[HISTORY: Adopted by the Board of Supervisors of Northumberland County 12-8-1982; amended in its entirety at time of adoption of Code (see
Ch. 1, General Provisions, Art. I). Subsequent amendments noted where applicable.]
The Board of Supervisors of Northumberland County, acting pursuant to
Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 of the Code of Virginia,
adopts this chapter regulating the use and development of wetlands.
As used in this chapter, unless the context requires a different meaning,
the following terms shall have the meanings indicated:
The following, as shown on the United States Geological Survey Quadrangle
Sheets for Virginia Beach, North Bay and Knotts Island: Back Bay north of
the Virginia-North Carolina state line; Capsies Creek north of the Virginia-North
Carolina state line; Deal Creek; Devil Creek; Nawney Creek; Redhead Bay, Sand
Bay, Shipps Bay, North Bay and the waters connecting them; Beggars Bridge
Creek; Muddy Creek; Ashville Bridge Creek; Hells Point Creek; Black Gut; and
all coves, ponds and natural waterways adjacent to or connecting with the
above-named bodies of water.
The Virginia Marine Resources Commission.
The Commissioner of Marine Resources.
Any of the services provided by the Northumberland County to its
citizens for the purpose of maintaining this county, including but not limited
to such services as constructing, repairing and maintaining roads; providing
sewage facilities and streetlights; supplying and treating water; and constructing
public buildings.
Unvegetated lands lying contiguous to mean low water and between
mean low water and mean high water, including those unvegetated areas of Back
Bay and its tributaries and the North Landing River and its tributaries subject
to flooding by normal and wind tides but not hurricane or tropical storm tides.
The following, as shown on the United States Geological Survey Quadrangle
Sheets for Pleasant Ridge, Creeds and Fentress: the North Landing River from
the Virginia-North Carolina line to Virginia Highway 165 at North Landing
Bridge; the Chesapeake and Albemarle Canal from Virginia Highway 165 at North
Landing Bridge to the locks at Great Bridge; and all named and unnamed streams,
creeks and rivers flowing into the North Landing River and the Chesapeake
and Albemarle Canal except West Neck Creek north of Indian River Road, Pocaty
River west of Blackwater Road, Blackwater River west of its forks located
at a point approximately 6,400 feet due west of the point where Blackwater
Road crosses the Blackwater River at the Village of Blackwater and Millbank
Creek west of Blackwater Road.
Any individual, corporation, partnership, association, company, business,
trust, joint venture or other legal entity.
Lands lying between and contiguous to mean low water and an elevation
above mean low water equal to the factor 1 1/2 times the mean tide range
at the site of the proposed project in the county, city or town in question
and upon which is growing any of the following species: saltmarsh cordgrass
(Spartina alterniflora), saltmeadow hay (Spartina patens), saltgrass (Distichlis
spicata), black needlerush (Juncus roemerianus), saltwort (Salicornia spp.),
sea lavender (Limonium spp.), marsh elder (Iva frutescens), groundsel bush
(Baccharis halimifolia), wax myrtle (Myrica sp.), sea oxeye (Borrichia frutescens),
arrow arum (Peltandra virginica), pickerelweed (Pontederia cordata), big cordgrass
(Spartinacynosuroides), rice cutgrass (Leersia oryzoides), wildrice (Zizania
aquatica), bulrush (Scirpus validus), spikerush (Eleocharis sp.), sea rocket
(Cakile edentula), southern wildrice (Zizaniopsis miliacea), cattail (Typha
spp.), three-square (Scirpus spp.), buttonush (Cephalanthus occidentalis),
bald cypress (Taxodium distichum), black gum (Nyssa sylvatica), tupelo (Nyssa
aquatica), dock (Rumex spp.), yellow pond lily (Nuphar sp.), marsh fleabane
(Pluchea purpurascens), royal fern (Osmunda regalis), marsh hibiscus (Hibiscus
moscheutos), beggar's tick (Bidens sp.), smartweed (Polygonum sp.), arrowhead
(Sagittaria spp.), sweet flag (Acorus calamus), water hemp (Amaranthus cannabinus),
reed grass (Phragmites communis) or switch grass (Panicum virgatum).
