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Virginia Prioritizes “Living Shorelines” for Shoreline Development and Management

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Development projects that affect shorelines in Virginia will soon need to plan for the use of living shorelines as the preferred method for shoreline management in their development plans. 

During the 2020 Legislative Session, the Virginia General Assembly amended Title 28.2 of the Virginia Code to strengthen Virginia Marine Resources Commission’s (VMRC) mandate to protect sensitive shorelines and wetlands.  Where the law previously encouraged the use of living shorelines, the law now requires it by requiring VMRC to permit “only living shoreline approaches to shoreline management unless the best available science shows that such approaches are not suitable.”  Further, even if the best available science shows a living shoreline is not suitable, the VMRC must still require applicants to incorporate elements of living shorelines into the permitted project “to the maximum extent possible.”  The amendments require VMRC to develop new minimum standards for shoreline and coastal habitat protection that account for sea-level rise, and minimum standards for the protection and conservation of wetlands.  Once created, the VMRC must consider these new standards when reviewing permit applications for activities that impact shorelines and wetlands. 

The General Assembly incorporated these amendments into the statutory wetlands zoning ordinance used by Virginia municipalities.  City, county, and town wetlands boards will be required to consider VMRC’s minimum wetlands protection standards, once promulgated, during adjudication of permit applications.  The amendments also require that applications to municipal wetlands boards contain a statement indicating whether the use of a living shoreline is not suitable, including reasons for the determination. 

These changes will make it more difficult for project planners to use traditional defensive structures, such as seawalls or bulkheads, on some or all portions of a shoreline.  This is particularly true in areas that are good candidates for living shorelines, such as inshore areas that experience less wave or vessel-wake action.  In addition, project planners may need to consider the potential increased costs associated with the establishment of a living shoreline, particularly if the property currently experiences shoreline management problems.  This includes properties that have older, failing defensive structures, or properties that are suffering from significant shoreline erosion and may require installation of breakwaters or other structures to help rebuild the shoreline.  Alternatively, planners will have to consider the additional costs needed to prepare a detailed justification explaining why a living shoreline is not feasible as part of the application.   These costs, however, may be offset by a more simplified or expedited permitting process.  In addition, owners may benefit from favorable property tax treatment that exempts living shorelines from taxation.  Owners may see a decrease in long-term shoreline management costs if a healthy living shoreline can be established, as opposed to a defensive structure that requires maintenance, repair, and eventual replacement.    

Project planners, owners, or contractors with any questions regarding this topic can contact jromero@vanblacklaw.com.

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