I suggest amending the regulatory action to include the impact of climate change (improving resiliency) on the Comprehensive Plans, as follows:

Code of Virginia
Title 15.2. Counties, Cities and Towns
Chapter 22. Planning, Subdivision of Land and Zoning

§ 15.2-2223.5 Comprehensive plan shall consider current and future threats and vulnerabilities associated with climate change-related natural hazards

For purposes of this section “resiliency” means the capability to anticipate, prepare for, respond to, and recover from significant multi-hazard threats with minimum damage to social well-being, health, the economy, and the environment.

Beginning July 1, 2022, each city with a population greater than 20,000 and each county with a population greater than 100,000 shall consider in the next scheduled and all subsequent reviews of its comprehensive plan (i) future threats and vulnerabilities associated with climate change-related natural hazards, including, but not limited to increased temperatures, increased precipitation levels, drought, wild fires, flooding, hurricanes, storm surge, wind, and sea-level rise; (ii) include a build-out analysis of potential future residential, commercial, industrial, and other development, and an assessment of the climate change-related threats and their vulnerabilities; (iii) analyze the potential impact of climate change-related natural hazards on critical facilities, utilities, bridges, roadways, tunnels, waterways and other infrastructure necessary for evacuation purposes; (iv) analyze the potential impact of climate change-related natural hazards on individuals, communities, institutions, businesses, economic development, public infrastructure and facilities, public health and public safety; (v) analyze the potential impact of climate change-related natural hazards on components and elements of the master plan to include an inventory of existing resiliency conditions; (vi) propose strategies and design standards that may be adopted and implemented to increase resiliency and reduce or avoid risks associated with climate change-related natural hazards; (vii) include a specific policy statement on the consistency, coordination, and integration of the climate-change related hazard vulnerability assessment with any existing or proposed natural hazard mitigation plan, floodplain management plan, comprehensive emergency management plan, emergency response plan, post-disaster recovery plan, or capital improvement plan; and (viii) rely on the most recent natural hazard projections and best practices provided by the Commonwealth’s Chief Resiliency Officer, Special Assistant for Coastal Adaptation and Protection, Virginia Department of Conservation and Recreation, Virginia Department of Emergency Management, Virginia Department of Environmental Quality, Virginia Transportation Research Council, Virginia Marine Resources Commission, Environmental Resilience Institute at the University of Virginia, National Oceanic and Atmospheric Administration, National Weather Service and the U.S. Army Corps of Engineers.

I am a 30 year resident of Arlington and a 45 year resident of the Washington DC metropolitan area, and my family and I have treasured our access to the priceless Chesapeake Bay.  It is being threatened by climate change, sea level rise, land subsidence, pollution, and land fill among other adverse impacts.  The law must be updated to prevent further landfill encroachment and support the maintenance of existing trees as well as the planting of new trees.  This authority for planting new trees should be maintained by local governments, and as an Arlington resident, I urge that Arlington County should have that continued authority over the lands within its jurisdiction.  Trees are essential for capturing rain water, slowing runoff, preventing erosion, stabilizing shore banks, and supporting native wildlife, let alone adding beauty and natural health to our region.  The updated regulations should prohibit the outright removal of mature trees for development or improved sight lines.  The aesthetic of nature is already there and should be preserved.  Thank you for the opportunity to comment.

I am glad to see that the Chesapeake Bay Preservation Act is being considered for an update.  It's a very good law and adding features to make it continue to be applicable now that we have more climate change impacts.  All strategies to protect the ecosystem should be enhanced due to the likelihood of more frequent extreme weather events.  In order to Save the Bay, the bordering lands need to be viewed and protected for their ecological value.    I would further state an objection to the use of 'fill' or similar material that will change the natural ecological characteristics within the RPA and once again harm habitat needed for healthy shoreline wildlife and plant life.  More living shoreline strategies should be used and use of 'fill' should be avoided.  

I am glad to see that the Chesapeake Bay Preservation Act is being considered for an update.  It's a very good law and adding features to make it continue to be applicable now that we have more climate change impacts.  All strategies to protect the ecosystem should be enhanced due to the likelihood of more frequent extreme weather events.  In order to Save the Bay, the bordering lands need to be viewed and protected for their ecological value.    I would further state an objection to the use of 'fill' or similar material that will change the natural ecological characteristics within the RPA and once again harm habitat needed for healthy shoreline wildlife and plant life.  More living shoreline strategies should be used and use of 'fill' should be avoided.  

Dear Mr. Williams:

The Hampton Roads Planning District Commission appreciates the opportunity to provide comments on the proposed amendments to the Chesapeake Bay Preservation Area Designation and Management regulations.  Our comment letter is available at the following link:

https://www.hrpdcva.gov/uploads/docs/HRPDC Regional Comments Proposed Amendments to the CPBA Regs.pdf

Sincerely, 

Jillian C. Sunderland

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.

April 29, 2021

To Whom It May Concern:

Virginia Conservation Network (“VCN”) appreciates the opportunity to comment on the proposed amendments to the Chesapeake Bay Preservation Act (“CBPA”) regulations to implement the new criteria regarding coastal resilience and adaptation to sea-level rise and climate change by Va. Code § 62.1-44.15:72. We hope that the Department of Environmental Quality (“DEQ”) will accept these comments into consideration when finalizing the CBPA regulations, as our Network Partners are very familiar with the importance of protecting Virginia’s shorelines from sea level rise.

