The facts about Loudoun’s radical Chesapeake Bay Tax and Control Plan

The Loudoun County Board of Supervisors is proposing adopting the entire 1988 Chesapeake Bay Act and imposing its radical restrictions on all Loudoun homeowners and employers. 

The radical green-controlled Board is considering adopting this two-decade old Tidewater-area law despite the fact Loudoun staffers admit they’re using outdated post-World War II maps and that it will do nothing to protect the Potomac or Chesapeake. 

So what does this proposal, which no other locality in Virginia has voluntarily adopted, do — other than raise taxes, eliminate jobs and create more government bureaucrats to police private homes?  Read more in this fact sheet from the Loudoun Environmental Council. (http://lecva.org/important-facts-about-the-chesapeake-by-act.html)

Adopting the Chesapeake Bay Ordinance in Loudoun County


Important Facts Loudoun Residents Need to Know

To get the Important Facts sheet as an adobe file with footnotes click here -> Important Facts About the Chesapeake By Act

  1. The CBPA and the CBPO. Some members of the Loudoun Board of Supervisors (BOS) are attempting to pass an ordinance that will severely and substantially affect your property and what you may choose to do with your property. The Chesapeake Bay Preservation Act (CBPA) is a 20-year-old law that was passed specifically for tidal counties in Virginia. Loudoun is not tidal and was not part of this Act when it was passed. Some Loudoun Supervisors are now proposing that Loudoun County voluntarily adopt a Chesapeake Bay Preservation Ordinance (“CBPO” or the “Ordinance”).
  2. Cost vs. Results. The original intent of the Ordinance was to improve water quality in the Bay. According to one County estimate “an annual investment of up to $10 million” [i] is needed for this effort. However, a cost/benefit analysis has never been done for this massive investment and the benefits of this undertaking have not been demonstrated.
    We do know, however, that the results of this ordinance will put decisions about what you can do with your property in the hands of the County government staff that apparently are accountable to no one and will potentially cost you thousands of dollars.
  3. The Stream Assessment Study. The conclusions used by the BOS and County staff to determine our stream water quality, are questionable. The County is telling residents that our streams are “stressed” — but is this in fact true or do we have a manufactured “crisis?” Virginia Department of Environmental Quality (“DEQ”) water quality assessments indicate our water is generally very good. The County’s own Stream Assessment (VERSAR) report performed in 2009 during a wet spring with excessive run off after several years of drought found that 94% of Loudoun’s streams were in the top two (average or above average) of the four assessment categories [ii] with none in the bottom category of “poor.” The VERSAR study indicated that the water chemistry of our streams was not “stressed.” There are 8 metrics that make up the Virginia DEQ’s “Virginia Stream Condition Index” (VSCI). In the VERSAR study, Loudoun streams were found to be stressed only in benthic macro invertebrates (bugs) categories: Mayflies, stoneflies & caddis flies, & scrapers—comprising 3 of the 8 metrics, which abnormal readings lowered Loudoun County scores. (Consultation with DEQ found that lower VSCI scores are often observed in spring compared with fall sampling. DEQ has noted that scores for the same site may fluctuate 20 to 30 points, with scores typically lower in the spring). For the remaining 5 metrics, the 108-page VERSAR report states: “the other metrics had a more normal distribution of values.” Dissolved oxygen, needed for aquatic life, at all sites was “above the commonly accepted standard.” The County staff seems to be justifying imposing tidal buffers on private property in non-tidal Loudoun County based on the VERSAR study. [iii] In fact, it is apparent that this stream assessment study is “unrelated” to the Chesapeake Bay Act.

    It can be argued that this rush to adopt the CBPO appears to be based on a false crisis with no sound conclusive scientific evidence for its enactment. Nonetheless, in order to “de stress” these streams the County is proposing development of 100+ foot buffers that prohibit all “land disturbing” activity around these streams even though their own county standards recommend that a 18 meter buffer, if needed, (about 59.06 feet) is adequate. In other words, why is the County proposing more stringent buffer requirements than currently exist, with no proof they are needed and no factual assessment that they will have favorable impact on the streams notwithstanding the tremendous cost that will be invested by the County government, the taxpayers and the homeowners.

