VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY NOTICE OF TENTATIVE SECTION 401 WATER QUALITY CERTIFICATION OF PROPOSED ARMY CORPS OF ENGINEERS

REGIONAL PERMIT 23-RP-11 FOR CERTAIN VIRGINIA DEPARTMENT OF TRANSPORTATION ROADWAY AND RAILWAY PROJECTS

August 30, 2023

Summary: On August 21, 2023, 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 11 (RP-11) and its general conditions. The current 19-RP-11 will expire on September 20, 2023.

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 the Norfolk District Regional Permit 23-RP-11, as attached to this notice. While DEQ conditionally certified the 2019 version of this regional permit, this tentative conditional certification adds to the specific condition(s) being applied. This notice is requesting public comment beginning August 30, 2023.

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 September 29, 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; or 3) 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

23-RP-11 for Certain Virginia Department of Transportation Roadway and Railway Projects

The Virginia Department of Environmental Quality (DEQ) grants this conditional water quality certification (WQC) for the United States Army Corps of Engineers (USACE) 2023 Regional Permit 11 (23-RP-11) authorizing certain Virginia Department of Transportation roadway and railway projects involving work, structures, and filling in waters of the United States (WOTUS), effective by September 2023, 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); Virginia Administrative Code 9VAC25-210 et seq. (Virginia Water Protection Permit Program); and Virginia Administrative Code 9VAC25-260 et seq. (Virginia Water Quality Standards).

This WQC applies to any activity or activities (hereafter “activities”) 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 23-RP-11 and this WCQ as detailed below:

WQC Condition 1: Application to DEQ shall be required for any proposed project that involves surface water withdrawals (9VAC25-210-300) or activities related to the withdrawal of surface water, including but not limited to all activities related to intakes, reservoirs, diversions, and water supply impoundments or dams, in accordance with Virginia Administrative Code 9VAC25-210 et seq. and State Water Control Law. A DEQ VWP decision shall need to have been finalized prior to the project proponent conducting surface water withdrawal activities. If a DEQ VWP general permit coverage or individual permit is issued, it shall be based on all impacts of the proposed activities in or on surface waters, 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.

WQC Condition 2: VDOT shall copy DEQ-Office of Wetland and Stream Protection, Central Office, on all documentation meeting the requirements of Part IV Notification Requirements of the 23-RP-11, including comprehensive and up-to-date documentation on the potential presence of federally-listed and state-listed, threatened or endangered species.

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 et seq.; 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. and 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.