Proactive Planning for Resilience: Protocols for Community-Led Climate Adaptation in Virginia

Strategy Development - Approach I

Reducing Risk by Limiting Development and Preserving Green Space in High Risk Areas

Limiting development in high risk areas is another way to reduce risk in areas that are not yet built out. But local governments in Virginia often hesitate to undertake measures such as limits on utility extensions or downzoning due to concern about legal challenges, and a moratorium on reviewing all new land use applications for an area is considered even more unacceptable. The Association of State Floodplain Managers’ No Adverse Impact Legal Guide for Flood Risk Management v.23.06 provides legal resources and analysis that can assist localities wishing to implement measures to enhance flood resilience beyond minimum state and federal requirements. 

Many localities are already built-out in their vulnerable areas and do not have the option of adopting preemptive limits on development. Instead, they can use tools that reduce risk over time, such as transfer of development rights programs and targeted future development areas supported by zoning, discussed below.

If vulnerable areas are not already built out, then taking action to prevent or limit development there will reduce the tax base, which can serve as a disincentive to local government action; but a locality should compare the loss of revenue to the expense and risk in the long run of maintaining services in those areas (emergency response, road maintenance, school bus service) in the face of increasing flood inundation and erosion. And the tax revenue reduction can be offset by incentivizing the creation of “receiving areas” within the same locality where vulnerable residents can relocate, including permitting higher-density development in safer, more elevated areas. A creative combination of tools coupled with community-engaged planning can provide a safe and pragmatic path forward for at-risk communities.

Educating the Public about Risks

Communities need safe, fiscally achievable and politically practical ways to stop developing and subsidizing rebuilding in high-risk, flood prone areas. The new pricing approach used by FEMA in the National Flood Insurance Program (NFIP), Risk Rating 2.0, assists with that by providing flood insurance at costs that more realistically reflect risk levels, thus alerting potential buyers before they invest in vulnerable areas. Another way to educate home buyers before they purchase in a flood prone area is through flood history disclosure requirements, which are under discussion in Virginia.

In its 2023-24 session, the New York State Assembly adopted legislation requiring a home seller to disclose to a buyer whether the property is located in a flood risk area, and whether the seller has flood insurance for the property or has received federal disaster assistance for flood damage to the property.1 New Jersey also enacted a flood risk notification law in 2023 that requires landlords and sellers of real property to make disclosures concerning known and potential flood risks.2 New York and New Jersey are among many states that have adopted flood history disclosure requirements for residential properties, but Virginia – known as a “buyer beware” state – has not.3 After a series of legislative attempts to adopt such a requirement, Virginia’s law currently only requires that an owner provide a residential property disclosure statement to a buyer, warning the buyer that the seller makes no representations concerning whether the property is located in in a special flood hazard area and advising the buyer to “exercise whatever due diligence they deem necessary”, including obtaining a flood certification, reviewing a map of Special Flood Hazard Areas, contacting FEMA or viewing the NFIP website, or determining whether flood insurance is required for the property.4 The law also notes that a flood risk information form with more information is available from the Real Estate Board website.5 Most recently, House Bill 863, proposed in the 2024 legislative session, would have imposed extensive disclosure requirements upon owners of both purchased and leased properties. It was continued to the 2025 session, and the Virginia Housing Commission’s Landlord Tenant Law Workgroup is examining the issue. There also is a website to increase knowledge of this nonpartisan issue.

