A local wetlands board must hold a public hearing within sixty days after receiving a complete application. A list of the information needed on a complete application is on the Permit Information tab. The determination of completeness is made by local wetlands boards and/or locality staff.
Within sixty days after receiving a complete application, the board is required to give notice of the hearing to the applicant, local governing body, adjacent property owners, various state agencies, any other interested governmental agency, and the VMRC twenty days before the hearing. The board must also give public notice of the hearing by publishing its date in a newspaper within the local wetlands board’s county, city, or town, once a week for two weeks prior to the hearing.
It is recommended that, prior to the start of the public hearing, the chairman recite the general purpose of the board as a reminder to those in attendance at the meeting.
A board must make its determination within thirty days of a hearing. If the board fails to act within thirty days, the application will be deemed approved. Otherwise, approval of a application requires the affirmative vote of three members of a five member board or four members of a seven member board. Once the board makes a determination, the board must notify the applicant and the Commission within forty-eight hours of its determination.
Record of Hearing
The board shall make a record of the proceeding, which shall include the application with the associated drawings, any written statements of witnesses, a summary of statements of all witnesses, the findings and decision of the board, and the rationale for the decision.
The board may decide to grant, grant in modified form, or deny a permit. A decision requires a weighing and balancing of all beneficial and detrimental factors relevant to a proposal, leading to a permit decision that reflects the outcome of that balancing process, known as a public interest review. The local wetlands board has the power to modify an application so that the approved permit meets the purpose of the Wetlands Act. In making this determination, the local wetlands board must consider:
- The testimony of any person in support of or in opposition to the permit;
- The impact of the proposed development on the public health, safety, and welfare; and
- Whether the proposed development conforms with standards prescribed in § 28.2-1308 and guidelines passed pursuant to § 28.2-1301. See Laws & Regulations.
The board must grant the permit if:
- The anticipated public and private benefit of the proposed activity is greater than its anticipated public and private detriment;
- Wetlands of primary ecological significance are not altered in such a way that the ecological systems in those wetlands are unreasonably disturbed;
- The development is concentrated in wetlands of lesser ecological significance, in vegetated wetlands which have been irreversibly disturbed before July 1, 1972, in nonvegetated wetlands which have been irreversibly disturbed prior to January 1, 1983, or in areas of Virginia outside of wetlands; and
- The proposed activity does not violate the purpose and intent of the Wetlands Act.
If all the criteria above are not met, the board shall deny the application. Specific criteria for a proposed action to destroy wetlands and provide compensation require meeting the three criteria below. If one or more criteria are not met, the activity shall be denied. [4 Virginia Administrative Code § 20-390-40]
- All reasonable mitigative actions, including alternate siting, which would eliminate or minimize wetlands loss or disturbance shall be incorporated in the proposal.
- The proposal shall clearly be water-dependent in nature.
- The proposal shall demonstrate clearly its need to be in the wetlands and its overwhelming public and private benefits.
A proposed activity should stand on its own merits in the permit approval process, compensation should not be used to justify permit issuance. The receipt of an acceptable compensation plan may be required as a condition before issuance of a final permit. If compensation is required, the sequence for mitigation is:
- Off-site within the same watershed or mitigation bank in the watershed,
- Proffered payment of an in-lieu fee if on-site and off-site compensation are shown by the applicant to be impractical considering the project location.
Items to Consider for Compensation Review
- A detailed plan should be submitted, including a scaled plan view drawing, the type of wetland to be created, the mean tide range at the site, the proposed elevations relative to a tidal datum, the exact location, the areal extent, the method of marsh establishment and the exact time frame from initial work to completion. The plan should also include plans for replanting areas where vegetation fails to grow.
- Inspection to insure that the elevations are appropriate for the vegetation to be planted and that the surface drainage is effective.
- Plan and implementation should be by experienced professionals knowledgeable of the requirements for wetland establishment and long-term survival.
- A performance bond or letter of credit should be required and remain in force until the new wetland is successfully established; a minimum of two growing seasons and a required planting success rate has been achieved.
