Waters of the U.S. – Where is the line in Virginia?  

2023 has been a banner year for wetland regulations.  On January 18, 2023, the US Government published the latest Definition of Waters of the U.S. (January 2023 WOTUS Rule).  This was published knowing that revisions to this rule were likely to occur based on the Supreme Court’s opinion on the Sackett v. Environmental Protection Agency (EPA) Case. The Sackett decision determined that only wetlands with a continuous surface connection with waters were protected under The Clean Water Act.

Two Major Changes to the Definition of U.S. Waters

In a landmark ruling, the Supreme Court decision really affected two main aspects of the Definition:

No More Nexus

Removes the term “Significant Nexus” and the “significant nexus test” from the Definition of Waters of the US.  This test was inserted into the definition as part of the Supreme Court case Rapanos v. United States in 2008, which allows the EPA and Corps of Engineers to extend jurisdiction to tributaries, ponds, wetlands if they had connection (nexus) that allowed them to remain connected to traditional navigable waters or relatively permanent waters if they had a “material influence on the chemical, physical or biological integrity of waters of the United States.”

Revisions to Wetlands’ Definitions

The Court also revised the definition of the term “Adjacent Wetland.”  Since the 1980s, wetlands adjacent to territorial seas, interstate waters, along with waters used for interstate commerce and their tributaries were regulated under the Clean Water Act (CWA).  It was largely understood that a jurisdiction wetland was a system that was neighboring or contiguous.

The Supreme Court in the Sackett Decision went further back in reviewing the CWA legislation and determined that the term adjacent became too broad over time.  They instead decided to limit the term so that only wetlands that have a “continuous surface connection,” can be regulated and therefore “jurisdictional.”

How Regulatory Agencies Have Responded to Definition Changes

In response, on August 29, 2023, the US EPA and the US Army Corps of Engineers released the pre-published Rule: Revised Definition of ‘Waters of the United States.’  In the introductory portion of this recent rule, they simply revised the January 2023 WOTUS Rule to make it comply with the Supreme Court decision and no public comment was solicited.

To make things more interesting, the Continental US is not all operating under the January 2023 WOTUS Rule.  Only 23 states are following the January 2023 WOTUS Rule.  Virginia, along with 26 other states, in a prior court decision, are working under the pre-2015 WOTUS Rule.  Even though the pre-2015 regulatory regime does not include the term “significant nexus”, it will be revised for consistency with the Sackett Decision with respect to “adjacent wetlands” and other appropriate terms.  The map below, shows which states are operating under which regulatory regime.

How Does This Likely  Affect What is Jurisdictional for Your Project?

For the Commonwealth of Virginia, formal guidance from the Corps of Engineers’ Headquarters as well as the Norfolk District has not been released.  What we can ascertain from the rulings is, the following:

  • First of all, tributaries can no longer be tested for significant nexus in the field.  Instead, tributaries have to be “relatively permanent, standing or continuously flowing bodies of water”.  Intermittent streams will still be jurisdictional since the plurality decision in the earlier case explained that relatively permanent waters (RPW) doe not “necessarily exclude streams, rivers or lakes that might dry up in extraordinary circumstances, such as drought” or “seasonal rivers which contain continuous flows during some months of the year but no flow during dry months”.
  • Ephemeral streams, or stormwater driven systems, however, will likely not be jurisdictional in the eyes of the EPA and Corps.
  • The Sackett decision, more greatly affects “adjacent wetlands.”  Jurisdictional Wetlands will now only include those that are directly connected to Waters of the US by a continuous surface connection, so that there is no clear demarcation between the two systems.  Wetlands separated by a natural berm, or other obstruction will no longer be EPA/Corps Jurisdictional.  This includes truly isolated wetlands.

While the limits of jurisdiction at a federal level will be reduced, in the Commonwealth of Virginia, wetland loss will not be as drastic as The New York Times describes.

How Virginia Protects Its Wetlands

The Virginia Water Protection Permit Regulations, passed in 2000, defines State Waters to include “all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.” These robust wetland state regulations will capture isolated wetlands and ephemeral streams not captured by federal jurisdiction.

Furthermore, the Virginia Department of Environmental Quality (VDEQ) is stepping forward with implementing its own State Water Delineation process to confirm the limits of state waters and wetlands, which will allow their permits to be initiated regardless of whether the USACE has issued a Preliminary or Approved Jurisdictional Determination for a particular tract of land.

Townes is Prepared for Your Next Project in Virginia

Fortunately, at Townes Site Engineering we are well positioned to keep your project moving forward.

Our staff of certified Professional Wetland Delineators are taking the necessary steps to become certified as Virginia State Water Delineators (VSWD) with VDEQ. Townes already has team members with the brand new state certification, ready to tackle projects in Central Virginia. A benefit of this certification is that “DEQ will prioritize State Surface Waters Delineation (SSWD) Reviews by a certified individual ahead of other SSWD requests.”

This will ultimately increase the processing and efficiency of obtaining a Virginia Water Protection Permit.  Upon review of a complete Delineation Report, DEQ’s goal is to issue its verification within 30 days unless a field verification is needed.

To learn more about how Townes can keep your projects on track with ease, contact us today for expert environmental and civil engineering services.