Compliance & Other Legal Information

Viiolation Monitoring the project process and assessment of compliance with permit conditions is critical to ensure the intent of the law and to the understanding of the status and trends of tidal wetland and shoreline resources. Through the violation hearing and restoration order process, corrective actions can be required when wetland or beach/dune resources are impacted without a permit or not in compliance with a permit. Additional guidance from the Office of the Attorney General, Court decisions and local government approaches to policy options can be helpful.

Compliance

Investigations and Prosecutions

Wetland Boards may investigate all projects which alter wetlands within their jurisdiction. Wetland Boards may prosecute violations of their orders and any violation of the wetlands zoning ordinance.

Monitoring, Inspections, Compliance, and Restoration

The Commissioner or board chairman, or delegated designee, may require monitoring and reporting to ensure compliance with permits. Inspections may be required with prior notification to the owner, occupier or operator.

If it is determined that there is a failure to comply with the permit, the chairman shall serve notice to the permittee or to the person supervising those. The notice shall describe the measures needed for compliance and the time within which these measures shall be completed. Failure of the person to comply within the specified period is a violation. [Code of Virginia § 28.2-1317]

Stop Work Order

The board chairman may, upon receipt of a sworn complaint of a violation from the designated enforcement officer, issue an order requiring all or part of the activities be stopped until the specified corrective measures have been taken. If the activity is either not authorized by a permit (a violation), or permit noncompliance is causing, or will cause, significant harm to the wetlands, the order may be issued without a notice to comply. Otherwise, the (stop work) order may be issued only after the permittee has failed satisfy the requirements of the notice to comply. The order shall remain in effect for a period of seven days pending application by the enforcing authority, permittee, resident owner, occupier, or operator for appropriate relief to the circuit court. Upon completion of corrective action, the order shall immediately be lifted.

Restoration Order

A wetlands board may order that the affected site (either violation or non-compliant permit actions) be restored to predevelopment conditions if that restoration is necessary to recover lost resources or to prevent further damage to resources. The order shall specify the restoration necessary and establish a reasonable time for its completion. A restoration order may only be issued after a hearing. The hearing notice to be provided with at least thirty days' prior and specify time, place, and purpose. The Commission or board shall require any scientific monitoring plan they believe necessary to ensure the successful reestablishment of wetlands and may require a prepaid contract be in effect to perform the scientific monitoring plan. The board may require a reasonable bond or letter of credit to secure compliance with the conditions in the restoration order. The appropriate court, upon petition by the board, may enforce any such restoration order by injunction, mandamus, or other appropriate remedy. Failure to complete the required restoration is a violation.

Violations and Penalties

Violation of the law is a Class 1 misdemeanor. Following a conviction, every day the violation continues is a separate offense. [Code of Virginia § 28.2-1318]

Injunctions

The Commission or a wetlands board may petition the local circuit court regarding unlawful acts and the court may enjoin the unlawful act and order the defendant to take any steps necessary to restore, protect, and preserve the wetlands involved. This remedy shall be exclusive of and in addition to any criminal penalty which may be imposed under Code of Virginia § 28.2-1319.

Penalties

Violation of the Wetland Act may result in a civil penalty not to exceed $25,000 for each day of violation. Civil penalties to be paid to the locality for the purpose of abating environmental damage to or restoring wetlands therein. If the violator is the county, city, or town itself, or its agent, the court shall direct the penalty to be paid into the state treasury.

With the consent of the violator, the Commission or wetlands board may order the one-time payment of civil charges for each violation not to exceed $10,000. Civil charges shall be in lieu of any appropriate civil penalty which could be imposed under subsection A of this section. Civil charges may be in addition to the cost of any restoration ordered by the Commission or a wetlands board. [Code of Virginia § 28.2-1320]

Other Legal Resources

Court Cases

Dillon Rule, Police Power

Nicoll v. City of Norfolk Wetlands Board, 90 Va. Cir. 169 (Norfolk, 2015)
Under the statutory scheme of Virginia Code § 28.2-1300 et seq., wetlands boards are not bound by VMRC decisions since either the VMRC or the local board controls permitting decisions. Where a locality has set up a wetlands board, VMRC's interpretations regarding the approval of permits are not binding on boards’ decisions. VMRC interpretations of local ordinances or state law are especially unpersuasive, since legal interpretation is the domain of the courts, not an agency. Additionally, wetlands boards have express statutory authority (meaning there is no Dillon Rule conflict) to enforce their wetlands permitting requirements; this includes actions such as investigating and enforcing permits, and, like in this case, issuing “cease and desist” orders to prevent violations of their decisions. Virginia Code §§ 28.2-1316-17.

Standard of Review

Boone v. Harrison, 52 Va. App. 53 (2008)
Under the Virginia Administrative Process Act, VMRC decisions will only be overturned if the challenger can show that the decision can be fairly characterized as arbitrary or capricious and therefore a clear abuse of delegated discretion.

