On Virginia’s rural coast, resiliency and Chesapeake Bay conservation goals collide amid sea level rise
An abandoned house in the salt marshes of the Eastern Shore in November 2020. (Sarah Vogelsong/Virginia Mercury)
The geography of Mathews County was carved by catastrophe.
Thirty-five million years ago, a meteorite or comet tore through the Earth’s atmosphere and slammed into its surface somewhere between the county and what is now called Cape Charles. In the ruin it left behind, the Chesapeake Bay would form. Mathews, at the very tip of Virginia’s Middle Peninsula, remains one of the state’s lowest-lying areas, surrounded on three sides by the Chesapeake Bay and the waters that flow into it.
“We’re flat as a pancake,” said Thomas Jenkins, the county’s planning, zoning and wetlands director. “Much of the county is close to sea level.”
Today a far slower but perhaps no less catastrophic force is reshaping Mathews. As climate change drives seas upward, the county is struggling to keep its waterfront properties above the tides.
“I’d say we are ground zero for it because of how much we are exposed,” said Jenkins. “We’re getting hit from all sides.”
In 2020, with Democrats newly at the helm, the General Assembly passed two bills requiring that sea level rise and coastal resilience be incorporated into longstanding laws designed to protect the Chesapeake Bay and state wetlands. Earlier this year state agencies released their first attempts at translating the legislative mandate into the nuts and bolts of state regulations that for several decades have guided virtually every decision made along the state’s coast.
“All of the laws and the regulatory programs, they only dealt with water flowing downhill,” said Del. Keith Hodges, R-Urbanna. “We’ve never addressed water coming up.”
Now Virginia is. The draft regulations issued this year would incorporate coastal resilience linked to climate change and sea level rise into not only existing Chesapeake Bay Preservation Act rules governing local land use decisions, but also new guidelines for protecting tidal wetlands. But particularly when it comes to the Bay regulation changes, the state’s proposal has left many officials and environmental groups worried that in its effort to help landowners make their threatened properties more “resilient,” Virginia is instead creating what Skip Stiles, executive director of environmental nonprofit Wetlands Watch, has called a “doughnut hole” in the law.
“Whose resilience?” Stiles asked this March during a virtual discussion of the new proposed regulations. “Because resilience of the natural ecosystem is different from and often opposed to the resilience of built systems. Are you going to protect the house, or are you going to protect the ecosystem and its water quality and habitat benefits?”
A moving buffer
Perhaps nowhere is the dilemma more pressing than in Virginia’s rural coastal areas — the Middle Peninsula, Northern Neck and Eastern Shore. As in Hampton Roads, seas here are rising rapidly, but the rural counties’ smaller populations, lack of major military installations and less robust economies have meant they’ve often flown under the radar for state officials.
For locals, though, the changes are impossible to ignore. The Middle Peninsula alone has some 1,000 miles of shoreline, most of it privately owned, and water is encroaching on all of it.
“We know what Mother Nature’s going to do. She is going to win in the end,” said Lewie Lawrence, executive director of the Middle Peninsula Planning District Commission. Sea level rise “is eating our shorelines up, literally and figuratively, grain by grain.”
That pressure is bringing to a head an unexpected clash between landowners’ desire to preserve their property and laws that aim to protect the Chesapeake Bay and its tidal wetlands. Where that battle is most vividly playing out is in strips of land known as the resource protection area.
In the Chesapeake Bay watershed, coastal landowners don’t have free rein over their property. For nearly two decades, the state has required property owners to maintain a 100-foot buffer stretching back from the shoreline, tidal wetlands and other water bodies. This “resource protection area” is sacrosanct: Unless owners get a special exception from local planners, no new development can take place there. Less restrictive but still regulated is a “resource management area” that stretches behind the RPA before giving way to unfettered land where the owner can freely build and alter the terrain.
Scientists see vegetated buffers as one of the best ways to decrease erosion and maintain water quality by providing a big natural sponge for runoff to filter through. Fewer nutrients and pollutants flowing into the waterways means less algae, more water clarity and, in turn, more wetlands and underwater grasses where fish and crabs can flourish.
“The idea is you treat the land right … and the nitrogen and sediments will stay in the soil and not in the waterways,” said Peggy Sanner, Virginia director for the Chesapeake Bay Foundation. “That is the purpose of the act: it’s to protect water quality.”
Others, like Hodges, are more skeptical of the deference that has been given to the RPA over the years, particularly as seas rise.
Preserving water quality is critical, he said, but the RPA is “not necessarily a place that’s pristine and wonderful. It’s people’s backyards, it’s where septic systems are, you have sheds, you have all kinds of things in there. It’s not this kind of magical place with gnomes and elves that people in Richmond believe. It’s who we are and where we live.”
It’s also, inconveniently, moving. When the Bay Act and the related 1972 Wetlands Act were written, they set down clear boundaries of where waters flowed, wetlands grew, buffers lay and development was allowed. Different agencies were granted jurisdiction over these zones: the Department of Environmental Quality over Bay Act areas, the Virginia Marine Resources Commission over wetlands.