  4. The County’s Definition of Streams. But what really constitutes “protected water” around which these buffers will be placed? The County proposes to impose extreme no land disturbing buffers of 100 feet on each side of drainage ditches! [iv], broadly defined perennial waters (not those that just support aquatic life), surface flow and undefined “wetlands”. Most people in these proposed buffer areas would be shocked to learn that the County now considers their backyard a “no disturb” area. Again, these 100-foot buffers were designed for low-lying tidal shores and wetlands, with sandy soils and flooding, not the foothills of the Blue Ridge with clay soil like we have in Loudoun.
  5. The Study’s Flawed Methodology. The VERSAR study cannot be used to support the CBPO. The reference conditions of the VERSAR study compare Loudoun’s urban, suburban and agricultural area streams to more “pristine” sites and “represent the least disturbed condition readily available in the State.” We call that comparing apples to oranges. The VERSAR study concludes, “Given the extent and long history of urban and agricultural land uses in Northern Virginia, it may be difficult to find many stream sites in Loudoun County that are comparable to the reference conditions.” Which begs the question: if they are not comparing apples to apples in defining the need to adopt the CBPO, what is the real motive for demanding pristine area standards where Loudoun County people live? You be the judge.
  6. The Map. In order to fully understand the impact of the buffers, one needs to read and understand the mapping used by the County. The County is using a three-year-old map to show where some, but not all, of the County’s steams and water bodies are located. On this map, they have designated green areas called Resource Protection Areas (RPA), which are the 100-foot county mandated buffers around all the identified water bodies as described above. In addition, the County is recommending 300-foot buffers on the Potomac River, Goose Creek and the Goose Creek Reservoir and the Beaverdam Reservoir in the Lower Sycolin and Middle Goose subareas, consistent with the River and Stream Corridor River and Stream Overlay District (RSCOD) policies. [v]

    Are there studies to really justify these buffers? Actually no. The County has performed no studies to justify that 100-foot tidal shore buffers are needed or even optimal in Loudoun.

    They have further designated yellow or brown areas on their map that are called Resource Management Areas (RMA) which are areas adjacent to these water bodies outside of the 100 foot buffer areas. It is important to note that ALL of Loudoun County is included in either an RPA or RMA. Which begs the question – why this extreme overreach? One could only conclude that a hidden agenda must be at work to place new restrictions on all land disturbing activity regardless of its impact on streams and water quality, using the RMA as the vehicle for County control. The problem with this map though, is that it is not complete and may not be complete by the BOS vote in September. If so, this lack of disclosure would prevent Loudoun citizens from knowing the direct impact this Ordinance would have on their own property prior to its passage.

  7. “Subject to Change.” The fine print of the “official” CBPO map that has been published states it is “subject to change.” [vi] The “official map” is not a true map or predictor of what the staff intends to regulate. It shows only about 8 percent of the landmass of Loudoun designated as RPA (the entire rest of the County is the “Resource Management” area). The map is a deception, however, because the REAL map, which shows “Possible RPA,” has never been published in the press or given to Home Owners Associations or civic groups, and as of now can only be accessed online through a complicated entry process. This map shows about ONE HALF of the County as Possible RPA, and in a no disturb buffer! [vii] The “Possible RPA” map overlays the County base drain map, intending to buffer every drain in the County! If the BOS enacts this Ordinance, this ambiguity on the Map, will be the vehicle upon which the County is going to determine who is or is not in the designated regulated areas. This would leave property owners at the mercy of County staff as they constantly change the definitions of what constitutes RPA and RMA.
  8. The Mechanics of Enforcement. So how does being in a Resource Protection Area or Resource Management Area affect you and your property? The proposed Ordinance defines “development” as any land disturbing activity greater than 2500 square feet. Any “development” (e.g., a small barn, or pool and patio) requires an owner to prepare a Resource Protection Delineation Study and Water Quality Impact Study, even if your property is dry. (Or you can apply for a waiver or exception, both of which are costly and time consuming and may not be given by County Staff). The County estimates that the cost of just the engineering for the Delineation Study, not the other fees, might be $6,700 for a quarter to half-acre lot. How much for 25 acres? 50 acres? 100 acres? If any Resource Protection Area is found on your lot you will be required to mitigate your “disturbance,” which means protecting existing vegetation and planting indigenous trees as determined by a certified arborist (250 per acre, “good stock”) [viii] on the County list. You will be required to prevent deer browse in the 100-foot buffer, and guarantee the life of trees with a surety bond or other financial guarantees.

    Once RPA is designated on your lot, you may not take down any trees, and the County will oversee replanting if a tree dies. In addition, you will have to get a locational clearance approved for a structure as small as a play set in the RMA (Resource Management Area.) [ix] The staff can require an RPA delineation study at their discretion for ANY project on any property. [x]

  9. The Impact on Agriculture. Our comprehensive County plan has a stated goal to encourage agriculture and the rural economy. The Chesapeake Bay Preservation Ordinance puts unreasonable rules on farmers, squeezing them and discouraging farming as an undesirable land disturbing use. It requires farmers to jump through a multitude of regulatory hoops to build a shed or small barn, forces them to deal with bureaucrats on all aspects of farming decisions, and imposes 100 foot buffers for “agricultural drainage ditches” and farm ponds, which provide for irrigation and water for animals. The Ordinance makes any use of land in an RPA non-conforming. If the use ceases or changes, the owner is forced to delineate the RPA, do a WQI study, and plant the buffer. This makes it economically unfeasible and impossible for a farming use to change to a rural economy use. The CBPO was drafted without regard to our rural economy needs, our existing goals and our zoning to promote our rural economy.
  10. Conclusion: “Unwarranted.” The State studied the question of whether the Chesapeake Bay Act should be mandated for other than tidewater counties, and concluded that there was no sufficient proof that the 100 foot buffers would improve the health of the Bay, and that the administrative cost and burden as well as the private taking were unwarranted. [xi]

