Or more specifically “non-tidal wetlands” because there are regulatory prohibitions on “tidal wetlands” as a result of the shellfish regulations (9VAC25-370-20) and Chesapeake Bay Preservation Act provisions.
There are currently three governmental authorities with jurisdiction over wetlands – the Corps of Engineers, the Virginia Department of Environmental Quality and local municipalities. The Health Department proposes to become the fourth.In the proposed regulation, VDH proposes the following:
1.Create a definition of wetlands that exceeds the statutory definition in the DEQ code (62.1-44.3).
2.Transfer the permitting authority of onsite systems that disperse effluent to a wetland to DEQ (Proposed Rule 12VAC5-613-30.J).
3.Prohibit any drainfield from a wetland (12VAC5-613-90.E).
Practically speaking, the Corps and DEQ have rules and guidance as to what is a wetland, how one identifies wetlands and what permits are available for the disturbance of any wetland. Wetlands are fairly complex ecosystems, but there are three basic tests, which must all be satisfied to classify as a wetland:
·There must be vegetation that grows in a wetland environment
·There must be hydric soils present
·There must be a wetland hydrology – more than 14 days of flooding, ponding and/or a water table 12 inches or less below the soil surface during the growing season in most years.
In general, any site with relatively flat topography, poor drainage and seasonal groundwater level within 12” of the surface may be a non-tidal wetland. I have been sites dominated by loblolly pine, wax myrtle and poison ivy and been told it’s a non-tidal wetland. In addition, there is a little known “Atypical Situation” discussed in the 1987 Wetlands Manual that could retro-actively result in a wetlands designation. Where artificial drainage is used (such as farm land) or vegetation has been altered (such as a timbered tract), the Corps may invoke the “Atypical” rule and deem a site a wetland, even without all three components.
The municipal rule is one that is focused more on tidal wetlands and involves the protection of vegetated and non-vegetated wetlands contiguous to tidal waters extended landward to a specified elevation (typically elevation 3.5’ above mean sea level). The municipalities also have jurisdiction to protect buffers contiguous to tidal waters, and perennial streams under the Chesapeake Bay Act that requires a 100’ buffer adjacent to protected waters and any contiguous wetland.
So we have Federal, State and Local jurisdiction with some overlap. Now VDH wants to create their authority. One has to ask, is the current jurisdictional environment so lax that we need another authority? Does this newly created jurisdiction mean that sites with shallow groundwater (12 inches or less from the ground surface) will be prohibited from permitting and thus unbuildable? Are the social and economic costs of such a prohibition worthy of such draconian rules?
The social costs could be dramatic. For instance, there are large tracts of land in the Coastal Plain that are non-tidal wetlands. A review of Mathews County (85.7 square miles, 54,848 acres) indicates that about 70% of the land area is non-tidal wetlands. A prohibition on wetland drainfields would mean that people like Phyllis Robinson, who inherited a one-acre parcel from her father, would not be able to construct a modest dwelling even though the Corps of Engineers has agreed to issue her a Nationwide Permit 29 that allows her to disturb up to 0.5 acres of non-tidal wetlands. Or Ms. Rosalie Walters, who lived with a privy for 30 years, could not have a permitted engineered system that allowed her to install indoor plumbing two years ago. Or Ms. Erlene Foster, who received assistance through Bay Aging to install an onsite system and now has indoor plumbing. There are thousands of individuals who would be adversely effect by such a prohibition.
The economic costs could be enormous. A typical $200,000 home generates sales tax on about $100,000 of materials and income tax on $100,000 of labor. Combined that’s about $10,750 tax income (exclusive of permitting fees). Engineered systems account for about 1,000 permits each year – that’s $10.8 million in tax revenue to the State. It seems counter productive to reduce tax revenue to the State at time when we are struggling immensely. The adverse affect of this prohibition would be staggering to the Coastal Plain home construction industry.
And then there’s the legal risk to the State by landowners claiming inverse condemnation of their property – which is:
the taking of property by a government agency which so greatly damages the use of a parcel of real property that it is the equivalent of condemnation of the entire property. A claim of inverse condemnation can arise from a “regulatory taking.” In such cases, a government regulation is claimed to amount to a taking or damaging of property, such as overly restrictive zoning regulations, denial of building or demolition permits, and burdensome conditions placed on development
The potential risk to the State by such a draconian prohibition is astronomical.
And so we have to ask – is the potential cost and risk offset by a balance in protection of human health and the environment? As discussed in the former section on Horizontal Setbacks, it was demonstrated that engineered systems are actually more protective of the environment than any current system permitted pursuant to the regulations. In addition, these engineered systems are more protective of human health because they typically include disinfection and many include redundant treatment.
Engineered systems undergo more scrutiny than an AOSE designed system. In most cases, engineered systems are reviewed by a VDH staff engineer prior to permitting. VDH engineers have a tremendous input into the design discussion. AOSE’s do not have a comparable review.
With respect to environmental and health protections we can also look at the definition of pollution. As defined in the Code of Virginia, 62.1-44.3:
"Pollution" means such alteration of the physical, chemical, or biological properties of any state waters as will or is likely to create a nuisance or render such waters
(a)harmful or detrimental or injurious to the public health, safety, or welfare or to the health of animals, fish, or aquatic life;
(b)unsuitable with reasonable treatment for use as present or possible future sources of public water supply; or
(c)unsuitable for recreational, commercial, industrial, agricultural, or other reasonable uses….
In simplistic terms, this definition means doing harm to surface or groundwater in such manner that it renders the water unsuitable for an intended use or unsuitable as a public water supply with reasonable treatment.
In almost every instance of a drainfield in a non-tidal wetland we are dealing with the uppermost groundwater condition – typically a perched seasonal groundwater condition or a relatively shallow condition within the upper 5 feet of the surface. There is no public or private use for this uppermost groundwater – some of which is only present seasonally. A review of the private water well regulations (12VAC5-630) finds that a shallow drinking water well (Type IIIC) must be cased and grouted a minimum of 20 feet in almost all instances – and, in very few instances no less than 10 feet. Deep wells (Type IIIA and IIIB) wells are cased 100 ft and 50 ft deep and grouted to a depth of 20 ft and 50 ft, respectively. All public water supply wells are governed by VDH’s Waterworks Regulations (12VAC5-590) and in the Coastal Plain, are typically several hundred feet deep into the Middle Potomac Aquifer.
There is little evidence to suggest that a shallow placed engineered onsite sewage system has any impact to properly constructed water wells. However, if any well would be impacted it would be a Class IIIC shallow well. A simple solution would be to install an Ultraviolet Disinfection Device to the water supply. The cost of such a device is less than $1,000 installed.
Surely a $1000 UV treatment on the water supply offsets the need for any outright regulatory prohibition and enormous social and economic costs that follow.
