CHAPTER 153: EROSION AND SEDIMENT CONTROL
Section
   153.01   Title, purpose, and authority
   153.02   Definitions
   153.03   Local erosion and sediment control program
   153.04   Regulated land-disturbing activities
   153.05   Activities not required to comply with the ESCL
   153.06   Submission and approval of plans; contents of plans
   153.07   Erosion and sediment control plan; contents of plans
   153.08   Permits; fees; security for performance
   153.09   Monitoring, reports, and inspections
   153.10   Penalties, injunctions, and other legal actions
   153.11   Appeals and judicial review
§ 153.01 TITLE, PURPOSE, AND AUTHORITY.
   (A)   This chapter shall be known as the "Erosion and Sediment Control Ordinance of Northampton County." The purpose of this chapter is to prevent the unreasonable degradation of properties, stream channels, waters and other natural resources of the Northampton County by establishing requirements for the effective control of soil erosion, sediment deposition and non-agricultural runoff and by establishing procedures whereby these requirements shall be administered and enforced.
   (B)   This chapter is authorized by VA Code § 62.1-44.15:54.
(Ord. passed 4-9-2024)
§ 153.02 DEFINITIONS.
   The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.
   AGREEMENT IN LIEU OF A PLAN. A contract between the VESCP authority and the owner that specifies conservation measures that must be implemented in the construction of a: (1) single-family residence; or (2) farm building or structure on a parcel of land with a total impervious cover percentage, including the impervious cover from the farm building or structure to be constructed, of less than 5%. This contract may be executed by the VESCP authority in lieu of a formal site plan.
   APPLICANT. Any person submitting an erosion and sediment control plan for approval in order to obtain authorization for land-disturbing activities to commence.
   BOARD. The State Water Control Board.
   CERTIFIED INSPECTOR FOR ESC. An employee or agent of the VESCP authority who: (1) holds a certificate of competence from the Department in the area of project inspection; or (2) is enrolled in the Department's training program for project inspection and successfully completes such program within one year after enrollment.
   CERTIFIED PLAN REVIEWER FOR ESC. An employee or agent of the VESCP authority who: (1) holds a certificate of competence from the Department in the area of plan review; (2) is enrolled in the Department's training program for plan review and successfully completes such program within one year after enrollment; or (3) is licensed as a professional engineer, architect, landscape architect, land surveyor pursuant to VA Code Title 54.1, Chapter 4, Article 1 (§§ 54.1-400 et seq.), or professional soil scientist as defined in VA Code § 54.1-2200.
   CERTIFIED PROGRAM ADMINISTRATOR FOR ESC. An employee or agent of the VESCP authority who holds a certification from the Department in the classification of program administrator or is enrolled in the Department's training program for program administration and successfully completes such program within one year after enrollment.
   CHESAPEAKE BAY PRESERVATION ACT. VA Code Title 62.1, Chapter 3.1, Article 2.5 (§§ 62.1-44.15:67 et seq.).
   CHESAPEAKE BAY PRESERVATION AREA. Any land designated by a local government pursuant to Part III (9VAC25-830-70 et seq.) of the Chesapeake Bay Preservation Area Designation and Management Regulations and VA Code § 62.1-44.15:74. A CHESAPEAKE BAY PRESERVATION AREA shall consist of a resource protection area and a resource management area as defined in the Chesapeake Bay Preservation Area Designation and Management Regulations (9VAC25-830).
   CLEARING. Any activity which removes the vegetative ground cover, including root mat removal or topsoil removal.
   COUNTY. The County of Northampton, Virginia.
   DEPARTMENT. The Virginia Department of Environmental Quality.
   DISTRICT or SOIL AND WATER CONSERVATION DISTRICT. Refers to the Eastern Shore Soil and Water Conservation District.
   EROSION AND SEDIMENT CONTROL PLAN or PLAN. 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 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 that is not associated with a current land-disturbing activity but is 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.
   EXCAVATING. Any digging, scooping or other methods of removing earth materials.
   FARM BUILDING OR STRUCTURE. The same as that term is defined in VA Code § 36-97 and also includes any building or structure used for agritourism activity, as defined in VA Code § 3.2-6400, and any related impervious surfaces including roads, driveways, and parking areas.
