The Evolution of Virginia’s Nontidal Wetlands Program National Governor’s Association

1. The Evolution of Virginia’s Nontidal Wetlands Program National Governor’s Association State Wetlands Workshop October 21-22, 2002

2. IN THE BEGINNING……………. THERE WAS CLEAN WATER ACT SECTION 401 CERTIFICATION OF SECTION 404 PERMITS

3. PROGRESS IS MADE………….. • State Water Control Law in 1992 established Virginia Water Protection Permit Program • Still served only as Section 401 Program, so DEQ could issue permits only when the Corps took permit action • DEQ exercised ability to waive therequirement for a permit for many activities

4. Then Problems Arose…….. • Federal court decisions had created loopholes in federal jurisdiction, and hence Virginia’s jurisdiction • Tulloch • Wilson case (4th Circuit only-VA, NC, SC, WV) • SWANCC

5. What this meant for Virginia’s Wetlands • Virginia has approximately 1,044,900 acres of wetlands; 23% tidal, 77% nontidal1 • About 58% of these wetlands are located in the Urban Crescent between D.C. to Norfolk • Of 804,573 acres of nontidal wetlands: • 750,000 acres are palustrine • 380,000 acres are headwaters • over 150,000 acres can be considered isolated 1Based on 8/2000 data from Virginia Institute of Marine Science

6. Impacts from Tulloch Ditching • Estimates of greater than 588,000 acres of Virginia's nontidal wetlands were susceptible to ditching and draining • Over 2700 acres of nontidal wetlands in Virginia were actually ditched between 1997 and 2000 as a result of the Tulloch court decision

7. Impacts to Isolated Wetlands • Estimates of over 180,000 acres of isolated wetlands in Virginia • Over 70 acres of isolated wetlands filled without a permit or compensation between 1998 and 2000

8. General Assembly Takes Notice • CBF, SELC, JRA and others organized aggressive grass roots campaign and lobbying effort • Legislative committee studies the issue during the summer of 1999 • Wetland protection was the pre-eminent topic for the 2000 Session

9. General Assembly Takes Notice • Five bills introduced to enhance state nontidal wetlands programs to varying degrees • Some looking only for “fix” to Tulloch ditching and unpermitted impacts to isolated wetlands • Some proposed more comprehensive revisions to statute creating “nontidal wetlands law”

10. Bipartisan Effort • Final Bills (HB 1170 and SB648) enjoyed bipartisan support • Final Bills supported by Home Builders Association of Virginia and local development groups as well as Chesapeake Bay Foundation and other environmental groups • Bills also had public support through education and outreach efforts

11. 2000 Legislation • Built on existing Virginia Water Protection Permit Program • Created nontidal wetlands program independent of Section 401 certification • Expedited permitting process through specific timeframes and general permits • Increased life of permits • Required DEQ by 7/1/02 to request State Programmatic General Permit from USACE

12. What is regulated? • All activities in surface waters/wetlands currently regulated under Section 404 Clean Water Act • Excavation in all wetlands (7/01/00) • Permanent flooding or impounding (10/01/01) • New activities to cause draining or other new activities, causing significant alteration or degradation of existing wetland acreage and function (10/01/01) • Filling or dumping (10/01/01)

13. What is exempt • Activities Exempt from VWP regulation: • Normal agricultural activities • Normal silvicultural activities • Normal residential lawn and yard maintenance and use activities • Isolated wetlands of minimal ecological value (<1/10 acre, not forested, no t&e or special community, not in floodplain)

14. FACTORS FOR PERMIT ISSUANCE • Must avoid and minimize wetland impacts to maximum extent practicable (incorporates 404(b)(1) guidelines) • Must consider cumulative impacts to water quality and fish and wildlife resources • Must compensate for wetland impacts to achieve no net loss of wetland acreage and function; stream impacts also to be compensated

15. Regulatory Process • Technical Advisory Committee (TAC) formed with 30 people representing varied constituencies • TAC charged with assisting DEQ staff in developing workable regulations • TAC met 8 times in 6 months • Nontidal wetland regulation and 4 general permits were developed

16. Compromises Made • More information required for permit applications, but as 2 stage process (for example, final mitigation plan can be approved after permit is issued based on concept plan) • Mitigation banks and in lieu fee funds are acceptable forms of compensation, but only after going through formal approval process • Easier to make minor changes after permit is issued, including small increases in impacts that are fully mitigated

17. General Permits for Majority of Projects • Generally cover impacts up to 2 acres of surface waters, including 500 l.f. perennial and 1500 l.f. intermittent streams • Standard conditions allow for simplified application and review • Reduced DEQ review time (max 45 days) • No public comment or hearings on projects • Certifications of Corps NWPs remain in effect to minimize program overlap

18. Implementation Results • Since July 2000, unpermitted Tulloch ditching has stopped in Virginia • One permit application to Tulloch ditch has been received • Since October 2001, unpermitted impacts to isolated wetlands have stopped

19. How We Permit Tulloch Ditching • Impact area is the ditch footprint plus adjacent area that is effectively drained • Full Compensation required for the entire impact area • This approach is an economic deterrent because fill footprint is often smaller than ditch impact footprint

20. How DEQ Regulates Isolated Wetlands • Part of “state waters” • Can waive requirement for permit for isolated wetlands of “minimal ecological value” (<1/10 acre, not forested, no t&e or special community, not in floodplain) • Corps will approve delineations, make isolated wetland determination, and note that for isolated wetlands applicant must seek permit from DEQ even if no Section 404 permit is required

21. Streamlining The State/Federal Process • Corps Norfolk District issued State Program General Permit (SPGP) for development and transportation impacts effective 11/1/02 • In Virginia, NWP 39 and nontidal portions of NWP 14 are suspended • Corps and DEQ have MOA on coordination of duties

22. How SPGP Works • SPGP is General Permit that feeds off of DEQ General Permits • Tiered approach to issuing permits: • Tier I: DEQ issues alone (1/2 acre and up to 300 l.f. stream bed for development projects; 1/3 acre per crossing for transportation projects) • Tier II: DEQ issues, Corps reviews and either issues or yields to DEQ permit (between 1/2 and 1 acre for development projects and up to 2,000 l.f. stream bed) • Tier III: DEQ issues GP or IP, Corps issues IP • For details go to Norfolk District website at: http://www.nao.usace.army.mil/Regulatory/SPGP-01.htm

23. Why it all worked • Successful lobbying effort and bipartisan support • Trade off between more comprehensive program and expedited permitting • Built on existing permit program to reduce “surprises” • Included requirement to work with Corps to reduce duplication of permitting efforts

24. Success of the Program --Something For Everyone • Environmentalists -- protection of more wetland resources • Developers -- Quicker permitting, more certainty, less regulatory duplication • Regulators -- Clearer regulation, GPs minimize paperwork and give more time for compliance inspections and enforcement

25. Still Have Questions? Contact Ellen Gilinsky VWPP Program Manager 804-698-4375 egilinsky@deq.state.va.us or visit our website at http://www.deq.state.va.us/wetlands