Virginia wetlands a planning and regulatory perspective

[From the U.S. Government Printing Office, www.gpo.gov]

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VIRGIN IA WETLANDS:

A PLANNING AND REGULATORY PERSPECTIVE

The Preparation of this document was financed in part
through funds provided by the Coastal Zone Management Act
of 1972, as amended, administered by the Office of Ocean
and Coastal Resources Management, National Oceanic
and Atmospheric Administration
NA 88AA-D-CZ091

Prepared By
Richmond Regional Planning District Commission Staff

December 1991
QQ

TABLE OF CONTENTS

Page

EXECUTIVE SUMMARY .......................................... i

INTRODUCTION ............................... ................ 1

DEFINING THE RESOURCE ...................................... 3

Defining Wetlands ............ 3
Virginia's Wetlands .......... 7
Virginia's Wetland Losses ............................. 9
Reasons for Wetland Losses ............................ 11

WETLANDS FUNCTIONS AND VALUES .............................. 13

Environmental Values .................................. 13
Socio-Economic Values .................................. 16
Fish and Wildlife.Habitat Values ...................... 18
Wetlands Hazards ...................................... 19

PROTECTING THE RESOURCE ..................................... 23

Federal Wetlands Law .................................. 23
Virginia Wetlands Law ................................. 31

LOCAL MEANS OF WETLANDS PROTECTION 39

Comprehensive Planning ................................ 39
Land Development Ordinances ........................... 46
Wetlands Acquisition .................................. 58
Land Value Assessment ................................. 63
The Takings Issue ...................................... 66
CONCLUSION ................................................. 69

APPENDIX .... ** ... 71

BIBLIOGRAPHY ............................................... 73

LIST OF ILLUSTRATIONS

A. TABLES

Table Pacie

1. Federal Wetlands Activities .................. 24

2. Tidal Wetlands Communities by Group .......... 35

B. FIGURES

Figure, Paq e

1. Schematic of Wetlands Types ................. 6

2. Current Status of Wetlands in Virginia ...... 8

3. Causes of Coastal Wetland Losses ............ 10

4. Causes of Inland Vegetated Wetland Losses ... 10

5. Relative Productivity of Wetland Ecosystems . 14

6. Simplified Food Pathways .................... 14

7. Wetland Values and Hazards .................. 21

8. Typical Corps Permit Review Process ......... 28

9. Wetlands Permit Re view Process .............. 55

ACKNOWLEDGEMENTS

A document such as this cannot be prepared without the
assistance of a variety of individuals and organizations. While
each person cannot be thanked individually, the Richmond Regional
Planning District Commission would like to acknowledge the many
organizations which helped in the preparation of this document.

Chesapeake Bay Foundation

Council on the Environment

Department of Conservation and Recreation
Division of Planning and Recreation Resources
Division of soil and Water Conservation
Bureau of Flood Protection

Environmental Law Institute

Hampton Roads Planning District Commission

RADCO Planning District Commission

State Water Control Board

U.S. Fish and Wildlife Service

U.S. Corps of Engineers, Norfolk office

Virginia Institute of Marine Sciences

Virginia Outdoors Foundation

Virginia Marine Resources Commission

Virginia Water Resources Research Center, VPI & SU

The counties of Charles City, Chesterfield, Goochland, Hanover,
Henrico, New Kent and Powhatan, the City of Richmond, and the Town
of Ashland.

EXECUTIVE SUMMARY

INTRODUCTION

Wetlands are no longer thought of as merely waste lands.
Today more is known about the valuable contributions that wetlands
make to the environment.

This increased understanding has lead to increased federal and
state efforts to protect wetlands. One purpose of this report is
to discuss wetland definitions and functions and federal and state
wetland protection measures. Another is to examine what local
governments can do to protect and preserve these natural areas.

DEFINING THE RESOURCE

Wetlands can be defined in several ways. Perhaps the most
important for local governments is the definition shared by the
U.S. corps of Engineers (Corps) and the Environmental Protection
Agency (EPA). This definition is important due to the role these
agencies play in regulating certain types of activities in
wetlands. These agencies define wetlands based on the presence of
hydric (or wet) soils, hydrophytic plants (plants adapted to live
in water-saturated conditions) and hydrology (water level) . While
all three conditions are necessary to be considered jurisdictional
wetlands, these conditions do not have to be present all of the
time.

The presence of federal jurisdictional wetlands is determined
by an on-site delineation process. The actual delineation of a
wetland can be difficult and controversial. This is due in part
to the difficulty in determing wetlands during dry seasons of the
year as well as disagreement over the precise criteria for
delineating or describing a wetland. The Corps and EPA, along with
the Soil Conservation Service (SCS) and the Fish and Wildlife
Service (FWS) , are currently reviewing a new manual to aid in
delineation.

Wetlands are also defined as tidal and nontidal. Tidal
wetlands, located in the coastal plain, are influenced by the
tides. Nontidal wetlands, located in all portions of Virginia, are
not influenced by tidal action.

The differentiation between tidal and nontidal wetlands is
important in Virginia. The Virginia Wetlands Act only regulates
development in tidal wetlands. Although the state and federal
definitions differ, both cover essentially the same tidal wetlands.
The federal definition also includes nontidal wetlands in Virginia.

According to one estimate, Virginia contains approximately
1,045,000 acres of wetlands. It is also estimated that
approximately 63,000 acres of wetlands were lost between 1956 and
1977. The principal cause of the loss of tidal wetlands was urban
development. Agriculture accounted for most of the losses of
nontidal wetlands.

WETLANDS FUNCTIONS AND VALUES

Wetlands provide a variety of benefits (or values). These
values fall into three basic categories: environmental, socio-
economic, and fish and wildlife habitat.

An important environmental value is described by the term
primary productivity; that is, the conversion by plants of energy r
and chemicals into compounds that can be utilized by other species
as food. In addition, when wetlands plants die, they decompose to
form detritus. This is the base material for the aquatic food
chain. In fact, wetlands possess some of the highest food
producing values of any natural system.

Wetlands also play an important role in water quality
protection. Wetlands filter water as it passes through. This
filtering process reduces sediment flows into open water and
removes nutrients and chemical and organic pollutants. work is
underway investigating the ability of wetlands to treat wastewater.

socio-economic values are also provided by wetlands. Wetlands
assist with flood control by slowing and storing flood waters, thus
reducing the impact of flood waters. Wetlands also protect upland
areas from erosion. Other socio-economic values include
groundwater discharge and recharge, the production of timber,
commercial and sport fishing, and the provision of recreational,
scenic, historic, and archeological opportunities.

Wetlands serve as fish and wildlife habitat. They provide
spawning and nursery grounds for a variety of fin and shell fish,
birds, and other animals. Thirty five percent of all animals on
the federal list of rare and endangered species depend heavily on
wetlands for food or shelter.

Wetlands can also create hazards if improperly used. These
hazards include potential problems due to flooding and soil
erosion, soils that are unstable for supporting buildings, and 16
problems with waste disposal.

PROTECTING THE RESOURCE

The federal government has taken a variety of actions which
impact wetland use and development. One of the most significant

is Section 404 of the Clean Water Act. Section 404, administered
by the Corps, requires that a permit be issued for the discharge
of dredged or fill material into the waters of the United States.
Over time, the term "waters of the United States" has come to
include tidal and nontidal wetland areas.

A Section 404 individual permit is obtained by filing an
application with the Corps. This request is reviewed by the EPA,
the SCS, the FWS, and the National Marine Fisheries service (MFS).
The EPA has the right to veto a permit if the discharge of dredged
or fill material will have an unacceptable adverse affect on
municipal water supplies, shellfish beds, or fishery, wildlife, or
recreation areas. State and local agencies may also be involved
in this review.

Section 401 of the Clean Water Act grants states the authority
to certify that activities requiring a federal 404 permit meet
applicable state water quality standards. If the state denies the
water quality certification, the federal permit can not be issued.
In 1989, the General Assembly enacted legislation which requires
that all activities needing a Section 401 certification follow the
provisions of the Clean Water Act and protect instream beneficial
uses. The State Water Control Board (SWCB) issued, but then
withdrew, regulations to implement this new permit process. In the
meantime, the SWCB is continuing to issue Section 401
certifications under existing regulations.

In addition to individual permits, there are a series of
nationwide permits (NWPs) which allow activities which are
considered to have minor impacts on wetlands. The most
controversial of these permits is NWP 26 which allows certain
specified fill activities in wetland areas up to 10 acres in size.
Certain activities are exempt from Section 404 requirements. These
include ongoing farming, silviculture, and ranching activities.

The Commonwealth of Virginia has taken several steps to
protect wetlands. As a signatory to the Chesapeake Bay Agreement,
the Commonwealth is party to a multi-state policy to achieve a net
gain in acreage of wetlands in the Chesapeake Bay basin. The
General Assembly has considered nontidal wetlands legislation
several times. To date, no action has been taken.

The Commonwealth has also adopted several laws which impact
wetlands. Two notable pieces of legislation are the Virginia
Wetlands Act and the Chesapeake Bay Preservation Act. The Virginia
Wetlands Act governs development in tidal areas. Any activity that
affects tidal wetlands requires a permit from the Virginia Marine
Resources Commission (VMRC). Activities that require both state
and federal permits are handled through a joint permitting and
public review process.

The Chesapeake Bay Preservation Act requires that Tidewater
localities establish Chesapeake Bay Preservation Areas to protect
water quality. Regulations implementing the Act require the
designation of Resource Protection Areas (RPAs) and Resource
Management Areas (RMAs) . Development in RPAs is restricted to
water dependent uses and redevelopment. RMAs provide further water
quality protection through the use of required site design
techniques that reduce the flow of pollutants entering the RPAs and
local rivers and streams. Wetlands benefit from these reductions
in pollutants and are to be considered when determining the
locations of RPAs or RMAs.

LOCAL XEANS OF WETLANDS PROTECTION

Local governments have a variety of tools available to protect
the natural environment, including wetlands. These tools include
the comprehensive plan, development ordinances, and land
acquisition and assessment programs. While some believe that
localities are limited in their ability to regulate development in
wetlands areas due to the Dillon rule, others believe that local
governments have a variety of powers that can be used to preserve
and protect wetlands.

The key to any local wetlands protection program is the
incorporation of wetlands into the local comprehensive plan. To
do this, the location and extent of wetlands must be determined.
Localities can map this information or rely on existing sources
such as the National Wetlands Inventory (NWI) maps or maps from the
Virginia Institute of Marine Science.

once wetlands have been mapped, a locality can proceed to
develop goals, objectives, strategies, and polices for protecting
wetlands, just at it would for other types of land uses or natural
resources. As with other issues? there must be internal
consistency between the plan's goals and objectives and recommended
development strategies and polices.

The next step is to incorporate wetlands protection measures
into local ordinances. These ordinances include zoning,
subdivision, site planning, flood plain, stormwater, erosion and
sediment control, and landscaping ordinances. Coastal localities
must, and other localities may, adopt ordinances to implement the
Chesapeake Bay Preservation Act. In addition, Tidewater localities
may create local wetlands boards to aid VMRC in the enforcement of
the Virginia Wetlands Act.

Another tool that localities may use to protect wetlands is
acquisition. The Virginia Open-Space Act permits localities to
protect open space, including wetlands, through outright purchase
or the purchase of an easement. Full ownership guarantees the
ability to use the property as a locality sees fit. The purchase

of an easement may meet protection objectives at a reduced cost.
Several state agencies and nonprofit organizations are involved in
the purchase of land or open space. These include the Virginia
Outdoors Foundation, the Chesapeake Bay Foundation, and several
state departments.

Localities can also use land value assessment programs to
protect wetlands. Two such programs are the Virginia Land Use
Assessment Law and the Agricultural and/or Forestal District Act.
While each program has slightly different requirements, both are
designed to assist in the protection of agricultural,
horticultural, forestal, and open space lands. These programs
allow for land to be assessed and taxed at use value as opposed to
development value. This can reduce the owner's tax burden and aid
in the preservation of these types of land.

All levels of government must deal with the issue of takings.
The implementation of any wetlands protection measure which limits
the owner's use of the land has a potential for being challenged
as a taking of the land, without just compensation.

CONCLUSION

Wetlands regulation is here to stay. The federal and state
governments are becoming more involved in wetlands protection.
Local governments also have an important role to play in the
preservation and protection of wetlands.

INTRODUCTION

Historically, wetlands have been considered by many to be
wasted space. They were either obstacles to be overcome or places
to be ignored. Sometimes wetlands were considered fit only for the
disposal of items no longer needed.

Times have changed. More information has come to light about
the important functions that wetlands perform. These functions
include water purif ication, f lood control, sediment f iltratio n, and
.the provision of-habitat for plants and animals. Wetlands also
offer a variety of recreational opportunities.

This increase in understanding of wetland values and
functions, coupled with concerns over wetlands losses, has led to
stricter protection measures. A variety of f ederal and state
actions have' been taken to protect wetlands and other
environmentally sensitive areas from the effects of inappropriate
development.

This increased awareness has been accompanied by a debate over
exactly what areas should be classi ,fied as wetlands and what
actions should be taken to protect wetlands. There is also debate
over the appropriate role of federal, state, and local governments
in the area of wetland protection.

Some consider the wetlands issue to be a purely coastal
matter. While it is true that a significant portion of wetland
areas are located in the Coastal Plain, wetlands are also found in
the Piedmont and the Appalachian regions of the Commonwealth.
Therefore it is important that individuals in all portions of
Virginia become more familiar with the issues surrounding wetlands.

one purpose of this paper is to examine some of the issues
that local officials and planners need to be aware of regarding
wetlands. These issues include how wetlands are defined, the
benefits that wetlands provide, and federal and state laws and
regulations governing development in and adjacent to wetlands.

A second purpose is to examine actions local governments can
take to preserve and protect wetlands. The role of the
comprehensive plan in wetlands protection is discussed. Also
discussed are the tools available to local governments to implement
a wetlands protection program. These tools include development
ordinances, wetland acquisition, and special land assessment
programs.

The reader is cautioned that the entire wetland subject is
very dynamic. Any paper on this topic is dated as soon as it is
published.' Hopefully, this report will give local governments a
basic understanding of the issues involved in the wetlands debate.

DEFINING THE RESOURCE

Historically, the definition of a wetland was primarily the
concern of the scientific community. Most people had little
interest in wetland definitions or the criteria used to delineate
wetland areas. This situation has changed as the importance of
wetlands has become better known and as federal and state agencies
have taken a stronger role in regulating wetland development.

The purpose of this section is to examine ways in which
wetlands are defined and classified. This examination will focus
on federal and state definitions which most directly impact local
governments and land development. This section also examines the
extent of wetland areas and losses in Virginia and the reasons for
these losses.

DEFINING WETLANDS

"Conceptually, wetlands lie between well-drained upland and
permanently flooded deep waters of lakes, rivers and coastal
embankments"' Some wetlands are fairly easy to determine,
especially those located along the coasts of rivers and oceans.
other wetlands, especially those that are not "wet" throughout the
year, are more difficult to determine.

Several federal agencies and the Commonwealth of Virginia have
developed definitions for wetlands. These definitions, as well as
ways to classify wetlands, are important to understanding federal
and state wetlands law.

Federal Wetlands Definitions

Four federal agencies that have adopted separate wetlands
definitions are the Environmental Protection Agency (EPA), the Army
Corps of Engineers (Corps), the Soil Conservation Service (SCS),
and the Fish and Wildlife Service (FWS) . These definitions are
used to determine what are called "jurisdictional wetlands"; that
is, wetlands that fall under the authority of a federal agency
responsible for permitting certain activities in wetlands. For
the most part, each definition was developed as part of a specific
piece of federal legislation. These definitions are similar, but
are not identical.

'Ralph W. Tiner, Jr., Wetlands of the United States: Current
Status and Recent Trends, U.S. Fish and Wildlife Service, (1984),
p. 2.

The Corps and the EPA are the federal agencies that most land
developers and local governments deal with regarding wetlands.
These.agencies use the following definition for administering the
Section 404 permit process (to be discussed later):

Wetlands are 11 ... those areas that are inundated or saturated
by surface 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. ,2

While each federal agency has its own wetland definition,
three elements are typically found in each. These elements are
the presence of hydric soils, hydrophytic plants, and hydrology
typical of wetlands. Hydric soils are soils that are saturated,
flooded, or ponded for a period of time long enough to produce
anaerobic conditions, that is lacking oxygen. Anaerobic conditions
create chemical changes in the soil that are recognizable from the
soil's composition, color, and texture. Hydrophytic plants are
adapted for life in water-saturated conditions. This condition
does not have to be year-round, but must be present at least part
of the growing season. Typical wetland hydrology is characterized
by a water table that saturates or partially covers the top of the
soil surface either constantly or periodically. The source of that
water can be groundwater, surface water, or precipitation. All
three parameters - -hydric soils, hydrophytic plants, and hydrology-
-must be present for an area to be considered a wetland.

