[From the U.S. Government Printing Office, www.gpo.gov]



































                                                                                                                                41


                                     Virginia                                           Wetlands,:.

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                                  VIRGIN IA WETLANDS:


                        A PLANNING AND REGULATORY PERSPECTIVE

















                The Preparation of this document was financed in part
               through funds provided by the Coastal Zone Management Act
               of 1972, as amended, administered by the Office of Ocean
                  and Coastal Resources Management, National Oceanic
                            and Atmospheric Administration
                                    NA 88AA-D-CZ091












                                     Prepared By
                    Richmond Regional Planning District Commission Staff

                                    December 1991
     QQ














                                    TABLE OF CONTENTS


                                                                            Page


           EXECUTIVE SUMMARY   ..........................................      i


           INTRODUCTION  ...............................   ................    1


           DEFINING THE RESOURCE    ......................................     3


                Defining Wetlands   ............                               3
                Virginia's Wetlands   ..........                               7
                Virginia's Wetland Losses    .............................     9
                Reasons for Wetland Losses    ............................   11


           WETLANDS FUNCTIONS AND VALUES    ..............................   13


                Environmental Values   ..................................    13
                Socio-Economic Values    ..................................  16
                Fish and Wildlife.Habitat Values     ......................  18
                Wetlands Hazards    ......................................   19


           PROTECTING THE RESOURCE   .....................................   23


                Federal Wetlands Law   ..................................    23
                Virginia Wetlands Law    .................................   31

           LOCAL MEANS OF WETLANDS PROTECTION                                39

                Comprehensive Planning    ................................   39
                Land Development Ordinances    ...........................   46
                Wetlands Acquisition   ..................................    58
                Land Value Assessment    .................................   63
                The Takings Issue    ......................................  66
           CONCLUSION   .................................................    69


           APPENDIX                                .... ** ...               71


           BIBLIOGRAPHY   ...............................................    73













                                    LIST OF ILLUSTRATIONS





                                           A. TABLES


            Table                                                               Pacie

              1.             Federal Wetlands Activities    ..................   24

              2.             Tidal Wetlands Communities by Group     ..........  35



                                           B. FIGURES

            Figure,                                                             Paq e

              1.             Schematic of Wetlands Types     .................     6

              2.             Current Status of Wetlands in Virginia      ......    8

              3.             Causes of Coastal Wetland Losses      ............  10


              4.             Causes of Inland Vegetated Wetland Losses       ... 10

              5.             Relative Productivity of Wetland Ecosystems .       14

              6.             Simplified Food Pathways     ....................   14

              7.             Wetland Values and Hazards     ..................   21

              8.             Typical Corps Permit Review Process      .........  28

              9.             Wetlands Permit Re view Process    ..............   55














                                  ACKNOWLEDGEMENTS

               A document such as this cannot be prepared without the
          assistance of a variety of individuals and organizations. While
          each person cannot be thanked individually, the Richmond Regional
          Planning District Commission would like to acknowledge the many
          organizations which helped in the preparation of this document.

          Chesapeake Bay Foundation

          Council on the Environment

          Department of Conservation and Recreation
               Division of Planning and Recreation Resources
               Division of soil and Water Conservation
                    Bureau of Flood Protection


          Environmental Law Institute

          Hampton Roads Planning District Commission

          RADCO Planning District Commission

          State Water Control Board


          U.S. Fish and Wildlife Service

          U.S. Corps of Engineers, Norfolk office

          Virginia Institute of Marine Sciences

          Virginia Outdoors Foundation

          Virginia Marine Resources Commission

          Virginia Water Resources Research Center, VPI & SU

          The counties of Charles City, Chesterfield, Goochland, Hanover,
          Henrico, New Kent and Powhatan, the City of Richmond, and the Town
          of Ashland.














                                     EXECUTIVE SUMMARY



           INTRODUCTION


                Wetlands are no longer thought of as merely waste lands.
           Today more is known about the valuable contributions that wetlands
           make to the environment.

                This increased understanding has lead to increased federal and
           state efforts to protect wetlands. One purpose of this report is
           to discuss wetland definitions and functions and federal and state
           wetland protection measures.      Another is to examine what local
           governments can do to protect and preserve these natural areas.



           DEFINING THE RESOURCE


                Wetlands can be defined in several     ways.   Perhaps the most
           important for local governments is the     definition shared by the
           U.S. corps of Engineers (Corps) and the Environmental Protection
           Agency (EPA). This definition is important due to the role these
           agencies play in regulating certain types of activities in
           wetlands. These agencies define wetlands based on the presence of
           hydric (or wet) soils, hydrophytic plants (plants adapted to live
           in water-saturated conditions) and hydrology (water level) . While
           all three conditions are necessary to be considered jurisdictional
           wetlands, these conditions do not have to be present all of the
           time.

                The presence of federal jurisdictional wetlands is determined
           by an on-site delineation process.      The actual delineation of a
           wetland can be difficult and controversial. This is due in part
           to the difficulty in determing wetlands during dry seasons of the
           year as well as disagreement over the precise criteria for
           delineating or describing a wetland. The Corps and EPA, along with
           the Soil Conservation Service (SCS) and the Fish and Wildlife
           Service (FWS) , are currently reviewing a new manual to aid in
           delineation.


                Wetlands are also defined as tidal and nontidal.            Tidal
           wetlands, located in the coastal plain, are influenced by the
           tides. Nontidal wetlands, located in all portions of Virginia, are
           not influenced by tidal action.

                The differentiation between tidal and nontidal wetlands is
           important in Virginia. The Virginia Wetlands Act only regulates
           development in tidal wetlands.      Although the state and federal
           definitions differ, both cover essentially the same tidal wetlands.
           The federal definition also includes nontidal wetlands in Virginia.

                                             i









                According to one estimate, Virginia contains approximately
           1,045,000 acres of wetlands.          It is also estimated that
           approximately 63,000 acres of wetlands were lost between 1956 and
           1977. The principal cause of the loss of tidal wetlands was urban
           development.    Agriculture accounted for most of the losses of
           nontidal wetlands.



           WETLANDS FUNCTIONS  AND VALUES

                Wetlands provide a variety of benefits (or values).          These
           values fall into three basic categories:       environmental, socio-
           economic, and fish and wildlife habitat.

                An important environmental value is described by the term
           primary productivity; that is, the conversion by plants of energy             r
           and chemicals into compounds that can be utilized by other species
           as food. In addition, when wetlands plants die, they decompose to
           form detritus.    This is the base material for the aquatic food
           chain.    In fact, wetlands possess some of the highest food
           producing values of any natural system.

                Wetlands also play an important role in water quality
           protection.   Wetlands filter water as it passes through.         This
           filtering process reduces sediment flows into open water and
           removes nutrients and chemical and organic pollutants.        work is
           underway investigating the ability of wetlands to treat wastewater.

                socio-economic values  are also provided by wetlands. Wetlands
           assist with flood control by slowing and storing flood waters, thus
           reducing the impact of flood waters. Wetlands also protect upland
           areas from erosion.         Other socio-economic values include
           groundwater discharge and recharge, the production of timber,
           commercial and sport fishing, and the provision of recreational,
           scenic, historic, and archeological opportunities.

                Wetlands serve as fish and wildlife habitat.       They provide
           spawning and nursery grounds for a variety of fin and shell fish,
           birds, and other animals. Thirty five percent of all animals on
           the federal list of rare and endangered species depend heavily on
           wetlands for food or shelter.

                Wetlands can also create hazards if improperly used. These
           hazards include potential problems due to flooding and soil
           erosion, soils that are unstable for supporting buildings, and                 16
           problems with waste disposal.


           PROTECTING THE RESOURCE

                The federal government has taken a variety of actions which
           impact wetland use and development. One of the most significant









           is Section 404 of the Clean Water Act. Section 404, administered
           by the Corps, requires that a permit be issued for the discharge
           of dredged or fill material into the waters of the United States.
           Over time, the term "waters of the United States" has come to
           include tidal and nontidal wetland areas.

                A Section 404 individual permit is obtained by filing an
           application with the Corps. This request is reviewed by the EPA,
           the SCS, the FWS, and the National Marine Fisheries service (MFS).
           The EPA has the right to veto a permit if the discharge of dredged
           or fill material will have an unacceptable adverse affect on
           municipal water supplies, shellfish beds, or fishery, wildlife, or
           recreation areas. State and local agencies may also be involved
           in this review.

                Section 401 of the Clean Water Act grants states the authority
           to certify that activities requiring a federal 404 permit meet
           applicable state water quality standards. If the state denies the
           water quality certification, the federal permit can not be issued.
           In 1989, the General Assembly enacted legislation which requires
           that all activities needing a Section 401 certification follow the
           provisions of the Clean Water Act and protect instream beneficial
           uses.    The State Water Control Board (SWCB) issued, but then
           withdrew, regulations to implement this new permit process. In the
           meantime,   the SWCB is continuing to            issue Section 401
           certifications under existing regulations.

                In addition to individual permits, there are a series of
           nationwide permits (NWPs) which allow activities which are
           considered to have minor impacts on wetlands.               The most
           controversial of these permits is NWP 26 which allows certain
           specified fill activities in wetland areas up to 10 acres in size.
           Certain activities are exempt from Section 404 requirements. These
           include ongoing farming, silviculture, and ranching activities.

                The Commonwealth of Virginia has taken several steps to
           protect wetlands. As a signatory to the Chesapeake Bay Agreement,
           the Commonwealth is party to a multi-state policy to achieve a net
           gain in acreage of wetlands in the Chesapeake Bay basin.            The
           General Assembly has considered nontidal wetlands legislation
           several times. To date, no action has been taken.

                The Commonwealth has also adopted several laws which impact
           wetlands.    Two notable pieces of legislation are the Virginia
           Wetlands Act and the Chesapeake Bay Preservation Act. The Virginia
           Wetlands Act governs development in tidal areas. Any activity that
           affects tidal wetlands requires a permit from the Virginia Marine
           Resources Commission (VMRC). Activities that require both state
           and federal permits are handled through a joint permitting and
           public review process.









                The Chesapeake Bay Preservation Act requires that Tidewater
           localities establish Chesapeake Bay Preservation Areas to protect
           water quality.     Regulations implementing the Act require the
           designation of Resource Protection Areas (RPAs) and Resource
           Management Areas (RMAs) .     Development in RPAs is restricted to
           water dependent uses and redevelopment. RMAs provide further water
           quality protection through the use of required site design
           techniques that reduce the flow of pollutants entering the RPAs and
           local rivers and streams. Wetlands benefit from these reductions
           in pollutants and are to be considered when determining the
           locations of RPAs or RMAs.



           LOCAL XEANS OF WETLANDS PROTECTION

                Local governments have a variety of tools available to protect
           the natural environment, including wetlands. These tools include
           the   comprehensive    plan,   development   ordinances,    and    land
           acquisition and assessment programs.        While some believe that
           localities are limited in their ability to regulate development in
           wetlands areas due to the Dillon rule, others believe that local
           governments have a variety of powers that can be used to preserve
           and protect wetlands.

                The key to any local wetlands protection program is the
           incorporation of wetlands into the local comprehensive plan. To
           do this, the location and extent of wetlands must be determined.
           Localities can map this information or rely on existing sources
           such as the National Wetlands Inventory (NWI) maps or maps from the
           Virginia Institute of Marine Science.

                once wetlands have been mapped, a locality can proceed to
           develop goals, objectives, strategies, and polices for protecting
           wetlands, just at it would for other types of land uses or natural
           resources.     As with other issues? there must be internal
           consistency between the plan's goals and objectives and recommended
           development strategies and polices.

                The next step is to incorporate wetlands protection measures
           into local ordinances.         These ordinances include zoning,
           subdivision, site planning, flood plain, stormwater, erosion and
           sediment control, and landscaping ordinances. Coastal localities
           must, and other localities may, adopt ordinances to implement the
           Chesapeake Bay Preservation Act. In addition, Tidewater localities
           may create local wetlands boards to aid VMRC in the enforcement of
           the Virginia Wetlands Act.

                Another tool that localities may use to protect wetlands is
           acquisition.   The Virginia Open-Space Act permits localities to
           protect open space, including wetlands, through outright purchase
           or the purchase of an easement.       Full ownership guarantees the
           ability to use the property as a locality sees fit. The purchase

                                             iv









           of an easement may meet protection objectives at a reduced cost.
           Several state agencies and nonprofit organizations are involved in
           the purchase of land or open space.     These include the Virginia
           Outdoors Foundation, the Chesapeake Bay Foundation, and several
           state departments.

                Localities can also use land value assessment programs to
           protect wetlands.   Two such programs are the Virginia Land Use
           Assessment Law and the Agricultural and/or Forestal District Act.
           While each program has slightly different requirements, both are
           designed   to   assist   in   the   protection   of    agricultural,
           horticultural, forestal, and open space lands.      These programs
           allow for land to be assessed and taxed at use value as opposed to
           development value. This can reduce the owner's tax burden and aid
           in the preservation of these types of land.

                All levels of government must deal with the issue of takings.
           The implementation of any wetlands protection measure which limits
           the owner's use of the land has a potential for being challenged
           as a taking of the land, without just compensation.


           CONCLUSION

                Wetlands regulation  is here to stay. The federal and state
           governments are becoming more involved in wetlands protection.
           Local governments also have an important role to play in the
           preservation and protection of wetlands.
























                                            v













                                        INTRODUCTION

                 Historically, wetlands have been considered by many to be
           wasted space. They were either obstacles to be overcome or places
           to be ignored. Sometimes wetlands were considered fit only for the
           disposal of items no longer needed.

                 Times have changed. More information has come to light about
           the important functions that wetlands perform.         These functions
           include water purif ication, f lood control, sediment f iltratio n, and
          .the provision of-habitat for plants and animals. Wetlands also
           offer a variety of recreational opportunities.

                 This increase in understanding of wetland values and
           functions, coupled with concerns over wetlands losses, has led to
           stricter protection measures.       A variety of f ederal and state
           actions    have' been    taken   to protect wetlands        and    other
           environmentally sensitive areas from the effects of inappropriate
           development.

                 This increased awareness has been accompanied by a debate over
           exactly what areas should be classi       ,fied as wetlands and what
           actions should be taken to protect wetlands. There is also debate
           over the appropriate role of federal, state, and local governments
           in the area of wetland protection.

                 Some consider the wetlands issue to be a purely coastal
           matter.   While it is true that a significant portion of wetland
           areas are located in the Coastal Plain, wetlands are also found in
           the Piedmont and the Appalachian regions of the Commonwealth.
           Therefore it is important that individuals in all portions of
           Virginia become more familiar with the issues surrounding wetlands.

                 one purpose of this paper is to examine some of the issues
           that local officials and planners need to be aware of regarding
           wetlands.    These issues include how wetlands are defined, the
           benefits that wetlands provide, and federal and state laws and
           regulations governing development in and adjacent to wetlands.

                 A second purpose is to examine actions local governments can
           take to preserve and protect wetlands.              The role of the
           comprehensive plan in wetlands protection is discussed.             Also
           discussed are the tools available to local governments to implement
           a wetlands protection program.      These tools include development
           ordinances, wetland acquisition, and special land assessment
           programs.

                 The reader is cautioned that the entire wetland subject is
           very dynamic. Any paper on this topic is dated as soon as it is
           published.' Hopefully, this report will give local governments a
           basic understanding of the issues involved in the wetlands debate.














                                  DEFINING THE RESOURCE

                Historically, the definition of a wetland was primarily the
           concern of the scientific community.        Most people had little
           interest in wetland definitions or the criteria used to delineate
           wetland areas.    This situation has changed as the importance of
           wetlands has become better known and as federal and state agencies
           have taken a stronger role in regulating wetland development.

                The purpose of this section is to examine ways in which
           wetlands are defined and classified. This examination will focus
           on federal and state definitions which most directly impact local
           governments and land development. This section also examines the
           extent of wetland areas and losses in Virginia and the reasons for
           these losses.



           DEFINING WETLANDS


                "Conceptually, wetlands lie between well-drained upland and
           permanently flooded deep waters of lakes, rivers and coastal
           embankments"'    Some wetlands are fairly easy to determine,
           especially those located along the coasts of rivers and oceans.
           other wetlands, especially those that are not "wet" throughout the
           year, are more difficult to determine.

                Several federal agencies and the Commonwealth of Virginia have
           developed definitions for wetlands. These definitions, as well as
           ways to classify wetlands, are important to understanding federal
           and state wetlands law.


           Federal Wetlands Definitions

                Four federal agencies that have adopted separate wetlands
           definitions are the Environmental Protection Agency (EPA), the Army
           Corps of Engineers (Corps), the Soil Conservation Service (SCS),
           and the Fish and Wildlife Service (FWS) .     These definitions are
           used to determine what are called "jurisdictional wetlands"; that
           is, wetlands that fall under the authority of a federal agency
           responsible for permitting certain activities in wetlands.         For
           the most part, each definition was developed as part of a specific
           piece of federal legislation. These definitions are similar, but
           are not identical.




                'Ralph W. Tiner, Jr., Wetlands of the United States: Current
           Status and Recent Trends, U.S. Fish and Wildlife Service, (1984),
           p. 2.

                                             3









                The Corps and the EPA are the federal agencies that most land
           developers and local governments deal with regarding wetlands.
           These.agencies use the following definition for administering the
           Section 404 permit process (to be discussed later):

                Wetlands are 11 ... those areas that are inundated or saturated
                by surface or groundwater 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.     Wetlands generally include
                swamps, marshes, bogs and similar areas.  ,2

                While each federal agency has its own wetland definition,
           three elements are typically found in each.     These elements are
           the presence of hydric soils, hydrophytic plants, and hydrology
           typical of wetlands. Hydric soils are soils that are saturated,
           flooded, or ponded for a period of time long enough to produce
           anaerobic conditions, that is lacking oxygen. Anaerobic conditions
           create chemical changes in the soil that are recognizable from the
           soil's composition, color, and texture.     Hydrophytic plants are
           adapted for life in water-saturated conditions.      This condition
           does not have to be year-round, but must be present at least part
           of the growing season. Typical wetland hydrology is characterized
           by a water table that saturates or partially covers the top of the
           soil surface either constantly or periodically. The source of that
           water can be groundwater, surface water, or precipitation.        All
           three parameters - -hydric soils, hydrophytic plants, and hydrology-
           -must be present for an area to be considered a wetland.

