Part IV. Land Use and Development Performance Criteria
9VAC25-830-120. Purpose.
A. The purpose of this part is to achieve the goals of the Act and 9VAC25-830-50 by establishing criteria to implement the following objectives: prevent a net increase in nonpoint source pollution from new development and development on previously developed land where the runoff was treated by a water quality protection best management practice, achieve a 10% reduction in nonpoint source pollution from development on previously developed land where the runoff was not treated by one or more water quality best management practices, and achieve a 40% reduction in nonpoint source pollution from agricultural and silvicultural uses.
B. In order to achieve these goals and objectives, the criteria in this part establish performance standards to minimize erosion and sedimentation potential, reduce land application of nutrients and toxics, maximize rainwater infiltration, and ensure the long-term performance of the measures employed.
C. The criteria in this part become mandatory upon the local program adoption date. They are supplemental to the various planning and zoning concepts employed by local governments in granting, denying, or modifying requests to rezone, subdivide, or to use and develop land in Chesapeake Bay Preservation Areas.
D. Local governments shall incorporate the criteria in this part into their comprehensive plans, zoning ordinances and subdivision ordinances, and may incorporate the criteria in this part into such other ordinances and regulations as may be appropriate, in accordance with §§ 62.1-44.15:74 and 62.1-44.15:76 of the Act and Parts V (9VAC25-830-160 et seq.), VI (9VAC25-830-180 et seq.), and VII (9VAC25-830-200 et seq.) of this chapter. The criteria may be employed in conjunction with other planning and zoning concepts to protect the quality of state waters.
Statutory Authority
§§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
Historical Notes
Former 4VAC50-90-120 and 9VAC10-20-110 derived from VR173-02-01 § 4.1, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013.
9VAC25-830-130. General performance criteria.
Through their applicable land use ordinances, regulations, and enforcement mechanisms, local governments shall require that any use, development, or redevelopment of land in Chesapeake Bay Preservation Areas meets the following performance criteria:
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, including to provide for the proposed use or development.
A locality which has an ordinance providing for the conservation, planting, and replacement of trees during the land development process pursuant to § 15.2-961 or 15.2-961.1 of the Code of Virginia may rely on such ordinance for demonstrating compliance with this requirement related to mature trees in Resource Management Areas.
3. All development exceeding 2,500 square feet of land disturbance shall be accomplished through a plan of development review process consistent with § 15.2-2286 A 8 of the Code of Virginia and subdivision 1 e of 9VAC25-830-240.
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 (including construction of all single family houses, septic tanks, and drainfields, but otherwise as defined in § 62.1-44.15:24 or 62.1-44.15:51 of the Code of Virginia) shall comply with the requirements of the local erosion and sediment control program ordinance or erosion and stormwater management program ordinance. Enforcement for noncompliance with the erosion and sediment control requirements referenced in this criterion shall be conducted under the provisions of the State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia) and attendant regulations.
6. Land-disturbing activities in a Chesapeake Bay Preservation Area that are equal to or greater than 2,500 square feet but less than one acre shall comply with the requirements of 9VAC25-875-740 and 9VAC25-875-750.
7. Onsite sewage treatment systems not requiring a Virginia Pollutant Discharge Elimination System (VPDES) permit shall:
a. Have pump-out accomplished for all such systems at least once every five years.
(1) If deemed appropriate by the local health department and subject to conditions the local health department may set, local governments may offer to the owners of such systems, as an alternative to the mandatory pump-out, the option of having a plastic filter installed and maintained in the outflow pipe from the septic tank to filter solid material from the effluent while sustaining adequate flow to the drainfield to permit normal use of the septic system. Such a filter should satisfy standards established in the Sewage Handling and Disposal Regulations (12VAC5-610) administered by the Virginia Department of Health.
(2) Furthermore, in lieu of requiring proof of septic tank pump-out every five years, local governments may allow owners of onsite sewage treatment systems to submit documentation every five years, certified by an operator or onsite soil evaluator licensed or certified under Chapter 23 (§ 54.1-2300 et seq.) of Title 54.1 of the Code of Virginia as being qualified to operate, maintain, or design onsite sewage systems, that the septic system has been inspected, is functioning properly, and the tank does not need to have the effluent pumped out of it.
