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1996 SESSION
961798812Be it enacted by the General Assembly of Virginia:
1. That §§ 9-6.25:1, 9.6-25:2, 10.1-107, 10.1-659, and 15.1-292.4 of the Code of Virginia are amended and reenacted, and that the Code of Virginia is amended by adding in Title 62.1 a chapter numbered 3.7, containing articles numbered 1 and 2, consisting of sections numbered 62.1-44.117 through 62.1-44.146, as follow:
§ 9-6.25:1. Advisory boards, commissions and councils.
There shall be, in addition to such others as may be designated in accordance with § 9-6.25, the following advisory boards, commissions and councils within the executive branch:
Advisory Board for the Department for the Deaf and Hard-of-Hearing
Advisory Board for the Department for the Aging
Advisory Board on Child Abuse and Neglect
Advisory Board on Medicare and Medicaid
Advisory Board on Occupational Therapy
Advisory Board on Physical Therapy to the Board of Medicine
Advisory Board on Rehabilitation Providers
Advisory Board on Respiratory Therapy to the Board of Medicine
Advisory Board on Teacher Education and Licensure
Advisory Council on Revenue Estimates
Advisory Council on the Virginia Business-Education Partnership Program
Appomattox State Scenic River Advisory Board
Aquaculture Advisory Board
Art and Architectural Review Board
Board for the Visually Handicapped
Board of Directors, Virginia Truck and Ornamentals Research Station
Board of Forestry
Board of Military Affairs
Board of Rehabilitative Services
Board of Transportation Safety
Board of Trustees of the Family and Children's Trust Fund
Board of Visitors, Gunston Hall Plantation
Board on Veterans' Affairs
Catoctin Creek State Scenic River Advisory Board
Cave Board
Chickahominy State Scenic River Advisory Board
Clinch Scenic River Advisory Board
Coal Surface Mining Reclamation Fund Advisory Board
Coastal Land Management Advisory Council, Virginia
Commonwealth Competition Council
Conservation and Recreation Advisory Board
Council on Indians
Council on the Status of Women
Debt Capacity Advisory Committee
Emergency Medical Services Advisory Board
Falls of the James Committee
Film Office Advisory Board
Forensic Science Advisory Board
Goose Creek Scenic River Advisory Board
Governor's Council on Alcohol and Drug Abuse Problems
Governor's Mined Land Reclamation Advisory Committee
Hemophilia Advisory Board
Human Services Information and Referral Advisory Council
Industrial Development Services Advisory Board
Interagency Coordinating Council on Housing for the Disabled
Interdepartmental Board of the State Department of Minority Business Enterprise
Laboratory Services Advisory Board
Litter Control and Recycling Fund Advisory Board
Local Advisory Board to the Blue Ridge Community College
Local Advisory Board to the Central Virginia Community College
Local Advisory Board to the Dabney S. Lancaster Community College
Local Advisory Board to the Danville Community College
Local Advisory Board to the Eastern Shore Community College
Local Advisory Board to the Germanna Community College
Local Advisory Board to the J. Sargeant Reynolds Community College
Local Advisory Board to the John Tyler Community College
Local Advisory Board to the Lord Fairfax Community College
Local Advisory Board to the Mountain Empire Community College
Local Advisory Board to the New River Community College
Local Advisory Board to the Northern Virginia Community College
Local Advisory Board to the Patrick Henry Community College
Local Advisory Board to the Paul D. Camp Community College
Local Advisory Board to the Piedmont Virginia Community College
Local Advisory Board to the Rappahannock Community College
Local Advisory Board to the Southwest Virginia Community College
Local Advisory Board to the Thomas Nelson Community College
Local Advisory Board to the Tidewater Community College
Local Advisory Board to the Virginia Highlands Community College
Local Advisory Board to the Virginia Western Community College
Local Advisory Board to the Wytheville Community College
Maternal and Child Health Council
Medical Advisory Board, Department of Motor Vehicles
Medical Board of the Virginia Retirement System
Migrant and Seasonal Farmworkers Board
Motor Vehicle Dealer's Advisory Board
Nottoway State Scenic River Advisory Board
Personnel Advisory Board
Plant Pollination Advisory Board
Private College Advisory Board
Private Enterprise Commission
Private Security Services Advisory Board
Psychiatric Advisory Board
Radiation Advisory Board
Rappahannock Scenic River Advisory Board
Recreational Fishing Advisory Board, Virginia
Reforestation Board
Retirement System Review Board
Rockfish State Scenic River Advisory Board
Shenandoah State Scenic River Advisory Board
Small Business Advisory Board
Small Business Environmental Compliance Advisory Board
St. Mary's Scenic River Advisory Committee
State Advisory Board on Air Pollution
State Advisory Board for the Virginia Employment Commission
State Building Code Technical Review Board
State Council on Local Debt
State Health Benefits Advisory Council
State Insurance Advisory Board
State Land Evaluation Advisory Council
State Networking Users Advisory Board
State Public Records Advisory Council
Statewide Independent Living Council
Statewide Rehabilitation Advisory Council
Statewide Rehabilitation Advisory Council for the Blind
Staunton Scenic River Advisory Committee
Telecommunications Relay Service Advisory Board
Tourism and Travel Services Advisory Board
Virginia Advisory Commission on Intergovernmental Relations
Virginia Advisory Council for Adult Education and Literacy
Virginia Coal Mine Safety Board
Virginia Coal Research and Development Advisory Board
Virginia Commission for the Arts
Virginia Commission on the Bicentennial of the United States Constitution
Virginia Correctional Enterprises Advisory Board
Virginia Council on Coordinating Prevention
Virginia Equal Employment Opportunity Council
Virginia Interagency Coordinating Council
Virginia Military Advisory Council
Virginia Public Buildings Board
Virginia Recycling Markets Development Council
Virginia Technology Council
Virginia Transplant Council
Virginia Veterans Cemetery Board
Virginia Water Resources Research Center, Statewide Advisory Board
Virginia Winegrowers Advisory Board.
§ 9-6.25:2. Policy boards, commissions and councils.