1 “Relates to the establishment of the New York State Health Equity Task Force,” New York State Assembly Bill A1967, 2023, https://www.nysenate.gov/legislation/bills/2023/A1967. See also “Governor Hochul Signs Legislation to Protect New Yorkers from Increasingly Frequent and Extreme Heat,” New York State Governor’s Office, July 27, 2024, https://www.governor.ny.gov/news/governor-hochul-signs-legislation-protect-new-yorkers-increasingly-frequent-and-extreme.
2 “An Act Concerning the Establishment of the New Jersey Statewide School Safety Program,” Public Law 2023, Chapter 93, New Jersey Legislature, 2022, https://pub.njleg.state.nj.us/Bills/2022/PL23/93_.PDF.
3 Natural Resources Defense Council, “Buyer Beware: In 21 States Home Buyers Don’t Have to Be Informed About Past Flood Damages,” August 16, 2018, https://www.nrdc.org/press-releases/buyer-beware-21-states-home-buyers-dont-have-be-informed-about-past-flood-damages. See also map and report on state flood disclosure laws at: “How States Stack Up on Flood Disclosure,” Natural Resources Defense Council, August 31, 2023, https://www.nrdc.org/resources/how-states-stack-flood-disclosure.
4 Va. Code § 55.1-703(B)(10), https://law.lis.virginia.gov/vacode/55.1-703/.
5 Va. Code § 55.1-703(D), https://law.lis.virginia.gov/vacode/55.1-703/.

The Comprehensive Plan

The Comprehensive Plan is the first stop to plan for community green space to counteract heat and flooding, and to delineate areas of higher ground for targeted development and lower ground where development will be de-emphasized. For example, the City of Norfolk did that in its Vision 2100 plan (see case study below). In addition, a locality’s Capital Improvement Plan and regional Hazard Mitigation Plan are helpful tools for planning for resilience. See the U.S. Department of Homeland Security’s Plan Integration for Resilience Scorecard for helpful information about integrating a community’s various planning efforts.

Norfolk is known for its flooding and forward-looking climate planning. In 2016, the City adopted its resilience plan, Vision 2100, a product of extensive and inclusive community engagement. From 2015 to 2016, Norfolk engaged its residents in three phases: awareness, asset mapping, and vision development. The first phase raised awareness of the planning process for residents and stakeholders, with the City announcing its efforts across both traditional and social media sites, talking to residents directly, and contacting community leaders. The second phase amplified residents’ voices, asking them to identify key assets (neighborhoods, parks, museums, etc.) in Norfolk. This was done through public meetings, and over 500 residents participated. In the third phase, the City held both in-person and online meetings for residents to create a shared vision for resilience, including areas to protect and those to redevelop. City staffers went back and forth with residents to make needed changes until the vision map was complete. See Norfolk’s Vision 2100 resilience plan for more information.

Best Practices/Takeaways:

  • Resilience planning can be an emotional process, as residents realize the significant changes to their community. With a history of redlining, it was important for Norfolk to effectively and inclusively engage its residents in mapping the City for resilience. Giving them voice and weight on the redesign helps to quell concerns of potential repeated discrimination in the remapping effort.1
  • Kyle Spencer, the Chief Resilience Officer in Norfolk, noted that success of the climate plan was due in part to its multi-departmental effort, engaging different offices. Each department can leverage its expertise and skills for resilience, uniting in a shared commitment. Spencer also noted that successful engagement requires capturing public attention at the right time. Residents may feel a sense of urgency to act on climate-related events after large storms, so localities should take that opportunity to engage residents on climate planning.2

Finally, it was important for Norfolk to “meet residents where they are.” Civic leagues are an important source of community interaction in Norfolk, so staffers attended meetings and presented information on the upcoming plan. Spencer noted that the staff also held public meetings across the City, going to neighborhoods that would be highly impacted by flooding and those that had residents who had not previously attended engagement sessions.3

1 Jon Gorey, “What Will Make Home Buyers Consider Climate Risk? What Happens Once They Do?,” Lincoln Institute of Land Policy, November 17, 2023, https://www.lincolninst.edu/publications/article/2023-11-homebuyers-climate-insurance-risk.
2 Personal communication with Kyle Spencer, Chief Resilience Officer, City of Norfolk, April 4, 2024.
3 Ibid.

Statutory and Regulatory Measures

Local governments in Virginia can use their land use ordinances as a tool to increase their resilience by reducing the amount of development subject to flooding impacts. Examples include:

  • Zoning ordinances that focus development in non-flood prone areas in accordance with the comprehensive plan, including implementing downzoning in flood prone areas and the use of density bonuses to incentivize building in more elevated areas
  • Floodplain management ordinances
  • The creation of agricultural and forestal districts, conservation and open space easements, or transfer of development rights (TDR) programs to reduce development in vulnerable areas
  • Wetlands and riparian buffer protection requirements that help to conserve natural areas as flood buffers and stabilize shorelines in coastal areas
  • Tree protection and conservation ordinances

All of these options can be used to reduce flooding impacts in communities. These and other land use management tools are discussed in more detail below.

