Burton Addresses Chesapeake Bay Act
Dear Neighbors,
In a Meeting Alert I sent out last month, I promised a fuller discussion of the Board’s consideration of the Chesapeake Bay Act. Before I drafted such a discussion I wanted to make sure that I fully understood the context (historic, scientific, and political), the goals, and the approach. Given the other items before the Board this Spring – the Countywide Transportation Plan, proposed changes to the Land Use Tax Deferral for Open Space, the Kincora Rezoning, the White’s Ford Park Special Exception, meetings with the Bond Rating Agencies – it has been difficult to find the time to undertake such study. This was one of the reasons I moved that the Board table further discussion of the matter until September.
There has also been a great deal of confusion surrounding the impact of the proposal on individual land parcels. Thus, another reason for tabling the discussion was to allow landowners the opportunity to take advantage of County staff’s willingness to provide answers customized to a particular parcel. This can be done by sending an email containing the parcel PIN to ChesBay@loudoun.gov or leaving a voice mail with the parcel PIN at 703-777-0655. Please keep in mind that the same County staff are trying to answer questions for several hundred thousand residents, while preparing materials for the Board, and undertaking their regular duties. For this reason, it may take some time for them to respond with answers to your questions – but they will respond. Also, please keep in mind that these contact points are for technical questions only (although this may include a question as simple as do the proposed regulations impact my property); general comments regarding the Board’s adoption of the proposal should be directed to bos@loudoun.gov or the Board’s Comment Phone Line at 703-777-0115.
For those who attended the Public Hearing and subsequent Public Input sessions, it is clear that emotions are running high on this subject. For that reason, I would like to begin my discussion of the subject with a point on which we can all agree: safe, sufficient drinking water, today and in the future. The protection of our drinking water is a key strategic goal for this Board. I do not believe anyone would argue against such a goal. We all want to know that the water pouring from our taps is safe for drinking, cooking, and bathing. The question for the Board and for residents is how best to achieve that goal and who should bear the cost.
Background
The Board’s decision to consider adoption of the CBPA did not just suddenly occur out of nowhere – though in terms of communications, it may surely seem that way. There is a “back story” as they say in the movies, which is important for a full understanding of how we got to this point.
In 2000 the Board of Supervisors undertook a wide-ranging, comprehensive review and revision of the County’s General Plan, which it adopted in July 2001. One significant change was an acknowledgement of the interdependency of the County’s environmental, natural, and heritage resources and an attempt to organize the conservation, preservation, and restoration of those resources within a single framework known as “The Green Infrastructure.” The plan, as passed, endorsed the creation of a River and Stream Corridor Overlay District (RSCOD), which included
- the use of 50-foot buffers adjacent to 100-year floodplains and adjacent steep slopes to protect rivers, streams, 100-year floodplains, and adjacent steep slopes;
- limitations on uses and development allowed in the RSCOD; and
- consideration of the adoption of the environmental regulations of the Chesapeake Bay Preservation Act (CBPA).
While the Board did not include river and stream segments draining less than 100 acres in RSCOD, it intended for these smaller segments to be protected through the application of conservation design techniques during the development process.
In January 2003 the Board of Supervisors implemented many of the Plan proposals by approving revisions to the County’s Zoning Ordinances. These revisions included the replacement of the County’s Floodplain Overlay District (FOD) and Scenic Creek Valley Buffer Regulations with RSCOD. However, in March 2004, the Circuit Court invalidated RSCOD and two other environmental overlay districts due to “insufficient public notice.” Despite public outcry, a majority of the Board elected in November 2003 chose not to address the deficiency in notice through re-advertisement and re-enactment, but to delete all references to RSCOD and revert to the old FOD and Scenic Creek regulations. There were two problems with this decision.
- The primary intent of the FOD is not the protection of water quality, but the protection of buildings and persons during periods of flooding.
- The Scenic Creek regulations only apply to designated portions of Goose and Catoctin Creeks, the Potomac River, and streams that fall within Major Floodplain.
These were issues and omissions that the earlier Board attempted to address through the creation of RSCOD in 2003.
In April 2008, a new Board of Supervisors expressed an interest in adopting environmental protection measures similar to those originally adopted in 2003, including RSCOD. In response to this interest, the Transportation/Land Use Committee undertook an extensive review of the County’s environmental policies and regulations that summer. In October the Board also received copies of the final County Watershed Management Plan. Prepared by CH2MHill, it makes the following recommendations:
- reinstate RSCOD or some other stream buffer requirement;
- compare current buffer sizing methodology with that found in CBPA and evaluate which provides greater coverage;
- include “at a minimum” all perennial streams in buffer requirements.
The Committee’s review and CH2MHill’s recommendations led to the following meetings and decisions:
12/1/2008
Committee of the Whole Discussion of Water Quality Protection Options, including re-enactment of RSCOD or the adoption of various elements of the CBPA.
The Board requests that Staff provide additional information at a later meeting including
- a matrix and sample maps comparing current regulations, RSCOD, and adoption of the CBPA;
- the Bay Act regulations and agriculture;
- effectiveness of riparian buffers;
- cost estimates to implement Bay Act regulations.
2/17/2009
Committee of the Whole Discussion of Water Quality Protection Options.
Staff reported back with the requested information. The Board’s discussion resulted in a decision to move forward with adoption of portions of the CBPA. In an 8-1 vote (Supervisor Delgaudio was the lone No vote) the Board directed Staff to prepare for Board approval a work program for the development and enactment of the regulations. The Board also directed the Planning Commission prepare for Board approval a stakeholder outreach program.
