Chesapeake Bay Preservation Act

Description

The Chesapeake Bay Preservation Act (the Act) was enacted to protect the water quality of the Chesapeake Bay & its tributaries. The Act requires the use of effective land management & planning that minimizes disturbance/development of environmentally sensitive shoreline areas, known as Chesapeake Bay Preservation Areas (CBPAs).

The Act could be a powerful tool to shape new development and redevelopment to be more resilient along the shoreline. The Act grants localities the authority to prohibit development in shoreline areas vulnerable to SLR, establish, restore and expand natural buffers, minimize land disturbance/impervious cover, protect indigenous vegetation, and provide for erosion and sediment control.

Case Study

James City County has studied and developed watershed management plans for each creek within the County. A recommendation of the Powhatan Creek Watershed Management Plan was to establish/maintain a 300 ft riparian buffer along the tidally-influenced main-stem of the Creek. JCC adopted a policy to maintain a 200 ft. effective buffer along the tidal main-stem of the Powhatan Creek Watershed for rezoning and special use permits.

Portsmouth’s CBPA overlay district requires development/ redevelopment projects to preserve indigenous vegetation to the maximum extent practicable. New development within the District cannot increase non-point source pollution & redevelopment projects are required to achieve a 10% reduction (where runoff had not previously been treated by a BMP). Within the CBPA, any land development/disturbance that adds impervious cover is required to minimize it. Redevelopment (outside the IDA) must not result in a net increase in impervious cover, or further encroachment in the RPA.

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Ordinance Language

City of Chesapeake Article IX. Chesapeake Bay Preservation Area District

Sec. 26-519(c): Redevelopment outside the IDA shall be permitted only under the following conditions: (1) There is no increase in impervious cover; (2) There is no further encroachment within the RPA than existed under the previous development. 
Canopy Requirements: The RPA landscaping requirement is a minimum 50% tree canopy coverage…Limitation on impervious covers. All land disturbance... shall minimize impervious cover. For any land disturbance… stormwater runoff shall be controlled by the use of BMPs
Sec. 26-520 (b): General performance standards:
(2) Preservation of existing vegetation. Existing vegetation shall be preserved in the CBPA district to the maximum extent practicable
(7a) RPA buffer area requirements. To minimize the adverse effects of land disturbance… a 100-foot wide buffer area of woody vegetation shall be retained/established with minimum tree canopy coverage of 50%.
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Funding

The Act requires VDEQ to provide technical and financial assistance to localities when requested (Va Code §62.1-44.15:67)

 

Norfolk, Virginia

The City's Wetlands Board protects the CBPA from encroachment by prohibiting mowing of tidal wetlands. Property owners must obtain permission to remove vegetation, which must then be mitigated by replacement with native vegetation. The departments of Environmental Service and Public Works collaborate to ensure all buffer projects count towards the City's MS4 Permit and Chesapeake Bay TMDL. 

Locality Feedback

Some localities noted that Chesapeake Bay Boards are being asked to permit fill on shoreline properties. Implementing ordinance language that prohibits the use of fill in flood prone areas, with no variances permitted, could reduce pressure on the Boards to allow this type of land disturbance. At least one locality is interested in adopting similar language, and another has already implemented partial fill restrictions. One city issues CBPA variances for flood control projects, but does not allow variances for “land creation”.

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Benefits
  • Required in areas of Virginia most vulnerable to SLR to plan for SLR
  • RPA determined on a site-specific basis (accounts for landward movement of shoreline)
Drawbacks
  • Designating large portions of a locality as Intensely Developed Area reduce the Act’s enforceability and effectiveness
  • The Act was adopted to improve water quality, not to manage water quantity; meaning localities will need to establish nexus between quality & quantity for flood-abatement
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Guidance

Every Tidewater locality is required to have (and other localities may adopt) a local CBPA ordinance, which includes: a map of Chesapeake Bay Preservation Areas, land use ordinance, building permit requirements, and the incorporation of CBPA protections within the Comp. plan, zoning ordinance, and subdivision ordinance. Every five years, localities are required to conduct a review to ensure compliance with the Bay Act regulations. When feasible, this review should be conducted during the locality’s comprehensive plan update.

Ex: Albemarle, VA was the first non-Tidewater locality to voluntarily adopt a CBPA provisions to protect forested buffer zones along streams.

