Title of Regulation: 9VAC25-830. Chesapeake Bay Preservation Area Designation and Management Regulations (amending 9VAC25-830-40, 9VAC25-830-190; adding 9VAC25-830-155).

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

Effective Date: September 29, 2021.

Agency Contact: Justin L. Williams, Department of Environmental Quality, 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 amendments define specific criteria related to coastal resilience for Tidewater Virginia localities to consider in land development activities.

Changes to the proposed regulation include (i) addition of definitions; (ii) provision of specifics concerning the assessment of climate change for projects in the resource protection area (RPA); (iii) addition of an allowance for the climate change assessment to be part of a water quality impact assessment and explicit language empowering local governments to require those conditions, alterations, or measures in response to a climate change assessment; (iv) refinement of the limitations on exceptions; (v) addition of specifics and conditions on requirements for adaptation measures; and (vi) provisions for exempting living shoreline projects from additional requirements. Additional revisions centered on the recognition of interplay between activities in the RPA and the jurisdiction of wetlands authority and the removal of unnecessary language in light of other revisions.

9VAC25-830-40. Definitions.

[ The following words and terms used in this chapter have the following meanings, unless the context clearly indicates otherwise. In addition, some terms not defined herein are defined in § 62.1-44.15:68 of the Act.

"Act" means the Chesapeake Bay Preservation Act, Article 2.5 (§ 62.1-44.15:67 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

"Adaptation measure" means a project, practice, or approach to mitigate or address an impact of climate change including sea-level rise, storm surge, and flooding including increased or recurrent flooding.

"Best management practice" means a practice, or combination of practices, that is determined by a state or designated area-wide planning agency to be the most effective, practicable means of preventing or reducing the amount of pollution generated by nonpoint sources to a level compatible with water quality goals.

"Board" means the State Water Control Board.

"Buffer area" means an area of natural or established vegetation managed to protect other components of a Resource Protection Area and state waters from significant degradation due to land disturbances.

"Chesapeake Bay Preservation Area" means any land designated by a local government pursuant to Part III (9VAC25-830-70 et seq.) of this chapter and § 62.1-44.15:74 of the Act. A Chesapeake Bay Preservation Area shall consist of a Resource Protection Area and a Resource Management Area.

"Daylighted stream" means a stream that had been previously diverted into an underground drainage system and has been redirected into an aboveground channel using natural channel design concepts as defined in § 62.1-44.15:51 of the Code of Virginia, and where the adjacent lands would meet the criteria for being designated as a Resource Protection Area (RPA) as defined by the board under this chapter.

"Department" means the Department of Environmental Quality.

"Development" means the construction or substantial alteration of residential, commercial, industrial, institutional, recreation, transportation, or utility facilities or structures.

"Director" means the Director of the Department of Environmental Quality.

"Erosion and Sediment Control Law" means Article 2.4 (§ 62.1-44.15:51 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

"Floodplain" means all lands that would be inundated by flood water as a result of a storm event of a 100-year return interval.

"Highly erodible soils" means soils (excluding vegetation) with an erodibility index (EI) from sheet and rill erosion equal to or greater than eight. The erodibility index for any soil is defined as the product of the formula RKLS/T, where K is the soil susceptibility to water erosion in the surface layer; R is the rainfall and runoff; LS is the combined effects of slope length and steepness; and T is the soil loss tolerance.

"Highly permeable soils" means soils with a given potential to transmit water through the soil profile. Highly permeable soils are identified as any soil having a permeability equal to or greater than six inches of water movement per hour in any part of the soil profile to a depth of 72 inches (permeability groups "rapid" and "very rapid") as found in the "National Soil Survey Handbook" of November 1996 in the "Field Office Technical Guide" of the U.S. Department of Agriculture Natural Resources Conservation Service.

"Impervious cover" means a surface composed of any material that significantly impedes or prevents natural infiltration of water into the soil. Impervious surfaces include, but are not limited to, roofs, buildings, streets, parking areas, and any concrete, asphalt or compacted gravel surface.

"Infill" means utilization of vacant land in previously developed areas.

"Intensely Developed Areas" means those areas designated by the local government pursuant to 9VAC25-830-100.

"Local governments" means counties, cities, and towns. This chapter applies to local governments in Tidewater Virginia, as defined in § 62.1-44.15:68 of the Act, but the provisions of this chapter may be used by other local governments.

"Local program" means the measures by which a local government complies with the Act and this chapter.

"Local program adoption date" means the date a local government meets the requirements of subdivisions 1 and 2 of 9VAC25-830-60.

"Nature-based solution" means an approach that reduces the impacts of sea-level rise, flooding and storm events through the use of environmental processes and natural systems.

