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What We Covered in Our Webinar

In our latest webinar, environmentally trained attorney Jim Lang, with the Waterfront Law Team, and Brian Owen, Environmental Scientist and Wetlands Specialist, MSA, review how to identify wetlands, why wetlands matter, how wetlands are regulated, which activities do and do not require permits, and what’s involved with the permit process and enforcement.

How to Identify Wetlands

Our co-presenter, Brian Owens likes to say, “wetlands are an area that has water present long enough to impact the soil and plants that grow there.”

For a more formal explanation we referred to the US Army Corps of Engineers (USACE) 1987 Delineation Manual, which states that a ”wetland” is defined as those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”

There are three characteristics of all wetlands: hydrophytic vegetation (>700 plant species in Virginia); hydric soil (20 indicators for this region) and hydrology (18 primary indicators, 13 secondary) which can be saturated at some time during the growing season of each year.

Cowardin Classification System

The Emergency Wetlands Resources Act of 1986 required U.S. Fish and Wildlife Service (USFWS) to map and digitize all the wetlands of the United States. The National Wetlands Inventory classifies wetlands into five types of categories that Lewis Cowardin developed in 1979:

  • Marine – Exposed to open ocean
  • Estuarine - Partially enclosed by land, salt/freshwater mix
  • Riverine – Flowing freshwater
  • Lacustrine – Still freshwater
  • Palustrine – Inland freshwater wetlands

Why Do Wetlands Matter and How Did They Become Regulated?

Wetlands matter because they help us with flood control, groundwater recharge, filtration of pollutants (nutrient capture helps Virginia attain Chesapeake Bay Program requirements), biodiversity (40 to 60 percent of all endangered species have some part of their life cycle connected to a wetland), carbon capture and they provide economic benefits (rice and cranberries can only be grown in wetlands).

By 1972, the Clean Water Act (CWA), Section 404 (33 USC §1344), became law and with it the prevention of discharge of dredged or fill material into the navigable waters. Surprisingly, the word “wetlands” does not appear anywhere in the CWA. In this piece of legislation, there are many exemptions, such as: “normal farming, silviculture, and ranching activities”; maintenance of structures (dikes, dams, levees, riprap, breakwaters, causeways, bridges, etc); construction of irrigation ditches; maintenance of drainage ditches; and many more.

The 1985 Food Security Act (Swampbuster Act) discourages the conversion of wetlands into non-wetlands areas. Likewise, farmers who accept federal agricultural subsidies cannot drain wetlands as the Act is intended to stop agricultural wetland losses.

State regulation in the Commonwealth of Virginia quickly followed with enactment ofthe Tidal Wetlands Act of 1972 (Va. Code §§28.2-1300 to 1320). In 2001, the Virginia Nontidal Wetlands Act was passed which amends the State Water Control Law (Va. Code §§62.1-44.15:20 to 44.15:23.1). This law enables DEQ to regulate all state waters, regardless of CWA jurisdiction. Between them, the Clean Water Act, Virginia Tidal Wetlands Act and the State Water Control Law (as amended by the Virginia Nontidal Wetlands Act), regulate the draining of a wetland, filling or dumping in a wetland and / or permanently flooding a wetland.

The Permit Process

When looking to obtain a permit, there are several agencies involved in regulating wetland-disturbing activities in Virginia.

On a Federal level, there are numerous nationwide permits administered bythe U.S. Army Corps of Engineers (USACE). Individual permits can be sought from the USACE if the project does not qualify for coverage under one of the nationwide permits.    

On the State level, The Virginia Department of Environmental Quality (DEQ) administers Virginia Water Protection (VWP) program.  

On the local government level in Virginia, the 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.

Individual permits are not preferred by applicants as they cost more and take more time to obtain, there is a greater risk to applicants because  sister agencies give greater scrutiny to an individual permit (as opposed to a general permit such as one of the nationwide permits administered by the USACE and/or one of the general permits available in Virginia’s VWP program). The process for individual permits likewise has mandatory requirements for public involvement. This, too, creates an added element of risk and expense for the applicant. Additionally, applicants in coastal Virginia sometimes find it is increasingly difficult to use general permits because there is an ever-shrinking inventory of land with features compatible for general permits. Moreover, the 5-year reissuance cycle for nationwide permits can bring about tighter thresholds for eligibility.

Mitigation Requirements in the Permit Process

In 2008, the EPA and the USACE created regulations regarding compensatory mitigation. According to these regulations, mitigation can be defined as:

  • Restoration
  • Establishment
  • Enhancement
  • Preservation

The purpose of compensatory mitigation is to offset unavoidable adverse impacts and under the regulations, there are three mechanisms for providing compensatory mitigation:

  • Purchase credit from a mitigation bank
  • In lieu of fees where mitigation banks are not available
  • On-site mitigation (requires permitting as part of the JPA, wetlands mitigation plan, success criteria and monitoring up to ten years)

Wetlands and Permits – What You Can and Cannot Do

Things You Can Do in Wetlands Without Permit:

  • Silviculture (logging and land management within limitations)
  • Debris removal provided it is done in an environmentally sound manner
  • Agricultural activities in existing farmed wetland areas
  • Mowing provided the area was historically mowed
  • Vegetation maintenance (trimming, removal of dead / diseased / noxious vegetation)
  • Repair and maintenance of existing serviceable structures in wetlands (docks, bulkheads, utilities, etc)
  • Maintenance of existing ditches provided that the design of the ditch does not change (depth, width, etc)

Things in a Wetland That Require a Permit:

  • Soil disturbance (includes grubbing during logging; leave the stumps, unless under silvicultural exemption
  • Altering the hydrology of a wetland (wetter or dryer)
  • Converting a wetland into a new use (agriculture or development including lawn space)
  • Staging of materials in wetland areas during construction
  • Mechanized clearing of wetlands
  • Crossing over or under wetland areas with piers, bridges or utilities

Enforcement

The EPA in conjunction with the USACE work to enforce actions against entities who conduct unauthorized fill activities in “Waters of the United States”. The two agencies work together to prioritize and select cases and to coordinate field research, damage assessments and legal proceedings. Additionally, the CWA has a provision that allows a “citizens’ environmental lawsuit”. This provision allows a private citizen to bring suit in federal court when the USACE is unwilling or unable to take action against a person who is violating the CWA wetlands rules. Virginia’s power to enforce extends to “State Waters”, a jurisdiction that has a greater reach than the “Waters of the United States”. 

When a regulatory agency takes a hard line during its processing of an application, the applicant oftentimes does not realize that it can challenge the agency’s decision in Court.  When there is a great deal of money on the line, and the demands from the regulatory agency seem unreasonable, the applicant needs to know that he or she is not limited to simply giving in to the agency or giving up on the project. An environmentally trained attorney can help them use court review to reverse agency action that is arbitrary, capricious or contrary to law.

As a reminder, you should always hire a wetlands consultant for the assessment, delineation, and permitting process.  This is not an area where it is smart to “do it yourself.”

Lastly, in a project with a lot of money on the line, or one that is particularly complex or challenging, you would be wise to get an environmentally trained attorney on the team right from the outset.  For those projects that do not merit attorney support from the outset, you should consult an environmentally trained attorney if the agency overreaches in its dealings on your application or you need help interpreting the laws or regulations as they affect your application.

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