by J. V. Reistrup

The term "Tidewater Virginia" has always been a tough one to nail down, geographically speaking. While some have devoutly maintained that it refers solely to the area around Hampton Roads, others have argued that it refers to all the area from the fall-line of the state's great tributaries down to the Bay. And there have been plenty of variations in between. But in 1988, "Tidewater Virginia" finally got an official designation-at least as far as the Chesapeake Bay Protection Act was concerned. And for the 46 counties and municipalities that fell within that area (84 lawmaking entities if you count all the separate zoning boards involved), it changed everything-or at least it was meant to. Under the Bay Protection Act, Tidewater Virginia was now to be considered all the areas close enough to Chesapeake wetlands and tidal waters to require strict laws about what could be built, and how, near the water. This was Virginia's version of Maryland's Critical Area Protection Act, which had been adopted four years earlier. Both states had formed a cooperative Chesapeake Bay Program after a 1983 U.S. Environmental Protection Agency study showed that the water quality of the Bay was going downhill . . . fast.

The two acts have a lot in common. Both Maryland's Critical Area Act and Virginia's Bay Act are aimed specifically at reducing polluted runoff that was the result of land use. Both employ the same jargon. "Non-point-source pollution," for example, refer to the acts' targeting of land-use runoff, as opposed to "point-source pollution"-that produced by sewage treatment plants and industrial uses, and generally dealt with in other laws. Both states focus on land use near tidal waters or wetlands and both rely heavily on local zoning ordinances to limit development in those areas. Both laws allow for grandfather clauses and other exemptions, and both recognized at the outset that there were intensely developed areas where there already was a lot of pollution (often just stormwater runoff from streets and parking lots) and that the most that could be hoped for was that this runoff wouldn't get worse.

But there are differences, as well. Maryland used its own 1972 wetlands maps to outline "critical areas" within 1,000 feet of the Bay, its tributaries and its wetlands. And although it handed off enforcement to localities, it also created a Critical Area Commission-with 29 appointed members and a professional staff-to oversee the local efforts [see "Critical Areas," February 2008]. By contrast, Virginia made its "Tidewater" counties and cities legally responsible for drawing the boundaries of areas to be protected. These "Chesapeake Bay protection areas," are defined as lands where improper development might substantially damage the water quality of the Bay or its tributaries.

The local Tidewater governments are required to have zoning laws that enforce the protection of these critical areas. To help these localities write the rules for these designated areas, the Bay Act created the Chesapeake Bay Local Assistance Division (CBLAD). The local governments were given the initiative for planning and implementing these provisions, and the Commonwealth's job was to act "primarily in a supportive role by providing oversight for local governmental programs, by establishing criteria . . . and by providing those resources necessary to carry out and enforce the provisions" of the legislation. In short, the zoning boards decide what areas to protect and how to do it, and the state is there to assist and support them-and be sure the laws are being enforced.

In Phase One of the Bay Act, all of the Tidewater governments were to take the Chesapeake Bay protection areas they had designated and then, within these, outline the boundaries of "resource protection areas," which would be areas adjacent to the shoreline where there would be "no disturbance" and which would require a 100-foot vegetated buffer to filter the runoff before it got to the shoreline. The boards were also required to designate less strict "resource management areas," where development was permitted as long as it met local zoning laws and the Bay Act criteria. Generally, resource management areas were to include floodplains, isolated wetlands and land with soils that were likely to erode.

In Phase Two, the local governments were then to incorporate the Local Assistance Division's criteria into their own comprehensive plans. It took nearly 15 years to do it, but in 2002, Phases One and Two were finally completed and a state legislative audit found that all 84 Tidewater zoning entities were in full compliance with the Bay Act and CBLAD regulations.

Two decades after its passage, how has the Bay Act worked in practice? Not surprisingly in a situation so complex and dependent on so many different towns, cities and counties for enforcement, the results have been mixed.

In counties and towns where the ordinances have been tested in one way or another, the courts so far have seemed to give deference to local governments, even more so than sometimes has been the case in Maryland. Localities are permitted to impose penalties of up to $5,000 per day for violating their ordinances. And if a locality has denied a variance, the Virginia Supreme Court has ruled that the decision is essentially final, because any appeal would have to prove that the denial "interferes with all reasonable beneficial uses" of the entire property.

By the same token, though, localities have granted variances that sometimes seem to go against the Bay Act's intentions. In 2003, the Virginia Assembly's Joint Legislative Audit and Review Commission reported that its staff had found instances where localities regularly allowed encroachments into resource protection areas. Reviewing 75 randomly selected files from the city of Chesapeake, Va. (adjacent to Virginia Beach), the commission's staff found the city had approved 35 applications for development, even within the 50-foot seaward portion of the resource protection area, for activities such as clearing existing indigenous vegetation to establish a lawn, sunroom additions, decks, gazebos, single-family homes, sheds, and swimming pools. According to the audit, Chesapeake's board had reasoned that all these encroachments were on building lots recorded before adoption of the Bay Act, so "denying property owners the right to develop their property would place undue hardships on them." But, Chesapeake assured the legislature's auditors, the city had since changed its program to reflect the intent of the Bay Act and was now enforcing the full buffer requirement. (The grandfather clause in the Bay Act says its provisions "shall not affect vested rights of any landowner under existing law," but CBLAD's regulations say the exemption applies to only one primary structure as envisioned when the lot was recorded, rather than all the lawns, decks and gazebos somebody wants to add later.)