                In addition to separate, although similar, definitions, each
           federal agency has developed methods of delineating wetlands or
           reviewing the delineation of others. In 1987, the Corps and EPA
           each adopted manuals for delineating wetlands. In 1989, the EPA,
           the Corps, the SCS, and the FWS adopted the Federal Manual for
           Identifying and Delineating Jurisdictional Wetlands. The purpose
           of this document was to provide "a single, consistent approach for
           identifying and delineating wetlands from a multi-agency federal
           perspective."' The manual set forth mandatory technical criteria
           for identifying wetlands.

                The publication of the joint federal wetlands manual has led
           to much debate. Some argue that the identification criteria in the


                2Federal Interagency Committee for Wetland Delineation,
           Federal Manual for Identifying and Delineating Jurisdictional
           Wetlands, a cooperative technical publication of the U.S. Army
           Corps of Engineers, U.S. Environmental Protection Agency, U.S. Fish
           and Wildlife Service, and U.S.D.A. Soil Conservation Service,
           (Washington, D.C., 1989), p. 2.

                3Ibid., p. 1.

                                            4








            1989 manual expanded what could be defined as wetlands. This was
            due in part to the procedures set out in the manual regarding
            identification of wetlands during dry periods. It was also argued
            that the manual did not take into account the diverse physical
            characteristics within the United States and that this severely
            limits the development potential for areas such as coastal
            Virginia.

                 On August 14, 1991, the Corps, EPA, SCS, and FWS published
            proposed revisions to the 1989 manual in the Federal Register.
            (This version is sometimes referred to as the 1991 manual.) These
            modifications were to address concerns raised about the 1989
            manual.

                 On August 17, 1991, the President signed the Energy and Water
            Development Appropriations Act of 1992. This Act contained wording
            which, in effect, prohibits the use of the 1989 manual by the
            Corps.  The Corps is now using a 1987 manual. * (This action did
            not impact the so-called 1991 manual, which is still under review.)

                 The debate over the wetlands delineation manual illustrates
            the complexity of the wetlands issue.     This debate is over more
            than how to delineate wetlands.     It also concerns the potential
            impact   of  wetland    preservation    on   economic    development,
            agriculture, and private property rights.

            Wetlands Classifications

                 Wetlands can be classified according to tidal influence.
            Tidal wetlands, also referred to as coastal wetlands, are located
            in coastal areas and are affected by the ebb and flow of the tides.
            Tidal wetlands are periodically flooded by salt or brackish waters;
            however, there are freshwater wetlands in the freshwater portions
            of some tidal rivers in Virginia. Coastal marshes are the dominant
            type of tidal wetland, but tidal wetlands also include nonvegetated
                                            4
            tidal flats and shrub wetlands.

                 Nontidal wetlands, also referred to as    inland wetlands, are
            not affected by ocean-driven tides.          Found throughout the
            Commonwealth, the three most common forms of nontidal wetlands are
            emergent wetlands (called marshes and wet meadows), shrub wetlands
            (including shrub swamps and bogs), and forested wetlands (largely
            wooded swamps and bottomland hardwood forests).5           Figure 1
            illustrates typical tidal and nontidal wetlands.


                 4Ralph W. Tiner, Jr., Mid-Atlantic Wetlands: A Disappearing
            Natural Treasure, a cooperative publication of the U.S. Fish and
            Wildlife Service and the U.S. Environmental Protection Agency,
            (1987), pp. 2 - 3.

                 'Ibid.


                                             5





                                                                             Figure I




                                               SCHEMATIC OF WETLANDS TYPES









                                  NONTIDAL WETLANDS                                                                 TIDAL WETLANDS

               UPLAND
                A
                                 UPLAND                  UPLANIO



                                                                                     UPLAND






                                                                                                        UPPER           LOW MARSH                    STORM AND
      WATER TABLE---                                                                                  HIGH MARSH                                 EXTREME SPRING
                                            H WATER                HIGH WATER                                                                        HIGH TIDES...'
              GROUNDWATER       -------                            L15W WATER      f--------------                                               DAILY HIGH TIDE
               DISCHARGE   STREAM                                 - -           TER TABLE  MARSH-UPLAND              PANNE                        DAILY LOW TIDV-
                                                         WATER TABLE         WA              BORDER       POO   LOWER HIGH MARSH INTERTIDA
                                            RIVER                                                                                  FLAT            AQUATIC SED





                SEEPAGE WETLAND     0 ERFLOW    OVERFLOW          DEPRESSIONAL                          IRREGOLARLY         REGULARLY        ESTUARINE
                    ON SLOPE                  I WETLAND              WETLAND                              FLOODED            FLOODED        DEEP WATER
                                          DEEPWATER                                                        ZONE               ZONE
                                           HABITAT






           Source; The Value of Wetlands: A Guide for Citize n-Q,
                      SEVPDO, 1988.




                                                 mill     0111 1   1 1 1    1








            Virginia's Wetlands Definition

                 The distinction between tidal and nontidal wetlands is
            important.     Several states specifically regulate development
            activity in tidal wetlands only. Virginia is one of those states.

                 The Virginia Wetlands Act defines tidal wetlands as follows:

                 1.    Vegetated wetlands are "all that land lying between
                       and contiguous to mean low water and an elevation
                       above mean low water equal to the factor 1.5 times
                       the mean tide range ... upon which is growing" certain
                       plant species whichare detailed in the Act.

                 2.    Nonvegetated wetlands are defined as "all land lying
                       contiguous to mean low water and which land is
                       between mean low water and mean high water not
                       otherwise included in the term 'vegetated wetlands'
                       as defined."'

                 The def inition of wetlands in the Act dif f ers f rom the various
            federal definitions in two ways.      First, the Act does not cover
            nontidal wetlands. The federal definitions includes, but does not
            distinguish  between tidal and nontidal wetlands.

                 Second, the Act covers both vegetated and nonvegetated tidal
            wetlands.   Since vegetation is one of the three parameters for
            defining wetlands under the various federal programs, nonvegetated
            areas such as mudflats are not considered jurisdictional wetlands
            under Section 404. Mudflats are considered special aquatic sites
            under federal regulations, however, and are therefore defined as
            ."waters of the United States" and subject to Section 404
            requirements. The net result is that tidal areas covered by both
            the Virginia Wetlands Act and Section 404 are es   sentially the -same.


            VIRGINIA'S WETLANDS

                 A comprehensive field inventory of Virginia's wetlands has
            not been completed. A study by Tiner and Finn for the U.S. Fish
            and Wildlife Service attempted to estimate the wetlands areas in
            a five state region including Virginia. The following are some of
            the results reported in this study.

                 1.    Virginia contains approximately 1,045,000 acres of
                       wetlands, about 4 percent of the state's total area.





                 Va. Code, Section 62.1-13.2, (1991).

                                               7









                         2.      Approximately 23 percent of the wetlands in Virginia are
                                 tidal (237, 000 acres). The vast majority of wetlands in
                                 the state are nontidal (808,000 acres).

                         3.      The Coastal Plain area of Virginia contains all of the
                                 tidal wetlands and 64 percent-of the nontidal wetlands.

                         4.      The Piedmont region of Virginia contains 28 percent of
                                 the nontidal wetlands.

                         5.      The Appalachian region contains 8 percent of the nontidal
                                                                 7
                                 wetlands in Virginia           .

                Figure 2       illustrates the distribution of wetlands in Virginia.




                                                              Figure 2


                                 Current Status of Wetlands
                                                     in Virginia



                             Coastal Marshes                135.4


                          Tldal Flats/Beaches              1.5

                         Inland Emergent Wet.         63

                           Inland Shrub Wet.          63.9


                         Inland Forested Wet.                                                         625.8

                             Freshwater Ponds        5513


                                               0      100     200      300     400      500      600     700
                                                                  Thousand Acres (Estimates)
                         Source: Ralph W. Tiner,  Mid-AtIon1l
                         Wellondsm A Disannearincy Natural
                         Treasure, FWS, 1987,






                         'Tiner, (1987), p.          11.









                Work is now underway in Virginia to devel  op a comprehensive
           wetlands inventory.     The 1989 General Assembly assigned    i  the
           Department of Conservation and Recreation, Division of Soil and
           Water Conservation, with the responsibility of developing a
           nontidal wetlands inventory. This agency is using digital files
           of National Wetlands Inventory (NWI) maps to estimate nontidal
           wetlands within the state. The localities west of the fall line
           have recent NWI maps based on 1982-1985 aerial photography, while
           information for the localities east of the fall line is considered
           out-of-date and of poor accuracy. New NWI maps are being developed
           for the eastern portion of the state as funds for current
           photographs and re-photointerpretation become available.

                The Virginia Institute of Marine Science (VIMS) and EPA are
           also expected to provide estimatei of nontidal wetlands. Random
           sampling will be used to determine different nontidal wetland types
           in the state. Results are anticipated to be available in 1992.

                VIMS has inventoried tidal wetlands in Virginia.         These
           inventories include field investigation work and are considered
           quite accurate. These inventories do not go upstream as far as the
           NWI maps, however.



           VIRGINIA'S WETLAND LOSSES

                Tiner and Finn also estimated wetlands losses in Virginia.
           They estimated that between 1956 and 1977, over 63,000 acres of
           Virginia's wetlands were lost.    A majority of the wetlands lost
           were inland vegetated wetlands; the remainder were coastal
           wetlands.   During this same period, acreage in freshwater ponds
                                             8
           increased by almost 35,000 acres.

                As shown in Figure 3, the greatest single cause of the loss
           of tidal wetlands was urban development, accounting for 43 percent
           of the total loss.   Losses due to the natural rise in sea level
           accounted for 36% of the total.9

                Approximately 45 percent of the nontidal wetlands losses were
           due to agricultural activities. The second largest contributor to
           nontidal wetlands losses was classified as other development,
           mainly channelization projects.'o These and other reasons for the
           loss of nontidal wetlands are shown in Figure 4.




                8Ibid., p. 21.

                9Ibid.

                'oIbid.


                                            9






                                                          Figure 3


                                         Causes of Coastal
                                             Wetland Losses


                                                                  Urban 43%










                                                                               Ponds 5%


                                                                              Agriculture 5%
                              Coastal Waters 36

                                                                        Other Factors 11%



                           source: Ralph W. Tlner, bdid-AtlaniLc Wellan!@s: A
                                  Qlsonoegrtna Nalurgl Trengure. FWS, IQ87.'



                                                         Figure 4


                             Causes of Inland Vegetated
                                             Wetland Losses


                                                   Agriculture
                                                       45%







                                                                               Urban
                                                                                 3%



                                          Lakes
                                           18%

                                                                           Other Development
                                                                                   27%
                                                   Ponds
                                                    7%
                            Source: Ralph W. Ttner, Micl-Ailrintir, wetland, A
                                   Disarmearing Nglural Treasure. FWS, 1987.











           REASONS FOR WETLAND LOSSES

                Wetlands are lost for a variety of reasons. Dr. Jon A. Kusler
           points out that wetlands are lost due to such factors as the loss
           of physical habitat, chronic stress, construction projects, and
           pollution. Specifically, these losses are due to:

                1.   wetland drainage for crop production, timber production,
                     and mosquito control;

                2.   dredging and stream channelization         for reservoir
                     maintenance,    access   channels,   navigation     channel
                     maintenance, flood protection, and coastal housing
                     development;

                3.   dispersion of water inflows through irrigation and flood
                     control;

                4.   construction of dikes, dams, levees, and seawalls for
                     flood controll irrigation, and storm surge protection;

                5.   filling for solid waste disposal, roads, bridges,
                     commercial, residential and industrial development, and
                     utility lines;

                6.   discharges of matter into waters such as herbicides,
                     pesticides, and other pollutants from industrial plants,
                     agriculture, mosquito control efforts; nutrient loadings
                     from domestic sewage and agricultural runoff; and
                     sediments from dredging and filling, agriculture, and
                     land development;

                7.   surface water extraction and groundwater pumping for
                     municipal water supplies and irrigation; and

                8.   mining and disturbance of wetlands soils for sand and
                     gravel and coal, peat and other mining."

                Many of the above examples are the result of necessary
           activities. It must be understood, however, that these activities
           can have detrimental impacts on wetlands.       As we increase our
           understanding of how development can threaten wetlands, we must
           increase our ability to protect wetlands while allowing these
           necessary activities to occur.




                11 Jon A. Kusler-', Our National Wetland Heritage: A Protection
           Guidebook, (Washington, D.C.: Environmental Law Institute, 1983),
           P. 8.













                             WETLANDS FUNCTIONS AND VALUES


               Wetlands perform a variety of functions in the natural
          environment. Some of these functions, such as providing habitat
          for wildlife, can be obvious. other functions, such as improving
          water quality, are not as obvious. Furthermore, not all wetlands
          serve the same functions and, therefore, not all wetlands are
          considered to be of equal value.

               The collective values that wetlands perform in the environment
          can be divided into three basic categories: (1) environmental, (2)
          socio-economic, and (3) fish and wildlife habitat.     This section
          discusses these values.    The section also discusses the hazards
          that can be created when wetlands are misused.



          ENVIRONMENTAL VALUES


               Wetlands are an important component of the earth's ecosystem.
          They provide nutrients that support the most basic as well as
          advanced forms of life. Wetlands serve as the bridge between land
          and water. This places wetlands in an ideal location to influence
          water quality.

          Primary Productivity

               Primary productivity is the term that describes the conversion
          of solar energy and inorganic chemicals by plants into energy
          containing compounds that can be utilized by other species. The
          conversion is accomplished by most plant species through the
          process of photosynthesis. Primary productivity is the first link
          in the food chain.

               Wetlands serve an important role in the food chain. Through
          photosynthesis, wetland plants convert solar energy (sunlight) and
          inorganic nutrients (primarily nitrogen and phosphorus) into
          materials needed for plant development. Oxygen is produced as a
          by-product. These plants then serve as food for fish, birds, and
          mammals." Figure 5 compares the primary productivity of several
          types of wetlands with other selected food producers.

               Wetlands provide food in another form. When wetland plants
          die, they decompose and form what is know as detritus.          This
          material is the base of the aquatic food chain. Animals such as


               12 J.H. Sather and R.D. Smith, An Overview of Major Wetlands
          Functions and Values, U.S. Fish and Wildlife Service, (1984), p.
          21.


                                           13






                                                                                          Figure 5

                                                 Relative Productivity of Wetland Ecosystems


                         2500 -


                                                                                                                SALT
                                                                                                                MARSH




                         2000
                                                                                   TROPICAL      FRESHWATER
                                                                                   RAIN          WETLAND
                                                                                   FOREST




                         1500





                         1000 -                                     COLD                                                       WARM
                                                                    DECIDUOUS                                                  TEMPERATE
                                                                    FOREST                                                     MIXED
                                                                                                                               FOREST
                                                                                                                                             CULTIVATED          -.01A&.N
                                                                                                                                             LAND            GRAS SLAND
                           500 -                      BOREAL
                                                     FOREST



                                       DESERT

                                    NET PRIMARY PRODUCTIVITY OF SELECTED ECOSYSTEMS fg/M2/year]
                                    ADAPTED FROM LIETH (1975) AND TEAL AND TEAL (1969)

                        Source: Ralph W. Tiner, Wetlands of the United States:
                                        Current Status and Recent TCends, FWS, 1984,


                                                                                       Figure 6

                                                                Simplified Food Pathways





                                                   ESTUARINE
                                              WETLAND PLANTS                                         ESTUARINE WATERS


                                                                                                  ZOOPLANKTON              SHRIMP



                                                                                                                                 KILLIFISH
                                                             CLAMS                                                                                - "STRIPEDBASS
                                                             OYSTERS                       BLUE CRAB

                                                                         W
                                                                           ORMS                    e!7,WJNL'          MENHADEN                          BLUEFISH
                                                                                                                   FLOUNDER
                                                                                                              @SA  T
                                                                                                                  L
                                                                              tT.OPICAL                          AR@S.










                       @ource: Ralph W. Tiner, Wetlands of the United States;
                                       Current Status and Recent Trends, FWS, 1984..









           shrimp, snails, clams, worms   killifish, and mullet eat detritus
           or the bacteria and other life forms that grow on its surface.
           These animals are in turn eaten by larger species, such as
           commercial and recreational fishes. Some believe that this form
           of food production is the major food value provided by wetlands."
           Figure 6 illustrates a simplified wetland food chain.

           Water Quality

                Wetlands act as filters to the waters that pass through them.
           This filtering action reduces sediment flows into open water and
           removes nutrients and chemical and organic wastes.

                As flowing water passes through wetlands, the velocity of the
           flow is reduced.    This reduction in velocity causes suspended
           solids to fall to the bottom.    In addition, wetlands vegetation
           itself acts as a block to certain sediments."

                once these sediments have been deposited in the wetlands,
           various chemical and biological processes act on the sediments.
           Plants use nutrients such as phosphorus and nitrogen for growth and
           maintenance. Bacteria found in wetlands transform some nutrients
           into forms that can be more easily taken in by plants.         These
           processes help to prevent the overenrichment of open waters with
           nutrients.

                Wetlands have been studied for their potential to treat
           wastewater and for their ability to remove toxins and excess
           nutrients from natural waters. In some locations, wetlands have
           been utilized for the treatment of point source wastewater
           discharge. Nutrients are removed from wastewater as a result of
           the high degree of primary productivity; the settling of solids
           into the sediments as the wastewater slowly passes through the
           wetland; the anaerobic (oxygen deficient) conditions that are
           conducive to removing toxic metals and the breakdown of nitrogen
           compounds; and the high populations of decomposers (bacteria) that
           are particularly effective at breaking down organic compounds found
           in wastewater."




                13 David B. Burke, Erik J. Meyers, Ralph W. Tiner, Jr., and
           Hazel Groman, Protecting Nontidal Wetlands, Planning Advisory
           Service Report Number 412/413, (Chicago: American Planning
           Association, 1988), p. 8.

                14 Wetlands Protection:   A Handbook for Local Officials,
           Environmental Planning Information Series Report #7, (Harrisburg,
           Pa.: Department of Environmental Resources, 1990), p. 3.

