[HISTORY: Adopted by the Board of Supervisors of Northumberland County 5-10-1990; amended in its entirety 8-14-2008. Subsequent amendments noted where applicable.]
This chapter shall be known as the "Erosion and Sediment Control Ordinance of Northumberland County, Virginia."
The purpose of this chapter is to prevent degradation of properties, stream channels, water and other natural resources of Northumberland County by establishing requirements for the control of soil erosion, sediment deposition and nonagricultural runoff and by establishing procedures whereby these requirements shall be administered and enforced.
This chapter is authorized by the Code of Virginia, Title 10.1, Chapter 5, Article 4 (§ 10.1-560 et seq.), known as the "Virginia Erosion and Sediment Control Law."
As used in this chapter, unless the context requires a different meaning:
- AGREEMENT IN LIEU OF A PLAN
- A contract between the plan-approving authority and the owner that specifies conservation measures that must be implemented in the construction of a single-family residence; this contract may be executed by the plan-approving authority in lieu of a formal site plan.
- Any person submitting an erosion and sediment control plan for approval, requesting the issuance of a permit, when required, authorizing land-disturbing activities to commence.
- The Virginia Soil and Water Conservation Board.
- CERTIFIED INSPECTOR
- An employee or agent of Northumberland County who:
- CERTIFIED PLAN REVIEWER
- An employee or agent of Northumberland County who:
- A. Holds a certificate of competence from the Board in the area of plan review;
- B. Is enrolled in the Board's training program for plan review and successfully completes such program within one year after enrollment; or
- C. Is licensed as a professional engineer, architect, certified landscape architect or land surveyor pursuant to Article 1 of Chapter 4 of Title 54.1 (§ 54.1-400 et seq.) of the Code of Virginia.
- CERTIFIED PROGRAM ADMINISTRATOR
- An employee or agent of Northumberland County who:
- CHESAPEAKE BAY PRESERVATION AREA
- Any land designated by a local government pursuant to Part III of the Chesapeake Bay Preservation Area Designation and Management Regulations and § 10.1-2107 of the Code of Virginia. A Chesapeake Bay Preservation Area shall consist of a Resource Protection Area and a Resource Management Area.
- Any activity which removes the vegetative ground cover, including but not limited to the removal, root mat removal and/or topsoil removal.
- The County of Northumberland.
- The Department of Conservation and Recreation.
- A tract of land developed or to be developed as a single unit under single ownership or unified control which is to be used for any business or industrial purpose or is to contain three or more residential dwelling units.
- The Director of the Department of Conservation and Recreation.
- DISTRICT or SOIL AND WATER CONSERVATION DISTRICT
- The Northern Neck Soil and Water Conservation District, a political subdivision of the commonwealth organized in accordance with Title 21, Chapter 1, of the Virginia Code.
- EROSION AND SEDIMENT CONTROL PLAN or PLAN
- A document containing material for the conservation of soil and water resources of a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory, management information with needed interpretations and a record of decisions contributing to conservation treatment. The plan shall contain all major conservation decisions and all information deemed necessary by the plan-approving authority to assure that the entire unit or units of land will be so treated to achieve the conservation objectives set forth in this chapter.
- EROSION IMPACT AREA
- An area of land not associated with current land-disturbing activity but subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into state waters. This definition shall not apply to any lot or parcel of land 10,000 square feet or less used for residential purposes or to shorelines where the erosion results from wave action or other coastal processes.
- Any digging, scooping or other methods of removing earth materials.
- Any depositing or stockpiling of earth materials.
- GOVERNING BODY
- The Board of Supervisors of Northumberland County, Virginia.
- Any excavating or filling of earth materials, or any combination thereof, including the land in its excavated or filled condition.
