Sec. 44-1. - Intent.

The council of the city, acting pursuant to Chapter 13 of Title 28.2 of the Code of Virginia, adopts this chapter regulating the use and development of wetlands.

(Ord. No. 4428-93, § 1)

Sec. 44-2. - Definitions.

For the purposes of this chapter:

(1)

Commission means the Virginia Marine Resources Commission.

(2)

Commissioner means the commissioner of marine resources.

(3)

Governmental activity means any of the services provided by the city to its citizens for the purpose of maintaining the city, including but not limited to such services as constructing, repairing and maintaining roads; providing sewage facilities and street lights; supplying and treating water; and constructing public buildings.

(4)

Nonvegetated wetlands means unvegetated lands lying contiguous to mean low water and between mean low water and mean high water.

(5)

Person means any individual, corporation, partnership, association, company, business, trust, joint venture, or other legal entity.

(6)

Vegetated wetlands means lands lying between and contiguous to mean low water and an elevation above mean low water equal to the factor one and one-half (1.5) times the mean tide range at the site of the proposed project in the city, 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 (Myrcia sp.), sea oxeye (Borrichia frutescens), arrow arum (Peltandra virginica), pickerelweed (Pontederia cordata), big cordgrass (Spartina cynosuroides), 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.), buttonbush (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).

(7)

Wetlands means both vegetated and nonvegetated wetlands.

(8)

Wetlands board or board means the Newport News Wetlands Board.

(Ord. No. 4428-93, § 1)

Sec. 44-3. - Uses of and activities on wetlands which are permitted.

The following uses of and activities in wetlands are authorized if otherwise permitted by law:

(1)

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;

(2)

The cultivation and harvesting of shellfish, and worms for bait;

(3)

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 (1) of this section;

(4)

Other outdoor recreational activities, provided they do not impair the natural functions or alter the natural contour of the wetlands;

(5)

Grazing, haying, and cultivating and harvesting agricultural, forestry or horticultural products;

(6)

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;

(7)

The construction or maintenance of aids to navigation which are authorized by governmental authority;

(8)

Emergency measures decreed by any duly appointed health officer of a governmental subdivision acting to protect the public health;

(9)

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;

(10)

Governmental activity in wetlands owned or leased by the Commonwealth or a political subdivision thereof; and

(11)

The normal maintenance of manmade drainage ditches, provided that no additional wetlands are covered. This subdivision does not authorize the construction of any drainage ditch.

(Ord. No. 4428-93, § 1)

Sec. 44-4. - Wetlands board—Creation, appointment and terms.

There is hereby created the Newport News Wetlands Board, which shall consist of seven (7) residents of the city, who shall be appointed by the council. Their terms of office shall be for five (5) years, except that original appointments shall be made for such terms that the term of one (1) member shall expire each year in the first, second, and third year after appointment and that the term of two (2) members shall expire each year in the fourth and fifth year after appointment. The chairman of the board shall notify the council at least thirty (30) days in advance of the expiration of any term of office and shall also notify the council if any vacancy occurs. Appointments to fill vacancies shall be for the unexpired portion of the term. Members may serve successive terms. Members of the board shall hold no other public office in the city. A member whose term expires shall continue to serve until his successor is appointed and qualified. Members of the board shall be compensated at the rate of fifty dollars ($50.00) per regular board meeting which they attend.

(Ord. No. 4428-93, § 1)

Sec. 44-5. - Same—Officers, meetings, rules, records and reports.

(a)

The board shall elect from its membership a chairman and such other officers as it deems necessary who shall serve one-year terms as such and may succeed themselves. For the conduct of any hearing and the taking of any action, a quorum shall be not less than four (4) members of the board. The board may make, alter and rescind rules and forms for its procedures, consistent with ordinances of the city and general laws of the commonwealth. The board shall keep a full public record of its proceedings and shall submit a report of its activities to the council at least once a year, and a copy of its report to the commission.

(b)

The city manager, or someone from the administrative branch of the government designated by the city manager, shall attend meetings of the board and shall have the right to participate in its discussions.

(Ord. No. 4428-93, § 1)

Sec. 44-6. - Meeting space, services and removal of board member.

The board shall be supplied reasonable meeting space for its use and such reasonable secretarial, clerical, legal and consulting services as it may need. Any board member may be removed for malfeasance, misfeasance or nonfeasance in office or for other just cause, by the city council, after hearing held after at least fifteen (15) days' notice.