All marshes subject to flooding by normal and wind tides but not
hurricane or tropical storm tides and upon which is growing any of the following
species: saltmarsh cordgrass (Spartina alterniflora), saltmeadow hay (Spartina
patens), black needlerush (Juncus roemerianus), marsh elder (Iva frutescens),
groundsel bush (Baccharis halimifolia), wax myrtle (Myrica sp.), arrow arum
(Peltandra virginica), pickerelweed (Pontederia cordata), big cordgrass (Spartina
cynosuroides), rice cutgrass (Leersia oryzoides), wildrice (Zizania aquatica),
bulrush (Scirpus validus), spikerush (Eleocharis sp.), cattail (Typha spp.),
three-square (Scirpus spp.), dock (Rumex sp.), smartweed (Polygonum sp.),
yellow pond lily (Nuphar sp.), royal fern (Osmunda regalis), marsh hibiscus
(Hibiscus moscheutos), beggar's tick (Bidens sp.), arrowhead (Sagittaria
sp.), water hemp (Amaranthus cannabinus), reed grass (Phragmites communis)
or switch grass (Panicum virgatum).
Both vegetated and nonvegetated wetlands.
A board created pursuant to § 28.2-1303 of the Code of
Virginia.
The following uses of and activities in wetlands are authorized if otherwise
permitted by law:
A.
The construction and maintenance of noncommercial catwalks,
piers, boathouses, boat shelters, fences, duckblinds, wildlife management
shelters, footbridges, observation decks and shelters and other similar structures,
provided that such structures are so constructed on pilings as to permit the
reasonably unobstructed flow of the tide and preserve the natural contour
of the wetlands;
B.
The cultivation and harvesting of shellfish and worms
for bait;
C.
Noncommercial outdoor recreational activities, including hiking, boating, trapping, hunting, fishing, shellfishing, horseback riding, swimming, skeet and trap shooting and shooting on shooting preserves, provided that no structure shall be constructed except as permitted in Subsection A;
D.
Other outdoor recreational activities, provided that
they do not impair the natural functions or alter the natural contour of the
wetlands;
E.
Grazing, haying and cultivating and harvesting agricultural,
forestry or horticultural products;
F.
Conservation, repletion and research activities of the
Commission, the Virginia Institute of Marine Science, the Department of Game
and Inland Fisheries and other conservation-related agencies;
G.
The construction or maintenance of aids to navigation
which are authorized by governmental authority;
H.
Emergency measures decreed by any duly appointed health
officer of a governmental subdivision acting to protect the public health;
I.
The normal maintenance and repair of, or addition to,
presently existing roads, highways, railroad beds or facilities abutting on
or crossing wetlands, provided that no waterway is altered and no additional
wetlands are covered;
J.
Governmental activity in wetlands owned or leased by
the commonwealth or a political subdivision thereof; and
K.
The normal maintenance of man-made drainage ditches,
provided that no additional wetlands are covered. This subsection does not
authorize the construction of any drainage ditch.
A.
Any person who desires to use or develop any wetland within this county other than for the purpose of conducting the activities specified in § 144-3 shall first file an application for a permit directly with the Wetlands Board or with the Commission.
B.
The permit application shall include the following:
(1)
The name and address of the applicant;
(2)
A detailed description of the proposed activities;
(3)
A map, drawn to an appropriate and uniform scale, showing
the area of wetlands directly affected, the location of the proposed work
thereon, the area of existing and proposed fill and excavation, the location,
width, depth and length of any proposed channel and disposal area and the
location of all existing and proposed structures, sewage collection and treatment
facilities, utility installations, roadways and other related appurtenances
or facilities, including those on adjacent uplands;
(4)
A description of the type of equipment to be used and
the means of equipment access to the activity site;
(5)
The names and addresses of owners of record of adjacent
land and known claimants of water rights in or adjacent to the wetland of
whom the applicant has notice;
(6)
An estimate of cost;
(7)
The primary purpose of the project;
(8)
Any secondary purposes of the project, including further
projects;
(9)
The public benefit to be derived from the proposed project;
(10)
A complete description of measures to be taken during
and after the alteration to reduce detrimental off-site effects;
(11)
The completion date of the proposed work, project or
structure; and
(12)
Such additional materials and documentation as the Wetlands
Board may require.
C.
A nonrefundable processing fee shall accompany each permit
application. The fee shall be set by the applicable governing body with due
regard for the services to be rendered, including the time, skill and administrator's
expense involved.