City of Virginia Beach v. VMRC, No. 2549021, Court of Appeals of Virginia Unpublished Opinions (2003)Wetlands board findings of fact will be upheld by courts if supported by credible evidence, which boards can show by weighing all the pertinent factors and taking steps to protect the impacted areas, such as in this case imposing conditions on the permit. Discretionary decisions by wetlands boards will only be reversed if the decision is arbitrary and capricious. Otherwise, courts will not substitute their judgment for the boards’ expertise.

Agency Deference

Palmer v. VMRC, 48 Va. App. 78 (2006)
VMRC decisions are given deference if they are supported by substantial evidence in the record and within their field of expertise.

Stearns v VMRC, 57 Va. Cir. 213 (Norfolk Cir. Ct. 2001) (subsequent appeal of 54 Va. Cir. 294)
Court’s will give a state agency deference where a decision to grant or deny a permit was based upon agency expertise. If, however, an agency’s decision to grant or deny a permit is based upon procedural grounds, the agency does not receive the same level of deference.

Police Power, Property Rights

Evelyn v. VMRC, 46 Va. App. 618 (2005)
VMRC has the policing power to enforce permits issued under Virginia Code §§ 28.2-1203 and 62.1-164. The permittee does not have unlimited property rights over structures approved by wetlands boards or VMRC.

Jurisdiction of the Court

Stearns v. VMRC, 60 Va. Cir. 296 (Norfolk Cir. Ct. 2002) (subsequent litigation to 57 Va. Cir. 213)
Twenty-one days after the entry of a final order, a trial court loses power over the cause of action. Pursuant to Virginia Code § 28.2-1315, judicial review is limited to appeals from VMRC’s decisions. And, under the Virginia Administrative Process Act, the authority of the court to stay the action depends on whether the court finds such action to be required to prevent immediate, unavoidable, and irreparable injury.

Notice to Localities, Standing

City of Norfolk Wetlands Board v. VMRC, 54 Va. Cir. 294 (Norfolk Cir. Ct. 2000)
VMRC is required to give notice to localities when overturning wetlands board decisions so that the locality may appeal the VMRC decision, since the wetlands board cannot. Virginia Code § 28.2-1312. The Virginia Administrative Process Act controls whether or not a party has standing to appeal. In this case, a neighboring landowner that sought to intervene did not have standing because the neighbor was not challenging the lawfulness of the agency’s decision, rather the neighbor agreed with the agency’s decision.

Consideration of Factors, Substantial Evidence

The Coves at Wilton Creek, L.P. v. VMRC, 20 Va. Cir. 527 (Fairfax Cty. Cir. Ct. 1988).
VMRC (and wetlands boards) have an obligation to consider all relevant factors listed in the appropriate provisions of the Wetlands Act and local wetlands ordinance, and not rely on a single factor, otherwise their decision could be found arbitrary and capricious. This balancing of the factors must be shown in the written decision approving or denying the permit. There must be “substantial evidence” in the record to support VMRC’s decision.

Factual Disputes, Timeliness

Bailey v. VMRC, 3 Va. Cir. 254 (Va. Beach Cir. Ct. 1984)
When a wetlands board or VMRC resolves factual disputes, courts will defer to their determinations. If an activity impairs the natural function of a coastal primary sand dune, wetlands boards are justified in denying a permit. Although a news article indicated possible prejudice of two board members, this issue was only raised on appeal without the local board having an opportunity to act on it during the initial hearing and was, therefore, not timely.

Burden of Proof, Agency Deference, Taking

Hall v. VMRC, 5 Va. Cir. 202 (Va. Beach Cir. Ct. 1984)
The complaining party bears the burden of proof to show an error of law, since agency decisions are presumed correct. Courts will defer to the decisions of VMRC and wetlands boards if the decision to deny a permit was not arbitrary or capricious and it achieved the goals of the Wetlands Act. Even where the landowners’ use of their property is limited by the decision, there is no unconstitutional taking since preventing harm to public rights is not an abuse of police power.

Proper Party to an Action

Walsh v. Pruitt, 7 Va. Cir. 196 (Norfolk Cir. Ct. 1983)
Only the commission itself is a proper respondent in VMRC appeals but the court will generally give a petitioner an opportunity to amend their complaint so that the proper party is before the court if the amendment is timely (i.e., completed before any responsive pleadings filed).

