[HISTORY: Adopted by the Board of Supervisors
of Shenandoah County 1-1-1976; amended in its entirety 6-13-2023 by Ord. No. 2023-02. Subsequent amendments noted where applicable.]
This chapter shall be known as the "Erosion and Sediment Control
Ordinance of Shenandoah County." The purpose of this chapter is to
prevent the degradation of properties, stream channels, waters and
other natural resources of Shenandoah 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 62.1, Chapter 3.1, Article 2.4, known as the "Virginia
Erosion and Sediment Control Law."
As used in the chapter, unless the context requires a different
meaning, the following terms shall have the meanings indicated:
The Erosion and Sediment Control Law, Article 2.4 of Chapter
3.1 of Title 62.1 of the Code of Virginia.
A written agreement between the County and the owner which
specifies conservation measures which must be implemented in the construction
of a single-family dwelling. In certain instances as specified in
this chapter, an agreement in lieu may be executed by the County in
lieu of a formal ESC plan.
Any person submitting an ESC plan for approval or requesting
the issuance of a permit, when required, authorizing land-disturbing
activities to commence.
The State Water Control Board.
An employee or agent of the County who holds a certificate
of competence from the Board in the area of erosion and sediment control
project inspection or is enrolled in the Board's training program
for project inspection and successfully completes such program within
one year after enrollment.
An employee or agent of the County who holds a certificate
of competence from the Board in the area of erosion and sediment control
plan review, is enrolled in the Board's training program for
plan review and successfully completes such program within one year
after enrollment or 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.
An employee or agent of the County who holds a certificate
of competence from the Board in the area of erosion and sediment control
program administration or is enrolled in the Board's training
program for program administration and successfully completes such
program within one year after enrollment.
Any activity which removes the vegetative growth cover, including,
but not limited to, root mat removal and/or topsoil removal.
The County of Shenandoah.
The Virginia Department of Environmental Quality (DEQ).
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.
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 County to assure that the entire unit or units of land will
be treated to achieve the conservation objectives. Plans for residential
subdivisions must also include an overall lot grading plan.
A program approved by the Board that has been established
by the County for the effective control of soil erosion, sediment
deposition, and nonagricultural runoff associated with a land-disturbing
activity to prevent the unreasonable degradation of properties, stream
channels, waters, and other natural resources and shall include such
items where applicable as local ordinances, rules, permit requirements,
annual standards and specifications, policies and guidelines, technical
materials, and requirements for plan review, inspection, enforcement
where authorized in this article, and evaluation consistent with the
requirements of this article and its associated regulations.
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 10,000
square feet or less used for residential purposes.
Any digging, scooping or other methods of removing earth
materials.
Any depositing or stockpiling of earth materials.
The Board of Supervisors of Shenandoah County.
Any excavating or filling of earth materials or any combination
thereof, including the land in its excavated or filled condition.
A permit or other form of approval issued by the County for
the clearing, filling, excavating, grading, transporting of land or
for any combination thereof or for any other land-disturbing activity.
Any man-made change to the land surface that 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:
Minor land-disturbing activities such as home gardens and individual
home landscaping, repairs and maintenance work;
Individual service connections;
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;
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;
Permitted surface or deep mining operations and projects, or
oil and gas operations and projects conducted pursuant to Title 45.1
of the Code of Virginia;[1]
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, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage, and land irrigation; however, this exception shall not apply to 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 Title 10.1 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;
Repair or rebuilding of the tracks, rights-of-way, bridges,
communication facilities, and other related structures and facilities
of a railroad company;
Agricultural engineering operations, including but not limited
to the construction of terraces, terrace outlets, check dams, desilting
basins, dikes, ponds not required to comply with the provisions of
the Dam Safety Act (Code of Virginia, § 10.1-604 et seq.),
ditches, strip cropping, lister furrowing, contour cultivating, contour
furrowing, land drainage, and land irrigation;
Disturbed land areas of less than 10,000 square feet in size,
except that land-disturbing activities, on individual lots in a residential
development shall not be considered exempt if the total land-disturbing
activity in the development is equal to or greater than 10,000 square
feet;
Installation of fence and sign posts or telephone and electric
poles and other kinds of posts and poles;
Emergency work or repairs to protect life, limb or property;
however, if the land-disturbing activity would have required an approved
ESC 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 County; and
State agency projects except as provided for in the Code of
Virginia § 62.1-44.15:56.