                "Sather and Smith, pp. 11 - 12.

                                           15









                The removal of nutrients by wetlands varies and the levels of
           nitrogen and phosphorus in wetlands are determined by the form of
           the nutrient, the wetland type, and the season of the year.
           Wetlands function as "traps" of nutrients. To varying degrees they
           can remove nutrients from water.    Wetland efficiency varies with
           many factors including vegetative characteristics, geographic
           location, nature of substrate (the base upon which wetland plants
           are rooted), size, water chemistry, temperature, and pH.'6


           SOCIO-ECONOXIC VALUES

                our society benefits from the presence of wetlands in many
           tangible ways. Wetlands assist with flood and erosion control and
           provide a variety of natural products for our use.        They also
           provide a variety of recreational and scenic values.

           Flood Control


                Studies by the U.S. Army Corps of Engineers have shown that
           the most economical way to prevent flood damage is to protect and
           preserve the wetlands in the watershed.        Wetlands reduce the
           severity of floods through their ability to store and slow flood            F
           waters, reduce flood peaks, and increase the duration of the flow.
           A study in Wisconsin indicated that flood peaks were reduced by 60
           to 80% in watersheds which contain a wetland or lake area of 30
           percent, as compared to watersheds with no wetland or lake area."'

                Characteristics of wetlands considered most important in flood
           control are size, location in drainage basin, texture of substrate,
           and type of vegetation. The Wetlands Guidelines, prepared by the
           Virginia Institute of Marine Science (VIMS) and Virginia Marine
           Resources Commission (VMRC), contains descriptions of different
           wetland types and how their attributes help to mitigate flood
           damage.

           Erosion Control

                Wetlands lie between uplands and waterways.             Wetland
           vegetation plays a major role in protecting uplands from eroding
           by binding and - stabilizing the substrate, dissipating wave and
           current energy, and trapping sediments.       The ef f ectiveness of
           wetlands vegetation in this process depends on the type of
           vegetation, the width of the vegetation, the efficiency of the
           vegetative shoreline band in trapping sediments, the soil
           composition of the bank or shore, the height or slope of the bank
           or shore, and the elevation of the toe of the bank with respect to


                16 Ibid., p. 16.

                17 Ibid., p. 5.

                                            16








           mean storm high water.     Studies indicate that wetland shoreline
           widths as small as 2 feet can have a significant effect on erosion
           prevention. The greater the width of a wetland, the greater its
           ability to deter erosion."

           Groundwater Recharge and Discharge

                The precise role that wetlands play regarding groundwater is
           unclear. Wetlands serve as sources of groundwater discharge and
           are good indicators of the availability of potential water
           supplies.   Although wetlands are believed to impact groundwater
           recharge, less is known about this relationship."

           Natural Resources

                Wetlands are home to a variety of plant and animals resources.
           Most commercial and game fish depend on wetlands for food sources,
           spawning grounds, and nurseries. The U.S. Department of Commerce
           estimated that 66 to 90 percent of the commercially important fish
           and shellfish species on the Atlantic and Gulf coasts depend on
           coastal marshes or estuaries for at least part of their life
           cycle."

                Timber has been harvested in wetlands for many years.          The
           value of timber in southern wetland forests is estimated to amount
                          21
           to $8 billion.

           Recreational and Scenic Values

                Hunting and fishing are important recreational activities that
           take place in wetlands.     In the United States, an estimated 5.3
           million people hunt waterfowl annually.      12   In addition, $13.1
                                                                                 21
           billion was spent in 1975 to catch wetland-dependent fishes.
           Nearly all freshwater fishing, and more than half of saltwater
           fishing, is wetland dependent.

                Many more people enjoy wetlands for their scenic values.
           Hiking, boating, swimming, and photography are some of the
           activities that take place in wetlands. The popularity of the many


                "Ibid., pp. 6 - 7.

                "Ibid. , p. 6.

                20
                 Ibid.,  p. 44.

                2'Tiner, (1984), p. 23.

                "Ibid.,  p. 24.

                23 Ibid.


                                             17









           federal And state parks that contain wetlands is a testimony to
           the aesthetic value they possess.

           Historical and Archeological Values

                 Some wetlands, particularly those in Tidewater Virginia, offer
           special values; these are historical and archeological resources.
           Native American settlements have been found in close proximity to
           wetlands which offered fishing and hunting opportunities.           The
           first European colonists likewise settled in or near wetlands.
           This was due both to the availability of fish and game and to the
           transportation opportunities offered by the adjacent rivers."'


           FISH AND WILDLIFE HABITAT VALUES

                 Wetlands provide animals with protection from adverse weather
           conditions    and   predators,   resting    areas,   and   sites    for
           reproduction.    It is estimated that 35 percent of all animals
           listed by the federal government as being rare         and endangered
                                                                  21
           depend heavily on wetlands for food and/or shelter.

           Fish and Shellfish

                 Two-thirds of the major commercial fish caught in the U.S. use
           wetlands as spawning and nursery grounds. Wetlands are the primary
           nursery grounds for shellfish, including blue crabs, oysters, and
           clams.   Major factors influencing a wetland's habitat value for
           fisheries are water quality, water quantity, vegetative cover, and
                                            26
           characteristics of the bottom.


           Birds

                 many species of birds find year-round habitat in wetlands.
           Migratory birds inhabit wetlands temporarily, using them as feeding
           and breeding grounds, and as areas in which to overwinter. Wetland
           values that have been identified as attracting waterfowl and other
           birds include availability of cover, freedom from disturbance,
                                                                               27
           abundance of food, and the availability of specialized habitat.






                 2'Kusler, p. 5.

                 25 Ibid., p. 3.

                 2"Tiner, (1984), p. 13.

                 27 Sather and Smith, p. 47.











           Xammals


                Few mammals are truly wetland dependent, but there are some
           which utilize wetland resources through most or part of their life
           cycle.   Those mammals considered wetland dependent . in Virginia
           include muskrats, beavers, and certain species of rabbits. Mammals
           partially dependent are otter, raccoon, meadow mice, and white-
           tailed deer. Wetland values most important to these mammals are
           water quality, water depth, and emergent wetland plants.'a

           Other Vertebrates and Invertebrates

                Many, other vertebrates and invertebrates inhabit Virginia's
           wetlands including snakes, turtles, slugs, snails, as well as other
           reptiles and amphibians. There has been little research done on
           invertebrates that inhabit wetlands other than scientific listings
           and general descriptions.'9    There appears to be a link between
           plant types and the invertebrate species that utilize them.         As
           these plant types become more abundant so do the invertebrate
           species associated with them.



           WETLANDS HAZARDS


                Just as wetlands have environmental values and functions,
           they can create environmental hazards if used improperly.        These
           hazards include flooding, erosion, lack of soil suitability for
           development, and limitations to onsite wastewater disposal.
           Following is a discussion of some of these hazards as set forth in
           Our National Heritage:      A Protection Guidebook by Dr. ion A.
           Kusler."


           Flood Hazard

                As stated previously, certain wetlands store flood water
           during floods and slowly release it, lessening the impact on
           downstream areas. The filling of a wetland reduces its ability to
           retain excess water during flood periods.        This can result in
           increased flood heights and velocities and lead to flooding in
           areas not previously subjected to these problems.

                In addition, buildings in wetlands areas may be subject to
           flooding and drainage problems. This may be a continual problem
           or only occur when the water table rises during certain times of
           the year. A typical solution to such a problem is the construction


                28 Ibid., p. 45.

                29 Ibid., p. 43.

                "Kusler, pp. 6     8.

                                             19









           of drainage structures. Such structures can increase runoff from
           the site, decreasing groundwater recharge and creating flooding
           problems downstream.

           Erosion

                Wetlands protect uplands from erosion.     The development of
           wetlands, including the removal of vegetation, can increase erosion
           in upland areas.     This loss of soil can eventually threaten
           development in these upland areas.

           Lack of Soil Support

                Wetlands soils are high in organic and water content. These
           factors cause wetland soils to have very low and/or uneven load
           carrying abilities. These characteristics can lead to different
           settling of any structure built upon wetland soils. This can in
           turn lead to shifts and eventually cracks in foundations, walls,
           and roadways built in wetlands.

           Limitations to Onsite Waste Disposal

                Wetlands soils are very slow to absorb the effluent of septic
           tanks and other forms of onsite waste disposal. Construction of
           disposal systems in-wetland areas can lead to surface discharge of
           sewage with associated health hazards and odors. The high water
           table in wetland areas can also lead to the mixing of waste with
           groundwater, threatening any users of groundwater. Wetlands are
           poor sites for the construction of solid waste land fills for the
           very same reasons.





























                                           20




                                                                         Figure 7



                                                     Wetland Values                and Hazards


                                                                                     V@'                    HAZARDS
                VALUES


                                                                                                            Isolated Wetlands
                isolated Wetlands
                (Permanently high ground water                                                                 1 Flooding and drainage
                                                                                                                 problems for roads and
                levels due to discharge and
                drainage)
                                                                                                                 buildings due, in some
                                                                                                                 instances, to widely fluc
                 1 .Waterfowl feeding and                                                                        tuating surface and ground
                    nesting habitat                                                                              water elevations
                 2. Habitat for both upland and                                                                2. Serious limitations for on-
                                                                                                                 site waste disposal
                    wetland species of wildlife                                                                3. Limited structural bearing
                 3. Flood water retention area
                 4. Sediment and nutrient                                                                        capacity of soils for roads
                    retention area                                                                               and buildings due to high
                 5. Area of special sc -enic                       ISOLATED WETLANDS                             content of organic materials
                    beauty




                Lake Margin Wetlands                                                                        Lake Margin Wetlands
                 1 .See values for permanent                    LAKE MARGIN WETLANDS                           1. See hazards for isolated
                    wetiand above                                                                                wetland above
                 2. Removal of sediment and

                                                                                                Cott.
                    nutrients f rom inflowing                                                     11 W
                                                                                                  .41W
                    waters
                 3. Fish spawning area



                                                                                                            Riverine Wetlands
                Riverine Wetlands                                                                              1 .See hazards for isolated
                 1. See values for isolated
                                                                                                                 wetlands above
                    wetlands above
                 2. Sediment control,                                                                          2. Flood conveyance areas
                    stabilization of river banks                                                                 subject to deep inundation
                 3. Flood conveyance area                        RIVERINE WETLANDS                               and high velocity flows
                                                                                                               3. Sometimes erosion areas


                Estuarine and Coastal Wetlands                                                              Estuarine and Coastal Wetlands
                                                                                A,                             1 .See hazards for wetlands
                 1 .See values for isolated                                           .                          associated with rivers above
                    wetlands above                      40                  V, 1#                              2. Often severe flood hazard
                 2. Fish a,id shellfish habitat and     1                     6 rr                               due to tidal action, riverine
                    spawning areas                      to    q**     ESTUARINE AND                              flooding, storm surges, and
                 3. Nutrient source for marine          @t        COASTAL WETLANDS                    40         wave action
                    fisheries
                 4. Protection from erosion and                                                 011111110mm    3. Sometimes severe erosion
                                                                                                                 area in major flood due to
                    storm surges                                                                                 wave action

                                                                                                            Barrier Island
                Barrier Island                                                                                 1 .Often high energy wind and
                 1. Habitat for dune-associated                      BARRIER ISLAND                              wave zone
                    plant and animal species                                                                   2. Often severe erosion
                 2. Scenic beauty                                                                                problem
                                                                                                               3. Protect backlying lands
                                                                                                                 from high energy waves
                Source: Copyright 1983, Environmental                     Law Institute,
                             Reprinted with permission from Our National                       Wetland
                            Heritaae: A Protection Guidebook by Dr. Jon A, Kusler.














                                PROTECTING THE RESOURCE

                our increased understanding of the functions and values of
           wetlands has resulted in increased demands for the protection of
           wetlands.   Legislation has been passed at the federal and state
           levels to regulate development activities in and adjacent to
           wetlands.

                While federal and state agencies work together to coordinate
           wetlands protection activities, there is not one overall
           encompassing piece of legislation or program which deals with
           development in tidal and nontidal wetlands. The purpose of this
           section is to provide an overview of federal and state legislation
           and regulations aimed at protecting wetlands, either directly or
           indirectly.



           FEDERAL WETLANDS LAW


                Table 1 illustrates the variety of federal legislation and
           actions related to wetlands. . The principal federal legislation
           which protects wetlands and impacts land development in or adjacent
           to wetlands is the Federal Water Pollution Control Act of 1972, as
           amended, commonly referred to as the Clean Water Act (CWA).     The
           goal of the act was "to eliminate by 1985 the discharge of
           pollutants into navigable waters by prohibiting the discharge into
           such waters of toxic pollutants in toxic quantities.      ,31   The
           overall objective was "to restore the physical, biological, and
           chemical balance of the nation's waters. ,32

                The CWA contains a variety of sections which set forth     the
           roles of the EPA and the Corps regarding the protection of      the
           waters of the United States from pollution. There is one section
           of the CWA, however, that is most often discussed regarding the
           protection of wetlands--Section 404.     In fact, the phrase 11404
           requirements" is generally used to refer to the federal wetlands
           protection program in general, not just the specific requirements
           of that one section.








                3'Lawrence Liebesman, A Developer's Guide to Federal Wetlands
           Regulations, (Washington, D.C.: National Association of Home
           Builders of the United States, 1990), p. 1-2.

                32 Ibid.


                                           23











                                                                         Table 1


                                                              Federal Wetlands Activities


                  1899              The Rivers and Harbors Act gave the Corps power to regulate construction activities in
                                    navigable waters by issuing permits for those activities. This act authorized the Corps as the
                                    agency with permitting authority over construction in water.

                  1972              The Federal Water Pollution Control Act included Section 404, which authorized the Corps to
                                    issue permits for the discharge of dredge and fill materials into the waters of the United States.

                  1975              The Corps' regulations were changed to include a broader definition of waters over which they,
                                    had authority; wetlands were included.

                  1977              The Federal Water Pollution Control Act was amended and became known as the Clean Water
                                    Act. EPA and Corps regulations pursuant to that act included a regulatory definition for
                                    wetlands that continues to be used.

                  1979              The Fish and Wildlife Service (FWS) published a wetland definition and guidelines for
                                    identification used by some federal and state agencies (Classification of Wetlands and Deepwater
                                    Habitats of the United States).

                  1985              EPA and the Corps signed a memorandum of agreement spelling out the roles of the agencies
                                    and the procedures they would follow in issuing 404 permits.

                                    The Food Security Act (Farm Bill) of 1985 denied federal-assistance program participation to
                                    farmers who altered wetlands for agricultural purposes (swampbuster program). The Soil
                                    Conservation Service's (SCS) Food Security Act Manual included a wetland definition used for                      or
                                    identifying wetlands on agricultural lands.

                  1987              The Corps of Engineers Wetlands Delineation Manual was published, giving optional technical
                                    guidelines for district engineers' use in identifying and delineating wetlands under Section 404.

                  1989              The Corps, EPA, FWS, and SCS formally adopted the Federal Manual for identifying and
                                    Delineating Jurisdictional Wetlands, which provided mandatory technical criteria, field indicators,
                                    and determination methods for identifying wetlands under federal jurisdiction and tracing their
                                    upper boundaries.

                                    President Bush announced his administration's "no net loss" policy for wetlands.

                  1990              EPA and the Corps signed a memorandum of agreement clarifying environmental criteria to
                                    be used in evaluating compliance with Section 404 guidelines.

                  1991              July: EPA released revisions of the 1989 manual to Congress. Negotiations with the executive
                                    branch followed, resulting in further changes.

                                    August: Proposed changes to the 1989 manual were published in the Federal Register.

                                    August: Congress directed the Corps to resume using its 1987 manual to make permitting
                                    decisions in wetlands.


                  Source:           Adapted from The Federal Wetlands Manual: Swamped by Controvers , prepared by the
                                    Virginia Water Resources Research Center, V`P1 & SU.







                                                                                                                                                      ro










           Section 404 of the Clean Water Act

             The intent of Section 404 is to control pollution from point
           source discharges of dredged or fill material into the "waters of
           the United States".    This is done through a permitting process
           involving the Corps and the EPA.

                Activities Regulated. Basically, Section 404 requires a Corps
           issued permit for the discharge of dredged or fill material into
                                              33
           the "waters of the United States".     The type of permit required
           is related to the type of activity contemplated and the area of
           wetlands to be disturbed.

                Certain discharge activities are considered to have only
           minimal individual and cumulative environmental impacts.       These
           activities are covered under what are called general permits. In
           addition, some activities are exempt from the permitting
           requirements. General permits and exemptions are discussed later.
           Unless a discharge is covered by a general permit or is exempted,
           an individual permit is required. Requests for individual permits
           are reviewed on a case-by-case basis.

                The term "waters of the United States" is defined quite
           broadly in the regulations which implement Section 404.          For
           instance, the term includes waters that have been, are currently,
           or may be used for interstate or foreign commerce, including all
           tidal waters and all interstate waters including interstate
           wetlands.   The term also includes intrastate lakes, rivers, and
           streams which could affect interstate or foreign commerce. this
           can mean waters which are or could be used by travelers for
           recreational purposes, from which fish or shellfish could be taken
           or sold for interstate commerce or which are used or could be used
           for industrial purposes in interstate commerce. Also included are
                                                                    31
           wetlands adjacent to these previously described waters.

                Activities Not Regulated. As broad as the coverage of Section
           404 may appear to some, there are activities which are not covered.
           The Corps has ruled that the dredging of wetlands and the discharge
           of the material into wetlands is not covered by Section-404 since
           there is no discharge into the wetlands. Court cases on this issue
                                                        31
           have been decided for and against the corps.



                "William Want, Law of Wetlands Regulations, (New York: Clark
           Boardman Company, Ltd., 1991), p. 4-2.

                34 33 CFR Section 328. A detailed explanation of the evolution
           of the definition of the term "waters of the United States" can be
           found in Law of Wetlands Regulations by William Want.

                "Want, p..4-18.

                                           25









                The draining of wetlands has generally been excluded from the
           404 process. However, on April 10, 1990, the Corps issued guidance
           that if pumps were used to drain water in an attempt to circumvent
           the Section 404 permitting process, that activity would be subject
           to permitting requirements."

