Virginia Regulatory Town Hall
Department of Environmental Quality
State Water Control Board

General Notice
General Notice - Notice Of Intent To Reauthorize Use Of Virginia Aquatic Resources Trust Fund As A Form Of Compensatory Mitigation Under 9 Vac 25-210-10
Date Posted: 3/26/2019
Expiration Date: 5/15/2019
Submitted to Registrar for publication: YES
No comment forum defined for this notice.

Pursuant to Section § 62.1-44.15:20-23 of the Code of Virginia and 9 VAC 25-210-116D, the State Water Control Board (the “Board”) is giving notice of its intent to reauthorize the Virginia Aquatic Resources Trust Fund (“VARTF”), one of several acceptable forms of compensatory mitigation for permitted impacts to state waters including streams and wetlands, to use the revised program instrument (“Instrument”), after considering public comment for a 30-day period starting April 15, 2019. The Instrument sets out to confirm and update guidelines, responsibilities, and standards for the establishment, use, operation, and maintenance of the VARTF program, for impacts authorized by Department of Army permits, or Virginia Water Protection Permits, and in other cases if agreed upon by the U.S. Army Corps of Engineers, Virginia Department of Environmental Quality, and The Nature Conservancy. The Nature Conservancy intends to achieve no net loss of existing wetland acreage and functions and no net loss of stream functions pursuant to Virginia Code § 62.1- 44.15:21(B), and to accomplish mitigation projects in Virginia efficiently and at beneficial economies of scale to provide for a significant net gain of aquatic resource functions and values where possible.

The Nature Conservancy (“TNC”) remains the sponsor of VARTF, an existing in-lieu fee compensatory mitigation program, which has been in operation in the Commonwealth of Virginia since 1995, in accordance with a Memorandum of Understanding between TNC and the U.S. Army Corps of Engineers (“the Corps”), as amended in 2003.  In 2011, the Virginia Department of Environmental Quality (“DEQ”) participated on a work group with the Corps, TNC, the Environmental Protection Agency (“EPA”), the U.S. Fish & Wildlife Service (“USFWS”), and the National Oceanic & Atmospheric Administration (“NOAA”) to develop the Instrument, bringing VARTF into compliance with the “Federal Mitigation Rule” (33 CFR 332), which governs compensatory mitigation for activities authorized by Corps permits, as well as Virginia State Water Control Law and DEQ’s Virginia Water Protection Permit (VWPP) program. In 2016, DEQ reauthorized the Instrument for a three year period.

The purpose of this reauthorization is to improve the guidelines, responsibilities, and standards set forth in 2016 for the establishment, use, operation, and maintenance of VARTF in compliance with State Water Control Law and the VWPP program.  The revised Instrument satisfies the requirements set forth by the VWPP program in 9VAC 25-210-116D, including:  Dedication to the achievement of no net loss of wetland acreage and functions or stream functions and water quality benefits; consultation with DEQ on site selection; provision of annual reports detailing projects and contributions by watershed; commitment to a program audit every 5 years; and a mechanism to establish fee amounts.  VARTF demonstrated through the 2018 annual report and VARTF Program Update letter significant improvements since the 2016 reauthorization. Lastly, VARTF continues to work in collaboration with the interagency review team for in-lieu fee programs on efforts to advance the VARTF program over time.

The Board proposes to reauthorize VARTF to use the revised Instrument, continuing as a compensatory mitigation option for a ten-year period ending July 14, 2029.  DEQ’s approval will remain in effect until July 14, 2029, provided that the conditions of the Instrument are met. Instrument revisions include: aligning the Instrument with the recently updated Mitigation Banking Instrument (2018); providing transparency through program operation changes; improving long-term management to ensure long-term site sustainability; and increasing fees to cover growing costs of implementing projects. The revised Instrument also includes the following condition: if TNC has not identified a suitable site to offset advance credit sales within two years of that sale, then TNC will release a Request For Proposal to offset the liability by third party mitigation providers.

Approval of VARTF may be made by letter, after accepting and considering public comments on its approval of VARTF for at least a 30-day public comment period pursuant to 9VAC25-210-116 D.  A copy of this public notice and links to the VARTF Program Instrument and Exhibits, and the 2018 VARTF Annual Report will be available by April 15, 2019, on the DEQ website Wetlands and Streams Public Notice page at, under the Program and Regulatory section or by calling or emailing David L. Davis, DEQ Office of Wetlands & Stream Protection.  Written comments, including those by email, must be received no later than 11:59 p.m. on May 15, 2019 and should be submitted to David L. Davis using the contact information given below.  Only those comments received within the comment period will be considered by the Board.  Written comments shall include the name, address, and telephone number of the writer, shall reference “VARTF Reauthorization” in the subject line, and shall contain a complete, concise statement of the factual basis for comments.

Contact Information
Name / Title: David L. Davis 
Address: 1111 East Main Street, Suite 1400
P.O. Box 1105
Richmond, 23218
Email Address:
Telephone: (804)698-4105    FAX: ()-    TDD: ()-