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