Activities that require permits and how to navigate the permitting process

Unfortunately, experts acknowledge that if we keep destroying wetlands at the present rate, we have no chance of achieving the federal and state goal of “no net loss” of wetlands acreage and function. Wetlands Watch believes that insufficient effort to avoid and minimize wetlands impacts in development activities is the key factor that leads to loss of wetlands acreage and function. Compensatory mitigation and inadequate consideration by regulatory agencies of cumulative losses when granting permits for wetlands disturbing activities compound the problem.

In the final analysis, our remaining wetlands will not be saved by regulators. We all need to take responsibility and get involved. As a waterfront homeowner, you can become an effective wetlands steward. Here’s how:

• Become familiar with laws and regulations that protect wetlands.
• Bayscape your yard, garden and shoreline.
• Seek appropriate permits for projects that you want to do on your waterfront property.
  
  

  Links to "pdf" files require Adobe Acrobat Reader.

As a waterfront property owner, you should know your way around the regulatory process because sooner or later you may want to do a project in a portion of your yard or shoreline that is regulated. If you want to do something that would disturb wetlands, shallow water habitat (“subaqueous land”), or want to disturb or build within 100 feet of the shoreline in Virginia, you must obtain a permit from one or more of the federal, state and local agencies that regulate these habitats.

Wetlands disturbing activities for which permits are required include:

• Filling or draining wetlands
• Dredging boat channels
• Building bulkheads
• Building rip rap shoreline stabilization structures
• Building private piers
• Building boathouses
• Building marinas and community piers
• Building boat ramps

Wetlands Permits and Regulatory Agencies:

Several agencies are involved in regulating wetland-disturbing activities in Virginia:

1. 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.

2. 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.

3. 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.

(While not part of the wetlands, a 100-foot-strip ("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.)

To be prepared to navigate the permitting process make sure you:

• Know where the wetlands are (example) in your yard and your community.
• Identify your 100 foot buffer.
• Become familiar with the federal, state and local regulatory agencies
• Follow Virginia’s Wetlands Guidelines (2.2 mb pdf file),  Subaqueous Guidelines and Shoreline Development BMP’s when making plans for your project. You can get these publications from the Virginia Marine Resources Commission.
• Understand which agencies have jurisdiction over the property in question. (See Chart)

The 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)

JPA Distribution: 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.

Public Notice: 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. (View a Sample Report (560 kb pdf file).

Public hearings: 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.

Chart illustrating permitting process

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:

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.

It will be easier for you 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.

Federal Laws and 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.”

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). Like the state and local regulatory agencies, the Corps regulates wetlands disturbing activities by issuing wetlands permits. 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. 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.

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 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)."

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 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 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.

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

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 …” The regulations (9VAC 10-20-10 et seq.) establish buffer zones in which shoreline development ia regulated and limited.

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.

Regulatory Agencies

U.S. Army Corps of Engineers: The Corps of Engineers is responsible for administering a permit program pursuant to Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act. Permits are required from the Corps for construction, dredging and filling activities proposed by landowners, businesses, developers, and government agencies in tidal and non-tidal rivers, creeks, and tidal and non-tidal wetlands. For more information, see the website of the Corps District office near you:

Virginia Marine Resources Commission (VMRC): The Virginia Marine Resources Commission manages, regulates and protects the State’s marine fisheries, submerged lands and coastal resources including tidal wetlands and coastal sand dunes and beaches. For more information, see the VMRC website.

Virginia Department of Environmental Quality (DEQ): Under both federal and state law, DEQ functions as the principal water quality management agency within the Commonwealth of Virginia. DEQ issues permits for all activities which may result in the physical, biological or chemical alteration of State waters. The goal of DEQ’s Virginia Water Protection Program is to ensure the protection of the beneficial uses of State waters including tidal and non-tidal wetlands, prevent degradation of valuable water resources and to work toward the restoration of waters whose quality has been degraded. For more information about DEQ permits, see the DEQ website.