- The compensation marsh should be designed to replace the functional values of the lost resource on an equal or greater basis. A minimum 1:1 areal exchange is required in all cases. The ratio of required compensation to approved loss should be specified and may be based on the use of the Function Specific Credit Calculation Method established by the Virginia Institute of Marine Science (VIMS) and contained in the Guidelines for the Establishment, Use and Operation of Tidal Wetland Mitigation Banks in Virginia.
- The compensation should be before or concurrent with, the wetland project. Prior to any activity, the permittee must own all interests in the mitigation site that are needed to carry out the mitigation.
- All reasonable steps must be taken to avoid or minimize any adverse environmental effects associated with the compensation activities themselves.
- One aquatic community (ie subaqueous bottom) should not be sacrificed to "create" another. In cases where dredged material must be placed overboard, the area may be used to create marsh, oyster rock or improve the resource value of the bottom.
- The type of plant community proposed as compensation must have a demonstrated history of successful establishment in order to be acceptable.
- Manipulating the plant species composition of an existing marsh community, as a form of compensation, is unacceptable. Vegetative enhancement or rehabilitation are not compensatory mitigation.
- Nonvegetated wetlands should be treated on an equal basis with vegetated wetlands with regard to compensation and mitigation, unless site-specific information indicates one is more valuable than the other.
- Both short-term and long-term monitoring of compensation sites should be considered on a case-by-case basis. For unproven types of compensation the applicant will be responsible for funding such monitoring as is deemed necessary.
- Conservation or other easements to be held in perpetuity should be required for the compensation marsh. Easements accepted by the commission will be processed in accordance with the provisions of Code of Virginia § 28.2-1301.
An applicant may be permitted to use an approved wetlands mitigation bank for all or part of any required mitigation. The mitigation bank must be in the same United States Geological Survey (USGS) cataloging unit or adjacent USGS cataloging unit in the same watershed unless compliance with specific criteria contained in § 28.2-1308 for use of a compensatory mitigation bank outside the watershed is demonstrated. The ratio of required compensation to approved loss must be specified and should incorporate the use of Function Specific Credit Calculation Method established by the Virginia Institute of Marine Science (VIMS) and contained in the Guidelines for the Establishment, Use and Operation of Tidal Wetland Mitigation Banks in Virginia. [4 Administrative Code § 20-390-50]
In-lieu fees should be the last form of mitigation used to offset permitted wetland losses and require demonstration that on-site or off-site compensation options are not practical and no mitigation banks have been established in the project watershed. Localities are encouraged to establish a fund for such payments that is dedicated to tidal wetlands restoration and creation and could be the same fund established for the receipt of civil charges or civil penalties. Administration should include an ability to trace the contribution of in-lieu fees to actual wetland restoration or creation projects. The fee amount cannot be less than the cost of necessary compensation acreage or the purchase of necessary credits in an approved bank. Use of the fund could be for actual tidal wetland creation or restoration projects in the locality or for the purchase of credits in an approved compensatory mitigation bank that is authorized subsequent to the receipt of any in-lieu fee. Localities are encouraged to combine any in-lieu fee with other potential or available funds for wetland restoration or creation projects.
Permits issued by local wetlands boards must:
- be in writing
- be signed by the board chairman or his or her authorized representative
- be notarized
- and, include an expiration date
A copy of the permit is provided to the Commissioner of the Marine Resources Commission. Permits do not affect local zoning or land use ordinances, and they also do not affect the right of any person to seek compensation for any injury that results from the activity proposed in the permit.
Local wetlands boards can grant permits with conditions and limitations. In order to ensure that the permit applicant complies with the permit conditions and limitations, the local wetlands board may condition the permit on a reasonable bond or letter of credit; compensatory mitigation for adverse impact to wetlands; contribution of in-lieu fees to offset permitted wetlands losses; and/or a requirement that the permittee implement monitoring and reporting procedures or on-site inspections.
The local wetlands board can suspend or revoke a permit if the applicant fails to comply with any of the permit’s conditions. The board may also suspend or revoke a permit if the applicant’s actions exceed the scope of the work initially described in the permit.
