Breaking News: Added March 2009
PDF: Dec. 15,2008 Local Compliance Evaluation chesterfield County Part 1
PDF: Dec. 15,2008 Local Compliance Evaluation chesterfield County Part 2
PDF: Dec. 15,2008 Summary of Board Actions Relative to the Review of Local Government Programs
Breaking News Dec 15: The position of the Southern Area Review Committee (SARC) and CBLAD Staff has been upheld at a full meeting of the Board. Chesterfield is noncompliant with Guidance set forth by CBLAD for protection of nontidal wetlands. Chesterfield must revise it’s current policy and eliminate it’s 500’ rule. Follow the testimony below. This testimony is posted to the Virginia Regulatory Town Hall, for meeting 28 October 2008. The Board minutes are not yet posted.
Chesterfield County Determined Non Compliant on 500’ Rule by CBLAD SARC
Refer Minutes:Chesapeake Bay Local Assistance Board Southern Area Review Committee October 28, 2008
Adrienne Kotula, Principal Environmental Planner-DCR/CBLAD said Chesterfield County’s initial compliance evaluation was completed in September of 2007 and resulted in eight conditions.
Ms. Kotula said that she would address Condition #1 at the end of her presentation. Ms. Kotula reminded the Board that Chesterfield County appealed the imposition of Condition #2, which required that the County properly impose the requirements of the Regulations on vested properties. Department and County staff were successful in reaching a settlement agreement, which was approved by the Board at its September 15, 2008 meeting. A Consent Order signed by the Chesterfield County Attorney’s Office and the Office of the Attorney General was submitted to the Chesterfield Circuit Court on September 29, 2008. A term of the Consent Order was that it satisfied this condition. Accordingly, staff believes that this condition has been adequately addressed. Condition #3 required that the County update their Engineering Reference Manual to be consistent with the Regulations. This revision has occurred and new versions of the manual have been made available to the public and therefore this condition has been addressed. Condition #4 required that the County cease the implementation of their BMP credit program. The County has rescinded their policy allowing BMP credits and a review of County files revealed that all new requests for credits from the program have been denied. Condition #5 required that utility exemptions be administered in accordance with the Regulations. Chesterfield County has included a section within their newly revised Engineering Reference Manual that properly details the process that must occur when utilities are crossing the RPA. All new proposals will be required to comply with this policy and therefore this condition has been addressed. Conditions #6, 7 & 8 required that the County properly administer encroachments within the RPA. A review of all encroachment requests over the last year revealed that the County is following the proper procedures, requiring WQIAs when necessary, and requiring formal exceptions when they are necessary. Ms. Kotula said that staff opinion was that all three of these conditions have been addressed.
Condition #1 required that the County properly delineate RPA on all development plans and in the field. Specifically, the initial compliance evaluation found that the County properly verifies water bodies with perennial flow for protection with RPA buffers but there is no equivalent process for accurately identifying nontidal wetlands as RPA features.
Ms. Kotula explained that in an attempt to address this condition, the County issued a policy entitled Designation of Resource Protection Areas (RPA) Resulting from the Perenniality Flow Determination Process on April 30, 2008, and a copy of this policy was attached to the staff report. The County developed the policy to provide a balance between the CBLAB Resource Protection Areas: Nontidal Wetlands Guidance Document and the County’s desire to balance the needs between environmental protection and economic development. The Department of Environmental Engineering’s Engineering Supervisor has stated that the County recognizes the differences between their policy and the CBLAB Guidance Document and that they believe that their policy “is superior to the CBLAB Guidance in that it achieves RPAs in more extensive locations which would not be RPAs per CBLAB Guidance.” The Engineering Supervisor also believes that the County Policy “will achieve a similar acreage of property within RPAs as that required by the Regulations” due to the fact that they include wetlands on the outside of upland levees as RPA features.
