Title of Regulation: 9VAC25-830. Chesapeake Bay Preservation Area Designation and Management Regulations (adding 9VAC25-830-155).

Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.

Public Hearing Information: No public hearings are currently scheduled.

Public Comment Deadline: May 3, 2021.

Agency Contact: Justin L. Williams, State Water Control Board, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4185, FAX (804) 698-4178, or email justin.williams@deq.virginia.gov.

Summary:

Pursuant to Chapter 1207 of the 2020 Acts of Assembly, which amended the Chesapeake Bay Preservation Act (§ 62.1-44.15:72 et seq. of the Code of Virginia) and added coastal resilience and adaptation to sea-level rise and climate change to the criteria requirements for regulations to be established by the State Water Control Board for use by local governments under the Chesapeake Bay Preservation Act, the proposed amendments define specific criteria related to coastal resilience for Tidewater Virginia localities to consider in land development activities.

9VAC25-830-155. Climate change resilience and adaptation criteria.

A. This section applies in addition to 9VAC25-830-130 and 9VAC25-830-140. Local governments shall incorporate these provisions into all relevant ordinances and ensure their enforcement through implementation of appropriate processes and documentation for oversight and enforcement. Localities shall update and amend their ordinances to adopt and incorporate these performance criteria by (insert date three years after effective date of this amendment).

B. Land development and adaption measures or activities, including buffer modifications or encroachments necessary to install adaptation measures, mitigation measures, or other actions necessary to address the impacts of climate change, including sea-level rise, recurrent flooding, and storm surge, may be allowed in a Chesapeake Bay Preservation area provided the activity complies with all other applicable provisions of this chapter. Nothing in these provisions shall preclude a locality from adopting requirements or criteria in addition to the requirements of these provisions to address the impacts of climate change and sea-level rise in Chesapeake Bay Preservation areas in the locality, including extension of the Resource Protection Areas, further restrictions on development, or further preservation of existing vegetation.

C. Local governments shall consider the impacts of climate change or sea-level rise on any proposed land development in the Resource Protection Area. Based upon this consideration, local governments may require the installation of additional measures or design features as part of the proposed land development consistent with the requirements of the Act and this chapter. In considering the future impact, local governments shall:

1. Consider a potential impact range of no less than 30 years;

2. Utilize an appropriate model or forecast to aid in the consideration of impacts through use of:

a. The most updated 2017 National Oceanographic and Atmospheric Administration (NOAA) Intermediate–High scenario projection curve;

b. A model or forecast that incorporates or utilizes the 2017 National Oceanographic and Atmospheric Administration (NOAA) Intermediate–High scenario projection curve; or

c. A peer-reviewed model or forecast that includes NOAA 2017 projections, including the Intermediate–High scenario projection curve and has been developed, utilized, or recognized by a state or federal agency and is not based solely upon extrapolation of historical data;

3. Include the consideration of future floodplain, water level, storm surge, or other impacts in altering the Resource Protection Area or diminishing the protection of water quality due to the proposed development from these impacts; and

4. Identify measures, conditions, or alterations to the proposed land development to address these impacts as necessary and appropriate based upon site conditions, type of proposed land development, and projected potential impacts. This includes measures such as state or federally recognized or approved best management practices appropriate for the site conditions and land development to address such impacts.

D. Local governments shall not grant exceptions to the requirements of 9VAC25-830-130, 9VAC250-830-140, or 9VAC20-830-155 where:

1. The impact of climate change, including sea-level rise on the land development is not considered as outlined in subsection C or this section for exceptions in the Resource Protection Area;

2. The exception consists of approval solely for the use of fill or other material to the Resource Protection Area or within 100 feet of the Resource Protection Area; or

3. The exception permits encroachment into seaward 50 feet of the buffer area of the Resource Protection Area notwithstanding permitted modifications and adaptive measures.

E. Local governments may allow adaption measures or activities within the Resource Protection Area to address climate change, including sea-level rise subject to the following criteria. These criteria and requirements shall apply to such adaptation measure or activity in lieu of the criteria in 9VAC25-830-130 and 9VAC25-830-140:

1. Where the adaptation measure or activity is within a Resource Protection Area that has been previously developed, including Intensely Developed Areas, and is not naturally vegetated, the adaptation measure or activity shall:

a. Be designed, implemented, and maintained in accordance with best management practices applicable to the adaptation measure or activity as recognized or approved by a state or federal agency;

b. Not consist solely of the use of fill or other materials to raise the elevation of a Resource Protection Area;

c. Incorporate natural features or measures such as the planting of vegetation or trees, maximize preservation of existing natural vegetation and trees particularly mature trees, and minimize land disturbance and impervious cover to the maximum extent practicable consistent with the applicable best management practices; and

d. Where applicable, obtain any applicable federal, state, and local permits and comply with any applicable federal, state, and local requirements.

2. Where the adaptation measure or activity is within a Resource Protection Area that is naturally vegetated or has not been previously developed, the measure or activity shall:

a. Be designed and implemented in accordance with best management practices applicable to the adaptation measure or activity as recognized or approved by state or federal agencies;

b. Preserve to the maximum extent practicable any existing vegetation in the additional 50 feet landward from the Resource Protection Area;

c. Not consist solely of the use of fill or other materials to raise the elevation of a Resource Protection Area;

d. Maximize the preservation of existing vegetation and trees, particularly mature trees, incorporate the planting and establishment of vegetation, particularly trees, and minimize land disturbance and impervious cover to the maximum extent practicable consistent with the applicable best management practices; and

e. Where applicable, obtain any applicable federal, state, and local permits and comply with any applicable federal, state, and local requirements.

3. Where the adaptation measure or activity is a best management practice recognized or approved by a state or federal agency to reduce runoff, prevent erosion, and filter nonpoint source pollution, a Water Quality Impact Assessment in accordance with subdivision 6 of 9VAC25-830-140 shall not be required. All other measures or activities shall require a Water Quality Impact Assessment in accordance with subdivision 6 of 9VAC25-830-140.

4. Where the proposed adaptation measure is a living shoreline project or related activity, the locality otherwise approves of the project, the projects maintains or establishes a vegetative buffer inland of the living shoreline to the maximum extent practicable, minimizes land disturbance to the maximum extent practicable, and the project receives approval from the Virginia Marine Resources Commission, including a permit as applicable, and any other necessary permits or approvals, the adaptation measure shall be exempt from additional requirements or criteria, including a Water Quality Impact Assessment.