Virginia CZM Program Program Changes and Incorporations - September 2011

September 2011 Virginia Coastal Zone Management Program Updates to the Enforceable Policies of the Program for which Federal Consistency will apply 

Notice of intended action:  This public notice is to inform interested parties of the Virginia Coastal Zone Management Program’s intention to update the enforceable polices incorporated into the Program and to invite the public to comment on this change.

Purpose of the notice:  The Coastal Zone Management Act (15 C.F.R. § 923.84) requires state Coastal Zone Management Programs to formally incorporate changes made to the laws and policies that are used for Federal Consistency.  The changes discussed here have already been made to each statute and regulation, the purpose of this action is to incorporate these changes into the Virginia Coastal Zone Management Program.  These changes are considered to be Routine Program Changes, and therefore do not significantly affect the (1) uses subject to management; (2) special management areas; (3) boundaries; (4) authorities and organization or (5) coordination, public involvement and national interest components of the Virginia Coastal Zone Management Program.  Upon concurrence by the National Oceanic and Atmospheric Administration, the policies discussed below will be incorporated into the Program.               

Below is a brief summary of each routine program change/incorporation.  Downloadable PDFs provide an expanded narrative of each of these changes as well as an analysis of their implication to the Virginia Coastal Zone Management Program.


Fisheries and Habitat of the Tidal Waters Code of Virginia Title 28.2, Chapter 2 - General Provisions.

The Commonwealth of Virginia has revised the Commonwealth’s enforceable policies in Code of Virginia Title 28.2, Chapter 2. The enforceable policies contained in Title 28.2, Chapter 2 authorize the Marine Resources Commission (Commission) to promulgate rules and regulations; manage the state’s marine, shell and finfish resources; and require and issue licenses for the taking of saltwater fishery resources.

The sections submitted for this Routine Program Change are the provisions that specifically address the Commission’s authority to promulgate and enforce regulations to 1) establish and regulate licenses it deems necessary to promote the seafood and marine resources of the state; 2) establish and prescribe penalties; and 3) promote and conserve seafood and marine resources. The statutory provisions being submitted are primarily a recodification giving new section numbers to the statutory provisions already approved by NOAA in the original CMP in 1986. At the time Virginia’s CMP was approved, the Fisheries Management Program was located in Va. Code § 28.1-1 et seq.  In 1992, Title 28.1 was recodified to Va. Code 28.2-100 et seq. The 1992 recodification subdivided some of the previous sections into separate subsections and also consolidated multiple sections into new sections.

Chronology of Changes

  • 1989: The legislature clarified the duration and terms of license revocations and the timing of licensing hearings.
  • 1991: The legislature earmarked a portion of all license fees for the Virginia Marine Products Fund and Marine Fishing Improvement Fund.
  • 1992 : Title 28.1 was recodified to Va. Code 28.2-100 et seq. The 1992 recodification reorganized the previous sections and consolidated others. At the same time, the legislature enacted Sections 28.2-203.1, 28.2-204.1, 28.2-241, and 28.2-243. Legislation clarified fishing prohibitions, licenses, and expiration dates. The legislature reorganized the penalty provisions and changed the penalty for making false statements or altering a license from a simple misdemeanor to a Class 1 misdemeanor.
  • 1993: The legislature modified the license fee scheme from a fixed fee to a graduated fee scheme. The legislature enacted Sections 28.2-226.1 and 28.2-226.2 to require recreational fishermen to obtain a commercial gear license in specific instances and report catch data to the Commission.
  • 1994: The legislature omitted a fee provision that nonresidents pay no less than residents of Virginia.
  • 1995: The legislature enacted Section 28.2-203.1 to establish the blue crab fishery management program and to submit annual progress reports to the Governor. The legislature also enacted Section 28.2-204 granting authority to the Commission to issue gear licenses and promulgate regulations pursuant to the provisions of the section. The legislature moved penalties to elsewhere in Title 28.2, including 28.2-225.
  • 1996: The legislature enacted Section 28.2-228.1 confirming the Commission’s authority to promulgate regulations to establish licenses for the landing of seafood.
  • 1998: The legislature authorized the Commission to issue gear licenses or permits to any person residing on an island at least three miles from the mainland for at least five years.
  • 2004: The legislature made a number of changes relating to fishing license fees. The legislature added a cap for permit fee increases at three year intervals. All money collected from the fee increase will be distributed to the Marine Fishing Improvement Fund and the Virginia Saltwater Recreational Fishing Development Fund.
  • 2006: The legislature assented to the Federal Aid in Sport Fish Restoration Act and provided the Commission the authority to establish fish restoration and management projects under the Act.

