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.
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.
According to guidance issued by VA DEQ “Exceptions to the Regulations, particularly those related to requests for uses and development within RPAs, should be considered in those situations 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.”
“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 firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org
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