A panel appointed by Virginia Gov. Jim Gilmore is calling for the state to establish a new regulatory program to protect existing wetlands and to eventually restore more than 2,800 acres of additional swamps and marshes a year.
Gilmore, who pledged the state would have an increase in wetland acreage by the time he left office, appointed the Citizens Wetlands Advisory Committee early this year to recommend ways of “reversing Virginia’s long-term loss of wetlands.”
The committee, consisting of scientists, environmentalists, farmers and others, had been charged with finding innovative ways to increase wetland acreage through voluntary conservation methods to meet both the governor’s promise and Bay Program goals for wetland increases.
But in the face of massive wetland losses — largely from loopholes in federal wetland protection programs that have allowed the recent draining of thousands of acres— the committee in its October report concluded that before the increases could be achieved, “Virginia must first achieve no net loss.”
This would require changes in state law that would clearly allow the state to regulate wetland activities as “state waters.” The committee recommended the regulatory program be carried out by the Department of Environmental Quality.
In addition to their recommendations, the governor’s office will also examine a report from the state’s Wetland Technical Committee, a panel of state agency personnel, which was established almost two years ago to recommend how to meet Bay Program objectives to increase wetland acreage.
The technical committee made a recommendation regarding a voluntary net gain program but deferred to the citizens committee on the issue of recent losses from wetland draining.
“Both the Citizens Wetlands Advisory Committee and the state Wetland Technical Coordinating Committee have made recommendations to the Secretary of Natural Resources [John Paul Woodley] that are being taken under advisement by him with regard to how the state should deal with the issue,” said Mike Clower, executive director of the Chesapeake Bay Local Assistance Department, who chairs the technical committee.
Under existing programs, the Virginia Marine Resources Commission regulates activities in tidal wetlands, and the state’s Chesapeake Bay Preservation Act allows, but does not require, local governments to protect nontidal wetlands.
But of the Bay states, Virginia is the only one that does not have its own comprehensive program to regulate activities that destroy nontidal wetlands.
Partly as a result, the state has suffered huge wetland losses. The problem was highlighted this year when developers in the state’s southeast corner began taking advantage of a loophole in federal law created by a court decision last year that allowed them to drain wetlands using certain ditching techniques.
Since the so-called “Tulloch Rule” was thrown out by the court, draining has begun on about 2,500 acres, and there are plans to drain another 6,500 acres, according to the U.S. Army Corps of Engineers, the primary federal agency for wetland protection.
While the recent ditching activity has been the most urgent issue, the citizens committee noted that other areas — such as isolated wetlands — are exempt from federal regulation as well.
Environmental groups have called upon Gilmore to act to protect wetlands, but Attorney General Mark Earley concluded the state does not have that authority under current law. To change that, the committee said the General Assembly needed to modify state law to clearly identify wetlands as “state waters” which come under regulatory jurisdiction. Also, they said the state Water Control Law should be modified to clearly require permits for any activity that would flood, impound, fill or discharge into a wetland.
With such wording changes, the state would be free to develop a program to regulate activities taking place in wetlands.The committee estimated the program could cost nearly $1.3 million a year, and require about 12 employees.
While the regulatory program could halt losses by requiring anyone destroying wetlands to create new ones, the task of achieving a “net gain” in wetlands would be best achieved through voluntary and incentive programs, the committee said.
It recommended an initial goal of restoring 600 acres of wetlands — 360 in the Bay watershed and 240 outside it. After the first year, restoration targets would increase by 25 percent a year until the total number of restored wetland acreage reaches 6,000 acres.
Then, the state would have an annual restoration target of 2,864 acres a year. By 2010, that would result in the restoration of about 20,500 acres of wetlands, including 12,300 in the watershed and 8,200 in the rest of the state.
That would surpass restoration goals expected to be set by the Bay Program later this year. The committee estimated the wetland restoration program would cost about $5 million a year.
To help achieve no-net-loss, the committee also recommended that the Virginia Marine Resources Commission, which regulates tidal wetlands, establish a compensation program. Most projects permitted by VMRC result in only small wetland losses — often too small to require replacement — but they add up to 10 to 15 acres of tidal wetlands a year.
If a compensation fee were charged for small wetland losses, those fees would be used to fund larger wetland creation efforts, the committee said.
In addition, they said the state should launch education programs about the value of wetlands and encourage local governments to incorporate wetland management into their land use planning efforts. Such efforts could help prevent wetland losses, the committee said.
Meanwhile, the wetland issue is also being examined by House Speaker Thomas W. Moss Jr., D-Norfolk, who heads the Commission on the Future of Virginia’s Environment. The commission reviewed the wetland issue at a meeting in October and Moss said he planned to lead a special subcommittee that would make legislative recommendations in December.
“We need to do this because it is clear Virginia should not depend on or defer to federal regulators when it comes to protecting our critical natural resources,” he said.
But it’s unclear whether those recommendations will go further than finding a way to close the Tulloch loophole. Moss expressed reservations about opening a “Pandora’s box” of regulations, and developers at the October meeting said any state program should be narrowly focused on the Tulloch issue.
“If something has to be done on Tulloch, it should be a surgical approach and nothing else,” William Ellis of the Homebuilders Association of Virginia told commission members.