The proposed changes do not substantially affect the uses subject to management under the Coastal Zone Management Program, special management areas, boundaries, authorities and organization, or coordination, public involvement and national interest. Virginia requests concurrence in this Routine Program Change.

Description and analysis of each statutory change submitted:


Administration of Game, Inland Fisheries, and Boating Code of Virginia Title 29.1, Chapters 1, 3, 4, and 5.

The submitted changes in Title 29.1, Chapter 1, concern the Commission of Game and Inland Fisheries and the division of its duties and authority to manage inland fisheries.  Changes submitted in Chapter 3 address licenses, Chapter 4 changes concern permits and Chapter 5 addresses wildlife and fish laws.

Chronology of Changes

  • 1987: Title 29 was replaced with Title 29.1. At the time of approval of Virginia’s CMP, former Va. Code § 29-1 et seq. and § 29-3 et seq. set out the duties of the Commission and its Executive Director. The Virginia General Assembly recodified these to Va. Code 29.1-100 et seq., assigning the administration of Game and Inland Fisheries to the Board and the Department. The Board is required to appoint a Director, who carries out the duties previously assigned to the Executive Director of the Commission. The Commission’s authority to promulgate rules and regulations was assigned to the Board. The Virginia General Assembly recodified the Licenses chapter in Va. Code § 29-51 et seq. to Title 29.1-300 et seq. and substituted the term “Commonwealth” for the term “State.” Legislation clarified the fact that persons buying fishing licenses subsequent to arrest or notice of summons could not escape penalties. The Virginia General Assembly recodified former Va. Code § 29-93 et seq. to Va. Code 29.1-400 et seq.  The Commission’s authority to promulgate rules and regulations in former Va. Code § 29-126 et seq., was recodified for the Board at § 29.1-501 et seq.  The legislature amended the publications requirement for new, proposed regulations, the penalties imposed for violating the statute, and prohibitions on the purchase or sale of specified game fish.
  • 1988: For permits regarding the netting of fish, the legislature substituted “three dollars and fifty cents” for “two dollars”, substituted “seventeen dollars and fifty cents” for “ten dollars” and substituted “forty five dollars” for “twenty five dollars.”
  • 1989: The legislature enacted Section 29.1-101.9 to allow the Commission to require fishways not provided for in Section 29.1-532 (formerly Section 29-151).  The legislature specified a Class 3 misdemeanor penalty for hunting, trapping or fishing without a license.  The legislature added an annual $350 nonresident harvester’s permit fee for each boat used to take or catch fish in Back Bay and its tributaries.
  • 1992: The legislature expanded the Board’s duties to include the administration and management of the Virginia Fish Passage Grant and Loan Fund.
  • 1994: The legislature added Subsection E to 29.1-531 that makes it “unlawful to offer for sale, sell, offer for purchase, or purchase at any time or in any manner species of game fish or the carcass or any part thereof, except as specifically permitted by law and only by the mean and within the numbers stated. A violation of the provisions of this subsection shall be punishable as provided in § 29.1-553.”  This prohibition on sale of game fish was previously in subsection B, which prohibited unlawful takes.
  • 1997: The legislature removed fyke nets from the list of specified nets required to obtain a permit.
  • 2000: The legislature expanded the term license to include temporary licenses. The legislature allowed hatchery trout to be sold for other reasons besides human consumption. The legislature also required the Board to establish a trout identification system for those trout offered for sale or for other uses directed by the Board.
  • 2003: The legislature authorized the Board to establish admittance, parking and other use fees at Department owned facilities.
  • 2004: The legislature authorized the Board to establish an annual hunting stamp. In addition, the legislature authorized the Board to promulgate fishing fees.
  • 2006: The legislature defined the duties of the Board chairman. The legislature also required the Board to develop a Governance Manual and subjected the Director of the Department to confirmation and reconfirmation by the General Assembly every four years.
  • 2007: The legislature authorized the Board to increase or decrease license fees for nonresidents by no more than $50, and no more than every three years.

