The Chesapeake Bay Preservation Act (Bay Act) was enacted by the Virginia General Assembly in 1988 to protect and improve water quality in the Chesapeake Bay through land use management. Since that time there have been several amendments strengthening the Bay Act. Local governments have the primary responsibility for land use decisions, so the Bay Act deals primarily with the requirements of the local programs. Prince William County is one of the local governments subject to the requirements of the Bay Act.
Generally speaking, the Chesapeake Bay Act achieves its
goals through requirements and standards for developments in the Chesapeake Bay
Preservation Areas which are:
1. No more land shall be disturbed than is necessary to
provide for the proposed use or development.
2. Indigenous vegetation shall be preserved to the maximum
extent practicable, consistent with the use or development proposed. Mature
trees shall be protected during development and only removed where necessary.
3. All development exceeding 2,500 square feet of land
disturbance shall be accomplished through a plan of development review process.
4. Land development shall minimize impervious cover
consistent with the proposed use or development.
5. Any land disturbing activity that exceeds an area of
2,500 square feet shall comply with the requirements of the local erosion and
sediment control ordinance.
6. Any Chesapeake Bay Preservation Act land-disturbing
activity shall comply with the requirements of 9VAC25-870-51 and 9VAC25-870-103.
7. Onsite sewage treatment systems shall have pump-out at
least once every five years.
Those are the basic requirements for the Chesapeake Bay Preservation
Area. There are stronger regulations pertaining to aquatic features and the
land adjacent to aquatic features. The Regulations
of the Chesapeake Bay Protection Act require that a vegetated buffer
area of at least 100-feet wide be located adjacent to of all tidal shores,
tidal wetlands, non-tidal wetlands, and along both sides of all water bodies
with perennial flow within region. These aquatic features, along with the
100-foot buffer area, are called the Resource Protection Area (RPA) and serve
to protect water quality by reducing excess sediment, nutrients, and
potentially harmful or toxic substances from groundwater and surface water
entering the Chesapeake Bay and its tributaries. Under the Bay Act the RPA areas
must be delineated on a map and in Prince William County you can use the
mapping function from the Assessors Department to view the area on any parcel. The
RPA is one of the available mapping layers.
According to VA DEQ the RPAs are protected under the Bay Act
because “Wetlands in their natural state perform ecological functions that are
important to the environment and are costly to replace. Wetlands protect the
quality of surface waters by retarding the erosive forces of moving water. They
provide a natural means of flood control by reducing flood peaks, thereby
protecting against loss of life and property. Wetlands also improve water
quality by intercepting and filtering out waterborne sediments, excess
nutrients, heavy metals and other pollutants.”
There are much stronger requirements for the RPA under the Bay
Act. They are summarized by DEQ as:
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; (v) is a road or driveway crossing
satisfying specific conditions; or (vi) is a flood control or stormwater
management facility satisfying specific conditions.
However, DEQ does allow for exception to the above rule.
C. Exceptions.
1. Exceptions to the requirements of 9VAC25-830-130 and 9VAC25-830-140 may
be granted, provided that a finding is made that:
a. The requested exception to the criteria is the minimum
necessary to afford relief;
b. Granting the exception will not confer upon the applicant
any special privileges that are denied by this part to other property owners
who are subject to its provisions and who are similarly situated;
c. The exception is in harmony with the purpose and intent of
the law and is not of substantial detriment to water quality;
d. The exception request is not based upon conditions or
circumstances that are self-created or self-imposed;
e. Reasonable and appropriate conditions are imposed, as
warranted, that will prevent the allowed activity from causing a degradation of
water quality; and
f. Other findings, as appropriate and required by the local
government, are met.
The Bay Act also dictates how exceptions should be granted:
1. Each local government shall design and implement an
appropriate process or processes for the administration of exceptions. The
process to be used for exceptions to 9VAC25-830-140 shall
include, but not be limited to, the following provisions:
a. An exception may be considered and acted upon only by the
local legislative body; the local planning commission; or a special committee,
board or commission established or designated by the local government to
implement the provisions of the Act and this chapter.
