The James River Association (JRA) submits the following comments in regards to the Petition to the State Water Control Board for Establishment of a Regulation or Policy Interpreting the Definition of Nontidal Wetland Under 9VAC25-830-40, 9VAC25-830-80, and Fairfax County Ordinance 118-6-1(q) (the Petition) to the Department of Environmental Quality regarding the Chesapeake Bay Preservation Act on March 11, 2024.

The James River Association (JRA) is a member-supported nonprofit organization founded in 1976 to serve as a guardian and voice for the James River. Throughout the James River’s 10,000-square mile watershed, JRA works toward its vision of a fully healthy James River supporting thriving communities. In this capacity, JRA is extremely concerned regarding the nature of this petition and many of the assumptions which underpin it. We write to you seeking a denial of the petition given the significant misinterpretations present in the document.

Of note, the allowance of localities to shield their most sensitive lands from development impacts is of the highest importance for maintaining water quality and reducing nutrient and sediment runoff into the Chesapeake Bay. Every two years, JRA conducts a data-based analysis of the health of the James River, and in 2023, JRA found that the James (one of the Bay’s most significant entities) is suffering from high levels of sedimentation. Maintaining the powers granted to these local governments under the CBPA is necessary to allow for the responsible and prudent development of lands. Because of this petition’s erroneous misunderstanding of the Supreme Court’s ruling in Sackett v. EPA, approval of the petition would strip localities of this crucial conservation tool.

Currently, JRA observes the CBPA operating as it was intended to, and thus no regulatory change of the significance sought in this petition is needed. The CBPA, whose foundation is coordination between state and local entities, is a model of conservation, and provides Virginia with some of the most robust instruments in wetlands management in the entire country. Furthermore, as the specific matter outlined in the petition is still in process, it would be inappropriate at this time for the State Water Control Board to thrust themselves into said matter.  

It is our position that the ruling set forth by the Supreme Court in Sackett v. EPA does not merit the regulatory framework shift which is proposed in the petition. Primarily, the ruling in Sackett v. EPA does not grant the powers sought by the petitioner as that specific case deals with regulatory authority under the Clean Water Act of the federal government, not locality conservation of sensitive lands.

For many years, DEQ has been working with localities to implement CBPA regulations including determinations of Resource Protection Areas and the furnishment of guidance regarding the protection of wetlands. We find the presence of this coordination between DEQ and localities to be more than sufficient.

In conclusion, the James River Association strongly urges the Board to deny this petition. It seeks to utilize unrelated case law in order to weaken Virginia’s wetlands protections and strip localities of the powers already afforded to them under the law. This would establish a dangerous precedent and would remove Virginia of her leadership role on the national stage regarding environmental quality and management.