The Benefits of Wetlands
Legal Protections for Wetlands in Virginia
Wetlands Mitigation
Is This System Working to Protect Wetlands?


The Benefits of Wetlands

Wetlands play an essential role in maintaining clean, healthy waterways by moderating the overland flow of water to streams, reducing runoff pollution and erosion. Wetlands sequester pollutants, keeping them out of streams and rivers and allowing them to biodegrade when possible. They also contain runaway sediment, which can contribute other forms of contamination by allowing microorganisms to bind to the soil particles.

By absorbing water from heavy rainfall, wetlands reduce property damages from storms and floods. Since the water does not flow quickly away from the landscape, it can seep into the earth and recharge ground water supplies or it can evaporate into the air or transpire through the leaves of plants. Wetlands thus allow a landscape to absorb and recycle water, reducing the likelihood and severity of droughts. Wetlands also provide rich habitat for animals and plants, and in doing so offer people opportunities for hunting, fishing, or birdwatching.

Legal Protections for Wetlands in Virginia

Section 404 of the federal Clean Water Act requires that damage to wetlands should be 1) avoided, 2) minimized, or 3) compensated, in that order of priority. The act prohibits the discharge of dredged or fill material into U.S. waters, including wetlands, if any practical alternative exists. Federal policies set a goal of "no net loss" of wetlands, so that the total acreage and the total function of wetland resources will be either maintained or increased.

Virginia supports the federal "no net loss" policy and goes further, pursuing a goal of a net gain of 10,000 acres of wetlands by the year 2010. This goal includes 6,000 acres within the Chesapeake Bay Watershed and 4,000 acres outside of it. State regulations also strengthen federal regulations by protecting isolated wetlands, which the U.S. Supreme Court has ruled outside of federal jurisdiction.

Federal wetlands regulation is administered through the Army Corps of Engineers and the Environmental Protection Agency, while state regulation is administered through the Virginia Department of Environmental Quality. Local jurisdictions vary in their approach to wetlands, often leaving oversight to the State and Federal permitting agencies. Localities are, however, the first line of defense for protecting wetlands. A locality can take several steps to improve wetland protection:

• Complete a wetlands inventory or model to accurately assess potential impacts
• Adopt ordinances that provide wetland and riparian buffer protections
• Coordinate permitting and approval process with the State and Federal agencies
• Require proof of permits before approving ground disturbing permits
• Identify locations suitable for wetland mitigation banking

Wetlands Mitigation

Wetlands mitigation refers to all three aspects of the federal mandate to first avoid, then minimize, and if necessary compensate any loss of wetlands. Compensatory mitigation can involve any of the following:

• Restoration or creation of wetlands
• Purchase or use of credits from a wetland mitigation bank
• Contribution to an in-lieu fee fund
• Preservation of existing wetlands, along with other compensation measures

A mitigation bank is a created or restored wetland that is earmarked to compensate for wetland losses. Parties responsible for wetlands compensation can purchase credits from the mitigation bank.

In lieu fees are paid to public agency or non-governmental organization, which agrees to create or restore the necessary wetlands.

Preservation alone is not considered a sufficient form of compensation.
(Source: Restoring Virginia's Wetlands: A Citizens' Toolkit)
Wetlands must be compensated according to the following rations:

• 2 acres compensation for each 1 acre of impact for forested wetlands (2:1)
• 1.5:1 for scrub-shrub wetland impacts
• 1:1 for emergent wetland impacts.

(Source: Virginia Department of Environmental Quality)

Is This System Working to Protect Wetlands?

State and federal protections have slowed the loss of wetlands in Virginia-approximately 42% of which were already lost by the 1980's. But despite the policy of "no net loss," wetlands are still disappearing. A number of factors undermine the public goal of conserving wetlands:

• Deceptive tactics: Some unscrupulous developers conduct wetlands surveys during the hottest and driest months of the year and mow the land to obscure the presence of wetland plants.
• Compliant consultants: Wetlands consultants, whose fees are usually paid by developers, may comply with their desire not to fully identify the areas.
• Faulty "replacements": Artificial wetlands created through mitigation projects may offer paltry benefits compared to a natural wetland and many dry up after a short period of time.
• Understaffed agencies: The state and federal agencies charged with enforcing regulations are inadequately staffed and so they rely on the information reported by developers
• Low prioritization at the local level: Often, the local permitting process takes a hands-off approach to wetlands or treats wetlands as an apparent afterthought, once developers have already gained clearance for their projects.
• Need for citizen watchdogs: Local citizens are not always aware of wetland losses occuring in their community and they don't know how to get involved. The Wetlands Watch advocacy guide is a good place to start.