- LAND-DISTURBING ACTIVITY
- Any land change which may result in soil erosion from water or wind and the movement of sediments into state waters or onto lands in the commonwealth, including but not limited to clearing, grading, excavating, transporting and filling of land, except that the term shall not include:
- A. Minor land-disturbing activities, such as home gardens and individual home landscaping, repairs and maintenance work;
- B. Individual service connections;
- C. Installation, maintenance or repair of any underground public utility lines when such activity occurs on an existing hard-surfaced road, street or sidewalk, provided that the land-disturbing activity is confined to the area of the road, street or sidewalk which is hard-surfaced;
- D. Septic tank lines or drainage fields, unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system;
- E. Surface or deep mining;
- F. Exploration or drilling for oil and/or including the well site, roads, feeder lines and off-site disposal areas;
- G. Tilling, planting or harvesting of agricultural, horticultural or forest crops or livestock feedlot operations, including engineering operations as follows: construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds not required to comply with the Dam Safety Act, Article 2 (§ 10.1-604 et seq.) of Chapter 6 of the Code of Virginia, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage and land irrigation. However, this exception shall not apply to the harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (§ 10.1-1100 et seq.) of the Code of Virginia or is converted to bona fide agricultural or improved pasture use as described in Subsection B of § 10.1-1163;
- H. Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities and other related structures and facilities of a railroad company;
- I. Disturbed land areas of less than 2,500 square feet in size;
- J. Installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles;
- K. Shoreline erosion control projects on tidal waters when the projects are approved by the Northumberland County Wetlands Board, the Marine Resources Commission or the United States Army Corps of Engineers; however, any associated land that is disturbed outside of this exempted area shall remain subject to this chapter; and
- L. Emergency work to protect life, limb or property and emergency repairs; however, if the land-disturbing activity would have required an approved erosion and sediment control plan if the activity were not an emergency, then the land area disturbed shall be shaped and stabilized in accordance with the requirements of the plan-approving authority.
- LAND-DISTURBING PERMIT
- A permit issued by the County of Northumberland for the clearing, filling, excavating, grading or transporting of land or for any combination thereof or for any purpose set forth herein.
- LOCAL EROSION AND SEDIMENT CONTROL PROGRAM or LOCAL CONTROL PROGRAM
- An outline of the various methods employed by Northumberland County to regulate land-disturbing activities and thereby minimize erosion and sedimentation in compliance with the state program and may include such items as local ordinances, policies and guidelines, technical materials, inspection, enforcement, and evaluation.
- NATURAL CHANNEL DESIGN CONCEPTS
- The utilization of engineering analysis and fluvial geomorphic processes to create, rehabilitate, restore, or stabilize an open conveyance system for the purpose of creating or recreating a stream that conveys its bankfull storm event within its banks and allows larger flows to access its bankfull bench and its floodplain.
- The owner or owners of the freehold of the premises or lesser estate therein, a mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee or other person, firm or corporation in control of a property.
- PEAK FLOW RATE
- The maximum instantaneous flow from a given storm condition at a particular location.
- The person to whom the permit authorizing land-disturbing activities is issued or the person who certifies that the approved erosion and sediment control plan will be followed.
- Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town or other political subdivision of the commonwealth, any interstate body or any other legal entity.
- PLAN-APPROVING AUTHORITY
- The plan-approving authority responsible for the administration of this chapter shall be the Zoning Administrator or designee.
- PROGRAM AUTHORITY
- The governing body which has adopted a soil erosion and sediment control program that has been approved by the Board.
- RESPONSIBLE LAND DISTURBER
- An individual from the project or development team who will be in charge of and responsible for carrying out a land-disturbing activity covered by an approved plan or agreement in lieu of a plan, who:
- A. Holds a responsible land disturber certificate of competence,
- B. Holds a current certificate of competence from the Board in the areas of combined administration, program administration, inspection, or plan review;
- C. Holds a current contractor certificate of competence for erosion and sediment control; or
- D. Is licensed in Virginia as a professional engineer, architect, certified landscape architect or land surveyor pursuant to Article 1 of Chapter 4 of Title 54.1 (§ 54.1-400 et seq.) of the Code of Virginia.
- RUNOFF VOLUME
- The volume of water that runs off the land development project from a prescribed storm event.
- SINGLE-FAMILY RESIDENCE
- A noncommercial dwelling that is occupied exclusively by one family.
