State Climate Adaptation Frameworks
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Over the past decade, new laws have been enacted to help Virginia address escalating climate change impacts, including sea level rise, increased flooding, more frequent and severe storms, ecosystem disruptions, and challenges to water quality. As these laws are now being implemented, it’s essential Virginians to stay informed about how the changes are affecting our communities.
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State Level Policy Initiatives & Legislative Frameworks
Background
Degradation of Federal Protections
The Supreme Court's 2023 decision in Sackett v. EPA significantly weakened federal protections for wetlands, resulting in the loss of protections for over 50% of the nation’s wetlands. Without federal oversight, state programs will need to take on a pivotal role in defining and protecting wetlands, particularly those areas that can accommodate tidal wetland migration as sea levels rise. The future of our most valuable natural resources depends on the strength of state and local efforts.
Underfunding of State Agencies
Virginia benefits from longstanding laws that broadly protect its state waters, defined by the General Assembly to encompass "all water, on the surface and under the ground" within its borders, including wetlands. The Virginia Department of Environmental Quality (DEQ) is responsible for regulating activities that impact non-tidal wetlands through the Virginia Water Protection Program, which has adopted a policy of no net loss of wetland acreage or function.
Unfortunately, these efforts are severely constrained by a lack of personnel and funding. DEQ has reported in recent years that to compensate for diminished federal wetlands protections, new funding would be required to hire and train additional staff. In 2012, Virginia estimated that creating a wetlands permitting program as comprehensive as the federal Clean Water Act Section 404 program would require $18 million in initial costs and $3.4 million annually. (To clarify: we are not supporting Virginia’s assumption of 404 permitting, but with the hole left by Sackett, our state needs more to do its job now more than ever.) It is evident that agencies overseeing Virginia's wetlands programs — including DEQ, the Virginia Marine Resources Commission (VMRC), and local wetlands boards — need far more resources to effectively fulfill their mandates.
State Tools
Virginia has a number of key policy instruments for wetlands protection, including the Virginia Tidal Wetlands Act, the Non-Tidal Wetlands Act, the Chesapeake Bay Preservation Act, the Coastal Resilience Master Plan, and the Virginia Water Protection Act. These tools will continue to be critical in safeguarding wetlands in the absence of robust federal protections.
The Chesapeake Bay Preservation Act is designed to protect the health of the Chesapeake Bay and its watershed by regulating land use in designated areas known as Resource Protection Areas (RPAs). Wetlands, both tidal and non-tidal, within these RPAs receive heightened protection due to their critical role in maintaining water quality by filtering pollutants before they reach the Bay.
The Act limits development in these sensitive areas, mandating best management practices to reduce runoff and erosion. This legislation ensures that wetlands along the Bay and its tributaries remain intact and functional, contributing to the broader ecological health of the watershed.
The Virginia Tidal Wetlands Act provides a regulatory framework for the management and protection of tidal wetlands, which are key ecosystems located along coastal shorelines. The Act requires that any alteration or development impacting tidal wetlands be carefully reviewed by local wetlands boards and the Virginia Marine Resources Commission (VMRC).
It emphasizes the preservation of the ecological functions of these wetlands, including their role in reducing storm surge, filtering pollutants, and supporting wildlife habitats. The Act mandates that projects affecting tidal wetlands prioritize avoiding, minimizing, and mitigating adverse impacts, thereby safeguarding these areas from excessive development and degradation.
Virginia's Coastal Resilience Master Plan serves as a strategic framework to address the impacts of sea level rise, recurrent flooding, and coastal erosion on the Commonwealth’s wetlands and communities. Wetlands play a key role in the plan's approach to natural resilience by acting as buffers that absorb floodwaters and reduce the intensity of storm surges. The Master Plan emphasizes the protection and restoration of wetlands as a priority for enhancing the state's capacity to withstand climate change impacts.
The Virginia Water Protection Act, Virginia’s “Non-Tidal Wetlands Act,” establishes a comprehensive permitting system for activities that may alter surface waters, including Virginia’s non-tidal wetlands. The Act empowers the Department of Environmental Quality to regulate discharges, withdrawals, and other impacts on state waters, ensuring that wetlands are preserved as critical components of Virginia's hydrological systems.
This Act is central to Virginia’s Sackett defense, as the wetlands protected through this law are those that the federal government is no longer protecting because the Sackett decision does not consider them to be wetlands. Under the Sackett rule, Waters of the US include only those wetlands that have a “continuous surface connection.” In Virginia, we understand that science does not support this definition and wetlands often have an underground surface connection that the eyes cannot see. Read our blog post to learn more about our opinion on Sackett and the importance of upholding Virginia’s Non-Tidal Wetlands Act.
Localities are encouraged to adopt nature-based solutions, like living shorelines and wetland restoration, as part of their efforts. Revenue for the fund is generated primarily from Virginia's participation in the Regional Greenhouse Gas Initiative (RGGI).
Virginia's Community Flood Preparedness Fund (CFPF) is a state-managed program designed to support localities/regions in planning for and mitigating flood risks, with a strong emphasis on promoting climate adaptation. The fund provides grants and loans to assist with flood prevention, protection, and adaptation projects, particularly in communities that face recurrent flooding and have fewer resources to implement flood mitigation measures.
The Regional Greenhouse Gas Initiative (RGGI) is a cap-and-trade program involving Northeastern and Mid-Atlantic states, focused on reducing greenhouse gas emissions from the power sector. Established in 2009, RGGI sets a regional cap on carbon dioxide (CO2) emissions, which decreases over time. Power plants must buy allowances for each ton of CO2 they emit, creating financial incentives to lower emissions.
In Virginia, when we participated in RGGI, auction proceeds were reinvested in energy efficiency, renewable energy, and climate resilience projects, supporting both emissions reduction and economic growth. RGGI serves as a model for effective climate policy.
Virginia’s Clean Energy and Community Flood Preparedness Act of 2020 mandates the Commonwealth's participation in the Regional Greenhouse Gas Initiative (RGGI) as part of its broader strategy to reduce carbon emissions and enhance climate resilience.
Governor Glenn Youngkin unilaterally—and we believe illegally—withdrew Virginia from RGGI. This withdrawal was completed on July 31, 2024.
This action is now being challenged in the courts.