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.
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