Sec. 35-1. - Purpose of chapter.

The purpose of this chapter is to conserve the land, water, air and other natural resources of the city by establishing requirements for the control of soil erosion and sedimentation resulting from land-disturbing activities and by establishing procedures whereby these requirements shall be administered and enforced.

(Ord. No. 4667-94; Ord. No. 6296-06)

Sec. 35-2. - Authority, administration and enforcement of chapter.

The director of engineering shall administer and enforce the provisions of this chapter, which is authorized by Title 10.1, Chapter 5, Article 4 (Section 10.1-560 et seq.) of the Code of Virginia, (1950, as amended).

(Ord. No. 4667-94; Ord. No. 6296-06)

Sec. 35-3. - Definitions.

For the purpose of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:

Agreement in lieu of a plan. A contract between the plan approving authority and the owner that specifies conservation measures which 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 or an erosion and sediment control plan.

Applicant. Any person submitting an erosion and sediment control plan or an agreement in lieu of a plan for approval or requesting the issuance of a permit, where required, authorizing land-disturbing activities to commence.

Board. The Virginia Soil and Water Conservation Board.

Certified inspector. An employee or agent of the City of Newport News 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 (1) year after enrollment.

Certified plan reviewer. An employee or agent of the City of Newport News 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 (1) year after enrollment, or (iii) is licensed as a professional engineer, architect, certified landscape architect or land surveyor pursuant to Article 1, Chapter 4 of Title 54.1 of the Code of Virginia (1950, as amended).

Certified program administrator. An employee or agent of the City of Newport News 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.

Code of Virginia. The laws adopted by the Virginia General Assembly embraced in titles, chapters, articles and sections made effective February 1, 1950, as amended thereafter.

Director. The Director of Engineering of the City of Newport News, Virginia, or his designee.

Erosion and sediment control plan, conservation plan or plan. A document containing material relating to the conservation of soil and water resources of a unit or a 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 to ensure that the entire unit or units of land will be so treated to achieve the conservation objectives.

Erosion impact area. 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 ten thousand (10,000) square feet or less used for residential purposes or to shorelines where the erosion results from wave action or other coastal processes.

Land-disturbing activity. Any land change, including but not limited to clearing, grading, excavating, transporting and filling of land, which may result in soil erosion from water or wind and the movement of sediments into waters or onto adjacent properties.

Local erosion and sediment control program or local control program. An outline of the various methods employed by the city 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.

Owner. 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.

Permittee. 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.

Person. Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative or any other legal entity.

Plan-approving authority. The director who is responsible for determining the adequacy of a conservation plan submitted for land-disturbing activities on a unit or units of lands and for approving plans.

Responsible land disturber. The responsible land disturber can be anyone from the project team or development team holding a responsible land disturber certificate who will be in charge of and responsible for carrying out the land-disturbing activity for the project. In the absence of a specific responsible land disturber certificate issued by the Virginia Department of Conservation and Recreation, persons having the following are automatically considered to be responsible land disturbers: (1) persons holding combined administrator, administrator, plan reviewer, inspector, or contractor certificates issued by the Virginia Department of Conservation and Recreation, and (2) persons holding a valid professional engineer, land surveyor, landscape architect, or architect license issued by the Commonwealth of Virginia. The responsible land disturber cannot be an employee of any local department of conservation and recreation program authority or of the City of Newport News, Virginia (the local permit issuing authority).

State erosion and sediment control program or state program. The program administered by the board as it relates to this chapter, including regulations designed to minimize erosion and sedimentation.

State waters. All waters on the surface and under the ground wholly or partially within or bordering the Commonwealth or within its jurisdiction.

Subdivision. The land subdivided; and, when appropriate to the context, the process of subdividing or re-subdividing. To subdivide means the division of a parcel of land by the owner thereof into lots for the purpose of transfer of ownership or building development and shall specifically include the division of a lot or parcel of land by an owner in order to create within, on, or through that lot or parcel of land a street meeting the specifications of the Subdivision Ordinance of Newport News, Virginia to be dedicated to the public.