(3) Effective July 1, 2023, requirements of this section directly related to compliance with onsite sewage system pump-outs shall be managed and enforced by the Virginia Department of Health in Accomack, Essex, Gloucester, King and Queen, King William, Lancaster, Mathews, Middlesex, Northampton, Northumberland, Richmond, and Westmoreland Counties, and the incorporated towns within those counties.
b. For new construction, provide a reserve sewage disposal site with a capacity at least equal to that of the primary sewage disposal site. This reserve sewage disposal site requirement shall not apply to any lot or parcel recorded prior to October 1, 1989, if the lot or parcel is not sufficient in capacity to accommodate a reserve sewage disposal site, as determined by the local health department. Building shall be prohibited on the area of all sewage disposal sites until the structure is served by public sewer or an onsite sewage treatment system that operates under a permit issued by the department. All sewage disposal site records shall be administered to provide adequate notice and enforcement. As an alternative to the 100% reserve sewage disposal site, local governments may offer the owners of such systems the option of installing an alternating drainfield system meeting the following conditions:
(1) Each of the two alternating drainfields in the system shall have, at a minimum, an area not less than 50% of the area that would otherwise be required if a single primary drainfield were constructed.
(2) An area equaling 50% of the area that would otherwise be required for the primary drainfield site must be reserved for subsurface absorption systems that utilize a flow diversion device, in order to provide for future replacement or repair to meet the requirements for a sewage disposal system. Expansion of the primary system will require an expansion of this reserve area.
(3) The two alternating drainfields shall be connected by a diversion valve, approved by the local health department, located in the pipe between the septic (aerobic) tank and the distribution boxes. The diversion valve shall be used to alternate the direction of effluent flow to one drainfield or the other at a time. However, diversion valves shall not be used for the following types of treatment systems:
(a) Sand mounds;
(b) Low-pressure distribution systems;
(c) Repair situations when installation of a valve is not feasible; and
(d) Any other approved system for which the use of a valve would adversely affect the design of the system, as determined by the local health department.
(4) The diversion valve shall be a three-port, two-way valve of approved materials (i.e., resistant to sewage and leakproof and designed so that the effluent from the tank can be directed to flow into either one of the two distribution boxes).
(5) There shall be a conduit from the top of the valve to the ground surface with an appropriate cover to be level with or above the ground surface.
(6) The valve shall not be located in driveways, recreational courts, parking lots, or beneath sheds or other structures.
(7) In lieu of the aforementioned diversion valve, any device that can be designed and constructed to conveniently direct the flow of effluent from the tank into either one of the two distribution boxes may be approved if plans are submitted to the local health department and found to be satisfactory.
(8) The local government shall require that the owner alternate the drainfields every 12 months to permit the yearly resting of half of the absorption system.
(9) The local government shall ensure that the owner are notified annually of the requirement to switch the valve to the opposite drainfield.
8. Land upon which agricultural activities are being conducted, including crop production, pasture, and dairy and feedlot operations, or lands otherwise defined as agricultural land by the local government, shall have a soil and water quality conservation assessment conducted that evaluates the effectiveness of existing practices pertaining to soil erosion and sediment control, nutrient management, and management of pesticides, and, where necessary, results in a plan that outlines additional practices needed to ensure that water quality protection is being accomplished consistent with the Act and this chapter.
a. Recommendations for additional conservation practices need address only those conservation issues applicable to the tract or field being assessed. Any soil and water quality conservation practices that are recommended as a result of such an assessment and are subsequently implemented with financial assistance from federal or state cost-share programs must be designed, consistent with cost-share practice standards effective in January 1999 in the "Field Office Technical Guide" of the U.S. Department of Agriculture Natural Resource Conservation Service or the June 2000 edition of the "Virginia Agricultural BMP Manual" of the Virginia Department of Conservation and Recreation, respectively. Unless otherwise specified in this section, general standards pertaining to the various agricultural conservation practices being assessed shall be as follows:
(1) For erosion and sediment control recommendations, the goal shall be, where feasible, to prevent erosion from exceeding the soil loss tolerance level, referred to as "T," as defined in the "National Soil Survey Handbook" of November 1996 in the "Field Office Technical Guide" of the U.S. Department of Agriculture Natural Resource Conservation Service. However, in no case shall erosion exceed the soil loss consistent with an Alternative Conservation System, referred to as an "ACS", as defined in the "Field Office Technical Guide" of the U.S. Department of Agriculture Natural Resource Conservation Service.
