Adaptation to climate change and enhanced resilience does not require retreat!  We need only look to Holland for but one example. The General Assembly has not affirmatively determined that the Commonwealth has acknowledged defeat to the forces of nature. The proposed regulatory changes quite clearly do, and in so doing place the burden of this concession on private property owners who may not wish to retreat but who may have viable options for standing firm, utilizing planning and engineering solutions that work for them and do no harm to the environment or to others who might be similarly situated but for whose own reasons are willing to concede and retreat.   The propose regulations are NOT what the legislature intended when the General Assembly passed HB 504 in the 2020 session nor what the Governor intended when offering his last-minute amendment to add “coastal resilience and adaptation to sea-level rise and climate change.

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

9VAC25-830-155 Climate change resilience and adaptation criteria

B. With respect to “…nothing in these provisions shall preclude a locality…” from adopting requirements  “…including extension of the Resource Protection Areas, further restrictions on development, or further preservation of existing vegetation.”:  Since the adoption of the Chesapeake Bay Preservation Act and the regulations promulgated to implement the Act, professionals in the real estate industry and ordinary citizens have sought balance and fairness in the application of what is on its very face an arbitrary prescription - that a 100-foot buffer to certain environmental features is or shall be deemed effective in providing certain water quality benefits.  Many examples can be given to support a contention that a 100-foot buffer is not always effective, or even necessary, to accomplish the stated objectives of the Act and regulations.  Any initiative that would allow localities to expand RPA buffers must be restrained by findings of sound science and demonstrable benefit to clearly articulated objectives.  It must be shown how an expanded RPA buffer, in each specific instance, will advance/enhance/promote climate change resilience and/or adaptation.  Absent such a finding, any increase of the RPA buffer will necessarily be arbitrary and capricious.  Moreover, any initiative that would allow localities unrestrained authority to expand RPA buffers must be offset by private property interests to obtain fair and scientifically based reductions of RPA buffers where it can be shown that no demonstrable detriment to water quality will result.

Similarly, any further restrictions on development and further preservation of existing vegetation must also demonstrate how such further reduction of private property rights will advance/enhance/promote climate change resilience and/or adaptation, or it should not be authorized.  Some localities in the Commonwealth have for decades relied on environmental regulations to achieve growth management objectives.  Some of these are eager to be granted unrestrained authority to further control their growth without any requirement to address the root causes of, and benefits of, that growth.  Preserving existing vegetation in areas of recurrent (tidal) flooding and storm surge precludes alternative solutions and only postpones the inevitable death of such vegetation from saltwater intrusion or damaging effects of storm surges and wind-blown waves.

Such open ended authority granted through regulations promulgated to affect water quality in the Bay and its tributaries cannot fairly be used to address climate change resilience and adaptation without demonstrable scientific justification for specific measures imposed upon the citizens of the Commonwealth.  No such justification has been presented or debated, stakeholders have not been afforded an opportunity to demonstrate the damage that the proposed regulations will bring about or the alternatives that exist and should be allowed on a case-by-case basis.

Moreover, there is no discussion of previously grandfathered properties (improved or unimproved) and how these regulations will affect the rights of owners of such properties.  The imposition of these arbitrary provisions completely untethered to the objectives of climate change adaptation and resilience with respect to undeveloped properties notwithstanding, improved properties seeking design and engineering solutions to problems being experienced and/or seeking to accommodate the natural growth and progression of their businesses or improvement of their homes and other private property types must be afforded additional protections not contemplated by these regulations.

C.3 “Local government shall consider the impacts of climate change or sea level rise on any proposed land development in the Resource Protection Area.” to “…include the consideration of future floodplain, water level, storm surge or other impacts in altering the Resource Protection Area…”:

This section invites precisely the disconnect that arises when regulations intended for one purpose are redeployed for another.  The RPA is by definition an area that is either left in its natural state or deliberately altered to mimic the characteristics of a natural state for the purpose of enhanced water quality for runoff leaving a site and entering a stream, creek, river or the Bay.  Expanding the RPA in and of itself will not add to climate change resilience nor will it enhance adaptation.  Keeping it in its current state will also not enhance adaptation or resilience.  Such an approach is a concession, not an adaptation – it is a retreat.   Hardening the water/land edge, armoring potentially erodible areas in a site, elevating structures outside of predicted levels of water incursion from storm events are the most obvious means by which a property’s resilience is enhanced and by which investments in real property improvement are adapted to withstand the forces of nature.  Each property owner should have the option of retreating or standing firm, to the extent each site affords reasonable opportunities for either or both approaches. 

D.2. Local governments shall not grant exceptions that would allow “…the use of fill or other material to the Resource Protection Area or within 100 feet of the Resource Protection Area.”:  The placement of fill or other material within an RPA does not by definition negatively impact water quality.  In many instances, the existing in situ soil poses a greater threat to water quality (hi nutrient content, hi erodibility) than does engineered fill material properly stabilized.  And the placement of fill or other material within an RPA does not by definition increase the floodplain level, water level or storm surge level on a given property, adjacent properties or other properties within a watershed or sub-watershed.  If the Commonwealth believes it is in the public interest to reduce in general, and not inconceivably eliminate entirely on a case-by-case basis, development along waterways because of the threats of floodplain damage, sea-level rise, storm surge or other impacts, then it should pursue and allow for debate of a new public policy (law and regulations) to identify the threats, assess the fiscal impacts, evaluate the constitutional merits of depriving persons of private property without due process and afford citizens options for addressing the actual issues of climate change resilience and adaptation on their private property.  This section goes another step beyond Paragraph B, which authorizes localities to increase the RPA buffer by however much they wish.  This section would also allow an additional buffer to the buffer of 100 feet more land where no fill or other material may be placed, beyond an expanded RPA buffer.   There must be a sound basis in facts to authorize, on a case-by-case basis, and there must be widely understood limits to, such broad authority.

E.1.b. Where local governments allow adaptation measures or activities within the RPA, to address climate change, including sea level rise, it shall “…not consist solely of the use of fill or other materials to raise the elevation of an RPA…”  Why not?  If the use of fill and/or other material can be used to harden, armor and/or elevate improvements within RPAs without negative impacts to similarly situated properties within a watershed or sub-watershed, or to water quality, then what is the basis for denying such improvements?   If water quality is the basis, as the Chesapeake Bay Act and regulations were intended to promote, then there are natural, mechanical, material selection and engineered approaches to offsetting water quality impacts that a property owner should be permitted to employ.

E.2.b.  Where the adaptation measure or activity is within a Resource Protection Area that is naturally vegetated or has not been previously developed, the measure or activity shall: Preserve to the maximum extent practicable any existing vegetation in the additional 50 feet landward from the Resource Protection Area;”  Here we see yet another proposed buffer to the buffer (even to a potentially expanded RPA buffer) without any discussion or requirement to demonstrate how such restriction will enhance climate change resilience or adaptation.

Thank you for the opportunity to comment.