                Critics of Section 404 point out that many wetland altering
           and destroying activities are not covered under the permit process.
           In addition, many wetlands may not be covered under the program
           despite the broad interpretation of the language defining wetlands.

                Principal Administrative- Agency.     The U. S. Army Corps of
           Engineers is the principal administrative agency for Section 404.
           All dredge or fill activity requires a permit issued by the Corps.
           Prior to the CWA, the Corps issued permits for dredge and fill
           activities under the Rivers and Harbors Act of 1899 (RHA) .       The
           intent of the RHA was the protection of navigation in "navigable
           waters". The affect of the CWA was to expand that role to include
           water quality concerns in the "waters of the United States". The
           delegation of Section 404 responsibility to the Corps fits in well
           with their role under RHA.

                Review Authority. The Environmental Protection Agency (EPA)
           may review individual permit requests under provisions of Section
           404. In addition, EPA may veto or restrict a permit issued by the
           Corps when "the discharge of dredged or fill material into an
           aquatic area will have an unacceptable adverse effect on municipal
           water supplies, shellfish beds and fishery areas (including
           spawning and breeding areas) , wildlife, or recreational areas.""
           Section 404 also provides for U.S. Fish and Wildlife Service (FWS)
           and National Marine Fisheries Service (MFS) input on fish and
           wildlife impacts.

                The EPA has rarely used its veto authority, although some
           individuals believe the agency is becoming more willing to veto
           projects. To date, the courts have only reversed an EPA veto in
           one case. That was in James City County, Va. v. U.S. Environmental
           Protection Agency C.A. No. 89-156-NN (E.D. Va. 1990).38

                On November 15, 1989, a Memorandum of Agreement (MOA) was
           signed between the Corps and EPA which clarified to both agencies
           what type -and level of mitigation would be necessary to comply with
           Section 404 guidelines. The Agreement set forth that individuals
           seeking to fill wetlands would follow the sequential mitigation
           process of avoiding the wetlands entirely, minimizing adverse


                36 Ibid., p. 4-19.

                3'Liebesman, p. 4-1.

                38Want, p. 7-5.

                                            26








           environmental impacts, and lastly, compensating for      unavoidable
           wetlands loss. Through the Agreement, the Corps and EPA hope to
           achieve a goal of no net loss of wetlands within the 404 program."

                Under Section 404(c) the EPA may designate high-value wetland
           areas as off-limits to all or certain discharges of dredged and
           fill material prior to any proposed project or permit application.
           In recent years, the EPA has started to use its advance
           identification (ADID) program to protect wetlands areas that are
           experiencing development and conversion   pressures. 40

                State agencies such as the     Department of Game and Inland
           Fisheries and the Marine Resources Commission are invited to
           comment on proposed 404 permitting activities. Local authorities
           that are directly impacted by a permitted activity are allowed to
           submit comments to the Corps.

                Relationship to National Environmental Policy Act.        As a
           prerequisite to approval of a permit under Section 404, the Corps
           must comply with requirements of the National Environmental Policy
           Act (NEPA). The purpose of NEPA is to insure the consideration of
           the environmental consequences of proposed federal actions.

                Not all permitted activities require consideration under NEPA.
           The Corps has.promulgated regulations designed to determine what
           actions require consideration. In addition, the Corps is governed
           by regulations pertaining to NEPA promulgated by the Council on
           Environmental Quality (CEQ).

                The f irst step in the   NEPA process requires the Corps to
           prepare an Environmental Assessment (EA). The EA will determine
           if a proposed action would significantly affect the  quality of the
           'human environment. The EA evaluates the environmental effects of,
           the need for, and alternatives to, the proposed action.

                If the proposed action shows no significant effect, the Corps'
           District Engineer will prepare a Finding of No Significant Impact
           (FONSI). The FONSI contains the reasons for this conclusion. If
           the proposed action shows a significant effect, an Environmental
           Impact Statement (EIS) is required.

                Public Interest Review. The Corps has developed guidelines
           that it applies in the review of individual permit applications.
           The most important of these is the public interest review. This
           review involves a weighing of the expected benefits versus the
           foreseeable detriments of a project.



                39 Ibid., pp. 6-28 - 6-31.

                40 Liebesman, p. 7-1.

                                            27






                                                                            Figure 8


                                             Typical Corps Permit Review Process




                                                                            Public Notice issued


                  Applicant Submits               Application
                Engineer Form 4345                  Received.
                   to District Office           Acknowledged
                                                and Processed                        Public Notice
                                                                                                                    Normal 30 Day
                                                                                                                    comment period                         01

                                                                                                                    7C 0 r p -s
                                                                                                                    individuals
                                                                                                                 Special interest Groups
                               Applicant signs                                                                 Local Agencies
                                                                                                            State Agencies
                                 and returns                                                              Federal Agencies
                                   with fee                              Permit
                                                                          Issued                          Application reviewed by Corps
                                                                                                          and other interested agenctes,
                                                                                                          organizations and individuals






                                                                                                              Public Hearing
                                   Application
                                                                                                               may be held
                                    Approved




                                                                            Evaluation Factors

                                                                            ï¿½Conservation
                                                                            ï¿½Economics
                                                                            ï¿½Aesthetics
                                                                            ï¿½Environmental Concerns
                                                                            ï¿½Fish and Wildlife values
                                                                            ï¿½Flood damage prevention
                                                                            ï¿½welfare of the General Public
                                        Application denied...                Historic values
                                                                             Recreation
                                                                             Land use
                                                                             Water supply
                                                                             Water quality
                                                                             Navigation
                                                                             Energy needs
                                                                             Safety
                                                                             Food production




         Source; Copyright 1983, Environmental Law                          I nsti tute,
                      Reprinted with permission from Our National                       Wetiand
       L              Heritage: A Protection Guidebook by Dr. Jon A. Kusler,








                 The following criteria are used in this review process:

                 1.    the relative extent of the public and private need for
                       the proposed project,

                 2.    where there are unresolved conflicts as to resource use,
                       the practicability of using reasonable alternative
                       locations and methods to accomplish the objective of the
                       proposed project, and

                 3.    the extent and permanence of the beneficial and/or
                       detrimental effects which the proposed project may have
                       on the public and private uses to which the area is
                       suited."

                 in addition, all relevant factors related to the proposed
           project must be considered. These factors include conservation,
           economics, aesthetics, general environmental concerns, wetlands,
           cultural values, fish and wildlife values, flood hazards,
           floodplain values, land use, navigation, shore erosion and
           accretion, recreation, water supply and conservation, water
           quality, energy needs, safety, food and fiber production, mineral
           needs, considerations of property ownership, and in general, the
           needs and welfare of the people   . 42 Figure 8 illustrates the Corps,-
           permit review process.

                 General Permits. In 1977, the Clean Water Act was amended to
           allow the Corps to issue general permits on a state, regional, and
           nationwide basis.       These permits cover activities which are
           believed to have only a minimal impact on the environment.            The
           purpose of these general permits is to reduce delay and paperwork.
           In fact, it is not necessary that an individual inform the Corps
           about some activities covered by these general permits."

                 Effective January 21, 1992, the regulations governing
           nationwide permits are amended.          These regulations list 36
           nationwide permits, an increase          from 26 in the previous
           regulations. Types of activities which fall under these nationwide
           permits include aids to navigation, outfall structures, bank
           stabilization" installation of fish and wildlife harvesting
                                                                                   44
           devices, hydropower projects, and the construction of boat ramps      .




                 4'Ibid., p. 3-2.

                 42 Ibid.

                 43Want, pp. 5-6 - 5-7.

                 44 Liebesman, p. 5-1.

                                              29








                 Some suggest that Nationwide Permit 26 (NWP 26) is the most
           controversial of all the permits. NWP 26 authorizes the discharge
           of dredged or fill material into headwaters and isolated waters.
           The January 21, 1992, regulations that govern NWP 26 require that:

                 1.  discharges not cause the loss of more than 10 acres of
                     waters of the United States,

                 2.  prior notification of the Corps District Engineer if the
                     loss of waters is greater than I acre, and

                                                                              45
                 3.  the discharge is part of a single and complete project.

                 Two other nationwide permits which are important to the
           development community are NWP 12 and NWP 14. NWP 12 permits the
           discharge of material for backfill or bedding for utility lines,
           provided there is no change in preconstruction contours. NWP 14
           permits fills for roads crossing water of the United States
           (including wetlands and other special aquatic sites) under certain
                      41
           provisions.

                 In addition to some specific requirements, nationwide permits
           must meet several general conditions. These conditions deal with
           such issues as erosion and siltation controls, the disruption of
           aquatic life movements, and threats to endangered species and
           historic sites.   The general provisions also permit individual
           states to require state water quality certification to be obtained
           or waived on certain nationwide permits."'

                 Exemptions under Section 404.  "Normal farming, silviculture
           (timber or forestry), and ranching activities" are exempt from
           Section 404 regulations provided that these activities are a part
           ,of an established and ongoing agricultural operation. An exemption
           would not be allowed if activities were aimed at converting wetland
           areas which have not been used previously for agriculture or
           forestry and where the reach of navigable waters is impaired."'

           Section 401 State Water Quality Certification

                 Section 401 of the Clean Water Act grants states the authority
           to certify that activities requiring a federal 404 permit meet
           applicable state water quality standards. If the state denies the
           water quality certification, the federal permit can not be issued.


                 4-56 FR 59143.

                 46 56 FR 59141 - 59142.

                 47 56 FR 59145 - 59147.

                 48Want, pp. 5-2 - 5-4.

                                           30








                Many states are using the Section 401 authority to ensure a
           certain level of water quality and to protect other environmental
           resources as well.   In 1989, the General Assembly enacted House
           Bill 1839 which established a new state permit, the Virginia Water
           Protection Permit, which "shall constitute the certification
           required under Section 401 of the Clean Water Act."              The
           legislation requires that all activities needing a Section 401
           certification "be consistent with the provisions of the Clean Water
           Act and protect instream beneficial uses."

                The State Water Control Board (SWCB) issued proposed
           regulations to implement this new permit process in late 1990 only
           to withdraw them when legal questions arose over the inclusion of
           language calling for no net loss of wetlands.       There was also
           significant public comment on the proposed regulations. Proponents
           of the regulations advocate that the SWCB has the same jurisdiction
           to regulate activities within wetlands as the Corps of Engineers.
           Opponents argue that the General Assembly did not give the SWCB
           specific authority to regulate wetlands beyond the Virginia
           Wetlands Act.   In the meantime, the SWCB is continuing to,issue
           Section 401 certifications under existing regulations.

                As stated before, states have the right to waive Section 401
           certification for nationwide permits. Several states have chosen
           not to waive, that is to deny, certification on specific permits."
           To date, Virginia has chosen not to waive state certification on
           NWP 26, as have other states. In these states, the Corps informs
           an individual that he or she must obtain a state water quality
           certification before proceeding under NWP 26.          Virginia is
           currently considering changing this requirement based on the
           regulations that are effective on January 21, 1992.



           VIRGINIA WETLANDS LAW

                As in the case of the federal government, the Commonwealth of
           Virginia has several programs which regulate or impact development
           in and adjacent to wetlands.       This section will discuss the
           Chesapeake Bay Agreement, the Chesapeake Bay Preservation Act, the
           Virginia Wetlands Act, and efforts to adopt nontidal wetlands
           regulations.

           Chesapeake Bay Agreement

                In 1987, the Governor of Virginia, along with governors from
           Maryland and Pennsylvania, the Mayor of the District of Columbia,
           the Administrator of the Environmental Protection Agency (EPA), and
           the Chairman of the Chesapeake Bay Commission signed an agreement
           to restore and protect the Chesapeake Bay--the Chesapeake Bay


                "Ibid., p. 6-37.

                                           31









           Agreement.    This document outlines goals, objectives, and
           commitments to specific action to improve the Bay. Areas covered
           include living resources, water quality, population growth and
           development, public information, education and participation,
           public access, and governance."

                One of the commitments of the Chesapeake Bay Agreement was to
           "by December 1988, to develop a Bay-wide policy for the protection
           of tidal and non-tidal wetlands.1151    On January 5, 1989, the
           signatories of the Chesapeake Bay Agreement, including then
           Governor Gerald Baliles, adopted a policy document which addresses
           wetlands protection.

                As stated in the policy document, "The goal of the wetland
           protection and management strategy is to achieve a net resource
           gain in wetland acreage and function over present conditions by:

                1.   protecting existing wetlands; and

                2.   rehabilitating degraded wetlands, restoring former               r
                     wetlands, and creating artificial wetlands.  ,52

                The document contains a series of policy statements which are
           organized into four focus areas: inventorying and monitoring
           wetlands; protecting existing wetlands; rehabilitating, restoring
           and creating wetlands, and public education and research. 13  These
           policy statements are significant because the adoption statement
           says that the signatories agree "to commit the necessary funding
           and resources to carry out the implementation of the  poliCy.,,54

           Virginia Wetlands Act

                The Virginia Wetlands Act was passed in 1972. Section 62.1-
           13.1 states that wetlands are an "irreplaceable natural resource"
           and that the declared policy of the Commonwealth is "to preserve
           the wetlands and to prevent their despoliation and destruction and
           to accommodate necessary economic development in a manner
           consistent with wetlands preservation." The purpose of this policy
           is "to protect the public interest, promote the public health,
           safety and the economic and general welfare of the Commonwealth,


                '01987 Chesapeake Bay Agreement, (1987), pp. 1 - 12.

                "Ibid., p. 2.                                                         LE

                "Chesapeake Bay Wetlands Policy, (Annapolis, Md.: Chesapeake
           Executive Council, 1988), p. 2.

                13 Ibid., pp. 3 - 14.

                54 Ibid., Adoption Statement, p. [i).

                                           32








            and to protect public and private property, wildlife, marine
            fisheries, and the natural environment."

                 Activities Recrulated.      Any proposed activity that affects
            vegetated or nonvegetated tidal wetlands requires a permit. Some
            activities are exempt from regulation. These include construction
            of non-commercial piers and catwalks, routine maintenance o              'f
            existing roadways, observation decks, cultivation and harvesting
            of shellfish, cultivation and harvesting of agricultural, forestry
            or horticultural products, non-commercial outdoor recreational
            activities, Virginia Institute of Marine Science research
            activities, duckblinds, governmental activities on state-owned or
            leased wetlands, and routine maintenance of drainage ditches.
            These exemptions closely reflect those found under the Section 404
            program.

                 PrinciRal Administrative Agency. All activities that require
            a wetlands permit are handled by the Virginia Marine Resources
            commission (VMRC) .     VMRC is charged with the promulgation of
            guidelines    "which    scientifically     evaluate     vegetated     and
            nonvegetated wetlands by type and which     set forth the consequences
            of use of these wetland types.115"           VMRC may also develop
            administrative procedures designed to expedite the processing of
            applications among VMRC, local wetlands boards, and other state
            and federal agencies.

                 By adopting the model wetlands zoning ordinance found in the
            Act, a local wetlands board may become the principal administrative
            body for the jurisdiction. Any wetlands applications received by
            VMRC will be forwarded to the wetlands board in the appropriate
            jurisdiction. In the Richmond region, Charles City County and New
            Kent County have established wetlands boards.

                 Review Authority.       The Commissioner of VMRC reviews all
            decisions of local wetland boards. The Commissioner may direct the
            commission to review any decisions in question. In addition, the
            VMRC will review appeals made by an applicant, the county, city,
            or town in which the wetland is located, or when petitioned by
            twenty-five or more freeholders of property.             VMRC has the
            authority to modify, remand, or reverse the decision of a local
            wetlands board. Appeal of the Commission's decision may be made
            to Virginia courts by an applicant, county, city, town, or
            freeholders. Wetlands applications received by VMRC are sent to
            the U.S. Army Corps of Engineers             (Corps)   under a joint
            federal/state permitting and public notice agreement.. This process
            is designed to reduce review time.

                 Policy and Standards.        The policy to preserve wetlands,
            prevent their despoliation and destruction, and accommodate


                 "Va. Code, Section 62.1-13.3, (1991).

                                               33








          economic development in a manner consistent with wetlands
          protection serves as a guideline to VMRC and local wetlands boards.
          Decisions made during the permitting process are based on this
          policy statement. Also, standards have been developed that are to
          be followed in the decision-making process. These standards are:

                1.   Wetlands of primary ecological significance shall not be
                     altered so that the ecological systems in the wetlands
                     are unreasonably disturbed.

                2.   Development in Tidewater Virginia, to the maximum extent
                     practical, shall be concentrated in wetlands of lesser
                     ecological significance, in vegetated wetlands which have        F
                     been irreversibly disturbed before July 1, 1972, in
                     nonvegetated wetlands as described herein which have been
                     irreversibly disturbed prior to January 1, 1983, and in
                     areas of Tidewater Virginia apart from the wetlands.

                3.   The provisions of the guidelines promulgated by the VMRC
                     pursuant to the Virginia Wetlands Act shall be considered
                     in applying the foregoing standards. 56

                The Virginia Institute of Marine Science (VIMS) and VMRC have
          developed a document entitled Wetlands Guidelines. This document,
          developed to address standard 3 above, is designed to assist VMRC
          and local wetlands boards in the review of activities proposed to
          take place in tidal wetlands.     Such activities require a permit
          from VMRC or a local wetlands board.          The guidelines list
          Virginia's common tidal wetland types and their -relative values in
          relation to their functions.      The guidelines address marshes,
          beaches, tidal flats, and subaqueous lands.

                Marshes are found at "mean sea level" and contain various
          vegetated communities. Beaches and tidal flats are found between
          the high water line and low water line and contain no vegetation.
          They are alternately exposed and covered by the tide. Subaqueous
          lands are located below the limits of low tide and are always
          underwater. These lands may or may not contain aquatic vegetation.

                Twelve types of vegetated wetlands (marshes) and five types
          of nonvegetated wetlands (tidal flats and beaches) are described
          in the guidelines. These are then grouped based on their relative
          values. The criteria used to determine value are production and
          detritus availability, waterfowl and wildlife utilization, erosion
          buffer, water quality control, and flood protection.           These
          criteria are averaged to produce a value for each wetland type.
          Group 1 contains the types that are considered most valuable,  group
          2 the next most valuable, and so forth. These groups are shown in
          Table 2.


