Sec. 35-20. - Required.

(a)

No person shall undertake any land-disturbing activity, except as exempted in this chapter, without first having submitted to the director four (4) copies of an erosion and sediment control plan with certification that the plan will be followed and unless such plan has been approved as in compliance with the intent and requirements of this chapter and a permit certifying such approval has been issued as provided in this chapter. The director may execute an agreement in lieu of a plan for construction of a single-family residence or disturbed areas of less than ten thousand (10,000) square feet. No permits that authorize land-disturbing activities shall be issued without an approved erosion control plan or an executed agreement in lieu of a plan.

(b)

An erosion and sediment control plan shall be filed for a land-disturbing activity and the buildings constructed within, regardless of the phasing of construction.

(c)

If individual lots or sections in a residential development are being developed by different property owners, all land-disturbing activities related to the building construction shall be covered by an erosion and sediment control plan or an agreement in lieu of a plan signed by the property owner.

(d)

The director may require an erosion and sediment control plan if in his opinion an agreement in lieu of a plan will not provide sufficient detail to determine the effectiveness of erosion and sediment transport control measures that may be required for the site.

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

Sec. 35-21. - Responsibility of property owner when work to be done by contractor.

When any land-disturbing activity will be required of a contractor performing construction work pursuant to a construction contract, the required plan submissions and the obtaining of the permit required by this chapter shall be the responsibility of the owner.

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

Sec. 35-22. - Preparation of plan.

(a)

The plan required by this chapter shall be prepared by a certified professional engineer or land surveyor duly licensed by the Commonwealth and shall be developed in accordance with the Virginia Erosion and Sediment Control Law and the regulations promulgated thereunder.

(b)

In the absence of an approved site plan issued pursuant to the site regulations of this code, an undisturbed buffer area as described in this subsection shall be accurately located on the erosion and sediment control plan. In such cases, the buffer area, which will function as an erosion control measure, shall be retained and remain undisturbed as follows, except as otherwise approved in the plan for ingress and egress:

(1)

For parcel sizes less than one (1) acre, an undisturbed buffer area on the parcel twenty (20) feet in width, parallel and adjacent to all property lines shall be retained. For parcel sizes from one (1) acre but less than five (5) acres, an undisturbed buffer area on the parcel forty (40) feet in width parallel and adjacent to all property lines shall be retained. For all parcel sizes from five (5) acres but less than ten (10) acres, an undisturbed buffer area on the parcel sixty (60) feet in width parallel and adjacent to all property lines shall be retained. For all parcel sizes ten (10) acres or greater, an undisturbed buffer area on the parcel one hundred (100) feet in width parallel and adjacent to all property lines shall be retained.

(2)

All vegetation within a buffer area as defined in the zoning ordinance, plus an additional ten-foot strip within the parcel and adjacent to but outside of such buffer area, shall be retained and remain undisturbed. If a buffer area is adjacent to a property line, the greater of the requirements of the preceding subsection (1) or this subsection shall apply.

(c)

All areas of vegetation, including ground cover, trees, shrubs, grass and other plants, to be retained in accordance with Chapter 33.02, Site Regulations of this Code, shall be marked in the field prior to clearing taking place. One temporary point of access no greater than twenty-five (25) feet in width shall be allowed for site clearance.

(d)

Land disturbance shall be limited to the area necessary to provide for the desired use or development.

(1)

In accordance with an approved site plan, the limits of land disturbance, including clearing or grading shall be clearly shown on submitted plans and physically marked on the development site.

(2)

Where feasible, ingress and egress during construction shall be limited to one access point, unless otherwise approved by the director.

(e)

Indigenous vegetation shall be preserved to the maximum extent possible consistent with the use and development permitted and in accordance with the Virginia Erosion and Sediment Control Handbook.

(1)

Existing trees more than five (5) inches in diameter four and one-half (4.5) feet above existing grade shall be preserved outside the limits of land disturbance. Trees that are diseased or that have been weakened by age, storm, fire or other injury may be removed.

(2)

Clearing shall be allowed only to provide necessary visual and vehicular access, positive site drainage, water quality stormwater management control facilities, and the installation of utilities as approved by the director.

(3)

Prior to clearing or grading, suitable protective barriers, such as fencing, shall be erected five (5) feet outside of the dripline of any tree or stand of trees to be preserved. These protective barriers shall remain so erected throughout all phases of construction. The storage of equipment, materials, debris or fill shall not be allowed within the area protected by the barrier unless otherwise authorized by the director.

(f)

Land development shall minimize impervious cover to promote infiltration of stormwater into the ground consistent with the use or development permitted.

