September 10, 2025

Justin Williams

Office of Watersheds and Local Government Assistance Programs

Virginia Department of Environmental Quality 

1111 East Main Street, Suite 1400

P.O. Box 1105

Richmond, VA 23218

Justin.Williams@deq.virginia.gov

RE:       GM25-2004 Bay Act Resiliency Guidance

Dear Mr. Williams:

The Hampton Roads Planning District Commission (HRPDC) appreciates the opportunity to provide comments on the Final Draft of the Bay Act Resiliency Guidance (“Final Draft Guidance”), as published in the August 11, 2025, Virginia Register.  DEQ staff also made available the Informal Response to Comments Log (“Comment Log”), which was helpful for tracking the changes that had been made. 

While we support many of the revisions to the Final Draft Guidance, the following concerns remain:

• Language in Section III.D.4 misrepresents the authority of the Virginia Marine Resources Commission (VMRC) and local wetlands boards and suggests placing hardened shoreline protection structures within the 100-foot RPA buffer.
• Section IV. Resiliency Example Scenarios was removed from the guidance document.
• It is unclear if cost can be a factor that localities should consider when determining if alterations, conditions, or adaptation measures are “practical, achievable, and necessary.”
• The options for determining lifespan should be simplified for clarification purposes. 

Additional details regarding each concern are presented below. 

1. Tidal Wetlands Guidelines and the Chesapeake Bay Preservation Act

In its comment letter dated May 3, 2024, the HRPDC recommended deleting the language that suggests placing a hardened shoreline protection structure within the 100-foot RPA because local wetlands boards and VMRC only have the authority to permit or deny shoreline protection projects in the intertidal zone.  They cannot permit a project outside of that area.   In the Comment Log, DEQ indicated their intention to propose deleting the concerning language as requested.   However, the language remained in the final draft guidance.  HRPDC staff communicated with DEQ representatives and verified that it was inadvertently left in the final draft guidance.  The HRPDC understands that DEQ will propose that the following be deleted before finalizing the guidance:  “…such a structure would likely need to be placed as landward as possible, beyond the RPA features but within the 100-foot RPA buffer. Within this context, placement of that structure within the RPA buffer would be consistent with the Bay Act and Regulations.”  DEQ representatives also explained that the Comment Log will be updated to reflect the oversight. 

There is another paragraph in Section III.D.4 that also misrepresents the authority of a local wetlands board, and it should be revised as recommended.

Recommendation: Near the top of page 19, we recommend the following edits.

In considering both Bay Act and wetlands programs, DEQ understands that pursuant to VMRC program requirements, guidelines, or best available science, a shoreline protection strategy may be required or encouraged to be placed landward of tidal wetlands or marshes and within the RPA buffer. In such a case, DEQ recognizes that a locality’s wetlands board may, consistent with such advice or requirement, approve placement of such a strategy within the RPA buffer and that deference in such matter is appropriate. The locality would review such a proposal for compliance with Bay Act requirements, including the need for mitigation for any land disturbance within the RPA.

In it’s comment letter dated May 1, 2024, the City of Hampton asked how a retaining wall could be approved in the RPA when a wetlands permit and VMRC/local wetlands board review and approval is not needed.   In the Comment Log, DEQ representatives noted that an exception would need to be obtained to construct a retaining wall in the RPA under the Bay Act.  However, no changes were made to the final draft guidance to make this clarification.  There should be an acknowledgment that a hardened structure in the RPA could be approved through the Bay Act exception process. 

Recommendation: Near the middle of page 19, we recommend the following edits.

Specifically, where a shoreline protection strategy would not be allowed under VMRC requirements or guidelines or other applicable wetlands requirements and would be denied or not allowed under applicable wetlands requirements or decisions, it could potentially be approved should not be allowed independently under the Bay Act program through the exception process. Conversely, if  If the VMRC or a local wetlands board determines that a living shoreline is feasible at a site, the locality should not circumvent such decision by allowing a hardened structure addressing shoreline erosion in the RPA to be separately approved under the Bay Act program. There are also strategies, such as retaining walls, that would not need approval from VMRC or a local wetlands board if they are proposed to be in the RPA; those applications would only be considered under the Bay Act.  Overall, the requirements of both programs should work in harmony with a recognition of deference to VRMC VMRC requirements and Tidal Wetlands Guidelines where applicable and appropriate.

In a few places in Section III.D.4, the final draft guidance suggests that VMRC is the only agent for determining whether a living shoreline is suitable where it should instead refer to VIMS or VMRC and the local wetlands board. 

Recommendation: In Section III.D.4 on page 19, we recommend reviewing the language to determine whether VIMS or VMRC and the local wetlands board should be referenced as the agent to determine living shoreline suitability instead of only VMRC. 

2. Resiliency Example Scenarios

Instead of including the Resiliency Example Scenarios in the final draft guidance, a link was provided in the Background section to direct users to the document on DEQ’s website.  This is concerning because it removes the Resiliency Example Scenarios, which is a guidance document, from the public review requirements outlined in § 2.2-4002.1 of the Administrative Process Act (APA).  The Virginia Register Act, § 2.2-4101, defines a guidance document as “any document developed by a state agency or staff that provides information or guidance of general applicability to the staff or public to interpret or implement statutes or the agency's rules or regulations, excluding agency minutes or documents that pertain only to the internal management of agencies.”