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.
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. The owner shall be responsible for obtaining
all permits and approvals required.
The maximum instantaneous flow from a given storm condition
at a particular location.
The person to whom the land-disturbance permit is issued
or the person who certifies that the approved ESC 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, governmental body,
including a federal or state entity as applicable, any interstate
body, or any other legal entity.
The official designated by the County to serve as its agent
to administer the ESC program. The program administrator shall be
a certified program administrator and may also be, but is not required
to be, a certified plan reviewer or certified inspector.
The erosion and sediment control regulations contained in
9 VAC 25-840 et seq., as amended.
An individual holding a certificate issued by DEQ, who is
responsible for carrying out the land-disturbing activity in accordance
with the approved ESC plan. The RLD may be the owner, applicant, permittee,
designer, superintendent, project manager, contractor, or any other
project or development team member. The RLD must be designated on
the ESC plan or land-disturbance permit as a prerequisite for engaging
in any land-disturbance.
The volume of water that runs off the land development project
from a prescribed storm event.
A noncommercial dwelling that is occupied exclusively by
one family.
The program administered by the Board pursuant to this chapter,
including regulations designed to minimize erosion and sedimentation.
An approval to conduct a land-disturbing activity issued
by the Board in the form of a state stormwater individual permit or
coverage issued under a state construction general permit.
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 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.
A program administered by the Virginia Department of Environmental
Quality that regulates stormwater discharge from certain construction
and other activities.
The volume equal to the first 1/2 inch of runoff multiplied
by the impervious surface of the land development project.
[1]
Editor's Note: §§ 45.1-1 to 45.1-400 were
repealed by Acts 2021, Sp. S. I, c. 387, effective Oct. 1, 2021.
A.Â
Pursuant to Code of Virginia, § 62.1-44.15:54, the County
hereby adopts an ESC program for the effective control of soil erosion
and sediment deposition to prevent the unreasonable degradation of
properties, stream channels, waters and other natural resources, and
adopts the standards promulgated by the Board in 9 VAC 25-840-40,
as such standards may be amended from time to time.
B.Â
The County hereby designates the Erosion and Sediment Control Administrator
or his or her assignee as the program administrator.
A.Â
Applicants shall submit an Erosion and Sediment Control Plan ("ESC
plan") for review and approval in accordance with this chapter prior
to conducting any land-disturbing activity.
B.Â
ESC plans that provide for stormwater management to address flow
rate capacity and velocity requirements for natural or man-made channels
shall comply with the following:
(1)Â
Any ESC plan approved prior to July 1, 2014, that provides for stormwater
management that addresses 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:
(a)Â
Detain the water quality volume and to release it over 48 hours;
(b)Â
Detain and release over a twenty-four-hour period the expected
rainfall resulting from the one-year, twenty-four-hour storm; and
(c)Â
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.
(2)Â
For ESC plans approved on and after July 1, 2014, the flow rate capacity
and velocity requirements for natural and man-made channels shall
be satisfied by compliance with water quantity requirements specified
in § 62.1-44.15:28 of the Stormwater Management Act and
Section 9 VAC 25-870-66 of the Virginia Stormwater Management Program
Regulations, unless such land-disturbing activities are in accordance
with the grandfathering provisions of the Virginia Stormwater Management
Program Regulations.
C.Â
No ESC plan shall be approved until the ESC plan is reviewed by a
certified plan reviewer.
D.Â
The regulations and the Virginia Erosion and Sediment Control handbook
are to be used by the applicant when making a submittal under the
provisions of this chapter and in the preparation of an ESC plan.
The County, in considering the adequacy of a submitted plan, shall
be guided by the regulations and the standards, and guidelines in
the handbook. When the standards vary between the publications, the
regulations shall take precedence over the handbook.