In addition to separate, although similar, definitions, each
federal agency has developed methods of delineating wetlands or
reviewing the delineation of others. In 1987, the Corps and EPA
each adopted manuals for delineating wetlands. In 1989, the EPA,
the Corps, the SCS, and the FWS adopted the Federal Manual for
Identifying and Delineating Jurisdictional Wetlands. The purpose
of this document was to provide "a single, consistent approach for
identifying and delineating wetlands from a multi-agency federal
perspective."' The manual set forth mandatory technical criteria
for identifying wetlands.

The publication of the joint federal wetlands manual has led
to much debate. Some argue that the identification criteria in the

2Federal Interagency Committee for Wetland Delineation,
Federal Manual for Identifying and Delineating Jurisdictional
Wetlands, a cooperative technical publication of the U.S. Army
Corps of Engineers, U.S. Environmental Protection Agency, U.S. Fish
and Wildlife Service, and U.S.D.A. Soil Conservation Service,
(Washington, D.C., 1989), p. 2.

3Ibid., p. 1.

1989 manual expanded what could be defined as wetlands. This was
due in part to the procedures set out in the manual regarding
identification of wetlands during dry periods. It was also argued
that the manual did not take into account the diverse physical
characteristics within the United States and that this severely
limits the development potential for areas such as coastal
Virginia.

On August 14, 1991, the Corps, EPA, SCS, and FWS published
proposed revisions to the 1989 manual in the Federal Register.
(This version is sometimes referred to as the 1991 manual.) These
modifications were to address concerns raised about the 1989
manual.

On August 17, 1991, the President signed the Energy and Water
Development Appropriations Act of 1992. This Act contained wording
which, in effect, prohibits the use of the 1989 manual by the
Corps. The Corps is now using a 1987 manual. * (This action did
not impact the so-called 1991 manual, which is still under review.)

The debate over the wetlands delineation manual illustrates
the complexity of the wetlands issue. This debate is over more
than how to delineate wetlands. It also concerns the potential
impact of wetland preservation on economic development,
agriculture, and private property rights.

Wetlands Classifications

Wetlands can be classified according to tidal influence.
Tidal wetlands, also referred to as coastal wetlands, are located
in coastal areas and are affected by the ebb and flow of the tides.
Tidal wetlands are periodically flooded by salt or brackish waters;
however, there are freshwater wetlands in the freshwater portions
of some tidal rivers in Virginia. Coastal marshes are the dominant
type of tidal wetland, but tidal wetlands also include nonvegetated
4
tidal flats and shrub wetlands.

Nontidal wetlands, also referred to as inland wetlands, are
not affected by ocean-driven tides. Found throughout the
Commonwealth, the three most common forms of nontidal wetlands are
emergent wetlands (called marshes and wet meadows), shrub wetlands
(including shrub swamps and bogs), and forested wetlands (largely
wooded swamps and bottomland hardwood forests).5 Figure 1
illustrates typical tidal and nontidal wetlands.

4Ralph W. Tiner, Jr., Mid-Atlantic Wetlands: A Disappearing
Natural Treasure, a cooperative publication of the U.S. Fish and
Wildlife Service and the U.S. Environmental Protection Agency,
(1987), pp. 2 - 3.

'Ibid.

Figure I

SCHEMATIC OF WETLANDS TYPES

NONTIDAL WETLANDS TIDAL WETLANDS

UPLAND
A
UPLAND UPLANIO

UPLAND

UPPER LOW MARSH STORM AND
WATER TABLE--- HIGH MARSH EXTREME SPRING
H WATER HIGH WATER HIGH TIDES...'
GROUNDWATER ------- L15W WATER f-------------- DAILY HIGH TIDE
DISCHARGE STREAM - - TER TABLE MARSH-UPLAND PANNE DAILY LOW TIDV-
WATER TABLE WA BORDER POO LOWER HIGH MARSH INTERTIDA
RIVER FLAT AQUATIC SED

SEEPAGE WETLAND 0 ERFLOW OVERFLOW DEPRESSIONAL IRREGOLARLY REGULARLY ESTUARINE
ON SLOPE I WETLAND WETLAND FLOODED FLOODED DEEP WATER
DEEPWATER ZONE ZONE
HABITAT

Source; The Value of Wetlands: A Guide for Citize n-Q,
SEVPDO, 1988.

mill 0111 1 1 1 1 1

Virginia's Wetlands Definition

The distinction between tidal and nontidal wetlands is
important. Several states specifically regulate development
activity in tidal wetlands only. Virginia is one of those states.

The Virginia Wetlands Act defines tidal wetlands as follows:

1. Vegetated wetlands are "all that land lying between
and contiguous to mean low water and an elevation
above mean low water equal to the factor 1.5 times
the mean tide range ... upon which is growing" certain
plant species whichare detailed in the Act.

2. Nonvegetated wetlands are defined as "all land lying
contiguous to mean low water and which land is
between mean low water and mean high water not
otherwise included in the term 'vegetated wetlands'
as defined."'

The def inition of wetlands in the Act dif f ers f rom the various
federal definitions in two ways. First, the Act does not cover
nontidal wetlands. The federal definitions includes, but does not
distinguish between tidal and nontidal wetlands.

Second, the Act covers both vegetated and nonvegetated tidal
wetlands. Since vegetation is one of the three parameters for
defining wetlands under the various federal programs, nonvegetated
areas such as mudflats are not considered jurisdictional wetlands
under Section 404. Mudflats are considered special aquatic sites
under federal regulations, however, and are therefore defined as
."waters of the United States" and subject to Section 404
requirements. The net result is that tidal areas covered by both
the Virginia Wetlands Act and Section 404 are es sentially the -same.

VIRGINIA'S WETLANDS

A comprehensive field inventory of Virginia's wetlands has
not been completed. A study by Tiner and Finn for the U.S. Fish
and Wildlife Service attempted to estimate the wetlands areas in
a five state region including Virginia. The following are some of
the results reported in this study.

1. Virginia contains approximately 1,045,000 acres of
wetlands, about 4 percent of the state's total area.

Va. Code, Section 62.1-13.2, (1991).

2. Approximately 23 percent of the wetlands in Virginia are
tidal (237, 000 acres). The vast majority of wetlands in
the state are nontidal (808,000 acres).

3. The Coastal Plain area of Virginia contains all of the
tidal wetlands and 64 percent-of the nontidal wetlands.

4. The Piedmont region of Virginia contains 28 percent of
the nontidal wetlands.

5. The Appalachian region contains 8 percent of the nontidal
7
wetlands in Virginia .

Figure 2 illustrates the distribution of wetlands in Virginia.

Figure 2

Current Status of Wetlands
in Virginia

Coastal Marshes 135.4

Tldal Flats/Beaches 1.5

Inland Emergent Wet. 63

Inland Shrub Wet. 63.9

Inland Forested Wet. 625.8

Freshwater Ponds 5513

0 100 200 300 400 500 600 700
Thousand Acres (Estimates)
Source: Ralph W. Tiner, Mid-AtIon1l
Wellondsm A Disannearincy Natural
Treasure, FWS, 1987,

'Tiner, (1987), p. 11.

Work is now underway in Virginia to devel op a comprehensive
wetlands inventory. The 1989 General Assembly assigned i the
Department of Conservation and Recreation, Division of Soil and
Water Conservation, with the responsibility of developing a
nontidal wetlands inventory. This agency is using digital files
of National Wetlands Inventory (NWI) maps to estimate nontidal
wetlands within the state. The localities west of the fall line
have recent NWI maps based on 1982-1985 aerial photography, while
information for the localities east of the fall line is considered
out-of-date and of poor accuracy. New NWI maps are being developed
for the eastern portion of the state as funds for current
photographs and re-photointerpretation become available.

The Virginia Institute of Marine Science (VIMS) and EPA are
also expected to provide estimatei of nontidal wetlands. Random
sampling will be used to determine different nontidal wetland types
in the state. Results are anticipated to be available in 1992.

VIMS has inventoried tidal wetlands in Virginia. These
inventories include field investigation work and are considered
quite accurate. These inventories do not go upstream as far as the
NWI maps, however.

VIRGINIA'S WETLAND LOSSES

Tiner and Finn also estimated wetlands losses in Virginia.
They estimated that between 1956 and 1977, over 63,000 acres of
Virginia's wetlands were lost. A majority of the wetlands lost
were inland vegetated wetlands; the remainder were coastal
wetlands. During this same period, acreage in freshwater ponds
8
increased by almost 35,000 acres.

As shown in Figure 3, the greatest single cause of the loss
of tidal wetlands was urban development, accounting for 43 percent
of the total loss. Losses due to the natural rise in sea level
accounted for 36% of the total.9

Approximately 45 percent of the nontidal wetlands losses were
due to agricultural activities. The second largest contributor to
nontidal wetlands losses was classified as other development,
mainly channelization projects.'o These and other reasons for the
loss of nontidal wetlands are shown in Figure 4.

8Ibid., p. 21.

9Ibid.

'oIbid.

Figure 3

Causes of Coastal
Wetland Losses

Urban 43%

Ponds 5%

Agriculture 5%
Coastal Waters 36

Other Factors 11%

source: Ralph W. Tlner, bdid-AtlaniLc Wellan!@s: A
Qlsonoegrtna Nalurgl Trengure. FWS, IQ87.'

Figure 4

Causes of Inland Vegetated
Wetland Losses

Agriculture
45%

Urban
3%

Lakes
18%

Other Development
27%
Ponds
7%
Source: Ralph W. Ttner, Micl-Ailrintir, wetland, A
Disarmearing Nglural Treasure. FWS, 1987.

REASONS FOR WETLAND LOSSES

Wetlands are lost for a variety of reasons. Dr. Jon A. Kusler
points out that wetlands are lost due to such factors as the loss
of physical habitat, chronic stress, construction projects, and
pollution. Specifically, these losses are due to:

1. wetland drainage for crop production, timber production,
and mosquito control;

2. dredging and stream channelization for reservoir
maintenance, access channels, navigation channel
maintenance, flood protection, and coastal housing
development;

3. dispersion of water inflows through irrigation and flood
control;

4. construction of dikes, dams, levees, and seawalls for
flood controll irrigation, and storm surge protection;

5. filling for solid waste disposal, roads, bridges,
commercial, residential and industrial development, and
utility lines;

6. discharges of matter into waters such as herbicides,
pesticides, and other pollutants from industrial plants,
agriculture, mosquito control efforts; nutrient loadings
from domestic sewage and agricultural runoff; and
sediments from dredging and filling, agriculture, and
land development;

7. surface water extraction and groundwater pumping for
municipal water supplies and irrigation; and

8. mining and disturbance of wetlands soils for sand and
gravel and coal, peat and other mining."

Many of the above examples are the result of necessary
activities. It must be understood, however, that these activities
can have detrimental impacts on wetlands. As we increase our
understanding of how development can threaten wetlands, we must
increase our ability to protect wetlands while allowing these
necessary activities to occur.

11 Jon A. Kusler-', Our National Wetland Heritage: A Protection
Guidebook, (Washington, D.C.: Environmental Law Institute, 1983),
P. 8.

WETLANDS FUNCTIONS AND VALUES

Wetlands perform a variety of functions in the natural
environment. Some of these functions, such as providing habitat
for wildlife, can be obvious. other functions, such as improving
water quality, are not as obvious. Furthermore, not all wetlands
serve the same functions and, therefore, not all wetlands are
considered to be of equal value.

The collective values that wetlands perform in the environment
can be divided into three basic categories: (1) environmental, (2)
socio-economic, and (3) fish and wildlife habitat. This section
discusses these values. The section also discusses the hazards
that can be created when wetlands are misused.

ENVIRONMENTAL VALUES

Wetlands are an important component of the earth's ecosystem.
They provide nutrients that support the most basic as well as
advanced forms of life. Wetlands serve as the bridge between land
and water. This places wetlands in an ideal location to influence
water quality.

Primary Productivity

Primary productivity is the term that describes the conversion
of solar energy and inorganic chemicals by plants into energy
containing compounds that can be utilized by other species. The
conversion is accomplished by most plant species through the
process of photosynthesis. Primary productivity is the first link
in the food chain.

Wetlands serve an important role in the food chain. Through
photosynthesis, wetland plants convert solar energy (sunlight) and
inorganic nutrients (primarily nitrogen and phosphorus) into
materials needed for plant development. Oxygen is produced as a
by-product. These plants then serve as food for fish, birds, and
mammals." Figure 5 compares the primary productivity of several
types of wetlands with other selected food producers.

Wetlands provide food in another form. When wetland plants
die, they decompose and form what is know as detritus. This
material is the base of the aquatic food chain. Animals such as

12 J.H. Sather and R.D. Smith, An Overview of Major Wetlands
Functions and Values, U.S. Fish and Wildlife Service, (1984), p.
21.

Figure 5

Relative Productivity of Wetland Ecosystems

2500 -

SALT
MARSH

2000
TROPICAL FRESHWATER
RAIN WETLAND
FOREST

1500

1000 - COLD WARM
DECIDUOUS TEMPERATE
FOREST MIXED
FOREST
CULTIVATED -.01A&.N
LAND GRAS SLAND
500 - BOREAL
FOREST

DESERT

NET PRIMARY PRODUCTIVITY OF SELECTED ECOSYSTEMS fg/M2/year]
ADAPTED FROM LIETH (1975) AND TEAL AND TEAL (1969)

Source: Ralph W. Tiner, Wetlands of the United States:
Current Status and Recent TCends, FWS, 1984,

Figure 6

Simplified Food Pathways

ESTUARINE
WETLAND PLANTS ESTUARINE WATERS

ZOOPLANKTON SHRIMP

KILLIFISH
CLAMS - "STRIPEDBASS
OYSTERS BLUE CRAB

W
ORMS e!7,WJNL' MENHADEN BLUEFISH
FLOUNDER
@SA T
L
tT.OPICAL AR@S.

@ource: Ralph W. Tiner, Wetlands of the United States;
Current Status and Recent Trends, FWS, 1984..

shrimp, snails, clams, worms killifish, and mullet eat detritus
or the bacteria and other life forms that grow on its surface.
These animals are in turn eaten by larger species, such as
commercial and recreational fishes. Some believe that this form
of food production is the major food value provided by wetlands."
Figure 6 illustrates a simplified wetland food chain.

Water Quality

Wetlands act as filters to the waters that pass through them.
This filtering action reduces sediment flows into open water and
removes nutrients and chemical and organic wastes.

As flowing water passes through wetlands, the velocity of the
flow is reduced. This reduction in velocity causes suspended
solids to fall to the bottom. In addition, wetlands vegetation
itself acts as a block to certain sediments."

once these sediments have been deposited in the wetlands,
various chemical and biological processes act on the sediments.
Plants use nutrients such as phosphorus and nitrogen for growth and
maintenance. Bacteria found in wetlands transform some nutrients
into forms that can be more easily taken in by plants. These
processes help to prevent the overenrichment of open waters with
nutrients.

Wetlands have been studied for their potential to treat
wastewater and for their ability to remove toxins and excess
nutrients from natural waters. In some locations, wetlands have
been utilized for the treatment of point source wastewater
discharge. Nutrients are removed from wastewater as a result of
the high degree of primary productivity; the settling of solids
into the sediments as the wastewater slowly passes through the
wetland; the anaerobic (oxygen deficient) conditions that are
conducive to removing toxic metals and the breakdown of nitrogen
compounds; and the high populations of decomposers (bacteria) that
are particularly effective at breaking down organic compounds found
in wastewater."

13 David B. Burke, Erik J. Meyers, Ralph W. Tiner, Jr., and
Hazel Groman, Protecting Nontidal Wetlands, Planning Advisory
Service Report Number 412/413, (Chicago: American Planning
Association, 1988), p. 8.

14 Wetlands Protection: A Handbook for Local Officials,
Environmental Planning Information Series Report #7, (Harrisburg,
Pa.: Department of Environmental Resources, 1990), p. 3.

"Sather and Smith, pp. 11 - 12.

