Summary: On May 23, 2022, the U.S. Army Corps of Engineers (Corps) Norfolk District published a notice of their proposed reissuance, without modifications, of the Norfolk District Regional Permit Regional Permit 22-RP-05 and its general conditions. The current 16-RP-05 expired on June 9, 2022.

Purpose of this notice: The Virginia Department of Environmental Quality (DEQ) is giving notice of its tentative Section 401 Water Quality Certification decision to CONDITIONALLY CERTIFY Section 401 Water Quality Certification for the Norfolk District Regional Permit 22-RP-05, as attached to this notice. This is not a change from our previous conditional certification of this regional permit. This notice is requesting public comment beginning December 2, 2022.

How to comment: Comments shall include the full name, address and telephone number of the person commenting and be received by DEQ by 11:59 p.m. on January 3, 2023. Only those comments received within this period will be considered by DEQ. DEQ accepts written comments by the following methods: 1) hand-delivery to Virginia Department of Environmental Quality, Office of Wetlands & Stream Protection, 1111 East Main Street, Suite 1400, Richmond, Virginia 23219; 2) e-mail vwppublicnotices@deq.virginia.gov; 3) fax 804-698-4178; or 4) postal mail to Virginia Department of Environmental Quality, Office of Wetlands & Stream Protection, P.O. Box 1105, Richmond, Virginia 23218.

Contact person for technical issues with comment submittal: Dave Davis, Office of Wetlands & Stream Protection, Virginia Department of Environmental Quality, P.O. Box 1105, Richmond, Virginia 23218 or phone 804-698-4105.

Section 401 Water Quality Certification of
22-RP-05 for the Construction of Small Impoundments

The Virginia Department of Environmental Quality (DEQ) grants conditional water quality certification (WQC) for the United States Army Corps of Engineers (USACE) 2022 Regional Permit 05 (22-RP-05), pursuant to § 401 of the Clean Water Act of 1977 (33 U.S.C. § 1341); Title 62.1 of the Code of Virginia, including Chapter 3.1 (State Water Control Law); and Virginia Administrative Code 9VAC25-210 et seq. (Virginia Water Protection Permit Program) and 9VAC25-260 et seq. (Virginia Water Quality Standards).

This WQC applies to activities authorized by 22-RP-05 in those waters of the United States and in all state surface waters in Virginia regulated pursuant to the laws and regulations of the Commonwealth.

DEQ finds that there is a reasonable assurance that the discharge from activities authorized by this permit will comply with water quality requirements and will be conducted in a manner which will not violate applicable water quality standards, provided the permittee abides by all conditions and requirements contained in the 22-RP-05 and this WCQ as detailed below:

WQC Conditions: Application to DEQ shall be required in accordance with Virginia Administrative Code 9VAC25-210 et seq., 9VAC25-660 et seq., or 9VAC25-690 et seq, and State Water Control Law, for i) coverage under a Virginia Water Protection (VWP) general permit, (ii) a VWP individual permit, or (iii) a decision that no permit is required (in situations where VWP permitting exclusions apply). A DEQ VWP permit, coverage, or decision shall need to have been finalized prior to the project proponent impacting any surface waters. If a DEQ VWP general permit coverage or individual permit is issued, it shall be based on all impacts of the proposed activities in surface waters under both state and federal jurisdiction, pursuant to applicable permit regulations and State Water Control Law. Compensatory mitigation may be required for all permanent impacts. Other permits may be required from DEQ based on the proposed activities or impacts.

40 C.F.R. § 121.7(d)(2)(i): This condition is necessary in order to assure that i) any discharge authorized under the general license or permit will comply with water quality requirements; ii) activities will not cause or contribute to a significant impairment of state waters or fish and wildlife resources; and iii) state water quality requirements are met, including the General Criteria (9VAC25-260-20 et seq.): “State waters, including wetlands, shall be free from substances attributable to sewage, industrial waste, or other waste in concentrations, amounts, or combinations which contravene established standards or interfere directly or indirectly with designated uses of such water or which are inimical or harmful to human, animal, plant, or aquatic life.”

40 C.F.R. § 121.7(d)(2)(ii): Article XI, Section 1 Constitution of VA; Title 62.1 of the Code of Virginia; Chapter 3.1 of Title 62.1 of the Code of Virginia (§§ 62.1-44.2 through 62.1-44.34:28) [§ 62.1-44.2 through -44.6, § 62.1-44.15, § 62.1-44.15:01, § 62.1-44.15:4.1, § 62.1-44.15:5.1, § 62.1-44.15:5.2, § 62.1-44.15:20, § 62.1-44.15:21, § 62.1-44.15:24, § 62.1-44.15:25, § 62.1-44.15:28, § 62.1-44.15:28.1, § 62.1-44.15:31, § 62.1-44.15:34, § 62.1-44.15:40, § 62.1-44.15:50, § 62.1-44.15:52, Article 2.5 of Title 62.1 (§§ 62.1-44.15:67 through § 62.1-44.15:79), § 62.1-44.19:5]; § 10.1-400 et seq.; § 10.1-604 et seq.; § 10.1-1408.5; § 28.2-1300 et seq.; § 62.1-7; § 62.1-8; § 62.1-10; § 62.1-11; § 62.1-194 through -194.3; 9VAC25 - Preface (Agency Summary); 9VAC25-31 et seq.; 9VAC25-40 et seq.; 9VAC25-210 Sections 10 through 230 and 500; 9VAC25-260 et seq.; 9VAC25-380 et seq.; 9VAC25-401 et seq.; 9VAC25-410 and 415 et seq.; 9VAC25-630 et seq.; 9VAC25-660 et seq. or 9VAC25-690 et seq., as applicable; 9VAC25-720 et seq.; 9VAC25-820 et seq.; 9VAC25-830 et seq.; 9VAC25-840 et seq.; 9VAC25-870 through 890 et seq.; 33 U.S.C. § 1251 et seq.; 33 U.S.C. § 1313(d); 33 U.S.C. § 1315(b); 33 U.S.C. § 1317(a); 33 U.S.C § 1341 et seq.; 33 U.S.C § 1344 et seq.; 33 U.S.C. § 1370;  33 C.F.R. Part 332; 40 C.F.R. § 121 et seq.; 40 C.F.R. § 131 et seq.; Public Law 95-217

Non-compliance with Title 62.1 of the Code of Virginia, including the State Water Control Law, or applicable Virginia Water Protection Permit Program regulations, or otherwise violating Virginia state water quality standards, may result in civil penalties.

DEQ reserves its right to revise this WQC based on any future amendments to state or federal permits, laws, or regulations. DEQ's WQC neither replaces or supersedes requirements set forth by other local, state, federal, and Tribal laws, nor eliminates the need to obtain additional permits, approvals, consultations, or authorizations as required by law before proposed activities may commence.