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New Wetlands Protection Proposed

On 16 August 2000, the Environmental Protection Agency and the Army Corps of Engineers proposed significant new protection against ditching for tens of thousands of acres of wetlands across the United States. The proposal creates a rebuttable presumption that landclearing, root raking, soil ripping, ditching, and other mechanized activities result in a discharge of fill materials. Activities which cause a discharge of fill materials are subject to regulation under Section 404 of the Clean Water Act. This new rule would confirm wetland ditching activities are regulated by the Corps, unless the party proposing such an activity demonstrates that only incidental fallback will result from the activity. Additionally, the Virginia General Assembly this year passed a law requiring a state permit to perform excavation in wetlands. These state and federal actions were taken in order to reduce a practice known as “Tulloch” ditching, which has been used by landowners and developers to reduce or eliminate jurisdictional wetlands from their property.

New Nationwide Permits Take Effect

On 5 June 2000, the U.S. Army Corps of Engineers replacement for Nationwide Permit (NWP 26) became effective, NWP 26 was used to permit certain discharges in the nation’s headwaters and isolated water, and was the permit most frequently used for minor impacts on wetlands. The replacement permits continue to authorize many of the same activities previously permitted under NWP 26, but they are activity-specific, with additional limiting terms and conditions to ensure minimal adverse effects on the aquatic environment. The maximum acreage limit under the new NWPs is one-half acre of wetland impact, reduced from the previous maximum of three acres, and most require that the Corps be notified of activities impacting more than one-tenth of an acre, reduced from the previous notification limit of one-third of an acre.

Revised Recovery Plan for the Red-Cockaded Woodpecker

The U.S. Fish and Wildlife announced the availability for public review of the draft revised Recovery Plan for the red-cockaded woodpecker. All comments must be received by 13 November, 2000 to receive consideration. The red-cockaded woodpecker was listed as an endangered species in 1970. Landowners with woodpecker habitat or populations on their property may be affected by the Recovery Plan. Significant populations exist in Northeastern North Carolina, but are considered rare in Virginia.

New Chesapeake Bay Buffer Policy

Since promulgation of the Chesapeake Bay Preservation Act on 1 October 1989, there has been controversy regarding the Resource Protection Area (RPA) 100-foot buffer requirement. The RPA buffer is stringently protected against development, land disturbance, and pruning of vegetation. The RPA buffer can occupy large portions of waterfront property, and can severely limit the amount of land available for development. As a result, it has been necessary in many cases to reduce the buffer in order to allow development, and localities have struggled to determine when it is acceptable to reduce the buffer.

On 22 August 2000, the Chesapeake Bay Local Assistance Board issued a “draft Guidance Policy on Buffer Area Requirements and Limitations on Development Activities” to clarify the State’s position on whether the buffer may be reduced from 100-feet. Encroachments into the landward 50-feet are permissible for lots recorded before October 1989 if necessary to obtain a buildable lot. Additionally, local governments may continue to approve exceptions to the 100-foot buffer for certain cases. Lots in new Subdivisions are to be designed such that encroachments into the buffer are not necessary, according to the new policy. Additionally, Water Quality Impact Assessments are required in order to approve buffer area exceptions.

Revised Recovery Plan for the Red-Cockaded Woodpecker

The U.S. Fish and Wildlife announced the availability for public review of the draft revised Recovery Plan for the red-cockaded woodpecker. All comments must be received by 13 November, 2000 to receive consideration. The red-cockaded woodpecker was listed as an endangered species in 1970. Landowners with woodpecker habitat or populations on their property may be affected by the Recovery Plan. Significant populations exist in Northeastern North Carolina, but are considered rare in Virginia.

September 2002 Newsletter

Wetlands News

On 25 July 2002, the U.S. District Court for the Eastern District of Virginia ruled that the U.S. Army Corps of Engineers has no jurisdiction over nontidal wetlands on a 658 acre tract of land known as the Edinburgh property in Chesapeake, Virginia.  Last year, R.G. Moore (RGM Corp.) began developing the property, but was ordered to stop work by the U.S. Army Corps of Engineers because the work affected about 200 acres of wetlands.  The Court found that the ditches on these wetlands did not cause the wetlands to be adjacent to navigable waters.  As such, the Court decided that Clean Water Act jurisdiction does not extend onto the site.

