26 comments
A petitioner has requested that the definition of a wetland be altered so as to fit with that of the Corps of Engineers, rather than keeping the current one, established by the US Environmental Protection Agency. The current definition, written by a federal agency based in both science and law, is sound in both regards.
Wetlands, as the name suggests, have varying amounts of water, and their capacity to absorb and retain it is critical in helping maintain balance in our ecosystems, especially along the coast. This capacity will only become more important as storms intensify, as periods of drought and flooding increase. We rely (more than we acknowledge) on wetlands to regulate soil saturation and water quality. Narrowing the definition of a wetland puts these precious lands at risk of destruction, not only threatening the ecosystem and the lives therein, but also humans and our infrastructure.
The Clean Water Act establishes a "baseline" amount of protection, allowing states to enforce stricter standards of water quality. Virginia has the right to determine what it considers "state waters," and to regulate their condition to a greater degree than the federal government. The current definition of a wetland is a demonstration of this right.
Please continue to use the current definition of a wetland, as established by the US Environmental Protection Agency, which is in the best interest of the ecosystem and humans alike, in terms of water quality and climate resilience.
As stewards of our environment, it's crucial to oppose any efforts to weaken protections for wetlands. These ecosystems are not only vital for biodiversity but also serve as natural safeguards against erosion, pollution, and flooding. Let's prioritize the preservation of Virginia's wetlands for the well-being of our communities and future generations.
The Aggregate Producer Members of the Virginia Transportation Construction Alliance (VTCA), respectfully submit these comments relating to the “Petition for Establishment of a Regulation or Policy Interpreting the Definition of a Nontidal Wetland Under 9VAC25-830-40, 9VAC25-830-80, and Fairfax County Ordinance 118-6-1(q)”
The Aggregate Producer Members of VTCA account for 90% of all metal/nonmetal mineral production in the Commonwealth.
It is the position of Virginia’s Aggregate industry that the existing definition of Nontidal Wetlands under 9VAC25-830-40, 9VAC25-830-80, and Fairfax County Ordinance 118-6-1(q) (Nontidal Wetland) is sufficient, effective, and well-understood. Also, we believe the current Code of Virginia establishes the definition of Nontidal Wetlands, and any regulatory amendment would potentially interject confusion when interpreting the definition(s).
VTCA’s Aggregate Producer members would not support any action by the State Water Control Board that would serve to modify the current Code and/or Regulations that may alter current interpretations of the definition of Nontidal Wetlands in the Commonwealth.
Wetlands, even if they are non-tidal, have varying amounts of water, depending on climatic conditions. They are important for absorbing large amounts of water, maintaining balance in the surrounding ecosystem, and providing critical habitat. Destroying these wetlands not only degrades water quality, but threatens neighboring communities with flooding and the loss of homes and possessions.
I ask that you deny this petition and continue to use the current definition of a wetland, as established by the US Environmental Protection Agency.
I oppose this petition which attempts to limit the protections of the Chesapeake Bay Preservation Act (CBPA) and harm our incredibly valuable and vulnerable wetlands.. These wetlands play a critical role in our ecosystem by providing habitat, preventing erosion, filtering pollutants, and reducing flood risks in tidal areas.
That anyone would seek to weaken the ability of the cooperative CBPA to continue to operate as it has is an affront to the citizens of our Commonwealth who treasure the Bay, but is especially egregious in that it seeks to do this via a misinterpretation and misrepresentation of the federal Sackett v EPA ruling which is not applicable in this situation. Localities retain jurisdiction to protect their Resource Protection Areas as they deem best serves the interest of their constituents.
Please deny this petition and thereby uphold the critically important work of protecting the Bay for this and future generations.
The following comments pertain to:
Re: “Petition for Establishment of a Regulation or Policy Interpreting the Definition of a Nontidal Wetland Under 9VAC25-830-40, 9VAC25-830-80
I strongly object to the change request of the petition recently submitted to the water control board. I believe protection of tidal AND non-tidal wetlands is extremely important for the health of our state waterways. Having lived most of my life on and near the James River, I have witnessed a decline in water quality which results in a decline of marine life. We need stronger waterway protections not a move in the opposite and more damaging direction.
I strongly support the CBPA regulations and do NOT believe the Sackett decision was meant to prevent states and localities for protecting our waterways. We need to strengthen and support protections for both tidal and nontidal wetlands.
