Bay Journal

Virginia begins to regulate nontidal wetlands

  • By Karl Blankenship on April 01, 2000
  • Comments are closed for this article.

Virginia’s recent spate of wetland losses may soon be coming to an end. The General Assembly, after considerable debate, overwhelming approved legislation creating a state regulatory program that would require anyone disturbing nontidal wetlands to get a permit from the Department of Environ mental Quality.

Even before those regulations take full effect next year, the legislation would move to quickly close a loophole in federal law that resulted in widespread wetland draining last year.

If the legislation is signed by Gov. Jim Gilmore, Virginia would no longer be the only Bay state without a program to protect nontidal wetlands. And for the first time, the goal of wetland “no net loss” would be written into state law. The governor has until April 12 to decide whether to sign the bill.

“It’s landmark legislation,” said Ann Jennings, a wetland scientist with the Chesapeake Bay Foundation. “It’s one of the most significant environmental legislation we’ve seen in a decade.”

The legislation was pivotal for Virginia to meet longstanding Bay Program commitments to achieve a “net gain” in wetland acreage. It was also needed for Gilmore to achieve his pledge to increase wetland acreage during his administration. Virginia has the most nontidal wetlands of any Bay state.

Although the Virginia Marine Resources Commission has regulated tidal wetlands for years, the state’s more than 1 million acres of nontidal wetlands were regulated only at the federal level by the U.S. Army Corps of Engineers.

In recent years, that protection had been severely eroded by court rulings. In 1998, a federal court struck down the “Tulloch Rule.” The 1993 rule prevented a specific type of ditching that allowed wetlands to be drained without needing a permit.

When the rule was thrown out, it made huge wetland areas vulnerable to draining. Last year, the Corps’ Norfolk district estimated that more than 2,600 acres of wetlands were being drained as a result of the Tulloch decision, with developers planning to drain thousands of additional acres.

Also, a 1997 court ruling prevented the Corps from regulating “isolated” wetlands in a five-state area including Virginia that did not have a direct surface water connection to a river or stream. Virginia has between 179,000 and 411,000 acres of isolated wetlands, according to estimates from the Virginia Institute of Marine Science.

Neither court ruling impacted Maryland or Pennsylvania, because the states had their own wetland programs which were not affected by the federal court rulings.

Because of such shortcomings in the federal program, a Citizens Wetlands Advisory Committee, appointed by Gilmore, last fall concluded that the state could not meet the governor’s pledge of increasing wetland acreage unless it first established a program to protect existing wetlands.

The General Assembly agreed and, after rejecting a bill that would have only addressed the Tulloch issue, approved a bill that established a new regulatory program in the Department of Environmental Quality. The measure won final approval by a 90-7 vote in the House and a 38-0 vote in the Senate.

“The Legislature has made a gift to Gov. Gilmore,” said Billy Mills, executive director of the Mattaponi and Pamunkey Rivers Association. “They’re giving him the the statutory authority he needs to stand by his inaugural commitment to not only stem the loss of wetlands in Virginia, but to turn the tide so we are on our way to a net gain.”

To quickly reign in the so-called “Tulloch” ditching, the legislation requires a permit for any excavation in a wetland beginning July 1, when the new law takes effect.

Environmentalists are concerned that developers could race to drain wetlands under the Tulloch loophole before July — something that happened in North Carolina when it enacted a program to protect wetlands. “There is a concern that there will be significant ditching by developers unconcerned with wetland protection,” Jennings said.

But state officials say there is little they can do. Attorney General Mark Earley, after reviewing the issue last year, concluded that the state had no authority to halt the ditching under existing law.

“There may be [ditching],” said Kathy Frahm, of the DEQ’s Office of Policy, “but our legal authority to regulate that activity begins July 1.”

Apart from dealing with the Tulloch issue, the new state regulatory program will take effect Oct. 1, 2001. The existing Corps wetlands program will continue to regulate other activities in the meantime.

The legislation calls for the new regulations to be written by Jan. 1, 2001, after which they would go out for public comment. By July 1, 2002, the state is to seek authorization from the Corps to assume most wetland regulatory activities — similar to the agreements Pennsylvania and Maryland have with the Corps — so people will not have to undergo review by both state and federal agencies.

The legislation exempts normal agricultural and forestry activities from permit requirements. Also, the legislation calls for the development of a “general permit” program — which allows fast approval for routine activities — for activities impacting less than half an acre of wetlands, road construction and certain mining and utility activities.

In addition to using a regulatory program to stem the loss of wetlands, the bill calls for the DEQ to establish voluntary programs to achieve a net gain in wetlands.

The bill gives broad guidance for the development of the program, saying it should be designed to achieve a no-net-loss of existing wetland acreage and functions.

Like the federal program, permits could be issued only after efforts are made to avoid and minimize impacts, according to the legislation. Also, like the federal program, cumulative impacts must be a part of the permit analysis. But the legislation leaves most of the details of the permit program to the regulations.

“The real question will be if implementation of the regulatory program will achieve a no net loss,” said Carl Hershner, a VIMS wetlands scientist and the chair of the Bay Program’s Wetlands Workgroup. “The potential is certainly there.”

Details such as how much wetland replacement or other compensation will be required for destroyed wetlands is left to the regulations. Also to be determined is how broad the general permits will be, and the level of mitigation they will require.

Typically, regulatory programs fail to achieve no-net-loss for a variety of reasons, Hershner said. Often, small areas are allowed to be lost without any replacement, efforts to build new wetlands often fail, and many “replacements” only enhance existing wetlands. “Virginia hasn’t written anything off yet,” Hershner noted.

The General Assembly approved $200,000 and three positions for the fiscal year beginning July 1, primarily to develop the regulations. For the following year, it approved 10 positions and $670,000 to begin implementing the program.

Although the state does not regulate nontidal wetlands, it does have an existing wetland program that reviews all Corps wetland permit applications to ensure the activity is consistent with the state’s water quality goals. Along with the Corps permits, the DEQ issues a Virginia Water Protection Permit.

“We already have a nontidal wetlands program,” Frahm said. “So we have the framework here. We’re not starting from scratch.”

But until the new law takes effect, it does not have the authority to regulate wetland activities where there is no Corps permit required.

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About Karl Blankenship

Karl Blankenship is editor of the Bay Journal and Executive Director of Chesapeake Media Service. He has served as editor of the Bay Journal since its inception in 1991. .(JavaScript must be enabled to view this email address).

Read more articles by Karl Blankenship

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