Downzoning allows localities to limit development to reduce land use density or intensity in areas that are vulnerable to sea-level rise. However, downzoning comes with several legal complications—while the Virginia Code permits localities to engage in a voluntary agreement with a landowner to downzone their undeveloped or underdeveloped land, localities must, in return, offer a tax credit equal to the additional property taxes paid by the landowner due to the higher zoning classification. Localities are granted flexibility to create reasonable guidelines for determining the amount and duration of tax credits. Ultimately, downzoning comes at a cost, and the “voluntary” element may be difficult to achieve in high-demand areas. Read the full provisions here: § 15.2-2286. Permitted provisions in zoning ordinances; amendments; applicant to pay delinquent taxes; penalties.1

The Virginia Code also contemplates downzoning without the landowner’s expressed consent as part of a conservation or redevelopment plan. However, such downzoning also requires valuation of the property as part of just compensation to the owner. Depending on the factual situation, the valuation date may be tied to the date the conservation or redevelopment plan is adopted. Moreover, redevelopment and conservation areas are by definition experiencing blight or becoming blighted, respectively;2 thus, redevelopment and conservation downzoning is a limited tool that only applies to a narrow subset of areas that often do not have high development demand anyway. Read the full provisions here: § 25.1-107. Condemnation of lands within adopted conservation or redevelopment plans.3

Downzoning also can come with potential legal challenges in court – namely, reasonableness review and takings challenges – so it is important for local governments to consult with their legal counsel before pursuing this option. For more information, see the full explanation.

1 Va. Code § 15.2-2286(A)(11), https://law.lis.virginia.gov/vacode/title15.2/chapter22/section15.2-2286/.
2 Va. Code § 36-48, 36-3, https://law.lis.virginia.gov/vacode/36-3/.
3 Va. Code § 25.1-107(A)(C), https://law.lis.virginia.gov/vacode/title25.1/chapter1/section25.1-107/.

The Virginia Code authorizes localities to adopt floodplain management ordinances in several different provisions. Localities’ zoning ordinances may regulate the use of land and structures in floodplains1 and localities may regulate flood plain activity in accordance with state or federal floodplain management programs and requirements.2 Additionally, “any locality included in the Hampton Roads Planning District Commission shall incorporate into . . . its comprehensive plan strategies to combat projected relative sea-level rise and recurrent flooding”.3 [Note, however, that comprehensive plans in Virginia are not enforceable but rather serve as “recommendations.”]4 Read the full provisions here: Code of Virginia Code – Article 7. Zoning; § 15.2-984. Adoption of flood plain ordinances; § 15.2-2223.3. Comprehensive plan shall incorporate strategies to combat projected sea-level rise and recurrent flooding.

The Virginia Department of Conservation and Recreation (DCR) manages the State’s floodplain management program as the coordinating agency for the federal government’s National Flood Insurance Program (NFIP).5 DCR has issued a state model floodplain ordinance crafted to meet the minimum requirements for localities’ participation in the NFIP.6 However, localities may “adopt additional higher standards” and may even draft “their own floodplain ordinance that is not based on the model.”7 The model ordinance does, however, serve as a useful tool for examining how localities may limit development through floodplain ordinances. Specifically, localities may create “special flood hazard districts” that reflect boundaries shown on FEMA’s Flood Insurance Rate Map, and designate AE and AH Zones in which no development “shall be permitted” until a regulatory floodway is designated, with limited exceptions for development that does not result in an increase in the water surface elevation of the base flood level by more than one foot.8 Accordingly, floodplain management ordinances generally may help slow development in areas vulnerable to flooding.  Access the model ordinance here: Floodplain Management Regulations and Ordinances.