The proposed changes do not substantially affect the uses subject to management under the CMP, special management areas, boundaries, authorities and organization, or coordination, public involvement and national interest. Virginia requests concurrence in this Routine Program Change.

Description and analysis of each statutory change submitted:


Coastal Primary Sand Dunes and Beaches Code of Virginia Title 28.2, Chapter 14.

 The enforceable policies for Coastal Primary Sand Dunes and Beaches remain the same as in the approved CMP. The Routine Program Change submitted herein is intended to update the statutory provisions and references implementing these continuing policies.

Chronology of Changes

  • 1992 : The Coastal Primary Sand Dunes and Beaches Program statutes were, at the time of approval of Virginia’s CMP located in Va. Code § 62.1-13.21 et seq.  The legislature recodified these to Va. Code § 28.2-1400 et seq.  New cross-references were supplied in the newly created sections, and minor changes were made to the description of administrative processes.
  • 1994: The legislature inserted “towns” as authorized acting governing bodies for dunes, which made the statute consistent with the language of the antecedent title and with the wetlands statute.  The legislature authorized the Town of Cape Charles (already within Northampton County which had full authority to adopt a coastal dunes zoning ordinance) to adopt its own ordinance. This did not expand the geographic coverage or substantive standards already in place under the approved CMP.  The legislature also provided for authorized representatives of the Commissioner to sign documents.
  • 1995: The legislature added a cross-reference to 28.2-1503, which expresses the Commission’s stewardship responsibilities for the common lands and waters of the Commonwealth.
  • 1998: The legislature provided that mounds of sand, sandy soil or dredge spoil deposited for beach nourishment or replenishment do not themselves either expand or contract the area of the Commission’s jurisdiction.
  • 2008: Based on findings of the Virginia Institute of Marine Science, the legislature added three indicator species to those helping to define coastal primary sand dunes, in the definitions section.  The legislature also included “all of Tidewater Virginia” among the jurisdictions authorized to adopt the coastal dunes ordinance, 28.2-1403, thus giving the local wetlands boards the same powers throughout the coastal area.

The changes do not substantially affect the uses subject to management under the CMP, special management areas, the boundaries of the coastal zone, authorities and organization, or coordination, public involvement and national interest.

Description and analysis of each statutory change submitted:


Wetlands Code of Virginia Title 28.2, Chapter 13.

The statutory provisions being submitted are primarily recodifications giving new section numbers to the statutory provisions already approved by NOAA as part of the original program in 1986.  The statute was originally found at former Va. Code 62.1-13.1 et seq.  In 1992, the Virginia General Assembly recodified the wetlands statute at Va. Code 28.2-1300 et seq., reorganizing the prior sections for easier use, greater precision and clarity. 

In addition to reorganization, there have been other minor updates to the program including authorizing representatives of the Commissioner of the Virginia Marine Resources Commission (“Commission”) and local wetlands board chairman to sign documents, authorizing the Town of Dumfries in Prince William County to enact a wetlands zoning ordinance, authorizing wetlands boards to appoint alternate members, permitting board members to hold membership on a board established to hear cases involving ordinances adopted pursuant to the Chesapeake Bay Preservation Act, authorizing the Commission to develop administrative procedures to expedite permits, allowing permittees to satisfy compensatory mitigation requirements by the purchase and use of credits from wetlands mitigation banks, and requiring the Commission to notify parties of decisions within 48 hours of the hearing.

