Middle Peninsula property owners say Flood Fund disadvantages rural coastal dwellers

Lawmakers likely to take up issue of state flood protection for private lands

By: - November 8, 2021 12:01 am

An abandoned house in the salt marshes of the Eastern Shore in November 2020. (Sarah Vogelsong/Virginia Mercury)

On the weekend of Oct. 9, with the incoming fall and a new moon swelling tides along the Mid-Atlantic coast, water gushed up from the Chesapeake Bay onto Ron Robinson’s property in Mathews County. 

The so-called “king tide” wasn’t unexpected: the U.S. National Oceanic and Atmospheric Administration had earlier in the season issued a bulletin predicting higher than normal tides for the region during the period. But the real water levels outstripped NOAA predictions, hitting the agency’s “moderate flooding” stage on Oct. 10. 

“This time,” said Robinson, his dock “was completely underwater and the erosion was terrible. It was just massive waves crashing into our yard.” 

Robinson, like many other property owners on the rural Middle Peninsula, has been seeking a way to hold back the waters that with sea level rise keep rising ever higher. Since he bought his house in Mathews in August 2020, he estimates he’s lost between 20 and 30 feet of his yard to the seas. 

For these property owners, the new Community Flood Preparedness Fund, flush with $64 million from Virginia’s participation in a regional carbon market, represents a lifeline. But after Virginia announced the first round of $7.8 million in local flood protection grants, some residents say the state is unfairly imposing more stringent standards on projects in rural areas, where shorelines are overwhelmingly in private hands. 

“The fund is here to help communities deal with flooding challenges, and yet all the private (projects) are lock-boxed,” said Lewie Lawrence, executive director of the Middle Peninsula Planning Commission. 

Darryl Glover, a deputy director with the Virginia Department of Conservation and Recreation who is overseeing the Flood Fund, said he doesn’t believe the current approach to distributing its dollars disadvantages the state’s rural coastal areas — but, he insists, all projects have to be able to show community-scale benefits. 

The Flood Fund “was not intended to address individual properties,” he said. 

How the state should handle private property when it comes to putting public monies toward flood protection is likely to be a topic of debate during the 2022 General Assembly session. Sen. Lynwood Lewis, D-Accomack, told the Mercury that “one way or another we’re going to take a hard look at this issue.” 

“The idea is that we promote living shorelines and natural infrastructure and so forth to help combat climate change and sea level rise, and in rural coastal Virginia, the overwhelming lion’s share of our coast is in private hands,” he said. “If you want to have projects in rural coastal Virginia, you’re going to have to have some sort of mechanism by which private landowners who qualify and whose projects qualify can access the money.” 

Low-income projects

For Lawrence, there are two primary problems with how Flood Fund monies are being handled: how state officials assess whether a project qualifies for a “low-income” label and how they decide whether it has sufficient “community-scale” benefits. 

Channeling money to both low-income and community-scale projects were explicit priorities of lawmakers: the 2020 law authorizing the Flood Fund specified that priority should be given to projects “that implement community-scale hazard mitigation activities,” while at least 25 percent of all funds had to go to projects in low-income areas. 

How officials are applying those criteria is where disagreements emerge. 

Under Department of Conservation and Recreation guidelines built on the 2020 law, flood protection projects “that are located in and serve low-income geographic areas” can have a greater proportion of their costs covered by the state. For certain ones, the state match can be as high as 80 percent, with comparable projects in non-low-income areas eligible for up to 70 percent of costs.

Many of the 20 projects Lawrence submitted during the first funding round lie within areas classified as low-income and therefore, he said, should be eligible for the 80 percent match. Robinson’s was one, as was a plan by part-time Bavon resident Kimberli Vida to build a breakwater and stone spur.

The agency has objected to that designation, saying an analysis showed that 15 properties associated with projects submitted by the Middle Peninsula PDC had a mean assessed value of over $800,000, with individual property values ranging from $250,000 to over $5 million. 

“Even though these properties fall within a zip code that meets the criteria for low income, we do not understand how properties valued with the range stated can be considered to be qualified as low income,” Glover wrote to Lawrence in an Oct. 20 letter. 

Lawrence has said it isn’t that simple: “In rural communities, it’s very commonplace for people to be land rich and cash poor.” Vida, for one, said she and her husband had purchased their property in October 2020 using settlement money from a devastating car accident and “don’t have this house because we’re affluent. … This is literally my retirement plan and my retirement money for any of my medical expenses.” 

Regardless, Lawrence has argued property values are irrelevant: under the guidelines, the low-income designation is tied to the geographic area, not the individual property. In October, he sent the agency a legal opinion he had solicited from MPPDC’s counsel, Andrew McRoberts of Sands Anderson, that found “the statute and guidance are clear that the criteria deals with areas, not people.” 

“To ignore its plain language or utilize unreliable measures such as property value for grants would be arbitrary and certainly inconsistent with the law,” McRoberts wrote. 

Glover has held firm on the matter. Designating projects that lie in low-income areas but are tied to properties not considered low-income themselves “does not violate the letter of the guidance,” he acknowledged, but it does violate its spirit. And, he emphasized, DCR hasn’t rejected the Middle Peninsula applications: property owners can reapply for funds to cover up to 70 percent of their costs in the general category — a choice both Vida and Robinson, who is facing roughly $48,000 to build breakwaters and replenish the shoreline, have opted to take. 

Community impact

Income designations aren’t the only Flood Fund dispute. Community impact has also triggered debate.

By law, funding priority has to be given to “community-scale projects,” a term agency guidelines define as any project “that provides demonstrable flood reduction benefits at the U.S. census block level or greater.” But Lawrence argued that in a rural area, where census blocks tend to be larger than in urban communities, that’s too high a bar to clear — especially when taking into account that, according to his calculations, more than 95 percent of the Middle Peninsula shoreline is privately owned.  If the state insists on the community standard, he said, “they are never going to do a rural project.”

Glover, though, dismissed that contention. 

“All we’re asking him to do is aggregate more properties together to have them be on the community scale,” he said. “What we have from the Middle Peninsula are disaggregated, high-income, high-value properties that for the most part are not connected in any way.” 

As the Nov. 5 deadline for the second round of Flood Fund monies drew near, Middle Peninsula property owners were nervously watching the tides. On Halloween weekend, major coastal flooding hit the region again, driving waters into yards and across roads. Residents know it won’t be the last time.

“I think the state needs to know that anyone who lives on the shore of the bay is really impacted,” said Robinson. “I’m sure we’ll get more and more of this with the climate change everybody talks about.”

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Sarah Vogelsong
Sarah Vogelsong

Sarah is Editor-in-Chief of the Mercury and previously its environment and energy reporter. She has worked for multiple Virginia and regional publications, including Chesapeake Bay Journal, The Progress-Index and The Caroline Progress. Her reporting has won awards from groups such as the Society of Environmental Journalists and Virginia Press Association, and she is an alumna of the Columbia Energy Journalism Initiative and Metcalf Institute Science Immersion Workshop for Journalists.