Mr. Justin Williams
Virginia Department of Environmental Quality
1111 East Main Street, Suite 1400
P.O. Box 1105
Richmond, VA 23218
Via email: Justin.Williams@deq.virginia.gov
Dear Mr. Williams:
Wetlands Watch 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). We believe this petition threatens nontidal wetlands protections in Virginia and request that the State Water Control Board deny this petition.
Wetlands Watch, a Norfolk-based nonprofit, works statewide to safeguard wetlands and shoreline ecosystems in the face of climate change. With the highest rate of relative sea-level rise on the Atlantic coast, Virginia’s coastal communities have already been experiencing climate impacts in more frequent flood events and losses of the coastal ecosystem. Over the past 12 years, our focus has included protecting these ecosystems, including nontidal wetlands, from the impacts of sea-level rise. Wetlands Watch is also a Virginia Chesapeake Bay Landscape Professional (CBLP) Program Consortium Partner. We develop and provide training to resilience, landscape, environmental stormwater, and local government professionals to ensure proper siting, design, installation, maintenance, and inspection of Chesapeake Bay Program and Virginia-approved best management practices.
The primary reason for rejecting this petition is the petitioner’s evident confusion between delineating wetland boundaries (e.g., the scientific process of identifying the conditions in which wetlands exist) and jurisdictional boundaries (which currently rely on regulatory and statutory authority between federal and state agencies).
To clarify further, the petitioner believes that the Fairfax County Chesapeake Bay Preservation Act Exception Review Committee cannot use the maps informed by the definition of wetlands from the Clean Water Act (CWA). The petitioner bases this belief on the Supreme Court’s decision in Sackett v. EPA, which he argues invalidates the definition of nontidal wetlands used in this map. An astute reader may pull up the definition of “nontidal wetlands” in (VAC25-830-40) and see the concluding clause linking the definition of wetlands in Virginia to the CWA. This could lead them to speculate about a potential connection between the CBPA and the Sackett v. EPA decision. However, upon closer examination of the Code of Federal Regulations (and the opinions of the Supreme Court justices), the reader would realize that the definition primarily pertains to the jurisdictional boundaries of federal agencies.
The petitioner’s argument seems confused because Sackett v. EPA does not discuss how to delineate nontidal wetlands; it discusses which federal agency has jurisdiction over nontidal wetlands and how much the federal agency can regulate. Put differently, the Sackett decision altered the federal landscape on how federal agencies can regulate wetlands, but it did not impact how wetlands are defined under Virginia state law. The petitioner’s argument relied heavily on the connection between Sackett and the CBPA definition of nontidal wetlands. Therefore, it loses its validity because there is no link between Sackett and the CBPA.
The petitioner requests the State Water Control Board develop new rules and positions for identifying nontidal wetlands, which are already defined. By requesting this, the petitioner expresses doubt about any local government’s ability to identify nontidal wetlands and requests DEQ to devise technical methodologies for delineating Resource Protection Area (RPA) buffers linked to nontidal wetlands. The petitioner’s attempt to invoke Sackett is misplaced as the CBPA does not govern Virginia’s definition of nontidal wetlands and overlooks the local government’s authority and responsibility over land use management.
The CBPA empowers local governments to create a process to sort out nonconformities, exemptions, and exceptions for their local contexts. Working correctly, the Exception Review Committees can resolve these issues without the State Water Control Board being involved, nor redefining the definition of nontidal wetlands for the whole state.
The petition centers heavily on an exception in Fairfax County as the justification for changes to the CBPA. Fairfax County has an Exception Review Committee looking into this question and is actively doing so at the time of writing. Such a condition of an active case begs the question of whether the Board should act on a pending exception. Given the active nature of the dispute, the Board should not even hear the petition.
The petition challenges a local government’s authority to regulate and protect sensitive areas to support water quality. The CBPA allows local governments to regulate land within the RPA buffer and beyond if they elect to extend the buffer area. The petition, however, aims to restrict the considerations that a locality may take into account when deciding whether to designate such areas for protection.
To conclude, the CBPA program is functioning effectively, and there is no need for regulatory changes. Given the specific exception request in Fairfax County, which prompted the petition, is still pending, the Board should refrain from intervening in local decision-making.
As stated in the first cause for rejection this petition seems informed by a recent Supreme Court decision, Sackett v. EPA, which has significantly altered how federal agencies in the US understand the jurisdictional boundaries of waters, and as a result of wetlands. The petitioner attempts to roll back Virginia wetlands protections to bring them into compliance with federal agency jurisdiction due to the Sackett decision. For this reason, it should not be heard and rejected at face value.
We are grateful for DEQ’s consideration of these comments, and we hope that the Board will reject the petition to avoid undermining local government’s CBPA programs. Please contact Wetlands Watch at ian.blair@wetlandswatch.org or mc.stiff@wetlandswatch.org with any questions regarding these comments.
Sincerely,
Mary-Carson Stiff & Ian Blair
Executive Director & Policy Program Director
Wetlands Watch