Can a Virginia locality require that environmental mitigation for impacts to wetlands or streams within the locality be performed inside the locality's boundaries?

Plain-English summary

When a developer wants to build in a way that damages wetlands or streams, federal and state law require "compensatory mitigation" to offset the harm. Mitigation can take various forms: creating or restoring wetlands elsewhere, buying credits from a mitigation bank, or contributing to a state fund. Generally, mitigation has to happen in the same watershed as the impacted site, but state and federal law don't require it to happen in the same city or county.

Some Virginia localities wanted to keep the mitigation work (and the environmental benefit, and the construction activity) inside their own borders. Delegate Thomas Davis Rust asked the Attorney General two questions: can a locality require in-jurisdiction mitigation by ordinance? And if not, can a locality accept a voluntary proffer from a developer agreeing to do the mitigation in-jurisdiction and bake that proffer into the zoning?

Attorney General Herring's answer was no to both.

The decisive statute is Va. Code § 62.1-44.15:20(E), as amended in 2010. The original version of the statute prohibited duplicative local wetland permitting. The 2010 amendment expressly extended the prohibition to location of mitigation: "no locality shall impose or establish by ordinance, policy, plan or any other means provisions related to the location of wetlands or stream mitigation in satisfaction of aquatic resource impacts regulated under a Virginia Water Protection Permit or under a permit issued by the U.S. Army Corps of Engineers . . . ."

The 2010 amendment is broad. It uses "ordinance, policy, plan or any other means" to make clear that localities cannot achieve indirectly what they cannot do directly. That includes voluntary proffers. Once a locality accepts a proffer, the proffer becomes a condition of the rezoning and is incorporated into the zoning ordinance. Town of Leesburg v. Long Lane Assocs. Ltd. P'ship (2012) confirms that proffer adoption is effectively an amendment to the zoning ordinance. So a proffer that conditions rezoning on in-jurisdiction mitigation runs into § 62.1-44.15:20(E)'s prohibition.

The Dillon Rule reinforces the conclusion. Localities have only the powers expressly granted, fairly implied, or essential and indispensable. Where the General Assembly has expressly limited local power, the limit must be given effect. The State Water Control Board has comprehensive regulatory authority over mitigation location decisions, and localities cannot intrude.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current State Water Control Law before relying on any specific rule mentioned here.

Common questions

Can a Virginia city say "if you damage our wetlands, you must fix wetlands here"?

No. The state law preempts that. Mitigation location is decided by the State Water Control Board, subject to watershed-based rules.

Can a developer voluntarily agree to do mitigation locally as part of a proffer?

A developer can say they intend to do local mitigation, but the locality cannot make that part of a binding proffer condition incorporated into the zoning. The opinion treats accepted proffers as effectively local ordinances, which the statute prohibits.

Where can mitigation happen?

Within the same fourth-order subbasin as the impacted site, or in an adjacent subbasin in the same river watershed, depending on the type of mitigation (mitigation bank credits, wetland creation/restoration, etc.). Federal regulations also require a watershed approach.

Why does the state preempt this?

The General Assembly chose to give the State Water Control Board comprehensive authority over mitigation decisions in 2010 specifically to prevent locality-by-locality fragmentation. The reasoning is that ecosystem function depends on watershed-scale planning, not municipal boundaries.

What if the local wetlands are unique and irreplaceable?

The opinion doesn't address that scientific question. As a legal matter, the watershed-based mitigation framework applies regardless of local uniqueness. A developer's mitigation must satisfy state and federal requirements; localities cannot add their own location overlay.

Background and statutory framework

The federal Clean Water Act (33 U.S.C. § 1344) and Virginia's State Water Control Law (Va. Code §§ 62.1-44.15:20 to 62.1-44.15:23.1) regulate disturbances to wetlands and streams. Both regimes require permits and require permit conditions that compensate for impacts ("mitigation").

Mitigation can take four forms under Va. Code § 62.1-44.15:21(B): (1) creating or restoring wetlands, (2) buying credits from a Virginia Water Protection Permit-approved mitigation bank under § 62.1-44.15:23, (3) contributing to the Wetland and Stream Replacement Fund under § 62.1-44.15:23.1, or (4) contributing to another Board-approved fund.

State law and federal regulations impose geographic constraints on these mitigation choices. Section 62.1-44.15:23 requires bank credits to be from the same fourth-order subbasin as the impact site, or from an adjacent subbasin in the same river watershed. Federal regulations (33 C.F.R. § 332.3) require a watershed approach. But neither tied mitigation to municipal boundaries.

The original § 62.1-44.15:20(E) (pre-2010) banned local permitting duplication. The 2010 amendment expanded the prohibition to "provisions related to the location of wetlands or stream mitigation." The expansion uses the words "ordinance, policy, plan or any other means," casting a wide net.

Herring applied the principle that restrictive legislation limits local power (The Lamar Co. v. City of Richmond, 2014). And he relied on Town of Leesburg v. Long Lane Assocs. Ltd. P'ship (2012) for the rule that accepted proffers become zoning ordinances. Combining those two principles: the statute bars location-of-mitigation conditions, and proffers that impose such conditions are effectively zoning ordinances, so accepting them is barred.