Attorney General Opinions

Wetlands and Subaqueous Lands

1984-1985 Annual Report, Pg 448, October 31, 1984
“By reading a wetlands board’s authority to carry out the Commonwealth’s strong policy favoring wetlands preservation, together with the deference to the Wetlands Act decisions contained in [Virginia Code] § 62.1-1-3 (now found at § 28.2-1301) , I conclude that a local wetlands board should consider the impact on wetlands from the total project, including that portion of the project resting on subaqueous lands beyond the wetland. Although not expressly authorized to do so by statute, regulation of the length of the structure is vital to exercising the authority to regulate the use of wetlands. Whether such consideration will require imposition of a limitation on the length of structures located below mean low water is a factual determination which must be made on a case-by-case basis. That decision is subject to review by the Commission. If the wetlands board does not consider the wetlands impact of the total project, the Commission must consider, pursuant to [Virginia Code] § 62.1-1-3 (now found at § 28.2-1301), the effect of such a subaqueous project on wetlands, when it determines whether or not to grant a permit to use subaqueous lands. I am, therefore, of the opinion that a local wetlands board is authorized to regulate the length of a structure which is constructed through both the intertidal zone and channelward of mean low water, subject to superior jurisdiction of the Commission to modify or reverse the decision.”

1984-1985 Annual Report, Pg 449-450, December 19, 1984 - Code of Virginia § 62.1-13.5 (now found at § 28.2-1301)
WETLANDS. REPAIR OR REPLACEMENT OF BULKHEADS EXEMPT FROM PERMIT REQUIREMENTS AS LONG AS NO ADDITIONAL WETLANDS COVERED.

“I am advised that when a bulkhead begins to suffer serious deterioration, a common practice is to completely replace it. The replacement may occupy the exact location or it may be constructed seaward of the exising (typo found in original citation) bulkhead. If not built on the same location, it would necessarily mean that additional wetlands will be covered by the facility.

I am, therefore, of the opinion that replacement of a bulkhead is within the contemplation of "normal maintenance, repair or addition to presently existing...facilities...." If, however, any additional wetlands will be covered, such replacement will require a wetlands permit inasmuch as it would not then be exempted as provided in S 3(h) of the wetlands ordinance.”

Flood Control Projects

No. 19-017, September 6, 2019
"It is my opinion that (1) a local government’s use of state-owned bottomlands for a flood control project qualifies as a “government activity” as defined in VA Code § 28.2-1300 and § 28.2-1400; (2) VA Code § 28.2-1200.1 empowers the Commonwealth to grant easements to local governments to use state-owned bottomlands for flood control projects; and (3) an easement granted pursuant to VA Code § 28.2-1200.1 is made in the name of the Commonwealth acting through VMRC as the granting agency and that such easement must also be executed by the Attorney General, indicating the Attorney General’s approval and countersigned by the Governor, indicating the Governor’s approval. However, these conclusions are limited to easements in submerged bottomlands located outside the Baylor Survey."

Compensatory Mitigation

No. 15-043, October 2, 2015
"It is my opinion that VA Code § 62.1-44.15:20(E) prohibits a locality from instituting a policy or plan mandating that mitigation for impacts to wetlands or streams occurring within that locality be performed within the boundaries of the locality. This prohibition includes acceptance of a voluntary proffer from an applicant relating to the location of compensatory mitigation."

Public Comment

No. 15-027, September 4, 2015
"Because there is neither a state law nor a local ordinance prohibiting the wetlands board from receiving public comment where public comment is not required, because it is common practice for the Chair of a deliberative body to permit comment by non-members, and because of the overarching importance of open government and free discussion with citizens, as articulated by the Virginia Freedom of Information Act, it is my opinion that the local wetlands board may from time to time choose to permit public comment when public comment is not required."

Local Wetlands Board Members

No. 08-087, December 8, 2008
"It is my opinion that individuals holding public offices in a town may be appointed to serve on that town’s wetlands board, which was created pursuant to a wetlands zoning ordinance under Chapter 13 of Title 28.1 (now Title 28.2). It further is my opinion that an individual serving on a town board of historic review or board of building code appeals may be appointed to the town’s wetlands board."

Local Tax Assessment

No. 04-055, December 14, 2004
"It is my opinion that if a landowner has a recorded perpetual easement that qualifies as such under VA Code § 58.1-3233(3)(ii), the locality has no discretion in the matter and must grant open-space tax assessment to the parcel so encumbered. If, however, the landowner elects to proceed under VA Code § 58.1-3233(3)(iii), the locality has discretion to accept, reject, or negotiate modification of the proffered agreement with the landowner. It is also my opinion that wetlands mitigation banks not otherwise wholly exempt from local real estate taxation, must be assessed in the same manner as similarly situated and classified property. Finally, it is my opinion that the local tax assessor may require owners of wetlands mitigation banks to furnish certified statements of income and expenses pursuant to VA Code § 58.1-3294."

Forestry and Roads Exemptions

1993 Volume, Pg 154, March 22, 1993
"It is my opinion that neither the exemption for the cultivation and harvesting of forestry products nor the exemption for normal maintenance and repair for existing roads apply for the reconstruction of a road along the general route of a now defunct road, across a distance that appears to presently contain wetlands vegetation, includes property owned by others, and crosses a navigable creek. Additionally, it is my opinion that a permit is required to use logging vehicles with balloon flotation tires to transport timber in a manner that would destroy wetlands vegetation in any area that the local wetlands board determines to be within their jurisdiction."