The removal of nutrients by wetlands varies and the levels of
nitrogen and phosphorus in wetlands are determined by the form of
the nutrient, the wetland type, and the season of the year.
Wetlands function as "traps" of nutrients. To varying degrees they
can remove nutrients from water. Wetland efficiency varies with
many factors including vegetative characteristics, geographic
location, nature of substrate (the base upon which wetland plants
are rooted), size, water chemistry, temperature, and pH.'6

SOCIO-ECONOXIC VALUES

our society benefits from the presence of wetlands in many
tangible ways. Wetlands assist with flood and erosion control and
provide a variety of natural products for our use. They also
provide a variety of recreational and scenic values.

Flood Control

Studies by the U.S. Army Corps of Engineers have shown that
the most economical way to prevent flood damage is to protect and
preserve the wetlands in the watershed. Wetlands reduce the
severity of floods through their ability to store and slow flood F
waters, reduce flood peaks, and increase the duration of the flow.
A study in Wisconsin indicated that flood peaks were reduced by 60
to 80% in watersheds which contain a wetland or lake area of 30
percent, as compared to watersheds with no wetland or lake area."'

Characteristics of wetlands considered most important in flood
control are size, location in drainage basin, texture of substrate,
and type of vegetation. The Wetlands Guidelines, prepared by the
Virginia Institute of Marine Science (VIMS) and Virginia Marine
Resources Commission (VMRC), contains descriptions of different
wetland types and how their attributes help to mitigate flood
damage.

Erosion Control

Wetlands lie between uplands and waterways. Wetland
vegetation plays a major role in protecting uplands from eroding
by binding and - stabilizing the substrate, dissipating wave and
current energy, and trapping sediments. The ef f ectiveness of
wetlands vegetation in this process depends on the type of
vegetation, the width of the vegetation, the efficiency of the
vegetative shoreline band in trapping sediments, the soil
composition of the bank or shore, the height or slope of the bank
or shore, and the elevation of the toe of the bank with respect to

16 Ibid., p. 16.

17 Ibid., p. 5.

mean storm high water. Studies indicate that wetland shoreline
widths as small as 2 feet can have a significant effect on erosion
prevention. The greater the width of a wetland, the greater its
ability to deter erosion."

Groundwater Recharge and Discharge

The precise role that wetlands play regarding groundwater is
unclear. Wetlands serve as sources of groundwater discharge and
are good indicators of the availability of potential water
supplies. Although wetlands are believed to impact groundwater
recharge, less is known about this relationship."

Natural Resources

Wetlands are home to a variety of plant and animals resources.
Most commercial and game fish depend on wetlands for food sources,
spawning grounds, and nurseries. The U.S. Department of Commerce
estimated that 66 to 90 percent of the commercially important fish
and shellfish species on the Atlantic and Gulf coasts depend on
coastal marshes or estuaries for at least part of their life
cycle."

Timber has been harvested in wetlands for many years. The
value of timber in southern wetland forests is estimated to amount
21
to $8 billion.

Recreational and Scenic Values

Hunting and fishing are important recreational activities that
take place in wetlands. In the United States, an estimated 5.3
million people hunt waterfowl annually. 12 In addition, $13.1
21
billion was spent in 1975 to catch wetland-dependent fishes.
Nearly all freshwater fishing, and more than half of saltwater
fishing, is wetland dependent.

Many more people enjoy wetlands for their scenic values.
Hiking, boating, swimming, and photography are some of the
activities that take place in wetlands. The popularity of the many

"Ibid., pp. 6 - 7.

"Ibid. , p. 6.

20
Ibid., p. 44.

2'Tiner, (1984), p. 23.

"Ibid., p. 24.

23 Ibid.

federal And state parks that contain wetlands is a testimony to
the aesthetic value they possess.

Historical and Archeological Values

Some wetlands, particularly those in Tidewater Virginia, offer
special values; these are historical and archeological resources.
Native American settlements have been found in close proximity to
wetlands which offered fishing and hunting opportunities. The
first European colonists likewise settled in or near wetlands.
This was due both to the availability of fish and game and to the
transportation opportunities offered by the adjacent rivers."'

FISH AND WILDLIFE HABITAT VALUES

Wetlands provide animals with protection from adverse weather
conditions and predators, resting areas, and sites for
reproduction. It is estimated that 35 percent of all animals
listed by the federal government as being rare and endangered
21
depend heavily on wetlands for food and/or shelter.

Fish and Shellfish

Two-thirds of the major commercial fish caught in the U.S. use
wetlands as spawning and nursery grounds. Wetlands are the primary
nursery grounds for shellfish, including blue crabs, oysters, and
clams. Major factors influencing a wetland's habitat value for
fisheries are water quality, water quantity, vegetative cover, and
26
characteristics of the bottom.

Birds

many species of birds find year-round habitat in wetlands.
Migratory birds inhabit wetlands temporarily, using them as feeding
and breeding grounds, and as areas in which to overwinter. Wetland
values that have been identified as attracting waterfowl and other
birds include availability of cover, freedom from disturbance,
27
abundance of food, and the availability of specialized habitat.

2'Kusler, p. 5.

25 Ibid., p. 3.

2"Tiner, (1984), p. 13.

27 Sather and Smith, p. 47.

Xammals

Few mammals are truly wetland dependent, but there are some
which utilize wetland resources through most or part of their life
cycle. Those mammals considered wetland dependent . in Virginia
include muskrats, beavers, and certain species of rabbits. Mammals
partially dependent are otter, raccoon, meadow mice, and white-
tailed deer. Wetland values most important to these mammals are
water quality, water depth, and emergent wetland plants.'a

Other Vertebrates and Invertebrates

Many, other vertebrates and invertebrates inhabit Virginia's
wetlands including snakes, turtles, slugs, snails, as well as other
reptiles and amphibians. There has been little research done on
invertebrates that inhabit wetlands other than scientific listings
and general descriptions.'9 There appears to be a link between
plant types and the invertebrate species that utilize them. As
these plant types become more abundant so do the invertebrate
species associated with them.

WETLANDS HAZARDS

Just as wetlands have environmental values and functions,
they can create environmental hazards if used improperly. These
hazards include flooding, erosion, lack of soil suitability for
development, and limitations to onsite wastewater disposal.
Following is a discussion of some of these hazards as set forth in
Our National Heritage: A Protection Guidebook by Dr. ion A.
Kusler."

Flood Hazard

As stated previously, certain wetlands store flood water
during floods and slowly release it, lessening the impact on
downstream areas. The filling of a wetland reduces its ability to
retain excess water during flood periods. This can result in
increased flood heights and velocities and lead to flooding in
areas not previously subjected to these problems.

In addition, buildings in wetlands areas may be subject to
flooding and drainage problems. This may be a continual problem
or only occur when the water table rises during certain times of
the year. A typical solution to such a problem is the construction

28 Ibid., p. 45.

29 Ibid., p. 43.

"Kusler, pp. 6 8.

of drainage structures. Such structures can increase runoff from
the site, decreasing groundwater recharge and creating flooding
problems downstream.

Erosion

Wetlands protect uplands from erosion. The development of
wetlands, including the removal of vegetation, can increase erosion
in upland areas. This loss of soil can eventually threaten
development in these upland areas.

Lack of Soil Support

Wetlands soils are high in organic and water content. These
factors cause wetland soils to have very low and/or uneven load
carrying abilities. These characteristics can lead to different
settling of any structure built upon wetland soils. This can in
turn lead to shifts and eventually cracks in foundations, walls,
and roadways built in wetlands.

Limitations to Onsite Waste Disposal

Wetlands soils are very slow to absorb the effluent of septic
tanks and other forms of onsite waste disposal. Construction of
disposal systems in-wetland areas can lead to surface discharge of
sewage with associated health hazards and odors. The high water
table in wetland areas can also lead to the mixing of waste with
groundwater, threatening any users of groundwater. Wetlands are
poor sites for the construction of solid waste land fills for the
very same reasons.

Figure 7

Wetland Values and Hazards

V@' HAZARDS
VALUES

Isolated Wetlands
isolated Wetlands
(Permanently high ground water 1 Flooding and drainage
problems for roads and
levels due to discharge and
drainage)
buildings due, in some
instances, to widely fluc
1 .Waterfowl feeding and tuating surface and ground
nesting habitat water elevations
2. Habitat for both upland and 2. Serious limitations for on-
site waste disposal
wetland species of wildlife 3. Limited structural bearing
3. Flood water retention area
4. Sediment and nutrient capacity of soils for roads
retention area and buildings due to high
5. Area of special sc -enic ISOLATED WETLANDS content of organic materials
beauty

Lake Margin Wetlands Lake Margin Wetlands
1 .See values for permanent LAKE MARGIN WETLANDS 1. See hazards for isolated
wetiand above wetland above
2. Removal of sediment and

Cott.
nutrients f rom inflowing 11 W
.41W
waters
3. Fish spawning area

Riverine Wetlands
Riverine Wetlands 1 .See hazards for isolated
1. See values for isolated
wetlands above
wetlands above
2. Sediment control, 2. Flood conveyance areas
stabilization of river banks subject to deep inundation
3. Flood conveyance area RIVERINE WETLANDS and high velocity flows
3. Sometimes erosion areas

Estuarine and Coastal Wetlands Estuarine and Coastal Wetlands
A, 1 .See hazards for wetlands
1 .See values for isolated . associated with rivers above
wetlands above 40 V, 1# 2. Often severe flood hazard
2. Fish a,id shellfish habitat and 1 6 rr due to tidal action, riverine
spawning areas to q** ESTUARINE AND flooding, storm surges, and
3. Nutrient source for marine @t COASTAL WETLANDS 40 wave action
fisheries
4. Protection from erosion and 011111110mm 3. Sometimes severe erosion
area in major flood due to
storm surges wave action

Barrier Island
Barrier Island 1 .Often high energy wind and
1. Habitat for dune-associated BARRIER ISLAND wave zone
plant and animal species 2. Often severe erosion
2. Scenic beauty problem
3. Protect backlying lands
from high energy waves
Source: Copyright 1983, Environmental Law Institute,
Reprinted with permission from Our National Wetland
Heritaae: A Protection Guidebook by Dr. Jon A, Kusler.

PROTECTING THE RESOURCE

our increased understanding of the functions and values of
wetlands has resulted in increased demands for the protection of
wetlands. Legislation has been passed at the federal and state
levels to regulate development activities in and adjacent to
wetlands.

While federal and state agencies work together to coordinate
wetlands protection activities, there is not one overall
encompassing piece of legislation or program which deals with
development in tidal and nontidal wetlands. The purpose of this
section is to provide an overview of federal and state legislation
and regulations aimed at protecting wetlands, either directly or
indirectly.

FEDERAL WETLANDS LAW

Table 1 illustrates the variety of federal legislation and
actions related to wetlands. . The principal federal legislation
which protects wetlands and impacts land development in or adjacent
to wetlands is the Federal Water Pollution Control Act of 1972, as
amended, commonly referred to as the Clean Water Act (CWA). The
goal of the act was "to eliminate by 1985 the discharge of
pollutants into navigable waters by prohibiting the discharge into
such waters of toxic pollutants in toxic quantities. ,31 The
overall objective was "to restore the physical, biological, and
chemical balance of the nation's waters. ,32

The CWA contains a variety of sections which set forth the
roles of the EPA and the Corps regarding the protection of the
waters of the United States from pollution. There is one section
of the CWA, however, that is most often discussed regarding the
protection of wetlands--Section 404. In fact, the phrase 11404
requirements" is generally used to refer to the federal wetlands
protection program in general, not just the specific requirements
of that one section.

3'Lawrence Liebesman, A Developer's Guide to Federal Wetlands
Regulations, (Washington, D.C.: National Association of Home
Builders of the United States, 1990), p. 1-2.

32 Ibid.

Table 1

Federal Wetlands Activities

1899 The Rivers and Harbors Act gave the Corps power to regulate construction activities in
navigable waters by issuing permits for those activities. This act authorized the Corps as the
agency with permitting authority over construction in water.

1972 The Federal Water Pollution Control Act included Section 404, which authorized the Corps to
issue permits for the discharge of dredge and fill materials into the waters of the United States.

1975 The Corps' regulations were changed to include a broader definition of waters over which they,
had authority; wetlands were included.

1977 The Federal Water Pollution Control Act was amended and became known as the Clean Water
Act. EPA and Corps regulations pursuant to that act included a regulatory definition for
wetlands that continues to be used.

1979 The Fish and Wildlife Service (FWS) published a wetland definition and guidelines for
identification used by some federal and state agencies (Classification of Wetlands and Deepwater
Habitats of the United States).

1985 EPA and the Corps signed a memorandum of agreement spelling out the roles of the agencies
and the procedures they would follow in issuing 404 permits.

The Food Security Act (Farm Bill) of 1985 denied federal-assistance program participation to
farmers who altered wetlands for agricultural purposes (swampbuster program). The Soil
Conservation Service's (SCS) Food Security Act Manual included a wetland definition used for or
identifying wetlands on agricultural lands.

1987 The Corps of Engineers Wetlands Delineation Manual was published, giving optional technical
guidelines for district engineers' use in identifying and delineating wetlands under Section 404.

1989 The Corps, EPA, FWS, and SCS formally adopted the Federal Manual for identifying and
Delineating Jurisdictional Wetlands, which provided mandatory technical criteria, field indicators,
and determination methods for identifying wetlands under federal jurisdiction and tracing their
upper boundaries.

President Bush announced his administration's "no net loss" policy for wetlands.

1990 EPA and the Corps signed a memorandum of agreement clarifying environmental criteria to
be used in evaluating compliance with Section 404 guidelines.

1991 July: EPA released revisions of the 1989 manual to Congress. Negotiations with the executive
branch followed, resulting in further changes.

August: Proposed changes to the 1989 manual were published in the Federal Register.

August: Congress directed the Corps to resume using its 1987 manual to make permitting
decisions in wetlands.

Source: Adapted from The Federal Wetlands Manual: Swamped by Controvers , prepared by the
Virginia Water Resources Research Center, V`P1 & SU.

Section 404 of the Clean Water Act

The intent of Section 404 is to control pollution from point
source discharges of dredged or fill material into the "waters of
the United States". This is done through a permitting process
involving the Corps and the EPA.

Activities Regulated. Basically, Section 404 requires a Corps
issued permit for the discharge of dredged or fill material into
33
the "waters of the United States". The type of permit required
is related to the type of activity contemplated and the area of
wetlands to be disturbed.

Certain discharge activities are considered to have only
minimal individual and cumulative environmental impacts. These
activities are covered under what are called general permits. In
addition, some activities are exempt from the permitting
requirements. General permits and exemptions are discussed later.
Unless a discharge is covered by a general permit or is exempted,
an individual permit is required. Requests for individual permits
are reviewed on a case-by-case basis.

The term "waters of the United States" is defined quite
broadly in the regulations which implement Section 404. For
instance, the term includes waters that have been, are currently,
or may be used for interstate or foreign commerce, including all
tidal waters and all interstate waters including interstate
wetlands. The term also includes intrastate lakes, rivers, and
streams which could affect interstate or foreign commerce. this
can mean waters which are or could be used by travelers for
recreational purposes, from which fish or shellfish could be taken
or sold for interstate commerce or which are used or could be used
for industrial purposes in interstate commerce. Also included are
31
wetlands adjacent to these previously described waters.

Activities Not Regulated. As broad as the coverage of Section
404 may appear to some, there are activities which are not covered.
The Corps has ruled that the dredging of wetlands and the discharge
of the material into wetlands is not covered by Section-404 since
there is no discharge into the wetlands. Court cases on this issue
31
have been decided for and against the corps.

"William Want, Law of Wetlands Regulations, (New York: Clark
Boardman Company, Ltd., 1991), p. 4-2.

34 33 CFR Section 328. A detailed explanation of the evolution
of the definition of the term "waters of the United States" can be
found in Law of Wetlands Regulations by William Want.

"Want, p..4-18.

The draining of wetlands has generally been excluded from the
404 process. However, on April 10, 1990, the Corps issued guidance
that if pumps were used to drain water in an attempt to circumvent
the Section 404 permitting process, that activity would be subject
to permitting requirements."

Critics of Section 404 point out that many wetland altering
and destroying activities are not covered under the permit process.
In addition, many wetlands may not be covered under the program
despite the broad interpretation of the language defining wetlands.