                56Va. Code, Section 62.1-13.3, (1991).                                U

                                           34














                                             Table 2




                               Tidal Wetlands Communities by Group



                                Vegetated                       Nonvegetated
                                Communities                     Communities


             Group One        saltmarsh cordgrass             intertidal beaches
                              arrow arum-pickerel weed        intertidal oyster reef
                              freshwater mixed
                              brackish water mixed

             Group Two        big cordgrass                    sand flats
                              saltmeadow                       sand/mud flats
                              cattail

             Group Three      yellow pond lily
                              black needlerush

             Group Four       saltbush

             Group Five       saltwort
                              reedgrass


             Source:    Wetlands Guidelines. Department of Wetlands Ecology,
                        Virginia Institute of Marine Science, College of William
                        and Mary, and Environmental Affairs Division, Virginia
                        Marine Resources Commission.









                The Wetlands Guidelines note that the destruction or
           disturbance of any wetlands should be avoided, but if necessary,
           the tidal wetland types contained in the higher numbered groups
           could be developed with less of a loss of value than those in the
           lower numbered groups.      The permitting of wetland activities
           ultimately should be determined on a case-by-case basis.




                                            35









           Chesapeake Bay Preservation ACt

                In 1988, the General Assembly enacted the Chesapeake Bay
           Preservation Act to protect the water quality of the Bay.         The
           Preservation Act calls for the "counties, cities, and towns of
           Tidewater Virginia (to] establish programs, in accordance with
           criteria established by the Commonwealth, that define and protect
           certain lands, hereinafter called Chesapeake Bay Preservation
           Areas, which if improperly developed may result in substantial
           damage to the water quality of the Chesapeake Bay and its
           tributaries. ,57   All counties, cities, and towns in Tidewater
           Virginia must comply with the Act and its regulations.          Those
           localities not  specifically covered by the Act have the option to
           develop requirements based on the Act.

                Activities Regulated.      The Preservation Act regulations
           establish criteria for local governments to use in the designation
           of Chesapeake Bay Preservation Areas (CBPAs).        Chesapeake Bay
           Preservation Areas are divided into two categories: (1) Resource
           Protection Areas (RPAs) and (2) Resource Management Areas (RMAs).
           Resource Protection Areas consist of tidal shores, tidal wetlands,
           nontidal wetlands hydrologically connected by surface flow and
           contiguous to tidal wetlands and tributary streams, and a 100 foot
           buffer.   RPAs can also include other environmentally sensitive
           lands, as designated by localities.      Resource Management Areas
           surround the RPAs and protect the values and integrity of the RPAs.
           Nontidal wetlands, flood plains, highly erodible and highly
           permeable soils, and steep slopes shall be considered in
           designation of Resource Management Areas.

                Development within CBPAs is controlled through a series of
           land use and performance criteria. Any land disturbing activity
           exceeding 2,500 square feet is subject to a plan of development
           review process.      Development within RPAs is limited to water
           dependent uses   or redevelopment. ' Land uses are not regulated
           within the RMAs, but there are performance criteria regarding the
           preservation of vegetation and other water quality measures to
           protect the integrity of the RPA.

                PringiRal Administrative Agency.     The Chesapeake Bay Local
           Assistance Board is charged with developing regulations to
           implement the Preservation Act and ensuring compliance by those
           localities covered by the Act.      The Board is assisted in its
           efforts by the Chesapeake Bay Local Assistance Department.         In
           addition to its responsibilities to the Board, the Department
           provides technical assistance to local governments seeking to
           comply with the Act.



                17 Va. Code, Section 10.1-2100, (1988).


                                            36









                Review Authority. Local Chesapeake Bay Preservation programs
           are reviewed by the Local Assistance Board for consistency with the
           Act and its implementing regulations.        The Local Assistance
           Department assists the Board with this review.

                In September 1989, the Local Assistance Board adopted
           regulations which set forth specific requirements of the Act and
           established a timetable for complying with the Act. Localities in
           the Tidewater region are required to have adopted a full Chesapeake
           Bay Preservation Areas program by November 15, 1991.

                Not every locality was able to take all actions prescribed in
           the regulations by the November 15, 1991, deadline. This was due
           to a variety of factors. The Local Assistance Board and Department
           are working with,local governments to implement the provisions of
           the Act as soon as possible.

           Virginia Nontidal Wetlands Roundtable

                For several years, the General Assembly has considered
           nontidal wetland regulations.    To date, no legislation has been
           passed. The General Assembly did, however, appoint the Virginia
           Nontidal Wetlands Roundtable to investigate the issue of regulating
           nontidal wetlands.    The Roundtable consisted of members of the
           General Assembly, state and local officials, environmental groups,
           and private citizens.

                In January, 1990, the Roundtable published a report to the
           Governor and General Assembly.      As stated in the report, the
           Roundtable was created because the "General Assembly believed that
           in order to craft a specific state program for nontidal wetlands,
           a better understanding of the resource and alternative management
           programs was necessary and the subject required additional study."

                In its final report, the Roundtable members concluded that
           "while effective management of nontidal wetlands should be of
           immediate and continuing concern to the Commonwealth, creation of
           a new regulatory program for the resource may be premature at this
           time."    The report went on to say "that the state should
           immediately take steps to: enhance, coordinate and assess existing
           programs; institute continuing educational, research and incentive
           based preservation programs; and develop a current inventory of the
           resource.","' The findings and recommendations of the Roundtable are
           reproduced in the appendix.





                "Report of the Virginia Nontidal Wetlands Roundtable To the
           Governor and The General Assembly of Virginia, House Document No.
           54, (Richmond, Va.: Commonwealth of Virginia, 1990), pp. 2      4.

                                            37














                           LOCAL MEANS OF WETLANDS PROTECTION

                Local governments can play an important role in wetlands
           protection. In fact, recent actions by the General Assembly, such
           as the passage of the Chesapeake Bay Preservation Act and changes
           in local planning and zoning authority, , suggest an even greater
           environmental protection role for local governments.

                The purpose of this section is to discuss planning and
           regulatory authority available to local governments to protect
           environmentally sensitive areas such as wetlands.     Also examined
           are the use of property acquisition and assessment programs to
           preserve wetlands.

                A word of caution is necessary. Some individuals believe that
           Virginia's status as a Dillon rule state limits the ability of
           local governments to plan for and, especially, to regulate
           development in wetlands, particularly nontidal wetlands. Others,
           including the authors of this report, believe that changes made
           to the local planning legislation in the last few years, coupled
           with the Virginia Wetlands Act and the Chesapeake Bay Preservation
           Act, give local governments an array of wetland protection tools.

                This report cannot resolve this debate. It does examine the
           planning and implementation tools available to local governments
           and how they can be used to address wetlands protection. Any local
           government should work closely with its legal counsel when
           developing land use regulations.



           COMPREHENSIVE PLANNING

                The Code of Virginia mandates that all local governments adopt
           a comprehensive plan.        Section 15.1-446.1 states that a
           comprehensive plan "shall show the... long-range recommendations
           for the general development of the territory covered by the plan."
           The Code then enumerates the types of land uses that may be
           included within the long range development recommendations of a
           comprehensive plan.    'In addition to areas for residential,
           commercial, and industrial development, the Code permits the
           inclusion of recommendations for conservation areas, flood plains
           and drainage, and for the implementation of reasonable groundwater
           protection areas. While wetlands are not specifically mentioned,
           the role that wetlands play in protecting water quality and
           assisting in flood protection appea .rs to justify their inclusion
           in the comprehensive planning process.

                Additionally, Section 15.1-447 states that in the preparation
           of a comprehensive plan, localities "shall survey and study such
           matters as" natural resources, groundwater, surface water, flood

                                           3.9









          control, and flood damage prevention.        In 1991, the General
          Assembly amended the Code by adding the term "environmental
          factors" to the areas to study.      Again, while wetlands are not
          specifically cited, this wording appears to give validity to
          including wetlands in the areas to be surveyed and studied.

               While a comprehensive plan has no regulatory authority, it
          does provide a framework upon which specific land development
          ordinances can be based.     Section 15.1-456 states that once a
          comprehensive plan is adopted "it shall control the general or
          approximate location, character and extent of each feature shown
          on the plan."

               There are several advantages to incorporating the location,
          character and extent of environmentally sensitive areas into the
          local comprehensive planning process.      First, this information
          alerts the local government and private property owners to areas
          that may be inappropriate for certain types of development or areas
          that may be difficult or costly to develop.       It assists local,
          state, and federal agencies in the planning of public improvements
          which may need to avoid certain environmentally sensitive areas.
          This in itself may save time and money on construction projects.
          Finally, it allows the local government to plan for its future with
          a better understanding of its resources, both those that may need
          to be protected and those that are available for development.

               The techniques used to incorporate wetlands protection into
          the local comprehensive plan are identical to those used to address
          other land use issues. However, there are special aspects which
          need to be noted. The following examines how wetlands protection
          can be integrated into a comprehensive planning process and some
          of the issues related to wetlands planning.

          wetiand inventories and Xapping

               An important step in the planning process is to determine the
          extent, location, and significance of local land uses and
          resources.    Many localities inventory and map environmentally
          sensitive areas as part of this process.

               Wetlands are environmentally sensitive areas that should be
          considered during the preparation of a comprehensive plan. Mapping
          wetlands can present a problem, however. To address this problem,
          local governments can either inventory and map the information
          themselves or they can rely on existing mapping information. Each
          option has advantages and disadvantages.

               The most accurate means of locating, mapping, and evaluating
          wetlands is to perform an actual wetlands inventory.       For most
          localities, this approach involves hiring a wetlands expert. This
          individual utilizes specialized training and on-site inspection
          methods to locate, measure, and map wetland areas.       While this

                                           40








          approach may provide the most accurate information, few localities
          can afford the cost and time required by this technique.

               An alternative to performing an actual inventory is to use
          existing information to locate wetlands.       The most extensive
          mapping of wetland areas, both tidal and nontidal, is the National
          Wetlands Inventory (NWI), a program of the U.S. Fish and Wildlife
          Service. Wetland inventory maps which overlay the U.S. Geological
          Survey (USGS) 7.5 minute quadrangle maps are available for the
          entire state. The most up-to-date and accurate NWI maps cover the
          western portion of the state; work is underway to update the NWI
          maps for the eastern portion. Caution must be exercised when using
          these maps, especially those that are available for eastern
          Virginia.    Some of the older NWI maps have been found to
          significantly understate the presence of wetlands.

               The Virginia Institute of Marine    Science (VIMS) is another
          source of information on the location of wetlands.        VIMS has
          delineated tidal wetlands for many of the localities in Tidewater
          Virginia.   Other agencies that  may be helpful are the Virginia
          Marine Resources Commission, the Virginia Council on the
          Environment, and the Chesapeake  Bay Local Assistance Department.

               Soil surveys, which can be   used to locate hydric soils, can
          be used to estimate the locations of wetlands. Using existing soil
          surveys, the Information Systems Support Laboratory, Agricultural
          Engineering Department, Virginia Polytechnic Institute and State
          University prepared a series of maps which locate hydric soils in
          localities covered by the Chesapeake Bay Preservation Act. These
          maps overlay the USGS 7.5 minute quadrangle maps.        This same
          organization can assist other localities in the preparation of this
          type of information, provided a soil survey has been completed.

               It must be remembered that information sources such as the NWI
          maps should only be used for general planning purposes. These maps.
          rarely have the level of detail or accuracy needed to make site
          specific determinations of wetland locations.

               It must also be remembered that on-site wetlands delineation
          is not any easy task. Wetland specialists can disagree over the
          presence and extent of wetland areas.

          Goals and objectives

               A comprehensive plan should contain the goals (or visions)
          which a locality wants to achieve and the objectives (or
          benchmarks) that allow the locality to judge movement toward its
          stated goals.   These goals and objectives establish the overall
          framework for guiding future development. They also serve as the
          basis for the ordinances that are adopted to implement the plan.
          In order for a plan to be defensible in court, there must be a
          clear relationship between the goals and objectives set forth in

                                           41








          the plan and the ordinances used to   implement the plan. The plan
          must also be in compliance with State enabling legislation.

                 Some localities establish broad environmental goals such as
          the following from Charles City County:

                "To preserve and protect the natural environment while
                permitting development to occur in a manner consistent with
                the capacity of the land to handle development.""

                Other possible, goals are the protection of water quality,
          preservation of recreational opportunities, and the maintenance of
          viable fisheries. All of these contain aspects which relate to the
          protection of wetlands. Whatever goals are developed, they should
          relate to the unique character and resources of the locality.

                Once broad goals are established, it is then necessary to
          establish measurable objectives based on the goals. One possible
          objective related to the above Charles City County goal is:
                                                                                      or
                No net loss of wetlands in the County.

          This objective is consistent with a goal of protecting the natural
          environment. In addition, the locality can evaluate its success
          in meeting this objective on an annual basis or during the periodic
          update of the plan which is required at least every five years.

          Development Strategies

                Goals and objectives establish the overall type and intensity
          of development a locality desires. Development strategies are used
          to define the best approach to be used to reach the locality's
          goals and objectives.

                Wetlands protection strategies can also be referred to as
          mitigation strategies. The VMRC Wetlands Mitigation-Compensation
          Policy defines mitigation as:

                "all actions, both taken and not taken, which eliminate or
                materially reduce the adverse effects of a proposed activity
                on the living and nonliving components of a wetland system or
                their ability to interact.11"





                "Charles City County Comiprehensive Future Land Use Plan,
          (1991), p. 66.

                60 "Wetlands Mitigat ion-Compensat ion Policy," VR 450-01-0051,
          (Virginia Marine Resources Commission, 1989), p. 1.

                                           42








                The following suggests one possible set of wetlands protection
           strategies.   These strategies establish a hierarchy for dealing
           with development in or adjacent to wetlands.

                1.   Avoid impacts by prohibiting the development of wetland
                     areas where possible.

                2.   Where avoidance is not possible, minimize impacts on
                     wetlands by limiting the degree or magnitude of
                     development activity on or adjacent to wetlands.

                3.   Require compensation for the loss of all or part of a
                     wetland through restoration, enhancement or creation."

                Avoidance of wetland development is the preferred management
           strategy in many cases. This strategy is especially important when
           dealing with the most productive types of wetland communities.

                Total avoidance of wetland development is not always possible.
           In these cases, the strategy of minimizing the impacts of
           development on wetlands becomes appropriate.      This strategy can
           take two forms. One form is to limit development in or adjacent
           to wetlands.   The Virginia Wetlands Act lists specific types of
           activities that are permitted in wetland areas. These activities
           can generally be categorized as water related uses and the
           construction and maintenance of public and private infrastructure.

                The regulations that implement the Chesapeake Bay Preservation
           Act limit development in Resource Protection Areas (which include
           tidal and some nontidal wetlands) to water dependent uses and
           redevelopment.   The regulations require that development impacts
           be minimized and suggest the use of various best management
           practices as appropriate protection techniques.

                Taken together, the Wetlands Act and the Preservation Act
           appear to establish a state strategy of avoiding development where
           possible in tidal and certain nontidal wetlands. Where avoidance
           is not possible, the strategy is to minimize the impact of
           development on wetlands areas. Local governments that adopt local
           ordinances to implement either or both of these Acts are therefore
           assisting with the implementation of these strategies.

                A third wetland protection strategy is to require compensation
           for wetlands that must be damaged or destroyed to make way for
           development. Three techniques are used to compensate for wetlands
           losses: restoration, enhancement, or creation. There are varying
           points of view about the success of these compensation measures.


                "David   Salvesen,   Wetlands:   Mitigating   and    Regulating
           Development Impacts, (Washington, D.C.: Urban Land Institute,
           1990), pp. 69 - 107.

                                            43









                1.   Wetland restoration seeks to return the ecological
                     productivity of a wetlands area that has been disturbed
                     by development activity. Measures are taken to restore
                     the wetlands site by cutting off all pollution
                     discharges, removing any fill, regrading the site, and
                     transplanting appropriate wetlands vegetation on the
                     site. The goal in restoration is to ensure a no net loss
                     of wetlands and successful completion of the restoration
                     on the site. This technique is not always successful,
                                                            61
                     leading to the loss of wetland areas.

                2.   Wetlands enhancement is most likely to occur in
                     situations where efforts to recreate the original                 01
                     wetlands type are difficult or are deemed to take longer
                     than developing another type of wetland on the same site.
                     The conditions of the site, such as soils, climate, and
                     presence of water, will greatly influence what type of
                     wetlands is developed.    The "replacement" wetland type
                     should be of equal or greater value than the original
                     wetland. Some argue that wetlands enhancement does not
                     result in an equitable exchange of wetlands types, that
                     wetlands of a lesser value to the environment are often
                     chosen.    For example, an individual might replace a
                     wetland with a pond that would be aesthetically pleasing
                     to a particular development rather than choose a wetland
                     type-that would benefit the ecological productivity of
                     the site.63

                3.   Wetlands creation is by far the most debated approach to
                     mitigation. This strategy involves developing wetlands
                     from dry land. For wetlands creation to be successful,
                     a host of conditions need to be met. Wetlands require
                     proper topography, soil types, hydrology, and climate.
                     Acquiring plants distinctive to a wetlands natural state
                     is difficult. Also, created wetland should provide the
                     same functions as the destroyed wetland. Many wetlands
                     scientists do not believe that artificial wetlands can
                     replace natural wetlands. A study conducted in coastal
                     Virginia in 1985 indicated that out of 32 wetlands that
                     were created only 9 sites were completely successful.
                     Most wetland scientists agree that creating wetlands
                     where none exist is far more difficult than restoring
                     wetlands on their original sites."




                62 Salvesen, pp. 77 - 82.

                63 Ibid.

                64 Ibid., pp. 95 - 99.

                                            44









           Development Policies

                once development strategies have been determined, policies can
           be adopted to give guidance to decision makers and property owners
           on the standards that will be used to evaluate development
           proposals. Possible wetland development policies include:

                1.    Cluster development on upland sites to minimize the
                      impacts on environmentally sensitive areas such as
                      wetlands.

