approval in writing of the inspector without the payment for any additional license. If the license be for a haul seine, drift net, purse net or similar fishing device, the holder of such license shall fasten the register mark number securely at a conspicuous place on the starboard side of the boat used in fishing such device. (Code 1950, _ 28-43; 1960, c. 517; 1962, c. 406; 1966, c. 684; 1968, c. 748; 1972, c. 833; 1973, c. 21; 1976, c. 392; 1979, c. 274; 1981, c. 61; 1983, c. 307.) Editor's note. - This section was amended by Acts 1973, c. 471. The 1973 act, which was made effective July 1, 1974, and provided that it should expire at midnight on that date unless earlier reenacted, was repealed by Acts 1974, c. 96. effective march 22, 1974, and therefore never went into effect. 78 � 2S.1-49: Repealed by Acts 1970, c. 629. Cross reference. - For present provisions covering the subject matter of the repealed sec- tion, see 4 2S.1-49-1. � 28.1-49.1. Size of fish that may be caught; purchase or possession of "mclersizecl ffsh. - E;ccept as otherwise provided by regulation adopted pur- 31,ant to H 28.1-23 through 28.1-26 of this Code, it shall be unlawful for any person to take, catch or possess any sturgeon ffsh; cobia (bonita) which is less than twenty inches in length, or more than ten percent or two by count, whichever is greater, of summer flounder (fluke) less than twelve inches La length. Whenever any person has possession of more than 100 pounds in the aggregate of summer flounder, the taking, catching or possession of which is or might be unlawful due to their size, a lot of 100 pounds of such species may be separated by any inspector from the whole quantity thereof for purposes of termining whether more than 10% thereof are under the lawful size for pur poses of this provision. If less than ninety percent are within the lawful size, such person shall be presumed guilty of having violated this provision. Mea- 'be f sure of length for purposes of this section shall rom, nose to tip of tail. Any sturgeon fish caught by any person or any fish below the lawful size herein provided shall be at once returned to the water. It shall be unlawful for any dealer or wholesaler of fish for human consumption to buy from others or to otherwise possess for purposes of resale any fish, the taking, catching or possession of which is unlawful, or to possess for purpose of resale any fish, the taking, catching or possession of which is unlawful. due to the size thereo , as provided herein, unless in the latter case .at least ninety percent of the fris of each type mentioned herein are of a lawful size. Whenever a dealer or who esaler of fish has possession of 14ore than 100 pounds. in the aggregate of any variety or species, the -taking, catching or possession of which is or might be unlawfW due to their size, a lot of 100 pounds of each species or variety may be separated by any ins ector from the whole (Zuantity thereof for purposes -of determining whether Fess than 90% thereof were under or over t e lawful size for purposes of this provision. If less than ninety percent are within the lawful size the dealer or wholesaler shall be presumed guilty of having violated this provision, if the fish were bought frm others or otherwise possessed for purposes of resale. (1970, c. 629; 1981, c. 579,- 1984, c. 13; 1985, cc. 546, 615.) The 1984 amendmen4 in the f=t sentence possession" for"talcing or catching or retention Of the fint paragraph, inserted "oe preceding or possession'; izt the second sentence of the 'stixtuner flounder.' deleted 'unletss obviously second paragraph substituted "taking. catching injured or deacr fmm the end of the last son- or po"ession' for 'taking or catching and tenceofthe firs% paragraph. in the last sentence retention or possession* and inserted "by any Of the second paragraph substituted "the inspector'; deleted the former last sentence of dealer' for 'such dealer" and substituted 'the the second paragraph. which read -Me provi- fish' for *such dah.' and in the fanner third sions of this section shall not apply to persons in paragraph substituted "Commonwealth" for the conduct of a raWl seafood business": and astats." deleted the third paragraph. which mad "The The, 1985 amendments. - The first 1985 Provtslons of this section shall apply only to the amendment in the first sentence of the first tidai waters of the Commonwealth which are paragraph substituted 'take, catch or po3.%"*" under the jurisdiction of the Marine Resources for 'take or catch and retain possession oi"; in commi"ion." the first sentence of the second paragraph sub- The second 1985 amendment. effiective April stituted "taking, catchina or pomession" for 3, 1985. inserted "more than ten percent or two "taking or catching and retention or pos- by count. whichever is greater, or and deleted session" and substituted "taking. catching or "which is" preceding "less than twelve" near r7l � 2S.1-50. Taking. etc., channel bass and rockfish; confiscation of such fish illegally taken. - Except as otherwise Ir ded by regulation adopted purs isalat to H 28.1-23 through 28.1-26 of t Code, it shall be unliwful for anyperson. fi or corpomtion to take, catch, and/or have in offer.for sale or- tmnsport during any one day more than two possession@ channel bass (red drum) -over thirty-two inches in length or more than two mckfish (striped bass) over forty inches in length or more than five percent or two by count, whichever Ls greater, of any rockfish (striped bass) of less than fourteen inches in length. All such measurements are to be from tip of nose to tip of tail. Any person, taking or catching more than two channel bass over thirty-two inches in length or more than two rockfish over forty inches in length or more than five percent or two by count, whichever is greater, of any rockfish (striped bass) of less than fourteen inches in length, shall immediately release and return such fish to the water at the place where the ffsh were taken or caught. Any person, fim or corpomtion who has more than two of either such h over the legal maximum size or more than five percent or two by count, whichever is greater, of any such fish under the legal minimuni size in their possession, during any one day, shall be deemed guilty of violating the provi- sion of this section. Any inspector who finds more than two such fish over the legal mazdnium size or more than five percent or two by count, whichever is greater, of any such fish under the legal minimum size in the possession of any persont firm or corpomtion shall immediately confiscate such fish. Every game warden and every other law-enforcement offlce@ of this State and its subdivisions shall have the authority to enforce the provisions of this section. (Code 1950, � 28-45-01; 1960, c. 517; 1962, c. 406; 1966, c. 294; 1968, c@ 748; 1981, (-- 579.) j 28.1-51. Size of mesh and length and depth of certain nets; pound net, haul seine and shallow water defined. - It shall be unlawful, for any person to use a pound net, head, or picket, or mullet net (that is under 200 yards g) having a er mesh 29*, stretched measure, after having been for the purpose of catching food fish. Nor shall any haul seine or mullet net be longer than 1,000 yards in length and if over 200 yards long, shall not have meski less than. 3', stretched measure, and no mullet net shall be deeper than 40 meshes, provided, further, that no license shall be issued to set a pound net or other fixed fishing device on an established and presently used haul seine stand, except that this provision shall not affect a pound net stand presently licensed as such. Any net having a funnel mouth, round mouth, or square mouth, with head exposed above water, shall be construed as a @pound net. " A "baul seine" is an net set out from the shore or shallow water. The term "shallowwater" as us% herein shall mean any waters not exceeding eight feet in depth at mean low tide. Every haul seine shall have one and the same end stationary at all times while the seine is being used, except when closing the net the stationary end may be changed. (Code 1950, � 28-46; 1962, c. 406.) � 28.1-51.1. Use of certain fulhing devices in certain waters. - It shall be unlawftil for any person to use any snatch hook, grab hook or gang hook for the purpose of taking or catching fish in the Rappahannock River below the Downing Bridge at Yappahannock, between January I and March 15 of each year. The provisions of this section are applicable to both residents and nonresidents. Nothing in this section shall apply to any licensed fixed fishing device. (1968, c. 748; 1976, a. 200; 1982, c. 632.) 28.1-51.2.- Repealed by Acts 1976, c. 47. 28.1-52. Length of fishing structures. - No single fishing structure shall have a total length greater than 1,200', except in waters on the Eastern Shore south of the entrance to Eastern Bay, where the allowable lengths of single structures shall be not more than 1,800'. Between successive fishing structures in the same row, clear and unobstructed intervals of at least 200' shall be maintained, and adjoining rows of fishing structures shall be at least 300 yards apart. In addition, a clear passageway at least 200' wide shall be maintained, reaching from ail regular navigable channels to all established boat landings. All stakes shall project not less than four feet above the surface of the water of all stages of the tide. Any stake not complying with this condi- tion shall be withdrawn. N46 net shall.be placed within 300 yards of the side or end of any fixed fishing device, unless in the same row. (Code 1950, � 28-46.1; 1954, c. 215; 1962?- c. 406; 1964, c. 393; 1974, c. 97.) 2S.1-52.1: Expired. Editor's note. - This section. which was enacted by Acts 1974, c. 434, expired by its own ternm Decembar 31. 1974. 1 2&1-45-'= Commercial fishing pier. - A. An: annual license fee in the amount of Mty dollars-shall be charged for each commercial fishing pier that is over or upon the subaqueous beds of *the Commonwealth. B. No net fishing shall be permitted within 300 yards of the sides or end of a commercial fishing pier-, provided, however, the Commission may decrease this distance 4 in the opinion of the Commission, 300 yards is considered to be an excessive distance because of the size of the body of water where the pier is located. C. The construction or erection ofa commercial fishing pier on a subaqueous bed of the Commonwealth shall be subject to the permit requirements of 62.1-3. D. For purposes of this section, a commerciial fishin gpier shall be any pier that is open to the public and used primarily to fish m the pier for a fee; provided; however, that a pier operated by a political subdivision that is open to the public to fish from the pier shall be considered to be a commercial fishing pier although no fee is charged. The provisions of this section may be enforced by any law-enforcement officer of the Commonwealth or the political subdivision in which the pier or any part thereof is located. (1976, c. 343; 1979, c. 274.) 28.1-53. Distance nets may extend across body of water or channel. It shall be unlawful to set or fish any net or nets across any river, bay, estuary, creek, or inlet which are longer than one-fourth the width of said body of water from mean low water to mean low water at the point where said net or nets are set or fished. Said net or nets shall not be set or fished more than one-half the distance across the channel of said river, bay, estuary, creek or inlet. Every game warden and every other law-enforcement officer of this State and its subdivisions shall have the authority to enforce the provisions of this section. (Code 1950, � 28-47; 1950, p. 981; 1962, c. 406; 1968, c. 748.) � 28.1-54. Concealing name or number of vessel;* carrying patent tongs, etc, while fishing for menhaden. - If any captain, master, or owner cover or conceal, or permit to be covered or concealed, the name or number of any vessel for the catching, or talcing, or conveying of fish, oysters, clams, scallops, or crabs, or shall carry or permit to be carried aboard his vessel when employed in fishing for menhaden any scrape, dredge, or patent tongs, he shall upon conviction thereof be guilty of a misdemeanor. (Code 1950, � 28-49; 1962, m 406.) � 28.1-55. Willing fish 3y means of explosives, drugs or poisons. - it shall be unlawful to kill any species of fish by means of explosives, drugs, or poisons at any time in any of the Nvaters of the Commonwealth or in any of the waters under its jurisdiction. (Code 1950, � 28-53; 1962, c. 406.) 28.1-56. Possession or sale of fish taken by means of explosives, drugs or aisons. - It shall be unlawful to have in possession, or to sell or OfTer to sely, within the Commonwealth, any fish killed or captured by means of explosives, drugs or poisons, whether the same were so killed or captured within or without the jurisdiction of Vlridri2- (Code 1950, � 28-54; 1962, c. 406.) 1 2&1-57.- Repealed by Acts 1983, c. 307. 1 2&1-57.L- Repealed by Acts 1974, c., 434. Aam= 2. AM for Mnufacture Into FIsh Meal, Oil, etr- I 2S.1-M. Food fish not to be taken, bought, or sold for manufacture into fmh meal, oil, etc.; percentage allowable. - It shall be unlawful to take, catchor round g with purse net, for the purpose of manufacture into guano, fish meal, or 0. or buying or selling for such purpose, food fish, to an amount areater than one percent of the whole catch without immediately apenin & net and turning loose any such food fish while yet alive; or for any 9 t steamer or any other vessel licensed for the purpose of menhaden fishing to catch any food fish for the purpose of marketing the same; or for any person, firm or corporation to have in its possession food fish, to a greater amount than one percent of the bulk for the purpose Of MULU&Cturing them into guano, fish meal, or oil, or for any person to use in any Tnammer any food fish, to a grea@ter amount than one percent of the bulk for the purpose of fertilizing or unproving the soil. Any person, firm or corporation and/or any captain or master of any vessel violating any provisions of this section or having 'in possession more than one Percent of food fish, among menhaden caught for the purpose of manufacturing into guano, fish meaL or oil, or buying or selling tile same for such purpose, Shall upon conviction of violating any provision of this section be guilty of a misdemeanor, and the license on such person's boat or net shall be revoked by court order for the remainder of the season. (Code 1950, � 28-60; 1962, c. 406; 1964, c. 393; 1966, c. 696.) 1 28.1-59. License to take fish with purse nets; excepted waters. - (1) Any erson, firm or corporation entitled by law to fish in any of the waters of this =monwealth, or waters within the jurisdiction of this Commonwealth, desiring to take or catch fish known.as menhaden with purse nets for the @RIDI purpose of manufacturing them into oil, fish scrap, fish meal or guano, or for any other purpose, shall first obtain a license therefor, and shall pay to the ins ector a specific license tax, which shall be in lieu of ail taxes levi@d upon su% person, firm or corporation for taking- and catching fish with purse nets, or for selling the products thereof, as follows: (a) On each sail vessel fishing with purse nets of not more than 400 meshes deep, $21.50; (b) On each sail vessel fishingwith purse net of more than 400 meshes deep, $75; 1 (c) On each power boat or steam vessel under 70 gross tons fishing with @ urse net, $3 per gToss ton, but not more than $150, and for such vesseis over 0 gross tons fishing with purse net $5 per gross ton, provided the maximum license fee for such vessels shall not be more than $600; (d) On each power boat or steam vessel of not over twenty horsepower, fishing with purse net, thirty-seven dollars and flifty cents. Such inspector shall thereupon grant a license to use such net or other device, and state in such license the name or names of the person or persons who shall use the same, and the amount of tax as prescribed by law-, and the term for which such license is granted shall begin on January I in any year and end on December 31 of the same year. It shall be lawful for a resident of this Commonwealth, except such persons, firms or corporations as may be engaged in the taking or catching of fish known as menhaden for the purpose of nmaufacturing the same into oil, fish scrap, fish meal or guano, to employ any vessel or net owned within or without this Commonwealth for the purpose of taking and catching fish. (2) (Repealed.] (3) Except as provided in subsection (4) of this section, no license granted under the provisions of this section shall be deemed to authorize fishing in the following waters, wherein it shall be unlawful to fish in the manner and for the purpose set forth m' paragraph (1) of this section: (a) In the Piankatank River and its tributaries above and west of a line beginning at the northernmost (as measured from the low-water mark) edge of land kno@vn as Gwynn's Island at or near the mouth of Kibbie Pond, thence in a northeirl direction in a straight line to the easternmost edge of highland on a'y g 0 Stingr int; and (b) In the Rappahannock River and its tributaries above and west of the R. 0. Norris, Jr. Bridge; and (c) Id the Yoric River and its tributaries above and west of a line extending northwardly from the western line of Goodwin Islands through the western line of Ellen Island to the northern bank of the York-, and (d) In the East, North, Ware and Severn Rivers and their tributaries-, and (e) In Cape Charles harbor eastward of line from the western tip of thejetty on the southern side of the channel to the west-ernmost tip of the jetty on the northern side of the channel; in Kings Creek and Cherrystone inlet iastward of a line from the western end of the jetty on the north side of Cape Charles harbor to the southern end of Wescoat Point; in Mattawoman and Hungars Creek eastward of a line from the northwesternmost tip of land in Old Town Neck to Great Neck Point; in Nassawadox Creek eastward of a line from Shooting Point to Nassa-wadox Point; in Occohannock Creek eastward of a line from Sparrow Point to the southernmost tip of Powells Bluff. in Nandua Creek eastward of a line from the northernmost point of Milbys Point to the southwesternmost point of land in Hacks Neck, said line having a true bearing of 027; in Pungoteague Creek east-ward of a line from Bluff Point to the southeasternmost point of Finneys Island; in Onancock Creek eastward of a line rrom Thicket Point to Ware Point: in Chescones.@ex Creek eastward of a line from the northernmost point of Sound Beach to the noithwesternmost point of Beach Island; in Deep Creek, Hunting Creek and Guilford Creek eastward of a line from the easternmost tip of Russel Island to Halfmoon Point to Peters Point to Simpson Point to Flood Point to Ebb Point to the mouth of Great Gut; in I'vIessongo Creek eastward of a line from South Point to North Point in the Vir inia, portion of the Pocomoke River northeast of a line from Long Point to Vi gi spar buoy "A"; in the Great Wicomico River from the mou o Whay's Creek to Sandy Point; in Dividing Creek, Prentice Creek and J 'Creek westward of aline from Hughlett Point to Jarvis Point; in Indian Creek and Henrys Creek westward of a line from the southeasternmost point of land on the eastern side of the mouth of Henrys Creek to the eastern@nost Roint of Fleets Bay Neck-, in Dymers Creekwestward of a Une from the southernmost point of G@og Island to the easternmost point of Poplar Neck; in Tabbs Creek westward of the line across the mouth of the creek at its narrowest point; in Horn Harbor and Dyer Creek westward of a line from the southernmost tip of Beach Point to the northernmost point on the south side of the mouth of Dyer Creek, in Back Creek, Clarkston Creek, Chisman Creek, Poquoson River, Bennett Creek, and adjacent waters westward of a line from the southeasternmost point of Goodwin Islands to the westernmost point of Cow Island; in Back River westward of a line &om Plumtree Point to the westernmost point of Northend Point; in Little Creek southward of a line from the north point of the west jetty to the north point of the east jetty-, in Lynnhaven Bay southward of the Lynnhaven Inlet Bridge on U.S. Route 60. (4) Only during the period from the third Monday in May through the third Friday in November, licenses gr=ted to vessels under seventy gross tons in accordance with subsection (1) (c),of this section shall in addition authorize fishing in the following waters: in the Rappahannock River eastward and southward from a line extending from Towles Point to Burnham Wharf and from Orchard Point to Towles Point; in Dividing Creek eastward from a line extending from Jarvis Point to Ditchiey Pump House, in Indian Creek eastward from a Una directly across the creek at Rappahannock Oyster Company; in Dymers Creek eastward from a line' directly across the cre;k at the eastern end of Standard Products dock. (Code 1950, � 28-61; 1960, C. 517; 1962, c. 406; 1966, c. 695; 1974, c. 313; 1978, cc. 347'. 358; 1979, c. 274; 1980, z 605; 1982, c 461.) Cram reference. - As to season for vessels menhaden for purposes other thanuse, as dsh of low than TO Smso tons to take or mitch meal or oil. see 1. 28.1-65. 1. 1 28.1-60. Nonresidents generally. - (1), (2) [Repealed.] (3) License for taidngmenhaden ffsh. -A nonresident person, firm or corpo- ration may take or catch the fish known as "menhaden," for the purpose of converting the same into oil, fish scrap, fish meal or guano; provided such person, firm or corporation has applied for and obtained l.icense to take and catch such fish and in accordance with the followinq requirements. (4) Application for license; aBldavit required. - Such nonresident person, firm or corporation shall apply to the Commissioner of Marine Resources for such license, at the office of the Commissioner. Before granting such license the Commissioner shall require the applicant applyingfior the sarme to disclose by written affidavit- (a) The true name or names of the person, persons, firm or corporation owning the purse net, seine, vessel or watercraft, and all the apparatus thereunto belonging. for which the license is desired; and if it be a firm, the true names and addres4-i of all the members of such firm; and, if a corporation, the location of the principal office and the names and addresses of the officers thereoL (b) The name of each and ev ery vessel, steamer or other watercraft, and the port in which the same is registered, for which such license is desired. (c) That during the period of the license the owners and all persons employed by them will not violate any of the laws of this State in regard to the taking and catching of fish in the waters thereof. Should the Commissioner of Marine Resources be fully satisfied that the statements set forth in the affidavit are true and bona fide he shall then grant a license to such applicant, upon the applicant's payment of the same license fee as set forth for residents * � 28 1-59. (5) Service of process. - Tivery ;@@h licensee -shall"'by written power of' attorney appoint the Secretaryof the Commonwealth and his successors in office, its agent, upon whom shall be served all lawful process against or notice to, such licensee, and who shall be authorized to enter an appearance in his behalL. The service shall only be made uppn the Secretary of the Common- wealth, or, in his absence, upon the person in charge of his office, and shall be made i d i1cate. A copy of such power of attorney, duly certified and authen- ticated sh be filed with the Secretary- of the Commonwealth, and copies thereof duly certified by him shall be received as evidence in all the courts of this State. No judgment shall be entered a ainst the licensee until after the st process has been served as set forth for at Fea' ten days. Whenever lawful process against, or notice to, any such nonresident person, firm. or corporation shall be served as hereinaboveprovided for, the Secretary of the Commonwealth shall forthwith mail a copy of such process or notice to such nonresident person, firm or corporation. For the first process or notice to be so mailed, the Secretary of the Commonwealth shall collect two dollars and fifty cents, and for each additi nal ss or notice to be so mailed the sum of 10 fifty cents, which shall be paid by tZe mpiaintiff at the'time of such service, and the same shall be recovered by him as a part of the taxable costs, if he prevails in the suit or action. A jUdgment. decree or order of the court entered or made against any such nonresident person, Mm or corporation shall be as valid -and binding on such nonresident person, fi= or corporation as if such nonresident person, firm or cor ration had been a resident and. served with process or notice therein. (9*) Penalt7 for violation. - Any person, firm or corporation violating any of the provisions of this section shall be guilty of a misdemeanor. (Code 1950, 128-624 1962, c. 406; 1976, c. 384; 1978, c.- 347.). Wices not& - This section was amended tic and resident corporations but refined by Acts 197:3@ c. 471. The 1973 act, which was nonresident corporations, there was dis=im. made iffectivo July 1 1974. and provided that Ination in contravention of the Fourteenth it should e*re at @m@ght an that date unless Amendment assurance of equal protection of earlier reenacted. was repealed by Acts 1974, c. the laws. Seacoast Prods- Inc. v. Dougla.% 432 96. effwdve March 22, 1974. and therefore F. Suprp. I (E. D. Va. 1975). aird, 431 U.S. 265, never went into effect. 97 S. CL 1740, 52 L Ed. 2d 304 (19T7). Law Review. - For survey of constitutional This section and repealed 1 28.1-81.1 law for the year 1976-77, set 63 Va. L Rev. were preempted, by the federal Enrollment 1385 (1977)..For article, 'State Management of and Licensing Act rnsofar as these sections Marine Fisheries After the Fishery Conserva- subjected federally licensed vessels owned by tion and Management Act of 1976 and Douglas nonresidents or aliens to restrictions different Y. Seacoast ?roducts, Inc-" see 19 WaL & Mary &om those applicable to Virginia residents and L Rev. 17 (1977). American citizen& they must WI under the Discrimination against nonresident cor. supremacy clause. Dougias v. Seacoast Prods., porations under former section. - Since. Inc.. 4.31 U- a 265, 97 S. Ct. 1740, 52 L Ed. 2d under this section prior to the 1978 amend- 304 (1977). decided under this section as it stood ment. Ikenses were granted to Virginia datnes- before Lhe 1978 amendment. 28.1-61. Application for license for resident to catch fish for manu- facture into fish meal, oil, etc. - (1) Genemi provi .si.ons. - Every person, fim or corporation owning or holding by lease or charter a purse net, seine, or vessel of any descriptioa to be engaged in catching fish in any of the waters "of this Commonwealth, or waters within the jurisdiction of this Commonwealth, to be manufactured into fish meal, oil, or guano, or for any other purpose, shall make application to the Commissioner of Marine Resources through the ,inspector for the district* in which is located the factory where such are to be manufactured, or in which the applicant resides or has its principal office, for a license to take and catch fish within the waters of this Commonwealth, or waters within the jurisdiction of this Commonwealth, for the purpose afore- said. (2) Who shaU make appUcation. - If it be a corporation applying for such license, the application shall be made by an officer or one of tlie directors 'of such corporation; if the applicant be a partnership, the application shall be made by a general artner thereof; if the applicant be a joint venture or other firm, by a member t"ereof; if the applicant be an individual, by such individual. . (3) Foz= and contents of applicatiozi. - The application shall be in writing@ shall be sworn to by the applicant before a notary public or other person authorized to administer oaths, and shall disclose: (a) The true nnme or names of the persons, firm, or corporation owning the purse net, seine, or vessel, and ail the apparatus thereunto belonging, together with the true name or names of any persons, firms, or corporations holding the same by lease or charter, for which such lice ftse is desired; and, if it be a firm, the true names of all the members of such r=; and, if it be a corporation, whether the same be a domesdc or foreign corporation, and the location of the principal office thereoL @) [Repealed.] W The name of each and every vessel, steamer, or other waftcraft for which such license is desired. .,(d), (e) [Repealed.] W The place where the factory which is to manufacture the fish so taken and caught into fish meal, oil, or guano or for. any other purpose, is located. ' . (g) That, during the period of this license, the applicant will not violate 341Y of,the laws of this State in regard to the taking and catching of fish in the t r3 th -reoL (4) [Repealed.] (Code 1950, J 28-63; 1962, c. 406; 1966, c. 684; 1978,* c. 347.) Editor's note. - This section was amended earlier reenacted.-wa3 repealed by Acts 1974. c. by Acts 1973,@ c. 47L The 1973 act. which was 96, effective Ma=h = 1974, and. therefore made e5ective July 1, 1974, and provided that never went into eirect. it should expire at midnight on tIuU date unlew 23.1-6Z Action of Comniissioner on such application-, transfer of license of disabled vessel;- delegation ofauthority to inspectors; appeals from actions of inspectors. - Should the Commissioner of Marine Resources be satisfied that the disclosures required by � 23.1-61 have been duly made, and that the application conforms in other respects to the provisions of said section, and upon payment of the license tax specified in � 28.1-59 the inspec- tor through whom, or in whose district the application was made shall issue to the applicant a license for each of the purse nets, seines, vessels, steamers, or otherwatexcr ft specified in the application, which license shall state the name of the licensee and the name of the vessel, steamer, or other watercraft, licensed-- If anv vessel, steamer, or other watercraft so licensed becomes disabled for use dw@ng the period of such license, the licensee may, with the consent of the Commissioner of Marine Resources, hire or charter a vessel, steamer, or other craft belonging to a nonresident to take the place of the one so disabled for the unexpired period of such license; in which case the inspector shall transfer the license issued for the idsabled vessel, steamer, or other craft to the one so hired or chartered without requiring any additional license therfor, for which trans- fer the fee shall be one dollar. The Commissioner of Marine Resources may delegate to the various insepec- tors so much or all of his authority under this section as he may deem expe- dient; provided, however, that any person, firm, or corporation agrrieved by any action of any inspector exercising such delegated authority shall have the right appeal to the Commissioner of Marine Resources for a review and correction of the actions of such inspector. Such appeal may be made by mailing a statement of the inspector's action, together with the appellant's objections thereto and his grounds for such objections to the Commissioner of Marine Resources at the office of the Marine Resources Commission. Upon receipt of such appeal, the Commissioner of Marine Resources shall forthwith notify the oyster inspector involved, who shall, within three days, deliver to the Commis- sioner of Marine Resources all papers in his possession concerning the subject matter of the appeal, together with a written statement of his actions in the premises and the grounds therefor. The Commissioner of Marine Resources shall issue his ruling granting, transferring, refusing, or refusing to transfer the license or licenses involved within ten days after the receipt by him of such appeal (Code 1950, _ _ 28-64, 28-65; 1962, c. 406.) Editor's note. - This section was amended by Acts 1973, c. 471. The 1973 act, which was made effective July 1, 1974, and provided that it should expire at midnight on that date unless earlier reenacted, was repealed by Acts 1974, c. 96, effective March 22, 1974, and therefore never went into effect. _ 28.1-63. Appeals from actions of Commissioner. - Any person firm, or corporation aggrieved by any action of the Commissioner of Marine Resources taken under the provisions of _ 28.1-62 shall have the right to petition the circuit court of the county, or the corporation court of the city, in which is located the factory where the fish were to be manufactured, or in which the applicant resides or has its principal office for a review and correc- tion of the ruling of the Commissioner of Marine Resources as provided in Chapter 2 ( _ 28.1-23 et seq.) of this title. (Code 1950, _ 28-64; 1962, c. 406.) Editor's note. - This section was amended by Acts 1973, c. 471. The 1973 act, which was made effective July 1, 1974, and provided that it should expire at midnight on that date unless earlier reenacted, was repealed by Acts 1974, c. 96. effective March 22, 1974, and therefore never went into effect. _ 28.1-64. Penalty for violation of _ _ 28.1-61 through 28.1-63; forfeiture of fishing gear, etc. - If any person, firm or corporation use or employ any purse net, seine, vessel, steamer or other craft for the purpose of taking and catching fish in the waters of this Commonwealth, or in the waters within its jurisdiction, or in waters under its joint jurisdiction, to be manufac- tured into oil, fish scrap, fish meal, or guano, or permit the same to be used or employed by another for such purposes, without first obtaining a license therefor as hereinabove provided; or if any person swear falsely in making application for the certificate aforesaid, or otherwise violate any of the provi- sions of _ _ 28.1-61 to 28.1-63 such person, firm or corporation shall be guilty of a misdemeanor. 87 Any net, pot, or other fishing device or gear used in the violation of any of the provisions of H 28.1-61 through 28.1-63 shall be forfeited to the Common- wealth, such forfeiture to be enforced under the Trovisions of Chapter 8 0 28.1-184 et seq.) of this title. Any property seize under authority of this article shall be held to await the proceedings of information prescribed by such chapter, and upon such seizure being made, the officer or other person making the same shall forthwith give notice thereof to the Commonwealth's attorney whose duty it is to file such information. (Code 1950, � 28-66; 1962, c. 406; 1981, C. 5M) � 28.1-65. Closed season for menhaden fishing; forbidden nets. - Except as provided in � 28.1-6-5.1, it shall be unlawful, for any person, firm, or corporation to take or catch with a purse net or purse seine in the waters of this Commonwealth, or waters within its jurisdiction, menhaden fish to be mgLnu- factured into fish meal, oil, or guano or for any other purpose, between theday following the third Friday of November and the day preceding the third Monday in May of each year; and it shall also be unlawful for any person, firm or atia to use in said wa for the purpose of taking or catching meMdoe' n F for the purpose aforesaid any purse aet or other net having, when made, a stretched mesh of less than 1-Y4*, provided, however, that an and after the third Monday in May, 1979, it shall be unlawful for.any person, firm, or corporation to use any purse net or other net for the aforesaid purposes having a stretched mesh of less than 13/4'. Any person, firm, or corporation viti'a any of the DrovW*0113 of this section shall be deemed guilty of a Yn 4 nor. (Code f950, H 28-64, 28-67; 1962, c. 406; 1966, c. 684; 1972, c. 424; 1976, c. 384, 1978, c. 347; 1982, c. 461.) f 28.1-65.1. Season for vessels of less than seventy gross tons -to take or cath menhaden for purposes other than use as fish meal or oil. - From the firstlylonday of March to, but notincluding, the thirdMonday of May, it shall be lawful for vessels with a gross weight of less than seventy tons to take or catch with purse net menhaden for purposes other than use as ash meal or oiL (1982, c. 461.) 1 2&1-66. Processing of hehing which is unfit for human consumption. - Notwithstanding anZ other provision of this article, any person catching herring in pound nets., p nets, haul. seines, and other similar nets, excluding trawl and purse nets, may sell such herring to be manufactured into fish meal, fish oil, or guano, provided that said herring is or has become unfit for human consumption or for processinff Mito food for human consumption. Any manufacturer purchasing saidlhei;ing which is or has become unfit for human consumption or for processing into food for human consumption, may manufacture said herring into fish meal. fish oil, or guano. (1962, c. 406.) A== & Irolls, Trawl Nets and Drag Nets. 28.1-67. Trolls, trawl nets and drag nets prohibited. - Except as may be provided in � 28.1-69.1 of this Code, it shall be unlawful for any person, firm or corporation to operate, for the purpose of taking or catching rish, a troll or trawl net, drag net, or similar device drawn through the waters by a vessel, boat, or other craft in any waters of the Commonwealth, or waters under the jurisdiction of the Commonwealth, except a regular licensed haul seine, autho- Iss rized by law; or to buy, sell, or offier for sale any fish taken or caught in the waters of the Commonwealth, or under the jurisdiction of the Commonwealth, with a troll or trawl net, drag net, or similar device. (Code 1950, � 28-68; 1962, c. 406; 1973, c. 119; 1979, c. 18.) � 28.1-68. Trawling boat not granted license for other fishing device. - No vessel, boat or other craft shall have a license for any other net or fishing device granted to be used or employed on a boat equipped for trawling, and having thereon a trawl net, except as hereinafter provided. (Code 1950, � ;8.69. 1962, c. 406.) 1 28.1-69: Repealed by Acts 1979, c. 18. Cross reference. - For present section covering the subject matter of the repealed see- tim -me � 28.1-69.1. 28.1-69.1. Fishin with trawl net within three-mile limit. - A. It shaU be unlawflil to catch fish within the three-n3dle limit of the Virginia Atlantic shoreline with trawl nets or similar devices. However, the Marine Resources Commission may issue licenses to residents or nonresidents to trawl within such three-mile limit from Cape Charles north to the Maryland line, except the months of September and October and from 36* 40' north. latitude south to the North Carolina line at any time, and from Cape Henry south to 36* 40' north latitude between October 1 andMay 1 of each year. B. The Comyni ion, whenever it deems it advisable to do so to protect or promote the fisheries, may close and open the area, or any part.thereof, de- scribed in paragraph A hereof for trawling or restrict the manner, method, size, and season of catch. C. In the exercise of its authority granted pursuant to this section, the Commission shall cause notice of any such action to be taken to be posted in two or more public places in each locality affected at least five days prior to the Commission meeting at which such action may be considered. Such publication shall be in lieu of any other notice and shall be the only procedure required by the Commission in exercising such authority. (1979, c. 18; 1981, c. 52; 1983, c. 307.) f.28.1-70. Liceim fee. - A license to fish in the area with a trawl net or ar device may be granted upon payment of a fee of $100 per annum, for boat so employed, and -no part of this fee will be refiinded should the area be closed at the order of the Comrni sioner. (Code 1950, � 28-71; 1960, c. 517; 1962, c. 406; 1974, c. 85; 1979, cr- 18, 274.) Editor's note. - This section was amended earlier reenacted, was repealed by Acts 1974, c. by Acts 1973, r- 411. The 1973 act, which was 96, effective March 22, 1974, and therefore made effective July 1. 1974. and provided that never went into e0acL it should expire at midnight on that date unless 1 28.1-71. Prima facie evidence of violation. - The finding of any vessel, boat, or other craft in the waters of the Commonwealth, or in the waters under the joint jurisdiction at the Commonwealth, equipped for trolling or trawling, having a trawling net, drag net, or a similar device abo a-rd wiX fresh or live fish on deck or in the hold thereof, or in any portion of such vessel, boat or craft, shall be prima facie evidence that the operator or o erators and master and members of the crew of the vessel, boat or other craT are guilty of trolling or trawling. (Code 1950, � 2S-72; 1962, c. 406.) _ 28.1-72. Exemption from article. - Nothing in this article shall be construed as prohibiting the transportation of fish caught by means of troll or trawl net outside of the territorial limits of Virginia and troll or trawl nets used incident thereto, into Virginia ports to be placed upon the market. (Code 1950, _ 28-75; 1962, c. 406.) _ 28.1-72.1. Forefeiture of fishing gear, etc. - Any net, pot, or other fishing device or gear used in the violation of any of the provisions of this article shall be forfeited to the Commonwealth, such forefeiture to be enforced under the provisions of Chapter 8 (_ 28.1-184 et seq.) of this title. Any property seized under authority of this article shall be held to await the proceedings by information prescribed by such chapter; and upon each seizure being made, the officer or other person making the same sahll forthwith give notice thereof to the Commonwealth's attorney whose duty it is to file such information. (Code 1950, _ 28-75; 1962, c. 406; 1981, c. 525.) ARTICLE 4. Marking of Boats, Nets and Other Devices; Restrictions in Certain Waters. _ 28.1-73. License plates or tags generally. - It shall be the duty of the Marine Resources Commission to provide metal license plates or tags when required by statute or regulation of such design or designs, with such letters and/or figures stamped or painted theron, as may be deemed necessary or proper by the Commission. (Code 1950, _ 28-76; 1962, c. 406; 1966, c. 684.) Cross reference. - As to fishing in Pocomoke Sound and Tangier Sound, see _ 28.1-128.1. As to fishing in Chesapeake Bay immediately west of Tangier Island, see _ 28.1-128.2. Editor's note. - This section was amended by Acts 1973, c. 471. The 1973 act, which was made effective July 1, 1974, and provided that it should expire at midnight on that date unless earlier reenacted, was repealed by Acts 1974, c. 96, effective March 22, 1974, and therefore never went into effect. _ 28.1-74. Inspectors to distribute license plates or tags; duty to attach to boats, nets or other devices. - Such metal license plates or tags shall be furnished by the Marine Resources Committee to the various inspec- tors, who shall furnish the same to such licensee who is required by statute or requlation to attach and display such metal license plate or tag. If the license be for a haul seine or purse net, the licensee shall securely attach and display the metal license plate at a conspicuous place on the starboard side of the boat used in fishing such device. If the license be for a pound net, fyke net, gill net of any type, drift net or other similar device, for the taking of fish, the licensee shall securely attach and display the metal license plate on one of the offshore stakes or buoys of the fishing device. Each of the aforesaid ents set in the water shall be marked by a buoy or stake easily visible on the surface which shall display the metal license plate which was issued by the inspector. Any of the aforesaid nets in the water not identified in this manner may be seized by a duly authorized inspector to be held for any forthcoming legal proceeding. (Code 1950, _ 28-77; 1962, c. 406; 1964, c. 393; 1966, c. 684.) Editor's note. - This section was amended by Acts 1973, c. 471. The 1973 act, which was made effective July 1, 1974, and provided that it should expire at midnight on that date unless earlier reenacted, was repealed by Acts 1974, c. 96, effective March 22, 1974, and therefore never went into effect. 90 � 28.1-75: Repealed by Acts 1966, c. 684. � 2&1.76. Penalty for failure to attach plate or tag or for permitting its removal. - Any person, licensed to engage in the fish or shellfish business in this State, who shall fail or refuse to pro erly attach such metal plate or tag to the boat, Found -net, fyke net or gill net lor which he has procured a license, or who'shal remove or suffer the same to be removed from such boat, pound net, fyke net, gill net or other device, shall be guilty of a misdemeanor. (Code ;950p'� 28-78; 1962, c. 406,.) 29.1-77. Duty to apply for new plate or tag in case of loss. - Should, such metal plate or tag be removed or destroyed by accident or by the force of the sea, or in any other casual manner, it shall be the duty of the person holding the license to operate, conduct and maintain such boat, haul seine, pound net, fyke.net, purse net and other device to at once ap I W the inspector of the district in which such boat, haul seine, pound net, @ze Onet, or other device is located to issue to him a new plate or tag, which application must be made within twenty-four hours after the discovery of the destruction or loss of the original plate or tag-, and any person failing so to do for twenty-four hours after the discovery of the loss of any such plate or tag shall be guilty of a misdem. baeanor. (Code 1950, � 28-79; 1962, c. 406.) j -, 28.1-78. Exemptions from article. - Nothing contained in this article shall be construed to apply to boats used purely for pleasure purposes, or for the taking of flish or shellfish for family use only by rod and line or with. hand Unes. (Code 1950, � 28-80; 1962, c. 406.) �'2&1-79. Removal of abandoned pole or stake; stakes as identifica- tion nWkers; revocation of licen"s for failure to remove stakes. - Any person, firm or corporation fishing a pound net or any otherre fishing device requiring the. use of fixed poles or stakes, shall remove such abandoned Ooles or stakes from the bottom of the water where located-, provided that one pole or stake may be left standing at least four feet above mean high water at old stands as an identification marker. Abandoned poles or stakes are considered to be such polts or stakes which are not used f6r fishing. TheCommi ion may. revoke any or allfishing licenses issued to such person, firm or corporation, as set forth in � 28.1-36, if abandoned poles or stakes are not promptly'removed. If any person, firm or corporation fails to remove such poles or stakes, he shall be guilty of a misdemeanor and punished as provided in � 18.2-12 -of the Code of Virginia. The person, firm or corporation responsi- ble for removal of such poles or stakes shall be the person, firm or corporation who hold the last license for such fishing device. (1962, c. 406; 1964, c. 393.) Editor's note. - This section was amended earlier reenacted, was repealed by Acts 1974. c. by Acts 1973, c. 471. The 1973 acI6 which was 96, effective March 22, 1974, and therefore made effective July 1, 1974. and provided that never went into effect. it should expire at midnight an that date unless � 28.1-80. CWckaho=ny river in Charles City County. It shall be unlawful for any person, firm, corporation. or association to take or catch fish or shellfish, on orwithin 500 yards below the Chickahominy Dam at Walkar's, on the Chickahominy river, in Charles City County, Virginia, other than with rod and reel and hand line. (Code 1950, � 28-88.4; 1950, p. 471; 1956, c. 325; 1962, c. 406.) 2&1-81. Rappahannock river and certain of its tributaries. It shall be unlawful for any person, ru-m or corporation to use any haul seine within 100 yards of mean low-water mark, or 3' of water in depth at mean low water, whichever shall be closer to the shore, or over any oyster ground held under lease from the Commonwealth and marked as required by law in the waters ,of the Rappahannock River east of Downing Bridge at Tappahannock, and in its tributaries east ofDowning Bridge. The restriction hereinabove set forth as to hauling seine within a certain number of feet of shore or in water of a certain depth shall be inapplicable where the unrevoked written consent of the adja. cent landowner has been obtained. (Code 1950, � 28-89; 1962, c. 406.) TAKING OF OYSTERS Taking Oysters Generafly 28.1-92. Seawn for ta king oystei*s from public rocks. -A. The season for takin oysters from the nadn-al, or * ublic oyster beds, rocks, or shoals in any of the waters of this Commonwealg shall be as follows: By shaft tongs or by hand: (1) James River seed area, from October first until July first; the Commis- sion may, however, set an alternate date, no earlier than June drst, for the completion of this season in any year in which such an action can be expected to imp the quality of seedoysters. (2) [=aled.1 (3) All other areas of the waters of the Commonwealth, from October first until June fIrst. By patent tongs: (1) [Repealed.] (2) Anywhere in the Commonwealth where patent tongs are not prohibited, from October first to March first; the Commission may, however, set an alter- nate opening date, no later than November E=t, for any area in the State Where the, use of patent tongs is permitted, when in its opinion the condition of the oyster warrants. It shall be unlawful for any person to take or catch oysters from any of the natural, or public rocks, or shoals of this Commonwealth at any time other than that provided above except the- date for removal of shellfish from restricted areas as set forth in Chapter 7 0 28.1-175 et seq.) of this title and eccept as provided in H 28.1-85 and 28.1-85.1. The having of patent tongs and oysters in a boat at any time other than the season for patent tongs as specified above, shall constitute prima facie evidence of violating this section. Ifany person be found upon the natural, or public rocks, beds or shoals of this Commonwealth taking oysters or with -ton gs or other device for taking or catching, ofoysters otherthan during the season listed above, it shall constitute prima facie evidence of violation of this section. B. In the exercise of its authority granted pursuant to this section, the Commission shall cause notice of anv such action to be taken -to be posted in two or mom imblic iolaces in each locility afLected at least five days prior to the Commission7meetiig at which such action may be considered. Such publication shall be in lieu of any other notice and shall be the only procedure required by the Commi inn in exercising such authority. (Code 19.50, � 28-92; 1962, c. 406; 19r*4, c. 393; 1970, c. 726; 1977, c. 387; 1978, t-- 208; 1980, c. 32; 1981, c. 72.) J 28.1-83. Probibited area for patent tongs..- It shall be unlawful for anyone to use or employ patent tongs for the purpose of taking or ca - oyiters from the natiiral or public rocks, beds or shoals of the Commonweal in the following areas: (1) In the Piankatank River and its tributaries above a line beginning at the extreme westernmost point on a wooden jetty (point "A'I on the south property line of lot 9-A owned -by E. B. Bottom and lot 8-A of Gwynn's Island E state subdivision, Mathews County (Deed Book 55; page No. 279), said point located north 5r 07', west 176.00 feet from the east side of said lot 8-A and 9-A. Said point is located on the extreme northwest section of Gwynn's Island known as Cherry Point, Mathews County-, thence 71* 00' west approximately 10, 140 feet, to a survey point known as the Stove R, located on the extreme south end of Stove Point, Middlesex County-, thence north 38* 00' east approximately 14,960 feet to point "X," or the eastgable of hotel, located on the extreme easternmost R Mt of Stingray Point. Middlesex County. This area is to include all of ankatank River and its tributaries frofn Cherry Point of Gwynn's Island to Stove Point in Middlesex Countv, and all of the area of Jackson Creek and its tributaries from Stove Point to Stingray Point;. qc@ (2) In the Rappahannock River and its tributaries, above a line drawn from the southernmost point of Belle Island, which line begins at latitude 37" 46' 37" no&.h, longitude 176* 35* 40" west; thence south 27 47' 25.827 west 14,292.65 feet to the easternmost point of Punchbowl Point, which is located at latitude 37* 44' 32' anti longitude 76* 37' 03' west; provided that in the area of the Rannahannock where the use of patent tonging is permitted, the Commission 3@_Z have authority to close or open such area, or any part, for patent tonging, and restrict or limit the manner, method, and amount of harvest in such area. In the exercise of its authority granted pursuant to this paragraph, the Com- mission shall cause notice of any such action to be taken to be posted in two or more public pieces in each locality aff6-cted at least five days prior to the Commission meeting at which such action may be considered. Such publication shall be in lieu of any other notice and shall be the only procedure required by the Commission in exercising such authority-, (3) Beginning on the south shore of the James River at Pig Point, located at the east mouth of Nansemond River opposite the westernmost tank of two tanks on Pig Point; thence in a northerly direction to a light at the extreme north end ofabandoned Pig Point pier-, thence in a northerly direction to a fish trap buoy designated as NZ "H11" located on the northeast side ofthe Fish Trap Reservation; thence in a northwest direction along the northeast boundary of the Fish Trap Reservation along a line of buoys designated as C "I" and C "H15"; buoy C 'HI5" being located on the east side of an area set aside in subsection (5) of this section prohibiting the use of patent tongs in James River, thence following in a southwest direction along the area described in subsec- tion (5). of this section to Cooper's Creek, located on the south side of James River in Is-le of Wight County. In addition to this described area, the use of Ratent tongs shall be prohibited in Batten Say and its tributaries, Chuckatuck Creek and its tributaries, and Namsemond. River and its tributaries; (4) In the Mobjack Bay and its tributaries above a line beginniing at a point Orland on the south side of the mouth of 'Brown's Bay, Gloucester County; thence in a northeasterly direction across Mobjack Bay to a point of land on the northwest side of the mouth of Pepper Creek in Mathews County. This area, as described, is to include ail of NAobjack Bay and its tributaries from Brown's Bay to Pepper Creek; (5) In the James River and its tributaries above a line drawn from Cooper's Creek in Isle of Wight CounVI on the south side of James River'to a line in a northeasterly direction across James River -to, the Newport News municipal water tank located on Warwick Boulevard bet-ween 59th .5treet and 60th Street in the city of Newport News; (6) In the Corrotoman River above a line,beginning at point on.Corrotornan Point, which line begins at latitude 37* 39' 56" north, longitude 760 28' 21* west; thence north 70* 02' 46-79*; thence west 4,338-37. let to a point on Millenbeck Point which is located at latitude 37* 40' 10' north and longitude 76* 29' 12' west. This line, as described, is to include all of Corrotoman River and its tributaries from Corrotoman Point to Millembeck Point, provided that in the area of the Corrotoman River where the use of patent tonging is permitted, the Commission shall have the authority to close or open such area, or any part, for patent tonging, and restrict or limit the manner, method, and amount of harvest in such area. In the exercise of its authority granted pursuant to this paragraph, the Commission shall cause notice of any such action to be taken to be posted in two or more public places in each locality affected at least five days prior to the Commi ion meeting at which such action maybe considered. Such publication shall be in lieu of any other notice and shall be the only procedure required by the Commi sion in exercising such autliority. (Code 1950, �� 28-93, 28-93.1, 28-93.2; 1954, c. 38; 1958, cc. 182, 476; 1960, c. 517; 1962,,c. 406; 1968, m 747; 1973, c. 208; 1980, c. 325; 1981, c. 52.) 9,3 28.1-84. M-gwilnum weight for patent tongs. -'It shall 'be unlawful for any person to use patent tongs exceeding 100 pounds in gross weight including any attachments thereto or tkiereon, exciuding rope for the taking or catching of oysters. The teeth of said patent tongs shall not exceed four inches in length. The having of@a pair of patent tongs exceeding this weight and oysters in a boat at the siarn time, shall.constitute prima facie evidence of a violation of this section. (1262, c. 406.) 28.1-8& Opening azk cl osing public rocks. - A. The Commission or Commissioner with- the approval of the Commission, may, whenever it* or he deems it advisable so to do to protect or promote the growth of oysters, close and open any area or restrict the manner or method of taking oysters in any area,of the natural, or public, rocks, grounds, or shoals for purposes of re letion and rehabi -M on, and ish seed beds and plant shells anT other culch thereon, or take any other restorative measures which it or he may deem besL Said area may be closed for an entire season, or part or season, or may be closed for so many days per week. Before closing any such area, notice- of such closing shall be posted by the inspector or other officer in two or more public places in the district in which the area is located for at least five days, and in such event the area shall be buoyed or marked by signs by a uniform system of buoyj or sigm indicating that such area is closed and that oystering by- any means is prohibited therein. Any area closed under the provisions of this section may be reopened at any time by the Commission or Commissioner with the approval of the Commission, but any area which has been closed and reope!aed at a later time may be closed by the Commission, or Commissioner at time without notice. In the exercise of its authority granted pursuant to this section, the Commission or the Co * ioner shall cause notice of any such action to be taken to be posted in two or more public places in each locarity a&cted at least five days prior to the Commission meeting at which such action may be con- sidered. Such publication shall be in lieu of any other notice and shall be. the only procedure required by the Commission in exercising such authority.. (Code 1950, � 28-98.1; 1956, c. 313; 1962, c. 406; 1981, c. 52.) Editor's note. -This section was amended earlier reenacted. was repealed by Acts 1974. c. by Acts 1973, c. 47L The 1973 act. which was 96, effective Ilarch 22. 1974. and therefore made eiTective july 1. 1974, wd provided that never went into eirect. it should expire at midnight on that date UALOW � 2&1-85.1: Repealed by Acts 1985, c. 125. j 2s.1-m: Repealed by Acts 1966, c. 684. @-4 OYSTER RECORD AND TAXES _ 28.1-87. Record of oysters handled; tax. - All purchasers, planters, packers, importers of shucking stock or shippers shall keep accurate and item- ized records, in a manner and form approved by the Commission, which shall contain (i) the number of bushels of oysters, before shucking, that come from public grounds, private gorunds, or are imported; (ii) from whom purchased or obtained; (iii) the number of bushels and price paid per bushel for each seller; and (iv) if from public ground, from what general area therof. Any seller accepting cash in payment for his oysters shall be required to sign an acknowledgment of the transaction and shall receive a copy of such asknowledgment form the buyer. Such record shall be open for inspection by the Commissioner and a copy available to him or any employee designated by him to inspect or receive the same; and a failure to keep such a record shall be unlawful and shall be punishable as hereinafter provided. The purchasers, planters, packers, importers of shucking stock or shippers shall pay a tax, to be known as inspection tax, to the Commonwelath of Virginia, or to the person authorized to receive the same, of three cents for each bushel of oysters taken, caught, imported, or purchased, it being the intent and purpose of this section to impose a tax upon all oysters taken, caught, imported or purchased, except those which are to be replanted in the waters of the Commonwealth. The proceeds from this tax shall b epaid into the general fund of the state treasury. The tax shall be collected by the Commissioner or any employee designated by him to collect such tax from the owner, master or operator of any boat or vessel, motor vehicle, or the purchaser, importer or shipper, regardless of whether he is a packer, planter or an individual working on public grounds, immediately when each boat, vessel or motor vechicle is load or arrives in the State when the yoysters do no go to a shucking or packinghouse. If the oysters are going to a shucking or packinghouse located in the Commonwealth of Virginia, then the tax shall be collected from the shucking house or packer. If the tax has not previously been paid, the tax shall b epaid by such purchaser, packer, importer or shipper within the first fifteen days of each month immedia- ately following the month in which such oysters are shucked, packed, shipped or marketed. (Code 1950, _ 28-100; 1960, c. 517; 1962, c. 406; 1966, c. 684; 1975, c. 199; 1976, c. 255.) Editor's note. - This section was amended by Acts 1973, c. 471. The 1973 act, which was made effective July 1, 1974, and provided that it should expire at midnight on that date unless earlier reenacted, was repealed by Acts 1974, c. 96, effective March 22, 1974, and therefore never went into effect. _ 28.1-88. Right to inspection of oysters when load on conveyance. -The Commissioner or any inspector, deputy, or captain of any oyster police boat of this State shall have the right at all times to inspect any of the oysters taken or purchased as aforesaid, loaded on any boat, or vessel, motor vehicle or other conveyance or sold to any person, firm, or corporation wherever they may be, as to the quality or measurements. (Code 1950, _ 28-101; 1962, c. 406.) 95 _ 28.1-89. Export tax; disposition of funds; permit to carry, etc., oysters out of State. - In addition to all other taxes imposed by law, there shall be an export, or out-of-state tax of twenty cents per bushel imposed on all oysters, including seed oysters, taken from any of the public oyster grounds of this State and shipped unshucked from this State. A record shall be kept on all out-of-state shipments. The provisions of this section shall not be applicable to the sale of seed oysters to the Potomac River Fisheries Commission. All funds received or collected pursuant ot this section shall be paid into the state treasury to the credit of the Public Oyster Replenishment Fund for the purpose of such fund. It shall be unlawful for any person, firm or corporation to carry, or attempt to carry, or to buy for the purpose of carrying out of this State any size or kind of oysters taken from the natural rocks, beds or shoals in the waters of this Commonwealth until he has first obtained for each cargo a permit to do so from an inspector and has paid to the inspector the required export, inspection and replenishment taxes with buyer's report. In place of a cargo permit, the Com- mmissioner may grant a monthly permit at the beginning of each calendar month to a packing or shucking house located in the Commonwealth of Virginia, provided that the packing orr shucking house is in compliance with the provisions of this section. The permit shall state the name of the boat or license number of the motor vehicle; the name and address of the owner and/or master of the boat or owner and/or operator of the motor vehicle. The permit shall state the name and address of the person, firm or corporation to whom the cargo of oysters are to be delivered. The permit shall specify the number of bushels and whether they are seed or shucking stock. Before such permit shall be granted, the applicant shall certify, before an inspector, that the cargo will not be delivered or discharged to any other person, firm or corporation. (1962, c. 406; 1964, c. 393; 1966, c. 684; 1968, c. 747; 1976, c. 255.) As to former tax on seed oysters carried out of State, imposed by repealed _ 28-110, see Haughton v. Lankford, 189 Va. 183, 52 S.E.2d 111 (1949). _ 28.1-90. Duty to inspect; collection of tax and receipt for same. - It shall be the duty of the inspector in whose district a cargo of oysters is to be loaded, or a police boat captain in the area, to inspect such oysters as they are laoded and to see that all measurements are a full measure of oysters as defined in _ 28.1-136; and that they are properly culled; and when such oysters are loaded to collect the inspection tax, and/or the out-of-state tax, whichever one or more of these taxes will b edue and payable to the Commonwealth. The inspector or police boat captain shall furnish the owner, master or operator of such boat, vessel or motor vehicle a receipt showing the date, the destination, the number of bushels and the amount of each tax paid. This receipt is to be carried in the possession of the master or operator of the boat, vessel or motor vehicle and must b eexhibited when requested by an inspector or police boat captain, a copy of which receipt shall be sent to the office of the Commissioner of Marine Resources. On or before the fifth day of each month the inspector or police boat captain shall render a statement to the Commissioner, on blanks furnished by the Commissioner, showing the amounts collected, and from whom collected. (Code 1950, _ _ 28-103, 28-105; 1954, c. 367; 1960, c. 517; 1962, c. 406.) Editor's note. - This section was amended by Acts 1973, c. 471. The 1973 act, which was mad effective July 1, 1974, and provided that it should expire at midnight on that date unless earlier reenacted, was repealed by Acts 1974, c. 96, effective March 22, 1974, and therefore never went into effect. _ 28.1-91: Repealed by Acts 1970, c. 726. 96 _ 28.192. Records of oysters taken from public rocks and reports to be made. - The Commission shall issue to licensed oyster buyers in the State forms that shall be used in reporting to the Commission. Except as provided in _ 28.1-93, on or before the fifteenth day of each month the oyster buyer shall send to the Commission a complete report of all oysters purchased the precedin month on the form above described setting forth the total number of bushels of oysters taken from the public grounds, the general area from which taken and price paid together with all taxes collected by them as required by _ 28.1-93; provided, however, the information provided herein shall be used only for the collection of taxes mentioned in the section and for information to the Virgina Institute of Marine Science. (1962, c. 406; 1964, c. 393; 1970, c. 726; 1976, c. 255.) Editor's note. - This section was amended by Acts 1973, c. 471. The 1973 act, which was mad effective July 1, 1974, and provided that it should expire at midnight on that date unless earlier reenacted, was repealed by Acts 1974, c. 96, effective March 22, 1974, and therefore never went into effect. _ 28.1-93. Tax on oysters taken from public rocks; reports of oysters taken from seed area of James River. - A. There is imposed upon all oysters taken from the public rocks, beds or shoals the following replenishment tax: on all oysters taken from the seed area of the James River, or from any other area designated as a seed area by the Commission, selling for $1.50 or less per bushel, 5 cents per bushel, selling for $1.51 through $2.50 per bushel, 10 cents per bushel, selling for $2.51 through $3.50 per bushel, 15 cents per bushel, selling for $3.51 through $4.50 per bushel, 20 cents per bushel, selling for $4.51 through $5.50 per bushel, 25 cents per bushel, selling for $5.51 through $6.50 per bushel, 30 cents per bushel, selling for $6.51 or above per bushel, 50 cents per bushel; on all oysters taken from any public rocks, beds or shoals other than the James River seed area or any other area designated as a seed area by the Commission, 50 cents per bushel. B. The tax shall be collected and paid to the Commission as specified in _ 28.1-92 of this Code by the oyster buyer from the person taking or catching said oysters from the public rocks, beds or shoals at the time said oysters are purchased. All buyers of oysters from the seed area of the James River shall file with the Commission the complete report as specified in _ 28.1-92 and shall pay to the Commission the proper amount of taxes due and colleced. Both the reprot and the taxes due shall be filed and paid to the Commission at the time they pass the inspection point located in the area and before leaving the area. C. Except for oysters taht are taken or caught from wihtin the seed area of the James River, any person tkaing or catching oysters which are taken or caught from any public grounds and which are to be planted or used by the taker or catcher and not sold to a buyer, shall file the same report as required of a buyer. The person shall file the report and pay to an inspector the proper amount of taxes due before leaving the area where the oysters were taken or caught. D. The permit or license of any person purchasing, buying or selling oysters taken or caught from public rocks, beds or grounds who fails to comply with the requirements of this section shall be subjet to rvocation by the Commission. (Code 1950, _ 28-137.1; 1952, c. 650; 1954, c. 663; 1960, c. 517; 1962, c.406; 1964, c. 393; 1966, c. 1973; 1978, c. 583; 1983, c. 18.) Editor's note. - This section was amended by Acts 1973, c.471. The 1973 act, which was made effective July 1, 1974, and provided that it should expire at midnight on that date unless earlier reenacted, was repealed by Acts 1974, c. 96, effective March 22, 1974, and therefore never went into effect. 97 for bushel, selling for $3.51 through $4.50 per bushel, 20 cents per bushel, selling _ 28.1-94. Public Oyster Rocks Replenishment Fund. - All oyster replenishment taxes collected by the Marine Resources Commission shall be credited and deposited to a special Public Oyster Rocks Replenishment Fund, to be used only for administration of the program, and for replenishment, planting, and replanting the public oyster rocks, beds, and shoals of this State with seed oysters, oyster shells, or other material which will catch, support and grow oysters. These funds shall be withdrawn and expended for such purpose on the order of the Marine Resources Commission. (1962, c. 406.) Cross references. - For certain royalities and fees which are credited to the fund, see _ _ 62.1-3, 62.1-4. Editor's note. - This section was amended by Acts 1973. c.471. The 1973 act, which was made effective-July 1, 1974, and provided that it should expire at midnight on that date unless earlier reenacted, was repealed by Acts 1974, c. 96, effective March 22, 1974, and therefore never went into effect. _ _ 28.1-94.1. Authority of Commissioner to make certain contracts; funds received to be paid into Public Oyster Rock Replenishment Fund. -The Commissioner with the apporval of the Marine Resources Commission is authorized to contract with any peson, firm or corporation for the purpose of taking or dredging submerged oyster shells or any other subaqueous mate- rials from the tidal waters of the Commonwealth, and shall have the authority to plant, use or sell such shells or other materials in whatever manner the Commission deems to be in the best interest of the Commonwealth. All funds received or collected under this section shall be paid into the state treasury to the credit of a fund to be know as the State Treasurer on warrants of the Comptroller issued on vouchers signed by such person or persons as sahll be so authroized and designated by the Marine Resources Commission. (1962, c.636.) The number of this section was assigned by the Virginia Code Commission, the number in the 1962 act having been 28-21.1 Editor's note. - This section was amended by Acts 1973. c. 471. The 1973 act, which was made effective July 1, 1974, and provided that it should expire at midnight on that data unless earlier reenacted was repealed by Acts 1974, c. 96, effective March 22, 1974, and therefore never went into effect. _ 28.1-95. Violations; recovery for taxes. - Any person who violates any provision of this article shall be guilty of a misdemeanor. Any person collecting taxes under this article and willfully failing to pay such taxes collected to the Commission when and as required by law shall be quilty of larceny of said tax money collected and punished as provided by law for the crime of larceny. The Commission may maintain an action at law against any person required to collect or collecting taxes and failing to pay them to the Commission for the sum so collected, or which should have been collected, plus interst, and a penalty of fifteen percent. (Code 1950, 28-109; 1962, c. 406.) Editor's note. - This section was amended by Acts 1973, c. 471. The 1973 act, which was made effective July 1, 1974, and provided that it should expire at midnight on that date unless earlier reenacted was repealed by Acts 1974, c. 96, effective March 22, 1974, and therefore never went into effect. 98 _ 28.1-97. Permit to buy or carry seed oysters from certain grounds. - (1) Permit required. - It shall be unlawful for any person, without first having obtained a permit therefor, as hereinafter provided, to buy or carry oysters to be planted in this State, whose shells meausre less that three inches in length, from the eastern side of Accomack and Northampton counties; or from James river above the seed line, as heretofore established. Any person desiring to buy or carry such oysters, from such localities to be platned in this State, shall first obtain for each cargo a permit therefor from the inspector for the district wherein such cargo is loaded, or from an officer of a police boat, for each boat, vessel, or moteor vehicle to be used, which permit shall state the name and tonnage (if registered in the customhouse), of the boat veseel, or motor vehicle, or other conveyance, the name of the owner and master thereof, and to what place in this State, it is intended to carry such oysters in such boat, vessel, or motor vehicle, and may be laode under the supervision of the inspector, and in the order of the presentation of the permit ot the inspector in the seed oyster district in which such boat, vessel, or motor vehicle or other conveyance is, to obtain its cargo. Such permit shall further certify to the identity and residence of the person making application to buy or carry such oysters. (2) Oath required. - Before such permit shall be granted, the owner, oeprator, or mate of such boat, vessel, or motor vehicle shall make oath before the inspector or officer of a police boat that the boat, vessel, or motor vehicle or other conveyance will not be used for the purpose of carrying seed oysters measuring less than the size aforesaid out of this State, and that he will not sell such oysters to any other person for the purpose of carrying the same out of the State. The oath so taken and subscribed, together with a memorandum of the permit issued, shall be returned by the inspector or officer of a police boat to the Commissioner, to be filed in this office. (3) Penalties for violations. - If any person in charge of a boat, vessel, motor vehicle or other conveyance, obtain a permit to take seed oysters to some place in this State, and thereafter take said seed oysters to another place in this State, unless within twenty-fou hours after taking said seed oysters he shall notify the Commission of the place in this State to which said seed oysters are to be guilty of a misdeameanor. The owner or master of any boat, vessel, or motor vehicle, or other conveyance found buying or carrying seed oysters from the place aforesaid to any point in this State without a permit therefor shall be guilty of a misdemeanor. _ 28.1-98. Permit to carry oysters from certain grounds. - It shall be unlawful for any person who does not have a written permit from an inspector or from the Commissioner of Fisheries, at any time to carry public rocks oysters from the James river seed area, i.e., that area in the James river and its tributaries above a line drawn from Cooper's creek in Isle of Wight County on the south side of James river to a line in a northeasterly, direction across James river to the Newport News municpal water tank located on Warwick Boulevard between 59th Street and 60th Street in the city of Newport News. 99 LAWS PERTAINING TO SHELLFISH - BAYLOR SURVEY 28.1-100. Baylor surver, surveying and resurveying pl!anting ds and mar3dng lines. - (1) Surveys and reports as conclusive evi- �erno:;@ - The survey or surveys of the natural oyster beds, rocks and shoals of the Commonwealth,.made in pursuance of an act of the General Assembly of Vigmlia, entitled an act to protect the oyster industry of the Commonwealth, approved an February 29, 1892, and acts amendator7 thereof, or supplemental thereto, shall until otherwimprovided by law continue to be held in ail respects to be the survey or surveys dedning- and determining the natural oyster beds, rocks and shoals of the Commonwealth; the surveys and reports filed in accor- dance with the acts aforesaid shall be construed in all the courts of the Commonwealth to be conclusive evidence of the boundaries and limits of all the natural oyster beds, rocks and shoals lying within the waters of Lhe counties wherein such reports and surveys are so filed, and further, that there are no natural oyster beds, rocks or shoals lyin r ,% within the waters of the counties wherein such reports and surveys are other than those embraced in the surveys authorized by the acts aforesaid. The surveys of the natural oyster beds, rocks or shoals. of the Commonwealth referred to in this section shall not extend inshore of the mean low-water mark of said body of water, any surveys, plats, markers, or lines to the contrar3r notwithstanding. (2) Resurvey an motion of Commission or an application of citizens. - The Marine Resources Commission may select and appoint, on such terms as may be agreed upon, any surveyor to survey or resurvey any oyster-planting grounds either in his own or any other county, and to reestablish and perma- nently- mark. any line or lines.of the Baylor survey of natural oyster rocks, which, in thejudgment of the Commission, it may be'necessary to define. (Code 1950. 4 28-117; 1962, c. 406; 1964, c. 624.) � 2S.1-101. Reestablishment, etc, of lines of Baylor survey, proce. dure; evidence of reestablished lines; sale of Baylor survey charts and plat& - T'he Marine Resources Commission may reestablish, relocate and remark all lines of the Baylor survey which cannot be otherwise relocated because of the loss or destruction of marks which formerly existed. In .reestablishing an such lines of the Baylor survey the line surveyed by Fred E. Ruediger shall L followed wherever such line eidsts or was surveyed. Where no former line can be reestablished the Cox=iion may establish a new line. When such grnund or grounds, line or lines shall have been reestablished and relocated, the same shall be taken and accepted as conclusive evidence in all courts of the Commonwealth that the grounds so ascertained ta be natural oyster rocks, beds, or shoals are such; and that all grounds lying outside of such boundaries are grounds open to rental under the laws of this State. Plats shall be made under the direction of the Commission showing the reestablishment of such lines, and shall be recorded in the appropriate clerks office. The Commissioner of Marine Resources shall have available at all times copiegf the Baylor survey charts and plats, to be,offered for sale to the public- in su manner as the- Commis ioner may determine and a fee of three dollars per copy shall be charged therefor. (Code 1950, � 28-118; 1962, c. 406; 1964, c. 393.) � 28.1-101.2. Crossings of Baylor survey. - The State Highway and Transportation Board, in the performance of its duties, is hereby authorized to maintain, repair, reconstruct or replace any exusting crossings of the Baylor survey-, provided ftnther, that authorization is hereby granted for any Baylor survey crossing determined by the Board to be necessary across the Hampton Roads from Newport News to Portsmouth, across the Elizabeth River at Norfolk, and construction parallel to an existing crossing of the James River from Newport News to Isle of.Wight County. (1974, c. 93.) /00 LAWS PERTAINING TO CRASS 1 28.1-165. Licenses to take crabs; amount of tax; restrictions an privi- I -ge. - Any resident of Vir i 'a or nonresident desiring,to take or catch crabs I gini for market or profit fmm.the waters of this Commonwealth, or waters under its jurisdiction, by any of the means hereinafter stated, or any person, firm or Corporation desiring to engag4@ in the business of buying or Tna keting. crabs for paciong or cannin the same in any way, shall pay to any inspector the taxes &e provisions set forth in the other sections of this chapter and the f0flow ing subsections: (1) For each person taking or ca ching crabs by dip nets, net, ordinary trotline, hand mks, or with any device not otherwise licensed by this section other than a hand line, eight dollars."No boat shaH be used to pull or push any rake. (2) For each person taking or catching crabs with patent trotHnes, thirty-one dollars. (3) For each boat operator catching blue crabs by means of a device made of wire or thread net and commonly known as a crab pot, twenty-nine dollars; or if catching crabs with one or more assistants, forty-eight dollari. No such pot or device shall be used which has a mesh less than lV2".. A holder of a crab pot license may use peeler' pots, - exempt from mesh size limitations, without securmff additional license. A peeler pot is defined as a wire mesh pot baited ,@n with a live adult male (jimmy) blue crabs and food for these crabs. During the monrn-q of June, July and August, however, any person fifteen years of age or under may. be an assistant to a boat operator catching blue crabsby means of a device made of wire or thread net without obtaining a license. (4) For each boat used for the purpose of taking or catching hard crabs with dredges, fifty-eight dollars; but such boiat.shall not be used as a boat for buying crabs, wheh the Commission limits the taking of crabs under � 28.1-168. (5) (Repealed.] (6) (a), (b) (Repealed.] (c) No person who is licensed to catch crabs shall be required to.procure fluther license for marketing or shipping his owncatch. I 2&1-165.L Use limits of scrape and dredge; "crab dredge" defined. For the purposes of this chapter a crab scrape ihall have a mouth no larger than four feet overall and the bar shall have no teeth. A crab scrape may be by hand, and no boat shall have more than two such scrapes =alyt any tizne. Any person having a scrape on board shall have no more than one bushel of hard crabs *in possession. For purposes of this chapter a "crab dredge" shall be a device designed and used to dig into the bottom for the purpose of catching buried crabs, shall have a mouth no larger than twelve feet overall, may have teeth on the bar, and maK be hauled in any manner. NVhen two or more dredges are fixed together, t eir total width shall not exceed fourteen feet. No crab dredge shall use hydraulic methods to dislodge the crabs from the bottom. (1983, c. 603.) Cress referenm - For additional limits an use of dredgm. me 4 28.1-166. � 23.1-166. Use of dredges. - No dredges shall be used for catching crabs between April 1 and. December 1 of any year-, however, the Marine Resources Commission, when in its judgment it is deemed advisable on account of weather conditions and not contrary to the public interest to do so, may open any season as early a3November 16 and it may likewise extend any season as late as April 16; nor shall dredges be used at any time of the' ear in any of the rivers, or their estuaries, inleti" or creeks for the purpose of tayking crabs except on the ocean side of Accomack and Northampton Counties. In the exercise of its authority granted pursuant to this section, the Commission shall cause notice of any such action to be taken to be posted in two or more public places in each locality affected at least five days prior to the Commission meeting at which such action may be considered. Such publication shall be in lieu of any other notice and shall be the only procedure required by the Commission in exercising such authority. (Code .1950,.. � 28-171; 1960, c. 517; 1962, c. 406; 1981, c. 52; 1983, c. 603.) Croso reference. - For definition of "crab made effective July 1. 