(2) For nutrient management, whenever nutrient management plans are developed, the operator or landowner must provide soil test information, consistent with the Virginia Nutrient Management Training and Certification Regulations (4VAC50-85).
(3) For pest chemical control, referrals shall be made to the local cooperative extension agent or an Integrated Pest Management Specialist of the Virginia Cooperative Extension Service. Recommendations shall include copies of applicable information from the "Virginia Pest Management Guide" or other Extension materials related to pest control.
b. A higher priority shall be placed on conducting assessments of agricultural fields and tracts adjacent to Resource Protection Areas. However, if the landowner or operator of such a tract also has Resource Management Area fields or tracts in his operation, the assessment for that landowner or operator may be conducted for all fields or tracts in the operation. When such an expanded assessment is completed, priority must return to Resource Protection Area fields and tracts.
c. The findings and recommendations of such assessments and any resulting soil and water quality conservation plans will be submitted to the local Soil and Water Conservation District Board, which will be the plan-approving authority.
9. Silvicultural activities in Chesapeake Bay Preservation Areas are exempt from this chapter provided that silvicultural operations adhere to water quality protection procedures prescribed by the Virginia Department of Forestry in the Fifth Edition (March 2011) of "Virginia's Forestry Best Management Practices for Water Quality Technical Manual." The Virginia Department of Forestry will oversee and document installation of best management practices and will monitor in-stream impacts of forestry operations in Chesapeake Bay Preservation Areas.
10. Local governments shall require evidence of all wetlands permits required by law prior to authorizing grading or other onsite activities to begin.
Statutory Authority
§§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
Historical Notes
Former 4VAC50-90-130 and 9VAC10-20-120 derived from VR173-02-01 § 4.2, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; Volume 24, Issue 22, eff. August 6, 2008; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; amended, Virginia Register Volume 30, Issue 23, eff. August 27, 2014; Volume 38, Issue 1, eff. September 29, 2021; Volume 38, Issue 25, eff. August 31, 2022.
9VAC25-830-140. Development criteria for Resource Protection Areas.
In addition to the general performance criteria set forth in 9VAC25-830-130, the criteria in this section are applicable in Resource Protection Areas.
1. 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 4 a of this section; (v) is a road or driveway crossing satisfying the conditions set forth in subdivision 1 d of this section; or (vi) is a flood control or stormwater management facility satisfying the conditions set forth in subdivision 1 e of this section.
a. A water quality impact assessment in accordance with subdivision 6 of this section shall be required for any proposed land disturbance.
b. A new or expanded water-dependent facility may be allowed provided that the following criteria are met:
(1) It does not conflict with the comprehensive plan;
(2) It complies with the performance criteria set forth in 9VAC25-830-130;
(3) Any nonwater-dependent component is located outside of Resource Protection Areas; and
(4) Access to the water-dependent facility will be provided with the minimum disturbance necessary. Where practicable, a single point of access will be provided.
c. Redevelopment outside locally designated Intensely Developed Areas shall be permitted in the Resource Protection Area only if there is no increase in the amount of impervious cover and no further encroachment within the Resource Protection Area, and it shall conform to applicable erosion and sediment control and stormwater management criteria set forth in the Erosion and Sediment Control Law for Localities Not Administering a Virginia Erosion and Stormwater Management Program and the Virginia Erosion and Stormwater Management Act and their attendant regulations, as well as all applicable stormwater management requirements of other state and federal agencies.
d. Roads and driveways not exempt under subdivision B 1 of 9VAC25-830-150 and which, therefore, must comply with the provisions of this chapter, may be constructed in or across Resource Protection Areas if each of the following conditions is met:
(1) The local government makes a finding that there are no reasonable alternatives to aligning the road or driveway in or across the Resource Protection Area;
(2) The alignment and design of the road or driveway are optimized, consistent with other applicable requirements, to minimize (i) encroachment in the Resource Protection Area and (ii) adverse effects on water quality;
(3) The design and construction of the road or driveway satisfy all applicable criteria of this chapter, including submission of a water quality impact assessment; and
(4) The local government reviews the plan for the road or driveway proposed in or across the Resource Protection Area in coordination with local government site plan, subdivision and plan of development approvals.