(Ord. No. 4428-93, § 1)

Sec. 44-7. - Application for permit.

(a)

Any person who desires to use or develop any wetland within the city, other than for the purpose of conducting the activities specified in section 44-3 of this chapter, shall first file an application for a permit directly with the wetlands board.

(b)

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 offsite effects; the completion date of the proposed work, project, or structure; and such additional materials and documentation as the wetlands board may require.

(c)

A nonrefundable processing fee in the amount of two hundred dollars ($200.00) shall accompany each application to cover the cost of processing said application.

(Ord. No. 4428-93, § 1)

Sec. 44-8. - Public inspection of applications, maps, etc.

All applications, maps and documents relating thereto shall be open for public inspection in the department of planning and development and specified in the advertisement for public hearing required under section 44-9.

(Ord. No. 4428-93, § 1)

Sec. 44-9. - Public hearing procedure.

Not later than sixty (60) days after receipt of a complete application, the wetlands board shall hold a public hearing on the application. The applicant, the 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 twenty (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 (2) weeks prior to such hearing in a newspaper of general circulation in this city. The published notice shall specify the place or places within the city where copies of the application may be examined. The costs of publication shall be paid by the applicant.

(Ord. No. 4428-93, § 1)

Sec. 44-10. - Action of board.

(a)

Approval of a permit application shall require the affirmative vote of four (4) members of the board.

(b)

The chairman of the board, or in his absence the acting chairman, 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 testimony. The board shall make a record of the proceeding, which shall include the application, any written statements of witnesses, a summary of statements of all witnesses, the findings and decision of the board, and the rationale for the decision.

(c)

The board shall make its determination within thirty (30) days of the hearing. If the board fails to act within that time, the application shall be deemed approved. Within forty-eight (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 (4) affirmative votes, the permit shall be denied.

(d)

If the board's decision is reviewed or appealed, the board shall transmit the record of its hearing to the commissioner. Upon a final determination by the commission, the record shall be returned to the board. The record shall be open for public inspection at the same office as was designated under section 44-9

(Ord. No. 4428-93, § 1)

Sec. 44-11. - Bonds, revocations and suspension of permits.

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 hearing as provided herein, suspend or revoke a permit if the board finds that the applicant has failed to comply with any of the conditions or limitations set forth in the permit or has exceeded the scope of work as set forth in the application. The board, after hearing, may suspend a permit if the applicant fails to comply with the terms and conditions set forth in the application.

(Ord. No. 4428-93, § 1)

Sec. 44-12. - Board to preserve wetlands while accommodating necessary development.

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.

(Ord. No. 4428-93, § 1)

Sec. 44-13. - Review procedure.

(a)

In deciding whether to grant, grant in modified form or deny a permit, the board shall consider the following:

(1)

The testimony of any person in support of or in opposition to the permit application;

(2)

The impact of the proposed development on the public health, safety, and welfare; and

(3)

The proposed development's conformance with standards prescribed in Section 28.2-1308 of the Code of Virginia and guidelines promulgated pursuant to Section 28.2-1301 of the Code of Virginia.

(b)

The board shall grant the permit if all of the following criteria are met:

(1)

The anticipated public and private benefit of the proposed activity exceeds its anticipated public and private detriment.

(2)

The proposed development conforms with the standards prescribed in Section 28.2-1308 of the Code of Virginia and guidelines promulgated pursuant to Section 28.2-1301 of the Code of Virginia.

(3)

The proposed activity does not violate the purposes and intent of this chapter or Chapter 13 (Section 28.2-1300 et seq.) of Title 28.2 of the Code of Virginia.

(c)

If the board finds that any of the criteria listed in subsection (b) of this section are not met, the board shall deny the permit application but allow the applicant to resubmit the application in modified form.

(Ord. No. 4428-93, § 1)

Sec. 44-14. - Permits; form.

The permit shall be in writing, signed by the chairman of the board, and notarized. A copy of the permit shall be transmitted to the Commissioner.

(Ord. No. 4428-93, § 1)

Sec. 44-15. - Expiration date and extensions.

No permit shall be granted without an expiration date established by the board. Upon proper application, the board may extend the permit expiration date.

(Ord. No. 4428-93, § 1)

Sec. 44-16. - Permits; effect on zoning.

