I am a Virgina Master Naturalists and I have been reading and learning about the value of trees.  The service benefits are numerous and they can provide stability and prevent erosion along lands that border our rivers and streams and The Chesapeake Bay.  They filter and remove pollutants from storm water which has been a big source of nitrogen, phosphorus and sediment that enter our waterways in run-off.  Trees can offset this environmental damage.  Because they protect and preserve the lands in the RPA, adding language to prohibit removal of large trees and allowing positive credits for adding trees and shrubs in the RPA will be beneficial changes.  

Selected comments on specific proposed language, certainly not exhaustive, are offered below:

9VAC25-830-130 General performance criteria

2. There must be a clear and readily operational definition of the term “mature trees”.  Should mature trees that are nearing the end of their typical lifespan be preserved?  Should mature trees that will stand as individual stems once clearing and grading is complete be preserved when they are more subject to sunburn and windthrow?  Should mature trees that are damaged, infested, weakened, surviving prior lightning strikes, etc. be preserved?  How does one define “necessary to provide for the proposed use” when looking to exempt preservation of mature trees?  How much additional economic cost is acceptable to support site solutions to accommodating the proposed use for the purpose of preserving mature trees? 

9VAC25-830-140 Development criteria for Resource Protection Areas

3. “Where such [100 foot] buffer must be established, the planting of trees should be utilized to the maximum extent practicable and appropriate to site conditions.”  Explicit exemption should be given to sites with existing viewsheds; there should be no requirement or expectation that a property owner must plant trees that would obscure such viewshed.  Planting of trees on steep slopes or on high banks within the buffer to be established and sitting above other elements of the RPA should also explicitly be exempted.  Trees on steep slopes represent prospective kinetic threats to slope stability and water quality.

3b.  With respect to “land uses where agricultural or silviculture within the area of the buffer cease and the lands are proposed to be converted to other uses…” : Explicit exemption should be given to sites with existing viewsheds; there should be no requirement or expectation that a property owner must plant trees that would obscure such viewshed.  Planting of trees on steep slopes or on high banks within the buffer to be established and sitting above other elements of the RPA should also explicitly be exempted.  Trees on steep slopes represent prospective kinetic threats to slope stability and water quality.

4.a.(2). With respect to situations where “application of the buffer area would result in the loss of a buildable area on a lot or parcel recorded prior to October 1, 1989…”: Explicit exemption should be given to sites with existing viewsheds; there should be no requirement or expectation that a property owner must plant trees that would obscure such viewshed.  Planting of trees on steep slopes or on high banks within the buffer to be established and sitting above other elements of the RPA should also explicitly be exempted.  Trees on steep slopes represent prospective kinetic threats to slope stability and water quality.

5.a.(1). With respect to pruning or removal “as necessary to provide for sight lines and vistas”: Explicit exemption should be given to sites with existing viewsheds; there should be no requirement or expectation that a property owner must plant trees that would obscure such viewshed.  Planting of trees on steep slopes or on high banks within the buffer to be established and sitting above other elements of the RPA should also explicitly be exempted.  Trees on steep slopes represent prospective kinetic threats to slope stability and water quality.

5.a.(4). With respect to “shoreline erosion control projects”:  Explicit exemption should be given to sites with existing viewsheds; there should be no requirement or expectation that a property owner must plant trees that would obscure such viewshed.  Planting of trees on steep slopes or on high banks within the buffer to be established and sitting above other elements of the RPA should also explicitly be exempted.  Trees on steep slopes represent prospective kinetic threats to slope stability and water quality.  Planting trees in areas within the tidal range or within a predicted storm surge area are unlikely to survive and should not be required to be planted.

7. With respect to “Buffer area requirements for Intensely Developed Areas”:  Intensely developed areas are and have been a special category of land since adoption of the Chesapeake Bay Preservation Act.  These sites are commonly the location of major waterfront industries, long-established residential and mixed-use communities and places of historical cultural identity.  Encouraging the permissive (versus mandatory) planting of trees is preferable and should similarly be the standard for all other areas cited above.

1. Provide a more specific definition of “mature tree” in the regulations
   While we commend the inclusion of requirements to protect existing mature trees and to promote tree plantings in buffers, we recommend proving more specific guidance on what the regulations mean by “mature tree.” Different species of trees have different visual levels of maturity – size alone is not indicative of maturity. Additional details included in the regulations would help localities be sure they are implementing these regulations appropriately. Ideally, the definition should be provided in a clear and approachable way to evaluate whether a tree is considered mature.
   