Ms. Kotula said that staff’s position was that the County policy contains elements that do not meet the regulatory requirement of including those non-tidal wetlands that are “connected by surface flow and contiguous to … water bodies with perennial flow” per Section 9 VAC 10-20-80 B 2 of the Regulations. The primary concern with the County’s policy revolves around Figures 1, 2 and 5 which depict the limits of the RPA extending along nontidal wetlands for only 500 feet beyond a perennial water body. This method fails to base RPA designations upon the hydrologic features present on a site, which directly conflicts not only with the requirements of Section 9 VAC 10-20-80 B 2 of the Regulations, but also conflicts with Section 9 VAC 10-20-105 ii which requires that RPA boundaries be adjusted based upon the evaluation of the site.
Ms. Kotula said that staff opinion was that Chesterfield County’s policy entitled Designation of Resource Protection Areas (RPA) Resulting from the Perenniality Flow Determination Process is not consistent with the Regulations, and that Condition #1 has not been adequately addressed. She said staff is recommending that Chesterfield County be found noncompliant and be given until February 13, 2009 to address the following condition: The County must ensure that all required RPA features are consistently and properly delineated on all tentative and final construction plans, and in the field for consistency with 9 VAC 10-20-80 and 9 VAC 10-20-105 of the Regulations.
Mr. Maroon, Director, Department of Conservation Recreation asked for a recommendation from Elizabeth Andrews from the Attorney General’s office. She stated that Tidewater localities are required to comply with the Regulations. She stated that the regulations state that the Resource Protection Area shall be comprised of tidal wetlands, nontidal wetlands connected by surface flow and contiguous to tidal wetlands and water bodies with perennial flow, etc. She stated that there is not a provision in there that allows a locality may choose not to comply subject to local conditions. She stated that it might help to think about it in terms of whether Chesterfield County’s policy complies with the regulations. She also stated that the upland levee piece is a separate issue. She stated that the issue before the Board today was whether the policy complies with the Act and the Regulations.
Ms. Joan Salvati, Director, Division of Chesapeake Bay Local Assistance stated that the particular aspect of the policy that was not consistent was this 500 foot piece. This was the scenario at issue and there has not been anything demonstrated to us that that treatment of nontidal wetlands was consistent with the regulations.
MOTION: Mr. Zeugner moved that the Southern Area Review Committee recommend that the Chesapeake Bay Local Assistance Board find the implementation of Chesterfield County’s Phase I program noncompliant with §§ 10.1-2109 and 2111 of the Act and §§ 9 VAC 10-20-231 and 250 of the Regulations and that in order to correct this deficiency, the County be directed to undertake and address the one recommended condition contained in the staff report no later than February 13, 2009. Further, that the SARC ask the Policy Committee to review the Chesterfield County proposal with regard to the issue of wetlands separated by a natural levee.VOTE: Motion carried unanimously.
Download:
www.townhall.state.va.us/L/GetFile.cfm?File=E:\townhall\docroot\\meeting\37\10379CR_10379_v1.pdf
Chesterfield County Determined Non Compliant on 500’ Rule by CBLAD SARC
Refer Minutes:Chesapeake Bay Local Assistance Board Southern Area Review Committee October 28, 2008
Adrienne Kotula, Principal Environmental Planner-DCR/CBLAD said Chesterfield County’s initial compliance evaluation was completed in September of 2007 and resulted in eight conditions.
Ms. Kotula said that she would address Condition #1 at the end of her presentation. Ms. Kotula reminded the Board that Chesterfield County appealed the imposition of Condition #2, which required that the County properly impose the requirements of the Regulations on vested properties. Department and County staff were successful in reaching a settlement agreement, which was approved by the Board at its September 15, 2008 meeting. A Consent Order signed by the Chesterfield County Attorney’s Office and the Office of the Attorney General was submitted to the Chesterfield Circuit Court on September 29, 2008. A term of the Consent Order was that it satisfied this condition. Accordingly, staff believes that this condition has been adequately addressed. Condition #3 required that the County update their Engineering Reference Manual to be consistent with the Regulations. This revision has occurred and new versions of the manual have been made available to the public and therefore this condition has been addressed. Condition #4 required that the County cease the implementation of their BMP credit program. The County has rescinded their policy allowing BMP credits and a review of County files revealed that all new requests for credits from the program have been denied. Condition #5 required that utility exemptions be administered in accordance with the Regulations. Chesterfield County has included a section within their newly revised Engineering Reference Manual that properly details the process that must occur when utilities are crossing the RPA. All new proposals will be required to comply with this policy and therefore this condition has been addressed. Conditions #6, 7 & 8 required that the County properly administer encroachments within the RPA. A review of all encroachment requests over the last year revealed that the County is following the proper procedures, requiring WQIAs when necessary, and requiring formal exceptions when they are necessary. Ms. Kotula said that staff opinion was that all three of these conditions have been addressed.
