Thank you for the opportunity to comment on this petition. It must be pointed out that there is a distinction between the identification of a wetland, which the Corps of Engineers manual describes, and jurisdictional wetlands, which in the case of Virginia is governed by state regulation. The Chesapeake Bay Preservation Act (CBPA) provides a state guidance and framework for a cooperative effort by localities to protect those sensitive areas of local importance. In order to specify these areas, a locality may draw upon state or federal resources such as the Corps of Engineers manual or state regulations and expertise. Through the CBPA those areas are then designated for protections independent of what federal jurisdiction may be but in conformance with state regulation and the process it allows for local protections.  9VAC25-830-40. is the section dealing with definitions. It is  9VAC25-830-80. Resource Protection Areas (RPA) that specifies that non-tidal wetlands subject to inclusion in the RPA are Nontidal wetlands connected by surface flow and contiguous to tidal wetlands or water bodies with perennial flow; However, this section also allows for the inclusion of such other lands considered by the local government to meet the provisions of subsection A of this section and to be necessary to protect the quality of state waters.

The CBPA program is operating as intended and no regulatory changes are warranted, so the Board should deny the Petition. The specific exception request in Fairfax County that led to the Petition remains pending and the Board should not insert itself into this local decision.

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. 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.