The CBPA is comprised of Resource Protection Areas (RPA), Resource Management Areas (RMA), and Intensely Developed Areas (IDA). The RPA includes both tidal/connected non-tidal wetlands, as well as tidal shores & an adjacent landward riparian buffer < 100 ft. The RMA includes land that can potentially impair water quality without proper management (floodplains, highly erodible soils/steep slopes, highly permeable soils, non-tidal wetlands not protected in the RPA). The IDA is an overlay of redevelopment areas within an intensively developed locality and provides some exemptions from full enforcement of the CBPA, but does require a 10% reduction in runoff from pre-development conditions & allows localities to re-establish/ restore the buffer through redevelopment or other means. The act requires erosion & sediment controls on development/redevelopment with > 2,500 sq. ft. of land disturbance.

Tidewater localities are also responsible for implementing the Coastal Primary Sand Dune and Beach Act (Code of VA sec 28.2-1400 through 28.2-1420). This law requires a permit for any activity having the “potential for encroaching on or otherwise damaging coastal primary sand dunes or state-owned beaches.” This permit process allows localities administering this law to restrict development along their coastal shoreline and to establish a minimum setback for development, providing a means of adaptation to sea level rise.

Ex. Southampton, NY: Code allows for a reduction in the front yard setback (up to 30 ft.) to allow structures to be sited further from the primary dune line.

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CRS Credit

Until recently, CBPA buffers did not earn CRS credit for open space. Fortunately, localities are beginning to receive credit for these preserved areas. Stafford County has earned 1,000 points for their CBPA buffers, equating an entire class jump and 10% discount on flood insurance premiums. 

1: Up to 1,450 points (Activity 422a, Open Space Preservation (OSP), Manual pg. 420-3)

Credit for prohibiting development in riparian buffers in the floodplain

2: Up to 120 points (Activity 422g, Natural Shoreline Protection (NSP), Manual pg. 420-28)

Credit for adopting regulations prohibiting armoring, channel alterations, dredging, filling, or any beach alteration on public/private lands. Chesapeake Bay Preservation Areas can earn credit with a policy to issue no permits in these areas for activities prohibited by the CRS

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Localities could use VIMS' Comprehensive Coastal Resource Management Plans or TMDL Action Plans to identify shoreline areas for targeted restoration or protection. Living shorelines are approved BMPs for sediment in the Chesapeake Bay Program and restoration of forested riparian buffers greater than 35 feet earn significant nutrient and sediment reductions to meet TMDL goals. 

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3: Up to 40 points (Activity 452c, Erosion and Sediment Control (ESC), Manual pg. 450-18)

Regulations that manage the impact of construction and other activities on erosion and sediment loads

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Localities that enforce the state’s ESC regulations in compliance with the CBPA and the VSMP qualify for a uniform minimum credit of 30 points. To reach the maximum of 40 points allowable in this activity, localities need to regulate all development greater than 1,000 square feet.

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Hermitage Gardens, Norfolk 

The Hermitage Museum, partnering with the Chesapeake Bay Foundation, has undertaken a number of projects to restore the shoreline along the Lafayette River. This includes restoring over an acre of wetlands, installing oyster reef balls and 300 linear feet of living shoreline, and removal of invasive species. This has reduced erosion at a historical site, while providing a public demonstration for shoreline management. 

Legislation

Code of Virginia, § 62.1-44.15:67:

requires that… the counties, cities, and towns of Tidewater Virginia incorporate general water quality protection measures into their comp. plans, zoning ordinances, and subdivision ordinances; (ii) ...define and protect certain lands, called CBPAs

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Tools
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Resources

CCRM. (2013). Comprehensive Coastal Resource Management Guidance. Virginia Institute of Marine Science, Center for Coastal Resources Management.

Jarbeau , S. H., & Stiff, M.-C. (2015). Flood Protection Pay-Offs: A Local Government Guide to the Community Rating System. Wetlands Watch.

VA APA. (2014). Managing Growth and Development in Virginia: A Review of the Tools Available to Localities. Virginia Chapter of the American Planning Association .

Virginia Department of Conservation & Recreation. (2014). Guidance for Local Floodplain Ordinances in VA. Va. Department of Conservation and Recreation, Dam Safety and Floodplain Program .