(Ord. No. 4667-94; Ord. No. 5652-01, § 1; Ord. No. 6296-06)

Sec. 35-4. - Conflict with other regulations.

This chapter is intended to be supplemental to the subdivision ordinance, the zoning ordinance, the site plan ordinance, the Chesapeake Bay Preservation Ordinance, and any other city regulation or policy governing the development of land, the removal of soil or other land-disturbing activity. The most restrictive standards imposed by any city ordinance, regulation or policy shall have precedence.

(Ord. No. 4667-94; Ord. No. 6296-06)

Sec. 35-5. - Exemptions from chapter.

The following specific uses and activities shall be excluded from the provisions of this chapter:

(1)

Minor land-disturbing activities such as home gardens and individual home landscaping, repairs and maintenance work.

(2)

Individual service connections.

(3)

Installation, maintenance or repair of any underground public utility lines, when such activity occurs on an existing hard-surfaced road, street or sidewalk, provided such land-disturbing activity is confined to the area of the road, street or sidewalk which is hard-surfaced.

(4)

Septic tank lines or drainage fields, unless included in an overall plan for a land-disturbing activity relating to construction of the building to be served by the septic tank system.

(5)

Surface or deep mining activities authorized under a permit issued by the State Department of Mines, Minerals, and Energy.

(6)

Exploration or drilling for oil and gas, including the well site, roads, feeder lines and off-site disposal areas;.

(7)

Tilling, planting or harvesting agricultural, horticultural or forest crops, or livestock feedlot operations; including engineering operations as follows: construction of terraces, terrace outlets, check dams, de-silting 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 (Section 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 Section 10.1-1163 of the Code of Virginia.

(8)

Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities and other related structures and facilities of a railroad company.

(9)

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 Virginia Dam Safety Act, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage and land irrigation.

(10)

Disturbed land areas of less than twenty-five hundred (2,500) square feet in size.

(11)

Installations of fence and sign posts or telephone and electric poles and other kinds posts or poles.

(12)

Shore erosion control projects on tidal waters when all of the land-disturbing activities are within the regulatory authority of and approved by the Newport News Wetlands Board, the Virginia Marine Resources Commission, or the United States Army Corps of Engineers; however, any associated land that is disturbed outside of this exempted area shall remain subject to this chapter.

(13)

Emergency work to protect life, limb or property and emergency repairs; however, if the land-disturbing activity would have required an approved erosion and sediment control plan if the activity had not been an emergency, the land area disturbed shall be shaped and stabilized in accordance with the requirements of this chapter.

(Ord. No. 4667-94; Ord. No. 5941-03, § 1; Ord. No. 6296-06)

Sec. 35-6. - Violations of chapter—Generally.

(a)

Any person who engages in any land-disturbing activity regulated by this chapter without first obtaining a permit for such activity as prescribed by this chapter shall be in violation of this chapter.

(b)

Any person who violates any condition of any permit for land-disturbing activity or exceeds the scope of approval of any such activity shall be in violation of this chapter.

(Ord. No. 4667-94; Ord. No. 6296-06)

Sec. 35-7. - Same—Notice.

(a)

The director, upon determination of a violation of this chapter, shall immediately serve upon the violator, either delivered to the site of the land-disturbing activity to the agent or employee supervising such activities or by registered or certified mail, a notice to comply. Such notice shall set forth the conditions of noncompliance and shall specify the time within which measures of compliance must be completed. Failure to comply with such notice shall also be a violation of this chapter and may also be grounds for revocation of the permit, if applicable.