(g)

As a prerequisite to approval of the plan, the person responsible for carrying out the plan shall provide, in a note placed on the plan, the name of an individual holding a certificate of competence, as provided by law and set forth in the Code of Virginia, who will be in charge of and responsible for carrying out the land-disturbing activity.

(Ord. No. 4667-94; Ord. No. 5517-00; Ord. No. 5652-01, § 1; Ord. No. 6296-06)

Sec. 35-23. - Approval or disapproval of plan.

(a)

The director shall review conservation plans submitted to him and grant written approval within forty-five (45) days of the receipt of the plan if he determines that the plan meets the requirements of the guidelines and standards prescribed in this chapter 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 chapter. In addition, as a prerequisite to engaging in the land-disturbing activities shown on an approved plan, the person responsible for carrying out the plans shall provide the name of an individual holding a certificate of competence to the director as provided by Section 10.1-561 of the Code of Virginia, who will be in charge of and responsible for carrying out the land-disturbing activity. However, the director may waive the certificate of competence requirement for an agreement in lieu of a plan 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 of a plan shall correct the violation and provide the name of an individual holding a certificate of competence, issued by the board, as provided by Section 10.1-561 of the Code of Virginia. 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 chapter.

(b)

When a plan is determined to be inadequate, written notice of disapproval stating the specific reasons for disapproval shall be communicated to the applicant within forty-five (45) days. The notice shall specify the modifications, terms and conditions that will permit the approval of the plan. If no action is taken by the director within the time specified above, the plan shall be deemed approved and the person authorized to proceed with the proposed activity.

(c)

Where land-disturbing activities involve lands under the jurisdiction of more than one local control program, it shall be the applicant's responsibility to comply with the program of the jurisdiction wherein any portion of the land is located. However, an erosion and sediment control plan may, at the option of the applicant, be submitted to the board for review and approval rather than to each jurisdiction concerned. Regardless of the procedure followed by the applicant for plan approval, land-disturbing activity which takes place within the municipal boundaries of the City of Newport News shall be inspected by an inspector employed by the city and the charge set forth in this chapter for a land-disturbing permit shall be paid to the city before any land-disturbing activities will be allowed to commence.

(d)

In order to prevent further erosion, the director may require approval of a conservation plan for any land identified in the local control program as an erosion impact area.

(e)

Electric, natural gas and telephone utility companies, interstate and intrastate natural gas pipeline companies and railroad companies shall file a general erosion and sediment control specifications annually with the board for review and approval. The specifications shall apply to:

(1)

Construction, installation or maintenance of electric transmission, natural gas and telephone utility lines and pipelines; and

(2)

Construction of the tracks, rights-of-way, bridges, communications facilities and other related structures and facilities of the railroad company.

(f)

A state agency shall not undertake a project involving a land-disturbing activity unless (i) the state agency has submitted annual specifications for its conduct of land-disturbing activities which have been reviewed and approved by the Virginia Department of Conservation and Recreation as being consistent with the state program, or (ii) the state agency has submitted a conservation plan for the project which has been reviewed and approved by the Virginia Department of Conservation and Recreation.

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

Sec. 35-24. - Amendment of approved plan.

An erosion and sediment control plan approved under this chapter may be amended by the director in the following cases:

(1)

Where inspection has revealed that the plan is inadequate to satisfy applicable regulatory provisions; or

(2)

Where the person responsible for carrying out the approved 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 director and the person responsible for carrying out the plan.

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

Sec. 35-25. - Variances.

The director may waive or modify any of the regulations that are deemed inappropriate or too restrictive for site conditions, by granting a variance. A variance may be granted under these conditions:

(1)

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 director shall be documented in the plan.

(2)

During construction, the person responsible for implementing the approved plan may request a variance in writing from the director. The director shall respond in writing either approving or disapproving such a request. If the director does not approve a variance within ten (10) working 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)

The director shall consider variance requests judiciously, keeping in mind both the need of the applicant to maximize cost effectiveness and the need to protect offsite properties and resources from damage.

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

Sec. 35-26. - Aggressive, constant action required.

Should a land-disturbing activity not begin during the one hundred eighty (180) day period following plan approval or cease for more than one hundred eighty (180) days, the director may evaluate the existing approved erosion and sediment control plan to determine whether the plan still satisfies local and state erosion and sediment control criteria and to verify that all design factors are still valid. If the director finds the previously filed plan to be inadequate, a modified plan shall be submitted and approved prior to the resumption of land-disturbing activity.

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

Secs. 35-27—35-29. - Reserved.