The board has the power to investigate all proposed or ongoing projects and to prosecute any violation of their orders or the Wetlands Act. These investigations may take place through violation hearings.
The local wetlands board may also petition the Circuit Court of the county or city to enjoin an unlawful act.
Closed Meetings (or Executive Sessions)
Generally, the meetings of public bodies must be open to the public. However, Virginia’s Freedom of Information Act does list certain exemptions to this general requirement. For example, a local wetlands board may go into a closed meeting when the chairman or members of the board have questions or matters involving actual or probable litigation, or require the provision of legal advice by counsel. In order to hold a closed meeting, the local wetlands board must identify the specific statutory exemption it is using and must follow other procedural requirements.
The local wetlands board must affirmatively vote during an open meeting on a motion that identifies the subject matter of the closed meeting; states the purpose of the closed meeting; and makes explicit reference to the statutory exemption relied on to close the meeting.
At the end of the closed meeting, the local wetlands board must reconvene in an open meeting and take a vote certifying that that they discussed only exempt subject matters identified in the previous motion.
Decisions made in a closed meeting do not become official until the local wetlands board reconvenes in an open meeting following the proper procedure, reasonably identifies the substance of the decision, and takes a recorded vote on the decision agreed to in the closed meeting. Any and all votes taken to authorize the transaction of any public business must be taken and recorded in an open meeting.
The local wetlands board is not required to record minutes for closed meetings.
Local wetlands boards may also hold informal sessions or briefings in addition to formal hearings.
Some local wetlands boards, such as the Virginia Beach Wetlands Board, hold monthly informal briefings, to which citizens are invited.
Review of Board Decisions
Review by the Commission (VMRC)
The Commission shall review a decision of a wetlands board when any of the following events occur:
The Commissioner shall review all wetlands board’s decisions and request the Commission to review a decision if the board failed to fulfill its responsibilities.
- An appeal by the applicant or the locality where the wetlands are located.
- The Commissioner requests the review.
- Twenty-five or more freeholders of property within the locality sign and submit a petition to the Commission requesting the review.
All requests for review or appeal shall be made within ten days of the date of the board’s decision. The Commission shall hear and decide the review or appeal within forty-five days of receiving the request or notice of appeal.
The Commission shall hear the appeal or conduct the review of the record transmitted by the board to the Commissioner. The Commission may take such additional evidence as may be necessary to resolve any controversy as to the correctness of the record. The Commission, in its discretion, may also receive such other evidence as the ends of justice require.
On review or appeal, the Commission must modify, remand, or reverse the decision of the local wetlands board if the local wetlands board fails to fulfill its responsibilities or if its findings, conclusions, or decisions prejudice the substantial rights of the appellant or applicant. The Commission will notify the parties of its decision within 48 hours of the appeal or review hearing.
Additionally, an applicant or property owner may appeal the Commission’s decision to the Circuit Court.
Review by the Circuit or Appeals Court
A decision by the local wetlands board or the Commission is likely to be overturned by a court if (1) the decision can be fairly characterized as arbitrary or capricious and, therefore, a clear abuse of delegated discretion; or if (2) the decision to grant or deny a permit is based upon procedural grounds. A local wetlands board can avoid making a decision that is arbitrary or capricious by considering all pertinent factors and not basing its decision on one single factor. As for the latter category of decisions likely to be overturned, the Court is not willing to give an agency deference when a decision is based upon a procedural ground because the Court views procedure and application of the law as its area of expertise and not that of the local wetlands board or the Commission. To avoid this categorization, a local wetlands board should not proceed with a decision when a procedural error has occurred.
It is rare for a wetlands permit decision to be appealed to the Circuit Court or to the Court of Appeals. The Circuit Court is often deferential to the local wetlands board’s decision. As long as a local wetlands board can point to “substantial evidence” in the record to support their decision and that decision is within the local wetlands board’s field of expertise, the court will likely confirm the decision. Because the court does not do any fact finding of its own, but instead reviews only the administrative record, it is critical that local wetlands boards develop a robust administrative record.