There shall be, in addition to such others as may be designated in accordance with § 9-6.25, the following policy boards, commissions and councils:
Apprenticeship Council
Athletic Board
Auctioneers Board
Blue Ridge Regional Education and Training Council
Board for Accountancy
Board for Architects, Professional Engineers, Land Surveyors and Landscape Architects
Board for Barbers
Board for Contractors
Board for Cosmetology
Board for Geology
Board for Hearing Aid Specialists
Board for Opticians
Board for Professional and Occupational Regulation
Board for Professional Soil Scientists
Board for Waterworks and Wastewater Works Operators
Board of Agriculture and Consumer Services
Board of Audiology and Speech-Language Pathology
Board of Coal Mining Examiners
Board of Conservation and Recreation
Board of Correctional Education
Board of Dentistry
Board of Directors, Virginia Student Assistance Authorities
Board of Funeral Directors and Embalmers
Board of Health Professions
Board of Historic Resources
Board of Housing and Community Development
Board of Medical Assistance Services
Board of Medicine
Board of Mineral Mining Examiners
Board of Nursing
Board of Nursing Home Administrators
Board of Optometry
Board of Pharmacy
Board of Professional Counselors
Board of Psychology
Board of Recreation Specialists
Board of Social Services
Board of Social Work
Board of Surface Mining Review
Board of Veterinary Medicine
Board on Conservation and Development of Public Beaches
Chesapeake Bay Local Assistance Board
Child Day Care and Early Childhood Programs, Virginia Council on
Child Day-Care Council
Commission on Local Government
Commonwealth Transportation Board
Council on Human Rights
Council on Information Management
Criminal Justice Services Board
Disability Services Council
Farmers Market Board, Virginia
Immigrant and Refugee Policy Council
Interdepartmental Council on Rate-setting for Children's Facilities
Library Board, the Library of Virginia
Marine Resources Commission
Milk Commission
Pesticide Control Board
Real Estate Appraiser Board
Real Estate Board
Reciprocity Board, Department of Motor Vehicles
Safety and Health Codes Board
Seed Potato Board
Southside Virginia Marketing Council
Specialized Transportation Council
State Air Pollution Control Board
State Board of Corrections
State Board of Elections
State Board of Health
State Board of Youth and Family Services
State Health Department, Sewage Handling and Disposal Appeal Review Board
State Library Board
State Mental Health, Mental Retardation and Substance Abuse Services Board
State Water Control Board
Substance Abuse Certification Board
Treasury Board, The, Department of the Treasury
Virginia Aviation Board
Virginia Board for Asbestos Licensing
Virginia Fire Services Board
Virginia Gas and Oil Board
Virginia Health Planning Board
Virginia Health Services Cost Review Council
Virginia Manufactured Housing Board
Virginia Parole Board
Virginia Public Telecommunications Board
Virginia Soil and Water Conservation Board
Virginia Voluntary Formulary Board
Virginia Waste Management Board
Virginia World Trade Council.
Waste Management Facility Operators, Board for.
§ 10.1-107. General powers and duties of the Board.
A. The Board shall advise the Governor and the Director on
activities of the Department. Upon the request of the Governor, or the
Director, the Board shall institute investigations and make recommendations.
The Board shall formulate recommendations to the Director concerning:
1. Requests for grants or loans pertaining to outdoor recreation.
2. Designation of recreational and historical sites eligible for recreational access road funds.
3. Designations proposed for scenic rivers, scenic highways, and Virginia byways.
4. Acquisition of real property by fee simple or other interests in property for the Department including, but not limited to, state parks, state recreational areas, state trails, greenways, natural areas and natural area preserves, and other lands of biological, environmental, historical, recreational or scientific interest.
5. Acquisition of bequests, devises and gifts of real and personal property, and the interest and income derived therefrom.
B. The Board shall have the authority to promulgate regulations necessary
for the execution of the Virginia Stormwater Management Act, Article 1.1,
(§ 10.1-603.1 et seq.) of Chapter 6 of this title.
§ 10.1-659. Flood protection programs; coordination.
The provisions of this chapter shall be coordinated with federal, state and
local flood prevention and water quality programs to minimize loss of life,
property damage and negative impacts on the environment. This program
coordination shall include but not be limited to the following: flood
prevention, flood plain management, small watershed protection, dam safety,
and soil conservation, stormwater management and erosion and
sediment control programs of the Department of Conservation and
Recreation; the construction activities of the Department of Transportation
which result in hydrologic modification of rivers, streams and flood plains;
the water quality, stormwater management and erosion and sediment control
and other water management programs of the State Water Control Board;
forested watershed management programs of the Department of Forestry; the
statewide building code and other land use control programs of the Department
of Housing and Community Development; local planning assistance programs of the
Council on the Environment; the habitat management programs of the Virginia
Marine Resources Commission; the hazard mitigation planning and disaster
response programs of the Department of Emergency Services; the fish habitat
protection programs of the Department of Game and Inland Fisheries; the mineral
extraction regulatory program of the Department of Mines, Minerals and Energy;
the flood plain restrictions of the Department of Waste Management; the
Chesapeake Bay Preservation Area criteria and local government assistance
programs of the Chesapeake Bay Local Assistance Board. The Department shall
also coordinate and cooperate with localities in rendering assistance to such
localities in their efforts to comply with the planning, subdivision of land
and zoning provisions of Chapter 11 (§ 15.1-427 et seq.) of Title 15.1.
The Department shall cooperate with other public and private agencies having
flood plain management programs, and shall coordinate its responsibilities
under this article and any other law. These activities shall constitute the
Commonwealth's flood prevention and protection program.
§ 15.1-292.4. Regulation of stormwater.
A. The governing body of every county, city or town, by ordinance, may adopt a
stormwater control program consistent with Article 1.1 (§ 10.1-603.1
et seq.) of Chapter 6 of Title 10.1 3 (§
62.1-44.132 et seq.) of Chapter 3.7 of Title 62.1, or any
other state or federal regulation, by establishing a utility or enacting a
system of service charges. Any locality which administers a stormwater control
program may recover costs associated with planning, design, land acquisition,
construction, operation and maintenance activities. Income derived from these
charges shall be dedicated special revenue and may be used only for the
following:
1. The acquisition by gift, purchase, or condemnation of real and personal property, and interest therein, necessary to construct, operate and maintain stormwater control facilities;
2. The cost of administration of such programs;
3. Engineering and design, debt retirement, construction costs for new facilities and enlargement or improvement of existing facilities;
4. Facility maintenance;
5. Monitoring of stormwater control devices; and
6. Pollution control and abatement, consistent with state and federal regulations for water pollution control and abatement.
B. The charges may be assessed to property owners or occupants, including condominium unit owners or tenants (when the tenant, or tenants, is the party to whom the water and sewer service is billed), and shall be based upon their contributions to stormwater runoff; however, prior to adopting such a system, a public hearing shall be held after giving notice as required by § 15.1-504 or by charter. A locality adopting such a system shall provide for full waivers of charges to federal, state, or local government agencies when the agency owns and provides for maintenance of storm drainage and stormwater control facilities or is a unit of the locality administering the program. A locality adopting such a system shall also provide for full waivers of charges to any person who owns and provides for complete private maintenance of storm drainage and stormwater facilities, provided such person has obtained the proper permits from the Department of Environmental Quality. Income derived from service charges may not exceed the actual costs incurred by a locality operating under the provisions of this title.