Condition #1 required that the County properly delineate RPA on all development plans and in the field. Specifically, the initial compliance evaluation found that the County properly verifies water bodies with perennial flow for protection with RPA buffers but there is no equivalent process for accurately identifying nontidal wetlands as RPA features.
Ms. Kotula explained that in an attempt to address this condition, the County issued a policy entitled Designation of Resource Protection Areas (RPA) Resulting from the Perenniality Flow Determination Process on April 30, 2008, and a copy of this policy was attached to the staff report. The County developed the policy to provide a balance between the CBLAB Resource Protection Areas: Nontidal Wetlands Guidance Document and the County’s desire to balance the needs between environmental protection and economic development. The Department of Environmental Engineering’s Engineering Supervisor has stated that the County recognizes the differences between their policy and the CBLAB Guidance Document and that they believe that their policy “is superior to the CBLAB Guidance in that it achieves RPAs in more extensive locations which would not be RPAs per CBLAB Guidance.” The Engineering Supervisor also believes that the County Policy “will achieve a similar acreage of property within RPAs as that required by the Regulations” due to the fact that they include wetlands on the outside of upland levees as RPA features.
Ms. Kotula said that staff’s position was that the County policy contains elements that do not meet the regulatory requirement of including those non-tidal wetlands that are “connected by surface flow and contiguous to … water bodies with perennial flow” per Section 9 VAC 10-20-80 B 2 of the Regulations. The primary concern with the County’s policy revolves around Figures 1, 2 and 5 which depict the limits of the RPA extending along nontidal wetlands for only 500 feet beyond a perennial water body. This method fails to base RPA designations upon the hydrologic features present on a site, which directly conflicts not only with the requirements of Section 9 VAC 10-20-80 B 2 of the Regulations, but also conflicts with Section 9 VAC 10-20-105 ii which requires that RPA boundaries be adjusted based upon the evaluation of the site.
Ms. Kotula said that staff opinion was that Chesterfield County’s policy entitled Designation of Resource Protection Areas (RPA) Resulting from the Perenniality Flow Determination Process is not consistent with the Regulations, and that Condition #1 has not been adequately addressed. She said staff is recommending that Chesterfield County be found noncompliant and be given until February 13, 2009 to address the following condition: The County must ensure that all required RPA features are consistently and properly delineated on all tentative and final construction plans, and in the field for consistency with 9 VAC 10-20-80 and 9 VAC 10-20-105 of the Regulations.
Mr. Maroon, Director, Department of Conservation Recreation asked for a recommendation from Elizabeth Andrews from the Attorney General’s office. She stated that Tidewater localities are required to comply with the Regulations. She stated that the regulations state that the Resource Protection Area shall be comprised of tidal wetlands, nontidal wetlands connected by surface flow and contiguous to tidal wetlands and water bodies with perennial flow, etc. She stated that there is not a provision in there that allows a locality may choose not to comply subject to local conditions. She stated that it might help to think about it in terms of whether Chesterfield County’s policy complies with the regulations. She also stated that the upland levee piece is a separate issue. She stated that the issue before the Board today was whether the policy complies with the Act and the Regulations.
Ms. Joan Salvati, Director, Division of Chesapeake Bay Local Assistance stated that the particular aspect of the policy that was not consistent was this 500 foot piece. This was the scenario at issue and there has not been anything demonstrated to us that that treatment of nontidal wetlands was consistent with the regulations.
