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