State and federal legislation that establishes authority, defines jurisdiction, describes intent and rules for administration of tidal resources management programs.
There are multiple state and federal laws and regulations regarding wetlands management; agency guidance and local ordinances also play a role. Virginia is somewhat unique in managing tidal wetlands (as well as some other environmental programs) through a local-state cooperative program. As you review Virginia's shorezone jurisdictions of legally defined shoreline resources, note that some resource boundaries and most resources have a least two responsible regulatory authorities. Each applicable regulatory agency conducts an independent review and issues a permit for their jurisdiction. The graphic below summarizes the interplay between these different programs.
Local & State: Tidal Wetlands Act
Local Wetlands Board – Virginia Marine Resources Commission
State & Local: Tidal Wetlands Act
Law
Virginia’s Wetlands Act, initially adopted in 1972, recognizes the environmental value of tidal wetlands, establishes a permitting system for their protection, and authorizes localities to establish a local wetlands board and adopt a wetlands ordinance. The language for the local ordinance is set out within the Code of Virginia § 28.2-1302. If a locality does not establish its own wetlands board, the Virginia Marine Resource Commission acts as the wetlands board for the locality.
It is the policy of the Commonwealth to support living shorelines as the preferred alternative for stabilizing tidal shorelines; The Commission shall permit only living shoreline approaches to shoreline management unless the best available science shows that such approaches are not suitable. If the best available science shows that a living shoreline approach is not suitable, the Commission shall require the applicant to incorporate, to the maximum extent possible, elements of living shoreline approaches into permitted projects. [Code of Virginia § 28.2-104.1]
Boards shall preserve and prevent the despoliation and destruction of wetlands while accommodating necessary economic development in a manner consistent with wetlands preservation and any standards set by the Commonwealth in addition to those identified in § 28.2-1308 to ensure protection of shorelines and sensitive coastal habitats from sea level rise and coastal hazards, including the provisions of guidelines and minimum standards promulgated by the Commission pursuant to § 28.2-1301 of the Code of Virginia. [Code of Virginia § 28.2-1302]
Guidelines
The Tidal Wetlands Guidelines provide minimum standards for the protection and conservation of wetlands and ensure protection of shorelines and sensitive coastal habitat from sea level rise and coastal hazards. These guidelines were updated and promulgated by the Virginia Marine Resources Commission in May, 2021.
Virginia has an established process for the use of mitigation banks for compensatory mitigation. Guidelines for Establishment, Use and Operation of Tidal Wetland Mitigation Banks in Virginia was developed by VMRC and VIMS. This document supplements the Mitigation-Compensation Policy and “is intended to provide VMRC, local wetlands boards . . . and other regulatory agencies with an additional management tool to compensate for unavoidable, permitted tidal wetlands losses . . .” [Code of Virginia § 28.2-1308]
Under the Tidal Wetlands Act, “wetlands” are defined as “both vegetated and non-vegetated wetlands.”
Vegetated: "Lands lying between and contiguous to mean low water and an elevation above mean low water equal to the factor one and one-half times the mean tide range at the site of the proposed project in the county, city, or town in question, and upon which is growing any of the following species [as listed in Code] ..."
"Vegetated wetlands of Back Bay and its tributaries" or "vegetated wetlands of the North Landing River and its tributaries" means all marshes subject to flooding by normal and wind tides, but not hurricane or tropical storm tides, and upon which is growing any of the following species [as listed in Code] ..."
Non-vegetated: "Unvegetated lands lying contiguous to mean low water and between mean low water and mean high water, including those unvegetated areas of Back Bay and its tributaries and the North Landing River and its tributaries subject to flooding by normal and wind tides but not hurricane or tropical storm tides."
Living shoreline: “means a shoreline management practice that provides erosion control and water quality benefits; protects, restores, or enhances natural shoreline habitat; and maintains coastal processes through the strategic placement of plants, stone, sand fill, and other structural and organic materials. When practicable, a living shoreline may enhance coastal resilience and attenuation of wave energy and storm surge." [Code of Virginia § 28.2-104.1]
Local & State: Coastal Primary Sand Dunes and Beaches Act
Local Wetlands Board – Virginia Marine Resources Commission
State & Local: Coastal Primary Sand Dunes and Beaches Act
Law
The Coastal Primary Sand Dunes and Beaches Act recognizes the importance of protecting dunes and beaches and establishes a permitting program for certain uses and activities that have the “potential for encroaching on or otherwise damaging coastal primary sand dunes or state-owned beaches.” Building upon the structure of the Wetlands Act, certain localities are authorized to adopt a dunes and beaches ordinance and have permit applications submitted to and reviewed by the local wetlands board. The language for the local ordinance is set out within Code of Virginia § 28.2-1403.
