Current through Register Vol. 41, No. 3, September 23, 2024
In addition to the general performance criteria set forth
in 9VAC25-830-130, the criteria in
this section are applicable in Resource Protection Areas.
1. Land development may be allowed in the
Resource Protection Area, subject to approval by the local government, only if
it (i) is water dependent; (ii) constitutes redevelopment; (iii) constitutes
development or redevelopment within a designated Intensely Developed Area; (iv)
is a new use established pursuant to subdivision 4 a of this section; (v) is a
road or driveway crossing satisfying the conditions set forth in subdivision 1
d of this section; or (vi) is a flood control or stormwater management facility
satisfying the conditions set forth in subdivision 1 e of this section.
a. A water quality impact assessment in
accordance with subdivision 6 of this section shall be required for any
proposed land disturbance.
b. A new
or expanded water-dependent facility may be allowed provided that the following
criteria are met:
(1) It does not conflict
with the comprehensive plan;
(2) It
complies with the performance criteria set forth in
9VAC25-830-130;
(3) Any nonwater-dependent component is
located outside of Resource Protection Areas; and
(4) Access to the water-dependent facility
will be provided with the minimum disturbance necessary. Where practicable, a
single point of access will be provided.
c. Redevelopment outside locally designated
Intensely Developed Areas shall be permitted in the Resource Protection Area
only if there is no increase in the amount of impervious cover and no further
encroachment within the Resource Protection Area, and it shall conform to
applicable erosion and sediment control and stormwater management criteria set
forth in the Erosion and Sediment Control Law for Localities Not Administering
a Virginia Erosion and Stormwater Management Program and the Virginia Erosion
and Stormwater Management Act and their attendant regulations, as well as all
applicable stormwater management requirements of other state and federal
agencies.
d. Roads and driveways
not exempt under subdivision B 1 of
9VAC25-830-150 and which,
therefore, must comply with the provisions of this chapter, may be constructed
in or across Resource Protection Areas if each of the following conditions is
met:
(1) The local government makes a finding
that there are no reasonable alternatives to aligning the road or driveway in
or across the Resource Protection Area;
(2) The alignment and design of the road or
driveway are optimized, consistent with other applicable requirements, to
minimize (i) encroachment in the Resource Protection Area and (ii) adverse
effects on water quality;
(3) The
design and construction of the road or driveway satisfy all applicable criteria
of this chapter, including submission of a water quality impact assessment;
and
(4) The local government
reviews the plan for the road or driveway proposed in or across the Resource
Protection Area in coordination with local government site plan, subdivision
and plan of development approvals.
e. Flood control and stormwater management
facilities that drain or treat water from multiple development projects or from
a significant portion of a watershed may be allowed in Resource Protection
Areas provided such facilities are allowed and constructed in accordance with
the Virginia Erosion and Stormwater Management Act and its attendant
regulations, and provided that (i) the local government has conclusively
established that location of the facility within the Resource Protection Area
is the optimum location; (ii) the size of the facility is the minimum necessary
to provide necessary flood control or stormwater treatment, or both; (iii) the
facility must be consistent with a comprehensive stormwater management plan
developed and approved in accordance with
9VAC25-875-660; (iv) all applicable
permits for construction in state or federal waters must be obtained from the
appropriate state and federal agencies, such as the U.S. Army Corps of
Engineers, the department, and the Virginia Marine Resources Commission; (v)
approval must be received from the local government prior to construction; and
(vi) routine maintenance is allowed to be performed on such facilities to
assure that they continue to function as designed. It is not the intent of this
subdivision to allow a best management practice that collects and treats runoff
from only an individual lot or some portion of the lot to be located within a
Resource Protection Area.
2. Exemptions in Resource Protection Areas.
The following land disturbances in Resource Protection Areas may be exempt from
the criteria of this part provided that they comply with subdivisions a and b
of this subdivision 2:
(i) water wells;
(ii) passive recreation facilities
such as boardwalks, trails, and pathways; and
(iii) historic preservation and
archaeological activities:
a. Local
governments shall establish administrative procedures to review such
exemptions.
b. Any land disturbance
exceeding an area of 2,500 square feet shall comply with the erosion and
sediment control criteria in subdivision 5 of
9VAC25-830-130.