The localities are to use the Resiliency Example Scenarios to interpret and implement 9VAC25-830-155.    The first page of the document indicates that it represents Section IV of the guidance, while the final draft guidance contains Sections I through III.  Throughout the development process, the Resiliency Example Scenarios were characterized as part of the Bay Act Resiliency Guidance. 

It is anticipated that the guidance will need to be updated once the resiliency amendments are implemented and lessons are learned.  Localities and the public should have the opportunity to review any proposed changes, as provided in the APA, which the HRPDC believes will also result in more informative and useful guidance. 

Recommendation: Include the Resiliency Example Scenarios as part of the final guidance so that future updates will be available for public review and comment.  Should the Resiliency Example Scenarios remain a stand-alone document, care should be taken to assign a date and/or a version number so that updates can be easily identified. 

3. Cost as a Factor

In its comment letter dated May 1, 2024, the City of Hampton asked whether local staff should consider cost as a factor when determining if alterations, conditions, or adaptation measures are “practical, achievable, and necessary”?  In the Comment Log, DEQ responded that “Cost is a consideration to the extent that it addresses practicality and achievability of recommended conditions and adaptation measures.  Cost should be considered by the locality and applicant when looking at alternative measures that can be taken to reduce the impacts.”  However, no edits were made to make that clarification in the final draft guidance.

Recommendation: At the bottom of page 11 in Section III.C, we recommend adding the following text. 

In considering whether an alteration, condition, or adaptation measure requirement is “appropriate,” the locality should ensure that it is practical, achievable, and necessary to mitigate the identified impact.  Localities may consider cost as a factor when considering the practicality and achievability of appropriate measures. 

4. Lifespan Determination

The HRPDC appreciates the edits made on pages 4 and 9 to add flexibility to the types of documentation needed to demonstrate a project has a lifespan of less than 30 years.  We suggest that DEQ further clarify Section III.A.2.a by removing the extraneous information and highlighting what the HRPDC considers to be the three options for determining the lifespan of a project:

1. A locality uses the default 30-year timeframe for all projects,
2. A locality adopts a framework of different lifespans (up to 30 years) for different types of projects, or
3. A locality allows applicants to propose a timeframe of less than 30 years with supporting documentation and develops a process for consistently evaluating such proposals. 

Recommendation: Delete the additional detail provided in Section III.A.2.a. 

a. Default timeframe vs. anticipated lifespan

The default timeframe required by the Regulations for a Resiliency Assessment for all projects is 30 years from the time of the proposed land development. In general, the lifespan of a building can range from less than 30 to 50 years to hundreds of years and is measured not by the type of structure or by how much it costs to build (although those metrics might represent one or more components of the equation), but by how long it is anticipated to last from when it is first built to when it must be replaced. Within this anticipated lifespan there may be shorter periods of: 1) economic life, which ends when maintenance of the structure is deemed to no longer be affordable; 2) intended service life, when it is determined that the structure is no longer performing its intended function as needed; 3) technological life, when the performance of the structure is no longer living up to the expectations of the users or inhabitants; 4) design life, as determined by a building owner or developer who guides engineers and assures investors and insurers about the quality that has been specified for the building and its equipment; and 5) the effective lifetime, or the projected life of all buildings given the total number of buildings in the United States and how many are built and demolished on an annual basis.

Examples of conditions that may affect lifespan include the location of the structure and impacts of weather, soil conditions, proposed quality of construction, certain design specifications, ability of an owner to provide the necessary maintenance, proposed use of the structure, and other considerations. Of course, the level of effort in terms of time, materials, and budget an original or subsequent owner is willing to invest in a property may very well influence some of these conditions and the lifespan of a structure over time. It is not anticipated that localities will or should be responsible for ensuring that either projects or adaptation measures are adequately maintained; however, it is in the best interest of the property owner to protect their investment.

The types of proposed land development within RPAs varies across localities; however, some structures by their nature may be indicative of a lifespan of 30 years or more, such as a home or commercial building given the nature, purpose, materials, and standard design of these structures, absent additional atypical conditions. While others, such as a storage shed, or temporary impervious parking area, may be more indicative of a lifespan less than 30 years.

Localities may choose to require the default lifespan of 30 years for all projects, or localities may choose to allow shorter lifespans for projects where it can be   principal and accessory structures unless the applicant can clearly demonstrated that the structure project is not reasonably intended or expected to last 30 years. Localities may develop and provide applicants with a list of lifespan estimates that will be accepted for typical projects as provided by local builders, Such an estimate can be provided by consultants, engineers, architects, and/or manufacturers or other authoritative sources of information. of prefabricated structures. Alternatively, localities may allow applicants to submit an estimate during the application process. Such an estimate can be provided by consultants, engineers, architects, and/or manufacturers of prefabricated structures. The applicant should be required to provide a justification for the proposed reduction using technical documentation, best available industry information, or other sources.  If the locality decides to allow for a reduced lifespan, a consistent process for approving these determinations should be established and local staff will need to be able to analyze the submitted information and determine whether a shorter timeframe for the assessment is warranted and may impose appropriate conditions to address the shortened timeframe. This information must be provided in addition to documentation of sea level rise, storm surge, and flooding impacts. Alternatively, the locality could provide applicants with a list of lifespan estimates that will be accepted for typical structures seen in the region as provided from local builders, building inspectors, consultants, engineers, and manufacturers.

The HRPDC respectfully requests DEQ’s consideration of these recommendations.  We welcome further discussion with staff and look forward to next steps of updating the Riparian Buffers Modification and Mitigation Manual. 

             Sincerely,

CommentID: 237120