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03.15.2021 Shoreline Protection: Proposed Virginia Regulatory Amendments for Coastal Resiliency and Climate Change Adaptation within Chesapeake Bay Preservation Areas By: Henry R. "Speaker" Pollard, V

Recent legislation and just proposed regulatory amendments present a new opportunity, but also potential concerns, for implementing climate change resiliency measures on properties subject to Virginia’s Chesapeake Bay Preservation Act (Bay Act).  HB 504 from the 2020 Virginia General Assembly session, codified at Va. Code § 62.1-44.15:72.B(vi), amended the Bay Act as of July 1, 2020 to more clearly authorize such measures and local consideration of climate change for development projects subject to the Bay Act and implementing local ordinances.  The Virginia State Water Control Board, staffed by the Department of Environmental Quality (DEQ), has recently published for public comment proposed amendments (Proposed Amendments) to the Chesapeake Bay Preservation Area Designation and Management Regulations (Bay Regulations) to implement HB 504.  However, it is unclear how useful the Proposed Amendments will be for property owners who want to install resiliency and adaptation measures on their properties.

First enacted in 1988, the Bay Act imposes restrictions on certain development and land disturbing activities to help reduce sedimentation and nutrient (nitrogen and phosphorous) and other pollutant loads entering the Chesapeake Bay through stormwater runoff and leaky septic systems.  Cities and counties located in “Tidewater” Virginia (generally, east of Interstate 95 and within the Chesapeake Bay watershed, and Eastern Shore localities) are subject to the Bay Act.  (Some localities within the Chesapeake Bay watershed west of I-95 have voluntarily adopted such ordinances.)  The Bay Act requires these localities, based on related regulatory criteria, to develop land use ordinances that restrict development activity to achieve these purposes.

Among other things, the Bay Act restricts development and land disturbing activities within any designated Resource Protection Area (RPA) and Resource Management Area (RMA) (collectively, “Preservation Area”), as more particularly defined by the Bay Regulations.  RPAs  include perennial streams, tidal waters, and wetlands, and a 100-foot buffer along these features.  Except for certain fairly narrow exceptions, new or expanded development, structures and land disturbing activities are restricted or prohibited within an RPA.  RMAs include other, non-RPA areas of a locality where less onerous restrictions are imposed.  Greater flexibility for development exists within RMAs, subject to certain management practices and controls.  Although the Bay Act sets certain criteria to be considered when developing local ordinances, the Bay Regulations provide more specific procedures for local program approval.

Localities and property owners within the Tidewater area of the state – especially along Bay watershed rivers, streams, and wetlands – face rising sea levels, increased stormwater flows, and recurrent flooding.  Many property owners seek to conduct activities, sometimes necessarily within an RPA, to protect their properties from and otherwise improve resiliency to such trends and events.  In addition, Tidewater localities also are looking for ways to address increasing risks posed by such trends and events.  However, the restrictions under the Bay Act and the Bay Regulations may hinder or prevent reasonable steps from being taken, even when they would help further the goals of the Bay Act.

To address this conundrum, HB 504 amended the Bay Act to add “coastal resilience and adaptation to sea-level rise and climate change” to the criteria to be considered for local Bay Act implementation programs.  The new statutory criteria in turn allow the Bay Regulations to account for greater flexibility for addressing coastal recurrent flooding, sea level rise, and other climate change impacts as part of the implementing local ordinances.  To this end, the Proposed Amendments would create a new section of the Bay Regulations (proposed 9VAC25-830-155) to provide for such new criteria and the requirements for localities to incorporate them into their ordinances. 

The first key element of the Proposed Amendments authorizes such climate change resiliency measures by property owners.  It states that “[l]and development and adaption measures or activities, including buffer modifications or encroachments necessary to install adaptation measures, mitigation measures, or other actions necessary to address the impacts of climate change, including sea-level rise, recurrent flooding, and storm surge, may be allowed in a Chesapeake Bay Preservation area.”  9VAC25-830-155.B (proposed).   However, such measures generally must still comply with the other requirements applicable to development activities within the Preservations Areas.  Id.