Citations

• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. § 62.1-44.15:20 (State Water Control Law, with subsection (E) on local preemption)
• Va. Code Ann. § 62.1-44.15:21 (compensatory mitigation methods)
• Va. Code Ann. § 62.1-44.15:23 (mitigation banks)
• Va. Code Ann. § 62.1-44.15:23.1 (Wetland and Stream Replacement Fund)
• 33 U.S.C. § 1311 (Clean Water Act prohibition on discharges)
• 33 U.S.C. § 1344 (Clean Water Act § 404 permits)
• 33 C.F.R. § 332.3 (federal mitigation regulations)
• 9 Va. Admin. Code § 25-210-116 (Virginia mitigation regulations)
• 2010 amendment expanding § 62.1-44.15:20(E) to cover the location of mitigation
• Bd. of Zoning Appeals v. Bd. of Supvrs., 276 Va. 550 (2008)
• Bd. of Supvrs. v. Horne, 216 Va. 113 (1975)
• The Lamar Co., LLC v. City of Richmond, 287 Va. 348 (2014)
• Town of Leesburg v. Long Lane Assocs. Ltd. P'ship, 284 Va. 127 (2012)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/15-043_Rust.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
October 2, 2015

The Honorable Thomas Davis Rust
Member, House of Delegates
Herndon Town Hall
730 Elden Street
Herndon, Virginia 20170

Dear Delegate Rust:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire whether a locality may institute a policy or plan mandating that compensatory mitigation for impacts to wetlands or streams occurring within the locality be performed within the boundaries of the locality. You also ask whether a locality may accept a voluntary proffer from an applicant requiring that compensatory mitigation occur within the boundaries of that locality and incorporate the proffer into the locality's zoning ordinance.

Applicable Law and Discussion

Environmental impacts to streams and wetlands within the Commonwealth are subject to regulation under the federal Clean Water Act as well as Virginia's State Water Control Law. Both laws generally prohibit the disturbance of a wetland or stream without first obtaining a permit from the U.S. Army Corps of Engineers and the State Water Control Board ("Board"). All permits issued must contain "requirements for compensating impacts on wetlands." These requirements are intended to offset the adverse effects of human activity and development on streams and wetlands. Every permit holder is required to meet all applicable federal and state mitigation requirements.

Your inquiry involves state mitigation requirements. State law provides a number of different mechanisms for satisfying mitigation requirements. They include "(i) wetland creation or restoration, (ii) purchase or use of mitigation bank credits pursuant to § 62.1-44.15:23, (iii) contribution to the Wetland and Stream Replacement Fund established pursuant to § 62.1-44.15:23.1 . . . , or (iv) contribution to a Board-approved fund dedicated to achieving no net loss of wetland acreage and functions."

With respect to the location of mitigation efforts, the State Water Control Law places certain geographic requirements on the use of mitigation bank credits. Moreover, any mitigation effort performed under § 62.1-44.15:21(B)(i) must generally be sited within the same watershed as the impacted site. However, nothing in state law or regulation requires that mitigation be performed within the particular locality affected by the adverse impacts.

Indeed, the General Assembly has passed legislation prohibiting localities from intruding upon the Board's oversight of mitigation activities. As originally enacted, § 62.1-44.15:20(E) provided that "[n]o locality may impose wetlands permit requirements duplicating state or federal wetlands permit requirements." In 2010, the General Assembly clarified the scope of the restriction by stating that the prohibition extends to the location of mitigation efforts. In its current form, § 62.1-44.15:20(E) now provides that:

[N]o locality shall impose or establish by ordinance, policy, plan or any other means provisions related to the location of wetlands or stream mitigation in satisfaction of aquatic resource impacts regulated under a Virginia Water Protection Permit or under a permit issued by the U.S. Army Corps of Engineers pursuant to § 404 of the Clean Water Act.

In analyzing this limitation, I note that Virginia follows the Dillon Rule, which "provides that municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable." In addition, a corollary to the Dillon Rule restricts the powers of local governing bodies to those that are "fixed by statute," and limits their powers "to those conferred expressly or by necessary implication." In keeping with the precepts of the Dillon Rule, where the General Assembly expressly limits the power of a locality, rather than enabling it, the express limitation must be given effect.

Further, the language of the limitation in § 62.1-44.15:20(E) is plain. The statute clearly forbids a "locality," by whatever means, from establishing the "location" of any required mitigation activities. Where a statute is unambiguous, courts will hold that the plain meaning of the statute controls. Stated differently, "[t]he manifest intention of the legislature, clearly disclosed by its language, must be applied. There can be no departure from the words used when the intention is clear." Here, the restrictive language in the statute, coupled with the powers granted to the Board to oversee mitigation projects, makes clear the General Assembly's intent that the comprehensive regulatory scheme established by the State Water Control Law cannot be intruded upon by localities. Accordingly, it is my opinion that localities are prohibited from requiring that mitigation efforts for impacts to wetlands or streams be performed within the boundaries of the locality.

This prohibition extends to voluntary proffers as well. Proffers, once accepted by a locality, "become conditions of the rezoning and, once entered into law, the conditions become zoning regulations." In other words, by accepting the proffer, the locality effectively adopts an "amendment to the zoning ordinance" incorporating the proffer into the ordinance. Thus, the proffer adoption would constitute establishment "by ordinance" of provisions related to the location of wetlands or stream mitigation prohibited by the provisions of § 62.1-44.15:20(E).

Conclusion

Accordingly, it is my opinion that § 62.1-44.15:20(E) prohibits a locality from instituting a policy or plan mandating that mitigation for impacts to wetlands or streams occurring within that locality be performed within the boundaries of the locality. This prohibition includes acceptance of a voluntary proffer from an applicant relating to the location of compensatory mitigation.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General