Vol. 28, No. 14 ● November 16, 2020
State Surface Waters Determination
The proposed WOTUS definition excludes ephemeral streams like this one.
Recent changes to the Navigable Waters Protection Rule mean that the U.S. Army Corps of Engineers (COE) regulates less surface water in Virginia than the Virginia Department of Environmental Quality (DEQ). In order to prevent unauthorized impacts, DEQ will now need to issue a State Surface Waters Determination, the DEQ’s version of the Jurisdictional Determination (JD), when state waters exist and there is no COE jurisdiction. This potential for differences between the COE and DEQ jurisdiction may result in inconsistencies in wetland permits and permit types required. Wetland Studies and Solutions, Inc. has reviewed the October 27, 2020 guidance from the DEQ and offers the following summary.
To avoid un-authorized impacts to state waters, DEQ is requesting the following:
Early coordination if you have a project that has wetlands, streams, or open water that are not federally jurisdictional
For example – IF you have an Approved JD from the COE that does not include all surface waters on the site (e.g. isolated waters and ephemeral streams), then the project needs a State Surface Waters Determination from DEQ.
IF you have a Preliminary JD from the COE that includes state surface waters, a State Surface Waters Determination is not needed.
Request a State Surface Waters Determination:
This should be done concurrently or after the delineation is sent to the COE but before a wetland permit application is filed.
Standard delineation packages that are submitted to the COE are likely to be sufficient for DEQ (data sheets, photos, stream assessment forms), provided that all waters are depicted.
DEQ is developing a state waters checklist and we anticipate they will send out more guidance on this topic soon.
If you have questions regarding how a State Surface Waters Determination may affect your project, please contact Christie Blevins, Ben Rosner, or Bob Kerr.