Chronology of Changes

  • 1992:  The Wetlands Program statutes were, at the time of approval of Virginia’s CMP, located in Va. Code § 62.1-13.1 et seq. In 1992, the legislature recodified these to Va. Code § 28.2-1300 et seq.   New cross-references were supplied, and minor changes were made to the description of administrative processes.
  • 1994: The legislature allowed the Commissioner and the chairs of local wetlands boards to designate “authorized representatives” to sign documents on their behalf.
  • 1996: The legislature expressly provided in 28.2-1308 that permittees could use credits from wetland mitigation banks to satisfy all or part of any compensatory mitigation required by their permits under this section. This provision made explicit the practice that had already begun under the existing program.
  • 1997: The legislature provided that the Commission could, in conjunction with local wetlands boards, develop expedited procedures for issuing general wetlands permits for use in emergency situations where there is a threat to public or private property or to public health and safety. 28.2-1307. The Commission already had authority to prescribe its own processes for permit issuance.
  • 1999: The legislature further expanded provisions allowing the use of credits from wetland mitigation banks, so that such credits could be generated by the permittee rather than “purchased” and also recognized that state guidance, laws, and regulations now affect the banks that exist and so required that if banks are used they be in compliance with these requirements.
  • 2004: The legislature provided for the designation of “alternates” to sit on local wetland boards and for notification to the boards of foreseen absences by members.
  • 2005: The legislature provided that in addition to other boards that local wetlands board member may sit on, they may also sit on local boards charged with administering the Chesapeake Bay Preservation Act and regulations, a similar board to those already allowed.

Description and analysis of each statutory change submitted:


Wetlands Mitigation-Compensation Policy Virginia Administrative Code, 9VAC20-390-10 et seq

The Commonwealth of Virginia has adopted an interpretive Wetlands Mitigation-Compensation Policy, codified in Virginia’s regulations at 4VAC20-390-10 et seq.  The Policy helps guide implementation of the enforceable policies by the Virginia Marine Resources Commission under the existing Wetlands Program component of the approved CMP. The Commonwealth submits Virginia Administrative Code 4VAC20-390-10 et seq. as a Routine Program Change. The regulations for the Wetlands Mitigation-Compensation Policy were adopted in 1989 and amended in 2005. The policy guides implementation of a portion of the Wetlands Program. 

The policy provisions being submitted and contained in the Wetlands Mitigation-Compensation Policy do not represent substantial changes to the State CMP as they do not address coastal uses or resources not previously managed, or make major changes in the way Virginia’s CMP manages coastal uses or resources.  The Wetlands Mitigation-Compensation Policy, adopted in 1989 and updated in 2005, derives from the mandate adopted originally under § 62.1-13.1 of the Virginia Code (and now codified at § 28.2-1301 describing Powers and Duties of the Commission) “to preserve the wetlands and to prevent their despoliation and destruction and to accommodate necessary economic development in a manner consistent with wetlands preservation.”  It also derives from the approved CMP provisions adopted originally in § 62.1-13.3 (now at § 28.2-1308), providing standards for the “use and development of wetlands” based on ecological significance in determining whether and under what conditions permit applications should be granted or denied. The Policy also implements former § 62.1-13.4 (now at § 28.2-1301), which provides for the development of guidelines to carry out Virginia’s statutory wetlands policy, including the evaluation of vegetated and nonvegetated wetlands types and the consequences of the use of these wetland types.

