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.
COMMISSION
The Virginia Marine Resources Commission.
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.
PERSON
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).
WETLANDS
Both vegetated and nonvegetated wetlands.
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.
L. The construction of living shoreline projects authorized pursuant to a general permit developed under subsection
B of § 28.2-104.1 of the Code of Virginia.
[Added 11-22-2021]
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.
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.
[Amended 11-22-2021]
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 and any standards set by the Commonwealth in addition
to those identified in § 28.2-1308 of the Code of Virginia
and guidelines promulgate pursuant to § 28.2-1301 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.
[Added 4-25-2006]
There are hereby established two separate funds
within the County to be entitled the "Wetlands Violation Fund" and
the "Wetlands Compensation Fund."
A. 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.
B. 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.