Principal Administrative- Agency. The U. S. Army Corps of
Engineers is the principal administrative agency for Section 404.
All dredge or fill activity requires a permit issued by the Corps.
Prior to the CWA, the Corps issued permits for dredge and fill
activities under the Rivers and Harbors Act of 1899 (RHA) . The
intent of the RHA was the protection of navigation in "navigable
waters". The affect of the CWA was to expand that role to include
water quality concerns in the "waters of the United States". The
delegation of Section 404 responsibility to the Corps fits in well
with their role under RHA.

Review Authority. The Environmental Protection Agency (EPA)
may review individual permit requests under provisions of Section
404. In addition, EPA may veto or restrict a permit issued by the
Corps when "the discharge of dredged or fill material into an
aquatic area will have an unacceptable adverse effect on municipal
water supplies, shellfish beds and fishery areas (including
spawning and breeding areas) , wildlife, or recreational areas.""
Section 404 also provides for U.S. Fish and Wildlife Service (FWS)
and National Marine Fisheries Service (MFS) input on fish and
wildlife impacts.

The EPA has rarely used its veto authority, although some
individuals believe the agency is becoming more willing to veto
projects. To date, the courts have only reversed an EPA veto in
one case. That was in James City County, Va. v. U.S. Environmental
Protection Agency C.A. No. 89-156-NN (E.D. Va. 1990).38

On November 15, 1989, a Memorandum of Agreement (MOA) was
signed between the Corps and EPA which clarified to both agencies
what type -and level of mitigation would be necessary to comply with
Section 404 guidelines. The Agreement set forth that individuals
seeking to fill wetlands would follow the sequential mitigation
process of avoiding the wetlands entirely, minimizing adverse

36 Ibid., p. 4-19.

3'Liebesman, p. 4-1.

38Want, p. 7-5.

environmental impacts, and lastly, compensating for unavoidable
wetlands loss. Through the Agreement, the Corps and EPA hope to
achieve a goal of no net loss of wetlands within the 404 program."

Under Section 404(c) the EPA may designate high-value wetland
areas as off-limits to all or certain discharges of dredged and
fill material prior to any proposed project or permit application.
In recent years, the EPA has started to use its advance
identification (ADID) program to protect wetlands areas that are
experiencing development and conversion pressures. 40

State agencies such as the Department of Game and Inland
Fisheries and the Marine Resources Commission are invited to
comment on proposed 404 permitting activities. Local authorities
that are directly impacted by a permitted activity are allowed to
submit comments to the Corps.

Relationship to National Environmental Policy Act. As a
prerequisite to approval of a permit under Section 404, the Corps
must comply with requirements of the National Environmental Policy
Act (NEPA). The purpose of NEPA is to insure the consideration of
the environmental consequences of proposed federal actions.

Not all permitted activities require consideration under NEPA.
The Corps has.promulgated regulations designed to determine what
actions require consideration. In addition, the Corps is governed
by regulations pertaining to NEPA promulgated by the Council on
Environmental Quality (CEQ).

The f irst step in the NEPA process requires the Corps to
prepare an Environmental Assessment (EA). The EA will determine
if a proposed action would significantly affect the quality of the
'human environment. The EA evaluates the environmental effects of,
the need for, and alternatives to, the proposed action.

If the proposed action shows no significant effect, the Corps'
District Engineer will prepare a Finding of No Significant Impact
(FONSI). The FONSI contains the reasons for this conclusion. If
the proposed action shows a significant effect, an Environmental
Impact Statement (EIS) is required.

Public Interest Review. The Corps has developed guidelines
that it applies in the review of individual permit applications.
The most important of these is the public interest review. This
review involves a weighing of the expected benefits versus the
foreseeable detriments of a project.

39 Ibid., pp. 6-28 - 6-31.

40 Liebesman, p. 7-1.

Figure 8

Typical Corps Permit Review Process

Public Notice issued

Applicant Submits Application
Engineer Form 4345 Received.
to District Office Acknowledged
and Processed Public Notice
Normal 30 Day
comment period 01

7C 0 r p -s
individuals
Special interest Groups
Applicant signs Local Agencies
State Agencies
and returns Federal Agencies
with fee Permit
Issued Application reviewed by Corps
and other interested agenctes,
organizations and individuals

Public Hearing
Application
may be held
Approved

Evaluation Factors

�Conservation
�Economics
�Aesthetics
�Environmental Concerns
�Fish and Wildlife values
�Flood damage prevention
�welfare of the General Public
Application denied... Historic values
Recreation
Land use
Water supply
Water quality
Navigation
Energy needs
Safety
Food production

Source; Copyright 1983, Environmental Law I nsti tute,
Reprinted with permission from Our National Wetiand
L Heritage: A Protection Guidebook by Dr. Jon A. Kusler,

The following criteria are used in this review process:

1. the relative extent of the public and private need for
the proposed project,

2. where there are unresolved conflicts as to resource use,
the practicability of using reasonable alternative
locations and methods to accomplish the objective of the
proposed project, and

3. the extent and permanence of the beneficial and/or
detrimental effects which the proposed project may have
on the public and private uses to which the area is
suited."

in addition, all relevant factors related to the proposed
project must be considered. These factors include conservation,
economics, aesthetics, general environmental concerns, wetlands,
cultural values, fish and wildlife values, flood hazards,
floodplain values, land use, navigation, shore erosion and
accretion, recreation, water supply and conservation, water
quality, energy needs, safety, food and fiber production, mineral
needs, considerations of property ownership, and in general, the
needs and welfare of the people . 42 Figure 8 illustrates the Corps,-
permit review process.

General Permits. In 1977, the Clean Water Act was amended to
allow the Corps to issue general permits on a state, regional, and
nationwide basis. These permits cover activities which are
believed to have only a minimal impact on the environment. The
purpose of these general permits is to reduce delay and paperwork.
In fact, it is not necessary that an individual inform the Corps
about some activities covered by these general permits."

Effective January 21, 1992, the regulations governing
nationwide permits are amended. These regulations list 36
nationwide permits, an increase from 26 in the previous
regulations. Types of activities which fall under these nationwide
permits include aids to navigation, outfall structures, bank
stabilization" installation of fish and wildlife harvesting
44
devices, hydropower projects, and the construction of boat ramps .

4'Ibid., p. 3-2.

42 Ibid.

43Want, pp. 5-6 - 5-7.

44 Liebesman, p. 5-1.

Some suggest that Nationwide Permit 26 (NWP 26) is the most
controversial of all the permits. NWP 26 authorizes the discharge
of dredged or fill material into headwaters and isolated waters.
The January 21, 1992, regulations that govern NWP 26 require that:

1. discharges not cause the loss of more than 10 acres of
waters of the United States,

2. prior notification of the Corps District Engineer if the
loss of waters is greater than I acre, and

45
3. the discharge is part of a single and complete project.

Two other nationwide permits which are important to the
development community are NWP 12 and NWP 14. NWP 12 permits the
discharge of material for backfill or bedding for utility lines,
provided there is no change in preconstruction contours. NWP 14
permits fills for roads crossing water of the United States
(including wetlands and other special aquatic sites) under certain
41
provisions.

In addition to some specific requirements, nationwide permits
must meet several general conditions. These conditions deal with
such issues as erosion and siltation controls, the disruption of
aquatic life movements, and threats to endangered species and
historic sites. The general provisions also permit individual
states to require state water quality certification to be obtained
or waived on certain nationwide permits."'

Exemptions under Section 404. "Normal farming, silviculture
(timber or forestry), and ranching activities" are exempt from
Section 404 regulations provided that these activities are a part
,of an established and ongoing agricultural operation. An exemption
would not be allowed if activities were aimed at converting wetland
areas which have not been used previously for agriculture or
forestry and where the reach of navigable waters is impaired."'

Section 401 State Water Quality Certification

4-56 FR 59143.

46 56 FR 59141 - 59142.

47 56 FR 59145 - 59147.

48Want, pp. 5-2 - 5-4.

Many states are using the Section 401 authority to ensure a
certain level of water quality and to protect other environmental
resources as well. In 1989, the General Assembly enacted House
Bill 1839 which established a new state permit, the Virginia Water
Protection Permit, which "shall constitute the certification
required under Section 401 of the Clean Water Act." The
legislation requires that all activities needing a Section 401
certification "be consistent with the provisions of the Clean Water
Act and protect instream beneficial uses."

The State Water Control Board (SWCB) issued proposed
regulations to implement this new permit process in late 1990 only
to withdraw them when legal questions arose over the inclusion of
language calling for no net loss of wetlands. There was also
significant public comment on the proposed regulations. Proponents
of the regulations advocate that the SWCB has the same jurisdiction
to regulate activities within wetlands as the Corps of Engineers.
Opponents argue that the General Assembly did not give the SWCB
specific authority to regulate wetlands beyond the Virginia
Wetlands Act. In the meantime, the SWCB is continuing to,issue
Section 401 certifications under existing regulations.

As stated before, states have the right to waive Section 401
certification for nationwide permits. Several states have chosen
not to waive, that is to deny, certification on specific permits."
To date, Virginia has chosen not to waive state certification on
NWP 26, as have other states. In these states, the Corps informs
an individual that he or she must obtain a state water quality
certification before proceeding under NWP 26. Virginia is
currently considering changing this requirement based on the
regulations that are effective on January 21, 1992.

VIRGINIA WETLANDS LAW

As in the case of the federal government, the Commonwealth of
Virginia has several programs which regulate or impact development
in and adjacent to wetlands. This section will discuss the
Chesapeake Bay Agreement, the Chesapeake Bay Preservation Act, the
Virginia Wetlands Act, and efforts to adopt nontidal wetlands
regulations.

Chesapeake Bay Agreement

In 1987, the Governor of Virginia, along with governors from
Maryland and Pennsylvania, the Mayor of the District of Columbia,
the Administrator of the Environmental Protection Agency (EPA), and
the Chairman of the Chesapeake Bay Commission signed an agreement
to restore and protect the Chesapeake Bay--the Chesapeake Bay

"Ibid., p. 6-37.

Agreement. This document outlines goals, objectives, and
commitments to specific action to improve the Bay. Areas covered
include living resources, water quality, population growth and
development, public information, education and participation,
public access, and governance."

One of the commitments of the Chesapeake Bay Agreement was to
"by December 1988, to develop a Bay-wide policy for the protection
of tidal and non-tidal wetlands.1151 On January 5, 1989, the
signatories of the Chesapeake Bay Agreement, including then
Governor Gerald Baliles, adopted a policy document which addresses
wetlands protection.

As stated in the policy document, "The goal of the wetland
protection and management strategy is to achieve a net resource
gain in wetland acreage and function over present conditions by:

1. protecting existing wetlands; and

2. rehabilitating degraded wetlands, restoring former r
wetlands, and creating artificial wetlands. ,52

The document contains a series of policy statements which are
organized into four focus areas: inventorying and monitoring
wetlands; protecting existing wetlands; rehabilitating, restoring
and creating wetlands, and public education and research. 13 These
policy statements are significant because the adoption statement
says that the signatories agree "to commit the necessary funding
and resources to carry out the implementation of the poliCy.,,54

Virginia Wetlands Act

The Virginia Wetlands Act was passed in 1972. Section 62.1-
13.1 states that wetlands are an "irreplaceable natural resource"
and that the declared policy of the Commonwealth is "to preserve
the wetlands and to prevent their despoliation and destruction and
to accommodate necessary economic development in a manner
consistent with wetlands preservation." The purpose of this policy
is "to protect the public interest, promote the public health,
safety and the economic and general welfare of the Commonwealth,

'01987 Chesapeake Bay Agreement, (1987), pp. 1 - 12.

"Ibid., p. 2. LE

"Chesapeake Bay Wetlands Policy, (Annapolis, Md.: Chesapeake
Executive Council, 1988), p. 2.

13 Ibid., pp. 3 - 14.

54 Ibid., Adoption Statement, p. [i).

and to protect public and private property, wildlife, marine
fisheries, and the natural environment."

Activities Recrulated. Any proposed activity that affects
vegetated or nonvegetated tidal wetlands requires a permit. Some
activities are exempt from regulation. These include construction
of non-commercial piers and catwalks, routine maintenance o 'f
existing roadways, observation decks, cultivation and harvesting
of shellfish, cultivation and harvesting of agricultural, forestry
or horticultural products, non-commercial outdoor recreational
activities, Virginia Institute of Marine Science research
activities, duckblinds, governmental activities on state-owned or
leased wetlands, and routine maintenance of drainage ditches.
These exemptions closely reflect those found under the Section 404
program.

PrinciRal Administrative Agency. All activities that require
a wetlands permit are handled by the Virginia Marine Resources
commission (VMRC) . VMRC is charged with the promulgation of
guidelines "which scientifically evaluate vegetated and
nonvegetated wetlands by type and which set forth the consequences
of use of these wetland types.115" VMRC may also develop
administrative procedures designed to expedite the processing of
applications among VMRC, local wetlands boards, and other state
and federal agencies.

By adopting the model wetlands zoning ordinance found in the
Act, a local wetlands board may become the principal administrative
body for the jurisdiction. Any wetlands applications received by
VMRC will be forwarded to the wetlands board in the appropriate
jurisdiction. In the Richmond region, Charles City County and New
Kent County have established wetlands boards.

Review Authority. The Commissioner of VMRC reviews all
decisions of local wetland boards. The Commissioner may direct the
commission to review any decisions in question. In addition, the
VMRC will review appeals made by an applicant, the county, city,
or town in which the wetland is located, or when petitioned by
twenty-five or more freeholders of property. VMRC has the
authority to modify, remand, or reverse the decision of a local
wetlands board. Appeal of the Commission's decision may be made
to Virginia courts by an applicant, county, city, town, or
freeholders. Wetlands applications received by VMRC are sent to
the U.S. Army Corps of Engineers (Corps) under a joint
federal/state permitting and public notice agreement.. This process
is designed to reduce review time.

Policy and Standards. The policy to preserve wetlands,
prevent their despoliation and destruction, and accommodate

"Va. Code, Section 62.1-13.3, (1991).

economic development in a manner consistent with wetlands
protection serves as a guideline to VMRC and local wetlands boards.
Decisions made during the permitting process are based on this
policy statement. Also, standards have been developed that are to
be followed in the decision-making process. These standards are:

1. Wetlands of primary ecological significance shall not be
altered so that the ecological systems in the wetlands
are unreasonably disturbed.

2. Development in Tidewater Virginia, to the maximum extent
practical, shall be concentrated in wetlands of lesser
ecological significance, in vegetated wetlands which have F
been irreversibly disturbed before July 1, 1972, in
nonvegetated wetlands as described herein which have been
irreversibly disturbed prior to January 1, 1983, and in
areas of Tidewater Virginia apart from the wetlands.

3. The provisions of the guidelines promulgated by the VMRC
pursuant to the Virginia Wetlands Act shall be considered
in applying the foregoing standards. 56

The Virginia Institute of Marine Science (VIMS) and VMRC have
developed a document entitled Wetlands Guidelines. This document,
developed to address standard 3 above, is designed to assist VMRC
and local wetlands boards in the review of activities proposed to
take place in tidal wetlands. Such activities require a permit
from VMRC or a local wetlands board. The guidelines list
Virginia's common tidal wetland types and their -relative values in
relation to their functions. The guidelines address marshes,
beaches, tidal flats, and subaqueous lands.

Marshes are found at "mean sea level" and contain various
vegetated communities. Beaches and tidal flats are found between
the high water line and low water line and contain no vegetation.
They are alternately exposed and covered by the tide. Subaqueous
lands are located below the limits of low tide and are always
underwater. These lands may or may not contain aquatic vegetation.

Twelve types of vegetated wetlands (marshes) and five types
of nonvegetated wetlands (tidal flats and beaches) are described
in the guidelines. These are then grouped based on their relative
values. The criteria used to determine value are production and
detritus availability, waterfowl and wildlife utilization, erosion
buffer, water quality control, and flood protection. These
criteria are averaged to produce a value for each wetland type.
Group 1 contains the types that are considered most valuable, group
2 the next most valuable, and so forth. These groups are shown in
Table 2.

56Va. Code, Section 62.1-13.3, (1991). U

Table 2

Tidal Wetlands Communities by Group

Vegetated Nonvegetated
Communities Communities

Group One saltmarsh cordgrass intertidal beaches
arrow arum-pickerel weed intertidal oyster reef
freshwater mixed
brackish water mixed

Group Two big cordgrass sand flats
saltmeadow sand/mud flats
cattail

Group Three yellow pond lily
black needlerush

Group Four saltbush

Group Five saltwort
reedgrass

Source: Wetlands Guidelines. Department of Wetlands Ecology,
Virginia Institute of Marine Science, College of William
and Mary, and Environmental Affairs Division, Virginia
Marine Resources Commission.

