The Board of Supervisors is considering expansive new regulations to limit any activity that disturbs the land in its natural state. The regulations would establish a 100-foot buffer surrounding all drainage areas and require indigenous tree planting.  While this sounds benign—and even beneficial—it could be detrimental to every homeowner and landowner in the county, because all Loudoun County falls within the Chesapeake Bay watershed. The net effect? Landowners lose control over their hard-earned property and are burdened with higher permit fees and application procedures. Ultimately, it means a decline in property values and personal net worth. 

The county board has drafted an ordinance based on the Chesapeake Bay Act Ordinances Virginia’s Tidewater Counties enacted to protect tidal shorelines, tidal wetlands and flooding in flat areas. These ordinances are simply inappropriate for Loudoun County. We are not in a tidal area and our topography and soils are vastly different.

The proposed ordinance would designate the entire county—excluding the incorporated towns—as a Resource Management Area (RMA) under the Chesapeake Bay Act adopted by Virginia in 1988. If enacted, any homeowners who build a driveway, perform landscaping, or add a patio, deck, outbuilding or playground will need to get permission from the county or face potential citations and fines.  When homeowners apply for permits, the county will monitor their parcels using a tool developed by Loudoun County mapping, which the county’s staff refers to as its Resource Protection Area Screening Tool.  Homeowners are free to proceed only if they’re disturbing an area less than 2,500 square feet, and the affected area is at least 200 feet from what the RPA Screening Tool shows as RPA. 

If the homeowner intends to disturb an area larger than 2,500 square feet, or the affected area is less than 200 feet from what the screening tool shows as RPA, then the owner must supplement his or her application to more accurately delineate the RPA boundary. That means hiring experts such as licensed surveyors or civil engineers to prepare a delineation plat showing the location of all drainage areas and establishing a 100-foot buffer around them. The increased regulation will likely require the county to raise inspection and review fees, because its staff will need to physically verify all the RPAs and buffers are shown accurately on the certified plat.  

The definition of a “perennial body of water” is also grossly expanded. The laws currently protect the 100-year flood plain and creeks/streams that drain at least 100 acres.  Loudoun County’s definition for protected areas is stricter than other jurisdictions and stricter than the mapped streams to be protected according to the United States Geographic Survey (USGS).  The USGS maps streams in order to protect the Chesapeake Bay. Those streams drain in excess of 340 acres.  The Loudoun definition is being expanded so that the RPAs will include any swale or ground water that will eventually drain into a perennial stream, and specifically includes man-made drainage improvements, man-made drainage channels, "drainage ditches," wetlands and connected storm water areas. Needless to say, every lot in the county is going to have some RPA. County staff admits only a small amount of the RPA has currently been mapped. But under the new definition, more than half of the county will be designated “no disturb/must plant RPA.” And this estimate of the impact is low, given the county’s broad definition of what’s to be protected.

Whenever there’s an RPA-designated drainage area on a lot, homeowners who want to disturb the property must plant trees in the buffer zone (250 per acre, "good stock" according to the new ordinance) and provide a surety bond or other guarantee to ensure the life of the new trees, and to prevent deer browse. The plantings must be on the county’s list of indigenous trees, and thus not entirely to the home owner’s discretion (e.g. leyland cypress and ornamental cherries are not on the list).

If RPA is found on a lot, the homeowner also must supplement the permit application. That might involve employing a certified arborist to prepare and submit a map of every tree and shrub in the RPA buffer, as existing, with height, caliber, species, etc.  If a tree dies, the homeowner must agree to replace it, or face fines.

No accessory structures are allowed in the RPA.  Accessory structures include walls, patios, sheds, pools, pool houses, garages, etc.   So farmers cannot put a run in and homeowners cannot place a child’s play set in the RPA.  Owners of existing homes can, under some circumstances, build an addition of 2,500 feet that encroaches on the RPA.  Additions aren’t considered accessory structures.  

So what does this mean for Loudoun landowners?  It means that if your land or home is found to be in the RPA, you may not be able to improve your property with a patio, or even a garden. The potential existence of an RPA puts vacant lots in jeopardy. And because many properties will lose buildable area, it likely means diminished property value.  The proposed administrative process for waivers is elaborate, including public hearings before a newly created Chesapeake Bay Commission as well as the Board of Supervisors.  Obviously, this repressive initiative by the Loudoun government and certain board members will severely infringe upon Loudoun County citizens’ property rights and could substantially decrease their personal net worth.

It could also hinder farmers and rural business owners. There are some provisions to allow them to continue with existing operations, but they must keep a minimum 2-inch ground cover in the RPA buffer zone, or face fines, or face an order to fence animals out of drainage areas. It is not clear how this will be monitored (e.g. farm plans, etc.).  If a farmer or rural economy owner "changes use" then the farmer will have to comply with all of the provisions of the ordinance. So, for example, those who want to start a winery, will have to plant all the RPA buffers, which means they can’t install run ins or any accessory structure in the RPA.  The definition of "change of use" for nonconforming uses is quite strict. Any expansion of use is considered a change of use.  So any new building may subject the rural economy owner or farmer to no-disturb/plant regulations.   This borders on socialism and has the potential to harm Loudoun’s farming and rural economy.  No other jurisdiction—even those Chesapeake Bay-bordering counties mandated to do so to actually protect the Bay—have adopted such far reaching, restrictive rules.

Under the guise of protecting the Chesapeake Bay, this proposal is simply a fantastic overreach of government to regulate every single lot as RMA, then to map the RPA and discourage all land disturbing activity.  It will take a huge government program to oversee this, requiring increased fees and fines. The new proposals will make the simplest of applications—such as building a gazebo—cost thousands of dollars more because of the mapping requirements and necessity to hire certified professionals. And there is no evidence that this will improve the health of the Bay.  In fact, the overwhelming science shows that our actions will do very little, if anything, to protect the environment. Yet it’ll more than likely result in a decline in property values.  

The Virginia Supreme Court has ruled that Tidewater localities may not adopt overly broad geographic regulations of the RPA under the Chesapeake Bay Act, and has struck down regulations in Tidal communities that went too far. Even in Tidewater Counties, the locality has to show a "significant" effect on the Bay to impose an RPA. Loudoun's proposed regulations, especially for a non-tidewater county, are an affront to our liberty and the very definition of over broad.  

All Loudoun citizens should ask themselves why our county and certain Board members are seeking to implement draconian measures and regulations developed for Tidal shores and Tidal wetlands here in Loudoun.  Our water is too far away from the Bay to protect it from our silt. Loudoun is not a Tidewater jurisdiction.  Why then does Loudoun County government seek to impose these 100-foot RPA buffers on every drainage swale in the county?  This represents another case of government run amuck creating a false crisis and false solution to justify a regulatory land grab, huge increase in government powers, more taxes and fees, and intrusion into Loudoun property owner’s lives.

If you are property owner in Loudoun County please consider contacting your representative on the Board of Supervisors concerning this proposed legislation.  The legislation is scheduled for a vote in September, so your representative needs to hear from you soon. Remember, your property value—representing a large chunk of your net worth—is at stake.

To View the existing known Resource Protection Area map click here:

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