 

KNOW THE FACTS ABOUT HOW THIS WILL AFFECT

YOU AND YOUR NEIGHBORS

 

FIRST: Map your property to see where the RPA and Possible RPA are shown, and then zoom out to see your neighbors: Go to www.loudoun.gov

  • Click on “Assessments/Parcels” under e-Services
  • Click on box “Yes” at bottom.
  • Click on circle “Property Address”  Put your address in empty box (do not use “Road, Street, etc.”)
  • Click box “Submit
  • Click on “Map It
  • Click “Yes” box
  • Click on “Map Layers” on top left tab
  • Click on “Land Records” box
  • Click on “Environmental”
  • Click box for “Buildings” and for “Draft RPA Screening Tool
  • Click on “Apply” oval at bottom left.

Resource Protection and Possible Resource Protection Areas that require preservation are shown. Dots are buildings.

TAKE ACTION NOW!

SECOND: Join the Loudoun Environmental Council at www.lecva.org and donate your time and money to defeat this ordinance and promote cost effective ways to promote clean water and clean air.

Here are two Facebook pages set up by concerned citizens, with a lot of information:http://www.facebook.com/pages/Loudouns-Chesapeake-Bay-Act/114808068538296 and

http://www.facebook.com/pages/Loudoun-Citizens-United/125411734146789

THIRD: Call, write or email your Supervisor. Attend public input sessions. Talk to your neighbors, HOA’s, community groups and business associations about THE FACTS concerning this proposal.

REMEMBER: Citizens opposed to this Ordinance are FOR clean water. The Chesapeake Bay Preservation Ordinance does not effectively evaluate or adequately address our water quality in Loudoun County and is an unreasonable, fiscally unsound and poorly thought out ordinance that will adversely affect what Loudoun citizens can do with and on their privately owned property. Join the thousands of Loudoun citizens in fighting this Ordinance and help promote clean water and clean air solutions that make sense for Loudoun.

[i] Loudoun County Environmental Policy and Program Assessment, June 10, 2008, Attachment 3, p.29

[ii] VERSAR Study: Stream Assessment Report http://www.loudoun.gov/Default.aspx?tabid=2548

[iii] Stream Assessment Report http://www.loudoun.gov/Default.aspx?tabid=2548

[iv] From the proposed Ordinance: -1222.05 DEFINITIONS, (w) “Water body with perennial flow”

http://www.loudoun.gov:80/Portals/0/docs/Chesapeake%20Bay/LC_CBPO_4_30_10.pdf

[v] Draft Revisions to Revised General Plan, page 17B and 17#1, re: “300-foot buffers” http://www.loudoun.gov/Portals/0/docs/Chesapeake%20Bay/RGP-with_changes-04302010.pdf

Also, see Draft Revisions to Revised General Plan, page 20, #9[8]

[vi] See Section 1222.08. of the proposed Ordinance, re: “Subject to Change”

http://www.loudoun.gov:80/Portals/0/docs/Chesapeake%20Bay/LC_CBPO_4_30_10.pdf

[vii] From the BOS meeting packet 5.24.2010 (Note: Capitalization & Italics added)

“Staff suggested that an RPA delineation not be required where streams and water bodies are not present within the limits of land disturbing activity or within 300 feet of the limits of land disturbing activity. The Planning Commission elected to reduce the proposed 300-foot limit to 200 feet. Staff prepared an RPA http://www.loudoun.gov:80/Portals/0/docs/Chesapeake%20Bay/LC_CBPO_4_30_10.pdfScreening Tool (“Screening Tool”) that depicts areas located within 200 feet of a stream or water body. SUCH AREAS ENCOMPASS APPROXIMATELY 50% OF THE LAND AREA WITHIN THE COUNTY. “

[viii] http://www.loudoun.gov:80/Portals/0/docs/Chesapeake%20Bay/LC_CBPO_4_30_10.pdf

[ix] Section 1222.11(b) of the proposed Ordinance.

http://www.loudoun.gov:80/Portals/0/docs/Chesapeake%20Bay/LC_CBPO_4_30_10.pdf

[x] Section 1222.09(b) of the proposed Ordinance. http://www.loudoun.gov:80/Portals/0/docs/Chesapeake%20Bay/LC_CBPO_4_30_10.pdf  

[xi] Report of the Joint Legislative Audit and Review Commission, Implementation of the CBPA, House Document No. 23, http://jlarc.state.va.us/Reports/rpt281.pdf see also,

Vermont Journal of Environmental Law, http://www.vjel.org/editorials/ED10053.html