Wetlands and what they limitthe permits behind filling, draining and farming wet ground
A wet corner of a tract can be a regulated wetland or simply ground that holds water, and the difference decides whether filling, draining or impounding it needs a permit. This guide sets out the definition, the state and federal permits, and the exclusions written for farms and ponds.
One definition of wetlands, written into Virginia law and the Corps' rule alike
Virginia's water law and the U.S. Army Corps of Engineers' regulation describe wetlands in the same words. EPA says this is the definition the Corps and EPA have used for regulatory purposes since the 1970s.
Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.
33 CFR 328.3, definitions
Virginia's version, in Va. Code 62.1-44.3, adds that wetlands generally include swamps, marshes, bogs and similar areas. Read slowly, the definition has three working parts: water, often enough and long enough; plants adapted to saturated soil; and the phrase under normal circumstances. How that last phrase applies to ground that has been cleared, ditched or plowed is a question for the Corps and DEQ, not something to settle from a fence line.
EPA's explanation of how wetlands are identified starts under the surface. When the upper part of the soil is saturated at growing season temperatures, soil organisms use up the oxygen, and most plants cannot live there. The plants that can, marsh grasses among them, are called hydrophytes. EPA puts the two together: "Together, hydric soils and hydrophytes give clues that a wetland area is present."
EPA is just as plain about the clue people reach for first: water standing by ponding, flooding or saturation is not always a good indicator. A pasture swale that holds rain for a day after a storm is not proven a wetland by the puddle, and a stretch that looks dry in late summer is not proven otherwise by the dust.
The edge is drawn by a federal manual, not by where boots get wet
Where a wetland stops is a measured line. Virginia's regulation at 9VAC25-210-45 requires each wetland delineation, including those for isolated wetlands, to follow the Corps' Wetland Delineation Manual of January 1987 and any regional supplements the Corps has approved.
How the method works as a term, including how a stream channel is treated differently from a wetland, is set out under wetland delineation.
Virginia's rule names isolated wetlands expressly. The federal definition of waters of the United States at 33 CFR 328.3, in the version read for this guide, includes wetlands adjacent to certain waters and says that adjacent means having a continuous surface connection. Whether that federal definition has changed since, and whether a particular wet area falls within federal reach, are the Corps' determinations.
The drawn line matters beyond the permit file. It is one of the lines that feed into how much of a tract is actually buildable, alongside slope, soil and access.
Excavating, filling, impounding or significantly draining a wetland takes a Virginia permit unless an exclusion applies
The state's rule is written as a list of acts. Under Va. Code 62.1-44.15:20, except in compliance with an individual or general Virginia Water Protection Permit, it is unlawful to excavate in a wetland, and, on or after October 1, 2001, to conduct any of these in a wetland:
- new activities to cause draining that significantly alters or degrades existing wetland acreage or functions;
- filling or dumping;
- permanent flooding or impounding.
The Water Protection Permit regulation reaches past wetlands to surface waters generally. Under 9VAC25-210-50, unless an activity is exempted or excluded, no one may dredge, fill or discharge any pollutant into or adjacent to surface waters, or withdraw surface water, without a VWP permit. Va. Code 62.1-44.15:20 adds that issuing a VWP permit constitutes Virginia's certification under section 401 of the Clean Water Act.
The statute also closes a door at the local level: no locality may impose wetlands permit requirements that duplicate state or federal ones. Grading near wet ground raises a separate question under the stormwater rules, taken up in what a stormwater permit is.
Work in a river or creek itself follows its own application path, and a dock is the common case: building a dock on the New River has its own page.
Section 404 exempts normal farming, then takes the exemption back for a change of use
The federal permit sits alongside the state one. Under Clean Water Act section 404, in the statutory text EPA publishes, the Corps may issue permits for the discharge of dredged or fill material into the navigable waters at specified disposal sites.
Section 404 then exempts discharges from normal farming, silviculture and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber and forest products, and upland soil and water conservation practices. The exemption comes with a sentence that pulls some of that work back in:
Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section.
Clean Water Act section 404, as quoted by EPA
Read plainly, the test in that sentence is purpose and effect: bringing an area into a use it was not previously subject to, where the flow or circulation of the water may be impaired or its reach reduced. Which side of that sentence a particular project lands on is the Corps' call.
The federal permit shows up in a second file too. On land inside a mapped floodplain, a community reviewing proposed development under the NFIP criteria in 44 CFR 60.3 is directed to make sure every permit federal or state law requires, a section 404 permit among them, is already in hand. How to tell whether a site is on mapped flood ground is laid out in reading a floodplain map.
Virginia's farm exclusions cover established operations and ponds under a stated size
Virginia lists activities that need no VWP permit at 9VAC25-210-60, and the section opens with a caution: the activities it lists do not require a VWP permit but may require other permits under state and federal law.
