DEQ Releases Draft Climate Change Chesapeake Bay Preservation Area Management Regulations

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On January 21, 2021, the State Water Control Board ("Board") published draft amendments to the Chesapeake Bay Preservation Area Designation and Management Regulations that would require localities to incorporate coastal resilience and climate change adaptation into local land use ordinances. 

This draft regulation implements amendments to the Chesapeake Bay Preservation Act ("CBPA") passed during the 2020 General Assembly which requires local governments add consideration of "coastal resilience and adaption to sea-level rise and climate change" to local Chesapeake Bay Preservation Area land use ordinances, and specifically any proposed land development in CBPA Resource Protection Areas ("RPAs").  RPAs are regulated waterbodies and associated corridors of environmentally sensitive land that lie alongside or near the shorelines of streams, rivers and other waterways which drain into the Chesapeake Bay, including a buffer of land within 100 feet of these features.  In their natural condition, RPAs protect water quality, filter pollutants from stormwater runoff, reduce the volume of stormwater runoff, prevent erosion, and perform other important biological and ecological functions. 

The draft regulation would require local governments consider future floodplain, water level, storm surge, or other climate impacts that could be affected by development or activities within the RPA.  It would require consideration of a potential impact range of no less than 30 years, and the use of modeling or forecasting that incorporates National Oceanographic and Atmospheric Administration's 2017 Intermediate-High sea level projection.

The proposed regulation would prohibit local governments from granting exceptions to RPA development limits where the plans for that activity did not consider the impacts of climate change, including sea level rise, and would prohibit development within the seaward 50 feet of the RPA.

The regulation provides additional criteria local governments must consider in permitting climate change adaptation activities within RPAs.  These criteria require the incorporation or preservation of vegetation and trees, minimization of impervious land cover, and minimization of land disturbance.   These criteria also favor living shoreline projects that maintain or establish a vegetative buffer inland of the living shoreline to the maximum extent practicable.

The proposed regulation would result in increased scrutiny for any proposed activity within a CBPA RPA especially for proposed development within the 50-foot seaward portion.  Moreover, developers and landowners may face increased costs associated with the preparation of a climate change analysis, and will face increased pressure to incorporate design features that are more sustainable and improve the development's long-term resiliency.    

Local governments would have three years to implement changes to their local ordinances after the regulation becomes final.  At this stage of the regulation's development, the Board is seeking public comment, which will open 2/1/2021 through 5/3/2021. 

The Proposed Regulations, to be codified at 9VAC25-830-155, can be found online.

Comments may be submitted to Justin Williams, VA Department of Environmental Quality, P.O. Box 1105, Richmond, VA 23218; Phone: 804-698-4195; Fax: 804-698-4116; Email: Comments may also be submitted through the Public Forum feature of the Virginia Regulatory Town Hall web site.

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