E.Â
Contents of plans. The ESC plan shall be consistent with all provisions
of this chapter and shall specifically include the following criteria,
techniques, and methods:
(1)Â
Permanent or temporary soil stabilization shall be applied to denuded
areas within seven days after final grade is reached on any portion
of the site. Temporary soil stabilization shall be applied within
seven days to denuded areas that may not be at final grade but will
remain dormant for longer than 14 days. Permanent stabilization shall
be applied to areas that are to be left dormant for more than one
year.
(2)Â
During construction of the project, soil stock piles and borrow areas
shall be stabilized or protected with sediment trapping measures.
The applicant is responsible for the temporary protection and permanent
stabilization of all soil stockpiles on-site as well as borrow areas
and soil intentionally transported from the project site.
(3)Â
A permanent vegetative cover shall be established on denuded areas
not otherwise permanently stabilized. Permanent vegetation shall not
be considered established until a ground cover is achieved that is
uniform, mature enough to survive and will inhibit erosion.
(4)Â
Sediment basins and traps, perimeter dikes, sediment barriers and
other measures intended to trap sediment shall be constructed as a
first step in any land-disturbing activity and shall be made functional
before upslope land-disturbance takes place.
(5)Â
Stabilization measures shall be applied to earthen structures such
as dams, dikes and diversions immediately after installation.
(6)Â
Sediment traps and sediment basins shall be designed and constructed
based upon the total drainage area to be served by the trap or basin.
(a)Â
The minimum storage capacity of a sediment trap shall be 134
cubic yards per acre of drainage area and the trap shall only control
drainage areas less than three acres.
(b)Â
Surface runoff from disturbed areas that is comprised of flow
from drainage areas greater than or equal to three acres shall be
controlled by a sediment basin. The minimum storage capacity of a
sediment basin shall be 134 cubic yards per acre of drainage area.
The outfall system shall, at a minimum, maintain the structural integrity
of the basin during a twenty-five-year storm of twenty-four-hour duration.
Runoff coefficients used in runoff calculations shall correspond to
a bare earth condition or those conditions expected to exist while
the sediment basin is utilized.
(7)Â
Cut and fill slopes shall be designed and constructed in a manner
that will minimize erosion. Slopes that are found to be eroding excessively
within one year of permanent stabilization shall be provided with
additional slope stabilizing measures until the problem is corrected.
(8)Â
Concentrated runoff shall not flow down cut or fill slopes unless
contained within an adequate temporary or permanent channel, flume
or slope drain structure.
(9)Â
Whenever water seeps from a slope face, adequate drainage or other
protection shall be provided.
(10)Â
All storm sewer inlets that are made operable during construction
shall be protected so that sediment-laden water cannot enter the conveyance
system without first being filtered or otherwise treated to remove
sediment.
(11)Â
Before newly constructed stormwater conveyance channels or pipes
are made operational, adequate outlet protection and any required
temporary or permanent channel lining shall be installed in both the
conveyance channel and receiving channel.
(12)Â
When work in a live watercourse is performed, precautions shall be
taken to minimize encroachment, control sediment transport and stabilize
the work area to the greatest extent possible during construction.
Nonerodible material shall be used for the construction of causeways
and cofferdams. Earthen fill may be used for these structures if armored
by nonerodible cover materials.
(13)Â
When a live watercourse must be crossed by construction vehicles
more than twice in any six-month period, a temporary vehicular stream
crossing constructed of nonerodible material shall be provided.
(14)Â
All applicable federal, state and local requirements pertaining to
working in or crossing live watercourses shall be met.
(15)Â
The bed and banks of a watercourse shall be stabilized immediately
after work in the watercourse is completed.
(16)Â
Underground utility lines shall be installed in accordance with the
following standards in addition to other applicable criteria:
(a)Â
No more than 500 linear feet of trench may be opened at one
time.
(b)Â
Excavated material shall be placed on the uphill side of trenches.
(c)Â
Effluent from dewatering operations shall be filtered or passed
through an approved sediment trapping device, or both, and discharged
in a manner that does not adversely affect flowing streams or off-site
property.
(d)Â
Material used for backfilling trenches shall be properly compacted
in order to minimize erosion and promote stabilization.
(e)Â
Restabilization shall be accomplished in accordance with this
chapter.
(f)Â
Applicable safety requirements shall be complied with.