(b)

Upon receipt of a sworn complaint of a violation of this chapter, the director, in conjunction with or subsequent to a notice to comply as specified in this chapter, shall 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 or, if land-disturbing activities have commenced without an approved plan as provided in this chapter, requiring that all of the land-disturbing activities be stopped until an approved plan or any required permits are obtained. 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 plan or any required permits, such an order may be issued whether or not the alleged violator has been issued a notice to comply as specified in this chapter. Otherwise, such an order may be issued only after the alleged violator has failed to comply with a notice to comply. The order shall be served in the same manner as a notice to comply, and shall remain in effect for seven (7) days from the date of service pending application by the enforcing authority or alleged violator for appropriate relief to the Circuit Court of Newport News, Virginia. If the alleged violator has not obtained an approved plan or any required permits within seven (7) days from the date of service of the order, the director may issue an order to the owner requiring that all construction and other work on the site, other than corrective measures, be stopped until an approved plan and any required permits have been obtained. Such an order shall be served upon the owner by registered or certified mail to the address specified in the permit application or the land records of the locality in which the site is located. The owner may appeal the issuance of an order to the Circuit Court of Newport News, Virginia. Any person violating or failing, neglecting or refusing to obey an order issued by the director may be compelled in a proceeding instituted in the Circuit Court of Newport News, Virginia to obey same and to comply therewith by injunction, mandamus or other appropriate remedy. Upon completion and approval of corrective action or obtaining an approved plan or any required permits, the order shall immediately be lifted. Nothing in this section shall prevent the director from taking any other action specified in this chapter.

(Ord. No. 4667-94; Ord. No. 6296-06)

Sec. 35-8. - Same—Penalty; injunctive relief.

(a)

The city may apply to the circuit court for the city for injunctive relief to enjoin a violation or a threatened violation of this chapter, without the necessity of showing that there does not exist an adequate remedy at law.

(b)

In addition to any criminal penalties provided under this chapter, any person who violates any provision of this chapter may be liable to the city, in a civil action, for damages.

(c)

In lieu of criminal sanctions, civil penalties may be imposed for violation of this chapter as follows:

(1)

A civil penalty in the amount of not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) per violation shall be assessed for failure to provide, implement, maintain or properly install any of the following erosion and sediment control measures required by an approved plan:

a.

Vegetative controls including, but not limited to, permanent or temporary soil stabilization.

b.

Structural controls including, but not limited to, construction entrances, storm drain inlet and outlet protection, sediment traps and basins.

c.

Transporting sediment or debris onto paved public road by vehicular traffic or runoff.

d.

Perimeter controls including, but not limited to, straw bails or silt fences.

e.

Commencement of land disturbing activities without a permit.

(2)

Each day during which the violation is found to have existed shall constitute a separate offense. 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 ten thousand dollars ($10,000.00) except that a series of violations arising from the commencement of land-disturbance activities without a city approved plan for any site shall not result in civil penalties which exceed a total of ten thousand dollars ($10,000.00).

(d)

Without limiting the remedies provided in this chapter, any person violating or failing, neglecting or refusing to obey any injunction, mandamus or other remedy obtained pursuant to this chapter shall be subject, in the discretion of the court, to a civil penalty not to exceed two thousand dollars ($2,000.00) for each violation.

(e)

With the consent of any person who has violated or failed, neglected or refused to obey any regulation, or any condition of a permit or any provision of this chapter, the city may provide, in an order issued by the director against such person, for the payment of civil charges for violations in specific sums, not to exceed the limits specified in this chapter.

(f)

Compliance with the provisions of this chapter shall be prima facie evidence in any legal or equitable proceeding for damages caused by erosion or sedimentation that all requirements of law have been met and the complaining party shall be required to prove negligence in order to recover any damages.

(g)

Such civil penalties, as shall be imposed by a court of competent jurisdiction, pursuant to this chapter, shall be deposited into the stormwater management revenues of the city's treasury, as defined by section 37.1-11(11).

(Ord. No. 4667-94; Ord. No. 5195-98; Ord. No. 6296-06; Ord. No. 6407-07, § 1; Ord. No. 6706-10, § 1)

Editor's note—

Ord. No. 6706-10 shall be in effect on and after July 1, 2010.

Sec. 35-9. - Appeals from decisions under chapter.

Final decisions of the director under this chapter shall be subject to review by the circuit court for the city, provided an appeal is filed within thirty (30) days from the date of the pertinent written decision adversely affecting the rights, duties, privileges of the person engaging in or proposing to engage in land-disturbing activities.

(Ord. No. 4667-94; Ord. No. 6296-06)

Secs. 35-10—35-19. - Reserved.