A little over a year after the U.S. Supreme Court narrowed the range of wetlands the federal government can protect, a Virginia board turned down a petition that would have similarly limited local officials from regulating certain wetlands within the Chesapeake Bay watershed. 

The June decision by the State Water Control Board, which followed a recommendation by Virginia’s Department of Environmental Quality, is the latest indication that the state intends to hold fast to its historically protective wetlands rules. 

“Think of wetlands as a big universe. Federally, only a portion of that universe is regulated by the federal government. But what scientifically is a wetland is still the same,” DEQ Director Mike Rolband told Inside Climate News. “In Virginia, we regulate everything.”

David Schnare, a retired EPA scientist and 2016 Trump transition team member who filed the petition, has said the Supreme Court’s 2023 decision in Sackett v. U.S. Environmental Protection Agency introduced significant “ambiguities” into the state’s process of determining what is and is not a wetland. If the federal government no longer has jurisdiction over certain wetlands, he questioned whether local officials should still be able to limit development in areas around those wetlands.

“What’s the logic that the state would have to continue to consider those legitimate protectable areas?” he asked in an interview. “They have the power to do so, but do they choose to do so?” 

For now at least, Virginia is choosing to do so. The State Water Control Board’s vote to not open up a regulatory review in response to Schnare’s petition was unanimous. And DEQ is taking the stance that Sackett only affects federal jurisdiction, not the state’s powers, and not what scientists consider wetlands to be. 

Sackett “was entirely based upon federal law,” Justin Williams, the director of DEQ’s Office of Watersheds and Local Government Assistance Programs, told the water board this June. “It did not alter or change Virginia law.” 

Virginia’s interest in the issue lies in the value governments have long seen in preserving wetlands, highly biodiverse ecosystems that not only improve water quality through filtration but also store carbon and reduce flooding—the latter of particular importance in the state, where the Hampton Roads region is seeing some of the fastest sea level rise on the East Coast. 

Mary-Carson Stiff, executive director of the Norfolk, Virginia-based nonprofit Wetlands Watch, said the June 24 vote should be seen “as a real sign of where we stand and where our state agencies stand on the Sackett issue.”

“Having the state reject this so quickly and so evenhandedly sets a really important tone for future attempts,” she said. And, she added, that stance is likely to get support from both parties in Virginia, where Democrats narrowly control the state legislature and Republican Gov. Glenn Youngkin oversees the executive branch. While Youngkin and Democrats have butted heads on climate goals, most notably on the state’s participation in emissions reductions programs such as the Regional Greenhouse Gas Initiative and California vehicle emissions standards, the state’s Chesapeake Bay cleanup and conservation goals are points of agreement. 

“We believe that the history of Virginia’s nontidal wetlands protection is one of bipartisan support,” Stiff said. 

Virginia’s Robust Wetlands Protections

In Sackett, the Supreme Court found that the Clean Water Act only grants the EPA the authority to regulate wetlands that have a “continuous surface connection” to streams, lakes and other waterways that are already regulated by the government as “waters of the United States.” 

The decision meant the federal government no longer has the power to oversee tens of millions of acres of wetlands connected to other waterways only through groundwater or fed by streams that don’t run year-round. As a result, the case had particular significance for the protection of nontidal wetlands, marshy areas where the water held in the soil isn’t the result of tides. 

The ruling was immediately decried by environmental groups and hailed by agricultural, industrial and property rights organizations. But it also created widespread confusion: Over the years, states had imposed a patchwork of laws and regulations to govern wetlands and development that could impact them. 

In Virginia, those rules have long been robust, particularly in the heavily populated eastern portion of the state that lies in the watershed of the Chesapeake Bay, the nation’s largest estuary. Under the 1988 Chesapeake Bay Preservation Act, local governments in 84 towns, cities and counties—most of them east of the Interstate 95 corridor—are charged with limiting development in the areas immediately surrounding waterways and wetlands to protect water quality.

The strictest rules govern what’s known as the resource protection area, the land immediately adjacent to water bodies. Any development within a 100-foot buffer of the water body has to be approved by a local wetlands board.

Unlike many other of the state’s environmental protections, those decisions are almost entirely in the hands of local governments. 

“DEQ provides oversight generally with the program and the localities and technical assistance, but does not individually review or approve projects or permits,” said Williams. Furthermore, he noted, DEQ “does not step into the shoes of a locality. We do not replace or supersede those decisions.” 

A Hockey Court and a Disputed Wetland

It was one of those local decisions in Fairfax County, an affluent Washington suburb with more than 1.1 million residents, that gave rise to Schnare’s petition. 

