On March 11, 2024, the Department of Environmental Quality received David W. Schnare’s petition to the State Water Control Board (Board). The petitioner requested the Board establish by policy or rule a position on:

(1) whether an Exception Review Committee established under the Chesapeake Bay Preservation Act must only recognize a Resource Protection Area buffer measured from a nontidal wetland in which the geographic extents of the nontidal wetland was determined independent of federal jurisdictional determinations made under the Federal Clean Water Act, or studies intended to support such jurisdictional determinations, and addresses all elements identified in 9VAC25-830-40 and relevant local ordinances; and

(2) whether an applicant for an exception under Fairfax County Ordinance § 118-6-1 can rely on the AGCP Manual methodologies in order to determine the existence of a nontidal wetland as defined under 33 CFR 328.3 Fairfax County Ordinance § 118-1-6(q), to wit, the presence or absence of a prevalence of vegetation typically adapted for life in saturated soil conditions under normal circumstances.

(3) and requested the Board amend Virginia Administrative Code 9VAC25-830-40, to read:

"Nontidal wetlands" means those wetlands lands other than tidal wetlands whose

hydrophytic vegetation indicators, hydric soil indicators and wetland hydrology indicators reveal the subject land is a wetland as described in the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Eastern Mountains and Piedmont Region (ERDC/EL TR-12-9) or the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Atlantic and Gulf Coastal Plain Region (ERDC/EL TR-10-20) or later versions thereof. that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, as defined by the U.S. Environmental Protection Agency pursuant to § 404 of the federal Clean Water Act in 33 CFR 328.3b.

A 21-day public comment period is being announced in the Virginia Register of Regulations. Upon completion of the public comment period, the State Water Control Board will consider the petition at a future meeting and decide whether or not to move forward with initiating a rulemaking.