1974, and provided that dredgir and additional limit3on use of dredges, it should expire at midnight on that date unless M I 28.1-165.L ' I earlier reenacted. was repealed by Acts 1974. c. Editor's note. - This section was amended 96, effective March 22, 1974. and therefore by Acts 1973, Q 471. The 1973 act. which was never went into effect. � MI-167. Limitations on sizes of crabs to be taken. - It shall be =las-ful for any person to catch, take or have in possession at any time more than ten hard crabs per United States standard bushel or thirty- ve hard crabs pe barrel, which measure less than five inches across the shell from tip to tip of Q longest spikes, or to destroy them in any manner, but shall immediately return the same to the water alive. Adult female crabs, peeler crabs and soft crabs are exempt from these limitations except that the Commission may change such =* e restriction for a period not to exceed sixty days to respond to siffnificant ecological changes. li-ti7w- exercise of its authority granted pursuant to this section, the Commis- sionshall cause notice of any such action to be taken to be posted in two or more public places in each locality affected at least five days prior to the Commission meeting at which such action may be considered. Such publication shall be in lieu of any other notice and shall be the only procedure required by the Com- i3sion m. exercising such authority. The inspector shall have the authority to grade or cull any rwmber ofbarrels, baskets or containers of crabs in any person's possession which he may deem necessary. If the inspector finds in excess of ten undersize hard crabs per United States standard bushel or thirty-five hard crabs per barrel, the entire quantity of crabs in or from each barrel, basket-or container, which was inspected, and fmwd to contain in excess of ten hard crabs per United States standard bushel or thirty-five hard crabs per barrel, shall be seized by the inspector and all such crabs shall be immediately returned to the water by the person who possessed such crab& The reftisal to return the crabs to the water shall constitute a distinct and separate. offense &am any other violation. The aforesaid requirement to return the crabs to the waters shall apply to crabs taken and in possession of a crabber or catcher and shall not apply to crabs which have been purchased by a buyer and in the buyer's possession, nor shall it apply to crabs which have been transported a distance of five miles from the nearest salt water. (Code 1950, � 28-172; 1960, a. 517; 1962, c. 406; 1966, c. 684; 1970, cc. 610, 726; 1977, c. 35; 1978, c. 369; 1981, c. 52; 1985, c. 166.) � 28.1-168. Limiting the taking of crabs by one boat in one day. - Whenever, in, the discretion of the Commission, the interest of conservation andlor the crabbing industry so require, the Commission may limit the taking. or cat , g. o Crabs by any one boat in any one (lay. Such regulation, upon@ becoming effective, shall have the full force and effect of law and violation thereof is hereby declared to be a misdemeanor. Possession of crabs in excess of the amount provided by such regulation shall be prima facie evidence of violation, provided, however, that the provisions of this section shall not apply to crab buy boats. (Code 1950, � 28-172.1; 1956, c. 357; 1958, c. 449; 1962, c. 406.) 6c2j � 2&1-169. Peeler crab defined. - A peeler crab for the purposes of this .article is a crab that has a soft shell fully developed under the hard shell, or a crab on which there is a ink or white line or rim on the edge of that part of the '"back fin" next totZe outer section of this fin. (Code 1950, � 28-173; 1962, c. 406.) 28.1-170. Closed season for taking crabs in certain area. - It shall be , f unlawful for any person to take or catch for resale crabs ftmm the olfowing area from the first day of June to the fifteenth day of September, both inclusive, of every year. Ownership of a current,Iicense to take or catch crabs shall be prima flacie evidence that such taking and catching of crabs was for resale purposes. The limits of the area are defined as follows: Beginning at the point of origin of the center line of the Hampton Roads Bridge Tunnel facility- where, such facility commences in the City of Norfolk, Virginia, and following the shoreline in a general easterly direction, and also extending 200' out fromIthe mean low-water mark of such shoreline into the Chesapeake Bay, to the Nansemond Hotel, Ocean View, and thence in a general northerly direction to Thimble Shoal Lighthouse; thence running in approximately a northeasterly direction to Cape Charles Lighthouse, located on Smiths Island-, and thence in approximately a southwestern direction to Cape Henry Lighthouse, and bounded by the shoreline; and thence follo-A!ing the shoreline in a general westerly direction back to the point of beginning. (Code 1950, � 28-174; 1962, c. 406; 1977, c. 262; 1978, cc. 107,278; 1979, c. 128.) 28.1-171. License number to be displayed on boat. - In licensing a person for taking crabs with boat the inspector shall cause to be placed at the C_raftmicumci point on the starboard side of such boat@ or on the mast thereof, a @@er, and the number or numbers shall be kept displayed during the crabbing season by the master of the boat (Code 1950, � 28-175; 1962, c. 406.) 5 2&1-M. Takina crabs on Sunday. - It shall be unlawful to take from the waters of tha- Commonwealth crabs for commercial purposes on Sunday or between sunset and three hours before sunrise. Except as otherwisq provided, this section shall not apply to peeler pounds or floats. Any person licensed to take or catch crabs may take only peeler crabs from crab pots on Sunday. In taking peeler crabs from crab pots on Sunday, it shall be unlawful for any person to ha- ve in his possession more than five percent by count of hard-shelled crabs. Any violation of, this section shall be a Class 3 . emeanor. (Code 1950, � 28-195; 1958, c. 471; 1960, a. 517; 1962, c. 406; 1975, a. L,)- 1976, c. 34; 1983, c. 7.8; 1985, c. 181.) � 28.1-172.1. Sale of licenses for crabbing. - In order to appraisethe anticipated level of harvesting for the.purpose of taking seasonal conservation measures, the Commission may require the purchase of licenses before each crab season. begin& It may set time periods for the sale of licenses to crab and may grant extensions to individual applicants when it finds exceptional cir- cumtances exist. (1985, c. 16-5.) j 2s.1.1,73. Use of crab traps and crab pounds to take crabs. - It shall be unlawful to place, set or use crab traps or crab pounds'within 100 yards of any other crab trap or crab pound without respect to whether or not the other crab trap or crab pound is owned by the same or, some other person, firm, ration or association. Any person, corporation or association, violating any co unished ofTee provisions of this chapter shall beguilty of a misdemeanor and p as_provided by law. Every owner or user of a crab trap or crab pound shall completely remove such traps, leads, poles and gear from their locations not later than December 1 of each year. No licenses for crab traps or crab pounds for a subsequent year shall be issued to any person, corporation or association failing to accomplish such removal until the same has been accomplished. (Code 1T50, � 28-198.1; 1950, p. 229; 1962, c@ 406; 1968, c. 785; 1984, c. 99.) 1 28.1-173.1. Unlawful to place crab, eel, or fish pots in certain channels. - It shall be unlawful to place or maintain any crab, eel, or fish pot in a navi-aable channel which has navigation aids installed or a proved by any agency OF the United States government. The owner or user OF any crab, eel, or fish pot who has located such crab, eel, or fish pot in accordance with the provisions of this section shall be relieved of civil liability for any damages resulting from the location of such crab, eel, or rish pot. (1968, c. 785; 1981, c. 23.) o- f 2&1-17= Identification of crab pots. - Any per-son, corporation or association owning or us;ing a crab pot or pots, for whom a license is prescribed, in this title, shall display and maintain his or its current license number, issued by the Marine Resources Commission, on the float or stake attached to each such crab pot, in a lezzible and visible manner and in figures of not less than one inch in height. @Ie identification of the owner of such crab pot by virtue of the license number above described shall not give rise to any liability on its owner for its location so [on-7as the crab pot is placed in the waters of this State in compliance with the Ta7ws thereof. (1968, c. 750.) 1 28.1-174. Crabs for household use. - Anyone may take or catch by dip net or b one single crab pot, not exceeding one bushel of crabs Per day for household, use only, without obWning a license. If .=bs are taken or caught in any other manner, for any purpose, all provisions Of this chapter relating to crabs shall apply thereto. (Code 195o, 28-177; 1962, c. 406; 1964, c. 393.) DUTIES OF VIRGINIA INSTITUTE OF MARINE SCIENCES _ 28.1-195. Virginia Institute of Marine Science continued; duties. - The Virginia Institute of Marine Science, hereafter referred to as Institute, is continued within the College of William and Mary as provided in chapter 5 (_ 23-29 et. seq.) of Title 23 of this Code. All references in this COed to the Virginia Institute of Marine Science hereafter shall be deemed references to the Virginia Institute of Marine Science within the College of William and Mary. It shall be the duty of the Institute: (a) To conduct studies and investigations of all phases of the seafood and commercial fishing and sport fishing industries; (b) To consider means by which fisheries resoruces may be conserved, developed and replensihed and to advise the Marine Resource Commission and other agencies and private groups on this matters; (c) To conduct studies and investigations of problems pertaining to the other segments of the maritime economy; (d) To conduct studies and investigations of marine pollution in cooperation with the State Water Control Board and the Department of Health and make the resulting data and possible corrective recommendations availabe to the appropriate agencies; (e) To conduct hydrographic and biological studies of the Chesapeake Bay and the tributaries thereof and all the tidal waters of the Commonwealth and the contiguous waters of the Atlantic Ocean; (f) To engage in research in the marine sciences; (g) To make such special studies and investigations concerning the foregoing as it may be requested to do by the Governor; and (h) To engage in research and provide training, technical assistance and advice to the Commission on Conservation and Development of Public Beaches on erosion along tidal shorelines, the Soil and Water Conservation Commission on matters relating to tidal shoreline erosion and to other agencies upon request. The above studies include consideration of the seafood and other marine resources including the waters, bottoms, shore lines, tidal wetlands, beaches and all phenomena and problems related to marine waters and the means by which those marine resources might be conserved, developed and replenished. (Code 1950, _ _ 28-248, 28-250, 28-250.1; 1962, c. 406; 1979, c. 294; 1980 , c. 369.) 105 POWERS OF THE COMMISSION OF GAME AND INLAND FISHERIES _ 29-11. General powers of the Commission. - In addition to the specific authority elsewhere herein conferred, the Commission shall have general power and authority to acquire by purchase, lease, exchange, gift or otherwise, such lands and waters anywhere in this State as it may deem expedient and proper; to establish and erect thereon and therein such buildings, structures, dams, lakes and ponds as it may deem necessary and proper, and to conduct and carry on such operations for the preservation and propagation of game birds, game animals, fish and other wildlife as it may deem proper to increase, replenish and restock the lands and waters for game and fish refuges, pre- serves or public shooting and fishing, and to establish such lands and waters under appropriate regulations; to acquire by purchase, lease, or otherwise lands and structures for use as publis landings, wharves, or docks; to establish and erect thereon such structures or other improvements as it deems neces- sary; and to control the use of all such public landings, wharves or docks by appropriate regulation; to acquire and introduce any new species of game birds, game animals or fish on the lands and within the waters in the State; to adopt such other means as it may deem necessary to restock, replenish and increase and depleted native species of game birds, game animals, or fish; to have educational matter pertaining to wildlife published and distributed; to hold exhibits throughoute the State for the purpose of interesting school children, agriculturists and other persons in the preservation nad propagation of the wildlife of this State; and to employ speakers nad lecturers to disseminate information concerning the wildlife of the State and the protection, replenishment and propagation thereof; and to have and to exercise such other powers and to do such other things as it may deem advisable for the conserva- tion, protection replenishment, propagation of and increasing the supply of game birds game animals and fish and other wildlife of the State. In addition to those powers already enumerated, the Commission may permit the educa- tional television entities in Virginia to use land under the jurisdiction of the Commission for the sidte locaiton of towers and other transmission equipment as required for the most efficient operation of their facilites. (1930, p. 635; Michie Code 1942, _ 33015(4); 1944, p. 517; Michie Suppl. 1946, _ 585(84); 1970, c. 254; 1979, c. 264; 1980, c. 301.) _ 29-13. Enforcement of laws. - The Commission is vested with jurisdiction, power and authority to enforce or cause to be enforced all laws for the protection, propagation and preservation of game birds and game animals of this State and all fish in the inland waters thereof, which waters shall be constructed to mean and to include all waters above tidewater and the brackish and freshwater streams, creeks, bays, including Back Bay, inlets, and ponds in the tidwater counties. _ 29-14. Prosecutions. - The Commission shall prosecute all persons who violate such laws and shall seize and confiscate any and all wild birds, wild animals and fish that have been illegally killed, caught, transported or shipped. _29-20. Game protection fund. - The amount received by the State Trea- surer from the sale of hunting, trapping and fishing licenses and such other items as may accrue to the Commission shall b eset aside by him and shall constitute the game protection fund. This fund, including any unexpended balance on hand at any time, shall be a separate fund in the State treasury and shall be used for the payment of the salaries, allowances, wages, and expenses incident to carrying out the provisions of the hunting, trapping and inland fish laws and for no other purpose, except as provided in _ _ 58-151.072:1 and 62.1-168. 106 _ 29-125. Power of the Commission. - Having a due regard for the distribution, abundance, encomic value and breeding habits of wild birds, wild animals, and fish in inland waters, the Commission is hereby vested with the necessary power to determine when, to what extent, if at all, and by what means it is desirable to restrict, extend or prohibit in any degree the provisions of law obtaining in the State or any part thereof for the hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage or export of any wild bird, wild animal, or fish from inland waters any may upon its own motion or upon written petition of one hundred licensed resident landowners of any county proprose regulations for such purpose. INLAND WATERS - LAWS PERTAINING TO FISH _ 29-148. Unlawful to take or attempt to take, possess, sell or transport fish except as permitted. - Unless and until otherwise provided by a regulation of the Commission, after a public hearing, in accordance with the provisions of this title, it shall be unlawful for any person to take or attempt to take any fish in inland waters other than shad, herring or mullet, except by fishing with a hook and line or rod and reel, held in the hand, or to catch, trap, take, capture, kill, or attempt to take, capture or kill, posses, offer for sale, sell, offer to purchase, purchase, deliver for shipment, ship, cause to be shipped, deliver for transportation, transport, cause to be transported,c arry or cause to be carried, by and means whatever, receive for shipment, transport or carriage, or export, or import at any time or in any manner any species of bass or trout, or the carcass or any part thereof, except as specifically permitted by this article and only by the manner or means and within the numbers state; except that in the Counties of Mecklenburg, Pittsylvania, Prince Edward, City of Danville, Charlotte, Campbell, Halifax, Amelia (except between Vaughn's Pond and Meadsville Dam), Caroline and King George and in the Meherrin River in Lunenburg County it shall be lawful to fish with "fish traps" or "fish pots" and haul seines in any and all streams and waters, provided that no trout shall immediately return the same to the waters. The Commission shall have the authority to close any streams or rivers or parts of streams or rivers in such counties when same shall be stocked with fish by the Commission. Any provisions of this title to the contrary notwithstanding, it shall be lawful to sell or offer to sell trout have been propagated and raised in a hatchery or by other artificial means. The Commission of Game and Inland Fisheries shall be appropriate regu- lation establish a practical system of identification of trout so offered for sale for table use. A violation of the provisions of this section or regulations based thereunder shall be declared a misdemeanor punishable by a penalty as provided by law. (1930, p. 650; 1932, p. 763; 1934, p. 75; Michie Code 1942, _ 3305(40); 1948. p. 427; 1956, c. 490; 1958, c. 514; 1960, c. 126; 1962, c. 469; 1966, c. 413.) 107 _ 29-148.1. Permits for competitive striped bass fishing for prizes. - The Commission may be regulation require that permits be obtained from the Commission to organize, conduct, supervise or solicit entries for striped bass fishing tournaments, rodeos or other competitive striped bass fishing events for which prizes are offered, awarded, or accepted, either in money or other vauluable considerations. Each such tournament shall be conducted in accor- dance with any special rules which the Commission may prescribe for that specific event provided such rules are issued in writing and made a part of the permit issued, and such special rules for each specific fishing event may be promulgated by the Commission without regard to the provisions of _ _ 29-125 through 29-128.1 of this Code. Special rules for any such competitive fishing events may include, but need not be limited to, restrictions on fishing mehtods, baits, lures and other tackle, times when competitive fishing under the permit is authorized, and records and reports to be submitted to the Commission by the permittee. It shall be the duty of each permittee to inform all participants in a competitive striped bass fishing event of applicable specila rules imposed by the Commission, and no entrant in any such event shall fish in violation of such special rules. The issuance of permits required by Commission regulation for competitive striped bass sport fishing shall be discretionary with the Com- mission, and may be denied in any case in which the Commission deems such denial to be necessary to protect the striped bass fishery resource in any public water. (1979, c. 48.) _ 29-149. Failure to return game fish. - Any person violating the provi- sions of _ 29-148 by not returning bass, perch and trout to the waters from which caught, shall be fined not less than $10 nor more than $100 for each offense. (1932, p.764; 1934, p.75; Michie Code 1942, _ 3305(40); 1948, p. 428; 1962. c. 469.) _ 29-150 Open season; method of taking bass and trout. - The open season during which it shall be lawful to take any species of bass and trout from the inland waters of this State, but only by angling with hook and line, attached to a rod or pole, either with or without a reel, and with or without the aid of a hand landing net, including the first and last days thereof, shall be as promulgated by Commission regualtions. Bass, including rock bass and redeye. Trout, any species. - The owner, or lessee, of any private pond stocked by himself, or by the Commission not less than three years prior thereto, may capture any fish therfrom for his own use at any time; provided that nothing in this section shall affect the operation of any local acts heretofore or hereafter enacted. (1930, p. 650; Michie Code 1942, _ 3305(41); 1944, p. 515; 1964, p.129; 1948, p.561; 1960, c. 590.) Editor's note. - The wording of this section is exactly as it appears in c. 590 of the 1960 Acts. This section was amended by Acts 1973. c. 471. The 1973 act, which was mad effective July 1, 1974, and provided that it should expire at midnight on that date unless earlier reenacted, was repealed by Acts 1974, c. 96, effective March 22, 1974, and therefore never went into effect. _ 29-150.1: Repealed by Acts 1977, c. 377. _ 29-151. Dams and fish ladders; inspection of. - Any dam or other thing in a watercourse, which obstructs, navigation or the passage of fish, shall be deemed a nuisance, unless it be to work a mill, manufactory or other machine or engine useful to the public, and is allowed by law or order of court. Any person owning or having control of any dam or other obstruction in any 108 of the streams of this State above tidewater which may interfere with the free passage of fish, shall provide every suchdam or other obstruction with a suita@le fish ladder, so that fish may have free passage up and down the streams durinc, the months of March, April, May and June of each year, and maintain and jZeep the same in good repaii, and restore it in case of destruction; provided, however, that this section shall not apply to the iMeherrin River within the Counties of Brunswick and Greensville, nor to the NNIeherrin River within or between the Counties of Lunenburg and Dylecklenburg ,,, nor to the Nottoway River between the Counties of Lunenburg and Nottoway, nor to Abra&s Creek in Shawnee district, Frederick County, nor to the James River between the Counties of Bedford and Amherst, nor any streams within the Counties of Augusta, Lunenburg, Mecklenburer, Louisa, Buckingham, Halifax, Montgomery, Pulaski,. Franklin, Russell, Tazewell, Giles, Bland, Craig, Wythe, Carroll and Grayson, nor to that 8art of any stream that forms a part of the boundary of Halifax and Franklin ounties; provided, however, that no fish ladders shall be required on dams twenty feet or more in height or an such dams as the Comyni sion may deem it unnecessary on which to have ladders. Aiiy personfailing to comply with this provision shall be fined one dollar for each day's failure; and the circuit court of the county or the corporation court of the city in which the dam is situated, after reasonable notice, by rule or otherwise, to the parties or party interested and upon satisfactory proof of the failure, shall cause the fishway to be constructed, or put in good repair as. the Case may be, at the expense of the owner of the dam or other obstruction. It diall be the duty of the game warden to make a personal inspection of dams. and rivers in his respective county or city in the months of April and October of each year and report to the circuit court of the county or the corporation court .of the city any violation of this section. (1930, p. 651; Nfichie Code 1942, 3305(42); 1950, p. 891; 1958, c. 607.) 1 29-152. Fish wheels for restocicing. - Notwithstanding any provision of existing law or any rule or regulation adopted in pursuance thereof to the contmry, fish wheels may be maintained and operated in any of the ponds in this State for a period of two years,- provided no such fish wheel shall be maintained or operated except for the sole purpose of restocking such ponds. Any violation of the provisions of this section shall be deemed a misde- meanor. (1936 ,p. 56; Michie Code 1942, � 3305(42a).) f 29-153. Prohibition against use of substances .injurious to fish. - It shill be unlawflil to use fish berries, lime, giant-powder, dynamite, or anv other substance for thedestruction. of fish,.or knowingly cast any noxious su6stance or matter into any watercourse of this State by which fish therein or flih spawn maybe destroyed, or to place or to allow to pass into the watercourses of the State any sawdust, ashes, lime, gas, tar, or refuse,of gw worfcs, injurious to fish-, provided, however, that Giles,. Bland and Franklin Counties are exempt from the prohibition of permitting sawdust to be put in their watercourses when a sawmill is ran in connection with a grain mill, and permanently located in a stream of water used as power toward the operation of the mill, and =ded, finther, that the sawdust pollution from such operation is not suffi- to destroy fish or fish spawn, and provided, however, in the waters of Piney River and its tributaries in the Counties of Amherst and Nelson, it shall not be unlawful to run sawdust in those portions' of the stream not inhabited by trout. Any person violating any of the provisions of this section shall, on conviction thereof, be fined for each offense'not less than $25 nor more than $250, and be imprisoned in jail until the fine is. paid, but not exceeding 30 days, except that any person convicted of destroying fish by means of dynamite or other explosives shall be punished bY a fineof riot less than $200 nor more than $500, or, in the discretion of the court or jury, by confinement in jail not to exceed 90 days, or by both such fine and imprisonment. The owner or lessee of any property on which fish are destroyed by means of dynamite or other explosives shall.be entitled to recover liquidated damages in tha amount of $100 from any person convicted of destroying fish by such means. (1930, p. 651; 1.942, p. 719; Michie Code 1942, J 3305(43); 1956, d. 709; 1962, c. 469.) POWERS AND DUTIES OF THE BOARD OF HEALTH _ 32.1-164. Powers and duties of Board; regulations. - A. The Board shall have supervision and control over the safe and sanitary collections, conveyance, transportation, treatment and disposal of sewage, all sewarage systems and treatment works as they affect the public health and welfare. The regulation of sewage, as it may affect the public health, shall be primarily the responsiblity of the Board and, in cases to which the provisions of chapter 3.1 (_ 62.1-442. et seq.) of Title 62.1 of the Code of Virginia are applicable, the joint responsiblity of the Board and the Sate Water Control board in accordance with such chapter. B. The regualtions of the Board shall govern the collection, conveyance, transportation, treatment and disposal of sewage. Such regulations shall be designed to protect the public health and promote the public welfare and may include, without limitation: 1. A requirement that the owner obtain a permit fromt he Commissioner prior to the construction, installation, modification or operation of a sewarage system or treatment works excpet in those instances where a permit is required pursuant to chapter 3.1 of Title 62.1 of the Code of Virginia. 2. Criteria for the granting or denial of such permits. 3. Standards for the design, construction, installation, modification and operation of sewarage systems and treatment works. 4. Standards governing disposal of sewage on or in soils. 5. Standards specifiying the minimum distance between sewarge systems or treatment works and: (a) Public and private wells supplying water for human consumption (b) Lakes and other impounded waters (c) Streams and rivers (d) Shellfish waters (e) Groundwaters (f) Areas and places of human habitation (g) Property lines. 6. Standards as to the adequacy of an approved water supply and the siting of wells prior to the issuance of a spetic tank permit, provided that no permit shall be required for the installation of private wells. 7. Standards governing the transportation of sewage. 8. A prohibition against the discharge of untreated sewage onto land or into waters of the Commonwealth. 9. A requirement that such residences, buildings, structures and other places designed for human occupancy as the Board may prescribe be provided with a sewerage system or treatment works. _ 32.1-165. (Effective January 31, 1985) Prior approval required before issuance of building permit. - No county, city, town or employee thereof shall issue a permit for a building designed for human occupancy without the prior written authorization of the Commissioner or his agent. The Commissioner or his agent shall authorize the issuance of such permit upon his finding that safe, adequate and proper sewage treatment is or will be made available to such building, or upon finding that the issuance of said permit has been approved by the Review Board. 110 33.1-207. FaciHties for persons @d esiring to fish from bridoes. - The State Highway and Transportation Commission may, in its discr-etion, upon the request in writing of any department or agency of the State, construct and maintain, on or in connection with any bridges which now constitute a part of any 3 tern of state highways, such platforms,.walk-ways or other facil.ities as may re necessary or proper for the safety and convenience of persons who desire to fish therefrom. Is cost thereof to be paid out-of funds rurnished by the department or agency making the request from its own funds or funds fturnished to such department or agency by "' from private sources. The Department of Highways and Transportation sh not be held responsible for dams, 9 caused by the con@truction or use of such facilities. (Code 1950, 33-123; 1970, c. 322.) RECREATIONAL AccEss ROAD FUND 4 3=1-223. Fund for access roads and bikeways to public recre- ational areas and historical sites; construction, maintenance, etc., of Such roads and bikeways. - (a) The General Assembly finds and declares that there is an increasing demand by the public for more public recreational areas throughout the Commonwealth, therefore, creating a need for more access to these areas. There are also many sites of historical significance to which access is needed. The General Asusembly hereby- decla it to be in the public interest that access roads and bike%vays to public recreational areas and historical sites be provided by using highway funds obtained -from unclaimed refundable marine motor fuel tax collections. This section is enacted in furtherance of these Purposes. (b) Notwithstanding any other provision of law, (and in order to provide equal matching of funds hereinafter appropriated from the general fund), the State Highway and Transportation Commission shall, from funds allocated to the primary system, secondary system, or urban system of state highways, set aside the sum of $1,500,000 initially. This fund shall be expended by the Commission for the construction, reconstruction, maintenance or improvement of access roads and bikeways within counties, cities and towns. At the close of each succeeding fiscal year the Commission shall replenish this fund to the extent it deems necessary to carry out the purpose intended, provided the balance in the fund plus the replenishment does- not exceed the aforesaid $1,500,000. W I Upon the setting aside of the ftmds as herein provided, the State Highway and Transportation Commissioner shall construct, reconstruct, maintain or improve access roads and bikeways to public recreational areas and historical sites upon the following conditions: (1) When the Director of Conservation and Historic Resources has desig- nated a public recreational area as such or an historic area as such and recom. mends to the State Highway and Transportation Commission that an access road, or bikeway be provided or maintained to that area; and (2) Wher, the State Highway and Transportation Commission pursuant to the recommendation from the Director of Conservation and Historic Resources declares by resolution that the access road or bikeway be provided or maintaineck and (3) When the governing body of the county, city or town in which the access road or bikeway is to be provided or maintained passes a resolution requesting the road. (4) When the governing body of the county, city or town in which the bikeway is to be provided or maintained adopts an ordinance pursuant to Article 8 (� 15.1-486 et seq.), Chapter 11, Title 15.1. No access road or bikeway shall be constructed, reconstructed, maintained or improved on privately owned roperty. (d) Anyacces road construct:x reconstructed, maintained or improved pur- sUant; to the provisions of this section shall become part of the primary system of state highways, the secondary system of*state highways or the road system of the locality in which it is located in the manner provided by law and shall be designated as a scenic highway or byway as provided for in Article 5 0 33.1-62 et seq.), Chapter 1, Title 33.1, and shall thereafter be constructed, reconstructed, maintained aud improved as other roads in such systems. Any a Path constructed, reconstructed, maintained, or improved pursuant to e p . .ons of- this section which is not situated within the right-of-way of an access road which has become, or wh i ch is to become, part of th7e primary system of state highways, the secondary system of state highways, or the road system of the locality, shall, upon completion, become part of and be regulated and maintained by the authority or agency maintaining the public recreational area or historical site. It shall be th; responsibility of the author- ity, agency, or locality requesting that a bicycle path be provided to a public recreationai or historical site to provide the right-of-way needed for the con- struction, reconstruction, maintenance, or improvement of the bicycle path, if the bikeway is to be situated outside the righi-of-way limits of an access road. The State Highway and Transportation Commission with the concurrence of the Director of Conservation and Historic lZesources is hereby authorized to =ke regulations to carry out the provisions of this section. (Code 19-50, � 33-136.3; 1966, c. 484; 1968, c. 221; 1970, c. 322,- 1975, c. 362; 1982,. c. 643; .1984. c. 739.) bik way th rovisi Uraits //Zj MINERAL OTHER THAN COAL SURFACE MINING LAW _45.1-180. (For effective date see note) Definitions. - The following words and phrases when used in this chapter shall have the meanings respec- tively ascribed to them in this section except where the contxt clearly requires a different meaning. (a) Mining. - Means the breaking or disturbing of the surface soil or rock in order to facilitate or accomplish the extraction or removal of minerals; any activity constituting all or part of a process for the extraction or removal of minerals so as to make them suitable for commercial, industrial, or con- struction use; but shall not include those aspects of deep mining not having significant effect on the surface, and shall not include excavation or grading when conducted soley in aid of on-site farming or construction. Nothing herein shall apply to mining of coal. This definition shall not include, nor shall this title, chapter, or section be construed to apply to the process of searching, prospecting, exploring or investigation for minerals by drilling. (b) Disturbed land. - The areas from which overburden has been removed in any mining operation, plus the area covered by the spoil and refuse, plus any areas used in such mining operation, including land used for processing, stockpiling, and settling ponds. (c) Overburden. - all of the earth and other material which lie above a natural deposit of minerals, ores, rocks or other solid matter and also other materials after removal from their natural deposit in the process of mining. (d) Spoil. - Any overburden or other material removed from its natural state in the process of mining. (e) Operator. - Any individual, corporation or corporation officer, firm, joint venutre, partnership, business trust, association, or any other group or com- bination acting as a unit, or any legal entity which engaged in mining. (f) through (i) (Repealed.) (j) Mining operation. - Any area included in a approval plan of operation. (k) Reclamation. - The restoration or conversion of disturbed land to a stable condition which minimized or prevents adverse disruption and the inju- rious effects thereof and presents an opportunity for further productive use if such use is reasonable. (l) Mineral. - Ore, rock and any other solid homogeneous crystalline chemi- cal element or compound that results from the inorganic processes of nature other than coal. (m) Division - The Division of Minded Land Reclamation. (n) Refuse - All waste soil, rock, mineral tailings, slimes and other mate- rial directly connected with the mine, cleaning and preparation of substances mined including all waste material deposited in the permit area from other sources. (1968, c. 734; 9172, c. 206; 1974, c. 312; 197, c. 312; 1984, c. 590.) For this section as in effect until the 1984 amendment by Acts 1984, c. 590 becomes effective, see the bound volume. Effective date of 1984 amendment. - Acts 1984, c. 590, c. 7 provides: "That this act shall become effective on January 1, 1985, or when its provisions pertaining to Virginia's perma- Surface Mine Act are approved by the United States Secretary of the Interior as an amend- ment to Virginia's program under that Act, whichever later shall occur." The 1984 amendment deleted subdivisions (f) and (g), defining "Director" and Depart- ment." For effective date of this amendment, see the note above. 113 _ 45.1-180.2. (For effective date see note) Legistlative findings; decla- ration of policy. - A. The General Assembly finds that the mining of min- erals within the Commonwealth is an activity that makes a contribution to the standard of living of the citizens of the Commonwealth; and that it is in the public interest to insure the availability and orderly development of mineral resources now and in the future. Uncontrolled mining of such minerals and unreclaimed land can adversely affect the environment through the destruc- tion of vegetative cover, the disruption of drainage patters, the increased siltation and sedimentation of streams as well as other forms of pollution, and the temporary and, in some circumstances, permanent destruction of scenic beauty and wildlife habitats. The General Assembly further finds that it is often not practicable to extract minerals without disturbing the surface of the earth and producing waste materials, and that the very character of certain surface mining operations precludes complete restoration of the land to its orginial contour; but that is essential to conduct mining in such a way as to minimize its effects on the environment. B. The General Assembly recognizes that there are wide variations in the circumstances and conditions surrounding and arising out of the mining of minerals and that rehabilitation and conservation of land affected by mining of minerals will be assured only through proper planning, proper use of appro- private methods of mining, consideration of the impact of mining upon the environment as well as the land use of surrounding areas, and through the incorporation and use of control techniques and reclamation actions as an integral and simultaneous part of the mining of minerals. C. The General Assembly declares taht it is in the public interest and shall be the policy of the Commonwealth to require and encourage the proper control of mining of mineral so as to protect the public health, safety and welfare consistent with the protection of physical property and with maximum employ- ment and the economic well-being of the Commonwealth through good indus- try and sound conservation practices, and to requrie and encourage thorough operations and reclamation planning, consideration of the surrounding envi- ronment, and incorporation of control techniques and reclamation actions in mining operations insofar as economically and physically practicable to assure such proper control of mining. To these ends, the Director is, mandated to enforce this-chapter and to adopt whatever regulations are found necessary to accomplish the provisions of this chapter. D. The General Assembly by this chapter intends to exercise the police power of this Commonwealth in a coordinated statewide program to aid in the pro- tection of wildlife, in restoring these lands to productive purposes and to control present and future problems associated with mining activities shall be reg- ulated in a manner that will effectuate the purpose of this chapter. E. Nothing in this chapter is intended, nor shall be construed, to limit, impair, abridge, create, enlarge or otherwise affect, substantively or proce- durally, the right or rights of any person who is a party to any dispute involving property rights, or the right of any person to damages or other relief on account of injury to persons or property due to mining activities regulated by this chapter and to maintain any action or other appropriate procedure therefor; nor to affect the powers of the Commonwealth to initiate, prosecute and maintain actions to abate public nuisances. 114 _45.1-180.3. (For effective date see note) Authority of Directore; enforcement of chapter by injunction. - A. The authority to promulgate rules and regulations to effectuate the provisions and the policy of this chapter and the authority to adopt definitions for use in interpreting this chapter are hereby vested in the Director. B. The authority to administer and enforce the provisions of this chapter is hereby vested in the Director. In administering and enforcing the provisions of this chapter pursuant to the findings and legistlative policy adopted by the General Assembly, the Director shall exercise the following powers in addition to any other powers conferred upon him by law: 1. To supervise the administration and enforcement of this chapter and all rules and regulations and orders promulgated thereunder; 2. To issue orders to enforce the provisions of this chapter, all rules and regualtions promulgated thereunder, and the terms and conditions of any permit; 3. To make investigations and inspections to insure compliance with any provision of this chapter or an rules, regulations, or orders promulgated thereunder. 4. To encourage and conduct investigations, research, experiments and dem- onstrations, and to collect and disseminate information relating to surface mining and reclamation of lands and waters affected by surface mining; 5. To receive any federal funds, state funds or any other funds and to enter into any contracts, for which funds are available, to carry out the purposes of this chapter. C. In addition to any administrative remedy granted herein, the Director may petition any court of competent jurisdiction for an injunction against any violation of the provisions of this chapter, and the rules, regualtions and orders promulgated hereunder or to compel the performatnce of acts required thereby without regard to any adequate remedy which may exist a law, such injunc- tion to be issued without bond. However, with regard to the suspension of mininig operations, _ 45.1-193.1 shall control. (1977, c. 312; 1984, c. 590.) For this section as in effect until the 1984 amendment by Acts 1984, c. 590 becomes effective see the bound volume. Effective date of 1984 amendment. - Acts 1984, c. 390 c. 7 provides: "That this act shall become effective on january 1, 1985, or when its provisions pertaining to Virginia's perma- nant regulatory program under the Federal Surface Mine Act are approved by the United States Secretary of the Interior as an amend- ment to Virginia's program under that Act, whichever later shall occur." The 1984 amendment substituted "Direc- tor" for Board of Conservation and Economic Development" at the end of subsection A, deleted of the Department of Conservation and Economic Development" at the end of the first sentence of subsection B, and deleted "Pro- vided," at the beginning of the second sentence of subsection C. For effective date of this amendment , see the not above. _ 45.1-180.4. Exemption for restricted mining. - Any operator engaging in mining and disturbing less than one acre of land and removing less than five hundred tons of minerals at any particular site, is exempt from all mining permit fees and renewal fees and bond requirements of this chapter; provided, however, each person intending to engage in such restricted mining shall submit an application for a permit, a sketch of the mining site and an operations plan, which shall be adhered to in accordance with _ _ 45.1-181 and 45.1-182.1. The Director shall approve the application if he determines that the issuance of the permit shall not violate the provisions of this chapter. (1977, c. 312.) 115 ARTICLE 2: Regulation of Mining Activity. _ 45.1-181. Permit required; fe; renewal fee; applications; furnishing copy of map, etc., to landowner; approval by Department. - It shall be unlawful for any operator to engage in any mining operation in Virginia, without having first obtained from the Department a permit to engage in such operation and paying a fee therefor of twelve dollars per acre for every acre of land to be affected by the total operation for which plans have been submitted, which shall be depostited in the state treasury in a special fund to be used by the Director for the administration of this chapter. Such permits shall not be transferable. A permit shall be obtained prior to the start of any mining oper- ation. If within ten days of the anniversary date of the permit the Director, after inspection, is satisfied that the operation is proceeding according to the plan submitted to and approved by him, then the Director shall renew the permit upon payment of a renewal fee by the operator of six dollars per acre for land to be affected by the total operation in the next ensuing year. The renewal fees shall be deposited in the state treasury in the special fund set out above. If the operator believes changes in his original plan are necessary or if additional land not shown as a part of the approved plan of operation is to be disturbed, he shall submit an amended plan of operations which shall be subject to the provisions of this section and _ _ 45.1-182.1 and 45.1-183 hereof. A separate permit must be secured for each mining operation conducted. Appli- cation for a mining permit shall be made in writing on forms prescribed by the Director and shall be signed and sworn to by the applicant or his duly autho- rized representative. The application in addition to such other information as may be reasonably required by the Director shall contain the following infor- mation: (1) the common name and geologic title, where applicable, of the mineral to be extracted; (2) a description of the land upon which the applicant proposes to conduct mining operations, which description shall set forth; the name of the county or city in which such land is located; the location of its boundaries and any other description of the land to be disturbed in order that it may be located and distinguished from other lands and easily ascertainable as shown by a map atttached thereto showing the amount of land to be disturbed; (3) the name and address of the owner or owners of the surface of the land; (4) the name and address of the owner or owners of the mineral, ore or other solid matter; (5) the source of the operator's legal right to enter and conduct operations on the land to be covred by the permit; (10 the total number of acres of land to be covered by the permit; (7) reasonable estimate of the number of acres of land that will be disturbed by mining operations on the area to be covered by the permit during the ensuing year; (8) whether any mining permits of any type are now held by the applicant and the number therof; (9) the name and address of the applicant, if an individual; the names and addresses of all partners, if a partnership; the state of incorporation and the name and address of its registered agent, if a corporation; or the name and address of the trustee, if a trust; and (10) if know, whether the applicant, or any subsidiary or affiliate or any partnership, association, trust or corporation controlled by or under common control with applicant, or any person required to be identified by item (9) above, has ever had a mining permit of any type issued under the laws of this or any other state revoked or has ever had a mining or other bond, or security deposited in lieu of bond, forfeited. The application for a permit shall be accompanied by two copiers of an accu- rate map or aerial photograph or plan and meeting the follwing requirements; (a) Be prepared by a licensed engineer or licensed land surveyor or issued by a standard mapping service or in such a manner as to be acceptable to the Director; (b) Identify the area to correspond with the land described in the application; (c) Show adjacent deep mining, if any, and the boundaries of surface properties, with the names of owners of the affected area which lie within a hundred feet of any part of the affected area; (d) Be drawn to a scale of four hundred feet to the inch or better. 116 (e) Show the names and location of all streams, creeks or other bodies of public water, roads, buildings, cemeteries, oil and gas wells, and utility lines on the area affected and within 500 feet of such area; (f) Show by appropriate markings the boundaries of the area of land affected, the outcrop of the seam at the surface of deposit to be mined, and the total number of acres involved in the area of land affected; (g) Show the data on which the map was prepared, the north arrow and the quadrangle name; (h) Show the drainage plan on and away from the area of land affected, including the directional flow of water, constructed drainways, natural waterways used for drainage and the streams or tributaries receiving the discharge. Upon receipt of a written request by any landowner on whose property a san and gravel operation is permitted pursuant to this section, the operator of the sand and gravel operation shall provide a copy of the map, photograph or plan to the landowner. No permit shall be issued by the Department until the Director has approved the plan of operation required in thi section and _ 45.1-182.1 and the bond from the applicant as required in _ 45.1-183. (1968, c. 734; 1972, c. 206; 1974, c. 312; 1977, c. 312; 1983, c. 322.) The 1983 amendement inserted the next-to-last paragraph and substituted "Virginia" for "this State" in the first sentence of the first paragraph. _ 45.1-182.1 (For effective data see note) Operations plan; reclamation; policy of Director. - A. The application for a permit shall be accompanied by an operations plan in such form and with such accompanying material as the Director shall requrie. The operations plan shall describe the specifications for surface grading and restoration, including sketches delineating placement of spoil, stockpiles, and tailing ponds, to a surface that is suitable for the proposed subsequent use of the land after reclamation is completed. B. The operations plan shall include a provision for reclamation of all land estimated to be affected by the mining operations for which the permit is sought. The reclamation provision shall be in such form and contain such accom- panying material as the Director shall require and shall state: 1. The planned use to which the affected land is to be returned through reclamation; 2. Proposed actions to assure suitable reclamation of the affected land for the planned use to be carried out by the applicant as an integral part of the proposed mining operation and to be conducted simultaneously insofar as prac- ticable. The Director shall set schedules for the integration of reclamation with the mining operation according to the various individual mineral types. C. It shall be the policy of the Director to encourage adoption of productive land use, such as pasture, agricultural use, recreational areas, sanitary landfills, forestry and timberland operations, industrial and building sites, and to consider the general orginal contour in determining the particular to the operations plan to mee the exigencies of an unanticipated circum- stance or event. (1977, c. 312; 1984, c. 590.) For this section as in effect until the 1984 amendment by Acts 1984, c. 590 becomes effective, see the bound volume. Effective date of 1984 amendment. - Acts 1984. c. 590 c. ) _ provides: "That this act shall become effective on January 1, 1985, or when its provisions pertaining to Virginia's perma- nant regulartory program under the Federal Surface Mine Act are approved by the United States Secretary of the Interior as an amend- ment to Virginia's program under the Act, whichever later shall occur." The 1984 amendment substituted "Direc- tor" for "Board" near the beginning of the sec- ond sentence of subdivision B.2. For effective date of this amendment, see the note above. 117 _ 45.1-183. Bond of operator. - Each operator at the time of filing his application shall furnish bond on a form to prescribed by the Director payable to the Department and conditioned that the operator shall faithfully perform all of the requiremnts of this chapter and of the operations plan as approved and directed by the Department. The amount of bond shall be no less than two hundred dollars nor more than one thousand dollars per acres, based upon the number of acres of land which the operator estimated will be affected by mining opeartions during the next ensuing year. The minimum amount of bond furnished shall be one thousand dollars, except in areas of five acres or less the bond shall b eno less than two hundred dollars nor more than one thousand dollars per acre. Such bond shall be executed by the operator and by a corporate surety licensed to do business in this State; provided, however, that in lien of such bond the operator may deposit cash or callateral security acceptable to the director. (1968, c. 734; 1970, c. 245; 1972, c. 206; 1974, c. 312; 1977, c. 312) Cross reference. - As to release of bonds and other securities posted pursuant to this section, see _ 45.1-197.10. Code Commission note. - This section was amended by Acts 1973., c. 471. The 1973 act, which was made effective July 1, 1974, and provided that it should expire at midnight on that date unless earlier reenacted, was repealed by Acts 1974, c.96, effective March 22, 1974, and therfore never went into effect. _ 45.1-184. Review of operations plan and reclamation provision by Director; issuance of permit. - Upon receipt of a reasonable operations plan and bond prescribed above, the Director shall review the plan and if it meets with his approval issue a permit. If the Director disapproved the plan, he shall furnish the applicant with his written objections thereto and his required amendments. Until the applicant shall amend his operations plan to meet the Director's reasonable objections and file a satisfactory amended plan with the Director, no permit shall be issued. In reviewing such plan, if the Director finds that the operation will constitute a hazard to the public safety or welfare, or that a reasonable degree of reclamation or proper drainage control is not feasible, he may disapprove the permit application. Provided, however, that the Director may approve the permit after deleting the areas from the permit applicaion held to be objectionable in the Director's findings. The Director shall issue the permit unless he finds that the applicant has had contorl or has had common control with a person, partnership, association, trust or corporation which has had a mining permit revoked or bond or other security forfeited for failure to reclaim lands as required by the laws of this State, in hwich event no permit shall be issued. Except, however, if an operator who has heretofore forfeited a bond within thirty days of notice and demand by the Directory pays the cost of reclamation in excess of the amount of the forfeited bond, or if any bond is forfeited and the amount forfeited is equal to or greater than the cost of reclamation, such operator shall then becom eligible for another permit. 118 _ 45.1-184.1. Application for permit; adjoining landowners; local official. - A. The application for a permit shall be accompanied by a statement showing the names and addresses of the owners of property within one thousand feet of the property line of any land proposed to be permitted and certification that such landowners have been notified by certified mail of the application for a permit unless notified previously. Such residents may file written objections with the Director, and may request a hearing. This section shall apply ot initial applications for permits only, and no new notice shall be required for renewal applications or for permits for acreage in addition to that orginally permitted. B. The application for the permit shall b eaccompanied by a statement certifying that the chief administrative official of the local political subdivision has been notified of the proposed operation by certified mail. (1977, c. 312.) Law Review. - For survey of Virginia law on poroperty for the year 1976-77, see 63. va. L. Rev. 1472 (1977). _45.1-184.2. Succession of one operator by another at uncompleted project. - Where one operator succeeds another at any uncompleted opeartion, whether by sale, assignment, lease, merger, or otherwise, the Director may release the first operator from all liablility under this chapter as to that particular operation; provided, however, that the successor operator has been issued a permit and has otherwise compliedd with the requirements of this chapter, and the successor operator assumes as part of his obligation under this chapter, all liability for the reclamation of the area of land affected by the first operator. No fee, or any portion thereof, paid by the first operator shall be returned to either operator. The permit fee for the successor operator for the area of land permitted by the first operator shall be six dollar per acre, except as provided by _ 45.1-180.4. The mining permit for the successor operator shall be valid for ne year form the date of issuance and shall be renewed thereafter in accordance with the provisions of this chapter. (1977, c. 312.) _ 45.1-185. Additional bond to be posted annually; release of previous bond; report of reclamation work. - Within ten days followint the anniversary date of any permit, the operator shall post additional bond in the amount of no less than two hundred dollars nor more than one thousand dollars per acre for each acre of land estimated by him to be disturbed during the next year following the anniversay date of the permit. Bond or other security previously posted shall be released for the areas disturbed in the last twelve months if reclamation work has been completed or transferred to additional acres to be disturbed. The approval of the Director to release the bond shall be obtained in accourdance with the following: The operator shall file with the Department a written report on a form to be prescribed by the Department stating under oath that reclamation has been completed on certain lands and submit the following: (a) Identification of the operation; (b) the county or city in which it is located and its lcoation with reference to the nearest public highway; (c) a description of the area of land affected by the operation within the period of time covered by such report with sufficient certainty to enable it to be lcoated and distinguished from other lands; (d) an accurate map or plan prepared by a licensed land surveyor or licensed engineer or issued by a standard mapping service or in such manner as tob acceptable to the Director showing the boundary lines of the area of land affected by the oeprations, the number of acres comprising such area and the methods of access to the area from the nearest public highway. 119 _ 45.1-186.1 Notice of noncompliance served on operator. - The Director may cause a notice of noncompliance to be served on the operator whenever the operator fails to boey an order by the Director to: 1. Apply the contorl techniques and institute the actions approved in his operations and reclamation plan; 2. Comply with any required amendments to the operations or reclamation plan; or 3. Comply with any other requirement of this chapter or any rules or regulations promulgated pursuant thereto which affect the health, safety and welfare of the Commonwealth. A copy of the notice shall be delivered to the operator or served by certified mail addressed to the operator at the permanent address shown on the application for a permit. The notice shall specify in what respects the operator has failed to obey the order of the Director and shall require the operator to comply with the order within a reasonable period of time as fixed by the Director, following service of the notice. If the operator has not complied with the requirements set forth in the notice of noncompliance within the time limits fixed therein, the Direcotr shall revoke the permit and declare the forfeiture of the entire bond, which, when collected, shall be deposited in the State treasry in a special reclamation fund to be used by the Director in performing reclamation under the provisions of this chapter. After completion of the reclamation and payment of all fees as required by this chapter, and additional funds from the forfeiture: (i) of the bond shall be returned to the corporate surety; or (ii) of the callateral security, certified check or cash that has been deposited in lieu of bond, shall be returned to the person who provided it orginally or to the operator. If the operator files with the Director notice that he will appeal the order revoking the permit and declaring a forfeiture to the Board of Surface Mining review, then the Director's orders under this section shall be held in abeyance until the appeal is determined by the Board of Surface Mining Review. (1977, c. 312.) Cross reference. - As to the forfeiture of payments made to the Minerals Reclamation Fund upon revocation of a permit under this section, see _ 45.1-197.12. _ 45.1-187. Additional bond to cover amended estimate of land to be disturbed. - If, during any operation, it is found that the operator's estimate of the amount of disturbed land for which bond or other security has been posted for reclamation is less than the actuarl area disturbed, the Director shall order the operator to file additional bond or security sufficient to cover an amended estimate of land to be disturbed by such operation. _ 45.1-188. Interference with reclamation unlawful; other mining operations on land. - It shall be unlawful for any owner or owners of surface rights or the owner or owners of mineral rights to interfere with the operator in the discharge of his obligations to the State for the reclamation of lands disturbed by him. If the owner or owners of survace rights or the owner or owners of mineral rights desire to conduct other mining operations on lands disturbed by the operator furnishing bond hereunder, such owner or other person shall be in all respects subject to the provisions of this chapter and the Director shall then release an equivalent amount of bonds to the operator orginally furnishing bond on the disturbed area. (1968, c. 734; 1974, c. 312.) 120 _ 45.1-191. Penalty for violation of chapter. etc. - Any violation of any provision of this chapter or any order of the Director shall be a misdemeanor punishable by a maximum fine of one thousand dollars or a maximum of one year in jail, or both (1968, c. 734; 1974, c.312) _ 45.1-193.1. Injunction prohibiting mining operation. - Whenever adverse ecological disruptions or the injurious effects therof seriously threaten or endanger the health, safety, welfare and property rights of citizens of Virgina, and abatement is not feasible by the application of control techniques, the Director shall petition the appropriate circuit court for an injunction to prohibit further operations. Such injunction shall not relieve the operator from his duty to reclaim lands, previously affected according to te terms and conditions of the permit. (1977, c. 312.) _ 45.1-197. Local standars and regulations; waiver of aplication of chapter; review for strict compliance with chapter. - Counties, cities and towns may establish standars and adopt regulations dealing with the same subject, provided, however, such standards and regulations shall not be below those adopted by the Director. This chapter shall not be construed to repeal any lcoal ordinace or regulation or charter provision now in effect in any county, city or town where the provisions are not less than the standards adopted by the Director. The Director may waive the application of the chapter if, in his opinion, a county, city or town in which mining operations are being conducted has enacted and is enforcing zoning ordinances dealing with the subject matter, prescribing standards and regulations not below those set forth in this chpater. IF the Director waives the provisions hereof, the operator shall comply strictly with all the provisions of the ordinances of such counties, cities and towns in which his operations are located. The Director may also waive the applciation of this chapter as to any mining or borrow pit operations which is conducted solely and exculsively for a State project and which is subject by contract to the control and supervision of a State agency, provided regulations satisfactory to the Director have been promulgated and are incorporated in any contract for such removal. The county, city, town or State agency shall assure strict compliance will all the provisions of the ordinances, regulations or cotnracts and the Director shall from time to time review the ordiances, regulations or contracts and the enforcement programs to assure compliance with this chapter, then he may rescind his waiver of the application of this chapter. _ 45.1-197.3. Definition. - For the purpose of this article, the term "orphaned lands" shall mean lands disturbed by surface mining of minerals other than coal operations which were not required by law to be reclaimed or which have not been reclaimed. (1978, c.634.) _ 45.1-197.4. Survey; priorities for reclamation. - The Director shall cause a survey to be conducted to determine the extent of the orphaned lands in this Commonwealth and shall establish priorities for the reclamation thereof. (1978, c.634.) _45.1-197.5. Agreements with owners or lessees; reclamation by Director. - The Director is authorized to enter into agreements with owners or lessees of orphaned lands when the owners agree to the reclamation of such lands by the Division to the extent and in the manner deemed appropriate or reasonable by the Director. In no event shall the Director return orphaned land to other than the minimum potential use thereof which obtained prior to the initiation of mining operations unless the landowner or owners, lessee or lessees, agree to bind himself or themselves to the payment of the additional cost upon such terms as the Director deems reasonable. In entereing into such agreements, the Director shall be guided by the prioriteis for reclamation established by him, but in no event shall the Director enter into such agreement unless funds are immediately available for the performance of the agreement by the Director as hereinafter provided. (1978, c. 634.) 121 APPROVAL BY THE STATE CORPORATION COMMISSION OF ELECTRICAL UTILITY FACILITIES _ 56-46.1. Commission to consider environmental factors in approving construction of electrical utility facilities; approval required for construction of certain electrical transmission lines; notice and hearings. - Whenever under any provision of law whatsoever, applicable to the Commission, the Commission is required to approve the construction of any electrical utility facility, it shall give consideration to the effect of that facility on the environment and establish such conditions as may be desirable or necessary to minimize adverse environmental impact. In such proceedings it shall receive and give consideration to all reports that relate to the proposed facility by state agencies concerned with environmental protection; and if requested by any county or municipality in which the facility is proposed to be built; to local comprehensive plans that have been adopted pursuant to Article 4 (_ 15.1-446.1 et seq.) of Chapter 11 of title 15.1 of the Code of Virginia. No overhead electrical transmission line of 150 kilovolts or more shall be constructed unless the State Corporation Commission shall, after at least 30 days' advance notice by publication in a newspaper or newspapers of general circulation in the counties and municipalities through which the line is proposed to be built, and written notice tot he governing body of each such county and municipality, approve such line. As a condition to approval the Commission shall determine that the corridor or oute the line is to follow will reasonable minimize adverse imapct on the scenic and environmental assets of the area concerned. If, prior to such approval, and interested party shall request a public hearing, the Commission shall, as soon as reasonably practica- ble after such request, hold such hearing or hearings at such place as may be designated by the Commission. Such approval shall not be required for transmission lines constructed prior to January 1, 1983, for which the Commis- sion has issued a certificate of convenience and necessity. In the hearing the public service company shall provide adequate evidence that existing rights-of-way cannot adequately serve the needs of the company. For purposes of this section, "interested parties" shall include the governing bodies or any counties or municipalities through which the line is proposed to be built, and persons residing or owning property in each such county or municipality and "environmental" shall be deemed to include in meaning "historic." Approval of a transmission line pursuant to this section shall be deemed to satisfy the requirements of _ 15.1-156 and local zoning ordinances with respect to such transmission line. 122 APPROVAL BY THE STATE CORPORATION COMMISSION OF NEW GENERATION FACILITIES _ 56.234.3. Approval of expenditures for and monitoring of new generation facilites and projected operation programs of electric utilities. - Prior to construction or financial commitments therefor, and elec- tric utility subject to the jurisdiction of the State Corporation Commission intending to construct any new generation facility capable of producing 100 megawatts or more of electric energey shall submit to the State Corporation Commission a petition setting forth the nature of the proposed construction and the necessity therefor in relation to its projected forecast of programs of operation. Such petition shall include (i) the utility's preliminary construction plans, (ii) the methods by which the work will be contracted, by competitive bid or otherwise, (iii) the names and addresses of the contractors and subcontractors, when known, proposed to do such work, and (iv) the plan by which the public utility will monitor such construction to ensure that the work will be done in a proper, expeditious and efficient manner. The Commission, upon receipt of the petition, shall order that a public hearing be held to assist it in accumulating as much relevant data as possible in reaching its determina- tion for the necessity of the proposed generation facility. The Commission shall review the petition, consider the testimony given at the public hearing, and determine whether the proposed improvements are necessary to enable the public utility to furnish reasonably adequate service and facilities at reason- able and just rates. After making its determination, the Commission shall enter an order within nine months after the filing of such petition either approving or disapproving the proposed expenditure. Upon approval, the Com- mission shall set forth in its order terms and conditions it deems necessary for the efficient and proper construction of the generation facility. Every electric utility capable of producing 100 megawatts or more of electric energy shall annually file with the Commission a five and ten-year projected forecast of its programs of operation. Such a forecast shall include, but not be limited to, the anticipated required capacity to fulfill the requirements of the forecast, how the utility will achieve such capacity, the financial requirements for the period covered, the anticipated sources of those financial requirements, the research and development procedures, where appropriate, of new energy sources, and the budget for the research and development program. In addition, the Commision shall investigate and monitor the major con- struction projects of any public utility to assure that such projects are being conducted in an economical, expeditious, and efficient manner. Whenever uneconomical, inefficient or wasteful practices, procedures, designs or planning are found to exist, the Commission shall have the aurthor- ity to employ, at the sole expense of the utility, qualified persons, answerable soley to the Commission, who shall audit and investigate such practices, procedures, designs or planning and recommend to the Commission measures necessary to correct or eliminate such practices, procedures, designs or planning. Consistent with _ 56-235.3, any public utility, electric or otherwise, seeking to pass through the cost of any capital project to its customers, shall have the burden of proving that such cost was incurred through reasonable, proper and efficient practices, and to the extent that such public utility fails to bear such burden of proof, such costs shall not be passed on to its customers in its rate base. The Commission shall have the authority to approve, disapprove, or alter the utility's program in a manner consistent with the best interest of the citizens of the Commonwealth. The petitioning or filing public utility may appeal the decision of the Commission to the Supreme court of Virginia. 123 MANAGEMENT OF SUBAQUEOUS LANDS _ 62.1-1. Ungranted beds of bays, rivers, creeks and shores of the sea to remain in common. - All the beds of the bays, rivers, creeks and the shores of the sea within the jurisdiction of this Commonwealth, and not conveyed by special grant or compact according to law, shall continue and remain the property of the Commonwealth of Virginia, and may be used as a common by all the people of the State for the purpose of fishing and fowling, and of taking and catching oysters and other shellfish, subject to the provisions of Title 28.1, and any future laws that may be passed by the General Assembly. And no grant shall hereafter be issued by the State Librarian to pass any estate or interest of the Commonwealth in any natural oyster bed, rock, or shoal, whether the bed, rock or shoal shall ebb bare or not. (Code 1950, _ 62-1; 1960, c. 533; 1968, c. 659.) _62.1-3. Authority required for use of subaqueous beds. - It shall be unlawful and constitute a Class 1 misdemeanor for anyone to build, dump, or otherwise trepass upon or over or encroach upon or take or use any materials from the beds of the bays and ocean, rivrs, streams, creeks, which are the property of the Commonwealth unless such act is pursuant to statutory authority or a permit by the Marine Resoruces Commission Statutory author- ity is hereby confarred for the doing of such acts as are necessary for (1) the erection of dams, the construction of which has been authorized by proper authority; (2) the uses of subaqueous beds authroized under the provisions of Title 28.1 of the Code; (3) the construction and maintenance of congressionally approved navigation and flood-control projects undertaken by the United States Army Corps of Engineers, United States Coast Guard, or other federal agency authorized by Congress to regulated navigation, navigable waters, or flood control; (6) fills by riparian owners opposite their property to any lawfully established bulkhead line, provided that such owners have been granted, prior to July 1, 1972, a certificate of assurance from the State Water Control Board pursuant to _ 21 (b) of the Water Quality Improvement Act of 1970; (9) piers, docks, marine terminals and port facilities owned or leased by or to the Commonwealth or a political subdivision thereof; (10) the placement of private piers for noncommercial purposes by owners of the riparian lands in the waters opposite such riparian lands, provided such private piers shall not extend beyond the navigation line or lawful private pier lines established by proper authority; and (11) causing the removal fo silt and other waste material inside any lawfully established bulkhead line by riparian owners opposite their prop- erty incident to the construction and use of any graving dock, drydock or other shipbuilding facilities, where such owners have obtained prior to July 1, 1972, a certificate of assurance from the State Water Control Board pursuant to _ 21 (b) of the Water Control Improvement Act of 1970. The Marine Resources Commission shall have the authority to issue permits for all other reasonable uses of state-owned bottomlands, including but not limited to, the taking and use of material, the placement of wharves, bulkheads, dredging and fill by owners of riparian lands in the waters opp- site such riparian lands, provided that such wharves, bulkheads and fill shall not extend beyond any lawfully established bulkhead line. The Marine Resources Commission is hereby authorized and empowered, but not in conflict with the United States Corps of Army Engineers, to establish bulkhead lines and lawful private pier lines on or over bays, rivers, creeks, streams and the shores of the ocean, to the extent owned by or subject to the jurisdiciton of the Commonwealth for that purpose, and to issue and publish maps and plats showing such lines. 124 The Marine Resources Commission shall have the authority to issue permits for the recovery of underwater historic property pursuant to this section and _ 10-145.9 of the Code of Virginia. The permits issued by the Marine Resources Commission shall be in writing and shall specify such conditions, terms and royalties as the Marine Resoruces Commission deems appropriate. In granting or denying any permit for the use of state-owned bottomlands, the Commission shall be guided in it deliberations by the provisions of Section 1 of Article XI of the Constitution of Virginia, and shall consider, among other things, the effect of the proposed project upon other reasonable and permissible uses of state waters and state-owned bottomlands, its effect upon the marine and fisheries resources of the Commonwealth, it effect upon the wetlands of the Commonwealth, except when its effect upon said wetlands has been or will be determine dunder the provisions of Chapter 2.1 (_ 62.1-13.1 et seq.) of this title, and its effect upon adjacent or nearby properties, its anticipated public and private benefits, and, in addition thereto, the Commission shall give due consideration to standards of water quality as established by the State Water Control Board. No permit for a marina or boatyard for commerical use shall be granted unless the owner or other applicant prior to issue presents a plan for sewage treatment or disposal facilities which is approved by the State Department of Health. The Marine Resources Commission shall consult with any state agency, including the Virginia Institute of Marine Science, the Water control Board, the State Department of Highways and Transportation and the State Corportion Commission whenever the decision of the Marine Resources Com- mission on an aplication for a permit relates to or affects the particular concersn or activities of other state agencies. A fee of twenty-five dollars shall be paid for issueing each such permit as charge for such permit, but if the cost for the project or facility is to be more than $10, 000, the fee paid shall be $100. A fee of twenty-five dollars shall be paid for issuing each permit for recovery of underwater historic property. Whne the activity or porject for which a permit is requested involves the removal of bottom material, the application shall so state and the Marine Resources Com- mission shall specify in each such permit issued a royalty of not less than twenty cents per cubic yard for new removal, provided that no royalty for the removal of bottom material shall exceed the amount of sixty cents per cubic yard of material removed. In fixing the amount of royalty to be paid for removal of bottom material, the Commission shall consider, among other things, the primary and secondary purposes of the removal of bottom material, whether the material has any commercial value and whther it will be used for any commercial purpose, the use to be made therof and any public benefit or any adverse effect upon the public in connection with the removal or disposal, the physical characteristics of the material removed, and the expense of its removal and disposal. Nothing contained herein shall preclude the imposition and royalties provided above where it appears that the project or facility for which an application for permit is made has been completed or work thereon already commenced at the time such application is made. Bottom material removed attendant to maintenance dredging shall be exempt from any royalty. The Virginia Department of Highways and Transportation shall be exempt from all such fees and royalties otherwise assessable pursuant to this section. All counties, cities and towns of the Commonwealth shall be exempt from permit fees and royalties other than the permit issuing fee; provided that a permit as required under this section be issued prior to the commencement of any of the work to be accomplished under said permit. All royalties or funds that are collected from such agreements or contracts shall be paid into the state treasury to the credit of the Special Public Oyster Rock Replenishment Fund for the purposes of such fund. Expenditures and disbursements of all sums from such fund shall be made by the State Treasurer on warrant of the COmptroller issued on vouchers signed by such person or persons as shall be so authorized and designated by the Marine Resources Commission. All permits heretofore issued pursuant to this section or prior _ 62-2.1 are hereby ratified, validated and confirmed. Any person aggrieved by a decision of the Marine Resources Commission pursuant to this section shall have the right to judicial review of said decision as provided in _ 28.1-33 fo the Code of Virginia. 