The Wetlands Guidelines note that the destruction or
disturbance of any wetlands should be avoided, but if necessary,
the tidal wetland types contained in the higher numbered groups
could be developed with less of a loss of value than those in the
lower numbered groups. The permitting of wetland activities
ultimately should be determined on a case-by-case basis.

Chesapeake Bay Preservation ACt

In 1988, the General Assembly enacted the Chesapeake Bay
Preservation Act to protect the water quality of the Bay. The
Preservation Act calls for the "counties, cities, and towns of
Tidewater Virginia (to] establish programs, in accordance with
criteria established by the Commonwealth, that define and protect
certain lands, hereinafter called Chesapeake Bay Preservation
Areas, which if improperly developed may result in substantial
damage to the water quality of the Chesapeake Bay and its
tributaries. ,57 All counties, cities, and towns in Tidewater
Virginia must comply with the Act and its regulations. Those
localities not specifically covered by the Act have the option to
develop requirements based on the Act.

Activities Regulated. The Preservation Act regulations
establish criteria for local governments to use in the designation
of Chesapeake Bay Preservation Areas (CBPAs). Chesapeake Bay
Preservation Areas are divided into two categories: (1) Resource
Protection Areas (RPAs) and (2) Resource Management Areas (RMAs).
Resource Protection Areas consist of tidal shores, tidal wetlands,
nontidal wetlands hydrologically connected by surface flow and
contiguous to tidal wetlands and tributary streams, and a 100 foot
buffer. RPAs can also include other environmentally sensitive
lands, as designated by localities. Resource Management Areas
surround the RPAs and protect the values and integrity of the RPAs.
Nontidal wetlands, flood plains, highly erodible and highly
permeable soils, and steep slopes shall be considered in
designation of Resource Management Areas.

Development within CBPAs is controlled through a series of
land use and performance criteria. Any land disturbing activity
exceeding 2,500 square feet is subject to a plan of development
review process. Development within RPAs is limited to water
dependent uses or redevelopment. ' Land uses are not regulated
within the RMAs, but there are performance criteria regarding the
preservation of vegetation and other water quality measures to
protect the integrity of the RPA.

PringiRal Administrative Agency. The Chesapeake Bay Local
Assistance Board is charged with developing regulations to
implement the Preservation Act and ensuring compliance by those
localities covered by the Act. The Board is assisted in its
efforts by the Chesapeake Bay Local Assistance Department. In
addition to its responsibilities to the Board, the Department
provides technical assistance to local governments seeking to
comply with the Act.

17 Va. Code, Section 10.1-2100, (1988).

Review Authority. Local Chesapeake Bay Preservation programs
are reviewed by the Local Assistance Board for consistency with the
Act and its implementing regulations. The Local Assistance
Department assists the Board with this review.

In September 1989, the Local Assistance Board adopted
regulations which set forth specific requirements of the Act and
established a timetable for complying with the Act. Localities in
the Tidewater region are required to have adopted a full Chesapeake
Bay Preservation Areas program by November 15, 1991.

Not every locality was able to take all actions prescribed in
the regulations by the November 15, 1991, deadline. This was due
to a variety of factors. The Local Assistance Board and Department
are working with,local governments to implement the provisions of
the Act as soon as possible.

Virginia Nontidal Wetlands Roundtable

For several years, the General Assembly has considered
nontidal wetland regulations. To date, no legislation has been
passed. The General Assembly did, however, appoint the Virginia
Nontidal Wetlands Roundtable to investigate the issue of regulating
nontidal wetlands. The Roundtable consisted of members of the
General Assembly, state and local officials, environmental groups,
and private citizens.

In January, 1990, the Roundtable published a report to the
Governor and General Assembly. As stated in the report, the
Roundtable was created because the "General Assembly believed that
in order to craft a specific state program for nontidal wetlands,
a better understanding of the resource and alternative management
programs was necessary and the subject required additional study."

In its final report, the Roundtable members concluded that
"while effective management of nontidal wetlands should be of
immediate and continuing concern to the Commonwealth, creation of
a new regulatory program for the resource may be premature at this
time." The report went on to say "that the state should
immediately take steps to: enhance, coordinate and assess existing
programs; institute continuing educational, research and incentive
based preservation programs; and develop a current inventory of the
resource.","' The findings and recommendations of the Roundtable are
reproduced in the appendix.

"Report of the Virginia Nontidal Wetlands Roundtable To the
Governor and The General Assembly of Virginia, House Document No.
54, (Richmond, Va.: Commonwealth of Virginia, 1990), pp. 2 4.

LOCAL MEANS OF WETLANDS PROTECTION

Local governments can play an important role in wetlands
protection. In fact, recent actions by the General Assembly, such
as the passage of the Chesapeake Bay Preservation Act and changes
in local planning and zoning authority, , suggest an even greater
environmental protection role for local governments.

The purpose of this section is to discuss planning and
regulatory authority available to local governments to protect
environmentally sensitive areas such as wetlands. Also examined
are the use of property acquisition and assessment programs to
preserve wetlands.

A word of caution is necessary. Some individuals believe that
Virginia's status as a Dillon rule state limits the ability of
local governments to plan for and, especially, to regulate
development in wetlands, particularly nontidal wetlands. Others,
including the authors of this report, believe that changes made
to the local planning legislation in the last few years, coupled
with the Virginia Wetlands Act and the Chesapeake Bay Preservation
Act, give local governments an array of wetland protection tools.

This report cannot resolve this debate. It does examine the
planning and implementation tools available to local governments
and how they can be used to address wetlands protection. Any local
government should work closely with its legal counsel when
developing land use regulations.

COMPREHENSIVE PLANNING

The Code of Virginia mandates that all local governments adopt
a comprehensive plan. Section 15.1-446.1 states that a
comprehensive plan "shall show the... long-range recommendations
for the general development of the territory covered by the plan."
The Code then enumerates the types of land uses that may be
included within the long range development recommendations of a
comprehensive plan. 'In addition to areas for residential,
commercial, and industrial development, the Code permits the
inclusion of recommendations for conservation areas, flood plains
and drainage, and for the implementation of reasonable groundwater
protection areas. While wetlands are not specifically mentioned,
the role that wetlands play in protecting water quality and
assisting in flood protection appea .rs to justify their inclusion
in the comprehensive planning process.

Additionally, Section 15.1-447 states that in the preparation
of a comprehensive plan, localities "shall survey and study such
matters as" natural resources, groundwater, surface water, flood

3.9

control, and flood damage prevention. In 1991, the General
Assembly amended the Code by adding the term "environmental
factors" to the areas to study. Again, while wetlands are not
specifically cited, this wording appears to give validity to
including wetlands in the areas to be surveyed and studied.

While a comprehensive plan has no regulatory authority, it
does provide a framework upon which specific land development
ordinances can be based. Section 15.1-456 states that once a
comprehensive plan is adopted "it shall control the general or
approximate location, character and extent of each feature shown
on the plan."

There are several advantages to incorporating the location,
character and extent of environmentally sensitive areas into the
local comprehensive planning process. First, this information
alerts the local government and private property owners to areas
that may be inappropriate for certain types of development or areas
that may be difficult or costly to develop. It assists local,
state, and federal agencies in the planning of public improvements
which may need to avoid certain environmentally sensitive areas.
This in itself may save time and money on construction projects.
Finally, it allows the local government to plan for its future with
a better understanding of its resources, both those that may need
to be protected and those that are available for development.

The techniques used to incorporate wetlands protection into
the local comprehensive plan are identical to those used to address
other land use issues. However, there are special aspects which
need to be noted. The following examines how wetlands protection
can be integrated into a comprehensive planning process and some
of the issues related to wetlands planning.

wetiand inventories and Xapping

An important step in the planning process is to determine the
extent, location, and significance of local land uses and
resources. Many localities inventory and map environmentally
sensitive areas as part of this process.

Wetlands are environmentally sensitive areas that should be
considered during the preparation of a comprehensive plan. Mapping
wetlands can present a problem, however. To address this problem,
local governments can either inventory and map the information
themselves or they can rely on existing mapping information. Each
option has advantages and disadvantages.

The most accurate means of locating, mapping, and evaluating
wetlands is to perform an actual wetlands inventory. For most
localities, this approach involves hiring a wetlands expert. This
individual utilizes specialized training and on-site inspection
methods to locate, measure, and map wetland areas. While this

approach may provide the most accurate information, few localities
can afford the cost and time required by this technique.

An alternative to performing an actual inventory is to use
existing information to locate wetlands. The most extensive
mapping of wetland areas, both tidal and nontidal, is the National
Wetlands Inventory (NWI), a program of the U.S. Fish and Wildlife
Service. Wetland inventory maps which overlay the U.S. Geological
Survey (USGS) 7.5 minute quadrangle maps are available for the
entire state. The most up-to-date and accurate NWI maps cover the
western portion of the state; work is underway to update the NWI
maps for the eastern portion. Caution must be exercised when using
these maps, especially those that are available for eastern
Virginia. Some of the older NWI maps have been found to
significantly understate the presence of wetlands.

The Virginia Institute of Marine Science (VIMS) is another
source of information on the location of wetlands. VIMS has
delineated tidal wetlands for many of the localities in Tidewater
Virginia. Other agencies that may be helpful are the Virginia
Marine Resources Commission, the Virginia Council on the
Environment, and the Chesapeake Bay Local Assistance Department.

Soil surveys, which can be used to locate hydric soils, can
be used to estimate the locations of wetlands. Using existing soil
surveys, the Information Systems Support Laboratory, Agricultural
Engineering Department, Virginia Polytechnic Institute and State
University prepared a series of maps which locate hydric soils in
localities covered by the Chesapeake Bay Preservation Act. These
maps overlay the USGS 7.5 minute quadrangle maps. This same
organization can assist other localities in the preparation of this
type of information, provided a soil survey has been completed.

It must be remembered that information sources such as the NWI
maps should only be used for general planning purposes. These maps.
rarely have the level of detail or accuracy needed to make site
specific determinations of wetland locations.

It must also be remembered that on-site wetlands delineation
is not any easy task. Wetland specialists can disagree over the
presence and extent of wetland areas.

Goals and objectives

A comprehensive plan should contain the goals (or visions)
which a locality wants to achieve and the objectives (or
benchmarks) that allow the locality to judge movement toward its
stated goals. These goals and objectives establish the overall
framework for guiding future development. They also serve as the
basis for the ordinances that are adopted to implement the plan.
In order for a plan to be defensible in court, there must be a
clear relationship between the goals and objectives set forth in

the plan and the ordinances used to implement the plan. The plan
must also be in compliance with State enabling legislation.

Some localities establish broad environmental goals such as
the following from Charles City County:

"To preserve and protect the natural environment while
permitting development to occur in a manner consistent with
the capacity of the land to handle development.""

Other possible, goals are the protection of water quality,
preservation of recreational opportunities, and the maintenance of
viable fisheries. All of these contain aspects which relate to the
protection of wetlands. Whatever goals are developed, they should
relate to the unique character and resources of the locality.

Once broad goals are established, it is then necessary to
establish measurable objectives based on the goals. One possible
objective related to the above Charles City County goal is:
or
No net loss of wetlands in the County.

This objective is consistent with a goal of protecting the natural
environment. In addition, the locality can evaluate its success
in meeting this objective on an annual basis or during the periodic
update of the plan which is required at least every five years.

Development Strategies

Goals and objectives establish the overall type and intensity
of development a locality desires. Development strategies are used
to define the best approach to be used to reach the locality's
goals and objectives.

Wetlands protection strategies can also be referred to as
mitigation strategies. The VMRC Wetlands Mitigation-Compensation
Policy defines mitigation as:

"all actions, both taken and not taken, which eliminate or
materially reduce the adverse effects of a proposed activity
on the living and nonliving components of a wetland system or
their ability to interact.11"

"Charles City County Comiprehensive Future Land Use Plan,
(1991), p. 66.

60 "Wetlands Mitigat ion-Compensat ion Policy," VR 450-01-0051,
(Virginia Marine Resources Commission, 1989), p. 1.

The following suggests one possible set of wetlands protection
strategies. These strategies establish a hierarchy for dealing
with development in or adjacent to wetlands.

1. Avoid impacts by prohibiting the development of wetland
areas where possible.

2. Where avoidance is not possible, minimize impacts on
wetlands by limiting the degree or magnitude of
development activity on or adjacent to wetlands.

3. Require compensation for the loss of all or part of a
wetland through restoration, enhancement or creation."

Avoidance of wetland development is the preferred management
strategy in many cases. This strategy is especially important when
dealing with the most productive types of wetland communities.

Total avoidance of wetland development is not always possible.
In these cases, the strategy of minimizing the impacts of
development on wetlands becomes appropriate. This strategy can
take two forms. One form is to limit development in or adjacent
to wetlands. The Virginia Wetlands Act lists specific types of
activities that are permitted in wetland areas. These activities
can generally be categorized as water related uses and the
construction and maintenance of public and private infrastructure.

The regulations that implement the Chesapeake Bay Preservation
Act limit development in Resource Protection Areas (which include
tidal and some nontidal wetlands) to water dependent uses and
redevelopment. The regulations require that development impacts
be minimized and suggest the use of various best management
practices as appropriate protection techniques.

Taken together, the Wetlands Act and the Preservation Act
appear to establish a state strategy of avoiding development where
possible in tidal and certain nontidal wetlands. Where avoidance
is not possible, the strategy is to minimize the impact of
development on wetlands areas. Local governments that adopt local
ordinances to implement either or both of these Acts are therefore
assisting with the implementation of these strategies.

A third wetland protection strategy is to require compensation
for wetlands that must be damaged or destroyed to make way for
development. Three techniques are used to compensate for wetlands
losses: restoration, enhancement, or creation. There are varying
points of view about the success of these compensation measures.

"David Salvesen, Wetlands: Mitigating and Regulating
Development Impacts, (Washington, D.C.: Urban Land Institute,
1990), pp. 69 - 107.

1. Wetland restoration seeks to return the ecological
productivity of a wetlands area that has been disturbed
by development activity. Measures are taken to restore
the wetlands site by cutting off all pollution
discharges, removing any fill, regrading the site, and
transplanting appropriate wetlands vegetation on the
site. The goal in restoration is to ensure a no net loss
of wetlands and successful completion of the restoration
on the site. This technique is not always successful,
61
leading to the loss of wetland areas.

2. Wetlands enhancement is most likely to occur in
situations where efforts to recreate the original 01
wetlands type are difficult or are deemed to take longer
than developing another type of wetland on the same site.
The conditions of the site, such as soils, climate, and
presence of water, will greatly influence what type of
wetlands is developed. The "replacement" wetland type
should be of equal or greater value than the original
wetland. Some argue that wetlands enhancement does not
result in an equitable exchange of wetlands types, that
wetlands of a lesser value to the environment are often
chosen. For example, an individual might replace a
wetland with a pond that would be aesthetically pleasing
to a particular development rather than choose a wetland
type-that would benefit the ecological productivity of
the site.63

3. Wetlands creation is by far the most debated approach to
mitigation. This strategy involves developing wetlands
from dry land. For wetlands creation to be successful,
a host of conditions need to be met. Wetlands require
proper topography, soil types, hydrology, and climate.
Acquiring plants distinctive to a wetlands natural state
is difficult. Also, created wetland should provide the
same functions as the destroyed wetland. Many wetlands
scientists do not believe that artificial wetlands can
replace natural wetlands. A study conducted in coastal
Virginia in 1985 indicated that out of 32 wetlands that
were created only 9 sites were completely successful.
Most wetland scientists agree that creating wetlands
where none exist is far more difficult than restoring
wetlands on their original sites."

62 Salvesen, pp. 77 - 82.

63 Ibid.

64 Ibid., pp. 95 - 99.

Development Policies

once development strategies have been determined, policies can
be adopted to give guidance to decision makers and property owners
on the standards that will be used to evaluate development
proposals. Possible wetland development policies include:

1. Cluster development on upland sites to minimize the
impacts on environmentally sensitive areas such as
wetlands.

2. Restrict development within wetlands to uses that are
compatible with and/or have minimum impacts on wetlands.

3. Restrict development within wetlands to water dependent
uses where possible. Limit actual development in
wetlands areas to those uses which must locate in
wetlands; require that uses that do not need to be
located in wetland areas be located in upland areas.
(For example, a boat ramp may need to be located in a
wetland; the parking lot for the ramp should be located
in an upland area.)

