Dear Mr. Williams:
Environmental Defense Fund (EDF) respectfully submits the following comments regarding the March 11, 2024 Petition to the State Water Control Board (the Board) for Establishment of a Regulation or Policy Interpreting the Definition of Nontidal Wetlands Under 9VAC25-830-40, 9VAC25-830-80, and Fairfax County Ordinance 118-6-1(q) (the Petition) to the Department of Environmental Quality (DEQ) regarding the Chesapeake Bay Preservation Act (CBPA).
EDF is a leading international, non-partisan, nonprofit organization dedicated to protecting human health and the environment by effectively applying science, economics, law, and innovative private-sector partnerships. With more than 91,000 members and supporters in Virginia and over 3 million across the world, EDF advocates for healthy, climate resilient communities and ecosystems in Virginia and around the world that are safe, equitable, and prosperous places to live, work, and play.
We write to ask that the Board reject the petition. In Virginia, the CBPA serves as an essential tool to protect water quality and critical natural infrastructure located in state waters that help mitigate flood risk. Climate-driven flood risks are increasing across the Commonwealth, which is poised to lose up to 89% of its tidal wetlands and up to 50% of nontidal wetlands and by 2080 without action. The CBPA is, by design, a cooperative program between local governments and the state, in part because localities know best which areas warrant additional protection. Here, the Petition misinterprets and misapplies Sackett v. EPA and seeks to undermine a localities’ authority to protect sensitive land from development encroachment within the Chesapeake Bay Preservation area within the regulatory framework provided by DEQ. The concerns raised in the Petition are either addressed by existing CBPA regulations and guidance or relate to an ongoing local dispute which the Board should not consider at this time.
We believe the Board should reject the petition for the following reasons:
The Petition conflates two issues: the delineation of wetlands and the jurisdictional determination that wetlands are covered by the Clean Water Act. Delineation establishes the existence and geographic extent of wetlands, the federal definition of which was quoted by the Supreme Court majority opinion in Sackett and remains unchanged.
The Supreme Court’s May 2023 ruling in Sackett v. EPA addresses federal jurisdiction to regulate wetlands under the Clean Water Act §404 and does not apply to waters as they may be defined by states or limit protections states may apply. Sackett did not address whether the property at issue contained wetlands – only whether those wetlands were within the regulatory authority of the federal government under the Clean Water Act. Virginia’s definition is clear, unambiguous, and remains effective and allowable post-Sackett. There is no requirement in Sackett for federal consistency, and as such Sackett does not necessitate the Petition’s proposed changes to Virginia’s definition of nontidal wetlands in the CBPA.
The CBPA is a landmark Virginia program based on cooperation among local governments and the state that empowers localities to designate and protect areas that are important to ensuring water quality protection. Empowering localities to protect their most sensitive lands from development impacts is important to protecting water quality and reducing nutrient and sediment runoff to the Chesapeake Bay, which has ripple effects for coastal communities’ flood risk. According to the EPA, one acre of healthy wetlands can store up to 1.5 million gallons of floodwater. Allowing development in flood-prone areas will put lives and assets at risk of climate-driven flooding.
The CBPA provides DEQ with broad authority to “promulgate regulations that establish criteria for use by local governments to determine the ecological and geographic extent of Chesapeake Bay Preservation Areas” which “shall consider all factors relevant to the protection of water quality from significant degradation as a result of the use and development of land” (Va. Code § 62.1-44.15:72(A-B). DEQ’s regulations establish minimum standards of protection for certain nontidal wetlands and the CBPA provides a pathway for localities to implement more stringent protections for other nontidal wetlands where “necessary to protect the quality of state waters” that is not dependent upon the maintenance of a continuous surface connection as determined in Sackett (VAC 25-830-80(B)(4)). To support localities in determining which nontidal wetlands warrant protection, DEQ provides localities with clear guidance as to how to evaluate wetlands for protection. The Petition itself notes that localities have “wide latitude” to define non-tidal wetlands (see Petition at 6)
The Petition seeks to limit this local governmental discretion, despite the fact that Sackett does not limit a state or localities’ ability to protect sensitive land from development encroachment under the CBPA. The CBPA provides local governments with the authority and the obligation to protect sensitive lands. Because the Petition misinterprets the impact of the Supreme Court’s decision in Sackett v. EPA on Virginia’s CBPA program and seeks to undermine localities’ authority to protect sensitive land from development encroachment, it should be denied.
The CBPA requires localities to establish site-specific RPA boundaries when evaluating potential exceptions to the general prohibition on development in the RPA or when reviewing a proposed development plan. The CBPA provides clear guidance regarding how to set site-specific RPA boundaries, which can be completed by technical locality staff or qualified professional experts retained by the entity applying for a development exception. Additionally, DEQ provides significant resources and guidance to localities making RPA designations.
The Petition attempts to make the case that the technical considerations of the U.S. Army Corps of Engineers’ Wetland Delineation Manual from 1987 and certain Regional Supplements used to evaluate the site are no longer relevant in the wake of Sackett, and proposes a rewrite of the CBPA’s nontidal wetlands definition that would be more limited and remove localities’ discretion in site-specific RPA determinations. This is unwarranted. In addition to the reasons stated above, the CBPA allows localities to rely on the Corps’ 1987 Manual and Regional Supplements and provides guidance for localities to accurately determine which wetlands need protection through RPA boundary determinations.
The Petition frames its request for regulatory changes based on an ongoing case involving implementation of the CBPA currently before the Fairfax Exception Review Committee. Fairfax County exercised its authority to protect nontidal wetlands that are “inundated or saturated by surface or groundwater” (Fairfax County Code § 118-1-6). In determining the RPA, Fairfax staff identified existing site-specific evaluations conducted by a professional consultant which characterized the area as vegetated with groundwater (though specific species of vegetation do not seem to have been identified), and the applicant would be permitted to supplement with an additional site evaluation.
In this specific case, the CBPA’s principles are clearly applied and operating as intended. As of this writing, the matter appears to be still before the Fairfax Exception Review Committee, and there is no indication that the committee cannot resolve this matter in the usual course of business without the amendments proposed in the Petition.
As mandated in code, DEQ conducts a periodic comprehensive review of each locality’s CBPA implementation to ensure their comprehensive plans, subdivision ordinances, and zoning ordinances are in accordance with the CBPA. As noted above, the local issue highlighted in the Petition is not yet resolved by the Fairfax Exception Review Committee. There is no indication that that DEQ should operate outside of its existing review process, and therefore the Petition should not be granted.
In conclusion, the Petition misapplies the impact of the Supreme Court’s decision in Sackett v. EPA on Virginia’s CBPA program, seeks to undermine localities’ authority to protect sensitive land from development while referencing a local dispute that as of this writing remains unresolved, and therefore should be denied. We appreciate DEQ’s consideration of these comments. We hope the Board will deny the Petition so that locality CBPA programs are not undermined and that the Fairfax County Exceptions Review Board may continue its work. Please reach out to me at esteinhilber@edf.org or (757) 692-4412 with any questions regarding these comments.
Sincerely,
Emily Steinhilber
Director, Virginia Coasts & Watersheds
Environmental Defense Fund