e. Flood control and stormwater management facilities that drain or treat water from multiple development projects or from a significant portion of a watershed may be allowed in Resource Protection Areas provided such facilities are allowed and constructed in accordance with the Virginia Erosion and Stormwater Management Act and its attendant regulations, and provided that (i) the local government has conclusively established that location of the facility within the Resource Protection Area is the optimum location; (ii) the size of the facility is the minimum necessary to provide necessary flood control or stormwater treatment, or both; (iii) the facility must be consistent with a comprehensive stormwater management plan developed and approved in accordance with 9VAC25-875-660; (iv) all applicable permits for construction in state or federal waters must be obtained from the appropriate state and federal agencies, such as the U.S. Army Corps of Engineers, the department, and the Virginia Marine Resources Commission; (v) approval must be received from the local government prior to construction; and (vi) routine maintenance is allowed to be performed on such facilities to assure that they continue to function as designed. It is not the intent of this subdivision to allow a best management practice that collects and treats runoff from only an individual lot or some portion of the lot to be located within a Resource Protection Area.
2. Exemptions in Resource Protection Areas. The following land disturbances in Resource Protection Areas may be exempt from the criteria of this part provided that they comply with subdivisions a and b of this subdivision 2: (i) water wells; (ii) passive recreation facilities such as boardwalks, trails, and pathways; and (iii) historic preservation and archaeological activities:
a. Local governments shall establish administrative procedures to review such exemptions.
b. Any land disturbance exceeding an area of 2,500 square feet shall comply with the erosion and sediment control criteria in subdivision 5 of 9VAC25-830-130.
3. Buffer area requirements. The 100-foot wide buffer area shall be the landward component of the Resource Protection Area as set forth in subdivision B 5 of 9VAC25-830-80. Notwithstanding permitted uses, encroachments, and vegetation clearing, as set forth in this section, the 100-foot wide buffer area is not reduced in width. To minimize the adverse effects of human activities on the other components of the Resource Protection Area, state waters, and aquatic life, a 100-foot wide buffer area of vegetation that is effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution from runoff shall be retained if present and established where it does not exist. Where such buffer must be established, the planting of trees shall be incorporated as appropriate to site conditions and in such a manner to maximize the buffer function. Inclusion of native species in tree planting is preferred.
a. The 100-foot wide buffer area shall be deemed to achieve a 75% reduction of sediments and a 40% reduction of nutrients.
b. Where land uses such as agriculture or silviculture within the area of the buffer cease and the lands are proposed to be converted to other uses, the full 100-foot wide buffer shall be reestablished. In reestablishing the buffer, management measures shall be undertaken to provide woody vegetation that assures the buffer functions set forth in this chapter. Where such buffer must be reestablished, the planting of trees shall be incorporated as appropriate to site conditions and in such a manner to maximize the buffer function. Inclusion of native species in tree planting is preferred.
4. Permitted encroachments into the buffer area.
a. When the application of the buffer area would result in the loss of a buildable area on a lot or parcel recorded prior to October 1, 1989, encroachments into the buffer area may be allowed through an administrative process in accordance with the following criteria:
(1) Encroachments into the buffer area shall be the minimum necessary to achieve a reasonable buildable area for a principal structure and necessary utilities.
(2) Where practicable, a vegetated area that will maximize water quality protection, mitigate the effects of the buffer encroachment, and is equal to the area of encroachment into the buffer area shall be established elsewhere on the lot or parcel. Such vegetated area where established shall include the planting of trees as appropriate to site conditions. Inclusion of native species in tree planting is preferred.