                2.    Restrict development within wetlands    to uses that are
                      compatible with and/or have minimum impacts on wetlands.

                3.    Restrict development within wetlands to water dependent
                      uses where possible.       Limit actual development in
                      wetlands areas to those uses which must locate in
                      wetlands;   require that uses that do not need to be
                      located in wetland areas be located in upland areas.
                      (For example, a boat ramp may need to be located in a
                      wetland; the parking lot for the ramp should be located
                      in an upland area.)

                4.    Require the use of Best Management Practices in all
                      developments that impact wetlands, 'either off or on site.

                one can begin to see the correlation between development goals'
           and objectives and development policies.       There must also be a
           correlation between development policies and ordinances and other
           actions taken to implement the plan.         This type of internal
           consistency is essential in a comprehensive plan.

           Future Land Use Map

                A local comprehensive plan typically includes a future land
           use map. Such a map shows the desired future development pattern
           for the locality.

                Many localities in the Richmond region have included wetland
           areas on their future land use maps. Wetlands are included in such
           land use categories as conservation areas, flood plain and
           drainage, open space, or environmentally sensitive lands. All of
           these areas call for limited development. While a future land use
           map can only be used for general planning, the inclusion of these
           areas on the map graphically illustrates those areas that have
           special environmental limitations.

           Education Value

                An important aspect of the development of a comprehensive plan
           is its educational value. The public nature of the process allows
           government officials, land owners, and others in the community to

                                             45









          discuss and learn f rom each other about existing conditions and
          future aspirations.

                The planning process can serve as an excellent opportunity to
          discuss and learn about the locality's environment.        Background
          reports can be prepared which examine the extent and importance of
          wetlands and other environmentally sensitive areas.        With this
          information, a locality can develop a comprehensive plan that meets
          its overall development needs   while protecting its environmental
          resources.



          LAND DEVELOPMENT ORDINANCES

                The Code of Virginia grants local governments the power to
          enact ordinances to zone land, regulate the subdivision of land,             r
          and take other actions aimed at achieving the goals and objectives
          of the comprehensive plan. These same techniques can be used to
          protect wetlands from inappropriate development. In addition, some
          specific authorities have been granted to local governments to
          protect environmentally sensitive areas.     The following examines
          these techniques.

          zoning Ordinance

                The Code permits cities, counties, and towns to adopt zoning
          ordinances.   The purpose of a zoning ordinance, as set forth in
          Section 15.1-489, is to protect the "health, safety or general
          welfare of the public... .11 Local governments can accomplish this
          purpose through activities such as the regulation of the use of
          land, through restrictions on the location and size of buildings,
          and through requirements related to the retention of open space."

                In 1990, the General Assembly amended the list of specific
          purposes for zoning to include "the preservation... (of) other lands
                                                                            11  66
          of significance for the protection of the natural environment.
          While the Code previously included purposes such as the protection
          of flood plains and water quality, this new language is the first
          to specifically establish the protection of the natural environment
          as a purpose of zoning.        Some believe this language gives
          localities the ability to use zoning authority to protect
          environmental features such as tidal and nontidal wetlands,
          exclusive of the provisions of the Virginia Wetlands Act and the
          Chesapeake Bay Preservation Act.

                Furthermore, the Code states that when zoning ordinances and
          districts are developed, a local government shall consider, among


                6'Va. Code, Section 15.1-486, (1991).

                "Va. code, section 15.1-489, (1991).

                                           46









           other things, "the existing use and character of the property, the
           comprehensive plan, the suitability of property for various uses,
           the current and future requirements of the community as to land for
           various purposes.... the conservation of natural resources, the
           preservation of flood plains .... and the encouragement of the most
                                                                           11 67
           appropriate use of land throughout the county or municipality.

                There are several techniques that can be used to protect
           wetlands through zoning. Following is a discussion of some of the
           techniques.

                special zoning districts. one technique used is to establish
           special zoning districts for environmentally sensitive areas such
           as wetlands. This permits local governments to limit development
           in these areas to uses that are compatible with environmentally
           sensitive areas such as wetlands.      To be effective, accurate
           information about the location of these areas is necessary. This
           information can be costly to obtain. In addition, attention must
           be taken to ensure that the uses permitted in the district and the
           development standards for those uses adequately address the special
           needs of environmentally sensitive areas  such as wetlands.

                The New Kent County zoning ordinance contains a conservation
           district established to protect environmentally fragile or
           significant areas.    A stated purpose of the district is the
           protection of wetlands.   Uses permitted within the district are
           restricted to forestry, agriculture, open space, and recreation.
           In addition, there are development standards which require the 61  use
           of best management practices and grass buffers along streams.

                Overlay Districts.    Overlay districts are used to add or
           delete specific uses or development requirements in certain zoning
           districts without rezoning the property or affecting the use or
           development requirements of similarly zoned property in other parts
           of the community.    Overlay districts may add requirements for
           special water quality measures or reduce the types of uses
           permitted in the underlying zoning district.

                Some localities are using overlay districts to implement local
           Chesapeake Bay preservation ordinances.    For example, a Resource
           Management Overlay District could be established to require certain
           water quality protection measures without affecting the uses
           permitted in the underlying zoning district. A Resource Protection
           Overlay District could limit future development to water dependent
           uses while requiring stringent water quality protection standards.



                67 Va. Code, Section 15.1-490, (1991).
           42.  "Zoning Ordinance, County  of New Kent, Virginia, (1987), p.

                                           47












                                                                                      r

               Performance Standards. The purpose of performance standards
          is to reduce or eliminate the negative impacts of certain types of
          land uses on existing and potential uses. A zoning ordinance may
          contain performance standards for noise, dust, toxic discharges,
          heat, odor, and water quality.

               Performance standards may be used to ensure that activities
          occurring outside of or adjacent to wetlands do not adversely
          impact them. These standards could include:

               1.    requirements for vegetated buffer strips adjacent to
                     wetlands,

               2.    requirements for the preservation of vegetation, both
                     during and after site development,

               3.    setbacks for buildings and other site improvements with
                     regard to wetlands,

               4.    the type and content of fill material to be used on the
                     site, and

               5.    other best management practices to insure that wetland
                                                                         69
                     areas are not damaged during or after development.

          The model ordinance developed to assist localities with the
          implementation of local Chesapeake Bay preservation programs
          contains examples of performance standards that may be used to
          protect wetlands and other environmentally sensitive areas.

               Planned Unit Development. This technique allows property to
          be developed in accordance with an overall plan that may deviate
          from certain specific development standards such as lot size and
          building setback requirements.    Localities can use planned unit
          development ordinances to provide incentives for the protection of
          wetlands.   For example, a local government may offer incentives
          such as density bonuses for proposals that concentrate construction
          in upland areas and leave wetlands undisturbed. The result is the
          protection of resources such as wetlands while permitting
          development to occur.

               Conditional Zoning. This technique allows property owners to
          voluntarily attach certain conditions (referred to as proffers) to
          rezoning requests.    These proffers could include guarantees to
          protect wetland areas and/or to implement mitigation measures.
          These conditions must comply with the comprehensive plan which is
          another reason to address environmental protection in the plan.
          These conditions should clearly promote the general welfare of the
          community over the good obtained by the property owner.           All


               69 Burke# Meyers, Tiner, and Groman, p. 43.

                                           48








          Virginia localities have the authority to use conditional zoning,
          but in varying degrees.

               Transfer of Development Rights. One technique that has been
          used in other states is transfer of development rights (TDRs) .
          This technique allows the development rights attached to one
          property to be transferred, by sale or lease, to another property.
          The purchaser of the development rights may then develop other
          property more intensely then originally permitted by the zoning
          ordinance. The seller of the development rights may only develop
          as intensely as permitted by the remaining development rights. It
          is argued that the transfer of development rights can aid in the
          protection, of environmentally sensitive lands by removing
          development pressures while allowing the owner of such properties
          to receive income from the sale of the development rights.       The
          Virginia General Assembly has considered TDRs many times, but has
          yet to pass enabling legislation.

          Subdivision Ordinance

               While not all localities in the Commonwealth have adopted
          zoning ordinances, all localities are required to adopt a
          subdivision ordinance."      Subdivision ordinances regulate the
          division of land into smaller tracts or lots, usually for the
          purpose of development.     Local governments can use subdivision
          ordinances both as a means to expand the local data base on
          wetlands and as a means to protect wetlands.

               Subdivision ordinances typically require that information such
          as soil characteristics, stream locations, and other pertinent land
          features be included on a map or plat of the property being
          divided. Adding requirements for the delineation of wetlands on
          a subdivision plat can be beneficial to the local government and
          to the property owner or developer. This information can also be
          used to expand the locality's wetlands data base.

               During the subdivision review process, the property owner and
          local government officials work together to determine the most
          appropriate locations for building lots, roads, and other proposed
          infrastructure.   By requiring the delineation of wetlands during
          the initial design review process, a locality can ensure that lots,
          roads, and infrastructure are designed to avoid unnecessary damage
          or loss of wetlands. This not only protects wetlands, but can also
          save the land developer by reducing construction costs and can save
          the locality on future maintenance costs.     This review can also
          highlight activities that will require a Section 404 permit.

               The delineation of wetlands early in the process also allows
          the local government and the property owner to determine the proper


               70Va. Code, Section 15.1-465, (1991).

                                           49









           locations for best management practices (BMPs)      The design and
           installation of BMPs for an entire subdivision is often more cost
           efficient and has a greater impact on maintaining water quality
           than the installation of such devices on individual lots.

                Some localities require that individuals subdividing land
           dedicate a portion of the property for recreational or open space
           purposes. By negotiating with the property owner, localities may
           be able to have wetland areas preserved. In addition, localities
           may also be able to negotiate the granting of conservation
           easements or the establishment of private development restrictions
           to protect wetlands.

                Unfortunately, local governments do not always have personnel
           with the proper training and experience to evaluate the accuracy
           of wetlands mapping or proposed BMPs. Assistance is available from
           several sources including the Chesapeake Bay Local Assistance
           Department and the Council on the Environment. In addition, many
           planning districts commissions have staff available to assist with
           this review. Private consultants are another source of assistance.

           site Planning ordinance

                A site plan is a drawing which shows the location of proposed
           development or redevelopment on a site.      Some localities have
           adopted site planning ordinances for all or certain types of
           development.    These ordinances require that development and
           redevelopment proposals be accompanied by a drawing which shows
           information such as existing and proposed buildings, driveways,
           vegetation, and other features on the site.

                All localities in Tidewater Virginia are required to
           incorporate a plan of development review process into their local
           Chesapeake Bay preservation ordinances.      This review process,
           sometimes referred to as a site plan review, is required for any           16
           activity that will disturb more than 2,500 square feet of land
           within locally designated Chesapeake Bay Preservation Areas."

                Adding requirements to map wetlands on a site plan can offer
           some  of   the   advantages    discussed   regarding    subdivision
           requirements. It provides the locality with detailed mapping of
           wetlands at no cost to the locality. In addition, it provides an
           opportunity for the discussion of actions the property owner can
           take to protect wetlands.    As with the review of subdivisions,
           training is necessary to evaluate wetlands mapping and proposed
           protection measures. Local governments needing assistance can call
           on the agencies discussed above under subdivision ordinance.


                "Chesapeake Bay Preservation Area Designation and Management
           Regulations, Final Regulation: VR 173-02-01, (Chesapeake Bay Local
           Assistance Board, 1990), pp. 7, 17.

                                           50










           Flood Plain Ordinance

                Most localities have adopted ordinances which govern
           development within the 100 year flood plain of rivers and streams.
           These ordinances include standards for where and how development
           may take place in designated flood plains.

                Most tidal and some nontidal wetlands are located in flood
           plains.   For this reason, some localities in other states have
           adopted ordinances that attempt to protect wetlands during and
           after development in a flood plain.     These restrictions include
           prohibitions against filling and excavating wetlands, construction
           of structures which impede the flow of water, and the disturbance
                                  72
           of natural vegetation .   This option is not available in Virginia
           since localities are only authorized to adopt the minimum language
           of the federal model flood plain ordinance.

                Wetlands remain, however, an integral part of many flood
           plains. As stated previously, some wetlands play an important role
           in flood control by storing and slowing flood waters, reducing
           flood peaks, and increasing flow duration. Localities need to keep
           these functions in mind when considering requests to build in or
           modify flood plains.

           Stormwater Management Ordinance

                Contaminants from diffuse    activities or sources, such as
           automotive oil and fertilizerf    are collectively called nonpoint
           source pollution. Left untreated, these pollutants can be washed
           off parking lots or agricultural fields by rainfall (stormwater)
           and allowed to flow into low-lying areas, such as wetlands, without
           treatment. The accumulated impact of such pollution can -result in
           the degradation of water quality and endanger wetland vegetation
           and wildlife.

                Stormwater management ordinances seek to reduce or eliminate
           this flow of pollutants by requiring the treatment of stormwater,
           either on individual properties or at a collective or regional
           stormwater treatment facility.      There are a variety of best
           management practices (BMPs) that can be used to reduce the amount
           of pollutants which eventually enter wetlands and water bodies.

                Section 10.1-603.1, et seq., permits localities to establish
           a stormwater management program by ordinance. These provisions and
           the stormwater management regulations, issued by the Division of
           Soil and Water Conservation of the Department of Conservation and
           Recreation, set forth the procedures for implementing a stormwater
           management program. A model stormwater management ordinance will
           also be prepared by the Division of Soil and Water Conservation.


                72 Burke, Meyers, Tiner, and Groman, pp. 51   52.

                                            51









                In 1991, the General Assembly passed House Bill 1770. This
           bill allows localities to develop stormwater utility districts as
           a means of funding the costs associated with the development,
           operation, and management of stormwater management facilities."

           Erosion and Sediment Control ordinance

                A well-enforced erosion and sediment (E&S) control ordinance
           can be a key element in a locality's efforts to protect wetlands.
           Without strict enforcement of erosion and sediment control
           requirements, runoff from land disturbing activities can smother
           wetland vegetation and eventually destroy a wetland. Sediment can
           also clog waterways, leading to flooding problems.

                In Virginia,      local   E&S   control   requirements    can be
           administered and enforced by either the local government or the
           local soil and water conservation district. Typically the local
           government administers and enforces the ordinance and the soil and
           water conservation district assists with plan review.           Section
           10.1-560, et seq., and its implementing regulations specifies the
           requirements for local erosion and sediment control ordinances.

                A 1988 report to the Governor and the General Assembly
           entitled Implementation Effectiveness of the Virginia Erosion and
           Sediment Control Program recommended several actions regarding the
           state E&S control program. Since the publication of the report,
           Virginia has amended the E&S law and issued implementing
           regulations.     In addition, the Division of Soil and Water
           Conservation has opened field offices and increased training
           available to local enforcement agencies.

                The primary responsibility for enforcing E&S requirements
           still remains with the local government or the soil and water
           conservation district.        The 1988 report stated that the
           "effectiveness of the local program is directly related to the
           municipal   attitude    toward   development    and   urbanization."   74
           Localities that wanted development tended to be less vigorous in
           the enforcement of E&S requirements. Localities less interested
           in development tended to be more vigorous in enforcement.
           Hopefully, as more is learned about the harmful impact of sediment
           on wetlands, there will be an increased desire to enforce E&S
           requirements.



                73Va. Code, Section 15.1-292.3, (1991).

                74 Report of thg Virginia Department of Conservation and
           Historic Resources, Division of Soil and Water Conservation:
           Implementation Effectiveness of the Virginia Erosion and Sediment
           Control   Program,   House    Document   No.   15,   (Richmond,    Va.:
           Commonwealth of Virginia, 1988), p. 54.

                                             52








           Landscaping ordinance

                Some governments have adopted landscaping ordinances. These
           ordinances establish standards for the preservation of existing
           landscaping and the installation of new landscaping on development
           sites.    These ordinances can also be used to address the
           preservation of wetlands.

                Landscaping ordinances can require that certain existing
           vegetation, especially wetlands vegetation, be preserved on a site.
           Additional vegetation can be required to further protect wetlands
           from potential sources of nonpoint source pollution and sediment
           due to erosion.     In addition, there can be requirements that
           measures be taken to protect existing vegetation during
           construction. Henrico County has adopted landscaping regulations
           as an integral part of its Chesapeake Bay protection activities.

           wetlands -ordinance

                The Virginia Wetlands Act gives Tidewater localities the
           authority to create local wetlands boards and adopt an ordinance
           regulating development in tidal wetland areas.        Local wetlands
           boards consist of 5 to 7 local residents appointed to 5 year terms
           by the local governing body. The ordinance, which may either be
           free-standing or incorporated into the zoning ordinance, must
           conform to the model ordinance set forth in the Wetlands Act. If
           a locality chooses not to adopt local wetland regulations, the
           Virginia Marine Resources Commission (VMRC) remains the permitting
           authority. Following is a discussion of the model ordinance, the
           permitting process, and the criteria used to evaluate permit
           applications.

                The Model Ordinance. All local programs must conform to the
           model ordinance in the Wetlands Act. The model ordinance:

                1.   defines vegetated and nonvegetated wetlands,

                2.   describes activities. that do not require a wetlands
                     permit,

                3.   outlines information that must be contained in the
                     application, deadlines for submitting the application,
                     and procedures for pubic hearings, and

                4.   sets forth the factors the wetlands board must use in
                     making its decision."'





                7Va. Code, Section 62.1-13.5, (1991).

                                             53









                 If the local board finds that the public and private benefits
           of a project exceed any anticipated public and private detriment
           and that a project does not violate the purposes and intent of the
           Wetlands Act, it must issue a permit.        The board may, however,
           place reasonable conditions or modifications on a permit to
           minimize the impacts on local government services and the rights                r
           of other individuals.      If the board finds that the public and
           private detriments exceed the public and private benefits, the
           board must deny the request.

                 The model ordinance also states that no permit granted by the
           wetlands board shall affect the local zoning or other land use
           ordinances. This emphasizes that the authority granted to wetlands
           boards does not supersede local land use planning and ordinance
           requirements.

                 The Permitting Process. The local wetlands board is one part
           of the review process required to develop in tidal wetlands areas.
           A project must also be reviewed by federal and state agencies. In
           order to make the issuance of permits more efficient, federal and
           state agencies and local governments in Virginia have established
           a joint permitting process. The review process is described below
           and illustrated in Figure 9.

