Draft Amendments to Bay Act Regulations Include New Requirements to Address Coastal Resilience and the Preservation of Mature Trees – May 3 Deadline to Comment

April 6, 2021

As required by legislation passed in the 2020 General Assembly amending the Chesapeake Bay Preservation Act (CBPA), the Virginia Department of Environmental Quality (DEQ) has drafted changes to state administrative code to be incorporated into local land use regulations. (NOTE: the CBPA requires all  “Tidewater Virginia” localities – as defined in state code – to incorporate and enforce the criteria of the regulations developed pursuant to the Act).

The first change proposes a new section in the regulations entitled “Climate change resilience and adaption criteria” that localities are required to incorporate into their ordinances and enforce after three years of their effective date. The newly proposed criteria are intended to address “coastal resilience and adaptation to sea-level rise” and entail significant new restrictions on permitted activities within the 100-foot buffer adjacent to waterways (a.k.a. the Resource Protection Area or RPA). These include prohibiting localities from granting exceptions for (1) placing “fill or other material” within the buffer area; and (2) permitting any encroachments into the “seaward 50 feet of the buffer area.” The proposal also requires localities to consider “the impacts of climate change or sea-level rise” that proposed developments will have on RPAs and grants authority to require “the installation of additional measures or design features” to address such impacts.

The second proposal amends existing criteria to require that any modifications to the buffer area (such as establishment of sight lines or erosion control projects) preserve existing mature trees to the “maximum extent practical.” Additionally, when new buffer areas are established (such as when agriculture or silviculture activities are converted to other uses), “the planting of trees should be utilized to the maximum extent practical.”

For more information on the proposed new coastal resilience and adaptation to sea-level rise criteria, please click here. For more information on the proposal to incorporate additional requirements related to preservation and establishment of mature trees in the RPA, click here. Both webpages include links to an online portal for submitting comments by the May 3rd deadline.

VACo Contacts: Joe Lerch, AICP and Chris McDonald, Esq.

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