Laws and Regulations

It will be easier to navigate the wetlands regulatory system if you know something about the laws and regulations that govern the system. Both the federal government and the Commonwealth of 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 agencies that have jurisdiction before the project can begin. The applicant will be required to minimize the environmental impacts. Compensation for unavoidable wetlands impacts may be required.

Be aware that once land is zoned for development, or a subdivision plan has been filed with the locality, your options are limited.  Wetlands laws state that any wetlands saving actions must be "practicable," meaning you have to consider "cost, existing technology, and logistics in light of overall project purposes."   "Overall project purposes?"  That means if  I have county X's zoning approval to put a subdivision next to these wetlands and if I cannot put this subdivision in (the purpose of this project) because the environmental measures you want are too costly or cannot be done with existing technology - then I get to go ahead and the wetlands get filled.  All I have to do then is write a check to a wetlands bank to "pay for" the wetlands I destroyed!


Unfair?  Reality.

Federal Laws & 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.”

Summary of the Clean Water Act

33 U.S.C. §1251 et seq. (1972)

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).

The Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters. The basis of the CWA was enacted in 1948 and was called the Federal Water Pollution Control Act, but the Act was significantly reorganized and expanded in 1972. "Clean Water Act" became the Act's common name with amendments in 1977.Under the CWA, EPA has implemented pollution control programs such as setting wastewater standards for industry. We have also set water quality standards for all contaminants in surface waters.The CWA made it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained. EPA's 
National Pollutant Discharge Elimination System (NPDES) permit program controls discharges. Point sources are discrete conveyances such as pipes or man-made ditches. Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters.


The Clean Water Act PDF of CWA, from U.S. Senate

Section 10 of the Rivers and Harbors Act of 1899

33 U.S.C. 403

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).  A brief summary can be found HERE.

Original Language:  "That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of War; 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 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."
  

State and Local Laws & 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.”

The Virginia Tidal Wetlands Act of 1972

State law makes wetlands protection, in particular, mandatory and gives regulatory authority to the Virginia Marine Resources Commission (VMRC) and, later, the Virginia Department of Environmental Quality.

The 1972 Wetlands Act 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 led to additions to the Code of Virginia to empower VMRC, and later, DEQ to issue wetlands permits. The 1972 law regulates tidal wetlands and is administered by the Virginia Marine Resources Commission (VMRC)  and, through VMRC, by local government wetlands boards.

The passage of this law in 1972 was ground-breaking, since the federal Clean Water Act was expanded that same year to include wetlands regulation. 

 

The Virginia Tidal 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)."

The Tidal Wetlands Act is now Chapters 12 and 13 of the Code of Virginia - described in the next tabs.

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, (the updated version of the 1972 Virginia Wetlands Act) any activity that would disturb a tidal wetland area is regulated and permits from the Virginia Marine Resources Commission and the local Wetlands Board are required. Localities adopt ordinances to implement this state law. According to Virginia’s Wetlands Guidelines (2.2 mb pdf file), 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

Chapter 12 of Title 28.2 of the Code of Virginia also gives to the Virginia Marine Resources Commission regulation over any activities that disrupt 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. 

This authority recognizes the value of this shallow-water habitat for fish, shellfish, and oysters and seeks to protect it.

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 Virginia Administrative Code 9 VAC 25-210 et seq. and Section 401 of the Clean Water Act Amendments of 1977.

A summary of DEQ's regulatory authority can be found on their website.

Chesapeake Bay Preservation Act

Virginia’s Chesapeake Bay Preservation Act (CBPA) (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, passed in 1988, 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 …” The regulations (9VAC 10-20-10 et seq.) establish buffer zones in which shoreline development is regulated and limited.

The most significant focus of the CBPA is on local land use planning at the local level.  The CBPA requires that for designated tidal water localities long range land use plans, zoning ordinances, subdivision ordinances, and erosion and sediment control ordinances for each locality covered by the Act comply with the standards and goals of the CBPA.  This is the first significant linkage between land use and protection of the shoreline ecosystem in Virginia law.

 The program is located within the Virginia Department of Conservation and Recreation and is administered by the 39 municipalities covered by the Act (for a list of the localities and contacts, go to http://www.dcr.virginia.gov/chesapeake_bay_local_assistance/documents/local_status_contacts.pdf  The standards for the program’s operation are found within the Chesapeake Bay Program regulations

The CBPA has never reached it full potential, due to opposition from a variety of fronts. Budget cuts, reorganization, and persistent opposition have hobbled this program for over 20 years.