Nutrient Bank

Common Questions:

What is a Nutrient Bank?

The purpose of a nutrient bank is to permanently reduce, or “bank,” nutrients such as nitrates and phosphates that would otherwise enter the water supply.

Over several decades, the Commonwealth of Virginia entered into a series of agreements between the Federal government and the states bordering the Chesapeake Bay to improve the health of the Bay by reducing nutrients run off. The first of these was the Chesapeake Bay Agreement in 1987, which aimed to reduce the amount of nitrogen and phosphorus entering the Bay by 40% by the year 2000. Next, the Chesapeake 2000 agreement expanded the initiative to include states that contained headwaters and tributaries feeding to the Bay. Virginia enacted legislation to enforce these agreements, including the Chesapeake Bay Preservation Act in 1988 and the Chesapeake Bay Watershed Nutrient Credit Exchange Program in 2005.

This Credit Exchange Program created the concept of nutrient credits in Virginia.

In the summer of 2005, the quantity of nitrates and phosphates a property owner along the bay and tributaries could generate became a fixed amount. Since 2005, if you own industrial or agricultural property, or a home, your output cannot exceed those fixed levels. In order for a farmer to increase the heads of cattle on his farm or a municipal wastewater treatment plant to expand because of new residents, they must buy credits from some other landowner who is willing to permanently decrease their nutrient output.

To receive nutrient credits, a landowner must permanently convert their property from the previous usage, like pasture, into one that creates less nutrient runoff, like forest. This involves the preparation and submission of a Nutrient Reduction Implementation Plan to the Virginia Department of Environmental Quality (DEQ) for approval. Once the plan and usage are approved and inspected, DEQ authorizes the creation of the specific nutrient “bank,” places a restrictive covenant on the land to enforce the bank, and issues a credit certificate. Credit exchanges operated by companies throughout the state broker between buyers, who need the credits, and the landowners, who have credits to sell. Credit certificates are only generated once, but an owner can choose to sell them all immediately or save them and sell them later, or sell them in several smaller increments.

How did Virginia Oaks get a Nutrient Bank?

In December 2014, the Virginia Oaks Golf Club was purchased by a group of investors called Virginia Oaks, LLC (hereafter referred to as the GC owners). The golf course continued to lose money, and by January 2017, the GC owners decided that they would close the course [link to the letter].  They began investigating multiple alternative uses for the land, including building up to 200 townhouse units or additional single-family detached homes. These ideas encountered resistance from Prince William County because the original zoning that created the Virginia Oaks Residential Planned Community (RPC) only allowed for 563 residences and there were already 561. Another limiting factor was the cost of installing roads throughout the old fairways. Roads cost about $1 million a mile and the fairways were too narrow to easily fit homes on both sides of the road making it unprofitable.  In addition, some areas contain highly erodible soil, or are designated part of the Chesapeake Bay Resource Protection Area buffer and could not be built upon.

In September 2017, the GC owners submitted a request for determination [link to letter] to the County zoning office to see if a nutrient bank was compatible with the original zoning. In December 2017, the County replied that a nutrient bank was compatible [link to letter] with the former golf course areas specifically identified as Open Space within the RPC.

The GC owners hired Conservation Plus, also known as Conservation+, to draft the Nutrient Reduction Implementation Plan and get it approved by DEQ. They also became the nutrient bank Sponsor, which is the organization that acts as the agent for DEQ after the nutrient bank is created. A Sponsor is paid for by an upfront fee charged to the landowner establishing the nutrient bank.   Conservation Plus, as the Sponsor, is empowered to act as the conservator for the Commonwealth of Virginia to protect and monitor the health and status of the bank. Violations to the easement for the nutrient bank should initially be enforced by the Sponsor, but if the violations continue, the Commonwealth will step in with enforcement and penalties.

The surveyors at Land Design Consultants created detailed drawings [link to drawings] of the entire golf course to identify the acreage being converted from “Urban Pervious” (the land use designation for golf course operations) to either “Fallow” or “Forest” use. There were some areas identified as “Mixed Open” which were also converted to “Forest.” The remaining areas were either already forested, water, or paved; and were therefore, unable to be converted with new trees and would not receive any credits.

The land was planted with young sycamores, white oak, red maple, and native pine trees in the spring of 2019. In September 2019, DEQ approved the Implementation Plan [link to the plan] , which is dated 1 August 2019, and the restrictive covenants associated with it were filed with the County.

What are the HOA’s responsibilities with the Nutrient Bank?

The HOA’s responsibilities are chiefly:

·        Do not damage or kill the new trees planted by the Sponsor,

·        Do not use fertilizers within the nutrient bank,

·        Do not introduce invasive, non-native plants into the nutrient bank, and

·        Allow the Sponsor access to the property to monitor the nutrient bank.

It is the Sponsor’s responsibility to maintain the new trees. The nutrient bank requires a certain tree density. When the saplings were planted, they were planted in greater numbers assuming there would be some natural losses. If natural damage or die-off occurs, for example from a hurricane, then Conservation Plus will plant replacement trees to maintain the density. Conservation Plus may also come in at some point and thin out unhealthy or excess trees. Note that if the HOA or a homeowner kills, damages or removes trees, the HOA or homeowner will be held libel to replace them.

But why does it look like “weeds”?

As the young trees grow and the former fairways slowly transition from grass to forest, there are stages over which different plants take hold. This process is called natural succession, and it takes many years. Initially, grasses will grow taller and become mixed with woody shrubs. In general, this is followed by young trees taking hold through natural seeding, but because young saplings were planted as part of the nutrient bank, the timeline toward moving into the forest stage will be shorted all across Virginia Oaks. The young trees may appear to be hidden among the grasses and brush, but they are there, and most are growing well.

What if you want to trim or mow the area behind your house?

Most owners in Virginia Oaks purchased property along a manicured golf course, so for some residents this natural succession process may look less than ideal. If you wish to trim, mow, plant flowers or do other maintenance within the nutrient bank area behind your home, you will need permission from the Virginia Oaks Design Review Committee (DRC) and the Nutrient Bank Sponsor. This can be obtained by completing an Adopted Area Maintenance Application and submitting it to the DRC. For the proposed maintenance, the DRC will review your proposal, and if it meets DRC guidelines, will forward it to the Sponsor for site inspection and final determination. Even with permission to adopt the area, you will not be allowed to cut or destroy trees, use fertilizers, or plant invasive, non-native species.   If the DRC or the Sponsor later discover that you are not following the policies, or are not complying with what was agreed to in the application, the permission may be rescinded and you will be required to correct the issues or pay to have them corrected. The same is true if you perform maintenance on HOA property without first submitting an Adopted Area Maintenance Application. Destruction of trees or violation of Nutrient Bank restrictions by homeowners, whether deliberate or accidental, may result in fines and penalties imposed by State regulatory agencies such as the DEQ.