C. Every county, city and town is hereby authorized to issue general obligation bonds or revenue bonds in order to finance the cost of infrastructure and equipment for a stormwater control program. Infrastructure and equipment shall include structural and natural stormwater control systems of all types, including, without limitation, retention basins, sewers, conduits, pipelines, pumping and ventilating stations, and other plants, structures, and real and personal property used for support of the system. The procedure for the issuance of any such general obligation bonds or revenue bonds pursuant to this section shall be in conformity with the procedure for issuance of such bonds as set forth in the Public Finance Act (§ 15.1-227.1 et seq.).
D. In the event charges are not paid when due, interest thereon shall at that time accrue at the rate, not to exceed the maximum amount allowed by law, determined by the governing body of such county, city or town until such time as the overdue payment and interest is paid. Charges and interest may be recovered by the county, city or town by action at law or suit in equity and shall constitute a lien against the property, ranking on a parity with liens for unpaid taxes.
E. Any two or more counties, cities or towns may enter into cooperative agreements concerning the management of stormwater.
§ 62.1-44.117. Short title.
This article shall be known and may be cited as the Erosion and Sediment Control Law.
§ 62.1-44.118. Definitions.
As used in this article, unless the context requires a different meaning:
"Agreement in lieu of a plan" means a contract between the plan-approving authority and the owner which specifies conservation measures that must be implemented in the construction of a single-family residence. This contract may be executed by the plan-approving authority in lieu of a formal site plan.
"Applicant" means any person submitting an erosion and sediment control plan for approval or requesting the issuance of a permit, when required, authorizing land-disturbing activities to commence.
"Board" means the State Water Control Board.
"Certified inspector" means an employee or agent of a program authority who (i) holds a certificate of competence from the Board in the area of project inspection or (ii) is enrolled in the Board's training program for project inspection and successfully completes such program within one year after enrollment.
"Certified plan reviewer" means an employee or agent of a program authority who (i) holds a certificate of competence from the Board in the area of plan review, (ii) is enrolled in the Board's training program for plan review and successfully completes such program within one year after enrollment, or (iii) is licensed as a professional engineer, architect, certified landscape architect or land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1
"Certified program administrator" means an employee or agent of a program authority who (i) holds a certificate of competence from the Board in the area of program administration or (ii) is enrolled in the Board's training program for program administration and successfully completes such program within one year after enrollment.
"Conservation plan," "erosion and sediment control plan," or "plan" means a document containing material for the conservation of soil and water resources of a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain all major conservation decisions to assure that the entire unit or units of land will be so treated to achieve the conservation objectives.
"Department" means the Department of Environmental Quality.
"District" or "soil and water conservation district" means a political subdivision of this Commonwealth organized in accordance with the provisions of Article 3 (§ 10.1-506 et seq.) of Chapter 5 of Title 10.1.
"Erosion impact area" means an area of land not associated with current land-disturbing activity but subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into state waters. This definition shall not apply to any lot or parcel of land of 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" means any land change which may result in soil erosion from water or wind and the movement of sediments into state waters or onto lands in the Commonwealth, including, but not limited to, clearing, grading, excavating, transporting and filling of land, except that the term shall not include:
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 the 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 land-disturbing activity relating to construction of the building to be served by the septic tank system;
5. Surface or deep mining;
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 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 or is converted to bona fide agricultural or improved pasture use as described in subsection B of § 10.1-1163;
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 provisions of the Dam Safety Act, (§ 10.1-604 et seq.), ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage and land irrigation;
10. Disturbed land areas of less than 10,000 square feet in size; however, the governing body of the program authority may reduce this exception to a smaller area of disturbed land or qualify the conditions under which this exception shall apply;
11. Installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles;
12. Shore erosion control projects on tidal waters when the projects are approved by local wetlands boards, the Marine Resources Commission or the United States Army Corps of Engineers; and
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 were not an emergency, then the land area disturbed shall be shaped and stabilized in accordance with the requirements of the plan-approving authority.
"Local erosion and sediment control program" or "local control program" means an outline of the various methods employed by a program authority 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" means the owner or owners of the freehold of the premises or lesser estate therein, a mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee or other person, firm or corporation in control of a property.
"Permittee" means the person to whom the permit authorizing land-disturbing activities is issued or the person who certifies that the approved erosion and sediment control plan will be followed.
"Person" means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, or other political subdivision of the Commonwealth, any interstate body, or any other legal entity.
"Plan-approving authority" means the Board, the program authority, or a department of a program authority, 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.
"Program authority" means a district, county, city, or town which has adopted a soil erosion and sediment control program which has been approved by the Board.
"State erosion and sediment control program" or "state program" means the program administered by the Board pursuant to this chapter, including regulations designed to minimize erosion and sedimentation.
"State waters" means all waters on the surface and under the ground wholly or partially within or bordering the Commonwealth or within its jurisdiction.
"Town" means an incorporated town.
§ 62.1-44.119. State erosion and sediment control program.
A. The Board shall develop a program and promulgate regulations for the effective control of soil erosion, sediment deposition and nonagricultural runoff which must be met in any control program to prevent the unreasonable degradation of properties, stream channels, waters and other natural resources in accordance with the Administrative Process Act (§ 9-6.14:1 et seq.).
The regulations shall:
1. Be based upon relevant physical and developmental information concerning the watersheds and drainage basins of the Commonwealth, including, but not limited to, data relating to land use, soils, hydrology, geology, size of land area being disturbed, proximate water bodies and their characteristics, transportation, and public facilities and services;
2. Include such survey of lands and waters as may be deemed appropriate by the Board or required by any applicable law to identify areas, including multijurisdictional and watershed areas, with critical erosion and sediment problems; and
3. Contain conservation standards for various types of soils and land uses, which shall include criteria, techniques, and methods for the control of erosion and sediment resulting from land-disturbing activities.
B. The Board shall provide technical assistance and advice to, and conduct and supervise educational programs for, districts and localities which have adopted local control programs.
C. The program and regulations shall be available for public inspection at the Department.
D. The Board shall promulgate regulations establishing minimum standards of effectiveness of erosion and sediment control programs, and criteria and procedures for reviewing and evaluating the effectiveness of erosion and sediment control programs. In developing minimum standards for program effectiveness, the Board shall consider information and standards on which the regulations promulgated pursuant to subsection A of this section are based.
E. The Board shall periodically conduct a comprehensive review and evaluation to ensure that all erosion and sediment control programs operating under the jurisdiction of this article meet minimum standards of effectiveness in controlling soil erosion, sediment deposition and nonagricultural runoff. The Board shall develop a schedule for conducting periodic reviews and evaluations of the effectiveness of erosion and sediment control programs.
