SD9 - The Assessment of State and Federal Programs That Affect Nontidal Wetlands

  • Published: 1993
  • Author: Council on Environment
  • Enabling Authority: Chapter 22 (Regular Session, 1990)

Executive Summary:
The General Assembly directed the Council on the Environment to assess state and federal programs that affect nontidal wetlands, and to report its findings and recommendations to the Governor and General Assembly. In conducting this study, the Council looked at the policies, laws and regulations of existing programs and their implementation and effects, the functions and values of nontidal wetlands, and the many different types of land-based activities that affect nontidal wetlands.

The protection of nontidal wetlands in Virginia is primarily guided by the federal Clean Water Act, 404 Wetlands Permitting Program. This program is currently surrounded by uncertainty due to the continual changes in federal policies, regulatory standards and wetlands delineation procedures. This uncertainty has led to permit delays and other impacts on land development, and to the loss of nontidal wetlands. Consequently, both developmental and environmental interests in Virginia would benefit from a consistent sate program that can guide, and provide stability to, the regulation of nontidal wetlands in Virginia.

Section 401 of the federal Clean Water Act grants states the authority to certify Federal 404 Wetlands Permits for their consistency with state water quality standards and relevant laws. The Water Control Board has adopted regulations for reviewing and certifying federal nontidal wetlands permits using 401 authority. By using 401 authority to conserve the values of nontidal wetlands, the state will build upon, and better coordinate, existing federal and state programs. State program efficiency will be achieved by using the current implementation procedures of the 404 Joint Permitting Process. As a result of recent developments in the federal Wetlands Programs, Management authority under 404 and 401 now addresses the majority of land-based activities that can adversely affect nontidal wetlands. A state 401 program at the Water Control Board provides the best base upon which to build and improve a sound state program for conserving the values of nontidal wetlands.

Current state authority for a 401 program at the Water Control Board focuses on water quality. Federal agencies broadly interpret states' authority to protect the functional values of nontidal wetlands under 401, and a recent Virginia Attorney General's opinion states that these functional values can be fully considered when modifying or placing conditions on 401 permits. If Virginia wants to pursue a more comprehensive nontidal wetlands program, additional legislative direction should be given to the state 401 program to conserve the full range of nontidal wetlands values, including flood storage capacity, aquatic food chin support, erosion control, instream flow maintenance and fish and wildlife habitat.

Protecting the functional values of nontidal wetlands requires that those values be clearly identified for each nontidal wetland site. Any nontidal wetland program will be more efficient and effective if based on a consistent and predictable system for evaluating sit-specific wetland values. The Commonwealth needs a system for classifying, ranking and mapping nontidal wetlands based on the best available information of their functional values. Such a system can reflect the importance of nontidal wetlands to the water quality and flood storage needs of specific watersheds and can incorporate new information on functional values as nontidal wetlands research continues.

Other recommendations within the report would enhance a state nontidal wetlands program. They primarily pertain to the wide range of land-based activities that affect nontidal wetlands. For agriculture, the approval, by Soil and Water Conservation Districts, of Soil and Water Quality Conservation Plans for farmers should be contingent upon compliance with Virginia's nontidal wetlands protection program. For silviculture, the Department of Forestry should expand its efforts at education, promotion and monitoring of Forestry Best Management Practices for wetlands. For sand and gravel mining, permit conditions should employ opportunities for nontidal wetlands reclamation. For transportation planning, the secondary impacts of growth and development on nontidal wetlands should be considered in evaluating corridors and alternatives.