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mandate to incorporate sea level rise into Wetlands Guidance and recently underwent a public comment period for their draft guidance.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