F. The Board shall issue certificates of competence concerning the content, application and intent of specified subject areas of this chapter and accompanying regulations, including program administration, plan review, and project inspection, to personnel of program authorities and to any other persons who have completed training programs or in other ways demonstrated adequate knowledge. The Department shall administer education and training programs for specified subject areas of this article and accompanying regulations, and is authorized to charge persons attending such programs reasonable fees to cover the costs of administering the programs.
§ 62.1-44.120. Certification of local program personnel.
A. The minimum standards of local program effectiveness established by the Board pursuant to subsection D of § 62.1-44.119 shall provide that within one year following the adoption of amendments to the local program adding the provisions of this section, (i) a conservation plan shall not be approved until it is reviewed by a certified plan reviewer; (ii) inspections of land-disturbing activities are conducted by a certified inspector; and (iii) a local program shall contain a certified program administrator, a certified plan reviewer, and a certified project inspector, who may be the same person.
B. Any person who holds a certificate of competence from the Board in the areas of plan review, project inspection, or program administration which was attained prior to the adoption of the mandatory certification provisions of subsection A of this section shall be deemed to satisfy the requirements of that area of certification.
§ 62.144.121. Local erosion and sediment control programs.
A. Each district in the Commonwealth shall adopt and administer an erosion and sediment control program for any area within the district for which a county, city, or town does not have an approved erosion and sediment control program.
To carry out its program, the district shall adopt regulations consistent with the state program. The regulations may be revised from time to time as necessary. Before adopting or revising regulations, the district shall give due notice and conduct a public hearing on the proposed or revised regulations except that a public hearing shall not be required when the district is amending its program to conform to revisions in the state program. However, a public hearing shall be held if a district proposes or revises regulations that are more stringent than the state program. The program and regulations shall be available for public inspection at the principal office of the district.
B. In areas where there is no district, a county, city, or town shall adopt and administer an erosion and sediment control program.
C. Any county, city, or town within a district may adopt and administer an erosion and sediment control program.
Any town, lying within a county which has adopted its own erosion and sediment control program, may adopt its own program or become subject to the county program. If a town lies within the boundaries of more than one county, the town shall be considered for the purposes of this article to be wholly within the county in which the larger portion of the town lies. Any county, city, or town with an erosion and sediment control program may designate its department of public works or a similar local government department as the plan-approving authority or may designate the district as the plan-approving authority for all or some of the conservation plans.
D. Any erosion and sediment control program adopted by a district, county, city, or town shall be approved by the Board if it is consistent with the state program and regulations for erosion and sediment control.
E. If a review conducted by the Board of a local control program indicates that the program authority has not administered, enforced or conducted its program in a manner that satisfies the minimum standards of effectiveness established pursuant to subsection D of § 62.1-44.119, the Board shall notify the program authority in writing, which notice shall identify corrective action required to attain the minimum standard of effectiveness and shall include an offer to provide technical assistance to implement the corrective action. If the program authority has not implemented the corrective action identified by the Board within thirty days following receipt of the notice, or such additional period as is necessary to complete the implementation of the corrective action, then the Board shall revoke its approval of the program. Prior to revoking its approval of any local control program, the Board shall conduct a formal hearing pursuant to § 9-6.14:12 of the Administrative Process Act. Judicial review of any order of the Board revoking its approval of a local control program shall be made in accordance with Article 4 (§ 9-6.14:15 et seq.) of the Administrative Process Act.
F. If the Board revokes its approval of a local control program of a county, city, or town, and the locality is in a district, the district shall adopt and administer an erosion and sediment control program for the locality.
G. If the Board (i) revokes its approval of a local control program of a district, or of a county, city, or town not in a district, or (ii) finds that a local program consistent with the state program and regulations has not been adopted by a district or a county, city, or town which is required to adopt and administer a local program, the Board shall, after such hearings or consultations as it deems appropriate with the various local interests involved, develop, adopt, and administer an appropriate program to be carried out within such district, county, city, or town, as applicable, by the Board.
H. If the Board has revoked its approval of any local control program, the program authority may request that the Board approve a replacement program, and the Board shall approve the replacement program if it finds that (i) the program authority is capable of administering the program in accordance with the minimum standards of effectiveness and (ii) the replacement program otherwise meets the requirements of the state program and regulations. The Board shall conduct a formal hearing pursuant to § 9-6.14:12 of the Administrative Process Act on any request for approval of a replacement program.
I. Any program authority which administers an erosion and sediment control program may charge applicants a reasonable fee to defray the cost of program administration. A program authority shall hold a public hearing prior to enacting an ordinance establishing a schedule of fees. The fee shall not exceed an amount commensurate with the services rendered, taking into consideration the time, skill and administrators' expense involved.
J. The governing body of any county, city or town which (i) is in a district which has adopted a local control program, (ii) has adopted its own local control program, (iii) is subject to a local control program adopted by the Board, or (iv) administers a local control program, may adopt an ordinance providing that violations of any regulation or order of the Board, any provision of its program, any condition of a permit, or any provision of this article shall be subject to a civil penalty. The civil penalty for any one violation shall be $100, except that the civil penalty for commencement of land-disturbing activities without an approved plan as provided in § 62.1-44.122 shall be $1,000. 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 $3,000, 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. Adoption of such an ordinance providing that violations are subject to a civil penalty shall be in lieu of criminal sanctions and shall preclude the prosecution of such violation as a misdemeanor under subsection A of § 62.1-44.128.
§ 62.1-44.122. Regulated land-disturbing activities; submission and approval of control plan.
A. Except as provided in § 62.1-44.123, no person may engage in any land-disturbing activity until he has submitted to the district or locality an erosion and sediment control plan for the land-disturbing activity and the plan has been reviewed and approved by the plan-approving authority. Where land-disturbing activities involve lands under the jurisdiction of more than one local control program an erosion and sediment control plan may, at the option of the applicant, be submitted to the Board for review and approval rather than to each jurisdiction concerned. Where the land-disturbing activity results from the construction of a single-family residence, an agreement in lieu of a plan may be substituted for an erosion and sediment control plan if executed by the plan-approving authority.
B. The plan-approving authority shall review conservation plans submitted to it and grant written approval within forty-five days of the receipt of the plan if it determines that the plan meets the requirements of the Board's regulations and if the person responsible for carrying out the plan certifies that he will properly perform the conservation measures included in the plan and will conform to the provisions of this article.
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 days. The notice shall specify the modifications, terms and conditions that will permit approval of the plan. If no action is taken by the plan-approving authority within the time specified above, the plan shall be deemed approved and the person authorized to proceed with the proposed activity.
