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Wetlands and Stream Protection


Prior to the new federal Navigable Waters Protection Rule (NWPR), the Corps of Engineers (USACE) and DEQ-VWP Program regulated essentially the same physical waters.  This overlap allowed a streamlined process in which the USACE confirmed the extent of aquatic resources on-site.  If the project qualified for a Nationwide Permit (NWP), for which DEQ provided Section 401 Certification, then no additional Virginia Water Protection (VWP) permit was required.  Because of the changes in the NWPR, this is no longer the case.  The regulated public and DEQ’s VWP Permit staff must now change our practices to prevent unauthorized impacts to state surface waters, which may not be captured or covered by the federal process.

As this situation unfolds in the upcoming months, DEQ will be working to develop processes for the public and VWP Permit staff to facilitate efficient and consistent decision-making.  In the meantime, please read the following, and adjust accordingly to streamline the permitting process to avoid delays for everyone.  

Jurisdictional Approval Process

If you are working on projects that have wetlands, streams, and/or open waters that are no longer federally jurisdictional, please contact the regional VWP Permit staff as early in the process as possible to reach concurrence on the extent of state surface waters on the site. 

It is our understanding that the USACE’s Preliminary Jurisdictional Determination (PJD) process will result in a determination of all aquatic resources, including state surface waters.  If the USACE issues you a PJD that includes all aquatic features on-site, this should include all state surface waters, and additional concurrence from DEQ would not be necessary.  Alternatively, the USACE's Approved Jurisdictional Determination (AJD) process will identify only those surface waters meeting the current federal definition.  If you are receiving an AJD for your project site and the AJD does not include all surface waters on the site, then the project needs a state surface waters determination from DEQ. 

To obtain concurrence of the extent and location of all surface waters on the project site, you can include DEQ staff in scheduling the jurisdictional confirmation with the USACE or submit the delineation package to DEQ after the USACE’s JD process is complete.  The request for DEQ’s concurrence with state surface waters on the site should be submitted to DEQ concurrently or after the USACE AJD process but before you submit a Joint Permit Application (JPA) for the project.  Ensuring that all surface waters are mapped correctly will allow the applicant to make sound planning decisions prior to submitting the JPA.   

If your project requires a state surface waters determination, generally, the USACE jurisdictional determination request package, including data sheets, photographs and when applicable, stream assessment forms that you have submitted to the USACE will be sufficient information for DEQ, assuming all surface waters are assessed and documented.  However, in the event that your project does not contain any federally jurisdictional waters on the site and you are submitting only to DEQ, we are developing a checklist to assist you in submitting all the necessary information.

When VWP Permit staff receives such requests, we will work with the project representative to verify and reach concurrence on state surface waters on-site.

Identifying Wetlands On-Site: The VWPP Regulations require that wetlands be delineated in accordance with the 1987 Wetland Delineation Manual and regional supplements.  Therefore, DEQ does not anticipate a change in the extent of wetlands associated with projects, just a change in whether a USACE permit is required for all, some, or none of the wetland impacts.

Identifying Streams On-site:  Consistent with how the program has been operating with the USACE, VWP Permit staff will consider stream channels that meet DEQ’s definitions as features when there is a streambed, defined stream bank, and ordinary high water mark.  Because of the changes in the NWPR, the USACE may not require authorization for all stream channels on the site, such as those classified as ephemeral.  However, a VWP permit or coverage would be required for all stream impacts that meet the criteria above.

Nationwide Permit Process

DEQ’s current Section 401 Certification of the existing (2017) Nationwide Permits (NWPs) is still valid.  However, recent changes to the definition of federal waters, and proposed changes to the NWPs, may result in future NWP authorizations that do not include coverage of state surface waters on a project site.  For projects with impacts to state surface waters not covered by any 2020 amended NWP authorization, a VWP permit  would be required for the remaining impacts on the site. Thank you for taking the time to read this email.  If you have any questions about a project or this email, please contact the VWP Permit Program Regional Manager that covers your location.  Their contact information can be found at Contacts page. Additional Information about the Virginia Water Protection Program is provided below for your information.

Virginia Water Protection Permit Program Authority Background

It is important for those working in the environmental permitting industry to understand that the requirement to obtain a Virginia Water Protection (VWP) Permit for impacts to state surface waters is based on State Water Control Law and associated regulations and not solely from the Clean Water Act.  The authority to provide 401 Certification comes from the Clean Water Act, and a VWP permit does serve as a 401 Certification.  However, the requirement for a VWP permit for activities in state surface waters is independent of federal jurisdiction and any USACE permit.  

In accordance with 9 VAC 210-50.A, Except in compliance with a VWP permit, unless the activity is otherwise exempted or excluded, no person shall dredge, fill, or discharge any pollutant into, or adjacent to surface waters; withdraw surface water; otherwise alter the physical, chemical, or biological properties of state waters regulated under this chapter and make them detrimental to the public health, to animal or aquatic life, or to the uses of such waters for domestic or industrial consumption, for recreation, or for other uses; excavate in wetlands; or on or after October 1, 2001, conduct the following activities in a wetland: 1. New activities to cause draining that significantly alters or degrades existing wetland acreage or functions;2. Filling or dumping; 3. Permanent flooding or impounding; or 4. New activities that cause significant alteration or degradation of existing wetland acreage or functions.

"State waters" means all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.

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Wetlands, Surface Water, and Surface Water Withdrawals/Impoundments

We administer the Virginia Water Protection (VWP) Permit Program and an associated compliance program through regulation of

As part of a larger effort to protect water quality under the DEQ Water Division, we are tasked with protecting wetlands and streams to protect their beneficial uses.  We strive to protect state waters and prevent and reduce water pollution in Virginia. We coordinate grant funded initiatives to explore future wetlands, stream and lake protection methodologies and policies. We partner closely with the U.S. Army Corps of Engineers and the Virginia Marine Resources Commission to achieve our goals. The Virginia Water Protection Permit Program serves as Virginia’s Section 401 certification program for federal Section 404 permits issued under the authority of the Clean Water Act. State law requires that a VWP permit be obtained before disturbing a wetland or stream by clearing, filling, excavating, draining, or ditching.  Application is made through the Joint Permit Application process for concurrent federal and state project review.

Wetland Maps

§ 62.1-44.15:01 requires the State Water Control board to have wetlands inventory maps available to the public.  U.S. Fish and Wildlife Service's National Wetland Inventory maps (NWI) and Virginia's Wetland Condition Assessment Tool (WetCAT) can be used.

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Virginia Department of
Environmental Quality
P.O. Box 1105
Richmond, VA 23218
(804) 698-4000

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