[HISTORY: Adopted by the Board of Supervisors of Mathews County 11-9-1982; 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 Mathews 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:
- BACK BAY AND ITS TRIBUTARIES
- 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.
- GOVERNMENTAL ACTIVITY
- Any of the services provided by Mathews 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.
- NONVEGETATED WETLANDS
- 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.
- NORTH LANDING RIVER AND ITS TRIBUTARIES
- 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.
- VEGETATED WETLANDS
- 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).
- VEGETATED WETLANDS OF BACK BAY AND ITS TRIBUTARIES or VEGETATED WETLANDS OF THE NORTH LANDING RIVER AND ITS TRIBUTARIES
- 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.
- WETLANDS BOARD or BOARD
- 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:
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;
The cultivation and harvesting of shellfish and worms for bait;
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;
Other outdoor recreational activities, provided that they do not impair the natural functions or alter the natural contour of the wetlands;
Grazing, haying and cultivating and harvesting agricultural, forestry or horticultural products;
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;
The construction or maintenance of aids to navigation which are authorized by governmental authority;
Emergency measures decreed by any duly appointed health officer of a governmental subdivision acting to protect the public health;
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;
Governmental activity in wetlands owned or leased by the commonwealth or a political subdivision thereof; and
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.
Any person who desires to use or develop any wetland within this county other than for the purpose of conducting the activities specified in § 166-3 shall first file an application for a permit directly with the Wetlands Board or with the Commission.
The permit application shall include the following:
The name and address of the applicant;
A detailed description of the proposed activities;
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;
A description of the type of equipment to be used and the means of equipment access to the activity site;
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;
An estimate of cost;
The primary purpose of the project;
Any secondary purposes of the project, including further projects;
The public benefit to be derived from the proposed project;
A complete description of measures to be taken during and after the alteration to reduce detrimental off-site effects;
The completion date of the proposed work, project or structure; and
Such additional materials and documentation as the Wetlands Board may require.
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 § 166-6 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.
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.
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.
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.
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 § 166-5 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.
In deciding whether to grant, grant in modified form or deny a permit, the Board shall consider the following:
The testimony of any person in support of or in opposition to the permit application;
The impact of the proposed development on the public health, safety and welfare; and
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.
The Board shall grant the permit if all of the following criteria are met:
The anticipated public and private benefit of the proposed activity exceeds its anticipated public and private detriment.
The proposed development conforms to 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.
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.
There are hereby established two separate funds within the County to be entitled the "Wetlands Violation Fund" and the "Wetlands Compensation Fund."
The Wetlands Violation Fund shall consist of those monies collected as civil penalties for wetlands violations imposed pursuant to § 28.2-1320(A) of the Code of Virginia when directed by the Court and civil charges ordered by the Wetlands Board pursuant to § 28.2-1320(B) of the Code of Virginia. The monies collected in this fund may be used for the purpose of abating environmental damage to or restoring wetlands therein, in such a manner as the court may, by order, direct, except that where the violator is the County itself and the court therefore otherwise directs.
The Wetlands Compensation Fund shall consist of the monies collected as in-lieu fees for the mitigation of tidal wetlands as the result of an agreed upon permit condition by the Wetlands Board or the Commission of Marine Resources and other monies received for the purpose of tidal wetlands restoration and creation or other purposes as allowed by law. When the balance of the Compensation Fund becomes sufficient to make the purchase of credits in an approved compensatory wetlands mitigation bank or the creation of tidal wetlands practical, monies from the Fund may be used for such purposes upon written recommendation to the Treasurer by the Wetlands Board and approval of the County Administrator.
Editor's Note: At a meeting held 4-25-2006, the Board of Supervisors voted to set the rate of $9 per square foot to be charged as the in-lieu fee for the unavoidable filling of vegetated tital wetlands.