Can Virginia Add Climate Change to Shoreline Protection Regulations? Jury is Still Out.

Last Lot on the Road Has Sold in Seaford, VA

Snapshot: The Chesapeake Bay Preservation Act (CBPA) regulates land use along the shoreline, attempting to balance the water quality protections of the coastal environment with development by shoreline landowners. In 2020, the Virginia General Assembly enacted legislation to make “coastal resilience and adaptation to sea-level rise and climate change” one of the purposes of the CBPA. In that same session, the legislature mandated that the state Department of Environmental Quality (DEQ) make sure, “climate impacts and climate resilience are taken into account across all programs and permitting processes.” DEQ has issued draft regulations to attempt to make climate change part of the CBPA, making Virginia one of the first states to change an existing state regulatory program to address climate change impacts. Unfortunately the initial draft of the regulations falls short.

(note - the original version of this post was on February 17, 2021)

Backstory: Climate change is going to drastically alter our coastal shoreline environment in Virginia. More heat, more intense rainfall, and sea level rise will take its toll - and decrease the habitat and water quality benefits of Virginia’s coastal shoreline ecosystem. Climate change will also create new and difficult conflicts with shoreline residents as they try to adapt to climate change.

That is why the legislature added coastal resilience and climate change to the CBPA, in an attempt to force the conversation. Virginia is one of the first (the first?) states in the nation attempting to put climate change in an existing regulation and the results could set the trend nationally. Unfortunately, Virginia is also uniuqe in its single-term, four-year governorship, meaning that if this was to be done on Governor Northam’s watch the process would have to be accelerated. And the legislation enacted specifically stated that the normal, full-length regulatory process would not be used.

The Problem: What should have been a two-year, robust regulatory review with full stakeholder involvement has become a truncated process that has produced a rushed attempt at leading Virginia into the future. Wetlands Watch and the Friends of the Rappahannock objected to this sped-up process, as did our regional governmental organization. Unfortunately the State Water Control Board’s hands were tied by the legislation, although they extended the comment period to 90-days. There will be stakeholder board convened, but only at the end of the process.

The first draft of the regulations have many problems. They do not define “climate resilience” and do not examine all of the impacts of climate change on Virginia’s tidal shoreline ecosystem. They exempt “adaptation measures or activities to address climate change” from the rest of the existing regulations (including a water quality impact analysis!) and then create ill-defined special conditions for these “measures and activities.”

Guidelines Cannot Replace Regulations: DEQ says that much of this uncertainty will be clarified in subsequent “guidelines” to be developed AFTER the regulations are final. We aer arguing for more complete guidance in the regulations, to take the burden off of local government staff to interpret the intent of these changes.

Our Recommended Solution: We are working to organize stakeholders statewide to intervene in the regulations to make them better. We do not have much time but we will drop some of our other work to make this happen in coming weeks.

Take Action: You can keep updated on our work with these regulations on our “Virginia Policy Updates” page. When you want to provide your comments on the regulations, you can do so HERE. Comments are open until May 3, 2021.

Learn More: The Chesapeake Bay Foundation hosted a webinar on this issue, with Skip Stiles presenting Wetlands Watch’s perspective. Watch the recording here.