Navigating the Permit Process
Several agencies are involved in regulating wetland-disturbing activities in Virginia:
Local - Wetlands Boards implement the provisions of the Tidal Wetlands Act, and work under the oversight of the Virginia Marine Resources Commission (VMRC) and are responsible for the issuance of permits for impacts in the intertidal zone, which is essentially the land exposed at low tide and covered by water at high tide (subaqueous land).
State/Local - While not part of the wetlands, a 100-foot-strip (shoreline buffer) of your property landward of the shoreline comes under the regulatory authority of the Chesapeake Bay Preservation Act. You will need to apply for an exception to the Chesapeake Bay Act regulations to undertake any building project or significant alteration of vegetation within the buffer. This program is administered by local government.
State - The Virginia Department of Environmental Quality (DEQ) must issue a Virginia Water Protection Permit for impacts to both tidal and non-tidal wetlands and shallow water habitat. If there are impacts to “subaqueous land” – land submerged at low tide, the VMRC must issue a separate permit for that.
Federal - The U.S. Army Corps of Engineers , under provisions of the Clean Water Act and the Rivers and Harbors Act, must issue a federal permit for impacts to both tidal and non-tidal wetlands and shallow water habitat.
Joint Permit Application
To simplify the permit application process, the Local, State and Federal regulatory agencies use the same application form called the “Joint Permit Application” or "JPA" . For most activities that would directly disturb either tidal or non-tidal wetlands or shallow water habitat, the JPA is completed and submitted to the Virginia Marine Resources Commission. You can download a pdf version of the JPA or a copy can be obtained from VMRC or any local Wetlands Board. Many applicants find they need an environmental consultant’s help in preparing the application. For most wetlands disturbing activities a permit from some or all of the following agencies will be required: U.S. Army Corps of Engineers, Virginia Department of Environmental Quality (DEQ), and the local Wetlands Board.
(There are a few exceptions to the requirement to submit a Joint Permit Application. The most common one is for open pile piers that meet certain criteria. If you have any question about whether your project requires a Joint Permit Application, contact the VMRC or your local Wetlands Board.
Upon receipt, VMRC distributes the application to the other agencies that need to issue permits or review the application. Each regulatory agency performs its own review of the application, if it has jurisdiction, according to its governing laws and regulations and issues its own permit. There is no chronological order to this process. Any one of the agencies can “go first.” The process can be brief or long depending on the size and complexity of the project and whether or not it is contested by a neighbor or other party.
Adjacent landowners are notified of the application and, in most cases, a public notice is published in the newspaper and on agency websites. Interested parties may comment on the application in writing. These comments have to be received by the permitting agency within certain time frames that are advertised in the public notice. The local Wetlands Boards, VMRC and DEQ publish their public notices in the newspaper and VMRC and DEQ also list their public notices on their web sites. The Corps of Engineers publishes its public notices only on their District web sites.
Shoreline Permit Application Report
The Virginia Institute of Marine Science (VIMS) is responsible for providing an environmental assessment of projects for which applications have been filed. The VIMS report describes the conditions at the project location, the extent of the proposed impacts (square footage) and may include changes that would reduce impacts. CCRM has a tutorial on the JPA.
At the end of the public comment period, a public hearing is held by the local Wetlands Boards. Protested applications for a VMRC permit for projects costing over $50,000 receive a public hearing at VMRC in Newport News. Citizens can speak in support of or opposition to the permit application. Sometimes DEQ and the Corps of Engineers will hold public hearings if there is strong demand from the public and the matter is very controversial.
Chesapeake Bay Preservation Act
The Chesapeake Bay Preservation Act is the Virginia law that brings the state into the federal Chesapeake Bay Program. The Act provides for the definition and protection of lands near the shore called Chesapeake Bay Preservation Areas. Local government comprehensive plans and ordinances must conform to the provisions of the Act. Contact your local CPBA representative to learn what you must do before:
- Pruning or cutting any wetlands vegetation
- Pruning or cutting down trees within 100 feet of the shoreline
- Building or modifying structures within 100 feet of the shoreline
A homeowner can apply for an "exception" (not a permit) to CBPA regulations regarding construction, alteration of vegetation, etc. Public notice is required for exceptions to the Chesapeake Bay Preservation Act, thereby giving opportunity for citizens to comment in support of or opposition to requested exceptions. The procedures for applying for exceptions are contained in local ordinances. Different communities have different ways of reviewing and approving Bay Act exceptions.