BOX 8–3

Virginia's New Wetland Permitting Program

Many states have created permitting programs with a scope that exceeds the federal Section 404 program. Recent experience in Virginia demonstrates the need for such programs. Nontidal wetlands in Virginia have not been without some protection. Prior to 1992, a Virginia certification was required for a Section 404 permit. However, as court actions limited the scope of the federal program, the state recognized the urgency of taking legislative action. The Virginia General Assembly passed legislation in 2000 to require a state permit for wetland filling and alteration even if a Section 404 permit is not required. The commonwealth's program will apply to activities of less than 0.5 acres, activities of utility and public service companies, linear transportation projects, activities covered by Corps general permits, and mining activities. In addition, compensatory mitigation will be required under the state program.

entities can, and have, taken the lead in expanding permitting authorities in the face of limitations in the federal program (see Box 8–3 for a recent example). The committee recognizes the limits of the Section 404 program as a wetland management tool, but expanded state programs could ensure that wetlands within their territories remain protected regardless of where the federal courts decide to demarcate the boundaries of federal jurisdiction. However, the committee also recognizes that the capacities of states may be limited by statute and by staff and budget support. One possible path for federal agencies and for Congress would be to support expanded state capabilities as a response to the contracting of federal authority. The federal agencies could work with Congress to enhance technical assistance to states that wish to expand their permitting authorities, and to increase funding to states that take such actions or that have programs in place. Therefore, the committee encourages the Corps and the EPA to work with states to expand their permitting and watershed planning programs to fill gaps in the wetlands program.


  1. The committee recommends the following goal statement for compensatory mitigation institutions:

    Institutions (laws, regulations, and guidance) governing wetland permitting and compensatory mitigation should promote compensatory mitigation sites that meet ecological performance criteria and that result in a

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