April 29, 2024

Mr. Justin Williams

Virginia Department of Environmental Quality

1111 East Main Street, Suite 1400

P.O. Box 1105

Richmond, VA 23218

Via email: Justin.Williams@deq.virginia.gov

Re: “Petition for Establishment of a Regulation or Policy Interpreting the Definition of a Nontidal Wetland Under 9VAC25-830-40, 9VAC25-830-80, and Fairfax County Ordinance 118-6-1(q)”

Dear Mr. Williams:

Potomac Conservancy (PC) respectfully submits the following comments regarding the March 11, 2024 Petition to the State Water Control Board (the Board) for Establishment of a Regulation or Policy Interpreting the Definition of Nontidal Wetlands Under 9VAC25-830-40, 9VAC25-830-80, and Fairfax County Ordinance 118-6-1(q) (the Petition) to the Department of Environmental Quality’s (DEQ) regarding the Chesapeake Bay Preservation Act (CBPA).

Founded in 1993, Potomac Conservancy is the region’s leading clean water advocate, fighting to ensure the Potomac River boasts clean drinking water, healthy lands, and vibrant communities. Potomac Conservancy hopes to make the Potomac region a place where clean water, outdoor experiences, and thriving ecosystems are accessible to and safe for everyone.

Empowering localities to protect their most sensitive lands from development impacts is important to protecting water quality and reducing nutrient and sediment runoff to the Potomac River and the Chesapeake Bay. The Chesapeake Bay Preservation Act (“CBPA”) is a key program toward these shared goals because it empowers localities to designate and protect areas that are important to ensuring water quality protection – including a range of nontidal wetlands, whether with or without a surface water connection. To support localities in determining which nontidal wetlands warrant protection, DEQ provides localities with clear guidance and significant resources on how to evaluate wetlands for protection. 

The Petition seeks to limit this local government discretion and should be denied. In particular, the Supreme Court’s decision in Sackett v. EPA does not warrant the Petition’s proposed changes to how Virginia defines nontidal wetlands in the CPBA. The Sackett case only addressed federal jurisdiction to regulate wetlands: it does not impact how wetlands are defined or protected under Virginia state law.

Sackett also does not limit a locality’s ability to protect sensitive land from development encroachment under the CBPA. The CBPA program is operating as intended, with cooperation among Virginia’s state and local governments. No regulatory changes are warranted, so the Board should deny the Petition.

Further, the specific exception request in Fairfax County that led to the Petition remains pending and the Board should not insert itself into this local decision. The CBPA provides local governments with the authority and the obligation to protect sensitive lands. 

Because the Petition misinterprets the relationship of the Supreme Court’s decision in Sackett v. EPA to Virginia’s CBPA program and seeks to undermine localities’ authority to protect sensitive land, it should be denied.

Thank you for your consideration and the opportunity to offer these comments. Potomac Conservancy looks forward to continuing to support protection of Virginia’s natural resources and helping create a healthy, vibrant Potomac River and Chesapeake Bay.

Sincerely,

Anna Mudd

Senior Director of Policy