1 Va. Code § 15.2-2280(1), https://law.lis.virginia.gov/vacode/title15.2/chapter22/section15.2-2280/. See also Purpose of zoning ordinances (zoning ordinances “shall be designed to give reasonable consideration to each of the following purposes, where applicable: … safety from… flood; …to facilitate the provision of adequate… flood protection…; … to protect against… loss of life, health, or property from fire, flood, impounding structure failure, panic or other dangers; … to provide for the preservation of agricultural and forestal lands and other lands of significance for the protection of the natural environment…”). Va. Code § 15.2-2283, https://law.lis.virginia.gov/vacode/title15.2/chapter22/section15.2-2283/.
2 Va. Code § 15.2-984, https://law.lis.virginia.gov/vacode/title15.2/chapter9/section15.2-984/.
3 Va. Code § 15.2-2223.3, https://law.lis.virginia.gov/vacode/title15.2/chapter22/section15.2-2223.3/.
4 Ibid. § 15.2-2223(C).
5 Va. Code § 10.1-602(7)–(8), https://law.lis.virginia.gov/vacode/title10.1/chapter6/section10.1-602/.
6 Va. Department of Conservation & Recreation, “Floodplain Management Regulations and Ordinances,” https://www.dcr.virginia.gov/dam-safety-and-floodplains/fpordnce.
7 Ibid.
8 Ibid., 13.

Localities may want to consider utilizing agricultural and forestal districts and coordinating with their soil and water conservation districts when developing plans to help limit development and reduce flooding in environmentally vulnerable areas.

  • Agricultural and Forestal District: A locality’s governing body may adopt ordinances to create agricultural and forestal districts on land that is suitable or has been priorly used for agricultural or forestal production. Land lying within such a district and used for agricultural or forestal production automatically qualifies for an agricultural or forestal use-value tax assessment if certain requirements are met, so landowners are incentivized to seek creation of such districts in their area. Agricultural and forestal districts may be used to limit development in several ways. For instance, the local governing body may not allow agricultural and forestal land to be developed for more intensive use beyond agricultural and forestal production without prior approval. Additionally, the local governing body may offer incentives to property owners to implement land use and conservation restrictions on their land. To the extent localities have qualifying land, they may want to consider adopting agricultural and forestal districts as a tool for limiting development. Read the full provision here: Agricultural and Forestal Districts Act.1

  • Soil and Water Conservation District: Soil and Water Conservation districts are political subdivisions of the Commonwealth that may create flood prevention programs.2 Localities can consider coordinating with their soil and water conservation district to explore ways to promote flood protection in tandem with limiting development. Districts are listed here, and the full Virginia Code provision can be found here: Code of Virginia Code – Article 3. Soil and Water Conservation Districts.

1 “Agricultural and Forestal Districts Act of 1977,” Va. Code § 15.2-4300 to § 15.2-4314, https://law.lis.virginia.gov/vacodepopularnames/agricultural-and-forestal-districts-act/.
2 Va. Code § 10.1-546, https://law.lis.virginia.gov/vacode/title10.1/chapter5/section10.1-546/.

An easement is an interest in land conveyed in a legal agreement between a landowner and a holder, providing the easement holder with certain rights. The holder can be a third-party organization like a land trust or local government, with the easement conveyed with the goal of permanently limiting development on the property.1 Such easements often come with tax benefits to compensate landowners for the resulting reduction in the land’s market value.2 While they are useful tools for limiting development, easements do not track with rising sea levels and are limited to a set tract of land, regardless of changing environmental conditions. Virginia recognizes two different kinds of easements relevant to adaptation to increasing floods: (1) conservation easements, which are held by charitable organizations, and (2) open-space easements, which are held by local governments.