I hope the water control board members will do the right thing for the right reasons and deny the petition.
Patricia VonOhlen, Newport News, VA
The Petition should be denied as a matter of law and good public policy.
The Petitioner improperly attempts to rely on the U.S. Supreme Court's ruling in Sackett v. EPA as authority to limit the Commonwealth's ability to define and protect its nontidal wetlands in the Chesapeake Bay Protection Act ("CBPA") and its implementing regulations.
The Petitioner's legal thoery is indefensible on its face. In Sackett, the U.S. Supreme Court addressed federal jurisdiction to regulate wetlands. In other words, it only addressed whether the pertinent wetlands were within the regulatory authority of the Federal government under the Clean Water Act. In this instance, the controlling statute is the CBPA, a state statute.
Sackett did not affect the Commonwealth's regulatory definition of "non tidal wetlands" under the CBPA. Thus, Sackett has no effect on how Virginia defines and protects its wetlands.
The CBPA empowers localities to designate and protect areas that are important to ensure water quality protection.
The Petition seeks to improperly limit local Virginia governments' discretion granted by state law and should be denied as a matter of both law and good public policy.
I am writing in opposition to changing how Virginia defines nontidal wetlands in the Chesapeake Bay Preservation Act.
It is not in our Commonwealth's interest to reduce protections for our communities based on the legal determinations from the Sackett v. EPA, which I do not think applies to our situation. The petitioner wants to reduce our state's protections for wetlands, which play a critical role in our ecosystems by providing habitat, preventing erosion, filtering pollutants, and reducing flood risks in tidal areas.
Finally, 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.
Thank you for the opportunity to share my views and advocate for the continued protection of wetlands and the Chesapeake Bay. The Petition seeks to limit local government discretion and should be denied.
Respectfully, Scott A. Graham
I would like to express my strong and sincere opposition to this petition. This petition seeks to limit the protections of the Chesapeake Bay Preservation Act by imposing the legal determinations from the Sackett v. EPA ruling on Virginia. The result of this petition would be to reduce wetlands protections in Virginia, which would be an extremely damaging and short-sighted action. Wetlands are vital for reducing flood risks in tidal areas, for reducing erosion, for filtering pollutants out of runoff before they reach our waterways, and for providing important habitat for hundreds of native species. Reducing protections for wetlands in Virginia would not only damage wildlife, but also our communities by facilitating increased flood risks and allowing greater pollution of the Chesapeake Bay -- thus damaging both fisheries and recreation opportunities.
The CBPA is one of Virginia's most important tools for the protection of water quality. Section 9 VAC 25-830-40 provides a clear definition of nontidal wetlands and DEQ provides localities with significant resources and guidance to help localities implement their CBPA program, including guidance for conducting site-specific RPA determinations and to determine the extent of nontidal wetlands.
With regard to Sackett, this US Supreme Court decision applies only to federal jurisdiction and does not limit the State's or locality’s ability to protect wetlands and sensitive land from development encroachment under the CBPA.
Localities need the tools provided by the CBPA to protect their most sensitive lands from development impacts, protect water quality and reduce nutrient and sediment runoff to the Chesapeake Bay. Implementing these protections also provide secondary benefits for flood protection and improvement of overall environmental health.
Implementing a robust CBPA program is crucial for the protection of my local watershed, the Indian River, for my City of Chesapeake, and for the entire Hampton Roads region.
Please deny this decision. Thank you for your consideration.
Sincerely,
Rogard Ross
President, Friends of Indian River
Chesapeake, Virginia
Mr. Justin Williams April 25, 2024
Virginia Department of Environmental Quality
1111 East Main Street, Suite 1400
P.O. Box 1105
Richmond, VA 23218
This comment sent by email to Justin.Williams@deq.virginia.gov
Re: Fairfax County Ordinance Chapters 116 and 118, and Petition for Establishment of a Regulation or Policy Interpreting the Definition of a Nontidal Wetland
Dear Mr. Williams:
I respectfully submit 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 Ordinances.
The petition as I understand it is to reduce and constrict the Fairfax County Resource Protection area based on the recently decided federal Sackett case. Others have made legal arguments that Sackett should not be applied to the Fairfax RPA. I leave those arguments to legal experts.
Fairfax and the Commonwealth have well established procedures to determine what should be protected and included in the RPA. These areas are established by professionals taking into account surface water, soils, groundwater, vegetations and a variety of other factors.