- STATE EROSION AND SEDIMENT CONTROL PROGRAM or STATE PROGRAM
- The program administered by the Virginia Soil and Water Conservation Board pursuant to the Code of Virginia, including regulations designed to minimize erosion and sedimentation.
- STATE WATERS
- All waters on the surface and under the ground wholly or partially within or bordering the commonwealth or within its jurisdiction.
- Any moving of earth materials from one place to another, other than such movement incidental to grading, when such a movement results in destroying the vegetative ground cover either by tracking or the buildup of earth materials to the extent that erosion and sedimentation will result from the soil or earth materials over which such transporting occurs.
- WATER QUALITY VOLUME
- The volume equal to the first 1/2 inch of runoff multiplied by the impervious surface of the land development project.
Pursuant to § 10.1-562 of the Code of Virginia, the governing body hereby adopts the regulations, references, guidelines, standards and specifications promulgated by the Board and the Chesapeake Bay Preservation Area Designation and Management Regulations for the effective control of soil erosion and sediment deposition to prevent the unreasonable degradation of properties, stream channels, waters and other natural resources. Said regulations, references, guidelines, standards and specifications for erosion and sediment control are included in but not limited to the "Virginia Erosion and Sediment Control Regulations" and the Virginia Erosion and Sediment Control Handbook, as amended.
Before adopting or revising regulations, the governing body shall give due notice and conduct a public hearing on the proposed or revised regulations, except that a public hearing shall not be required when the governing body is amending its program to conform to revisions in the state program. However, a public hearing shall be held if the governing body proposes or revises regulations that are more stringent than the state program. In addition, in accordance with § 10.1-561 of the Code of Virginia, stream restoration and relocation projects that incorporate natural channel design concepts are not man-made channels and shall be exempt from any flow rate capacity and velocity requirements for natural or man-made channels. In accordance with § 10.1-561 of the Code of Virginia, any land-disturbing activity that provides for stormwater management intended to address any flow rate capacity and velocity requirements for natural or man-made channels shall satisfy the flow rate capacity and velocity requirements for natural or man-made channels if the practices are designed to:
Detain the water quality volume and to release it over 48 hours;
Detain and release over a twenty-four-hour period the expected rainfall resulting from the one-year, twenty-four-hour storm; and
Reduce the allowable peak flow rate resulting from the 1.5-, two-, and ten-year, twenty-four-hour storms to a level that is less than or equal to the peak flow rate from the site assuming it was in a good forested condition, achieved through multiplication of the forested peak flow rate by a reduction factor that is equal to the runoff volume from the site when it was in a good forested condition divided by the runoff volume from the site in its proposed condition, and shall be exempt from any flow rate capacity and velocity requirements for natural or man-made channels.
Pursuant to § 10.1-561.1 of the Code of Virginia, an erosion control plan shall not be approved until it is reviewed by a certified plan reviewer. Inspections of land-disturbing activities shall be conducted by a certified inspector. The Erosion Control Program of the governing body shall contain a certified program administrator, a certified plan reviewer, and a certified inspector, who may be the same person.
The governing body hereby designates the Zoning Administrator as the plan-approving authority.
The program and regulations provided for in this chapter shall be made available for public inspection at the Office of Building and Zoning.
Except as provided herein, no person may engage in any land-disturbing activity until he or she has submitted to the Office of Building and Zoning for Northumberland County an erosion and sediment control plan for the land-disturbing activity and such plan has been approved by the plan-approving authority. Where land-disturbing activities involve lands under the jurisdiction of more than one local control program, an erosion and sediment control plan, at the option of the applicant, may be submitted to the Board for review and approval rather than to each jurisdiction concerned. Where the land-disturbing activity results from the construction of a single-family residence, an agreement in lieu of a plan may be substituted for an erosion and sediment control plan if executed by the plan-approving authority.
The standards contained within the "Virginia Erosion and Sediment Control Regulations," the Virginia Erosion and Sediment Control Handbook as amended and the Chesapeake Bay Preservation Area Designation and Management Regulations are to be used by the applicant when making a submittal under the provisions of this chapter and in the preparation of an erosion and sediment control plan. The plan-approving authority, in considering the adequacy of a submitted plan, shall be guided by the same standards, regulations and guidelines. When the standards vary between the publications, the state regulations shall take precedence.