4. Require the use of Best Management Practices in all
developments that impact wetlands, 'either off or on site.

one can begin to see the correlation between development goals'
and objectives and development policies. There must also be a
correlation between development policies and ordinances and other
actions taken to implement the plan. This type of internal
consistency is essential in a comprehensive plan.

Future Land Use Map

A local comprehensive plan typically includes a future land
use map. Such a map shows the desired future development pattern
for the locality.

Many localities in the Richmond region have included wetland
areas on their future land use maps. Wetlands are included in such
land use categories as conservation areas, flood plain and
drainage, open space, or environmentally sensitive lands. All of
these areas call for limited development. While a future land use
map can only be used for general planning, the inclusion of these
areas on the map graphically illustrates those areas that have
special environmental limitations.

Education Value

An important aspect of the development of a comprehensive plan
is its educational value. The public nature of the process allows
government officials, land owners, and others in the community to

discuss and learn f rom each other about existing conditions and
future aspirations.

The planning process can serve as an excellent opportunity to
discuss and learn about the locality's environment. Background
reports can be prepared which examine the extent and importance of
wetlands and other environmentally sensitive areas. With this
information, a locality can develop a comprehensive plan that meets
its overall development needs while protecting its environmental
resources.

LAND DEVELOPMENT ORDINANCES

The Code of Virginia grants local governments the power to
enact ordinances to zone land, regulate the subdivision of land, r
and take other actions aimed at achieving the goals and objectives
of the comprehensive plan. These same techniques can be used to
protect wetlands from inappropriate development. In addition, some
specific authorities have been granted to local governments to
protect environmentally sensitive areas. The following examines
these techniques.

zoning Ordinance

The Code permits cities, counties, and towns to adopt zoning
ordinances. The purpose of a zoning ordinance, as set forth in
Section 15.1-489, is to protect the "health, safety or general
welfare of the public... .11 Local governments can accomplish this
purpose through activities such as the regulation of the use of
land, through restrictions on the location and size of buildings,
and through requirements related to the retention of open space."

In 1990, the General Assembly amended the list of specific
purposes for zoning to include "the preservation... (of) other lands
11 66
of significance for the protection of the natural environment.
While the Code previously included purposes such as the protection
of flood plains and water quality, this new language is the first
to specifically establish the protection of the natural environment
as a purpose of zoning. Some believe this language gives
localities the ability to use zoning authority to protect
environmental features such as tidal and nontidal wetlands,
exclusive of the provisions of the Virginia Wetlands Act and the
Chesapeake Bay Preservation Act.

Furthermore, the Code states that when zoning ordinances and
districts are developed, a local government shall consider, among

6'Va. Code, Section 15.1-486, (1991).

"Va. code, section 15.1-489, (1991).

other things, "the existing use and character of the property, the
comprehensive plan, the suitability of property for various uses,
the current and future requirements of the community as to land for
various purposes.... the conservation of natural resources, the
preservation of flood plains .... and the encouragement of the most
11 67
appropriate use of land throughout the county or municipality.

There are several techniques that can be used to protect
wetlands through zoning. Following is a discussion of some of the
techniques.

special zoning districts. one technique used is to establish
special zoning districts for environmentally sensitive areas such
as wetlands. This permits local governments to limit development
in these areas to uses that are compatible with environmentally
sensitive areas such as wetlands. To be effective, accurate
information about the location of these areas is necessary. This
information can be costly to obtain. In addition, attention must
be taken to ensure that the uses permitted in the district and the
development standards for those uses adequately address the special
needs of environmentally sensitive areas such as wetlands.

The New Kent County zoning ordinance contains a conservation
district established to protect environmentally fragile or
significant areas. A stated purpose of the district is the
protection of wetlands. Uses permitted within the district are
restricted to forestry, agriculture, open space, and recreation.
In addition, there are development standards which require the 61 use
of best management practices and grass buffers along streams.

Overlay Districts. Overlay districts are used to add or
delete specific uses or development requirements in certain zoning
districts without rezoning the property or affecting the use or
development requirements of similarly zoned property in other parts
of the community. Overlay districts may add requirements for
special water quality measures or reduce the types of uses
permitted in the underlying zoning district.

Some localities are using overlay districts to implement local
Chesapeake Bay preservation ordinances. For example, a Resource
Management Overlay District could be established to require certain
water quality protection measures without affecting the uses
permitted in the underlying zoning district. A Resource Protection
Overlay District could limit future development to water dependent
uses while requiring stringent water quality protection standards.

67 Va. Code, Section 15.1-490, (1991).
42. "Zoning Ordinance, County of New Kent, Virginia, (1987), p.

Performance Standards. The purpose of performance standards
is to reduce or eliminate the negative impacts of certain types of
land uses on existing and potential uses. A zoning ordinance may
contain performance standards for noise, dust, toxic discharges,
heat, odor, and water quality.

Performance standards may be used to ensure that activities
occurring outside of or adjacent to wetlands do not adversely
impact them. These standards could include:

1. requirements for vegetated buffer strips adjacent to
wetlands,

2. requirements for the preservation of vegetation, both
during and after site development,

3. setbacks for buildings and other site improvements with
regard to wetlands,

4. the type and content of fill material to be used on the
site, and

5. other best management practices to insure that wetland
69
areas are not damaged during or after development.

The model ordinance developed to assist localities with the
implementation of local Chesapeake Bay preservation programs
contains examples of performance standards that may be used to
protect wetlands and other environmentally sensitive areas.

Planned Unit Development. This technique allows property to
be developed in accordance with an overall plan that may deviate
from certain specific development standards such as lot size and
building setback requirements. Localities can use planned unit
development ordinances to provide incentives for the protection of
wetlands. For example, a local government may offer incentives
such as density bonuses for proposals that concentrate construction
in upland areas and leave wetlands undisturbed. The result is the
protection of resources such as wetlands while permitting
development to occur.

Conditional Zoning. This technique allows property owners to
voluntarily attach certain conditions (referred to as proffers) to
rezoning requests. These proffers could include guarantees to
protect wetland areas and/or to implement mitigation measures.
These conditions must comply with the comprehensive plan which is
another reason to address environmental protection in the plan.
These conditions should clearly promote the general welfare of the
community over the good obtained by the property owner. All

69 Burke# Meyers, Tiner, and Groman, p. 43.

Virginia localities have the authority to use conditional zoning,
but in varying degrees.

Transfer of Development Rights. One technique that has been
used in other states is transfer of development rights (TDRs) .
This technique allows the development rights attached to one
property to be transferred, by sale or lease, to another property.
The purchaser of the development rights may then develop other
property more intensely then originally permitted by the zoning
ordinance. The seller of the development rights may only develop
as intensely as permitted by the remaining development rights. It
is argued that the transfer of development rights can aid in the
protection, of environmentally sensitive lands by removing
development pressures while allowing the owner of such properties
to receive income from the sale of the development rights. The
Virginia General Assembly has considered TDRs many times, but has
yet to pass enabling legislation.

Subdivision Ordinance

While not all localities in the Commonwealth have adopted
zoning ordinances, all localities are required to adopt a
subdivision ordinance." Subdivision ordinances regulate the
division of land into smaller tracts or lots, usually for the
purpose of development. Local governments can use subdivision
ordinances both as a means to expand the local data base on
wetlands and as a means to protect wetlands.

Subdivision ordinances typically require that information such
as soil characteristics, stream locations, and other pertinent land
features be included on a map or plat of the property being
divided. Adding requirements for the delineation of wetlands on
a subdivision plat can be beneficial to the local government and
to the property owner or developer. This information can also be
used to expand the locality's wetlands data base.

During the subdivision review process, the property owner and
local government officials work together to determine the most
appropriate locations for building lots, roads, and other proposed
infrastructure. By requiring the delineation of wetlands during
the initial design review process, a locality can ensure that lots,
roads, and infrastructure are designed to avoid unnecessary damage
or loss of wetlands. This not only protects wetlands, but can also
save the land developer by reducing construction costs and can save
the locality on future maintenance costs. This review can also
highlight activities that will require a Section 404 permit.

The delineation of wetlands early in the process also allows
the local government and the property owner to determine the proper

70Va. Code, Section 15.1-465, (1991).

locations for best management practices (BMPs) The design and
installation of BMPs for an entire subdivision is often more cost
efficient and has a greater impact on maintaining water quality
than the installation of such devices on individual lots.

Some localities require that individuals subdividing land
dedicate a portion of the property for recreational or open space
purposes. By negotiating with the property owner, localities may
be able to have wetland areas preserved. In addition, localities
may also be able to negotiate the granting of conservation
easements or the establishment of private development restrictions
to protect wetlands.

Unfortunately, local governments do not always have personnel
with the proper training and experience to evaluate the accuracy
of wetlands mapping or proposed BMPs. Assistance is available from
several sources including the Chesapeake Bay Local Assistance
Department and the Council on the Environment. In addition, many
planning districts commissions have staff available to assist with
this review. Private consultants are another source of assistance.

site Planning ordinance

A site plan is a drawing which shows the location of proposed
development or redevelopment on a site. Some localities have
adopted site planning ordinances for all or certain types of
development. These ordinances require that development and
redevelopment proposals be accompanied by a drawing which shows
information such as existing and proposed buildings, driveways,
vegetation, and other features on the site.

All localities in Tidewater Virginia are required to
incorporate a plan of development review process into their local
Chesapeake Bay preservation ordinances. This review process,
sometimes referred to as a site plan review, is required for any 16
activity that will disturb more than 2,500 square feet of land
within locally designated Chesapeake Bay Preservation Areas."

Adding requirements to map wetlands on a site plan can offer
some of the advantages discussed regarding subdivision
requirements. It provides the locality with detailed mapping of
wetlands at no cost to the locality. In addition, it provides an
opportunity for the discussion of actions the property owner can
take to protect wetlands. As with the review of subdivisions,
training is necessary to evaluate wetlands mapping and proposed
protection measures. Local governments needing assistance can call
on the agencies discussed above under subdivision ordinance.

"Chesapeake Bay Preservation Area Designation and Management
Regulations, Final Regulation: VR 173-02-01, (Chesapeake Bay Local
Assistance Board, 1990), pp. 7, 17.

Flood Plain Ordinance

Most localities have adopted ordinances which govern
development within the 100 year flood plain of rivers and streams.
These ordinances include standards for where and how development
may take place in designated flood plains.

Most tidal and some nontidal wetlands are located in flood
plains. For this reason, some localities in other states have
adopted ordinances that attempt to protect wetlands during and
after development in a flood plain. These restrictions include
prohibitions against filling and excavating wetlands, construction
of structures which impede the flow of water, and the disturbance
72
of natural vegetation . This option is not available in Virginia
since localities are only authorized to adopt the minimum language
of the federal model flood plain ordinance.

Wetlands remain, however, an integral part of many flood
plains. As stated previously, some wetlands play an important role
in flood control by storing and slowing flood waters, reducing
flood peaks, and increasing flow duration. Localities need to keep
these functions in mind when considering requests to build in or
modify flood plains.

Stormwater Management Ordinance

Contaminants from diffuse activities or sources, such as
automotive oil and fertilizerf are collectively called nonpoint
source pollution. Left untreated, these pollutants can be washed
off parking lots or agricultural fields by rainfall (stormwater)
and allowed to flow into low-lying areas, such as wetlands, without
treatment. The accumulated impact of such pollution can -result in
the degradation of water quality and endanger wetland vegetation
and wildlife.

Stormwater management ordinances seek to reduce or eliminate
this flow of pollutants by requiring the treatment of stormwater,
either on individual properties or at a collective or regional
stormwater treatment facility. There are a variety of best
management practices (BMPs) that can be used to reduce the amount
of pollutants which eventually enter wetlands and water bodies.

Section 10.1-603.1, et seq., permits localities to establish
a stormwater management program by ordinance. These provisions and
the stormwater management regulations, issued by the Division of
Soil and Water Conservation of the Department of Conservation and
Recreation, set forth the procedures for implementing a stormwater
management program. A model stormwater management ordinance will
also be prepared by the Division of Soil and Water Conservation.

72 Burke, Meyers, Tiner, and Groman, pp. 51 52.

In 1991, the General Assembly passed House Bill 1770. This
bill allows localities to develop stormwater utility districts as
a means of funding the costs associated with the development,
operation, and management of stormwater management facilities."

Erosion and Sediment Control ordinance

A well-enforced erosion and sediment (E&S) control ordinance
can be a key element in a locality's efforts to protect wetlands.
Without strict enforcement of erosion and sediment control
requirements, runoff from land disturbing activities can smother
wetland vegetation and eventually destroy a wetland. Sediment can
also clog waterways, leading to flooding problems.

In Virginia, local E&S control requirements can be
administered and enforced by either the local government or the
local soil and water conservation district. Typically the local
government administers and enforces the ordinance and the soil and
water conservation district assists with plan review. Section
10.1-560, et seq., and its implementing regulations specifies the
requirements for local erosion and sediment control ordinances.

A 1988 report to the Governor and the General Assembly
entitled Implementation Effectiveness of the Virginia Erosion and
Sediment Control Program recommended several actions regarding the
state E&S control program. Since the publication of the report,
Virginia has amended the E&S law and issued implementing
regulations. In addition, the Division of Soil and Water
Conservation has opened field offices and increased training
available to local enforcement agencies.

The primary responsibility for enforcing E&S requirements
still remains with the local government or the soil and water
conservation district. The 1988 report stated that the
"effectiveness of the local program is directly related to the
municipal attitude toward development and urbanization." 74
Localities that wanted development tended to be less vigorous in
the enforcement of E&S requirements. Localities less interested
in development tended to be more vigorous in enforcement.
Hopefully, as more is learned about the harmful impact of sediment
on wetlands, there will be an increased desire to enforce E&S
requirements.

73Va. Code, Section 15.1-292.3, (1991).

74 Report of thg Virginia Department of Conservation and
Historic Resources, Division of Soil and Water Conservation:
Implementation Effectiveness of the Virginia Erosion and Sediment
Control Program, House Document No. 15, (Richmond, Va.:
Commonwealth of Virginia, 1988), p. 54.

Landscaping ordinance

Some governments have adopted landscaping ordinances. These
ordinances establish standards for the preservation of existing
landscaping and the installation of new landscaping on development
sites. These ordinances can also be used to address the
preservation of wetlands.

Landscaping ordinances can require that certain existing
vegetation, especially wetlands vegetation, be preserved on a site.
Additional vegetation can be required to further protect wetlands
from potential sources of nonpoint source pollution and sediment
due to erosion. In addition, there can be requirements that
measures be taken to protect existing vegetation during
construction. Henrico County has adopted landscaping regulations
as an integral part of its Chesapeake Bay protection activities.

wetlands -ordinance

The Virginia Wetlands Act gives Tidewater localities the
authority to create local wetlands boards and adopt an ordinance
regulating development in tidal wetland areas. Local wetlands
boards consist of 5 to 7 local residents appointed to 5 year terms
by the local governing body. The ordinance, which may either be
free-standing or incorporated into the zoning ordinance, must
conform to the model ordinance set forth in the Wetlands Act. If
a locality chooses not to adopt local wetland regulations, the
Virginia Marine Resources Commission (VMRC) remains the permitting
authority. Following is a discussion of the model ordinance, the
permitting process, and the criteria used to evaluate permit
applications.

The Model Ordinance. All local programs must conform to the
model ordinance in the Wetlands Act. The model ordinance:

1. defines vegetated and nonvegetated wetlands,

2. describes activities. that do not require a wetlands
permit,

3. outlines information that must be contained in the
application, deadlines for submitting the application,
and procedures for pubic hearings, and

4. sets forth the factors the wetlands board must use in
making its decision."'

7Va. Code, Section 62.1-13.5, (1991).

If the local board finds that the public and private benefits
of a project exceed any anticipated public and private detriment
and that a project does not violate the purposes and intent of the
Wetlands Act, it must issue a permit. The board may, however,
place reasonable conditions or modifications on a permit to
minimize the impacts on local government services and the rights r
of other individuals. If the board finds that the public and
private detriments exceed the public and private benefits, the
board must deny the request.

The model ordinance also states that no permit granted by the
wetlands board shall affect the local zoning or other land use
ordinances. This emphasizes that the authority granted to wetlands
boards does not supersede local land use planning and ordinance
requirements.

The Permitting Process. The local wetlands board is one part
of the review process required to develop in tidal wetlands areas.
A project must also be reviewed by federal and state agencies. In
order to make the issuance of permits more efficient, federal and
state agencies and local governments in Virginia have established
a joint permitting process. The review process is described below
and illustrated in Figure 9.