   FILLING. Any depositing or stockpiling of earth materials.
   GRADING. Any excavating or filling of earth material or any combination thereof, including the land in its excavated or filled conditions.
   LAND DISTURBANCE or LAND-DISTURBING ACTIVITY. A man-made change to the land surface that may result in soil erosion or has the potential to change its runoff characteristics, including the clearing, grading, excavating, transporting, and filling of land.
   LAND-DISTURBING PERMIT OR APPROVAL. A permit or an approval allowing a land-disturbing activity to commence issued by VESCP authority after the requirements of VA Code § 62.1-44.15:55 have been met.
   NATURAL CHANNEL DESIGN CONCEPTS. The utilization of engineering analysis and fluvial geomorphic processes to create, rehabilitate, restore, or stabilize an open conveyance system for the purpose of creating or recreating a stream that conveys its bankfull storm event within its banks and allows larger flows to access its bankfull bench and its floodplain.
   OWNER. The same as provided in VA Code § 62.1-44.3. For a land-disturbing activity that is regulated under VA Code Title 62.1, Chapter 3.1, Article 2.4 (§§ 62.1-44.15:51 et seq. and this chapter, OWNER also includes the owner or owners of the freehold of the premises or lesser estate therein, mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee, or other person, firm, or corporation in control of a property.
   PEAK FLOW RATE. The maximum instantaneous flow from a prescribed design storm at a particular location.
   PERCENT IMPERVIOUS. The impervious area within the site divided by the area of the site multiplied by 100.
   PERMITTEE. The person to whom the permit is issued.
   PERSON. Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town, other political subdivision of the Commonwealth, governmental body, including a federal or state entity as applicable, any interstate body, or any other legal entity.
   RESPONSIBLE LAND DISTURBER or RLD. An individual holding a certificate issued by the Department who is responsible for carrying out the land-disturbing activity in accordance with the approved erosion and sediment control plan. The RLD may be the owner, applicant, permittee, designer, superintendent, project manager, contractor, or any other project or development team member. The RLD must be designated on the erosion and sediment control plan or permit as defined in the Virginia Erosion and Stormwater Management Regulation (9VAC25-875) as a prerequisite for engaging in land disturbance.
   RUNOFF VOLUME. The volume of water that runs off the land development project from a prescribed storm event.
   SINGLE-FAMILY DETACHED RESIDENTIAL STRUCTURE. A noncommercial dwelling that is occupied exclusively by one family.
   STATE WATERS. All water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.
   TRANSPORTING. Any moving of earth materials from one place to another place other than such movement incidental to grading, when such movement results in destroying the vegetative ground cover either by tracking or the buildup of earth materials to the extent that erosion and sedimentation will result from the soil or earth materials over which such transporting occurs.
   TOWN. An incorporated town of Northampton County.
   VIRGINIA EROSION AND SEDIMENT CONTROL PROGRAM or VESCP. A program approved by the department that is established by a VESCP authority for the effective control of soil erosion, sediment deposition, and nonagricultural runoff associated with a land-disturbing activity to prevent the unreasonable degradation of properties, stream channels, waters, and other natural resources; and shall include such items where applicable as local ordinances, rules, policies and guidelines, technical materials, and requirements for plan review, inspection, and evaluation consistent with the requirements of the Erosion and Sediment Control Law (ESCL).
   VIRGINIA EROSION AND SEDIMENT CONTROL PROGRAM AUTHORITY or VESCP AUTHORITY. Locality that has been approved by the Department to operate a Virginia Erosion and Sediment Control Program in accordance with VA Code Title 62.1, Chapter 3.1, Article 2.4 (§§ 62.1-44.15:51 et seq.).
   VESCP PLAN-APPROVING AUTHORITY. The Northampton County Department of Planning, Permitting and Enforcement responsible for determining the adequacy of a plan submitted for land-disturbing activities on a unit or units of lands and for approving plans.
   VPDES PERMIT. A general VPDES (Virginia Pollutant Discharge Elimination System) permit for discharges of stormwater from construction activities, 9VAC25-880, issued by the department pursuant to VA Code § 62.1-44.15 for stormwater discharges from a land-disturbing activity.
