Regulatory Agencies

There are many agencies involved in the wetlands regulatory process. The “regulatory agencies” are those that grant permits. The “resource agencies” advise the regulatory agencies but do not grant permits. They can, however, have a significant impact on the permitting process by helping the regulatory agencies determine what the immediate and cumulative environmental impacts of a project will be and whether the economic benefits justify the environmental losses that the project would cause.

Federal Regulatory Agencies

US Army Corps of Engineers (USACE)

The U.S. Army Corps of Engineers (USACE) 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). The USACE also regulates dredging through authorities in 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.

Wetlands permits in Virginia are handled mainly thought the Norfolk District. Wetlands permit decisions are made in concert with state and local wetlands regulatory authorities under the joint permit application process, starting with an application filed with the Virginia Marine Resources Commission.

The USACE sets guidelines for general permits, those activities for which special conditions, size of impact, or other factors will cause “minimal impacts” and are not deemed to require the full regulatory review of an individual permit. A list of national and regional permits applying in Virginia can be found on the USACE Norfolk District’s website .

Environmental Protection Agency (EPA)

Environmental Protection Agency (EPA) — writes guidelines for determining whether a particular activity that will affect wetlands can be permitted and oversees the regulatory process conducted by the USACE and the state governments.

Section 404(b)(1) Wetlands Guidelines provide guidance to the USACE and federal agencies in making decisions on wetlands disturbing activities.

The guidelines and a memo of understanding between the USACE and EPA lay out an important principle of wetlands regulation – sequencing. “Sequencing” is the process by which the permit application must first take steps to AVOID wetlands impacts, then MINIMIZE those impacts that cannot be avoided, and finally MITIGATE for any remaining impacts, “after all appropriate and practicable avoidance and minimization has been achieved.”

The guidelines also lay out the need for a project to be shown to be “water dependent” before wetlands disturbing activities can be approved. In other words, the project has to be in or near the wetlands by virtue of its purpose, not mere choice of development design.

State Regulatory Agencies

Virginia Marine Resources Commission (VMRC)

Virginia began regulating wetlands with the passage of The Virginia Wetlands Act of 1972 which 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 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 the Virginia Department of Environmental Quality (DEQ) and VMRC to issue wetlands permits.

This law regulates tidal wetlands and is administered by the Virginia Marine Resources Commission (VMRC) and, through VMRC, by local government wetlands boards.

Virginia Dept of Environmental Quality (DEQ)

Virginia Wetlands Regulation – Tidal and nontidal

The Virginia Department of Environmental Quality (DEQ) regulates both tidal and nontidal wetlands in Virginia. It regulates tidal wetlands in coordination with the VMRC/local wetlands boards and the US Army Corps of Engineers (USACE). It regulates nontidal wetlands in coordination with the USACE, although the jurisdiction of the USACE on nontidal wetlands is changing and under various court reviews.

The DEQ regulates wetlands disturbing activities under Virginia Code Sections 62.1-44.15 (16), and 62.1-44.15:20. DEQ’s Virginia Water Protection (VWP) Program was first established in 1992 under the State Water Control Law and 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.

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 (wetlands impacts less than ½ acre), and section 25-690-10 to 25-690-100 (wetlands permit for mining activities) provide detailed standards and procedures for wetlands permitting by DEQ.

A good overview of the state wetlands permitting process is the “Guide to the Virginia Water Protection Permit Process”

Wetlands Watch