"Nontidal wetlands" means those wetlands other than tidal wetlands that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, as defined by the U.S. Environmental Protection Agency pursuant to § 404 of the federal Clean Water Act in 33 CFR 328.3b.

"Plan of development" means any process for site plan review in local zoning and land development regulations designed to ensure compliance with § 62.1-44.15:74 of the Act and this chapter, prior to issuance of a building permit.

"Public road" means a publicly owned road designed and constructed in accordance with water quality protection criteria at least as stringent as requirements applicable to the Virginia Department of Transportation, including regulations promulgated pursuant to (i) the Erosion and Sediment Control Law and (ii) the Virginia Stormwater Management Act. This definition includes those roads where the Virginia Department of Transportation exercises direct supervision over the design or construction activities, or both, and cases where secondary roads are constructed or maintained, or both, by a local government in accordance with the standards of that local government.

"Redevelopment" means the process of developing land that is or has been previously developed.

"Resource Management Area" means that component of the Chesapeake Bay Preservation Area that is not classified as the Resource Protection Area.

"Resource Protection Area" means that component of the Chesapeake Bay Preservation Area comprised of lands adjacent to water bodies with perennial flow that have an intrinsic water quality value due to the ecological and biological processes they perform or are sensitive to impacts which that may result in significant degradation to the quality of state waters.

"Silvicultural activities" means forest management activities, including but not limited to the harvesting of timber, the construction of roads and trails for forest management purposes, and the preparation of property for reforestation that are conducted in accordance with the silvicultural best management practices developed and enforced by the State Forester pursuant to § 10.1-1105 of the Code of Virginia and are located on property defined as real estate devoted to forest use under § 58.1-3230 of the Code of Virginia.

"Substantial alteration" means expansion or modification of a building or development that would result in a disturbance of land exceeding an area of 2,500 square feet in the Resource Management Area only.

"Tidal shore" or "shore" means land contiguous to a tidal body of water between the mean low water level and the mean high water level.

"Tidal wetlands" means vegetated and nonvegetated wetlands as defined in § 28.2-1300 of the Code of Virginia.

"Tidewater Virginia" means those jurisdictions named in § 62.1-44.15:68 of the Act.

"Use" means an activity on the land other than development including, but not limited to, agriculture, horticulture and silviculture.

"Virginia Stormwater Management Act" means Article 2.3 (§ 62.1-44.15:24 et seq.) of Chapter 3.1 of Title 62.1 of the Code of Virginia.

"Water-dependent facility" means a development of land that cannot exist outside of the Resource Protection Area and must be located on the shoreline by reason of the intrinsic nature of its operation. These facilities include, but are not limited to (i) ports; (ii) the intake and outfall structures of power plants, water treatment plants, sewage treatment plants, and storm sewers; (iii) marinas and other boat docking structures; (iv) beaches and other public water-oriented recreation areas; and (v) fisheries or other marine resources facilities. ]

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

A. [ Pursuant to § 62.1-44.15:72 of the Code of Virginia, this section provides criteria and requirements to address coastal resilience and adaptation to sea-level rise and climate change. Adaptation measures may be allowed in the Chesapeake Bay Preservation Areas subject to approval by the local government, in accordance with the conditions set forth in this chapter. ]

This section applies in addition to 9VAC25-830-130 and 9VAC25-830-140. Local governments shall incorporate [ these provisions the requirements of this section ] into all relevant ordinances and ensure their enforcement through implementation of appropriate processes and documentation for oversight and enforcement. [ Localities In doing so, local governments ] shall [ update and amend their ordinances to adopt and incorporate these performance criteria by (insert date three years after effective date of this amendment) ensure that the incorporation is consistent with the water quality protections of the Act ].

[ 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. B. ] Local governments shall [ consider assess ] the impacts of climate change [ or and ] sea-level rise on any proposed land development in the Resource Protection Area [ during the plan of development or project review process ]. [ Based upon this consideration, local governments may require the installation of additional measures or design features as part Such assessment shall be based on the Resource Protection Area as delineated at the time ] of the proposed land development [ consistent with the requirements of the Act and this chapter. In considering the future impact, local governments shall Such assessment shall at a minimum ]:

1. [ Consider Be based upon ] a potential impact range of [ no less than ] 30 years [ or the lifespan of the project if less than 30 years ];

2. Utilize [ an appropriate a ] model or forecast [ to aid in the consideration of developed by or on behalf of the Commonwealth;

3. Identify potential ] impacts [ through use of ]:

a. [ The most updated From projected sea-level rise using the ] 2017 National Oceanographic and Atmospheric Administration (NOAA) Intermediate–High scenario projection curve [ or any subsequently updated version thereof, on the project site ];

[ 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,

b. From storm surge based upon the most updated NOAA hydrodynamic Sea, Lake, and Overland Surges from Hurricanes model on the project site; and

c. From flooding based upon the most updated Special Flood Hazard Area and the Limit of Moderate Wave Action on the project site. Such assessment of flooding should be in conjunction with the requirements and application of floodplain management requirements and programs.

