Developers in the southeastern corner of Virginia have begun draining more than three square miles of wetlands since a court ruling created a loophole in federal regulations last summer.
In addition to the 2,000 acres where drainage has begun, the U.S. Army Corps of Engineers estimates that more than 5,500 additional acres of wetlands are likely to be ditched and drained in the coming months — bringing the total potential loss to more than 10 square miles.
“In this area, I suspect we haven’t seen impacts of this magnitude for at least a generation,” said Steve Martin, an environmental scientist with the Corps’ Norfolk District.
Because the ditching is considered legal under a recent court ruling, the Corps has no authority to require developers to offset the losses with new wetlands.
As a result, the sheer scale of the loss makes it unlikely Virginia can reach a “no net loss,” much less an eventual gain, in wetland acreage which are goals both of the Bay Program and Gov. James Gilmore.
“It makes those commitments unachievable,” said Ann Jennings, a staff scientist with the Chesapeake Bay Foundation. Jennings noted that the amount of draining since last summer is greater than the acreage of all combined wetland restoration projects undertaken in Virginia in the past three years.
The draining stems from a federal court ruling last summer that struck down the “Tulloch Rule,” which the Corps adopted in 1993 to close what it considered to be a loophole in the Clean Water Act. While the act regulated dredging and filling wetlands, it did not necessarily protect wetlands from activities such as land clearing and ditching which, in turn, could cause the sites to be drained.
Under the Tulloch Rule, the Corps began regulating those activities using the argument that land clearing or ditching could not take place without some “incidental fallback” of dirt into the wetland. That, according to the rule, constituted a discharge, or filling of the wetland that could then be regulated.
The rule was quickly challenged in court, and the government lost three court rulings, the most recent being a June 19, 1998 decision of the U.S. Court of Appeals for the District of Columbia. Last December, the Corps decided not to appeal the ruling to the U.S. Supreme Court.
With the Tulloch Rule thrown out, developers in some areas began ditching and draining large wetland tracts. In North Carolina, more than 15,000 acres of wetlands were lost before a new state regulatory program took effect in March.
The issue has not surfaced in Maryland or Pennsylvania, where the states have their own regulatory programs that were not affected by the Tulloch decision.
Virginia, though, does not have a program that requires permits to alter or destroy wetlands, leaving the primary regulatory responsibility with the Corps.
But the state’s Chesapeake Bay Local Assistance Department has warned that it could regulate some of the draining activity. Under the Chesapeake Bay Preservation Act, non-tidal wetlands that become connected to tidal waters or wetlands by a ditch become part of a “resource protection area” that must be protected by law.
“The only land-disturbing activity you can do in a resource protection area is the development of water-dependent activities,” said Mike Clower, CBLAD director. “Otherwise, you cannot build in it, you cannot develop in it, you cannot go in there and denude it. It’s a protected natural resource.”
The effect of that is not clear, though. The act does not prevent the wetlands from being drained, and — if the ditches were filled — the connection between the wetlands and tidal waters would be eliminated, also eliminating the need for a resource protection area. Also, CBLAD rules apply only to eastern Virginia.
Earlier this year, a coalition of 11 environmental groups wrote Governor Gilmore urging “immediate and aggressive action” to halt the ditching, calling it “the most significant threat to wetland protection that Virginia has faced in many, many years.”
The groups argue the Department of Environmental Quality has authority under the State Water Control Law to regulate activities in wetlands. “We ask for your leadership in ensuring enforcement of our current laws,” they wrote the governor.
Calls from the Bay Journal to the DEQ on the Tulloch issue were not returned.
Jennings warned that unless the state takes action, the practice could soon spread to other parts of the Virginia.
“I don’t think it will ultimately be limited to the Hampton Roads part of the state,” she said. “I think as more people learn about it, and see it as an opportunity to get around the regulatory program, that you’re going to see it occur in other areas.”
The EPA is also reviewing whether it can take any further action to protect the wetlands. Although it, like the Corps, is bound by the Tulloch ruling, officials say there may be other legal means to address the ditching, such as the enforcement of erosion control rules to prevent sediment discharges from the ditches.
“We are assessing all of these things and trying to make a determination if, in fact, there was a violation of the Clean Water Act,” said Jeffrey Lapp, wetlands enforcement coordinator for EPA Region III.
While the court ruled that federal agencies could not regulate the “incidental fallback” of material during dredging, the court did not say how much material is, in fact, incidental. Officials said it is possible for the government to take enforcement action to test that question in court, though it is possible such a move could eventually lead to a ruling that opens the loophole even wider.
“It’s somewhat, I guess, of a gamble,” Lapp said. “But I don’t think the status quo is any good.”
Also, Martin said the Corps would monitor the sites to ensure that wetlands are drained before any construction takes place. Although they cannot prevent ditching, federal agencies can still regulate other activities on the sites as long as wetland hydrology remains in place.
“For some of these sites, it may take a number of years to drain,” Martin said. “And portions of some of the sites may never drain.”
Still, while such efforts can halt the development of areas, the wetlands will already have been badly damaged by the legal ditching activity, and federal agencies have no power to order the restoration of those sites, officials acknowledged.
Martin estimated that about 1,800 acres of draining is under way in the city of Chesapeake, 265 in Suffolk, and five in Newport News.
Martin said his estimate of impacted wetlands is probably low. Because the ditching does not need a permit, there is no need for developers to inform the Corps of the action.
“I feel fairly certain that there is work going on out there that we haven’t confirmed — that we haven’t stumbled across yet,” he said.
In addition, Martin said that “planned or likely” drainage could impact another 4,300 acres in Chesapeake, 80 acres in Suffolk, 1,175 in Virginia Beach, 25 in Newport News, and more than 50 acres in Poquoson. He also said estimates of acres likely to be drained may be low. The estimates stem from word-of-mouth information and visits to planning agencies to check for new subdivision plans which sometimes have Tulloch ditches already drawn on them.