The following comments are in response to the proposed regulations:

First and foremost, it is essential that these CBPA regulations work in congruence with the proposed Tidal Wetlands Act guidelines, released by the Virginia Marine Resources Commission (“VMRC”) on March 1, 2021. If these two critical pieces of guidance are not aligned, then the efforts made by both VMRC and DEQ to protect Virginia’s wetlands will be squandered. The CBPA is the key to the survival of tidal wetlands and must be administered with that goal in mind if Virginia’s tidal wetlands are to survive sea level rise.

Although the proposed regulations were tasked with including various climate change impacts, they only consider sea level rise. As mandated by §62.1-44.15:72 (“The criteria adopted by the Board, operating in conjunction with other state water quality programs, shall encourage and promote...coastal resilience and adaptation to sea-level rise and climate change” as a purpose of the Act). At §10.1-1183, the Department of Environmental Quality is charged generally: “To address climate change by developing and implementing policy and regulatory approaches to reducing climate pollution and promoting climate resilience in the Commonwealth and by ensuring that climate impacts and climate resilience are taken into account across all programs and permitting processes.” The finalized CBPA regulations will need to address all climate change impacts to potential projects, not just sea level rise.

The CBPA regulations must require localities to only permit those adaptation measures or activities that will survive under specific sea level rise or climate change scenarios. The draft regulations only ask localities to consider how sea level rise will affect the proposed land development and the land on which it is proposed for a time period no less than 30 years. The draft regulations should require locality staff to only approve activities in the Resource Protection Area (“RPA”) that are designed to adapt to a specific degree of sea level rise/climate change for the minimum 30-year time period.

The 30-year timeframe for future conditions in the draft regulations does not match the anticipated 15-year effective life of most nature-based water quality best management practices. The rationale for selecting a 30-year timeframe for future conditions is unclear.

The newly proposed regulatory language to address coastal resilience and adaptation to sea level rise should be incorporated into existing regulatory sections, instead of included in the draft regulation’s newly created section. The creation of a new section is unnecessary and produces added confusion for local staff implementing the amended regulations.

The regulations must be prescriptive and should not rely on future guidance to direct localities. All standards for the incorporation of coastal resilience and adaptation to sea level rise should be expressly delineated in the CBPA regulations, and not via future guidance. Guidance is often considered as prescribed and unenforceable by local government staff; whereas, standards and criteria expressly delineated in the regulations are enforceable.

The regulations must define key concepts and terms to increase clarity. Phrases and terms that could be subject to interpretation should be defined clearly and included with other definitions in 9 VAC 25-830-40. For example, there is no definition of “coastal resilience” even though it is a statutorily mandated goal of the CBPA.

Local government staff are put on the “front lines” of climate change adaptation without sufficient resources. The State cannot expect localities to consider and plan for climate change impacts without adequate support and training. The delay in implementation of the regulations will help with this, but the regulations need to set a stronger performance standard and provide support resources to avoid uneven implementation.

The draft regulations create a loophole in the enforcement and effectiveness of the Chesapeake Bay Preservation Act. The proposed language indicates that the criteria and requirements for the new “adaption (misspelling - should read “adaptation”) measures or activities” included in the draft regulations are to be applied “in lieu of the criteria in 9 VAC 25-830-130 and 140.” The criteria listed in the draft regulations are extremely limited, while 9 VAC 25-830-130 (General Performance Criteria) and 140 (Development Criteria) are more inclusive and are the regulation sections central to goals and purposes of the CBPA.

The loophole created by the draft regulations and the loose prohibition of fill could jeopardize the scores of Virginia localities participating in the National Flood Insurance Program’s Community Rating System (“CRS”) Program. Virginia localities earn over $7 million in annual flood insurance premium reductions, with many communities earning credits for keeping development out of the RPAs. The draft regulations’ “in lieu of” loophole and appearance of allowing anything less than “solely of the use of fill” will result in further scrutiny by the CRS Program and could eliminate the award of points for the RPAs.

The regulations should more clearly detail how and what is regulated outside the RPA. References to additional requirements in areas “within 100 feet of the RPA” and or “the additional 50 feet landward from the RPA” suggest an expansion of the RPA, but these requirements are referenced briefly and without additional information.

The regulations must clearly outline which adaptation and resilience measures are approvable, providing examples where applicable. The draft regulations include few requirements for the adaptation and resilience measures, but simply note a measure cannot “consist solely of the use of fill or other material.” Hypothetically, if the measure is an approved or recognized best management practice (“BMP”) that utilizes almost all fill, the measure is an acceptable activity in the RPA.

Water Quality Impact Assessments (“WQIA”) or a similar assessment created by DEQ should be required for all adaptation measures and/or activities in the RPA. The draft CBPA regulations state that a WQIA “shall not be required” when the adaptation measure or activity within the RPA is an approved BMP designed to “reduce runoff, prevent erosion, and filter nonpoint source pollution.” All activities must require a WQIA, or similar assessment, in accordance with subdivision 6 of 9 VAC 25-830-140.