While the petition does not specifically include reference to tidal wetlands, it is a small and harmful jump to apply Sacket to these important wetlands as well. The Commonwealth has a wealth of laws going back to the 1970s as well as regulation and guidelines applied by VMRC, VIMs, and local wetlands Boards to establish tidal wetlands to which Sacket should not apply.
I oppose this petition for the reasons stated above.
I am a Virginia Professional Engineer. In addition I am appointed member of the Fairfax County Environmental Advisory Committee (EQAC) and Chairman of the Fairfax County Wetlands Board (FCWB). My comments are my own individual comments and are not made as representations of positions taken by EQAC, the FCWB, or of Fairfax County Government.
Yours truly,
Clyde Wilber PE
301 346 8209
cc: Mike Rolband, Director, DEQ
The Friends of Accotink Creek wish to endorse the comments of Clyde Wilbur, 222535.
Are we conservationists or are we hair splitting lawyers?
For 40 years, Virginia and other Chesapeake Bay jurisdictions have failed again and again to meet goals for restoration of the health of the Bay. Whatever the U.S. Supreme Court’s Sackett decision may say, the ethical duty of Virginia is to maintain standards and practices that will effectively preserve the natural bounty of our waters for future generations, not look for flimsy excuses to shirk responsibility.
Existing protections are weak enough. Here in the Accotink Creek watershed in Fairfax County, exceptions to Resource Protection Areas are already routine. Tree clearing, building, and paving in protection areas, and even burial of perennial streams, continue to be commonplace. Witness the travesty of the Northfax West case as one example. We need to close these loopholes, rather than create more obstacles to the preservation of the waters of the Commonwealth.
Let’s not abdicate the obligations of our generation. The Friends of Accotink Creek urge that the petition be rejected.
I write to register my concern that the March 11, 2024 Petition to the State Water Control Board for Establishment of a Regulation or Policy Interpreting the Definition of Nontidal Wetlands is requesting an unnecessary and damaging change to current structures and processes that are in place and relied upon for regulating RPA land in a fair and equitable manner. The court did not address, much less alter, the definition of non tidal wetlands in the referenced court case and so, as I understand, has provided no basis to require local jurisdictions to change the definition or how the CBPA informs local decision making. The CBPA framework for determining which waters and wetlands must be protected under the RPA designation is well established, locally-responsive, and iterative. Further, DEQ provides sufficient technical support to assist localities. Please deny this petition.
I strongly oppose this petition. Applying the flawed logic that undergirds the Sackett v. EPA decision to Virginia's Chesapeake Bay Preservation Act significantly weakens protections for wetlands across Virginia. Wetlands don't occupy the same place in the public imagination as beaches, but they provide crucial benefits to Virginia residents, reducing flood risks, preventing erosion, filtering pollutants from runoff, and providing habitat for native species. Reduce the number of Virginia wetlands, and all we're doing is degrading our ability to reduce flood risk, to control erosion, reduce pollutants, and provide habitat for Virginia wildlife.
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.
I am writing to urge that the petition for rulemaking submitted by Mr. Schnare be denied as it seeks to change how it is determined that wetlands exist in conflict with federally defined practices and scientific consensus and would result in harm to critical riparian and adjacent habitats and their associated flora and fauna that would negatively impact ground and surface waters and the Chesapeake Bay.
The basis for the petition is completely flawed in that they seek to change how wetlands are determined which is not the finding in the cited Sackett vs EPA which instead was focused on how they are regulated. The request in this petition is in direct conflict with national standards and scientific consensus as to the factors that determine the location and extent of wetland features. Therefore the petition should be rejected outright.
The petition would have the further effect of limiting the ability of the state and localities which are the delegated authorities to protect critical surface and ground water features which are essential for protecting water quality, regulating stream flows, preventing flooding of adjacent and downstream properties, providing critical habitat for what are often rare vegetative communities which are confined to wetlands and their associated wildlife species and harm the estuaries of the Chesapeake Bay and its contributing water bodies.
I am against this petition. It aims to apply the legal decisions of the Sackett v. EPA case to Virginia's Chesapeake Bay Preservation Act, potentially weakening protections for wetlands in the state. This move would be harmful and short-sighted. Wetlands play a crucial role in reducing flood risks, preventing erosion, filtering pollutants from runoff, and providing habitat for numerous native species. Weakening wetland protections in Virginia would not only harm wildlife but also increase flood risks and pollution in the Chesapeake Bay, damaging fisheries and recreational activities. It is critical that the Commonwealth's robust wetlands protections are not eroded, especially as we face increasing flood risk due to sea level rise.