4. Assess the potential impacts in light of the proposed land development on buffer function including loss of riparian buffer vegetation and vegetation migration; ] water [ level, storm surge, or other impacts in altering migration; as well as the potential impacts resulting in additional future land disturbance or development in ] 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 connected ] to the proposed land development [ .

5. Identify conditions, alterations, or adaptation measures for the proposed land development ] to address these [ potential ] impacts as necessary and appropriate based upon site conditions [ ; nature ], type [ , and size ] of proposed land development [ , and projected including whether such proposed land development is in an Intensely Developed Area overlay; extent of ] potential impacts [ . This includes; and the necessity to minimize future land disturbance.

6. Local governments may require this assessment to be submitted as part of a Water Quality Impact Assessment. The specific content and procedures for the assessment shall be established by each local government and shall be of sufficient specificity to demonstrate compliance with this requirement.

7. Based upon the assessment, local governments shall, as necessary and appropriate, require conditions, alterations, or the installation of adaptation ] measures [ such ] as [ state or federally recognized or approved best management practices appropriate for part of ] the [ site conditions and proposed ] land development [ to address such impacts consistent with the requirements of the Act and this chapter ].

[ 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 of 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. C. ] Local governments may allow [ adaption adaptation ] 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 [ , which ] shall apply [ to such adaptation measure or activity ] in [ lieu of the criteria addition to those found ] in 9VAC25-830-130 and 9VAC25-830-140 [ 1. Where the including the requirement for a Water Quality Impact Assessment pursuant to subdivision 6 of 9VAC25-830-140. The ] adaptation [ measures 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 measure ] shall:

[ 1. Be a nature-based solution adaptation measure that uses environmental processes, natural systems, or natural features, is appropriate for site conditions, and is:

a. A Best Management Practice approved by the Chesapeake Bay Program Partnership; ]

b. [ a. Be designed, implemented An approved Virginia Stormwater Best Management Practice listed in the Virginia Stormwater Best Management Practice Clearinghouse;

c. An approved Shoreline Protection Strategy in accordance with the Tidal Wetlands Guidelines as determined by the Virginia Marine Resource Commission; or

d. A project that is an eligible activity for funding by the Virginia Community Flood Preparedness Fund as determined by the Virginia Department of Conservation and Recreation.

2. Be designed, installed, ] and maintained in accordance with [ best management practices the ] applicable [ to the ] adaptation measure [ or activity as recognized or approved by a state or federal agency; b. Not consist solely specifications in accordance with the type ] 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 adaptation measure identified in 9VAC25-830-155 C 1.

3. Allow for the use of fill only under the following conditions:

a. The grading and slope created by the use of fill shall be no greater than necessary based upon the project specifications and implemented in a manner that minimizes the impact of run-off;

b. The fill must have the necessary biogeochemical characteristics, including sufficient organic content, to support the growth of vegetation and adequate permeability to allow infiltration consistent with the project specifications;

c. The use of fill shall not enhance stormwater runoff ] from the Resource Protection Area [ , and any lateral flow onto adjacent properties shall be controlled ];

[ c. Not consist solely d. Any impacts on the management ] of [ the use of fill or other materials to raise stormwater upland of ] the [ elevation of a ] Resource Protection Area [ created by the use of fill shall be mitigated as necessary ];

[ d. e. The use of fill shall not negatively impact septic systems and drainfields; and

f. The use of fill shall be consistent with any applicable federal or state law, including floodplain management requirements in 44 CFR Part 60.

4. ] Maximize [ the ] preservation of existing [ natural ] vegetation [ and trees, particularly including ] 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 consistent ] with [ any applicable the adaptation measure specifications.

5. Comply with all ] 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 including any required permits and conditions.

6. Nothing in this provision shall be construed to authorize approval or allowance of an adaptation measure in contravention of floodplain management requirements, including the National Flood Insurance Program and established floodplain ordinances, or construed to require a locality to approve or allow an adaptation measure in contravention of its participation in the National Flood Insurance Program Community Rating System.

D. Local governments shall ensure that any activity in the Resource Protection Area is consistent with Chapter 13 Title 28.2, Code of Virginia, and the accompanying Tidal Wetlands Guidelines which provide for "minimum standards for the protection and conservation of wetlands," and "ensure protection of shorelines and sensitive coastal habitat from sea level rise and coastal hazard." Shoreline management and alteration projects should be coordinated to address the requirements of the most updated Tidal Wetlands Guidelines in conjunction with the requirements of this chapter, including subdivision 5 a (4) of 9VAC25-830-140 ].

