City Staff Information Regarding SB926

The following updated wording of SB926 was provided by Mr. Dave Hansen, Deputy City Manager, earlier today

10. Governmental activity in wetlands owned, leased or within an easement or right to use held by the Commonwealth or a subdivision thereof or a local government approved neighborhood navigation dredging project within a Special Services District adopted by the local governing body in accordance with Va. Code Section 15.2-2400, et seq.  

170 4.  For governmental activity not falling within the exceptions set forth in § 3 (10) above,

the board shall not condition approval on compensatory mitigation for adverse impacts if compensatory mitigation is required for the same activity by the Commission pursuant to Title 28.2 of the Code of Virginia, the Department of Environmental Quality pursuant to Title 62.1 of the Code of Virginia or  § 401 of the Clean Water Act,  or the United States Corps of Army Engineers pursuant to § 404 of the Clean Water Act and § 10 of the Rivers and Harbors Appropriations Act of 1889

Mr. Hansen also provided the following justification for making the legislative request that created SB926

SB926 is a modification of the existing law regarding government activities in wetlands.  The City Council has asked that the language be modified to expand the definition of government projects to include bon-a-fide easements and the Navigation SSD Dredging Projects.  These additions modify the 1992 law  of Va. Code Section 28.2-1302.  The specifics are:

  1. 1.      In Section 3, Paragraph 10, the addition of “or within an easement or right of use held by the Commonwealth or a subdivision thereof.”  The absence of reference to a legally binding easement has significantly disrupted the ability of government entities to implement timely and cost effective projects when substantiated, documented, and City Attorney validated legal instruments allowing the public use of property are in existence.  The “right of use” reference addresses the potential existence of a documented conveyed right other than title, easement or lease.  This instance occurred in the construction of the Constitution Drive Extension across Thalia Creek in Virginia Beach which delayed construction for over 12 months while properties were dedicated and accepted by the Council to establish the relationship of fee simple ownership.
  2. 2.      Also in Section 3, Paragraph 10 was the inclusion of additional specifying language, “or a local government approved neighborhood navigation dredging project within a Special Services District adopted by the local governing body in accordance with VA.Code Section 15.2-2400.”  This language is added to specifically allow SSD Navigation Projects to be considered government projects as they are engineered, constructed, funded and administered by local government staff and therefore, also exempt from Local Wetlands Board review.  This in no way is intended to amend or circumvent the State and Federal permitting process.  All navigation SSD projects will have permit applications submitted through the Joint Permit Application Process managed by VMRC for the purpose of obtaining State permits from both DEQ and VMRC as well as federal permits from the Corps of Engineers.  This specific exemption from Local Wetlands Board review solidifies the need for all three segments of the neighborhood SSD projects (City spur, neighborhood SSD channel, and individual connections) as being the complete project for the purpose of design, permitting and contracting.  By making these projects a government activity all mitigation becomes eligible for use in a government mitigation bank which the City of Virginia Beach is establishing as a result of the Pleasure House Point Purchase and its partnership with the Chesapeake Bay Foundation.  It is essential this specific language be included in Senator McWaters’ bill so that Lynnhaven River Now can create a Trust for the oversight of mitigation funds related to impacts in the Lynnhaven.

So as you see, this is a definitional clarification for what constitutes a government project that is exempt for local wetland board review.   The City Council sponsors feel that a permit application submitted by the City Manager’s Office to perform a City Council directed Navigation SSD Project that has been formulated by the City staff charged with providing the regulatory staff research and recommendations for the Local Wetlands Board creates a conflict of interest.  The staff that prepares the application should not be the staff support charged with reviewing and  recommending approval of that application. Currently the definition of “governmental activity” for the Local Wetland Boards, due to legislation for the Virginia Marine Resources Commission (VMRC),  is limited to lands the government either owns or holds an easement or right-of-way over.  The language must be modified as it is antiquated and not consistent with the SSD legislation, which was created decades after VMRCs legislation.  This in no way circumvents the state and federal permit review and approval process which this City adheres to on all government projects.

The neighborhood SSD program created by the City Council of Virginia Beach, following state enabling legislation available to all coastal communities in Virginia,  is a tremendous opportunity for waterfront residents to regain navigable access to city channels.  The SSD program is an essential program for many neighborhoods who could not otherwise dredge because the city is able to bundle the regulatory process, tax residents over a period of 16 years, thus building in a means to  finance the effort making it cost effective. Additionally, the “mud tax” which the City’s wetland board collects from private residential projects does not take into account that exposed sediment (“non-vegetated wetland” – or “mudflat” exposed at low tide) is “natural” versus a consequence of sedimentation from surrounding development.    The “mud tax” adds $112.50/cy ($12.50 per square foot x 9 square feet per cubic yard) to the cost of a project currently estimated to cost $30/cy (surveying, engineering, permitting and dredging) to remove the mud. It is this outrageous mud tax that has caused these project to be unaffordable.  In a matter of speaking this tax could be viewed as a prohibition to the property rights of waterfront home owners.

 The Local Wetland Board does not have jurisdiction over subaqueous river bottoms. These Projects will help to restore the environmental quality of the Lynnhaven River by improving the volume of water flow which will improve the tidal cleansing of the river.  All of which will improve the health of fish and shell fish in the river which is of major environmental benefit to the city and its citizens. I could understand the concern that the Local Wetland Board would have regarding tidal wetlands located around the point where dredge spoils are removed from the river but this will be covered in the state and federal permitting. Notwithstanding their normal concerns, all of the Projects are located within the river proper and not in the tidal wetlands.  It would appear that the only other concern that the Local Wetland Board could possibly have is where non-vegetative wetlands and subaqueous river bottom overlap.  Subaqueous river bottom and non-vegetative tidal wetlands are generally one in the same and determining where one starts and stops is of no environmental consequences.  Finally, the public is not further served in any way by requiring the waterfront property owner and the public to spend additional time and money to file and process redundant permits with their City Council appointed Local Wetland Board. Additionally, the fees that the Wet Lands Board could impose on the property owners were arbitrarily established several years ago by the Local Wetland Board without empirical environmental or economic basis. It is beyond reason to require the property owner to submit to additional public hearings only for the property owners to be required to pay additional fees.   To simply duplicate the review of the state and federal agencies that have jurisdiction over such project with an unnecessary local bureaucratic layer is not appropriate.

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