Laws and Regulations

The United States and Virginia have laws and regulations that are intended to protect and conserve wetlands. It is through the efforts of the regulatory agencies at the federal, state and local levels that these laws and regulations are implemented. Most activities that directly impact vegetated and non-vegetated wetlands and shallow water areas are regulated. That generally means that a person or company planning an activity that would disturb wetlands or shallow water habitat must obtain wetlands permits before beginning the project. The applicant must obtain permits from all of the permitting agencies before the project can begin. The applicant will be required to minimize the environmental impacts. Compensation for unavoidable wetlands impacts may be required.

Federal Laws and Regulations

Executive Order 11990 — President Carter, 1977, ended the official policy of federal assistance for wetlands conversion and directed all agencies to minimize wetland impacts in their regulations.

The National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4347) was the first U.S. law to focus environmental concerns within a comprehensive national policy. It’s purposes, as stated in the Act, are "To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality."

NEPA requires that in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official must be made on --

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

 

The U.S. Army Corps of Engineers is the federal agency that regulates wetlands disturbing activities. It does so under the Clean Water Act, Section 401(33U.S.C 1341) or 404 (33 U.S.C 1344), and the Rivers and Harbors Act, Section 10 (33 U.S.C 403). There are five Corps Districts that have jurisdictions in Virginia: the Baltimore, Norfolk, Wilmington, Huntington and Nashville Districts. The Norfolk District and the Baltimore District have jurisdiction over the Chesapeake Bay Watershed. The Huntington and Nashville Districts handle non-tidal wetlands permits in western Virginia. The Wilmington District manages certain Virginia reservoir and recreational facilities.

Environmental Protection Agency (EPA) — writes guidelines for determining whether a particular activity that will affect wetlands can be permitted and how it should be evaluated; reviews/comments on individual permit applications; has authority to veto the Corps' permit decisions.

Section 401 of the Clean Water Act (33 USC 1341) — requires state certification of permit compliance with federal laws, regulations and standards.

Section 404 of the Clean Water Act (33 USC 1344)- The basic premise of the law is that no discharge of dredged or fill material can he permitted if a practicable alternative exists that is less damaging to the aquatic environment or if the nation's waters would be significantly degraded. In other words, when you apply for a permit, you must show that you have:
    • taken steps to avoid wetland impacts where practicable
    • minimized potential impacts to wetlands
    • provided compensation for any remaining, unavoidable impacts through activities to restore or create wetlands

Section 404(b)(1) Guidelines provide guidance to the Corps and require consideration of "practicable alternatives," "water dependency," and "minimization."

Section 10 of the Rivers and Harbors Act of 1899 (33 USC 403) — "…and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure (sic) within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same."

Corps of Engineers regulations - Like the state and local regulatory agencies, the Corps regulates wetlands disturbing activities by issuing wetlands permits. Code of Federal Regulations Title 33, Parts 320 to 330, provide detailed standards and procedures for wetlands permitting. There are Nationwide and Regional Permits which allow certain activities with "minimal impacts" to occur without public notice and there are Individual Permits that are issued only after public notice for projects with significant impacts.

State and Local Laws and Regulations

Environmental protection is established in the Virginia Constitution - Article XI, Section 1: "To the end that the people have clean air, pure water, and the use and enjoyment for recreation of adequate public land, waters, and other natural resources, it shall be the policy of the Commonwealth to conserve, develop, and utilize its natural resources, its public land, and its historical sites and buildings. Further, it shall be the Commonwealth’s policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction for the benefit, enjoyment, and general welfare of the people of the Commonwealth."

State law makes wetlands protection, in particular, mandatory and gives regulatory authority to the Virginia Department of Environmental Quality and the Virginia Marine Resources Commission. The Virginia Wetlands Act of 1972 states: "Therefore, in order to protect the public interest, promote the public health, safety and the economic and general welfare of the Commonwealth, and to protect public and private property, wildlife, marine fisheries and the natural environment, it is declared to be the public policy of this Commonwealth to preserve the wetlands, and to prevent their despoliation and destruction and to accommodate necessary economic development in a manner consistent with wetlands preservation (emphasis added)."

Department of Environmental Quality (DEQ) — In accordance with Section 401 of the federal Clean Water Act certifies, denies or attaches conditions to wetlands permits issued under Section 404 of the Clean Water Act through the Virginia Water Protection Permit program.

Virginia Marine Resources Commission (VMRC) — regulates the marine resources of the Commonwealth, including tidal wetlands. Reviews local wetlands board decisions to ensure that they meet the intent of the Virginia Wetlands Act.