3. Buffer area
requirements. The 100-foot wide buffer area shall be the landward component of
the Resource Protection Area as set forth in subdivision B 5 of
9VAC25-830-80. Notwithstanding
permitted uses, encroachments, and vegetation clearing, as set forth in this
section, the 100-foot wide buffer area is not reduced in width. To minimize the
adverse effects of human activities on the other components of the Resource
Protection Area, state waters, and aquatic life, a 100-foot wide buffer area of
vegetation that is effective in retarding runoff, preventing erosion, and
filtering nonpoint source pollution from runoff shall be retained if present
and established where it does not exist. Where such buffer must be established,
the planting of trees shall be incorporated as appropriate to site conditions
and in such a manner to maximize the buffer function. Inclusion of native
species in tree planting is preferred.
a. The
100-foot wide buffer area shall be deemed to achieve a 75% reduction of
sediments and a 40% reduction of nutrients.
b. Where land uses such as agriculture or
silviculture within the area of the buffer cease and the lands are proposed to
be converted to other uses, the full 100-foot wide buffer shall be
reestablished. In reestablishing the buffer, management measures shall be
undertaken to provide woody vegetation that assures the buffer functions set
forth in this chapter. Where such buffer must be reestablished, the planting of
trees shall be incorporated as appropriate to site conditions and in such a
manner to maximize the buffer function. Inclusion of native species in tree
planting is preferred.
4.
Permitted encroachments into the buffer area.
a. When the application of the buffer area
would result in the loss of a buildable area on a lot or parcel recorded prior
to October 1, 1989, encroachments into the buffer area may be allowed through
an administrative process in accordance with the following criteria:
(1) Encroachments into the buffer area shall
be the minimum necessary to achieve a reasonable buildable area for a principal
structure and necessary utilities.
(2) Where practicable, a vegetated area that
will maximize water quality protection, mitigate the effects of the buffer
encroachment, and is equal to the area of encroachment into the buffer area
shall be established elsewhere on the lot or parcel. Such vegetated area where
established shall include the planting of trees as appropriate to site
conditions. Inclusion of native species in tree planting is
preferred.
(3) The encroachment may
not extend into the seaward 50 feet of the buffer area.
b. When the application of the buffer area
would result in the loss of a buildable area on a lot or parcel recorded
between October 1, 1989, and March 1, 2002, encroachments into the buffer area
may be allowed through an administrative process in accordance with the
following criteria:
(1) The lot or parcel was
created as a result of a legal process conducted in conformity with the local
government's subdivision regulations;
(2) Conditions or mitigation measures imposed
through a previously approved exception shall be met;
(3) If the use of a best management practice
(BMP) was previously required, the BMP shall be evaluated to determine if it
continues to function effectively and, if necessary, the BMP shall be
reestablished or repaired and maintained as required; and
(4) The criteria in subdivision 4 a of this
section shall be met.
5. Permitted modifications of the buffer
area.
a. In order to maintain the functional
value of the buffer area, existing vegetation may be removed, subject to
approval by the local government, only to provide for reasonable sight lines,
access paths, general woodlot management, and best management practices,
including those that prevent upland erosion and concentrated flows of
stormwater, as follows:
(1) Trees may be
pruned or removed as necessary to provide for sight lines and vistas, provided
that where removed, they shall be replaced with other vegetation that is
equally effective in retarding runoff, preventing erosion, and filtering
nonpoint source pollution from runoff. Mature trees shall be preserved and
trimmed or pruned in lieu of removal as site conditions permit and any removal
should be limited to the fewest number of trees feasible. When trees are
removed to provide for sight lines and vista, they shall be replaced with trees
as appropriate to site conditions and in such a manner as to maximize the
buffer function and to protect the quality of state waters. Inclusion of native
species in tree replanting is preferred.
(2) Any path shall be constructed and
surfaced so as to effectively control erosion.
(3) Dead, diseased, or dying trees or
shrubbery and noxious weeds (such as Johnson grass, kudzu, and multiflora rose)
may be removed and thinning of trees may be allowed pursuant to sound
horticultural practice incorporated into locally-adopted standards.