The plan-approving authority shall review conservation plans submitted to it and grant written approval within 45 days of the receipt of the plan if it determines that the plan meets the requirements of the Board's regulations and if the person responsible for carrying out the plan certifies that he will properly perform the conservation measures included in the plan and will conform to the provisions of this article. In addition, as a prerequisite to engaging in the land-disturbing activities shown on the approved plan, the person responsible for carrying out the plan shall provide the name of an individual holding a certificate of competence to the program authority, as provided by § 10.1-561, of the Virginia Erosion and Sediment Control Law, who will be in charge of and responsible for carrying out the land-disturbing activity. Failure to provide the name of an individual holding a certificate of competence prior to engaging in land-disturbing activities may result in revocation of the approval of the plan, and the person responsible for carrying out the plan shall be subject to the penalties provided in this chapter. However, the plan-approving authority may waive the certificate of competence requirement for an agreement in lieu of a plan for construction of a single-family residence. If a violation occurs during the land-disturbing activity, then the person responsible for carrying out the agreement in lieu of a plan shall correct the violation and provide the name of an individual holding a certificate of competence, as provided by § 10.1-561 of the Virginia Erosion and Sediment Control Law. Failure to provide the name of an individual holding a certificate of competence shall be a violation of this chapter.
The plan shall be acted upon within 45 days from receipt thereof by either approving said plan in writing or by disapproving said plan in writing and giving specific reasons for its disapproval. When the plan is determined to be inadequate, the plan-approving authority shall specify such modifications, terms and conditions that will permit approval of the plan. If no action is taken within 45 days, the plan shall be deemed approved and the person authorized to proceed with the proposed activity.
An approved plan may be changed by the plan-approving authority when:
The inspection reveals that the plan is inadequate to satisfy applicable regulations; or
The person responsible for carrying out the plan finds that because of changed circumstances or for other reasons the approved plan cannot be effectively carried out, and proposed amendments to the plan, consistent with the requirements of this chapter, are agreed to by the plan-approving authority and the person responsible for carrying out the plans.
Variances. The plan-approving authority may waive or modify any of the standards that are deemed to be too restrictive for site conditions, by granting a variance. A variance may be granted under these conditions:
At the time of plan submission, an applicant may request a variance to become part of the approved erosion and sediment control plan. The applicant shall explain the reasons for requesting variances in writing. Specific variances which are allowed by the plan-approving authority shall be documented in the plan.
During construction, the person responsible for implementing the approved plan may request a variance in writing from the plan-approving authority. The plan-approving authority shall respond in writing either approving or disapproving such a request. If the plan-approving authority does not approve a variance within 10 days of receipt of the request, the request shall be considered to be disapproved. Following disapproval, the applicant may resubmit a variance request with additional documentation.
In order to prevent further erosion, the governing body may require approval of a plan for any land identified in the local program as an erosion impact area.
When land-disturbing activity will be required of a contractor performing construction work pursuant to a construction contract, the preparation, submission, and approval of an erosion and sediment control plan shall be the responsibility of the owner.
In accordance with the procedure set forth by § 10.1-563E of the Code of Virginia, any person engaging in the creation and operation of wetland mitigation banks in multiple jurisdictions, which have been approved and are operated in accordance with applicable federal and state guidance, laws, or regulations for the establishment, use, and operation of mitigation banks, pursuant to a permit issued by the Department of Environmental Quality, the Marine Resources Commission, or the U.S. Army Corps of Engineers, may, at the option of that person, file general erosion and sediment control specifications for wetland mitigation banks annually with the Board for review and approval consistent with guidelines established by the Board.
State agency projects are exempt from the provisions of this chapter except as provided for in the Code of Virginia, § 10.1-564.
Agencies authorized under any other law to issue grading, building, or other permits for activities involving land-disturbing activities may not issue any such permit unless the applicant submits with his application an approved erosion and sediment control plan and certification that the plan will be followed.