Climate change is erasing those clear lines. Today’s grassy lawn is tomorrow’s tidal flats; today’s tidal flats are tomorrow’s open water. John Bateman, a regional planner with the Northern Neck Planning District Commission, summed up the confusion in a comment during Wetlands Watch’s March virtual discussion: “Delineation is impossible to keep up with now.”
To fill or not to fill
For both landowners and state and local governments, though, delineation is critical to grappling with sea level rise because what zone a property lies in determines whether the owner can use an effective but potentially destructive tool to keep waters at bay: fill.
“I think that’s the big question we’re all here for today is the use of fill,” Jenkins, the Mathews planning, zoning and wetlands director, told state environmental officials during a virtual discussion in October on what new regulations about coastal resiliency should include. “How can we use fill in a way that accomplishes a resiliency goal but also continues to protect water quality?”
Scientists have generally agreed that adding fill — sometimes just topsoil, sometimes a combination of topsoil, sand and rocks — to the buffer zone to elevate land can have “detrimental effects” on water quality. One 2018 report by the Virginia Institute of Marine Sciences and Virginia Tech said adding fill to the coastal buffer would “run counter to the original intent” of the Bay Act. Besides potentially affecting water quality, fill can act as a barrier to wetlands retreating toward the shore in response to sea level rise, causing them to drown in place.
But for many landowners seeing their property transformed as marshes creep into the backyard and water laps ever closer to the house, fill is a lifeline.
“Where I think it’s getting to be more difficult is the homeowner who’s at three-foot elevation and he’s got marsh grass creeping up into his yard each year and seeing his yard turn into a marsh,” said Jenkins. “That’s the harder question to solve.”
According to Lawrence, whether topsoil is added to properties isn’t so much an “if” as a “how,” with some desperate landowners already bypassing the rules.
“They’re going to continue putting topsoil in their yard, no matter what the regulations say, because people will protect their asset,” he said. And, he added, “I don’t believe there’s a local Board of Supervisors out there that’s going to cite a local homeowner for reasonably protecting their land in a responsible way.”
Hodges has insisted that while water quality remains the first priority, property owners need more flexibility than the current Bay Act provides. He has repeatedly introduced legislation to loosen the restrictions, and just as repeatedly the proposals have been struck down.
“There’s so many layers of government, so many layers of regulations,” he said. “It really ties our hands to be able to come up with solutions.”
In 2020, though, Hodges got an unexpected lift from the Democratic administration, which has embraced climate change as one of its signature issues. In the spring, Gov. Ralph Northam quietly amended a bill on preserving mature trees to add “coastal resilience and adaptation to sea-level rise and climate change” as a factor for local governments in Bay areas to consider in their decision-making. So quiet was the change that many environmental organizations didn’t realize it had happened until it was done.
It was that amendment that would give rise to the regulations now being fast-tracked through the review process as Northam’s term winds to a close. And while many environmental groups and officials have praised the administration for taking up the issue, they remain critical of the proposed solution, which they believe would open the door to fill too widely without instituting sufficient water quality protections.
As currently written, the regulation “is an invitation to localities that are hard-pressed to find solutions to sea level rise to just say yes to fill,” said Sanner. “And I say that without any blame to localities. They are hard-pressed.”
Even Stiles, of Wetlands Watch, was somewhat flummoxed by the extent of the problem.
“What are you going to do with these folks who through no fault of their own are in the wrong place given where climate change is headed?” he asked. “I don’t know, frankly, what the solution is. I do know that it’s going to take a hell of a lot more study than has been done in this statute and in the development of these regulations.”
As the new Bay Act regulations, and an associated set of new wetlands guidelines, work their way through the regulatory process, they are raising a specter that in Virginia will become more concrete as time passes.
Let the discussion continue long enough, and eventually the word that starts to crop up with more and more frequency is “retreat.” As the seas are rising, the shoreline is retreating. So are the marshes. Eventually, humans will have to follow.
Virginia has only recently begun to acknowledge retreat as a possibility down the road. “We must recognize that protecting every component of the built environment exactly where it stands today is not realistic,” the state’s Coastal Resilience Master Planning Framework released in October, states. “In time, some homes, businesses, roads and communities will become uninhabitable as sea level rises.”
Virginia’s rural coastal areas are far from that point. But the struggle to balance property owners’ desire — and rights — to protect their land with other competing public interests may be a prelude to broader discussions about how many resources should be put toward saving areas scientists predict will be underwater in the next few decades.
“Somebody needs to step in and say, ‘What is the life expectancy of this community given all the factors at play here?’” said Stiles.
That’s easier said than done. “People have this piece of land and it’s theirs and they love it,” said Jenkins. “And to know, ‘Is it going to be there? What’s it going to look like in 20 years?’ That’s tough.”
On maps, the trajectory of sea level rise is clear and even stark. But on the ground, the slow advance of the seas doesn’t always look so dramatic. Sometimes it just looks like a marsh, slowly overtaking a smooth green lawn.
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