(4) For shoreline erosion control projects,
trees and woody vegetation may be removed, necessary control techniques
employed, and appropriate vegetation established to protect or stabilize the
shoreline in accordance with the best available technical advice and applicable
permit conditions or requirements. Mature trees shall be removed only as
necessary for the installation and maintenance of the projects consistent with
the best available technical advice project plans, and applicable permit
conditions or requirements. Trees shall be utilized in the project when
vegetation is being established as appropriate to the site conditions and the
project specifications. Inclusion of native species in tree planting is
preferred.
b. On
agricultural lands the agricultural buffer area shall be managed to prevent
concentrated flows of surface water from breaching the buffer area and
appropriate measures may be taken to prevent noxious weeds (such as Johnson
grass, kudzu, and multiflora rose) from invading the buffer area. Agricultural
activities may encroach into the buffer area as follows:
(1) Agricultural activities may encroach into
the landward 50 feet of the 100-foot wide buffer area when at least one
agricultural best management practice which, in the opinion of the local soil
and water conservation district board, addresses the more predominant water
quality issue on the adjacent land-erosion control or nutrient management-is
being implemented on the adjacent land, provided that the combination of the
undisturbed buffer area and the best management practice achieves water quality
protection, pollutant removal, and water resource conservation at least the
equivalent of the 100-foot wide buffer area. If nutrient management is
identified as the predominant water quality issue, a nutrient management plan,
including soil tests, must be developed consistent with the Nutrient Management
Training and Certification Regulations (4VAC50-85) administered by the Virginia
Soil and Water Conservation Board.
(2) Agricultural activities may encroach
within the landward 75 feet of the 100-foot wide buffer area when agricultural
best management practices which address erosion control, nutrient management,
and pest chemical control, are being implemented on the adjacent land. The
erosion control practices must prevent erosion from exceeding the soil loss
tolerance level, referred to as "T," as defined in the "National Soil Survey
Handbook" of November 1996 in the "Field Office Technical Guide" of the U.S.
Department of Agriculture Natural Resource Conservation Service. A nutrient
management plan, including soil tests, must be developed, consistent with the
Nutrient Management Training and Certification Regulations (4VAC50-85)
administered by the Virginia Soil and Water Conservation Board. In conjunction
with the remaining buffer area, this collection of best management practices
shall be presumed to achieve water quality protection at least the equivalent
of that provided by the 100-foot wide buffer area.
(3) The buffer area is not required to be
designated adjacent to agricultural drainage ditches if at least one best
management practice which, in the opinion of the local soil and water
conservation district board, addresses the more predominant water quality issue
on the adjacent land-either erosion control or nutrient management-is being
implemented on the adjacent land.
(4) If specific problems are identified
pertaining to agricultural activities that are causing pollution of the nearby
water body with perennial flow or violate performance standards pertaining to
the vegetated buffer area, the local government, in cooperation with soil and
water conservation district, shall recommend a compliance schedule to the
landowner and require the problems to be corrected consistent with that
schedule. This schedule shall expedite environmental protection while taking
into account the seasons and other temporal considerations so that the
probability for successfully implementing the corrective measures is
greatest.
(5) In cases where the
landowner or the landowner's agent or operator has refused assistance from the
local soil and water conservation district in complying with or documenting
compliance with the agricultural requirements of this chapter, the district
shall report the noncompliance to the local government. The local government
shall require the landowner to correct the problems within a specified period
of time not to exceed 18 months from their initial notification of the
deficiencies to the landowner. The local government, in cooperation with the
district, shall recommend a compliance schedule to the landowner. This schedule
shall expedite environmental protection while taking into account the seasons
and other temporal considerations so that the probability for successfully
implementing the corrective measures is greatest.
6. Water quality impact
assessment. A water quality impact assessment shall be required for any
proposed development within the Resource Protection Area consistent with this
part and for any other development in Chesapeake Bay Preservation Areas that
may warrant such assessment because of the unique characteristics of the site
or intensity of the proposed use or development.
a. The purpose of the water quality impact
assessment is to identify the impacts of proposed development on water quality
and lands in the Resource Protection Areas consistent with the goals and
objectives of the Act, this chapter, and local programs, and to determine
specific measures for mitigation of those impacts. The specific content and
procedures for the water quality impact assessment shall be established by each
local government. Local governments should notify the department of all
development requiring such an assessment.
b. The water quality impact assessment shall
be of sufficient specificity to demonstrate compliance with the criteria of the
local program.
7. Buffer
area requirements for Intensely Developed Areas. In Intensely Developed Areas
the local government may exercise discretion regarding whether to require
establishment of vegetation in the 100-foot wide buffer area. However, while
the immediate establishment of vegetation in the buffer area may be
impractical, local governments shall give consideration to implementing
measures that would establish vegetation in the buffer in these areas over time
in order to maximize water quality protection, pollutant removal, and water
resource conservation. In considering such measures, local governments shall
consider the planting of trees as a component of any such measure. Inclusion of
native species in tree planting is preferred.
Statutory Authority: §§
62.1-44.15:69 and
62.1-44.15:72 of the Code of
Virginia
