1984-1985 REPORT OF THE ATl'ORNEY GENERAL 449
The Wetlands Act prohibits any use or development of wetlands without a wetlands
permit issued by a wetlands board. See §§ 62.1-13.9 and 62.1-13.5(4)(a). A wetlands
board must base its decision to issue or deny a permit on the impact the use or
development will have on the public health and wel~are as expressed by the Act's policy
of preserving wetlands. Sections 62.1-13.5(9) and 62.1-13.1. The Commission is
empowered by § 62.1-13.13 to modify, remand or reverse the decision of the wetlands
board. See 1982-1983 Report of the Attorney General at 761.
In granting or denying any permit for the use of State-owned bottom lands, the
Commission must consider the effect of the project "upon the wetlands of the
Commonwealth, except when its effect upon said wetlands has been or will be
determined under the provisions of Chapter 2.1 (§ 62.1-13.1 et seq.) [The Wetlands
Act] .... " Section 62.1-3, ,1 6.
By reading a wetlands board's authority to carry out the Commonwealth's strong
policy favoring wetlands preservation, together with the deference to Wetlands Act
decisions contained in§ 62.1-3, I conclude that a local wetlands board should consider the
impact on wetlands from the total project, including that portion of the project resting
on subaqueous lands beyond the wetland. Although not expressly authorized to do so by
statute, regulation of the length of a structure is vital to exercising the authority to
regulate the use of wetlands. Whether such consideration will require imposition of a
limitation on the length of structures located below mean low water is a factual
determination which must be made on a case-by-case basis. That decision is subject to
review by the Commission. If the wetlands board does not consider the wetlands impact
of the total project, the Commission must consider, pursuant to § 62.1-3, the effect of
such a subaqueous project on wetlands, when it determines whether or not to grant a
permit to use subaqueous lands.
I am, therefore, of the opinion that a local wetlands board is authorized to regulate
the length of a structure which is constructed through both the intertidal zone and
channelward of mean low water, subject to superior jurisdiction of the Commission to
modify or reverse the decision.
WETLANDS. REPAIR OR REPLACEMENT OF BULKHEADS EXEMPT FROM PERMIT
REQUIREMENTS AS LONG AS NO ADDITIONAL WETLANDS COVERED.
December 19, 1984
The Honorable John H. Foote
County Attorney for Prince William County
This letter is in response to your request for an interpretation of the Wetlands Act,
§ 62.1-13.1 et seq. of the Code of Virginia, as it pertains to bulkheads and their repair.
Your inquiries are motivated by a proposal to completely remove an existing wooden
bulkhead and replace it with new metal materials. Such operation will disturb
nonvegetated wetlands. You did not indicate if additional wetlands will be covered by
the construction.
Section 62.1-13.5 authorizes counties, cities and towns to adopt a wetlands zoning
ordinance. The provisions are specified in the statute. Section 3 of the ordinance
exempts certain uses of wetlands from the necessity of obtaining a wetlands permit. It
reads, in pertinent part, as follows:
"The following uses of and activities on wetlands are permitted, if otherwise
permitted by law:
450 1984-1985 REPORT OF THE ATTORNEY GENERAL
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(h) The normal maintenance, repair or addition to presently existing roads,
highways, railroad beds, or the facilities of any person, firm, corporation, utility,
federal, State, county, city or town abutting on or crossing wetlands, provided that
no waterway is altered and no additional wetlands are covered .... " (Emphasis
added.) - - ---
Your first inquiry is whether bulkheads are "facilities," as described in § 3(h) of an
ordinance authorized in§ 62.1-13.5. When reading a statute, the general rule is that its
words should be given their usual, commonly understood meaning. See The Covington
Virginian v. Woods, 182 Va. 538, 29 S.E.2d 406 (1944); 1980-1981 Report of the Attorney
General at 58. The commonly understood meaning of "facility" is "something .•• that is
built ••• installed, or established to perform some particular function •••• " Webster's Third
New International Dictionary 812 (1968). The same publication defines "bulkhead" as a
device designed to resist pressure or shut off water, especially "the retaining wall along a
waterfront." A bulkhead is commonly used to perform a particular function: to prevent
the erosion of the bank of a waterway or to contain fill material; accordingly, a bulkhead
comes within the broad definition of "facility." I am, therefore, of the opinion that
bulkheads are included within the word "facilities" in § 3(h), and that the normal
maintenance, repair or additions to a bulkhead would be permitted under that section if
no further wetlands were covered.
Your second question is whether the phrase "normal maintenance, repair or addition
to" in § 3(h) would include the complete replacement or reconstruction of a bulkhead in
the same location. It is my understanding that such replacement may disturb existing
nonvegetated wetlands, but you did not state whether it will result in the covering of !!!!Y
additional wetlands. The answer to your inquiry hinges upon that fact.
The exemption contained in § 3(h) applies not only to maintenance and repair but
also to an "addition to" a facility, the key condition being that "no additional wetlands
are covered." I am advised that when a bulkhead begins to suffer serious deterioration, a
common practice is to completely replace it. The replacement may occupy the exact
location or it may be constructed seaward of the exising bulkhead. If not built on the
same location, it would necessarily mean that additional wetlands will be covered by the
facility.
I am, therefore, of the opinion that replacement of a bulkhead is within the
contemplation of "normal maintenance, repair or addition to presently
existing ••• facilities ••.• 11 If, however, any additional wetlands will be covered, such
replacement will require a wetlands permit inasmuch as it would not then be exempted as
provided in § 3(h) of the wetlands ordinance.
WILLS AND ADMINISTRATION. ANTI-LAPSE STATUTE. USE OF TERM "PER
CAPITA" DOES NOT DEFEAT OPERATION OF S 64.1-64.
September 24, 1984
The Honorable G. Steven Agee
Member, House of Delegates
You have requested my interpretation of § 64.1-64 of the Code of Virginia,
popularly referred to as the "anti-lapse" statute, based on a hypothetical situation which
you relate. That section provides, in pertinent part:
