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.