With the restoration of some sense of stability in the residential home building market, many developers are once again filing land use (i.e. rezoning, special exception, etc.) applications with local governments. Given that these applications typically require public hearings and the review of a planning commission as well as elected officials, approvals often take a year or longer to receive. Considering the amount of time and effort that must be invested in these approvals, it is important that impacts to waters of the United States (WOUS) proposed with the resultant land plan are capable of receiving authorization from the U.S. Army Corps of Engineers (COE), Virginia Department of Environmental Quality (DEQ) and Virginia Marine Resources Commission (VMRC). The best way to ensure that your land plan can receive approval from these agencies is to coordinate with them early in the process through pre-application consultation and ideally obtain permits from them prior to receipt of local approval of your land plan.

In 2004, after years of being left out of the local land use review process, the COE drew a line in the sand and notified the land development industry, with a letter dated September 29, 2004, that they would no longer consider local land use approvals as a legitimate reason for the failure to avoid impacts to WOUS. The result was that some projects needed to obtain land use approval amendments to reflect a plan that the regulatory agencies would approve. To avoid this situation, the COE urged members of the land development industry to actively engage in pre-application coordination to help avoid this issue. The COE also reached out to many Northern Virginia localities in an effort to get directly involved in the review of any projects that proposed WOUS impacts. This is the reason why many localities now require evidence of a jurisdictional determination or COE/DEQ permits prior to granting final approval of land disturbance permits.

As land development slowed down during the recession so did the number of pre-application meetings and the amount of direct coordination between the COE, DEQ and localities. To ensure that your project doesn't get held up over conflicts between local zoning approvals and WOUS impacts we highly recommend that you make the review of WOUS impacts with the COE, DEQ and VMRC (when applicable) an early part of the land use approval process.

The following links provide additional information on this topic:

• Field Notes Vol. 18 No. 7 – New COE Pre-Application Request Form

• Field Notes Vol. 15 No. 6 – Joint COE/DEQ Subdivision Recommendations

• Field Notes Vol. 14 No. 6 – Army Corps of Engineers Review of Plan   Submissions in Fairfax County

• Field Notes Vol. 14 No. 5 – Financial Analysis to Demonstrate "Avoidance   to the Maximum Extent Practicable"

• Field Notes Vol. 14 No. 1 – Army Corps Coordinates with Localities

• Field Notes Vol. 11 No. 5 – US Army Corps of Engineers Recommends Pre-  Application Consultation for Site Plans

To discuss further, contact Dan Lucey, Doug Chapin, Mark Headly, or Mike Rolband.