Virginia Waters

Why are Waters Defined Differently by State?

Water is an essential natural resource for municipality use as drinking water and for sectors from energy to agriculture, making water quality and quantity protection important at the state and federal levels. Federally, the Environmental Protection Agency (EPA)  enforces the Clean Water Act (CWA), a federal law, by issuing thresholds for the amount of pollutants that can be discharged from facilities such as wastewater treatment plants and animal feedlots. State water authorities carry out more localized; states make and enforce water legislation that is tailored to the unique ecosystems and water input and water withdrawal rates in the states. Commonwealth of Virginia water resources are monitored by the Virginia Department of Environmental Quality (DEQ).

State law protects the water quality of Virginia waters by monitoring ground water and surface water use through a permit system in which operators must apply for a withdrawal permit from the DEQ. Ground water permits are required for users withdrawing more than 300,000 gallons of water per month. Users looking to expand their ground water withdrawal must apply for a new permit before doing so. Operators may need to increase water withdrawal due to changes in the efficiency of water reclamation on-site. Surface water permits are required for diversions of “streams, springs, lakes or ponds in Virginia or from the Potomac River .” In addition to permit requirements for water withdrawal, DEQ also requires permits for impounding water. Impounding is storing wastewater in infrastructure such as a retainer or dyke. This water must undergo reclamation to bring it to EPA pollution thresholds before being discharged.

Both permits for water withdrawal and impounding are subject to review with the opportunity for public comment. Any member of the public is invited to send a public comment on the permit under review for consideration by DEQ.

In the U.S., the Clean Water Act (CWA) protects waters. Jurisdictional Waters of the U.S. (WOTUS) are given extensive protection under this act. However, this act provides vague definitions for these waters, leading to the ambiguity of interpretations of these waters. States have added additional definitions to waters to gain clarity and protect waters that do not fall under the jurisdiction of the CWA as interpreted by different administrations.

Additionally, water use and needs vary by state—the different biogeographic regions in each state impact primary water sources and regulations are regionally specific. Protected waters house ecosystems that vary significantly by state. This variety of life and water use creates the need for state-specific regulations.

Federal Law: Clean Water Act

Waters of the United States (WOTUS)

The need for federal oversight of water resources was recognized historically as far back as 1948 when the Federal Water Pollution Control Act was enacted. This law evolved to meet the changing needs of a growing country over the following decades, and in 1972 it was expanded significantly through amendments and became known as the Clean Water Act (CWA). Under the CWA, the EPA sets industry standards and ensures that operators comply with federal laws on wastewater, water discharge, and pollutants in surface waters.

A vital component of the CWA is obtaining a permit from the EPA to lawfully discharge polluted wastewater into navigable waters of the United States. The National Pollutant Discharge Elimination System (NPDES) is the EPA permit program that regulates water discharge. Entities with water discharge needs are required to operate under EPA supervision through the NPDES permit application process to prevent water pollution from becoming a public health hazard. Under the Clean Water Act, “point source” is legally defined as any confined conveyance that issues into water of the United States, including but not limited to pipes and drains. To sufficiently cover the range of materials regulated under the CWA, pollutants are legally defined as any industrial, municipal, or agricultural waste discharged into water.

Watersheds, which are made up of river basins and other areas that drain to a particular water source, are another facet of water resource management. In Virginia, the capital Richmond is situated in the James Watershed, which drains to the James River, the largest river in Virginia. The James River Basin or watershed is geographically close to the Chesapeake Bay Coastal Watershed and the James flows into the Chesapeake Bay. While watersheds are defined as separate entities for the purposes of management by state and federal agencies, river basins and watersheds are interconnected, and the health of one watershed can impact water quality in adjacent watersheds.

Who Enforces Water Quality Protections

A diverse coalition of state and federal agencies uphold water quality standards Operators that generate water for discharge into WOTUS are responsible for compliance with federal and state law, which includes reporting on the content of discharge water. Entities found out of compliance with state and/or local are subject to fines and punishment, including jail time for the offending party.

U.S. Army Corps of Engineers

The US Army Corps of Engineers (USACE) is a branch of the US Army that engages in both military and civil engineering works to improve the management of natural resources and strengthen national security. Beyond engineering water infrastructure such as dams and other public works, USACE supports the EPA enforcing the Clean Water Act by managing the wastewater discharge permit system, the National Pollutant Discharge Elimination System (NPDES). Under Section 404 of the CWA, the Corps is directly responsible for reviewing, approving, and issuing permits for water discharge under the NPDES and is also responsible for the civil and environmental engineering work of dredging and filling designated waters (WOTUS). State or tribal agencies may voluntarily assume responsibility for permitting under the oversight of the EPA.

Environmental Protection Agency

The EPA plays an executive role in enforcing the CWA; while the USACE manages the wastewater discharge permit system, the EPA develops the permitting policy and sets the environmental standards that make up the permit criteria. The EPA is also responsible for managing state and tribal compliance with the CWA, including the assumption by state and tribal authorities to issue wastewater discharge permits instead of the US Army Corps of Engineers, which occurs on a state-by-state, voluntary basis. Under subsection c of Section 404 of the CWA, the EPA is also empowered to limit the use of any land area as a wastewater or dredge material disposal site.  

Virginia Department of Environmental Quality (DEQ) 

The Commonwealth of Virginia’s DEQ assumes responsibility for the issuance of NPDES permits under the Clean Water Act and serves as frontline protection for Virginia state waters. Permitees must submit Discharge Monitoring Reports regularly and are subject to regular site inspection. In addition to NPDES permits, Virginia DEQ also issues No-Discharge permits, which certify that an operation that processes wastewater does not discharge that wastewater at any point source. Some No-Discharge permitted operations, including drip irrigation systems, may still be responsible for Monthly Monitoring Reports under DEQ regulations. This agency is just one of the state agencies in the U.S. working to protect state waters.

Virginia Wetlands Act

At the same time federal environmental legislation like the Clean Water Act was being strengthened, the Commonwealth of Virginia was also strengthening its environmental protections: the 1972 Virginia Tidal Wetlands Act introduced protections for tidal wetlands. Virginia passed amidst emerging science about the importance of wetlands in mitigating stormwater damage as well as the value added to the economy by commercial fishing, which healthy tidal wetlands support. The Act, in conjunction with updates to the Code of Virginia (Title 28, subsection 2-1302), charged the Virginia Marine Resources Commission with monitoring and permitting any activity that could disturb tidal wetland ecosystems. The Wetlands Act also authorized local boards to evaluate whether the land is more valuable when conserved as wetlands or when developed. These local wetlands boards work with the Virginia Marine Resources Commission to issue permits for development on and monitor shallow water or tidal land environmental health.

Chesapeake Bay Preservation Act

The Commonwealth of Virginia’s General Assembly enacted the Chesapeake Bay Preservation Act in 1988 to address the threat of nonpoint source pollution to water quality.  A crucial part of the strategy behind the Bay Preservation Act is encouraging land management practices that minimize soil erosion and mitigate the amount of sediment and nutrient runoff.  The Act designated Chesapeake Bay Preservation Areas (CBPAs), environmentally sensitive shoreline areas where development is prohibited, and natural buffers are maintained between to protect the shore from development. Under the Bay Act, development in CBPAs is required to be planned ahead in detail before the issuance of a building permit.

Submerged Lands Act

The Submerged Lands Act under the Code of Virginia Title 28.2 makes it illegal to dump or build on sensitive lands such as ocean bays and river or stream beds without a permit from the Virginia Marine Resources Commission. In reviewing applications for development and wastewater disposal permits, the VMRC is required to conduct a public interest review of the beneficial and detrimental factors of the development or disposal. These reviews take economic and aesthetic aspects as well as environmental factors into account.

Coastal Primary Sand Dunes and Beaches Act

The Coastal Primary Sand Dunes and Beaches Act exists to protect dunes and beaches from potentially harmful activity by offering a voluntary ordinance framework localities can adopt that requires activity permitting to be reviewed and approved by local wetlands boards. Intact coastal landscapes mitigate flood damage and erosion and protect municipal water supplies in the event of storm surges. The ordinances provide general guidelines for mitigating the negative impacts of human activity on beaches and dunes.

Permit Programs

The Commonwealth of Virginia’s Department of Environmental Quality issues various permits to track and maintain natural resource health. These permits are one of many initiatives at work to protect state waters.

State Program General Permit

The SPGP is a suite of permits from the Virginia DEQ that authorizes the Army Corps of Engineers to give the project a general permit. Projects that meet the criteria for an SPGP also receive a Virginia Water Protection permit.

Virginia Water Protection Permit (VWP)

The Virginia Water Protection permit, or VWP permit, is issued to projects that protect instream beneficial uses, will maintain water quality standards, and won’t detrimentally impact state waters or aquatic life.

How Do Protected Waters Impact Land Developers?

Federal, state, and local agencies regulate waters. Each governing body has necessary permits and processes that can delay development. Protected waters can be difficult to identify, as in the case of ephemeral waters, which can impact development later down the road as these features appear on a site. Delaying or incorrectly identifying waters can result in project delays and expensive recovery efforts. 

Additionally, Virginia waters serve as a habitat for many protected species. Due to this, developments will be subject to other federal and state regulations, such as the Endangered Species Act. Additional rules may apply for each feature as local levels deem necessary. Proper environmental due diligence aids in the early identification of these waters and preparation for the risks ahead.

How to Identify Protected Waters

Environmental Consultants

Environmental consultants are experts in biology and the environmental permitting process. These individuals evaluate a site for environmental risk, writing an environmental report over weeks or months. These experts can determine if a water body is under Clean Water Act protection or subject to other regulations. Consultants can provide developers with permit requirements and next steps. Additional consulting services may be required when mitigation efforts are required for a site.

National Hydrography Dataset

This data depicts the nation's water drainage network. Software platforms use this data, which is available for download by the public. As the USFWS source, this tool does not outline permits needed, the jurisdiction of waters, and other regulations. This tool does not account for all waters present on a site, especially suspected ephemeral features based on precipitation trends and geographic information.

Transect Protected Waters Mapping Tool

Environmental due diligence software such as Transect automates the mapping of protected waters. This software uses prior precipitation trends and current data about water locations to assess a specified region. The software provides the likelihood of regulated water appearing on a site and includes a corresponding confidence level. This mapping tool can select the right location for a project or discover a buildable area within a given plot. Transect will also provide a site-specific list of permits required to comply with federal, state, and local laws. Transect generates this report in minutes. The Transect software helps land developers discover these waters on any given parcel of land. The Ghost Waters feature of the software maps ephemeral waters on a property that may not appear on other datasets.