Vol. 28, No. 15 ● December 18, 2020
Chesapeake Bay Preservation Act Regulations Slated for
Amendments Addressing Tree Protection and Climate Change
Update, Jan. 22, 2021: The Public Comment period will be open February 1 - May 3, 2021. Visit Virginia Regulatory Town Hall for more information.
Virginia’s State Water Control Board meeting on December 9, 2020 included two proposed amendments to the Chesapeake Bay Preservation Area (CBPA) Designation and Management Regulations (9VAC25-830). These changes focus on mature tree protection and climate change, and were developed in response to House Bill 504 from the 2020 General Assembly.
These proposed changes have significant land use implications. An overview of the proposed changes and next steps are provided below.
The Regulatory Process
The proposed changes to CBPA implementation have implications for projects across eastern Virginia that have Resource Protection Areas, like this one in Prince William County.
House Bill 504 amended § 62.1-44.15:72 of the Code of Virginia to include language that requires adoption of regulations for local government implementation that shall “encourage and promote”:
“(v) preservation of mature trees or planting of trees as a water quality protection tool and as a means of providing other natural resource benefits;”
“(vi) coastal resilience and adaptation to sea-level rise and climate change”
The Virginia Department of Environmental Quality (DEQ), responsible for the implementation of the CBPA, developed two proposed amendments. The amendments were made public on November 24, shared with the public in a November 29 webinar, then discussed in the virtual State Water Control Board (SWCB) meeting on December 9.
The SWCB unanimously decided to further engage the public through a Regulatory Advisory Panel (RAP) that will convene after the 2021 General Assembly session. The RAP will process comments from the 90-day public comment period (slated for this winter, exact start date not yet announced) and make recommendations on the draft regulations that will be presented to the Board in June 2021.
The public comment period was extended from 60 days to 90 days due to the significant level of feedback received to date, and to help understand how these proposed actions may be improved with the development of the Virginia Coastal Resilience Master Plan, for which the Commonwealth issued a Request for Proposals on December 1, 2020.
“Preservation of Mature Trees and Replanting of Trees”
DEQ explains the proposed changes in the publication of the draft amendment: “…this proposed regulatory amendment includes requirements to preserve and protect mature trees and where existing vegetation is removed that includes a tree, a tree is utilized in reestablishing vegetation. It also provides that where vegetation or buffers must be established, the planting of trees should be utilized where practicable.” The changes from this proposed amendment (highlighted in this pdf) are slated for incorporation into 9VAC25-830-130 (General performance criteria) and 9VAC25-830-140 (Development criteria for Resource Protection Areas).
Note that the CBPA regulations already include a requirement that “Indigenous vegetation shall be preserved to the maximum extent practicable, consistent with the use or development proposed.” The changes under consideration build on that, adding mature trees and tree planting “where practicable.”
Mature Tree Preservation
Additions to encourage preservation of mature trees include the proposed amendment to 9VAC25-830-130.2 (shown in italics): “Indigenous vegetation shall be preserved to the maximum extent practicable, consistent with the use or development proposed. Mature trees shall only be removed where determined to be necessary to provide for the proposed use or development and protected during development to the maximum extent practicable.” This is just one example; the proposed text shows several similar annotations.
In their current form, the draft changes to the regulations do not include a definition of “mature tree.” This could result in confusion for landowners because of the potential for inconsistent definitions between localities, particularly with consideration of “mature tree” health and viability, size, species, condition – and whether such protections also include non-native or invasive species. Most critically, this also creates a very subjective and potentially combative determination for localities, public works agencies, economic development agencies, and landowners to grapple with: when is it necessary to remove a mature tree to provide for the proposed use?
Many counties, cities, and towns have adopted locality-wide Resource Management Areas (RMAs), thus the areas affected by these words are not just limited to the streams, wetlands, and associated buffers of Resource Protection Areas (RPAs) – they are locality-wide in many areas.
Tree Planting in Buffer Areas
The proposed changes also require tree planting to the “maximum extent practicable and appropriate” for buffer vegetation. One example is this proposed language from 9VAC25-830-140.3 (existing regulation with proposed language shown in italics): “To minimize the adverse effects of human activities on the other components of the Resource Protection Area, state waters, and aquatic life, a 100-foot-wide buffer area of vegetation that is effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution from runoff shall be retained if present and established where it does not exist. Where such buffer must be established, the planting of trees should be utilized to the maximum extent practicable and appropriate to site conditions.”
The current draft regulations do not define the characteristics of the potentially mandatory plantings, and thus every local government will have to develop their own criteria regarding species, size, and success criteria (i.e., survival rates for the plantings, growth rates, and number of years for monitoring) – another blow to consistency throughout the Commonwealth.
“Coastal Resilience and Adaptation to Sea-level Rise and Climate Change Criteria”
This proposed amendment allows local governments to enact requirements or criteria – including expanding the size of their Resource Protection Areas (RPAs) as they deem necessary – “to address the impacts of climate change and sea-level rise.” It also provides clarity that climate change adaptation and resilience measures are a permitted activity within CBPAs. This ensures these activities are viewed in a manner consistent with other allowable activities, particularly within the RPA. However, the definition of what these activities may entail is not specified.
Timing: The draft language provides three years from the effective date of the regulations for localities to adopt the changes. Those 36 months were provided to allow adequate time for ordinance changes, additional training, and preparation of guidance and other implementation tools.
The changes from this proposed amendment (highlighted in this pdf) will add section 9VAC25-830-155 (Climate Change Resilience and Adaptation Criteria) to the regulations.
Moving Forward
WSSI will share updates in Field Notes as this process moves forward. If you have questions regarding how this could impact your planning or projects, please contact Mark McElroy, Bob Kerr, or Frank Graziano.