Guidelines
Developed pursuant to Chapter 14 of the Code of Virginia § 28.2-1400, the Coastal Primary Sand Dunes/Beaches Guidelines include a description of coastal primary sand dunes and beaches and their values, consequences of altering, guidelines for reviewing alterations, considerations for construction and mitigation activities, and barrier island policy. Similar to the Wetlands Guidelines, this document was last reprinted in 1993, and although courts have not considered the Dunes/Beaches Guidelines specifically, it is also likely that this document would be considered advisory in nature.
Legal Definition
Coastal Primary Sand Dune: "A mound of unconsolidated sandy soil which is contiguous to mean high water, whose landward and lateral limits are marked by a change in grade from ten percent or greater to less than ten percent, and upon which is growing any of the species [as listed in Code] ... shall not include any mound of sand, sandy soil, or dredge spoil deposited by any person for the purpose of temporary storage, beach replenishment or beach nourishment, nor shall the slopes of any such mound be used to determine the landward or lateral limits of a coastal primary sand dune." [Code of Virginia § 28.2-1400]
Beach: "The shoreline zone comprised of unconsolidated sandy material upon which there is a mutual interaction of the forces of erosion, sediment transport and deposition that extends from the low water line landward to where there is a marked change in either material composition or physiographic form such as a dune, bluff, or marsh, or where no such change can be identified, to the line of woody vegetation (usually the effective limit of stormwaves), or the nearest impermeable man-made structure, such as a bulkhead, revetment, or paved road." [Code of Virginia § 28.2-1400]
Local & State: Chesapeake Bay Preservation Act
Local Bay Authority – Department of Environmental Quality
State & Local: Chesapeake Bay Preservation Act
Law
The Chesapeake Bay Preservation Act (CBPA) was enacted in 1988 to improve water quality in the Chesapeake Bay through effective land management and planning. Specifically, the Bay Act seeks to improve water quality through reducing non-point source pollution. The Bay Act recognizes that local governments are primarily responsible for land management decisions and requires each Tidewater locality to adopt a program based on the Act and its associated regulations. Tidewater localities are required to establish a local Chesapeake Bay board to consider applications under the local Bay Act ordinance. The Department of Environmental Quality is the administering authority for the state and the DEQ’s website provides guidance for the administration of local programs in order to implement the CBPA.
Criteria shall incorporate measures such as performance standards, best management practices, and various planning and zoning concepts to protect the quality of state waters while allowing use and development of land consistent with the provisions of this chapter. The criteria adopted by the Board, operating in conjunction with other state water quality programs, shall encourage and promote (i) protection of existing high quality state waters and restoration of all other state waters to a condition or quality that will permit all reasonable public uses and will support the propagation and growth of all aquatic life, including game fish, that might reasonably be expected to inhabit them; (ii) safeguarding of the clean waters of the Commonwealth from pollution; (iii) prevention of any increase in pollution; (iv) reduction of existing pollution; (v) preservation of mature trees or planting of trees as a water quality protection tool and as a means of providing other natural resource benefits; (vi) coastal resilience and adaptation to sea-level rise and climate change, and (vii) promotion of water resource conservation in order to provide for the health, safety, and welfare of the present and future citizens of the Commonwealth. Code of Virginia § 62.1-44.15:72.
Regulation
Generally, there are two types of protected land that fall under the Bay Act: Resource Protection Areas (RPAs) and Resource Management Areas (RMAs). RPAs improve water quality, while RMAs can impair water quality if managed improperly. RPAs are comprised of natural shoreline features PLUS a minimum 100 foot wide landward buffer. RPA features are: (1) tidal wetlands; (2) tidal shores; (3) nontidal wetlands adjacent to tidal or perennial waters and connected by surface water; (4) other lands as set by local government to protect state waters; and (5) a buffer of no less than 100 feet adjacent and landward of the other features.
The Bay Act, the Wetlands Act, and the Water Protection Permit all have provisions regarding the use of wetlands within the Commonwealth. The Bay Act includes tidal and non-tidal adjacent wetlands as RPA features due to the water quality services these natural features provide. The Wetlands Act and Water Protection Permit are concerned with wetland protection for all the environmental services the features provide. The tidal wetlands that fall under a local wetlands board’s jurisdiction also fall under the jurisdiction of the Bay Act. However, as illustrated in the Jurisdictional Graphic, the Bay Act and the Wetlands Act do not have the exact same jurisdiction. The Bay Act’s jurisdiction also includes non-tidal wetlands. In contrast, the Wetlands Act’s jurisdiction only includes vegetated and nonvegetated tidal wetlands. A local government's Chesapeake Bay board may be composed of the same people who make up the local wetlands board, but permit approval by one board does not automatically mean approval by another.