125 _ 62.1-4. Granting easements in, and leasing of, the beds of certain waters. - The Marine Resources Commission, with the approval of the Attor- ney General and the Governor, may grant easements in, and may lease, the beds of the waters of the State, without the Baylor Survey. Every such ease- ment or lease may be for a period not exceeding five years, may include the right to renew the same for an additional period not exceeding five years each and shall specify the rent royalties and such other terms deemed expedient and proper. Such easements and leases may, in addition to any other rights, autho- rize the grantees and lessees to prospect for and take from the bottoms covered thereby, oil, gas, and such other minerals and mineral substances as are therein specified; provided, that no such easement or lease shall in any way affect or interfere with the rights vouchsafed to the people of the State concerning fishing, fowling, and the catching and taking of oysters and other shellfish, in and from the bottoms so leased, and the waters covering the same. All easements granted and leases made under the authority granted by this section, shall be executed in the name and for and on behalf of the State, by the Attorney General, and shall be countersigned by the Governor. All rents or royalties colected from such easements or leases shall be paid into the state treasury to the credit of the Special Public Oyster Rock Replenishment Fund for the purposes of such fund. Expenditures and disbursements of all sums form such fund shall be made as provided in _ 62.1-3. The Commissioner of Marine Resources and the Attorney General shall make reports to the General Assem- bly of all such easements granted or leases so made, such reports to be made on or before the first day of December preceding the convening of each regular session thereof. WETLANDS POLICIES _ 62.1-13.1. Declaration of policy. - The Commonwealth of Virginia hereby recongnizes the unique character of the wetlands, an irreplaceable nat- ural resource which, in its natural state, is essential to the ecological systems of the tidal rivers, bays and estuaries of the Commonwealth. This resource is essential for the production of amrine and inland wildlife, waterfowl, finfish, shellfish and flora; is valuable as a protective barrier against floods, tidal storms and erosion of the shores and soil within the Commonwealth; is impor- tant for the absorption of silt and of pollutants; and is important for recre- ational and aesthetic enjoyment of the people for the promotion of tourism, navigation and commerce. Continued destruction of Virginia's coastal wetlands willg greatly contribute to the pollution of the Commonwealth's river, bays and estuararies; will dimin- ish the abundance of Virginia's marine and inland animals and waterfowl, finfish, shellfish and flora as sources of food, employment and recreation for teh people of Virginia; will increas costs and hazards associated with floods and tidal storms; and will accelerate erosion and the loss of lands productive to the economy and the well-being of our citizens. Therefore, in order to protect the public interest, promote the public health, safety and the economic and general welfare of the Commonwealth, and to protect public and private property, wildlife, amrine fisheries and the natural environment, it is declared to be the public policy of this Commonwealth to preserve the wetlands and to prevent their despoliation and destruction and to accomodate necessary economic developement in a manner consistent with wetlands preservation. (1972, c. 711.) 126 1 62.1-13.2. Definitions.- For the purposes of this chapter, the following words shell have the meanings respectively ascribed to them- (a) Commission means the Virginia Marine Resources Commission. *On. (b) "Commisioner means the Commisioner of Marine Resources. (c) "Person" means any corporation, ass ciation, or partnership, one or more Individuals, or any unit of government or agency thereof. (d) "Tidewater Virginia" means the following counties: Accornack, Arlington, Caroline, Charles City, Chesterfield, Essex, Fairfax, Gloucester, Hanover, Henrico, Isle of Wight, James City, King George,Kinq and Queen, King William, Lancaster, Mathews, Middlesex, New Kent,Northhampton, Northumberland, Prince George, Prince William, Richmond,Sportsylvania, Stafford, Surry, Westmoreland, and York; and the citie of Alexandria. Chesapeake, Colonial Heights,. Fairfax, Falls Church, Fredericksburg. Hampton, Hopewell, Newport News, Norfolk, Petersburg, Poquoson, Portsmouth. Richmond, Suffolk, Virqinia Beach and Williamsburg. (a) "Governmental activity" means any or all of the services provided by the Commonwealth, or a county, city or town to its Citizens for the purpose of maintaining public facilities and shall include but shall not be limited to suh services as constructing, repairing and maintaining roads, sewage facilities, supplying and treating water, street lights, and construction of public build- ings. (b) "Veqetated wetlands" means all that land lying between and contiguous to mean low water and an elevation above mean low water equal to the r 1.5 times the mean tide range at the site of the proposed project in the county, city or town in question: and upon which is qrowing on July 1, 1972, or grows thereon subsequent thereto, any one or more of the following: saltmarsh cordqrass (Spartina,alterniflora), saltmeadow hay (Spartina patens), saltgrass (Distichlis spicata), black needlerush (Juncas roemerianus), saltwort (Salicornia spp.), sea lavender (Limonium spp.), marsh elder (Iva frutescens), groundsel bush (Baccharis halimifolia), wax myrtle (Myrica sp.), sea oxeye (Barrichia frutescens), arrow arum (Peltandra virginica), pickerelweed (Pontaderia cordata), big cardgrass (Spartina cynosuroides), rice cutgrass (Learsua irtzuides), wildrice (Zizania aquatica), bulrush (Scirpus validus), spikearush (Eleocharis sp.), sea rocket (Cakile edentula), southern wildrice (Zizaniopsis miliacen), cattails (Typha spp.), three-squares (Scirpus spp.), buttonbrush (Cephalanthus occidentalis), bald cypress (Taxodium distichum), black gum (Nyssa sylvatiea), tupelo (Nyssa aquatica), dock (Rumex spp.), yellow pond lily, (Nunhar sp.), marsh fleabane (Pluchea purpurascens), royal fern (0smunda regalis), marsh fleabane (Hlbiscus moscheutos), beggar's tick (Bidens sp.), smartweeds (Polygonum sp.). arrowhead (Saggittaria spp.), sweet flag (Acarus calamus), water hemp (Amaranthus cannabinus), reed grass (Phragmites communis) and switch grass (Panicum virgatum). The vegetated wetlands of Back Bay and its tributaries and the vegetated River and its tributaries shall mean all marshes subject to flooding by normal tides, including wind tides, provided this shall not include hurricane or tropical storm tides and upon which. one or more of the following vegetation species are growing or grows thereon subsequent to the of this amendment: saltmarsh cordgrass (Spartina alterniflora), saltmeadow hay (Spartina patens), black needlerush (Juncas roemerianus), marsh elder (Iva frutescens), groundsel bush (Baccharis halimifolia), wax myrtle (Myrica sp.), arrow arum (Peltandra virginica), pickarelweed. (Pontederia cordata), big cordgrass (Spartina cynosuroides), rice cutgrass (Leersia oryzaides), wildrica (Zizania aquatica), bulrush (Scirpus validus), spikerush (Eleocharis sp.), cattails (Typha spp.), three-squares (Scirpus spp.), dock (Rumex sp.), smartweed (Polygonum sp.), yellow pond lily (Nuphar sp.), royal fern (Osmunda regalis), marsh hibiscus (Hibiscus moscheutos), beggar's tick (Bidens sp.), arrowhead (Saggittaria sp.), water hemp (Amaranthus cannabinus), reed grass (Phragmites communis) and switch grass (Panicum vigatum). (g) "Wetlands board" or "Board" means a board created as provided in 62.1-13.6q6. (h) "Welands zoning ordinances" means that ordinance set forth in (i) "County, city or town" shall mean the governing body of such county, city or town. (j) "Back Bay and its tributaries" means the following as shown an the U.S. Geological Survey Quadrangle Sheets for Virginia Beach, North Bay, and Knott Island: Back Bay north of the Virqinia-North Carolina State line; Capsies Creek north of the Virginia-North Carolina State line; Deal Creek-.,- 127 Devil Creek; Nawqney Creek, Redhead Bay, Sand Bay, Shipps Bay, North Bay, and the waters connecting them; Beggars Bridge Creek; Muddy Creek-, Ashville Bridge Creek; Hells Point Creek; Black Gut; and all coves, ponds and natural waterways adjacent to or connecting with the above-named bodies of water. (k) "North Landing River and its tributaries" means the following as based on, United States Geoloqogical Survey Quadrangle Sheets for Pleasant Ridge, Creeds, and Fentress: the North Landing Myer from the Virginia-North Carolina. line to Virginia Highway 165 at North Landing Bridge; the and Albemarle Canal from Virginia Hiqhway 165 at North Landing Bridge to the locks at Great Bridge; all named and unnamed streams, creeks and rivers flowing, into the North Landing River and the Chesapeake and Albemarle Canal except the following.- West Neck Creek north of Indian River Road; Pocaty River west of Blackwater Road-, Blackwater River west of its forks located at a point approximately 6400 feet due west of the point where the Blackwater Road crosses the Blackwater River at the village of Blackwater, Millbank Creek west-of Blackwatar Road. (l) "Nonvegetated wetlands" means all that land lying contiguous to mean low water and winch land is between mean low water and mean high water not otherwise included in the tam 'vegetated wetlands" as defined herein and also includes those unvegetated areas of Back Bay and its tributaries and the North Landing River and its tributaries subject to flooding by normal tides including wind tiaes but not hurricane or tropical storm tides. (m) "Wetlands" means both vegetated and nonvegetated wetlands. � 62.1-13.3 Standards for use and development of wetlands; utilization of guidelines. - The following standards shall apply to the use and development of wetlands and shall be considered in the determination of whether applications required by this chapter should be granted or denied-. (1) Wetlands of primary ecological significance shall not be altered so that the ecological system in the wetlands are unreasonably disturbed; (2) Development in Tidewater Virginia, to the maximum extent practical. shall be concentrated in wetlands of lesser ecological significance,in vegetated wetlands which have been irreversibly disturbed before July 1, 1972, in nonvegetated wetlands as described herein which have been irreversibly disturbed prior to January 1, 1983, and. in areas or Tidewater Virginia apart .fro= the wetlands. (3) The provisions of the guidelines promulgated by the Commission pur- suant to � 62.1-13.4 of this Code shall be considered in applying the foregoing standards. 62.1-13.4. Marine Resources Commission to develop guidelines.- In order to implement the policy set forth in � 62.1-13.1 and to assist counties, cities or towns in regulation of vegetated and nonvegetated wetlands, the Commission shall with the advice and assistance of the Virginia Institute of Marine Science, which will evaluate wetlands by type and maintain a cc inventory of vegetated wetlands, from time to time promulgate in with the Administrative Process Act [� 9-6.14:1 et seq.] guidelines which scientifically evaluate vegetated and nonvegetated wetlands by type and which set forth the consequences of use or these wetlands types. in developing guidelines, the Commission shall consult with any affected state governmental agency. 128 62.1-13-5. Counties, cities and towns authorized to adopt wetlands zoning ordinance; terms of ordinance. - Any county, city or town may adopt the following ordinance, which, after January 1, 1983,shall serve as the only wetlands zoning ordinance under which any wetlands board is authorized to Operate. Upon notification by any county, city or town that such ordinance has been adopted, the Commission shall immediately forward to the wetlands board of such county, city or town any application then pending before the Commission over which that wetlands board would have had jurisdiction, --had such ordinance been in effect at the time of Ming by the applicant; however, if so requested by the applicant, such application shall remain within the jurisdic- tion of the Commission: WETLANDS ZONING ORDINANCES I L The governing body of ......... acting pursuant to Chapter 2.1 of Title 62.1 of Code of Virginia, for purposes of fulfilling the policy standards set forth in such chapter, adopts this ordinance regulating the use and development of wetland. 2. Definitions. - For the purposes of this ordinance: (a) "Commission" means the Virginia Marine Resources Commission. (b) "Commissioner" means the Commissioner of Marine Resources. (c) "Person" means any corporation, association or partnership, one or more individuals, or any unit of government or agency thereof. (d) "Governmental, activity " means any or all of the services provided by this .......... to its citizens for the purpose of maintaining this ........ and shall include but shall not be limited to such services as constructing, repairing and maintaining roads, sewage facilities, supplying and treating water, street lights and construction of Public buildings. (e) "Vegetated wetlands" means all that land lying between and contiguous to mean low water and an elevation above mean low water equal to the factor 1.5 times the mean tide range at the site of the proposed project in this . . . .......... ; and upon, which is growing on, the effective date of this act or grown thereon subsequeqnt thereto, any one or more of the following saltmarsh cordgrass(Spartina alterniflora), saltmeadow hay (Spartina paterns), saltgrass (Distiehlis spicata), black needlerush (Juncus roemerianus), saltwort (Salicornia sp.), sea lavender (Limonium sp.), marsh elder (Iva frutescens), groundsel bush (Baccharis halimifolia), wax myrtle (Myrica sp.), sea oxeye (Borrichia frutescens), arrow arum (Petlandra viqrginica), pickerelweed (Pontaderia cordata), big cordgrass (Spartina cynosuroides), rice entgrass (Leersia oryzoides), wildrice (Zizania aquatica), bulrush (Scirpus validus), spikerush (Eleocharis sp.), sea rocket (Cakile edentula), southern wildrice (Zizanioosis miliacea), cattails (Tyoha spp.), three-squares (Scirpus spp.), buttonbush (Cephalanthus occidentalis), bald cypress (Taxodium distichum), black gum (Nyssa sylvatica), tupelo (Nyssa aquatica), dock (Rumex sp.), yellow pond lily (Nuehar sp.), marsh fleabane (Pluchea purpurascens), royal fern (Osmnda regalis), marsh hibiscus (Hibiscus moscheutos), beggar's tick (Bidens sp.), smartweed (Polygonum sp.), arrowhead (Sagittaria spp.). sweet flag (Acorus calamus), water hemp (Amaranthus cannabinus), reed grass (Phragmites communis), and switch grass (Panicum virgatum). The vegetated wetlands of Back Bay and its tributaries and the vegetated wetlands,of the North Landing River and its tributaries shall mean all marshes subject to flooding by tides, including wind tides, provided this shall not include hurricane or tropical storm, tides, and upon which one or =ore of the following vegetation, species are growing or grows thereon subsequent to the passage of this amendment: saltmarsh cordgras (Spartina alteriflora), saltmeadow hay (Spartina patens), black needlerush (Juncus, reomerianus), marsh elder (Iva frutescens), groundsel bush (Baccharis balimifolia),wax myrtle (Myrica sp.), arrow arum (Peltandra virginica), pickeralweed (Pontederia cordata), big cordgrass (Spartina cynosuroides), rice cutgrass (Leersia oryzoides), wildrice (Zizania aquatica), bulrush (Scirpus validus), spikerush (Eleocharis sp.), cattails (Typha spp.),three-squares (Scirpus spp.), dock (Rumex sp.),smartweed (Polygonum sp.), yellow pond lily (Nuphar sp.), 129 royal fern (Osmuda regalis), marsh hibiscus (Hibiscus moscheutos), beggar's tick (Bidens sp.), arrowhead (Sagittaria- sp.), water hemp (Amaranthus cannabinus), reed grass (Phragmites communis), and switch grass (Panicum virgatum). (f) "Wetlands board" or "board" means a board created as provided in 62.1-13.6 of the Code of Virginia. (g) "Back Bay and its tributaries" means the following as shown on the U.S. Geological Survey Quadrangle Sheets for Virginia Beach, North Bay, and Knotts Island: Back Bay north of the Virginia-North Carolina State line; Capsies Creek north of the V1rginia-North Carolina State line; Deal Creek-, Devil Creek; Nawney Creek Redhead Bay, Sand Bay, Shipps Bay, North Bay, and. the waters connecting them; Beggars Bridge Creek; Muddy Creek-. Ashville Bridge k- Hal I Point Creek; Black Gut; and all coves, ponds and natural waterways to or connecting with the above-named bodies of water. (h) "North Landing River and its tributaries" means the following as based an the United States Geological Survey Quadrangle Sheets for Pleasant Ridge, Creeds, and Fentress: the North Landing River from the Virginia-North Carolina line to Virginia Highway 165 at North Landing Bridge; the Chesapeake and Albemarle Canal from Virginia Highway 165 at North Landing Bridge to the locks at Great Bridge; all named and unnamed streams, creeks, and rivers flowing, into the North Landing River and the Chesapeake and Albemarle Canal except the following.- West Neck Creek north of Indian River Road; Pocaty River west of Blackwater Road; Blackwater River west of its forks located at a point approximately 6400 feet due west of the point where the Blackwater Road creek west of the Blackwater River at the village of Blackwater; Millbank Creek west of Blackwater Road. "Nonvegetated wetlands" means all that land lying contiguous to mean, low water and which land is between mean low water and mean high water not otherwise incluuded in the term "vegetated wetlands" as defined herein and also includes those unvegetated areas of Back Bay and its tributaries and the North Landing River and its tributaries subject to the flooding by tides including wind tides but not including hurricane or tropical storm tides. (i) "Wetlands" means both vegetated and nonvegqetated wetlands. 3. The following uses of and activities on wetlands are permitted, if otherwise permitted by law: (a) The construction and maintenance of noncommercial catwalks, piers boathouses, boat shelters, fences, duckblinds, wildlife management shelters, footbridges, observation decks ,and shelters and other similar structures; pro. vided that such structures are so constructed on pilings as to permit the reason- ably unobstructed flow of the tide and preserve the natural contour of the wetlands. (b) The cultivation and harvesting of shellfish, and worms for bait; (c) Noncommercial outdoor recreational activities,including hiking, boating, trapping, hunging, fishing, shellfishing, horseback riding, swimming, skeet and trap shooting, and shooting preserves; provided that no structure shall be constructed except as permitted in subsection (a) of this section; (d) The cultivation, and harvesting of agricultural, forestry or horticultural products; grazing and haying., (e) Conservation,repletion and research activities of the Virginia Marine Resources Commission, the Virginia Institute of Marine Science, Commission of Game and Inland Fisheries and other related conservation agencies-, (f) The construction or maintenance of aids to navigation which are autho- rized by governmental authority-, (g) Emergency decrees of any duly appointed health officer of a governmental subdivision acting to protect the public health; (h) The normal maintenance, repair or addition to presently existing roads, highways, railroad beds, or the facilities of any person. firm, corporation, util- ity, federal, State, county, city or; town abutting on or crossing wetlands, pro- vided that no waterway is altered and no additional. wetlands are covered-, (i) Govenmental activity on wetlands owned or leased by the Common- wealth of Virginia, or a political subdivision thereof; and (j) The normal maintenance of man-made drainage ditches, provided that no additional wetlands are covered; and provided further, that this paragraph shall not be deemed to authorize construction of any drainage ditch. 4. (a) Any person who desires to use or develop any wetland within this (county, city or town), other than for those activities specified in & 3 above, shall first file an application for a permit with the wetlands board directly or through the Commision. (b) An application shall include the follwing: the name and address of the applicant; a detailed description of the proposed activity and a map, drawn to an appropriate and uniform scale, showing the area of wetland directly affected, with the location of the proposed work thereon, indicating the area of existing and proposed fill and excavation, especially the location, width, depth and length of any proposed channel and the disposal area, all existing and proposed structures; sewage collection and treatment facilityes,utility installa- tions, roadways, and other related appurtenances or -facilities, including those an adjacent uplands, and the type- of equipment to be used and the means of equipment access to the activity site; the names and addresses of owners of record of adjacent land and known claimants of water rights in or adjacent to the wetland of whom the applicant has notice;and estimate of cost; the primary purpose of the project; any secondary purposes of the project, including further projects; the public benefit to be derived from the proposed project; a complete description of measures to be taken during and after the alteration to reduce, detrimental offsite effects; the completion date of the proposed work, project,, or structure and such additional materials and documentation as the wetlands board may deem necessary. (c) A nonrefundable fee to cover the cost of processing the applica- tion. Set by the applicable governing body with due regard for the services to be rendered,including the time, skill, and administrator's expense involved,. shall accompany each application. 5. All applications and maps and documents relating thereto shall be open for public inspection at the office of the recording officer of this ......... (county, city or town). 6. Not later than sixty days after receipt of such application, the wetlands board shall hold a public hearing on such application. The applicant,the local governing body, the Commissioner, the owner of record of any land adjacent to the wetlands in question, known claimants of water rights in or adjacent to the wetlands in question, the Viginia Institute of Marine Science, the Department of Game and Inland Fisheries, Water Control Board, the Department of Highways and Transportation and governmental agencies expressing an inter- est tharein shall be notified by the board of the hearing by =ail not less than twenty days prior to the date set for the hearing. The wetlands board shall. also cause notice of such hearing to be published at least once a week for two weeks prior to such hearing in the. newspaper having a general circulation in this .....................county, city or town). The costs of such publication shall be paid by the applicant. 7. In acting on any application for a permit, the board shall grant the application upon the concurring vote of three members of a five-member board or four members of a seven-member board. The chairman of the board, or in his absence the acting chairman, may administer oaths and compel the attendance of witness. Any person may appear and be heard at the public hearing,Each witness at the hearing may submit a concise written statement of his testi- mony. The board shall make a record of the proceedinq, which shall include the application, any written statements of witnesses, a summary of statements of all witnesses, the findings and decision of the board, and the rationale for the decision. The board shall make its determination within thirty days from the hearing If the board fails to act within such time, the application shall be deemed approved. Within forty-eight hours of its determination, the board shall notify the applicant and the Commissioner of such determination and if the board has not made a determination, it shall notify the applicant and the Commission that thirty days has passed and that the application is deemed approved. The board. shall transmit a copy of the permit to the Commissioner. If the application is reviewed or appealed, then the board shall transmit the record of its hearing to the Commissioner. Upon a final determination by the Commis- sion, the record shall bib returned to the board. The record shall be open for public inspection at the office of the recording officer of this ....... (county, city or town). 8. The board may require a reasonable bond or letter of credit in an amount and with surety and conditions satisfactory to it securing, to the Common- wealth compliance with the conditions and limitations set forth in the permit, The board may, after hearing as provided herein, suspend or revoke a permit if the board finds that the applicant has failed to comply with any of the conditions or limitations set forth in the permit or has ecceeded the scope of the work as set forth in the application. The baud after hearing may suspend a permit if the applicant fails to comply with the terms and conditions set forth Me application. 9. (a) In making its decision whether to grant, to grant in modified form, or to deny an application for a permit the board shall base its decision on these factors: (1) Such matters raised through the testimony of any person in support of or in rebuttal, to the permit application. (2) Impact of the development an the public health and welfare as expressed by the policy and standards of Chapter 2.1 of Title 62.1 of the Code of Virginia and any guidelines which may have been promulgated thereunder by the commission. (b) If the board, in applying the standards above, finds that the anticipated public and private benefit of the proposed activity exceeds the anticipated public and private detriment and that the proposed activity would not violate or tend to violate the purposes and intent of Chapter 2-1 of Title 62.1 of the Code of Virginia and of this ordinance, the board shall grant the permit, subject to any reasonable condition or modification designed to minimize the impact of the activity on the ability of this ......... (county, city or town), to provide services and an the rights of any other person and to carry out the public policy set forth in Chapter 2.1 of Title 62.1 of the Code of Virginia and in this ordinance. Nothing in this section shall be construed as affecting the right of any person to seek compensation for any injury in fact incurred by him because of the proposed activity. If the beard finds that the public and private benefit from the proposed activity is exceeded by the antici- pated public and private detriment or that the proposed activity would violate the purposes and intent of Chapter ?-I of Title 62.1 of the Code Virginia and of this ordinance, the board shall deny the permit application with leave to the-, applicant to resubmit the application in modified form. 10. The permit shall be in writing, signed by the chairman of the board and, notarized. 11. No permit shall be granted without an expiration date, and the board, in the exercise of its discretion, shall designate an expiration date for comple. tion of such work specified in the permit from the date the board granted such permit. The board, however, may, upon proper application therefor, grant extensions. 12. No permit granted by a wetlands board shall affect in any way the applicable zoning and land use ordinances of this ........ (county, city or town). (1972, c. 711; 1973, cc. 382,388; 1975, c. 288; 1979, c. 418; 1982, c. 300.) 62.1-13.6. Appointment, terms, compensation, etc., 0f local wetlands boards; jurisdiction of county wetlands board over wetlands in town. - A. In and for any county, city or town which has enacted or enacts a wetlands zoning ordinance pursuant to this chapter, there shall be created a wetlands board; which shall consist of five or seven residents of the county, city or town appointed by the governing body of the county, city or town. All terms of office Shall be for five years each except that original appointments shall be made for such terms that the term of one member shall expire each year. The chairman of the board, shall notify the governing body at least thirty days in advance of the expiration of any term of. office, and shall also notify the governing body promptly if any vacancy occurs. Such vacancies shall be filled by the governing body without delay upon receipt of such notice. Appointments to fill vacancies shall be only for the unexpired portion of the term. Members may serve suc- cessive terms. Members of the board shall hold no other public office in the county or city except that they may be members of the local planning or zoning commissions, directors of soil and water conservation boards, or local erosion commissions, or of the local board of zoning appeals. A member whose term expires shall continue to serve until his successor is appointed and qualified. When such members are appointed to a, local wetlands board, their terms of appointment shall be conterminous with their membership on the local planning or zoning commission, soil and water conservation boards, or local erosion commissions or on the local board of zoning appeals. B. If a town does not enact a wetlands zoning ordinance within one year from the dim the county in which the town is found enacts a wetlands zoning. ordnance, application for wetiands found in* the town shall be made to the county wetlands board. C.Any county, city, or town which appoints a local wetlands board pursuant to this section may compensate the members of the board in accordance with such terms and conditions as. the locality may prescribe. 62.1-13.7. Officer, meetings, rules, etc, of wetlands boards; records and reports. - The board shall elect from its membership a. chairman and such other officers as it deems necessary who shall serve one-year terms as Such and may succeed themselves. For the conduct of any- hearing and the taking of any action, a quorum shall be not, less than three members of a five-member board or four members of a seven-member board. The board may make, alter and rescing rules and forms for its procedures, consistent with ordinances of the county, city, or town and general laws of the commonwealth, including this chapter. The board shall keep a full public record of ots pro- ceedings and shall submit a report of its activities to the governing body at least once year, and a copy of its report to the Commission. 62.1-13.8. Local qoverning body to supply meeting space and ser- vices for wetlands board; removal of board member. - The governing body of the county, city or town creating a wetlands board shall supply reason- able meeting space for the we of the board and such reasonable secretarial, clerical, legal and consulting services as may be needed by the board. The local governing body is authorized to expend the necessary public funds. Any board member may be removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause, by the governing body which appointed him%, after hearing held after at least fifteen days' notice. 62.1-13.9. Permits required for certain. activities; issuance of permits by Commission.- No person shall conduct any activity which would require a permit under a wetlands zoning ordinance unless he has a permit therefor. Until such time as the county, city or town in which a person proposes to conduct an activity which would require a permit under a wetlands zoning ordinance adopts the wetlands zoning ordinance such person shall apply for a permit directly to the Commission except as provided in � 62.1-13.6. (b). If an. applicant desires to use or develop wetlands owned by the Commonwealth, he shall apply for a permit directly to the Commission, and in addition to the application fee required by the wetlands zoning ordinance, he shall pay such fees and royalities as provided in 62.1-3. The commission shall process such application in accordance with the provi- sions of the wetlands zoning ordinance and the Commissioner shall sign such permit; provided, however, that the Commission shall have the authority to designate one or more hearing officers who may, in lieu. of the Commission, conduct public hearings as required in 62.1-13.5, and thereafter report such findings and recommendations to the Commission. (1972, c. 711) 62.1-13.10. Commissioner of Marine Resources to review all deci- sions of wetlands boards. - The Commissioner shall review all decisions of the wetlands board and notify the Commission of any decision, which in his opinion should be reviewed by the Commission. (1972, c. 711) 62.1-13.11. When Commission to review decision of wetlands board. - The Commission shall review a decision of a wetlands board made under a wetlands zoning ordinance when: (1) An appeal is taken from, such decision by the applicant for a permit or by the county, city or town where the wetlands are located; or (2) The Commissioner requests such review. The Commissioner shall request. such review only when he reasonably believes that the policy and standards of this chapter have not been adequately achieved or that any guidelines which may have been promulgated by the Commission have not been reasonably accommodated. In order to make such a request, the Commis- sioner must notify the board and the applicant and the county, city or town where the wetlands are located within ten days of receipt of notice to the Commissioner of the decision of the board. . (3) Twenty-rive or more freeholders of property within the county, city or town in which the proposed project is located sign and submit a petition to the Commission, provided, such petition must include a statement of particulars setting forth those specific instances wherein the petitioners do allege that the board did fail to follow the policy, standards or guidelines of this chapter. (4) Where not otherwise provided the foregoing requests for review or appeal shall be made within ten days from date of initial determination by the board; and provided that the Commission shall hear and decide such review or appeal within forty-five days after notice of such review or appeal is received a continuance may be granted by the Commission on a motion of the applicant or the freeholders as specified in � 62.1-13.11 (3) or the county, city or town where this wetlands are located. (1972, c. 711.) 62.1-13.12. Procedure for review. - (a) The Commissioner shall cause notice a( the review or appeal to be given to the board, to the applicant, to the freeholders specified in 62.1-13.11 (3) and to the county, city or town where the wetlands are located- (b) The Commission shall hear the appeal or conduct the review an the record transmitted by the board to the Commissioner and such additional evidence as may be necessary to resolve any controversy as to the correctness of the record. And the Commission, in its discretion, may receive such other evidence as the ends of justice require. (1972, c. 711) 134 62.1-13.13. When Commission to modify, remand orreverse decision of wetlands board. - The Commission shall modify, remand or reverse the decision of the wetlands board. (1) If the decision of the wetlands board will not adequately achieve the policy and standards of this chapter or will not reasonably accommodate any guidelines which may have been promulgated by the Commission hereunder, or (2) If the substantial rights of the appellant or the applicant have been prejudiced because the findings, conclusions or decisions are (a) In violation of constitutional provisions; or (b) In excess, of statutory authority or Jurisdiction of the wetlands board-, or (c) Made upon lawful procedure; or (d) Affected by other error of law-, or (e) unsupported by the evidence on the record considered as a whole; or (f) Arhitrary, capricious, or an abuse of discretion. 62.1-13.14. Notice of Commissioner's decision,-The Commission shall notify the parties of its determination within forty-qeight hours after the appeal or review. (1972, c. 711) 62.13.14:1. Timo for issuance of permit. - No permit shall be issued until the time within which a request for review or an appeal to the Commis- sion may be made has expired; and, if any such request for review or appeal is made, no activity for which such permit is required shall be commenced until the commission has notified the parties of its -determination. (1973, c. 65.) Appeals to courts. - (1) An appeal &a= any decision of the 62.1-13.15. Appeals to courts.- (1) An appeal from any decision of the Commission concerning an application for a permit granted or denied directly by the Commission, or from any decision of the Commission on review of or appeal from a decision of the board may be taken by the applicant, any of the freeholders as set forth in 62.1-13.11 (3), or by the county, city or town when the wetlands are located, within thirty days after the rendering of such deci- sion of the Commission, to the circuit court having jurisdiction in the govern- mental subdivision in which the wetlands involved in the decision are located. (2) Judicial review shall be in accord with the provisions of the Administra- tive Process Act,(� 9-6.14:l et seq.) except that the circuit court shall modify. or reverse the decision of the Commission or remand the case for further proceedings: (a) If the decision of the Commission will not adequately achieve *the policy and standards of this chapter or will not reasonably accomodate any guidelines which may have been promulgated by the Commission; or (b) If the substantial rights of the appellant have been prejudiced because of findings, conclusions or decisions which are (1) In violation of constitutional provisions; or (2) In excess of statutory authority or jurisdiction -of the Commission; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Unsupported by the evidence an the record, considered as a whole; or (6) Arbitrary, capricious, or = abuse of discretion. (c) From the final decision of the circuit court an appeal shall lie to the Supreme Court in the manner provided by law for appeals a civil cases. (1972, c. 711: 1985. c. 300.) 62.0-13.16. Investigations and prosecutions. -The Commission shall have the authority to investigate all projects whether proposed or ongoing which alter wetlands. The Commission shall have the power to prosecute all violations of any order, rule, or regulation of the Commission or of a wetlands board, or violation of any provision of this chapter. Wetlands boards shall have the authority to investigate all projects whether proposed or ongoing which alter wetlands located within the city, town or county establishing such wetlands board. Wetlands boards shall have the power to prosecute all viola- tons of any order of such boards, or any- violation of any provision of the wetlands zoning ordinance contained in � 62.1-13.5. 62.1-13.17. Commission may receive gifts, etc.- The Commission may receive gifts, grants, bequests, and devises of wetlands and of moneyw shall be taken and held for the uses prescribed by the donor, grantor, or testor and in accord with the purposes of this chapter. The Commission shall manage such wetlands in such a way as to maximize their ecological value and in, accord with the purpose of this chapter. (1972, c. 711.) � 62.1-13.18. Violation of orders, rules and regulations. - (a) Any per. son, who knowingly, intentionally, negligently or continually violates an order, rule or regulation of the Commission or of a wetlands board establish% pursuant to this chapter or violates any provision of this chapter or of a wetlands zoning ordinances enacted pursuant to this chapter or any provision, of a permit granted by a wetland board or the Commission pursuant to this chapter shall be guilty of a misdemeanor. Following a conviction, every day the Violation continues shall be deemed a separate offense. (1972, c. 711.) 62.1-13.18tL. Injunctions.- In addition to and notwithstanding the Pro- visions of � 62.1-13.18,upon petition of the Commission or a wetland board to the court of record having jurisdiction in the city or county wherein, any act is done or is threatened to be done which is unlawful, under the provisions of this chapter, the court may enjoin such unlawful act and may order the person so acting unlawfully, to take such steps as are necessary to restore, protect and preserve the wetlands involved. (1973. c. 65.) 62.13.19. Jurisdiction of Commission not affected. - Nothing in this chapter shall affect the Commission's sole jurisdiction over areas and activities as defined by Title 28.1 or � 62.1-3 of this Code. (1972, c. 711.) 62.1-13.20. Exemptions. - Nothing in this chapter shall affect (1) any project in vegetated wetlands commenced prior to July 1, 1972, or any project in nonvegetated wetlands commenced prior to January 1, 1983; however, this section sfiall not be deemed to exclude mom regulation under this chapter any activity which expands or enlarges upon a project already in existence or under construction at the time of such date, except for those activities exempted under � 62.1-13.5 (3) (h); (2) any project or development in vegetated wetlands for which, prior to July 1, 1972, or in nonvegetated wetlands for which, prior to January 1, 1983, a plan or plan of development thereof has been filed pursuant to ordinance or other lawful enactment with either an agency of the federal. or state government, or with either the planning commission, board of supervisors, or city council of the jurisdiction in which the project or development is located; (3) any project or development in vegetated wetlands, whether commenced prior to July 1, 1972, and in nonvegetated wetlands whether commenced prior to January 1, 1983, it located or to be located in whole or in part on ground or in an area an interest in which was authorized by the General Assembly to be conveyed prior to July 1, 1972, for vegetated wetlands and July 1, 1982, for nonvegetated wetlands; and (4) for the North Landing River and its tributaries exemptions (1) and (2) above shall take effect. July 1, 1975, for vegetated wetlands, and January 1, 1983, for nonvegetated. wetlands. For exemptions (1) and (2) herein to be effective, the project or development must be certified as exempt by the Commission or appropriate local wetlands board. The request for certification. must be riled prior to January 1, 1984. Prcojects or developments which have been determined by the Commission or the appropriate local wetlands board prior to July 1, 1982, to be exempt from the provisions of this chapter shall be considered to be certified. If the request for certification is not granted or denied within 120 days from receipt of request by the Commission or a local wetlands board, the certification will be concclu- sively presumed to have been granted. The time limitations and public hearing requirements imposed by 62.1=13.5 shall not apply to the certification pro- cess. Upon request by any person holding a certification issued by tqhe Commis- sion or a local wetlands board, the clerk of the circuit court having jurisdiction over the property on which the certfied project is located shall record such certification in the appropriate deed book of the circuit court. COASTAL PRIMARY SAND DUNES POLICIES 52.1-13.21. Legislative declaration: public policy. - The Common- wealth of Virginia hereby recognizes the importance of coastal primary sand dunes with their unique physiographic features which. in their natural state, serve as protective barriers from the effects of flooding and erosion caused by coastal star= thereby protecting life and property; that such dunes provide an essential source of natural sand replenishment for beaches and an impor. tant natural habitat for coastal fauna; and are important to the overall scenic and recreational attractiveness of Virginia's coastal area. Inappropriate development on coastal primary sand dunes and reaches can destroy vegetation. which stabilizes such features, alter the natural contour of these sand dunes and reaches, impede their natural formation and migration and interrupt wind and water currents which replenish the sand supply of beaches. Such alterations to coastal primary sand dunes and reaches may lead to increased shoreline erosion, coastal flooding, damage to fixed structures near the shore, loss of public and private open space, loss of wildlife habitat and increased expenditure of public funds. Therefore, in order to reasonably protect the public interest, promote public health, safety, the general welfare of the Commonwealth, protect private and public property from erosion and flooding and protect wildlife and the natural environment, it is declared to be the public policy of the Commonwealth whenever reasonably necessary to preserve and protect coastal primary sand dunes and reaches and to prevent their despoliation and destruction and whenever practical to accomodate necessary economic development in a manner consistent with the protection of such features. � 62.1-13.22. Definitions.- For the purpose of this chapter, the following words shall have the meanings respectively ascribed to them: A. "Commission" means the Virginia Marine Resources Commission. B. "Commissioner" means the Commissioner of the Virginia Marine Resources Commission. C. "County or city" means the governing body of such county or city. D. "Coastal Primary sand dune" means a mound of unconsolidated sandy soil which is contignous to mean high water, whose landward and lateral limits. are marked by a change in grade from ten percent or greater to less than ten percent, and upon any part of which is growing as of July 1, 1980, or grows thereon subsequent thereto, any one or more of the following: American beach grass (Ammophilla braviligulata); beach heather (Hudsonia tornetosa); dune bean (Strophostylis umbeliata var, paludigena); dusty miller (Artenisia stelleriana);sea oats (Uniola paniculats); sea rocket (Cakile edentula); seaside goldenrod (Solidago sempervirens); and short dune- grass (Panicum ararum). For purposes of this chapter, "coastal primary sand dune" shall not include any mound of sand, sandy soil or dredge soil which has been deposited by man for the purpose of the temporary storage of such material for later use. E. "Costal primary sand dune zoning ordinance" means that ordinance set forth in 62.1-13.25 of this code. F. "Governmental activity" means any or all of the services provided by the Commonwealth or a county or city to its citizens for the purpose of maintaining public facilities and shall include but not be limited to such services as can- structing, repairing and maintaining roads, sewage facilities, supplying and treating water, street lights and constructing public buildings. G. "Pasch" means a coastal segment of sandy beach fronting on the Chesapeake Bay (i) upon which there is mutual interaction of the forces or erosion, sediment transport and accretion, (ii) whose landward limit, where no coastal primary sand dune can be identified, is defined by the nearest man-made impermeable structure or structres similarly located where a proposed structure is contemplated, or roads or bulkheads and (iii) lies within a county, city or town which is receiving or has received Funds under the provisions of Chapter 21 (� 10-215 et seq.) of Title 10 of the Code. Whenever coastal Primary sand dunes are referred to in this chapter such reference shall also include reaches. 62.1-13.23. Standards for use of coastal primary sand dunes. -No permanent alteration of. or construction upon any coastal primary sand dune place which would: (i) impair the natural functions of the dune as described herein; (ii) physically alter the contour of the dune, (iii) destroy vegetation growing thereon as defined herein unless the wetlands board, or in its absence the Commission, determines that there will be no significant adverse ecoloqical impact, or that the granting of a permit hereunder is clearly necessary consistent with the public interest considering all material factors. 62.1-13.24. Guidelines. - In order to implement the policy set forth in 62.1-13.21 and to assist cities and counties in the regulation of coastal primary sand dunes, the Commission shall, with advice and assistance from the Virginia Institute of Marine Science, promulgate guidelines which set forth the consequences of the use of these dunes. In developing these guidelines, the Commission shall consult with any affected state qovenmental agency. 62.1-13.25. Certain counties and cities authorized to adopt coastal primary sand dune ordinance. - Any of the following counties, or cities which adopt a wetlands ordinance pursuant to � 62.1-13.5 may adopt the ordinance contained herein: the counties of Accomack, Lancaster, Mathews, Northampton and Northumberland and the cities of Hampton, Norfolk, and Virginia Beach. In the event that a locality has not adopted a wetlands ordinance pursuant to Chapter 2.1 (62.1-13.1 et seq.) of Title 62.1, such locality may adopt the ordinance contained herein; however, such locality shall appoint a wetlands board following the procedure specified in � 62.1-13.6. COASTAL PRIMARY SAND DUNE ZONING ORDINANCES 1. The governing body of ...... acting pursuant to Chapter 2.2 of Title 62.1 of the Code of Virginia, for the purposes of fulfilling the policy and standards set. forth in such chapter, adopts this ordinance regulating the. use and, development of coastal primary sand dunes. 2. Definitions. For the purpose of this ordinance: A. "Commission" shall mean the Virginia Marine Resources Commission. B. "Commissioner" shall mean the Commissioner of the Virginia Marine Resources Commission. C. "County or city' shall mean the governing body of such county or city. D. "Coastal primary sand dune" hereinafter referred to as "dune,". shall mean a mound of unconsolidated sandy soil which is contiguous to mean high water,whose landward and lateral limits are marked by a change in grade from ten per centum or qreater to less than ten per centum, and upon any part of which is growing on July 1, 1980, or grows thereon subsequent thereto, any one or more of the following- American beach grass (Ammophilla breviligulata); beach heather (Hudsonia tometosa); dune bean (Strophostylis umbrella var; paludigena); dusty miller (Arternisia stelleriana); saltmeadow hay (Spartina patens); seabeach sandwort (Arenaria peploides); sea oats (Uniola paniculata); sea rocket (Cakile edentula); seaside goldenrod (Solidago sempervirens); and short dune grass (Panicum ararum). For purposes of this ordinance, 'coastal primary sand dune" shall not include any mound of sand, 139 sandy soil or dredge soil which has been deposited by man for the purpose of the temporary storage of such material for later use. E. "Governmental activity" shall mean any or all of the services provided by the Commonwealth or a county or city to its citizens for the purpose of maintaining public facilities and shall include but not be limited to such ser- vices as constructing, repairing and maintaining roads, sewage facilities, sup- plying and treating water, street lights and constructing ublic buildinLys- F "Wetlands board" or 'board7 meaw the board cream as provided T@i' in iil-13.6 of the Code of Vtr=,'ni*a. � 3. The following uses of and activities on dunes are permitted if otherwise permitted by law- A. The construction and maintenanre of noncommercial walkways which do not alter the contour of the coastal primary sand dune; B. The construction and maintenance of observation platforms which are not an integral part of any dwelling and which do not alter the contour of the cowtal primary sand dune; C. The planting of beach grasses or other vegetation for the purpose or stabilizing coastal primary sand dunes; D. The placement of sand fences or other material on or adjacent td coastal primary sand dunes for the purpose of stabilizing@ such features, except that this provision thail not be interpreted to authorize the placement of any material which present 13 a public health or safety hazard-, E. Sand replenishment activities of any private or public concern provided no sand shall be removed from any coasta I primary sand dune inlew autho- rized by, lawful permit; F. The normal maintenance of any groin, jetty, riprap, bulkhead or other structuredesigned to control beach eropion which may abut a coastal primary sand dune-, G. The normal maintenance or repair of presently existing roads, highways, railroad beds and facilities of the United States, this State, or any of its counties or cities, or those of any person, firm, corporation, or utility, provided no coastal primary sand dunes are altered; IL Outdoor recreational activities, provided that such activities do not alter the natural contour of the coastal priiaary sand dune or destroy its vegetation; L The conservation and research activities of the Virginia Marine Rlsources Commiwion, Virginia Institute of Marine Science, Commission of Game and TnInnei Fisheries and other related conservation agencies; J. The construction and.maintenance of aids to navigation which are autho- rized by governmental authority-, K Activities pursuant to any emergency declaration by the governing body of any local government- or the Governor of the Commonwealth or any public health ofEcer for the purposes of protecting the public health or safety-, and L Governmental activity on coastal primary sand dunes owned or leased. by the Commonwealth of Virginia or a political subdivision thereoL � 4. Any person who desires to use or alter any coastal primary sand dune within this .......... (county or city), other than for those activities specified in � 3 herein, shall first file an application with the wetlands board in accor- dance with � 4 of � 62.1-13.5 of the Code of Vi inia- The wetlands board may establish a processing fee in accordance withT4 of � 62.1-13.5 of the Code of Vft-gilni*a. No person shall be required to file two.. separate applications for permits if the project to be undertaken would require that a permit be filed in accordance with � 62.1-13.5 as well as this ordinance. Under such circum- stances the fee accompanying the application required by 1 62.1-13.5 shall also be the fee for the purpose ot this ordinance. 15. All applications and maps and documents relating thereto shall be open for public inspection at the office of the recording officer of this .......... (county or city). f 6. Not later than sixty days after receipt of such application, the wetlands boards shall hold a public hearing on such application. The applicant, the local governing body, the Commissioner, the owner of record of any land adjacent to the coastal primary sand dunes in question, known. claimants of water rights in or adjacent to the coastal primary sand dunes in question, the Virginia Institute of Marine Science, the Department of Game and Inland Fisheries, the Water Control Board, the, Department of Highways and Transportation and governmental agencies expressing an interest therein shall be notified by* the board of the hearing by mail not less than twenty days prior to the date set for the hearing. The wetlands board shall also cause notice.of such hearing to be published at least once a week for two weeks prior to such. hearing in the newspaper having a general circulation in this ...... (county or city). The costs of such publication shall be'paL*d by the'applicant. J 7. In acting on any application for a permit, the board shall @=t the application upon the concurring vote of three members of a five-member board or four members of a seven-member board. The chairman of the -board, or in his absence the acting chairman, may administer oathsand compel the attendance of witnesses. Any person may appear and be heard at the public hearing. Each witness at the hearing may submit a concise written statement of his testi- mony. The board shall make a record of the proceeding, which shall include the application, any written statements of witnesies, a summary of statements of all witnesses, the findinm and decision of the board, and the rationale for the decision. The board shO make its determination within thirty days from the hearinc, If the board fails to act within such time, theapplication' shall be dee W roved. Within forty-eight. hours of its determination, the board SIL21 notl Ptdhe applicant and the Commissioner of such determination and if the board not made a determination, it shall notify the applicant and the Commission that thirty days has passed and that the application is deemed approved. The board shall transmit a copy of the permit to the Commissioner. If the .cati= is reviewed or appeaied, then the board shall transmit the record I hearing to the Commi ioner. Upon a final determination by the Commis- the record shall be returned to the board. The record shaH be open for public @@on at the ofla-Fe of the recording ofra 'cer of this ...... (county or city). � 8. e board may require a reasonable bond or letter of credit in an amount and with surety and conditions satisfactory to it securing to the Common- wealth compliance with the conditions and limitations set forth in the permit. The board may, after hearing as provided herein, suspend or revoke a permit if the , board finds that the applicant has failed to comply with any of the conditions or limitations set:forth in the permit or has exceeded the scope of the woric as set forth m' the application. The board after hearing may s;uspend a I ait if the applicant fails to comply with the terms and conditions set forth tf@e application. 19. A. In making this decision whether to grant, to grant in modified form, or to deny an application for a permit, the board shall base its decision on the follow factors: L S!% matters raised through the testimony of any person in support of or in rebuttal to the permit application. 2. Impact of the development on the public health and welfare as expressed by the policy and standards of Chapter 2.2 of Title 62.1 of the Code of Virginia and any guidelines which may have been promulgated thereunder by the Commission. B. If the board, in applying the standards above, finds that the anticipated public and private benefit of the proposed activity exceeds the anticipated public and private detriment and that the proposed activity would not violate the purposes and intent of Chapter 2.2 of Title 62.1 of the Code of Virginia and of this ordinance, the board shall grant the permit, subject to any reasonable condition or modification designed to minimize the impact of the activity on the ability of this ............ (county or city), toprovide governmental services and an the rights of any other person and to carry out public policy set forth in Chapter 2.2 of Title 62.1 of the Code of Virginia and in this ordinance. Nothing in this section Shan be construed as affecting the right of any person to see- compensation for any injury in fact incurred by him because of the proposed activity. If the board finds that the anticipated public and private benefit from the proposed activity is exceeded by the anticipated public and private detrient or that the proposed activity would violate the purposes and intent of Chapter 2.2) of Title 62.1 of the Code of Virginia and of this ordinance, the board shall deny the permit application with leave to the applicant to resubmit the application in modified form. 10. The permit shall be in writing, signed by the chairman of the board and notarized. 11. No permit shall be granted without an expiration date, and the board, in the exercise of its discretion, shall designate an expiration date for comple- tion of such work specified in the permit from the data the board granted such permit The board; however, may, upon proper application therefor, grant extensions. (1980, c. 660.) 62.1-13.26. Permits required for certain activities: isuances of permits by Commission. - No person shall conduct any activity which would require a permit under a coastal primary sand dune ordinance unless he has a permit therefor. Until such time as the county or city city in which a person proposes to conduct an activity which would require a permit under such ordinances adopts such ordinance, Such person shall apply for a permit directly to the Commission. (1980, c. 660.) 62.13..27. Administration; appeals; enforcement.- In adminis- tering the provisions of this chapter and in order to provide for appellate review and enforcement, the Commission. Commissioner or wetlands board as appro- priate shall, as to the Coastal Primary Sand Dune Protection Act or an ordinance adopted pursuant thereto, bear all those duties and responsibilities and follow those procedures specified in, � 62.1-13.7 through 62-1-13.19 of the Code of Virginia in the same manner and an the same basis as they administar and enforce the Wetlands Act or an ordinance adopted pursuant thereto. (1980, C. 660.) 62.1-13.28. - Nothing in this chapter shall affect any project or development (i) for which a valid building permit or final site plan approval has been issued prior to July 1, 1980; or (ii) which, if no building permit is required for such project including a locally approved mining oper- ation, has been otherwise commenced prior to July 1, 1980, and certified as exempt by the Commission or appropriate wetlands board; or (iii) approved by the qoverning body of any county or city pursuant to any local ordinance whose principal purpose is to review development in coastal primary sand dunes prior to July 1, 1980. Nothing in this section shall be deemed to exclude from regu- lation any activity which expands or enlarges upon a project already in exis- tence or under construction. (1980, c. 660.) ESTABLISHMENT OF THE STATE WATER CONTROL BOARD 62.1-44.7. Board continued. - The State Water Control Board estab- lished in the Executive Department of the State, is continued. (Code 1950, 62.1-19; 1968, c. 659; 1970, c. 638.) 62.1-44.9. Number, appointment and terms of members. -The Board. shall consist of seven members appointed by the Governor subject to con- firmation by the General Assembly. Members appointed before July 1, 1970, shall continue in office for the terms for which appointed. Effective July 1, 1970, two members shall be appointed for a term of one year, and two members shall be, appointed for a term of four years. Thereafter the successors of all members shall be appointed for the terms of four years each. Vacancies other than by expiration of a term shall be filled by the Governor by appointment for the unexpired term. (Code 1950, 62.1-20; 1968, c. 659; 1970, c. 638.). 62.1-44-9. Qualifications of members. - Members of the Board shall be citizens of the State; shall be, selected from the State at large far merit without regard to political affiliation-, and shall, by character and reputation, reason- ably be expected to inspire the highest degree of cooperation and confidence in the work of the Board. No officer, employee or representative of any certif- icate-holder or of any industry, municipal corporation or county which may become a certificate-holder shall be appointed to the Board. (Code 1950, 62.1-21; 1968, c. 659; 1970, c. 638.) 62.1-44.10: Repealed by Acts 1980, c. 728. PUBLIC POLICY REGARDING SEWAGE DISCHARGE 62.1-44.5. Public policy regarding waste discharges orother quality alterations of state waters. - It is hereby declared to be against bile policy for any owner who does not have a certificate issued by. the Board to (1) discharge into state waters inadequately treated sewage, industrial wastes, other wastes, or any noxious or deleterious substances, or (2) otherwise altar the physical, chemical or biological properties of such state waters and make them detrimental to the public health, or to animal or aquatic life, or to the uses of such waters for domestic or industrial consumption, or for recreation, or for other uses. 62.1-44.6. Chapter supplementary to existing laws. - This chapter is intended to supplement existing laws and no part thereof shall be construed to repeal any existing laws specifically enacted for the protection of health or the protection of fish, shellfish and game of the State, except that the administra- tion of any such laws pertaining the pollution of state waters, as herein defined, shall be in accord with the purpos of this chapter and general policies adopted by the Board. (Code 1950, 62.1-18; 1968, c. 659; 1970, c. 638.) 62.1-44.11. Meetings. - The Board shall meet at least four times a year, and other meetings may be held at any time or place determined by the Board or upon call of the chairman or upon written request of any two members. All members shall be duly notified of the time anti place of any regular or other meeting at least five days in advance of such meeting. (Code 1950, & 62.1-23; 1968,c.659; 1970, c.638!) & 62.1-44.12. Records of proceedings-, special orders, standards, policies, rules and regulations. - The Board shall keep a complete and accurate record of the proceedings at ail its meetings, a copy of which shall be kept on file in the office of the Executive Director and open to public inspection. Any standards, policies, rules or regulations adopted by the Board to have general effect in part, or all of the State shall be riled in accordance with the Virginia Register Act. The owner to whom any special order is issued under the provisions of � 62.1-44.15 shall be notified by certified mail sent to the last known address of such owner and the time limits specified shall be counted fro= the date of mailing. & 62.1-44.13. Inspections and investigations, etc. - The Board shall make such inspections, conduct such investigations and do such other things as are necessary to carry out the provisions of this cchapter, within -the limits of a[[rp[roatopms, fund , or personnel which are, or become, available from any sourch for this purpose. &62.1-44.14 Chairman; executive director-, employment of personnel. - The Board shall elect its chairman. and the Executive Director shall be appointed as set forth in 2.1-41-2- The Executive Director shall serve as executive officer and devote his whole time to the performance of his duties and he shall have such administrative powers as are conferred unpon him by the Board; and, further, the Board may delegate to its Executive Director any of the powers and duties invested in it by this chapter except the adoption and promulgation of standards, rules and regulations; the revocation of certifactes; and the issuance. modification. or revocation of orders except in cases of emergency as described in & 62.1-44.15 (8) of this chapter. The Executive Director is further authorized to employ such consultants and full-time technical and clerical workers as are necessary and within the available funds to carry out the purposes of this chapter. � 62.1-44.15. Powers and duties. - It shall be the duty of the Board and it shall have the authority, (1) To exercise geneiral supervision and control over the quality, man- agement and distribution of all state waters and to- administer and enforce this chapter, and all certificates, standards, policies, rules, regulations, rulings and special orders promulgated thereunder. (2) To study and investigate all problems concerned with the quality of state waters and to make reports and recommendations thereon. (2a) To study-and investigate methods, procedures, devices, appliances, and. technologies which could assist in water conservation or water consumption reduction. (2b) To coordinate its efforts toward water conservation with other persons or groups, within or without the Commonwealth. (2c) To make reports concerning, and formulate recommen tions based upon, any such water conservation studies to assure that present and future water needs of the citizens of the Commonwealth are met. (3) (a) To establish such standards of quality and policies for any state waters consistent with the g4neral policy set forth in this chapter, and to modify, amend or cancel any such standards or policies established and to take ail appropriate steps to prevent quality alteration contrary to the public inter- est or to st=dards or policies thus established. The Board shall, from time to time, but at least once every three years, hold hearings as hereinafter provided for the purpose of reviewing the standards of quUity, and, as appropriate, adapting, modifying, or canceling such standard . Whenever the Board con- sidem the adoption, modification, amendment or cancellation of any standard, it --hall --ive due consideration to, among other factors, the economic and social costs Yna benefits which can reasonably be expected to obtain as a consequence of the standards as adopted, modified, amended or canceled. (b) Such standards and policies are to be adopted or modified, amended or canceled only after a hearing held after publication of a notice of the time, place and purpose thereof at least once in at teast, one newspaper of general ci=@- tion in the locality to which such standards and policies appiy not less than thirty nor more than sixty days prior to the day on which the public heaning Ion the adoption, modification, amendment or cancellation of such standards and policies will. be held. Such standards and policies or the modification, ame A & adards and policies will become effective .-. or cancellation of such stai thirty days after they are filed in accordance with the Virginia Register Act. (4) To conduct or have conducted scientific experiments, investigations, studies, and research to discover methods for maintaining water quality, consis- tent with the purposes of this chapter. To th:Ls end the Board may cooperate with any public or private agency in the conduct of such experiments, inves- drations and research and may receive in behalf of the State any moneys ;;Ia@any such agency may contribute as its share of the cost under any such cooperative agreement. Provided, that such moner shall be used only for the purposes for which they are contributed and any alance remaining after the wnclu3ion of the expeAments, investigations, studies, and r search, shall be returned to the contributors. (5) To issue certificates for the discharge bf sewage, industrial wastes and other wastes into or adjacent to or the alteration otherwise of the physical, chemical or biological properties of state waters under prescribed conditions and to revoke or amend such certificates. Revocation:S or amendmenta of certff- t . . - da for good cause and after proper hearings, with at least hirty d"a s' notice to t Is owner of the time, place- and purpose thereof. If a oposed revocation or amendment of a certificate is mutually agreeable to the Eard and the owner involved, the heaxing and notice may be dispensed with. (6) To make investigations and inspections, to insure compliance with any certificates, standard , policies, rules, regulations, rulings and special orders which it may adopt, issue or establish and. to furnish advice, recommendations, or instructions for the purpose of obtaining such compliance. (7) To adopt rules governing the procedure of the Board with respect to: (a) hearings; (b) the filing of reports; (c) the issuance of certificates and special orders; and (d) all other matters relating to procedure; and to amend or cancel any nile adopted. Public notice of every rule adopted under th.Ls section shall be by such means as the Board may prescribe. 1,416 (8) (a) To issue special orders to owners (D who are permitting or causing the pollution, as defined by � 62.1-44.3 (6), of state waters to cease and desist from such pollution, (ii) who have failed to construct facilities in accordance with final approved plans and specifications to construct such facilities in accor- dance with final approved plans and specifications, (iii) who have violated the terms and provisions of a certificate issued by the Board to comply with such terms and provisions, (iv) who have failed to comply with a directive from the Board to comply with such directive, and (v) who have contravened duly adopted and promulgated water qugl#X standards and policies to cease and tv desist from such contravention. and to comply with such water quality stan- dards and policies; and also to issue such orders to require any owner to comply with the provisions of this chapter and any decision of the Board. . (b) Such special orders are to be issued only after a hearing with at least thirty days' notice to the affiected owners, of the time, place and purpose thereo& and they shall become effective not less than fifteen days after service as provided in 4 62.1-44.12; provided that if the Board dnds that any such owner WsMsly. affecting (i) the public health, safety or welfare, or the health of anim , f_ or aquatid ife; (ii) a public water supply; or (iii) recreational, commercial, industrial, *cultural or other reasonable uses, it may issue, without advanc notice or g, an emergency special order directing the owner to cease such poll .on ediately, and shall hold a hearing, after reasonable notice as to the time and place thereof to the owner, to affirm, modify, amend or cancel such emergency special order. If the Board finds that an owner who has been issued such a special order or an emergency special order is not complying with the terms thereof, it may proceed in accordance with � 62.1-44M. (c) The provisions of this section notwithstanding, the Board may proceed directly under � 62.1-44.32 for any ast violation or violations of any provision of this chapter or any regulation Ittily promulgated hereunder. The amendments to this section adopted by the 1976 Session of the General Assembly shall not be construed as limiting or expanding any cause of action other remedy posamised by the Board prior to the effective date of said amendments. (9) To make such rulings under �� 62.1-44.16, 62.1-44.17 and 62.1-44.19 as may be required upon requests or applications to the Board, the owner or owners affected to be notified by certified mail as soon as practicable aiter the Board ms, kes them and such rulings to become effective upon such notification. (10) To. adopt such regulations as it deems necessary to enforce the general water quality management program of the Board in all or@_part of the State, such regulations to be effective thirty days a:fter they are died in accordan e with the Vlrgin@ia Register Act. Such regulations are to be adopted or modified or amended or canceled only after notice and hearing as provided with respect to standards and policies in 62.1-44.15 (3).. (11) TO investigate any large-scale killing of fish. .(a) Whenever the Board sM determine that any owner, whether or not he shall have been issued a certificate. for discharge of wwte, has discharged sewage, industrial waste, or other waste into state waters in such. quantity, concentration or manner that fish are killed as a result thereof it may effect such settlement with. the owner as will cover the costs incurred by the Board and by the Comyni ion of Game and Inland Fisheries in investigadn% such killing of fish, plu3 the rffe Lacement value of the dsh destroyed, or as it eems proper, and if no such se ement is reached within a reawnable time the Board shall authorize its executive secretary to bring a civil action in the name of the Board to recover from the owner such costs and value, plus any court or other legal costs incurred in connection with such action. (b) If the owner be a political subdivision of the State the action may be brought in any circuit or corporation court within the territory embraced by such political subdivision. If the owner be an establishment@ as defined in this chapter, the action shall be brought in the circuit or corporation court of the city or the circuit court of the county in which such establishment is located. I Th= If the owner be an individual or group of individuals the action shall be brought in the circuit or corporation court-of the city or circuit court of the county in which such person or any of them reside. (c) For the purposes of this subgection the State Water Control Board shall be deemed the owner of the fish killed and the proceedings shall be as though the State Water Control Board were the owner of the fish. The fact that the owner has or held a certificate issued under this chapter shall not be raised as a defense in bar to any such action. (d) The proceeds of any recovery had under this subsection shall, when received by the Board, be applied, first, to reimburse the Board for- any expenses incurred in investigating such killing of fish. The balance shall be paid to the Commission of dame and Inland Fisheries to be used -for such fisheries' management practices as in itsjudgment will best restore or replace the fisheries' values lost as a result of such discharge of waste, including, where. appropriate, replacement of the fish killedwith game fish or other appropriate species. Any such funds received are hereby appropriated for that purpose. (e) Nothing in this subsection shall be construed in any way to limit or prevent any other action which is now authorized by law by the Board against any owner. (f) Notwithstanding the foregoing, the provisions of this subsection shall not apply to any owner who adds or applies any chemicals or other substances that are recommended or approved by the State Department of Health to state waters in the course of processing or treatin such waters for public water supply urposes, except where negligence is shown. (12) To administer programs of financial assistance for planning con- struction, operation, and maintenance of water quality control a political subdivisions in this State. (13) To establish policies and programs for effective area-wide or basin-wide water quality control and management. The board may develop compre- hensive, pollution abatement and water quality control plans on an area-wide or basin-wide basis. In conjunction with this, the Board when considering proposals for waste treatment facilities, is to consider the feasibility of com- bined or joint treatment facilities and is to ensure that the approval of waste treatment facilities is in accordance with the water quality management and pollution control plan in the watershed or basin as a whole. In making such determinations, the Board is to seek the advice of local, regional, or state planning authorties. (14) To establish requirements for the treatment of sewage, industrial wastes and other wastes that are consistent with the purposes of this chapter, provided, however, that no treatment will be less than secondary or its equivalent, unless the owner can demonstrate that a lesser degree of treatment is consistent with the purposes of this chapter. (Code 1950, � 62.1-27; 1968, c.. 659; 1970, c. 638; 1972, c. 741; 1975, c. 335; 1976, c. 621; 1977, c. 32;.1978, c. 827.) 62.1-44.15-.1. Limitation on Power to require construction of sewerage systems or sewage or other waste treatment works.- Nothing contained in this chapter shall be construed to empower the Board to require the State, or any political subdivision thereof, or any authority created under the provisions- of � 15.1-1241, to, construct any sewerage system, sewage treatment works, or water treatment plant waste treatment work! or system necessary to (1) upgrade the present level of treatment in existing systems or works to abate existing Pollution of state waters, or (2) expand a system or works to accomodate additional growth, unless the Board shall have previ- ously committed itself to provide financial assistance from federal and state funds equal to the maximum amount provided for under � 8 or other applicable sections of the Federal Water Pollution Control Act (P.L. 84-660, as amended), or unless the State or political subdivision or authority voluntarily agrees, or is directed by the Board with the concurrence of the Governor, to proceed with such construction, subject to reimbursement under � 8, or other applicable sections of such federal act. The foregoing restriction shall not apply to those cases where existing sewerage systems or sewage or other waste treatment works cease to perform in accordance with their approved certificate requirements. Nothing contained in this chapter shall be construed to empower the Board to require the State, or any political subdivision thereof, to upgrade the level of treatment in any works to a level more stringent than that required by applicable provisions of the Federal Water Pollution Control Act, as amended. 