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Virginia's Subaqueous Guidelines require an update to maintain alignment with the recently passed SB 1074 and HB 2181 by the 2023 General Assembly (Va. Acts Chs. 258 and 259, codified as § 28.2-1203 A.9 of the Code of Virginia), which became effective from July 1, 2023. Additionally, this update will ensure consistency with the subsequent VMRC/DEQ Memorandum of Agreement. In this legislation, any activity conducted in nontidal waters provided that the person performing such activity obtains a Virginia Water Protection Permit (VWP) and complies with all requirements of the Virginia Water Resources and Wetlands Protection Program pursuant to Article 2.2 (§ 62.1-44.15:20 et seq.) of Chapter 3.1 of Title 62.1, is now not required to obtain a submerged lands encroachment permit from the Virginia Marine Resources Commission (VMRC). Additionally, in determining whether to issue a VWP, the Department of Environmental Quality shall be guided by the factors outlined in subsection A of § 28.2-1205. VMRC’s residual jurisdiction over non-tidal waters for encroachments over or under State-owned subaqueous lands may be reviewed in the VMRC/DEQ Memorandum Of Agreement (MOA) Regarding Permitting in Non-tidal Waters. VMRC subsequently has drafted the necessary updates to its Subaqueous Guidelines in response to the new legislation and retention of its residual jurisdiction over activities impacting State-owned submerged lands in the Commonwealth’s non-tidal waters.

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