  • Conservation Easements: The Virginia Code permits the creation of conservation easements for purposes that include protecting natural resources and maintaining water quality. Conservation easements are negotiated between landowners and a “holder,” defined as “a charitable corporation, charitable association, or charitable trust.”3 However, if the holder ceases to exist, the conservation easement by default vests in the Virginia Outdoors Foundation (VOF) —a quasi-state agency established for the purpose of land conservation—which may then retain the easement or transfer it to another public body or holder. Easements can also be written to opt out of that default provision by arranging for the easement to vest in another holder or public body, instead of VOF. Localities should thus be on notice that conservation easements may ultimately be transferred back into their administration. Read the full provision here: Code of Virginia Code – Chapter 10.1. Virginia Conservation Easement Act.4
  • Open-Space Easements: The Virginia Code permits the creation of open-space easements between landowners and a public body for purposes including preservation of wetlands. Open-space easements may last for no less than five years and may also be perpetual. Localities may engage in a variety of activities that are either necessary or convenient for the effectuation of open-space easements, such as borrowing funds or demolishing structures inconsistent with open-space land. Read the full provision here: Code of Virginia Code – Chapter 17. Open-Space Land Act.
  • National Flood Insurance Program Credits: Easements may provide localities with the added benefit of National Flood Insurance Program (NFIP) Community Rating System (CRS) credits, which can lower policyholders’ premiums.5 Specifically, NFIP credits can be obtained through “preserved open space in the floodplain” via easements, so long as other requirements are met.6 For more information, see the current FEMA CRS Coordinator’s Manual: CRS Coordinator’s Manual.

1 Va. Department of Forestry, “Conservation Easements,” https://dof.virginia.gov/forest-management-health/forestland-conservation/conservation-easements/.
2 Va. Code § 10.1-1011(B), https://law.lis.virginia.gov/vacodefull/title10.1/chapter10.1/.
3 Va. Code § 10.1-1009, https://law.lis.virginia.gov/vacode/title10.1/chapter10.1/section10.1-1009/.
4 “Virginia Conservation Easement Act,” Va. Code § 10.1-1009 to § 10.1-1016.1, https://law.lis.virginia.gov/vacode/title10.1/chapter10.1/.
5 Va. Department of Conservation & Recreation, “The Community Rating System (CRS),” last modified July 5, 2024, https://www.dcr.virginia.gov/dam-safety-and-floodplains/fp-crs.
6 Federal Emergency Management Agency, “National Flood Insurance Program Community Rating System, Coordinator’s Manual,” (2017): 420-3–420-6, https://www.fema.gov/sites/default/files/documents/fema_community-rating-system_coordinators-manual_2017.pdf.

Transfer of development rights (TDR) is a voluntary, market-based approach that allows landowners to transfer development rights from an environmentally vulnerable “sending” area where the locality seeks to discourage development, to a more elevated “receiving” area that can accommodate higher-density development.1 To encourage participation, localities often offer financial incentives, like real estate tax abatements.2 Before adopting a TDR program, localities must take into account the administrative costs encountered in establishing and running the program,3 and they need to make sure that the market will support the program (i.e., there is demand for additional density in the receiving area beyond the allowed cap, and it is more economically attractive to transfer density credits from the sending area than it is to develop there). For more information on TDR programs, see: Managed Retreat Toolkit » Transfer of Development Rights – Georgetown Climate Center.

  • Authority: Article 7.1 of the Virginia Code provides that localities may, “in order to conserve and promote the public health, safety, and general welfare, establish procedures, methods, and standards for the transfer of development rights.”4 Read the full provision here: Code of Virginia Code – Article 7.1. Transfer of Development Rights.
  • Case Study – Monroe County, Florida: Monroe County sits on Florida’s southern tip, encompassing the Florida Keys and parts of the Everglades National Park and Big Cypress National Preserve.5 To combat the threat of sea-level rise, Monroe County adopted a TDR program that has successfully achieved the transfer of development rights from the middle and lower Keys to the middle and upper Keys, where they are used to supplement density limits on single-family residential subdivisions and floor-area limits for commercial developments.6

Additionally, Monroe County has also implemented an innovative “Less than Fee” Program that allows landowners to voluntarily sell their rights in perpetuity to build a home on an adjacent, vacant lot, which will instead accommodate permitted accessory uses, like a pool. Accordingly, the Less than Fee Program allows Monroe County to retire building rights on vacant lots in vulnerable areas. The Program has proven quite popular, with a waitlist of interested applicants. However, the Program’s scope is necessarily limited by the availability of funding, which is obtained via the local option infrastructure sales surtax.7 Florida allows such a surtax to be imposed by local governments on all transactions subject to the State’s sales and communications services taxes.8 Read more about the Less than Fee Program here: Less Than Fee Program | Monroe County, FL – Official Website.