1. An application is completed by the landowner and
submitted to the Virginia Marine Resources Commission
(VMRC). VMRC will assign a processing number to the
application to be used by all the regulatory agencies.

2. Copies of the application are sent to the Corps of
Engineers (Corps) and the local wetlands board for
review.

3. The Corps arranges a joint public notice for each
project. The notice is sent to adjacent property owners,
governmental agencies, and others who have requested the
opportunity to review the proposal.

4. A joint site inspection is conducted by the Corps, VMRC,
and the local wetlands board. The agencies may request
technical assistance from the Virginia Institute of
Marine Science (VIMS) or other sources during the site
inspection.

5. Federal and state agencies meet monthly to consider all
pending applications. Each project Is impact, development
alternatives, and mitigation opportunities are discussed.

6. If needed, any of the regulatory agencies may hold a
public hearing to formally review the application.

Figure 9

WETLANDS PERMIT REVIEW PROCESS

APPLICATION SUBMITTED

VMRC logs application, assigns application numbe If COE Permit
Required

Wetlands Board E Public
Review by 7Notice
Public Notice
VMRC, VIMS , 4
VDOT,
VSWCB, Day Com
C&HR, known Wetlands Board Public Hearing Period
claimants and
adjacent
prope Board Fails to Act Board Acts -----------------
owners Public Hearing
Approval Potential
Approval with ------------------
Modification
Denial Review by EPA,
FWS, NMFS
Decision Notice sent to VMRC and Applicant

COE Decision
-Permit Fina:l p p:e:a 1] 1 Approval
Approval with
Modification
Denial
Commission Thirty day
Hearing waiting period No Appeal
Uphold
i Reverse
rMit F@7-
Modify Final Pe inal Permit
Remand Appeal

Circuit Court

Acronyms

VMRC - Virginia Marine Resources Commission
VDOT - Virginia Department of Transporlation
C&HR - Virginia Department of Conservation and Historic Resources
VIMS - Virginia Institute of Marine Science
VSWCB - Virginia State Water Control Board
COE - Corps of Engineers Adapted from: Chesapeake Bay
EPA - Environmental Protection Agency Foundation Conserving Our
FWS - Fish and Wildlife Service Welland Resources: Avenues for
NMFS - National Marine Fisheries Services Citizen Participation, 1987.
ource: The Value of @Netla-nds:- A Guide far C 1 tizens,
SEVPDC, 1988.

After completion of step 5, or step 6 if needed, a decision
is made by the agencies to approve, approve with modifications, or
deny the proposal. Overall, the permitting process takes
approximately 2 to 3 months to complete.

As stated before, decisions made by the local wetlands board
are reviewed by the Commissioner of VMRC to ensure consistency with
the Wetlands Act. The applicant can appeal the Commission's
decision within ten days.

The Review Criteria. VMRC and VIMS have developed criteria
for evaluating alterations to wetlands. These criteria assist VMRC
.and local wetlands boards in regulating development activities
within wetlands. Briefly, the general review criteria are:

1. Alteration of the shoreline or construction of shoreline
facilities may be justified in order to gain access to
navigable water or to protect property from significant
damage or loss due to erosion or other natural causes.
This action must not result in an unreasonably
detrimental affect on wetlands or marine fisheries and
wildlife resources.

2. Shoreline alteration is not justified for activities that
do not require water access and can be conducted on
uplands; for purposes of creating waterfront property r
out of land not fronting navigable water; when alteration
will result in the damage of property owned by others;
when alteration results in the discharge of effluents
detrimental to wetlands; or when there are other
alternatives that can satisfy the needs of a certain
activity without damaging or destroying wetlands.

3. Open-pile type structures are preferred to solid
structures, dredging or filling, when used to gain access
to waters of sufficient depth.

4. Structures and other types of construction that are built
in wetlands should be designed to withstand the forces
of the marine environment.

5. High-density development in and immediately around
wetlands should be discouraged."

7
6Wetlands Guidelines, Department of Wetlands Ecology, Virginia
Institute of Marine Science, College of William and Mary and the
Environmental Affairs Division, Virginia Marine Resources
Commission, (n.d.), pp. 41 - 42.

specific information is included in the Wetlands Guidelines
to address shoreline protection, filling, dredging, and disposal
of dredged material. Criteria have been developed for specialized
structures and activities, such as channeling into fastland or
marshes, dams and impoundments, marinas, drainage and mosquito
ditches, and submarine pipeline crossings.

To receive a permit, ind 'ividuals must show the necessity of
a wetlands location and the.unavailability of alternative sites.
Steps must also be taken by the individual to protect the natural
functions of the wetland and minimize development impacts :
Violators of wetlands regulations usually receive civil penalties,
@owever, many localities are strengthening their penalties to
increase compliance with the regulations.

Chesapeake Bay Preservation Area ordinance

The Chesapeake Bay Preservation Act and its implementing
regulations establish an entire system for regulating development
in and adjacent to tidal and nontidal wetlands in Tidewater
Virginia. The regulations require or suggest many of the wetlands
protection techniques discussed previously. These include special
zoning categories or overlays and performance standards. The
specifics of how these techniques are implemented can be determined
by a local government working in concert with the Chesapeake Bay
Local Assistance Department.

The Local Assistance Department has also developed a model
ordinance for use in developing local ordinances to implement the
Preservation Act. This model ordinance, as well as other
procedures and guides developed by the Department, can be used by
localities outside the Tidewater region that desire to implement
the Preservation Act. Among other things, the model ordinance:

1. defines the purpose of the ordinance as it relates to the
protection of water quality,

2. defines the areas covered by the ordinance,

3. establishes performance standards as they relate to
development in resource protection and resource
management areas, and

4. outlines a process for establishing a water quality
impact assessment.

Some localities in the Tidewater region have adopted the model
ordinance with little or no modification. Others have used the
model as a guide for amending existing ordinances or creating new
ordinances. Localities outside the Tidewater region may find the
ordinance a helpful resource in establishing water quality and
wetlands protection measures.

As stated previously, local ordinances to implement the
Preservation Act are just now being implemented in the Tidewater
region. In addition, Albemarle County has implemented some of the
Preservation Act measures. Time will determine the effectiveness
of this program in addressing water quality issues.

WETLANDS ACQUISITION

Development ordinances are sometimes considered to be the
first, - and last, tool available to local governments to protect
valuable resources. While development ordinances are important,
localities need to consider other tools in planning for the
protection of wetlands and other environmentally sensitive areas.

The acquisition of wetlands, either by a public or private
body, is perhaps the most effective long-term wetlands protection
tool available. This section examines the various factors that
local governments need to consider regarding the acquisition of
wetlands.

Acquisition Methods

In discussing wetlands acquisition, it is important to keep
in mind two types of "ownership": fee simple and easement. Each
type of ownership has advantages and disadvantages.

Fee Simple Acquisition. This type of acquisition gives the
purchaser absolute ownership of the property. Fee simple
acquisition can also include the purchase of a property with
retention of a life estate by the seller; that is, the purchaser
has title to the property, but the seller retains the right to
remain on and/or use the property for his or her life.

tee simple acquisition is often used by localities to obtain
property for public purposes. This is especially true in
situations where public improvements will be made or the public
will have access to the property, such as park land.

With ownership comes the right to use the entire property as
the purchaser sees fit. ownership also brings responsibility for
maintaining the property and potential liability problems. - In
addition, when property is acquired by a public body for public
purposes, the property is no longer on the real estate tax rolls.

Easement Acguisition. Another approach to land acquisition
is the purchase of an easement. An easement can be described as
the privilege to make some special use of the property. An
easement can cover an entire piece of property or a certain
specified portion. Easements can be tailored so that the property
owner can continue to use and enjoy the property in a manner that
is not detrimental to the purpose of the easement.

Generally, easements can be purchased at a cost that is less
then the price of fee simple ownership. In addition, the purchase
of an easement does not take the property off the local tax rolls,
although it may affect the taxes paid as explained later. There
are times when the purchase of an easement does not meet a local
7overnment's needs. This is especially true where public access
is important.

Acquisition by Local Governments

The Virginia Open-Space Land Act permits localities to acquire
land for open space. According to the Act, "open space" means land
in an urban area which is provided or preserved for:

1. park or recreational purposes,

2. conservation of land or other natural resources,

3. historic or scenic purposest

4. assisting in the shaping of the character, direction, and
timing of community development, or

5. wetlands as defined in the Virginia Wetlands Act.

The Act defines urban areas to include areas which are urban
or urbanizing, including semiurban areas and surrounding areas,
taking into consideration population 77 trends, growth patterns,
transportation systems, and land uses .

A locality may acquire property through purchase, gift,
devise, bequest, or grant. It may also appropriate funds, issue
and sell general obligation bonds, and levy taxes and assessments
to accomplish the purposes of the Act. Property that is acquired
may be obtained through the purchase of an unrestricted fee simple
title, fee simple with reservation for right to farm or reservation
of timber rights, or through easements or other interests in real
estate of not less than 5 years duration.

An important element of this legislation is the requirement
that land acquired must be used in accordance with the local
comprehensive plan. This requirement highlights the importance of
considering the preservation of environmentally sensitive areas
such as wetlands during the preparation of the local plan. While
the Act specifically mentions the acquisition of tidal wetlands,
localities should investigate the acquisition of nontidal wetlands
as a means to preserve "natural resources" or to shape the
"character (and) direction" of local growth.

77 Va. Code, Section 10.1-1700, et seq., (1988).

Acquisition by other Agencies

Local governments are not always@ able to take the lead in
acquiring land for the protection of areas such as wetlands. This,
may be due to budget limitations or to local concerns over public
ownership of property. r

Fortunately, there are public and private organizations that
are involved in the acquisition of property for conservation
purposes. State agencies involved in the acquisition of land
include the Department of Conservation and Recreation and the
Department of Historic Resources. Another state related
organization involved in land acquisition is the Virginia outdoors
Foundation. Private conservation organizations involved in land
acquisition include Ducks Unlimited, the Chesapeake Bay Foundation,
the Nature Conservancy, and the National Audubon Society.

The following describes the work of the Virginia Outdoors
Foundation. Also described are the provisions of the Virginia
Conservation Easement Act, legislation which impacts the ability
of private conservation groups to acquire easements.

Virginia Outdoors Foundation. Created by the General Assembly
in 1966, the Foundation was established to promote the preservation
of open space lands and to encourage private gifts of money,
securities, land, or other property to preserve the natural,
scenic, historic, scientific, open-space, and recreation areas of
the Commonwealth . 7' To this end, it assists landowners in their
efforts to protect private property and encourages the public
policy of preserving open space.

The Foundation is authorized to accepts gifts and bequests of
money and other property. It can hold real property or any other
interest in real property (such as easements) for the preservation
of open space lands. According to the Foundation, the open space
easement is one of the strongest land preservation tools available
short of outright fee ownership of land.

The Foundation recognizes that the Commonwealth has many
special areas which should be protected in a comprehensive manner.
Like other organizations, it does not have unlimited resources.
Therefore, as a state body, the Foundation focuses its efforts and
resources on areas of state-wide significance. To this end, it
has developed a series of easement donation guidelines for
identifying open spaces for protection efforts and for evaluating
specific parcels of land.

The Foundation uses three documents to identify potential
easement projects. These are the Critical Environmental Areas

78Va. Code, Section 10.1-1800, et seq., (1988).

Survey prepared in 1972 by the then Division of State Planning and
Community Affairs, the Virginia Outdoors Plan, and local
comprehensive land use plans. In addition, the Foundation has
developed a series of points to consider when evaluating specific
sites for easement acquisition. These points are:

1. geographic location, intensity of development, type of
resource, and property characteristics;

2. specific conservation values on the site such as
wetlands, wildlife habitat, biological diversity,
historic resources, prime agricultural land, and scenic
values;

3. parcel size and the number of retained subdivision
rights; and

4. other featur es which could alter the use of the
guidelines such as topography that permits greater
density without threatening the conservation value."

As stated previously, the Foundation must focus on areas that
have a state-wide significance. Therefore, it encourages local
governments to start their own programs using the authority granted
by the Open-Space Land Act. To this end the Foundation, in
cooperation with the Chesapeake Bay Foundation and the Attorney
General's officel is developing an implementation manual for the
Open-Space Land Act, which should be available in late 1992. In
the interim, local governments may want to consider using the
Foundation's guidelines for evaluating potential acquisitions.

It is important to note that the Foundation uses local
comprehensive plans in its evaluation review. This emphasizes
again the importance of identifying areas such as wetlands on the
local comprehensive plan.

Virginia Conservation Easement Act. Passed in 1988, this
legislation permits charitable corporations, associations, and
trusts to acquire conservation easements.80 Prior to the passage
of the Act, there was some uncertainty over the ability of non-
profit organizations to purchase easements in Virginia. Therefore,
organizations chose to either purchase the fee and retain ownership
or sell the property and keep an easement. Easements were rarely,
if ever, purchased. The Act clarified the rights of these
organizations to purchase easements.

"A full discussion of these guidelines can be found in
Virginia Outdoors Foundation: Encouraging the Preservation of Open
Space, (1991?).

80Va. Code, Section 10.1-1009, (1988).

The Act requires that organizations involved in the purchase
of easements be tax exempt and formed primarily for the purpose of
retaining or protecting natural or open space values of real
property, assuring the availability of real property for
agricultural, forestal, recreational, or open space use, protecting
natural resources, maintaining or enhancing air or water quality,
or preserving historic, architectural, or archaeological aspects
of property. As with other conservation legislation, easements
have to be in conformance with the local comprehensive plan at the,
time the easement is granted.

Tax Considerations

There can be federal, state, and local tax advantages for
individuals that sell, give, or otherwise transfer all or a portion
of their ownership rights in land that contains wetlands. A
complete discussion of these tax laws is beyond the scope of this
report. However, localities interested in preserving wetlands
through acquisition need to be aware of the types of tax advantages
currently available.

Federal and state laws permit tax deductions for the donation
of gifts of property. Deductions are also allowed for the donation
of easements that are given in perpetuity. The granting of an
easement may also reduce any gift taxes due on property given to
another individual.

The donation of an open space easement results in a potential 16
lowering of federal estate taxes and Virginia inheritance taxes.
This is due to the reduction in the value of the property caused
by the loss of development value foregone by the donation of a
conservation easement.

The donation of an easement can also impact the real estate
taxes due on property. A land owner's assessment for real estate
taxes is based on the fair market value of the land, measured by
the potential highest sale price. The granting of an easement can
eliminate some of the development potential of a piece of property,
thereby lowering or stabilizing the real estate taxes due.

These tax advantages can prove to be a major incentive to
individuals who desire to preserve areas such as wetlands, but wish
to retain ownership. On the negative side, these programs can
cause local governments to forgo some tax revenues."

"Virginia's Heritage: A Property Owner's Guide to LZesource
Protection. Department of Conservation and Historic Resources,
(1988), pp. 24 - 25. This booklet covers a wide range of issues
that individuals interested in preserving resources may find
helpful.

LAND VALUE ASSESSMENT

In addition to the tax advantages discussed above, localities
are authorized to offer individuals real estate tax incentives for
taking action to preserve land for open space, forestal, and
agricultural purposes. These incentives can have positive impacts
on efforts to preserve and protect areas such as wetlands. The
laws which authorize these incentives are the Virginia Land Use
Assessment Law and the Agricultural and/or Forestal Act.

Special Land Use Assessment

Section 58.1-3229, et seq., of the Code establishes the
Virginia Land Use Assessment Law. The legislation states that the
preservation of real estate for agricultural, horticultural,
forest and open space use is a matter vital to the Commonwealth.
Furthe@more, it is in the public interest to:

1. encourage the preservation and proper use of real estate
to assure a readily available source of agricultural,
horticultural and forest products, and open spaces within
reach of population concentrations,

2. conserve natural resources in forms that will prevent
erosion,

3. protect adequate and safe water supplies,

4. preserve scenic natural beauties and open spaces,

5. promote proper land use planning and the orderly
development of real estate for the accommodation of an
expanding population, and

6. promote a balanced economy and ease pressures which force
the conversion of real estate to more intensive uses.

To accomplish the above, the legislation provides for the
classification, special assessment, and taxation of such property
in a manner that promotes its preservation. Localities that have
adopted a land use plan may adopt an ordinance to provide for the
use value assessment and taxation of land covered by this
legislation. This, in effect, allows land to be assessed and taxed
at its use value, as opposed to the development value of the
property. This can.have a significant impact on the taxes paid on
some property.