I strongly oppose this petition. It aims to apply the legal decisions of the Sackett v. EPA case to Virginia's Chesapeake Bay Preservation Act, potentially weakening protections for wetlands in the state. This move would be harmful and short-sighted. Wetlands play a crucial role in reducing flood risks, preventing erosion, filtering pollutants from runoff, and providing habitat for numerous native species. Weakening wetland protections in Virginia would not only harm wildlife but also increase flood risks and pollution in the Chesapeake Bay, damaging fisheries and recreational activities.
DEQ should not change their current definition of nontidal wetlands. I do not see the need to change the definition since DEQ's existing definition is scientifically sound as is. Not only is the definition sound, nontidal wetlands play an important role for water quality, community flood resilience, and provide countless benefits to fish and wildlife habitats. Waterfowl and other types of birds use nontidal wetlands for breeding, wintering, and migrating. Nontidal wetlands also provide much needed organic material and food for the Chesapeake Bay food chain.
This year, the General Assembly decided to not role back protections for tidal wetlands and nontidal wetlands in a bipartisan manner. Moreover, The Commonwealth broadly defines the term "state waters" to include for environmental protection purposes to cover wetlands, including non-tidal wetlands.
I do not think that an individual should have the power to change the definition of nontidal wetlands when the General Assembly decided to do the exact opposite in a bipartisan manner. This role back will hurt more than it will help nontidal wetlands and in turn does nothing for VA to meet the goals for the Chesapeake Bay and stop upstream pollution. This role back will have a negative impact on all wildlife who use nontidal wetlands, and it will have a negative impact on the outdoor recreation sector which generates billions of dollars in VA and the highest amount comes from boating and fishing.
I implore you to reject this change.
The James River Association (JRA) submits the following comments in regards to the Petition to the State Water Control Board for Establishment of a Regulation or Policy Interpreting the Definition of Nontidal Wetland Under 9VAC25-830-40, 9VAC25-830-80, and Fairfax County Ordinance 118-6-1(q) (the Petition) to the Department of Environmental Quality regarding the Chesapeake Bay Preservation Act on March 11, 2024.
The James River Association (JRA) is a member-supported nonprofit organization founded in 1976 to serve as a guardian and voice for the James River. Throughout the James River’s 10,000-square mile watershed, JRA works toward its vision of a fully healthy James River supporting thriving communities. In this capacity, JRA is extremely concerned regarding the nature of this petition and many of the assumptions which underpin it. We write to you seeking a denial of the petition given the significant misinterpretations present in the document.
Of note, the allowance of localities to shield their most sensitive lands from development impacts is of the highest importance for maintaining water quality and reducing nutrient and sediment runoff into the Chesapeake Bay. Every two years, JRA conducts a data-based analysis of the health of the James River, and in 2023, JRA found that the James (one of the Bay’s most significant entities) is suffering from high levels of sedimentation. Maintaining the powers granted to these local governments under the CBPA is necessary to allow for the responsible and prudent development of lands. Because of this petition’s erroneous misunderstanding of the Supreme Court’s ruling in Sackett v. EPA, approval of the petition would strip localities of this crucial conservation tool.
Currently, JRA observes the CBPA operating as it was intended to, and thus no regulatory change of the significance sought in this petition is needed. The CBPA, whose foundation is coordination between state and local entities, is a model of conservation, and provides Virginia with some of the most robust instruments in wetlands management in the entire country. Furthermore, as the specific matter outlined in the petition is still in process, it would be inappropriate at this time for the State Water Control Board to thrust themselves into said matter.
It is our position that the ruling set forth by the Supreme Court in Sackett v. EPA does not merit the regulatory framework shift which is proposed in the petition. Primarily, the ruling in Sackett v. EPA does not grant the powers sought by the petitioner as that specific case deals with regulatory authority under the Clean Water Act of the federal government, not locality conservation of sensitive lands.
For many years, DEQ has been working with localities to implement CBPA regulations including determinations of Resource Protection Areas and the furnishment of guidance regarding the protection of wetlands. We find the presence of this coordination between DEQ and localities to be more than sufficient.