(17)Â
Where construction vehicle access routes intersect paved or public
roads, provisions shall be made to minimize the transport of sediment
by vehicular tracking onto the paved surface. Where sediment is transported
onto a paved or public road surface, the road surface shall be cleaned
thoroughly at the end of each day. Sediment shall be removed from
the roads by shoveling or sweeping and transported to a sediment control
disposal area. Street washing shall be allowed only after sediment
is removed in this manner. This provision shall apply to individual
development lots as well as to larger land-disturbing activities.
(18)Â
All temporary erosion and sediment control measures shall be removed
within 30 days after final site stabilization or after the temporary
measures are no longer needed, unless otherwise authorized by the
County. Trapped sediment and the disturbed soil areas resulting from
the disposition of temporary measures shall be permanently stabilized
to prevent further erosion and sedimentation.
(19)Â
Properties and waterways downstream from development sites shall
be protected from sediment deposition, erosion and damage due to increases
in volume, velocity and peak flow rate of stormwater runoff for the
stated frequency storm of twenty-four-hour duration in accordance
with the following standards and criteria. 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:
(a)Â
Concentrated stormwater runoff leaving a development site shall
be discharged directly into an adequate natural or man-made receiving
channel, pipe or storm sewer system. For those sites where runoff
is discharged into a pipe or pipe system, downstream stability analyses
at the outfall of the pipe or pipe system shall be performed.
(b)Â
Adequacy of all channels and pipes shall be verified in the
following manner:
[1]Â
The applicant shall demonstrate that the total drainage area
to the point of analysis within the channel is 100 times greater than
the contributing drainage area of the project in question;
[2]Â
Channels, pipes and storm sewer systems analyzation.
[a]Â
Natural channels shall be analyzed by the use of
a two-year storm to verify that stormwater will not overtop channel
banks nor cause erosion of channel bed or banks.
[b]Â
All previously constructed man-made channels shall
be analyzed by the use of a ten-year storm to verify that stormwater
will not overtop its banks and by the use of a two-year storm to demonstrate
that stormwater will not cause erosion of channel bed or banks; and
[c]Â
Pipes and storm sewer systems shall be analyzed
by the use of a ten-year storm to verify that stormwater will be contained
within the pipe or system.
(c)Â
If existing natural receiving channels or previously constructed
man-made channels or pipes are not adequate, the applicant shall:
[1]Â
Improve the channels to a condition where a ten-year storm will
not overtop the banks and a two-year storm will not cause erosion
to the channel, the bed, or the banks;
[2]Â
Improve the pipe or pipe system to a condition where the ten-year
storm is contained within the appurtenances;
[3]Â
Develop a site design that will not cause the predevelopment
peak runoff rate from a two-year storm to increase when runoff outfalls
into a natural channel or will not cause the predevelopment peak runoff
rate from a ten-year storm to increase when runoff outfalls into a
man-made channel; or
[4]Â
Provide a combination of channel improvement, stormwater detention
or other measures which is satisfactory to the County to prevent downstream
erosion.
(d)Â
The applicant shall provide evidence of permission to make the
improvements.
(e)Â
All hydrologic analyses shall be based on the existing watershed
characteristics and the ultimate development condition of the subject
project.
(f)Â
If the applicant chooses an option that includes stormwater
detention, he shall obtain approval from the County of a plan for
maintenance of the detention facilities. The plan shall set forth
the maintenance requirements of the facility and the person responsible
for performing the maintenance.
(g)Â
Outfall from a detention facility shall be discharged to a receiving
channel, and energy dissipators shall be placed at the outfall of
all detention facilities as necessary to provide a stabilized transition
from the facility to the receiving channel.
(h)Â
All on-site channels must be verified to be adequate.
(i)Â
Increased volumes of sheet flows that may cause erosion or sedimentation
on adjacent property shall be diverted to a stable outlet, adequate
channel, pipe or pipe system, or to a detention facility.
(j)Â
In applying these stormwater management criteria, individual
lots or parcels in a residential, commercial or industrial development
shall not be considered to be separate development projects. Instead,
the development, as a whole, shall be considered to be a single development
project. Hydrologic parameters that reflect the ultimate development
condition shall be used in all engineering calculations.
