Sunday, July 2, 2023

Wetlands in Virginia

On May 25, 2023, the United States Supreme Court issued its decision in Sackett v. Environmental Protection Agency (Sackett). With this case the Court determined that the jurisdiction of the Clean Water Act "extends only to those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right, such that they are indistinguishable from those waters."

Mike and Chantell Sackett had challenged whether the EPA's interpretation of Waters of the United States under the Clean Water Act covers wetlands with an “ecologically significant nexus” to traditional navigable waters. The EPA had classified the wetlands on the Sacketts' lot as "waters of the United States" because they were near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake. The EPA argued that the wetlands on the Sackett property were "adjacent" to an "unnamed tributary" on the other side of a 30-foot road. To establish a significant nexus, the EPA combined the Sacketts' lot together with the Kalispell Bay Fen, a large nearby wetland complex that the Agency regarded as "similarly situated."

Their argument did not sway a single justice. The Supreme Court found that the EPA had overstepped its authority in asserting jurisdiction over the Sacketts' property. The opinion identified what wetlands are protected by the Clean Water Act, excluding smaller waterbodies, such as intermittent streams and tributaries of traditionally navigable waters, from Clean Water Act authority.

The proper way to protect the wetlands, groundwater and seasonal streams that we now understand are so essential to a balanced ecology and healthy rivers and streams may be regulations for the application of fill material, land use, non-point source pollution and other local issues. These are not issues addressed under the Clean Water Act which addresses point source pollution. These issues need to be addressed on the state and local level.

Virginia has a very broad and comprehensive statutory definition of state waters. Since at least 1968, state waters have been defined to include “all water, on the surface and under the ground, wholly or partially within or bordering the [Commonwealth] or within its jurisdiction.” This definition was expanded in 2000 to include “all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.” Virginia law prohibits excavating, filling, draining, or other activities that cause significant alteration or degradation of existing wetland acreage or functions without a permit.

Since 2001, Virginia has regulated activities in wetlands and streams through the Virginia Water Protection Permit (VWPP) program. These permits require avoidance and minimization of wetland impacts to the maximum extent practicable and compensation for any unavoidable loss of wetland functions. Neither the State law nor the VWPP regulation was affected by the Sackett decision.

Virginia regulations (9VAC25-210-80(B)(1)(h)(5)) require a delineation map depicting all surface waters, including wetlands, identified on the project site using accepted Corps methodologies (9VAC25-210-45) for an application to be complete. This could have been a problem on moving projects forward while the EPA and Army Corps of Engineers revise their regulations; but the projects can move forward under an alternate pathway.

The Virginia State Water Control Law (62.1-44.15:21(C)) allows DEQ to make its own State Surface Water Determinations (SSWDs) using accepted Corps field methods, or DEQ may accept a Corps confirmation. In many cases, the Corps' boundary confirmation will suffice for DEQ's permitting activities. DEQ has just issued guidance on the new process and confirmed their intention to meet all the permit requests in as timely a fashion as possible.  

In addition, the Sackett decision does not affect the definition of Resource Protection Areas (RPAs) and Resource Management Areas (RMAs) as defined in the Chesapeake Bay Preservation Act and associated regulations. The Chesapeake Bay Preservation Act’s implementing regulations provide that some wetlands are components of the RPA and some are components of the RMA. The geographic extents of these wetland components are independent of federal jurisdictional determinations and will remain under state jurisdiction unchanged.

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