(3) The encroachment may not extend into the seaward 50 feet of the buffer area.
b. When the application of the buffer area would result in the loss of a buildable area on a lot or parcel recorded between October 1, 1989, and March 1, 2002, encroachments into the buffer area may be allowed through an administrative process in accordance with the following criteria:
(1) The lot or parcel was created as a result of a legal process conducted in conformity with the local government's subdivision regulations;
(2) Conditions or mitigation measures imposed through a previously approved exception shall be met;
(3) If the use of a best management practice (BMP) was previously required, the BMP shall be evaluated to determine if it continues to function effectively and, if necessary, the BMP shall be reestablished or repaired and maintained as required; and
(4) The criteria in subdivision 4 a of this section shall be met.
5. Permitted modifications of the buffer area.
a. In order to maintain the functional value of the buffer area, existing vegetation may be removed, subject to approval by the local government, only to provide for reasonable sight lines, access paths, general woodlot management, and best management practices, including those that prevent upland erosion and concentrated flows of stormwater, as follows:
(1) Trees may be pruned or removed as necessary to provide for sight lines and vistas, provided that where removed, they shall be replaced with other vegetation that is equally effective in retarding runoff, preventing erosion, and filtering nonpoint source pollution from runoff. Mature trees shall be preserved and trimmed or pruned in lieu of removal as site conditions permit and any removal should be limited to the fewest number of trees feasible. When trees are removed to provide for sight lines and vista, they shall be replaced with trees as appropriate to site conditions and in such a manner as to maximize the buffer function and to protect the quality of state waters. Inclusion of native species in tree replanting is preferred.
(2) Any path shall be constructed and surfaced so as to effectively control erosion.
(3) Dead, diseased, or dying trees or shrubbery and noxious weeds (such as Johnson grass, kudzu, and multiflora rose) may be removed and thinning of trees may be allowed pursuant to sound horticultural practice incorporated into locally-adopted standards.
(4) For shoreline erosion control projects, trees and woody vegetation may be removed, necessary control techniques employed, and appropriate vegetation established to protect or stabilize the shoreline in accordance with the best available technical advice and applicable permit conditions or requirements. Mature trees shall be removed only as necessary for the installation and maintenance of the projects consistent with the best available technical advice project plans, and applicable permit conditions or requirements. Trees shall be utilized in the project when vegetation is being established as appropriate to the site conditions and the project specifications. Inclusion of native species in tree planting is preferred.
b. On agricultural lands the agricultural buffer area shall be managed to prevent concentrated flows of surface water from breaching the buffer area and appropriate measures may be taken to prevent noxious weeds (such as Johnson grass, kudzu, and multiflora rose) from invading the buffer area. Agricultural activities may encroach into the buffer area as follows:
(1) Agricultural activities may encroach into the landward 50 feet of the 100-foot wide buffer area when at least one agricultural best management practice which, in the opinion of the local soil and water conservation district board, addresses the more predominant water quality issue on the adjacent land—erosion control or nutrient management—is being implemented on the adjacent land, provided that the combination of the undisturbed buffer area and the best management practice achieves water quality protection, pollutant removal, and water resource conservation at least the equivalent of the 100-foot wide buffer area. If nutrient management is identified as the predominant water quality issue, a nutrient management plan, including soil tests, must be developed consistent with the Nutrient Management Training and Certification Regulations (4VAC50-85) administered by the Virginia Soil and Water Conservation Board.
(2) Agricultural activities may encroach within the landward 75 feet of the 100-foot wide buffer area when agricultural best management practices which address erosion control, nutrient management, and pest chemical control, are being implemented on the adjacent land. The erosion control practices must prevent erosion from exceeding the soil loss tolerance level, referred to as "T," as defined in the "National Soil Survey Handbook" of November 1996 in the "Field Office Technical Guide" of the U.S. Department of Agriculture Natural Resource Conservation Service. A nutrient management plan, including soil tests, must be developed, consistent with the Nutrient Management Training and Certification Regulations (4VAC50-85) administered by the Virginia Soil and Water Conservation Board. In conjunction with the remaining buffer area, this collection of best management practices shall be presumed to achieve water quality protection at least the equivalent of that provided by the 100-foot wide buffer area.
(3) The buffer area is not required to be designated adjacent to agricultural drainage ditches if at least one best management practice which, in the opinion of the local soil and water conservation district board, addresses the more predominant water quality issue on the adjacent land—either erosion control or nutrient management—is being implemented on the adjacent land.
