[HISTORY: Adopted by the City Council of the City of Colonial Heights 8-10-1976 by Ord. No. 76-27; amended in its entirety 3-10-2009 by Ord. No. 09-2. Amendments noted where applicable.]
This ordinance shall be known as the "Erosion and Sediment Control Ordinance of the City of Colonial Heights." The purpose of this chapter is to prevent degradation of properties, stream channels, waters and other natural resources of the City of Colonial Heights 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, the following definitions shall apply:
- AGREEMENT IN LIEU OF A PLAN
- Means 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.
- Means any person submitting an erosion and sediment control plan for approval or requesting the issuance of a permit, when required, authorizing land-disturbing activities to commence.
- Means the Virginia Soil and Water Conservation Board.
- CERTIFIED INSPECTOR
- Means an employee or agent of a program authority who (i) holds a certificate of competence from the Board in the area of project inspection or (ii) is enrolled in the Board's training program for project inspection and successfully completes such program within one year after enrollment.
- CERTIFIED PLAN REVIEWER
- Means an employee or agent of a program authority who (i) holds a certificate of competence from the Board in the area of plan review, (ii) is enrolled in the Board's training program for plan review and successfully completes such program within one year after enrollment, or (iii) is licensed as a professional engineer, architect, certified landscape architect or land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia.
- CERTIFIED PROGRAM ADMINISTRATOR
- Means an employee or agent of a program authority who (i) holds a certificate of competence from the Board in the area of program administration or (ii) is enrolled in the Board's training program for program administration and successfully completes such program within one year after enrollment.
- Means the City of Colonial Heights.
- Any activity which removes the vegetative ground cover including, but not limited to, root mat removal or top soil removal.
- Means the Department of Conservation and Recreation.
- Means 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.
- Means the Director of the Department of Conservation and Recreation.
- DISTRICT or SOIL AND WATER CONSERVATION DISTRICT
- Refers to the James Soil and Water Conservation District.
- EROSION AND SEDIMENT CONTROL PLAN or PLAN
- Means 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, and 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.
- EROSION IMPACT AREA
- Means 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 of 2,500 square feet or less used for residential purposes, or to shorelines where the erosion results from wave action or other coastal processes.
- Means any digging, scooping or other methods of removing earth materials.
- Means any depositing or stockpiling of earth materials.
- Means any excavating or filling of earth material or any combination thereof, including the land in its excavated or filled conditions.
- LAND-DISTURBING ACTIVITY
- Means 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:
- LAND-DISTURBING PERMIT
- Means a permit issued by the City of Colonial Heights for the clearing, filling, excavating, grading, transporting of land, any combination thereof, or for any purpose set forth herein.
- LOCAL EROSION AND SEDIMENT CONTROL PROGRAM or LOCAL CONTROL PROGRAM
- Means of the various methods employed by the City of Colonial Heights 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
- Means 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 bank full storm event within its banks and allows larger flows to access its bank full bench and its floodplain.
- Means 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
- Means the maximum instantaneous flow from a given storm condition at a particular location.
- Means 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.
- Means 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
- Means the Department of Public Works.
- PROGRAM AUTHORITY
- Means the City of Colonial Heights.
- RESPONSIBLE LAND DISTURBER
- Means 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 (i) holds a Responsible Land Disturber certificate of competence, (ii) holds a current certificate of competence from the Board in the areas of Combined Administration, Program Administration, Inspection, or Plan Review, (iii) holds a current Contractor certificate of competence for erosion and sediment control, or (iv) is licensed in Virginia as a professional engineer, architect, certified landscape architect or land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the Code of Virginia.
- RUNOFF VOLUME
- Means the volume of water that runs off the land development project from a prescribed storm event.
- SINGLE-FAMILY RESIDENCE
- Means a noncommercial dwelling that is occupied exclusively by one family.
- STATE EROSION AND SEDIMENT CONTROL PROGRAM or STATE PROGRAM
- Means 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
- Means all waters on the surface and under the ground wholly or partially within or bordering the Commonwealth or within its jurisdiction.
- Means any moving of earth materials from one place to another place other than such movement incidental to grading, when such 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
- Means the volume equal to the first one-half inch of runoff multiplied by the impervious surface of the land development project.
Pursuant to § 10.1-562 of the Code of Virginia, the City of Colonial Heights hereby adopts the regulations, references, guidelines, standards and specifications promulgated by the Board for the effective control of soil erosion and sediment deposition to prevent the unreasonable degradation of properties, stream channels, waters and other natural resources. Such 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 City 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 City is amending its program to conform to revisions in the state program. However, a public hearing shall be held if the City proposes or revises regulations that are more stringent than the state program.
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 City's Erosion Control Program shall contain a certified program administrator, a certified plan reviewer, and a certified inspector, who may be the same person.
The City hereby designates the Department of Public Works 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 the Department of Public Works.
Except as provided herein, no person may engage in any land-disturbing activity until he or she has submitted to the Department of Public Works for the City 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," and the Virginia Erosion and Sediment Control Handbook as amended are to be used by the applicant when making a submittal under the provisions of this ordinance 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 ordinance.
The plan shall be acted upon within 45 days from receipt thereof by either approving the plan in writing or by disapproving the plan in writing and giving specific reasons for its disapproval.