MOTION: Mr. Zeugner moved that the Southern Area Review Committee recommend that the Chesapeake Bay Local Assistance Board find the implementation of Chesterfield County’s Phase I program noncompliant with 10.1-2109 and 2111 of the Act and 9 VAC 10-20-231 and 250 of the Regulations and that in order to correct this deficiency, the County be directed to undertake and address the one recommended condition contained in the staff report no later than February 13, 2009. Further, that the SARC ask the Policy Committee to review the Chesterfield County proposal with regard to the issue of wetlands separated by a natural levee.VOTE: Motion carried unanimously.
PDF: James River Watershed Going Extreme
By Diana Parker
The Virginia Department of Conservation and Recreation, Chesapeake Bay Local Assistance Department (CBLAD) has declared Chesterfield as non-compliant in Phase I (of 3) initiatives to protect the waters of the Chesapeake Bay under the Chesapeake Bay Act, Chesapeake 2000 Agreement, and CBLAD RPA Non-Tidal Wetlands Guidance Adopted June 18, 2007. Chesterfield was given until June 30, 2008 to adopt proper protections of Resource Protection Areas under the Act or suffer legal consequences.
Chesterfield Environmental Engineering Department (EE) published it’s “hybrid” policy A08005.final.pdf. April, 2008, briefed the development community in a powerpoint presentation June, 2008, and posted that policy to it’s website with examples: www.chesterfield.gov/CommunityDevelopment/Engineering.
The Policy was not vetted to the public, or to the Board of Supervisors in a public hearing. When contacted, EE said “We have the authority to publish policy, and CBLAD guidance is not in Chesterfield’s best interest. It is tyrannical and not fair and balanced”…sounds like Fox news.
Chesterfield’s hybrid policy includes an arbitrary measure of 500 feet of stream flow into the RPA as a cutoff limit for protection of perennial flow tributaries. This discounts the value of the small feeder streams that filter pollutants, provide stream habitat, and provide the quantity of waters that Virginia requires to maintain all these new subdivisions being created.
The CBLAD Policy Committee met August 12, 2008 to hear an update on CBLAD policy guidance. Attendees were invited to participate. I gave concerns representing FOJ on the 500’ rule, and other impacts from bad policy regarding the RPA. The board then heard testimony from Mr. McElfish, Director, Environmental Engineering, and from Mrs. Salvati, Director, CBLAD that issues were still being worked out on Chesterfield’s hybrid policy.
A wetland scientist from an engineering firm gave testimony that Chesterfield County’s having different guidance from the state policy has created a conflict with developer customers. They follow the state guidance currently, but Chesterfield has created a confusion.
Dr. Betty Hunter Clapp of Hands Across the Lake advised the Policy Board that her organization was trying to protect the viability of the streams and wetlands of Swift Creek (Reservoir), a tributary of the Chesapeake Bay. With a population of over 300,000, the Reservoir is source of 20% of Chesterfield’s drinking water, and protections were recently passed on the Upper Swift Creek Plan.
Community groups such as Brandermill Association and Woodlake have worked hard to do the environmentally correct policing and actions within their associations to ensure the reservoir remains healthy. But on Tuesday August 19, the Planning Commission approved re-zoning of Duckridge a proposed 21-shop mall on a 7-acre tract whose impervious cover will abut the required 100’ buffer next to the Swift Creek Reservoir. Traffic management will be very difficult due to only one in and out road.
The storm water drainage is achieved by filling in 10-15 feet of soil so the runoff will go into an exixting BMP pond. Since the developer has proffered to reconfigure and maintain this badly designed BMP and correct its history of overflow and innumerable complaints about maintenance, the county will shed its responsibilities for the BMP to the developer. The county gets relief; the reservoir gets the stress.
I’ve long held that Chesterfield has a split personality - they normally write good regulations, they just don’t follow them. In this case their policy is bogus and harmful to the environment they should protect.
PDF: Chesapeake Bay Program: A Watershed Partnership
PDF: VDCR - Resource Protection Areas: Nontidal Wetlands