The Virginia Department on Environmental Quality (DEQ) today announced an updated process for protecting Virginia wetlands following the Sackett Supreme Court decision. That decision significantly narrowed the scope of waters that are considered “waters of the United States,” protected under the Clean Water Act. Many wetlands in Virginia will now be considered outside federal protection.
Virginia protects all waters in the Commonwealth, including wetlands, and the state’s rules prohibit impacts from development and other activities that would allow a net loss of wetlands.
Before the Supreme Court decision, developers could secure permits for projects in wetlands from the U.S. Army Corps of Engineers and from DEQ. Following Sackett and the loss of federal protection over some wetlands, developers will have to secure permits from DEQ. Some have raised concerns about potential delays at DEQ, due to the need for handling a larger volume of permit applications. The new DEQ guidance should help address this concern while also protecting Virginia’s strong existing wetlands rules.
Permit applications for projects in areas including wetlands must include a precise delineation of the wetlands, as well as an identification of the project’s potential impacts to those wetlands. This was frequently done by the Army Corps. In cases where the Army Corps is no longer able to review wetlands impacts, DEQ this week announced it will prioritize its review of permit applications that include delineations completed by private individuals who are certified professional wetlands delineators. DEQ stated this will “restore certainty in the permitting process and allow projects to move forward in a timely manner.”
Chesapeake Bay Foundation Virginia Executive Director Peggy Sanner issued the following statement.
“Wetlands are important for many reasons—they reduce pollution to rivers and streams, provide valuable wildlife habitat and help protect vulnerable shorelines from destructive storms.
“Fortunately, Virginia has had a wetlands protection program in place that extends across the Commonwealth, unlike the Federal wetlands program that has recently been reduced in scope by the United States Supreme Court. The Commonwealth must continue to live up to its longstanding standard requiring no net loss of wetlands.
“While we are still reviewing this guidance, we are encouraged that DEQ has developed a thoughtful process to help address the need for wetlands protection and permitting efficiency following the Supreme Court decision. But many questions remain. It is imperative that Virginia continues to safeguard wetlands that are no longer federally protected.”