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 ordinance, are agreed to by the plan-approving authority and the person responsible for carrying out the plans.
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 City of Colonial Heights 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 § 10.1-563 (E) of the Code of Virginia, any person engaging, in more then one jurisdiction, in the creation and operation of wetland mitigation or stream restoration banks, 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 wetland mitigation or stream restoration banks, pursuant to a mitigation banking instrument signed 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 or stream restoration 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 ordinance 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 ordinance, and he has paid the fees and posted the required bond.
An administrative fee of $500.00 for projects involving one acre or less, plus $25.00 per acre of land, or part thereof, in excess of one acre, up to a maximum of $750.00, shall be paid to the City of Colonial Heights at the time of submission of the erosion and sediment control plan.
For resubmission of all or part of an erosion and sediment control plan for any development for which plan approval has previously been granted, there shall be a fee of $350.00 unless the resubmittal was requested by or on behalf of the City.
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.
All applicants for permits shall provide to the City a performance bond, cash escrow, or an irrevocable letter of credit acceptable to the Program Administrator, to ensure that measures could be taken by the City of Colonial Heights 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 City of Colonial Heights 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.
The Department of Public Works shall periodically inspect the land-disturbing activity in accordance with § 4 VAC50-30-60 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. The owner, permittee, or person responsible for carrying out the plan shall be given notice of the inspection.
Upon determination of a violation of this Chapter, the Program Administrator may, in conjunction with or subsequent to a notice to comply as specified in this ordinance, 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.
A civil penalty of at least $100, but not more than $1,000, may be assessed against an owner of property for a violation of this Chapter; provided that a civil penalty of $1,000 shall be assessed for commencement of land-disturbing activities without an approval plan. Each day during which the violation exists shall constitute a separate offense. In no event shall a series of specified violations arising from the same set of facts result in civil penalties which exceed a total of $10,000. The assessment of civil penalties according to this Chapter shall not be applied toward the cost of the installation of conservation measures required on the approved erosion and sediment control plan and/or any other measures deemed necessary by the Program Administrator, shall be in lieu of criminal sanctions, and shall preclude the prosecution of any such violation as a misdemeanor.
The Program Administrator shall prepare an erosion and sediment control civil violation summons for use in enforcing the provisions of this Chapter. Such notice shall contain the following information:
The name and address of the person charged;
The nature of the violation and the minimum standards and specifications that are not being met;
The location and dates that the violation occurred or was observed;
The amount of the civil penalty established for the violation;
The manner, location, and time that the civil penalty may be paid to the City; and
A statement that it is the right of the recipient of the notice to elect to stand trial for the infraction and the date of such trial.
The Program Administrator shall have the option of serving upon the owner or permittee of the site upon which the violation occurred the civil violation summons, without issuing the notice to comply provided for in this Chapter. However, the notice of civil violation shall be served without issuing the notice to comply only in circumstances where the owner or his designated agent has demonstrated an unwillingness to comply with the environmental engineer's verbal instruction to comply. The notice of civil violation shall be served in the same manner described in Subsection B of § 241-6 of this Chapter.
Should a civil violation summons be issued as provided in this Chapter, it shall provide that any person issued the summons may, within five working days of receipt of the summons, elect to pay the civil penalty by making an appearance in person or by certified mail to the Colonial Heights Treasurer's Office, and by such appearance may enter a waiver of trial, admit liability, and pay the civil penalty established for the violation charged and provide that a signature to an admission of liability shall have the same force and effect as a judgment in court; however, an admission shall not be deemed a criminal conviction for any purpose.
If a person charged with a civil violation summons does not enter a waiver of trial and admit liability, the Program Administrator shall cause the sheriff's department to serve the summons on the owner or permittee. The General District Court shall conduct a trial on the scheduled date and enter judgment on the summons.
Failure to pay the civil penalty, or to contest the violation, within the time period prescribed herein, shall result in the immediate issuance of a stop work order and revocation of the permit.
The Program Administrator, 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 the City of Colonial Heights to enjoin a violation or a threatened violation of this ordinance, without the necessity of showing that an adequate remedy at law does not exist.
Any person who violates any provision of this Chapter may be liable to the City 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 City.
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 City may provide for the payment of civil charges for violations in specific sums, not to exceed $2,000 per violation. Such civil charges shall be instead of any appropriate civil penalty which could be imposed under Subsection D.
The City Attorney shall, upon request of the City, take legal action to enforce the provisions of this Chapter, if there is probable cause to believe that a violation has occurred.
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 provisions of this Chapter who is aggrieved by any action of the City of Colonial Heights 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 City Council provided an appeal is filed within 30 days from the date of the action. Any applicant who seeks an appeal hearing before the City Council shall be heard at the next regularly scheduled City Council public hearing, provided that the City Council and other involved parties have at least 30 days prior notice. In reviewing the agent's actions, the City Council shall consider evidence and opinions presented by the aggrieved applicant and agent. After considering the evidence and opinions, the City Council may affirm, reverse or modify the action. The City Council's decision shall be final, subject only to review by the Circuit Court of the City.
Final decisions of the City under this Chapter shall be subject to review by the City of Colonial Heights Circuit Court, provided 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.