62.1-44.15:2. Extraordinary hardship program. - There is hereby established a supplemental program of financial assistance for the construction of water quality control facilities by political subdivisions of the Common- wealth. A sum's appropriated for this program shall be apportioned by the Board among the political subdivisions qualifying to provide financial assis- tance in addition to that otherwise available to help relieve extraordinary hardship in local funding of the construction of such facilities. (1975. c. 339.) 147 REGULATIONS By THE STATE WATER CONTROL BOARD ON INDUSTRIAL ESTABLISHMENTS 62.2-44.16. Industrial wastes. - (1) Any owner who erects, constructs, opens, reopens, expands or employs new process in or operates any estab- lishment from which them is a potental or actual discharge of industrial wastes Or Other wastes to state waters shall first provide facilities approved by the Board for the treatment or control of such industrial wastes or other wastes. Application for such discharge shall be made to the Board and shall be accompanied by pertinent plans, specifications, maps, and such other relevant information as may be required, in scope and details satisfactory to the Board. (a) Public notice of every such application shall be given by notice published ozice a week for two successive weeks in a newspaper of general circulation in the county or city where the certificate is applied for or by such other means as the Board may prescribe. (b) The. Board shall review the application and the information that accompanies it as soon as practicable and making a ruling within a period of four months from the date the application is filed with the Board approving or disapproving the application and stating the grounds for conditional approval or disapproval. If tqhe application is approved, the Board shall grant a certif- icate for the discharge of the industrial wastes or other wastes into state waters Or for the other altercation of the physical, chemical or biological properties of state waters, as the case may be. If the application is disapproved, the Board shall notify the owner as to what measures, if any, the owner may take, to secure approval. (2) (a) Any owner operating under a valid certificate issued by the Board who fails to meet water quality standards established by the Board solely as a result of a change in water quality standards or in the law shall provide the necessary facilities approved by the Board within a reasonable time to meet Such new requirements; provided, however, that such facilities shall be reason- able, and practicable of artainment giving consideration to the public interest and the equities of the case. The Board may amend such certificate, or revoke it and issue a new one to reflect such facilities after proper hearing, with at least thirty days notice to the owner of the time, place and purpose thereof. If such revocation or amendment of a certificate is mutually agreeable to the Board and the owner involved. the hearing and notice may be dispensed with. (b) The Board shall revoke the certificate in ewe of a failure to comply with all such requirements and may -issue a special order, under 62.1-44.15(8). (1970, c. 638) 52.1-44.17. Other wastes. - (1) Any owner who handles, stores, distrib- utes or produces other wastes as defined in 62.1-44.3 (9), any owner who causes or permits -same to be handled, stored, distributed or produced or any owmer Upon or- in whose establishment other wastes are handled, stored, dis- tributed or produced shall upon request of the Board install facilities approved by the Board or adopt such measures approved by the Board as are necessary to prevent the escape, flow or discharge into any state waters wherr the escape, flow or discharge of such other wastes into any state waters would cause pollution of such state waters. (2) Any owner under this section requested by the Board to provide facilities or adopt such measures shall make application therefor to the Board. Such application shall be accompanied by a copy of pertinent plans specifications, maps, and such other relevant information as may be required, in scope and details satisfactory to the Board. (3) The Board shall review the application and the information that accompanies it as soon, as practicable and make a ruling within a period of four months from the date the application is filed with e Board approving or disapproving the application add stating the grounds for conditional approval or disapproval. If the application is approved, the Board shall grant a certif- icate for handling, storing, distribution or production of such other wastes. If the application is disapproved, the Board shall notify the owner as to what measures the owner may take to secure approval. REGULATIONS BY THE STATE WATER CONTROL BOARD ON SEWAGE DISCHARGE 62.1-44.18. Sewerage sytems, etc., under joint supervision of Board and Department of Health. - (1) All sewerage systems and sewage treatment works shall be under the general- supervision of the State Depart- ment of Health and the Board jointly. (2) The State Department of Health shall, when requested, consult with and advise the authorities of cities, towns, sanitary districts, and any owner having or intending to have installed sewage treatment works as to the most appropri- ate type of treatment, but the Department shall not prepare plans, specifica- tions, or detailed estimates of cost for any improvement of an existing or proposed sewage treatment works. (3) It shall be the duty of the owner of any such sewerage system or sewage treatment works from which sewage is being discharged into any state waters to furnish, when requested by the Board to the State Department of Health from time to time information with regard to the quantities and character of the raw and treated sewage and the operation results obtained in the removal and disposal of organic matter and other pertinent information as is required. The State Department of Health shall furnish the Board with such available information as the Board requires. (Code 1950, 62-39; Code 1950 (Repl. Vol. 1968), � 62.1-31; 1968, c. 659; 1970, c. 638) 62.1-44.18:1. Survey of discharges into sewerage systems, etc. - Each owner who owns or operates a sewerage system or a sewerage or indus- trial waste treatment works shall conduct a survey by July 1, 1977, of the discharges of industrial wastes and other wastes into its sewerage system or treatment works in accordance with regulations promulgated by the Board. The purpose of such. survey shall be to determine the physical, chemical, and biological properties, as appropriate, of each such discharge into the sewerage system or treatment works. The Board shall promulgate by July 1, 1976, a regulation, which specifies the mathodology for the conduct of the survey of industrial wastes anti other wastes discharged into sewerage systems or treatment works and for the exemption of certain owners from the require- memts of this section because of size or other appropriate factors as determined by the Board. Each owner shall furnish promptly to the Board a copy of the completed survey. Each owner that treats only its own wastes and is operating under a current certificate pursuant to 62.1-44.16 of the Code of Virginia is exempt from the requirements of this section. (1976, c. 626.) 62.1-44.18:2. When Board may prohibit discharge; permits.- A Notwithstanding any other provision of this chapter, the Board shall have the authority to prohibit any present or proposed discharge of sewage, industrial wastes, or other wastes into any sewerage system or treatment works when it has determined that such discharge would threaten the public health and saftey, or would substantially interfere or be incompatible with the treatment works, or would substantially interfere with usage of state waters as desig- nated by the Board. Before making any such determination, the Board shall consult with and receive the the advice of the State Department of Health. B. The Board shall have the authority to issue permits which prescribe the terms and conditions upon which the discharge of sewage; industrial wastes, or other wastes may be made into any sewerage system or treatment works. The Board may revoke or amend any such permit for good cause and after proper hearing. Notwithstanding the requirment for notice and a hearing, the Board may, after consultation with the State Department of Health, summarily revoke or amend such permit when it determines that the permitted discharge poses a threat to the public health and safety, or is interfering substantially with the treatment works, or is grossly affecting usaqe of state waters as designated by the Board. In such case. the Board shall hold a hearing as soon as practicable but in no event later than twenty days after the revocation or amendment with reasonable notice to the owner as to the time and place thereof to affirm, modify, or rescind the summary revocation or amendment of such permit. C. Nothing in this section shall limit the authority of the Board to proceed against such owner directly under 62.1-44.23 or 62.1-44.32 after the Board has prohibited discharge, or after the Board has summarily amended or revoked the permit which authorized the discharge. If a proposed revocation or amandment of a permit is Mutually agreeable to the Board and the owner, the hearing and notice thereof may be dispensed with. (1976, c. 626.) 62.1-44.19. Approval of sewerage systems, and sewage treatment works. - (1) Before any owner may erect, construct, open, expand,or operate a sewerage system or sewage treatment works designed to serve more than four hundred persons, and which will have a potential discharge or actual discharge to state waters, such owner shall file concurrently with the State Department of Health and the Board an application for a certificate in scope and detail satisfactory to the Department and the Board. (2) If the application involves a system or works fro= which there is or is to be a discharge to state waters the application shall be given public notice by Pulication once a week for two successive weeks in a newspaper of general circulation in the county or city where the certificate is applied for -or by such other means as the Board may prescribe. The Department shall review the application promptly to determine whether it is complete, and if it is complete, shall advise the Board of the requirements necessary to protect public water supplies and shellfish beds. Upon completion of advertising, the Board shall determine if the application is complete, and if so, shall act upon it within twemtu-one days of such determination. The Board shall approve such applica- tion if it determines that minimum treatment requirements will be met and that the discharge will not result in violations of water quality standards. If the Board disapproves the application, it shall state what modifications or changes, if any,will be required for approval. (3) After the application has been approved by the Board, the owner shall file concurrently with the Department and the Board copies of pertinent plans, specifications, maps, and such other information as may be required, in scope and detail satisfactory to the Department and the Board. After it determines that such plans are complete, the Department shall then review the plans without delay and file with the Board within two months a report in which the plans are approved or disapproved. If such plans are not approved, the report shall state what modifications, if any, or changes will be required for approval. (4) The Board shall review the plans and the report from the Department and make a ruling within twenty-one days approving or disapproving the plans .and stating the pounds tar conditional approval or disapproval. If they are approved, the Board shall grant a certificate authorizing construction of the system or works. (5) Any owner operating under a valid certificate issued by the Board who fails to meet water quality standards established by the Board solely as a result of a change in water quality standards or in the law shall provide the necessary facilities approved by the Board within a. reasonable time to meet such new requirments. The board may amend such certificate, or revoke it and issue a now one to reflect such facilities after proper hearing with at least thirty day's notice to the owner of the time, place and purpose thereof. If such revocation or amendment of a certificate is mutually agreeable to the Board and the owner involved, the hearing and notice may be dispensed with. (6) The Board shall revoke the certificate in case of a failure to comply with all such requirements and may 'issue a special order under � 62.1-44.15 (8). (7). Nothing in this section shall limit the power of the Board and the Depart- meny in the control of sewerage systems or sewage treatment works serving loss than 400 persons. (8) Not later than September 1, 1976, the Board and the Department each shall promulgate regulations specifying procedures for processing applications and plans and specifying minimum treatment and design requirements for systems and works. 150 VIRGINIA FLOOD DAMAGE REDUCTION ACT 62.1-44.108. Title. - This chapter shall be known and may be cited as the Flood Damage Reduction Act. (1977, c. 310.) 62.1-44.109. Policy 'and Purpose- It is the policy of the Common- wealth and the purpose Of this Chapter to reduce flood damage through man- agement of floodplain use by such means as floodplain Zoning, and to insure that land uses in flood hazard or floodplain areas are appropriate. The respon- ibility and authority for zoning in the Commonwealth, including the adoption of floodplain zoning, rests with the local governing bodies as provided in Chap- ter 11 (15.1-427 et seq.)Title 15.1 of the Code of Virginia. It is the intent and purpose of this chapter to guide development of the floodplains of the Common- wealth by providing state coordination and assistance to local political subdi- visions in floodplain management, to encourage local governmental units to adopt, enforce and administer sound floodplain management ordinances, and to provide the authority necessary to carry out a floodplain management pro- gram for the State and to coordinate federal, state and local floodplain man- agement activities in this State in such a manner that will enable all local govrnmental units subject to recurrent flooding to qualify for participation in the National, Flood Insurance Program. Further, it is the policy of the Commonwealth that all agencies and depart- ments of the Commonwealth shall comply, when and wherever possible,- with the floodplain regulations established pursuant to this chapter when.planning for facilities in floodplains. (1977, c. 310.) 62.1-44.110. Definitions. - As used in this chapter, unless the context requires otherwise: A. "Board" means the State Water Control Board. B. "Emergency flood insurance program" or "Emergency program" means the Emergency Program of the Federal Insurance Administration which pro- vides subsidized flood insurance for potential flood victims, applicable to both new and existing structures, pending completion of applicable actuarial rates which is a prerequisite for eligibility to participate in the regular program. C. "Flood hazard area" means a general term applied to all areas susceptible D. "Floodplain" or "Flood-prone areas" means those areas adjoining a river, stream, watercourse, ocean, bay or lake which have been or hereafter are Likely to be covered by floodwaters. E. "Floodplain management regulations" means zoning Ordinances, subdi- vision regulations, building code, health regulations, special purpose ordinances such as flooplain ordinances, grading ordinances or erosion control Ordinances, and other duly promulgated rules, regulations and ordinances which may affect floodplain uses. The term describes such legally enforceable le regulations, in any combination thereof, which provide standards for the control of the use and occupancy of flood-prone areas. F. "Hundred year flood" means a flood of that level which on the averag will have a one per cent= chance of being equaled or exceeded in any given year at designated locations. G. "Local political subdivision' means a county, city, or town. H. "National flood insurance program" means the program established by the United States Congress under provisions of the National Flood Insurance Act of 1968, as amended, and as expanded in the Flood Disaster Protection Act of 1973, designed to provide flood insurance at rates made affordable through federal subsidy. L. "Regular flood insurance program" means a program of insurance under national flood insurance proqram, for which the Federal Insurance Admin- istrator has issued a flood hazard boundary map and applicable actuarial rates, and under which new construction will not e eligible for flood insurance except at the applicable actuarial rates. (1977, c. 310.) 62.1-44.111. Administration and enforcement of chapter. - The Board shall have the authority to administer the provisions of this chapter in coordination with the administration of the Virginia Erosion and Seiment Control Law, Article 6.1(� 21-89.1 et seq.) of Chapter 1 of Title 21 of the Code of Virginia. The Board shall coordinate and cooperate with local political subdi- visions in rendering assistance to such political subdivisions in their efforts to comply with the provisions of planning. Subdivision of Land and Zoning, Chap- tar 11 (15.1-427 et seq.). Title 15.1 of the Code of Virginia. The Board shall cooperate with other public and private agencies having floodplain man- agement programs ans shall coordinate its responsibilities under this chapter and any other law. The Board shall coordinate the development dissemination and use of information on floods and flood hazards. (1977, c. 310.) 82.1-44.112. Powers and duties of State Water Control Board. - It shall be the duty, of the Board and it shall have the authority* A. To collect and distribute information relating to flooding and floodplain management. B. To coordinate local, state and federal floodplain management activities to the greatest extant practicable, and to encourage the United States Army Corps of Engineers, the United States Soil Conservation Service, the United States Geological Survey, the Tennessee Valley Authority, and the United States Department of Housing and Urban Development to make available flood and flood damage reduction data to local political subdivisions for planning purposes and in order to assure necessary local participation in the planning process and in the selection of desirable alternatives which will fulfill the intent of the policy and purpose of this chapter. C. To assist local political subdivisions in their management of floodplain activities in cooperation with the Department of Housing and Community D. To carry out the provisions of this chapter in a manner which will insure that the manaqement of floodplains will preserve the capacity of the floodplain to carry and discharge a hundred year E. To make, in cooperation with local Political sibdivisions, periodic inspections to determine the effectiveness of local floodplain management pro- grams, including an evaluation of the enforcement of and commpliance with local floodplain management ordinances, rules and regulations. F. To coordinate with the United States Department of Housing and Urban Development to insure current knowledge of the identification of flood-prone communities and of the status of applications -made by local governments to participate in the National Flood Insurance Program. G. To establish guidelines which will meet minimum requirements of the National Flood Insurance Program in furtherance of the policy of the Common- wealth to assure that all citizens living in flood-prone areas may have the opportunity to indemnify themselves from flood losses through the purchase of flood insurance under the regular flood insurance program of the National Flood Insurance Act of 1968. a the development of these guidelines, the Board shall request the assistance and advice of the Virginia Soil and Water Conser- vation Commission. I APPENDIX 111-3 Subaqueous Guidelines: Guidelines for the Permitting of Activities Which Encroach in, on or over the Subaqueous Lands of the Commonwealth of Virginia VIRGINIA MARINE RESOURCES COMMISSION natives -for reducing any anticipate c. for projects costing In excess of SUBAQUEOUS GUIDELINES the Marine Resources Commission monthly Commission meetings. The A. INTRODUCTION ilia fourth Tuesday of each month. 1. Purpose days prior lathe meeting at which a. T he purpose of this statement is to confirm, establish and standar- ered. Projects less than $10,000 a dize the policies and procedures of the Marina Resources Commi- or agency may he approved by ilia ssion for the permitting of activities directly affecting the suba- sources commission. queous land of the Commonwealth of Virginia. This statement will d. Properly owners listed by ilia the applicant and provided a he used to guide the Commission and it's staff in the performance location will be notified of the permit application and provided a of their duties and serve to inform the general public of the usual copy of the application drawings. Comments received from adja- terms and conditions under which subaqueous activities will be cent property owners are given consideration permitted In State waters. Nothing In this statement, however. re- process. stricts or impedes the power of the Commission to review each e. It Is Commission policy that notice of a proposed project be pu- application on its Individual merits. apply only (hose conditions blished In a newspaper having general circulation in the area of considered appropriate or to consider unusual or mitogating circum- the project. While the Commission will prepare and forward the stances in the review of applications. appropriate notice to the newspaper, the expense of the public no- b. The policies contained In this statement are designed to protect tice is borne by the project applicant. ilia rights of all citizens of Virginia to appropriate uses of State- f. All permits shall contain an expiration date for authorized con- owned bottoms, to safeguard marine fisheries by minimizing im- struction and dredging. All general and special conditions con- pacts on aquatic habitat, to promote public safety and to accomo- lained in the permit remain In effect fpr the life of the project. The dale ilia economic needs of the Commonwealth. Commission has established procedures for notifying permit holders, of permit expiration dates. Permits cannot be modified, extended 2. Authority Required for Use of Subaqueous Beds or transferred without the written permission of the Commissioner. Section 62.1-3 of the Virginia Code states that it shall unlaw- The Commissioner has bean delegated authority to grant exten- fill and constitute a misdemeanor for anyone to build. dump, or sions of up to two years upon written request of the permittee. otherwise trespass upon or over or encroach upon or lake or use Minor modifications may also be approved by the Commissioner. any malaria Is from the beds of the bays and ocean, rivers, streams 9. A permit applicant mus complete a single joint permit application creeks, which are the property of the Commonwealth, unless such which is available from local, state and federal permitting agencies. act is pursuant to statutory authority or a permit by the Marine h. It is the pemit applicant's responsibility to determine if the pro- Resources Commission. ject will he located within another individual's water rights and/ 3. General Considerations Applying to All Permits or oyster grounds. Written ppermission from the holder of such rights to encroach tjerepm is helpful, nevertheless, all permits issued a. The submerged lands In ilia state are a public resource therefore contain a clause that the permit is conditioned upon any existing pemitted encroachment thereon will strive to minimize interference leases, Oyster maps my be examined at the VMR C E mgomeering Willi ilia rights of all citizens of the Commonwealth to other appro- Division or at local court houses. priate uses of Will resource. i. Copies of the completed application are send to other state agen- b. In granting or denying any permit for the use of Stale-owned bottom cies for review and comments. These agencies include the Virginia lands, the Commission will consider, among other thnins, the ef- Institute of Marine Science, the Bureaus of Wastewater Engineer- fect of the proposed project upon: other reasonable and permissi- ing and Shellfish Sanitation of the Department of Health, and the ble uses of Slate waters and Stale-owned bottom lands; marine and State Water Control Board. A field inspection is normally made by fisheries resources. wetlands, adjacent or nearby properties; anti- the Commission environmental engineer responsible for that geo- cipated public and private benefits; and water quality standards graphic area. Upon receipt of comments by State agencies, adja- established by the State Water Control Board. The Commission cent property owners and other interested parties, the application will also consider the water-dependancy of like project and after- is acted upon by the Commission at its regular monthly meeting or by the Commissioner if under $10.000 in cost and unprotested by lies up to an amount treble the normal fees and royalties may be any agency or Individual. assessed in lieu of Prosecution. 1 .The expiration date for construction is normally two years from the in the event an applicant es denied a federal permit to undertake date of Issue. Carla In maintenance dredging permits may be grant- activity for which he has paid a royality, the royality may be refunded ed for five years provided the permittee notifies the commission upon proper application by the permittee. Permit issuuing fees may forty-five days before commencement of each maintenance dredg- not be refunded. dredging during that five year period. B. Dredging Operations k. The permit must be signed by the Individual listed as permittee. In cases where the Pemittee is a corporation, company or politi- 1. Dredging depths should be determined by the proposed use and con- cal jurisdiction, the individual signing the permit for that body trolling water depths outside the areas to be dredged. must provide a certificate showing proper authorization to bind 2. Overdredging to reduce the frequency of maintenance dredging should that corporate entity to the financial and performance obligations not exceed an additional two feet and this should be based on the which could result from the activity authorized by the permit. expected rate of sedimentation at the dredge site. 1. A permit may be revoked at any lime by the Commission upon fail- 3. Generally side slope cuts of a dredging area should not exceed a ure of the permittee to comply with any of the form and conditions two horizontal to one vertical slope to prevent slumping of material or at ilia will of ilia General Assembly of Virginia. ito the dredged area. m . The permit does not confer upon the permittee any interest or title 4. in order to lessen the possibility of dredging having adverse effects to submerged land. on commercially or recreational imortant fisheries, certain season- n. Any person, firm, or corporation constructing or erecting any struc- al dredging limitation may be imposed on a site specific basis de- ture upon or over State-owned bottom shall be responsible for the pending on sediment type. Proximity to shellfish areas or spawning maintenance or removal of such structure upon Its abandonment or grounds, dredging method, the project's size, location and measures its falling into a state of disrepair. taken to reduce turbidity. In important spawning and nursery ares in o. It the nature of the proposed work Is such that It could create a fresh and near fresh waters, dredging may be restricted to the months safety hazard or endanger adjoining property, a performance bond of November through mid-March. For brackish and saline waters or surely bond satisfactory to the Commonwealth my be required where significant quantities of oysters and clams are present the to guarantee faithful performance of the proposed work. better months for dredging are mid-March through June and in October and November. Where commercial dredqing for crabs in deeper waters is an important consideration, the better months for dredging are from Some fees are defined by statute, others are within the discretion April through November. These limitations will be judiciously applied of the Commission. All fees are subject to change. fees are due in order to prevent undue economic burdens on the permittee or his and payable only after the proposed project is approved. Current contractor. permit fees are as follows: Projects $10,000 or less $25.00 application fee 6. Dredging, for proposed small craft channels should be no more than Projects more than $10,000 $100.00 application fee one foot deeper than adjacent natural water bodies and only as wide as necessary to safely navigate in order to avoid creating water cir- Royalties culalion and flushing problems. Dredging to depths deeper than the New dredging $ 0.10 - 0.30 per cubic yard nearest channel can create stagnant conditions which can lead to de- Submerged/overhead crossing $ 1.00 per linear foot creased oxygen levels, unpleasant odors and degredation of local Filling Based on appraisal marine resources. or negotiated 6. Only under special or unusual circumstances should dredged material Borrow material - generally. assessed near ilia 60.30 maximum be double handled. This practice involves the placement of dredged par cubic yard. material at another location in the waterway from which it was dredged Projects completed without a permit are illegal and may be sub- only to be redreged for proper disposal. ject to prosecution. Where It appears that the project for which an 7. Dredging In shellfish areas, both public and private, beds of sub- application is made has been completed or work therein already merged aquatic vegetation and other highly productive areas is di- begun at the time application is made, additional fees and royal- couraged. C. Filling and Dredged Material Placement b. Piers for commercial purposes do require a permit from the commi- 1.Filling on State-owned subaqueous land for Ilia creation of highland ssion. A structure Is considered commercial or industrial in nature properly is generally not permitted. It special circumstances warrant it it Is In support of operation that charge for the production, such fill an appropriate royally will be assessed on a square foot distribution, or sale of Goods Of services. For example, dock faci- basis. ities associated with condominium type dwellings are considered a. Clean material from an upland source Is generally preferable to commercial because they increase the value of units offered for dredged material for use as fill. sale. 2. Filling on wetlands to create upland properly is generally not per- c. Construction material and decisions being used should ensure stabi- milled unless unusual conditions warrant. Decisions by a local wet- lity and safety. lands board or the Commission will be based on the Wetlands Guide- d. Utilization of open pile type structures for gaining access to navi- lines which categorize wetlands. species according to type and rela- gable water is strongly favored over construction of solid fill live importance. structures. 3. Dredged material must be placed in a disposal area which is accepta- a. Piers constructed over vegetated wetlands should be high enough hie to the Commission. factors to be considered In approving a dis- to clear the top of existing vegetation. posal site are: 2. Marinas a. Encroachment on natural drainage ways. a. The appropriate siting of marinas is a complex process that re- b. Chemical nature of the dredged material and its potential (or pol- quires careful review of numerous factors. luting adjacent or nearby underground water supplies. b. Marinas provide a public service (benefit) through increased public c. Encroachment, over underground utilities. I.e.. water lines and access but can result in a not public detriment (loss) in certain sewer facilities. locations through degradation of living resources. d. Value of the site to the natural environment. c. The numbers of water borne craft which may be drawn to the water- a. Proximity to populated areas. way, and existing congestion and carrying capacity of the water f. Anticipated use of the malarial or disposal site after dredged ma- body must be considered. terials is placed and consolidated. d. Adequate riparian waters which can accomodate all aspects of the 4. The disposal area should be properly prepared to receive the fill be- Project is essential, i.e., vessel movement in and out of the faci- fore the start of dredging or filling. lity should not infringe on the riparian waters of adjacent proper- 5. Overboard disposal of dredged material Into lidal waters is usually ties. not permitted unless the materialis uncontaminated and granular (sand e. The structure should encroach no more than one third the distance size). Quality dredged material may be used for beach replenishment across the waterway except in unusual channel configurations. supply are inadequate. f. Development along concave shorelines can create serrious conges- problems and infringement on the riparian rights of adjacent a. When authorized overboard disposal areas will be located to mini- property owners is more likely to occur. mize impacts on commercially important bottom dwelling organisms g. Convex shoreline areas are generally better suited to marina acti- such as oysters and clams, submerged aquatic vegetation, wet- vity where a marginal wharf with perpendicular linger piers can be lands and other shallow productive habitats. utilized to reduce encroachment into the waterway. b. Overboard disposal areas should be properly shaped and positioned h. Locations near the mouth of a waterway provide better flushing to reduce scour and sedimentation. characteristics for marina activity than is provided further upstream. D. Structures i. Approval of a plan for onshore sanitary and pumpout facilities by 1. Piers and Wharfs the Slate Department of Health is required prior to issuance of a a. The placement of open-pile private piers for non-commercial pur- Commission permit. Because of the cost of design plans, the Com- poses by owners of the riparian lands in the riparian waters oppo- mission may approve a marina or boatyard application but issuance site such lands does not require a permit from the Commission, of the permit will be withheld until receopt of Health Department however, a drawing of the proposed pier Is required in order to de- approval. termine that such piers will not interfere with navigation. j. Dry storage type facilities are encouraged because of their greatly reduced encroachment Into the waterway and greater pollution con- E. OVERHEAD AND SUBMARINE CROSSINGS trols. 1. Overhead and/or submarine crossings are normally permitted if rea- k. The condemnation of shellfish areas as a result of marine location sonable measures are takeen to protect aquatic resources. Is a serious consideration In the permitting process and should 2. Aesthetic considerations may be an important factor in overhead he avoided it at all possible. The Bureau of Shellfish Sanitation crossings particularly to residents in the local area. advises the Commission as to shellfish condemnations which may 3. Overhead structures must be designed in such a manner that they will occur. Impede normal waterborne traffic. 1. In presently condemned shellfish areas measures to Insure no 4. Where practical, overhead structures should be designed in such a further degradation of water quality nay be required. manner that supports. will not be constructed in the normal water- m. In order to reduce the amount of dredging required for a marina, course. slips for boats of deep draft should be built In the naturally deeper 5. Where practical, overhead crossings should be located at or near waters of the marina. existing crossings. a. Proper water circulation and tidal exchange should be maintained 6. Submarine crossings should be designed such that a minimum of three by* avoiding and dead canals and restricted Inlets. feet of cover will be provided over the upper extremity of the sub- 3. Bulkheads merged structure In order not to interfere with fishing devices norm- a. Where soil conditions are suitable sloped stone or rubble riprap ally employed In the area. with a filter cloth baffler between the highland and the riprap Is 7. Alteration of submerged aquatic vegetation, shellfish beds and wet lands should be carefully considered b. Where vertical bulkheads are necessary, chemically treated tongue lands should be carefully considered in the planning and location of and groove notarial with equally spaced deadmen, galvanized tie- submerged structures. 8. Backfill material for submarine crossings should restore as closely backs and treated or concrete piles is recommended. as possible the depth of the original bottom. c. Railroad He bulkheads are normally discouraged. d. Bulkheads should normally have return walls or be tied onto adja- F. PRIVATE RIPARIAN AND NON-RIPARIAN MOORINGS cent bulkheads. 1. General Conditions e. Bulkheads should be placed behind existing wetlands. Where no wetlands exist, bulkheads should be placed as far landward as a. Mooring buoys should not be local possible to minimize impact on the marine environment. 1) On Private shellfish leases or designated public shellfish f. Areas of highly unstable shorelines and/or areas having high le- grounds. vels of reflected wave enerqoy will normally require construction 2) In submerged cable-crossing areas. materials which absorb and dissipate wave eerqy such as riprap, 3) In or near designated navigational channels. gabions, or vertical bulkheading with protective riprap at the too. 4) Within 200 feet of a public or commercial bathing beach. 4. Jollies, Groins and Breakwaters 5) So as to ire with the operation of or access through any bridge a. Jetties, groins and breakwaters should he designed in such a man- 6) So as to infringe on the riparian rights of adjacent properties: nor that their locations will not create adverse sediment transport b. Moorings should be marked and maintained in accordance with the patterns or unduly disturb marine resources. "Unified State Waterway Marking system" (USWMS) as approved b. Jetties, grains and breakwaters should be designed In such a man- by the U.S. Coast Guard which require buoys to be white with a nor that they will not be breached by tides and/or fail under wind, current or tide conditions normally experienced at the site. blue stripe around the middle. c. Ail permits granted by the Commission will contain a stipulation c. Professional advice on the suitability of jetties, goins and break- that "The Permittee agrees to remove said structure from State- waters is recommended since their effectiveness at a specific silo owned subaqueous bottom within ninety (90) days after written is difficult to predict. notification by ilia Commissioner. d. The anticipated effect of a proposed groin-field upon adjacent pro- 2. Riporian Moorings perties is an extremely important Consideration in evaluating a permit application. a. The Commission will sir,amu gramt a permit request by a riparant owner for a single mooring to be placed in accordance with the general conditions above and is to be located within his riparian waters. 3. The Ripariann Moorings a. The Commission will normally grant a permit requested by an indivi- dual who does not own waterfront property for a single mooring buoy if: 1) Tte mooring is placed in accordance with the general condi- tions in paragraph I above, and 2) it can he demonstrated that there is access to the mooring with- out trespassing an private riparian property. No mooring will normally be permitted which substantially hinders water access to a riparian property unless a letter of no objection is obtained by the applicant from the adjacent Property owner(s), or 3) approval is obtained from the riparian owner of water tights within which the buoy Is to be placed. b. The commission may consider a permit request for a group (multi- ple) mooring under unusual circumstances. 4. Designation of Mooring Areas, Mooring Restrictions a. Any local government or state or federal agency may recommend to the Commission that the placement of moorings in the waters that fall within their jurisdiction be restricted in certain areas or that certain areas be designated as mooring areas In order to pro- tect public safety, welfare, and recreational and commercial In- terests. APPENDIX 111-4 Wetlands Guidelines CRITERIA FOR EVALUATING ALTERATIONS 6V WETLANDS WETLANDS GUIDELINES The legislature established a policy "to preserve the wetlands end to prevent their despoliation end destruction and to accommodate necessary economic -development in a manner consistent with wetlands preservation". *This section addresses the foregoing policy. Many proposed uses of the shoreline can be accommodated with little or no lose of wetlands If the following . VIRGINIA criteria are applied. There are times, of course, when theme criteria may not apply In specific cases. The conscientious application of these criteria Z will. however. materially reduce adverse environmental Impacts of man's 0 activities on the shoreline. The Individual criteria contained in this section ore supported by brief statement@ explaining the basic reasons behind adoption of the particular criterion. It Is emphasized that these rationsit are of necessity very brief end do-not encompass all aspect* of the given subject. Persons desiring IS further details should contact either the Virginia Marine Resources Commission. Environmental Division or the Virginia Institute of Marine Selene*, Department of Wetlands geology. Prepared by General Criteria A. Provided significant marine fisheries, wetlands and wildlife resources are not unteoeonably detrimentally affected. alteration of the shoreline or The Department of Wetlands Ecology construction of shoreline facilities any be justified In order to: Virginia Institute of Marine Science 1. Coin access to navigable waters by: College of William and Mary a. Commercial, industrial, and recreational Interests for which it has been clearly demonstrated that waterfront facilities are and required. The Environmental Affairs Division b. Owners of land adjacent to waters of navigable depth or waters Virginia Marine Resources Commission which can be made navigable with only minimsl. adverse Impact on the environment. 2. Protect property from significant damage or loss due to erosion or other natural causes. B. Alteration of. the shoreline" Is ordinarily not Justified: Developed pursuant to Chapter 2.1 of I to 'r purposes or ictivitlei which cin bi candueted on existing' Title 62.1 Code of Virginia fastlands and which have no Inherent requirement for access to water resources. 2. For purposes of creating waterfront property from lot@ and Including claims for Indemnification. Additionally, hydrological changes in subdivisions which are not naturally contiguous to waters of surface run-off patterns are caused by the paving over of formerly absorbent navigable depth or waters which can only be made navigable by salt. The usual effect Is an Increase In both the amount and the rate of substantial alteration or destruction of marine resources. surface water flow. often contributing to shoreline erosion and other problems. Finally, high-denmity development lead@ to a concentration of 3. Mien damage to properties owned by others Is a likely result of the contaminating constituents In urban surface water runoff whic& can severely proposed activity. stress receiving waters In the adjacent marine environment. There appears to be a direct relationship between population density In a watershed and 4. Mien the alteration will result In discharge of effluent@ which Increased bacterial levels in adjacent waters. This may lead to the impair wetlands. water quality or other marine resources. Imposition of long term restrictions on the direct marketing of shellfish. 5. Mien there are viable alternatives which can achieve the given SPECIFIC CRITERIA purpose without adversely affecting marshes, oyster grounds or other natural resources. The following specific criteria are established for use in the design, evaluation or modification of Individual projects. Rationale: These criteria recognize riparian rights and reserve the shoreline for those uses or activities which require water access. These A. Shoreline Protection Strategies criteria also point out that activities such as dredging Into the fastlends rot housing developments often have a significant and long term adverse impact 1. Shoreline protection structures are justified only if there Is on the marine environment through such effects as changed upland hydrology, active, detrimental shoreline erosion which cannot be otherwise sedimentation, changes In water current patterns near the shoreline. and the controlled; If there Is rapid sedimentation adversely affecting Introduction of pollutant discharges which frequently lead to closure of marine life or Impairing navigation which cannot be corrected by "ellfish grounds. The dredging of channels Into fastlands may also lead to upland modifications; or if there to a clear and definite need to tteterioration of ground water by salt water Intrusion Into aquifers. accrete beaches. Rationalet The design and placement of shoreline protection C. Utilization of open-pile type structures for gaining access to adequate struc-t-u're-W-1-so highly technical subject and often the precise or C@ water depth@ is generally preferred over the construction of solid structure, long-term effects of such structures on littoral processes cannot be dredging or filling. predicted. A study of one county's shoreline shows that nearly 502 of Rationale: The construction of solid structures, or the conduct of the existing shoreline protection systems are ine(fective or poor In dredging and filling operations. often causes irretrievable lose of wetlands performance. Shoreline protection structures disrupt natural forces and through their direct displacement or by Indirect effects of sedimentation or drive a shoreline away from a natural equilibrium state. In short. all altered water currents. open-pile type structures permit continued tidst flow protective structures have the potential to adversely affect marine over existing wetlands and subtidet areas, avoid potential sedimentation resources directly or through Indirect means. Needless shoreline problems, future maintenance dredging. and have loan effect on existing water modification In therefoire discouraged. current patterns. 2. For shoreline* experiencing mild to moderate erosion. the planting of D. Channels. fill@ and structures should be designed to withstand the maximum marsh grasses to a preferred means of stabilization. Note: The planting stresses of the marine environment and also to minimize the frequency of of marsh grasses In not appropriate on sit shorelines -indrequires some future maintenance activities. technical expertise. Free advice Is available from the Virginia Rationalei Shoreline alteration@ often change currents. affect shoreline Shoreline Erosion Advisory Service and the Virginia institute of Marine stabliFty -and cause biological damage. Unsuccessful structures or channels Science. generate demands for remedial action which can compound Initial adverse Rationaler Fringing marshes buffer erosion through their dense root effects. Designs which minimize the dredging frequency In channels are systems and ability to collect sand and sediments moving along the particularly Important. Dredging destroys or displaces bottom-dwelling shoreline. Mien a -fringe marsh Is established, it not only provides food organisms of value to.the aquatic food web. Organisms can be expected to and habitat for marine birds and other organisms but also minimizes the recoloni2e a dredged area after a period of time, however, too frequent adverse effects to adjacent shoreline properties which are often dredging can Inhibit recolonization. associated with other types of erosion control measures.. R. High density development In or Innedistely adjacent to wetlands and/or 3. When an erosion control structure, such -as a bulkhead or seawall, Is other flood plains Is discouraged. deemed necessary. It should ordinarily be placed landward of any existing Rationalet Development In low-lying areas and on high energy coastlines and Productive marsh vegetation. ' A line of saltbushes, i'f existing. can has hTin-torT@-olly created costly flood control and flood relief problems usually Indicate the seaward limit of the vertical structure. Along shorelines where no marsh vegetation exists, the retaining structure 7. When groins are considered Justified they should be low profile in should ordinarily be placed far enough landward at mean high water so as design and only as long as is necessary to trap sand drifting in the to maintain exposure to wave action. littoral zone. Ideal groin length can be determined by examining the Rationales A vertical retaining structure behind a marsh not Daly sand fillets in existing groins along the same shoreline reach or can be preserves the marsh for its biological productivity but also utilizes the based on the width of the local beach. marsh's capabilities at siding water quality and deterring erosion. Rationales: The low profile groin is designed to resemble the Placing a vertical retaining structure landward at mean high water natural beach elevatioa and allow sand to by-pass and thus nourish minimize its exposure to wave action and reduces erosion at scout along downstream properties once the groin cell has filled. Groins which are the too which could jeopardize the Integrity at the structure. Landward too long for an existing beach may inhibit the alongshore transport of placement also preserves intertidal bottom. maintaining habitat diversity sand to downdrift properties. and associated functions at this area within the marine ecosystem. 8. The use of jetties at the entrance of a channel in order to 4. Sloped rock or riprap revetments and gabions are generally preferred maintain navigable depths or protect the entrance from wave attack is over vertical structures. justified only when there Is a clear and denibstrated need for such a Rationale. Vertical retaining structures tend to reflect wave structure and adjacent properties will not be significantly adversely energy and often transfer a problem to neighboring properties. Coastal affected. waves, whether from natural causes or from boat wakes, are better Rationales: Jetties attempt to prevent the littoral drift from absorbed or dissipated by riprap revetments or gabions. In addition. the entering the channel by trapping sediment moving along the shoreling. slope and open spaces in riprap or gabion structures may provide suitable Sand tends to accumulate on the updrft side of a jetty and sediments are habitats for crabs and small fish. in some cases. sediment may be transported away from the jetty on the downdrift side. This can often trapped in riprap or gabion structures and subsequently become vegetated result In accelerated erosion of the downdrift shoreline. With marsh species. 5. The placement of offshore breakwaters or submerged nearshore sills a. Filling and Dredged Material Disposal. parallel to a portion at shoreline in order to attempt to elevate the 1. Filling in wetlands or subaqueous area for the singular purpose of height of a beach or dampen wave energy is generally acceptable only in creating waterfront upland property is generally unacceptable. areas with a good sand supply in the nearshore zone or where there is Rationale: Marine resources are finite, provide many valuable active detrimental erosion. sill structures are usually constructed at services and products and are delicately balanced in an intricate web of property filled sandbags, gabions or mortar tilled bags. Although not a biological and physical interactions. Permanent loss of these resources general rule. the sill is usually most effective when placed at or near and unnecessary alterations jeopardize this delicate ecological balance. tile mean low water line. Both breakwaters and sills must be specifically designed for tile shoreline segment in question. 2. When filling along a shoreline is necessary, the activity should be Rationale; This placement of sill structures where there is an confined to tile area landward of any wetlands. If suitable non-wetland insufficient supply at sand to the beach may cause harmful effects to the areas are not available and it is necessary to locate the fill further shorelines of adjacent downdrift properties. Placing the sills at, or seaward, locations in Group 3-5 wetlands should be selected if possible near tile mean low water line will usually ensure sufficient backshore (reed grass, saltwort, saltbrush, black needlerush, yellow pond lily) height. Placement of the fill structure too far offshore may result in wetlands communities. In nonvegetated wetlands, fill should be contained also not be suitable for high use beaches because of the potential hazard at or above tile mean high water line. In cases where some encroachment to swimmers. beyond mean high water is justified (e.g. where an eroding bluff is being graded down to Stop erosion), the encroachment channelward of mean high 6. Tile placement of a groin or series of groins on eroding shorelines in water should be limited to the minimum required to achieve the desired nit effort to trap sand and build up a beach is justified only when there grade. in sufficient sand in the littoral drift system or it property Nationale: The values of the more important wetland communities are functioning groins already exist in the section of shoreline in question. Preserved, thus somewhat lessening the undesirable impact of destroying Rationale; Groins are designed to trap sand and build beaches. marshes and in the case of nonvegetated areas, minimizing enroachment When they function properly, they necessarily deprive downdrift conserves these shallow areas to function as described in Section II of shorelines of sand and thus may accelerate erosion of adjacent properties this document. particularly it there Is only a small amount of sand available In the system. 3. Vill material,wheher onwetlands at nearby fastlands, should not contains contaminants which may leach into adjacent water&. Upland source 2. The dredge pipeline should have right joints to prevent material is generally preferable to dredged material tot use as till. leaks. Grading and vegetative cover should be accomplished Rationale: Oil or other contaminant* can leach Ott the surface as soon as possible. (It is recognized that hydraulically of tilled areas and travel to adjacent waters via surface runoff. filled areas may take many months to dry sufficiently for some instaces, they may also leach downward into the water table. people or equipment to move across them. Seeding may have either case. water quality is impaired. Host dredged material to to be displayed for periods possibly as long as a year. The composed of silts and clays which when dry and compacted do not allow the spillway should therefore be maintained until the area is tree flow at water and thus way cause hydraulic flow problems behind a permanently seeded and vegetation is well established and bulkhead. providing adequate ground cover to retain the soil). Rationale: control of sedimentation is accomplished if the above 4. Where feasible, controlled disposal at dredged material on highland criteria Is maintained during entire dredging period. property Is the preferred method. Rationale: There are many difficulties Inherent in controlling 6. Dredged material should not ordinarily be deposited in adjacent marsh dredged material to the marine environment. marine resources are finite as a convenience. It it becomes necessary to place dredge material and subject to significant disruption from such activities since the on a marsh, consideration should be given to placing it on those water column can act as a vector carrying sediments well beyond the portions of lower value or to scattering the material in a thin layer immediate disposal plant. rather than Containing it behind a berm. Berms in marshes should be used to contain fill only when absolutely necessary and when they 5. Dredged material disposal areas should most the following criteria: will not impair tidal flow to other wetland areas. Rationale: A continuous berm often cuts off water supply to a A. Disposal by lite bucket or dragline method; marsh. Selective piling of material allows continued water supply to 1. Build an earth-tight bulkhead along the perimeter of the uncovered portions of a marsh and may enhance habitat for wildfowl and -disposal as-as sufficient to confine the dredge material. animals. Scattering of dredged material in a thin layer can sometimes Ilia bulkhead or dike (berm) should have a top elevation at maintain basic marsh values though it may ultimately lead to change in least 1 meter (3.2 feet) above the average upper limit of Vegetative species it the marsh surface is significantly raised in spring tides. elevation. The depth of the soil layer must be evaluated in each case. 2. Eastern dikes (berms) should be compacted as they are constructed. have side slope& no steeper than I horizontal 7. Whenever feasible, displaced marsh vegetation and peat should be used to 3 vertical. a top width at at least I water (3.2 feet). to reconatitute marsh in the vicinity of the activity site and and lite too at the slope should be at least 4.5 meters (15 particularly along the banks of newly cut canals. The practice of feet) from existing marsh grosses. Spillway boxes or compensating for marsh loss in one area by building marsh in another release pipes should be provided to prevent water from is theoretically viable but because of significant technical trading or over-topping the dike. As soon as possible after difficulties is not always recommended. completion at the project. the disposal area should be Rationale: This procedure, when successful, side in maintaining traded and vegetative cover established. marsh Inventory and will deter shoreline erosion and enhance water 3. In some projects involving small volumes of generally sandy quality conditions. material. a double line of staked straw bales way provide a suitable containment. 8. When under specific case by case analysis it is determined that marsh creation is an acceptable means of compensating for an unavoidable b. Disposal by hydraulic methods: marsh loss, one marine habitat (e.g. tidal flats) should ordinarily not be sacrificed to create another (marsh). Resource compensation 1. Earthen dikes should be constructed by dragline or tend fill through marsh creation is not a panacea and should be limited to methods to Clio specifications as described in 5 m.2 above. cases where the loss of existing marsh is unavoidable or The volume of the disposal area lying below the elevation of insignificant and there is a high probability of success. the spillway crest should, at all time during the dredging. Rationale: There is at present no conclusive evidence that the be sufficient to provide a retention time long enough to trading of one marine habitat for another results in a met gain for the clarity the discharge water to meet applicable water quality environment. The creation of marsh from upland or other habitat is standards. The spillway should be placed as tar as possible technically feasible In many cases. It Is, however, a complex activity from the discharge and at dredging pipes. that generally cannot be successfully accomplished without technical knowledge and expertise. 9. Overboard disposal of dredged material Is generally undesirable 3. For relatively small projects (1500 m3(2000 yd3(or less, dredging unless the deposits are basically clean sand, the disposal area is by draglines or bucket method is generally preferreed. devoid of commercially important bottom organisms, and the deposits Rationales: Control of sedimentation is much simpler with the bucket will have a beneficial effect on shoreline erosion problems. There dredge in that there is a higher ratio of soil to water as the dredged may be Occasions when Overboard disposal of silty dredge material can material is transferred from the dredging area. Dredged material be used to create marsh. This will probably also entail the planting disposal is less complicated and more easily subject to productive use, or seeding of marsh vegetation under closely controlled conditions. Hydraulic dredging is preferred for large dredging projects particularly Rationale; silty soils tend to stay in the water column longer than when the dredgeed material is to be placed in an area remote from the the heavier sands and may therefore drift to other areas reulting in dredged site. damage to bottom organisms outside the selected dredge disposal area. Pollutants may likewise drift with the currents. In some cases, good 4. The practice of "double handling" dredged material in a waterway is quality sand can be beneficial in nourishing starved or eroding beaches generally undesirable. and this possibility should be considered. Rationale: This activity, which involves the interim placement of dredged material in the waterway effectively doubles the adverse effects 10. Whenever Overboard disposal is permitted, the operation should be of bottom disruption and turbidity associated with dredging activities. located and conducted so as to minimize impacts on commercially important bottom dwelling (banthic) organisms such as clams and 5. Dredging in shellfish areas. beds of subsquatic vegetation and other oysters, submerged aquatic vegetation and other unique or highly areas of singularly high productivity should be avoided productive habitats. Rationales: These areas generally have very high values to both commercial and sport fisheries and to the organisms that support them. Rationale: Because water is the link which ties all different In addition their recovery period from dredging is measured in years care must be taken to localize the impacts at overboard disposal to the rather than months as is the case for other bottom types. In many cases maximum extent practical. the new depth involved after dredging any preclude any recovery of these particular biotic communities. 11. The Overboard disposal at good quality sand in order to replenish 6. In oyster and clam growing areas (brackfish and saline water) dredging beaches is generally acceptable so tons as the beach sand and dredged should be avoided during the months of July, August, September, Rationale: The placement of material of smaller particle size December, January and February whenever possible. This is than that found on the natural beach will only serve to increase particularly important when the dredging is to be performed within turbidity since it will be resuspended by wave action and carried away 500 yards of, or overboard disposal is within one mile of, productive very quickly resulting in tittle benefit for the sand-starved beach. public or privately leased oyster ground. In anadromous fish spawning and nursery areas (i.e. freshwater), dredging and overborad C. Dredging disposal operations should be avoided, when possible, during the period of mid March through October. Particularly critical is the 1. When possible, open pile piece should be lengthened to reach actual spawning period, mid-March through June. Concern is necessary water depths In order to minimize the amount of dredging heightened when Overboard disposal is involved. required. Rationales: The majority of oyster spawning and spatfall occurs Rationale: Open pile Piers have a minimal adverse impact an the during the months at July, August and September, in most areas of marine environment. Dredging is a significant, though temporary, Virginia. Higher than normal suspended solids levels, which can occur in disruption which must be repeated in order to maintain water depths. proximity to large dredging and disposal activities, can interfere with Every dredging project. whether now dredging or maintenance requires the development said survival of oyster larvas. Resultant sedimentation approved disposal area and this can be a major problem particularly to can also adversely affect the setting of oyster larvae by covering clean developed areas. hard substrates thus making them unavailable to the larvae. During the coldest months of the year, oysters are more susceptible to sitration 2. Dredging for the singular purpose of obtaining fill is ordinarily not because their pumping activity is reduced and they are less avle to clear justified. away rapidly accumulating silt. During the spring spawning run Rationale: Although dredged areas are repopulated to a degree by (mid-March through June) anadromous fish eggs and larvae can be adversely organisms after cessation at dredging, they generally never return go affected by higher than normal levels of suspended sediments. Adult their pre-dredge productiviyy levels it water depths are greatly migrations can be impeded especially in narrow streams and rivers where increased. The result in a chronic degradation at habitat quality and turbility may reach from bark to bark. The period they throughly. beginning their migration back to the ocean. Note: This guideline not subject to blanket application in the in the salinity regimes where it is applicable. Careful case-by-case analysis is required. 7. In relatively large water bodies, overdreging to reduce the frequency of maintenance dredging, should not exceed an anddtional 60 cm (2 feet) below the controlling depth of the waterway and this should be based on the anticipated sedimentation rate. in narrow canals and other water bodies subject to poor flushing, the dredgeddepth should not exceed one foot below that of the connecting waters. Rationale: This guideline balances the benefits of reduced maintenance frequency and thus environmental distrubance with the creation of stagnent or "dead" water which can occur when artifically deep holes are created. SPECIALIZED STRUCTURES AND ACTIVITIES Channeling into Fastland or Marshes 1. Where feasible, community piers and launching facilities are preferable to channeling into fastlands or marshes for water access in conjuntion with urban development. Rationale: Studies have shown that such channeling leads to water quality problems. Poor water circulation and flushing, combines with contaminating constituents and high nutrient loads from adjacent development often leads to reduced dissolved oxygen levels, noxious odors, uncontrolled algal growth and fish kills. 2. While environmentally objectionable, there may be times when channels into marshes or uplands are premitted. When this is the case, the following cirteria should be applied in order to reduce adverse effects: a. Channels should be short in length, preferably no longer than twice the width. b. Channels should not be dredged more than 1 foot deeper than the controlling depth of the waterway to which they are to be connected. C. Channels should no be box-cut but should be dredged with slopes that approximate the natural angle of repose of soils of the area, usually on the order of 3 feed (1meter) horizontal for every 1 food (30 cm) vertical. d. The top banks of channels should be graded to a slight incline anywhere between mean sean level and mean high tide for an inland distance of at least 3 meters (10feet). This area should then be planted with marsh vegetation appropriate to the soils and the salinity of waters in the area. e. Channels should be significantly shallower at their heads than at their mouths in order to promote better exchange with the natural waterway. f. Channel curves and angles should be avoided. Rationale: The foregoing criteria reduce the potential adverse impacts of channelization by providing for better water circulation and bank stability. The marsh vegeatation aids in preventing upland spoils and contaminants from lowering water quality. Dams and Impoundments 1. Dams and impoundments should ordinarily not be located in tidal wetland areas. If some encroachment into such areas is deemed necessary, every effort should be made to limit the encroachment as much as possible and restrict marsh loss to Group 3-5 marshes. Rationale: Impounding an upland area generally involves a tradeoff of one set of upland habitat values (e.g. hardwood forest) for another set (lake or pond). When tidal wetlands are lost to this same type of development, the loss to the marine environment can be severe and is generally irreplaceable. 2. When a dam or impoundment is constructed in, or adjacent to, a tidal stream, provisions should be incorporated into the design to maintain a flow of freshwater into the ________. Rationale: Maintaing a flow will minimize the upstream movement of salt water in the stream and thus reduce large scale aquatic habitat changes due to salinity shift. 3. Dams should incorporate the use of fish ladders in order to minimize the loss of upstream spawning and nursery grounds for marine species. Rationale; Many commercial and sports fishes are spawned and develop to adult stages above the tidal eatuary. These areas are critical to the maintenance of population levels in these species. 4. Techniques which will minimize the possibility of mudwave creation adjacent to the dam site should be implented when wetlands are present. Rationale: This guidline limits wetland losses due to impoundments to that immediately in and upstream of the dam site. A mudwave effectively destroys wetlands in its path by raising the substrate elevation above the range of tide. 5. Whenever possible, impounments should be designed to incorporate shallow water areas capable of supporting emergent vegetation and water tolerant timber. Rationale: Shallow water habitat within the impoundment can help offset the loss of tidal wetland habitat due to dam construction. F. Marinas 1. Dry storage type facilities are encouraged in preference to wat-slip complexes. Rationale: Such facilities minimize adverse impacts to the marine environment and do not occupy space in the water which could be used for recreation by all citizens of the Commonwealth. 2. When siting and designing a marine facility in a coastal waterway, the following should be considered; a. all structures should be open-pile or floating with any permanent loss of aquatic habitat limited to that which is absolutely necessary. b. If sited in a small tributary or other poorly circulating body of water, the marina should be situated near the mouth rather than the headwaters. c. The structures should encroach no more than one third the distance across the waterway except in unusual channel configurations. d. Marines should be sited away from productive or actively worked oyster and clam grounds. e. Consideration should be given to the size and depth of the existing waterway and to the number of boats already housed in the vicinity. f. Slips for deep draft vessels should be located in the naturally deeper waters of the marina. g. If the site involves a marsh, all structures except those needed for access (ramps, railways, etd.) should be located landward of or channelward of marsh vegetation. h. Design of any necessary breakwaters should permit adequate water circulations within the facility to help prevent an accumulation of pollutants. Floating tire or other non-permanent type breakwaters should be considered. Rationale: The foregoing criteria reduce the potential adverse impacts of marinas by providing for better water circulation, minimizing marine habitat loss, and reducing initial and maintenance dredging requirements. G. Drainage and mosquito ditches 1. Drainage and mosquito ditches should be designed according to a master plan which will maximize their effectiveness while minimizing their extent as much as possible. 2. Ditches designed along conventional grid patterns are discouraged in favor of ditches which link identified mosquito producing areas within the marsh with tidal waters. Drainage ditches should also be designed to connect to specifically identified areas of poor drainage. 3. Depths should be limited to no more than 1 foot deeper than the connecting waters. 4. Depending on the size of the ditch, dredging should be accomplished "in the dry" (landside to seaward). 5. If dredge material must be placed in the marsh, it should be spread or broadcast as thinly as possible over a broad area with no affective elevation change on the marsh surface. If this is not possible, the dredged material should be placed in small widely separated mounds creating plant diversity and allowing water to circulate over the remaining marsh. 6. Where maintenance dredging is to be accomplished, the dredged material should be placed, to the maximum extent possible, on the old disposal area. If this is in the form of a continuous berm paralleling the ditch, the berm should be breached periodically to promote inundation of the remaining marsh. 7. Rotary ditchers are the preferred means of constructing mosquito ditches and small drainage ditches. Rationale: Adherence to the above procedures will maximize the effectiveness of the ditches while minimizing adverse impacts to the wetlands. H. Submarine pipeline crossings 1. Whenever feasible, pipelines should be placed on piles or attached to existing structures. 2. When a pipeline must be buried in the river bottom, the stockpiling of excavated material adjacent to the trench should be avoided. 3. When a pipeline must be buried in a marsh, material may be temporarily placed along side the trench if upon completion all excess material is removed from the marsh, the original elevation is restored, and all denuded areas are resprigged with appropriate vegetation. Rationale: These guidlines minimize construction impacts to the wetlands and allow for the fastest possible recovery of the natural system after the disturbance. APPENDIX 111-5 Coastal Primary Sand Dune Guidelines: Guidelines for the Permitting of Activities Which Encroach into Coastal Primary Sand Dunes COASTAL PRIMARY SAND DUNE GUIDELINES RECOMMENDED GUIDELINES WHEN ALTERING COASTAL PRIMARY SAND DUNES In adopting the Coastal Primary Sand Dune Act, the General Assembly established the following standards for construction on sand dunes: "No permanent &Iteration or construction sand dune shall take place which would: l. Impair the natural functions of the dune as described by the Act ll. physically alter the contour of the dune lll. destroy vegetation growing on Activities contrary to these standards will be permitted only if the wetlands board or Commission finds that there will be no significant GUIDELINES FOR THE PERMITTING OF adverse ecological Impact from the proposal, or that granting a permit ACTIVITIES WHICH ENCROACH INTO COASTAL PRIMARY SAND DUNES for the proposal Is clearly necessary and cons Interest.* It is apparent from a reading of the policy and standards of the Act that the General Assembly did not Intend A prohibition on all activity in the dunes areas. Instead, the legislators sought a careful balancing of the public and private benefits and detriments of each proposal. Some proposed ISSUED BY THE development In the dunes area can be accommodated by utilizing proper VIRGINIA MARINE RESOURCES COMMISSION location and design methods. Each proposal will likely be unique with 2401 WEST AVENUE NEWPORT NEWS. VIRGINIA 23607 respect to the necessity for the project and Its probably effects on the beneficial value of dunes. Therefore, criteria must be applied on a case by case basis. The objective of these criteria is to provice Developed Pursuant to Chapter 2.2 of Title 62.1. guidance which will direct development Into an accommodation with Code of Virginia. These Guidelines were approved on August 26. 1980 and became effective the ecology of the coastal primary sand dune. September 26. 