Virginia offers wetland permit guidance following Supreme Court’s Sackett ruling

Virginia’s Department of Environmental Quality released a memo last month detailing how it will approach reviews of applications for permits involving wetlands following a recent U.S. Supreme Court ruling that sharply limits the number of wetlands subject to federal protection.

Last month, the U.S. Supreme Court ruled that wetlands must have a surface connection to a larger navigable body of water, rather than only an underground connection, in order to be federally protected.

Virginia officials and environmental groups say the state already has strong laws on the books that provide broad protection of both tidal and non-tidal, or inland, wetlands. But the Supreme Court ruling in Sackett v. U.S. Environmental Protection Agency reduced federal involvement in reviewing protections and shifted more responsibility to states.

The biggest change Virginia will face is in handling jurisdictional determinations, or identifications of water body boundaries through a process known as delineation that is used to determine whether the government has oversight of a particular water. 

Previously, DEQ relied on the U.S. Army Corps of Engineers to make those determinations. That relationship was already in flux: In May, the Corps requested that all new applications for permits come with completed determinations, citing workload issues, and it paused determinations as the EPA sought a change to a rule defining what federal waters are. The Sackett ruling has exacerbated that situation, with the Corps unlikely to resume determinations until the new rule is finalized in light of the decision.

Amid uncertainty among developers on who will conduct the determinations and in anticipation of an increased workload to process applications with the loss of their federal partners, DEQ released the June 29 memo detailing its review process under the new interpretation of the law.

“At this time, the Department of Environmental Quality (DEQ) does not know how the U.S. Army Corps of Engineers (Corps) and U.S. Environmental Protection Agency (EPA) will implement the Sackett decision in permitting and delineation boundary decisions,” the memo states. “We anticipate that there may be new federal guidance, checklists, field procedures, regulations and other information made public in the future.”

The memo says the agency will “strive” to review permit applications for projects that already have delineations within 30 days. Under DEQ’s new process, all delineations must be conducted by professional wetland delineators certified by the Department of Professional and Occupational Regulation. 

A footnote to the memo notes there are an estimated 118 professional wetlands delineators in Virginia, with over 100 in the private sector. 

DEQ will still accept applications with delineations identified by non-certified professional delinations, but the agency says it “cannot provide a time frame on how long that review will take.”

DEQ’s request for all delineations to be performed by certified professionals is a way for “projects to move forward in a timely manner,” a news release from the agency states.

“Balanced economic development and environmental protection are integrally linked,” said DEQ Director Michael Rolband in a statement. “We are doing everything possible to ensure that the Sackett decision does not harm Virginia’s growing economy or environment.”

Andrew Clark, vice president of government affairs for the Home Builders Association of Virginia, said that the Corps’ freeze on issuing approved jurisdictional determinations could extend into next year and have a “chilling effect” on development. 

“Jurisdictional determinations provide clarity on the legal and regulatory requirements applicable to a project and allow developers to identify site constraints that may impact community design, site planning, infrastructure placement, unit types, and density,” Clark said in an email. DEQ’s approach, he said, “will minimize permitting delays and regulatory uncertainty.”

One avenue of uncertainty for wetlands protections is how the delineations will be made going forward.

Virginia state code requires delineations to follow guidance laid out in a 1987 manual from the U.S. Army Corps of Engineers. But even though Sackett has reduced the scope of the Corps’ oversight of wetlands, Jonathan Gendzier, a staff attorney at the Southern Environmental Law Center, said he hasn’t “heard of any” changes planned to the manual. 

The new review process outlined by DEQ is “applaudable,” said Chris French, a member of the Protect Hanover group that has been fighting for wetlands protections during the development of a Wegmans distribution facility outside Richmond, but the 30-day window may be a tight opportunity for a thorough review. Delineation decisions can be complicated and frequently require field verification, explained French.

The process is “pretty comprehensive,” French said. “For a large site like Wegmans, one company spent weeks on it. [DEQ] is trying to meet a need with the resources they have. You don’t want to have delays. You don’t want to have impacts to wetlands either. You have to ensure they’re complementary.” 

Environmental groups like nonprofit Wetlands Watch say staffing levels at DEQ will also need to remain high to keep Virginia’s wetland protections intact. 

“Virginia doesn’t want to go back,” said Wetlands Watch Executive Director Mary-Carson Stiff. 

Peggy Sanner, Virginia executive director for the Chesapeake Bay Foundation, said DEQ has developed a “thoughtful process to help address the need for wetlands protection and permitting efficiency,” but added, “It is imperative that Virginia continues to safeguard wetlands that are no longer federally protected.”  

Martha Moore, vice president of government relations for the Virginia Farm Bureau, said Virginia’s guidance “is consistent with the [Sackett] ruling as it referred to the states to regulate, which Virginia already did.”

“DEQ, like a number of state agencies, has a lot of vacancies so I would assume this would [be] like any other regulatory program they administer that they have to utilize the resources they have,” Moore said. “I think the issue is finding people as opposed to not filling positions. They would need qualified people to help implement the regulatory requirements of all of their programs.”

This article was updated to correct the characterization of the size of the Wegmans project as large, not small.