All applications, maps and documents submitted shall be open for public inspection at the office designated by the applicable governing body and specified in the advertisement for public hearing required under § 144-6 of this chapter.
Not later than 60 days after receipt of a complete application, the
Wetlands Board shall hold a public hearing on the application. The applicant,
local governing body, Commissioner, owner of record of any land adjacent to
the wetlands in question, known claimants of water rights in or adjacent to
the wetlands in question, the Virginia Institute of Marine Science, the Department
of Game and Inland Fisheries, the Water Control Board, the Department of Transportation
and any governmental agency expressing an interest in the application shall
be notified of the hearing. The Board shall mail these notices not less than
20 days prior to the date set for the hearing. The Wetlands Board shall also
cause notice of the hearing to be published at least once a week for two weeks
prior to such hearing in a newspaper of general circulation in this county.
The published notice shall specify the place or places within this county
where copies of the application may be examined. The costs of publication
shall be paid by the applicant.
A.
Approval of a permit application shall require the affirmative
vote of three members of a five-member board or four members of a seven-member
board.
B.
The Chairperson of the Board, or in his or her absence
the Acting Chairperson, may administer oaths and compel the attendance of
witnesses. Any person may testify at the public hearing. Each witness at the
hearing may submit a concise written statement of his or her testimony. The
Board shall make a record of the proceeding, which shall include the application,
any written statements of witnesses, a summary of statements of all witnesses,
the findings and decision of the Board and the rationale for the decision.
C.
The Board shall make its determination within 30 days
of the hearing. If the Board fails to act within that time, the application
shall be deemed approved. Within 48 hours of its determination, the Board
shall notify the applicant and the Commissioner of its determination. If the
Board fails to make a determination within the thirty-day period, it shall
promptly notify the applicant and the Commission that the application is deemed
approved. For purposes of this section, "act" means taking a vote on the application.
If the application receives less than four affirmative votes from a seven-member
board or less than three affirmative votes from a five-member board, the permit
shall be denied.
D.
If the Board's decision is reviewed or appealed, the Board shall transmit the record of its hearing to the Commissioner. Upon a final determination by the Commission, the record shall be returned to the Board. The record shall be open for public inspection at the same office as was designated under § 144-5 of this chapter.
The Board may require a reasonable bond or letter of credit in an amount
and with surety and conditions satisfactory to it, securing to the commonwealth
compliance with the conditions and limitations set forth in the permit. The
Board may, after a hearing held pursuant to this chapter, suspend or revoke
a permit if the applicant has failed to comply with any of the conditions
or limitations set forth in the permit or has exceeded the scope of the work
described in the application. The Board may, after a hearing, suspend a permit
if the applicant fails to comply with the terms and conditions set forth in
the application.
In fulfilling its responsibilities under this chapter, the Board shall
preserve and prevent the despoliation and destruction of wetlands within its
jurisdiction while accommodating necessary economic development in a manner
consistent with wetlands preservation.
A.
In deciding whether to grant, grant in modified form
or deny a permit, the Board shall consider the following:
(1)
The testimony of any person in support of or in opposition
to the permit application;
(2)
The impact of the proposed development on the public
health, safety and welfare; and
(3)
The proposed development's conformance with standards
prescribed in § 28.2-1308 of the Code of Virginia and guidelines
promulgated pursuant to § 28.2-1301 of the Code of Virginia.
B.
The Board shall grant the permit if all of the following
criteria are met:
(1)
The anticipated public and private benefit of the proposed
activity exceeds its anticipated public and private detriment.
(2)
The proposed development conforms with the standards
prescribed in § 28.2-1308 of the Code of Virginia and guidelines
promulgated pursuant to § 28.2-1301 of the Code of Virginia.
(3)
The proposed activity does not violate the purposes and
intent of this chapter or Chapter 13 (§ 28.2-1300 et seq.) of Title
28.2 of the Code of Virginia.
The permit shall be in writing, signed by the Chairperson of the Board
or his or her authorized representative and notarized. A copy of the permit
shall be transmitted to the Commissioner.
No permit shall be granted without an expiration date established by
the Board. Upon proper application, the Board may extend the permit expiration
date.
No permit granted by a Wetlands Board shall in any way affect the applicable
zoning and land use ordinances of this county or the right of any person to
seek compensation for any injury in fact incurred by him or her because of
the proposed activity.
