Formal Audits Are Rare

During the Q&A at the end of our Living Shorelines webinar, I was asked: Are Local Wetlands Boards (LWB) subject to Audits from State Regulators, the U.S. Army Corps of Engineers (USACE)?

After checking with contacts at VMRC and at USACE, and doing a good bit of legal research, the answer appears to be that, in theory, LWB are subject to audit by State Regulators (the Virginia Marine Resources Commission (VMRC)) and Federal Regulators (the U.S. Environmental Protection Agency (USEPA)) but, in practice, formal audits happen only rarely.  



Clean Water Act As A Starting Point

Section 404 of the Clean Water Act is the starting point in framing the answer. Subsection (a), which forbids “the discharge of dredged or fill material into the navigable waters”, is the legal foundation for the wetlands program. Whenever a person comes before your Norfolk LWB with a request to put something into the inter-tidal zone that person is asking for permission to “discharge . . . dredged or fill material into the navigable waters”, and this act would be illegal in the absence of a permit.   

CWA section 404 identifies the US Army Corps of Engineers as the permit-issuing authority but, at subsections (g) & (h), the CWA gives each of the 50 states the opportunity to administer the program if the USEPA, acting on the advice of the USACE, determines that the state has developed a program that satisfies certain requirements. Virginia has taken advantage of this option by setting up a state-run program, which USEPA has approved. Va. Code §28.2-1300 to 1320 is the place where Virginia codified its USEPA-approved and state-run, program which is applicable to discharge of dredged or fill material into “lands lying contiguous to mean low water and an elevation above mean low water equal to a factor one and one-half times the mean tide range” (otherwise known as the inter-tidal zone). 


CWA Leads to Creation of Local Wetlands Boards

Having traced the federal CWA as the source of authority that led to the creation of the LWB, we next consider the implications of the fact that the federal government holds the power to revoke Virginia’s authority to run the wetlands permitting program. Subsection (i) reserves to USEPAF the power to withdraw program approval in which case the USACE “shall resume the program for the issuance of permits”. My research did find an example where USEPA audited the Michigan Department of Environmental Quality’s Section 404 Program to evaluate whether USEPA should withdraw the authority it had granted for Michigan to administer its state-run wetlands permit program.

The audit appears to have been prompted by a request that an environmental NGO, the Michigan Environmental Council, submitted to EPA. The request that the Michigan Environmental Council made was that USEPA either force a reform of Michigan’s section 404 program or withdraw the state’s authorization to administer the program. Audits of this type are quite rare, but they can happen, which is the reason I stated at the outset that, in theory, LWB are subject to audit by federal regulators (whether they be USACE or USEPA). Having said that, my contacts at the USACE Norfolk District tell me that they do not audit LWB’s.


What About Audits by State Regulators?

Turn now to audits by state regulators. Va. Code §28.2-1310 provides most of what we need to know to answer the question as to the identity of the state agency with the power to oversee the workings of the LWB. It provides that “[t]he Commissioner [of the VMRC] shall review all decisions of wetlands boards and request the Commission to review a decision only when he believes the board failed to fulfill its responsibilities under the wetlands zoning ordinance.”

One way in which the VMRC discharges its responsibility is to “review all decisions of wetlands boards” and having one of its Environmental Engineers attend every LWB meeting, then report back to the Chief of the Habitat Management Division at VMRC as to whether it appears that the VMRC should review any of the decisions made by the LWB during the LWB meeting. If the Commissioner decides to request a review, Va. Code §28.2-1311(A)(2) requires him or her to notify the LWB “within ten days of receiving notice of the board’s decision.” In my experience, the Commissioner only rarely invokes this power of review, likely because the need for this type of review is lessened when the LWB and the VMRC Environmental Engineer work in close coordination on JPA’s submitted to the LWB for decision.   

For sake of completeness, I would also invite your attention to one other way that a LWB can find itself under scrutiny. Va. Code §28.2-1311(A)(2) empowers “[t]wenty-five or more freeholders of property within the county, city, or town in which the proposed project is located” to force the VMRC to review a LWB decision. The Virginia Code provides opportunity for court review of the decision made by the VMRC. In my experience this happens only infrequently.   

To conclude, my answer to the question posed at the top of this article, is that, in theory, LWB are subject to audit by State Regulators (VMRC) and Federal Regulators (USEPA) but, in practice, formal audits happen only rarely. 

Please contact our Waterfront Law Team if you have any questions regarding Local Wetlands Boards audits or any other riparian rights topics.