 

1972 Virginia Wetlands Act

The law of the Commonwealth recognized the environmental value of tidal wetlands; established a permitting system for their protection; and authorized a network of local wetlands boards to make conservation-vs-development judgments on projects within the individual localities. The Act lead to additions to the Code of Virginia to empower DEQ and VMRC to issue wetlands permits.

 

Chapter 13 of Title 28.2 of the Code of Virginia — authorizes VMRC and Wetlands Board permits

Under Chapter 13 of Title 28.2 of the Code of Virginia, any activity that would disturb a tidal wetland area is regulated and permits from the Virginia Marine Resources Commission (VMRC) and the local Wetlands Board are required. Localities adopt ordinances to implement this state law. According to Virginia’s Wetlands Guidelines, published by VMRC to supplement its regulations, tidal wetlands regulatory jurisdiction extends to the mean high tide line where no emergent vegetation exists, and to 1.5 times the mean tide range where marsh is present. The Wetlands Guidelines were revised in 1982 to include beaches, tidal mudflats and shallow water habitats along with vegetated wetlands as protected areas.

Chapter 12 of Title 28.2 of the Code of Virginia also gives to the Virginia Marine Resources Commission authority to grant permission to encroach on State-owned shallow water areas. Its publication Subaqueous Guidelines, published to supplement its regulations, describes the policies and procedures for the permitting of activities directly affecting the submerged lands of Virginia. Dredging, filling and building on shallow water areas are regulated as well as establishing moorings and marinas. According to the Subaqueous Guidelines, a permit is required to build on, dump into or encroach upon the beds of the bays and ocean, rivers, streams, creeks that are the property of the Commonwealth. Most such areas are the property of the Commonwealth.

Virginia Code Title 28.2 — authorizes local wetlands boards

Wetlands Boards are citizen boards which review, issue, and enforce permits for wetlands disturbing activities located within its jurisdiction — usually a county or municipality.

Most adopt the "model wetlands zoning ordinance." The ordinance, set forth in Virginia Code Section 28.2-1302, requires that "Any person who desires to use or develop any wetland within this ............. (county, city, or town), other than for the purpose of conducting the activities specified in § 3 of this ordinance, shall first file an application for a permit directly with the wetlands board or with the Commission."

VMRC regulations - Title 4 of the Virginia Administrative Code, Sections 120 to391-10, provides detailed standards and procedures for wetlands permitting by VMRC and wetlands boards.

Wetlands Guidelines — Prepared by VMRC and the Virginia Institute of Marine Science (VIMS), the Wetlands Guidelines provide guidance to wetlands boards and to VMRC to aid in "preserving wetlands while accommodating necessary economic development."

 

Virginia Code Sections 62.1-44.2 et seq. and 62.1-44.15:5 — authorizes DEQ permits

The Virginia Department of Environmental Quality (DEQ) regulates wetlands disturbing activities under Virginia Code Sections 62.1-44.2 et seq. and 62.1-44.15:5. DEQ’s Virginia Water Protection (VWP) Program regulates wetlands disturbing activities by issuing Virginia Water Protection permits for both tidal and non-tidal wetlands. DEQ issues General Permits without public notice for certain activities involving "minimal impacts." Individual Permits with public notice are issued for projects with significant impacts. Individual tidal wetlands permits are issued pursuant to Section 401 of the Clean Water Act Amendments of 1977.

 

DEQ regulations - Title 9 of the Virginia Administrative Code, section 25-210-10 to 25-210-260, section 25-660-10 to 25-660-100 and section 25-690-10 to 25-690-100 provide detailed standards and procedures for wetlands permitting by DEQ.

 

Virginia Code Section 10.1et seq

Virginia’s Chesapeake Bay Preservation Act (Virginia Code Section 10.1et seq.) provides additional state authority for protecting and conserving wetlands. This is the law that brought Virginia into the Chesapeake Bay Program, the multi-state effort to restore the Bay. According to the Virginia Chesapeake Bay Preservation Act, upland activities near the water are regulated and require permits. These include building and tree cutting and pruning near the water. The law provides authority for the Chesapeake Bay Local Assistance Board which develops regulations to: "protect and improve the water quality of the Chesapeake Bay, its tributaries, and other state waters by minimizing the effects of human activity upon these waters …"

Chesapeake Bay Program regulations — Title 9 of the Virginia Administrative Code section 10-20-10 et seq. establishes buffer zones in which shoreline development is regulated and limited.