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VA - Shoreline Protection: Proposed Virginia Regulatory Amendments for Coastal Resiliency and Climate Change Adaptation within Chesapeake Bay Preservation Areas

Recent legislation and just proposed regulatory amendments present a new opportunity, but also potential concerns, for implementing climate change resiliency measures on properties subject to Virginia’s Chesapeake Bay Preservation Act (Bay Act).

HB 504 from the 2020 Virginia General Assembly session, codified at Va. Code § 62.1-44.15:72.B(vi), amended the Bay Act as of July 1, 2020 to more clearly authorize such measures and local consideration of climate change for development projects subject to the Bay Act and implementing local ordinances.  The Virginia State Water Control Board, staffed by the Department of Environmental Quality (DEQ), has recently published for public comment proposed amendments (Proposed Amendments) to the Chesapeake Bay Preservation Area Designation and Management Regulations (Bay Regulations) to implement HB 504.  However, it is unclear how useful the Proposed Amendments will be for property owners who want to install resiliency and adaptation measures on their properties.

First enacted in 1988, the Bay Act imposes restrictions on certain development and land disturbing activities to help reduce sedimentation and nutrient (nitrogen and phosphorous) and other pollutant loads entering the Chesapeake Bay through stormwater runoff and leaky septic systems.  Cities and counties located in “Tidewater” Virginia (generally, east of Interstate 95 and within the Chesapeake Bay watershed, and Eastern Shore localities) are subject to the Bay Act.  (Some localities within the Chesapeake Bay watershed west of I-95 have voluntarily adopted such ordinances.)  The Bay Act requires these localities, based on related regulatory criteria, to develop land use ordinances that restrict development activity to achieve these purposes.

Among other things, the Bay Act restricts development and land disturbing activities within any designated Resource Protection Area (RPA) and Resource Management Area (RMA) (collectively, “Preservation Area”), as more particularly defined by the Bay Regulations.  RPAs  include perennial streams, tidal waters, and wetlands, and a 100-foot buffer along these features.  Except for certain fairly narrow exceptions, new or expanded development, structures and land disturbing activities are restricted or prohibited within an RPA.  RMAs include other, non-RPA areas of a locality where less onerous restrictions are imposed.  Greater flexibility for development exists within RMAs, subject to certain management practices and controls.  Although the Bay Act sets certain criteria to be considered when developing local ordinances, the Bay Regulations provide more specific procedures for local program approval.

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