                 1.   An application is completed by the landowner and
                      submitted to the Virginia Marine Resources Commission
                      (VMRC).    VMRC will assign a processing number to the
                      application to be used by all the regulatory agencies.

                 2.   Copies of the application are sent to the Corps of
                      Engineers (Corps) and the local wetlands board for
                      review.

                 3.   The Corps arranges a joint public notice for each
                      project. The notice is sent to adjacent property owners,
                      governmental agencies, and others who have requested the
                      opportunity to review the proposal.

                 4.   A joint site inspection is conducted by the Corps, VMRC,
                      and the local wetlands board. The agencies may request
                      technical assistance from the Virginia Institute of
                      Marine Science (VIMS) or other sources during the site
                      inspection.

                 5.   Federal and state agencies meet    monthly to consider all
                      pending applications. Each project Is impact, development
                      alternatives, and mitigation opportunities are discussed.

                 6.   If needed, any of the regulatory agencies may hold a
                      public hearing to formally review the application.



                                              54




                                                            Figure 9


                                        WETLANDS PERMIT REVIEW PROCESS


                                      APPLICATION SUBMITTED


                         VMRC logs application, assigns application numbe                      If COE Permit
                                                                                                 Required

                                          Wetlands Board                                            E Public
                Review by                                                                  7Notice
                                             Public Notice
              VMRC, VIMS    ,  4
                  VDOT,
                 VSWCB,                                                                          Day Com
              C&HR, known           Wetlands Board Public Hearing                                  Period
              claimants and
                 adjacent
                 prope             Board Fails to Act              Board Acts                -----------------
                  owners                                                                       Public Hearing
                                                                 Approval                         Potential
                                                                 Approval with               ------------------
                                                                    Modification
                                                                 Denial                        Review by EPA,
                                                                                                 FWS, NMFS
                    Decision Notice sent to VMRC and Applicant


                                                                                                COE Decision
               -Permit Fina:l           p p:e:a 1]                                             1 Approval
                                                                                                Approval with
                                                                                                    Modification
                                                                                                Denial
                                    Commission              Thirty day
                                       Hearing            waiting period         No Appeal
                                      Uphold
                                    i Reverse
                                                                                         rMit F@7-
                                      Modify                                     Final Pe         inal Permit
                                      Remand                 Appeal


                                                         Circuit Court




                Acronyms

                VMRC - Virginia Marine Resources Commission
                VDOT - Virginia Department of Transporlation
                C&HR - Virginia Department of Conservation and Historic Resources
                VIMS - Virginia Institute of Marine Science
                VSWCB - Virginia State Water Control Board
                COE - Corps of Engineers                                          Adapted from: Chesapeake Bay
                EPA - Environmental Protection Agency                             Foundation Conserving Our
                FWS - Fish and Wildlife Service                                   Welland Resources: Avenues for
                NMFS - National Marine Fisheries Services                         Citizen Participation, 1987.
                ource: The Value of @Netla-nds:- A Guide far C          1 tizens,
                          SEVPDC, 1988.









                After completion of step 5, or step 6 if needed, a decision
           is made by the agencies to approve, approve with modifications, or
           deny the proposal.        Overall, the permitting process takes
           approximately 2 to 3 months to complete.

                As stated before, decisions made by the local wetlands board
           are reviewed by the Commissioner of VMRC to ensure consistency with
           the Wetlands Act.     The applicant can appeal the Commission's
           decision within ten days.

                The Review Criteria. VMRC and VIMS have developed criteria
           for evaluating alterations to wetlands. These criteria assist VMRC
          .and local wetlands boards in regulating development activities
           within wetlands. Briefly, the general review criteria are:

                1.   Alteration of the shoreline or construction of shoreline
                     facilities may be justified in order to gain access to
                     navigable water or to protect property from significant
                     damage or loss due to erosion or other natural causes.
                     This action must not result in an unreasonably
                     detrimental affect on wetlands or marine fisheries and
                     wildlife resources.

                2.   Shoreline alteration is not justified for activities that
                     do not require water access and can be conducted on
                     uplands; for purposes of creating waterfront property             r
                     out of land not fronting navigable water; when alteration
                     will result in the damage of property owned by others;
                     when alteration results in the discharge of effluents
                     detrimental to wetlands; or when there are other
                     alternatives that can satisfy the needs of a certain
                     activity without damaging or destroying wetlands.

                3.   Open-pile type structures are preferred to solid
                     structures, dredging or filling, when used to gain access
                     to waters of sufficient depth.

                4.   Structures and other types of construction that are built
                     in wetlands should be designed to withstand the forces
                     of the marine environment.

                5.   High-density development    in and immediately around
                     wetlands should be discouraged."





                7
                6Wetlands Guidelines, Department of Wetlands Ecology, Virginia
           Institute of Marine Science, College of William and Mary and the
           Environmental   Affairs   Division,   Virginia   Marine    Resources
           Commission, (n.d.), pp. 41 - 42.

                                           56









                specific information is included in the Wetlands Guidelines
           to address shoreline protection, filling, dredging, and disposal
           of dredged material. Criteria have been developed for specialized
           structures and activities, such as channeling into fastland or
           marshes, dams and impoundments, marinas,    drainage and mosquito
           ditches, and submarine pipeline crossings.

                To receive a permit, ind 'ividuals must show the necessity of
           a wetlands location and the.unavailability of alternative sites.
           Steps must also be taken by the individual to protect the natural
           functions of the wetland and minimize development impacts          :
           Violators of wetlands regulations usually receive civil penalties,
           @owever, many localities are strengthening their penalties to
           increase compliance with the regulations.

           Chesapeake Bay Preservation Area ordinance

                The Chesapeake Bay Preservation Act and its implementing
           regulations establish an entire system for regulating development
           in and adjacent to tidal and nontidal wetlands in Tidewater
           Virginia. The regulations require or suggest many of the wetlands
           protection techniques discussed previously. These include special
           zoning categories or overlays and performance standards.         The
           specifics of how these techniques are implemented can be determined
           by a local government working in concert with the Chesapeake Bay
           Local Assistance Department.

                The Local Assistance Department has also developed a model
           ordinance for use in developing local ordinances to implement the
           Preservation Act.     This model ordinance, as well as other
           procedures and guides developed by the Department, can be used by
           localities outside the Tidewater region that desire to implement
           the Preservation Act. Among other things, the model ordinance:

                1.   defines the purpose of the ordinance as it relates to the
                     protection of water quality,

                2.   defines the areas covered by the ordinance,

                3.   establishes performance standards as they relate to
                     development   in   resource   protection   and    resource
                     management areas, and

                4.   outlines a process for establishing a water quality
                     impact assessment.

                Some localities in the Tidewater region have adopted the model
           ordinance with little or no modification.     Others have used the
           model as a guide for amending existing ordinances or creating new
           ordinances. Localities outside the Tidewater region may find the
           ordinance a helpful resource in establishing water quality and
           wetlands protection measures.

                                           57









                As stated previously, local ordinances to implement the
          Preservation Act are just now being implemented in the Tidewater
          region. In addition, Albemarle County has implemented some of the
          Preservation Act measures. Time will determine the effectiveness
          of this program in addressing water quality issues.


          WETLANDS ACQUISITION

                Development ordinances are sometimes considered to be the
          first, - and last, tool available to local governments to protect
          valuable resources.    While development ordinances are important,
          localities need to consider other tools in planning for the
          protection of wetlands and other environmentally sensitive areas.

                The acquisition of wetlands, either by a public or private
          body, is perhaps the most effective long-term wetlands protection
          tool available.    This section examines the various factors that
          local governments need to consider regarding the acquisition of
          wetlands.

          Acquisition Methods

                In discussing wetlands acquisition, it is important to keep
          in mind two types of "ownership": fee simple and easement. Each
          type of ownership has advantages and disadvantages.

                Fee Simple Acquisition.   This type of acquisition gives the
          purchaser absolute ownership of the property.            Fee simple
          acquisition can also include the purchase of a property with
          retention of a life estate by the seller; that is, the purchaser
          has title to the property, but the seller retains the right to
          remain on and/or use the property for his or her life.

                tee simple acquisition is often used by localities to obtain
          property for public purposes.        This is especially true in
          situations where public improvements will be made or the public
          will have access to the property, such as park land.

                With ownership comes the right to use the entire property as
          the purchaser sees fit. ownership also brings responsibility for
          maintaining the property and potential liability problems. - In
          addition, when property is acquired by a public body for public
          purposes, the property is no longer on the real estate   tax rolls.

                Easement Acguisition. Another approach to land acquisition
          is the purchase of an easement. An easement can be described as
          the privilege to make some special use of the property.            An
          easement can cover an entire piece of property or a certain
          specified portion. Easements can be tailored so that the property
          owner can continue to use and enjoy the property in a manner that
          is not detrimental to the purpose of the easement.

                                           58









                Generally, easements can be purchased at a cost that is less
           then the price of fee simple ownership. In addition, the purchase
           of an easement does not take the property off the local tax rolls,
           although it may affect the taxes paid as explained later. There
           are times when the purchase of an easement does not meet a local
           7overnment's needs. This is especially true where public access
           is important.

           Acquisition by Local Governments

                The Virginia Open-Space Land Act permits localities to acquire
           land for open space. According to the Act, "open space" means land
           in an urban area which is provided or preserved for:

                1.   park or recreational purposes,

                2.   conservation of land or other natural resources,

                3.   historic or scenic purposest

                4.   assisting in the shaping of the character, direction, and
                     timing of community development, or

                5.   wetlands  as defined in the Virginia Wetlands Act.

                The Act defines urban areas to include areas which are urban
           or urbanizing, including semiurban areas and surrounding areas,
           taking into consideration population   77 trends, growth patterns,
           transportation systems, and land uses  .

                A locality may acquire property through purchase, gift,
           devise, bequest, or grant.    It may also appropriate funds, issue
           and sell general obligation bonds, and levy taxes and assessments
           to accomplish the purposes of the Act. Property that is acquired
           may be obtained through the purchase of an unrestricted fee simple
           title, fee simple with reservation for right to farm or reservation
           of timber rights, or through easements or other interests in real
           estate of not less than 5 years duration.

                An important element of this legislation is the requirement
           that land acquired must be used in accordance with the local
           comprehensive plan. This requirement highlights the importance of
           considering the preservation of environmentally sensitive areas
           such as wetlands during the preparation of the local plan. While
           the Act specifically mentions the acquisition of tidal wetlands,
           localities should investigate the acquisition of nontidal wetlands
           as a means to preserve "natural resources" or to shape the
           "character (and) direction" of local growth.



                77 Va. Code, Section 10.1-1700, et seq., (1988).

                                            59









           Acquisition by other Agencies

                Local governments are not always@ able to take the lead in
           acquiring land for the protection of areas such as wetlands. This,
           may be due to budget limitations or to local concerns over public
           ownership of property.                                                     r

                Fortunately, there are public and private organizations that
           are involved in the acquisition of property for conservation
           purposes.   State agencies involved in the acquisition of land
           include the Department of Conservation and Recreation and the
           Department of Historic Resources.          Another state related
           organization involved in land acquisition is the Virginia outdoors
           Foundation.  Private conservation organizations involved in land
           acquisition include Ducks Unlimited, the Chesapeake Bay Foundation,
           the Nature Conservancy, and the National Audubon Society.

                The following describes the work of the Virginia Outdoors
           Foundation.   Also described are the provisions of the Virginia
           Conservation Easement Act, legislation which impacts the ability
           of private conservation groups to acquire easements.

                Virginia Outdoors Foundation. Created by the General Assembly
           in 1966, the Foundation was established to promote the preservation
           of open space lands and to encourage private gifts of money,
           securities, land, or other property to preserve the natural,
           scenic, historic, scientific, open-space, and recreation areas of
           the Commonwealth . 7' To this end, it assists landowners in their
           efforts to protect private property and encourages the public
           policy of preserving open space.

                The Foundation is authorized to accepts gifts and bequests of
           money and other property. It can hold real property or any other
           interest in real property (such as easements) for the preservation
           of open space lands. According to the Foundation, the open space
           easement is one of the strongest land preservation tools available
           short of outright fee ownership of land.

                The Foundation recognizes that the Commonwealth has many
           special areas which should be protected in a comprehensive manner.
           Like other organizations, it does not have unlimited resources.
           Therefore, as a state body, the Foundation focuses its efforts and
           resources on areas of state-wide significance.     To this end, it
           has developed a series of easement donation guidelines for
           identifying open spaces for protection efforts and for evaluating
           specific parcels of land.

                The Foundation uses three documents to identify potential
           easement projects.   These are the Critical Environmental Areas


                78Va. Code, Section 10.1-1800, et seq., (1988).

                                           60









           Survey prepared in 1972 by the then Division of State Planning and
           Community Affairs, the Virginia Outdoors Plan, and local
           comprehensive land use plans.    In addition, the Foundation has
           developed a series of points to consider when evaluating specific
           sites for easement acquisition. These points are:

                1.   geographic location, intensity of development, type of
                     resource, and property characteristics;

                2.   specific conservation values on the site such as
                     wetlands, wildlife habitat, biological          diversity,
                     historic resources, prime agricultural land, and scenic
                     values;

                3.   parcel size and the number of retained subdivision
                     rights; and

                4.   other featur es which could alter the use of the
                     guidelines such as topography that permits greater
                     density without threatening the conservation value."

                As stated previously, the Foundation must focus on areas that
           have a state-wide significance.    Therefore, it encourages local
           governments to start their own programs using the authority granted
           by the Open-Space Land Act.      To this end the Foundation, in
           cooperation with the Chesapeake Bay Foundation and the Attorney
           General's officel is developing an implementation manual for the
           Open-Space Land Act, which should be available in late 1992. In
           the interim, local governments may want to consider using the
           Foundation's guidelines for evaluating potential acquisitions.

                It is important to note that the Foundation uses local
           comprehensive plans in its evaluation review.      This emphasizes
           again the importance of identifying areas such as wetlands on the
           local comprehensive plan.

                Virginia Conservation Easement Act.     Passed in 1988, this
           legislation permits charitable corporations, associations, and
           trusts to acquire conservation easements.80 Prior to the passage
           of the Act, there was some uncertainty over the ability of non-
           profit organizations to purchase easements in Virginia. Therefore,
           organizations chose to either purchase the fee and retain ownership
           or sell the property and keep an easement. Easements were rarely,
           if ever, purchased.     The Act clarified the rights of these
           organizations to purchase easements.


                "A full discussion of these guidelines can be found in
           Virginia Outdoors Foundation: Encouraging the Preservation of Open
           Space, (1991?).

                80Va. Code, Section 10.1-1009, (1988).

                                           61









                The Act requires that organizations involved in the purchase
           of easements be tax exempt and formed primarily for the purpose of
           retaining or protecting natural or open space values of real
           property, assuring the availability of real property for
           agricultural, forestal, recreational, or open space use, protecting
           natural resources, maintaining or enhancing air or water quality,
           or preserving historic, architectural, or archaeological aspects
           of property.   As with other conservation legislation, easements
           have to be in conformance with the local comprehensive plan at the,
           time the easement is granted.

           Tax Considerations

                There can be federal, state, and local tax advantages for
           individuals that sell, give, or otherwise transfer all or a portion
           of their ownership rights in land that contains wetlands.            A
           complete discussion of these tax laws is beyond the scope of this
           report.   However, localities interested in preserving wetlands
           through acquisition need to be aware of the types of tax advantages
           currently available.

                Federal and state laws permit tax deductions for the donation
           of gifts of property. Deductions are also allowed for the donation
           of easements that are given in perpetuity.       The granting of an
           easement may also reduce any gift taxes due on property given to
           another individual.

                The donation of an open space easement results in a potential            16
           lowering of federal estate taxes and Virginia inheritance taxes.
           This is due to the reduction in the value of the property caused
           by the loss of development value foregone by the donation of a
           conservation easement.

                The donation of an easement can also impact the real estate
           taxes due on property. A land owner's assessment for real estate
           taxes is based on the fair market value of the land, measured by
           the potential highest sale price. The granting of an easement can
           eliminate some of the development potential of a piece of property,
           thereby lowering or stabilizing the real estate taxes due.

                These tax advantages can prove to be a major incentive to
           individuals who desire to preserve areas such as wetlands, but wish
           to retain ownership.    On the negative side, these programs can
           cause local governments to forgo some tax revenues."



                "Virginia's Heritage:    A Property Owner's Guide to LZesource
           Protection.   Department of Conservation and Historic Resources,
           (1988), pp. 24 - 25. This booklet covers a wide range of issues
           that individuals interested in preserving resources may find
           helpful.

                                            62











           LAND VALUE ASSESSMENT

                In addition to the tax advantages discussed above, localities
           are authorized to offer individuals real estate tax incentives for
           taking action to preserve land for open space, forestal, and
           agricultural purposes. These incentives can have positive impacts
           on efforts to preserve and protect areas such as wetlands.       The
           laws which authorize these incentives are the Virginia Land Use
           Assessment Law and the Agricultural and/or Forestal Act.

           Special Land Use Assessment

                Section 58.1-3229, et seq., of the Code establishes the
           Virginia Land Use Assessment Law. The legislation states that the
           preservation of real estate for agricultural, horticultural,
           forest and open space use is a matter vital to the Commonwealth.
           Furthe@more, it is in the public interest to:

                1.   encourage the preservation and proper use of real estate
                     to assure a readily available source of agricultural,
                     horticultural and forest products, and open spaces within
                     reach of population concentrations,

                2.   conserve natural resources in forms that will prevent
                     erosion,

                3.   protect adequate and safe water supplies,

                4.   preserve scenic natural beauties and open spaces,

                5.   promote proper land use planning and the orderly
                     development of real estate for the accommodation of an
                     expanding population, and

                6.   promote a balanced economy and ease pressures which force
                     the conversion of real estate to more intensive uses.

                To accomplish the above, the legislation provides for the
           classification, special assessment, and taxation of such property
           in a manner that promotes its preservation. Localities that have
           adopted a land use plan may adopt an ordinance to provide for the
           use value assessment and taxation of land covered by this
           legislation. This, in effect, allows land to be assessed and taxed
           at its use value, as opposed to the development value of the
           property. This can.have a significant impact on the taxes paid on
           some property.