C. An approved plan may be changed by the authority that approved the plan in the following cases:
1. Where inspection has revealed that the plan is inadequate to satisfy applicable regulations; 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 plan-approving authority and the person responsible for carrying out the plan.
D. Electric and telephone utility companies and railroad companies shall file general erosion and sediment control specifications annually with the Board for review and written comments. The specifications shall apply to:
1. Construction, installation or maintenance of electric and telephone utility lines; and
2. Construction of the tracks, rights-of-way, bridges, communication facilities and other related structures and facilities of the railroad company.
The Board shall have sixty days in which to comment. Individual approval of separate projects within subdivisions 1 and 2 of this subsection is not necessary when approved specifications are followed. Projects not included in subdivisions 1 and 2 of this subsection shall comply with the requirements of the appropriate local erosion and sediment control program. The Board shall have the authority to enforce approved specifications.
E. In order to prevent further erosion a local program may require approval of a conservation plan for any land identified in the local program as an erosion impact area.
F. For the purposes of subsections A and B of this section, when land-disturbing activity will be required of a contractor performing construction work pursuant to a construction contract, the preparation, submission and approval of an erosion and sediment control plan shall be the responsibility of the owner.
§ 62.1-44.123. State agency projects.
A. 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 Department 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 Department.
B. The Department shall not approve a conservation plan submitted by a federal or state agency for a project involving a land-disturbing activity (i) in any locality which has not adopted a local program with more stringent regulations than those of the state program or (ii) in multiple jurisdictions with separate local programs, unless the conservation plan is consistent with the requirements of the state program.
C. The Department shall not approve a conservation plan submitted by a federal or state agency for a project involving a land-disturbing activity in one locality with a local program with more stringent regulations than those of the state program unless the conservation plan is consistent with the requirements of the local program. If a locality has not submitted a copy of its local program regulations to the Department, the provisions of subsection B of this section shall apply.
D. The Department shall have sixty days in which to comment on any specifications or conservation plan submitted to it for review, and its comments shall be binding on the state agency and any private business hired by the state agency.
E. As on-site changes occur, the state agency shall submit changes in a conservation plan to the Department.
F. The state agency responsible for the land-disturbing activity shall ensure compliance with the approved plan or specifications.
§ 62.1-44.124. Approved plan required for issuance of grading, building, or other permits; security for performance.
Agencies authorized under any other law to issue grading, building, or other permits for activities involving land-disturbing activities may not issue any such permit unless the applicant submits with his application an approved erosion and sediment control plan and certification that the plan will be followed. Prior to issuance of any permit, the agency may also require an applicant to submit a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the agency, to ensure that measures could be taken by the agency at the applicant's expense should he fail, after proper notice, within the time specified to initiate or maintain appropriate conservation action which may be required of him by the approved plan as a result of his land-disturbing activity. If the agency takes such conservation action upon such failure by the permittee, the agency may collect from the permittee for the difference should the amount of the reasonable cost of such action exceed the amount of the security held. Within sixty days of the achievement of adequate stabilization of the land-disturbing activity, the bond, cash escrow, letter of credit or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated. These requirements are in addition to all other provisions of law relating to the issuance of such permits and are not intended to otherwise affect the requirements for such permits.
§ 62.1-44.125. Monitoring, reports and inspections.
A. The plan-approving authority or, if a permit is issued in connection with land-disturbing activities which involve the issuance of a grading, building, or other permit, the permit-issuing authority (i) shall provide for periodic inspections of the land-disturbing activity and (ii) may require monitoring and reports from the person responsible for carrying out the plan, to ensure compliance with the approved plan and to determine whether the measures required in the plan are effective in controlling erosion and sediment. The owner, permittee, or person responsible for carrying out the plan shall be given notice of the inspection. If the permit-issuing authority or plan-approving authority determines that there is a failure to comply with the plan, notice shall be served upon the permittee or person responsible for carrying out the plan by registered or certified mail to the address specified in the permit application or in the plan certification, or by delivery at the site of the land-disturbing activities to the agent or employee supervising such activities. Where the plan-approving authority serves notice, a copy of the notice shall also be sent to the issuer of the permit. The notice shall specify the measures needed to comply with the plan and shall specify the time within which such measures shall be completed. Upon failure to comply within the time specified, the permit may be revoked and the permittee or person responsible for carrying out the plan shall be deemed to be in violation of this chapter and shall be subject to the penalties provided by § 62.1-44.128.
B. Notwithstanding the above provisions of this section the following may be applied:
1. Where a county, city, or town administers the local control program and the permit-issuing authority and the plan-approving authority are not within the same local government department, the locality may designate one department to inspect, monitor, report and ensure compliance. In the event a district has been designated as the plan-approving authority for all or some of the conservation plans, the enforcement of the program shall be with the local government department; however, the district may inspect, monitor and make reports for the local government department.
2. Where a district adopts the local control program and permit-issuing authorities have been established by a locality, the district by joint resolution with the appropriate locality may exercise the responsibilities of the permit-issuing authorities with respect to monitoring, reports, inspections and enforcement.
3. Where a permit-issuing authority has been established, and such authority is not vested in an employee or officer of local government but in the commissioner of revenue or some other person, the locality shall exercise the responsibilities of the permit-issuing authority with respect to monitoring, reports, inspections and enforcement unless such responsibilities are transferred as provided for in this section.
C. Upon receipt of a sworn complaint of a violation of this section, § 62.1-44.122 or § 62.1-44.123 from the representative of the program authority or the Board responsible for ensuring program compliance, the chief administrative officer, or his designee, of the program authority or the Board may, in conjunction with or subsequent to a notice to comply as specified in subsection A above, 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 § 62.1-44.122, 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 subsection A above. 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 days from the date of service pending application by the enforcing authority or alleged violator for appropriate relief to the circuit court of the jurisdiction wherein the violation was alleged to have occurred. If the alleged violator has not obtained an approved plan or any required permits within seven days from the date of service of the order, the chief administrative officer or his designee 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 the jurisdiction wherein the violation was alleged to have occurred. Any person violating or failing, neglecting or refusing to obey an order issued by the chief administrative officer or his designee may be compelled in a proceeding instituted in the circuit court of the jurisdiction wherein the violation was alleged to have occurred 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 chief administrative officer or his designee from taking any other action specified in § 62.1-44.128.
§ 62.1-44.126. Cooperation with federal and state agencies.
The districts and localities operating their own programs, and the Board are authorized to cooperate and enter into agreements with any federal or state agency in connection with plans for erosion and sediment control with respect to land-disturbing activities.
§ 62.1-44.127. Appeals.
A. Final decisions of counties, cities or towns under this article shall be subject to review by the court of record of the county or city, provided that an appeal is filed within thirty 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.