Legal Definition
"That component of the Chesapeake Bay Preservation Area comprised of lands adjacent to water bodies with perennial flow that have an intrinsic water quality value due to the ecological and biological processes they perform or are sensitive to impacts which may result in significant degradation to the quality of state waters." [9 Virginia Administrative Code § 25-830-40] "... In their natural condition, these lands provide for the removal, reduction or assimilation of sediments, nutrients and potentially harmful or toxic substances in runoff entering the bay and its tributaries, and minimize the adverse effects of human activities on state waters and aquatic resources. . . [and] shall include (1) tidal wetlands; (2) nontidal wetlands connected by surface flow and contiguous to tidal wetlands or water bodies with perennial flow; (3) tidal shores; and (4) such other lands considered by the local government to meet the provisions [above] and to be necessary to protect the quality of state waters. [Additionally, a] buffer area not less than 100 feet in width located adjacent to and landward of the components listed in [(1) through (4) above], and along both sides of any water body with perennial flow." [9 Virginia Administrative Code § 25-830-80]
State: Submerged Lands Act
Virginia Marine Resources Commission
State: Submerged Lands Act
Law
Under Virginia’s Submerged Lands Act, it is unlawful for a person to build on, dump into or encroach upon the beds of the bays and ocean, rivers, streams, creeks that are the property of the Commonwealth unless first obtaining a permit from the Virginia Marine Resources Commission (VMRC). The Commission is guided in its decisions regarding activities on state-owned bottomland by Article XI, Section I of the Constitution of Virginia. The Commission decision-making includes a public interest review and should be consistent with the public trust doctrine. A Public Interest Review is a weighing and balancing of all beneficial and detrimental factors relevant to a proposal, leading to a permit decision that reflects the outcome of that balancing process. It involves an analysis of the foreseeable impacts the proposed work would have on public interest factors, such as other reasonable and permissible uses of State waters and State-owned submerged lands; marine and fisheries resources, wetlands, adjacent or nearby properties; anticipated public and private benefits, submerged aquatic vegetation, water quality and the public right to the use and enjoyment of the subaqueous lands of the Commonwealth held in trust by it for the benefit of the people. The Commission shall also consider the project's effect on the following:
Other reasonable and permissible uses of state waters and state-owned bottomlands
Marine and fisheries resources of the Commonwealth
Tidal wetlands, except when this has or will be determined under the provisions of the Tidal Wetlands Act (Chapter 13 of this title)
Adjacent or nearby properties
Water quality
Submerged aquatic vegetation (SAV)
Guidelines
Permits are required for actions such as the erection of dams, use of subaqueous beds, construction and maintenance of congressionally approved flood-control projects, and the construction of piers, docks, marine terminals, and port facilities.
VMRC developed Subaqueous Guidelines that outline the policies and procedures which the agency uses when considering permit applications for activities directly affecting the subaqueous lands of the Commonwealth.
VMRC developed Marina Guidelines to address increasingly intensive development through the subdivision of lands adjacent to waters of the Commonwealth to include more detailed criteria for the siting of facilities to serve the needs of boaters in order to protect, conserve and manage properly the natural resources of the Commonwealth for the reasonable and beneficial use of all its citizens.
Legal Definition
Also called submerged lands or bottomlands, this refers to the state-owned beds of the bays, rivers, creeks, or shores of the sea channelward of the mean low-water mark. [Code of Virginia § 28.2-1200]
State: Virginia Water Protection Program
Department of Environmental Quality
State: Virginia Water Protection Program
Law
A Virginia Water Protection (VWP) permit must be obtained before disturbing a wetland or stream by clearing, filling, excavating, draining, or ditching. The State Water Control Board has the responsibility to manage Virginia waters. All wetlands, tidal and non-tidal are considered waters of the state. Application is made through the Joint Permit Application process for concurrent federal and state project review. The permit program is administered by the Virginia Department of Environmental Quality (DEQ) and the State Water Control Board promulgates regulations to administer the law. [Code of Virginia § 62.1-44:15.20]
The VWP permit process includes provisions for the DEQ to wave the permit requirement when another state permit is issued for wetland activities. The VWP permit is routinely waived for tidal wetland activities permitted by Local Wetland Boards or VMRC administering the Tidal Wetlands Act.