Under the TDR provisions in the Virginia Code, Virginia localities can “purchase all or part of such development rights, which shall retire the development rights.”9 If a funding source is available, localities may want to consider adopting a program similar to Monroe County’s.

1 “Transfer of Development Rights,” Wetlands Watch, https://wetlandswatch.org/transfer-of-development-rights.
2 “Transfer of Development Rights,” Georgetown Climate Center, https://www.georgetownclimate.org/adaptation/toolkits/managed-retreat-toolkit/transfer-of-development-rights.html.
3 Ibid.
4 Va. Code § 15.2-2316.2(A), https://law.lis.virginia.gov/vacode/title15.2/chapter22/section15.2-2316.2/.
5 Monroe County, Fl., “About Monroe County,” https://www.monroecounty-fl.gov/27/About-Monroe-County.
6 South Florida Regional Planning Council, “Adaptation Action Areas: A Planning Guidebook for Florida’s Local Governments,” (2015): 52, https://www.floridajobs.org/docs/default-source/2015-community-development/community-planning/crdp/aaaguidebook2015.pdf?sfvrsn=2.
7 Monroe County Board of County Commissioners, “Resolution No. 128-2022,” 2022, https://www.monroecounty-fl.gov/DocumentCenter/View/16632/Less-than-Fee-Resolution-128-2022-replacing-175-2018-438-2018–063-2020?bidId=.
8 Florida Department of Revenue, “Local Option Taxes – Discretionary Sales Surtaxes,” https://floridarevenue.com/taxes/taxesfees/Pages/local_option.aspx.
9 Va. Code § 15.2-2316.2(C)(1), https://law.lis.virginia.gov/vacode/title15.2/chapter22/section15.2-2316.2/.

As a market-based solution, localities could consider adopting density bonuses that grant developers increased density to build on higher-ground areas in exchange for restricting development in flood prone areas. The Virginia Code authorizes localities to pursue “incentive zoning,” or “the use of bonuses in the form of increased project density . . . in return for the developer providing certain features . . . desired by the locality.”1 While the provision enumerates certain examples of potential features, localities are not limited to that list. Read the full provision here: § 15.2-2201. Definitions.

As a helpful case study on using zoning ordinances to direct development to more elevated areas, see Norfolk’s zoning ordinance, Building a Better Norfolk – A Zoning Ordinance for the 21st Century, Section 5.12, “Resilience Quotient.”

1 Va. Code § 15.2-2201, https://law.lis.virginia.gov/vacode/title15.2/chapter22/section15.2-2201/.

The Chesapeake Bay Preservation Act (Bay Act) empowers the State’s 84 Tidewater localities1 to protect water quality through land use planning under the oversight of the Virginia State Water Control Board and the Virginia Department of Environmental Quality (DEQ).2 As part of their adaptation planning, localities can consider the following tools authorized by the Bay Act:

  • Expanding Riparian Buffers: The Bay Act regulations require the State’s 84 Tidewater localities to adopt development-restricting riparian buffers “not less than 100 feet in width” in designated Resource Protection Areas (RPA) adjacent to perennial waterways.3 In light of predicted sea level rise, localities could consider expanding their riparian buffers beyond the 100-foot minimum in order to limit development in areas that impact water quality and are very vulnerable to flooding. Although it would undoubtedly be controversial among some land owners and developers, such an approach could be used to protect water quality while also providing additional flooding buffers. For instance, Arlington County has expanded the mandatory 100’ RPA buffer to include any contiguous steep slopes greater than or equal to 25% located adjacent to the landward boundary of the buffer.4
  • Integrating Sea Level Rise (SLR): Pursuant to a 2020 statutory amendment,5 the Bay Act regulations require localities to “assess the impacts of climate change and sea-level rise on any proposed development in the [RPA].”6 The regulations enumerate specific criteria localities must assess, “at a minimum,”7 over a 30-year potential impact range.8 Note that this 30-year range is different than the Virginia Marine Resources Commission’s Tidal Wetlands Guidelines, which require “[a]ll shoreline alterations [to] be designed and constructed to mitigate coastal hazards . . . that may reasonably be expected over the useful life of the project.”9 The DEQ recently issued Resiliency Draft Guidance that uses a time span of 30 years, or the lifespan of a project if it is less than thirty years.10 Ultimately, based on the SLR assessment, localities “shall, as necessary and appropriate, require conditions, alterations, or the installation of adaptation measures as part of the proposed land development.”11 The Virginia Institute of Marine Science’s AdaptVA.org website has an interactive map that includes data layers for the current RPA, the potential area covered by wetlands in 2050, using the NOAA intermediate high curve; and the potential upland interface shoreline using the same NOAA data. Local governments and property owners can use this information to show predicted changes in the RPA over time for specific addresses in the coastal region. 