B. Final decisions of the districts shall be subject to an administrative review by the Board, provided that an appeal is filed within thirty days from the date of the written decision.
C. Final decisions of the Board either upon its own action or upon the review of the action of a district shall be subject to judicial review in accordance with the provisions of the Administrative Process Act (§ 9-6.14:1 et seq.).
§ 62.1-44.128. Penalties, injunctions and other legal actions.
A. Violators of §§ 62.1-44.122, 62.1-44.123 or 62.1-44.125 shall be guilty of a Class 1 misdemeanor.
B. If a locality has adopted an ordinance establishing a uniform schedule of civil penalties as permitted by subsection J of § 62.1-44.121, any person who violates any regulation or order of the Board, any condition of a permit, any provision of its program, or any provision of this chapter shall, upon a finding of an appropriate general district court, be assessed a civil penalty in accordance with the schedule. The erosion and sediment control administrator, his deputy or a certified inspector for the locality wherein the land lies may issue a summons for collection of the civil penalty and the action may be prosecuted by the locality wherein the land lies. In any trial for a scheduled violation, it shall be the burden of the locality to show the liability of the violator by a preponderance of the evidence. An admission or finding of liability shall not be a criminal conviction for any purpose. Any civil penalties assessed by a court shall be paid into the treasury of the locality wherein the land lies, except that where the violator is the locality itself, or its agent, the court shall direct the penalty to be paid into the state treasury.
C. The appropriate permit-issuing authority, the program authority, or the Board may apply to the circuit court in any jurisdiction wherein the land lies to enjoin a violation or a threatened violation under §§ 62.1-44.122, 62.1-44.123 or 62.1-44.125 without the necessity of showing that an adequate remedy at law does not exist.
D. In addition to any criminal or civil penalties provided under this chapter, any person who violates any provision of this chapter may be liable to the program authority, or the Board, as appropriate, in a civil action for damages.
E. Without limiting the remedies which may be obtained in this section, any person violating or failing, neglecting or refusing to obey any injunction, mandamus or other remedy obtained pursuant to this section shall be subject, in the discretion of the court, to a civil penalty not to exceed $2,000 for each violation. A civil action for such violation or failure may be brought by the locality wherein the land lies. Any civil penalties assessed by a court shall be paid into the treasury of the locality wherein the land lies, except that where the violator is the locality itself, or its agent, the court shall direct the penalty to be paid into the state treasury.
F. With the consent of any person who has violated or failed, neglected or refused to obey any regulation or order of the Board, or any condition of a permit or any provision of this chapter, the Board, the Director or plan-approving or permit-issuing authority may provide, in an order issued by the Board or plan-approving or permit-issuing authority against such person, for the payment of civil charges for violations in specific sums, not to exceed the limit specified in subsection E of this section. Such civil charges shall be instead of any appropriate civil penalty which could be imposed under subsection B or E.
G. Upon request of a program authority, or the permit-issuing authority, the attorney for the Commonwealth shall take legal action to enforce the provisions of this article. Upon request of the Board, the Attorney General shall take appropriate legal action on behalf of the Board to enforce the provisions of this article.
H. 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 must show negligence in order to recover any damages.
§ 62.1-44.129. Stop work orders by Board; civil penalties.
A. An aggrieved owner of property sustaining pecuniary damage resulting from a violation of an approved plan or required permit, or from the conduct of land-disturbing activities commenced without an approved plan or required permit, may give written notice of the alleged violation to the program authority and to the Director.
B. Upon receipt of the notice from the aggrieved owner and notification to the program authority, the Director shall conduct an investigation of the aggrieved owner's complaint.
C. If the program authority has not responded to the alleged violation in a manner which causes the violation to cease and abates the damage to the aggrieved owner's property within thirty days following receipt of the notice from the aggrieved owner, the aggrieved owner may request that the Director require the violator to stop the violation and abate the damage to his property.
D. If (i) the Director's investigation of the complaint indicates that the program authority has not responded to the alleged violation as required by the local program, (ii) the program authority has not responded to the alleged violation within thirty days from the date of the notice given pursuant to subsection A of this section, and (iii) the Director is requested by the aggrieved owner to require the violator to cease the violation, then the Director shall give written notice to the program authority that the Director will request the Board to issue an order pursuant to subsection E of this section.
E. If the program authority has not instituted action to stop the violation and abate the damage to the aggrieved owner's property within ten days following receipt of the notice from the Director, the Board is authorized to issue an order requiring the owner, permittee, person responsible for carrying out an approved plan, or person conducting the land-disturbing activities without an approved plan or required permit to cease all land-disturbing activities until the violation of the plan or permit has ceased, or an approved plan and required permits are obtained, as appropriate, and specified corrective measures have been completed.
F. Such orders are to be issued only after a hearing with reasonable notice to the affected person of the time, place and purpose thereof, and they shall become effective upon service on the person by certified mail, return receipt requested, sent to his address specified in the land records of the locality, or by personal delivery by an agent of the Director. However, if the Board finds that any such violation is grossly affecting or presents an imminent and substantial danger of causing harmful erosion of lands or sediment deposition in waters within the watersheds of the Commonwealth, it may issue, without advance notice or hearing, an emergency order directing such person to cease all land-disturbing activities on the site immediately and shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof, to such person, to affirm, modify, amend or cancel such emergency order.
G. If a person who has been issued an order or emergency order is not complying with the terms thereof, the Board may institute a proceeding in the appropriate circuit court for an injunction, mandamus, or other appropriate remedy compelling the person to comply with such order.
H. Any person violating or failing, neglecting or refusing to obey any injunction, mandamus or other remedy obtained pursuant to subsection G of this section shall be subject, in the discretion of the court, to a civil penalty not to exceed $2,000 for each violation. Any civil penalties assessed by a court shall be paid into the state treasury.
§ 62.1-44.130. Authorization for more stringent regulations.
A district or locality is authorized to adopt more stringent soil erosion and sediment control regulations than those necessary to ensure compliance with the Board's regulations. However, this section shall not be construed to authorize any district or locality to impose any more stringent regulations for plan approval or permit issuance than those specified in §§ 62.144.121 and 62.1-44.123.
§ 62.1-44.131. No limitation on authority of Water Control Board or Department of Mines, Minerals and Energy.
The provisions of this article shall not limit the powers or duties presently exercised by the Board under Chapter 3.1 (§ 62.1-44.2 et seq.) of this title, or the powers or duties of the Department of Mines, Minerals and Energy as they relate to surface mine reclamation under Chapter 16 (§ 45.1-180 et seq.) and Chapter 19 (§ 45.1-226 et seq.) of Title 45.1 or oil or gas exploration under the Virginia Oil and Gas Act (§ 45.1-361.1 et seq.).
