Director, Office of Watersheds & Local Government Assistance
Virginia Department of Environmental Quality
1111 East Main Street, Suite 1400
P.O. Box 1105
Richmond, VA 23218
Dear Mr. Williams:
I am writing to you today on behalf of the Audubon Naturalist Society (ANS), Washington, D.C. region’s oldest independent environmental organization. On behalf of our over 28,000 members and supporters, we advocate for the protection of open space, for healthy communities for people and nature, and for strong environmental policies.
ANS appreciates the opportunity to provide comments on the proposed amendments to the Chesapeake Bay Preservation Area Designation and Management regulations.
9VAC25-830-155 Climate Change Resilience and Adaptation Criteria
As sea levels rise and storms increase in frequency and intensity, protecting our watershed health as we also protect the health of the Chesapeake Bay is of critical importance to sustaining human life. Strengthening the Chesapeake Bay Preservation Act (CBPA) through these draft regulations demonstrates an exciting step forward in the Commonwealth’s ability to address and react to the current and growing climate crisis.
We offer the following comments and recommendations with the aim of further clarifying and improving the draft language.
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.
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.
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.
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.
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.
Taking this next critical step in addressing climate change and environmental resiliency will help ensure we are protecting the very resources that allow human life to thrive on this planet. We are excited to support the overall goals of these draft regulations and look forward to reviewing the final language.
Thank you for the consideration of these recommendations and comments.