A citizens advisory group appointed by Virginia Gov. Jim Gilmore is expected to call for legislation that would create a new state program to protect, and regulate, nontidal wetlands.
The Wetland Advisory Committee, appointed to recommend how the governor could meet his pledge to increase wetland acreage, has concluded that no gain is likely unless regulatory loopholes that allow widespread wetland drainage are closed.
The committee is expected to send its recommendations to the governor at the end of September, along with a recommendation for a wetland net gain goal.
Gilmore had asked the committee to recommend what, if any, legislation was needed in the wake of a federal court decision last year which has resulted in the fastest rate of wetland losses in Virginia in decades.
Meanwhile, the U.S. Army Corps of Engineers increased its estimate of the amount of Virginia wetlands being drained or at risk since the court ruling. After conducting an aerial survey this summer, the Corps’ Norfolk District estimated that draining was under way on 2,221 acres, up from an estimate of 2,100 acres this spring.
“It is increasing,” said Steve Martin, of the Corps’ Norfolk District. “We have found a couple of additional sites. In at least one of them, the ditching is ongoing.”
The Corps also estimated that draining under the loophole was “planned or likely” on another 6,485 acres, up from 5,700 acres this spring. Those are projects where development plans call for ditching in wetlands, or land disturbance permits have been issued.
The problem stems from a federal court ruling last summer which threw out the 1993 “Tulloch Rule,” which was adopted by the Corps to close what it considered to be a regulatory loophole in the Clean Water Act. While the act regulated dredging and filling wetlands, it did not necessarily prohibit land clearing and ditching activities that could drain them.
Under the Tulloch rule, the Corps regulated those activities, arguing that land clearing and ditching could not take place without some “incidental fallback” of material, which could be interpreted as a filling activity. But the courts disagreed, opening the door to a spate of wetland draining in Virginia and many other states. Nationwide, the EPA estimated earlier this year that 30,000 acres were drained between the June 1998 court ruling and this March.
The problem has not arisen in Maryland and Pennsylvania because those states operate their own wetlands programs which fill the void created by the loss of the Tulloch Rule, which only affected federal regulations.
Environmentalists have called on Virginia to take action to halt the ditching, but the secretary of natural resource’s office has indicated that such action was unlikely to be upheld in court.
The Department of Environmental Quality has drafted legislation that would specifically address the Tulloch problem, but the citizens committee is working on legislation that would create a broader state program to protect wetlands.
“What the group does not want to do is just fix one problem,” said Bill Norris, a DEQ environmental program analyst who assists the committee. “They want to come up with a policy for the whole state. We do not have a nontidal wetland program [in Virginia]. So that is what they are trying to create.”
Ron Hamm, the state’s deputy secretary for natural resources, said such a recommendation from the committee would “make it somewhat more difficult” to oppose the legislation. Still, committee members acknowledge that legislation would have an uncertain fate when the state General Assembly meets next January, after elections this fall, leaving the future of potentially hundreds of thousands of acres of wetlands in limbo.
“While the committee understands the difficulty in pursuing wetlands legislation, there is agreement that such action is necessary,” said Ann Jennings, of the Chesapeake Bay Foundation, who is a member of the panel. “The reality is we must try if we are to save Virginia’s wetland resources.”
With no new enforcement efforts in sight, some efforts have been made to slow ditching efforts through existing programs.
Mike Clower, director of the state Chesapeake Bay Local Assistance Department has notified local governments that rules already require them to protect any wetland that becomes connected to a Bay tributary through a ditch under the Chesapeake Bay Preservation Act, which governs land east of Interstate 95. Further, the ditches have to be protected on both sides by 100-foot-buffers under the act.
Clower acknowledged that the rules don’t explicitly prevent draining wetlands, but pose added hurdles for anyone wanting to build on the drained land. Clower has requested field personal to report any building activities in wetlands being drained and has heard of none so far.
He has also written local governments that the Bay act allows them to declare any nontidal wetlands “resource protection areas” and prevent any development on them.
“The localities have the authority to stop Tulloch ditching,” Clower said. “We know of one local government that is in the process of going ahead and making that change to protect them. And I’m hoping that with this letter and a little bit of grassroots pressure, other local governments will follow suit.”