(4) If specific problems are identified pertaining to agricultural activities that are causing pollution of the nearby water body with perennial flow or violate performance standards pertaining to the vegetated buffer area, the local government, in cooperation with soil and water conservation district, shall recommend a compliance schedule to the landowner and require the problems to be corrected consistent with that schedule. This schedule shall expedite environmental protection while taking into account the seasons and other temporal considerations so that the probability for successfully implementing the corrective measures is greatest.
(5) In cases where the landowner or the landowner's agent or operator has refused assistance from the local soil and water conservation district in complying with or documenting compliance with the agricultural requirements of this chapter, the district shall report the noncompliance to the local government. The local government shall require the landowner to correct the problems within a specified period of time not to exceed 18 months from their initial notification of the deficiencies to the landowner. The local government, in cooperation with the district, shall recommend a compliance schedule to the landowner. This schedule shall expedite environmental protection while taking into account the seasons and other temporal considerations so that the probability for successfully implementing the corrective measures is greatest.
6. Water quality impact assessment. A water quality impact assessment shall be required for any proposed development within the Resource Protection Area consistent with this part and for any other development in Chesapeake Bay Preservation Areas that may warrant such assessment because of the unique characteristics of the site or intensity of the proposed use or development.
a. The purpose of the water quality impact assessment is to identify the impacts of proposed development on water quality and lands in the Resource Protection Areas consistent with the goals and objectives of the Act, this chapter, and local programs, and to determine specific measures for mitigation of those impacts. The specific content and procedures for the water quality impact assessment shall be established by each local government. Local governments should notify the department of all development requiring such an assessment.
b. The water quality impact assessment shall be of sufficient specificity to demonstrate compliance with the criteria of the local program.
7. Buffer area requirements for Intensely Developed Areas. In Intensely Developed Areas the local government may exercise discretion regarding whether to require establishment of vegetation in the 100-foot wide buffer area. However, while the immediate establishment of vegetation in the buffer area may be impractical, local governments shall give consideration to implementing measures that would establish vegetation in the buffer in these areas over time in order to maximize water quality protection, pollutant removal, and water resource conservation. In considering such measures, local governments shall consider the planting of trees as a component of any such measure. Inclusion of native species in tree planting is preferred.
Statutory Authority
§§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
Historical Notes
Former 4VAC50-90-140 and 9VAC10-20-130 derived from VR173-02-01 § 4.3, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; Errata, 18:13 VA.R. 1763 March 11, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013; Volume 38, Issue 1, eff. September 29, 2021; Volume 38, Issue 25, eff. August 31, 2022.
9VAC25-830-150. Nonconformities, exemptions, and exceptions.
A. Nonconforming uses and noncomplying structures.
1. Local governments may permit the continued use, but not necessarily the expansion, of any structure in existence on the date of local program adoption. Local governments may establish an administrative review procedure to waive or modify the criteria of this part for structures on legal nonconforming lots or parcels provided that:
a. There will be no net increase in nonpoint source pollutant load; and
b. Any development or land disturbance exceeding an area of 2,500 square feet complies with all erosion and sediment control requirements of this part.
2. This chapter shall not be construed to prevent the reconstruction of pre-existing structures within Chesapeake Bay Preservation Areas from occurring as a result of casualty loss unless otherwise restricted by local government ordinances.
B. Public utilities, railroads, public roads, and facilities exemptions.
1. Construction, installation, operation, and maintenance of electric, natural gas, fiber-optic, and telephone transmission lines, railroads, and public roads and their appurtenant structures in accordance with (i) regulations promulgated pursuant to the Virginia Erosion and Stormwater Management Act, (ii) an erosion and sediment control plan and a stormwater management plan approved by the department, or (iii) local water quality protection criteria at least as stringent as the above state requirements will be deemed to constitute compliance with this chapter. The exemption of public roads is further conditioned on the following:
a. Optimization of the road alignment and design, consistent with other applicable requirements, to prevent or otherwise minimize (i) encroachment in the Resource Protection Area and (ii) adverse effects on water quality; and
b. Local governments may choose to exempt (i) all public roads as defined in 9VAC25-830-40, or (ii) only those public roads constructed by the Virginia Department of Transportation.
