Senate Bill 776 Took Effect on July 1, 2020 and Emphasizes the Importance of Living Shorelines
We have written extensively about this new law because it could require large expenditures by commercial and residential waterfront property owners, and it could force commercial waterfront property owners to modify the manner in which they conduct operations at their facilities. This article provides an introduction. We have another article that describes what the VMRC is doing to implement the new law. We have also written articles offering guidance on how to interpret the new law’s “Best Available Science” standard and offering advice on how the new law should be interpreted in the situation where a living shoreline would be vastly more expensive than a hardened shoreline.
Earlier this year, the Virginia State Legislature passed SB 776. The Governor signed it into law in April 2020, and it took effect on July 1st. The bill directs the Virginia Marine Resources Commission to approve only living shoreline approaches to shoreline stabilization unless those approaches are not suitable. The new law accomplishes this in the following ways:
- Directs the Virginia Marine Resources Commission (VMRC) to stop granting permits allowing waterfront property owners to install a hardened shoreline “unless the best available science shows that [a living shoreline is] not suitable.” In the event that a property qualifies for the exception (i.e. the best available science shows that a living shoreline is not suitable), the VMRC “shall require the applicant to incorporate, to the maximum extent practicable, elements of living shoreline approaches.”
- Directs the VMRC to develop “minimum standards” to protect and conserve shorelines and wetlands.
- Mindful that the wetlands permit process differs from the VMRC habitat permit process (different standards), the Virginia General Assembly put new language in the wetlands permitting law that makes it more difficult for the Wetlands Board to issue a permit for a hardened shoreline.
With the passage of SB 776, the emphasis today is on living shoreline management throughout Virginia, and living shorelines have been confirmed as the preferred stabilization method for shorelines.
(Sara Winter / Shutterstock.com)
Shoreline Erosion Is a Problem for Waterfront Property Owners and the Public in Virginia
If you own waterfront property - either residential or commercial - in Virginia, you may know that shoreline erosion is a major problem. Erosion can destroy structures along the ocean as well as on lakes, rivers, and bays. In 1991, two houses were condemned after being nearly washed away in Sandbridge, Virginia. More recently, NASA’s Mid-Atlantic Regional Spaceport at Wallops Island on the Eastern Shore needed 1.3 million cubic yards of sand (the equivalent of 93,000 dump trucks) to restore the beach and protect the facility at a cost of $24.4 million.
Erosion also destroys privately owned lands. Erosion can shrink the size of your waterfront property. This is the fourth of the five riparian property rights that I outlined in a previous blog article called, “Riparian Property Rights Explained.”
Erosion, however, is not just a problem for waterfront property owners; it also greatly impacts the general public because wetlands oftentimes are the first thing to go when erosion claws at the shoreline. Wetlands boost the economy and promote tourism. Unfortunately, erosion is a widespread problem in Virginia. The Virginia Institute of Marine Science confirms that the beach at Sandbridge, Virginia (which faces the Atlantic Ocean) erodes at a rate of about 2 feet per year. The Virginia Department of Conservation and Recreation notes that erosion is worse in the lower sections of the rivers in Virginia (i.e. the river sections nearer to the Chesapeake Bay) and in the Chesapeake Bay and that the rate of erosion in some places is 30 feet per year.
Textbook example of an armored or "hardened" shoreline
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Shoreline Stabilization and Beach Nourishment
One technique used to fight erosion is a “beach nourishment” project. This entails delivering clean sand to the area where erosion reduced or eliminated the beach area. These beach nourishment projects are done at many locations in Hampton Roads, including the oceanfront at Virginia Beach, the Croatan neighborhood in Virginia Beach, the Willoughby section of Norfolk on the Chesapeake Bay, and Wallops Island on the Eastern Shore. In the last five years, the Virginia Marine Resources Commission has issued 222 beach nourishment permits. Some recent beach nourishment projects in Virginia Beach have included:
- Ocean Park at the mouth of Lynnhaven Bay - 350,000 cubic yards (25,000 dump trucks) at a cost of $4.5 million
- Croatan near Rudee Inlet (on the Atlantic Ocean) - 230,000 cubic yards (16,400 dump trucks) at a cost of $6.6 million
While these were larger beach nourishment projects, most of the 222 VMRC permits were for much smaller projects. The vast majority of applicants are residential or commercial waterfront property owners seeking to place 100 cubic yards to 1500 cubic yards of sand to restore the shoreline at their property.
Unfortunately, these beach nourishment projects are very expensive, and the relief is only temporary. Erosion eats away at the sand almost as soon as it is replaced on the beach. Thus, most beach nourishment projects are repetitive and must be done over again every four to seven years.
Example of hardened shoreline (the opposite of a living shoreline)
(Sherry V Smith / Shutterstock.com)
What are Living Shorelines?
Another approach for dealing with shoreline erosion in the last 50+ years has been to simply “harden” or “armor” the shoreline by installing bulkheads and/or riprap. However, a living shoreline can form an important part of a durable solution to the problem of shoreline erosion.
A living shoreline is defined by the NOAA as "a protected and stabilized shoreline that is made of natural materials such as plants, sand, or rock." According to Virginia's living shorelines; development of general permit; guidance:
“Living shoreline" means a shoreline management practice that provides erosion control and water quality benefits; protects, restores, or enhances natural shoreline habitat; and maintains coastal processes through the strategic placement of plants, stone, sand fill, and other structural and organic materials. When practicable, a living shoreline may enhance coastal resilience and attenuation of wave energy and storm surge."
Living shoreline example
(Maria T. Hoffman / Shutterstock.com)
Living shorelines offer many benefits:
- Protection from storms and erosion
- Increased ability to absorb wave energy
- Improved water quality
- Increased biodiversity
- Promotion of recreation
- Creation of natural wildlife habitats
- Nutrient pollution remediation
As with a hardened shoreline, you will need the services of a consultant to help design the project. Read the leading reference document in Virginia, The Living Shoreline Design Guidelines for more information. Also similar to a hardened shoreline, permits and local approval are necessary for living shorelines. There are, as with hardened shorelines, life cycle costs to consider when building a living shoreline. Hardened shorelines require replacement when they eventually fail; the same can be true of a living shoreline. Sea level rise, for example, can reduce the life of the living shoreline if rising water inundates the system. Unless the VMRC is agreeable to contributing subaqueous bottom land to support installation of a living shoreline system, some sites will be unsuited because they lack the surplus land area needed to accommodate the creation of a 3:1 or 4:1 slope from the upland to the water’s edge. And, obviously, the cost differential between a hardened and a living shoreline will always be a consideration. For these reasons, and others, hardened shorelines have been the system of choice at most shorelines in Virginia, notwithstanding the numerous benefits associated with living shorelines. SB 776 however is intended to reverse this trend.
With the passage of SB 776, the emphasis today is on living shoreline management throughout Virginia, and living shorelines have been confirmed as the preferred stabilization method for shorelines. We have written extensively about this new law because it could require large expenditures by commercial and residential waterfront property owners, and it could force commercial waterfront property owners to modify the manner in which they conduct operations at their facilities. This article provides an introduction. We have another article that describes what the VMRC is doing to implement the new law. We have also written articles offering guidance on how to interpret the new law’s “Best Available Science” standard and offering advice on how the new law should be interpreted in the situation where a living shoreline would be vastly more expensive than a hardened shoreline.If you have any questions about how wetland laws or living shorelines impact your waterfront property rights, our experienced waterfront law team is happy to help. Feel free to contact us here.