Living shoreline project details require further clarification in the finalized regulations. First, “living shoreline project or related activity” requisites a clear definition in the CBPA regulations, as well as what “related activities” would include. The regulations need to require a WQIA, or a similar assessment, for a living shoreline project regardless of what other requirements the proposed project meets. Additionally, the finalized regulations need to be congruent with the Tidal Wetlands Act guidelines, in that a living shoreline should be the first option for projects unless best available science shows otherwise.

The draft regulations were developed without critical stakeholder engagement to assist in the significant undertaking of including a dynamic condition (climate change) on a static regulation (CBPA). A technical advisory committee composed of relevant experts should have been created for consultation at least one year before the draft regulations were completed. The issue central to inclusion of sea level rise and climate change into the CBPA is how to regulate a RPA boundary that will move landward with time. This clash of private property rights and shoreline regulation will only worsen with time; programs and policies adopted today could minimize the impacts of problems we will face in the future.

Thank you for your consideration of these comments in your finalization of CBPA regulations.

Respectfully submitted,

Patrick L. Calvert

Senior Policy & Campaigns Manager

Virginia Conservation Network

Virginia Farm Bureau Comments on Chesapeake Bay Preservation Area Designation and Management Regulation - 9VAC25-830 - Proposed Amendment - Preservation of Mature Trees and Replanting of Trees

The proposed amendments to 9VAC25-830 dealing with preservation of mature trees and replanting of trees goes beyond the intent of the Chapter 1207 of the 2020 Acts of the Assembly. The statute gives the parameter of “planting trees as a water quality tool.” However, the proposed amendments only vaguely set out a parameter of “planting of trees be utilized to the maximum extent practicable and appropriate to site conditions.” This provides no guidance as to how this would be held to a standard for the protection of water quality. This potentially could lead a local government to enact requirements that don’t consider appropriate species of trees, trees located in or near brackish or other waters high in salinity content or be in conflict other state and federal laws regarding flood zones.

Currently under Chapter 90 of the 2021 Acts of the Assembly, another workgroup will be convened to develop appropriate local authority for tree canopy in the Chesapeake Bay watershed. The amendments to this regulation should be consistent and complimentary with those requirements as both sections of the law are trying to utilize planting of trees or replacement of trees during development for purposes of protecting water quality. Therefore, we would request that DEQ hold this regulation for final passage  until this referenced workgroup has time to develop recommendations for localities to have a consistent and complimentary set of tools to appropriately protect trees in more developed areas and help with providing an appropriate tool to protect water quality.

We also believe this regulation should be amended to provide allowance for landowners to undertake activities to protect and restore tree health, prevent insect and disease infestations, and to address hazardous conditions. If not, a landowner could be in violation of local ordinances preserving mature trees or requiring the planting of trees as a water quality protection tool. In addition to the protection for landowners, a reference to the State Forester’s authority [§10.1-1177 of the Code of Virginia] for taking actions to protect against insect and disease infestations should be included.

Finally, we believe these amendments sections do not clearly protect a landowner engaging in silviculture activity. While there are silviculture exemptions, planting of trees is clearly associated with two different criteria and not clearly delineated and should be clarified.

Virginia Farm Bureau Comments on Chesapeake Bay Preservation Area Designation and Management Regulation - 9VAC25-830 - Proposed Amendment – Coastal Resilience and Adaptation to Sea-level Rise and Climate Change Criteria

These comments are in reference to the proposed amendment regarding coastal resilience and adaptation to sea-level rise and climate change. 9VAC25-830-130 Item 8 provides a clear limitation on local authority regarding agricultural activities and in Item 9 provides clear limitations to local authority regarding silvicultural activities. However, 9VAC25-830 Item A’s and Item B’s proposed regulatory texts provide no parameters on local authority prescribed in this regulatory change. The specific text I am referencing is:

A.   “…in addition to 9 VAC25-830-130 and 9 VAC 25-830-140.”

B.   “Nothing in these provisions shall preclude a locality from impacts of climate change and sea-level rise in the Chesapeake Bay Preservation areas in the locality include extension of the Resource Protection Areas, further restrictions on development, or further preservation of existing vegetation”

The broad nature of this proposed language goes well beyond the intent of the Chapter 1207 of the 2020 Acts of the Assembly. Therefore, we would ask for language clearly limiting localities ability to make changes to their ordinance outside of the protections in 9VAC25-830-130 Item 8 and Item 9.

In addition, we would hope that any changes regarding trees or mature trees in these proposed amendments would reflect similar amendments to provide allowance for landowners to undertake activities to protect and restore tree health, prevent insect and disease infestations, and to address hazardous conditions. Finally, the proposed amendments referencing trees should not allow a local government to prescribe a species of trees that is not suitable for the area or limits a landowner from utilizing a species of tree that is suitable.

1. More directly address the CBPA’s purpose to restore and preserve water quality
   As the draft regulations address climate change adaptation and resilience measures, we recommend that the language more specifically incorporate the fundamental purpose of the CBPA to restore and preserve water quality in the Chesapeake Bay watershed. The current draft language is currently too vague, leaving interpretation up to locales as to whether the language is meant to make the natural environment being impacted by climate change more resilient or whether to make the man-made built environment more resilient to climate change.
   
