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.

At the State Water Control Board's June 25, 2024 meeting the Board unanimously voted to deny the petitioner's request for rulemaking.  The Board's decision was based on the following:

Regarding request Number 1 in the petition, this request is not of a nature for action by the Board pursuant to §2.2-4007 of the Code of Virginia and the Public Participation Guidelines (9VAC25-11-60) as it does not relate to establishing or amending a regulation.  This request is best addressed through guidance and technical assistance as provided by DEQ.

Regarding request Number 2 in the petition, this request is not of a nature for action by the Board pursuant to §2.2-4007 of the Code of Virginia and the Public Participation Guidelines (9VAC25-11-60) as it does not relate to establishing or amending a regulation.  This request is best addressed through guidance and technical assistance as provided by DEQ.

Regarding request Number 3 in the petition, this request is of a nature for consideration by the Board. However, the requested amended definition of nontidal wetlands in 9VAC25-830-40 would create an improper, inconsistent, and unnecessary revision to the definition.   

The proposed definition would be inconsistent with definition of wetlands under State Water Control Law.  Virginia Code provides a specific narrative definition of wetlands that is consistent with the definition provided for in the Bay Act Regulations. 

Additionally, the proposed definition would be inconsistent with the mirroring narrative definition of nontidal wetlands under VWPP Regulations. Ensuring continuity between these definitions is essential given the interplay of these programs, particularly as the Bay Act Regulations and program defer to the VWPP requirements, including the technical framework and guidance, for a wetland delineation.  Thus, any proper consideration of a revision to definition of nontidal wetlands should not occur within the Bay Act regulations. 

The U.S. Supreme Court’s Sackett v. Environmental Protection Agency decision did not involve or change Virginia law and even under the Clean Water Act did not change the definition of wetlands. In its post-Sackett rulemaking, EPA did not change the definition of wetlands.  Indeed, the definition has remained unchanged since the original promulgation in 1986. Thus, Sackett does not compel a regulatory amendment or change the way wetlands are delineated within the Commonwealth including under the Bay Act Regulations. 

Also, while practically the proposed definition in the petition does include technical considerations for delineating wetlands, such language would create potentially an inappropriate narrowing of the definition of wetlands and such definition includes language and references that are best identified in guidance and technical manuals.  The ’87 Manual and accompanying Regional Supplements do provide additional technical guidance for delineation and should be utilized in making such delineation but are not a proper source for determining the legal definition of a nontidal wetland.