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