On 3 April 2002, a similar case known as the “Newdunn” case involving a 43-acre parcel in Newport News, Virginia, was decided in the U.S. Eastern District Court.  This case also found that the wetlands were isolated from navigable waters, and thus not subject to Clean Water Act jurisdiction.  An appeal by the Corps is pending in this case.

Over the past several years, other Court decisions nationwide, notably the “SWANCC” decision and the “Wilson” decision have served to clarify the definition of  “federal jurisidictional wetlands.”   These decisions have found that isolated wetlands with no connection to navigable waters do not have a nexus to interstate commerce and thus are not subject to Clean Water Act jurisdiction.  However, the State of Virginia passed new laws last year in order define isolated wetlands as “state jurisdictional wetlands.”  As such, land disturbance in isolated wetlands no longer requires federal permits, but does require state permits. 

Several cases currently being considered in the courts challenge the Commonwealth’s ability to regulate isolated wetlands under its new rules.  Decisions in these cases are expected over the next few months.

The State of Virginia issued new wetland permit regulations, effective October 2001, with a goal of streamlining permit issuances for minor impacts to wetlands.  The new regulations established general permit conditions for wetland impacts up to 0.1 acre, 0.5 acre, and 2.0 acres.  The new rules have improved the speed of permit processing, but the “one-size-fits-all” approach does not allow modifications for site specific conditions.   The U.S. Army Corps of Engineers “State Program General Permit” becomes effective on 1 November 2002, which will further streamline the permit process for impacts under one acre.

Several wetland mitigation bank sites exist in this area.  Two bank sites, known as the Beamon Farm and the Greenway Farm, are available to satisfy permit requirements.  These sites are operated by the Lower James River Wetland Mitigation Bank, a federal and state approved mitigation bank.  The bank’s service area is shown in the following map:

Spill Prevention, Control, and Countermeasure (SPCC) Plans

On July 17th, 2002, EPA issued a final rule amending the Oil Pollution Prevention regulation, changing some requirements for Spill Prevention Control and Countermeasure Plans (SPCC Plans).  SPCC Plans have been required at applicable facilities since 1973.  The purpose of SPCC plans is to actively prevent oil discharges from reaching navigable waters of the United States or adjoining shorelines. SPCC plans contain measures to prevent and control oil spills, including those resulting from human operational error or equipment failures.  As described in the SPCC rule, the requirements for SPCC plans apply broadly to owners or operators of facilities that drill, produce, gather, store, use, process, refine, transfer, distribute, or consume oil and oil products.

The new rule is intended to make the SPCC requirements easier to understand, in compliance with the Presidential order requiring the government to use plain language.  Some key provisions of the new rule are summarized below:

PCBs in James River Fish

Routine testing by the Virginia Department of Environmental Quality (DEQ) this summer found fish contaminated with PCBs in the James River between Richmond and Hopewell.  Two species of fish, blue catfish and carp, were found with PCB contamination ranging from 267 parts per billion to 3,212 ppb. The Health Department’s level of concern for potential human health effects is 600 ppb. The fish were taken from the James between the Interstate 95 bridge in Richmond and Jordon Point near Hopewell. Additional fish samples will be collected from the James to provide more information on the extent of the PCB contamination.  This section of the James River is one of the nation’s most popular areas for blue catfish, with some blue cats over seventy pounds.

PCBs, or polychlorinated biphenyls, are chemicals once used as insulators or fire retardants in petroleum products such as transformer oil, hydraulic oil, paints, and motor oil. Although the United States stopped manufacturing PCBs in the 1970s, they still can be found in the environment where they have leaked into the soil and water.