No person may engage in any land-disturbing activity until he has acquired a land-disturbing permit, unless the proposed land-disturbing activity is specifically exempt from the provisions of this chapter, and has paid the fees and posted the required bond.
An administrative fee established under the Code of Northumberland County § 68-1, Schedule of permit and other fees, shall be paid to the Treasurer of Northumberland County at the time of submission of the erosion and sediment control plan.
No land-disturbing permit shall be issued until the applicant submits with his application an approved erosion and sediment control plan and certification that the plan will be followed.
Security for performance.
All applicants for permits shall provide to the governing body a performance bond, cash escrow, or an irrevocable letter of credit acceptable to the Zoning Administrator, to ensure that measures could be taken by the governing body at the applicant's expense should the applicant fail, after proper notice, within the time specified to initiate or maintain appropriate conservation measures required of him by the approved plan as a result of his land-disturbing activity.
The amount of the bond or other security for performance shall not exceed the total of the estimated cost to initiate and maintain appropriate conservation action based on unit price for new public or private sector construction in the locality and a reasonable allowance for estimated administrative costs and inflation which shall not exceed 25% of the cost of the conservation action. Should it be necessary for the governing body to take such conservation action, the governing body may collect from the applicant any costs in excess of the amount of the surety held
Within 60 days of adequate stabilization, as determined by the Office of Building and Zoning in any project or section of a project, such bond, cash escrow or letter of credit, or the unexpended or unobligated portion thereof, shall be either refunded to the applicant or terminated, based upon the percentage of stabilization accomplished in the project or project section. These requirements are in addition to all other provisions relating to the issuance of permits and are not intended to otherwise affect the requirements for such permits.
The governing body may require the person responsible for carrying out the plan to monitor the land-disturbing activity. The person responsible for carrying out the plan will maintain records of these inspections and maintenance, to ensure compliance with the approved plan and to determine whether the measures required in the plan are effective in controlling erosion and sedimentation.
Inspections; notice to comply.
The certified inspector shall periodically inspect the land-disturbing activity in accordance with Section 4VAC50-30-60 of the "Virginia Erosion and Sediment Control Regulations" to ensure compliance with the approved plan and to determine whether the measures required in the plan are effective in controlling erosion and sedimentation.
If the certified inspector determines that there is a failure to comply with the plan, notice shall be served upon the permittee or person responsible for carrying out the plan by registered or certified mail to the address specified in the permit application or in the plan certification or by delivery at the site of the land-disturbing activities to the agent or employee supervising such activities.
The notice shall specify the measures needed to comply with the plan and shall specify the time within which such measures shall be completed. Upon failure to comply within the specified time, the permit may be revoked and the permittee or person responsible for carrying out the plan shall be deemed to be in violation of this chapter and shall be subject to the penalties provided by this chapter.
Upon determination of a violation of this chapter, the certified inspector may, in conjunction with or subsequent to a notice to comply as specified in this chapter, issue an order requiring that all or part of the land-disturbing activities permitted on the site be stopped until the specified corrective measures have been taken.
If land-disturbing activities have commenced without an approved plan, the certified inspector may, in conjunction with or subsequent to a notice to comply as specified in this chapter, issue an order requiring that all of the land-disturbing activities be stopped until an approved plan or any required permits are obtained.
Where the alleged noncompliance is causing or is in imminent danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the commonwealth, or where the land-disturbing activities have commenced without an approved plan or any required permits, such an order may be issued without regard to whether the permittee has been issued a notice to comply as specified in this chapter. Otherwise, such an order may be issued only after the permittee has failed to comply with such a notice to comply.
The order shall be served in the same manner as a notice to comply and shall remain in effect for a period of seven days from the date of service pending application by the enforcing authority or permit holder for appropriate relief to the Circuit Court of Northumberland County.
If the alleged violator has not obtained an approved plan or any required permits within seven days from the date of service of the order, the certified inspector may issue an order to the owner requiring that all construction and other work on the site, other than corrective measures, be stopped until an approved plan and any required permits have been obtained. Such an order shall be served upon the owner by registered or certified mail to the address specified in the permit application or the land records of Northumberland County.
