VA Tidal Wetlands Act: Local Boards, VMRC, and the Living-Shoreline Default

Statutory framework

• Va. Code § 28.2-1300 et seq. — Virginia Tidal Wetlands Act.
• Coverage: vegetated and non-vegetated tidal wetlands, defined by elevation relative to mean low and high water plus presence of specific plant species (vegetated).
• Administering bodies: local wetlands boards and VMRC.
• Related statutes: Chesapeake Bay Preservation Act (Va. Code § 62.1-44.15:67 — see our VA CBPA essay); Virginia Water Protection Permit Program (DEQ-administered).

Primary source: mrc.virginia.gov.

Local wetlands boards — the distinctive feature

Most Tidewater Virginia localities have established a wetlands board of citizen members:

• Review permit applications for wetland-disturbing activities within their locality.
• Issue permits under local wetlands zoning ordinances consistent with the state Act.
• Balance wetlands preservation with economic development decisions.
• Decisions cover use, alteration, and development of tidal wetlands; in some cases coastal primary sand dunes and beaches.
• Operate under VMRC oversight.

Where a locality hasn't established a board, VMRC acts as the wetlands board directly. Project applicants need to identify which pattern applies in their jurisdiction.

VMRC role

• Regulatory authority for the Tidal Wetlands Act.
• Substitute wetlands board for localities without one.
• Issues permits for subaqueous lands (land submerged at low tide).
• Habitat Management Division issues environmental permits including tidal wetlands.

The Joint Permit Application (JPA)

Virginia's JPA is used for local, state, and federal independent-yet-concurrent review:

• Historic submission: to VMRC.
• Effective September 1, 2025: USACE becomes the central receiving point via the Regulatory Request System (RRS). Applications assigned to USACE Project Manager and distributed to partner agencies (VMRC, DEQ, local wetlands boards).

Review agencies (typical)

• Local Wetlands Boards — review against local ordinances and state Act.
• VMRC — tidal wetlands and subaqueous lands.
• Virginia DEQ — Virginia Water Protection (VWP) Permits for tidal and non-tidal wetlands and shallow water habitats; Section 401 Certification for federal permits.
• USACE — Section 404 CWA and Section 10 Rivers and Harbors Act for waters of the US.

Permit types

• General Permits — activities with minor impacts; expedited review; typically no public hearing.
• Individual Permits — for non-GP-qualifying or more-than-minimal impacts; comprehensive review including public notice, adjacent landowner notification, and opportunity for public comment.

No net loss policy and mitigation hierarchy

Virginia's wetlands policy: no net loss of wetland acreage and function. VWP Permit Program mitigation hierarchy:

1. Avoidance — design to avoid aquatic resource impacts to the extent practicable.
2. Minimization — where avoidance isn't practicable, minimize impacts.
3. Compensatory mitigation for remaining unavoidable impacts:
   • Credits from DEQ-approved mitigation bank.
   • Credits from approved in-lieu fee program.
   • Permittee-responsible watershed-approach mitigation.
   • Permittee-responsible onsite in-kind mitigation.
   • Permittee-responsible offsite or out-of-kind mitigation.

The 2020 living shorelines default (SB 776)

Senate Bill 776 (2020) was a substantive policy shift: living shorelines are the default for erosion control in Virginia.

• Applicants must demonstrate that a living shoreline approach is unsuitable based on best available science before alternatives (bulkheads, seawalls, rip-rap) can be considered.
• Even when hardened structures are justified, elements of living shoreline must be incorporated to the maximum extent possible.
• Sea level rise and coastal hazards must be accounted for in shoreline design.

This changed the VA shoreline regulatory posture meaningfully. Projects that would default to a bulkhead in other states start with living shorelines in VA.

CBPA coordination

Chesapeake Bay Preservation Act (see our VA CBPA essay) interacts with the Tidal Wetlands Act:

• Resource Protection Areas (RPAs) include tidal wetlands, tidal shores, non-tidal wetlands hydrologically connected to tidal systems, and 100-foot vegetated buffer.
• Tidal wetlands under local wetlands board jurisdiction also fall under CBPA jurisdiction.
• Wetlands permit doesn't negate CBPA compliance requirements.
• Local Chesapeake Bay boards separately consider applications under the local Bay Act ordinance.

USACE Section 404 coordination

• JPA-based concurrent review by USACE, VMRC, DEQ, local boards.
• VWP serves as Section 401 certification — federal permits comply with VA water quality standards.
• USACE applies its own avoid-minimize-mitigate hierarchy.
• As of September 1, 2025, USACE receives the JPA via RRS.

Practical considerations for developers

• Identify local wetlands board vs VMRC for your specific locality.
• Expect living shoreline as starting design for shoreline erosion projects.
• Sea level rise analysis is now part of the standard submission.
• JPA through RRS as of Sept 2025 — new submission point, same multi-agency review.
• Mitigation banking is a faster path than permittee-responsible mitigation in many cases.
• CBPA + Tidal Wetlands apply simultaneously — don't scope them separately.

How VA compares to neighbors

• Delaware. DNREC Wetlands + Subaqueous — see our DE Wetlands essay.
• New Jersey. CAFRA + WDA + FWPA + CZM — see our NJ CAFRA essay. Assumed Section 404.
• Maryland. MDE Tidal + Non-Tidal + Critical Area + MDSPGP — see our MD Wetlands essay.
• Pennsylvania. Chapter 105 waterway + wetlands — see our PA Chapter 105 essay.
• Virginia. Tidal Wetlands Act via local boards + VMRC + VWP + CBPA + living shoreline default. Most decentralized permit-issuing structure among the five states; most explicit living-shoreline mandate.

What to do with this

If your project is in Tidewater VA waterfront: identify local wetlands board; if none, VMRC.

If designing shoreline erosion control: start with living shoreline, document reasons if hardened structure needed.

If non-residential coastal construction: expect JPA through USACE RRS plus local/state concurrent review.

If mitigation needed: mitigation banking often faster than permittee-responsible.

For broader VA context, see our essays on VA CBPA, VA VSMP, VA USBC, Richmond DPDR, and Norfolk.

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