1980 Guidelines A. Provided the beneficial attributes of coastal primary sand dunes as discussed above are not significantly disturbed, alteration of dunes may be justified in order to: 1. Construct water access dependent facilities which must pass over the coastal primary sand dune for access. Such construction as might be allowed in item 1) above must be constructed in a manner which will minimize alteration of the dune slope during and after construction. Encroachment on the backside of a primary dune should be limited to the minimum necessary. In addition to other requirements that may apply for construction, only structures with open pile foundations should be constructed. Rationale The requirement that any construction on the dune backside must utilize an open pile foundation design is based upon consideration of the dynamic of dune movement, the compatability of housing within the dune system, and the need to protect life and property within the fastland fringing the beach zone. During times of severe storms, the entire primary dune system may yield to excavation by elevated water levels accompanied by high waves. Structures on slab foundations or designs other than open piling may be expected to exhibit structural failure. Such slab foundations also generally require the excavation of the dune backface for placement and do not allow for the natural migration of the dune. During periods of normal weather and sea state, and during post-storm periods of natural dune rebuilding, the backside of the dune is a zone of sand deposition. Structures elevated on open piling foundations will be less susceptible to burial by encroachment and deposition. Bridging the dunes to gain access for certain water dependent activities may be permitted when those activities are deemed necessary. In such cases, elevated open piling foundations will minimize disturbance of natural dune building processes. It should be noted that a requirement for open pile foundations is consistent with existing requirements of the National Flood Insurance Act. B. Alteration of coastal primary sand dunes is ordinarily not justified: 1. for purposes of activities which can be accommodated without encroachment into the dune area. Rationale It is clearly the intent of the legislature to protect the primary sand dunes from unnecessary despoliation. Therefore, activities which have no inherent need to be immediately adjacent to the shore or for which there is sufficient room landward of the coastal primary sand dune may not require modification of the dune. ll. where the construction is proposed on the dune crest or seaward of the dune crest. Rationale The beach backshore is the primary sand supply for the primary dune and the foreface and crest of the deposit are the most active transport zones in the dune system. Construction on the backshore, frontal face and crest is thus likely to disrup the transport system. In particular, construction ont he crest and/or frontal face will cause local deflation of the sand elevatons causing local weaknesses in the integrity of the dune system. lll. where the dune location must be modified in order to accommodate the proposed construction activity. Ratinale The natural location of the primary dune is the result of all beach processes. The natural dune position is just beyond the reach of normal beach modulations. Relocation of the dune by artificial means to a more seqward or landward location is likely to result in a loss of the sand stored in the dune. This will reduce the integrity of the dune line and compromise the ability of the dune to protect against storm flooding and erosion. iv. where alteration of the dune would likely result in damage to neighboring property owners. Rationale Construction within a primary coastal dune may lead to weaknesses in the protective attributes of the system. Under severe storm attack, the weakness may lead to failure causing that site to become the locus of wave overwash activity. The breach in the system can reasonably be expected to widen to neighboring properties and cause otherwide avoid- able damage. In additon, during the periods of dune regrowth, the new sand deposits may encroach upon the developed zone of the neighboring lots. CONSIDERATIONS FOR CONSTRUCTION AND MITIGATION ACTIVITIES IN THE AREA OF COASTAL PRIMARY SAND DUNES. Due to the constantly changing nature of dunes and the possible wind, wave and scour action they may be subjected to, the design, location selection, and construction of structures in dune areas should be done by qualified professionals. As a recommended minimum, all elements of beach front structures, including the foundation and non-structural fastenings and components, should be designed to withstand the wind and wave forces of a 100 year storm. The first habitable floor of the building should be elevated on a piling foundation to a height above the crest of the 100 year design wave. Any construction in the space below the first floor should incorporate walls intended to collapse under stress without jeopardizing the structural support of the building. The piling foundation should safely transmit to the ground the full vertical and horizontal loads imposed on the superstructure by 100 year design storms. It should present as slender a profile as possible while being durable enought to resist sotrm loads, which may include the impact of floating debris. Pilings should be spaced such that no one row of piles is subject to significant wave forces at any one time and the spacing should provide for unhindered movement of water and debris between piles. Pilings should be of a circumference which minimizes induced concentra- tion of wave force and consequent arosion and scour at the base, yet they should penetrate deeply enough (6 to 20 feet below mean sea level) and have sufficient strength to safely support the superstructure when the surrounding material is eroded down to the lowest predictable level. The foundation should be of a material which will resist deterioration in a corrosive marine environment. Structures with large ares in contact with the ground, such as swimming pools, decks, and slab foundations, should be discouraged. The ground below the first habitable floor should not be paved or altered, however, shell and marl are suitable when used to stabilize driveways. Telephone and electric lines should be located underground in water proof conduits laid in protected areas not subject to erosion. Water and sewage facili- ties should also be located in protected areas not subject to erosion. Vegetation is the most effective protection for the land against the sea in establishing and maintaining a coastal position, and for that reason, during permitted construction, all precautions should be taken to retain as much natural vegetation as possible on the dunes and upper beaches. When walkways and platforms are located over a dune system, they should be elevated sufficiently to provide for the continued healthy growth of the vegetation below (3 feet minimum). Restoration of destroyed dunes can be accomplished by creating fills using slat or brush fencing or by moving upon beach sand by . Both procedures by long-term planting of vegetation to replace that which wis destroyed and to stabilize the dune. for the restoration of a long toredune. the fence should be A Igned parallel to.primary dunes In the vicinity and somewhat parallel to.the.drift line berm of the upper beach. The fence should be far enough back to allow the wind to move an adequate supply-of sand against it. and placed so as not to bury existing vegetation. To build fill& and help reform dune topography In smaller areas. fences should be built across the direction of prevailing winds. The newly created fill material should then be stabilized with plantings. APPENDIX 111-6 Regulations of the Commission of Game and Inland Fisheries, Commonwealth of Virginia REGULATIONS OF THE COMMISSION OF GAME AND INLAND FISHERIES COMMONWEALTH OF VIRGINIA R23-1. continuous open season for all species except trout. Except as otherwise specifically provided by regulations appearing in this chapter, there shall be a continuous open srason for fishing to take all species Of fish except trout. R23-2. Creel limits The creel limits for the various species of fish shall be as follows: Largemouth, smallmouth and spotted bass, eight a day in the aggregate; Landlocked striped bass and landlocked striped bass X hybrids, in thee aggre- gate, four a da except that in Smith Mountain Reservoir and its tributaries including the Roanoke River upstream to Niagara Dam the limit shall be two a day in the aggregate. White bass, no limit, except that in Gaston Reservoir the limit shall be twenty-five; Waileye or yellow pike perch and chain pickerel or jackfish, eight a day of each. provided that ten waileye a day may be taken from South Holston Reser- voir below full pool elevation of 1730: Northern pike and muskellunge. two -a day-, Sauger, so limit. provided that only fifteen a day may be taken from South Holston Reservoir below full pool elevation of 1730. Bluefgill (bream) and other sunfish, including crappie or silver perch and rock base or redeye, no limit (Amended 5-5-72; 5-4-73; 2-22-80; 2-19-81; 10-15-82, effective 1-1-83.) R23-3. Size limit. Except as provided in this regulation and in R24-5.1, R24-10.1, R24-10.2, and R24-10.3, there shall be no size limit on any species of fish. There shall, how. ever. be a twenty-six inch minimum size linut on muskellunge, a twenty-inch minimum size limit on northern pike and a twenty-inch minimum size limit on landlocked striped bass (rockfish) and landlocked striped bass X white bass hybrids. Also, there shall be a twelve-inch minimum size limit on largemoutqh, smallmouth and spotted bass in the North Fork of Pound Reservoir and in the Roanoke (Staunton) and Dan River's and their tributaries downstream from Niagara Dam an the Roanoke River and the Brantly Steam Plant Dam on the Dan River. except in the John Kerr and Gaston Reservoirs on the Roanoke (Staunton) and Dan Rivers, and the North Fork Shenandoah River downstream from Route 42 bridge at Timberville and the Shenandoah River below the Riverton Dam to the West Virginia boundary line and the New River from Clayton Dam to the West Virginia boundary line. and in the North Anna, Chickahominy, Claytor, Philpott and Flannagan reservoirs and Beaverdam Reservoir in Loudoun County, and in Lake Moomaw (Gathright Project) and in the waters of Fort A.P. Hill, and in the waters of Quantico Marine Reservation. It shall be unlawful to have any largemouth, smallmouth or spotted bass less than twelve inches in length in one's possession while an any of the waters mentioned in the preceding sentence. There shall be a fourteen-inch minimum size limit on largemouth, smallmouth and spotted bass in John Kerr and Gaston Reservoirs, except that as many as two of such bass of a lesser size caught in such waters may be retained in the creel, but no more than two such bass may be in possession on such waters that are less than fourteen inches in length. It shall be unlawful to have any larqgemouth, smallmouth or spotted bass from twelve to fifteen inches in length, both inclu- sive, in one's possession on Chesdin Reservoir or the Appomattox River from the Brasfield (Chesdin) Dam to Bevel's Bridge on Chesterfield County Route 602. It shall be unlawful to have any walleye or yellow pike perch less than fifteen inches in length in one's posseion on Gaston Reservoir. It shall be unlawful to have any smallmouth, largemouth or spotted bass from eleven to thirteen inches in length. both inclusive, in one s possession on the South Fork Shenandoah River from the Luray Power Dam near Lamy downstream to its confluence with the North Fork Shenandoah River at Riverton. (Amended 5-5-67; 4-20-68; 4-29-71; 5-5-72; 5-4-73; 5-3-74; 5-2-75; 4-15-77; 2-24-78; 2-23-79; 2-22-80; 2-19-81, 10-16-81; 10-15-82, effective 1-1-83.) R23-4. Sale of game fish or catfish prohibited. It shall be unlawful to sell, offer for sale or buy any species of freshwater game fish or catfish, provided that this shall not apply to game fish sold pursuant to Code of Virginia � 29-114.1 or to R24-12 and R24-13 or to any catfish taken from tidewater or those artificially raised. (Amended 5-7-76, effective 7-1-76.) R23-6 Permit required for impartation. etc.. of certain species. In accordance with authority conferred by q4 29-11 of the Code of Virginia. the Commission finds and declares the following species to be predatory or =desirable within the meaning and intent of those terms as used in � 29-158 of the Code, in that their introduction into the State will be detrimental to the native fish resources of' Virginia: Piranha (any of the genus Serrasalmus. Rooseveltiella, Pygocentrus), walking catfish (any of genus Clarias), cichid (Texas) perch (Chichlasoma cyanoguttatum), grass carp (any of genus Ctenopharyngodon) or any hybridized derivative of the grass carp. It shall be unlawful, pursuant to � 29-158 of the Code, to import, cause to be imported, buy, sell or offer for sale or liberate within the State any of the abovenamed species unless a permit therefor is first obtained from the Com- mission. (Added 5-4-73; amenended 2-24-78; 2-23-79; 10-15-82,effective 1--183.) APPENDIX III-7 Commonwealth of Virginia State Water Control Board Wetlands Policy Commonwealth of Virginia STATE WATER CONTROL BOARD WETLANDS POLICY Adopted: May , 1974 in Letter Ballot No. 3310. Filed: May 24, 1974 Effective June 23. 1974. PURPOSE The purpose of this policy is to establish the policy of the State Water Control Board in order to support the principles of the Wetlands AM in dealing with water quality of the wetlands of the Commonwealth. Further, this establishes the policy of the Board to preserve the wetland ecosystems and to protect them from destruction by (a) reduction or elimination of deleterious paint source or non-paint source discharges to state waters which wash ever wetlands. (b) the anti Wit or control of these discharges, (c) the development: and construction of waste water treatment facilities. and (d) other physical, chemical, or biological means. THE WETLAND RESOURCE Wetlands represent an ecosystem of unique and major importance to the citizens at this Commonwealth and, as a remit. they require extraordinary protection. Comparable destructive forces would be expected to inflict more lasting damage to dim. then to other ecosystems. The Constitution of Virginia establishes a strong policy of natural resource protection. The General Assembly has recignized the importance of wetlands in its policy sat forth in Title 62.1. Chapter 2.1 at the Code of Virginia (The Wetlands Act). And. the General Assembly has provided in Title 62.1. Chapter 3.1 of the Code of Virginia (The State Water. Control Law) that it is the policy of the Commonwealth to protect existing high quality State waters and restore all other State waters to such condition of quality that any such waters will support the propagation and growth of all aquatic life which might reasonably be expected to inhabit them. Through this policy states. ant the Board establishes appropriate safeguards for the preservation and protection of the wetland resource from the damage caused by inappropriate discharges to the waters of the State which wash over the wetlands. b. The wetlands of the Commonwealth, including marshes, swamps. bogs. and other low-lying was. which during some period of the yew will be covered in part by natural non-flood waters, are a unique. valuable. and irreplacable natural resource. They srtbr as a habitat for important fur-bearing mammals, many species of fish. and waterfowl. Such areas moderate extremes in water flow, aid in the natural purification of water, and maintain and recharge the groundwater resource. They am the nursery areas for a great number of wildlife and aquatic species of significant commercial and recreational value to the citizens of the Commonwealth, and serve at times as the source of valuable harvestable timber. They we unique recreational areas, high in aesthetic value, that contain delicate and irreplacable specimens of fauna and flora and support fishing. as well as wildfowl and other hunting. c. Fresh-water wetlands support the adjacent or downstream aquatic ecosystem in addition to the complex web of life that has developed within the wetland environment The relationship of the fresh-water wetland to the subsurface environment is symbiotic. intricate, and fragile. In the tidal wetland areas the tides tend to redistribute the nutrienits and sediments throughout the tidal marsh and them in turn form a substrate for the life supported by the tidal marsh. These marshes produce large quantities of plant life that are the source of much of the organic matter consumed bv shellfish and other aquatic life in associated estuaries. d. Protection of wetland areas requires the proper control of any construction activities and of non-point sources to prevent discharges which will impair the quality of the wetland area. Alteration in quantity or quality of the natural Now of water, which nourishes the ecosystem, should be minimized. The addition of harmful waste waters or nutrients contained in such waters should be kept below a level that will alter the natural, physical, chemical, or biological integrity of the wetland area and that will insure no significant increase in nuisance organisms through biostimulation. POLICY a. In in decision processe it shall be the Board's policy to give particular cognizance and consideration to any proposal to the State Water Control Board that has the potential to damage wetlands. to recognize the irreplacable value and man's dependence on them to maintain an environment acceptable to society, and to preserve and protect them from damaging misuses. b. It shall be the Board's policy to minimize alteration in the quantity or quality of the natural Raw of water that nourishes wetlands and to protect wetlands from adverse dredging or filling practice& solid waste management practices, siltation, or the addition of pesticides, salts, or toxic materials arising from non-paint source wastes and through construction activities. and to prevent violation of applicable water quality standards from such environmental insults. c. It shall be the policy of this Board not to approve the construction of of waste water treatment facilities or other waste treatment-associated appurtenances which may interfere with the existing wetland ecosystem except where no other alternative of lesser environmental damage is found to be feasible. In the application for such facilities or appurenances where there is reason to believe that wetlands will be damaged, an assessment will be requested from the applicant that delineates the various alternatives that have been investigated for the control or treatement of the waste water, including the reasons for rejecting those alternatives not used. A full economic appraisal of all alternatives should be included to the extent possible. d. To promote the most environmentally protective measures for the wetlands, it "I be the policy of the Board to advise those applicants for waste treatment facilities that the selection of the most environmentally protective alternative should be made. and to advise them applicants for discharge permits for ail other activities which may affect the wetlands that the activities should be carried out in the most environmentally protective manner. The Virginia Institute of Marine Science. the Marine Resources Commission, and any other appropriate State or Federal agency will be commited to aid in the determination of the probable impact on the pertinent fish and wildlife resources of wetlands. In the emit of projected significant adverse environmental impact. a public hearing an the wetlands issue may be hold to aid in the selection of the man appropriate action, aid the Board may deny the issuance of a discharge permit. and may recommend against the furnishing of appropriate State or Federal grant funds. IMPLEMENTATION The Board will apply this policy to the extent of its authorities in conducting all program activities, including regulatory activities. research, development and demonstration. technical assistance. and the administration of all State and Federal grants programs. 176 APPENDIX III-S General Criteria for Controlling Erosion and Sediment from Land Disturbing Activities ''':'GIENERAL CRITERIA FOR CONTROLLING EROSION AND SEDIMENT FROM LAND DISTURBING ACTIVITIES Application-of General Criteria The,General Criteria ard minimum State requirements for controlling ero- si-on and sedimentation from.*land disturbing activities". These General Criteria,do not replace the requirement for individually developed erosion and-tediment-control plans; however, they do establish minimum standards of sail conservation practice which apply to all land disturbing projects. Applicable Uneral Criteria should be satisfied in each approved erosion and sediment control plan; however,,if a plan is found to be inadequate (with, respect to the General Criteria) in the field, they apply in addi- tion to the.provisions of the approved plan, unless a variance has been granted I Local inspectors and persons responsible for carrying out approved pl'ans must-therefore be aware of the General Criteria as well as the provisions of the approved plans themselves. Nothing in the General Criteria shall limit the.right of the Plan Approv- ing Authority*to impose a:dditional or more stringent-standards for con.- trolling-4rosion and sedimentation during the plan approval process. Vari ances The Plan 'AR .p roving.Authority may waive or modify any of the General Cri- teri,a@whic'h'are deemed inappropriate or too restrictive for site condi- tions, by granting a variance. Variances maybe granted under the "Follow- .Ing conditions! I-*' At t*he:time of plan submission, an applicant-may request variances to become part of the approved erosion and sediment control plan. The applicant must explain the reasons for requesting variances in.writing. Specific variances which are allowed by the Plan ..Approving Authority must be documented on the approved plan. During construction, the person responsible for implementing ., e'approved plan may.request variances in writing to the Plan Approving Authority. The Plan Approving Authority must respond writing approving or disapproving such request. Without a written approval, no variances shall be considered valid. The should respond to variance requests Plan Approving Authori within 10 days. procedure is an important element of the plan review and enforcement programs. It is intended to maintain a necessary flexible _*qe@ki :pg-relationship between local officials and applicants. Plan Approv- @Og,'A4thorities should consider variance requests judiciously, keeping in mind both the need of the applicant to maximize cost-effectiveness and the need to protect off-site properties and resources from damage. Conservation Practices The General Criteria relate to the application of erosion and sediment control practices specified in this chapter; however, other innovative practices or modifications to State-.specified practices may be used if approved by the Plan Approving Authority prior to installation. Such practices must be thoroughly described and detailed to the satisfaction of the Plan Approving Authority. GENERAL CRITERIA GC-1 STABILIZATION OF DENUDED AREAS AND SOIL STOCKPILES A. Permanent or temporary sail stabilization must be applied to denuded areas within 15 days after final grade is reached an any portion of the site. Sail stabilization must also be applied within 15 days to denuded areas which may not be at final grade.but will rwain dormant (undisturbed) for longer than 60 days. Soil stabilization refers to measures which protect soil from the erosive forces of raindrop impact and flowing water. Applicable practices include vegetative establishment, mu-Iching, and the early application of gravel base an areas to be paved. Soil tt4bilization measures should be selected to be appropriate-for the time of year, site conditions and estimated duration of use. 8. Sail stockpiles must be stabilized or protected with sediment,trap- ping measures to prevent soil loss. GC-2 ESTABLISHMENT OF PERMANENT VEGETATION A permanent vegetative cover shall be established on denuded areas not otherwise permanently stabilized. Permanent vegetation shall not be considered established until a ground cover is achieved which, in the opinion of the Local Program Administrator or his designated agent, is mature enough to control soil erosion satisfactorily and to survive severe weather conditions. GC-3 PROTECTION OF ADJACENT PROPERTIES Properties adjacent to the site of a land disturbance shall be protected from sediment deposition. This may be accomplished by preserving a well- vegetated buffer strip around the lower perimeter of the land disturbance, by installing perimeter.controls such as sediment barriers, filters or dikes, or sediment basins, or by a combination of such measures. Vegetated buffer strips may be used alone only where runoff in sheet flow is expected. Buffer strips should be at least 20 feet in width. If at any time it is found that a vegetated buffer strip alone is ineffec- tive in stopping sediment movement onto adjacent property, additional perimeter controls must be provided. GC_4 TIMING AND STABILIZATION OF SEDIMENT TRAPPING MEASURES Sediment basins and traps, perimeter dikes, sediment barriers and other measures intended to trap sediment on-site must be constructed as a first step in grading and be made functional before upslope land disturbance takes place. Earthen structures such as dams, dikes, and diversions must be seeded and mulched within 15 days of installation. GC-5 SEDIMENT BASINS Stormwater runoff from drainage areas with five acres or greater disturbed area must pass through a SEDIMENT BASIN (Std. & Spec. 1.26) or other suitable sediment trapping facility with equivalent or greater storage capacity. The Plan Approving Authority may require sediment basins or traps for smaller disturbed areas where deemed necessary. The sediment basin requirement may also be w&ived, by variance, if the Plan Approving Authority agrees that site conditions do not warrant its. construction. GC-6 CUT AND FILL SLOPES Cut and fill slopes must'be designed and constructed in a manner which will minimize erosion. Consideration must be given to the length and steepness of the slope, the sail type, upslope drainage area, groundwater -conditions and other applicable factors. Slopes which are found to be eroding excessively within one year of con'struction must be provided with additional slope stabilizing measures until the problem is corrected. The following guidelines are provided to aid site planners and plan re- viewers in developing an adequate design. A. Roughened soil surfaces are generally preferred to smooth surfaces on slopes. (See SURFACE ROUGHENING, Std. & Spec. 1.60) B. DIVERSIONS (Std. & Spec. 1.18) should be constructed at the top of long steep slopes which have significant drainage areas above the slope. Diversions or terraces may also be used to reduce slope length. C. Concentrat ed stormwater should not be4llowed to flow down cut or fill slopes unless contained within an adequate temporary or perma- nent channel, flume or slope drain structure (see Std. & Spec. 1.30, 1.31 and 1.35). 0. Wherever a slope face crosses a water seepage plane whi ch endangers the stability of the slope, adequate drainage or other protection should be provided. (See Std. & Spec. 1.37 and 1.50). GC-7 STORMWATER MANAGEMENT CRITERIA FOR CONTROLLING OFF-SITE'EROSION Properties and waterways downstream from development sites shall be pro- tected from erosion due to increases in the volume, velocity and peak flow rate of stormwater runoff. To satisfy this requirement, each locality or conservation-di-strict which' has adopted an approved local erosion and sediment control ordinance'..,. or program may establish its own local stormwater management criteria. However, such criteria must first be approved by the Virginia Sail and Water Conservation Commission toassure that they adequately-address the problem of off-site erosion. In the absence of local stormwater management criteria which have been approved by the Commission,-the fol- lowing viteria shall apply: A. Concentrated starmwater runoff leaving a development site must-be' discharged directly into a well-defined, natural or man-made.off- site receiving channel or pipe. If there is no well-defined off-* site receiving channel or pipe, one must be constructed to convey stormwater to the nearest adequate channel. Newly constructed channels shall be designed as adequate--cahnne7s-. An adequate channel shall be defined as a natural or man-made,dhannel or pipe-which is capable of conveying the runoff from a 2-year storm without overtopping its banks or eroding after development of the site in question. A receiving channel may also be considered adequate at any point where the total contributing drainage area is at least 100 times greater than the drainage area of the development site in question; or, if it can be shown that the peak rate.of runoff from the site for a 2-year storm will not be increased after develop-. ment. *Runoff rate and channel adequacy must be verified with engineering, calculations in accordance with the procedures outlined in Chapter 5 of the 1980 Virginia Erosion and Sediment Control Handbook or other. methods acceptable to tile Plan Approving AuEhority. a. If an existing off-site receiving channel is not an adecuate channe 4 the app1icant must choose one of the following opti s: 1. Obtain permission from downstream property owners to improve the receiving channel to an adecuate condition. Such improvements@ shall extend downstream until an ad uate channel section,is reached. (See Chapter 5 of the 1980 Virginia Erosion and Sedimenf@ Control Handbook) or 2. Develop a site design that will not cause the pre-development peak runoff rate from a 2-year storm to increase. Such a'.design may be accomplished by enhancing the infiltration capability-, of the site or by providing on-site starnwater*detention measurese The pre-devel,opment and post-development peak runoff rates must be verified.by engineering calculations. (See Chapter-S of the 1980 Virginia Erosion and Sediment Contra] Handbook) or 3. Provide a combination of channel improvement, stormwater detention, or other measures which is satisfactory to the Plan Approving Authority to prevent downstream channel erosion. C. All channel improvements or modifications must comply with all app-li- cable -laws and regulations. Modifications to flowing streams should be made in accordance with Best Management Practices for Hydrologic Modifications (80). 0. If -the applicant chooses an option.which includes stormwater detention, he@must provide the locality with A plan for maintenance of the deten- tion facilities. The plan shall set forth the maintenance requirements of the facility and the party responsible for performing the mainte- nance.-, The responsible-party may be an individual, organization or-the local goveemnent--whichever has consented to carry out the maintenance. If the designated maintenance responsibility is with an.,individual-or organization other than a local government, a mainte- nance'agreement should be executed between the responsible party and the local government. E.,--Increased volumes of unconcentrated sheet flows which will. cause erosion or sedimentation on adjacent property must be diverted to a stable outlet or detention facility. F. In applying these stormwater management criteria, individual lots in subdivision developments shall not be considered separate develop- ment,prdjects, but-rather the subd"3771sion development, as a whole, ,shall be",considered a single development project. GC-8 STABILIZATION OF WATERWAYS AND OUTLETS All on-site'stormwater donveyance!channels shall be'designed and con-- structed to@withstand the expected velocity of flow from a 2-year fre- quency storm without erosion (see Std. & Spec. 1.35). Stabilization adequate to prevent erosion must also be provided at the outlets of all pipes and paved channels (see Std. & Spec. 1.36). GC-9 STORM SNER INLET PROTECTTON All-storm sewer inlets which are made operable during construction shall be protected so that sediment-laden water will not enter the conveyance system without first being filtered or otherwise treated to remove sedi- ment (see Std. & Spec. 1.08). GC-10 .WORKING IN OR CROSSING WATERCOURSES A. Construction v4hicles shoulcL be kept out of watercourses to the extent possible.' Where in'channel work is necessary, precautions must be taken'to stabilize the work area during construction to minimize er.osion. The channel (including bed and banks) must always be resta- bilized immediately after-in-channel work is completed (see Std. Spec. 1.45 and 1.46). B. Where a live (wet) watercourie must be crossed by construction vehicles regularly during construction, a TV4PORARY STREAM CROSSING must be provided (see Std. & Spec. 1.47). M GC-11 UNDERGROUNO UTILITY CONSTRUCTION The construction of non-exemot* underground utility lines shall be subject to the following criteria: A. No more than 500 feet of trench are to be opened at one time. 8. Where consistent with safety and space considerations, excavated material is to be placed on the-uphill side of trenches. C. Trench dewaterin4 devices shall discharge in a manner which will not adversely affect flowing streams, drainage systems or off- site property. GC-12 CONSTRUCTION ACCESS ROUTES Wherever construction vehicle access routes intersect paved public roads, provisions must be made to minimize the transport of sediment (mud) by runoff or vehicle tracking onto the paved surface (see Std. & Spec. 1.01 and 1.02). Where sediment is transported onto a public road surface, the roads shall be cleaned thoroughly at the end of each day. Sediment shall be removed from roads by shaveling or sweeping and be*transported to a sediment controlled disposal area. Street washing shall be allowed only after sediment is removed in this manner. GC-13 OISPOSITION OF TEMPORARY MEASURES All temporary erosion and-sediment control measures shall be disposed of within 30 days after final site stabilization is achieved or after the temporary measures are no longer needed, unless otherwise authorized by the local program administrator. Trapped sediment and other disturbed soil areas resulting from the disposition of temporary measures shall be permanently stabilized to.prevent further erosion and sedimentation. GC-14 MAINTENANCE All temporary and permanent erosion and sediment control practices must be maintained and repaired as needed to assure contihued performance of their intended function. **Non-exempt utility construction includes the installation, maintenance or repai; 'Of all utilities which disturb more than 10,000 square feet except: 1. Individual service connections. 2. Telephone-and electric lines. 3. Underground public utility lines under existing hard sur- faced roads, streets, or sidewalks, provided such land disturbing activity is confined to the area which is hard surfaced. APPENDIX 111-9 Commonwealth of Virginia State Water Control Board Regulation No.6 National Pollutant Discharge Elimination System (NPDES) Permit Program Commonwealth of Virginia STATE WATER CONTROL BOARD Regulation No. 6 Adopted: January 23-24, 1975 in Minute 19. National Pollutant Discharge Filed: January 24, 1975. Effective February 23, 1975. Elimination System (NPDE-S Permit Program Revised: December 12, 1980 Minute 18 Filed: February 2, 1981. Effective: March 4, 1981. INDEX Subparts, Sections, & Section Titles ages (follow- ing R8-3 pretix) Subpart A. General................................................................................................2 6.1 Scope & Purpose........................................................................................2 6.2 Authority for Requisitions.............................................................................2 6.3 Definitions............................................................................................2 6.4 Prohibitions of Discharges into State Waters...........................................................6 6.5 Exclusions.............................................................................................6 Subpart B. NPDES Permit Application and Issuance..................................................................7 6.10 Application for NPDES 2 Permits........................................................................7 6.11 Identity of Signatories to NPDES Forms.................................................................8 6.12 Tentative Determinations and Draft Permit Formualtion..................................................8 6.13 Prohibitions...........................................................................................8 6.14 Conditions Applicable to All Permits...................................................................8 6.15 Application of Effluent Statndars and Limitations, Water Quality Standards,and Other Requirements......................................................11 6.16 Calculation and Specification of Effluent Limitations and Standards...................................13 6.17 Schedules of Compliance...............................................................................14 6.18 Fact Sheet............................................................................................15 6.19 Permit Issuance: Effect of Permit.....................................................................16 6.20 Duration of Permits, Continuation of Expiring Permits, and Transferrability of Permits................16 Subpart C. Public Comment and Hearings...........................................................................17 6.30 Public Notice of Permit Application...................................................................17 6.31 Notice to Other Government Agencies...................................................................18 6.32 Public Access to Information..........................................................................18 6.33 Public Comments and Hearings..........................................................................18 6.34 Public Notice of Hearing..............................................................................19 6.35 Responses to Comments.................................................................................19 Subpart D. Permit Compliance.....................................................................................20 6.40 Monitoring............................................................................................20 6.41 Recording of Monitoring Activities and Results........................................................20 6.42 Reporting of Monitoring Results and Compliance by Permittees..........................................20 6.43 Duty to Provide Information...........................................................................21 6.44 Toxics Reporting and Notification Levels..............................................................21 6.45 Commercial Laboratory Reporting.......................................................................21 6.46 Noncompliance Reporting...............................................................................22 Subpart E. Permit Modification, Revocation and Reissuance, and Termination.......................................22 6.50 General...............................................................................................22 6.51 Modification, Revocation and Reissuance and Termiantion...............................................22 6.52 Requests for Modification, Revocation and Reissuance, or Termination..................................23 Subpart F Special NPDES Programs................................................................................24 6.60 General...............................................................................................24 6.61 Disposal of Polutants into Other Treatment Works or by Land Application...............................24 6.62 Concentrated Aquatic Animal Production Facilities.....................................................24 6.63 Separate Storm Sewers.................................................................................25 6.64 Silvicultural Activities..............................................................................25 6.65 New Sources and New Discharges........................................................................25 6.66 General NPDES Permit Program..........................................................................25 183 Subpart G. Pretreatment and Industrial User Control Program.................................28 6.70 Scope and Purpose................................................................28 6.71 Definitions......................................................................28 6.72 POTW Program Requirements........................................................28 6.73 Board Program Requirements.......................................................28 Subpart H. Enforcement......................................................................29 6.80 Enforcement......................................................................29 Subpart I. Miscellaneous....................................................................29 6.90 Board Membership.................................................................29 6.91 Control of Disposal of Pollutants into Wells.....................................30 6.92 Separability.....................................................................30 6.93 Delegation of Authority..........................................................30 Subpart J. Delegation of Authority to the Department of Conservaton and Economic Development for Coal Surface Mining Operations....................................30 6.100 Purpose...........................................................................30 6.101 Basis.............................................................................30 6.110 Delegation of Authority to Issue, Reissue and Amend, and Revoke Permits...........30 6.111 Conditions Upon Delegation........................................................30 6.120 Delegation of Enforcement Authority...............................................30 SUBPART A - GENERAL 6.1. Scope & Purpose. The following regulations delineate the authority and general procedures to be fol- lowed in connection with any NPDES permits issued by the Board authorizing discharges of pollutants into State waters during the periods that the Board may be authorized to issue such permits pursuant to Sections 402, 318, and 405 of the Act. During any periods in which the Board may not be authorized to issue such permits pursuant to Sections 402, 318, and 405 of the Act, these regulatons shall remain in full force and effect with respect to any certificates or NPDES permits authorizing discharges of pollutants into State waters issued by the Board pursuant to Section 62.1-44.15(5) of the Code of Vir- ginia (1950), as amended. 6.2. Authority for Regulatoins. The authority for these regulations is vested in the Board by the State Water Con- trol Law, Section 62.1-44.2 et seq. of the Code of Virginia (1950), as amended. 6.3. Definitions. Unless a different meanting is required by the context, the following terms as used in these regulations shall have the meanings hereinafter respectively ascribed to them: (1) "Law" means the State Water Control Law, Section 62.1-44.2 et seq. of the Code of Virginig (1950), as amended. (2) "Act" means the Clean Water Act (formerly referred to as the Federal Water Pollution Control Act) Pub. L.92-500. as amended by Pub. L.5-217 and Pub. L.95- 576, 33 U.S.C. 1251 et seq. (3) "Board" means the State Water Control Board. (4) "State waters" means all water, on the surface and under the ground,wholly or partially within, or bordering the State, or within its jurisdiction. (5) "NPDES" ("National Pollutant Discharge Elimination System") means the national program for issuing, modifying, revoking and reissuing, terminating, monitoring, and enforcing permits and imposing and enforcing pretreatment requirements pursuant to Secions 307, 402, 318, and 405 of the Act. (6) "NPDES application" means the uniform national forms (including sub- sequent additions, revisions, or modifications) duly promulgated by EPA pursuant to the Act, including any modifications to such forms required by the Board, for application for a NPDES permit. (7) "NPDES form" means any issued NPDES permit and any uniform national 184 form developed for use in the NPDES, including any addition to such form required by the Board, and prescribed in regulations promulgated by EPA including the NPOES appli- cation and the NPDES Oischarge Monitoring Report (DMR) forms. (8) "NPDES permit" means any permit authorizing the potential or actual dis- charge of pollutants, under prescribed conditions. to State waters pursuant to these regu. lations. (9) "NPES Discharge Monitoring Report" ("DMR") means any EPA approved form. including any subsequent additions. revisions or modifications for the reporting of self-monitoring results of permittees. 1 (10) "Applicable effluent standards and limitations" means all State, interstate and Federal standards and limitations to which a discharge or related activity is subject under the Law or the Act including effluent limitations, water quality standards, stand- ards of performance. toxic effluent standards and prohibitions, best management prac- tices. and pretreatment standards under Sections301, 302. 303, 304, 306, 307, 308, 403 and 405 of the Act. (11) Approved POTW Pretreatment Program - defined at Section 6.71. (12) Average monthly discharge limitation - defined at Sefton 6.16(c)(3). (13) Average weekly discharge, limitation -defined at Section 6.1(c) (4). (14) "Best management practices" ("BMP's") includes treatment requirements, operating and maintenance procedures. schedules of activities, prohibitions or activities and other management practices to control plant site runoff, spillage. leaks, sludge of waaste disposal, or drainage from raw material storage as may be required by Sections 304(e) and 402(a)(1) of the Act. (15) The to, "biological monitoring" or "biomonitoring" refers to the repeated measurement of physiologic;# responses of organisms and/or their systems to environ- mentally induced conditions. This may include: (i) The determination of the effects on aquatic life. including accumula- tion of pollutants in tissue, in State waters due to the discharge of pollutants by techni- ques and procedures, including sampling of organisms representative of appropriate levels of the food chain appropriate to the volume and the physical, chemical, and biological characteristics of the effluent. and at appropriate frequencies and locations. (ii) The use of acute or chronic tests which directly ure effluent toxicity to aquatic organisms. These toxicity tests can be used to identify toxic discharges and may help establish effluent limits for permits. (16) Bypass -defined at Section 6.14(m)(1)(1). (17) "Certificate" means any certificate issued by the Board. A NPDES permit is- sued by the Board is a certificate. (18) Cold water aquatic animals -defined at Section 6.62(b)(2). (19) Commercial laboratory - defined at Section 6.45(a). (20) Concentrated aquatic animal production facioity -defined at Section 6.62(b)(1). (21) Continuous discharge - defined at Section 6.16(c)(1). (22) "Direct discharge" Means the "discharge of a pollutant". (23) "Discharge" for the purposes of these regulations when used without qualifi- cation means the discharge of a pollutant/ (24) "Cischarge of a pollutnat" means: (i) Any addition of any pollutant or combination of pollutants to State waters from any point source, or (ii) Any addition of any pollutant or combination of pollutants to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft when being used as a means of transportation and in compliance with Section 312 of the Act. This definition May include discharges into State waters from: (i) Surface runoff that is collected or channeled by man: (ii) Discharges through pipes, sewers, or other conveyances owned by the State, municipality or other party that do not iead to treatment works: and (iii) Discharges through pipes, sewers, or other conveyances, leading into non-publicly owned treatment works. (25) "Effluent limitations" means any restrictions or prohibitions or permit re- quirements established under State or Federal law including, but not limited to, stand- ards of performance for new sources. toxic effluent standards and ocean discharge criteria. on quantities. rates, and concentrations of chemical, physical, biological, and other con- stituents which are discharged from point sources into State waters. (26) "Establishment" means any industrial establishment, mill, factory, tannery Paper or pulp mill, mine. coat mine, colliery, breaker or coal Processing operation, quarry, oil refinery, boat. vessel, and each and every other industry or plant or works the opera- tion of which produces industrial wastes or other wastes or which may otherwise alter the physical, chemical or biological properties of any State waters. (27) "Environmental Protection Agency" ("EPA") means the United States Envir- onmental Protection Agency. (28) Existing source -defined at Section 6.65(a)(3). (29) Facilities or equipment -defined at Section 6.65(a)(5). (30) "Formal hearing" means a public proceeding for the taking of evidence, held under Section 9-6.14:12 of the Code of Virginia (1950), as amended, or the Law, and under the Board's Procedural Rule No. 1, or its successor. (31) General NPDES permit -defined at Section 6.66(a)(2). (32) "Indirect discharge" - means an industrial waste discharger introducing pol- lutants into a treatment works other than his own. (33) Industrial User - defined at Section 6.71(b). (34) -Industrial wastes" means liquid or other wastes resulting from any process of indusry, manufacture, trade or business. or from the development of any natural re- sources. (35) "Interstate agency" means an agency of two or more States established by or pursuant to an agreement or compact approved by the Congress. or any other agency of two or more States, having substantial powers or duties pertaining to the control of Pol- lution as determined and approved by EPA. (36) Log sorting and log storage facilities -defined at Section 6.64(b)(3). (37) Maximum daily discharge -defined at Section 6.16(c)(2). (38) "Municipality" means a city, town, county, district, association, or other political subdivision created by or pursuant to State law and having jurisdiction over dis- posal of sewage, industrial wastes, or other wages, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under Secton 208 of the Act (39) National Pretreatment Standard - defined at Section 6.71 (c). (40) "New - means any building, structure, facility or installation: (i) Which an October 18. 1972. had never discharged pollutants; (ii) Which had never received a finally effective NPDES permit: (iii) From which there is or may be a new or additional discharge of pollutants; (iv) Which is an indirect discharger that commences a discharge to State waters: and (v) Which does not fall within the definition of new source. (41) "Now source" means any building. structure, facility or installation from which there is or may be a discharge of pollutants the construction of which commences: (i) After promulgation of standards of performance under Section 306 of the Act which are applicable to such source; or (i i) After proposal of standards of performance under Section 306 of the Act which are applicable to such source. but only if the standards are promulgated within 120 days of their proposal. (42) "Operator" means any person employed or appointed by any owner, and who. is designated by such owner to be the person controlling the operations of the treat- ment works, including direct actions, decisions or evaluations which affect the quality of the discharge. and whose duties include testing or evaluation to control treatment works operations. (43) "Other wastes" means decayed wood, sawdust. shavings, bark, lime. garbage, refuse, ashes, offal, tar, oil, chemicals. and all other substances. except industrial wastes and sewage. which may cause pollution in any State waters. (44) "Owner" means the State or any of its political subdivisions, including, but not limited to, sanitation district commissions and authorities: any public or private in- situation, corporation, association, firm or company organized or existing under the laws of this or any other state or country; or any person or group of persons acting individual- ly or as a group, and shall include any permittee under a NPDES permit. For the pur- poses of this regulation, "owner" shall also mean any responsible corporate officer so designated in the applicable permit. 186 (45) "Permittee" means any owner to whom a NPOES Permit has been issued by the Board. (46) "Person- means an individual. corporation. partnership, association, Federal agency, State, municipality, commission, agency, political subdivision of a State or any interstate body, or an agent or employee thereof. (47) "Point source" means any discernible, confined and discrete conveyance, in- cluding but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure. container, rolling stock, vessel or other floating craft. from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture. (48) "Pollutant" means any substance, radioactive material, or waste heat which causes or contributes to, or may cause or contribute to, pollution. It does not mean: (i) Sewage from vessels. or (ii) Water, gas. or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production. and disposed of in a well, if the wail used either to facilitate production or for disposal pur- poses is approved by authority of the Board, and if the Board determines that such in- jection or disposal will not result in the degradation of ground or surface water resources. (49) "Pollution" means such alteration of the physical, chemical, or biological properties of any Stan waters as will or is likely to create a nuisance or render such waters: (i) Harmful or detrimental or injurious to the public health, safety. or welfare. at to the health of animals. fish, or aquatic life: (ii) Unsuitable, with reasonable treatment. for use as present or possible future sources of public water supply; or (iii) Unsuitable for recreational, commercial. industrial, agricultural, or other reasonable uses. provided that: (A) An alteration of the physical, chemical, or biological properties of State wears or a discharge or deposit of sewage, industrial wastes. or other wastes to State wears by any owner which by itself is not sufficient to cause pollution but which in combination with such alteration or discharge or deposit to State waters by other owners is sufficient to cause pollution, (B) The discharge of untreated sewage by any owner into State waters, and (C) Contributing to the contravention of water quality standards duly established by the Board, am "pollution" for the terms and purposes of this regulation. (50) Pretreatment - defined at Section 6.71(f). (51) Pretreatment Requirement -defined at Section 6.71(f). (52) "Process wasterwater" means any water which, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product. finished product. byproduct, or waste product. (53) "Public Hearing" means an informal fact-finding proceeding, under Section 9-6.14:11 of the Code of Virginia (1950). as amended, the Law and the Board's Proce- dural Rule No. 1. or its successor. held to afford interested persons an opportunity to submit factual data, views. and arguments to the Board. (54) "Publicly owned treatment works" ("P0TW") means a treatment works as defined herein, which is owned by the State or a municipality, excluding any sweers or other conveyances not leading to a facility providing treatment. (55) ",Radioactive Material- means those radioactive materials not encompassed in the definitions of source, byproduct or special nuclear materials in the Atomic Energy Act of 1954, as amended. (55)"Residues- meat" the solids. sludges, and precipitates separated from or created by the unit processes of a treatment works. (57) Rock crushing and gravel washing facilities - defined at Section 6.64(b)(2). (58) "Schedule of compliance" means a schedule of necessary measures includ- ing an enforceable sequence of actions or operations leading to compliance with an ef- fluent limitation, other I imitation, prohibition, standard, or water quality standard. (59) Separate Storm Sewer - defined at Section 6.63(b)(1). (60) Severe property damage -defined at Section 6.14(m)(1)(ii). (61) "Sewage" means the water-carried human wastes from residences, build- ings, industrial establishments or other places together with such industrial wastes, under- ground, surface, storm, or other water as may be present.. (62) "Sewage from venels" means human body wastes and 'he wastes from toilets and other receptacles intended to receive or retain body wastes that are discharged from vessels and regulated under Section 312 of the Act. (63) Silvicultural pain r source - defined at Section 6.64(b) M. (64) Site - defined at Section 6.65(a) (4). (65) Source - defined at Section 6.65(a) (2). (66) "70xic Pollutant" means any pollutant listed as toxic under Section 307(a) (1) of the Act. (67) "Trearnenr works" means any devices and systems used in the storage, treatment. recycling, and/or reclamation of sewage or industrial wastes. or necessary to recycie or reuse water, including intercepting sewers, outfail sewers. sewage collection sys- tems. pumping, power, and other equipment. and their appurtenances: extension, im- provement, reAodefing. additions, and alterations thereof: and any works. including land that will be an integral part of the treatment process or is used for ultimate disposal of residues resulting from such treatment: however, "treatment facilities!' shall include only those mechanical devices necessary for the transmission and treatment of pollutants (e.g., unit treatment processes and pump stations). (68) Upset -defined at Section 6.14(n)(1). (69) "llariance" means any mechanism or provision under Sections 301 or 316 of the Act, or in the applicable effluent limitation guidelines which allow modification to or waivers of the effluent limitation requirements or time deadlines of the Act. This in- eludes provisions which allow the establishment of alternative limitations based on funda- mentally different factors and Sections 301 (c). 301 (g). 301 (h), 301 M, and 316(a) of the Act, whom appropriate. (70) Warm water aqua6c animals -defined at Section 6.621b)(3). (71) "lVater quality swrroards" means any water quality standards established by the Board pursuant to the Law or by SPA under the Act. and effective under State and/ or Federal law. 6.4 Pr;hibition of Discharges into State Waters. No owner shall discharge any poilutanf, including sewage, industrial wastes or other wastes. into, or adjacent to State waters or otherwise alter the physical, chemical, or bio- logical properties of State waters, except as authorized pursuant to a NPOES permit. &S Exclusions. (a) The following discharges do not require a NPOES permit: (1) Any discharge of sewage from vessels. effluent from properly function- ing marine engines, laundry, shower, and galley sink wastes. or any other discharge inci- dental to the normal operation of a vessel. This exclusion does not apply to rubbish, trash, garbage, or other such materials discharged overboard: nor to other discharges when the vessel is operating in a capacity other than as a means of transportation such as when a vesial is being used as an energy or mining facility, a storage facility, or a seafood pro- ciiissing facility or when secured to a storage facility or a seafood processing facility, or is secured to the bed of the ocean, contiguous zone, or State waters for the purpose of mineral or oil exploration or development; (2) Oischarges df dredged or fill material that are regulated under Section 404 of the Act; (3) The introduction of sewage, industrial wastes or other pollutants into treatment works, except as provided for by Section 62.1-44.18:2 of the Law; (4) Water, gas, or other material which is injected into a well to facilitate production of oil or gas derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is aa- proved by authority of the State and if the Board determines that such injection or dis- posai will mot result in the degradation of ground or surface water resources: and AS) Any introduction of pollutants from agricultural and silviculturai acti- vities. including runoff from orchards. cultivated crops, pastures, range lands, and forest lands. except that this exclusion shall not apply to discharges from concentrated aquatic animal production facilities as defined in Section 6.62: and. discharges from silvicultural point sources as defined in Section 6.64, (b) Nothing herein shall affect the authority of the Board to recuire certification under any applicable provisions of the Law or Act. SUSPART 3 - NPOES PERMIT APPLICATION AND ISSUANCE 6.10. Application for NPOES Permits. (a) Application shall be made by any owner in the manner and form Prescribed by the Board, prior to the issuance of any NPOES permit. except as provided for under Section 6.5. (b) Owners currently discharging who have: (1) Existing permits shall submit a now application under paragraph (c) of this section where facility expansions, production increases. or process modifications will: (i) Remit in significantly now or substantially increased discharges of pollutants or a significant change in the nature of the discharge of pollutants, or 00 Violate the terms and conditions of the existing permit; (2) Expiring permits shall submit mew applications at least 180 days before the expiration'date of the existing permit. unless permission for a later date has been granted by the Board. (c) Any owner proposing a now discharge or now source shall submit an appli- cation for a NPOES permit at least 30 days prior to commencing erection. construction, or expansion or employment of new processes at any facility. Within that 30-day period, the Board may prohibit such commencement until the NPOES permit is issued. In no case, however. shall any discharge from said facilities commence prior to the issuance of a NPOES permit. (d) Any application for a NPOES permit to discharge any pollutant. including sewage, industrial wastes. or other wastes, to State waters shall be accompanied by plarts, specifications. mans, and such other relevant information as may be required. (a) The Board may require the submission of additional information after a NPIDES application has been filed, and may suspend processing of any application until such time as the owner has supplied missing or deficient information and the Board con- siders the application complete. Further, where the owner becomes aware that he failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to. the Board. he shall promiptiv submit such facts or information. &11 lden-titV of Signatories to NPOES Forms. (a) All permit applications shall be signed as follows: (1) For a corporation, by a principal executive officer of at least the level of vice president: (2) For a partnership or sale proprietorship, by a general partner or the proprietor. respectively: or (3) For a municipality, State. Federal or other public facility, by either a principal executive officer or ranking elected official. (b) All other forms or requests for information required by the Board shall be signed by a person designated in paragraph (a) or a duly authorized representative or agent of such person (either an individual or position 1. if: (1) The representative so authorized is responsible for the overall opera- tion of the facility from which the discharge originam. e.g.. a plant manager, super- intendant or person of equivalent responsibility; and (2) The authorization is made in writing by the person designated under paragraph (a) and submitted to the Board. (c) In addition to signatories required in (b) above. any OMR submitted to the Board by a permittee or his authorized representative shall also be signed by the operator of the treatment works. (d) Any changes in the written authorization submitted to the Board under paragraph (b) which occur after the issuance of a permit shall be reported to the Board by submitting a copy of a new written authorization which masts the requirements of para- graph (b)(1) and (2) above prior to or together with any forms or other information re- quired by the Board which are to be signed by said authorized representative. (a) Any person signing any document under paragraph (a), (b). or (c) shall make the following certification: "I certify under penalty of law that I have personally ex- amined and am familiar with the information submitted in this document and all attach- ments and that. based on my inquiry of those individuals immediately responsible for ob. taining the information, I believe the submitted information is true. accurate. and com- plete. I am aware that there are significant penalties for submitting false information including the possibility of fine and imprisonment." 6.12 Tentative Determinations and Oraft Permit Formulation. The Board shall prepare tentative determinations with respect to a NPDES appli- cation in advance of public notice of the Proposed issuance or denial of a NPDES permit. Such tentative determinations shall be incorporated into a draft NPDES permit. and shall include at least the following: (a) A proposed determination to issue or deny a NPDES permit for the discharge described in the NPDES application; (b) If the determination proposed is to issue the NPDES permit. the following ad- ditional tentative determinations will be made: (1) All conditions. limitations. or requirements. specified in Section 6.14; (2) Proposed effluent limitations identified pursuant to Sections 6.1S and 6.16 of this Regulation, for those pollutants proposed to be limited: (3) All compliance schedules required by Section 6.17: and (4) All monitoring requirements required by Section 6.40. (c) If the determination proposed is to deny the application, the Board shall so advise the owner of said determination and the requirements. if any, necessary to modify that determination. The owner may withdraw his application- prior to Board action an the denial. If the application is not withdrawn and conditions necessary for modification of the tentative determination have been satisfied, the Board shall provide notice and opportunity for a public hearing prior to formal action an the application. (d) The Board may formulate a draft permit without having- received an appli. cation from an owner. 6.13 Prohibitions. No permit shall be issued in the following circumstances:' (a) Where the terms or conditions of the permit do not comply with the appli- cabin regulations or requirements of the Law or the Act: (b) For the discharge of any radiological, chemical or biological warfare agent or'.- high level radioactive material into State waters: (c) For any discharge which the Secretary of the Army, acting through the Chief of Engineers., finds would substantially impair anchorage and navigation; (d) For any discharge to which the EPA objects in writing; (e) For any discharge that is in conflict with any area-wide or basin-wide water quality control and waste management plan or policy established by the Board pursuant to the Law, except that such. permits may -be issued to any treatment works operating price to the adoption of such plan until: that treatment works conforms with the' area- wide or basin-wide water quality control and waste management plan; (f) For any discharge to territorial sea. the waters of the contiguous zone, or the oceans in the following circumstances,. (1) Prior to the promulgation of the guidelines under Section 403(c) of the Act. unless the Board determines permit issuance to. be in the public interest: or (2) After. promulgation of guidelines under Section 403(c) of the Act, where insufficient information exists to make a reasonable judgement as to whether_. the discharge complies with any such guidelines; (g) For a facility which is a new source or a new discharger, if the discharge from the construction or operation of 'the facility will cause or contribute to the violation of, water quality standards: or (h) When the imposition of conditions on any discharge will not require ccompli- ance with the applicable water. quality laws and regulations of ail affected states. 6.14 Conditions Applicable to All Permits. In addition to the requirements,of Sections 6.15, 6.16, and 6.17, the terms and, conditions of each NPDES permit issued by the Board shall require the following: (a) That all discharges authorized by the NPDES permit shall be made in ac- cordance with the terms and conditions of the permit. (b) That expansions. production increases, or process, modificatons, that will result in new or increased discharge(s) of pollutants. must be reported promptly to the Board. by submission of a new NPDES application, or, if such discharges(s) does not violate effluent limitations specified in, the NPDES permit, by submission to the Board of notice of such new or increased discharge(s) of pollutants: (c) That the discharge of any pollutant more frequently than, or at a level in excess of, that identified and authorized by the permit shall constitute a violation of the terms and conditions of the permit: (d) That the permit may be, amended or revoked in accordance with procedures pursuant to Sections 62.1-44.l5(5) and 62.1-44.25 of the Law, in whole or in part, during its term, for cause as provided in Subpart E; That the permittee shall allow any authorized State or Federal representative, upon, the presentation of his credentials: (1) To enter upon the permi premises on which the establishment. treatment works, or discharge(s) is located or, in which any records are required to be kept under terms and conditions of the permit: (2) To have access to and copy at reasonable times any records required to be kept under terms and conditions of this permit: (3) To inspect at reasonable times any monitoring equipment-or method required in the permit. (4) To inspect at reasonable times any collection, treatment, pollution management, or discharge facilities, required under the permit; and/or, (5) To sample at reasonable times any discharge for the purposes of assur. ing permit compliance or otherwise authorized by the Law and the Act: (f) That if the permit is for a discharge -from any treatment works, the permit- tee shall promptly provide notice to the Board of the following: (1) Any new introduction of pollutants into such treatment works from an establishment, treatment works, or discharg(s) which would be a now source, as defined in these regulations, if such source wen discharging pollutants to State waters; (21 Any new introduction of any pollutant(s) into such treatment works, which introduction represents a significant increase in the discharge of pollutant(s) to. the treatment works or may interfere with, pass through, or otherqwise be incompatible with such works, from an establishment, treatment works, or discqharge(s) which would be subject to Sections 6.13, 6.16. and 6.17, if such establishment. treatment works, or dis- charge(s) were discharging pollutants to State waters; and. (3) Any substantial change, whether permanent or temporary, in the volume' or character of 'pollutants being. introduced into such treatment works by an establishment. treatment works. or discharge(s) that was -introducing pollutants into such treatment works at the time of issuance of the permit. Such notice shall include information on: (i) The characteristics and quantity of effluent to be introduced into such. vestment works; (ii) Any anticipated impact of such change in the quantity or charac- terists of effluent to be discharged from such treatment works: and, (iii) Any additional information that may be required by the Board. (g) That any permittee who knows or has reason to believe that any activity or chnge in, conditions has-occurred or will occur which might constitute cause for modi- fication or revocation and rissuance under Subpart E must report his plans, or such in- formation, to the Board so that 'the Board can decide whether action to modify or revoke and reissue a permit under Subpart E will be required. The Board may -then re- quire submission of a new application. Submission of such application does not relieve the discharger of the duty to comply with the existing permit until it is modified or re- issued: (h) That the permittee shall comply with effluent standards or prohibitions established under- section 307(a) of the Act for toxic pollutants within the time pro- vided in the regulations that establish these standards or prohibitions, even if the permit has not yet been modified to incorporate the requirement: (i) That the permittee shall at all times maintain-in good working order and operate as effficiently as possible all facilities and systems (and related appurtenances) for collection and treatment which ire ins-tailed or used by the permittee for water pol- lution control and abatement to achieve compliance with the terms and conditions of the permit. Proper operation and maintenance includes but is not limited to effective performance based on designed facility removals, adequate funding, effective manage- ment, adequate operator staffing and training. and adequate laboratory and process con- trols,including appropriate quality assurance procedures; (j)(1) That' if, for any reason, the permirtee does not comply with any maxi- mum daily or: average Weekly. discharge limitations or standards specified in the permit, 191 the permittee 5hail submit to the Board with the OMR in accordance with *,he require. ments of Section 6.42 at least the following information: M A description of the discharge and cause of noncompliance; 60 The period of noncompliance. including exact dates and times and/or the anticipated time when the discharge will return to compliance; and (iii) Actions taken or to be taken to reduce, eliminate, and prevent recurrence of the noncomplying discharge: (2)(i) That in the case of any discharge subject to any applicable toxic pol- lutant effluent standard under Section 307(a) of the Act, the information required in paragraph (1) regarding a violation of such standard shall be provided immediately, and as quickly as possible upon discovery. If this information is provided orally, a written submission covering these points shall be provided within five days of the time the permirtes becomes aware of the circumstances covered by this paragraph; and (iii) That in the case of other discharges which could constitute a threat to human health, welfare. or the environment. the Board may require that the information required in paragraph (1) be provided immediately, and as quickly as possible upon discovery. Where the Board requires immediate notification, and the information is provided orally, a written submission covering these points must be provided within five days of the time the permittee becomes aware of the circumstances covered by this paragraph: (3) That pollutants for which the permime must recort violations im. mediateiy pursuant to paragraphs Q) (2) M and (ii) shall be listed as such in the permit: (k) That the permirme shall take ail reasonable sups to minimize any adverse impact to State waters resulting from noncompliance with the permit: and (1) That the permittee, in order to maintain compliance with tts permit. shall control production and ail discharges as necessary upon reduction, loss, or failure of the trea-tment facility until the treatment facility is restored or an alternative method of treat- ment is provided. (m) Bypass. (1) DefinitionL (i) "Bypass" means the intentional diversion of wastes from any portion of a treatment facility. UO "Savwwomaerry damage- means substantial physical damage to property, damage to the treatment facilities which would cause them to become in- opmbie, or substantiall-and permanent [on of natural resources which can reasonably be.expected to occur in the absence of a bypasL Severe property damage does not mean economic loss caused by delays in production. (2) Conditions necessary for bypass. Bypass is prohibited unless the follow- ing four conditions are met: (i) Bypass is unavoidable to prevent loss of human life, personal injury or severe property damage. (N) There are no feasible alternatives to bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, plant shutdown or main- tenance during normal periods of equipment down-time: OR) The permirtee submits notice of an unanticipated bypass to the Board immediately and as quickly as possible upon discovery of the bypass (if this in- formation is provided orally, a written submission must be provided within five days). Where the-perminee knows or should have known in advance of the need for a bypass, this prior notification shall be submitted for approvai to the Board, if possible, at least ton days before the date of the bypass. and (N) The bypass is allowed under conditions determined to be neces- sary by the Board to minimize any adverse effe=. The public shall be notified and given an opportunity to comment on bypass incidents of significant duration, to the extent feasible. (3) Prohibition of bypass. The Board may prohibit bypass in consideration of the adverse effect of the proposed bypass or where the proposed bypass does not meet the conditions set forth in paragraphs (m)(2) (0 and (ii). (ni Upset. (1) Definition. "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with technology-based permit effluent limitations because of factors beyond the reasonable control of the permirtee. The basis i qc@@ for specific effluent limitations can be found in the fact sheet, as provided for in Section 6.18. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation, (2) Effect of an upset. An upset shall constitute an affirmative defense to an action brought for noncompliance with such technology-based permit effluent limita. tions if the requirements of paragraph (n) (3) are met (3) Conditions necessary for a demonstration of upset A permittee who wishes to estabilish the affirmative defense of upset shall demonstrate. through properly signed and authenticated. contemporaneous operating logs, or by other relevant evidence that., 0) An upset occurred and that the permittee can identify the speci- fic cause(s) of the upset: (ii) The permitted facility was at the time being operated in a pru- dent and workman-4ike manner and in compliance with proper operation and main- tenance procedures; (NO The permittee submitted all information required to the Board in Section S. 14li) (1) within 24 hours of becoming aware of the upset (if this information is provided orally, a written submission must be provided within five days); and Uv) The parmittes took any meawres necessary to minimize any adverse impact to State waters. (4) Burden of proof. The permirme shall have the burden of proving an upset in any case where an upset is cfaimed as a defense. 6.15 Application of Effluent Standards and Limitations, Water Quality Standards, and Other Requirements. Each NPOES permit shall provide for and ensure compliance with all applicable requirements of the Law and the Act and any regulations promulgated under the Law and the Act. Permits shall require compliance with the following as applicable: (al Effluent limitations and standards under Sections 201, 302, 303, 304, 307, 318, and 405 of the Act, or established by the Board, including any interim final lirnita- tions and standards; (b) Standards of performance for now sources under Section 306 of the Act or established by the Board, including any promulgated interim final effluent limitations and standards: (c) Guidelines promulgated by the EPA pursuant to Section 403 of the Act or established by the Board: (d) Any more stringent limitation, inciuding those necemry to meet water quality standards, treatment requirements. or schedules of compliance. established by the Board pursuant to the Law, or required to implement all applicable water quality stand- ards established pursuant to the Act or required by any other Federal law or regulation; (91 Any more stringent requirement necessary for compliance with any area- wide or basin-wide water quallity control and waste management plan or policy esub- lished pursuant to the Law; (f) Prior to the promulgation by the EPA of applicable effluent standards and limitations pursuant to Sections 301, 302, 306, 307 of the Act, such conditions as the Board determines are necessary to carry out the provisions of the Act and the Law; (g) Limitations established under paragraphs (a), (b). (d), (91, and (f) of this section to control pollutants meeting the criteria listed in paragraph (9)(1) of this section. Limitations will be established in accordance with paragraph (g)(2) of this section. An explanation of the development of these limitations shall be included in the fact sheet under Section 6. 18. (1) Limitations must control all toxic pollutants which: M The Boarcl determines are or may be discharged at a level greater than the level which can be achieved by the technology-based treatment requirements appropriate to the permittee: or, (ii) The discharger does or may use or manufacture as an inter- mediate or final product or byproduct. (2) The requirement that the limitations control the pollutants meeting the criteria of paragraph (g)(1) of this section will be satisfied by- I q '-@ (i) Limitations on those Pollutants; or. (ii) Limitations on other Pollutants which, in the Board's judgment, will provide treatment of the pollutants under Paragraph (g) (I) of thi's section. (h) If the NPDES, permit is for the discharge of pollutant(s) into State waters from a vessel or other floating craft, any applicable regulations promulgated by the Secretary of the Department in which the Coast Guard is operating, establishing speci- fqications for safe transportation, handling, carriage, and storage of Pollutants; (i) Best management practices to control or abate the discharge of pollutants #here-: (1) Authorized under Section 304(e) of the Act for the control of toxic and hazardous pollutants from ancillary industrial activities; (2) Numeric effluent limitations are inappropriate, inapplicable, or in- feasible, or (3) The practices are reasonably necessaary in the Board's opinion, to achieve affluent limitations and standards. including water quality standards or otherwise to carry out the purposes of the Act and !Me Law: (j) Requirements governing the disposal of residues from treatment facilities in accordance with applicable regulations: (k) Where a permit is renewed or reissued, interim limitations, standards, or conditions which are at least as stringent as the final limitations, standards. or conditions in the previous. permit (unless the circumstances on which the previous permit was based have materially 'and substantially changed since the time the permit was issued and would constitute cause for permit modification or revocation and reissuance under Subpart E). Where effluent limitations were imposed under Section 402(a(l) of the Act in a previ- ously issued permit and these limitations are more stringent than those required under the subsequently promulgated affluent guidelines, this paragraph shall apply unless: (1) The discharger has installed the treatment facilities contemplated by. the discharger in connection with the issuance of the previous permit and has property operated and maintained the facilities but has nevertheless been unable to achieve the previous effluent limitations. In this case the limitations in the reissued permit may re- flea the level of pollutant control actually achieved (but shall not be less stringent than required by the subsequently promulgated effluent guidelines); or (2) The subsequently promulgated effluent guidelines are based an best: conventional pollutant control technology (Section 301(b)(2)(E) of the Act); (l) Any conditions that the Secretary at the Army considers necessary to ensure that navigation and anchorage will not be substantially impaired: (m) With respect to any point source otherwise subject to the foregoing limit- ions, standards, prohibitions, schedules, and/or requirements, whenever the owner of any such source, after opportunity for public hearing, can demonstrate to the satisfaction of the Board that any affluent limitations proposed for the control of the thermal, com- ponent of any discharge from such source will require effluent limitations more stringent than necessary to assure the protection and propagation of a balanced. indigenous popu- lation of shellfish, fish, and wildlife in and on the body of water into which the discharge is, or is to be made, the Board may impose an alternative effluent limitation which con- trots the thermal component of the discharge from such source (taking into account the interaction of such thermal component with other pollutant(s), that will assure the pro- protedtion and propagation of a balanced, indigenous population of shellfish, fish, and wild- life in and on that body of water. Notwithstanding any other provision of these regula- tqions. any point source of a discharge having a thermal component, the modification of. which point source is commenced after October 18. 1972. and which as modified mean effluent limitations established under these regulations and which effluent limita- tqions will assure protection and propagation of a balanced, indigenous Population of shellfish, fish, and wildlife in or on the water into which the discharge is made, shall not be subject to- any more stringent effluent limitation with respect to the thermal cam- ponent of its discharge during a can-year period beginning on the date of completion of such modification or during the period of depreciation or amortization of such facility for the purpose of Section 167 or 169 (or both) of the Internal Revenue Code of 1984, whichever period ends first. (n) In any case where a NPDES permit issued by the Board contains the affluent standards and limitations described in paragraphs (a) and (b) above. the Board will state its finding that the discharge authorized by the permit will not violate applicable. water, quality standards and will prepare a written statement setting forth the basis for such finding., Whenever a NPOES. permit issued by the Board, contains any more stringent effluent limitation based upon applicable water quality standards,. a waste load allocation will be prepared for ail pollutants identified by EPA under Section 304(a)(2) of the Act as suitable, for maximum daily load -calculation. to ensure that -the discharge authorized by the permit is consistent with applicable water quality standards. 