   Given the purpose of the CBPA, we suggest the language more directly address resiliency goals of the natural environment. Furthermore, we suggest avoiding exceptions to the fundamental purpose of the CBPA regarding measures related to climate change and resiliency such as the language exempting certain adaptation measures, as laid out in Section E, from meeting the water quality requirements of the Act.
   
   
2. Set clear standards and criteria to address “coastal resilience and adaptation to sea-level rise and climate change” in the regulations
   Given that localities will refer to this regulation language and the requirements set forth in it as they make decisions, we recommend that program requirements be in the regulations themselves (rather than future guidance). Doing so would be consistent with the current CBPA program and would ensure clear standards and criteria are provided to ensure local governments are able to incorporate them to address “coastal resilience and adaptation to sea-level rise and climate change” when regulating activity in Resource Protection Areas (RPAs). As localities will be updating and amending their own ordinances, it is important that these regulations be sufficiently understandable and implementable by local government staff.
   
   We suggest the draft regulations include base, mandatory criteria that localities must apply to address both future sea level rise and other climate change impacts. While the regulations do a good job at addressing sea-level rise specifically, there is less specificity on how localities should account for impacts of climate change other than sea-level rise (e.g., such as the impacts on RPAs from stronger, more frequent storms).
   
   While supplementing these regulations with additional guidance to address specific technical issues may also be useful, more clarity in these regulatory guardrails could better assist localities in implementation, such as knowing when to disapprove projects that would exacerbate the effects sea level rise or climate change. Furthermore, guidance is not enforceable, so including program requirements in the regulations themselves will provide an essential level of commitment to proper implementation and compliance.
   
   
3. Specify guidelines for reevaluation and re-mapping of RPA boundaries
   We recommend that the regulation specifically define a recurring interval for localities to reevaluate and re-map their RPA boundaries. With climate conditions impacting and moving RPA boundaries over time, it will be important for localities to evolve with the landscape. Ideally, the regulations should specifically require, and lay out a method, for local governments to reevaluate RPA boundaries, redrawing them on maps and including the new boundaries in each comprehensive plan update.
   
   
4. More specificity regarding adaptation and resilience measures in Sections D and E of the proposed regulations
   We recommend strengthening the draft regulations to provide more meaningful requirements for adaptation measures allowed in RPAs. The regulations should address how they would fulfill the fundamental purpose of the CBPA to restore and preserve water quality in the Chesapeake Bay watershed regarding “coastal resilience and adaptation to sea-level rise and climate change.”
   
   We support the exclusion of “fill-only” projects in RPAs, but we recommend that the language be specific in its guidance. As currently written today, the language could be mis-interpreted as allowing more extensive use of fill without any guidelines or parameters as to how it may be appropriately used in the context of the CBPA’s overarching purpose of protecting water quality. We recommend adding language which more clearly defines the limits of fill use as well as adding language which encourages or prioritizes the use of nature-based solutions.
   
   
5. Remove exclusion from Water Quality Impact Assessments (WQIA) in Section E.3
   We recommend encouraging, or, if possible, requiring a WQIA when implementing adaptation and resilience measures. WQIAs are an essential tool for protecting water quality, especially in evaluating and addressing future conditions related to climate change impacts. For example, even approved Best Management Practices (BMPs) can create temporary land disturbances and may necessitate the removal of existing vegetation which could affect water quality. WQIAs can and should be used as a tool to ensure proper mitigation for these impacts.
   
   Living shoreline projects that are approved by the Virginia Marine Resources Commission (VMRC) could be exempt from the WQIA requirement to ensure consistency between the CBPA regulations and VMRC’s tidal wetlands guidelines, as already included in Section E.4.

Mr. Williams:

Wetlands Watch appreciates the opportunity to comment on the proposed amendments to the Chesapeake Bay Preservation Area Designation and Management regulations.  

Please find our comment letter at the following link:

https://wetlandswatch.org/s/Wetlands-Watch-CBPA-Regulations-Comment-Letter-5321.pdf

Sincerely, 

William “Skip” Stiles
Executive Director, Wetlands Watch

5/3/21

To Whom it May Concern,

Friends of the Rappahannock is a non-profit, grassroots conservation organization whose mission is to be the voice and active force for a healthy and scenic Rappahannock River. We work to educate the public about the Rappahannock River and advocate for actions and policies that will protect and restore the Rappahannock River and its watershed.

We appreciate the opportunity to comment on the proposed amendments to the Chesapeake Bay Preservation Act (“CBPA”) regulations to implement the new criteria regarding coastal resilience and adaptation to sea-level rise and climate change by Va. Code § 62.1-44.15:72. We hope that the Department of Environmental Quality (“DEQ”) will take our comments into consideration when finalizing the CBPA regulations, as our organization is very familiar with the importance of protecting Virginia’s shorelines from sea level rise, an issue that affects the health of the Rappahannock River and the people who live in its watershed.

