Wetlands Ordinance – Existing Bulkheads Generally Grandfathered

Wetlands Ordinance – Existing Bulkheads Generally Grandfathered

There has been a lot of information and misinformation being shared with community members, especially those who live along our waterways, as to what is permitted or not permitted based on the 2020 Virginia Wetlands law. I want to reassure residents whose property connects to a navigable waterway that maintaining existing bulkheads and the grandfathering of existing bulkheads in good repair is covered under the state law, and as written in the County ordinance. 

In response to questions we have received regarding this, County staff prepared the following information based on the state and local Wetlands Board guidance as to how the law is applied.

Best Practices for projects with potential Wetlands Impact

Property owners with waterfront property on the Potomac River or other tidal waterways should always verify whether a planned project near or adjacent to their shoreline will impact tidal wetlands. County staff can provide guidance and perform a site visit at the property owner’s request to aid in this determination. Contact info appears below.

Fairfax County Wetlands Board Staff 

Department of Planning and Development, Planning Division 

12055 Government Center Parkway, Suite 730 

Fairfax, VA 22035-5504 

Phone: 703-324-1380, TTY 711 or email: DPDWetlandsBoard@fairfaxcounty.gov

When is a permit from the Wetlands Zoning Ordinance required?

Certain uses and activities in wetlands are allowed without approval of a permit from the Wetlands Zoning Board. Those exempt uses and activities are listed in Wetlands Zoning Ordinance § 116-1-3. All other uses or development of wetlands that are not exempt under Wetlands Zoning Ordinance § 116-1-3 must be approved by the Wetlands Zoning Board through the submission of a permit application. Wetlands Zoning Ordinance § 116-1-4(a).

Do I need a permit to maintain my bulkhead or existing shoreline protection measures?

No application or permit from the Wetlands Zoning Board is required if “no additional wetlands” are covered or developed as part of any project, whether characterized as maintenance or otherwise. Wetlands Zoning Ordinance §§ 116-1-3(9), 116-1-4(a).

The seaward construction of a new bulkhead relative to an existing bulkhead is not considered maintenance and may result in the coverage or development of wetlands, which requires a permit from the Wetlands Zoning Board. Likewise, the seaward extension of existing rip-rap or other hardened shoreline protection measure may result in the coverage of tidal wetlands, which also requires a permit. It is possible that tidal wetlands may exist on the landward side of a bulkhead or other shoreline protection measure, if the area experiences inundation, or in sediment build-up within rip-rap. The bottom line: if tidal wetlands will be developed or covered as part of any project, then a permit from the Wetlands Zoning Board is required.

What about my existing bulkhead?

Existing bulkheads are lawful. 

Living Shorelines - Living shorelines are defined by the Virginia Marine Resources Commission as a shoreline management practice that provides erosion control and water quality benefits; protects, restores or enhances shoreline habitat; and maintains coastal processes through the strategic placement of plants, stone, sand fill, and other structural and organic materials. Landowners must consider living shorelines when applying for a permit to implement any shoreline control project that impacts tidal wetlands. Under Virginia Code § 28.2-1302 and Wetlands Zoning Ordinance § 116-1-4(b), permit applicants must make “a statement indicating whether use of a living shoreline as defined in § 28.2-104.1 for a shoreline management practice is not suitable, including reasons for the determination.” Generally, the more a shoreline is exposed to erosive wave action, the less suitable living shoreline methodologies are.

I hope this information is helpful and I know it may be confusing, so if you have any questions please contact the County staff listed above and you are always welcome to contact my office at 703-780-7518 or mtvernon@fairfaxcounty.gov. For questions about the state law that the County is implementing, please contact your state legislators.