On March 26, 2026, the Department of Environmental Quality received James Alexander’s and Evans Oakerson’s petition to the State Water Control Board for rulemaking.  The petitioners assert that after the U.S. Supreme Court’s decision in Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023), regulatory amendments are necessary to address significant gaps in existing regulations regarding discharges into dry ditch or intermittent streams from wastewater facilities discharging 1,000 gallons or more each day. The petitioners included proposed changes to the Virginia Pollutant Discharge System (VPDES) Permit Regulation with the petition for rulemaking.

A copy of the full petition is available from the point of contact for this petition.

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 the rulemaking.

At the June 23, 2026, meeting of the State Water Control Board, staff presented the Board with information on the petition and a summary of the comments received during the public comment period.  The State Water Control Board voted to not initiate a rulemaking in response to the petition.  The rational for denying the petition is as follows:

The petitioners assert that the U.S. Supreme Court’s 2023 ruling in Sackett v. Environmental Protection Agency (598 U.S. 651 (2023) (Sackett)) compromises Virginia’s ability to regulate discharges to intermittent streams and dry ditches under the Clean Water Act because such waters are no longer considered "waters of the United States.” According to the petitioners, this means that DEQ can no longer rely on the provisions of the Clean Water Act or the U.S Environmental Protection Agency (EPA) to grant permits or enforce sewage discharge limitations in these settings. Based on existing authority under the State Water Control Law and Virginia Pollutant Discharge Elimination System (VPDES) Permit Regulation (9VAC25-31), DEQ disagrees with the need for the Board to adopt new regulations or a general permit to regulate discharges to intermittent streams and dry ditches following Sackett.

Sackett does not amend the National Pollutant Discharge Elimination System (NPDES) regulations themselves, but for NPDES programs administered by EPA, the Court’s definition of "waters of the United States” may be applied in a way that narrows federal jurisdiction over wetlands and non-permanent streams and reduces the universe of waterbodies that would necessitate a point source discharger to obtain a NPDES permit. How the decision affects state-administered NPDES programs depends on the nature of the state program. For those states that have adopted requirements that are consistent with federal NPDES program requirements, the application of the Sackett ruling has a similar effect: the universe of waterbodies that would necessitate a point source discharger to obtain a NPDES permit is more limited. However, for those states administering the NPDES program and who have adopted more stringent requirements, such as in Virginia, where the program applies to "state waters” – all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands (Va. Code 62.1-44.3)– the state’s NPDES program is not affected.

While Sackett may have implications at the federal level and for some states, it does not limit Virginia, the Board, or DEQ authority in the regulation of point source discharges to state waters, including intermittent streams and dry ditches. The State Water Control Law and the authorities of the Board and DEQ remain unaffected by the change in definition of "waters of the United States.”  Thus, Sackett does not create a gap in DEQ’s authority, under the VPDES Permit Regulation as it currently exists, to issue individual permits to point source discharges to state waters, including intermittent streams and dry ditches.

DEQ, through the issuance of a VPDES individual permit, already addresses the other revisions to the VPDES Permit Regulation the petitioners requested:

• Addition of language stating that effluent leaving a system is sited in a manner that protects public health and minimizes environmental impacts: Individual permits are drafted in a manner that is protective of receiving streams by evaluating stream flows relative to discharge.
• Incorporation of Reliability Class requirements from the Sewage Collection and Treatment (SCAT) Regulations (9VAC25-790): VPDES individual permits for municipal wastewater treatment incorporate Reliability Class requirements outlined in the SCAT Regulations.
• Establishment of requirements for discharges to dry ditches and intermittent streams: Individual permits are drafted in a manner that is protective of the receiving stream by evaluating stream flows relative to discharge.

Additionally, the promulgation of a general permit regulation for point source discharges to dry ditches or intermittent streams for wastewater facilities discharging 1,000 gallons per day (gpd) or more would prohibit DEQ from establishing the necessary site-specific limitations, monitoring, and conditions that DEQ currently establishes through the issuance of individual permits for discharges of the same nature.