Environmental Regulatory Update

It has been a big year in terms of changing environmental regulations, and MAP Environmental Inc. (MAP) staff are continuing to focus on a few distinct but impactful changes to the Hampton Roads Community.

Federally Threatened and Endangered Species- Tricolored Bat

The U.S. Fish and Wildlife Service (USFWS) announced a proposal on September 13, 2022 to list the tricolored bat as endangered under the Endangered Species Act (ESA). It is unknown as to when this change will officially take effect; however, the environmental community has already begun including this species in its formal consultation with USFWS as part of the wetlands permitting process. While the tricolored bat has subtle differences in habitat preferences in comparison to the infamous northern long-eared bat, it is anticipated that the avoidance and minimization measures for both species will be similar.

Waters of the United States

In even bigger news, this summer’s Supreme Court ruling on Sackett v. EPA (Sackett) and the removal of the long-standing “significant nexus” test in defining Waters of the United States (WOTUS) has had a country-wide impact on determining which wetlands are (and are not) jurisdictional to the U.S. Army Corps of Engineers (USACE). The full impact of this ruling is yet to be seen, but locally, little has changed. While we’ve seen a transition of jurisdiction from the USACE to the Virginia Department of Environmental Quality (DEQ), DEQ has been regulating State Waters (including isolated wetlands) under the same general guidelines for over 20 years. The wetlands permitting process may be slightly different, but the parameters that define a wetland and whether or not you need to purchase off-site mitigation to fill/alter it, remains the same.

State Waters

With the sudden influx of wetlands now solely jurisdictional to the State and the resulting increase in State Surface Waters Delineation (SSWD) reviews, DEQ has developed the Virginia State Waters Delineator (VSWD) certification. A goal of this program is to keep the wetlands permit review timeline on track by a) training practitioners in state surface waters delineations and b) placing the responsibility on the certified practitioners for the accuracy of state waters field delineations. One of the noticeable benefits of the VSWD program is processing time: while securing Jurisdictional Determinations (JDs) from the USACE has lately taken 6-12 months, the timeline for securing approval of a SSWD submitted by VSWD-certified consultant is 30 days.

While the regulatory arena continues to change, we’re looking forward to continuing to work with our clients and the regulatory agencies to move projects forward here in Hampton Roads.