(k)Â
All measures used to protect properties and waterways shall
be employed in a manner which minimizes impacts on the physical, chemical
and biological integrity of rivers, streams and other waters of the
state.
A.Â
Except as provided herein, no person may engage in any land-disturbing
activity until he or she has submitted to the County an ESC plan for
the land-disturbing activity and such plan has been approved by the
County. No approval to begin a land-disturbing activity will be issued
unless evidence of a state permit is obtained, when such state permit
is required, and a land-disturbance permit has been issued by the
County. It shall be the responsibility of the owner to secure such
approval. Where land-disturbing activities involve lands under the
jurisdiction of more than one VESCP, an ESC plan, at the option of
the applicant, may be submitted to the Department 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 may be substituted for an ESC plan if executed
by the program administrator or his or her assignee.
B.Â
Plan submission requirements; approval and denial time periods. The
County shall review ESC plans submitted to it and grant written approval
within 45 days of the receipt of an ESC plan if it determines that
the ESC plan meets all of the requirements of this chapter, the Act
and the regulations, and if the responsible land disturber ("RLD")
certifies that he will properly perform the measures included in the
plan and will conform to the provisions of this chapter. 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 the RLD, to the County, as provided
by § 62.1-44.15:52 of the Act, who will be in charge of
and responsible for carrying out the land-disturbing activity. Failure
to provide the name of the RLD 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 County may
waive the certificate of competence requirement for an agreement in
lieu 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 shall correct the violation
and provide the name of the RLD, as provided by § 62.1-44.15:52
of the Act. Failure to provide the name of the RLD shall be a violation
of this chapter.
(1)Â
Inadequate plan. When the plan is determined to be inadequate, written
notice of disapproval shall be communicated to the applicant as soon
as practicable but no later than 45 days after the submission of the
plan (the "inadequacy notice"). Thereafter, a written notice stating
the specific reasons for disapproval shall be communicated to the
applicant within 45 days of the date the inadequacy notice is sent
to the applicant. The notice shall specify such modifications, terms
and conditions that will permit approval of the plan. The County shall
act on any ESC plan that has been previously disapproved within 45
days after the plan has been revised, resubmitted for approval, and
deemed adequate.
(2)Â
Deemed approval. If no action is taken within the time specified
in this subsection, the plan shall be deemed approved and the person
shall be authorized to proceed with the proposed activity.
C.Â
The County may require changes to an approved plan when:
(1)Â
The inspection reveals that the plan is inadequate to satisfy the
regulations; or
(2)Â
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 County
and the person responsible for carrying out the plans.
D.Â
Variances: The County may waive or modify any of the standards that
are deemed to be inappropriate or too restrictive for site conditions,
by granting a variance. A variance may be granted under these conditions:
(1)Â
At the time of plan submission, an applicant may request a variance
to become part of the approved ESC plan. The applicant shall explain
the reasons for requesting variances in writing. Specific variances
which are allowed by the County shall be documented in the plan.
(2)Â
During construction, the person responsible for implementing the
approved plan may request a variance in writing from the County. If
the County 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.
(3)Â
The County shall consider variance requests judiciously, keeping
in mind both the need of the applicant to maximize cost effectiveness
and the need to protect off-site properties and resources from damage.
E.Â
In order to prevent further erosion, the County may require the property
owner of land identified by the County as an erosion impact area to
immediately take actions to minimize the delivery of sediment onto
neighboring properties or into state water, and to prepare and submit
to the County an ESC plan that details how the erosion will be stabilized.
Failure by the property owner to comply with County's directions
to immediately take actions to minimize the delivery of sediment onto
neighboring properties or into state waters; or failure to submit
an ESC plan within a reasonable time period set by the County; or
failure to implement ESC control plan after approval by the County
within a reasonable time period set by the County shall be a violation
of this chapter. Such violation shall be subject to all of the penalties
and other legal actions contained in this chapter.
F.Â
When a land-disturbing activity will be required of a contractor
performing construction work pursuant to a construction contract,
the preparation, submission, and approval of an ESC plan shall be
the responsibility of the owner.