The owner may appeal the issuance of an order to the Circuit Court of Northumberland County.
Any person violating or failing, neglecting or refusing to obey an order issued by the certified inspector may be compelled in a proceeding instituted in the Circuit Court of Northumberland County to obey same and to comply therewith by injunction, mandamus or other appropriate remedy. Upon completion and approval of corrective action or obtaining an approved plan or any required permits, the order shall immediately be lifted.
Nothing in this section shall prevent the certified inspector from taking any other action authorized by this chapter.
Violators of this chapter shall be guilty of a Class I misdemeanor.
Any person who violates any provision of this chapter shall, upon a finding of the District Court of Northumberland County, be assessed a civil penalty. The civil penalty for any one violation shall be not less than $100 nor more than $1,000, except that the civil penalty for commencement of land-disturbing activities without an approved plan shall be $1,000. Each day during which the violation is found to have existed shall constitute a separate offense. In no event shall a series of specified violations arising from the same operative set of facts result in civil penalties which exceed a total of $10,000, except that a series of violations arising from the commencement of land-disturbing activities without an approved plan for any site shall not result in civil penalties which exceed a total of $10,000.
The certified inspector, or the owner of property which has sustained damage or which is in imminent danger of being damaged, may apply to the Circuit Court of Northumberland County to enjoin a violation or a threatened violation of this chapter, without the necessity of showing that an adequate remedy at law does not exist. However, an owner of property shall not apply for injunctive relief unless:
He has notified in writing the person who has violated the local program, and the program authority, that a violation of the local program has caused, or creates a probability of causing, damage to his property; and
Neither the person who has violated the local program nor the program authority has taken corrective action within 15 days to eliminate the conditions which have caused, or create the probability of causing, damage to his property.
In addition to any criminal penalties provided under this chapter, any person who violates any provision of this chapter may be liable to Northumberland County in a civil action for damages.
Without limiting the remedies which may be obtained in this section, any person violating or failing, neglecting, or refusing to obey any injunction, mandamus or other remedy obtained pursuant to this section shall be subject, in the discretion of the court, to a civil penalty not to exceed $2,000 for each violation. A civil action for such violation or failure may be brought by the governing body. Any civil penalties assessed by a court shall be paid into the treasury of Northumberland County, except that where the violator is the locality itself, or its agent, the court shall direct the penalty to be paid into the state treasury.
With the consent of any person who has violated or failed, neglected or refused to obey any regulation or condition of a permit or any provision of this chapter, the governing body may provide for the payment of civil charges for violations in specific sums, not to exceed the limit specified in Subsection E of this section. Such civil charges shall be instead of any appropriate civil penalty which could be imposed under Subsection E.
The Commonwealth's Attorney shall, upon request of the certified inspector or the permit-issuing authority, take legal action to enforce the provisions of this chapter.
Compliance with the provisions of this chapter shall be prima facie evidence in any legal or equitable proceeding for damages caused by erosion, siltation or sedimentation that all requirements of law have been met, and the complaining party must show negligence in order to recover any damages.
Any applicant under the provision of this chapter who is aggrieved by any action of the governing body or its agent in disapproving plans submitted pursuant to this chapter shall have the right to apply for and receive a review of such action by the Northumberland County Board of Supervisors, provided that an appeal is filed within 30 days from the date of the action. Any applicant who seeks an appeal hearing before the Northumberland County Board of Supervisors shall be heard at the next regularly scheduled public hearing, provided that the Board of Supervisors and other involved parties have at least 30 days' prior notice. In reviewing the agent's actions, the Board of Supervisors shall consider evidence and opinions presented by the aggrieved applicant and agent. After considering the evidence and opinions, the Board of Supervisors may affirm, reverse or modify the action. The Board of Supervisor's decision shall be final, subject only to review by the Circuit Court of Northumberland County.
Final decisions of the governing body under this chapter shall be subject to review by the Northumberland County Circuit Court, provided that an appeal is filed within 30 days from the date of any written decision adversely affecting the rights, duties, or privileges of the person engaging in or proposing to engage in land-disturbing activities.