The Bulletin

Water board approves guard rails on coastal fill with new climate change regulations

By: - June 30, 2021 12:01 am

A marina in Deltaville, which sits near the tip of Virginia’s Middle Peninsula on the Chesapeake Bay. (Sarah Vogelsong/ Virginia Mercury)

After major changes to an earlier proposal that sparked concern from environmental groups about the use of fill by coastal landowners facing sea level rise, the State Water Control Board approved new regulations incorporating climate change into the long-standing Chesapeake Bay Preservation Act.

“I have heard words like ‘effective compromise,’ ‘proper balance’ and ‘substance,’” said chair Heather Wood before the board’s unanimous vote Tuesday. “I understand that there are some little big things that need to be tweaked, but having a background in regulatory affairs, I think a lot of that can be addressed with guidance.”

With waters along Virginia’s coasts rising significantly, the General Assembly in 2020 approved a bill requiring that sea level rise and coastal resilience be incorporated into the Bay Act, a landmark law that governs local land use with the aim of protecting water quality. 

“This is a novel proposal. We can’t find any other state in the country that’s attempted to put a dynamic condition into a static regulatory statute,” Skip Stiles, executive director of Wetlands Watch and a member of a state advisory group that helped craft the new regulations, told the board. 

Early regulations drafted by the Department of Environmental Quality, however, spurred pushback on a wide range of issues. Leeway given to landowners to deposit fill in buffer zones established by the Bay Act as a way of shoring up their property against rising seas provoked particular debate

The final regulations approved by the State Water Control Board Tuesday put guardrails on when property owners can use fill, allowing the practice only under certain conditions, among many other changes. Those conditions include meeting grading and slope requirements and ensuring that stormwater runoff to other properties doesn’t increase and that septic systems and drainfields won’t be negatively impacted.

Patrick Fanning, an attorney for the Chesapeake Bay Foundation who also spoke on behalf of the Southern Environmental Law Center, called the overall changes to the regulations “meaningful improvements.” 

Several representatives of local governments, homebuilders and real estate groups, however, urged the board to defer a decision another three months to allow the advisory group to iron out minor and “mechanical” disagreements, including confusion about the definition of “nature-based solutions.” 

While the amendments to the proposal “address the majority of our concerns,” said Hampton Roads Planning District Commission engineer Whitney Katchmark, “we’d appreciate it if you gave us just a little more time.” 

DEQ staff nevertheless urged the board to approve the new regulations Tuesday, noting the 2020 law passed by the General Assembly included a provision exempting the regulations from a longer review process laid out by the Virginia Administrative Process Act. 

“It was clear from the legislation that the legislature wanted us to move this forward,” said DEQ Director David Paylor. 

While the board did Tuesday, member Timothy Hayes expressed some dissatisfaction with the accelerated timeline. 

“I hope the General Assembly doesn’t continue down this road of bypassing the APA on extremely important and innovative programs,” he said.

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Sarah Vogelsong
Sarah Vogelsong

Sarah is the Mercury's environment and energy reporter, covering everything from utility regulation to sea level rise. Originally from McLean, she has spent over a decade in journalism and academic publishing. She previously worked as a staff reporter for Chesapeake Bay Journal, the Progress-Index and the Caroline Progress, and her work has been twice honored by the Virginia Press Association as "Best in Show" for online writing. She was chosen for the 2020 cohort of the Columbia Energy Journalism Institute and is a graduate of the College of William and Mary. Contact her at [email protected]