2. Construction, installation and maintenance of water, sewer, natural gas, and underground telecommunications and cable television lines owned, permitted, or both, by a local government or regional service authority shall be exempt from the criteria in this part provided that:
a. To the degree possible, the location of such utilities and facilities should be outside Resource Protection Areas;
b. No more land shall be disturbed than is necessary to provide for the proposed utility installation;
c. All such construction, installation and maintenance of such utilities and facilities shall be in compliance with all applicable state and federal permits and designed and conducted in a manner that protects water quality; and
d. Any land disturbance exceeding an area of 2,500 square feet complies with all erosion and sediment control requirements of this part.
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 this part 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.
2. 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.
b. Local governments implementing this chapter through the local zoning code may provide for specific provisions that allow for consideration of exceptions that comply with subdivision 2 of this subsection.
c. The provision of subdivision 2 b of this subsection notwithstanding, 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. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the notice may be given by first-class mail rather than by registered or certified mail.
3. 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.
4. Notwithstanding the provisions of subdivisions 2 a through 2 c of this subsection, additions and modifications to existing legal principal structures may be processed through an administrative review process, as allowed by subsection A of this section, subject to the findings required by subdivision 1 of this subsection but without a requirement for a public hearing. This provision shall not apply to accessory structures.
Statutory Authority
§§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
Historical Notes
Former 4VAC50-90-150 and 9VAC10-20-150 derived from VR173-02-01 § 4.5, eff. September 1, 1989; amended, Virginia Register Volume 6, Issue 1, eff. October 1, 1989; Volume 7, Issue 5, eff. December 9, 1991; Volume 7, Issue 24, eff. October 1, 1991; Volume 18, Issue 9, eff. March 1, 2002; amended and renumbered, Virginia Register Volume 29, Issue 4, eff. November 21, 2012; amended and renumbered, Virginia Register Volume 30, Issue 2, eff. October 23, 2013.
9VAC25-830-155. Climate change resilience and adaptation criteria.
A. Pursuant to § 62.1-44.15:72 of the Code of Virginia, this section provides criteria and requirements to address coastal resilience and adaptation to sea-level rise and climate change. Adaptation measures may be allowed in the Chesapeake Bay Preservation Areas subject to approval by the local government, in accordance with the conditions set forth in this chapter.
This section applies in addition to 9VAC25-830-130 and 9VAC25-830-140. Local governments shall incorporate the requirements of this section into all relevant ordinances and ensure their enforcement through implementation of appropriate processes and documentation for oversight and enforcement. In doing so, local governments shall ensure that the incorporation is consistent with the water quality protections of the Act.
B. Local governments shall assess the impacts of climate change and sea-level rise on any proposed land development in the Resource Protection Area during the plan of development or project review process. Such assessment shall be based on the Resource Protection Area as delineated at the time of the proposed land development Such assessment shall at a minimum:
1. Be based upon a potential impact range of 30 years or the lifespan of the project if less than 30 years;
2. Utilize a model or forecast developed by or on behalf of the Commonwealth;
3. Identify potential impacts:
a. From projected sea-level rise using the 2017 National Oceanographic and Atmospheric Administration (NOAA) Intermediate–High scenario projection curve or any subsequently updated version thereof, on the project site;
b. From storm surge based upon the most updated NOAA hydrodynamic Sea, Lake, and Overland Surges from Hurricanes model on the project site; and
c. From flooding based upon the most updated Special Flood Hazard Area and the Limit of Moderate Wave Action on the project site. Such assessment of flooding should be in conjunction with the requirements and application of floodplain management requirements and programs.
4. Assess the potential impacts in light of the proposed land development on buffer function including loss of riparian buffer vegetation and vegetation migration; water migration; as well as the potential impacts resulting in additional future land disturbance or development in the Resource Protection Area connected to the proposed land development.
5. Identify conditions, alterations, or adaptation measures for the proposed land development to address these potential impacts as necessary and appropriate based upon site conditions; nature, type, and size of proposed land development including whether such proposed land development is in an Intensely Developed Area overlay; extent of potential impacts; and the necessity to minimize future land disturbance.
