Nutrient Credits

On January 1, 2021, 9VAC25-900-91.B, which imposes additional restrictions on the use of nutrient credits, went into effect. The regulation includes provisions to protect local water quality by limiting the use of credits in areas with local nutrient TMDLs or with waters that are impaired for benthics, nutrients, dissolved oxygen, or chlorophyll-a, but do not have a TMDL in place to address these impairments. 

Guidance on the implementation of this regulation will be available for public comment in the spring.  DEQ will hold a webinar series to provide training and answer questions.  Additionally, staff are working on a dataviewer that will aid in decision making for all stakeholders.  The latest version of the dataviewer is available here:  https://vadeq.maps.arcgis.com/apps/webappviewer/index.html?id=227927eefaf64c47853c081760077216.

Below is information on how the new regulations should be implemented for new and existing land-disturbing activities. Credit use is ultimately reviewed and approved by the permitting authority; however, DEQ expects nutrient bank brokers and sponsors to be aware of the new regulations and to do basic due diligence when making sales, as you have done previously when checking if a project is within your service area.  Please be aware that letters of credit availability issued prior to January 1, 2021, will be honored as long as they refer to a specific project, nutrient bank, and credit amount.  These grandfathered letters of credit availability may not be transferred between banks or land disturbing activities.

Existing Projects: Letters of Credit Availability dated before January 1, 2021, should be honored by the VSMP authority if they are in the same or adjacent HUC-8 as the land disturbing activity (LDA).  If the letter of credit availability is no longer valid because the bank has sold out, the permit applicant will be required to follow the new regulations in 9VAC25-900-91.

New Projects: All land disturbing activities without letters of credit availability dated before January 1, 2021, must follow the new regulations as follows:

1.  The discharge from the LDA should be traced downstream to the first assessed waterway (dark blue or red).  If the first assessed waterway has no applicable impairment (dark blue), credits may be purchased from the same or adjacent 8-digit HUC.

2.   If the first assessed waterway downstream of the LDA has an applicable impairment (red) as shown on the dataviewer, credits should be purchased in accordance with the following hierarchy:

a.       Upstream of where the discharge reaches impaired waters, if credits are available;

b.       Within the same 12-digit HUC, if credits are available;

c.       Within the same 10-digit HUC, if credits are available;

d.       Within the same 8-digit HUC, if credits are available;

e.       Within an adjacent 8-digit HUC within the same tributary, if credits are available; or

f.        Within the same tributary.

3.       Discharges within a watershed with a local nutrient TMDL 

Local TMDL waters are identified by cross hatched areas within the data viewer.  If the LDA is in an area covered by a local nutrient TMDL, trace the discharge from the project until a) it reaches a stream with a relevant impairment or b) it leaves the TMDL area. 

a.       The project must purchase credits generated upstream from where the discharge reaches impaired waters (red).  (Note that the credit-generating bank must be upstream of where the discharge from the LDA reaches the impaired water, not necessarily upstream of the LDA itself.  In some instances, the LDA discharge will travel through unassessed or unimpaired streams before reaching an impairment.)

b.       If the discharge leaves the TMDL area without reaching a relevant impairment (red), credits may be purchased from the same or adjacent 8-digit HUC.

 At no point should a project be allowed to purchase credits outside of the tributary.

Please note that these procedures are subject to modification upon completion of the proposed guidance.  If you have any questions, please reach out to the Office of Stormwater Management at [email protected].