Wednesday, August 16, 2017  

Chesapeake Bay Act


In today’s environmentally conscious world, many folks have heard about the Chesapeake Bay Preservation Area (CBPA) ordinances and regulations. However, not many people actually understand the implications of those regulations regarding the improvement of their land. In 1989, all cities and counties with lands lying east of Interstate 95 were required to adopt language contained in a model state ordinance requiring a percentage reduction of nutrients and sediment discharging into the Chesapeake Bay. These ordinances generally became known as the Chesapeake Bay Preservation Area Overlay District in most locations affected by the State Code.

The primary goal of reducing pollutants into the Bay is accomplished by the creation of a 100 foot wide buffer strip along the Bay and its tributaries including any adjacent tidal wetlands and non-tidal, upland wetlands which have perennial stream flow or contiguous surface flow. This buffer strip and the adjacent ecologically sensitive areas are known as Resource Protection Areas (RPA). All areas outside of this RPA, either defined by a set distance or possibly the balance of the land contained within a jurisdiction, were considered to be Resource Management Areas (RMA). Development within a RPA would only allow improvements which could be considered “water dependent.” These “water dependent” features would typically include docks, drainage outfalls and other uses that would need to be constructed near the water by necessity. Development within a RMA would be allowed for any improvements providing that water quality standards are met through the use of stormwater “best management practices” (BMP). These BMPs are designed to treat stormwater to improve its water quality characteristics and may also reduce the increased stormwater run-off created by the addition of the improvement’s impervious cover. This impervious cover typically consists of rooftops, driveways, parking lots and other improvements which would prevent the natural infiltration of stormwater into the existing soils.

For the average current or future homeowner, construction within the Resource Protection Area is prohibited by law unless the purpose can be proven to meet water dependent criteria or no other alternative exists. If the improvement currently exists within a RPA, then addi­tions or renovations may be allowed to be made to the structure. This situation usually involves the preparation of a Water Quality Impact Assessment which helps identify the ecological resources potentially being impaired by the proposal and establishes design criteria which may help to mitigate the impacts to the environment. These studies and plans are then reviewed by the locality’s environmental staff and may be presented to the governing body’s approval authority, sometimes consisting of a public hearing board such as the locality’s Planning Commission. Construction within the Resource Management Area (RMA) is substantially easier as proposed improvements are only subjected to the erosion and sediment control and impervious cover requirements of the regulations.

The erosion and sediment control criteria is a continuation of the earlier Erosion and Sediment Control laws in effect since the 1970s and more recently updated and expanded within the Virginia Stormwater Management Program (VSMP). The impervious cover regulations in place today generally allow any property owner to cover 16 percent of their total land area with impervious cover without having to address the water quality impacts of their development. However, certain jurisdictions may allow a higher impervious cover percentage based upon statistical analysis of prior development impervious cover ratios. If you exceed the default impervious cover percentage or already have impervious cover on your property totaling more than the jurisdiction’s allowable impervious cover percentage, you must mitigate the additional pollutant load contained in the stormwater run-off back to the appropriate pre-development allowable default value. This mitigation typically consists of the installation of a stormwater best management practice which are designed to reduce the pollutant load being discharged to the Chesapeake Bay. Examples of stormwater best management practices include filter strips, water quality swales, biofiltration practices more commonly known as “rain gardens,” infiltration trenches and several engineered devices such as sand filters and pre-manufactured water quality inlets. These practices are installed to collect and treat stormwater by reducing its sediment and nutrient loads from impervious cover areas. Several of these practices as well as ponds, detention basins and other holding structures may be used in combination to address both the water quality and water quantity reductions required for the improvement of property within the jurisdictions governed by the Bay Act. Once installed, most stormwater practices require inspection and maintenance to operate properly. This may be as simple as removing debris and grass cutting within filter strips and swales to removal and replacement of stone within infiltration trenches due to sediment clogging. Therefore, in order to determine the most economical stormwater best management practice for your site, the homeowner is generally directed to the services of a Professional Engineer who is knowledgeable of the locality’s stormwater management rules and regulations and the constraints of the project site. The Professional Engineer will listen to the desires of the homeowner regarding the proposed improvements and will then make suggestions of design criteria that will achieve the homeowner’s desire with the least amount of impact to the environment. The Professional Engineer can also assist the homeowner in obtaining the appropriate permits to complete the project and provide construction inspection to insure the proper installation of the stormwater management practice.

The Chesapeake Bay and its tributaries provide a valuable economic and recreational resource as well as an ecological jewel to our portion of the planet. Therefore, it is our responsibility as citizens of the community and stewards of the land to protect this valuable resource while at the same time protecting the property rights of the individual land owner. Proper administration and implementation of the Chesapeake Bay Preservation ordinance in conjunction with public education can fulfill the desires of the landowner while protecting the environment we live in.
Jeffrey Howeth is a licensed Professional Engineer and Land Surveyor specializing in providing engineering, surveying and environmental consultation services for land development projects. He is the President of
J. L. Howeth, P.C. with its main office located at 1125 Elm Street in Tappahannock, Virginia.