In Maryland, the Chesapeake Bay Critical Area Protection Act (Critical Area Act) has traditionally functioned similarly to Virginia’s Bay Act to regulate coastal development with the goal of protecting the Bay’s water quality.12 However, H.B. 233,13 which was passed by the Maryland General Assembly in 2024 and signed into law as Chapter 424 of the Acts of Assembly, provides for the explicit consideration of climate resiliency in localities’ implementation of the Critical Area Act, along with environmental justice and equity. Although Maryland is not a pure Dillon Rule state like Virginia, instead providing home rule for counties that are not charter counties,14 its implementation of the Critical Area Act’s new climate change provisions may provide helpful lessons to Virginia.

1 “Tidewater Virginia” is defined in the Chesapeake Bay Preservation Act, Va. Code § 62.1-44.15:68, https://law.lis.virginia.gov/vacode/title62.1/chapter3.1/section62.1-44.15:68/.
2 Va. Department of Environmental Quality, “Chesapeake Bay Preservation Act,” https://www.deq.virginia.gov/our-programs/water/chesapeake-bay/chesapeake-bay-preservation-act. See also Va. Admin Code § 62.1-44.15:67 to 62.1-44.15:79, https://law.lis.virginia.gov/vacodefull/title62.1/chapter3.1/article2.5/.
3 Va. Admin Code § 9VAC25-830-80(B)(5), https://law.lis.virginia.gov/admincode/title9/agency25/chapter830/section80/.
4  “Arlington County Chesapeake Bay Preservation Ordinance,” Arlington County Code §61-5, https://www.arlingtonva.us/files/sharedassets/public/v/1/environment/documents/chesapeake-bay-preservation-ordinance.pdf.
5 In 2020, the Virginia General Assembly amended § 62.1-44.15:72 of the CBPA to require the State Water Control Board to establish criteria for use by local governments that promote and encourage preservation of mature trees or planting of trees and “coastal resilience and adaptation to sea-level rise and climate change.” Va. Code § 62.1-44.15:72(B)(v) and (vi), https://law.lis.virginia.gov/vacode/title62.1/chapter3.1/section62.1-44.15:72/.
6 Va. Admin Code §§ 9VAC25-830-155(B), https://law.lis.virginia.gov/admincode/title9/agency25/chapter830/section155/.
7 Ibid.
8 Ibid. §§ 9VAC25-830-155(B)(1)–(6).
9 Va. Marine Resources Commission, “Tidal Wetlands Guidelines,” (2021): 9, https://mrc.virginia.gov/Notices/2021/Final-Draft-Wetlands-Guidelines-Update_05-19-2021.pdf.
10 Va. Department of Environmental Quality, “Resiliency Draft Guidance,” (2024): 3, https://www.deq.virginia.gov/our-programs/water/chesapeake-bay/chesapeake-bay-preservation-act/local-program-regulations-guidance.
11 Ibid. See also Va. Code § 9VAC25-830-155(B)(7),   https://law.lis.virginia.gov/admincode/title9/agency25/chapter830/section155/#:~:text=7.,the%20Act%20and%20this%20chapter.
12 Md. Department of Natural Resources, “Background and History,” https://dnr.maryland.gov/criticalarea/Pages/background.aspx
13 Md. General Assembly, “Chesapeake and Atlantic Coastal Bays Critical Area Protection Program – Climate, Equity, and Administrative Provisions,” HB0233, 2024, https://mgaleg.maryland.gov/mgawebsite/Legislation/Details/hb0233?ys=2024RS.
14 Md. Constitution art. XI-F. https://msa.maryland.gov/msa/mdmanual/43const/html/11far.html.