Regulation
No Net Loss Policy: Virginia has established a policy of no net loss of wetland acreage and function. The VWP Program shall contain compensation requirements sufficient to achieve no net loss of existing wetland acreage and no net loss of functions in all surface waters. Additional information in the policy speaks to practicable and ecologically preferable compensation alternatives, how compensation mitigation proposals will be evaluated, in-lieu fee program approval, and use of mitigation banks. [9 Virginia Administrative Code § 25-210-116]
DEQ has established general permits for certain specified categories of activities that are considered to have minimal impacts. For example,
""Wetlands" means those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas."
"Nontidal wetland" means those wetlands (other than tidal wetlands) that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, as defined by the U.S. Environmental Protection Agency pursuant to § 404 of the federal Clean Water Act in 40 CFR 230.3(t).
US Army Corps of Engineers – Environmental Protection Agency
Federal: The Clean Water Act
Law and Management
The Clean Water Act (CWA) establishes a framework for the regulation of pollutant discharges into the waters of the United States, as well as the creation of water quality standards for surface waters.
The Rivers and Harbors Appropriation Act of 1899 established a program to regulate activities affecting navigable waterways in the United States, including wetlands.
For projects that meet certain parameters and will result in minimal adverse impacts, a general permit is all that is usually required. However, for projects that will have more than minimal impacts or cumulative impacts, the Corps will conduct a more comprehensive public interest review to determine whether an individual, or standard, permit will be issued. General information about obtaining a permit from the Corps is available here.
Section 401 of the CWA provides states (and federal tribes) with a means of protecting water quality within its jurisdiction by requiring that applicants for a federally permitted or licensed activity provide the relevant federal agency with certification from the state (or federal tribe) that its water quality requirements have been met or waived with respect to the activity being reviewed. In Virginia, the 401 certification is provided by DEQ through the process of permitting or certification of the Corps nationwide and regional permits. More information about Virginia’s Section 401 Certification is available above under Virginia Water Protection Permit.
Federal: The Coastal Zone Management Act
National Oceanic and Atmospheric Administration – Coastal State
Federal: The Coastal Zone Management Act
Law and Management
The goal of the Coastal Zone Management Act (CZMA) is to “preserve, protect, develop, and where possible, to restore or enhance the resources of the nation’s coastal zone.”
The CZMA includes a provision for states to determine whether federal actions are consistent with the state’s enforceable policies known as federal consistency. Federal consistency applies to actions within and outside of the coastal zone which have reasonably foreseeable effects on any coastal use or resource. Federal consistency is a major incentive for states to join the National Coastal Zone Management (CZM) Program and a powerful tool that state programs can use to manage their coastal resources, as well as facilitate coordination with federal agencies. [Section 307 of the CZMA]
Virginia's Coastal Zone Management Program is a network of state agencies and local governments which administers enforceable laws, regulations, and policies that protect the Commonwealth’s coastal resources and fosters sustainable development. The Virginia Department of Environmental Quality serves as the lead agency.
The Virginia Coastal Zone includes all of “Tidewater Virginia” and means the following counties: Accomack, Arlington, Caroline, Charles City, Chesterfield, Essex, Fairfax, Gloucester, Hanover, Henrico, Isle of Wight, James City, King and Queen, King George, King William, Lancaster, Mathews, Middlesex, New Kent, Northampton, Northumberland, Prince George, Prince William, Richmond, Spotsylvania, Stafford, Surry, Westmoreland, and York; and the Cities of Alexandria, Chesapeake, Colonial Heights, Fairfax, Falls Church, Fredericksburg, Hampton, Hopewell, Newport News, Norfolk, Petersburg, Poquoson, Portsmouth, Richmond, Suffolk, Virginia Beach, and Williamsburg. [Code of Virginia § 28.2-100]
Local Policies
Local Government Policies
Local Government Policies
Fairfax County – Living Shorelines Policy and Required Supplementary Information Form
“Living Shorelines”: Among all the options, applicants must consider a design that maintains or creates a living shoreline, as an approach for shoreline stabilization, and demonstrate to the Board why a living shoreline approach would not achieve your goals. Properly sited and designed living shorelines will be preferentially permitted over hardened shoreline approaches. The Board does not require mitigation or compensation for properly designed and sited living shoreline stabilizations.
Fairfax has also developed a required supplementary information form under the provision for information required in the permit application “Such additional materials and documentation as the wetlands board may require” [Code of Virginia § 28.2-1302.4B].