Specific criteria for incorporating climate change resiliency measures within RPAs are found in proposed 9VAC25-830-155.E.  However, all is not what may have been intended.  First, localities are authorized, but apparently not required, to allow such measures by property owners: “[l]ocal governments may allow adaption measures or activities within the Resource Protection Area to address climate change, including sea-level rise subject to the following criteria.”  Id (emphasis added).  When allowed, such projects are subject to special criteria instead of the general performance criteria or those pertaining to development within the RPA.  Such special criteria provide for different tiers of protection of Bay water quality that must still be achieved depending on the degree of existing development or vegetation within the RPA on the property, with more flexibility for land disturbance and structural encroachment allowed where the RPA is already developed or has no natural vegetation.  For installation of resiliency or adaptation measures in the RPA where there is no existing development and where natural vegetation exists, additional safeguards and limitation apply.  9VAC25-830-155.E.2 (proposed).

Where a living shoreline is proposed as the resiliency or adaptation measure, the Proposed Amendments would offer some additional flexibility.  Indeed, a living shoreline project that “maintains or establishes a vegetative buffer inland of the living shoreline to the maximum extent practicable [and] minimizes land disturbance to the maximum extent practicable” would be exempt from other requirements or criteria, including performance of a Water Quality Impact Assessment, beyond those set as part of any approval or permit issued by the locality or the Virginia Marine Resources Commission (VMRC).  In “town hall” virtual meetings held by DEQ when drafting the Proposed Amendments, DEQ indicated that it may offer such flexibility in recognition of the new living shoreline mandate for shoreline management projects pursuant to other recent legislation, SB776, codified at Va. Code § 28.2-104.1.D.

In addition, the proposed amendments clarify that localities may adopt “requirements or criteria in addition to the requirements of these provisions to address the impacts of climate change and sea-level rise in Chesapeake Bay Preservation areas in the locality, including extension of the Resource Protection Areas, further restrictions on development, or further preservation of existing vegetation.”  So, while one purpose was to allow implementation of climate change resilience measures by property owners, the Proposed Amendments would allow localities to impose even greater restrictions.  Id

Furthermore, in proposed 9VAC25-830-155.C, “[l]ocal governments shall consider the impacts of climate change or sea-level rise on any proposed land development in the Resource Protection Area.  Based upon this consideration, local governments may require the installation of additional measures or design features as part of the proposed land development consistent with the requirements of the Act and [these regulations].”  In doing so, localities must account for various factors and considerations, including: a 30-year planning horizon; modeling consistent with the assumptions of the 2017 National Oceanographic and Atmospheric Administration Intermediate–High scenario projection curve for sea level rise; “future floodplain, water level, storm surge, or other impacts in altering the Resource Protection Area or diminishing the protection of water quality due to the proposed development from these impacts;” and identification of steps and alterations “to address these impacts as necessary and appropriate based upon site conditions, type of proposed land development, and projected potential impacts.”  Id.

Finally, the Proposed Amendments would seem to curtail certain exemptions and exceptions otherwise available for development or land disturbance activities within the RPA, further limiting development or land disturbances in the RPA.  This claw-back of exclusions would even seem to restrict proposed climate change resiliency or adaptation projects presumably contemplated in proposed 9VAC25-830-155 that may have otherwise been excluded.  Indeed, without greater site-specific considerations and discretion for the locality, this tightening of exclusions may also have the effect of severely limiting options for potential climate change resiliency or adaptation within the RPA.  Such foreclosed options could be the most cost-effective, or even the only feasible or affordable, option for a property owner or may otherwise be best suited to limit the impacts of sea level rise.

Whether the Proposed Amendments, as eventually finalized, strike the proper balance between options for property owners to conduct coastal resiliency and climate change adaptation projects and accounting for climate change as part of development projects within Preservation Areas remains to be seen.  However, it seems that new opportunities given with one hand are then subject to rather strenuous restrictions that may not reflect site-specific conditions or factors.  In that regard, cost-effective solutions for the property owner may be taken off the table even if they would increase resiliency and further protect Bay waters.  The potential tension in this regard may also be difficult to overcome, creating an uncertain outcome for a proposed project. 

DEQ seeks public comment on the Proposed Amendments until May 3, 2021, and it will hold a virtual stakeholders meeting to gather additional feedback.  (The meeting had not been scheduled at the time this article was issued.)  Once these public comment procedures have been completed, the final amendments likely will be presented to the State Water Control Board for consideration at the Board’s June 2021 meeting. 

Chesapeake Bay Preservation Area Designation and Management Regulations 37 Va. Reg. 1209-1211 (February 1, 2021)