Joan Salvati, director of CBLAD since 2005, says her staff of 12 has had pretty good success in identifying areas for improvement in ordinances and getting localities to change them, although she declines to specify where that happened.

Now Virginia is moving into Phase Three, which requires the Tidewater local governments to review local land development ordinances, and to revise them if necessary, to ensure that they mesh with the goal of protecting water quality. Ordinances are being judged by three performance criteria: (1) That they ensure that land disturbance is minimized, (2) that indigenous vegetation is preserved, and (3) that impervious surfaces like pavement and roofs are minimized. It's not uncommon for localities to discover that their own ordinances are in conflict with those they're trying to implement under the Bay Act. For example, a county may require residential developers to build sidewalks on both sides of a new street. This, of course, would undermine the effort to reduce impervious surfaces.

Chuck Frederickson of the James River Association says that inconsistent application of the Virginia law has been its greatest flaw. Phase Three, he hopes, will lead to more consistency and make it easier for developers to build in a way that helps the environment rather than harms it. Old codes have requirements that are no longer needed, he says, like curbs, minimum widths for streets and cul-de-sac size-all of which create more impervious surface. Frederickson (the James's official "riverkeeper" and liaison to the national Waterkeeper Alliance) says he has found that developers would prefer to do things that are more environmentally friendly and that Phase Three will be a big help.

Chet Williamson, whose Eagle Creek Construction Company in Callao, Va., has built some 75 waterfront homes in Westmoreland and Northumberland counties on Virginia's Northern Neck, is one builder who appreciates more consistent enforcement. "It's finally got to the point where everybody is treated equally. We got rid of the old boy network," he said recently. Even though the law costs builders more money, Williamson said, it gives a boost to the economy-for example, by increasing the market for the gutters and downspouts needed to channel runoff into soil that can soak it up. Most of the houses he has built are retirement homes for people who want to live on the water the law is intended to protect.

Another problem, Frederickson says, is that localities have sometimes lacked the financial resources they need to enforce the law. Little funding accompanied the law, with the exception of CBLAD grants to pay for assistance, including money for educational materials and other resources. The city of Richmond and the surrounding Henrico and Chesterfield counties are developing more rapidly so they are more on top of the law, he says, but smaller jurisdictions like Surrey, Sussex and Charles City counties have staffs of only one or two people.

To counteract this problem, Frederickson is taking a proactive role by developing a good relationship with zoning staffs. In Charles City County, for example, he has taken them out on the river, so they could see the waterfront for themselves. This is something he plans to do more often and in other counties, he says. As in Maryland, few members of zoning staffs have boats to get out on the waters they are trying to protect. On the trip in Charles City County, Frederickson said, they saw 50 different projects, and in some places there was no evidence of the 100-foot buffer.

John Tippett, executive director of Friends of the Rappahannock, agrees that inconsistent enforcement has been a big problem-one at least partly attributable to inadequate resources in the counties, which have tended to view the law as an unfunded mandate. "I can take a boat down the river and see violations immediately," he says. An even bigger obstacle to success, he adds, is the legislative decision that split Tidewater Virginia from the rest of the commonwealth. The headwaters of Virginia's rivers are where many of the problems are, he argues, because the bulk of polluting nutrients come from agricultural operations there.

"It's definitely not the whole Bay watershed," the Local Assistance Division's Salvati said of the Tidewater designation. "We all know that." But she adds that the Act's Tidewater area is where the greatest growth is taking place and is the area closest to the Bay, which is what the law is meant to protect.

Nobody is currently proposing to extend the Bay Act to cover waters above the first rapids of the tributary rivers-the fall line. But the Farm Bureau of Virginia, Virginia Agribusiness Council and groups representing dairy and poultry farmers have joined with the James River Association, Friends of the Rappahannock, Chesapeake Bay Foundation and other environmental groups to back a cooperative effort to reduce runoff of fertilizers, manure and soil from farms across the whole state. Legislation pending in the General Assembly would dedicate $100 million in state funds, matched by $65 million from the farm community, toward the effort.

Hal Slack, who purchased a small cottage on Parker Creek off the Yeocomico River eight years ago, says he doesn't mind that Westmoreland County has told him he will have to tear up his driveway before he is allowed to build a deck facing the water so that it won't increase the amount of impervious surface on his property. "I am totally in favor of the Chesapeake Bay [Preservation] Act, and if I have to do some things to meet the act I have no problem with that at all." But it might all be for naught, he says, if we don't also look farther upstream and find ways to reduce agricultural runoff. "Until that gets faced up to," he says, "the Bay is doomed."