   
2. Provide clarity in the definition of “to the maximum extent practicable”
   Similar to our recommendation regarding the climate change and resiliency amendment proposals (found online http://cleanstreams.anshome.org/wp-content/uploads/2021/05/20210503-ANS-comments-on-CBPA-draft-regs.pdf), we recommend additional clarity in defining “to the maximum extent practicable” to ensure localities implement these regulations with the maximum understanding of the goals and intent behind the regulations. Ideally, we recommend these regulations go a step further to empower local governments to require tree preservation, thereby strengthening these provisions.
   
   
3. Do not allow removal of trees in RPAs for sight lines or vistas
   We recommend updating the regulations to specifically prohibit tree removal in an RPA for the purpose of providing for sight lines and vistas. We appreciate the addition of language which prioritizes the preservation of matures trees in the case of sight lines or vistas, however, if the trees in question exist in an RPA, stronger regulations to protect those trees in this case of modifying a viewshed only makes practical sense given the new focus of environmental resiliency and climate change planning.

There should be no exceptions granted for any reason to the preservation of mature trees in resource protection areas.  Resource Protection Areas are areas where protection of natural resources need to be a high priority.  Granting exceptions to this should not be allowable since this compromises not only the health of our natural resources but is a serious public safety risk in that mature  trees in RPAs hold soil, prevent erosion and otherwise protect the public from the known and existing increased precipitation events occurring due to climate change.  Even a tree that is mature but less than 100 % healthy serves a critical purpose of holding soils, preventing erosion and otherwise protecting public safety.   If exceptions are allowed then portions of an RPA will be cleared of mature trees and other portions will retain mature trees.  This inconsistent management of the RPA will result in some areas at greater risk than others from the increasingly frequent damaging flooding events.  This situation can be avoided if all RPAs are managed consistently.  Therefore no exceptions should be allowed. Delegating authority for granting exceptions to localities would result in fragmented management of RPAs increasing public safety risk and possibly mis-management of natural resources.  Localities are under increasing pressure to develop all currently undeveloped lands. We have seen clear evidence that developers influence localities to develop environmentally sensitive areas inappropriately.   RPAs are highly valuable lands that should not be developed rather they should be conserved in perpetuity with mature trees intact.  In the case of unhealthy or hazard tree (must be scientifically assessed and measured for "unhealthiness") is removed from an RPA, it should be replaced at triple the dbh on the same site it was removed from.

9VAC25-830 Chesapeake Bay Preservation Area Designation and Management Regulations; Amending 9VAC25-830-130 as follows underlined: 

“Through their applicable land use ordinances, regulations, and enforcement mechanisms, local governments shall require that any use, development, or redevelopment of land in Chesapeake Bay Preservation Areas meets the following performance criteria: 

1. No more land shall be disturbed than is necessary to provide for the proposed use or development. 

2. Indigenous vegetation shall be preserved to the maximum extent practicable, consistent with the use or development proposed. Mature trees shall only be removed where determined to be necessary to provide for the proposed use or development and protected during development to the maximum extent practicable. “

Faith Alliance for Climate Solutions (FACS) believes the tree preservation language must be more concrete. That should include, but not be limited to, a better definition of “what is necessary” in #1 and should including a practical definition of “mature trees” in #2. There should be specific parameters for what constitutes a “healthy” tree, and there should be language that empowers localities to “require” tree preservation. Overstory and understory trees of all sizes together make a forested area that can provide the best front-line resiliency to plans that will mitigate flooding both from sea level rise or from stormwater runoff in RPAs. To further promote tree preservation, the regulations should include an absolute prohibition on any tree removal in the RPA purely for viewshed or sightline purposes, provide localities the ability to incentivize the preservation of trees in any planning and development, and the authority to enforce these provisions. There will certainly be a cost to developers and landowners, but that will be significantly smaller than the costs of insuring properties or rebuilding after damages occur.

Comment on the newly added 9VAC25-830-155: Climate change resilience and adaptation criteria. 

We should make sure that nature-based solutions—including maintaining vegetated buffers and building living shorelines which include both preserving existing healthy, mature trees and planting new ones—are prioritized in the updated Bay Act regulations. The use of fill in these solutions should be strictly prohibited, and instead natural BMPs should be prioritized in this section.

FACS believes this is a seminal moment in the recalibration of the Chesapeake Bay Management Area requirements. DEQ can and should be more specific in elevating the importance of trees in this work.

The Virginia Forestry Association (VFA) actively promotes the sustainable use and conservation of forest resources to ensure their long-term social benefits for all Virginians. VFA represents a diverse community of forest landowners, foresters, forest products businesses, loggers, consultants, and other stakeholders who are interested in the well-being of Virginia's forest resource. On behalf of Virginia’s forest stakeholders, VFA appreciates the opportunity to provide comments on the Virginia State Water Control Board’s rulemaking entitled “9VAC25-830. Chesapeake Bay Preservation Area Designation and Management Regulations (amending 9VAC25-830-130, 9VAC25-830-140).”