No exception shall be authorized except after notice and a
hearing, as required by § 15.2-2204 of the
Code of Virginia, except that only one hearing shall be required.
2. Exceptions to other provisions of this part may be
granted, provided that:
a. Exceptions to the criteria shall be the minimum necessary
to afford relief; and
b. Reasonable and appropriate conditions upon any exception
granted shall be imposed, as necessary, so that the purpose and intent of the
Act is preserved.
3. Additions and modifications to existing legal principal
structures may be processed through an administrative review process, without a
requirement for a public hearing. This provision shall not apply to accessory
structures.
“Exceptions to the General Performance Criteria (9 VAC
25-830-130) (not RPPA criteria) may be granted through an administrative review
process provided that the same findings required for use or development
exceptions in the RPA are made in writing.”
The Virginia Department of Environmental Quality oversees
the local programs and has issued guidance that states: “However, Local
governments shall not grant exceptions to the General Performance Criteria and
RPA Development Criteria requirements where:
A Resiliency
Assessment has not been conducted; or
An Adaptation Measure
proposes the use of fill in an RPA in contravention of the required conditions.
Amended Virginia Code § 62.1-44.15:72 requiring the State
Water Control Board to develop criteria enabling local government Bay Act programs
to encourage and promote “coastal resilience and adaptation to sea-level rise
and climate change” as well as the “preservation of mature trees or planting of
trees as a water quality protection tool.”
Prince William County has a Chesapeake Bay Preservation Area
Review Board; however, there are no current members of the Board. There are four
vacant seats and two expired terms. The last time the Board was convened was
sometime around 2012 by the late Patty Dietz. The County Environmental Engineer, Clay Morris
has been administratively granting all exceptions both to general performance criteria
and RPA’s without public hearing, evidence of water quality studies and
standards. This was confirmed by Mr. Morris in an interview with the Prince William Times in 2022.
Meanwhile, according to the interview in the Prince William
Times, “county officials have approved more than 60 exceptions for encroachment
into the RPA without public hearing or the Chesapeake Bay Preservation Area
Review Board review.” These exceptions have included the construction of new
homes to be built entirely within an RPA’s boundaries and moving stream
pathways.
VA DEQ states in their guidance document for the Chesapeake
Bay Act:
"The requirements for consideration of an exception to the
Development Criteria for Resource Protection Areas (9 VAC 25-830-140) require
public notice, public hearing by a committee, board, commission or special
body, and the review of the request according to very specific criteria
resulting in findings.
Exceptions to the General Performance Criteria (9 VAC
25-830-130) may be granted through an administrative review process provided
that the same findings required for use or development exceptions in the RPA
are made in writing.
Exceptions to the Regulations should be granted in those
situations only where the property owner can show that the property was
acquired in good faith and where, by reasons of the exceptional narrowness,
shallowness, size or shape of the property, or where by reasons of exceptional
topographic conditions or other extraordinary conditions associated with the
owner’s property or of immediately adjacent properties, the strict application
of the requirements would prohibit or unreasonably restrict the use of the
property in question.
Localities must review a WQIA prior to acting on an
exception involving modification of or encroachment into an RPA."
There are more requirements, but Prince William County is
hiding from public view its handling and granting of exceptions. The County is
in violation of the Chesapeake Bay Act and is making exceptions without the
participation of the Public and without consideration of the impact on water
quality. Prince William County has justified their process by stating that the way the county now approves exceptions – while far different than surrounding counties – is legal, and the Virginia DEQ found “no compliance issues” with the county’s Chesapeake Bay review process during their program review in 2017.
If you have comments or concerns on the RPA issue in Prince
William County please contact Justin Williams, Director, Office of Watersheds
and Local Government Assistance Programs DEQ , (804) 659-1125, Justin.Williams@deq.virginia.gov.
Also contact the Prince William BOCS at BOCS@pwcgov.org
mfranklin@pwcgov.org, kboddye@pwcgov.org, vsangry@pwcgov.org, abailey@pwcgov.org, yvega@pwcgov.org, jlawson@pwcgov.org, chair@pwcgov.org
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