The following is a list of our comments in response to these proposed regulations:

? These CBPA regulations should work in accordance with other proposed regulatory changes including Tidal Wetlands Act guidelines, released by the Virginia Marine Resources Commission (“VMRC”) on March 1st, 2021 and changes to 9 VAC 25-830-40 to address the statutory criterion for mature tree preservation.

? Although the proposed regulations were tasked with including various climate change impacts, they only consider sea level rise. As mandated by § 62.1-44.15:72 (“The criteria adopted by the Board, operating in conjunction with other state water quality programs, shall encourage and promote...coastal resilience and adaptation to sea-level rise and climate change” as a purpose of the Act). At §10.1-1183, the Department of Environmental Quality is charged generally: “To address climate change by developing and implementing policy and regulatory approaches to reducing climate pollution and promoting climate resilience in the Commonwealth and by ensuring that climate impacts and climate resilience are taken into account across all programs and permitting processes.” The finalized CBPA regulations will need to address all climate change impacts to potential projects, such as rainfall intensity and duration, not just sea level rise.

? The CBPA regulations must require localities to only permit those adaptation measures or activities that will survive under specific sea level rise or climate change scenarios. The draft regulations only ask localities to consider how sea level rise will affect the proposed land development and the land on which it is proposed for a time period no less than 30 years. The draft regulations should require locality staff to only approve activities in the Resource Protection Area (“RPA”) that are designed to adapt to a specific level of sea level rise/climate change for the minimum 30 year time period.

? The 30-year timeframe for future conditions in the draft regulations does not match the anticipated 15-year effective life of most nature based water quality best management practices. What is the rationale for selecting a 30-year timeframe for future conditions?

? The newly proposed regulatory language to address coastal resilience and adaptation to sea level rise should be incorporated in existing regulatory sections, instead of included in the draft regulation’s newly created section. The creation of a new section is unnecessary and produces more confusion for local staff implementing the amended regulations.

? The regulations must be prescriptive and should not rely on future guidance to direct localities. All standards for the incorporation of coastal resilience and adaptation to sea level rise should be expressly delineated in the CBPA regulations, not future guidance. Guidance is often considered prescribed, not enforceable by local government staff; whereas, standards and criteria expressly delineated in the regulations are enforceable.

? The regulations must define key concepts and terms to increase clarity. Phrases and terms that could be subject to interpretation should be defined clearly and included with other definitions in 9 VAC 25-830-40. For example, there is no definition of “coastal resilience” even though it is a statutorily mandated goal of the CBPA.

? Local government staff are put on the “front lines” of climate change adaptation without sufficient resources. The State cannot expect localities to consider and plan for climate change impacts without adequate support and training. The delay in implementation of the regulations will help with this, but the regulations need to set a stronger performance standard and provide support resources to avoid uneven implementation.

? The draft regulations create a loophole in the enforcement and effectiveness of the Chesapeake Bay Preservation Act. The proposed language indicates that the criteria and requirements for the new “adaption (misspelling - should read “adaptation”) measures or activities” included in the draft regulations are to be applied “in lieu of the criteria in 9 VAC 25-830-130 and 140.” The criteria listed in the draft regulations are extremely limited, while 9 VAC 25-830-130 (General Performance Criteria) and 140 (Development Criteria) are more inclusive and are the regulation sections central to goals and purposes of the CBPA.

? The loophole created by the draft regulations and the loose prohibition of fill could jeopardize the scores of Virginia localities participating in the National Flood Insurance Program’s Community Rating System (“CRS”) Program. Virginia localities earn over $7 million in annual flood insurance premium reductions, with many communities earning credits for keeping development out of the RPAs. The draft regulations’ “in lieu of” loophole and appearance of allowing anything less than “solely of the use of fill” will result in further scrutiny by the CRS Program and could eliminate the award of points for the RPAs.

? The regulations should more clearly detail how and what is regulated outside the RPA. References to additional requirements in areas “within 100 feet of the RPA” and or “the additional 50 feet landward from the RPA” suggest an expansion of the RPA, but these requirements are referenced briefly and without additional information. Localities should be required to periodically reevaluate and re-map their RPA boundaries.

? The regulations must clearly outline which adaptation and resilience measures are approvable, providing examples where applicable. The draft regulations include few requirements for the adaptation and resilience measures, but simply note a measure cannot “consist solely of the use of fill or other material.” Hypothetically, if the measure is an approved or recognized best management practice (“BMP”) that utilizes almost all fill, the measure is an acceptable activity in the RPA. The use of fill in the RPA was addressed in the Virginia Institute of Marine Science’s 2018 “Report to the Chairman of the House Agriculture, Chesapeake and Natural Resources Committee Pursuant to House Bill 1094 (2018). Six criteria are mentioned including slope limitations, protections for existing vegetation, and management of stormwater runoff. The use of these criteria in the decision making process of when the use of fill is feasible will help protect water quality and allow for natural migration of wetlands under future sea-level rise conditions. These criteria should be applied to any proposed adaptation measure that includes the use of fill, including living shorelines.

? Water Quality Impact Assessments (“WQIA”) or a similar assessment created by DEQ should be required for all adaptation measures and/or activities in the RPA. The draft CBPA regulations state that a WQIA “shall not be required” when the adaptation measure or activity within the RPA is an approved BMP designed to “reduce runoff, prevent erosion, and filter nonpoint source pollution.”