(Ord. passed 4-9-2024)
§ 153.03 LOCAL EROSION AND SEDIMENT CONTROL PROGRAM.
   Pursuant to VA Code § 62.1-44.15:54, the VESCP authority hereby establishes a Virginia Erosion and Sediment Control Program (VESCP) and adopts the regulations promulgated by the Board (for the effective control of soil erosion and sediment deposition to prevent the unreasonable degradation of properties, stream channels, waters and other natural resources) and the Virginian Stormwater Management Handbook. In accordance with VA Code § 62.1-44.15:52, any plan approved prior to July 1, 2014 that provides for stormwater management that addresses any flow rate capacity and velocity requirements for natural or man-made channels shall satisfy the flow rate capacity and velocity requirements for natural or man-made channels if the practices are designed to: (1) detain the water quality volume and to release it over 48 hours; (2) detain and release over a 24-hour period the expected rainfall resulting from the one year, 24-hour storm; and (3) reduce the allowable peak flow rate resulting from the 1.5, two, and ten-year, 24-hour storms to a level that is less than or equal to the peak flow rate from the site assuming it was in a good forested condition, achieved through multiplication of the forested peak flow rate by a reduction factor that is equal to the runoff volume from the site when it was in a good forested condition divided by the runoff volume from the site in its proposed condition, and shall be exempt from any flow rate capacity and velocity requirements for natural or man-made channels.
   (A)   For plans approved on and after July 1, 2014, the flow rate capacity and velocity requirements for natural and man-made channels shall be satisfied by compliance with water quantity requirements specified in 9VAC25-875-600, unless such land-disturbing activities are in accordance with the grandfathering provisions of 9VAC25-875-490.
   (B)   Pursuant to VA Code § 62.1-44.15:53, an erosion control plan shall not be approved until it is reviewed by a certified plan reviewer for ESC. Inspections of land-disturbing activities shall be conducted by a certified inspector for ESC. The Erosion and Sediment Control Program of Northampton County shall contain a certified program administrator for ESC, a certified plan reviewer for ESC, and a certified inspector for ESC (who may be the same person).
   (C)   Northampton County hereby designates the Northampton County Department of Planning, Permitting and Enforcement as the VESCP plan-approving authority.
   (D)   The program and regulations provided for in this chapter shall be made available for public inspection at the office of the Northampton County Department of Planning, Permitting and Enforcement.
(Ord. passed 4-9-2024)
§ 153.04 REGULATED LAND-DISTURBING ACTIVITIES.
   Land-disturbing activities that meet one of the criteria below are regulated as follows:
   (A)   Land-disturbing activity that disturbs 10,000 square feet or more, is less than one acre, not in an area of a locality designated as a Chesapeake Bay Preservation Area, and not part of a common plan of development or sale, is subject to criteria defined in Article 2 (9VAC25-875-540 et seq.) of Part V of the Virginia Erosion and Stormwater Management Regulation (Regulation).
   (B)   Land-disturbing activity that disturbs 2,500 square feet or more, is less than one acre, and in an area of a locality designated as a Chesapeake Bay Preservation Area is subject to criteria defined in Article 2 (9VAC25-875-540 et seq.) and Article 3 (9VAC25-875-570 et seq.) of Part V unless Article 4 (9VAC25-875-670 et seq.) of Part V of the Regulation is applicable, as determined in accordance with 9VAC25-875-480 and 9VAC25-875-490.
(Ord. passed 4-9-2024)
§ 153.05 ACTIVITIES NOT REQUIRED TO COMPLY WITH THE ESCL.