Local Wetlands Boards: Each locality may establish its own Wetlands Board to issue permits for wetlands disturbing activities under the auspices of the Virginia Marine Resources Commission. For more information about the Wetlands Board near you, see the locality’s website.

Accomack County (757) 787-5721
Cape Charles (757) 331-3259
Charles City County (804) 829-9296
Chesapeake (757) 382-6248
Colonial Heights (804) 520-9275
Essex County (804) 443-4951
Fairfax County (703) 324-1364-
Fredericksburg (540) 372-1179-
Gloucester County (804) 693-2744-
Hampton (757) 727-6140-
Hopewell (804) 541-2267
Isle of Wight County (757) 365-6211
James City County (757) 253-6673
King and Queen County (804) 769-4978
King George County (540) 775-7111
King William County (804) 769-4927
Lancaster County (804) 462-5220
Mathews County (804) 725-5025
Middlesex County (804) 758-0500
New Kent County (804) 966-9690
Newport News (757) 247-8437
Norfolk (757) 664-4368
Northampton County (757) 678-0442
Northumberland County (804) 580-8910
Poquoson (757) 868-3040
Portsmouth (757) 393-8836
Prince William County (703) 792-6984
Richmond County (804) 333-3415
Stafford County (540) 658-8668
Suffolk (757) 923-3650
Virginia Beach (757) 427-8246*
Westmoreland County (804) 493-0120
West Point (894) 843-3330
Williamsburg (757) 220-6130
York County (757) 890-3774

Resource Agencies

Federal

U.S. Environmental Protection Agency : EPA oversees compliance with federal environmental laws. The Agency provides advice and recommendations to the Corps of Engineers to ensure that all authorized projects avoid and minimize adverse environmental impacts.

U.S. Fish & Wildlife Service : The purpose of USF&G is to conserve fish and wildlife resources and tieir habitats and to protect public trust rights of use and enjoyment associated with waters of the United States. The Service provides advice and recommendations to the Corps of Engineers to ensure that all authorized projects are the least environmentally damaging alternative and in the public’s interest in safeguarding fish and wildlife resources from unnecessary loss and degradation. The Service is also responsible for assisting the Corps to meet their responsibilities under Section 7 of the Endangered Species Act.

National Marine Fisheries Service : the mission of NMFS is to rebuild and maintain sustainable fisheries, promote the recovery of protected species and protect and maintain the health of coastal marine habitats. The Service provides advice and recommendations to the Corps of Engineers, especially regarding protection of Essential Fish Habitat.

President’s Advisory Council on Historic Preservation : the President’s Council on Historic Preservation provides comments to the Corps of Engineers on undertakings that affect historic properties.

State

Virginia Department of Game and Inland Fisheries : The Department of the primary wildlife and freshwater management agency in the Commonwealth, and has legal jurisdiction over state or federally endangered or threatened species, excluding insects and plants. VDGIF provides environmental analysis of projects or permit applications coordinated through VMRC, DEQ and the Corps of Engineers. The department determines likely impacts on fish and wildlife resources and habitats and recommends appropriate measures to avoid, reduce, or mitigate for those impacts.

Virginia Institute of Marine Science (VIMS) : The Wetlands Advisory Program of VIMS provides scientific and technical advice for the use of all participants in the shoreline permit process. To accomplish this, a written impact assessment report is prepared for most projects requiring a wetlands or subaqueous bed permit. The report describes the marine environmental impacts of the proposed activity and suggests alternatives and/or modifications which will lessen any significant adverse effects to aquatic resources resulting from the proposal. Copies of the report are provided to the applicant and all regulatory and resource agencies.

Virginia Department of Historic Resources : The Department represents the interests of the Commonwealth and its citizens in preserving Virginia’s cultural heritage. VDHR assists the Corps of Engineers with identifying historic properties assessing effects upon them and considering alternatives to reduce, avoid or mitigate a project’s adverse effects.