The draft regulation would allow the use of “state or federally recognized or approved” best management practices. We are concerned about the lack of clarity of what BMP’s this refers to. Indeed, many BMPs will not be suitable for use in RPA areas as adaptation measures or activities.

? Living shoreline project details will need further clarification in the finalized regulations. First, “living shoreline project or related activity” needs to have a clear definition in the CBPA regulations, as well as what “related activities” would include. The regulations need to require a WQIA, or a similar assessment, for a living shoreline project regardless of what other requirements the proposed project meets. Additionally, the finalized regulations need to be congruent with the Tidal Wetlands Act guidelines, in that a living shoreline should be the first option for projects unless best available science shows otherwise.

? The draft regulations were developed without critical stakeholder engagement to assist in the significant undertaking of including a dynamic condition (climate change) on a static regulation (CBPA). A technical advisory committee composed of relevant experts should have been created for consultation at least one year before the draft regulations were completed. The issue central to inclusion of sea level rise and climate change into the CBPA is how to regulate a RPA boundary that will move landward with time. This clash of private property rights and shoreline regulation will only worsen with time; programs and policies adopted today could soften the impacts of problems we will face in the future.

We appreciate the opportunity to comment on the draft regulation implementing the CBPA to address coastal resiliency and adaptation to sea level rise and climate change. We look forward to participating in the upcoming stakeholder advisory group and working with DEQ to improve the draft regulatory proposal.

Respectfully,

Brent Hunsinger

State Policy Coordinator

Friends of the Rappahannock

VFMA’s comment letter can be viewed here: https://vaflood.org/wp-content/uploads/2021/05/VFMA_CBPA-Draft-Regulations-Comment-Letter_05.03.2021.pdf

Mr. Justin Williams

Department of Environmental Quality

P.O. Box 1105

Richmond, VA 23218

Dear Mr. Williams:

The Virginia Floodplain Management Association (VFMA) appreciates this opportunity to comment on the Virginia Department of Environmental Quality (DEQ) draft regulations to the Chesapeake Bay Preservation Act (CBPA) (§ 62.1-44.15:72 of the Code of Virginia), which add “coastal resilience and adaptation to sea-level rise and climate change” to the criteria requirements for regulations to be established by the State Water Control Board for use by local governments.

VFMA is a non-profit dedicated to expanding the application of proactive floodplain management across the Commonwealth, representing floodplain management professionals from local governments, state and federal agencies, private firms, and nonprofits.

Please accept our comments below on the draft regulations. VFMA appreciates the significant efforts made by the Northam Administration and DEQ to address sea level rise and climate change in the Commonwealth, and we support continuing efforts to protect the Chesapeake Bay and increase coastal resilience.

The draft regulations could negatively impact Virginia communities participating in the National Flood Insurance Program’s (NFIP) Community Rating System (CRS) Program and the flood insurance policyholders who depend on the annual premium discounts earned by those communities. The NFIP’s CRS Program is a voluntary incentive based program that rewards localities that take extra steps to reduce flood risk with lower annual flood insurance premiums for policyholders. Communities earn points by adopting plans, programs, and policies that promote flood risk reduction. Total points correspond to different class ratings, which in turn correspond to discount percentages on annual flood insurance premiums. Flood insurance policy holders save $7 million annually statewide through their community’s participation in the program. The actions that are incentivized under the CRS program overlap with the coastal resiliency goals outlined in HB 504. 

Exempting all “adaptation measures or activities” from the existing development and performance criteria of the CBPA weakens the Act’s ability to restrict development in the 100-foot buffer. The national policy team of the CRS Program approved Virginia’s CBPA 100-foot buffers for open space preservation credits for communities that prove they enforce the Act and keep development out of the 100-foot RPA buffer. Their approval is predicated on the entirety of the CBPA regulations. Many communities in Virginia earn credits for prohibiting development and fill inside the RPA buffers. When passed, the amended regulations will be required to undergo CRS Program national review. New language related to permissible development in the 100-foot buffer will be reviewed under strict scrutiny. The proposed regulations’ appearance of allowing a more than limited use of fill will raise a red flag during the CRS Program review. The language indicates that adaptation measures or activities that are not “solely of the use of fill” are permissible to install in the 100-foot buffer, without any impact assessment review. This allowance and its bypassed water quality impact assessment, despite its intentions, presents a different program and exemption review process than the previous CBPA regulations, which are already approved by the CRS Program. 

The use of the word “fill” is controversial for the NFIP. The word “fill” in the NFIP equates to development and is not typically used to describe shoreline activities, like those adaptation measures or activities contemplated by the draft regulations. We recognize the use of limited fill is permissible under the current law and necessary to install shoreline erosion control projects, but this language appears to expand the use of fill, without clear parameters in place. A significant percentage of RPA buffers overlap with Special Flood Hazard Areas (SFHA), which are regulated by communities as part of their participation in the NFIP. As mentioned above, the NFIP equates the word “fill” with “development,” triggering a community to require floodplain permits and potentially more detailed engineering analyses for every proposed shoreline practice. If a community fails to enforce permit requirements, it could be considered noncompliant with the NFIP. If a community is noncompliant with the NFIP, the community and its residents could lose access to flood insurance, which would disrupt the real estate market, federal disaster assistance, and certain federal grants and loans.