§ 62.1-44.132. Cooperative state-local program.
The General Assembly has determined that the lands and waters of the Commonwealth are great natural resources; that as a result of intensive land development and other land use conversions, degradation of these resources frequently occurs in the form of water pollution, stream channel erosion, depletion of groundwater resources, and more frequent localized flooding; that these impacts adversely affect fish, aquatic life, recreation, shipping, property values and other uses of lands and waters; and that existing authorities under the Code of Virginia do not adequately address all of the existing impacts. Therefore, the General Assembly finds it in the public interest to enable the establishment of stormwater management programs.
§ 62.1-44.133. Definitions.
As used in this article, unless the context requires a different meaning:
"Applicant" means any person submitting a stormwater management plan for approval.
"Board" means the State Water Control Board.
"Department" means the Department of Environmental Quality.
"Flooding" means a volume of water which is too great to be confined within the banks or walls of the stream, water body or conveyance system and which overflows onto adjacent lands, causing or threatening damage.
"Land development" or "land development project" means a manmade change to the land surface that potentially changes its runoff characteristics.
"Linear development project" means a land development project that is linear in nature such as, but not limited to, (i) construction of electric and telephone utility lines, and natural gas pipelines; (ii) construction of tracks, rights-of-way, bridges, communication facilities and other related structures of a railroad company; and (iii) highway construction projects.
"Local stormwater management program" or "local program" means a statement of the various methods employed by a locality to manage the runoff from land development projects and may include such items as local ordinances, policies and guidelines, technical materials, inspection, enforcement, and evaluation.
"Nonpoint source pollution" means pollution whose sources cannot be pinpointed but rather is washed from the land surface in a diffuse manner by stormwater runoff.
"Runoff" means that portion of precipitation that is discharged across the land surface or through conveyances to one or more waterways.
"Stormwater management plan" or "plan" means a document containing material for describing how existing runoff characteristics will be maintained by a land development project.
"Subdivision" means the same as defined in § 15.1-465.
"Watershed" means a defined land area drained by a river or stream or system of connecting rivers or streams such that all surface water within the area flows through a single outlet.
§ 62.1-44.134. Counties, cities and towns may by ordinance establish stormwater management programs as a local option.
Each locality may, by ordinance, establish a local stormwater management program which shall include, but is not limited to, the following:
1. Consistency with regulations promulgated in accordance with provisions of this article;
2. Provisions for long-term responsibility for and maintenance of stormwater management control devices and other techniques specified to manage the quality and quantity of runoff; and
3. Provisions for the integration of locally adopted stormwater management programs with local erosion and sediment control, flood insurance, flood plain management and other programs requiring compliance prior to authorizing construction in order to make the submission and approval of plans, issuance of permits, payment of fees, and coordination of inspection and enforcement activities more convenient and efficient both for the local governments and those responsible for compliance with the programs.
§ 62.1-44.135. Development of regulations.
The Board is authorized to promulgate regulations which specify minimum technical criteria and administrative procedures for stormwater management programs in Virginia. In order to inhibit the deterioration of existing waters and waterways, the regulations shall:
1. Require that state and local programs maintain after-development runoff rate of flow, as nearly as practicable, as the pre-development runoff characteristics;
2. Establish minimum design criteria for measures to control nonpoint source pollution and localized flooding, and incorporate the stormwater management regulations promulgated pursuant to the Virginia Erosion and Sediment Control Law (§ 62.1-44.117 et seq.) as they relate to the prevention of stream channel erosion. These criteria shall be periodically modified as required in order to reflect current engineering methods;
3. Require the provision of long-term responsibility for and maintenance of stormwater management control devices and other techniques specified to manage the quality and quantity of runoff; and
4. Require as a minimum the inclusion in local programs of certain administrative procedures which include, but are not limited to, specifying the time period within which a local government which has adopted a stormwater management program must grant written approval of a plan, the conditions under which approval shall be granted, the procedures for communicating disapproval, the conditions under which an approved plan may be changed and requirements for inspection of approved projects.
§ 62.1-44.136. State agency projects.
A. A state agency may not undertake any land-clearing, soil movement, or construction activity involving soil movement or land development unless the agency has submitted and obtained approval of a stormwater management plan from the Department. In lieu of such a plan, the agency may annually submit stormwater management standards and specifications.
B. Notwithstanding the provisions of this article, all state agencies shall comply with the stormwater management provisions of the Erosion and Sediment Control Law (§ 62.1-44.117 et seq.) and related regulations. The Department shall perform random site inspections to assure compliance with this chapter and regulations promulgated thereunder.
C. The Department shall have thirty days in which to comment on the stormwater management plan, and its recommendations shall be binding on the state agency or the private business hired by the state agency. Individual approval of separate projects is not necessary when annually approved standards and specifications have been approved.
As on-site changes occur, the state agency shall submit changes in the stormwater management plan to the Department.
The state agency responsible for the land-disturbing activity shall ensure compliance with the approved plan or specifications.
§ 62.1-44.137. Involvement of the Department with local programs.
A. The Department shall provide technical assistance, training, research, and coordination in stormwater management technology to the local governments consistent with the purposes of this article.
B. The Department is authorized to review the plan for any project with real or potential interjurisdictional impacts upon the request of one of the involved localities to determine that the plan is consistent with the provisions of this article. Any such review shall be completed and a report submitted to each locality involved within ninety days of such request.
§ 62.1-44.138. Authorization for more stringent regulations.
Localities are authorized to adopt more stringent stormwater management regulations than those necessary to ensure compliance with the Board's minimum regulations, with the exception of regulations related to plan approval, provided that the more stringent regulations are based upon the findings of local comprehensive watershed management studies and that prior to adopting more stringent regulations a public hearing is held after giving due notice.
§ 62.1-44.139. Regulated activities; submission and approval of a control plan; security for performance; exemptions.
A. Except as provided in § 62.1-44.136, after the adoption of a local ordinance, a person shall not develop any land for residential, commercial, industrial, or institutional use in that locality until he has submitted a stormwater management plan to the locality that has jurisdiction and has obtained approval of the plan from that locality. The plan may include appropriate maps, mathematical calculations, detail drawings and a listing of all major decisions to ensure that the entire unit or units of land will be so treated to achieve the objectives of the local program. Prior to issuance of any permit, the locality may also require an applicant to submit a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof, or such other legal arrangement acceptable to the locality, to ensure that measures could be taken by the locality at the applicant's expense should he fail, after proper notice, within the time specified to initiate or maintain appropriate actions which may be required of him by the approved stormwater management plan as a result of his land-development project. If the locality takes such action upon such failure by the applicant, the agency may collect from the applicant for the difference should the amount of the reasonable cost of such action exceed the amount of the security held. Within sixty days of the completion of the requirements of the approved stormwater management plan, such bond, cash escrow, letter of credit or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated. These requirements are in addition to all other provisions of law relating to the issuance of such plans and are not intended to otherwise affect the requirements for such plans.