6.16 Calculation and Specification of Effluent Limitations and Standards. (a) (1) All permits shall impose final, and where. necessary, interim or interim final effluent, limitations, standards and prohibitions under Sections 6.14 and 6.15 for each outfall or discharge point of the Permitted facility, except as otherwise provided under Section 6.15(i)(2) and Section 6.16(h). (2) Except in the case of sewage treatment works, calculation of any permit limitations, standards, or prohibitions which are based on production(or- other measure of operation) shall be based not upon the designed Production capacity but rather upon a reasonable measure of actual production of the facility, such as the production during the high month of the previous yew, or the monthly average for the highest of the pre- vious 5 years. For now sources or now discharges, actual production shall be estimated using projected production. (3) In the. case of sewage treatment works, permit limitations, standards, or prohibitions shall. be. calculated, based -an design flow. (b) All interim and final permit effluent limitations, standards, or prohibitions established under Sections 6.14 and 6.15 for a Metal shall be expressed in -term's of the total metal (i.e.. the sum of the dissolved and suspended fractions of the metal)unless: (1) The promulgated effluent I imitation 'and standard under the Act speci- fies the limitation- for the metal in the dissolved or valent form; or (2) In establishing permit limitations an a case-bv-case basis, it is neces- sary to express the limitation, on' 'the metal in the dissolved or form in order to carry out the provisions of the Act. (c) For continuous discharges all interim and final per it effluent -limitations, I standards, and prohibitions established under Sections 6.14 and US. including those. necessary to achieve water quality standards, shall be stated as maximum daily and average monthly discharge limitations for. all dischargers otherthan sewage treatment -works. and as average weekly and average. monthly discharge limitations for sewage treatment Works. For the purposes of this part: (1) A "continuous discharge" means a discharge which occurs without inter- ruption, except for infrequest shutdowdns for maintenance, process changes, or other similar activities throughout the operating hours of the facility. (2) The "maximum daily discharge" is the highest total mass of a pollu- tant discharged during the calendar day or, in the case of a pollutant limited in terms other I than mass pursuant to paragraph (d), the highest. average concentration or other measurement of the. pollutant specified during the calendar, day or any, 24-hour period that reasonably represents the calendar day for the purpose of sampling. The maximum daily discharge limitation may not be violated during any calendar day. (3) The "average monthly discharge" is the total mass, and concentration an in the case of sewage treatment works, of -ail daily discharges. sampled and/or measured during a calendar month, on which daily discharges are sampled and 'measured., divided by the number' of daily discharges sampled and/or measured during such month. The average monthly discharge limitatiions may not be violated during any calendar month. (4) The "average weekly discharge" is the total mass and concentration of all-daily sewage treatment works discharges during any calendar week an which daily discharges are sampled and/or ,measured, divided by the number of daily discharges sampled and/or measured during such calendar week. The average weekly discharge limitation may not be violated during any calendar week. (d) Paragraph (c) is not applicable: (1) For PH. temperature, radiation, or other pollutants which cannot be appropriately expressed by mass; or (2) Where applicable promulgated effluent guideline (imitations, standards, or prohibitions are expressed in other terms than mass; e.g., as concentration levels. (3) If, in establishing permit limitations on a case-by-case basis, limitations 195 expressed in terms of mass are infeasible because the mass of the pollutant discharged cannot be related to a -measure of operation (for example, discharges of TSS from certain mining operations). and permit conditions ensure that dilution will not te used as a substitute for treatment. (e) Except as provided in paragraph (f), effluent limitations imposed in permits shall not be adjusted for pollutants in the intake water. (f) (1) Upon request of the permittee, effluent limitations or standards imposed in a permit will be calculated on a "net" basis, i.e., adjusted to reflect credit for pollutants in the permittee's in-take water, if the permictee demonstrates that his intake water is drawn from the same body of water into which the discharge is made and if: M (A) The applicable effluent limitations and standards specifical- IV piovide that they shall be applied on a net basis; or (8) The permittee demonstrates that pollutants Present in the intake water will not be substantially removed by the treatment systems operated by the permittee: and 00 (A) The permit contains conditions requiring the permittee to conduct additional monitoring (i.e., for flow and concentration of pollutants) as necessary to determine continued eligibility for and compliance with any such adjust- monts. (B) The Permittee shall notify the Board if this monitoring indicates that eligibility for an adjustment under this section has been altered or no lo.nger exists. In such case. the permit shall be modified or revoked and reissued under Subpart E. (2) Permit effluent limitations or standards adjusted under this paragraph shaill be calculated on the basis of the amount of pollutants, present after any treatment steps have been performed on the intake water by or for the permittee. Adjustments under this paragraph shall be given only to the extent that pollutants in the intake water which are limited in the permit are not removed by the treatment technology employed by the permittee. In addition. effluent limitations or standards shall not be adjusted when tne pollutants in the intake water vary Physically, chemically or biologically from the pollutants Arnited by the permiZ. Nor shall effluent limitations or standards be ad- justed when rho permittee significantly increases concentrations of pollutants in the in- take water, wen though the total amount at pollutants might remain the same. Nor shall effluent limitartions or standards be adjusted for pollutants present in the intake water that have been discharged to that water by the permittee. (g) Discharges which are not continuous, as defined in paragraph (c)(1). shall be particularly described and limited. considering the following factors, as appropriate: (1) Frequency: 0 Total mass: (3) Maximum rate of discharge of pollutants during the discharge: and (4) Prohibition or limitation of specified pollutants by mass, concentra- tion, or other appropriate measure. (h) Where imposition of permit effluent limitations or standards at the point of discharge is impractical or infeasible. effluent limitations or standards for discharges of pollutants may be imposed on internal waste streams prior to their mixing with other waste streams or cocling water streams. In such instances the monitoring required by Subpart. 0 shall also be applied to the internal waste streams. IL17 Schedules of Compliance. (a) Permits shall contain schedules -of compliance recuiring the permirtee ta take specific steps where necessary to achieve expeditious compliance with a0plicable standards and limitations and other requirements. Schedules of compliance shall require compliance as soon as possible, but in no case later than an applicable statutory deadline. (b) If any permit allows a time for achieving Ifinal compliance which exceeds .one year from the date of permit issuance, the schedule of compliance in the permit shall set f4"h interim requirements and the dates for their achievement. (1) In no event shall more than one year elapse between dates specified for interim requirements. (2) If the time necessary for completion of any interim requirements (such as the construction of a treatment facility) is more than one year and is not readily divisible into stages for completion, the permit shall specify interim dates not more Clan 9 JP one year apart for the submission of reports of Progress toward completion of the in- terim requirements. (c) A permittee may terminate its direct discharge by cessation of operation or discharge to a treatment works rather than achieve applicable standards and limitations by the final date for compliance established in its permit or in the Act under the follow- ing circumstances: (1) If the decision to terminate a direct discharge is made after issuance of permit: M The permit shall be modified or revoked and reissued to contain schedule of compliance leading to termination of the direct 'discharge by a date which i no later than the statutory deadline: or (ii) The permittee shall terminate direct discharge before non- compliance with any interim requirementspecified in thi schedule of complim,im in ihe permit (2) If the decision to terminate a direct discharge is made before issuance of the permit, the permit shall contain a schedule leading to termination of the direct discharge by a date which is no later than the statutory deadline. (3) If the permittee contemplates but has not made a final decision to to... ina= the direct discharge before the issuance of the permit, the permit shall contain alternative schedules leading to compliance as follows: (i) The schedule shall contain an interim requirement requiring such a final decision no later than a date which allows sufficient time to comply with appli- cable limitations and standards in accordance with paragraph (c)(Viii) of this section, (i.e.. a milestone event for commencement of construction of control equipment): and (ii) A subsequent schedule leading to termination of the direct dis- charge by a date which is no later than the statutory deadline: and OR) A subsequent alternative schedule leading to compliance with applicable standards and limitations, no later than the statutory date: and (ivI A req-jirement that afte@ the permittee has made a decision pur- suant to paragraph (c)(3)(i) of this section. i@ shall so notify the Board and shall: (A) Follow the schedule required by paragraph (c)(Vii) of this section if thedecWon is to terminate its discharge; or (3) Follow the schedule required by paragraph (c)(3)(iii) of this section if the decision is not to terminate its discharge. (d) The Board may, upon request of the permittee and subject to the provisions of Subpart E,.modify a schedule of compliance in an issued permit if the Board deter- mines good and valid cause (such as an act of God. strike, flood. materials shortage, or other events over which the permittee has lirde or no central or remedy) exists for such modification under Section U.SO. In no case shaii the crimpliance schedule be modified to extend beyond an applicable statutory deadline. (e) Now sources, new dischargers, sources which recommence discharging after terminating operations and these sources which had been indirect dischargers which com- mence discharging into State waters do not qualify for compliance schedules under this section and am subject to Section 6.65(b)(4). M Within 14 days followina each interim date. and the final date of compliance. the pormittee shail provide the Board with written notice of the permittee's compliance or non-compfiance with the interim or final requirement US FactSheso- (a) A fact sheet shall be prepared for every draft permit for a major discharger, as defined in the Memorandum of Agreement between the State and EPA. any draft permit which incorporates a variance. general permits under Section 6.66, and every draft permit which the Board finds is the subject of widespread public interest or raises major issues. The fact sheet shall briefly set forth the major facts and the significant factual, legal, methodological, and policy questions considered in setting the terms of the draft permit. The Board shall send this f= sheet to the owner and to any other person an reque!rL (b) The fact sheet shall include: (1) A brief explanation of the express statutory or regulatory provisions on which permit requirements are based: (2) Any calculations or other necessary explanation of the derivation of )91 specific effluent limitations and conditiaos, including a cicavoil to the aliphcaule guice- line or development documents or standard provisions as required under Section 6.15 and reasons why they are applicable or an explanation of how the alternate -affluent limitations were developed: (3) Where appropriate, a sketch or detailed description of the location of the discharge described in the application; (4) A quantitative description of the discharge described in the application; (5) Reasons requested variances or modifications do or do not appear justified: (6) A description of the procedures for reaching a final decision on the draft permit including: (1) The beginning and ending dates of the comment period under Section 6.30 and the address where comments will be received: (ii) Procedures for requesting a hearing and the nature of that hear- ing; and (iii) Any other procedures by which the public may participate in the final decision: (7) When the draft permit contains any of the following conditions, an explanation of the reasons why such conditions are applicable: (i) Urnitations to control toxic pollutants under Section 6.15(g); (iii Limitations an internal wastestrearris under Section 6.1 6(h); or (iii) Limitations on indicator pollutants under Section 6.15(g); and (8) Name and telephone number of a person who can Provide additional information. 6.19 Permit Issuance; Sffect of Permit (a) The receipt of a complete application by the Board initiates the permit is- suance process. (b) Following the permit issuance process the Board rnav approve or disapprove the application for a permit If the application is disapproved. the Board shall notify the owner as to what measures. if any, the owner may take to secure approval. (c) Compliance with a permit during its terrA constitutes compliance with the Law and the Act except for any standard improsed under Section 307 of the Act for a toxic pollutant injurious to human heallth. However. a permit may be modified, revoked and reissued, or terminated during its terrin for cause as described in Subpart E. (d) The issuance of a permit does not: (1) Convey any property rights of any sort, or any exclusive privileges: (2) Authorize. or relieve the PermitTee from liability for, any injury to private property or invasion of private rights, or any infringement of Federal, State or local laws or regulations: or (3) Preempt. or relieve the permittee from, any duty to obtain any required State or local approvai for the activity from which the discharge results. L20 Duration of Permits, Continuation of Expiring Permits, and Tninderability of PermitL (a) Ouration of Permim All permits shall be issued for fixed terms not to exceed five yeam Permits of less than five years duration may be issued in appropriate circum- stances (sm paragraph (c)121L Permits may be modified, revoked and reissued, of termi- nated. as mmified in Subpa" I-. Except for the continuation provisions of paragraph (bi for expiring permits, the term of a permit shall not be extended beyond five years from its original dais of effectiveness by modification, extension, or other means. (b) Continuation of Expiring Permits. (1) The terms and conditions of an expired permit are automatically con- tinued pending issuance of a new or reissued Permit if* (i) The permirree has submitted a timely and sufficient application for a now or reissued permit under Section 6.52: and (ii) The Board is unable, through no fault of the permittee, to issue a now permit before the expiration date of the previous Permit. (2) Permits continued under paragraph (b)(1) remain fully effective and enforceable against the discharger. (c) Transferability of Permits. (1) A permit may be transferred to another person by a permitTee if: M The permittee notifies the Board, in writing, at least 60 -day s prior to the proposed transftrr: (ii) A written agreement signed by all parties to the transfer, con@ taining a specific date for transfer of permit responsibility and coverage between the cur- rent and new permittees (including acknowledgement that the existing permittee is liable for violations up to that date, and that the new permittee is liable for violations from that date on). is submitted to the Board: and (iii) The Board within 30 days does not notify the current permirm and the now permittee of its intent to modify, revoke and reissue, or terminate the permit and to require that a now application be filed rather than agreeing to the transfer of the permit. (2) Such a transferred permit shall, as of the date of transfer, be as fully effective as if it had been issued directly to the new permitUe. SUBPART C- PUBLIC COMMENT AND HEARINGS &M Public Notice of Permit Application. (a) Every complete application for a NPOES permit shall be given public notice, paid for bV the owner, by publication once a week for two succes ive weeks in a..news- paper of general circulation in the countv, city or town in which the discharge is located. Notice shall be mailed to any person or group upon request The Board will maintain a mailing list of persons and groups who will receive copies of notices for ail NPOES applications. The Board will add the name of any person or group to that list upon Wit- ten request (b) The Board shall provide a period of not less than 30 days followingthe date of the initial public notice during which time intwest, d persons may submit their writ- ten views on the tentative determinations made with respect to the NPOES application. All written comments submirted,during the 30-dav comment period will be retained by the Board and considered in the formulation of its final determinations with respect to the NPOES application. (c) The contents of public notice of any application for a NPOES perm it shall in- c1lude the following: (1) Nam* and address of the owner; (2) Name of State waters to which the discharge(s) is made.' type of dis- charge, and a short description of the locartion of each discharge to State waters indicat- ing whether such discharge is a now or an existing d[3charge. (3) When the permittee has filed a request pursuant to Section 316(a) of the Act: (i) A statement that the thermal component of the discharge is sub- ject to effluent limitations under Sections 301 or 306 of the Act and a brief description, including a quantitative statement, of the thermai effluent limitations propowd undw Section 301 or 306: and 00 A statement that a Section 316(a) request has been filed and that alternative less stringent effluent limitations may be imposed on the thermal com- ponent of the discharge under Section 316(ai and a brief description, including a quanti- tative statement. of the alternative effluent limitations. if any, included in the recueu: (4) A statement of the tentative determination to issue or deny a NPOES permit for the dischargeis) described in the NPOES application; (5) A statement of the 30-dav comment period required by paragraph (b) to include a statement of procedures to request a hearing or the date of the public hearing if the Board has determined to hold such hearing; and (6) Address and phone number of the State Water Control Board office at which interested persons may obtain further information, request a copy of the draft permit prepared pursuant to Section 6.12 above. request a copy of the fact sheet de- scribed in Section 6.18 and inspect and/or arrange to receive copies of NPOES applica- tions. forms and related documents. (d) Public notice mailed to those identified in paragraph (a) shall contain the in- formation required under paragraph (c) and the following: (1) A brief description of the owner's activities or operations that result in the discharge described in the application, and a statement whether the application per- tains to a new or existing discharge; and (2) A brief description of thecomment procedures required by Section 6.33. (a) Notice of the formulation of a draft general NPOES permit and the issuance of a final general NPOES permit under Section 6.66 shall be in accordance with the requirements of paragraphs (a), (b). (c), and (d) above. except that tne pualic notice for general NPOES permits shall also include a brief description of the types of activities or operations to be covered by the general NPOES permit. 6.31 Notice to Other Government Agencies. The Board will notify other appropriate govemment agencies of each complete application for a NPIDES permit and will provide such agencies an opportunity to submit their written views and recommendations. (a) At the time of issuance of public notice Pursuant to Section 6=, a fact sheet will be transmitted to any other State whose waters may be affected by the issuance of a NPOES permit. and, upon written request, a copy of the NPOES application and a copy of the proposed permit Prepared Pursuant to Section 6.12 will be provided. Each affected State will be afforded an opportunity to submit written recommendations within 30 days to the Board which the Board may incorporate into the permit. if issued. If the Board does not incorporate such written recommendations received. it will provide to the affected state or states, and to the EPA, a written explanation of its reasons for not incorporating the written recommendation. (b) At the time of public notice, pursuant to Section 6.30, any interstate agency, which has water quality control authority over waters which may be affected by the is- suance of a permit. will be provided a copy of each complete aciPfication for a NPOES permit. and will be afforded an opportunity to submit its written recommendations with- in 30 days. (c) At the time of issuance of public notice pursuant to Section 6.30, a fact sheet will be transmitted to the appropriate District Engineer of the Army Corps of Engineers with respect to any NPOES application for discharge(s) into State waters. (d) Copies of public notice and faef sheets with respect to applications for NPUES permits, and, upon written request. copies of trie application and draft permit. will be mailed to appeopriate Federal, State ;nd local agencies. and such agencies will be provided an opportunirv to respond, comment. and request a public hearing pursuant to Section SM. G= Public Access to Information. All information pertaining to permit issuance. reissuance, modification or revoca- tion, including permit applications and attachments thereto, effluent data. comments on permit application. and draft permits and fact sheets, shall be available to the public. The Board shall not at any time disclose to any person other than appropriate officials of EPA pursuant to the requirements of the Act any secret formulas, secret processes. or was methods. propefly identified and denoted as such, other than effluent data used by any owner or under that owner's direction. Such trade secrets transmitted by the Board to EPA shall be subject to appropriate Federal regulations governing confidentiality of such information. SM Public Comments and Hearings. (a) A comment period of at least 30 days following the initial date of public notice of the formulation of a draft permit shall be provided. During this period any interested persons may submit written comments an the draft permit and may request a public hearing. A request for a public hearing shall be in writing and shall state the mature of the issues to be raised Pursuant to the Board's Procedural Rule No. 1, or its successor. All comments shall be considered by the Board in preparing the final permit and shall be responded to as provided in Section 6.35. (b) In any case, including cases where there is significant public interest rele- vant to the proposed application, the Board may hold a Public hearing on a draft permit or permits. Public notice of that hearing shall be given as specified in Section 6.34. Nothing in this paragraph shall relieve the Board of the requirement to hold a hearing where a hearing is required by applicable law or regulation. (c) Any hearing convened pursuant to this section will be held in the geograph- icai area of the prooosed discharge, or in another appropriate area. Related groups of co-ob permit applications @may be considered at any such hearing. (d) Any owner aggrieved by any action of the Board taken without a formal hearing'may demand in writing a formal hearing pursuant to Section 62.1-44.25 of the Law. I(e) Proceedings at, and the decision from, the public hearing will be governed by the Board's Procedural Rule No. 1 or its successor. 6.34 Public Notice of Hearing. (a) Public Notice ol any hearing held Pursuant to Section 6M shall be cir. culated as follows: (1) Notice shall be published at least once in a newspaper of general circula. tion in the county or city where the discharge is to occur (2) Notice of the hearing shall be -ant to ail persons and government agencies which received a copy of the notice of the NPOES application. (b) Notice shall be dfected,' pursuant to subparagraphs (1) and (2) above at [out 30 days in advance of the hearing. (c) The content of public notice of any hearing hold pursuant w Section 6.33 shall include at least the following: (1) Name and address of each owner whose application will be considered at the hearing and a brief -wriers activities or operations which result in the discharp: (2) Name of the State waters to which each discharge is made, and a sham description of the location and type of each discharge to the State water$: (3) A brief refstrance to the public notice issued for the NPOES application, including identification rumber and date of issuance unless the'public notice includes the hearing notice; (4) Information regarding the time and location for the hearing; (5) The pumose of the hearing; (6) A concise statement of the issues raised by the persons requesting the hearing; (7) Address of the State Water Control Board office at which interested Pemzns may obtain further information, request a copy. of the draft NPOES permit pre- pared pursuant to Section 6.12, request a copy of the fact sheet prepared pursuant to Sec- tich 8.18, and inspect* and/or arrange for receipt of copies of NPOES forms and related dcicurnents. and (8) A brief reference to. the rules and procedures to be followed at the hearing. Responses to Comments. (a) If this Oistrict Engineer of the Corps of Engineers advises the Board in writ- ing during the @30-day public comment period that anchorage and ma4igation of any of the watm of the United States would be substantially impaired by the granting of a permit. the permit shall be denied and the owner so notified. If the Oistrict Engineer advises the Board that imposing specified conditions upon the permirm is necessary to avoid any substantial impairment of anchorage or navigation, then the Board shall include the specified conditions in the permit. Review or appeal of a denial of a permit under this section or of conditions specified by the Oistrict Engineer shall be made through the app!Icabie -procedures of the Corps of Engineers. and may not be made through the pro- cedurbs provided in this regulation. (b) If during the 30-day public comment period the U.S. Fish and Wildlife Ser- vicaj the National Marine Fisheries Service, or any State or other Federal agency with jurisdiction over fish, wildlife,, or public health advises the Board in writing that the imposition of specified conditions upon the permit-is necessary to avoid substantial risk to public health, impairment of fish, shellfish, or wildlife resources, the Board may include the specified conditions in the permit to the extent they are determined neces- sary to carry out the provisions of the Uw or the Act. (c) The Board may consult with one or more of the agencies referred to in this section before preparing a draft permit and may reflect their views in the fact sheet or the draft permit. I .(d) The Board shall ensure that ail comments on any draft permit have been responded to@ indicating v@hich provisions of the draft permit have been changed in the final permit. and the reason for the change, or, it the requested change is not made, the reason for denying the change. Any anti ail responses shall be available to tne public. SUBPART 0 - PERMIT COMPLIANCE 6.40 Monitoring. jai To assure compliance with permit terms and conditions, all permittees shall monitor as specified in the permit: (1) The amount. concentration, or other measurement specified in Section 6.16 for each pollutant specified in the Permit; (2) The volume of effluent discharged from each point source: and (3) As otherwise specifically required in the permit. e.g.. as required under Section 6.16. (b) For purposes of paragraph (a). the Board shall specify the following monitor- ing requirements in the permit: (1) , Requirements concerning proper installation. use, and maintenanca of monitoring equipment or methods (including biological monitoring methods where ap- propriate): (2) Monitoring frequency, type. and intervals sufficient to yield continuing date repmentative of the volume of effluent flow and the quality and/or quantity of polluants discharged. Variable effluent flows and pollutant quantities shall be required to be monitored at more frequent intervals than relatively constant effluent flows and pollutant quantities. and (3) Test procedures for the analysis of pollutants meeting the requirements of regulations issued by EPA pursuant to the Act. L41 Razirding of Monitoring Activities and Results. The tn., s and conditions of any NPOES Permit that require monitoring of the authorized discharge shall incJude the following recording requirements: (a) The permittee shall maintain records of all information resulting from any monitoring activities required of him in his NPOES permit: N Any records of monitoring activities and results shall include at least the following for ail samples: 0) The date, place, and time of sampling or measurements: (2) Who performed the samc3iing or measurements: (3) The dates analyses were performed: (41 Who'performed the analyses: (9) The analytical techniquesimethods used; and (6) The results of sucn analyses. and (c) The permitTee shall be required to maintain for a minimum of 3 years any records of monitoring activities and results, including all original strip chart recordings for continuous monitoring and instrumentation, calibration. and maintenance records. This period of retention shall be extended during the course of any unresolved litigation regarding the discharge of pollutants by the permittee, or upon request of the Board or -EPA. &42 Reporting of Monitoring Results and Compliance by Permittem (al Periodic reporting stWI be required by the terms and conditions of every NPOES permit issued by the Board. The Board, after giving reasonable notification to the permit", may require more frequent reporting than that contained in the permit. Re- ports sAaH contain monitoring results obtained by the permirtee pursuant to the monitor- ing requirements in the NPOES permit. and shall be submitted to the Board, using the OMR. .. (b) If the permirm monitors its discharge for any pollutant more frequently than required by the permit, using approved analytical methods (Section 6.40(b)(3)), the results of this monitoring shall be reported in the OMR. For purposes of this paragraph, 'JV0nNW ansiy6cai methods- are those rat procedures for the analysis of pollutants which conform to EPA promulgated regulations or are specified in the permit. (c) If the permirtee monitors his discharge for any pollutant that is not required to be monitored by the permit. and uses approved analytical methods (Sacvon 6.40(b) (3)), the results of this monitoring shall be reported in the OMR un4ess the Board ao- Prove$ an alternate reporting procedure. For purposes of this paragraoh, "aporoved analy. tical mettiods- are those test procedures for theanalysis of pq1lutants which conform to EPA Promulgated regulations. c;2 6 a (d) Within 14 days after each interim or final permit compliance schedule date, the prmittee shall provide the Board with written notice of the permittee's compliance or noncompliance with the interim or final requirements. 6.43 Duty to Provide Information. The permittee shall furnish to the Board within a reasonable time, any information which the Board may request to determine whether cause exists for modifying,- revoking and reissuing, or terminating the permit, or to determine compliance with the permit The permitte shalt also furnish to the Board. upon request, copies of records required to be kept by the permittee. 6.44 Taxies Reporting and Notification Levels. (a) In addition to the reporting requirements under Section 6.42, ail existing manufacuring, commercial, mining. and Silvicultural dischargers must notify the Board as soon as they know or have reason to believe: (1) That any activity has occurred or will occur which would result in the discharge of any toxic pollutant which is not limited in the permit, if that discharge will exceed the highest of the following "notification levels." (i) One hundred micrograms per liter (100 /1); (ii) Two hundred micrograms per liter (200 qMqgq/1) for acrolein and acrylonitrile: five hundred micrograms per liter (5q0q0 qMgq/1) for 2.4-dinitrophenol and for 2-methyl-4,6-dinitrophernal/ and one milligram per liter (1 mg/1) for antimony: (iii) Five (5) times the maximum concentration value reported for that pollutant in the permit application: or (iv) The level established by the Board in accordance with paragraph (b) of this section; and (2) That they have begun or expect to begin to. use or manufacture as an intermediate or final product or byproduct any toxic pollutant which was not reported in the permit application. (b) The Board may include in, a permit a "notification level" Which exceeds the notification level of paragraph (a)(1)(i), (ii), or (iii) of this section upon a petition from the permittee or on the Board's initiative. This new notification level may not exceed the level which can be achieved by the. technology-baud treatment requirements appropriate to the permittee. 6.45 Commercial Laboratory Reporting. (a) For the purposes of this section only, "commercial laboratory" means any person, not an employee of the permittee, who provides a permittee with services -for performing monitoring activities on the permittee's discharge for the purpose of evaluat- ing and reporting compliance. or noncompliance with the terms and conditions of a NPDES permit. (b) If the permittee utilizes commercial laboratory services to comply with,the monitoring requirements of the permit and Section 6.40, the permittee shall secure a contract with said commercial laboratory which shall provide: (1) That the commercial laboratory shall permit. any authorized State or Federal representative, upon the presentation of his credentials: (i) To enter upon the commercial laboratory's premises in which any of the. permittee's records are kept for the purposes of inspecting the permittee's records: (ii) To have access to and copy at- reasonable times any records- be- longing to the permittee; (iii) To inspect at reasonable times any monitoring/analytical equip- mqent or method required of the permittee: and (iv) To conduct comparative sampling for the purposes of assuring the permittee's compliance or as otherwise authorized by the Law and the Act: (2) That copies of all records dealing. with any monitoring activities con- ducted by the commercial laboratory for the permittee be available at the pemittee's treat- ment facilities. Said records shall include the information required by Section 6.41 (b); and (3) That the commercial laboratory shall maintain an original record, at the treatment works. of ail monitoring activities performed. (c) Upon notification by the Board, through the submittal of appropriate data, that the commercial laboratory utilized by the permittee is not ensuring compliance with 203 Section 6.40 and the terms required by Section 6.40 contained in the permit, the permit- tee shall take whatever measures the Board determines necessary to ensure such comoli- ance. 6.46 Noncompliance Reporting. . The Board will transmit to EPA a list of failures or refusals of permittees to comply with interim or final requirements, or to motify the Board of compliance or man-compli- ance with each interim or final requirement of the permit. Such list will be available to the public for inspection. SUBPART E- PERMIT MODIFICATION, REVOCATION ,AND REISSUANCE, AND TERMINATION 6.50 Generall. (a) Permits shall be modified. revoked and reissued, or terminated only as author- ized in this subpam (b) In order to have filed a timely application for the purposes of Section 6.20(bl(l), any pormitne with an expiring permit shall submit an application for reissuance to the Board at least 180 days betore the expiration date of the permit, unless permission for a later date has been granted by the Board. &S1 Modification, Revocation and Reissuance, and Termination. (a) An issued permit may be modified in whole or in part, revoked and reissued, or terminated during its term for cause as specified in this section. W Permit modifications shall not be used to extend the term of a permit beyond 5 years from the original date of issuance. (c) Modification, revocation and reissuance. or termination of an issued permit may be initiated by the Board under applicable provisions of this regulation. Any permit- we may request the Board to modify. revoke and reissue, or terminate an issued permit. (d) Causes for modification, revocation and reiss;uance, or termination include the fbilowing:. (1) Violation of any term or condition of the permit: (2) Failure of the parmime to disclose fully all relevant facts in the aooli. cation or during the permit issuance process or the permittee's misrepresernation of any relevant facts at any time: (3) A change in any condition that requires either a temporary or a perma- nent reduction or elimination of any discharge controlled by the permit (e.g., plant closure, termination of discharge by connection to a POTW, the promulgation of any applicable effluent standard or prohibition under Section 307 of the Act. any change in State law that requires the reduction or elimination of the discharge, ate.); (4) Information indicating that the permitted discharge poses a threat to human health or the environment. or (6) A change in ownership or control of a source which has a permit, where required by the Board in accordance with Section 6.20(c). (a) In addition to the provisions of paragraph W of this section, caums for modification, or revocation and reissuance, but not termination, of a permit include the following: (1) Material and substantial alterations or additioni to the permirtee's operation which were not covered in the effective permit Jeg., production changes, re- location or combination of discharge points, changes in the nature of mix of products produced). provided that such alterations do not constitute total replacement of the Pro. cm or production equipment causing the discharge which converu it into a mew source; (2) The existence of a factor or factors which, if property and timely brought to the artenton of the Board. would have justified the application of limitations or other requirements different from those required by applicable standards or limitations: (3) Revision, withdrawal, or modification of water quality standards or EPA promulgated effluent limitations guidelines (including interim final effluent lirnita- tions guidelinesi, but only when: M The permit term or condition requested to be modified or re- voked was based on promulgated effluent limitations guidelines or State or EPA ap. proved or promulgated water quality standards: 00 EPA has revised, withdrawn, or modified that portion of the ef. (W fluent limitations guidelines on which the permit term or condition was based: or EPA has approved a State action with regard to a water quality standard an which the permit term or condition was based; and (iii) A request for modification, or revocation and reissuance, is filed in accordance with Section 6.52 within ninety (90) days after Federal Register notice of: (A) Revision, withdrawal, or modification of that portion of the effluent limitations guidelines; or (8) EPA approval of State action regarding a water quality standard: (4) Judicial remand of EPA promulgated effluent limitations guidelines. if the remand concerns that portion of the guidelines on which the permit term or con- dition was based and the request is filed within ninety (90) days of the judicial remand: (5) Any modification, or revocation and reissuance of permits specifically authorized by the Act, e.g.. Sections 30 7 (c), 301 (g). 301 (h), 301 (i), 301 (k) or 316 (a 1; (6) As necessary under Sections 6. 14(h), S. I 7(c) and (e). and 6.73 of this regulation: (7). Failure to notify a State whose waters may be affected by the dis- charge, as required by Section 402 (b) (3) of the Act: (8) Establishment of "nodficaition Jowl" as provided in Section 6.44(a) (1), or (9) Modification of a schedule of compliance to reflect the time lost during consvuction of an innovative or alternative facility. In no cue shall the com- pliance schedule be modified to extend beyond an applicable statutory deadline for compliance. (f) The following permit modifications shall not require public notice and op- portunity for hearing under Subpart C unless they would render the applicable standards and limitations in the permit less stringent, or unless contested by the permittee: (1) Correction of typographical errors; (2) A change requiring more frequent monitoring or reporting by the per- mittee; (3@ A change in an interim compliance date, but not beyond 120 days -and not where the change would interfere with the ;ztainment of a final compliance date: (4) A change in ownership or control of. a source which has a permit where no other change in the permit is necessary and where transfer is accomplished in accordance with Section 6.20(c): or (5) Oeletion of a point murce outfail, where the discharge from that out- fall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits. (9) Permit termination shall not require public notice and opportunity for a hearing under Subpart C where such permit termination is mutually agreed to by the per- mittee and the Board. 6.52 Requests for Modification, Revocation and Raissuance, or Termination. (a) If a permitm believes that a modification, revocation or reissuance, or termi- nation is justified. under the standards of Section 6.51, he may request a modification, revocation and raissuance. or termination from the Board in writing. The request shall set forth all facts or'reasons known to the permittee which may be relevant to a decision on the modification request. (b) If the Board agrees that the modification or revocation and reissuance request appears to meet the requirements of Section 6.51, the Board shall formulate a draft permit under Section 6.121b) incorporating the changes. If additional information is needed to prepare a draft permit, the Board may request it under Section 6.10(e) or in appropriate cases may require the submission of a complete new permit application under Section 6.10(a). When a renuest for a modification under this section is granted and a new draft permit is formulated, only those terms dependent on the request will be reopened. All other aspects of the permit will remain in force until the expiration of the permit. If the permit is revoked and reissued, the draft permit is subject to the same procedures as if the permit had expired and, was being reissued. Ouring the revocation and reissuance, the permittee shall comply with all conditions of the existing permit until a new permit is issued. (c) If the Board decides that the modification request does not appear to meet the requirements of Section 6.51, the Board shall reply in writing to the owner briefly setting forth the reasons for that decision. 0@05 SUBPART F - SPECIAL NPOES PROGRAMS- 6.60 General. The following sections describe NPOES Program coverage for certain categories of point source discharges. 6.61 311sposal (d Pollutants into Other Treatment Works or by Land Application. (a) Where part of an owner's process wastewater is not being discharged directly into State waters or the contiguous zone because it is discharged or disposed of into another treatment works or by land application thereby reducing the flow or level of Pol- lutants being discharged directly into State waters. applicable effluent limitations and standards for the discharge in the permit shall be adjusted to reflect the reduced raw waste resulting from such disposal. Effluent limitations and standards in the permit shall be calculated by one of the following methods: (1) If none of the waste from a particular process is discharged into waters of the State, and effluent limitations guidelines provide separate allocation for wastes from that process, all allocations for the process shall be eliminated from calculation of permit effluent limitations or standards: or (2) In ail cases other than those described in paragraph (1), effluent limita. tions shall be adjusted by multiplying the effluent limitation derived by applying effluent guidelines to the total waste stream by the amount of wastewater flow to be treated and discharged into State waters, and dividing the result by the total wastewater flow. Ef- fluent limitations and standards so calculated may be further adjusted to make them more stringent if dischargers to treatment works or by land application change the charac- ter or.treatability of the Pollutants being discharged to receiving waters. (b) Paragraph (al shall not apply where promulgated effluent limitations guidelines: (1) Control concentrations of pollutants discharged, but not mass: or (2) Specify a different specific. technique for adjusting effluent limitations to account for land application or disposal into treatment works. (c) Paragraph (a) does not alter a permittee's obligation to rneet any more stringent requirements established under Sections 6.14 and 6.15. &62 Concentrated Aquatic Animal Production Facilities. (al Concentrated aquatic animal production facilities, as defined in this section, we point sources subject to the NPOES permit program. N Deffnitiorm (1) -Concvnwared aquade animal omduction facility- means a hatchery, fish farm,. or other f wility which contains. grows, or holds: (i) Cold water fish species or other cold water aquatic animals in ponds. raceways, or other similar structures which discharge at least 30 days per year, but does not include: (A) Facilitiew which produce less than 9,090 harvest weight kilograms (approximately 20,000 pounds) of aquatic animals per year; and (8) Facilities which feed less than 2.272 kilograms (approxi- mataiy S,000 pounds) of food during the calendar month of maximum feeding. (ii) Warm water fish species or other warm water aquatic animals in ponds, raceways or other similar structures which discharge at least 30 days Per year,.. but does not include: (A) Closed ponds which discharge only during periods of ex-. cm runoff ; or (8) Facilities which produce less than 45,454 harvest weight kilograms (approximately 100,000 pounds) of aquatic animals per year. (2) -rold water aquatic animals" include, but are not limited to, the Saimoniclas family of fish, e.g., trout and salmon. (3) "@V&-m water aquatic arrimals- include, but are not limited to, the Ictaluridae, Cantrarchidae, and Cyprinidae families of fish, e.g., respectively catfish, sun- fish, and minnows. (c) Case-by-case designation of concentrated aquatic animal production facilities. Any warm or cold water aqua-tic animal production facility not otherwise failing within the definitions provided in paragraph (b) may be designated as a concentrated aquatic animal production facility where the facility is determined by the Board to be a signifi.- cant contributor of pollution to State waters. In making this designation, the Board $hall consider the following factors: (1) The location and quality of the receiving waters; (2) The holding, feeding. and production capacities of the facility; (3) The quantity and nature of the pollutants reaching State waters, and (4) Other such factors relating to the significance of the pollution problem sought to be regulated. A permit application shall not he required from an aquatic animal production facility designated under this paragraph (c) until them has been an on-site inspection of the facility and a designation of the facility for regulation under the NPDES permit program. 6.63 Separate Storm Sewers. (a) Separate storm sewers, as defined in this section, are point sources subject to the NPDES permit program. Separate storm sewers may be covered either under individ- ual NPDES permits or under the General NPDES Permit Program (see Section 6.66). (b) Definition. 1 (1) "Separate storm sewer" means a conveyance or system of conveyances (including but not limited to pipes, conduits, ditches, and channels) primarily used for collecting and conveying storm water runoff and either: (1) Located in an urbanized area as designated by the Bureau of Census according to applicable criteria: or (ii) Not located in an urbanized area but designated as a significant contributor of pollution under paragraph (c). (2) "Separate storm sewer" does not include any conveyance which dis- charges process wastewater or storm water runoff contaminated by contact with wastes. raw materials, or pollutant-contaminated soil, from lands or facilities used for industrial or commercial activities, into State waters or into separate storm sewers. Such discharges are subject to the general provision of this regulation. (c) Case-by-case designation of separate storm sewers. The Board may designata a storm sewer not located in an urbanized area as a separate storm sewer. This designa- tion may be made to the extent allowed or required by EPA promulgated effluent guide lines for point sources in the separate storm sewer category or when: (1) A water quality management plan under Section 208 of the Act. which contains requirements applicable to such point sources is approved: or (2) A storm sewer is determined by the Board to be a significant contribu- tor of pollution to State waters. In making this determination, the following factors shall be considered: (i) The location of the discharge with respect to State waters; (ii) The size of the discharge: (iii) The quantity and nature of pollutants reaching State waters: and (iv) Other such factors relating to the significance of the pollution problems sought to be regulated. 664 SilviculturalActivities. (a) Silvicultural point sources. as defined in this section, am point sources subject to the NPDES permit program. (b) Definitions. (1) "Silvicultural point source" means any discernible, confined, and dis- crete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into State waters. I 1 (2) "Rock crushing and gravel washing facilities" means facilities which process crushed and broken stone, gravel and riprap. (3) "Log sorting and log storage facilities" means facilities whose discharges result from the holding of unprocessed wood. i.e., logs or roundwood with bark or after removal of bark in self-contained bodies of water (mill ponds or log ponds) or stared on land where water is applied intentionally on the logs (wet decking). 6.65 New Sources and Now Dischargers. (a) Definitions. 207 and (41); (1) "Ne- disc@?,Orger- and "new source" are defined in- Section 6.3(40) (2) "Source" means any building, structure, facilirv. installation or estab. lishment from which there is or may be a discharge of pollutants, (3) "Existing source" means any source which is not a new source or a new discharger: (4) `Sitv- means the land or water area where any facility or activity is physically located or conducted. including adjacent land used in connection with the facility or activity. (5) -Fadilder or equiOrnenr" means buildings. structures, process or pro- duction equipment or machinery which form a permanent part of the new source and which will be used in its operation, provided that such facilities or equipment are of such value as to represent a subsontiai commitment to consvuct. It does not include facili. ties or equiprnbnt used in connection with feasibility, engineering, and design studies re- garding the source or water pollution treatment for the source. (b) Effect of compliance with new source performance standards. (1) Except as provided in paragraph (b)(2), any new discharge an which construction commenced after October 18, 1972. or any new source, which meets the ap- plicable promulgated new source performance standards before the commencement of discharge. shall not be subject to any more stringent new source performance standards. or to any more stringent "chriciogy-based standards under Section 30 1 (b) (2) of the Act for the shortm of the following periods: 0) Ten years from the date that construction is completed: (H) Ten years from the date the source begins to discharge process or other non-consmction related wastewater; or (M) The period of depreciation or amortization of the facility for the purposes of Section 167 or 169 (or both) of the I nternai Revenue Code of 1964. (2) The protection from more siTingent standards of Performance afforded by paragraph (b)(1) of this section does not apply to: (i) Additional or more stringent permit conditions that are not technology based, e.g.. conditions based on water quality standards. or effluent standards or prohibitions under Section 307(a) of the Act: and (ii) Additional permit conditions convolling pollutants listed as toxic under Section 307(a) of the Act or as hazardous substances under Section 311 of the Aict and which are not controlled by now source performance standards. This includes permit conditions controlling pollutants otherthan those identified as toxic or hazardous where control of those other poilutants has been specifically identified as the method to control the toxic or hazardous pollutant. (3) Where a NPOES permit issued to a source enjoying a "protection period" under paragraph (b)(1) will expire an or after the expiration of the protection period, such permit shall require the owner of the source to be in compliance with the require- ment:s of Section 301 of the Act and any other applicable requirements of the Act im- mediately upon the expiration of the protection period. No additional period for achiev- ing compliance with these requirements shall be allowed except when necessary to achieve compliance with requirements promulgated less than 3 years before the ex- piration of the protection period. (4) The owner of a new source, a new discharger, a source recommencing discharge after terminating operations, or a source which had been an indirect discharger which commences discharging into State waters shall install and have in operating con- dition, and shall "stan-up," ail pollution control equipment required to meet the terms and conditions of its permit before beginning to discharge. Within the shortest feasible time (not to exceed 90 days), the owner must meet all permit terms and conditions. (5) After the ef fec, ve date of new source performance stai dards it shall be unlawful for any owner of any new source to operate such source in violation of those standards applicable to such source. 6.66 Gonoral NPOES Permit Program. (a) Oefiniltions. (1) The term "saparate swn77 semw- is defined in Section 6.63 (b) (1). (2) The term "gerteral NPOESpermir" means an authorization to discharge under the terms of this section. (b) Coverage. The Board may issue a general NPOES permit in accordance with the following: (1) Area. The general NPOES permit shall be written to cover a category of' discharges described in the permit under paragraph (b)(2) of this section, except those covered by individual NPOES permits, within a geographic area. The area shall correspond to existing geographic or political boundaries, such as: (il Designated planning areas under Sections 208 and 303 of the Act: (N) Sewer districts or sewer authorities; (iii ) City, county, or State political boundaries: (iv) State highway systems: (v) Standard metropolitan statistical areas as defined by the Office of Management and Budget: (vi) Urbanized areas as designated by the Bureau of the Census: or (vii) Any other appropriate division or combination of boundaries. (2) Sources. The general NPOES permit shall be written to regulate, within the area described in paragraph (bJ(1) of this section. etiher: (i) Separate storm sewers: or (ii) A. category of point sources other than separate storm.sewen if the sources all: (A) Involve the same or substantially similar types of operations: (8) Discharge the same types of wastes: - (C) Require the same effluent I imitations or operating conditions: (0) Require the same or similar monitcrinT, and (E) In the opinion of the Board. are'more appropriately con- trolled under a general NPOES permit than under individual permits. (c) Administmidon. (1) General NPOES permits may be issued, modified, revoked and reissued. or terminated in accordance with applicable requirements of Subpart E. (2) Requiring an individual permit (i) The Board may require any person authorized by a general NPOES permit to appIV.for and- obtain an individual NPOES permit. Interested persons may petition the Board.to take action under this subparagraph. Cam where an individual NPOES permit may be required include the following: . I (A) The dischargels) is a significant contributor of pollution as deturmined by the factors set forth at Section 6.' 63(c) (2); (8) The. discharger is not in compliance with the conditions of .the general NPOES permit: (C) A change has occurred in, the availability of demonstrated technology or practices for the,controi or abatement of pollutants applicable to the point source, (0) Effluent limitation. guidelines are promulgated for point sources covered by the general NPOES permit: (E) A water quality management plan containing requirements applicable to such point sources is approved; or (F) The requirements of parag raph (b) of this section are not met- (ii) Any owner authorized by a general NPOES permit may request to be excluded from the coverage of the general NPOFS permit by applying for an in- dividual NPOES permit The owner shall submit an application under Section 6.10. with masons supporting the request, to the Board no later than 30 days after notice in ac- cordance with Section 6.30. The request shall be granted by issuing an individual NPOES permit if the reawns cited by the owner are adequate to support the requesL (iii) When an individual NPOES permit is issued to an owner other- wise subject to a general NPOES permit, the applicability of the general permit to the in- dividual NPOES permirtee is automatically terminated on the effective date of the in- dividual permit. (iv) A source excluded from a general NPOES permit solely because it already has an individual NPOES permit may request that the individual NPOES permit be revoked, and that it be covered by the general NPOES permit. Upon revocation of the individual NPOES @ermit. the general permit shall apply to the source. Cx SUBPART G - PRETREATMENT ANO INDUSTRIAL USER CONTROL PROGRAM 6.70 Scope and Purpose. This subpart establishes the responsibilities of the Board to implement National Pretreatment Standards to control Pollutants which pass through or interfere with treat. ment processes in POTWs or which may contaminate POTW residues. 6.71 Definitions. For the purposes of this subpart only: (a) The term "Approved POTW Pretreatment Program" or "Program" or POTW Pretreatment Program" means a program administered by a POTW which has been approved by the Board in accordance with this subpart (b) The term "Industrial User" means a source of Indirect Discharge which does not constitute a "discharge." (c) The term "National Pretreatment Standard" or "Pretreatment Standard" means any regulation containing pollutant discharge limits promulgated by the EPA in accordance with Section 307 (b) and (c) of the Act, which applies to Industrial Users. (d) For the purposes of this subpart only, "owner", as defined at Section 6.3(44), shall include an Industrial User as identified and controlled by the requirements of this subpart (a) The term "Preatment" means the reduction of the amount of pollutants, the elimination of pollutants. or the alteration of the mature of pollutant Properties in wattmeter to a less harmful state prior to or in lieu of discharging or otherwise introduc- ing such pollutants into a POTW. The reduction or alteration can be obtained by Physical, chemical or biological Processes. process changes or by other means. (f) The term "Pretreatment Requirement" means any substantive or proce- dural requirement related to Pretreatment. other than a National Pretreatment Standard. imposed an an Industrial User. 6.72 POTW Program Requirements. (a) Any POTW shall require any Industrial Users of such POTW to comply with all requirements of Sections 307 and 308 of the Act. As a means of ensuring such compli- ance. the Board may require that the. permittee institute such Industrial User controls as necessary to ensure that the Industrial Users comply with any effluent standards. effluent Prohibitions. and Pretreatment Standards, and may require submission by the Industrial Users of periodic reports to the permirtee and the Board. to ensure full compliance with such prohibitions and standards. (b) As set forth in Pretreatment regulations promulgated by EPA and as deter- mined by the Board, affected POTWs shall develop and submit for approval by the Board a POTW Pretreatment Program. Such Pretreatment Program shall require Industrial Users to comply with any Pretreatment Standards and/or requirements and shall include pro- visions necessary to carry out the requirements of EPA-promulgated Pretreatment regula- tions. 6.73 Baud Program Requirement& (a) In order to ensure POTW and Industrial User compliance with any Pretreat- ment regulations, effluent standards, and/or effluent prohibitions. the Board shall have the authority to: (1) Incorporate POTW Pretreatment Program conditions into permits is- sued to POTWs. require compliance by POTWs with these incorporated permit con- ditions; and-require compliance by Industrial Users with Pretreatment Standards; (2) Ensure continuing compliance by POTWs with Pretreatment conditions through review of monitoring reports submitted to the Board by the POTW and ensure continuing compliance by Industrial Users with Pretreatment Standards through the re- view of self-monitoring reports submitted to the POTW or to the Board by the Industrial Users in accordance with Subpart D: (3) Carry out inspection, surveillance and monitoring procedures which will determine, independent of information supplied by the POTW, compliance or noncompli- ance by the POTW with Pretreatment conditions incorporated into the POTW Permit: and carry out inspection, surveillance and monitoring procedures which will determine, independent of information supplied by the Industrial User, whether the Industrial User is in compliance with Pretreatment Standards: 210 (4) Approve and aeny requests for approval of POTW Pretreatment Pro- grams submitted by a POTW to the Board: (5) Deny and recommend approval of (but not approve) requests for Fundamentally Different Factors variances; submitted by Industrial Users in accordance with the criteria and procedures set forth in appropriate EPA-promuigated reculations. and (6) Approve and deny requests for authority to modify categorical Pre. treatment Standards to reflect removals achieved by the POTW in accordance with the criteria and procedures set forth in appropriate EPA-promulgated regulations. SUBPART H - ENFORCEMENT (LBO EnforcernewL (a) The Board may enforce the pwovisions of these regulations by: (1) Issuing Directives in a=rdance with Section 62.1-44.15(8)(al(iv) of the Law; (2) Issuing Special Orders in a=rdance with Section 62.1-44.150(a) of the Law I . (3) Issuing Emergency Special Orders in accordance with Section 62.1- 44-1504b) of the Law; .. (4) Compelling through injunction, mandamus or other appropriate remedy as contained in Section 62.1-44.23 of the Law: (5) Seeking civil penalties under Section 62.1-44.32 of the Law: or (6) Bringing actions under the citizens suit provisions of the Act (33 USC Section 13661. (b) The Board encourages citizen participation in all its activities, including en- forcement in particular: . (1) The Board will investigate and provide a written response to all signed, writmn complaints from citizens: (2) The Board will not oppose intervention of any civil or administrative action when such intervention is authorized by statute or Supreme Court rule: and. (3) The Board will publish pubfic notice in a newspaper of cenerai circu- lation in the county. city, or town in which the discharge is located. or at the State Capital, at Isaxt 30 days prior to the final settlement of any civil action or the issuance of any Consent Special Order. A Consent Special Order is an order issued without a hearing and with the written consent of the affected owner. For the purposes of this regulation. an Emergency Special Order is not a Consent Spedai Order. This notice will identify the owner, specify the enforcement action to be taken, and provide the address of the Board's office where information on the proposed settlement or Order can be obtained. The Board will consider all comments received during the ZG-dav period. SUBPART I - MISCELLANEOUS 6.90 Board Membership. (a) In accordance with Section 62.1-44.9 of the Law, no officer, employee, or representative of any NPOES permit holder or of any industry, municipal corporation, count y, or other political subdivision which may become a NPOES permit holder shall be appointed to the Board. (b) The Board shall not employ, or continue in employment. any individual who has or shares authority to approve NPOES permit applications or portions thereof, who receives, or has during the previous two years received, a significant portion of his income directly or indirectly from any NPOES permit holder, or any applicant for a NPOES permit. (1) For the purpose of this section the term Isignific=r par-don of his income- shall mean 10 percent of gross personal income for a calendar year, except that it shall mean 50 percent of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving such portion pursuant to retirement, pension, or similar arrangement. (2) For the purpose of this section the term "NPORSpermir holdem or applicana for a NPOES permit' shall not include any department or agency of the Commonwealth at Virginia. ;_@ I (3) For the purpose of this section the term "income" includes retirement benefits, consultant fees. and stock dividends. (4) For the purpose of this section income is not received "directly or in- direcrtly from permit holders or applicants for a permit" where it is derived from mutual- fund payments or from other diversified investments. over which the recipient does not know the identity of the primary sources of income. 6.91 Control of Disposal of Pollutants into Wells. (a) No right to dispose of pollutants into wells shall exist. except as authorized pursuant to a NPDES permit issued by the Board. (b) Whenever an applicant for a NPDES permit proposes to dispose of pollutants into well(s). the Board shall prohibit the proposed disposal, or specify terms and con- ditions in the NPDES permit which shall control the proposed disposal in order to pre- vent the pollution and protect all beneficial uses of ground and surface water resources and protect the public health and welfare. (c) Any NPDES permit issued for the disposal of pollutants into wells shall be issued in accordance with these regulations. 6.92 Separability. If any provision of these regulations, or the application of any provision of these regulations to any person or circumstances is held invalid. the application of such pro- vision to other persons or circumstances, and the remainder of these regulations, shall not be affected thereby. 6.93 Delegation of Authority. The Executive Secretary, or in his absence a designee acting for him, may perform any act of the Board provided tinder this Regulation, except as limited by Section 6.2.1. 44.14 of the Law. Subpart J was adopted November SUBPART J - DELEGATION OF AUTHORITY TO THE DEPARTMENT OF 14, 1980, pursuant to Sections CONSERVATION AND ECONOMIC DEVELOPMENT FOR 62.1-44.15(10) a( the Code of Vir- inia, in letter Ballot No. 4797, COAL SURFACE MINING OPERATIONS and was effective February 9. 1981. When the amended Regula- 6.100 Purpose. man No. 6 became effective The purpose of this subpart is to delegate to the Department of Conservation and March 4, 1981. Subpart I was in- Economic Development (DCED) the authority to issue, reissue, amend and enforce corporated into the text of Regulation No. 6. NPDES permits for discharges of wastes other than sewage from Coal Surface Mining Operations as defined in Section 45.1-229 of the Code of Virginia. 6.101 Basis. This delegation of authority is authorized by Section 45.1-254 of the Code of Virginia. 6.110 Delegation of Authority to Issue, Reissue or Amend, and Revoke Permits. The Board hereby delegates to the Directof of the Department of Conservation and Economic Development or his authorized agents (the "Director") its authority to issue, reissue, amend, and revoke NPOES permits for the discharge of industrial wastes or other wastes from coal surface mining operations. Any NPDES permit issued, reissued, or amended by the Director under this delegation that meets the conditions set forth in Section 6.611 shall be as valid and enforceable as if issued by the Board itself. 6.111 Conditions Upon Delegation. The delegation of authority of Section 6.110 is conditioned upon compliance with the following: (a) The Director shall transmit to the Board a copy of each application for a NPDES permit received by. a copy of every draft NPOES permit prepared by, and written notice of every action taken or contemplated to be taken by the Director with respect to such a permit. The Director shall transmit to EPA the information identified in the NPDES Memorandum at Agreement between EPA and the State for each applicant and permittee. (b) No NPOES Permit shall be issued, reissued or amended by the Director if, within 30 days of the date of the transmittal of the complete application and the draft NPIDES permit to it. either the Board or EPA objects in writing to the issuance, raissuance or amendment of such permit. Where required. the Board shall stipulate more stringent permit conditions as necessary to maintain applicable water quality standards and provisions of the Law. Each such stipulation shall be accompanied by justifying docu- mentation to OCF.D. Them stipulations shall be binding upon OCED; however, nothing herein shall affect or impair any rights that the applicant maV have to a hearing before the Scard pursuant to Section 62.1-4425 of the Law or to judicial review of such decision pursuant to Station 62.1-44M of the Law. (c) EverV permit issued. reissued or amended by the Director must conform to the requiramenz of this regulation. the Act, and all pertinent regulations adopted under the Act: provided, however. that the public notice and hearing requirements of this regulation need not be met if the notice knd hearing requiremerm of the Law, the Act. and the applicable regulations adopted under the Act are met M20 Clelegadon of Enforcement Au*orky. The Board hereby delegates to the Director its authority to enforce NPOES Permits issued to coal surface mining operations for the discharge of industrial wastes and other wertes; provided. howeveir. that the Board reserves the right to &start its enforcen ant authoritV as provided in Section 46.1-2S4E and provided further that the Board reserves the right to take emergency enforcement action whom the Director has not taken or can. not take effective emergency enforcement action. .APPENDIX III-10 Commonwealth of Virginia State Water Control Board Policy for the Protection of Water Quality in Virginia's Shellfish-Growing Waters Commonwealth of Virginia STATE WATER CONTROL BOARD Adopted March 25, 1980 in Minute 20. Effective June 10, 1980. POLICY FOR THE PROTECTION OF WATER QUALITY IN VIRGINIA'S SHELLFISH-GROWING WATERS In recognition of Article XI in the Constitution of Virginia and in accord with the general provisions of the State Water Control Law, the Board hereby establishes the following statements of policy: SOCIO-ECONOMIC HEARINGS MANAGEMENT: In the conduct of then hearings. as required by the Board's Water Quality Standards on projects that may result in shellfish condemnations, it will be the Board's policy to request information from appropriate State agencies, i.e., Department of Health, Vir- ginia Marine Resources Commission, and the Virginia Institute of Marine Science, from the Virginia Seafood Council membership and from private owners and others as appro- EVALUATION OF APPLICATIONS: In the Board's decision-making process on applications for any now industries, sewage treatment plants. housing developments, marinas, dredging, spoil disposal, bulk- heading, at any other now or expanded operations that would directly or indirectly cause condemnations of shellfish growing areas, it will be the Board's policy. in giving adequate protection to viable shellfish resources, to include an evaluation of reasonable potential as well as actual productivity data for the affected areas. COORDINATION WITH OTHER AGENClES: In its continuing efforts of pollution abatement to protect existing water quality and development of now programs as may be necessary for restoration of currently condemned shellfish areas, it will be the policy of the Board to integrate its programs with other State and Federal programs which would also. have as their sole or partial objective the con- tinued viability of Virginia's seafood and shellfish resources. APPENDIX III-11 Commonwealth of Virginia State Water Contropl Board, Water Quality Standards WATER QUALITY STANDARDS ADOPTED PURSUANT TO SECTION 62.1-44.15(3) OF THE CODE OF VIRGINIA (1960), AS AMENDED COMMONWEALTH OF VIRGINIA STATE WATER CONTROL BOARD RICHMOND, VIRGINIA EFFECTIVE DECEMBER 12,1981 (DATE OF MOST RECENT AMENDMENTS) 1. STANDARDS WITH GENERAL. STATEWIDE APPLICATION General Standard Because numeric limits cannot reasonably be developed for every possible chemical, physical or biological qpa-- meter. the standards include the following General Standard to protect water quality. This narrative statement although written in general terms. is nonetheless a water quality requirement For example. the Board may use the General Standard as a basis in establishing effluent limits for waste discharges that are necessary to insure protection of aquatic life even though there may be no specific numeric standard applicable in the receiving stream. Part A of the General Standard sets the tone and requirement for all standards which follow. The language of P A of the General Standard. although adopted by the Board as a State standard, finds its authority in the State Water Control Law, Section 62-44.2. 1.01 General Standard A. All State waters shall be maintained at such quality as will permit ail reasonable, beneficial uses and will support the propagation and growth of ail aquatic life, including game fish, which might reasonably be ex[ected to inhabit them. B. All State waters shad be free from substances attributable to standards or industrial waste, or other waste in concentrations, amounts, or combinations which contravene established standards at interfere directly or indirectly with reasonable, beneficial uses of such water or which are inimical or harman to humans, animal. plant, or aquatic life. Specific substances to be controlled include, but are not limited to: float- ing debris, ail, scum, and other floating maaterials; toxic substances, substances that produce color, tam:, turbidity, odors, or settle to form sludge deposits, and substances which nourish undersirable or nuisance aquatic plant life. Effluents which tend to rain the temperature of the receiving water wig also be con- trolled. C. Zones for mixing wastes with receiving waters shall be determined on a case-by-case basis; shall be kept as small as practical; shall not be used for, or considered as. a substitute for minimum treatment technology required by the Federal Water Pollution Control Act and other applicable State and Federal laws; and "I be implemented, to the greatest extent practicable, in accordance with the provisions of subsections A and B hereof. Mixing within them zones shall be as quick as practical and may require the installation and use of devices which insure that waste is mixed with the allocated receiving waters in the smallest practical area. The need for such devices will be determined on a case-by-case basis. The boundaries of then zones of admixture shall also be such as to provide a suitable passageway for fish and other aquatic organisms. In an area where man than one discharge occurs and several mixing zones are close together, these mixing zones shall be so situated that this passageway is continuous. Anti-degradation Sorting numeric limits for pollutants by establishing water quality standards provides a minimum quality to which all high quality waters can theoretically be lowered unless additional controls are provided. The antidegradation policy prevents such wholesale lowering of all State waters to this "least common denominator of quality" by providing that wows with existing quality higher than the standards will be maintained at that high quality. The policy, how- ever, does give the Board some flexibility in its administration of the standards. The policy is a direct quote from the State Water Control Law, Section 62-1-44.4, and. as such. is not subject to change by the State Water Control Board. State law provides mat any discharger must be required to utilize the necessary degree of waste treatment to main- tain high water quality where physically and economically feasible. Present and anticipated use Of Such waters will be preserved and protected. 1.02 Anti-degradation Policy as contained in Section 62.1-44.4 of the State Water Control Law: Waters whose existing quality is boner than the established standards as of the date an which such stand- ards become effective will be maintained at high quality; provided -that the Board has the power to author- ize any project or development which would constitute a new or an increased discharge of effluent to 215 high quality water, when it has been affirmatively demonstrated that a change is iustifiabie to provide necessary economic or social development; and provided, further, that the necessary degree of waste treatment to maintain high water quafity will be required where phyiicaily and economically feasible. Present and anticipated use of such waters will be preserved and protected. Guidelines for Use in Implementing the Anti-degradation Policy Existing instrearn beneficial water uses will be maintained and protected, and actions that would interfere with or become injurious to existing uses should not be undertaken. in considering if a possible change is justifiable To provide necessary economic or social development, the Board will convene a public hearing so,that interested persons will have an opportunity To present infor- mation. Upon a finding that such change is justifiable, the change, nevertheless, must not result in violation of those wam quality characteristics necessary to amin the national water quality goal of protection and propagation of fish, shellfish, and wildlife, and recreation in and on the water. Further, if a change is considered justifiable, it must not remit in any significant Ion of marketability of fish, shellfish at other marine resource& Any determinations concerning Thermal discharge limitations under Section 316(a) of PL 92-500 will be considered to be in compliance with the anti-degradation policy. Standards Application; Stream Flow Ideally stream standardsshould be maintained at ail times. It is, however, generally accepted that to require swdards maintenance at ail times is unreasonable, and a specific low flow level has been chosen below which standards do not have to be met This flow, as smed below, is the 7-day, 10-year low flow - or the lowest flow which, on a statistical basis, would occur for a seven consecutive day period once every 10 yearL 1.03 Stream Standards will apply whenem flows are equal to, or gies r than, the minimum mean 7-consecutive day drougirt flow with a I 0-year ratum frequency. Dissolved Oxygen, pM and Temperature Standard Paragraphs 1.04 through 1.08 contain standards for dissolved oxygen, pH, and temperature. The prew ce of dissolved oxygen (00) in water is essential for aquatic life, and the type of aquatic community is dependent to a large extent on the concentration of dissolved oxygen present Oissoived oxygen standards are emb- lished to insure the growth and propagation of aquatic ecosysterns. Stream pH is also an important factor in aquatic systems. Biological productivity, stream diversity, memi solubility, and toxicity of certain chemicals. as well as important chemical and biological activity, are strongly related to pH. The pH range of 6.8.5 generally provides adequate protection for aquatic life and for recreational use of streams. Some strearn pH's however, fall outside this range due to natural condition& When identified, these streams are as- signed a pH standard that more properly reflects natural conditions. (The special standards for pH are contained in the Special Standards Column in the River Basin Section). The existence and composition of an aquatic community also depends greatly an the temperature characteristics of a body of wamr. Thus temperature limits are included in water quality standards to protect and maintain a balanced, healthy aquatic community. An excessive increwe in temperature can be harmful by interfering with fish spawning cycles, causing crianges in growth and respiration, and causing shifts in the population of an ecosystem as more heat-tolerant species replace heat sensitive ones. Heat-stressed organisms can exhibit decreased resistance to toxic pollutants, and excessive heat can even be lethal. Hleat-related winter fish kills can occur when a heated discharge is suddenly stopped. Fish that -216 have been attracted to the thermal plume are suddenly exposed to the cold ambient temperature and, if the drop is great enough, it can be fatal. Virginia's standards contain two approaches to temperature. In the first approach, maximum temperatures limits are established for the first six classes of water, specified in Paragraph 1.04 below, which are based an certain geographi- cal areas and specified uses. (For example in Class IV waters - mountain streams - the maximum temperature is 310C (880F). The next two paragraphs (1.05 and 1.06) contain temperature standards. applicable to these six classes. for the maximum rise above the natural temperatures and. for the maximum hourly temperature change. Although certainly simple to set and enforce, having a set of temperature standards that applies to a broad class of waters (For example to an entire system as complex as any estuary I is not ideal. Such an approach, by itself, cannot guarantee that the aquatic community at any given location is sufficiently protected. On the other hand. because one set of numbers applies to such broad areas and so must be. conservative, the requirements can be unnecessarily restrictive in some areas A second approach. establishing limits an a case-by-case basis. lessens these difficulties. In this site-specific approach, temperature limits are tailored to a specific location; they are designed to Protect the aquatic community actually present by taking into account the hydrologic. geologic and climatic conditions peculiar to the site. Thus they should Provide sufficient protection without being unnecessarily restrictive. To formulate temperature limits for an area. a set of guidelines - or criteria - is needed. and in 1977 the Board. recognizing the value of site-specific temperature standards, adopted the criteria found in paragraph 1.08 to use in setting future temperature limits. The specific limits are developed for one or more important and sensitive species at the site. thus assuring that the entire aquatic community can be protected. Since developing site-specific temperature standards is complicated and time consuming, rhe Board has indicated that -they should be developed primarily for waters receiving new thermal discharges of one million gallons per dav or more.' (Unless specifically indicated later in this booklet within the River Basin Section's Special Standards Column (Section 41, site specific standards have not been adopted for a site and the appropriate temperature stand- ards of Paragraphs 1.04, 1.05, 1.06 and 1.07, apply.) Classification of Waters Within the State: Dissolved Oxygen. pH, Maximum Temperature Standards All State surface waters are assigned one of the following seven Classes based an geographic location. or type of trout water. The limits set forth in Paragraph 1.04 for the appropriate class are the enforceable water quality stand- ards for the waters unless an exception is made by a special standard. (A listing of the Classes assigned to particular areas can be found in Section 4 - River Basin Section Tables. That Section also indicates in the Special Standards Column if there are any special standards in addition to - or differing from - I imi is listed below.) 