Normal agriculture and silviculture in a wetland is on that list: plowing, seeding, cultivating, minor drainage, and harvesting for food, fiber and forest products. To fall under the exclusion, the work must be part of an established, meaning ongoing, agriculture or silviculture operation, carried out in accordance with the applicable best management practices. The regulation then draws the edge in one sentence:
Activities which bring a new area into agricultural or silvicultural use are not part of an established operation.
9VAC25-210-60, exclusions
A hayfield cut year after year and a wooded wet flat someone wants to clear and plant for the first time sit near opposite ends of that rule. Plenty of plans fall between them, draining a wet corner to make it tillable among them, and whether a particular plan is part of an established operation is DEQ's determination, not a seller's or a buyer's.
Farm ponds have an exclusion of their own. It covers the construction and maintenance of farm or stock ponds and impoundments operated for normal agricultural or silvicultural purposes that are less than 25 feet in height or create a maximum impoundment capacity smaller than 100 acre-feet. Taking water out of such a pond is another matter: the regulation says a withdrawal from it may still need a VWP permit. The exclusion's wording does not mention a pond's water source, and whether a spring-fed pond fits the exclusion is a question to put to DEQ.
Withdrawals have their own excluded amounts under 9VAC25-210-310, including agricultural withdrawals under one million gallons in a single month from nontidal waters, and other permits may still apply. Those thresholds, and where a spring or a creek fits among them, are the subject of springs, creeks and water rights.
Wet ground on a tract, and the order its questions come in
Put together, the rules above sort a wet area on a tract into a short sequence of questions, each with a different party holding the answer.
Read the clues
Hydric soil and plants adapted to saturated soil are the signs EPA names. Standing water by itself is not the test.
Draw the edge
A delineation under the Corps' 1987 manual and its approved regional supplements fixes where the wetland stops.
Name the work
Excavating, filling, permanently flooding or significantly draining a wetland is where the state permit requirement sits. Established farming under the applicable best management practices and qualifying farm ponds are where the exclusions sit.
Take it to the agencies
The Corps and DEQ decide jurisdiction, permits and any mitigation. No county can add a wetlands permit that duplicates theirs.
A strip of trees kept along a creek bank is a separate subject from a wetland, even when the two sit side by side on the same bottom, and it is taken up in what a riparian buffer is.
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Good questions, straight answers.
Does farming a wet field need a Virginia Water Protection Permit?
Not when the work is normal agriculture carried on as part of an established, ongoing operation under the applicable best management practices; Virginia's regulation excludes that from the VWP permit, though other state or federal permits may still apply. Activities that bring a new area into agricultural or silvicultural use are not part of an established operation. Whether a particular field and plan qualify is DEQ's determination.
Can a county require its own wetlands permit on top of the state and federal ones?
Not one that duplicates them. Virginia's water law says no locality may impose wetlands permit requirements duplicating state or federal wetlands permit requirements. County ordinances on other subjects, such as floodplain development or land disturbance, are separate questions for the county office that runs them.
Is standing water proof that part of a tract is a wetland?
No. EPA says the presence of water by ponding, flooding or soil saturation is not always a good indicator of wetlands, and points instead to hydric soils and plants adapted to saturated conditions as the clues. In Virginia the edge of a wetland is drawn under the Corps' 1987 Wetland Delineation Manual and its approved regional supplements, and jurisdiction is decided by the Corps and DEQ.
Does building a farm pond in a wet area need a permit?
Not necessarily a Virginia Water Protection Permit. The state excludes the construction and maintenance of farm or stock ponds operated for normal agricultural or silvicultural purposes that are less than 25 feet high or impound less than 100 acre-feet. The exclusion does not clear other state or federal permits, and a withdrawal from the pond may need a VWP permit. DEQ and the Corps confirm what a given pond requires.
Where this page's facts come from
Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.
- Va. Code 62.1-44.3: definitions, including wetlands Virginia General Assembly
- Va. Code 62.1-44.15:20: Virginia Water Protection Permits, prohibited acts, and section 401 certification Virginia General Assembly
- 9VAC25-210-45: wetland delineation Virginia Administrative Code
- 9VAC25-210-50: prohibitions and requirements for VWP permits Virginia Administrative Code
- 9VAC25-210-60: exclusions Virginia Administrative Code
- 9VAC25-210-310: surface water withdrawals excluded from VWP permits Virginia Administrative Code
- 33 CFR 328.3: definitions, waters of the United States eCFR
- How wetlands are defined and identified under CWA section 404 U.S. EPA
- Overview of Clean Water Act section 404 U.S. EPA
- 44 CFR 60.3: floodplain management criteria for flood-prone areas eCFR