Chronology of Changes

  • 1989: Wetlands Mitigation-Compensation Policy adopted
  • 2005: Policy updated

Effect of Changes on Program

  • 4 VAC 20-390-20 defines the terms “Compensation” and “Mitigation”
  • 4 VAC 20-390-20 states the policy of the Commonwealth to encourage compensation, in the form of substitute wetland resources, for permitted wetland losses after all mitigation measures have been considered to avoid any wetland impact.
  • 4 VAC 20-390-30 reaffirms the Commonwealth’s reliance on its Wetland Guidelines, approved as part of the original CMP in 1986, and requires that compensation “will be required and implemented” for wetland losses that are “unavoidable.”
  • 4 VAC 20-390-40 defines specific criteria that a proposed permitted wetland loss must meet to be considered for approval and subsequent compensation: (1) the proposal must incorporate all reasonable mitigative actions, which would eliminate or minimize wetland loss or disturbance, including alternate siting; (2) the proposal must be water-dependent; and (3) the proposal must clearly demonstrate the necessity of it’s being located in wetlands and demonstrate “overwhelming public and private benefits.” These provisions are based on the Wetlands Guidelines and the Wetlands Act’s policy statements, both approved as part of the original CMP.
  • 4 VAC 20-390-50 defines supplemental guidelines for compensation for permitted wetland loss and establishes a hierarchical preference for compensatory mitigation in the following sequence: on-site, off-site within the same watershed or mitigation bank in the watershed, proffered payment of an in-lieu fee if on-site and off-site compensation are shown to be impractical given the project location. The authority to impose permit conditions to assure avoidance and compliance is in former Va. Code § 62.1-13.5 (the Wetlands Zoning Ordinance), now codified at Va. Code § 28.2-1302. The guidelines also implement, in part, amendments to the Wetlands Law codified at Va. Code § 28.2-1308, dealing with mitigation banks.

From the beginning of Virginia’s Wetlands Program, compensatory mitigation has been a recognized part of the enforceable mechanisms used to carry out the goals of the law “to preserve wetlands and to prevent their despoliation and destruction and to accommodate necessary economic development in a manner consistent with wetlands preservation” (former Va. Code § 62.1-13.1, now codified at Va. Code § 28.2-1301).

Description and analysis of each statutory change submitted:

The provisions of the Wetlands Mitigation -Compensation Policy submitted as a Routine Program Change do not constitute a substantial change in the approved Virginia Coastal Management Program, special management areas, boundaries of the coastal zone, authorities and organization, or coordination, public involvement and national interest.  Hence Virginia requests concurrence in this Routine Program Change.


NPDES Program Clean Water Act Incorporation.

Pursuant to Section 307(f) of the Coastal Zone Management Act (CZMA), 16 U.S.C. § 1456 (f), and the Program Change Guidance issued in July 1996, by the Office of Ocean and Coastal Resource Management (OCRM) of the National Oceanic and Atmospheric Administration (NOAA), the Virginia Department of Environmental Quality (DEQ) gives notice of its incorporation into the Virginia Coastal Management Program (CMP) of selected requirements for NPDES permits established by the Commonwealth of Virginia pursuant to the Clean Water Act (CWA). 

Under 33 U.S.C. § 1342, the CWA authorizes states to adopt National Pollution Discharge Elimination System (NPDES) Permit Programs subject to U.S. Environmental Protection (EPA) approval. EPA approved the Commonwealth of Virginia’s NPDES Permit Program in 1975. 

In 1987, the federal Water Quality Protection Act amended the CWA, adding CWA   § 402(p), 33 U.S.C. § 1342, in order to clarify the scope of the CWA regulation over storm water discharge. CWA § 402(p) required EPA and state NPDES Permit Programs to implement storm water discharge permit programs for municipal and industrial storm water discharges. Subsequently, the EPA approved Virginia’s Storm water Program in 2004.

In 1989, Virginia received delegation to administer the pretreatment program from the Environmental Protection Agency (EPA).