Indoor Environmental Quality

Water damage happens with fires, floods, leaks, and spills.  Immediate drying and investigations of mold proliferation should be performed immediately after water damage events in order to protect the property and its occupants from fungal contamination.  Molds such as Penicillium, Aspergillus, and Stachybotrys, may cause symptoms ranging from mild allergies to skin disorders and neurological diseases.  The symptoms may be related to inhalation, dermal contact, or ingestion of “musty” organic compounds, mold spores, or hyphal elements produced by the fungi.  Mold growth is typically concentrated in moist organic substrates, including building materials such as water damaged drywall and wood.  Investigations for fungal contamination generally include visual reconnaissance, moisture and humidity measurements within the structure, and comparison air sampling both within the affected areas and at a background site outside the structure, to identify unusually high concentrations of mold spores and hyphae.  Additionally, bulk sampling of building materials is performed to determine the location and types of fungi present.  The sample results are evaluated for correlations with observed symptoms, and an abatement plan is then formulated to remove existing contaminants and prevent future contamination.

Buildings may also include contaminants such as volatile organic compounds, carbon dioxide, asbestos or lead-based paint.  If present in sufficient concentrations, these materials may cause health effects in the exposed person.  Proper inspection by a Virginia-licensed technician is recommended for structures built before 1980, in order to properly manage asbestos and lead-based paint in-place, or to identify appropriate abatement measures.  Air monitoring, baseline building surveys, or other indoor environmental quality investigations may be appropriate if asbestos, VOCs, CO₂ or other contaminants are suspected within the structure.

Sea Level Rise and Expanding Government Regulation

Underground Storage Tanks

Leaking USTs are considered the primary cause of groundwater contamination in the United States, and the U.S. EPA issued rules in 1985 and 1993 to reduce such contamination.  Since 1985, nearly 420,000 leaking USTs have been found in the US, and between 1993 and 2000, approximately 1,500,000 substandard USTs were closed by removal or filling in place with inert material.  About 700,000 known USTs are still in place, and about 125,000 of these are not in compliance with existing rules, according to the EPA.  Additional abandoned USTs are sometimes found during environmental site assessments or upon excavation and site development.  Managing subsurface conditions at such tank sites is a key concern of existing and proposed legislation.

The proposed Underground Storage Tank Compliance Act would help prevent groundwater contamination caused by leaking USTs by increasing the amount and flexibility of the existing Leaking Underground Storage Tank (LUST) Trust Fund.  In Virginia, the fund typically has a waiting period of one to several years before reimbursing tank owners for required cleanup of leaks.  The proposed changes would allow the trust fund to be used for increased inspection of tanks, operator training, and would also provide $200 million for cleanup of sites contaminated with methyl tertiary butyl ether (MTBE).  MTBE is a gasoline additive found in 80 percent of reformulated gasoline that is the source of contamination of many drinking water supplies at LUST sites.

Voluntary Remediation Program and Brownfields Liability Relief

Simplified rules for voluntary cleanup of contaminated property in Virginia became effective 1 July 2002.  The new rules, issued by the Virginia Department of Environmental Quality (DEQ), help owners of polluted sites obtain legally-binding certificates from the DEQ assuring that the state will not institute enforcement actions against the owner and subsequent owners for contamination at the property.

Similarly, the US EPA’s Small Business Liability Relief and Brownfields Revitalization Act, signed into law this year by President George W. Bush, reduces risks associated with the purchase of contaminated property.  The rule confirms that buyers of property will not have liability for pre-existing contamination or contamination derived from neighboring properties.  In order to qualify for such liability protection, the buyer must perform appropriate due diligence investigations.  This rule, along with recent Brownfields tax incentives, encourage the sale and redevelopment of previously contaminated property.

However, buyers also need to determine whether the U.S. Environmental Protection Agency (EPA) has unrecovered cleanup costs on the site.  In such case, EPA will file a “windfall lien” on the property enabling the agency to collect any profit generated from future sales of the property, until the cleanup costs are recovered.

Due diligence investigations, known as Phase I Environmental Site Assessments, are performed before most commercial real estate transactions in order to identify existing conditions at the site and qualify for liability protection.  The ASTM standard methods for Site Assessments are being revised in order to comply with the new EPA liability reduction act.

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Last modified: June 16, 2008