1.04 Standard for 00. pH, and Maximum Temperature CLASS DESCRIPTION OF WATERS DISSOLVED OXYGEN mg/l PH MAX. TEMP. *C Minimum Daily average i open ocean 5.0 ---- 6.0-8.5 ----- ii Estuarien (Tidal Water- Coastal Zone to Fall Line) 4.0 5.0 6.0-8.5 ----- iii Free Flowing Streams (Coastal Zone and Piedmont Zone) 4.0 5.0 6.0-8.5 32 iv Mountainous Zone 4.0 5.0 6.0-8.5 31 v Put and Take Lake Trout Waters 5.0 6.0 6.0-6.5 21 vi Natural Trout Waters 5.0 6.0 6.0-8.5 20 vii Swamp Water *This classification recognizes that the natural quality of swamp water may fall outside of the ranges for D.O. and pH set forth above as water quality standards; therefore, on a case-by-case basis, standards for spedific swamp waters can be developed that reflect what natural quality is. **Maximum temperatuewill be the same as that for Classes I thro VI waters as appropriate. 217 See Section 3.04, page 15 for requirements for analytical procedures. 1.05 Rise above natural temperature Any rise above natural temperature allowed by the Board shall be determined on a case-by-case basis and should not exceed 30C except in the an of Class VI waters (natural trout waters) where it shall not exceed 10C. Natural temperature is defined as that temperature of a body of water (measured as the arithmetic aver- age over one hour) due solely to natural conditions without the influence al. any point-source discharge, 1.06 Maximum hourly temperature change The maximum hourly temperature change shall not exceed 20C, except in the case of Class VI waters (Natural trout waters) whom it shall not exceed 0.50C. This standard (limit) is a is to apply beyond the boundaries of mix. ing zones and don not apply to temperature changes caused by natural conditions. 1.07 Thermal discharges into lakes and impoundments In lakes and impoundments receiving thermal discharges, the average temperature of the epilimnion, (surface water laver]. in those areas whom important organisms are most likely to be affected, shall not be raised more than 30C above that which existed before the addition of host of artificial origin. (The permissible increase shall be determined on a case-by-case basis and in same instances may be less than 30C). The increase is to be based on the monthly average of the maximum daily temperature. The temperature of releases from these lakes and impoundments shall be consistent with standards established for the receiving waters. Unless a special study shows that a discharge of heated effluent into the hypolimnion (or pumping water from the hypolimnion for discharging back into the $am* want body) will not Produce adverse effects, such practice shall not be ap- proved. Maximum temperatures consistent with the standards established for water immediately above and below the lake or impoundment will be established for these waters. Site specific temperature standards The temperature limits set forth in paragraph 1.04 may be superseded in certain locations by temperature standards developed specifically for that are& (The existence of site specific standards is indicated in the Special Standards Column, otherwise the appropriate temperature limits in paragraphs 1.04, 1.05, 1.06 and 1.07 will apply.) In develop- ing specific temperature standards. the following criteria will be used: 1.08 Criteria for Developing Site Specific Temperature Standards The temperature standards shall be based on: 1. One limit which consists of a maximum weekly average temperature that: In the warmer months is determined by adding to the physiological optimum temperature (usually for growth) a factor calculates as one-third of the difference between the ultimate upper incipient lethal temperature and the optimum temperature for the most sensitive important Species (and appropriate life stage) that normally is found at that location and time. b. In the cooler months is an elevated temperature that would still ensure thxt important species would survive if the temperature suddenly dropped to the normal ambient temperature, or c. during reproduction seasons meets specific site requirements for successful migration, spawning, egg incubation, fry rearing, and other reproductive functions of important species: or d. at a specific site is found necessary to preserve normal species diversity or prevent undesirable growths of nuisance organisms. 2. A second limit which is the time-dependent maximum temperature for short exposures. Baseline thermal conditions should be measured at a site where there is no unnatural thermal addition from any source, which is in reasonable proximity to the thermal discharge (5 miles). and which has similar hydro- gra[ju to that of the receiving waters at the discharge. 218 Standards development should be in accordance with Water Quality Criteria 1972. A Report of the Committee on Water Quality Criteria and Quality Criteria for Water, U. S. Environmental Protection Agency. Groundwater Standards With the 1977 amendments to Water Quality Standards. Virginia became one of the first states to adapt standards and criteria to protect and preserve the quality of its groundwater resources. About one out of wary four Virginians depends an groundwaters for drinking water. Also in times of -dry weather and low stream flow, many streams are supplied totally by groundwater. Therefore, the Board considers it important to insure that groundwater quality is protected. The standards and criteria adopted by the Board in 1977 consist of limits designed to protect and conserve the natural quality of groundwater and to provide guidance for preventing groundwater pollution (See Paragraph 6.02 for groundwater criteria). Although differing hydrogeologic conditions can cause state-wide variations in natural groundwater quality, it was found that within certain physiographic provinces of the State relatively uniform, and consistent groundwater can- ditions exist For each of these area, chemical and physical analyses of groundwater samples on file at the State Water Control Board were evaluated. and concentrations that were representative of about 90% - 95% of the samples were selected as the standard for each constituent The numbers selected are therefore representative of the preva- lent natural condition of that constituent in any particular province. The groundwater standards also include an antidegradation policy which is intended to ensure that naturally occur- ring groundwater quality is not degraded. This policy does provide that in limited cases some changes in natural quality could to allowed. The groundwater standards represent groundwater quality that should be preserved or at- tained. Natural variations in quality occur because of local hydrogeologic conditions and thus exceptions to state- wide standards do occur occasionally throughout the State. Therefore refinement to or variance from groundwater standards can be made where specific data confirm a natural variation. 1.09 Groundwater Standards Groundwater quality standards will apply statewide and will apply to all groundwater occurring at and below the uppermost seasonal limits of the water table. In order to prevent entry of pollutants into ground. water occurring in any aquifer, a soil zone or alternate protective measure or device sufficient to preserve and protect present and anticipated uses of groundwater shall be maintained at all times. Zones for mixing wastes with groundwater may be allowed, upon request, but shad be determined on a case-by-case basis and shall be kept as small as possible. It Is recognized that natural groundwater quality varies statewide. Four Physiographic provinces have been determined for application of standards, namely the Coastal Plain, Piedmont and Blue Ridge, Valley and Ridge, and Cumberland Plateau. (See Figure 1. page 11.) Antidegradation policy for groundwater If the concentration of any constituent in groundwater is less than the limit set forth by groundwater stand- ards, the natural quality for the constituent shall be maintained; natural quality shall also be maintained for all constituents. including temperature, not set forth in groundwater standards. If the concentration of any constituent in groundwater exceeds the standard for for that constituant no addition of that constituent to the naturally occurring concentration shall be made. Variance to this policy will not be made union it has been affirmatively demonstrated that a change is justifiable to provide necessary economic or social development. that the necessary degree of waste treatment cannot be economically or socially justified, and that -the present and anticipated uses of such water will be preserved and protected. 219 GROUNDWATER STANDARDS BY PHYSIOGRAPHIC PROVINCE CONSTITUENT CONCENTRATION CaasW Piedmont & Vailey & Cumberfand Plain Blue Ridge Ridge Plateau ON Ammonia Nitrogen 0.025 mg/I (1.025 mg/I 0.025 mg/I 0.025 mgjI Nktrits Nitrogen 0.025 mgA 0.025 mgA 0.025 mg/I 0.025 mgA Nit" Nitrogen 5 mg/l S mgA 5 mg/I 0-5 Mg/I GROUNDWATER STANDARDS-STATEWIDE CONSTITUENT CONCENTRAT10N Sodium 270 mg/I Foaming Agents as Mativylene blue AAtivesuh P Cos 0.05 mo Petroieum hydrocarbons 1 MgA Arsenic 0.05 mg/I Barium 1.0 MgA Cadmium 0.0004 Mg/I Chromium 0.05 MgA Capw 1.0 MVI Cyanide 0.006 MgA Lad 0.05 mo Mercury 0.00005 mg/I phows, 0.001 "A SWenium 0.01 an/I silver None Zinc 0.06 Mg/l Chlorinated Hydrocarbon Insecticides Aldrin/Dieldrin 0.1103 Ugil Chlordane 0.01 ugA DOT 0.001 USA Endrin 0.0" ugA weptachlor 0.001 UCO Heppwhior Epoxida 0.001 Ug/I Kepone Nano Lindane 0.01 ugA Methoxychfor 0.03 Ug/I MIMx None Toxaphene Non@ Chicrophanoxy Herbicides Z 4.0 0.1 mgA Z 4, 5-TP 0.01 mg/I Radioactivity Gross Ban 1000 peA Radium 226 3 Pei Strontium 90 10 pcil GROUNDWATER QUALITY STANDARDS PHYSIOGRAPHIC PROVINCES 1 Coastal Plain z L\ 2 Piedmont and Blue Ridge 3 Valley and Ridge DO 4 Cumberland Plateau -VA ;de 44 Vj 2. STANDARdS WITH MORE SPECIFIC APPLICATION Bacterial Standards Virginia's water quality standards include two fecal coliform bacteria standards - one for shellfish waters and one for ail other waters. These "indicator organisms." while not necessarily harmful in themselves, are found in the intestinal tracts of warmblooded animals, including humans. and therefore can be indicative of fecal contamination and the possible presence of pathogenic organisms. SHELLFISH WATERS For waters containing leased private or public shellfish beds and waters capable of propagating shellfish, the following standard is established for fecal coliform bacteria. The limit is consistent with- requirements of the State Health Department's Bureau of Shellfish Sanitation and the U. S. Food and Drug Administration - the State and Federal agencies, respectively. charged with administering shellfish sanitation programs. 2.01 Fecal Coliform Bacteria - Shellfish W In all open ocean or estuarine waters capable of propagating shellfish or in specific areas where public or leased private shellfish beds are present. and including those waters an which condemnation or restriction classifications are established by the State Department of Health, the following standard for fecal coliform bacteria will apply: The median fecal coliform value for a sampling station shell not exceed an MPN of 14 per 100 mi of sample and not more than 10% of samples shall exceed 43 for a 5 tube, 3 dilution test or 49 for a 3 tube, 3 dilution test. OTHER WATERS Waters other than shellfish waters are assigned the following coliform bacteria standard which is designed to protect waters for ail types of recreation. Before 1977, Virginia's standards contained two such bacteria standards - one of which was intended to protect waters known or thought to be used for "primary contact recreation," eg. swimming; and a less stringent standard which was intended to protect waters for "secondary contact recreation," e.g. - boat- ing or fishing. In its 1977 amendments to Virginia's Water Quality Standards. the Board adopted the more stringent bacteria standard for primary contact recreation to apply to all surface waters of the State. This action was taken as ,part of Virginia's commitment to attain by 1983. the national goal of water quality suitable for all types of recrea- tion. 2.02 Fecal Coliform Bacteria - Other Waters In ail surface waters, except than whom leased private or public shellfish beds are present, the fecal coliform bacteria shelf malt exceed a log mean of 200 fecal coliform bacteria per 100 mi of water with not more than 10 percent of the total samples during any 30-day period exceeding 400 per 100 mi. Evaluation should be determined by either the multiple-tube fermentation for marine water or the membrane filter method for fresh water and should be upon not fees than ton samples taken over not more than a 30-day period. Water Quality Standards for Surface Public Water Supplies Although protection of public health and regulation of public drinking water supplies fall primarily within the purview of the State Health Department. the State Water Control Board does have the responsibility to protect the quality of water in streams used as a raw source for drinking water supplies. To this end the Board has adopted *geometric mean 222 standards for application to specific drinking water sources. Because some pollutants are not significantly removed by conventional water treatment systems. and to insure protection of the water supply, the stream standards for those pollutants are the same as the limits required for protection of public health in the finished drinking water. In order to emphasize the need to protect a specific body of water for use as a source for a public water supply, each such area has been designated as a separate section in the River Basin Section Tables of Section 4. The section usually begins at the intake point and usually extends 5 miles upstream. (If a watershed is not significantly larger than 5 miles above the intake the water supply section may include the entire upstream watershed to its headwaters.) This designation as a section is primarily an administrative method of pointing out a water supply source and emphasizing the need to protect the stream. The public water supply standards usually apply only at the raw water intake point Of course, the upstream water quality must be such that specific limits will be met at the intake point In cases where the specific numeric limits am adopted to apply for some additional upstream distance to provide further protection for the water source, the section description in the River Basin Section Tables will indicate this fact and point out the additional distance. Lacking such special notation, the public wow supply standards apply only at the intake point. Public Water Supply Standards and Protection of Aquatic Life The Public Water Supply Standards are designed to protect water quality for human consumption. These limits, however. in some cases may not be sufficient to protect aquatic life. Many aquatic organisms are more sensitive to certain pollutants than humans and would. of course, be under constant exposure to any such pollutant in their environment Therefore, when the Board considers classifying a body of water as a public water supply, an evalu- ation of the aquatic community in that area is made to determine if water quality concentration limits must be more stringent for any particular parameter to protect the aquatic community. (The concentrations for those pollutants that are marked with an asterisk (*).are the ones most likely to be too high to protect aquatic life. although ade- quate to providerotection for human consumption.) This procedure will ensure that any specific numeric limits adopted as enforceable standards for a public water supply will be stringent enough to protect aquatic life. 2.03 Surface Water Standards for Surface Public Water Supplies In addition to other standards established for the protection of public or municipal water supplies, the fol- lowing standards will apply at the water intake and. if determined to be appropriate, for a distance upstream, and in the case of the streams influenced by tidal action, downstream also.. This distance from the intake is to be determined an a case-by-case basis by the Board considering uupstream wastewater volume, receiving stream volume and other appropriate physical, chemical and biological factors. The standards will apply to both the water supply stream and its tributaries within the designated distance. (In case of existing water sup. piles, the standards will apply at the intake point until further change is made.) CONSTITUENT CONCENTRATION Arsenic 0.05 Barium 1.0 Cadmium* 0.01 Chloride 250 Chromium (Total) 0.05 Copper* 1.0 Fawning agents (measured as methylene blue active substance) 0.5 Iron (soluble) 0.3 Lead 0.05 Manganese (soluble) 0.05 Mercury* 0.002 Nitrate (as N) 10 Selenium* 0.001 Silver* 0.01 Sulfa* 0.05 Total dissolved solids 250 Zinc* 5.0 223 500 CONSTITUENT CONCENTRATION (MG/L) Chlorinated Hydrocarbon Insecticides: Endrin 0.0002 Lindane* 0.004 Methaxychior* 0.1 Taxaphene* 0.005 Chlorophenaxy Herbicides: 2,4-D 0.1 0.1 2, 4, 5-TP 0.01 (Silvex) Radioactivity: Picocurie/liter Combined radium -226 and radium - 228. 5 Gross alpha particle activity (including radium * 226 but excluding radon and uranium) 15 The numeric standards for the chemicals listed in Paragraph 2.03 are designed to protect public water supplies for human consumption. The limits established for those chemicals marked with an asterisk (8) may not protect aquatic life. Therefore when a request to classify a stream as a public water supply is received, it will be determined if more stringent limits are needed for those chemicals in order to insure protection of aquatic life. 3. PROCEDURAL REQUIREMENTS This section contains statements and requirements that are a part of the standards adopted by the Board; these re- quirements are enforceable. 3.01 Variance in Standards The above standards notwithstanding, as a remit of normal condiitons, water quality may from time to time vary from established limits. 3.02 Modification , Amendment and Cancellation of Standards In accordance with the authority granted under Section 62.1-44/15(3)(b) of the State Water Control Law. Chapter 3.1. Title 62.1, Code of Virginia (1950). as amended. the Board reserves the right at any. time to modify, amend, or cancel any of the rules, policies, or standards set forth herein; such modification, amend- ment,or cancellation shall be consistent with requirements of Section of the Federal Water Pollution Con- troll Act, as amended and regulations promulgated thereunder. 3.03 Shellfish Buffer Zones - Public Hearing Discharges of treated wastes or proposals to otherwise alter the biological, chemical or physical properties of State waters, submitted to the Board for approval, while not conttragening established standards for shellfish waters may prevent the direct marketing of shellfish as a remit of judgment factors employed by the State Department of Health. When the possibility of such condemnation arises as the results of such proposals, the Board will convene a public hearing to determine the socio-economic effect of the proposal before reaching a decision, unless the appropriate State agencies. (the Bureau of Shellfish Sanitation and/or the Marine Re- sources Commission) certify that the project would have no effect on the shellfish industry now and in the foreseeable future. 224 104 Analytical Procedures Anaillytk;al umting should be done in accordance with accepted procedures in the appropriate edition of Stand. ard Med@ods for t@@ Examination of Water and Wastewater or other Board/EPA recognized and approved methods. 3.05 r1dal Water Sampling Samples for determining compliat6m with standards established for estuarine or open ocean waters.will be collected at slack before flood tide or slack before ebb tide. 4. RIVER USIN SECTION TABLES A. Section Number and Oescripition Columns The tables that follow divide the State's surface waters into nine river basins. some with subbasins: Poto- Mac River Bain (Potomac and Shenandoah Subbasins), James River Bain, Rappahannock River Basin, Roanoke River Basin (Roanoke and Yadkin Subbasins), Chowan and Oismai Swamp Bain (Chowan and Albemarle Sound Subbasins). Tenn and Big Sandy Basins (Big Sandy, Clinch and Holston Subbasins), Chesapeake Say. Atlantic Ccean and Small Coastal Basins. York River Basin and New River Basin. (See Figure Z page 17.) Each basin is further divided into sections. Each section is assigned a Class. represented by Roman nu- merais I through VI 1, based on its geographic location or, in the case of trout waters, on its use. Oescrip- tions of these Classes are found in paragraph 1.04, page 7. IL Classification Column: 00, pM. Temperature Standards Paragraph 1.04. on page 7 lists Classes I through V I I and the water quality standards for dissolved oxygen (00). pH. and maximum temperature, that apply to each clam (For example, as shown on page 27. Section I of the James River Basin is indicated as being Class 11 waters (estuarine). By referring to para- graph 1.04 the 00, PH, and maximum temperature for this Section can be found along the line foilow- ing Class 11. C. Spedail Standards "umn 1. Bacteria Standards All surface waters have a standard for fecal coliform bacteria. The bacteria standard for shellfish wa- ters is set forth in Paragraph Z01: the standard applying to ail other surface waters is found in Para- graph 2-02. The letter a in the Special Standards Column next to a River Basin Section indicates that there are shellfish waters somewhere within that section and the bacteria standard for shellfish waters applies to those shellfish watem (It should be noted that even though the column contains the letter a the entire section may not be shellfish wa;ers.) The bacteria standard in paragraph Z02 applies to all other surface waters. Z Natural Variation In some cam natural water quality does not fall within the limits set by the standards. (For example streams in some areas of the State can naturally exceed the usual PH range of 6 to 8.5.) In these in- stances the Board may have set a more appropriate standard that reflects natural quality, and this special limit" is shown in the Speciai'Standards Column. 3. Additional Requirements In other cases the "basic" water quality parameters of 00, PH, temperature. and bacteria have not been sufficient to protect water quality in certain areas. and effluent limits or treatment requirements have been esubiish@ecl for these areas. This fam is also indicated in the Special Standards Column. If the standard was too long to print in its entirety, the column contains only a lower case letter and the standard itself wiii be found in the Key to Special Standards Section Paragraph 5.01, under this letter. 4. Other Special Standards or Oesignatibris Public Wam Supplies The Special Standards Column also indicates sections that are public water supplies with a "PWS** ('Tbis designation indicates That additional standards are applicable. (See Section 2.03, page 13.) b. "Scenic Rivers" The Speciail Standards Column also indicates if a section contains a stream that has been desig- nated a scenic river by the General Assembly with an SR- followed by a number. The appropri- ate waterwaV can be found listed in the Key to Special Standards Section under Scenic Rivers, Paragraph 5.02. page 74. RIVER BASINS IN VIRGINIA I POTOMAC-SUENANDOAH r). 2 JAMES o.c We RAPPAHANNOCK 11 It- ROANOKE V\ 5 CHOWAN AND DISMAL SWAMP TENNESSEE AMD 816 SAMOV .80 is SHALL COASTAL BASINS AND 41, CHESAPEAKE DAV VORK NEW V Aso 04 44 all ,rK COL. -L-04., I lx_@ YENN. N. C. SEC- BASIN AND SECTION DESCRIPTIPM CLASS SPECIAL TION STANDARDS POTOMAC RIVER BASIN Potomac River Subbasin 1 Tidal tributaries of the Potomac River from Smith Point to Upper Machodoc Creek (Baber Point). II a 1a All free flowing portions of tributaries to the Potomac River from Smith Point to, and including, Potomac Creek, unless otherwise disignated. III b 1b Potomac Creek and its tributaries from the proposed Stafford County water supply dam to its headquarters. III PWS,b 2 Upper Machodoc Creek and the tidal portions of its tributaries. II a,c 2a Free flowing portions of those streams in Secton 2. III c 3 Tidal portions of the tributaries to the Potomac River from Upper Machodoc Creek to Marlboro Point. II b 4 Tidal portions of tributaries to the Potomac River from Marlboro Point to Brent Point (to include Aquia Creek and its tidal tributaries). II b,d 4a Free flowing portions of tributaries to the Potomac River in Section 4 up to the Aquia Sanitary District water impoundment. III b,d 4b Aquia Creek from the Aquia Sanitary District water impoundment, and other tributaries into the impoundment, upstream to their headwaters. III PWS,b,d 5 Tidal portions of tributaries to the Potomac River from Brent Point to Shipping Point, including tidal portions of Chapawamsic Creek and its tidal tributaries. II b 5a Free flowing portions of Chopswamsic Creek and its tributaries to Quantico Marine Base water supply dam. III b 5b Chopawamsic Creek and its tributaries above the Quantico Marine Base water supply dam to their headwaters. III PWS,b,e 6 Tidal portions of tributaries to the Potomac River from Shipping Point to Chain Bridge. II b,f 7 Free flowing portions of tributaries to the Potomac River from Shipping Point to Chair Bridge, unless otherwise designated. III b 7a Occoquan Creek and its tributaries above Fairfax County Water Authority's water supply impoindment, unless otherwise disignated. III b,g 7b The impoinded waters of Occoquan River above the water supply dam of the Fairfax III PWS,b,e,g County Water Authority to backwater of the impoindment on Bull Run and Occoquan River, and the tributaries of Occoquan River above the dam to a point 5 miles above the dam. 7c Broad Run and its tributaries above the water supply dam of the City of Manassas upstream to a point 5 miles above the dam. III PWS,b,e,g 7d The impoinded waters of Lake Jackson, Broad Run and Cedar Run III PWS,b,a,g 7e Cedar Run from the Town of Warrenton's raw water intake to its headquarters. III PWS,b,g 8 Tributaries to the Potomac River in Virginia between Chain Bridte and the Monacacy River from their confluence within the Potomac upstream 5 miles, to include Goose Creek to the City of Fairfax's raw water intake, unless otherwise designated. III PWS,SR-1 8a Big Spring Creek and its tributaries in Loudoun County, from its confluence with the Potomac River upstream to their headwaters. (The temperature standard for natural trout water may be exceeded in teh area above Big Spring and Little Spring at Routes 15 and 740 due to natural conditions). VI 228 SEC- BASIN AND SECTION DESCRIPTION SPECIAL TION CLASS STANDARDS Potomac River Subbasin (cont.) 9 Broad Run, Sugarland Run, Difficult Run, Tuscarora Creek. Sycoline Creek and other III SR-1 streams tributary to streams in Section 8 from a point 5 miles above their con- fluence with tile Potomac River to their headwaters, unless otherwise designated. 9a All the impounded water of Goose Creek from the City of Fairfax's water supply III PWS,a,SR-1 dam upstream to backwater, and its tributaries above the dam to a point 5 miles above the dam. 10 Tributaries of the Potomac River from the Monacacy River to the West Virginia- III Virginia State line in Loudoun County, from their confulence with the Potomac River upstream to their headwaters. unless otherwise designated. 10a North Fork Catoctin Creek from Purcellvilles raw water intake to its headwaters. III PWS 10b South Fork Catoctin Creek and its tributaries from its confluence with the North III SR-2 Fork Catoctin Creek to its headwaters. 11 Tributaries of the Potomac River in Frederick and Clarke Counties, Virginia, IV pH-6.5-9.5 unless otherwise designated. Put and Take Trout Water% in Section 11 V pH-6.5-9.5 Back Creek (upper) from Rock Enon 4 Miles upstream. Back Creek (lower) from Route 600 to the mouth of Hogue Creek - 2 miles. Clearbrook Run from its confluence with Hot Run 2.1 miles upstream. Hogue Creek from Routs 679 upstream 6 miles to the Forks below Route 612. Opequon Creek (in Frederick County) from 24.2 miles above Its confluence with the Potomac River 10 miles upstream. Turkey Run (Frederick County) from its confluence with Opequon Creek 3.5 miles upstreaam. Natural Trout Waters in Section 11 VT pH-6.5-9.5 Bear Garden Run from its confluence with Sleepy Creek 3.1 miles upstream. Redbud Run from its confluence with Opequon Creek 4.4 miles upstream. 11a Clearbrook Run and its tributaries from its confluence with Hot Run to their IV pH-6.5-9.5 headwaters. h 12 South Branch of the Potomac River and its tributaries. such as Strait Creek, and IV pH-4.5-9.5 the North Fort River and its tributaries from the Virginia-West Virginia State line to their headwaters. Put and Take Trout Waters in Section 12 V pH-6.5-9.5 Frank Run from its confluence with the South Branch Potomac River 0.8 mile upstream. South Branch Potomac River (in Highland County) from 69.2 Miles above Its confluence with the Potomac River 4.9 miles upstream. Strait Creek (Highland County) from its confluence with the South Branch Potomac Riverr miles upstream. Natural Trout Waters in Section 12 VT pH-6.5-9.5 Slights Run from its confluence with Laurel Fort (Highland County) 0.6 mile upstream. Suck Run (Highland County) from its confluence with Laurel Fork 1.3 miles upstream. Locust Spring Run from its confluence with Laurel Fort 0.9 mile upstream. Laurel Fork (Highland County) from 1.9 miles above its cqonfluence with the North Fork South Branch Potomac River 15.7 miles upstream. Locust Spring Run from its confluence with Larurel Fork 3.5 miles upstream. Lost Run from its confluence with Laurel Fork 1.5 miles upstream. Mullenax Run from its confluence with Laurel Fork 1 mile upstream. Newman Run from its confluence with Laurel Fork 1 mile upstream. Slabcamp Run from its confluence with Laurel Fork 2.2 miles upstream. SEC. TION BASIN AND SECTION DESCRIPTION CLASS SPECIAL STANDARDS JAMES RIVER BASIN (LOWER) 1 James River and its tidal tributaries from Old Point Comfort - Fort Wool to II a,i Barrets Point (Buoy 64), except prohibited or spoil areas, unless otherwise designated. la Free flowing or man-tidal portions of streams in Section 1, unless otherwise III i designated. 1b Eastern Branch of the Elizabeth River and tidal portions of its tributaries from II a,j,k its confluence with the Elizabeth River to the end of tidal waters. 1c Free flowing portions of the Eastern Branch of the Elizabeth River and its III j,k tributaries. 1d Southern Branch of the Elizabeth River from Its confluence with the Eliza- II a beth River to the lack at Great Bridge. le Free flowing portions of the Western Branch of the Elizabeth River and of the III Southern Branch of the Elizabeth River from their confluence with the Elizabeth River to the lock at Great Bridge. 1f Nansemond River and its tributaries from its confluence with the James II a,l River to Suffolk (dam at Lake Meade). unless otherwise designated. 1g Shingle Creek from its confluence with the Nansemond and River to its headwaters III l in the Dismal swamp. 1h Lake Prince. Lake Burnt Mills and Western Branch impoundments for Norfolk III PWS,e raw water supply and Lake Kilby - Cahoon Pond. Lake Meade and Lake Speight impoundments for Portsmouth raw water supply. 1i Free flowing portions of the Pagan River and its free flowing tributaries. III 1j Chisel Run and Its tributaries, expect that tributary into which Eastern III i State Hospital discharges. to their headwaters. Ik Skiffes Creek Reservoir (Newport News water impoundment). III PWS JAMES RIVER BASIN (MIDDLE) 2 Jams River and its tidal tributaries from Buoy 64 near Barrets Paint II upstream to the fall line at Richmond. to include the Chickahaminy River and its tidal tributaries from the mouth upstream to Walkers Dam and the Appomattox River and its tidal tributaries from the mouth upstream to the head of tidal waters (approximately at the Route 1/301 Bridge across the Appomattox), unless otherwise designated. 2a James River River City Point to a point 5 miles-above American Tobacco II PWS Company's raw water Intake and the Appomattox River from its mouth to 5 miles upstream of Virginia-American Water Company's raw water intake. 2b Free flowing tributaries to Section 2a. III PWS 3 Free flowing tributaries of the James River from Buoy 64 to Brandon and III free flowing tributaries of the Chickahominy River to Walkers Dam. unless otherwise designated. 3a Diascund Creek from Newport News' raw water intake dam to Its headwaters. III PWS 4 Chickahominy River and its tributaries from Walkers Dam to Bottoms III m Bridge (Route 60 bridge). 4a Chickahominy River from Walkers Dam to a point 5 miles upstream. III PWS,m SEC- TIO BASIN AND SECTION DESCRIPTION CLASS SPECIAL STANDARDS JAMES RIVER. WIN (MIDDLE) (CONT.) 5 Chickahominy River and its tributaries, unless otherwise designated. III m from Bottoms Bridge (Route 60 bridge) to Its headwaters. 5a Brandy Branch (a tributary to Beaverdam Creek). III m m 5b Unnamed tributary to Lickinghole Creek which has its confluence III m 1.38 miles above tile mouth of Lickinghole Creek. 6 Appomattox River from the head of tidal waters, and free flowing III SR-6 tributaries to the Appomattox River, to their headwaters, unless otherwise designated. 6a Swift Creek and Its tributaries from Colonial Heights' raw water III PWS intake to a point 5 miles upstream. 6b Swift Creek and its tributaries from the dam at Pocahontas State III Park upstream to Chesterfield County's raw water impoundment dam. 6c Swift Creek and its tributaries from Chesterfield County's raw water III PWS impoundment dam to a point 5 miles upsream. 6d That portion of Oldtown Creek within the corporate limits of Colonial III Heights. 6e Appomattox River and its tributaries from Appomattox River Water III PWS Authority's raw water intake located at the dam it Lake Chesdin to the headwaters of the lake. 6f Buffalo Creek from Farmville's raw water intake to a point 5 miles III PWS upstream. 6g The Appomattox River and Its tributaries from Farmville's raw water III PWS Intake (approximately 2.5 miles above the Route 15/45 bridge) to a point 5 miles upstream. 6h Sandy River Reservoir and its tributaries to their headwaters. III PWS 7 Free flowing tributaries to the James River from Brandon to the fall III line at Richmond, unless otherwise designated. 7a Failing Creek and its tributaries from Bellwood Defense General III PWS Supply Center's raw water intake to a point 5 miles above Chesterfield County's raw water intake. 8 Jam River and its tributaries from the low water dam above 14th III Street Bridge to Richmond's raw water intake at Williams Island Dam. 9 James River and its tributaries, unless otherwise designated, from III PWS,n Richmond's raw water Intake at Williams Island Dam to a point 5 miles above Richmond's raw water intake at Bosher Dam. 9a Tuckahoe Creek from its confluence with the James River to its III PWS,o headwaters. l0 James River and its tributaries from a point 5 miles above Richmond's III SR-5 raw water intake at Bosher Dam to, and including the Rockfish River, unless otherwise designated. Put and Take Trout Waters in Section 10 Ivy Branch1.5 miles upstream from the church above the junction V of Routes 628 and 614. Rockfish Creek from its confluence with the South Fort Rockfish River to its headwaters. 231 SEC- BASIN AND SECTION DESCRIPTION CLASS SPECIAL TION STANDARDS RAPPAHANNOCK RIVER BASIN 1 Rappahannock River and the tidal portions of its tributaries from Stingray and II a Windmill Points to Route 1 Alternate Bridge at Fredericksburg. la Haskins Creek from the confluence with the Rappahannock River to its tidal II headwaters. 2 Free flowing tributaries of the Rappahannock from Stingray arid Windmill Points III upstream to Blandfield Point, unless otherwise designated. 3 The Rappahannock River from the Route I Alternate Bridge at Fredericksburg III q upstream to its headwaters, unless otherwise designated. 4 Free flowing tributaries of the Rappoahannock from Blandfield Point to its III q headwaters, unless otherwise designated. Put and Take Trout Waters in Section 4 V q Robinson River tram its confluence with the Rapidan River to its headwaters. Natural Trout Waters in Section 4 VI q Berry Mallow from its confluence with the Hughes River to its headwaters. Salton Branch from 1.7 miles above its confluence with Hittles Mill Stream 2.1 miles upstream. Broad Hollow Run from Its confluence with Hazel Run 1.9 miles upstream. Brokenback Hallow from its confluence with the Hughes River to its headwaters. Bush Mountain Stream from its confluence with the Conway River 0.9 mile upstream. Cedar Run (Madison County) from its confluence with the Robinson River to its headwaters. Conway River (Greene County) from the Town of Fletcher to its headwaters Dart Hollow from its confluence with the Rose River 1 mile upstream. Devils Pitch from Its confluence with the Conway River to its headwaters. Entry Run from its confluence with the South River 4 miles upstream. Garth Run from its confluence with the Rapidan River to its headwaters Hannah Run from its confluence with the Hughes River 2 miles upstream. Hazel River (Rappahannock County) from 38.6 miles above its confluence with the Rappahannock River 6 miles upstream. Hogcamp Branch from its confluence with the Rose River 2.5 miles upstream. Hughes River(Madison County) from Route 231 to its headwaters. Indian Run (Rappahannock County) from 3.4 miles above its confluence with the Jordan River 3.9 miles upstream. Jordan River (Rappahannock County) from 10.9 miles above its confluence with the Rappahannock River 1.8 miles upstream. Kinsey Run from its confluence with the Rapidan River 2.1 miles upstream. Laurel Prong from Its confluence with the Rapidan River 1.1 miles upstream. Mill Prong from its confluence with the Rapidan River I mile upstream. Negro Run from Its cqonfluence with the Robinson River 1.1 miles upstream. North Fort Thornton River from its confluence with the Thornton River to its headwaters. Piney Branch from its confluence with the Thornton River to its headwaters. SEC- BASIN AND SECTION DESCRIPTION CLASS SPECIAL TION STANDARDS RAPPANANNOCK RIVER BASIN (CONT.) Natural Trout Waters in Section 4 (cont.) VI q Piney River (Rappanannock County) from 0.3 mile above its confluence with no North Fort Thornton River 6.4 miles upstream. Pocosin Hallow from Its confluence with the Conway River to its headwaters. Ragged Run from 0.6 mile above its confuence with Popham Run 1.9 miles upstream. Rapidan River from Graves Mill (Route 615) to its headwaters. Robinson River (Madison County) from its confluence with the Rose River to its headwaters. Rose River from Its confluence with the Robinson River to its headwaters. Rush River (Rappahannock County) from Route 628 (river mile 5.24) to its headwaters. San Run from its confluence with the Hazel River 0.8 mile upstream. South River from its confluence with the Rapidan River to its headwaters. Sprucepine Branch from its confluence with Bearwallow Creek 1.7 miles upstream. Staunton River (Madison County) from its confluence with the Rapidan River 3.5 miles upstream. Strother Run from its confluence with the Rose River 2.3 miles upstream. Thornton River (Rappahannock County) from 25.7 miles above its confluence with the Hazel River 2.5 miles upstream. Wilson Run from its confluence with the Staunton River to its headwaters. 4a (deleted) 4b The Rappahannock River and its tributaries, to include the VEPCO Canal, from III PWS,q Fredericksburg's raw water intake to a point 5 miles upstream. 4c Motts Run and its tributaries. III PWS,q 4d Horsepen Run and its tributaries. 4e Hunting Run and its tributaries. III q 4f Wilderness Run and its tributaries. 4g Deep Run and its tributaries. 4h (deleted) 4i Mountain Run from Culpeper's raw water intake to Its headwaters. III PWS,q 4j White Oak Run from the Town of Madison's raw water intake upstream to its VI PWS,q headwaters (Natural Trout water). 4k Rapidan River from Orange's raw water intake upstream 5 miles. III PWS,q 41 Rapidan River and its tributaries from the Rapidan Service Authority's raw III PWS,q water Intake (Just upstream of the Route 29 bridge) upstream to a point 5 miles above the Intake. BAMN AND SECTION DESCRIPTION jCL4,,sSj SPECIAL. TION TANDAROS CHOWAN AND DISMAL SWAMP BASIN Albemarle Sound Subbasin I Back Bay and its tributaries in the City of Virginia Beach to the Virginia- ri North Carolina State line and the Northwest River and its tidal tributaries from the Virginia-North Carolina State line to the free flowing portion. and North Landing River and its tidal tributaries from the Virginia- North Carolina State line to the Great Bridge Lock. la The free flowing portions of streams in Section 1 and tributaries of Stumpy III Lake. 1b Stumpy Lake. e ic Northwest River and its tributaH es from the City of Chesapeake's raw water III PWS intake to a point 5 miles upstream and a point 5 miles downstream. 2 Intracoastal Waterway (portions not described in Section 1). 111 3 Lake Drummond, including feeder ditches, and all interstate tributaries of the III Dismal Swamp between Virginia and North Carolina. SEC- BASIN AND SECTION DESCRIPTION CLASS SPECIAL TION STANDARDS CHOWAN AND DISMAL SWAMP BASIN Chowan River Subbasin 1 Blackwater River and its tidal tributaries from the Virginia-North Carolina State II line to the end of tidal waters at approximately State Route 611 at river mile 20.90; Nottoway River and its tidal tributaries from the Virginia-North Carolina State line to the end of tidal waters at approximately Route 674. 2 Blackwater and Nottoway Rivers from the and of tidal waters to their headwaters III SR-8 and their free-flowing tributaries in Virginia. unless otherwise designated. 2a Blackwater River and its tributaries from Norfolk's auxiliary raw water intake III PWS near Burdette, Virginia, to a Point 5 miles above the raw water intake. to include Corrowaugh Swamp to a point 5 miles above the raw water intake. 2b Hanzlik Pond Branch from a point one mile below Route 460 to its headwaters. III 2c Nottoway River and its tributaries from Norfolk's auxiliary raw water intake near III PWS Courtland, Virginia, to a Point 5 miles upstream. 2d Hatcher Run from the impoundment dam an Lake Jordan to State Route 631. III 2e Nottoway River from Johns Manville's raw water intake near Jarratt, Virginia, III PWS to a point 5 miles above the intake. 2f Nottoway River and its tributaries from Camp Pickett's raw water intake to a III PWS point 5 miles above the raw water intake. 2g Lazaretto Creek and its tributaries from Crewe's raw water intake to a point III PWS miles upstream. 2h Modest Creek and its tributaries from Victoria's raw water intake to their III PWS headwaters. 2i Nottoway River and its tributaries from the Town of Victoria's III PWS raw water intake (about 200 feet upstream from State Route 49) to a point 5 miles upstream. 3 Meherrin River and its tributaries In Virginia from the Virginia-North III Carolina State line to its headwaters. 3a Meherrin River and its tributaries from Emporia's water supply dam to a III PWS point 5 miles upstream. 3b Great Creek from Lawrenceville's raw water intake to a Point 5 miles III PWS upstream. 3c Meherrin River from Lawrenceville's raw water intake to a point 5 miles III PWS upstream. 3d Flat Rack Creek from Kenbridge's raw water intake upstream to its headwaters- III PWS 3e Meherrin River and its tributaries from South Hill's raw water intake to a III PWS point 5 miles upstream. 3f Couches Creek from a point 1.6 miles downstream from the Industrial Development III t Authority discharge to its headwaters. 5. KEY TO SPECIAL STANDARDS AND INFORMATIONAL DESIGNATIONS 5.01 Specific Standards and Requirements a. Shellfish Waters In ail open ocean or estuarine waters capable of propagating shellfish or in specific areas where public or leased private shellfish beds an present, including those waters on which condemnation or restriction classifications are established by the State Department of Health, the following standard for fecal coliform bacteria will apply: The median fecal coliform value for a sampling station shall not exceed an MPN of 14 per 100 ml of sample and not more than 10% of samples shall exceed 43 for a 5 tube, 3 dilution test or 49 for a 3 tube, 3 dilution test. The shellfish area is not to be so contaminated by radionuclides, pesticides, herbicides, or fecal material that the consumption of shellfish might be hazardous. b. Potomac Embayment Standards The standards of quality, based an a one-month average, for all sewage treatment plant effluents discharging into Potomac River embayments in Virginia tram Jones Point (Hunting Creek) to the Route 301 Bridge, and for expansions of existing plants discharging into the non-tidal tributaries of them embayments, are: NOTES 1. Biochemical oxygen demand Not greater than 3 ppm A,B 2. Unoxidqized nitrogen Not greater than 1.0 ppm during B,C the periods April 1 - Oct. 31 3. Total phosphorus Not greater than 0.2 ppm D 4. Total nitrogen (when Not greater than 1 ppm E technology is available) Background notes A. This BOD5 standard is a fac r of three less stringent than that being presently produced at the Lake Taboo plant which is approximately 1 ppm of BOD5. B. A BOD5 of 3 ppm and I ppm of unoxidized nitrogen will result in a UOD of approximately 10 ppm. C. To achieve this level of unoxidized nitrogen, nitrification can be accomplished by limiting the BOOS load on aeration units to 25 pounds per 1000 cubic feet or less and designing the aeration units to maximize the "plug-flow" principle. D. This phosphorus standard is a factor of two fen stringent than that being presently produced at the Lake Tahoe plant which is 0.1 ppm or fen of P. E. For the time being the requirement for total nitrogen removal is waived. However, all plants will have to have faciiities to meet this standard as soon as practical after a technically feasible process with year- round reliability is developed and available. These standards were adopted as the result of a study by the Chesapeake Technical Support Laboratory of the Federal Water Quality Administration (now EPA) which recommended certain maximum effluent concentra- tion limits for ultimate oxygen demand, phosphorus and nitrogen to maintain and improve water quality, and a public hearing held on March 30, 1971. The standards shown above were adopted at the June 14-15 1971, Board meeting (Minute 42) to apply from Jones Point to Marlboro Point (Aquia Creek). At its June 10-11, 1974, meeting (Minute 4) following a March 28, 1974 hearing, the Board extended the standards to the Route 301 Bridge. 236 Williams and Upper Machodoc Creeks The following criteria will be applied to proposals for sewage treatment facilities which will discharge effluent to Williams and Upper Machodoc Crack, King George County: 1. If raw sewage stabilization ponds are proposed, they shall be followed by a 15-day holding pond and chlorination facilities in duplicate: 2. If "conventional" sewage treatment facilities are proposed, they shall affect at least 85% removal of BCD and shall be followed by a 15-day holding pond and chlorination facilities in duplicate: 3. Chlorination facilities are to be operated continuously during the entire year and chlorine residual of at Ism 2.0 ppm shall be maintiained at ail times; 4. In sewerage systems where pumping stations are found to be necessary, they shall be designed to prevent the discharge of raw sewage to State waters; 5. If, in the opinion of the staff, following consultation with the State Department of Health it is determined that more swatisfactory water quality can thereby be maintained in the receiving stream, the holding pond shad be operated to provide for controlled flow discharge. The purpose of these criteria was to establish a Board regulation with respect to the discharge of treated ef- fluents to the two watersheds. because of the likelihood of increased development in the area and the need to Protect water quality and beneficial water uses, especially shellfish growing. Adoption of the criteria at the May 17-18, 1966, Board meeting (Minute 59) followed a public hearing on May 5, 1965. They were slightly amended in April 1970. d. Aquia Crack No proposal resulting in the discharge of treated wanes to Aquia Creek will be approved unless the following is provided. 1. At low 100 days' storage to allow complete elimination of discharges during the low-flow. summer months or 2. Other treatment, based an sound engineering concepts (preferably with experimental data to show their feasibility). be provided for nutrient removal prior to discharge. The above requirements were initially adopted by the Board at its meeting of June 30-July 1, 1964 (Minute 71) to protect the recreational uses of Aquqia Creek. They were based an information received at a public hearing before the Board at its meeting on June 30 and July 1, 1964. 4. Lakes with Thermal Discharges The following temperature standard will apply to lakes and impoundments receiving therman discharges. In lakes and impoundments receiving thermal discharges, the average temperature of the epilimnion, in than areas where important organisms am most likely to be affected. shall not be raised more than 30C above that which existed before the addition of host of artificial origin. (The permissible increase shall be determined on a case-by-case basis and in some instances may be less than 30C) The increase is to be based on the monthly average of the maximum daily temperature. The temperature of releases from these lakes and impoundments shall be consistent with standards established for the receiving waters. Unless a special study shows that a discharge of heated effluent into the hypolimnion (or pumping water from the hypolimnion for discharging back into the same water body) will not produce adverse effects. such practice shall not be approved. Maximum temperatures consistent with the standards established for water immediately above and below the lake or or impoundment will be established for these waters. This thermal standard was incorporated into water quality standards with the 1970 amendments and was sub- sequently amended in March 1977. Potomac Enforcement Conference - Recommendation 1 On May 8, 1969, conferees to a Potomac Enforcement Conference, covering the 26-mile stretch from Little Falls to Mellowing Point just below Gunston Cove, made 15 recommendations. The following requirments of Recommendation 1 from that conference pertain to Virginia treatment facilities: Based an the existing points of discharge, waste treatment facilities now discharging to the Potomac River between river mile 106 and river mile 91 (the 15 mile stretch of the river from Chain Bridge downstream to the vicinity of Hag Island) shall be improved to achieve removal of BOD5, total phosphorus, and total nitrogen so as to limit loadings as follows: FACILITY LBS/DAY BOD5 TOTAL P TOTAL N Arlington 1,300 60 650 Alexandria 1,300 60 63 Fairfax Westgate 900 40 445 Additional loading and additional points of discharge will be acceptable only if the resultant water quality will be equal to, or better than, that which remits from adherence to the above load limits at the existing points of discharge. The following treatment plants shall provide 96% BOD5 removal, 96% phosphorus removal, and 85% total nitrogen removal, so long as they discharge their effluents to tributaries or embayments of the Potomac River: Fairfax County Dogue Creak, Little Hunting Creak, and Accontink-Pohick (Lower Poto- mac) treatment plants; and Fort Belvoir. NOTE: In accordance with Board action in Minute 13 from its meeting an September 20-21, 1971, discharges which lie within boundaries of the Potomac Enforcement Conference (Little Fails to Mellowing Point) and at the Potomac Embayment Standards (Hunting Creak-Jones Point to the Routs 301 Bridge) must comply with the more restrictive provisions of the two. prior to the 1972 Amendments to the Federal Water Pollution Control Act, Federal water pollution control agencies, convened a conference of all parties involved in order to take enforcement action relative to water pollution abatement Such an "Enforcement Conference" was held concerning the Potomac River in the Washington, O.C.. metropolitan area in the late 1950's and was reconvened in 1968. The area covered by this conference was a 26-mile swatch of the River, from Little Fails to Hallowing Point. Recommendation I of the 15 recommendations made by the conferees an May 8, 1969, set allowable daily leads or percent removals for BOD, nitrogen and phosphorus for discharges into the river. The limits were based on a study done FWPCA's Annapolis laboratory. which determined assimilation capacities of the river in the conference area and the downstream estuary. g. Occoquan Watershed Policy At its meeting an July 25, 1971. Minute 10) the Board adopted a comprehensive pollution abatement and wa- ter quality management polic v. for the Occoquan watershed. The policy sat very stringent treatment and dis- charge requirements in order to improve and Protect water quality, particularly since the waters are an import- ant water supply for Northern Virginia areas. Following a public hearing on November 20, 1980. the Board, at its December 10-12, 1980. meeting, adopted as of February 1, 1981, revisions to this Policy (Minute 20). These revisions became effective March 4, 1981. Copies are available upon request from the State.Water Control Board. h. Chlorides notyp exceed 800 mg/l at any time. L Powhatan Creek Watershed The following, from Minute 20 of the proceedings of the Board at its meeting an January 16, 1969, will also apply to the Powhatan Creek Watershed in James City County: 1. All proposals for treated waste discharges to the Powhatan Creek Watershed will in the future be approved only after: a. Engineering data have been submitted indicating the capability of the proposed treatment facilities to remove all phosphorus and nitrogen compounds. b. Owners with facilities existing at the time of this action will, in a period not to exceed 60 days, sub. mit to -the Board engineering reports and pollution abatement schedules indicating the maximum concentrations of phosphorus and nitrogen compounds which they can remove from waste vote" prior to discharge. No schedule providing a time period exceeding three years will be approved. Modification or replacement of existing treatment facilities may be necessary. 2. It will entertain from owners in the area a proposal for development of: a. A central facility to treat all wastes at a point outside the Watershed. when phosphorus and nitrogen removal will probably not be necessary, or b. Treatment facilities inside the Watershed which include complete removal of all phosphorus and nitro- gen compounds. 3. If the above plan is accompanied by a firm schedule leading to completion of sewage treatment facilities within a reasonable length of time, and it can be demonstrated that the financing for the facilities is available, the Board will consider allowing interim construction of sewage treatment facilities in the Powhatan Creek Watershed without the requirement of phosphorus and nitrogen compound removal. These requirements for the Powhatan Creek Watershed were developed to attempt to alleviate the secondary pollution problems due to algae growth developing in the tidal waters of Powhatan Creek which, the Board felt, would in all probability become more intensive with expected population growth and its attendant waste discharge& They were adopted following a public hearing an September 17. 1968. j. For the Lqynnhaven River and Eastern Branch Elizabeth River Watersheds the following applies: Objeactive for Nutrients - The cumulative total of nitrogen as N from all sources in the effluent shall not be greater than 0.5 mg/l at any time: phosphorus as P from -ail sources in the effluent shall not be greater than 1.0 mg/l at any time. k. For the Lynnhaven River and Eastern Branch Elizabeth River Watersheds the State Want Control Board has directed and/or ordered the following: 1 . That all existing discharges in accordance with j above shall substantially, remove die nutrients in their ef- fluents an or before such time as central facilities (The Hampton Roads Sanitation District Commission Cheasapeak-Elizabeth System) become available at connect to central facilities, (i.e. The Chesapeake-Eliza- both System). I That it will consider approving small discharges to this watershed to facilitate the elimination of potential public health hazards provided central facilities (Chesapeake-Elizabeth System) are not available, and 3. That it will not allow additional significant new discharges to this watershed. which do not provide for nutrient removal facilities in accordance with j above. In 1961 a water quality survey was made of the Lynnhaven watershed; - In 1964, a survey was undertaken on the Eastern Branch of the Elizabeth River resulting in a Board report entitled "An Evaluation of Water Quality 239 nutrient enrichment. The watersheds have poor flushing characteristics. 3. Nutrients causing water quality problems should be removed from discharges into the watershed or the discharges themselves should be removed. The wastewater treatment requirements of j and k above attempted to accomplish removal of nutrients from the streams. Nansemond River Watershed The following requirements, from Minute 1 of the proceedings of the Board at its meeting an July 20-21, 1965, were adopted to apply to the Nansamand River Watershed from the river's confluence with the James River upstream to the dam at Like Meade in Suffolk: 2. All known existing treated discharges containing bacteria shall be chlorinated sufficiently and continuous. ly (100% at the time) to maintain a residual which will insure substantially complete removal of coliform organisms. This action is to be instituted immediately by all concerned owners. 3. All owners now discharging industrial was and sewage shall install facilities which will provide the maxi. mum possible do" of biochemical oxygen demand (BOD) removal: in addition, the effluent from such facilities shall contain a minimum of 5 mgA of dissolved oxygen (D.O.). 4. All owners in the area (City of Suffolk, County of Nansemond, industrial establishments and individuals) shall immediately take steps to collect and treat, in accordance with items 2 and 3 above. the wastes that am now being discharged untreated either directly or indirectly to the River and Shingle Creek and which now constitute a health hazard to the area. 5. The City of Suffolk. the County of Nansemond, and those private owners who are now discharging sewage and industrial wastes to them we are to immediately initiate program to formulate a plan, or alterna- tive plans, for improving water quality in the River and Shingle Creek. Alternative plans may include con- veying all wastes completely from out of this watershed for treatment and/or disposal. Only under ex- ceptional circumstances will additional discharges of treated wastes into then waters be permitted. The Board established these requirements because, based an evidence presented at a public hearing on May 4-5, 1965, and the information presented by the staff in its technical report entitled "The Nansemond River Watershed - Water Quality Aspects", it determined that portions of the watershed were degraded to the point of the contravention of certain uses. The following effluent standards apply to the entire Chickahominy Watershed above Walker's Dam: CONSTITUENT CONCENTRATION 1. Bio-chemical Oxygen 6.0 mg/l monthly average, with demand 5-day at 20 not more than 5% of individual samples to exceed 8.0 mg/l 2. Settleable Solids Not to exceed 8.0 mg/l 3. Suspended Solida 5.0 mg/l monthly average, with not more than 5% of individual samples to exceed 7.5 mg/l CONSTITUENT CONCENTRATION 4. Ammonia Nitrogen Not to exceed 2.0 mg/l as N 5. Total Phosphorus Not to exceed 0.1 mg/l monthly average for all discharges with the exception of Hoily Farms Poultry Industries. Inc. which shall most 0.3 mg/l monthly average and 0.5 mg/l daily maximum Other Physical and Other physical or chemical Chemical Constitutants constituents not specifically mentioned will be covered by additional specifications conditions determental to the stream arise. The specific mention of items I through 5 does not necessarily mean that the addition of other physical or chemical constituents will be condoned. Standards to protect the Chickahominy Watershed are long-standing. The Watershed is impounded by Wal- ker's Oam, serves as a wow supply source for :he City of Newport News. is an excellent fishery and is in an area which is subject to growth pressure. To protect the watershed from water quality problems associated with these factors and to protect existing and intended water uses. in July 1966, the Board adopted standards of effluent quality for discharges into the watershed above Walker's Oam. The action was based an informa- tion obtained in a July 11-12. 1966, public hearing and the staff's technical report entitled "A Water Quality Study of the Chickahominy River". In 1970 amendments were Proposed to update the effluent standards. They were considered in a November 18, 1970, public hearing and adopted in February 1971 in unanimous letter ballot 2144. Following a public hearing on March 17, 1981. the Board, by unanimous vote on letter ballot 4862 dated April 13, 1981, adopted revisions to this special standard. These revisions are incorporated in Items 1-6 above. and became effective December 12. 1981. n. The following from Minute 38 of the proceedings of the Board at its meeting on March 30, 1955, will also apply: No sewage discharges, regardless of degree of a treatment should be allowed into the James River between Basher and Williams Island Dams. The Board's action was based upon the following items: 1. During periods of low stream flows. ail flow in a portion of the James below Basher Dam virtually stops due to the diversion of water behind the dam into a canal; 2. The City of Richmond's water supply is usually obtained from the James River at Williams Island (except during those low flow periods when the river's flow is diverted into the above-mentioned canal anti the City's supply is taken only from the canal). 3. Recreational uses, including swimming and fishing, are well established in the area. o. The following from Minute 32 of the proceedings of the Board at its meeting an September 13, 1960, will also apply: The concentration and total amount of impurities in Tuckahoe Creek and its tributaries of sewage origin shell be limited to thaw amounts from sewage, industrial wastes, and other wastes which are now present in the stream from natural sources and from existing discharges in the watershed. This "no met increase of material of sewage origin" policy for the Ticlajpe Creek watersed was developed to protect various uses of the creek, including its use as an auxiliary water source for the City of Richmond, in light of anticipated population growth in the Henrico, Goochland, and Hanover portions of the Watershed. p. Radiation Standard 1. Radium-228 not to exceed 3 pc/l. Strontium-90 not to exceed 10 pc/1. 2. In the known absence of strontium-90 and alph-emitting radionuclides, gross ban activity not to exceed 1,000 pc/l. 3. If the gross boa activity is in excess of this amount, a more complete radiochemical analysis is required to determine that the sources of radiation exposure are within the limits of the Radiation Protection Guides. q. Rappahannock River Basin The following effluent standards (adopted in Minute 17 from the proceedings of the Board at its meeting on September 17-18, 1972) apply to ail waste discharges to the Rappahannock River Basin above the proposed Salem Church Dom in accordance with paragraphs a and b below: CONSTITUENT FINAL EFFLUENT REQUIREMENTS (WEEKLY AVERAGE) BOD - mg/l 1 COD - mg/l 10 Suspended solids - mg/l 0 (unmeasurable) MBAS - mg/l 0.1 Turbidity (Jackson Units) 0.4 Facal Bacteria Less than 2 per 100 ml sample Nitrogen - mg/l 1 Phosphorus - mg/l 0.1 a. After the date of Congressional authorization for actual construction of the dam has been given, ail now proposals shall comply fully with the adopted standards of paragraph (11 above and ad existing owners shag immediately commence the necessary planning. financing and design to insure that facilities are earn- pleted prior to final completion of the construction of the dam, and b. Any now proposals for waste discharges to the area encompassed by the standards shall provide such can- ventional treatment that in the opinion of the Stain Department of Health, the staff and the Board, satis- factory waste treatment units can readily be added when funds for construction of the Salem Church Dam have been authorized. These effluent requirements will apply if the proposed Salem Church Oam is constructed. since. with the dam's construction, the Rappahannock River would be changed from a free-flowing stream to an impoundment which would serve, among other things, as a domestic water supply. The strict effluent limits were intended to pre- vent the water quality problems that can occur when wastewater with insufficient nutrient removal is dis- charged into an impoundment and to protect the impoundment's proposed use as a water supply. The standards were proposed at a public hearing on September 29, 1971, and adopted in Minute 17 from -,Me proceedings of the Board at its September 17-18,1972 meeting. r. Zinc (total) not to exceed 0.5 mg/l at any time. s. Chlorides not to exceed 40 mg/l at any time. 242 t. Chlorides not to exceed 8000 mg/l at any time. U. Maximum temperature for the Now River Basin from West Virginia State line upstream to the Giles - Mont- gomery County line: The maximum temperature shall be 270C (810F) union caused by natural conditions; the maximum rise above natural temperatures shall not exceed 280C (50F). This maximum. temperature limit of 81 OF: was estabiished in the 1970 water quality standards amendments so that Virginia temperature standards for the New River would be consistent with those of West Virginia since the =earn flows into that state. V. The maximum temperature of the Now River and its tributaries (except trout waters from the Montgomery- Giles County line upstream to the Virginia-North Carolina State line shad be 290C (840F). W. In Minute 3 from its meeting an March 10-11, 1977, the Board authorized a variance to the General Standard relating to zinc for the length of Ash Camp Creek and a portion of Little Roanoke Creek from the confluence of Ask Camp Creek to the Routs 47 bridgs. 5.02 Scenic Riven The Designation of a Scenic River and the significance of this designation are the subject of the Scenic Rivers Act (Section 10-167 at seq of the Code of Virginia). The listing of Scenic Rivers that follows imposes no additional Water Control Board requirements or standards. It is only a means to identify for this booklet those streams that have been included by the General Assembly in the Scenic Rivers System. POTOMAC RIVER BASIN Potomac River Subbasin SR-1 Goose Creek from its confluence with the Potomac River upstream to the Faugier-Loudoun County line (about 28 miles). SR-2 Catoctin Creek in Loudoun County from its confluence with the Potomac River upstream to the Town of Waterford. Shenandoah River Subbasin SR-3 The Shenandoah River in Clark County from the Warren-Clark County line to Lockes Landing. JAMES RIVER BASIN SR-4 The Saint Marys River in Augusm County within the George Washington National Forest SR-5 Rivanna River from its confluence with the James River upstream to the Fluvanna-Albermarie County I ine. SR-6 Appomattox River from the Route 36 bridge crossing in the City of Petersburg upstream to the abut- ment dam located about 1.3 miles below Lake Chesdin (about 5 miles). ROANOKE RIVER BASIN SR-7 Roanoke (Staunton) River from Brookneal upstream to Long Island. CHOWAN AND. OISMAL SWAMP BASIN Chowan River Subbasin SR-8 The Nottoway River in Sussex County from the Route 40 bridge at Stony Creek to the Southampton County line. 6. WATER QUALITY CRITERIA In its 1977 amendments to Virginia's Water Quality Standards. the Board included the adoption of water quality criteria for certain substances in surface water and groundwater. These may be found in Sections 6.01 and 6.02 be- low. Since there are differing interpretations of the term criteria. the Board's distinction between criteria and standards in its Water Quality Standards book should be explained. Both criteria and standards describe a desired degree of water quality either with narrative statements, or by numeric limits for specific substances. Criteria are recommended concentrations of substances that. when not exceeded. should generally protect the aquatic environment for aquatic life and various water uses with an adequate degree of safety. The Board-adopted criteria are guidelines only, which may serve as a base of information for various Board programs. They are not intended for direct regulatory use and should not be considered as absolute, mandatory requirements to maintain any specific degree of water quality. Criteria are not standards: they carry no regulatory mandate and must be justified independently in each application. Criteria differ from standards. which are legally enforceable water quality requirements adopted for a particular waterway. A standard has direct regulatory use - i.e.. effluent limits placed in a discharge permit must ensure that water quality standards are met in the receiving stream. The Board will undoubtedly be developing standards in the future on these criteria, but the actual values of the standards could be different from the criteria in the final analysis and adoption process. 6.01 Water Quality Critria for Surface Water Cadmium 5.0 ug/l - Class I and I I waters 0.4 ug/l - soft water* Class I 11, IV, V, and V I waters for 1.2 ug/l - hard water cladocerans and saimonid fishes 4.0 ug/l - soft water Class I 11, IV, V, and V I waters for 12.0 ug/l - hard water other less densitive species Chlorine 0.5 ugA - Class I and I I waters 1.0 ug/l - Class I 11, IV, V, and V I waters Chromium (total) 100 ugA - All waters copper 0.1 times the 96-hour LC value as determined through nonaerated, continuous flow bioassay, using the receiv- ing water or comparable water as the diluent and using a sensitive resident species Cyanide 5.0 ug/l - Al I Waters Iran 1.0 mg/l - Class I 11, IV, V. and V I waters Lead 0.01 times the 96-hour LC value as determined through continuous flow bioassay, using the receiving or compar- able water as the diluent and soluble lead measurements (non-filterable lead using an 0.45 micron filter). for sen- sitive freshwater fish species. Manganese 100 ug/l - Class I and I I waters Mercury 0.10 ugl - Class I and I I waters 0.05 ug/l - Class I 11, IV, V, and V I waters "soft water generally is considered to be less than 100 mg/l hardness as caCo3 and hard water generally is 100 mg/l CaCO3 or greater. 245 6.01 Water Quality Criteria for Surface Water (Contd.) Nickel 0.01 times the 96-hour LCso value as determined through continuous flow bioassay using the receiving or compar- able water as the diluent and using a sensitive resident species Phenol 1.0 ug/l - Al I waters Phthalate Ester 3.0 ugA - Class I 11, IV. V, and VI waters (3 ug/l is a goal for Class I and 11 waters pending additional effect data) Poychiorinated biohenyis Zero Selenium For marine and aquatic life 0.01 times the 96-hour LCqso value as determined through continuous flow bioassav using receiving or comparable dilution water and using a sensitive resident fish species. Silver Zero Zinc For freshwater aquatic life 0.01 times the 96-hour LC,_o value as determined through continuous flow bioassay using receiving or comparable dilution water and using a sensitive resident species. Nutrients In impounded waters, the total phosphates as phos- phorous (P) should not exceed 50 ug/l in any stream where it enters a lake or reservoir nor 25 ug/l within the lake or reservoir. Oil and Grease 0.01 times the lowest continuous flow 96-hour LC_ value for several important freshwater and marine spe- cies. each having a demonstrated high susceptibility to. oils and petrochemicals. Pesticides Aldrin/Dieldrin 0.003 ug/1 - All waters Chlordane 0.004 ug/1 - Class I and I I 0.01 ug/l -Class 111, IV. V and VI waters DOT 0.001 ug/l - All waters Demeton 0.1 g/l - All waters Endosulfan 0.001 ug/l - Class I and I I waters 0.003 ug/l - Class 11, IV, V, and V I waters Endrin 0.004 ug/l - All waters Guthion 0.01 ug/l - Ail waters Heptachior 0.001 ug/l - All waters 246 6.01 Water Quality Criteria for Surface Water (Contd.) Kepone Zero Lindane 0.004 ug/l - Class I and I I waters 0.01 ug/lA -Class Ill, IV, V, and VI waters Malathion 0.1 ug/l -All waters Methoxychlor O.03 ug/l - Al I waters Mirex Zero Parathion 0.04 ug/l - All waters Toxaphene Zero 6.02 Water Quality Criteria for Groundwater These groundwater quality criteria apply Primarily to groundwater constituents that occur naturally. Since natural groundwater quality can vary greatly from area to area for these constituents. enforceable standards were not adopted. These criteria are intended -to provide guidance in preventing groundwater pollution. (For additional in- formation about their development see page 9.) Groundwater criteria carry the same regulatory limitation as surface water criteria: they are not mandatory. CONSTITUENT UNITS GROUNDWATER CRITERIA BY PHYSIOGRAPHIC PROVINCE*** coastal Piedmont & Valley Cumberland Plain Blue Ridge Ridge Plateau Alkalinity (mg/l) 30-500 10-200 30-500 30-200 Total Dissolved Solids (mg/l) 1000 250 500 500 Chloride (mg/l) 50* 25 25 25 Sulfate (mg/l) 50 25 100 150 Total Organic Carbon (mg/1 10 10 10 10 Color (color units 15 15 15 15 Iron (mg/l) 0.3 0.3 0.3 0.01-10 Manganesa (mg/l) 0.05 0.05 0.05 0.01-0.5 Sodium (mg/l) 100 25 25 100 Fluoride (mg/l) 1.4** 1.4** 1.4 1.4 Hardness (mg/l) 120 120 300 180 *It is recognized that naturally occuring concentrations will excoed this limit in the eastern part of the Coastal Plain, especially toward the shoreline and with increased depth. **Except within the crotaceous aquifers concentration up to 5 mg/l and higher. ***See map, page 11, for delineation and physiographic provinces. 247 APPENDIX 111-12 Commonwealth of Virginia State Water Control Board Procedural Rule No.2 Commonwealth of Virginia STATE WATER CONTROL BOARD PROCEDURAL RULE NO. 2 Adopted: March 25, 1980. Effective: June 10, 1980. No-Discharge Certificates: Procedures for Applications, for Issuance, and for Requests for Modification or. Revocation 2.01 Purpose. This Rule sets forth the administrative procedures to be followed in connection with applications and requests for the issuance. modification or revocation of State no- discharge certificates issued by the State Water Control Board (Board). They supplement, and do not replace, the Board documents entitled Information to be Submitted in Applying for No-Discharge Certificates for Industrial Wastes and Other Wastes," "Ap- plication for an Animal Waste Management Certificates," and the "Virginia Sewage Regulations." Copies of these documents am available upon request Additions to or replacement of the foregoing documents shall not affect the applicability of them rules. unless specified in such document The applicable document should be followed when ap- plying for a certificate. 2.02 Regulatory Authority. The authority for the issuance, modification or revocation of State no-discharge certificates is vested in the Board by the State Water Control Law (the Law). [q� 62.1- 44.2 et seq. of the Code of Virginia (1950) as amended I speicifically I � 62.1-44.15(1). 62.1-44.15(5), 62.1-44.16. 62.1-44.17, 62.1-44.18. 62.1-44.18:2. and 62.1-44.19. This rule is adopted under qj 62.1-44.15(7). 2.03 Definitions. For purposes of this Rule, the term "certificate" means a no-discharge certificate issued by the Board involving the potential discharge of industrial wastes or other wastes to State waters. Unless otherwise indicated, the definitions contained in � 62.1-44.3 of the Code, the Board's Procedural Rule No. 1 and Regulation No. 6 apply. 2.04 Requirement for Certificate (a) Who Must apply. (1) The following must have a valid certificate: (A) Category 1: Any owner who erects, constructs, opens, reopens, expands or employs now processes in or operates any establishment which generates in.: dustrial wastes, sewage, or other wastes that are not disposed of by discharging to municipal treatment facilities or to State waters pursuant to a valid NPDES Permit: 249 (8) Category 2: Any owner who stores or accepts for disposal or disposes of industrial wastes, sewage -or other wastes by land application, irrigation, or by any other land disposal process; (C) Category 3: Any owner who has been requested by the Board or the Board's Executive Secretary to install facilities or adopt measures approved by the Board pursuant to � 62.1-44.17 of the Code. (2) The Executive Secretary may waive the requirement for a certificate for an owner in category I or 2 who holds a permit issued by the State Heaitm Department under Article 1, Chapter 5, Title 32.1 of the Code. (b) When to apply. (1) Applications for a certificate must be made and a certificate must be ob- tained by owners in Category 1 prior to construction, opening, reopening, expan- $ion, employment of new process, or operation of the establishment, whichever applies. , (2) Application must be made and a certificate must be obtained by owners in Category 2 prior to the storage or disposal of industrial wastes, sewage, or other wastes. (3) Where conventional technology is involved in the process and in treating any wastes, and where a completed application, a=mpanied by plans and speci- fications where appropriate, has been submitted, the Executive Secretary may authorize an activity described in (b) (1) of this section for a Category 1 facility or swrage or disposal for a Category 2 facility prior to issuance of the certificate if he has reasonable gorunds to believe that there will be no discharge to state waters from the operation. Such authorization by the Executive Secretary shall in no Way be binding on the final decision to issue a certificate, and the owner shall com- mencie the operation at his own risk. The Executive Secretary may withdraw his authorization under this paragraph if there is an actual discharge to State waters from the authorized operation, or for other good cause. (4) Application must be made by owners in Category 3 upon request by the Board or the Executive Secretary. 2.05 Ring and Contents of A43plicadon.* (a) The format and contents of the application shall follow the documents listed in 12.01 and any other applicable guidelines, criteria and regulations. The application shall be filed with the Board's regional office for the region in which the establishment is lo- cated or, in the case of Category 2, in which storage or disposal will take place. (b) The application shall be signed as follows: (1) In the.. c of corpora tions, by a principal executive officer of at least the level of vice president. or his duly authorized representative, if such representa- tive is responsible for the overaif operation of the establishment described in the application. (2) In the case of a partnership, by a general partner. (3) In the cue of a sole proprietorship, by the proprietor. (4) In the cm of a municipal, State or other public establishment or treat- merit works, by either a principal executive officer. ranking elected official or other duly authorized employee. (c) All parties with significant operational control of the facility or operation must be identified in the application. (d) The staff of the Board shall review the application for completeness. Owners who have failed to submit a complete application, including necessary plans, specifica. tions. and other information, will be requested by the Board's staff, in writing, to furnish such information as is necessary to permit processing of the application. In making any request for information necessary to complete an application, the Board's staff shall in- form the owner that processing of the application will be suspended until such informa- tion is furnished. Zoo Public Notice. (a) Upon receipt of a complete application, or upon the Executive Secretary's determination in ace rdance with Section 2.08(c), the Executive Secretary shall cause notice of the application or tentative determination to be published once a week for two su - o4vive weeks in a newspaper of general circulation within the locality of the activity dowribed in rho application or request. In addition to any other information required by 696) law, the public notice shall include: (1) The name, address and telephone number of the Board Office at which interested Persons may obtain copies of the application or request for modification or revocation and other information relevant thereto; (2) The name and address of the applicant or certificate holder-, (3) A brief description of the activity or operation for which the application or request is made; (4) A precise description of the location of such activity, making reference, whom Possible, to street address. route numbers, intersections, map coordinates or similar information: (5) A brief description of the procedures for formulation of final deter. minations, including the 30-day comment period required by paragraph (b) of this section and the means by which interested persons may comment an the application or tentative determination. (b) The Executive Secretary shad provide a period of not loss than 30 days follow. ing the date of the first publication of Public Notice during which intents Persons may submit written commom and requests for a public hewing on the application or request All written comments received during the comment period willi be retained and con- sidered in the finall decision an the application or request 2.07 Hearings and Finall 0ocisiom (al The Executive Secretary shall consider all written comments and requests for hewing received during the comment period, and shall make a detei n ination an the neces. sity of a hewing in accordance with 1 1. 