As required by the Clean Water Act, the EPA promulgated standards for the use of Disposal of Sewage Sludge (Title 40 of the Code of Federal Regulations, Part 503) in 1993.  The requirements in Part 503 are self-implementing, meaning that as long as biosolids are managed in accordance with the federal regulations, a federal permit is not necessary.  Virginia State Water Control Law (§ 62.1-44.19:3) requires that land application of biosolids be managed according to either a VPDES or Virginia Pollution Abatement (VPA) permit. Since federal permits are not required, Virginia has not sought delegation from EPA to administer the biosolids program.

CZMA § 307(f) states that the requirements established by a state or local government pursuant to the Clean Water Act shall be incorporated into any program developed pursuant to the CZMA. Pursuant to Section 307 (f) of the CZMA, the Commonwealth of Virginia now submits for incorporation into the State CMP the following current regulations for the state’s VPDES established pursuant to the CWA and their corresponding CWA provisions.

Corresponding federal regulations next to Virginia’s regulations (PDF)


State Air Pollution Control Board Regulations and Statutes for the Control and Abatement of Air Pollution--Clean Air Act Incorporation.

Pursuant to Section 307(f) of the Coastal Zone Management Act (CZMA), 16 U.S.C. § 1456(f), and the Program Change Guidance issued in July 1996 by the Office of Ocean and Coastal Resource Management (OCRM) of the National Oceanic and Atmospheric Administration (NOAA), the Commonwealth of Virginia gives notice of incorporation of Virginia’s currently applicable enforceable policies found in Title 10.1, Chapter 13 (State Air Pollution Control Board) of the Code of Virginia into the Virginia Coastal Management Program (CMP).

CZMA § 307(f) states that requirements established by a state or local government pursuant to the federal Clean Air Act (CAA) “shall be incorporated” into any program developed pursuant to the CZMA. In 1986, NOAA approved Virginia’s Air Pollution Control Program as a part of Virginia’s original Coastal Resource Management Program, including the Virginia Air Pollution Control Board’s authority to “issue regulations covering air quality throughout Virginia as indicated in the Virginia Code § 10-17.18.” See Virginia Coastal Resources Management Program, Final Environmental Impact Statement p. III-16 (1985). At the time Virginia’s CMP was approved, the Air Pollution Control Board was located in Va. Code § 10-17.1 et seq.  In 1988, Title 10 was recodified to Va. Code 10.1-1300  et seq.  The Commonwealth of Virginia now submits for incorporation into the State CMP the current provisions of Title 10.1, Chapter 13, established pursuant to the CAA.

These provisions address the Air Pollution Control Board’s power and duties to promulgate air regulations and administer Virginia’s State Implementation Plan for the attainment and maintenance of the National Ambient Air Quality Standards. “The Department of Environmental Quality implements the federal Clean Air Act to provide a legally enforceable State Implementation Plan for the attainment and maintenance of the national Ambient Air Quality Standards. The Program is administered by the State Air Pollution Control Board (Code of Virginia § 10-1.1300).”

The provisions being incorporated address the Board’s authority to: 1) promulgate and enforce regulations governing air quality standards, 2)

 

develop and implement programs designed to ensure that Virginia meets national air quality standards, 3) monitor Virginia's air quality, 4) investigate complaints and violations of Virginia's air quality laws, 5) establish and prescribe penalties, and 6) achieve and maintain air quality to protect human health, welfare, and safety.  The provisions also address the powers and duties of the Board’s Executive Director; the Board’s meeting requirements; and the Air Pollution Permit Program Fund.

If you have questions or comments about these Virginia CZM Program updates, contact Beth Polak at beth.polak@deq.virginia.gov  (804.698-4260) or Shep Moon at shep.moon@deq.virginia.gov (804.698-4527).

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For comments or questions concerning this program's web pages, contact the Virginia Witmer.

This website is provided by the Virginia Coastal Zone Management Program through a federal Coastal Zone Management Act grant from the National Oceanic and Atmospheric Administration, US Department of Commerce.

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Virginia Department of
Environmental Quality
P.O. Box 1105
Richmond, VA 23218
(804) 698-4000


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