Vol. 29, No. 6 ● August 19, 2021
Chesapeake Bay Preservation Act Regulations
Amended to Address Climate Change and Tree Protection
UPDATE, August 30, 2021: The Final Regulations were published in The Virginia Register of Regulations on August 30, 2021 and will be effective September 29, 2021.
The changes to CBPA regulations will impact projects across eastern Virginia that have Resource Protection Areas, like this one.
Wetland Studies and Solutions, Inc. (WSSI) has been involved in Virginia’s updates to the Chesapeake Bay Preservation Area (CBPA) Designation and Management Regulations (9VAC25-830), as the climate change and tree protection-focused amendments have significant land use implications. The Virginia State Water Control Board adopted the changes on June 29, 2021; we anticipate the state will publish the new regulations in the Virginia Register soon, and they will be in effect 30 days thereafter. Our synopsis of the changes at the state-level is below. Local implementation will vary; we will provide updates in future editions of Field Notes.
When is this happening?
Local governments will have no more than three years from the effective date to incorporate these regulations into their own ordinances. The Virginia Department of Environmental Quality (DEQ) will publish guidance during that three-year window, and may provide training that the local governments have requested. Also in that three-year period, DEQ plans to reconvene the Stakeholder Advisory Group (SAG) to provide comment on Guidance Documents that DEQ will publish to provide clarification on regulatory language the SAG has deemed ambiguous or contradictory.
There appears to be nothing prohibiting a locality from adopting these regulations sooner than the three-year deadline; WSSI will be coordinating with localities to learn of their own schedules for adoption of the regulations.
How did we get here?
As noted in our December 2020 Field Notes, House Bill 504 from the 2020 General Assembly spurred DEQ to draft amendment language. The suggested text was 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, 2020. The public comment period for the draft language was open February 1 – May 3, 2021.
The SWCB unanimously decided to further engage the public through the SAG that met May 13-14, 2021; WSSI participated in the SAG and also provided written comments. On June 7, 2021, DEQ released the revised draft regulations for climate change and tree protection.
Public comment at the subsequent June 29, 2021 SWCB hearing fell generally into two groups: those who advocated for additional refinement to address vagueness in the proposed language (including local governments and industry groups) and those in favor of approval as presented. After input from DEQ staff and deliberation, the SWCB voted unanimously to approve the revised regulations.
“Coastal Resilience and Adaptation to Sea-level Rise and Climate Change Criteria”
DEQ’s revisions included the following adjustments:
Property protection and improvements will be allowed in the RPA as long as stormwater controls are incorporated into the project, as well as other mitigative measures such as: acceptable fill materials, grading and slopes no greater than necessary, and consistency with floodplain management requirements. (This is in keeping with WSSI staff recommendation for revisions to allow for fill and be consistent with the Virginia Coastal Resilience Master Planning Framework, 2020).
The final regulation includes definitions for “adaptation measures” and “nature-based solutions,” for practices to mitigate or address sea-level rise, storm surge or flooding. The SAG requested additional clarification to ensure consistent interpretation among DEQ, localities, and the regulated public. DEQ plans to address those details through guidance documents that will be reviewed by the SAG before release.
The adopted regulations are without some contentious items that had appeared in the draft.
The adopted amendments do not include the originally drafted language that would have allowed localities the authority to adopt any “requirements or criteria” to extend Resource Protection Area (RPA) buffers, and apply any “further restrictions on development, or further preservation of existing vegetation.”
In the same vein, a section was removed from the draft regulations that would have required localities to “preserve to the maximum extent practicable any existing vegetation in the additional 50 feet landward from the RPA” when a landowner proposed activities in the RPA and the RPA was “naturally vegetated or not been previously developed.”
“Preservation of Mature Trees and Replanting of Trees”
This new section of the regulation was approved with a number of adjustments proposed by public comments and the SAG to modify the existing regulation and further define applicability.
The original (1990) CBPA regulations stipulated “indigenous vegetation shall be preserved to the maximum extent practicable, consistent with the use or development proposed.” The newly adopted amendments add that “mature trees shall be protected during development and only removed where necessary including to provide for the proposed use or development.”
“Maximum extent practicable” has been struck from the regulation, and “where necessary” and “feasible” are now used in a variety of instances. This adjustment clarifies opportunities for use of discretion in projects, and removes a term that in public comment was considered excessive, undefined, and without precedent in similar Virginia regulations.
The amendment language was revised to define “mature tree,” with clarifications for both “canopy tree” and “understory tree.”* Public comment prompted the additions, and the language was developed in consultation with the Virginia Department of Forestry.
Mature tree removal is now limited to the “fewest number of trees feasible” within the RPA. Furthermore, those removed for sight lines and vistas are to be replaced “as appropriate” to site conditions. Replacement ratios will be at local government discretion, and DEQ may provide formal guidance.
The extent of tree planting in the RPA buffer should be determined by the local government “as appropriate to the site conditions and the project specifications,” rather than to the “maximum extent practicable and appropriate,” allowing for greater flexibility.
The changes also clarify that the mature tree preservation amendment to the CBPA regulations is applicable only in the RPA, even when a locality has in place “conservation, planting and replacement” ordinances to cover lands in the Resource Management Area (RMA).
Moving Forward
WSSI will be tracking local implementation of these changes and will provide updates via Field Notes and LinkedIn. If you have questions or want to discuss the implications of these changes on your projects, please contact Bob Kerr, Mark McElroy, or Frank Graziano, or reach out to your WSSI project manager.
* Canopy trees are those that normally reach 35 feet in height and have a diameter at breast height (DBH) of 12 inches or greater. Understory trees are those that typically reach 12 to 35 feet in height when mature and 4 inches or greater in DBH. As defined, the DBH becomes the critical criteria in the field.