The legislation contains minimum acreage requirements for
property to qualify for land use assessment. Real estate devoted
to forest uses must be a minimum of 20 acres. Agricultural,
horticultural, and open space lands must be a minimum of 5 acres.
Localities may, by ordinance, reduce the minimum acreage

requirement for open space land to two acres under certain
conditions. These conditions include land that is adjacent to a
scenic river, a scenic highway, a Virginia Byway, or public
property in the Virginia Outdoors Plan.

The legislation also contains use requirements for property
to qualify. For example, to qualify for open space assessment,
land must be provided or preserved for:

1. park or recreational purposes,

2. conservation of land or other natural resources,

3. floodways,
4. historic or scenic purposes, or r
5. assisting in the shaping of the character, direction, and
timing of community development.

The land must be used in a manner consistent with the local
land use plan. In addition, the land must be in an agricultural
or forestal district, subject to a perpetual easement held by a
public body, or subject to a recorded commitment (such as an
easement) entered into by the landowner with the local government.
This commitment must state that the landowner will not change the
use of the property to a nonqualifying use for at least four years
but not more than ten years.

The Commissioner of Agriculture and Consumer Services, the
State Forester, and the Director of the Department of Conservation
and Recreation are charged with developing standards which amplify
the general standards set out in the legislation. These standards
are set forth in the Supplement to the Manual of the State Land
Evaluation Advisory Council: Standards for Classification.

The supplement defines the term "land" as it relates to open
space use to include water, submerged land, wetlands, marshes, and
similar properties. Furthermore, the supplement states that the
term "conservation of land or other natural resources" includes
lands that are provided or preserved for forest preserves, bird or
wildlife sanctuaries, watershed preserves, nature preservest
arboretums, marshes, swamps,, and similar natural areas.
Floodplains include lands that are provided or preserved for tidal
and nontidal wetlands, such as swamps, bogs, and marshes. A model
Open Space Use Agreement is also provided. 12

82 SuMlement to 'the Manual of the State Land Evaluation
Advisory Council: Standards for Classification, (Richmond,
Virginia: State Land Evaluation Council, 1989), pp. 3 - 5.

When property that has been subject to use assessment is
rezoned to permit nonqualifying uses or the use is changed,
additional taxes are due. This is called a roll-back tax which is
equal to the sum of the deferred tax (the difference between the
levied tax and the tax on fair market value) for the last five
years plus simple interest.

Agricultural and/or Forestal Districts

Another program that can provide an incentive to preserve land
in its existing state is the Agricultural and Forestal District
Act. The stated purposes of the Act are to conserve and protect
agricultural and forestal lands for the production of agricultural
and forestal products and to conserve and preserve these lands "as
valued natural and ecological resources which provide essential
open space for clean air sheds, watershed protection, wildlife
habitat, as well as aesthetic purposes. ,83 This program is similar
to the special assessment legislation, but is specifically aimed
at the protection of agricultural and forestal lands.

The Act permits local governments to enact ordinances which
allow the formation of agricultural and/or forestal districts. This
is a voluntary program, that is, agricultural and forestal
districts are formed by petition of one or more property owner(s) .
Upon receipt of the first appl:ication for a district, the local
government must establish an advisory committee to advise the
planning commission and the governing board and assist in creating,
reviewing, modifying, continuing, and terminating districts. Each
district must contain at least 200 acres in one or more contiguous
parcels, although the district can be located in more than one
locality.

When creating or adding to existing districts, localities are
to consider the agricultural and forestal significance of the land
within or adjacent to the proposed district. In addition,
localities are to consider:

1. land development patterns,

2. the comprehensive plan, and if applicable, the zoning
ordinance,

3. the environmental benefits of retaining the land in the
district for agricultural and forestal uses, and

4. any other matter which may be relevant .84

eVa. Code, Section 15.1-1507, (1990).

8Va. Code, Section 15.1-1511(C), (1990).

Any districts formed must be reviewed after no less than four
but no more than ten years. In conducting this review, the
governing board shall ask for a recommendation from the advisory
committee and the planning commission. The district can then be
continued, modified, or terminated.

Property that is in a district can be withdrawn by the
property owner at any time. Property withdrawn from a district is
subject to roll-back taxes I as discussed under special use
assessments.

The advantages of this Act to the property owner are similar
to those of the Special Land Use Assessment Law. In addition, land
in these districts is exempt from local ordinances that
unreasonably restrict or regulate farm structures or farming or
forestry practices. Furthermore, local ordinances, comprehensive
plans, and land use decisions affecting adjacent property are
required to consider the existence of these districts and the
purpose of the Act.85

THE TAKINGS ISSUE
The most controversial legal question surrounding wetlands F
regulations is the question of whether the regulations constitute
a taking. That is, do the regulations that limit land use activity
within or near wetlands constitute a taking of the property owner's
development rights and therefore require the property owner to be
compensated? While a discussion of all legal points involved in
this issue is beyond the scope of this report, there are several
comments that can be made.

The takings issue involves the Fifth Amendment of the United
States Constitution which prohibits the taking of private property
foIr public use without just compengation." The takings clause was
.first established to address the physical seizure of land by the
government. Later, the takings clause was broadened to apply to
the impact of regulations on land.

Court interpretations of the takings issue have varied, being
heavily determined by the facts involved in each individual case.
Recent federal cases that have addressed the issue of takings
include:

"There is also a Local Agricultural and Forestal Districts
Act, Va. Code, Section 15.1-1513.1, (1991). This act applies to
localities with the urban county form of government and certain
adjacent counties.

86Liebesman, p. 10-1.

United States v. Riverside Bayyiew Homes, 106 S. Ct. 455, 16
ELR20086 (1985),

Keystone Bituminous Coal Association v. DeBenedictus, 107 S.
Ct. 1232, 17 ELR20440 (1987),

First Enc7lish Evangelical Lutheran Church of Glendale v.
County of Los Angeles 107 S. Ct. 3141, 17 ELR20787 (1987), and

Nollan v. California Coastal Commission, 107 S. Ct. 3141, 17
ELR20918 (1987).

On March 18, 1988, President Reagan issued Executive Order
12630, entitled "Government Actions and Interference with
Constitutionally Protected Property Rights". This action was taken
in light of the Nollan and First English cases cited above. It was
stated at the time that the purpose of this Executive Order was to
ensure that the constitutionally guaranteed right to private
property was protected and to protect the federal government from
unnecessary takings liabilities."

The U. S. Attorney General I s Of f ice has issued guidelines which
require federal agencies such as the Corps and EPA to consider the
implications of an action by that agency on the economic viability
of a property where a permit has been requested. A Takings
Implication Assessment (TIA) must be performed for any Section 404
permit that is denied. The full implication of this executive
order on federal wetlands regulations is not clear at this time.8'

Several bills have been submitted in Congress that deal with
wetlands regulations and private property rights. Therefore, one
must assume that this issue will continue to be debated on the
federal level.

There are some guidelines that local governments should keep
in mind when considering local wetland regulations and the takings
issue. These guidelines are as follows:

1. "Regulations adopted for a valid public purpose and
with an adequate basis in fact may substantially
reduce land values without effecting a taking.

.2. The impact of regulations must be evaluated for an
entire piece of property (not just one portion) to
determine whether a taking has occurred.

117 Want, p. 10-14.

"Ibid., p. 10-4.

3. Public safety and the prevention of nuisances are
paramount concerns of government, and no landowner
has an intrinsic right to threaten public safety or
cause nuisances.

4. Regulations will result in a taking only if they
deny "all use" or all "economic use" of an entire
property, including reasonable "investment -backed
expectations". Even then, regulations may be valid
under certain circumstances.1189

With this said, local governments are advised to seek legal
counsel when considering any land use regulations. This is
especially true in the volatile area of wetlands regulations.

"Burke, Meyers, Tiner, and Groman, p. 28.

CONCLUSION

The introduction stated that any report on wetlands will be
out of date as soon as it is published. True to form, several
changes have occurred regarding wetlands since this report was
begun. Even nowl the federal government is considering several
pieces of legislation which may change wetlands policies. With
this said, several conclusions can be drawn regarding wetlands.

1. Wetlands are not the waste lands they were once
considered. While all wetlands are not created equally,
wetlands do provide a variety of benefits.

2. Proposed legislation not withstanding, the federal
government has and will continue to regulate certain
aspects of development in wetlands. This role may
change, as might the definition of a wetland, but it is
doubtful that this role will disappear.

3. The Commonwealth will continue to be involved in wetlands
regulations. Recent initiatives addressing the
Chesapeake Bay and continuing discussions of nontidal
wetlands legislation appear to bear out this thinking.

4. The role that local governments play in wetlands
protection will continue to grow. This is evidenced by
recent changes in local planning and zoning authority
regarding environmentally sensitive areas.

5. Local governments have a variety of tools at their
disposal to protect wetlands while still allowing
necessary development to occur. These tools include the
comprehensive plan and development ordinances.

6. Land acquisition and special land use assessment
techniques can also be part of a local wetlands
protection program. A variety of state and private
agencies are available to assist local governments with
land acquisition.

7. Governments which institute wetlands protection measures
have to recognize the potential impacts these actions
have on private property rights. The Constitutional
issue of takings is and will continue to be an important
issue at federal, state,,and local levels.

one purpose of this report is to demonstrate that wetlands
protection need not be thought of separately from other planning
activities. A variety of tools have been discussed. Hopefully,
the information presented herein will lead to more discussion and,
more importantly, action regarding wetlands protection.

APPENDIX

FINDINGS AND RECOMMENDATIONS
OF THE
VIRGINIA NONTIDAL WETLANDS ROUNDTABLE

The Virginia Nontidal Wetlands Roundtable pursued its study
of issues related to management of the Commonwealth's nontidal
wetlands resources as directed by the 1989 Virginia General
Assembly. The study was conducted within the framework established
by the 1987 Chesapeake Bay Agreement, the Living Resources
Commitments which followed from the Agreement, and the 1988
Chesapeake Bay Wetlands Policy. Roundtable members concluded the
while effective management of nontidal wetlands should be of
immediate and continuing concern to the Commonwealth, creation of
a new regulatory program for the resource may be premature at this
time. The Roundtable believes that the state should immediately
take steps to: enhance, coordinate and assess existing programs;
institute continuing educational, research and incentive based
preservation programs; and develop a current inventory of the
resource. Once these efforts have been undertakenf the
Commonwealth will be better able to determine both the need and
appropriate design for any new regulatory program. In developing
this general conclusion, the Roundtable's deliberations led its
members to make the following specific recommendations for action.

RECOMMENDATIONS

1. The Virginia General Assembly should enhance the funding
and staffing provided to the State Water Control Broad
for its Section 401 water quality certification
responsibilities related to nontidal wetlands.

2. Virginia should decertify the U.S.. Army Corps of
Engineers Nationwide Permit No. 26 and any other
nationwide permit which the State Water Control Board
deems to impair protection of Virginia water quality.

3. The Department of Agriculture and the Division of Soil
and Water Conservation of the Department of Conservation
and Recreation should utilize, to the extent practical,
the Department of Forestry model of nonregulatory
interaction with its constituency, emphasizing education,
voluntary compliance, peer review and monitoring to help
minimize adverse effects on nontidal wetlands resulting
from agricultural practices.

4. A comprehensive assessment of existing state programs
should be undertaken with the goals of identifying how
each program affects nontidal wetlands, how the programs
overlap or interact with one another in nontidal
wetlands, where opportunities for effective coordination
among programs exist and where new or enhanced programs
are needed.

5. All state programs affecting nontidal wetlands should
incorporate recognition of Commonwealth policy for
management of nontidal wetlands which seeks a short term
goal of no net loss in acreage and function and a longer
term goal of net resource gain in wetland acreage and
function over present conditions.

6. State programs affecting nontidal wetlands should define
wetlands as: Those areas that are inundated or saturated
by surface 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.

7. The federal procedures for delineation of wetlands should
be included by reference in any state regulatory program.

8. All state programs or activities affecting nontidal
wetlands should incorporate goals to avoid impacts on
nontidal wetlands whenever possible, to minimize impacts
when they cannot be avoided, and to seek full
compensation for any impacts which occur.

9. Virginia should encourage and support research on the
structure and function of nontidal wetlands with the goal
of full elucidation of their functions.

10. The Commonwealth should make an immediate and continuing
commitment to education of legislators, local government
officials, and citizens on the scientific, legal, and
political aspects of nontidal wetland management.

11. Virginia should make a commitment to the establishment
and maintenance of a current inventory of the
Commonwealth's nontidal wetland resources.

12. The Commonwealth should pursue implementation of as many
types of incentives to preserve nontidal wetlands as
possible.

13. Virginia should not pursue assumption of the federal
Section 404 regulatory program at the present time.

BIBLIOGRAPHY

1987 Chesapeake Bay Agreement. 1987.

Burke, David, Erik J. Meyers, Ralph W. Tiner, Jr., and Hazel
Groman. Protecting Nontidal Wetlands. Planning Advisory
Service Report No. 412/413. Chicago: American Planning
Association, 1988.

Chesapeake Bay Wetlands Policy. Annapolis, Md.: Chesapeake
Executive Council, 1988.

Conserving Our Wetland Resources: Avenues for Citizen
Participation. Chesapeake Bay Foundation, 1987.

Federal Manual for Identifying and Delineating Jurisdictional
Wetlands. A cooperative technical publication of the U.S.
Army Corps of Engineers, U. S. Environmental Protection Agency,
U.S. Fish and Wildlife Service, and U.SiD.A. Soil
Conservation Service. Washington, D.C.: Federal Interagency
Committee for Wetland Delineation, 1989.

Kusler, Jon A. Our National Wetland Heritage: A Protection
Guidebook. Washington, D.C.: Environmental Law Institute,
1983.

Liebesmanl Lawrence R. A Developer's Guide to Federal Wetlands
Regulations. Washington, D.C.: National Association of Home
Builders of the United States, 1990.

Report of the Virginia Department of Conservation and Historic
Resources, Division of Soil and Water Conservation:
Implementation Effectiveness of the Virginia Erosion and
Sediment Control Program. House Document No. 54. Richmond,
Va.: Commonwealth of Virginia, 1990.

Report of the Vircrinia Nontidal Wetlands Roundtable to the Governor
and the General Assembly of Virginia. House Document No. 54.
Richmond, Va.: Commonwealth of Virginia, 1990.

Salvesen, David. Wetlands: Mitigating and Regulating Development
Impacts. Washington, D.C.: Urban Land Institute, 1990.

Sather, J.H. and R.D. Smith. An Overview of Malor Wetlands
Functions and Values. U.S. Fish and Wildlife Service, 1984.

Supplement to the Manual of the State Land Evaluation Advisory
Council: Standards for Classification. Richmond, Va.: State
Land Evaluation Advisory Council, 1989.

Tiner, Ralph W., Jr. Mid-Atlantic Wetlands: A Disaippearing
Natural Treasure. U.S. Fish and Wildlife Service, 1987.

Tiner, Ralph,W., Jr. Wetlands of the United States: Current
Status and Recent Trends. U.S. Fish and Wildlife Service,
1984.

The Value of Wetlands: A Guide for Citizens. Chesapeake, Va.:
Southeastern Virginia Planning District Commission, 1988.

Virginia Outdoors Foundation: Encouraging the Preservation of Open
Space. Richmond, Va.: Virginia Outdoors Foundation, 1991?.

Virginia's Heritage: A Property Owner's Guide to Resource
Protection. Richmond, Va.: Department of Conservation and
Historic Resources, 1988.

Walker, W.R. and S.C. Richardson. "The Federal Wetlands Manual:
Swamped by Controversy." Special Report No. 24. Blacksburg,
Va.: Virginia Water Resources Research Center, VPI & SU,
1991.

Want, William. Law of Wetlands Regulations. New York: Clark
Boardman Company, Ltd., 1991.

Wetlands Guidelines. Department of Wetlands Ecology, Virginia
.Institute of Marine Science, College of William and Mary and
Environmental Affairs Division, Virginia marine Resources
commission, n.d.

"Wetlands Mitigation-Compensation Policy." VR 450-01-0051.
Virginia Marine Resources Commission, 1989.

Wetlands Protection: A Handbook for Local Officials.
Environmental Planning Information Series Report # 7.
Harrisburg, Pa.: Pennsylvania Department of Environmental
Resources, 1990.

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