A scientist who spent more than 33 years at the EPA, Schnare gained public attention for his work at the Free Market Environmental Law Clinic bringing lawsuits against climate scientists for access to their emails. After serving on former President Donald Trump’s transition team, he returned briefly to the EPA under Administrator Scott Pruitt but stepped down after two months, citing “irreconcilable differences in management approach and professional ethics.”

Now retired, Schnare serves on Fairfax’s Chesapeake Bay Exception Review Committee, which grants or rejects exceptions landowners seek to disturb property within the resource protection area. One application that came before the committee concerned a private sports court built by a property owner in a resource protection area around a nontidal wetland. When local officials became aware of the hockey court in 2022, they issued the landowner a notice of violation. He in turn sought an exception that would let him keep it.

“This was never an intentional violation of the Fairfax County Code,” the property owner wrote in a letter to the committee. “It was a product of not having the RPA noted on the plat and the assumption that simply replacing a deteriorated swing set with a sports court on the existing footprint was ok to do. Upon learning that this was not to code we are trying to work with the county to work towards a win-win solution.” 

Schnare believes the Sackett decision throws into question whether that nontidal wetland should be regulated by state or local authorities. In his petition, he noted that the 2003 report that delineated the wetland found it was primarily fed by groundwater, rather than a nearby stream called Flatlick Branch.

Because Sackett determined that wetlands must have “a continuous surface connection” with surrounding waterways to qualify for federal protection, Schnare argued that the resource protection area boundaries for the wetlands outlined in the 2003 delineation were “invalid.”

“In a word, those ‘wetlands’ no longer exist at law (and probably not in fact on the property in any case),” he wrote. 

Sackett, he said in an interview, “leaves a complete ambiguity as to how they want to deal with the designations of wetlands under the old rules.”

“If the delineation was done based on distance from a federally designated wetland under the Clean Water Act, that wetland may or may not continue to be a wetland under the new findings,” he said. 

In his petition, Schnare asked the State Water Control Board to take a position on how the Exception Review Committee should treat certain nontidal wetlands and, more significantly, to amend the state’s definition of nontidal wetlands. 

In addition to getting rid of a reference to lands “inundated or saturated by surface or ground water,” Schnare’s new definition would identify nontidal wetlands based on vegetation, soil and hydrology determinations. 

“Is the state going to continue to consider some pothole a wetland?” he asked in an interview. 

‘An Inappropriate Narrowing of the Definition of Wetlands’

Virginia’s environmental agency and the State Water Control Board, however, have rejected that argument, maintaining that granting the petition could cause “an inappropriate narrowing of the definition of wetlands.” 

Schnare’s proposed definition of nontidal wetlands “is inconsistent with state law and is not necessary as requested, and in particular is not necessary because of the Sackett decision,” DEQ’s Williams told the board this June. 

That stance is in line with a memo Rolband, the DEQ director, put out shortly after the Supreme Court’s decision in 2023. In that document, circulated to groups statewide, Rolband said Virginia law and regulations were not affected by the Sackett ruling. Nor, he wrote, did the decision affect the definition of resource protection areas under the Chesapeake Bay Preservation Act.

“The geographic extents of these wetland components are independent of federal jurisdictional determinations,” Rolband said in the memo. “In Sackett the Court was considering a question of jurisdiction, specifically, which wetlands were subject to the [Clean Water Act] and not the definition of wetlands.” 

Others reached the same conclusion even before DEQ. In a June 2023 post, John K. Byrum Jr., an attorney at law firm Woods Rogers Vandeventer Black, contended that in states like Virginia “which regulate isolated wetlands under state law, Sackett will have little—if any—impact on permitting of wetlands impacts.” 

In an interview, Rolband said he wasn’t surprised by the petition or that it had originated in Northern Virginia.

“It’s a very contentious area, and everything gets challenged,” he said. “So it didn’t surprise me. I was actually surprised it hadn’t happened yet.” 

Stiff, with Wetlands Watch, said conservation organizations statewide have been “hyper-vigilantly scanning all proposed changes to state laws related to nontidal wetlands” since Sackett was handed down.

“We were surprised to see the petition, but we were not surprised by the use of Sackett as a way for property owners to get what they want and to circumvent Virginia’s nontidal wetlands and natural shoreline resource protection laws,” she said. “And it’s incumbent upon conservation organizations and conservation-minded individuals to stay vigilant against future attempts to bring Sackett law into the state, because it’s not as though this issue is going to go away.” 

In Fairfax, the hockey court application is expected to come up before the Exception Review Committee this August after a deferral. DEQ has also offered to provide technical assistance to the committee. 

Schnare has said more needs to be done, however, to notify landowners of the restrictions placed on their land by the state’s Chesapeake Bay and wetlands laws. 

“We have felt that there has been too little enforcement and too little knowledge,” he said. Homeowners “have no idea about their duties under the Chesapeake Bay ordinance.”