Among the tools to be used in local implementation of the Chesapeake Bay Preservation Act and Chesapeake Bay Preservation Area Designation and Management Regulations are the Phase I program elements (the local Chesapeake Bay Ordinances and associated maps), the Phase II program element (the local Comprehensive Plan), the Phase III program elements (the local zoning and subdivision ordinances, the plan of development process, and the erosion and sediment control ordinance), and the specific implementation measures that vary from locality to locality. To ensure that the act and regulations are being consistently enforced at the local level, the Board of Conservation and Recreation has been charged by the General Assembly with an ongoing review of these implementation measures. The following materials have been developed by staff, with input from local governments and other stakeholders, as the policies, procedures, and tools to be used in conducting local government compliance evaluations.
The preamble to the Chesapeake Bay Act (10.1-2000 et seq. of the Code of Virginia, (hereinafter "the Act,") points out that the protection of the Bay and its tributaries is to be accomplished through a cooperative state-local program. Among the tools to be used in local implementation of the Act and Chesapeake Bay Preservation Area Designation and Management Regulations (hereinafter "the Regulations") are the Phase I program elements (the local Chesapeake Bay Ordinances and associated maps), the Phase II program element (the local Comprehensive Plan), the Phase III program elements (the localities' various land management ordinances), and the specific implementation measures that vary from locality to locality. In order to ensure that both the Act and Regulations are being consistently enforced at the local level, the Chesapeake Bay Local Assistance Board (hereinafter "the Board") has been charged by the General Assembly with an ongoing review of these implementation measures.
Both the Act and the Regulations explicitly require counties, cities, and towns in Tidewater, Virginia to comply with their respective provisions. Section 10.1-2100.B of the Act states that “[l]ocal governments have the initiative for planning and implementing the provisions of this chapter,’ and this responsibility is further referenced in §10.1-2103 of the Act, which requires local governments to “take administrative and legal action to ensure compliance with the provisions of this chapter including the proper enforcement and implementation of this chapter. During the first several years of the program's existence, emphasis was placed on assisting local governments in identifying and mapping Chesapeake Bay Preservation Areas, preparing local codes to implement the requirements of the Act and Regulations, and reviewing and amending local comprehensive plans for consistency with the regulatory requirements. In 1997, the General Assembly passed House Bill 2758, which amended the Act to clarify the Board's powers to take administrative and legal actions to ensure compliance by counties, cities and towns with the provisions of this chapter including the proper enforcement and implementation of, and continual compliance with, this chapter (italics indicate the added language.) The Board adopted an “Interim Procedure for Reviewing Local Program Implementation” (the “Interim Procedure”) in response to this amendment. The Interim Procedure involved the creation and staffing of a new Implementation Review Officer position within the Department. The Implementation Review Officer was charged by the Board with the investigation of citizen complaints on a case-by-case basis. The Implementation Review Officer was also charged with examining local program implementation procedures if, in the course of the complaint investigation, it became evident that the local program was deficient in some regard. According to the Interim Procedure,
[w]hen the Department receives information regarding a local government's Bay Act program implementation, the Department will gather information from the local government regarding their local program implementation. After gathering information, the Department may determine that the local government's program is consistent with the Act, the Regulations and its adopted ordinances. The Department may, however, determine that there are concerns with the local Bay Act program implementation and will work with the locality to rectify the concerns. When the identified concerns are not resolved at the staff level, the Department will bring the issue(s) to the appropriate [Board] Review Committee for their consideration.
The Interim Procedure also noted that “[t]hese interim procedures will provide a process for reviewing local Bay Act program implementation as issues regarding local implementation are brought to the attention of the Department. However, a more detailed process should be established for reviewing all 84 Tidewater local government's Bay Act program implementation and enforcement on an equitable and periodic basis. According to the resolution adopted by the Board in approving the Interim Procedure, the procedure for the full-scale review of all 84 Tidewater localities was to be in place and operational by June 30, 1998. It was also during this time that the first comprehensive set of amendments to the Regulations were proposed, and development of this full-scale review process was delayed until adoption of the final regulatory amendments. In December 2001, the Board adopted new final regulations, which require a five-year review of local programs and a locally generated annual report.
DCR's bay act staff presents the following procedures as a possible way to conduct comprehensive local program compliance evaluations. These procedures are based on the recommendations contained in the 1996 Report, the Interim Procedure developed in conjunction with the creation of the Implementation Review Officer position, and the recently adopted
1. Regulations Five Year Consistency Review
According to the adopted Regulations, the Board will [d]evelop a five-year compliance review process which will consist of a self-evaluation by each local government of local program implementation and enforcement as well as an evaluation by agency staff. Based on these evaluations, the board will make a consistency finding regarding the implementation of each local program. Upon completion of the consistency review process and a finding of satisfactory implementation, the local program will be certified as consistent with the Act and Regulations. This consistency finding will be valid for a five-year period unless the DCR becomes aware of programmatic deficiencies through a complaint investigation or some other means.
2. The Implementation Evaluation Checklist
Bay act staff has developed a Compliance Evaluation Checklist, Policies and Procedures for Compliance Evaluation of Local Programs, and a set of Checklists for various development types that may be expected to occur at the local level. This checklist is similar in scope to the Checklist for the Evaluation of Local Program Elements (Phase I) and the Checklist for Evaluation of Comprehensive Plans (Phase II). These mechanisms will be used in preparing a “snap shot” of the local program, and the findings will serve as a baseline for the five-year program review that is required under the new Regulations (see number 1 above). Among the program areas to be reviewed are: the elements of the local program identified in 9 VAC 10-20-60 (i.e., CBPA Map and Ordinance status regarding Phase I consistency; the local comprehensive plan status regarding Phase II consistency); the local management efforts regarding the Land Use and Development Performance Criteria contained in 9 VAC 10-20-120; local implementation of the Resource Protection Area criteria contained in 9 VAC 10-20-130; and, local program administration of regulatory relief and enforcement mechanisms. In addition to a review of the local program administration, staff will also conduct a series of site investigations to see how the local ordinance has been implemented in the physical environment. Copies of the Checklists and Policies and Procedures are available in the Procedures and Tools section.
A committee of local government representatives met in late January to review the proposed policies, procedures, and tools to be used in conducting the compliance evaluation audits. The committee’s comments have been taken into consideration, the proposed program elements amended to address the members’ concerns where appropriate. A meeting of the Board’s Policy Committee is scheduled for April 25, 2002 so that the members can give consideration to the materials. It is expected that the full Board will give consideration to the materials at its June 2002 meeting, with full implementation of the process to begin soon thereafter.
3. Annual Implementation Reporting
The 1996 Report contained a proposed structure for the annual implementation-reporting requirement; however, staff has not yet refined the proposed elements or prepared guidance on how localities could meet the requirement. Local governments will be included in the process of determining the DCR’s annual reporting requirements, and it is anticipated that DCR will work with the Department of Environmental Quality (DEQ) to develop an annual reporting mechanism that can be used to satisfy both agencies.