In conclusion, the James River Association strongly urges the Board to deny this petition. It seeks to utilize unrelated case law in order to weaken Virginia’s wetlands protections and strip localities of the powers already afforded to them under the law. This would establish a dangerous precedent and would remove Virginia of her leadership role on the national stage regarding environmental quality and management.
April 29, 2024
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
Re: “Petition for Establishment of a Regulation or Policy Interpreting the Definition of a Nontidal Wetland Under 9VAC25-830-40, 9VAC25-830-80, and Fairfax County Ordinance 118-6-1(q)”
Dear Mr. Williams:
Potomac Conservancy (PC) 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’s (DEQ) regarding the Chesapeake Bay Preservation Act (CBPA).
Founded in 1993, Potomac Conservancy is the region’s leading clean water advocate, fighting to ensure the Potomac River boasts clean drinking water, healthy lands, and vibrant communities. Potomac Conservancy hopes to make the Potomac region a place where clean water, outdoor experiences, and thriving ecosystems are accessible to and safe for everyone.
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 Potomac River and the Chesapeake Bay. The Chesapeake Bay Preservation Act (“CBPA”) is a key program toward these shared goals because it empowers localities to designate and protect areas that are important to ensuring water quality protection – including a range of nontidal wetlands, whether with or without a surface water connection. To support localities in determining which nontidal wetlands warrant protection, DEQ provides localities with clear guidance and significant resources on how to evaluate wetlands for protection.
The Petition seeks to limit this local government discretion and should be denied. In particular, the Supreme Court’s decision in Sackett v. EPA does not warrant the Petition’s proposed changes to how Virginia defines nontidal wetlands in the CPBA. The Sackett case only addressed federal jurisdiction to regulate wetlands: it does not impact how wetlands are defined or protected under Virginia state law.
Sackett also does not limit a locality’s ability to protect sensitive land from development encroachment under the CBPA. The CBPA program is operating as intended, with cooperation among Virginia’s state and local governments. No regulatory changes are warranted, so the Board should deny the Petition.
Further, 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. The CBPA provides local governments with the authority and the obligation to protect sensitive lands.
Because the Petition misinterprets the relationship of the Supreme Court’s decision in Sackett v. EPA to Virginia’s CBPA program and seeks to undermine localities’ authority to protect sensitive land, it should be denied.
Thank you for your consideration and the opportunity to offer these comments. Potomac Conservancy looks forward to continuing to support protection of Virginia’s natural resources and helping create a healthy, vibrant Potomac River and Chesapeake Bay.
Sincerely,
Anna Mudd
Senior Director of Policy
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
I strongly oppose this petition. It aims to apply the legal decisions of the Sackett v. EPA case to Virginia's Chesapeake Bay Preservation Act, potentially weakening protections for wetlands in the state. This move would be harmful and short-sighted. Wetlands play a crucial role in reducing flood risks, preventing erosion, filtering pollutants from runoff, and providing habitat for numerous native species. Weakening wetland protections in Virginia would not only harm wildlife but also increase flood risks and pollution in the Chesapeake Bay, damaging fisheries and recreational activities.
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
I strongly object to this petition that seems to misapply the legal decisions of the Sackett v. EPA case to Virginia's Chesapeake Bay Preservation Act (CBPA). The proposed changes to Virginia's definition of nontidal wetlands under the CBPA, as outlined in the petition, aren't justified by the Supreme Court's ruling in Sackett v. EPA. The Sackett decision dealt with federal jurisdiction over wetlands regulation and doesn't impact Virginia state law regarding wetland definition or protection. Sackett doesn't limit a community's ability to safeguard sensitive land from development under the CBPA. The CBPA is a significant collaboration between Virginia's state and local governments and grants localities the authority to identify and protect areas vital for maintaining state water quality. However, this petition aims to restrict that local decision-making authority, which isn't the way to go. In fact, this move could potentially undermine the existing protections for wetlands in the state, which would be detrimental to the environment and communities. Wetlands are a vital ecosystem component that helps mitigate wave energy from rough waters, prevent coastal erosion, filter pollutants from runoff, and provide habitat for various native species. Any attempt to weaken the wetland protections in Virginia would not only harm wildlife but also exacerbate shoreline erosion and non-point pollution in the Chesapeake Bay, ultimately damaging the fisheries, oyster habitats, recreational activities, and general quality of life.