HJR 719

Commission on the Future of Virginia's Environment

October 8, 1999, Richmond

The commission's first meeting of the 1999 interim was scheduled to be held in Kiptopeke State Park in September, but due to Hurricane Floyd, the meeting had to be postponed and held in Richmond. The purpose of the meeting was for the commission to receive reports from its subcommittees and to learn about "Tulloch ditching" of wetlands. Now in its fourth year of existence, the commission's responsibilities for this year include developing a vision and plan for the future of Virginia's environment, studying the "smart growth" issues assigned to it by SJR 177 (1998), and identifying a stable funding source for the state park and open space system.

Subcommittee Reports

Three of the subcommittees established in prior years have continued to meet during the 1999 interim, as outlined in a May memorandum from the commission chairman describing their responsibilities.
Parks and Land Conservation
Among the issues assigned to the Parks and Land Conservation Subcommittee are open space protection incentives and funding and the needs of Virginia's state parks system. Having met three times prior to the full commission meeting, the subcommittee has agreed on two recommendations. First, $40 million per year of the money generated by the state recordation tax should be allocated to the Virginia Land Conservation Foundation. The money would be available only after currently existing allocations of recordation tax revenues are made and would be used in accordance with 1998 legislation overhauling the foundation that was recommended by the subcommittee and full commission last year. Second, the general fund appropriation to the Division of State Parks should be increased by $8.5 million for park maintenance and by $900,000 for salary upgrades. The commission endorsed these proposals in concept and will finalize the recommendations at its next meeting.

As part of its effort to study farmland preservation issues, the subcommittee is working on revising the state important farmlands law, examining the land use taxation issues raised in SJR 503 (1999), and identifying other tools that states and localities can use to prevent farmland loss. The subcommittee is also continuing to monitor the Virginia Land Conservation Foundation and plans to review the foundation's recently issued grant criteria at its next meeting.

Solid Waste
The Solid Waste Subcommittee's charge is to study issues associated with the importation of waste into Virginia and the disposal of waste in older, poorly lined landfills known as "HB 1205 landfills." The subcommittee has not yet made any recommendations. The work conducted in its first three meetings has focused on HB 1205 landfills, particularly the ability of localities to pay for closure and post-closure care of the landfills and the Department of Environmental Quality's regulatory process for detection and correction of leaks from these landfills. The subcommittee plans to discuss the out-of-state waste issue at its next meeting.

Waste management alternatives, such as waste-to-energy incinerators and a process called "total waste processing" have also been the subjects of testimony before the subcommittee. As part of this inquiry, the subcommittee plans to examine Virginia's recycling efforts. Finally, the subcommittee has received briefings on Virginia's definition of "regulated medical waste." Some members of the regulated community are concerned about difficulties distinguishing which types of waste require special treatment under Virginia Waste Management Board regulations. They also maintain that Virginia's regulations unnecessarily require more waste to be specially treated than those of neighboring states. The board has initiated the process for amending these regulations.

Vision and Plan
The Vision and Plan Subcommittee is responsible for submitting a proposed vision and plan for the future of Virginia's environment to the full commission. The subcommittee has developed a draft vision document and plans to revise HB 2273 (1998) so that it might serve as the "plan" portion of the commission's recommendations. The draft vision document contains a vision statement ("a clean, productive environment—and a government that preserves, promotes, and improves it") and a list of seven goals that must be met in order for the vision to be achieved. HB 2273 would create the Virginia Natural Resources Policy Act. This law would replace the state's existing environmental impact report review process with a new process and create a council to review the reports. The subcommittee has held two meetings, has taken public comment on the two drafts at both meetings, and intends to continue refining the two drafts and to present its recommendations at the next commission hearing.

The "smart growth" issue has also been assigned to the Vision and Plan Subcommittee. A special panel composed of members of the subcommittee and members of the Joint Subcommittee to Study Land Development Patterns (HJR 543) traveled to Baltimore in July to learn about Maryland's "Smart Growth and Neighborhood Conservation Initiatives," a package of legislation that was proposed by Governor Glendening and enacted by the legislature in 1997. The package consists of five components: a rural open space protection program, a contaminated site clean-up and redevelopment ("brownfields") program, a job creation tax credit, a "live near your work" incentive program, and The Smart Growth Areas Act, which limits state infrastructure funding related to development to existing communities and places designated by state and local governments for growth.

Tulloch Ditching

According to the Virginia Institute for Marine Science, Tulloch ditching refers to the practice of digging drainage ditches in wetlands and carefully removing excavated material from the wetland, so that the site drains and will no longer be considered a wetland. Among the ecological functions served by nontidal wetlands (the type of wetlands most likely to be ditched and drained) are pollutant removal, fish and wildlife habitat, and flood protection. The ability of the wetland to serve these functions is impaired when the wetland is drained.

Tulloch ditching was federally regulated until a court ruled last summer that the Clean Water Act does not provide federal agencies with adequate authority for such regulation. According to the U.S. Army Corps of Engineers, 2,498 acres of wetlands have been drained in Virginia since that time, and 6,514 acres are planned to be drained. The Chesapeake Bay Foundation told the commission that allowing such wetland losses is contrary both to Virginia's commitment under the Chesapeake Bay Agreement to prevent net losses of wetlands and to Governor Gilmore's promise to reverse losses in wetland acreage. The foundation called on the administration and the General Assembly to utilize existing authority and enact additional legislation to prevent Tulloch ditching and provide comprehensive protection to wetlands. The Virginia Association of Homebuilders stated that pollution control statutes should not be expanded in scope to address wetlands and noted that draining and development are feasible for only a limited number of wetland sites. The association is concerned that the private property rights of owners of wetland sites be protected.

Tulloch ditching is being regulated under state laws in Maryland, North Carolina and Pennsylvania. Maryland and Pennsylvania both have nontidal wetlands statutes, under which Tulloch ditching and other activities affecting wetlands require a permit, and the standards for permit issuance are fairly strict. In North Carolina, the government has recently determined that ditching of wetlands violates state water quality regulations. The Attorney General of Virginia, however, has reached the conclusion that existing Virginia law does not provide the State Water Control Board with authority to regulate Tulloch ditching. In an opinion issued the same day as the commission meeting, Attorney General Earley determined that the board may only regulate nontidal wetlands to the very limited extent that the federal Clean Water Act requires state approval of federal permits. A representative of the Office of the Attorney General told the commission that, in order for Tulloch ditching to be regulated by the board, legislative action giving the board specific authority is required.

In May, Governor Gilmore issued an executive order creating the Citizens Wetlands Advisory Committee. As of the commission's meeting, the advisory committee's final report had not been submitted, but the report was expected to be presented to the governor within the next week. An unofficial copy of the draft report's executive summary was provided to the commission and indicated that the report would recommend a policy of (i) achieving no net loss of jurisdictional wetlands through state and federal regulatory program compensation and mitigation requirements for permitted wetland losses and (ii) achieving a net gain in wetlands through voluntary efforts.

Future Meetings
The chairman of the commission appointed a new subcommittee to make recommendations with respect to the wetlands issues raised at the meeting. Meetings are planned for the Wetlands Subcommittee and the Vision and Plan Subcommittee, but dates have not yet been set. The Parks and Land Conservation Subcommittee will meet on November 9th and 10th and the Solid Waste Subcommittee will meet on December 15th. The full commission will next meet on December 17th, at which time recommendations of the four subcommittees will be considered.

The Honorable Thomas W. Moss, Jr., Chairman
Legislative Services contact: Nikki Rovner