Effective July 1, 2023, the Virginia Marine Resources Commission (VMRC) announced that they will no longer require permits for proposed uses of any non-tidal waters through the Commonwealth of Virginia’s state-owned subaqueous lands, provided that the project proponent “obtains a Virginia Water Protection Permit and complies with all requirements of the Virginia Water Resources and Wetlands Protection Program.” Impacts to non-tidal waters may now only be required to obtain state authorization from the Department of Environmental Quality’s (DEQ) Virginia Water Protection (VWP) Permit Program. A permit will still be required from VMRC for any proposed use of tidal waters involving the Commonwealth’s state-owned submerged lands pursuant to Section 28.2-1203 of the Virginia Code. VMRC is drafting updates to its Subaqueous Guidelines to reflect this change in administration of jurisdiction. This change stems from General Assembly action in 2023 (Chapters 258 and 259) to streamline state-permitting requirements and eliminate duplicative permit application reviews at the state level.
How does this affect my project?
VMRC’s jurisdiction includes all tidal waterbodies and state-owned subaqueous lands with a contributing drainage area of greater than 5 square miles. If a project proponent was impacting or crossing a non-tidal waterbody that falls in that category, a VMRC Permit as well as a DEQ VWP permit would be required. With these changes, if a project proponent receives a VWP permit (General or Individual) from DEQ, there will no longer be a need to obtain a permit from VMRC for impacts to these non-tidal state-owned subaqueous lands. A VMRC permit is still required if a project does not require a DEQ VWP permit, but is still crossing state-owned subaqueous land with a drainage area greater than 5 square mile, for example:
- Using a Corps Regional or Nationwide Permit where the DEQ issues a Section 401 Water Quality Certification;
- Using a Corps Regional or Nationwide Permit where no DEQ Section 401 Water Quality Certification is required;
- Projects involving an aerial or trenchless crossing of a jurisdictional non-tidal stream where no DEQ permit is required.
These changes are applicable only to non-tidal waters. Any crossings or disturbance to tidal waters will still require a VMRC Permit in addition to any appropriate DEQ VWP permit, and related permit fees will apply.
Memorandum of Agreement between DEQ and VMRC
VMRC and DEQ issued a Memorandum of Agreement (MOA) on June 23, 2023 to document this change. Project proponents will no longer need to request a VMRC permit when submitting a Joint Permit Application (JPA) for these affected non-tidal, state-owned subaqueous bottomlands if they are concurrently requesting a permit from DEQ. The MOA states the VMRC has reserved the option of submitting permit conditions to the DEQ for DEQ’s consideration when DEQ is processing their permit for encroachments to non-tidal waters. DEQ is required by the MOA to notify VMRC whenever DEQ is not issuing a permit, so that no communication gaps occur between the agencies.
Need Help?
WSSI understands the implications of this change on projects across Virginia. For more information on this or other regulatory issues, please contact your WSSI project manager or our staff listed here.