We hope that you will take our concerns into consideration. 

Sincerely, 

Kristin Owen, AICP, CFM

VFMA President

Justin L. Williams
Virginia Department of Environmental Quality
111 East Main Street, Suite 1400
P.O. Box 1105
Richmond, Virginia 23218

RE: Chesapeake Bay Preservation Act Draft Designation and Management Regulations

Mr. Williams, 

On behalf of our over 83,000 members and supporters in Virginia, Environmental Defense Fund (EDF) appreciates the opportunity to comment on the Virginia Department of Environmental Quality’s (DEQ) Draft Designation and Management Regulations for the Chesapeake Bay Preservation Act (CBPA). EDF is a leading international, non-partisan, nonprofit organization dedicated to protecting human health and the environment by effectively applying science, economics, law and innovative private-sector partnerships. We support the comments and redlined text provided to the Virginia Secretary of Natural Resources and DEQ staff by Chesapeake Bay Foundation, Southern Environmental Law Center, and Wetlands Watch on April 6, 2021, and offer our own comments below.

Climate change and sea level rise will have significant impacts on Virginia’s shoreline ecosystem, specifically for vegetated tidal wetlands. Although Virginia regulations require the implementation of living shorelines except in cases where best available science shows such approaches to be unsuitable (Va. Code. § 28.2-104.1), living shorelines can be expected to experience similar drowning of the wetlands component of the living shoreline installation under these future conditions, compromising their effectiveness.  

Virginia Code § 62.1-44.15:72 recognizes the implications of these future conditions and mandates that “the criteria adopted by the Board, operating in conjunction with other state water quality programs, shall encourage and promote...coastal resilience and adaptation to sea-level rise and climate change” as a purpose of the Act. However, the draft regulations fail to consider climate change impacts beyond sea level rise, including increased precipitation, tidal flooding, and storms. These must be addressed in the final regulations in order to meet the statutory mandate.

The Virginia Marine Resources Commission had a similar mandate to incorporate sea level rise into Wetlands Guidance and recently underwent a public comment period for their draft guidance. The legislative goal to address protection of tidal wetlands from sea level rise depends entirely upon actions taken in the Resource Protection Area (RPA) and Resource Management Area (RMA). The lack of public coordination between these two sets of regulatory amendments is a disappointing missed opportunity and it is critical that the final CBPA regulations and final Wetlands Guidance be aligned; these regulations do not exist in a vacuum and effective CBPA guidance will be key to the survival of tidal wetlands regulated by the Wetlands Guidance. Additionally, implementation of the CBPA guidelines must be consistent with the Virginia Coastal Resilience Master Plan and Planning Framework authorized by Executive Order 24 (November 2018), including by requiring the use of the National Oceanic and Atmospheric Administration 2017 Intermediate-High sea level rise projection (or, in the future, any updated projection based on the best available science and selected through the Coastal Master Plan process) in all permit applications. 

It is a statutory mandated goal of the CBPA to promote coastal resilience and adaptation, but the draft guidance fails to provide a definition for coastal resilience. Phrases and terms that could be subject to interpretation, such as ‘coastal resilience’ should be defined clearly and included with other definitions in 9 VAC 25-830-40. Many definitions for socio-ecological resilience, for coastal as well as non-coastal systems, have been laid out in academic research and adopted by organizations and municipalities. The Virginia Coastal Resilience Master Planning Framework defines resilience as the capability to anticipate, prepare for, respond to, and recover from significant multi-hazard threats with minimum damage to social well-being, health, the economy, and the environment. We strongly encourage DEQ to adopt this definition in the final CBPA regulations to align with the Virginia Coastal Resilience Master Plan and Planning Framework and be explicit and transparent about what DEQ wants to achieve through the final CBPA guidance. 

Final regulations must provide clarity now to ensure local government staff and the volunteer CBPA boards they support have the ability to effectively implement the CBPA and plan for climate change. Currently, ambiguities remain with regards to the potential expansion of the RPA, misaligned timelines, and other issues. Final regulations must be prescriptive with clear standards for incorporating coastal resilience and adaptation to sea level rise and should not rely on future guidance to direct localities. Guidance is often considered prescribed, not enforceable by local government staff, while standards and criteria expressly delineated in the regulations are enforceable. Additionally, DEQ cannot expect localities to consider and plan for climate change impacts without adequate support and training. The three-year delay in implementation of the regulations will help with this, but final regulations need to set a stronger performance standard and provide support resources to avoid uneven implementation.

DEQ is right to understand the urgency of climate change and the impact this will have on our shorelines, and we commend staff for their work. However, a change of this magnitude should be considered in a process of full and robust regulatory review, using scientific advisory committees and stakeholder advisory groups extending over a period of more than a year. The statutory limitations imposed upon this regulatory process have resulted in draft regulations that do not adequately rise to the policy challenge laid out in statute. This is not a reflection on the staff of DEQ, but a statement on the deleterious impact of the compressed regulatory review period, which has resulted in incomplete deliberation. EDF would support DEQ taking additional time to conduct meaningful dialogue with localities on the front lines of adaptation with regards to these proposed guidelines, similar to what other commenters have suggested, as well as aligning CBPA guidance with the Tidal Wetlands Act guidelines and the Coastal Resilience Master Planning efforts. 