                The legislation contains minimum acreage requirements for
           property to qualify for land use assessment. Real estate devoted
           to forest uses must be a minimum of 20 acres.         Agricultural,
           horticultural, and open space lands must be a minimum of 5 acres.
           Localities may,    by ordinance,    reduce the minimum acreage

                                           63









           requirement for open space land to two acres under certain
           conditions. These conditions include land that is adjacent to a
           scenic river, a scenic highway, a Virginia Byway, or public
           property in the Virginia Outdoors Plan.

                The legislation also contains use requirements for property
           to qualify.    For example, to qualify for open space assessment,
           land must be provided or preserved for:

                1.    park or recreational purposes,

                2.    conservation of land or other natural resources,

                3.    floodways,
                4.    historic or scenic purposes, or                                    r
                5.    assisting in the shaping of the character, direction, and
                      timing of community development.

                The  land must be used in a manner consistent with the local
           land use  plan. In addition, the land must be in an agricultural
           or forestal district, subject to a perpetual easement held by a
           public body, or subject to a recorded commitment (such as an
           easement) entered into by the landowner with the local government.
           This commitment must state that the landowner will not change the
           use of the property to a nonqualifying use for at least four years
           but not more than ten years.

                The Commissioner of Agriculture and Consumer Services, the
           State Forester, and the Director of the Department of Conservation
           and Recreation are charged with developing standards which amplify
           the general standards set out in the legislation. These standards
           are set forth in the Supplement to the Manual of the State Land
           Evaluation Advisory Council: Standards for Classification.

                The supplement defines the term "land" as it relates to open
           space use to include water, submerged land, wetlands, marshes, and
           similar properties.    Furthermore, the supplement states that the
           term "conservation of land or other natural resources" includes
           lands that are provided or preserved for forest preserves, bird or
           wildlife sanctuaries, watershed preserves, nature preservest
           arboretums,   marshes,    swamps,,  and   similar   natural     areas.
           Floodplains include lands that are provided or preserved for tidal
           and nontidal wetlands, such as swamps, bogs, and marshes. A model
           Open Space Use Agreement is also provided.   12



                82 SuMlement to 'the Manual of the State Land Evaluation
           Advisory Council:      Standards for Classification, (Richmond,
           Virginia: State Land Evaluation Council, 1989), pp. 3 - 5.

                                            64








                 When property that has been subject to use assessment is
            rezoned to permit nonqualifying uses or the use is changed,
            additional taxes are due. This is called a roll-back tax which is
            equal to the sum of the deferred tax (the difference between the
            levied tax and the tax on fair market value) for the last five
            years plus simple interest.

            Agricultural and/or Forestal Districts

                 Another program that can provide an incentive to preserve land
            in its existing state is the Agricultural and Forestal District
            Act. The stated purposes of the Act are to conserve and protect
            agricultural and forestal lands for the production of agricultural
            and forestal products and to conserve and preserve these lands "as
            valued natural and ecological resources which provide essential
            open space for clean air sheds, watershed protection, wildlife
            habitat, as well as aesthetic purposes.     ,83 This program is similar
            to the special assessment legislation, but is specifically aimed
            at the protection of agricultural and forestal lands.

                 The Act permits local governments to enact ordinances which
            allow the formation of agricultural and/or forestal districts. This
            is a voluntary program, that is, agricultural and forestal
            districts are formed by petition of one or more property owner(s) .
            Upon receipt of the first appl:ication for a district, the local
            government must establish an advisory committee to advise the
            planning commission and the governing board and assist in creating,
            reviewing, modifying, continuing, and terminating districts. Each
            district must contain at least 200 acres in one or more contiguous
            parcels, although the district can be located in more than one
            locality.

                 When creating or adding to existing districts, localities are
            to consider the agricultural and forestal significance of the land
            within or adjacent to the proposed district.               In addition,
            localities are to consider:

                 1.    land development patterns,

                 2.    the comprehensive plan, and if applicable, the zoning
                       ordinance,

                 3.    the environmental benefits of retaining the land in the
                       district for agricultural and forestal uses, and

                 4.    any other matter which may be relevant     .84



                 eVa.  Code, Section 15.1-1507, (1990).

                 8Va.  Code, Section 15.1-1511(C), (1990).

                                               65









               Any districts formed must be reviewed after no less than four
          but no more than ten years.       In conducting this review, the
          governing board shall ask for a recommendation from the advisory
          committee and the planning commission. The district can then be
          continued, modified, or terminated.

               Property that is in a district can be withdrawn by the
          property owner at any time. Property withdrawn from a district is
          subject to roll-back taxes    I as discussed under special use
          assessments.

               The advantages of this Act to the property owner are similar
          to those of the Special Land Use Assessment Law. In addition, land
          in these districts is exempt from local ordinances that
          unreasonably restrict or regulate farm structures or farming or
          forestry practices. Furthermore, local ordinances, comprehensive
          plans, and land use decisions affecting adjacent property are
          required to consider the existence of these districts and the
          purpose of the Act.85


          THE TAKINGS ISSUE
               The most controversial legal question surrounding wetlands            F
          regulations is the question of whether the regulations constitute
          a taking. That is, do the regulations that limit land use activity
          within or near wetlands constitute a taking of the property owner's
          development rights and therefore require the property owner to be
          compensated? While a discussion of all legal points involved in
          this issue is beyond the scope of this report, there are several
          comments that can be made.

               The takings issue involves the Fifth Amendment of the United
          States Constitution which prohibits the taking of private property
          foIr public use without just compengation." The takings clause was
         .first established to address the physical seizure of land by the
          government. Later, the takings clause was broadened to apply to
          the impact of regulations on land.

               Court interpretations of the takings issue have varied, being
          heavily determined by the facts involved in each individual case.
          Recent federal cases that have addressed the issue of takings
          include:



               "There is also a Local Agricultural and Forestal Districts
          Act, Va. Code, Section 15.1-1513.1, (1991). This act applies to
          localities with the urban county form of government and certain
          adjacent counties.

               86Liebesman, p. 10-1.

                                          66









                 United States v. Riverside Bayyiew Homes, 106 S. Ct. 455, 16
                 ELR20086 (1985),

                 Keystone Bituminous Coal Association v. DeBenedictus, 107 S.
                 Ct. 1232, 17 ELR20440 (1987),

                 First Enc7lish Evangelical     Lutheran Church of Glendale v.
                 County of Los Angeles 107 S. Ct. 3141, 17 ELR20787 (1987), and

                 Nollan v. California Coastal Commission, 107 S. Ct. 3141, 17
                 ELR20918 (1987).

                 On March 18, 1988, President Reagan issued Executive Order
            12630,   entitled "Government Actions and Interference with
            Constitutionally Protected Property Rights". This action was taken
            in light of the Nollan and First English cases cited above. It was
            stated at the time that the purpose of this Executive Order was to
            ensure that the constitutionally guaranteed right to private
            property was protected and to protect the federal government from
            unnecessary takings liabilities."

                 The U. S. Attorney General I s Of f ice has issued guidelines which
            require federal agencies such as the Corps and EPA to consider the
            implications of an action by that agency on the economic viability
            of a property where a permit has been requested.             A Takings
            Implication Assessment (TIA) must be performed for any Section 404
            permit that is denied.      The full implication of     this executive
            order on federal wetlands regulations is not clear at this time.8'

                 Several bills have been submitted in Congress      that deal with
            wetlands regulations and private property rights.       Therefore, one
            must assume that this issue will continue to be         debated on the
            federal level.

                 There are some guidelines that local governments should keep
            in mind when considering local wetland regulations and the takings
            issue. These guidelines are as follows:

                 1.    "Regulations adopted for a valid public purpose and
                       with an adequate basis in fact may substantially
                       reduce land values without effecting a taking.

                 .2.   The impact of regulations must be evaluated for an
                       entire piece of property (not just one portion) to
                       determine whether a taking has occurred.




                 117 Want, p. 10-14.

                 "Ibid., p. 10-4.

                                               67









               3.   Public safety and the prevention of nuisances are
                    paramount concerns of government, and no landowner
                    has an intrinsic right to threaten public safety or
                    cause nuisances.

               4.   Regulations will result in a taking only if they
                    deny "all use" or all "economic use" of an entire
                    property, including reasonable "investment -backed
                    expectations". Even then, regulations may be valid
                    under certain circumstances.1189

               With this said, local governments are advised to seek   legal
          counsel when considering any land use regulations.         This is
          especially true in the volatile area of wetlands regulations.



































               "Burke, Meyers, Tiner, and Groman, p. 28.

                                          68













                                        CONCLUSION


                The introduction stated that any report on wetlands will be
           out of date as soon as it is published.      True to form, several
           changes have occurred regarding wetlands since this report was
           begun.   Even nowl the federal government is considering several
           pieces of legislation which may change wetlands policies.        With
           this said, several conclusions can be drawn regarding wetlands.

                1.   Wetlands are not the waste lands they were once
                     considered. While all wetlands are not created equally,
                     wetlands do provide a variety of benefits.

                2.   Proposed legislation not withstanding, the federal
                     government has and will continue to regulate certain
                     aspects of development in wetlands.        This role may
                     change, as might the definition of a wetland, but it is
                     doubtful that this role will disappear.

                3.   The Commonwealth will continue to be involved in wetlands
                     regulations.      Recent    initiatives   addressing    the
                     Chesapeake Bay and continuing discussions of nontidal
                     wetlands legislation appear to bear out this thinking.

                4.   The role that local governments play in wetlands
                     protection will continue to grow. This is evidenced by
                     recent changes in local planning and zoning authority
                     regarding environmentally sensitive areas.

                5.   Local governments have a variety of tools at their
                     disposal to protect wetlands while still allowing
                     necessary development to occur. These tools include the
                     comprehensive plan and development ordinances.

                6.   Land acquisition and special land use assessment
                     techniques can also be part of a local wetlands
                     protection program.     A variety of state and private
                     agencies are available to assist local governments with
                     land acquisition.

                7.   Governments which institute wetlands protection measures
                     have to recognize the potential impacts these actions
                     have on private property rights.       The Constitutional
                     issue of takings is and will continue to be an important
                     issue at federal, state,,and local levels.

                one purpose of this report is to demonstrate that wetlands
           protection need not be thought of separately from other planning
           activities. A variety of tools have been discussed. Hopefully,
           the information presented herein will lead to more discussion and,
           more importantly, action regarding wetlands protection.

                                            69














                                         APPENDIX


                              FINDINGS AND RECOMMENDATIONS
                                          OF THE
                         VIRGINIA NONTIDAL WETLANDS ROUNDTABLE

                The Virginia Nontidal Wetlands Roundtable pursued its study
           of issues related to management of the Commonwealth's nontidal
           wetlands resources as directed by the 1989 Virginia General
           Assembly. The study was conducted within the framework established
           by the 1987 Chesapeake Bay Agreement, the Living Resources
           Commitments which followed from the Agreement, and the 1988
           Chesapeake Bay Wetlands Policy. Roundtable members concluded the
           while effective management of nontidal wetlands should be of
           immediate and continuing concern to the Commonwealth, creation of
           a new regulatory program for the resource may be premature at this
           time. The Roundtable believes that the state should immediately
           take steps to: enhance, coordinate and assess existing programs;
           institute continuing educational, research and incentive based
           preservation programs; and develop a current inventory of the
           resource.     Once these efforts have been undertakenf            the
           Commonwealth will be better able to determine both the need and
           appropriate design for any new regulatory program. In developing
           this general conclusion, the Roundtable's deliberations led its
           members to make the following specific recommendations for action.


           RECOMMENDATIONS

                1.   The Virginia General Assembly should enhance the funding
                     and staffing provided to the State Water Control Broad
                     for its Section 401 water quality certification
                     responsibilities related to nontidal wetlands.

                2.   Virginia should decertify the U.S.. Army Corps of
                     Engineers Nationwide Permit No. 26 and any other
                     nationwide permit which the State Water Control Board
                     deems to impair protection of Virginia water quality.

                3.   The Department of Agriculture and the Division of Soil
                     and Water Conservation of the Department of Conservation
                     and Recreation should utilize, to the extent practical,
                     the Department of Forestry model of nonregulatory
                     interaction with its constituency, emphasizing education,
                     voluntary compliance, peer review and monitoring to help
                     minimize adverse effects on nontidal wetlands resulting
                     from agricultural practices.




                                            71









                4.   A comprehensive assessment of existing state programs
                     should be undertaken with the goals of identifying how
                     each program affects nontidal wetlands, how the programs
                     overlap or interact with one another in nontidal
                     wetlands, where opportunities for effective coordination
                     among programs exist and where new or enhanced programs
                     are needed.

                5.   All state programs affecting nontidal wetlands should
                     incorporate recognition of Commonwealth policy for
                     management of nontidal wetlands which seeks a short term
                     goal of no net loss in acreage and function and a longer
                     term goal of net resource gain in wetland acreage and
                     function over present conditions.

                6.   State programs affecting nontidal wetlands should define
                     wetlands as: Those areas that are  inundated or saturated
                     by surface or groundwater 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.
                     Wetlands generally include swamps, marshes, bogs, and
                     similar areas.

                7.   The federal procedures for delineation of wetlands should
                     be included by reference in any state regulatory program.

                8.   All state programs or activities affecting nontidal
                     wetlands should incorporate goals to avoid impacts on
                     nontidal wetlands whenever possible, to minimize impacts
                     when they cannot be avoided, and to seek full
                     compensation for any impacts which occur.

                9.   Virginia should encourage and support research on the
                     structure and function of nontidal wetlands with the goal
                     of full elucidation of their functions.

                10.  The Commonwealth should make an immediate and continuing
                     commitment to education of legislators, local government
                     officials, and citizens on the scientific, legal, and
                     political aspects of nontidal wetland management.

                11.  Virginia should make a   commitment to the establishment
                     and maintenance of a current inventory of the
                     Commonwealth's nontidal wetland resources.

                12.  The Commonwealth should pursue implementation of as many
                     types of incentives to preserve nontidal wetlands as
                     possible.

                13.  Virginia should not pursue assumption of the federal
                     Section 404 regulatory program at the present time.

                                           72














                                       BIBLIOGRAPHY



           1987 Chesapeake Bay Agreement. 1987.

           Burke, David, Erik J. Meyers, Ralph W. Tiner, Jr., and Hazel
                Groman.    Protecting Nontidal Wetlands.     Planning Advisory
                Service Report No. 412/413.      Chicago:    American Planning
                Association, 1988.

           Chesapeake Bay Wetlands Policy.       Annapolis, Md.:      Chesapeake
                Executive Council, 1988.

           Conserving   Our   Wetland   Resources:      Avenues   for    Citizen
                Participation. Chesapeake Bay Foundation, 1987.

           Federal Manual for Identifying and Delineating Jurisdictional
                Wetlands.   A cooperative technical publication of the U.S.
                Army Corps of Engineers, U. S. Environmental Protection Agency,
                U.S. Fish and Wildlife Service, and             U.SiD.A. Soil
                Conservation Service. Washington, D.C.: Federal Interagency
                Committee for Wetland Delineation, 1989.

           Kusler, Jon A.     Our National Wetland Heritage:      A Protection
                Guidebook. Washington, D.C.: Environmental Law Institute,
                1983.

           Liebesmanl Lawrence R.    A Developer's Guide to Federal Wetlands
                Regulations. Washington, D.C.: National Association of Home
                Builders of the United States, 1990.

           Report of the Virginia Department of Conservation and Historic
                Resources,   Division of Soil and Water Conservation:
                Implementation Effectiveness of the Virginia Erosion and
                Sediment Control Program. House Document No. 54. Richmond,
                Va.: Commonwealth of Virginia, 1990.

           Report of the Vircrinia Nontidal Wetlands Roundtable to the Governor
                and the General Assembly of Virginia. House Document No. 54.
                Richmond, Va.: Commonwealth of Virginia, 1990.

           Salvesen, David. Wetlands: Mitigating and Regulating Development
                Impacts. Washington, D.C.: Urban Land Institute, 1990.

           Sather, J.H. and R.D. Smith.       An Overview of Malor Wetlands
                Functions and Values. U.S. Fish and Wildlife Service, 1984.

           Supplement to the Manual of the State Land Evaluation Advisory
                Council: Standards for Classification. Richmond, Va.: State
                Land Evaluation Advisory Council, 1989.

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           Tiner, Ralph W., Jr.       Mid-Atlantic Wetlands:      A Disaippearing
                 Natural Treasure. U.S. Fish and Wildlife Service, 1987.

           Tiner, Ralph,W., Jr.      Wetlands of the United States:        Current
                 Status and Recent Trends.     U.S. Fish and Wildlife Service,
                 1984.

           The Value of Wetlands:     A Guide for Citizens.     Chesapeake, Va.:
                 Southeastern Virginia Planning District Commission, 1988.

           Virginia Outdoors Foundation: Encouraging the Preservation of Open
                 Space. Richmond, Va.: Virginia Outdoors Foundation, 1991?.

           Virginia's Heritage:       A Property Owner's Guide to Resource
                 Protection.   Richmond, Va.:    Department of Conservation and
                 Historic Resources, 1988.

           Walker, W.R. and S.C. Richardson.      "The Federal Wetlands Manual:
                 Swamped by Controversy." Special Report No. 24. Blacksburg,
                 Va.:   Virginia Water Resources Research Center, VPI & SU,
                 1991.

           Want, William.    Law of Wetlands Regulations.      New York:      Clark
                 Boardman Company, Ltd., 1991.

           Wetlands Guidelines.     Department of Wetlands Ecology, Virginia
                 .Institute of Marine Science, College of William and Mary and
                 Environmental Affairs Division, Virginia marine Resources
                 commission, n.d.

           "Wetlands Mitigation-Compensation Policy."           VR 450-01-0051.
                 Virginia Marine Resources Commission, 1989.

           Wetlands    Protection:      A    Handbook   for    Local    Officials.
                 Environmental Planning Information Series Report # 7.
                 Harrisburg, Pa.:    Pennsylvania Department of Environmental
                 Resources, 1990.


















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