G.Â
In accordance with the procedure set forth in Code of Virginia, § 62.1-44.15:55(E),
any person engaging, in more than 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,
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. Approval of general erosion and
sediment control specifications does not relieve the owner or operator
from compliance with any other local ordinances and regulations including
requirements to submit plans and obtain permits as may be required
by such ordinances and regulations.
H.Â
The County shall maintain a copy of the approved plan and a record
of inspections for each active land-disturbing activity.
I.Â
The County shall report to the Department, at least monthly, in a
method such as an online reporting system and on a time schedule established
by the Department, a listing of each land-disturbing activity for
which an ESC plan has been approved in accordance with this chapter.
A.Â
Agencies authorized under any other law to issue grading, building,
or other permits for activities involving land-disturbing activities
shall not issue any such permit unless the applicant submits with
his application an approved ESC plan or agreement in lieu, certification
that the approved ESC plan or agreement in lieu will be followed,
and evidence of a state permit when such state permit is required.
B.Â
No person may engage in any land-disturbing activity until he has
acquired a land-disturbance permit (unless the proposed land-disturbing
activity is specifically exempt from the provisions of this chapter),
and has paid the following fees and posted the following security:
(1)Â
An administrative fee as specified in § A170-5, as amended, shall be paid to the County at the time of submission of the ESC plan.
(2)Â
All applicants for permits shall provide to the County a performance
bond with surety, cash escrow, or an irrevocable letter of credit
acceptable to the County to ensure that measures could be taken by
the County 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 County to take
such conservation action, the County 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 County 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.
A.Â
The RLD shall be in charge of and responsible for carrying out the
land-disturbing activity and provide for periodic inspections of the
land-disturbing activity. The County may require the RLD to monitor
the land-disturbing activity or certain aspects of the land-disturbing
activity. The RLD shall maintain records of these inspections, monitoring,
and maintenance to ensure compliance with the approved ESC plan and
to determine whether the measures required in the ESC plan are effective
in controlling erosion and sedimentation.
B.Â
A certified inspector shall periodically inspect the land-disturbing
activity in accordance with the regulations to ensure compliance with
the approved ESC plan and to determine whether the measures required
in the ESC plan are effective in controlling erosion and sedimentation.
The RLD shall be given notice of the inspection, if possible.
C.Â
Notice to comply.
(1)Â
If the County determines that there is a failure to comply with the
approved ESC plan, written notice shall be delivered:
(2)Â
The notice to comply shall specify the measures needed to comply
with the approved ESC plan and shall specify the time within which
such measures shall be completed. Upon failure to comply within the
requirements set forth in the notice to comply, the land-disturbance
permit may be revoked and the permittee or person responsible for
carrying out the ESC plan shall be deemed to be in violation of this
chapter.
D.Â
Stop-work order.
(1)Â
Upon issuance of an inspection report denoting a violation of Code
of Virginia, § 62.1-44.15:55 or § 62.1-44.15:56,
the County may, in conjunction with or subsequent to a notice to comply,
issue a stop-work order requiring that all or part of the land-disturbing
activities on the site be stopped until the specified corrective measures
have been taken. Additionally, if land-disturbing activities have
commenced without an approved ESC plan, the County may issue an order
requiring that all of the land-disturbing activities be stopped until
an approved ESC plan or any other required permits are obtained.
(2)Â
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 ESC plan or any other
required permits, a stop-work order may be issued without regard to
whether the alleged violator has been issued a notice to comply. Otherwise,
a stop-work order may be issued only after the alleged violator has
failed to comply with a notice to comply.
(3)Â
A stop-work order for failure to comply with a notice to comply 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 County or the alleged violator to the Circuit Court
of Shenandoah County, or unless lifted by the County.
(4)Â
A stop-work order for conducting a land-disturbing activity without
an approved ESC plan or other permit or permits shall be served upon
the owner of the property via certified mail to the owner's address
specified in the tax records of Shenandoah County. Said stop-work
order shall also be posted on the site where the disturbance is occurring.
If the alleged violator has not obtained an approved ESC plan or any
required permits within seven days from the date of service of the
initial stop-work order, the County may issue another stop-work order
to the owner requiring that all construction and other work on the
site, other than corrective measures, be stopped until an approved
ESC plan and any other required permits have been obtained.