[ 4. Where the proposed adaptation measure is E. For ] a living shoreline [ project or related activity , as defined in § 28.2-104.1 of the Code of Virginia, where ] the locality otherwise approves of the project, the [ projects project minimizes land disturbance and ] maintains or establishes a vegetative buffer inland of the living shoreline [ to maximum extent practicable, minimizes land disturbance to the maximum extent practicable, and the project, complies with the fill conditions in subdivision C 3 of this section, and ] receives approval from the Virginia Marine Resources Commission [ including a permit or the local wetlands board ] as applicable, [ and any other necessary permits or approvals, the adaptation measure shall be the locality may ] exempt [ it ] from additional [ performance criteria ] requirements [ or criteria ], including a Water Quality Impact Assessment.

[ F. Local governments shall not grant exceptions to the requirements of 9VAC25-830-130, 9VAC25-830-140, or this section where:

1. The assessment of climate change and sea-level rise as outlined in subsection B of this section has not occurred; or

2. The proposed adaptation measure allows for the use of fill in a Resource Protection Area contravention of the requirements of 9VAC25-830-155 C 3. ]

9VAC25-830-190. Land development ordinances, regulations, and procedures.

[ A. Local governments shall review and revise their land development regulations, as necessary, to comply with § 62.1-44.15:74 of the Act. To achieve this:

1. Local zoning ordinances shall ensure that the uses permitted by the local zoning regulations are consistent with the Act and this chapter;

2. Local land development ordinances and regulations shall incorporate either explicitly or by direct reference the performance criteria in Part IV (9VAC25-830-120 et seq.) of this chapter. Specific development standards that implement the performance criteria from subdivisions 1, 2 and 4 of 9VAC25-830-130 (minimizing land disturbance and impervious cover and preserving existing vegetation) shall be included;

3. Local land development ordinances and regulations shall protect the integrity of Chesapeake Bay Preservation Areas by incorporating standards to ensure (i) the protection of water quality; (ii) the preservation of Resource Protection Area land categories, as set forth in 9VAC25-830-80, including the 100-foot wide buffer area; and (iii) the compatibility of development with Resource Management Area land categories, as set forth in 9VAC25-830-90;

4. Local land development ordinances and regulations shall provide for (i) depiction of Resource Protection Area and Resource Management Area boundaries on plats and site plans, including a notation on plats of the requirement to retain an undisturbed and vegetated 100-foot wide buffer area, as specified in subdivision 3 of 9VAC25-830-140; (ii) a plat notation of the requirement for pump-out and 100% reserve drainfield sites for onsite sewage treatment systems, when applicable; and (iii) a plat notation of the permissibility of only water dependent facilities or redevelopment in Resource Protection Areas, including the 100-foot wide buffer area; and

5. Local governments shall require, during the plan of development review process, the delineation of the buildable areas that are allowed on each lot. The delineation of buildable areas shall be based on the performance criteria specified in Part IV (9VAC25-830-120 et seq.) of this chapter, local front and side yard setback requirements, and any other relevant easements or limitations regarding lot coverage.

B. Local governments shall undertake the following as necessary, to comply with § 62.1-44.15:74 of the Act:

1. Local governments shall evaluate the relationship between the submission requirements, performance standards, and permitted uses in local land development ordinances and regulations to identify any obstacles to achieving the water quality goals of the Act and this chapter as set forth in § 62.1-44.15:74 B of the Act, 9VAC25-830-50 and 9VAC25-830-120. Local governments shall revise these ordinances and regulations, as necessary, to eliminate any obstacles identified in the submission requirements or development standards.

2. Local governments shall review and revise their land development ordinances and regulations adopted pursuant to § 62.1-44.15:74 and Articles 1 (§ 15.2-2200 et seq.), 2 (§ 15.2-2210 et seq.), 4 (§ 15.2-2233 et seq.), 5 (§ 15.2-2239), 6 (15.2-2240 et seq.), and 7 (§ 15.2-2280 et seq.) of Chapter 22 of Title 15.2 of the Code of Virginia to assure that their subdivision ordinances, zoning ordinances, and all other components of their local Chesapeake Bay Preservation Act programs are consistent in promoting and achieving the protection of state waters. In addition, local governments shall identify and resolve any conflicts among the components of the local programs and with other local ordinances, regulations and administrative policies, to assure that the intent of the Act and this chapter is fulfilled.

3. Local governments shall review and revise their land development ordinances and regulations to ensure consistency with the water quality protection goals, objectives, policies, and implementation strategies identified in the local comprehensive plan.

C. Local governments shall update and amend their ordinances and regulations to adopt and incorporate updated requirements in Part IV (9VAC25-830-120 et seq.) of this chapter based upon statutory revisions to Virginia Code § 62.1-44.15:72. by September 29, 2024. ]