4/7/2009
Chesapeake Bay Preservation Act Work Program
In an 8-1 vote (Supervisor Delgaudio was the lone No vote) the Board approved the Chesapeake Bay Preservation Act Work Program and an amended Stakeholder Roundtable Participant List, directing Staff and the Planning Commission to move forward with the effort.
All of the materials reviewed by the Board in their decision to pursue adoption of portions of the CBPA are available on-line in the Meeting Documents associated with each date above.
Given this history, I have to admit to being shocked once or twice as the project reached the Board for review this Spring:
- The sudden, public opposition by several Stakeholder Roundtable participants even though the Planning Commission had adopted many of their suggestions for improving or modifying the regulations;
- Confusion regarding the extent of the regulations’ impact and the proposed fee structure;
- The sudden decision of several of my colleagues to oppose and discontinue an effort for which they had approved the expenditure of resources without even attempting to see whether anything might be salvaged from the efforts.
I, for one, believe there are actions the Board can take to modify the regulations’ impact and the proposed fee structure while still affording some increased protection of the County’s watersheds. Certainly, I think it is worth the effort not to pull the plug without some further exploration and deliberation.
Issues
While many issues have been voiced, the underlying issue with the proposed regulations seems to be the breadth of their impact. Nonpoint source water pollution (e.g., sediment and nutrients) is the major source of water pollution around the country. As the name indicates, it originates from multiple land uses — residential, agricultural, and commercial. Thus, we are all part of the problem. At some point, we must all accept some portion of the responsibility and cost for protecting our water. The regulations as proposed require every landowner in the County to make some accommodation towards water protection rather than singling out one particular group, such as farmers or developers or golf courses. There is a certain fairness and balance to such an approach. However, I am willing and open to alternative suggestions and improvements to what is currently on the table.
Certainly, the ordinances as proposed are not the clearest of documents (few ordinances ever are) and I highly recommend review of a number of flow charts prepared by Staff. Like most ordinances, they are open to interpretation and misinterpretation. However, an advantage to adopting the CBPA is the efforts by the Chesapeake Bay Local Assistance Board (CBLAD) to provide clarification and standardization of interpretation and application across localities. This clarification and standardization provides landowners and the County with enhanced legal certainty that all are treated the same both within the County and in neighboring counties, such as Fairfax, Arlington, and Prince William Counties. Again, there is a certain fairness and balance to such an approach. However, I am willing and open to alternative suggestions and improvements to what is currently on the table.
There have been suggestions that it is inappropriate to apply regulations developed for Tidewater Virginia in non-coastal areas. In looking at the history of the State’s enactment of the CBPA, I learned that the initial legislation (known as the “Land and Water Planning and Protection Act”) was to have covered the entire State or at least the 95 Chesapeake Bay Watershed localities (including Loudoun) and 33,464 square miles of the Chesapeake Bay drainage basin contained in Virginia. However, the General Assembly out of political considerations “ignored the overall emphasis of data available and enacted legislation for a program of water quality in the Chesapeake Bay and its tributaries … on 26.6% of the total square miles in Virginia and even less of a percentage of the total drainage basin.” (Jay Langston, “Economic Impact of the Chesapeake Bay Preservation Act on Virginia Localities,” Economic Development Review, Summer 1992, p. 65) In fact, the Act’s approach is quite applicable to Loudoun County as it was originally intended to encompass Loudoun County and other non-Tidewater localities in the Bay watershed.
Two Tidewater localities (Northampton and Accomack County) that were not required to adopt the Bay Act countywide have since voluntarily expanded their programs. Most recently, in February 2009, Accomack County extended their local Bay Act program to encompass that portion of the County which drains to the Atlantic Ocean (seaside). The requirements previously only applied in areas that drained to the Chesapeake Bay (bayside). Jim McGowan, the Accomack County Planning Director, indicated that the program was expanded in order to protect water quality in local streams and water bodies.
A quick look through documents, such as HJR 622, the General Assembly’s Joint Legislative Audit and Review Commission (JLARC) report on the CPBA’s implementation to date, and the 2005 Chesapeake Bay Nutrient and Sediment Reduction Tributary Strategy for the Shenandoah and Potomac River Basins all indicate long-standing discussions by the State to extend the Act to Loudoun County and other localities west of Route 95. The 2008 agreement between the six Bay watershed states, the District of Columbia, and the Environmental Protection Agency (EPA) to develop and implement Total Maximum Daily Loads (TMDLs) for the entire Bay watershed, including Loudoun County, will most certainly resurrect such discussions. Thus, it is quite possible that in the future implementation of the Act may no longer be a Board decision but a State requirement. The question then becomes do we wait and address the learning curve at that time or do we move forward to the direct betterment of our own water quality and that of the Bay. Again, I am open to your input on that question.
Future Schedule
The Board is scheduled to renew its discussion of the CBPA adoption at a meeting in September. Based on your input and comments, I may suggest some changes. My colleagues on the Board may also have amendments. While some of my colleagues have held community meetings on the subject, I have delayed scheduling such a meeting. First, I have just finished a series of community meetings around the Blue Ridge District in which very little interest was shown on the subject. Second, given the likelihood of amendment and the possibility that a majority of the Board are no longer interested in pursuing water protection regulations (or at least these water protection regulations), I thought it made more sense to present a more finished product for final comment – especially when the Staff hotlines offer landowners the opportunity to address specific questions in a one-on-one dialogue.
I look forward to hearing from you on this subject.
Best regards,
Jim Burton