E.Â
Upon completion and approval of corrective action or obtaining an
approved ESC plan or all required permits, the stop-work order shall
immediately be lifted.
F.Â
The owner may appeal the issuance of a stop-work order to the Circuit Court of Shenandoah County in accordance with § 87-9 below. Any person violating or failing, neglecting or refusing to obey any order issued by the County may be compelled in a proceeding instituted in the Circuit Court of Shenandoah County to obey same and to comply therewith by injunction, mandamus or other appropriate remedy.
G.Â
The County shall maintain a record of enforcement actions for all
active land-disturbing activities. Nothing in this section shall prevent
the County from taking any other action authorized by this chapter
or by any other law or regulation.
A.Â
Civil penalties. A civil penalty in the amount listed on the schedule
below shall be assessed for each violation of the respective offenses.
Each day during which the violation is found to have existed shall
constitute a separate offense. However, 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.
(1)Â
Commencement of land-disturbing activity without an approved ESC
plan shall be $1,000 per day.
(2)Â
Vegetative measures. Failure to comply with items 1, 2 3, or 5 of
the minimum standards in the regulations shall be $300 per violation
per day.
(3)Â
Structural measures. Failure to comply with items 4, 6, 7, 8, 9,
10, 11, 15, 17, or 18 of the minimum standards in the regulations
shall be $300 per violation per day.
(4)Â
Watercourse measures. Failure to comply with items 12, 13 and 14
of the minimum standards in the regulations shall be $300 per violation
per day.
(5)Â
Underground utility measures. Failure to comply with item 16 of the
minimum standards in the regulations shall be $300 per violation per
day.
(6)Â
Failure to obey a stop-work order shall be $1,000 per day.
(7)Â
Failure to stop work when a land-disturbance permit is revoked shall
be $1,000 per day.
C.Â
Application to Circuit Court. The County, 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 Shenandoah County to enjoin
a violation or a threatened violation of Code of Virginia, §§ 62.1-44.15:55,
and 62.1-44.15:56, 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:
(1)Â
He has notified in writing the person who has violated the ESC program,
and the County, that a violation has caused, or creates a probability
of causing, damage to his property; and
(2)Â
Neither the person who has violated the ESC program nor the County
has taken corrective action within 15 days to eliminate the conditions
which have caused, or create the probability of causing, damage to
his property.
D.Â
In addition to the penalties provided under this chapter, any person
who violates any provision of the Act may be liable to the County
in a civil action for damages.
E.Â
Additional civil penalty for failure to comply. Without limiting
the remedies that 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 County.
F.Â
Consent order. 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, an order of the County
may provide for the payment of civil charges for violations in specific
sums, not to exceed the limits pertaining to civil penalties in this
section.
G.Â
Civil penalty summons and procedure.
(1)Â
The County may serve upon any owner or permittee in violation of
this chapter, a summons notifying the owner or permittee of said violation.
If unable to serve the owner or permittee in person, the County may
notify by summons an owner or permittee committing or suffering the
existence of a violation by certified, return receipt requested mail,
of the infraction.
(2)Â
The summons shall contain the name and address of the person charged,
the nature of the violation and chapter provision(s) being violated,
the location, date, and time that the violation occurred or was observed,
the amount of the civil penalty assessed for the violation, the manner,
location, and time that the civil penalty may be paid to the County,
and the right of the recipient of the summons to elect to stand trial
for the infraction and the date of such trial. The summons shall provide
that any person summoned for a violation may, within five days of
actual receipt of the summons or within 10 days from the date of mailing
of the summons, elect to pay the civil penalty by making an appearance
in person, or in writing by mail to the County 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.
(3)Â
If a person charged with a violation does not elect to enter a waiver
of trial and admit liability, the County shall cause the Sheriff of
the County to serve the summons on the person charged in the manner
prescribed by law. The violation shall be tried in General District
Court in the same manner and with the same right of appeal as provided
for in Title 8.01 of the Code of Virginia. In any trial for a scheduled
violation authorized by this section, it shall be the burden of the
County to show the liability of the violator by the preponderance
of the evidence.
In accordance with Code of Virginia, § 62.1-44.15:62,
final decisions of the County under this chapter shall be subject
to review by the Shenandoah County 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.