Trees can be a critical tool for counteracting rising temperatures and creating flood buffers. Trees not only provide shade, but also help cool their surroundings through rainfall evapotranspiration.1 In fact, urban forests are, on average, 3°F cooler than unforested urban areas.2 Additionally, trees can form riparian forest buffers that help absorb stormwater through their canopies and root systems,3 ultimately reducing flooding damage and improving water quality. Localities can conduct native tree planting efforts to reduce heat, or enact tree preservation ordinances.4

Virginia Authority: The Virginia Code authorizes localities to enact urban tree ordinances in several different provisions:

Adaptation. 9 Va. Admin. Code § 25-830-155(C)(4) (9VAC25-830-155. Climate change resilience and adaptation criteria.) requires localities to “maximize the preservation of existing natural vegetation including mature trees”.

  • Other Authority: Other provisions in the Virginia Code also authorize localities to adopt tree ordinances, which may then be used to “demonstrat[e] compliance with” the Bay Act’s mature tree requirement for RMAs.5
  • Equity Concerns: While trees undoubtedly provide excellent climate adaptation benefits, localities should be cognizant of potential unintended impacts of tree planting initiatives on vulnerable community members:
    • Gentrification: Residents of lower-income communities may be resistant to tree-planting due to gentrification concerns.6 For example, urban tree-planting has been associated with a “modest increase” in gentrification in Portland, Oregon.7 While scientists have not yet determined how to “make neighborhoods ‘just green enough’ without triggering environmental gentrification,” localities may be able to mitigate gentrification by dispersing tree-planting across several communities so that one single community does not increase in attractiveness compared to its neighbors.8
    • Maintenance Costs: For all of their benefits, trees also come with maintenance costs—planting, removal, pruning, mulching, irrigation, and more.9 Localities may thus want to consider ways to finance tree maintenance without further burdening already-under resourced communities.


    1 U.S. Environmental Protection Agency, “Using Trees and Vegetation to Reduce Heat Island., last modified October 31, 2023, https://www.epa.gov/heatislands/using-trees-and-vegetation-reduce-heat-islands.
    2 Ibid.
    3 Vincent Cotrone, “How Do Trees Reduce Stormwater and Flooding?,” PennState Extension,  https://extension.psu.edu/how-do-trees-reduce-stormwater-and-flooding.
    4 Kate MacFarland, Richard Straight, and Mike Dosskey, “Riparian Forest Buffers: An Agroforestry Practice,” U.S. Department of Agriculture, (2017): 1,   https://www.fs.usda.gov/nac/assets/documents/agroforestrynotes/an49rfb01.pdf.
    5 Va. Admin Code § 9VAC25-830-130(2), https://law.lis.virginia.gov/admincode/title9/agency25/chapter830/section130/.
    6 Liqing Li, “Environmental Goods Provision and Gentrification: Evidence from MillionTreesNYC,” Journal of Environmental Economics and Management 120, (2023): 1, 16,   https://www.sciencedirect.com/science/article/pii/S0095069623000463.
    7 Geoffrey H. Donovan et al., “The Politics of Urban Trees: Tree Planting is Associated with Gentrification in Portland, Oregon,” Forest Policy and Economics 124, (2021): 1, 6,   https://www.fs.usda.gov/pnw/pubs/journals/pnw_2021_donovan003.pdf.
    8 Liqing Li, 2023 (see 6).
    9 Xiao Ping Song et al., “The Economic Benefits and Costs of Trees in Urban Forest Stewardship: A Systematic Review,” Urban Forestry & Urban Greening 29 (2018): 162, 166 tbl.3, http://dx.doi.org/10.1016/j.ufug.2017.11.017.

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