B. Notwithstanding any other provisions of this article, the following activities and projects are exempt:
1. Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted under the provisions of Title 45.1;
2. Tilling, planting or harvesting of agricultural, horticultural, or forest crops;
3. Single-family residences separately built and not part of a subdivision, including additions or modifications to existing single-family detached residential structures;
4. Land development projects that disturb less than one acre of land area; however, the governing body of a locality which has adopted a stormwater management program may reduce this exception to a smaller area of disturbed land or qualify the conditions under which this exception shall apply; and
5. Linear development projects, provided that (i) less than one acre of land will be disturbed per outfall or watershed, (ii) there will be insignificant increases in peak flow rates, and (iii) there are no existing or anticipated flooding or erosion problems downstream of the discharge point.
§ 62.1-44.140. Approved plan required for issuance of grading, building, or other permits.
Upon the adoption of a local ordinance no grading, building or other permit shall be issued for a property unless a stormwater management plan has been approved that is consistent with the local program and this article and unless the applicant has certified that all land clearing, construction, land development and drainage will be done according to the approved plan.
§ 62.1-44.141. Recovery of administrative costs.
Any locality which administers a stormwater management program may charge applicants a reasonable fee to defray the cost of program administration, including costs associated with plan review, issuance of permits, periodic inspection for compliance with approved plans, and necessary enforcement, provided that charges for such costs are not made under any other law, ordinance or program. The fee shall not exceed an amount commensurate with the services rendered and expenses incurred or $1,000, whichever is less.
§ 62.1-44.142. Monitoring, reports and inspections.
A. The plan-approving authority or, if a permit is issued in connection with land-disturbing activities which involve the issuance of a grading, building, or other permit, the permit-issuing authority (i) shall provide for periodic inspections of the installation of stormwater management measures and (ii) may require monitoring and reports from the person responsible for carrying out the plan, to ensure compliance with the approved plan and to determine whether the measures required in the plan provide effective stormwater management. The owner, occupier or operator shall be given notice of the inspection and an opportunity to accompany the inspectors. If the permit-issuing authority or plan-approving authority determines that there is a failure to comply with the plan, notice shall be served upon the permittee or person responsible for carrying out the plan by registered or certified mail to the address specified in the permit application or in the plan certification, or by delivery at the site of the development activities to the agent or employee supervising such activities. Where the plan-approving authority serves notice, a copy of the notice shall also be sent to the issuer of the permit. The notice shall specify the measures needed to comply with the plan and shall specify the time within which such measures shall be completed. Upon failure to comply within the time specified, the permit may be revoked and the permittee or person responsible for carrying out the plan shall be deemed to be in violation of this article and upon conviction shall be subject to the penalties provided by § 62.1-44.145.
B. Notwithstanding subsection A of this section, the following may be applied:
1. Where a county, city, or town administers the local control program and the permit-issuing authority and the plan-approving authority are not within the same local government department, the locality may designate one department to inspect, monitor, report and ensure compliance.
2. Where a permit-issuing authority has been established, and such authority is not vested in an employee or officer of local government but in the commissioner of revenue or some other person, the locality shall exercise the responsibilities of the permit-issuing authority with respect to monitoring, reports, inspections, and enforcement unless such responsibilities are transferred as provided for in this section.
§ 62.1-44.143. Department to review local and state agency programs.
A. The Department shall periodically conduct a comprehensive review and evaluation of the effectiveness of each local government's and state agency's stormwater management program. The review shall include an assessment of the extent to which the program has reduced nonpoint source pollution and mitigated the detrimental effects of localized flooding. A summary of these reviews and evaluations shall be submitted annually to the General Assembly.
B. If, after such a review and evaluation, a local government is found to have a program which does not comply with the provisions of this article or regulations promulgated thereunder, the Department may issue an order requiring that necessary corrective action be taken within a reasonably prescribed time.
§ 62.1-44.144. Appeals of decisions of counties, cities or towns.
A. An appeal from a decision of a locality concerning an application for approval or disapproval of a stormwater management plan may be taken by the applicant, or any aggrieved party authorized by law, within thirty days after the rendering of such a decision of the locality, to the circuit court of the jurisdiction in which the land development project is located.
B. Judicial review shall be on the record previously established and shall otherwise be in accordance with the provisions of the Administrative Process Act (§ 9-6.14:1 et seq.).
§ 62.1-44.145. Penalties, injunctions and other legal actions.
Any person who violates any provision of a local ordinance or program adopted pursuant to the authority of this article shall be guilty of a misdemeanor and shall be subject to a fine not exceeding $1,000 or up to thirty days imprisonment for each violation or both. Such a local ordinance may also include the following sanctions:
1. A locality operating its own program may apply to the circuit court in any jurisdiction wherein the land lies to enjoin a violation or a threatened violation of the provisions of this article or of the local ordinance without the necessity of showing that an adequate remedy at law does not exist.
2. Without limiting the remedies which may be obtained in this section, a locality operating its own program may bring a civil action against any person for violation of any ordinance or any condition of a permit, or any provision of a local program adopted pursuant to this article. The action may seek the imposition of a civil penalty of not more than $2,000 against the person for each violation.
3. With the consent of any person who has violated or failed, neglected or refused to obey any ordinance or any condition of a permit or any provision of a local program adopted pursuant to this article, the administrator of the local program may provide, in an order issued by the administrator against such person, for the payment of civil charges for violations in specific sums, not to exceed the limit specified in subdivision 2 of this section. Such civil charges shall be instead of any appropriate civil penalty which could be imposed under subdivision 2.
§ 62.1-44.146. Cooperation with federal and state agencies.
Localities operating their own programs and the Department are authorized to cooperate and enter into agreements with any federal or state agency in connection with plans for stormwater management.
2. That Article 4 (§§ 10.1-560 through 10.1-571) of Chapter 5 and Article 1.1 (§§ 10.1-603.1 through 10.1-603.15) of Chapter 6 of Title 10.1 are repealed.
3. That existing regulations promulgated by the Virginia Soil and Water Conservation Board under the Erosion and Sediment Control Law (§ 10.1-560 et seq.) and by the Board of Conservation and Recreation under the stormwater management program (§ 10.1-603.1 et seq.) shall be transferred to, and administered by, the State Water Control Board and shall remain in full force and effect until any such regulation is amended, modified, or repealed by the State Water Control Board.