WPTA 2007-01 Water Protection Ordinance Amendment



Amend Water Protection Ordinance to expand regulation of intermittent stream buffers from the Water Supply Protection Areas to the entire Rural Areas; clarify application of erosion and sediment control regulations to otherwise exempt activities if erosion impact area exists



Messrs. Tucker, Foley, Davis, Graham, and Cilimberg; Ms. Ambler and Ms. McDowell






October 10, 2007


     ACTION:     X                         INFORMATION:   



     ACTION:                                 INFORMATION:   










After considering the Mountain Overlay District Committee’s “Proposal for Protection of Albemarle County’s Mountain Resources”, the Board of Supervisors directed staff to develop an ordinance to amend the Water Protection Ordinance (WPO) to provide uniform stream buffer standards for both perennial and intermittent streams throughout the entire Rural Areas.  Under the existing WPO, both perennial and intermittent streams are required to have protected stream buffers in Water Supply Protection Areas, but only perennial streams are required to have protected stream buffers for the remaining Rural Areas. This amendment would provide uniform treatment throughout Rural Areas by requiring that both perennial and intermittent streams have the same protection (100’ buffers on each side of a stream) as currently required only in Water Supply Protection Areas. The Water Protection Ordinance amendment is attached (Attachment A). 



Goal 2.  Protect the County’s Natural Resources - By June 30, 2010, develop a riparian buffer program to support the establishment and protection of riparian buffers.

Goal 4.  Effectively Manage the County’s Growth and Development  - By June 30, 2010, increase the protection of the County’s Rural Areas by implementing the key strategies of the Rural Area Plan.



The following discussion, as well as information contained in Attachment B, describes the importance of stream buffers for protection of natural resources and how the buffers will be better protected by the implementation of this ordinance amendment.  This is followed by a short discussion of a proposed change in administration related to the use of agreements in lieu of erosion and sediment control plans for single family dwelling units on single lots.  The discussion concludes with a summary of a proposed amendment that will codify staff’s current interpretation of the ordinance by which otherwise exempt land disturbing activities may become subject to the County’s erosion and sediment control regulations if they adversely impact neighboring properties or streams or rivers.         


What is a stream buffer and what benefits does it have?  A stream buffer is a riparian buffer. It is the area along and adjacent to streams, rivers, and their associated floodplains and wetlands.  When this area is kept in a natural vegetated state, the buffer protects water quality, as well as limits erosion in the stream channel.  The benefits of stream buffers have been extensively documented and are recognized as one of the Commonwealth’s key tools in improving water quality in the Chesapeake Bay, Virginia’s rivers, and local streams.  Riparian buffers play an important role in reducing nitrogen, phosphorus, and sediment delivered to the Chesapeake Bay and are a necessary part of Virginia’s plans to restore water quality in the Bay.  Based on accepted research, the regulations adopted by Virginia to implement the Bay Act specify that a buffer 100 feet in width on both sides of a stream will achieve a 75% reduction in sediment and a 40% reduction in nutrient loads that reach waterways.  In addition, riparian buffers are a common tool prescribed by local Total Maximum Daily Load (TMDL) implementation plans, where local streams fail to meet the state water quality standards.  Buffers can intercept and filter bacteria that may contaminate a stream, and they can provide protection and habitat to streams suffering from loss of stream bottom life.  With this understanding, staff believes this change is consistent with the County’s Strategic Plan and Rural Area Plan.  


How will stream buffers be protected with this change?  This ordinance amendment simply extends the same level of protection required in the Water Supply Protection Areas to the remainder of the Rural Areas by protecting intermittent streams throughout the Rural Areas.  As these ordinance provisions have been used for many years in the Water Supply Protection Areas, staff believes the requirements are well understood and can be easily explained to property owners. Sections 17-318, 17-319, 17-320, and 17-321 of the Code currently specify how stream buffers must be managed and what activities are allowed within the buffer area.  In general, new construction such as houses, decks, and sheds are prohibited within the stream buffer.  The clear cutting of woody vegetation to achieve sight lines and the conversion of the natural woody vegetation to lawn grass is prohibited.  Natural vegetation must be preserved or allowed to establish where it does not exist.  Limited removal of vegetation is allowed for dead, dying, diseased trees and invasive species.  Some vegetation may be removed to provide a limited sight line, but it must be replaced with lower growing woody vegetation that will perform the same water quality functions. 


Specific exemptions from buffer requirements are in place for utilities (water, sewer, electric, gas, telephone), railroads, VDOT, and properly authorized forestry operations.  In addition, specific exemptions are in place for “grandfathered” properties and for situations where the stream buffer requirements would prohibit reasonable use of their property.  In some instances, modifications are allowed with the provision of mitigation.  This assures that existing properties are allowed reasonable use and at least one building site on the property is available.  Mitigation usually takes the form of installing new plantings within the stream buffer to compensate for impacts elsewhere.  For example, if a property owner was in need of crossing a stream buffer to access a building site, then the property owner would be required to install new plantings to equal the area “removed” from the buffer by the installation of a driveway.  The current exemptions and mitigation opportunities would be available to properties that may be affected by the proposed ordinance amendment.


Erosion and Sediment Control Plans.  Currently, Section 17-205 of the Water Protection Ordinance allows Agreements in Lieu of a Plan (“Agreements”) to be used with single family residential building permits. As part of the Zoning Ordinance amendment related to critical slopes and safe and convenient access, staff is advising the Board of Supervisors that Erosion and Sediment Control Plans rather than Agreements will be necessary to verify compliance.  Staff is already authorized to require Plans, but recognizes this is a significant policy change.  Limiting the use of Agreements does not require an amendment to the Water Protection Ordinance. 


Otherwise exempt activities becoming subject to erosion and sediment control regulations.  The proposed amendment to Section 17-200 adds a section “C” that clarifies and codifies the County’s current interpretation that activities that might otherwise be exempt from erosion and sediment control requirements can be regulated if it is determined that an erosion impact area exists.  As defined in State Code and by County Code Section 17-104, an erosion impact area is an area that is not a part of a current land disturbing activity, but is still subject to persistent soil erosion which is resulting in the delivery of sediment onto neighboring properties or into streams and rivers.  An erosion impact area cannot apply to a lot measuring less than 10,000 square feet that is used for residential purposes, and it cannot apply to a shoreline area where the erosion is the result of wave action. Section 17-202 of the County Code currently outlines how the County determines the existence of an erosion impact area and how the erosion and sediment control requirements would be applied to that property. 



Based on the history with the Water Supply Protection Areas, staff does not anticipate any adverse impacts on property assessments as a result of this change.  


The requirements under the proposed amendments would be enforced by County staff in the same manner that current requirements are enforced - through the review of submitted development proposals and in response to complaints of buffer violations.  Staff anticipates some increase in workload resulting from a greater number of regulated streams, but does not believe the anticipated workload justifies a need for additional positions. While staff is not recommending expanding enforcement beyond the current efforts, an expanded enforcement program combined with these amendments would result in the need for an additional plan reviewer / inspector as well as additional legal assistance.  The reviewer / inspector position would have a first year cost of approximately $78,000 and subsequent year costs of approximately $58,000 per year. Most, but not all of that cost, could be recovered through development review fees and fines.   




Recognizing the County’s Strategic Plan emphasis on protection of natural resources and the Rural Areas, staff recommends approval of WPTA 2007-01. 



Attachment A    WPTA 2007-01: Water Protection Ordinance

Attachment B    Stream Buffers

Attachment C    Letter dated April 5, 2007, from John Murphy, Director Stream Watch

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