No permit granted by a wetlands board shall in any way affect the applicable zoning and land use ordinances of this city or the right of any person to seek compensation for any injury in fact incurred by him because of the proposed activity.

(Ord. No. 4428-93, § 1)

Sec. 44-17. - Investigations and prosecution.

The wetlands board shall have the authority to investigate all projects, whether proposed or ongoing, which alter wetlands located within the city. The wetlands board shall have the power to prosecute all violations of its orders and any violation of any provision of this chapter.

(Ord. No. 4428-93, § 1)

Sec. 44-18. - Monitoring, inspections, compliance, and restoration.

(a)

The board chairman may require a permittee to implement monitoring and reporting procedures they believe are reasonably necessary to ensure compliance with the provisions of the permit and this chapter.

(b)

The board chairman may require such on-site inspections as he believes are reasonably necessary to determine whether the measures required by the permit are being properly performed, or whether the provisions of this chapter are being violated. Prior to conducting any inspection, the board chairman shall provide notice to the resident owner, occupier, or operator, who shall be given an opportunity to accompany the site inspector. If it is determined that there is a failure to comply with the permit, the board chairman shall serve notice upon the permittee at the address specified in his permit application or by delivery at the site of the permitted activities to the person supervising those activities and designated in the permit to receive the notice. The notice shall describe the measures needed for compliance and the time within which these measures shall be completed. Failure of the person to comply within the specified period is a violation of this section.

(c)

Upon receipt of a sworn complaint of a substantial violation of this chapter from the designated enforcement officer, the board chairman may, in conjunction with or subsequent to a notice to comply as specified in subsection (b) of this section, issue an order requiring all or part of the activities on the site to be stopped until the specified corrective measures have been taken. In the case of an activity not authorized under this chapter or where the alleged permit noncompliance is causing, or is in imminent danger of causing, significant harm to the wetlands protected by this chapter, the order may be issued without regard to whether the person has been issued a notice to comply pursuant to subsection (b) of this section. Otherwise, the order may be issued only after the permittee has failed to comply with the notice to comply. The order shall be served in the same manner as a notice to comply, and shall remain in effect for a period of seven (7) days from the date of service pending application by the enforcing authority, permittee, resident owner, occupier, or operator for appropriate relief to the circuit court of the jurisdiction where the violation was alleged to have occurred. Upon completion of corrective action, the order shall immediately be lifted. Nothing in this section shall prevent the board chairman from taking any other action specified in section 44-17

(d)

Upon receipt of a sworn complaint of a substantial violation of this chapter from a designated enforcement officer, the wetlands board may order that the affected site be restored to predevelopment conditions if the board finds that restoration is necessary to recover lost resources or to prevent further damage to resources. The order shall specify the restoration necessary and establish a reasonable time for its completion. The order shall be issued only after a hearing with at least thirty (30) days' notice to the affected person of the hearing's time, place, and purpose, and shall become effective immediately upon issuance by the board. The board shall require any scientific monitoring plan they believe necessary to ensure the successful reestablishment of wetlands protected by this chapter and may require that a prepaid contract acceptable to the board be in effect for the purpose of carrying out the scientific monitoring plan. The board may also 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 set forth in the restoration order. The appropriate court, upon petition by the board, may enforce any such restoration order by injunction, mandamus, or other appropriate remedy. Failure to complete the required restoration is a violation of this chapter.

(e)

The duties of the board chairman under this section may be delegated to a designee; however, this designee shall not be a designated enforcement officer.

(Ord. No. 4428-93, § 1)

Sec. 44-19. - Violation of orders, rules and regulations.

Any person who knowingly, intentionally, negligently or continually violates any order, rule or regulation of the wetlands board or violates any provision of the provisions contained in this chapter, or any provision of a permit granted by the wetlands board shall be guilty of a Class 1 misdemeanor. Following a conviction, every day the violation continues is a separate offense.

(Ord. No. 4428-93, § 1)

Sec. 44-20. - Injunctions.

Upon petition of the wetlands board to the circuit court of the city, when any act is done or threatened which is unlawful under this chapter, the court may enjoin the unlawful act and order the defendant to take any steps necessary to restore, protect and preserve the wetlands involved. This remedy shall be exclusive of and in addition to any criminal penalty which may be imposed under section 44-18.

(Ord. No. 4428-93, § 1)