Trees play a critical role in improving and maintaining water quality. As noted in a publication by the Partners for Watershed Forestry and Chesapeake Bay Forestry (MD, PA, VA)^[1], trees “filter excess nutrients present in surface runoff from adjacent land uses. They intercept phosphorus loaded sediment present in surface runoff. The roots of the trees…penetrate soils and reduce excess nitrogen from shallow ground water. Leaves and small woody debris are an organic carbon source that drives the microbial denitrification process. This enhances nutrient reduction in streams and surrounding floodplains.”

While the importance of trees as a water quality improvement tool cannot be overstated, adoption of the regulation as drafted may have negative unintended consequences. As the State Water Control Board considers proposed amendments, VFA respectfully suggests the Board’s consideration of these potential issues:

1) Authorizing legislation provides for greater flexibility than proposed regulatory amendments – In authorizing the proposed amendments, Chapter 1207 of the 2020 Acts of Assembly included: “(v) preservation of mature trees or planting of trees as a water quality protection tool and as a means of providing other natural resource benefits.” The authorizing legislation intentionally included the word “or” to ensure that a developed land’s water quality protection strategy was appropriate to the site and able to provide maximum water quality and natural resource benefits.

As explained by the Center for Agriculture, Food, and the Environment and the University of Massachusetts Amherst^[2], “[T]rees in forests thrive and, typically, live more than one hundred years. On the other hand, trees planted in cities and towns, and along roadways, often survive no more than a few decades, if that long.” The UMASS research concludes that “most people believe that insects and diseases are the primary cause for decline and death of trees in the landscape. In fact, it is human activity which causes most of the problems that trees experience. Even many pest and disease problems can be related directly or indirectly to the prior stresses imposed upon trees by human activity.”

Generally, trees that survive are those that are best adapted to local conditions and those best able to compete effectively for sunlight, moisture, and plant nutrients. But human development changes the underlying ecosystem and microclimate where mature trees live. Exposed to new stresses brought about by development, mature trees often decline and/or fail. There are many instances in which the preservation of a mature tree would be less desirable than the use of more site-appropriate landscape architecture incorporating better adapted tree species, simultaneously improving water quality while reducing future maintenance costs.  

While the current regulatory language for indigenous vegetation seemingly provides for such flexibility, the proposed language under 9VAC25-830-130(2) appears more restrictive with respect to the use of improved site-adapted alternatives. The State Water Control Board should consider adopting language that provides for the intended flexibility to ensure Virginia's ability to maximize water quality and natural resource benefits.

2) Ensuring proposed language is complementary to existing Virginia state tree policy – While increasingly gaining recognition as a multi-faceted environmental solution, it is important that Virginia’s different laws and ordinances do not contradict one another as trees are sought to meet different purposes.

As the Board considers proposed amendments, we hope that it will consider the adoption of language that maintains a complementary relationship with current Virginia law surrounding trees, including:

·         § 15.2-2286.1 - Provisions for clustering of single-family dwellings so as to preserve open space

·         § 15.2-961 and § 15.2-961.1 reference Tree Banking and the establishment of a fund

·         § 10.1-1127.1. Tree conservation ordinance; civil penalties

·         § 15.2-961. Tree replacement of trees during development process in certain localities

·         § 15.2-961.1 Conservation of trees during land development process in localities belonging to a nonattainment area for air quality standards

·         § Chapter 820. General Virginia Pollutant Discharge Elimination System (VPDES) Watershed Permit Regulation for Total Nitrogen and Total Phosphorus Discharges and Nutrient Trading in the Chesapeake Bay Watershed in Virginia

3) Clarifying that the exemption for silvicultural activities applies to proposed amendments – Finally, VFA recommends that the Board retains exemptions for silviculture activity as defined in the Act. Specifically, the Board should provide clarification that silvicultural activities are exempt from local program requirements so long as operations are conducted using the appropriate Best Management Practices (BMPs) to protect water quality as prescribed by Virginia’s Forestry Best Management Practices for Water Quality.

Thank you again for the opportunity to offer comments on the proposed amendments to the Chesapeake Bay Preservation Area Designation and Management Regulations. VFA stands ready to work with the Board and its partners on ensuring that the maximum water quality and natural resource benefit can be achieved using trees and forest land.

^[1] https://dof.virginia.gov/wp-content/uploads/RFB-Forests-on-the-Waters-Edge_pub.pdf

^[2] https://ag.umass.edu/fact-sheets/helping-trees-to-manage-stress