12 of the Board's Procedural Rule No. 1. All Pro. coodings, hearings and decisions therefrom will be in accordance with the- Board's ft- codural Rule No.A. (b) Should the Executive Secretary, in accordance with � 1. 14 of Procedural Rule No. 1. determine to dispense with the hearing he shall review the application or request, together with ail written comments thereon and relevant staff documents and make a decision to approve, conditionaliv approve, or deny the application or request. If the decision is to approve or conditionally approve the application or request, then the Executive Secretary may either issue the cartificate or transmit a staff recommendation. together with any supporting documents, to the Board for final consideration. If the decision is to deny the application or request. then the Executive Secretary shall trans- mit a staff recommendation together with any supporting documents, to the Board for final consideration. 2.08 Requairts for Modiflkortions or Re tion& (a) The certificate holder or his rearesentatva or the Board's staff may, at any time, Igo with the Executive Secretary a wwi%Lm request that a certificate be modified or re- voked. Requests for modification or revocation of certificates shall contain the following information: (1) If the request is made by the certificate holder, the name, mailing address and telephone number of the requester and the name, mailing address, and tele- Phone number of anyone representing him; and (2) Where applicable, a statement specifically setting forth the requested modifications, and the reasons therefor. and (3) Where applicable, a sta ment specifically setting forth the reasons for the requested revocation. (b) The Board's staff shall review all requests for modification or revocation filed in rdance with this secdan for completeness. Owners who have failed to submit a complete modification request will be requested by the Board's staff, in writing, to fur- nish such information as is necessary to permit processing of the modification requesL In making any request for additional information, the Board's staff shall inform the own- or that processing of the modification request may be suspended until such information is furnished. When the appli@cation is found to be complete, a tentative determination shall be made to grant or deny the requested modification or revocation. . The Executive Secretary shall act as soon as possible, in accordance with one of the following subsections: (c) The Executive Secretary shall, in his discretion, either (1) promp-dV schedule a public hearing and advertise it as provided in � 1.12(d) of Rule 1, or (11) publish public notice of his determination in accordance with � 2.06 of this Rule, if he finds the foilow. ing: (1) The certificate holder objects to the proposed revocation and the pro- posed revocation is not on its face inconsistent with or in violation of the Law, federal law or any pertinent regulation; or (2) The requested modification is not a minor one but affects the substance of the certificate, and the requested modification is n6c on its face inconsistent with or in violation of the Law, federal law, or any pertinent regulation. WThe- Executive Secretary or the Board May. without public notice, grant the requested modification where the Executive Secretary finds the following: (1) The certificate holder has either requested the modification, or does not object: and (2) The requested modification is not inconsistent with or in violation of the Law, federal law or any pertinent regulation; and (3) The requested modification is a minor one and does not affect the sub- stance of the certificate. (e) The Board may, without public notice, grant the requested revocation where it finds that the certificate holder has iither requested the revocation, or does not object. (f) The Executive Secretary may. without public notice. grant a requested modifi. cation to reflect solely a change in ownership where he finds that the new owner agrees to be subject to and bound by the same application and certificate conditions as the existing owner. (9) The Executive Secretary shall summarily deny the requested modification or revocation where he finds that it is an its face inconsistent wiiM or in violation of the Law, federal law or any pertinent regulation. APPENDIX 111-13 Commonwealth of Virginia State Board of Health, Sewage Handling and Disposal Regulations PROCEDURES Procedurel Steps To Install An On-Site Sewage Disposal System For A Single Family Dwelling (Type I and IV Systems See Sec. 3.13 a and d) Step Procedure Remarks 1 Obtwn an application for a permit to instift the system. Applications are available at all local health departments (See. 3.13.01). 2 Complete the application and attach a sketch of the Me The local sanitarian can assist in preparation of the (Sketch Of the property and surroundings including application or providing advice regarding requirements dimensions. existing sewage and water systems etc. for the sketchiplat (Sec. 3.16.01; 4.02 and Appendix 11). influencing the location of the proposed sewage system and water supply system if applicable). 3 Submit the application and sketctVplat to the local health If the application is for a Type IV system for new department in the county/city in which system is to be construction. a variance issued by the local building installed. official is required. 4 Make an appointment with the sanitarian to visit the It is recommend ed that you be present when sanitarian property. (The property lines and the area proposed for evaluates the site and SCii (Sec. 4.01:02). me sewage disposal system and building site should be indicated by stakes.) 5 The sanitarian will evaluate the site and sail -to include Thisanitarian may require additional information such reserve area where required. as percolation tests before the system can be designed. (Sec 4.05.03b). It pumping or siphon is involved go to step 6. Table III. 6 If the soil and site are satisfactory the sanitarian will If you are denied a permit turn to Procedure VII for design a system and a corattruction permit will be issued. instructions. 7 Upon presenting the sewage disposal system Required by Section 32.1 -165 COde of Virginia. construction permit to the building official your building permit will be issued and you may proceed to =nstruct the sewage disposal system. 8 The local health department must inspect and approve Before you release your contractior(s) from his obligation the sewage disposal system before it is covered and to install the system pmperty, insist on receiving the local before an operation permit is issued and the system health department's written approval including the placed in service. If an individual water supply is con1ractor's completion statement (Sec. 3.20: 3.21.02)-, constructed in conjunc:jon with the sewage system it too must be inspected and approved before the operation permit is issued. 9 In the event the system fads to operate satisfactorily Sewage disposal systems require maintenance and a contact your local health department where assistance septic tank will usually need cleaning every 375 years. can tie obtained. (Sec. 3.23) 10 The sewage disposal system must be inspectat and Before you release your contractor(s) from his coligation approved by the local health department before it is I'd install the system properly, insist on receiving the local covered and before an operation permit can be issued. If health department's written approval inc!uding the an individual water supply is to be constructed in contractor's completion statement (Sec. 3.20; 3.21.02): conjunction with the sewage system it too must be where formal plans were required. you should also obtain inspected and approved before the operabon permit is the engineers completion statement (Sec. 3.21.01;02 issued. and 3.22). 11 In the event the system fails to operate satisfactorily Sewage disposal systems require maintenance ana a contact your local health department where assistance septic tank will usually need cleaning every 3-5 years. can be obtained (Sec. -3-23) Procedure II Steps To Install A Sewage Disposal System For: a. Single Family Dwellings Requiring Pumps or Siphons b. Multiple Dwellings or Dwelling Units c. Commercial Establishments or, d. Other Establishments (Type 11 Systems Sec. 3.13 b) Step Procedure Remarks 1 Obtain an application for a permit to install the system. Applications are available at all health departments (Sec. 3.13.01 0. 2 Complete the application and attach a sketch of the site The local sanitarian can assist in preparation of the (sketch of the property and surroundings including application or providing advice regarding requirements dimensions, existing sewage and water systems etc. for the sketch/plat (Sec. 3.16.01; 4.02 and Appendix 11). influencing the location of the proposed sewage system and water supply suste, of applicble). 3 Submit the application and sketch/plat to the local health department in the county/city in which system is to be installed. 4 Make an appointment with the sanitarian to visit the It is recommended that you be present when sanitarian property. (The property lines and the area proposed for evaluates the site and soil (Sec. 4.01;02). the sewage disposal system and building site should be indicated by stakes.) 5 "The sanitarian will evaluate the site and soil and The sanitarian may discuss with you a number of recommend the type system(s) beat suited to the site. alternatives. If you are denied a permit turn to Procedure V11 for instructions. 6 If site and oil conditions are satisfactory the sanitarian The sanitarian may require you to obtain the services of a may design the system or, if the system is complex. licensed Professional Engineer (Sec. 3.14). require you to submit informal or formal plans/ specifications. 7 The sanitarian will schedule a conference to discuss any (Sec. 3.13.02) plans/specifications or other matters. 8a If there is no requirement for enginering plans and If multiple units are to be served by the system, the permit specifications and all other requirements are satisfied. may only be issued to one owner: the owner must the construction permit will be issued. guarantee the system will be maintained (Sec. 3.13.05). 8b If engineer's services are required, and following Until the plans and specifications are approved the permit approval of the plans/specifications (informal or formal) will be withheld (Sec. 3.13.03 and 04; 3.15 and 3.16.02). and such other items required in the regulations, the construction permit will be issued referencing the plans/specifications. 9 Upon presenting the sewage disposal construction Required by Section 32.1-165 Code of Virginia. permit to the building official your building permit will be issued and you may proceed to construct the sewage disposal system. 255 Procedure III Steps To Install A Sewage Disposal System Other Than a Septic Tank and Draintield (TYPE III SYSTEMS) Stop Procedure Remarks 1 Obtain an application for a permit to install the system.. Applications are available at all local health decartments (Sec. 3.13.01). 2 Complete the application and attach a sketch of the site Local sanitarian can assist in preparing the application or (sketch of the property and surroundings including providing advice regarding requirements for the dimensions. existing sewage and water systems etc. skeictuplat (Sec. 3.16.01; 4.02 and Appendix 11). influencing the location of the proposed sewage system and water supply system it applicable). 3 Submit the application and sketctupiat to local health department in the countylaty in which system is to be installed. 4 Make an appointment with the sanitarian to visit the it is recommended that you be present when sanitarian property. (The prop" lines and the area proposed for evaluates the site and soil (Sec. 4.01;02). the sewage dispo" system and building site should be indicated by stakes.) 5 A preliminary conference should then be scheduled to See 13.13.02 applicant and;'or encineer should be discuss proposal. prepared to discuss the application and supporting documentation. 6 Formal plans and specifications will be requi .red with See 13.11.03 Must be prepared by a licensed design criteria to support application. (4 sets required). Professional-Engineer (�3.14). 7 Uporr review and approvat of the plans and (See �3.16) If you are denied a permit turn to Procedure specifications, a construction permit with 1 copy of VII for instructions. starriped plans will be sent to the applicant and 1 copy of each will be sent to the owner's engineer. (Permit will reference plans and specifications.) 8 Upon presentation of the sewage disposal system Required by Section 32.1 -165 Code of NArginia. construction permit to the building official your building permit will be issued and you may proceed to construct the sewage disposal system. 9 The Imall health department must inspect and approve Before you release your contractor(s) from his obligation the sewage disposal system before it is placed in to install the system properly. insist on receiving the local operation or any part covered. It an individual water health department's written approval including the supply is to. be constructed in conjunction with the completion statements by the contractor and the sewage system it must also be inspected and approved engineer. (�3.20; 3.21.01: 3.21.02 and 3.225). before the operation permit is issued. 10 In the event the system fails to operate satisfactorily Type III sewage disposal systems will require certain contact your local health department where assistance types of maintenance. Be sure you have ail directions for can too obtained (Sec. 3.23). such maintenanca- (Including a. maintertaime contractif required). C16 0 ProcedureIV Steps To Obtain A-Condit.ional Construction Permit Step Procedure Remarks 1 Obtain an application for a permit to install the system. Applications are available at all local health departments. (Sec. 3.13.01) 2 Complete the application and attach a sketch of the site The local sanitarian can assist in preparation of the (sketch of the property and surroundings including application or Providing advice regarding requirements dimensions, existing sewage and watei systems etc. for the sketctvpiat (Sec. 3.16.01 *, 4.02 and Appendix 11). influencing the location of the proposed sewage system and water supply system if applicable).- 3 Submit the application and sketch/plat to local health The application shall set forth the special use conditions department in the countylcity in which system is to be as well as substantiation of those conditions. -installed. 4 Make an appointment with the sanitarian to visit the It is recommenced that you be present when sanitarian property. (The property lines and the area proposed for evaluates the site and soil (Sec. 4.01:02). the sewage disposal system and building site should be -indicated by stakes.) 5 The sanitarian will evaluate the site and soil. It there is See Sec. 3.13.06c. You may be required to submit justification for the conditions proposed in the application additional data i@e. seasonal water table measurements the sanitarian will design the system and issue a for a reasonaole period to insure adequate safeguards in conditional construction permit and include a letter to you desian. You should 13e present at site visit. listing all conditions pertaining to. the peffnit. 6 Upon receipt of the permit and letter you must have tho See Sec. 3.13.061. You must have the permit recorded. permit and letter-recorded and indexed in the grantee and present certification of recordation to the local heafth index of the land records by the Clerk of the C;rcuit Court department. (If you are denied a permit or co not agree having jurisdictiori. The conditional permit. becomes valid with the conditions imposed in the permit turn to one day atter'the local health department receives Procedure VII for instructions.) notification from you that the permit has been recorded. 7 Upon presentation of the sewage disposal system Required by Secnion 32.1 -165 Code of Virginia. construction permit to the building official, your building permit Will be issued and you may proceed with construction of the sewage disposal, system. 8 The to" health department must inspect and approve Sefore you release ycr corittactor(s) from his obligation to the sewage disposal system before it is covered and put install the system properly. insist on receiving the local into operation. If An individual Water supply is constructed health department's written approval including the in conjunction, with the sewage system, it must also be contractor's and engineer's (if applicable) completion inspected and approved before the operation permit is statement. See Sec. 3.21 @01 and 3:22. issued. 9 In the event the system fails to operate satisfactorily Sewage disposal systems require maintenance and a contact your local health department where assistance septic tank will usually require cleaning every'3-5 years. can be obtained. (Sec. 3.23). b7 Procedure V Steps To Obtain A Variance Step Procedure Remarks I Send a letter to the Commissioner through the local ftte out clearly the portion of the regulations that are health department containing citations to the regulations problems in this instance. YOU Must Show that no uncue from which a variance is requested. Indicate the nature health problems would be created by the variance. (See and duration of the variance requested. Submit any Sec. 3.07.03) relevant analyses or data to support the request and any other information you feel is relevant Za The Commissionermil review the request and make a decision within 60 days and send a letter to you with his decis4on. If a variance is granted the local health department will attach a copy of variance to the permit 2b The Commissioner will review the request and make a Sec. 3.07.05a. You may petition the Commissioner for decision within 60 days. It he rejects the request a written hearing within 30 calendar days to challenge the rejection rejection notice will be sern to you swing reasons for pursuant to Sec. 3.08. rejection. Procedure A Steps To Obtain A Special Permit For Experimental Systems Step Procedure Remark!@ la Applicabon Should be made through the local health Because of the variability of circumstances the exact department to the Oirector. Bureau of Wastewater procedure and information will be determined on a case Engineering, 109 Governor Street. Richmond, Virginia by case basis in accordance with Section 3.25. 23219, Phone 804-786-1755 for a site specific proposal. Ib Contact may be directly with the Bure@u in instances where no site specific proposal is being made. Procedure V11 Appealing The Denial of a Sewage Disposal System Permit (Sec. 3.01, 3.08, 3.08.01, 3.08.02. 3.09. 3.10. 3.10.01 and 3.11) Step Procedure Remarks 1 Vite to the Health Oirector in the jurisdiction where the Having been denied a permit you should have in your permit was denied and request an informal hearing. Give possession copies of all the Oepartment's records and the reasons you have for requesting the hearing and cite reports including a report citing those reasons why the the section(s) of the regulations involved. Oepartment has denied your permit. If you do not have this information you will be given the information on request. 2 Upon receipt at your request for art informal hearing the Health Olrector*11 advise you of the time and place of the hearing. 3 At the heanng you. your agent. or your attorney, if you The burden of proof will rest with you since the choose to have one present. will be offered the Oepartment believes it has exhausted its search for an opportunity to present ev@idence (data. witnesses. etc.) to answer to your problem. support your claim that under the conditions of your application the system you seek to install will operate satisfactorily at the specific site. 4 The Hialth Oirector on hearing the testimony and reviewing all evidence presentedmll make a preliminary finding of fact and advise you accordingly. 5 In the event you are not satisfied with the decision, you Upon receipt of your appeal request the Commissioner may request a formal hearing by writing to the State will acquire copies of all related Cepartment records and Health Commissioner, include the reason(s) for reports-, these will be reviewed to assure proper requesting the appeal and cite the section(s) of the processing. regulations involved. 6 YouM11 be furnished copies of all related Oepartmental The Commissionet's representative will contact you or records and reports and be advised of the time and place your attorney regarding your upcoming appeal. for your case to be heard and the basic law(s) under. which the Oepartment exercises; its authority. 7 At the hearing you will be offered the opportunity to You may bring such witness(es) as you believe will help submit oral and documentray evidence and rebuttal your case. piroots and conduct croas examinoons. 8 The Commissiorler or his appointee will preside over the A verbatim record will be made of the hearing. hearing. 9 Folk*ng the hearing (usually within 60 days) the Commissioner YAll make a finding of tact. and advise you in writing of his conctusion(s) regarding your case. 10 In the event you are mot satisfied with the decision you may seek judicial review. D Procedure Vill Steps To Obtain A Sewage Handling Permit (Section 3.26) Step Procedure Remarks 1 Obtain and complete an application for a Sewage Applications are available at all local health departments Handling Permit (Section 3.26. Appendix III, Pages 111-1 through 111-4). 2 If a special facility is required, schedule a site visit to the proposed site with the sanitarian. 3 Schedule a preliminary conference with the local or When a special facility is required (see 3.26.04, 6.03), district health department to discuss the methods and you should have your consulting engineer at this equipment to be utilized in the handling and disposal of conference. The site study and evaluation may be held in sewage. connection with this conference. 4 If you decide to proceed with your proposal go to stop 6 of Anaerobic lagoon requirements are contained in Section Procedure III and follow to completion. 16.00. If you propose to land apply stabilized septage, a no-discharge certificate will be required from the State Water Control Board. 5 Upon completion of all requirements. including plans and An operation and maintenance manual will be required. specifications review and approval. site approval. approval of method of final disposal of stablized septage, a construction permit will be issued. 6 The health department must inspect and approve the Before you release your contractor(s) from- his obligation special facility an operation permit is issued and to property, install the system, insist on receiving the the system placed in service. department's approval. including the contractor(s) and engineees completion statement(s). (See 3.20, 3.21.01: 02 and 3.22) 7 Schedule an appointment with the sanitarian to discuss methods and equipment to be utilized in the handling and disposal of sewage. 8 Schedule an appointment with the sanitarian to inspect This procedure may be accomplished during step 7 if the equipment to be utilized. desired. (See 3.26.03. 15.00) 9 Upon approval of the application, disposal site(s) and Section 3.26, 6. 12.03, 6.03a, 15.00. equipment. a permit is issued by the local health department. 261 GENERAL SUMMARY OF REGULATIONS Arrangement of the The new regulabons are arranged in five major parts. "ine first four parts are regulations subdivided into 18 sections. The fifth part is the appendix and contains copies of excerpts from Title 32.1, Code of Virginia and all forms and applicabons related to on-site sewage handling and disposal. Part A Part A entitled General Framework for the Regulations contains Sections 1.00 General Authority and 2.00 Definitions. Significant subsections are 1.05 which establishes a Sewage Handling and Disposal Advisory Committee and 1.06 which Part B is the Grandfather Clause. Part 8 entitled Procedural Regulations contains Section 3.00 Procedures. Section 3.00 contains all administrative procedures :1 ciated With issuance or denial of permits, and administration of the regulations. Pan C Part C entitled General Criteria and Methods for Sewage Handling and Disposal contains Sections 4.00 through 7.00 which are entitled Evaluation Criteria for Subsurface Soil Absorption Systems, Pump and Haul of Sewage, Sewage Handling and Installation at Residential Sewage Disposal Systems in Political SubdMaicins Having Soil Drainage Management Contracts With The State Health Department respectively. Deviation from the criteria and procedures contained in Parts A, 8 and C require a variance issued by the State Health Commissioner. Part Pan 0 0 entitled Des4n and Construction Criteria contains Sections 8.00 through 18.00 which are entitled General Requirements. Building Sewers. Pre-1reatment Sys- rams, Conveyance Systems. Subsurface Soil Absorption Systems. Privies. Stor- age Facilities Criteria For Pump & Haul at Sewage, Vehicle Specifications for Sewage Handling, Anaerobic Lagooning of Septage. Sewage Dump Stations and Nion-Public Drinking Water Supply Systems Utilized in Conjunction Iffith On-Site Sewage Disposal respectively. Part 0 contains all the detailed design and construction criteria. Minor deviations (exceptions) from the provisions of this part of the regulations may be authorized at the local level: however, a major deviation is Part E subject to variance authorized by the Commis4ioner. Put E is the Appendix. Requirements for All places for human occupancy are required to have available, sate, adequate Systems (Sec. 1.07) and proper sewage treatment and disposal. Therefore, before a building permit can Building Permit (Code be issued by the local building official, assurances must be given that an acceptable of Va. mews of sewage treatment and disposal are available for the site. Sewage Olspos.ai When an on-site sewage treatment and disposal facility is to be considered. an Construction Permit applicant must complete a permit application request for the facility.The application Application (�3.13) forms are available at all local health departments. The application form must be Filing the Application completed and filed by the applicant with the local health department in the (�3.13) jurisdiction where the construction is to take place. Processing will include evaiuat- Proceissfing of the ing the information submitted ontheapinfication and-exa, -mining 4he-site to determine Application (�3.13 if the soll on the property can be sately used to dispose of the wastewater that will be and/or 3.14, 3.15) generated. In the event the application is for a sewage treatment plant with a 011scharging.treated discharge to state waters. the applicant will be required to obtain a National Pollutant Sewage: State Water Discharge Elimination System (NPOES) permit from the State Water Control Board Control Board Permit authaftng the discharge. If the site is acceptable and depending on the complexity of the system Issuing Sewage required, one of the following will occur: (1) the sanitarian may design the system Disposal C4ristruction and issue the construction permit (2) the applicant may be requested to submit Permits (�3.12, 3.13, additional information before the sanitarian can complete the design or (3) the 3.14 & 3.16) applicant may be required to obtain the services of a licensed engineer to design the system. A permit, if issued, will be issued only to a single owner. Individual drinking Newly constructed nonpublic drtnking water supply systems utilized in conjunc- water supply systems ton with on-site sewage disposal systems permitted under these regulators will not requiring approvai require a separate permit. However, they will be required to be constructed and approved by the local heath department as outlined in the regulations before they can be placed in service. 'r,240 Q Type water supplies Types of nonpublic water supplies that will require approval irclude wells. requiring approval cisterns, and springs. (�18.02: 18-03: 18.04) Conditional Permit Where the soil and site conditions meet the chteria established in the (�3.13.06) regulations conditional permits may be issued if the applicant can show that there will be reduced water flow, limitations on the number of persons to be served. intermittent or seasonal use of the facility, or temporary use of the system not to exceed one year. Conditional permits are required to be recorded and indexed in the grantee index in the land records of the Clerk of the Circuit Court. Exceptions to design Exceptions to the design criteria in Part 0 may be considered it the imposed criteria (�3.16.03) condition(s) is not justified by the health consideration(s) upon which criteria are based and when repairing a tailing system. Permits for Application for a permit tar experimental systems must be made through the Experimental Systems local health department to the Bureau of Wastewater Engineering. After a thorough (�3.25) review at the method. process and/or equipment to be tested. the Bureau may recommend to the Commissioner that he issue an experimental permit. Variances to A variance is a waiver to a specific regulation and can only be granted by the Regulations (�3.07) Commissioner. To be considered. the applicant must submit to the Commissioner. through the local health department. information to support his request for the variance. The variance request should cite that section of the regulafion from which the variance is sought. its nature and duration. any analytical or test data sucporting the variance request. an explanation of why the public health would be better served or not adversely impacted by the variance and any other information the applicant wishes to submit or that the department may require. Denial of Construction In the event a construction permit is denied. the applicant will receive a written Permits (�3.17) explanation df the basis for denial of the permit. Voidance of Permits will be voided if the conditions change from those shown on the Construction Permits application or construction permit. (�3.18.01) Revalidation of The local heaith department will revalidate a cons 'truction permit issued in Construction Permits accordance with these regulations if the application and site conditions remain (�3.18.01) unchanged. "Grandfathering" of Subdivision approvals granted in accordance with local ordinances will not be existing outdated reevaluated as a result of these Regulations. Permits (�1.06) Evaluation of individual lots. within an -approved" subdivision will be based upon the 1971 Regulations. However. since the 1971, Regulations do not address sails with percolation rates greater than 60 minutes per inch these Regulations will be us;W in their entirety for soils with percolation rates greater than 60 minutes per inch but less than or equal to 120 minutes per inch except that the reseve area requirement will be waived unless it was a preexisting local requirement. Notice of Oenial of a construction permit for a lot in an -approved" subdivision will be sent by registered mail return receipt requested to both the lot owner and the owner of record of the subdivision. Previously issued permits will be honored it the p ermit has been procerly issued and soil and site conditions are satisfactory. The Permit will not be reissued utilizing the criteria in these Regulations unless the Permitwas not property issued in a=rdance with the 1971 Regulations. Permit & Sonding Special permits are required to pu mo and haul sewage ana. or ccnstruct a required to pump & storage facility associated with the pumping and hauling of sewage. Soncling may be haul sewage (�3.29) reauired as a prerequisite to issuance of a permit. Under certai .n c:rcumstances the Oepartment may consider permitting pumping and mauling Pt sewage as a temporary means for disposing of sewage. (Facilities at marinas and other olaces where boats are moored are exempt from this section of the regulations since they are covered by other regulations governing sewage.) Filing application for As with other requests for sewage disposal, the,owner must file an application temporary pump & with the local health department where the proposal will be evaluated. In addition to haul (�3.30) the application, the owner must secure and maintain a contract.with a sewage Contract with sewage handling contractor having a valid Sewage Handling Permit. This must be filed and handling contractor evaluated with the application. Also. before a permit can be issued. the concurrence required (�3.30.* of the local political subdivision representative will be required. 3.30.04) In the event a permit is denied, the local health department is obligated to give Concurrence of local the appticant im writing the reasons for denying the permit. The same review process political subdivision as previously addressed may be used by the applicant in seeking relief from a (�3.09) denial. Denial of pump and haul permit (�3.09) To acquire a Sewage Handling Permit. an individual will be required to Permit required for demonstrate that he has an approved disposal site. Any person who removes or sewage handling contracts to remove sewage from a holding facility (septic lank, vault privy etc.) must V-12.02; 3.26) have a Sewage Handling Permit issued by the Commissioner. An application must be filed with the local or district health department in the area in which the handier Inspecting sewage will operate. No permit is required for the handling of sewage from a holding tank on handling equipment a vehicle or vessel by the owner of such vehicle or vessel or the removal of (�3.26.03) screenings. sludges, grit. etc. from a sewage treatment plant by owner or employees of such treatment facilities since these are covered by separate regulations. When Applicant who is the application is filed, the Oepartment's agent will arrange to inspect the equipment non-owner of and approve of the disposal site(s). In the event the applicant is not the owner of the treatment works sewage system or treatment works then the applicant must append a statement to the application from the owner of the approved sewage system or treatment works, Permit issuance for stating thatthe applicant may discharge septage and/or sewage into the facility. The handlifig sewage statement must contain. the quantity per day of sewage that is permitted to be (�3.27) discharged as well as the point of discharge. Each disposal site shall be considered separately. -When a permit is issued. it wilt be tar a period not to exceed twelve months and may be revoked in the event a potential or real health hazard associated Permit constraints with the sewage handling operation occurs or should the conditions change from (�3.28) those shown on the application. Permit revoked or In the event a permit is revoked or denied. the local heafth department will give denied.(�3.09: 3.28) the owner in writing the reasons for the revocation-or denial. The owner may seek relief from the revocation or denial by following the procedures used by the Oepartment in reviewing a reapplication or processing an appeal. Inspection and Before any part of the system is put to use. it is necessary that the local health approval of systems department inspect each part of the system to insure that it has been installed prior to use (�3.20) rding to the construction permit and regulations. Requirement for Upon completion or modification of the system a signed statement from the Construction system's contractor that the system is installed according to the construction permit Completion Statement and in compliance with Part 0 of the Regulations is required. In the event formal from contractor and/or plans and specifications were required setting forth the design of the system, the engineer (�3.21) department will require that the designing engineer submit a signed statement that the system is installed according to the approved plans and specifications. Issuance of Operation It the system is constructed as specified by the permit and!or by the plans and Permits (�3.22) specifications and upon receipt of completion(s) statement. the inspecting agent will prepare an operation permit. Upon receipt of the operation permit the owner may proceed to use the system. In the event the system is not a 'poroved. the agent will advise the applicant, or his agent. of those reasons why the installation was not Systems installed but approved and give written recommendations as to what must be done to acouire not approved (�3.20) approval. Once the corrections are made and verified by inspection. the operation permit will be issued. C?&4/ Compliance with the Any applicant for a permit or any person'Nhose permit has been revoked rnay Administrative seek relief.from the denial of the permit or the revocation of the permit by appealing Process. Act (�3.10) the -local department'.s decision. The appeal procedure is in conformity ,vith the Administrative Process Act. the first step of which consists of an informal hearing at the district health department in the, locality where the permiVrevocation took place. In the event of non6esolution, a formal hearing can be requested. The formal hearing shall be held by the Commissioner or his appointee. Judicial review may be requested of. the Commissioner's decision. Subdivision plat Where local ordinances require the local health department to review subdivi- review sion plats for individual sewage disposal systems, the local health department shall require,the subdivider to show as a minimum the location of the proposed an-site sewage d.isposa,l,system.and the reserve absorption area, if required, the location of the water supply system on each lot, if applicable and the specific soil information for each lot, as necessary (3.24). Furthermore, the local health department may require such additional informa- tion.As streets ., utility. line locations, contour interval, grading, etc., to assist them with their decisionto approve or disapprove the subdivision plat. APPENDIX 111-14 Commonwealth of Virginia State Air Pollution Control Board Regulations for the Control and Abatement of Air Pollution COMMONWEALTH OF VIRGINIA STATE AIR POLLUTION CONTROL BOARD REGULATIONS FOR THE CONTROL AND ABATEMENT OF AIR POLLUTION PART II GENERAL PROVISIONS Effective Date: March 17, 1972 Promulgated: March 17, 1972 Amended: August 11, 1972 Amended: November 30, 1979 Amended: December 5, 1973 Amended: February 8, 1980 Amended: February 3, 1974 Amended: April 3, 1981 Amended: July 5, 1974 Amended: July 31, 1981 Amended: December 20, 1974 Amended: July 1, 1982 Amended: August 9, 1975 Amended: March 1, 1983 Amended: December 6, 1975 Amended: January 1, 1985 Amended: December 10, 1976 Amended: April 8, 1977 Amended: September 30, 1977 Amended: October 6, 1978 Amended: January 30, 1979 Amended: August 3, 1979 Amended: October 5, 1979 � 120-02-01 APPLICABILITY A. The provisions of these regulations, unless specified otherwise, shall apply throughout the Commonwealth of Virginia. B. The provisions of these regulations, unless specified otherwise, shall apply to only those pollutants for which ambient air quality standards are set forth in Part III and/or for which emission standards are set forth in Parts IV, V and VI. C. No provision of these regulations shall limit the power of the Board to take such appropriate action as necessary to control and abate air pollution in emergency situations. � 120-02-02 ESTABLISHMENT OF REGULATIONS AND ORDERS A. Regulations for the Control and Abatement of Air Pollution are established to implement the provisions of the Virginia Air Pollution Control Law and the Federal Clean Air Act. a. Regulations for the Control and Abatement of Air Pollution shall be adopted, amended or repealed in accordance with the provisions of � 10-17.18 of the Virginia Air Pollution Control Law, Articles I and 2 of the Administrative Process Act and the Public Participation Guidelines in Appendix E. c')& 7 C. Regulations, amendments and repeals shall become effective as provided in � 9-6(.14:9.3 of the Administrative Process Act, except in no case,shall the effective date be less than 60 days after adoption by the Board. 0. If necessary in an emergency situation, the Board may adopt, amend or stay a regulati.on as an exclusion under � 9-6.14:6 of the Administrative Process Act, but such rule or regulation shall remain effective no longer than 60 days unless readopted following the requirements of subsection B of this section. The provisions of this subsection are not applicable to emergency spe- cial orders; such orders are subject to the provisions of subsection F of this section. E. Any reference to any provision of Title 40 of the Code of Federal Regulations shall be considered as the adoption by reference of that provision. The specific version of the provision adopted by reference shall be that con- tained in 40 CFR (1984) dated July 1, 1984. In making reference to the Code of Federal Regulations, 40 CFR Part 35 means Part 35 of Title 40 of the Code of Federal Regulations; 40 CFR 35.20 means Section 35.20 in Part 35 of Title 40 of the Code of Federal Regulations. F. Orders, special orders and emergency special orders may be issued pursuant to � 10-17.18(d) or 10-17.18:1 of the Virginia Air Pollution Control Law. � 120-02-03 ENFORCEMENT OF REGULATIONS AND ORDERS A. Whenever the Executive Director or his designated represeftative has reason to believe tnat a violation of any provision of these regulations or any order has occurred, notice shall be served on the alleged violator or violators, citing the applicable provision of these regulations or the order involved and the facts on which the violation is based. The Executive Director or his designated representative may act as the agent of the Board to obtain compliance through either of the following enforcement proceedings: 1. Administrative Proceedings The Executive Director or his designated representative may nego- tiate to obtain compliance through administrative means. Such means may be a variance, control program, consent agreement or any other mechanism that man- dates compliance by a specific date. The means and the associated date shall be determined on a case-by-case basis and shall not allow an unreasonable delay in compliance. In cases where the use of an administrative means is expected to result in compliance within 90 days or less, preferential consideration shall be given to. the use of a consent agreement. Unless specified otherwise in these regulations, the administrative means shall be approved by the Board. 2. Judicial Proceedings The Executive Director or his designated representative may obtain compl.iance through legal means pursuant to � 10-17.23 or � 10-17.29 of the Virg",lia Air Pollution Control Law. B. Nothing in this section shall prevent the Executive Director or his 4& @ designated Oepresentive from making efforts to obtain voluntary compliance through conference, warning or other appropriate means. C. Orders, consent orders, delayed compliance orders, special orders and emergency special orders are considered administrative means and the Board reserves the right to use such means in lieu of or to provide a legal basis for the enforcement of any administrative means negotiated or approved by the Executive Director or his designated representative under subsection A of this section. 0. Any enforcement proceeding under this section may be used as a mecha- nism to insure that the compliance status of any source is reasonably maintained by the owner. � 120-02-04 HEARINGS AND PROCEEDINGS A Hearings and proceedings by the Board may take any of the following forms: 1. The public hearing and informational proceeding required before considering regulations or variances, in accordance with � 10-17.18(b) and (c) of the Virginia Air Pollution Control Law. The procedure for a public hearing and informational proceeding shall conform to � 9-6.14:7 of the Administrative Process Act, except as modified by � 10-17.18(b), (d) and (h) of the Virginia Air Pollution Control Law. 2. The tnformal fact finding proceeding which, with all parties consenting, may be used to ascertainfacts upon which decisions of the Board are based, in accordance with � 9-6.14:11 of the Administrative Process Act. The procedure for an informal fact finding proceeding shall conform to � 9-6.14:11 of the Administrative Process Act. 3. The formal hearing for the determination of violations, and for the enforcement or review of its orders and regulations, in accordance with � 10-17.18(d) of the Virginia Air Pollution Control Law. The procedure for a formal hearing shall conform to � 9-6.14:12 of the Administrative Process Act, except as modified by � 10-17.18(d) and (h) of the Virginia Air Pollution Control Law. 4. The special order hearing or emergency special order hearing for the determination of violations, and for the enforcement or review of its orders and regulations, in accordance with � 10-17.18:1 of the Virginia Pollution Control Law. The procedures for the special order hearing or emergency special order hearing shall conform to � 9-6.14: 12 ' of the Administrative Process Act, except as modified by � 10-17.18:1 of the Virginia Air Pollution Control Law. B. Records of hearings by the Board may be kept in either of the following forms: 1. Oral statements or testimony at any public hearing or infor- mational proceeding will be stenographically or electronically recorded, and may be transcribed to written form. 2. Formal hearings and hearings for the issuance of special orders or emergency special orders will be recorded by a court reporter, or electronically recorded for transcription to written form. C. Availability of Record of Hearings by the Board 1. A copy of the transcript of a public hearing or informational pro- ceeding, if transcribed, will be provided within a reasonable time to any person upon receipt of a written reque@t and payment of the cost; if not transcribed, the additional cost of preparation will be paid by the person making the request. 2. Any person desiring a copy of the transcript of a special order, emergency special order or formal hearing recorded by a court reporter may purchase the copy directly from the court reporter; if not transcribed, the additional cost of preparation will be paid by the person making the request. � 120-02-05 VARIANCES A. General 1. Pursuant to � 10-17.18(c) of the Virginia Air Pollution Control Law, the Board at its discretion may grant variances to any provision of these regulations after a public hearing in accordance with � 120-02-04 A 1. 2. Notices of public hearings on applications for variances shall be advertised in at least one major newspaper of general- circulation in the affected Air Quality Control Region at least 30 days prior to the date of the hearing. B. Fuel Variance 1. Regardless of any other provision of this section, the Executive Director may grant a fuel variance for fuel burning equipment from applicable provisions of these regulations if, after a thorough investigation and public hearing, he finds that: a. The owner, in good faith and prior to the request for the fuel variance, has attempted to comply with applicable provisions of these regula- tions. b. The owner has substantial cause to believe he will be unable to obtain the fuel to operate the equipment in compliance with applicable provi- sions of these regulations. C. The maximum particulate and sulfur dioxide emissions from fuels permitted in the fuel variance would be the lowest that the available fuels will permit. d. The need for the requested fuel variance could not have been avoided by the owner. 496 e . The period of the fuel variance will not exceed the reason- ably predicted shortage of fuel which would allow compliance with these regula- tions, or 120 days, whichever is less. 2. The owner requesting the fuel variance shall submit the following, where appropriate, to the Executive Director: a. The requested commencement and termination dates of the fuel variance. b. The type qnd quantity of fuel to be used under the requested fuel variance, along with the maximum ash and sulfur content, if any. C. An affidavit stating why the owner is unable to, or has substantial cause to believe that he will be unable to, obtain fuel which would allow compliance with applicable provisions of these regulations. d. An estimate of the amount of fuel to be conserved. e. An estimate of the increased air pollutants that might cause violations of the ambient air qu&lity standards. f. An estimate, with reasons given, of the duration of the shor- tage of fuel which would allow compliance with applicable provisions of these regulations. g. Such other information as the Executive Dire@:tor may require to make his findings as provided in subsection 8 1 of this section. 3. Notice of public hearings on applications for fuel variances shall be advertised at least 10 days prior to the date of the hearing, in at least one major newspaper of general circulation in the Air Quality Control Region in which the affected source is located. 4. Fuel variances may be granted only for individual sources, and not for categories or classes. 5. No fuel variance shall be granted for more than 120 days. Arty request for a variance for a period beyond 120 days shall be governed by the provisions of subsection A of this section, except that the Board, where appropriate, may require compliance with any of the conditions and requirements herein. C. Nothing in this section shall be construed to I 'imit, alter or otherwise affect the obligation of any person to comply with any. provision of these regu- lations not specifically affected by this section. � 120-02-06 LOCAL ORDINANCES A. Establishment/Approval 1. Any local governing body proposing to adopt or amend an ordinance, relating to air,pollution shall first obtain the approval of the Board as to the provisions of the ordinance or amendment. The Board in approving local ordinan- ces will consider, but will not be limited to, the following criteria: a. The local ordinance shall provide for intergovernmental cooperation and exchange of information. b. Adequate local resources will be committed to enforcing the proposed local ordinance. co The provisions of the local ordinance shall be as strict as State regulations, except as provided for leaf burning in � 10-17.18(b) of the Virginia Air Pollution Control Law. 2. Approval of any local ordinance shall be withdrawn if the Board determines that the local ordinance is less strict than State regulations, or if the locality fails to enforce the ordinance. 3. If.a local ordinance must be amended to conform to an amendment to State regulations, such local amendment will be made within six months. B. Reports Local ordinances shall provide for reporting such information as may be required by the Board to fulfill its responsibilities under the Virginia Air Pollution Control Law and the Federal Clean Air Act. Such reports. shall inc'Lude, but are not limited to: monitoring data, surveillance programs, proce- dures for investigation of complaints, variance hearings and status of control programs and permits. C. Relationship to State Regulations Local ordinances are a supplement to State regulations. Any provisions of local ordinances which have been approved by the Board and are more strict than State regulations shall take precedence over State regulations within the respective locality. It is the intention of the Board to coordinate activities among the enforcement officers of the- various localities in the enforcement of local ordinances and State regulations. The Board will also provide technical and other assistance to local authorities in the development of ambient air quality or emission standards, in the investigation and study of air pollution problems, and in the enforcement of local ordinances and State regulations. The Board emphasizes its intention to assist in the local enforcement of local ordi- nances. If a locality fails to enforce its own ordinancel the Board reserves the right to enforce State regulations. 0. Variances A local governing body may grant a variance to any provision of its air pollution control ordinance(s) provided that: 1. A public hearing is held.prior to granting the variance; C@ 111 112, 2. The public is notified of the application for a variance by adver- tisement in at least one major newspaper of general circulation in the affected locality at least 30 days prior to the date of the hearing; and 3. The variance does not permit any owner or other person to take action that would result in a violation of any provision of State regulations unless a variance is granted by the Board. The public hearings required for the variances to the local ordinance and State regulations may be conducted joihtly as one proceeding. � 120-02-07 CIRCUMVENTION A. No owner or other person shall cause or permit the installation or use of any device or any means which, without resulting in reduction in the total amount of air pollutants emitted, conceals or dilutes an emission of air pollu- tants which would otherwise violate these regulations. Such concealment inclu- des, but is not limited to, either of the following: 1. The use of gaseous diluents to achieve compliance with a visible emissions standard or with a standard which i-s based on the concentration of a pollutant in the gases discharged to the atmosphere. 2. The piecemeal carrying out of an operation to avoid coverage by a standard that applies only to operations larger than a specified size. B. This section does not prohibit the construction of a stack. � 120-02-08 SEVERABILItY If any provision of these regulations or the application thereof to any per- son or circumstances is held to be invalid, such invalidity shall not affect other provisions or application of any other provision of these regulations which can be given effect without the invalid provisions or application, and to this end the provisions of these regulations and the various applications thereof are declared to be severable. � 120-02-09 APPEALS A. Any owner or other person aggrieved by any action of the Board taken without a formal hearing, or by inaction of the Board, may demand a formal hearing in accordance with � 9-6.14:12 of the Administrative Process Act, provided a petition requesting such hearing is filed with the Board. In cases involving actions of the Board, such petition shall be filed within 30 days after notice of such action is mailed or delivered to such owner or other per- son. B. Prior to any formal hearing, the Board shall, provided all parties con- sent, ascertain the fact basis for its decision in accordance with � 9-6.14:11 ",f the Administrative Process Act. C. Any decision of the Board resultant from a formal hearing shall consti- tute the final decision of the Board. 0. Any owner or other person aggrieved by a final decision of the Board. may appeal such decision in accordance with � 10-17.23:2 of the Virginia Air Pollution Control Law and � 9-6.14:16 of the Administrative Process Act. Any petition for appeal shall be filled within 30 days after the date of such final decision. E. Nothing in this section shall prevent disposition of any case by con- sent. F. Any petition for a formal hearing or for an appeal by itself shall not constitute a stay of decision or,action. � 120-02-10 RIGHT OF ENTRY Whenever it is necessary for the purposes of these regulations the Board may at reasona'ble times enter any establishment or upon any property, public or pri- vate, for the purpose of obtaining information or conducting surveys or investi- gation as authorized by � 10-17.22 of the Virginia Air Pollution Control Law. � 120-02-11 CONDITIONS ON APPROVALS A. The Board may impose conditions upon permits and other approvals which may be necessary to carry out the policy of the Virginia Air Pollution Control Law, and which are consistent with these regulations. Except as specified herein, nothing in these regulations shall be understood to limit the power of the Board in this regard. If the owner or other person fails to adhere to such conditions, the Board may automatically cancel such permit or approvals. Without limiting the generality of this section, this section shall apply to: approval of variances, approval of control programs, granting of new or modified source permits and granting of open burning permits. B. An owner may consider any condition imposed by the Board as a denial of the requested approval or permit, which shall entitle the applicant to appeal the decision of the Board pursuant to � 120-02-09. � 120-02-12 PROCEDURAL INFORMATION AND GUIDANCE A. The Board may adopt detailed procedures which: 1. Require data and information in addition to and in amplification of the provisions of these regulations; 2. Are reasonably designed to determine compliance with applicable provisions of these regulations; and 3. Set forth the format by which all data and information shall be submitted. B. In cases where these regulations specify that procedures or methods shall be approved by, acceptable to or determined by the Board or other similar phrasing, the owner may request information and guidance concerning the proper Al procedures and methods and the Board shall furnish in writing such information on a case-by-case basis. � 120-02-13 DELEGATION OF AUTHORITY In accordance with the Virginia Air Pollution Control Law and the Administrative Process Act, the Board confers upon the Executive Director such administrative and decision making powers as are set forth in Appendix F. � 120-02-14 CONSIDERATIONS FOR APPROVAL ACTIONS Pursuant to the provisions of � 10-17.18(e) and (f) of the Virginia Air Pollution Control Law the following considerations shall be followed in appro- vals: A. The Board, in making regulations, in approving variances, c ontrol programs, or permits, shall take into consideration such relevant facts and cir- cumstances as may be presented bearing upon the reasonableness of the activity involved and the regulations proposed to control it, including: 1. The character and degree of injury to, or interference with safety, health or the reasonable use of property which is caused or threatened to be caused; 2. The social and economic value of the activity involved; 3. The suitability or unsuitability of such activity to the area in which it is located; and 4. The practicability, both scientific and economic, of reducing or eliminating the discharge resulting from such activity. B. In all cases the Board shall exercise a wide discretion in weighing the equities involved and the advantages and disadvantages to the residents of the area involved and to any lawful business, occupation or activity involved resulting from requiring compliance with the specific requirements of any order, rule or regulation. � 120-02-15 - � 120-02-29 RESERVED � 120-02-30 AVAILABILITY OF INFORMATION A. Emission data provided to, or otherwise obtained by, the Board in accordance with the provisions of these regulations shall be available to the public. B. Except as provided in subsection A of this section, any records, reports or information provided to, or otherwise obtained by, the Board in accordance with provisions of these regulations shall be available to the public, except that: 1. Upon a showing satisfactory to the Board by any owner that such records or information, or particular part thereof (other than emission data), if made public, would divulge methods or processes entitled to protection as trade secrets of such owner, the Board shall consider such records, reports or information, or particular part thereof, confidential in accordance with the purposes of � 10-17.21 of the Virginia Air Pollution Control Law except that such records, reports or information, or particular part thereof, may be disclosed to other officers, employees or authorized representatives of the Commonwealth of Virginia and the U.S. Environmental Protection Agency concerned with carrying out the provisions of the Virginia Air Pollution Control Law and the Federal Clean Air Act; and 2. Information received by the Board in accordance with � 120-02-31, � 120-02-32, Part VII and Part VIII of these regulations shall -not be disclosed if it is identified by the owner as being a trade secret or commercial or finan- cial information which such owner considers confidential. � 120-02-31 REGISTRATION The owner of any stationary source to which permits are issued under Part VIII or for which emission standards are given in Parts IV, V or VI shall , upon request of the Board, register such source operations with the Board and update such registration information. The information required for registration shall be determined by the Board and shall be provided in the manner specified by the Board. Owners should review the emission standard for their respective source type to identify the exemption levels for purposes of this section. � 120-02-32 CONTROL PROGRAMS A. Under the provisions of � 120-02-03 A, the Board may require an owner of a stationary source to submit a control program, in a form and manner satis- factory to the Board, showing how compliance shall be achieved as quickly as possible. B. The Board shall act within 90 days of receiving an acceptable control program. A public hearing will be held within this period. The hearing shall be held only after reasonable notice, at least 30 days prior to the hearing date, which shall include: 1. Notice given to the public by advertisement in at least one major newspaper of general circulation in the affected Air Quality Control Region; 0? -J& 2. Availability of the information in the control program (exclusive of confidential information under the provisions of � 120-02-30) for public inspection in at least one location in the affected Air Quality Control Region; and 3. Notificatiop to all local air pollution control agencies having State Implementation Plan responsibilities in the affected Air Quality Control Region, all states sharing the affected Air Quality Control Region, and the Regional Administrator of the U.S. Environmental -Protection Agency.@ C. When acting upon cqntrol programs, the Board shall be guided by the provisions of the Federal Clean Air Act. 0. The Board may require owners submitting a control program to submit periodic progress reports. in the form and manner acceptable. to the Board. E. The Board normally will take action on all control programs within 30 days after the date of the public hearing unless more information is required. The Board shall notify the applicant in writing of its decision on the control program and shall set forth its reasons therefor. F. The owner may appeal the decision pursuant to � 120-02-09. � 120-02-33 RESERVED [The provisions of this section have been relocated to Part VIII and rede- si-gnated � 120-08-013 � 120-02-34 FACILITY AND CONTROL EQUIPMENT MAINTENANCE OR MALFUNCTION A. At all times, including periods of startup, shutdown and,malfunction, owners shall, to the extent practicable, maintai,n and operate any affected faci- lity, including ass'ociated air pollution.contro ,-1 e"q. [email protected] monitoring equip- ment, in a manner consistent with good air pollution control practice of mini- mizing emissions. B. In case of shutdown and/or bypassing of air pollution control equipment for necessary scheduled maintenance which results in excess emissions for more than 1 hour, the intent to shut down such equipment shall be reported to the Board and local air pollution control agency, if any, at least 24 hours prior to the planned shutdown. Such prior notice shall include, but is not limited to, the following: 1. Identification of the specific facility to be taken out of service as well as its location and permit and/or registration number. 2. The expected length of time that the, air pollution control equip- ment will be out of service. 3. The nature and quantity of emissions of air pollutants likely to occur during the shutdown period. 4. Measures.that will be taken to minimiZe the length of the shutdown or to negate the effect of the outage of the air pollution control equipment. C. In the event that any affected facility or related air pollution control equipment fails or malfunctions in such a manner that may cause excess emissions for more than I hour, the owner shall, as soon as practicable but no later than 4 daytime business hours, notify the Board by telephone or telegraph of such failure or malfunction and shall then provide a written statement giving all pertinent facts, including the estimated duration of the breakdown. Owners subject to the requirements of � 120-04-05 C and � 120-05-05 C are not required to provide the written statement, prescribed in this paragraph for facilities subject to the monitoring requirements of � 120-04-04 and � 120-05-04. When the condition causing the failure or malfunction has been corrected and the equip- ment is again in operation, the owner shall notify the Board. 0. In the event that the breakdown period cited in subsection C of this section exists or is expected to exist for 30 days or more, the owner shall, within 30 days of the failure or malfunction and semi-monthly thereafter until the failure or malfunction is corrected, submit to the Board a written report containing the following: 1. Identification of the specific facility that is affected as well as its location and permit and/or registration number. 2. The expected length of time that the air pollution control equip- ment will be out of service. 3. The nature and quantity of air pollutant emissions likely to occur during the breakdown period. 4. Measures to be taken to reduce emissions to the lowest amount practicable during the breakdown period. 5. A statement as to why the owner was unable to obtain repair parts or perform repairs which would allow compliance with the provisions of these regulations within 30 days of the malfunction or failure. 6. An estimate, with reasons given, of the duration of the shortage of repai rs or repair parts which would allow compliance with the provisions of these regulations. 7. Any other pertinent information as may be requested by the Board. E. The procedural requirements of subsection 0 of this section shall not apply beyond 3 months of the date of the malfunction or failure. Should the breakdown period exist past the 3-month period, the owner may apply for a variance in accordance with � 120-02-05 A. F. The following special provisions govern facilities which are subject to the provisions of Rule 4-3, Rule 5-3 or Rule 6-1: 1. Nothing in this section shall be understood to allow any such C9 7S facility to operate in violation of applicable emission standards, except that all such facilities shall be subject to the reporting and notification proce- dures in this section. 2. Any facility which is subject to the provisions of Rule 6-1 shall shut down immediately if it is unable to meet the applicable emission standards, and it shall not return to operation until it is able to operate in compli.ance with the applicable emission standards. 3. Regardless of any other provision of this section, any facility which is subject to the provisions of Rule 4-3 or 5-3 shall shut down imme- diately upon request of the IBoard if its emissions increase in. any amount because of a bypass, malfunction, shutdown or failure of the facility or its associated air pollution control equipment; and such facility shall not return to operation until it and the associated air pollution control equipment are able to operate in a proper manner. G. No violation of applicable emission standards or monitoring require- ments shall be judged to have taken place if the excess emissions or cessation of monitoring activities is due to a malfunction, provided that: . 1. The procedural requirements of this section are met and/or the owner has submitted an acceptable application for a variance, which is sub- sequently granted; 2. The owner has taken expedient and reasonable measures to minimize emissions_during the breakdown period; 3. The owner has taken expedient and reasonable measures to correct the malfunction and return the facility to a normal operation; and 4. The source is in compliance at least 90 percent of the operating time over the most recent 12-month period. H. Nothing in this section shall be construed as giving an owner the right to increase temporarily the emission of pollutants or to circumvent the emission standards or monitoring requirements otherwise provided in these regulations. I. Regardless of any other provision- of this section, the owner of any facility subject to the provisions of these regulations shall, upon request of the Board, reduce the level of operation at the facility if the Board determines that this is necessary to prevent a violation of any primary ambient air quality standard. Under worst case conditions, the Board may order that the owner shut down the facility, if there is no other method of operation to avoid a violation of the primary ambient air quality standard. The Board reserves the right to prescribe the method of determining if a facility will cause such a violation. In such cases, the facility shall not be returned to operation until it and the associated air pollution control equipment are able to operate without violation -)f any primary ambient air quality standard. APPENDIX V-1 Regulation XXIX of the Marine Resources Commission EMERGENCY REGULATION XXIX PERTAINING TO THE TAKING OF STRIPED BASS PREAMBLE WHEREAS Virginia's commercial harvest of striped bass has declined from 2,888,000 pounds in 1973 to less than 395,000 pounds in 1981; WHEREAS Virginia's 1983 commercial harvest of striped bass is estimated to be about 100,000 pounds; WHEREAS Atlantic Coast striped bas stocks have continued to decline in spite of recent efforts; WHEREAS the trend of striped bass annual survival has been below a level necessary for the last ten years; WHEREAS given the present status of the striped bass stocks, an estimated three-fold increase in total egg is now necessary to sustain present stock size; WHEREAS an estimated six-fold increase in egg production is necessary to facilitate the stock rebuilding process; WHEREAS a most effective means of increasing egg production is to reduce total harvest and to protect striped bass while an their spawning grounds; WHEREAS the Virginia Institute of Marine Science in a 1983 report entitled Assessment of Larval Striped Bas Stocks in Maryland and Virginia Waters" indicated that the striped bass spawnign reach of the Rappahannock River is significantly further downstream than described in the MRC Regulation XXIX promulgated on December 21, 1982; WHEREAS the Striped Bass Management Board and the Interstate Fisheries Management Policy Board of the Atlantic States Marine Fisheries Commission formally agree that an emergency situation exists with regard to the brood stocks of Chesapeake Bay striped bass; FURTHER the Commission believes that even if the cause for the recent production failure of Chesapeake striped bass is determined not to be excessive fishing pressure, it is clea that restoration to historical levels of abundance cannot occur unless that pressure is controlled; THEREFORE realizing that the 1984 spawning season will commence on or about April 1 and that significant action Must be taken &.LUZ to the arrival of the striped bas to the spawning grounds, the Commission does declare that an emergency exists. THEREFORE acting under the authority granted to the Marine Resources Commission pursuant to Sections 28.1-23, 28.1-50 and 28.1-69.1 of the Code of Virginia as amended, and with the approval of the Governor, the following emergency regulation is hereby promulgated pursuant to Section 9-6.14: 6 (iii) EMERGENCY REGULATION XXIX Page 2 I. AUTHORITY, PRIOR REGULATIONS, EFFECTIVE DATE: (a) ThIs Regulation is promulgated pursuant to the authority contained in Section 28.1-23, 28.1-50 and 28.1-69.1 of the Code of Virginia, as amended. (b) This Regulation amends the previous Regulation XXIX, Pertaining to the Taking of Striped Bass, which was promulgated by the Marine Resources Commission and made effective April 10, 1983. (c) The effective date of this Regulation is March 1, 1984. (d) This Regulation shall terminate on December 31, 1984 or when superseded by other Regulation. The Marine Resources Commission will receive, consider, and respond to petitions by any interested person at any time for the reconsideration or revision of this Regulation. 2. PURPOSE: The purpose of this Regulation is to provide for the long- term conservation of striped bass stocks of the Chesapeake Bay and its tributaries. This Regulation serves as a response to the intent of the management strategies suggested by the interstate Fisheries Management Plan for the Striped Bass as adopted and amended by the Atlantic States Marine Fisheries Commission. 3. DEFINITIONS: (a) Spawning Rivers - the James, Pamunkey, Mattaponi, and Rappahannock Rivers including all their tributaries. (b) Spawning Reaches - sections within the spawning rivers as follows: (i) James River: From a Line connecting Dancing Point and New Sunken Meadow Creek upstream to a line connecting City Point and Packs Point; (ii) Pamunkey River: From the Route 33 bridge at West Point upstream to a line connecting Liberty Hall and the opposite shore; (iii) Mattaponi River: From the Route 33 bridge at West Point, to the Route 360 bridge at Aylett; (iv) Rappahannock River: From the Route 360 bridge at Tappahannock upstream to the Route 3 bridge at Fredericksburg. 4. CLLOSED AREAS, SEASON, AND GEAR LIMITATIONS: (a) The closed season for the spawning reaches of the James, Pamunkey, Mattaponi, and Rappahannock Rivers shall be from, April 1 through May 31, Inclusive. (b) No anchored or staked gill net may be set or fished within the spawning reaches during the closed season. Drift (float) gill nets my be set or fished within the spawning reaches during the closed season, but the fisherman must remain with such net while that net is in the fishing position. (c) Striped bass taken in the spawning reaches by any gear, including hook-and-line, shall be returned immediately to the water during the closed season. 282 EMERGENCY REULATION XXIX Page 3 (d) Possession of any striped bass by any person, firm, or corporation within the spawning reaches during the closed season shall be a violation of this Regulation except as provided in (e) below. (e) Striped bass taken outside of the spawning reaches may be transported and landed within these areas provide prior notice is given to the marine Resources Comission. 5. TERRITORIAL SEA: (a) A minimum size Limit of twentv-four inches (24") in length is imposed on all striped bass taken in the Territorial sea with the following exceptions: (i) No more than five percent of a total daily catch of striped bass may consist of striped bass less than twenty-four inches (24") in length and at least fourteen inches (14") in length if the catch was made by net, and (ii) It be unlawful for any person, firm or corporation to take or catch and retain possession of any striped bass from the Territorial Sea during the period March 1 through May 31, inclusive. (b) Length is measured in a straight line from tip of nose to tip of tail. 6. CREEL LIMIT: Except as provided in 4. (c) and 5. (a) (ii) , above, a possession limit of five (5) striped bass per person per day is imposed on all recreational hook-and-line fishermen taking striped bass from the tidal waters of Virginia. 7. ENFORCEMENT: Any Uniformed officer of the Marine Resources Commission and any game Warden of the Commission of Game and inland Fisheries shall have the authority to enforce the provisions of this Regulation. 8. PENALTY: As set forth in Section 28.1-23, any person, firm, or corporation violating any provision, of this Regulation shall be guilty of a Class I misdemeanor. This is to certify that the foregoing is a true and accurate copy of Emergency Regulations passed by the Marine Resources Commission, having first secured the approval of the Governor to the authority vested in the Commission by Sections 28.1-23, 28.1-50 and 28.1-69.1 of the Code of Virginia as amended, and recorded in the Commission's, minute book, at meeting held in Newport News, Virginia on February 28, 1984. COMMONWEALTH OF VIRGINIA MARINE RESOURCES COMMISSION By: Subscribed and sworn to before me an this of 1984. my Commission expires November 17, 1987. NOTARY PUBLIC I I APPENDIX V-2 Areas of Significant Shoreline Erosion AREAS OF SIGNIF SHORELINE ERO Shoreline erosion grea % AREAS OF SIGNIFICANT SHORELINE EROSION ---- Shoreline erosion greater than 3 feet per year APPENDIX V-3 Policy Memorandum 3-78, Flood Plain Management Program for State Agencies I I I r In COMMONW, EALTH of V1RQ11\T1A Qffice of th! Governor jonn N. oatton Richmarid 2J279 October 23, 1978 POLICY MEMORANDUTM NUMBER 3-78 FLOOD PLAIN MANAGEMENT PROGRAM FOR STATE AGENCIES Background The availability of flood insurance under the National Flood Insurance Program, as provided for by the National Flood In- surance Act of 1968, as amended, is dependent upon State coordination o-f federal, State, and local management activities concerning flood plains, mudslide (i.e., mudflow) areas and coastal flooding areas (in this order together referred to as flood problems). The availability of programs for federal loans and mortgage insurance, State and federal financial assistance and land use planning are determining factors in the utilization of lands. The Commonwealth, with its extensive and continuing K rograms for the construction of buildings, roads and other cilities,, annually acquires and disposes of lands in flood hazard areas, and is in a position to significantly influence patterns of commercial, residential and industrial development away from flood prone areas. The State Water Control Board is the agency responsible for State level programs of flood plain management and far the re- view of local -regulations necessary for flood insurance under provisions of the National Flood Insurance Act of 1968, as amended, and in accordance with Virginia's Flood Damage Reduction Act of 1977 CH 62.1-44.108 et secL. of the Code of Virginia (19SO), as amended). Policy Statement To enable the Commonwealth to insure its properties under the National Flood Insurance Program, it is hereby declared that effective immediately, all agencies of the Commonwealth shall locate, plan, design, build and maintain State-owned property in such a manner as to become and remain eligible for flood insurance coverage under provisions of the National Flood Insurance Program, and shall obtain such coverage. In furtherance of this policy, the State Water Control Board is hereby designated as the agency to cooTdinate the imiple- mentation of the rules and regulations of the Federal Insurance Administration pertaining to the Federal Flood Insurance Z Proaram. The State Water Control Board will encourage a broad, unified effort to prevent uses and development of the State's flood plains in a manner incompatible with the flood potential thereof, and in particular, to lessen the risk of flood losses in connection with State lands and installations., or State and/or Federally financed or supported improvements. Specifically: a. Under the leadership and direction of the Secretary of Administration and Finance, and the Department of General Services (and of the State Highway and Transportation Commission for its projects), all State agencies directly responsible for the construction of buildings, structures, Toads or other facilities shall evaluate flood hazards when planning the location of new facilities and shall take such ;ction as is necessary to pre- clude the uneconomic, unnecessary or unnecessarily hazardous use of flood plains in connection with such facilities. If there is no feasible alter- native to construction in a flood plain, the fl-cad plain management and flood proofing criteria set forth in the Uniform Statewide Building Code, and in �� 1910.3, 1910.4 and 1910.5 of the National Flood Insurance Regulations (Title 24 of the Code of Federal Regulations) shall apply. In case of conflict, the most stringent requirements shall be met. Transportation facilities which must be located in floodways shall be designed and con- structed so that, together with all other existing or forseeable.facilities, they do not raise the level of floodwater more than one foot.. Flood proofing measures should be applied to existing facilities in order to reduce flood potential and shall be applied to all substantial improvements thereto (more than SO% of the market value). b. All State agencies responsible for the admin- istration of any federal or State grant or loan programs involving the construction of buildings, structures, roads or other facilities shall evaluate flood hazards in connection with such facilities and, in order to minimize the exposure of facilities to potential flood damage and the need for future disaster relief, shall take such steps as necessary to preclude the uneconomic, unnecessary or unnecessarily hazardous use o:E flood p-lains in connection therewith. ,@qb c. In order to minimize future public expenditures for flood protection and flood disaster relief, all State agencies responsible for the disposal of lands or properties proposed for disposal to other public instrumentalities or private interests shall attach appropriate restrictions with respect to uses of such lands or properties and may withhold such lands or properties from disposal. In carrying out provisions of this paragraph, each State agency may make appropriate allowances for any estimated loss in sales price resulting from the incorporation of use restrictions in the disposal documents. d. All State agencies responsible for programs which affect land use planning, including State permit programs, shall take flood hazards into account when evaluating plans and shall encourage land use appropriate to the degree of hazard involved. As may be permitted.by law, and in ccord _4,na ticn. %r4+-'6 State water Control Board, the Secretary of Administration and Finance, and the Department of General Services; the head of each State agency shall issue appropriate rules, 'regulations, or procedures to assure com- p;iance with the provisions of this Memorandum. 'j vernoT cc: The Honorable J. Marshall Coleman Governor's Secretaries Heads of all State Agencies and Institutions Chief Administrative Officers of all Cities, Toims and Counties U.S. GOVERNMENT PRINTING OFFICE : 1985 0 - 482-535 Vol. 2) QL 3 DATE DUE GAYLORD No. 2333 PRINTED IN U.SA 3 6668 14107 6911