Current through Register Vol. 41, No. 3, September 23, 2024
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 the requirements of this section into all
relevant ordinances and ensure their enforcement through implementation of
appropriate processes and documentation for oversight and enforcement. In doing
so, local governments shall ensure that the incorporation is consistent with
the water quality protections of the Act.
B. Local governments shall assess the impacts
of climate change and sea-level rise on any proposed land development in the
Resource Protection Area during the plan of development or project review
process. Such assessment shall be based on the Resource Protection Area as
delineated at the time of the proposed land development Such assessment shall
at a minimum:
1. Be based upon a potential
impact range of 30 years or the lifespan of the project if less than 30
years;
2. Utilize a model or
forecast developed by or on behalf of the Commonwealth;
3. Identify potential impacts:
a. 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.
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
migration; as well as the potential impacts resulting in additional future land
disturbance or development in the Resource Protection Area 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
including whether such proposed land development is in an Intensely Developed
Area overlay; extent of potential impacts; 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 as part of
the proposed land development consistent with the requirements of the Act and
this chapter.
C. Local
governments may allow adaptation measures within the Resource Protection Area
subject to the following criteria and requirements, which shall apply in
addition to those found in
9VAC25-830-130
and
9VAC25-830-140
including the requirement for a Water Quality Impact Assessment pursuant to
subdivision 6 of
9VAC25-830-140.
The adaptation 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. 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 the applicable adaptation measure specifications in accordance
with the type of the 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;
d. Any impacts on the management of
stormwater upland of the Resource Protection Area created by the use of fill
shall be mitigated as necessary;
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 preservation of existing natural
vegetation including mature trees and minimize land disturbance consistent with
the adaptation measure specifications.
5. Comply with all federal, state, and local
requirements 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.
E. For a living shoreline, as defined in
§
28.2-104.1
of the Code of Virginia, where the locality otherwise approves of the project,
the project minimizes land disturbance and maintains or establishes a
vegetative buffer inland of the living shoreline, complies with the fill
conditions in subdivision C 3 of this section, and receives approval from the
Virginia Marine Resources Commission or the local wetlands board as applicable,
the locality may exempt it from additional performance criteria requirements,
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.
Statutory Authority: §§
62.1-44.15:69
and
62.1-44.15:72
of the Code of Virginia.