We appreciate DEQ’s commitment to the principles and goals of the CBPA, including the commitment to natural- and nature-based features. Thank you for the opportunity to comment on these important regulations; we stand ready to support DEQ as the CBPA regulations are finalized and implemented.

Sincerely,

Emily Steinhilber
Director, Virginia Coastal Resilience
Environmental Defense Fund

To Whom It May Concern:

Sierra Club Virginia Chapter joins with others in submitting comments on the proposed adoption of draft regulations stemming from amendments to the Chesapeake Bay Preservation Act that added “coastal resilience and adaptation to sea-level rise and climate change” to the consideration criteria. We believe that these regulations are significant in scope as one of the first to mandate the consideration of climate change within the Act’s criteria.

We hope that the proposed regulations will be expanded to include definitive climate change language beyond only the consideration of sea-level rise. For example, protections for Resource Protection Areas (RPAs) presently impacted and further threatened by more frequent and severe storm surge, along inland rivers and streams and in coastal areas, need clarification. We further recommend that the proposed regulations clearly stipulate expectations to uphold RPA and limit the authority of local jurisdictions to offer waivers or exceptions for development. Additionally, we ask that the regulations ensure that all definitions contained within are sufficiently explicit to ensure that localities, and specifically local government staff, have a complete understanding of their role and responsibility under the amended Act going forward. 

Above all, we urge a heightened level of attention to ensuring that these regulations contain enough specificity to ensure their effectiveness at achieving the intent of the legislative change, which is to ensure that Virginia continues to make progress combating climate change (mitigation) and protecting communities from climate impacts with an emphasis on disproportionately vulnerable populations. We hope that with the eventual adoption of these regulations, the agency will be able to assist local governments as they navigate implementation.

We appreciate all that is involved in developing these regulations and also appreciate the expertise offered to this process by our colleagues at the Southern Environmental Law Center, Chesapeake Bay Foundation, and Wetlands Watch. We hope the agency will continue to engage these organizations and stakeholders, including frontline communities, moving forward before these regulations are adopted as drafted. 

Should you have any questions regarding these comments, please direct them to Connor Kish, Legislative and Political Director, at connor.kish@sierraclub.org. 

Sincerely, 

Kate Addleson

Director

Sierra Club Virginia Chapter

To Whom It May Concern:

The Virginia League of Conservation Voters (VaLCV) would like to submit the following comments for consideration regarding the Chesapeake Bay Preservation Act draft regulations.

It is essential that these CBPA regulations work in congruence with the proposed Tidal Wetlands Act guidelines, released by the Virginia Marine Resources Commission (VMRC) on March 1st, 2021. Although the proposed regulations were tasked with including various climate change impacts, they only consider sea level rise. The finalized CBPA regulations will need to address all climate change impacts to potential projects.

The CBPA regulations should require localities to only permit those adaptation measures or activities that will survive under specific sea level rise or climate change scenarios. Specifically, the draft regulations should require locality staff to only approve activities in the Resource Protection Area (RPA) that are designed to adapt to a specific level of sea level rise/climate change for the minimum 30-year time period.

We note that the 30-year timeframe for future conditions in the draft regulations does not match the anticipated 15-year effective life of most nature-based water quality best management practices.

The newly proposed regulatory language to address coastal resilience and adaptation to sea level rise should be incorporated in existing regulatory sections, instead of included in the draft regulation’s newly created section.

We also support several additional amendments including changes that direct regulations to be prescriptive and not to rely on future guidance to direct localities, the definition of key concepts and terms to increase clarity and increase support for local government staff who risk being put on the “front lines” of climate change adaptation without sufficient resources.

We encourage the closure of loopholes in the enforcement and effectiveness of the CPBA, and the address of concerns that the loophole created by the draft regulations and the loose prohibition of fill could jeopardize the scores of Virginia localities participating in the National Flood Insurance Program’s Community Rating System (CRS) and concur with Wetlands watch that the regulations should more clearly detail how and what is regulated outside the RPA. Living shoreline project details will also need further clarification in the finalized regulations.

The regulations must clearly outline which adaptation and resilience measures are approvable, providing examples where applicable. Water Quality Impact Assessments (WQIA) or a similar assessment created by DEQ should be required for all adaptation measures and/or activities in the RPA.

Finally, we believe that additional stakeholder engagement, specifically the creation of a technical advisory committee composed of relevant experts assembled at least one year before the draft regulations were completed would have assisted in the significant undertaking of including a dynamic condition (climate change) on a static regulation (CPBA).

Additional clarification on these points can be found by consulting comments submitted by Wetlands Watch, the Southern Environmental Law Center, or the Chesapeake Bay Foundation, and any questions regarding these comments may be directed to Chris Leyen, Senior Policy Manager, at cleyen@valcv.org.

Sincerely,

Michael Town
Executive Director, Virginia League of Conservation Voters