6. Local governments may require this assessment to be submitted as part of a Water Quality Impact Assessment. The specific content and procedures for the assessment shall be established by each local government and shall be of sufficient specificity to demonstrate compliance with this requirement.
7. Based upon the assessment, local governments shall, as necessary and appropriate, require conditions, alterations, or the installation of adaptation measures as part of the proposed land development consistent with the requirements of the Act and this chapter.
C. Local governments may allow adaptation measures within the Resource Protection Area subject to the following criteria and requirements, which shall apply in addition to those found in 9VAC25-830-130 and 9VAC25-830-140 including the requirement for a Water Quality Impact Assessment pursuant to subdivision 6 of 9VAC25-830-140. The adaptation measure shall:
1. Be a nature-based solution adaptation measure that uses environmental processes, natural systems, or natural features, is appropriate for site conditions, and is:
a. A Best Management Practice approved by the Chesapeake Bay Program Partnership;
b. An approved Virginia Stormwater Best Management Practice listed in the Virginia Stormwater Best Management Practice Clearinghouse;
c. An approved Shoreline Protection Strategy in accordance with the Tidal Wetlands Guidelines as determined by the Virginia Marine Resource Commission; or
d. A project that is an eligible activity for funding by the Virginia Community Flood Preparedness Fund as determined by the Virginia Department of Conservation and Recreation.
2. Be designed, installed, and maintained in accordance with the applicable adaptation measure specifications in accordance with the type of the adaptation measure identified in 9VAC25-830-155 C 1.
3. Allow for the use of fill only under the following conditions:
a. The grading and slope created by the use of fill shall be no greater than necessary based upon the project specifications and implemented in a manner that minimizes the impact of run-off;
b. The fill must have the necessary biogeochemical characteristics, including sufficient organic content, to support the growth of vegetation and adequate permeability to allow infiltration consistent with the project specifications;
c. The use of fill shall not enhance stormwater runoff from the Resource Protection Area, and any lateral flow onto adjacent properties shall be controlled;
d. Any impacts on the management of stormwater upland of the Resource Protection Area created by the use of fill shall be mitigated as necessary;
e. The use of fill shall not negatively impact septic systems and drainfields; and
f. The use of fill shall be consistent with any applicable federal or state law, including floodplain management requirements in 44 CFR Part 60.
4. Maximize preservation of existing natural vegetation including mature trees and minimize land disturbance consistent with the adaptation measure specifications.
5. Comply with all federal, state, and local requirements including any required permits and conditions.
6. Nothing in this provision shall be construed to authorize approval or allowance of an adaptation measure in contravention of floodplain management requirements, including the National Flood Insurance Program and established floodplain ordinances, or construed to require a locality to approve or allow an adaptation measure in contravention of its participation in the National Flood Insurance Program Community Rating System.
D. Local governments shall ensure that any activity in the Resource Protection Area is consistent with Chapter 13 Title 28.2, Code of Virginia, and the accompanying Tidal Wetlands Guidelines which provide for "minimum standards for the protection and conservation of wetlands," and "ensure protection of shorelines and sensitive coastal habitat from sea level rise and coastal hazard." Shoreline management and alteration projects should be coordinated to address the requirements of the most updated Tidal Wetlands Guidelines in conjunction with the requirements of this chapter, including subdivision 5 a (4) of 9VAC25-830-140.
E. For a living shoreline, as defined in § 28.2-104.1 of the Code of Virginia, where the locality otherwise approves of the project, the project minimizes land disturbance and maintains or establishes a vegetative buffer inland of the living shoreline, complies with the fill conditions in subdivision C 3 of this section, and receives approval from the Virginia Marine Resources Commission or the local wetlands board as applicable, the locality may exempt it from additional performance criteria requirements, including a Water Quality Impact Assessment.
F. Local governments shall not grant exceptions to the requirements of 9VAC25-830-130, 9VAC25-830-140, or this section where:
1. The assessment of climate change and sea-level rise as outlined in subsection B of this section has not occurred; or
2. The proposed adaptation measure allows for the use of fill in a Resource Protection Area contravention of the requirements of 9VAC25-830-155 C 3.
Statutory Authority
§§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
Historical Notes
Derived from Virginia Register Volume 38, Issue 1, eff. September 29, 2021.