   Notwithstanding any other provisions of the Erosion and Sediment Control Law for Localities Not Administering a Virginia Erosion and Stormwater Management Program (ESCL), the following activities are not required to comply with the ESCL unless otherwise required by federal law:
   (A)   Disturbance of a land area of less than 10,000 square feet in size or less than 2,500 square feet in an area designated as a Chesapeake Bay Preservation Area pursuant to the Chesapeake Bay Preservation Act (VA Code §§ 62.1-44.15:67 et seq.);
   (B)   Minor land-disturbing activities such as home gardens and individual home landscaping, repairs, and maintenance work;
   (C)   Installation, maintenance, or repair of any individual service connection;
   (D)   Installation, maintenance, or repair of any underground utility line 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 that is hard surfaced;
   (E)   Installation, maintenance, or repair of any septic tank line or drainage field unless included in an overall plan for land-disturbing activity relating to construction of the building to be served by the septic tank system;
   (F)   Permitted surface or deep mining operations and projects, or oil and gas operations and projects conducted pursuant to VA Code Title 45.2;
   (G)   Clearing of lands specifically for bona fide agricultural purposes; the management, tilling, planting, or harvesting of agricultural, horticultural, or forest crops; livestock feedlot operations; agricultural engineering operations, including 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; or as additionally set forth by the Board in regulations. 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 VA Code Title 10.1, Chapter 11 (§§ 10.1-1100 et seq.) or is converted to bona fide agricultural or improved pasture use as described in VA Code § 10.1-1163(B);
   (H)   Installation of fence and sign posts or telephone and electric poles and other kinds of posts or poles;
   (I)   Shoreline erosion control projects on tidal waters when all of the land-disturbing activities are within the regulatory authority of and approved by local wetlands boards, 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 the ESCL and the regulations adopted pursuant thereto;
   (J)   Land-disturbing activities in response to a public emergency where the related work requires immediate authorization to avoid imminent endangerment to human health or the environment. In such situations, the VESCP authority shall be advised of the disturbance within seven days of commencing the land-disturbing activity, and compliance with the administrative requirements of §§ 153.06 - 153.08 are required within 30 days of commencing the land-disturbing activity;
   (K)   Discharges to a sanitary sewer or a combined sewer system that are not from a land-disturbing activity; and
   (L)   Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities, and other related structures and facilities of a railroad company.
(Ord. passed 4-9-2024)
§ 153.06 SUBMISSION AND APPROVAL OF PLANS; CONTENTS OF PLANS.
   (A)   Except as provided herein, no person may engage in any regulated land-disturbing activity until he or she has submitted to the Northampton County Department of Planning, Permitting and Enforcement an erosion and sediment control plan for the regulated land-disturbing activity and such plan has been approved by the VESCP authority. No approval to begin a land disturbing activity will be issued unless evidence of VPDES permit coverage is obtained where it is required. Where the land-disturbing activity results from the construction of a: (1) single-family detached residential structure; or (2) farm building or structure on a parcel of land with a total impervious cover percentage, including the impervious cover from the farm building or structure to be constructed, of less than 5%, an agreement in lieu of a plan may be substituted for an erosion and sediment control plan if executed by the VESCP plan-approving authority.
   (B)   The standards contained within the "Virginia Erosion and Stormwater Management Regulation (9VAC25-875)" and the Virginia Stormwater Management Handbook, as amended, are to be used by the applicant when making a submittal under the provisions of this chapter and in the preparation of an erosion and sediment control plan. The VESCP plan-approving authority, in considering the adequacy of a submitted plan, shall be guided by the same standards, regulations and guidelines. When the standards vary between the publications, the Virginia Erosion and Stormwater Management Regulation shall take precedence.
   (C)   The VESCP plan-approving authority shall review erosion and sediment control plans submitted to it and grant written approval within 60 days of the receipt of the plan if it determines that the plan meets the requirements of the Erosion and Sediment Control Law for Localities not Administering a Virginia Erosion and Stormwater Management Program and 9VAC25-875, and if the person responsible for carrying out the plan certifies that he or she will properly perform the erosion and sediment control measures included in the plan and will comply with the provisions of this chapter. In addition, as a prerequisite to engaging in the land-disturbing activities shown on the approved plan, the person responsible for carrying out the plan shall provide the name of the responsible land disturber to the VESCP authority, as required by 9VAC25-875-300 and 9VAC25-875-550, who will be in charge of and responsible for carrying out the land-disturbing activity. Failure to provide the name of the responsible land disturber prior to engaging in land-disturbing activities may result in revocation of the approval of the plan and the person responsible for carrying out the plan shall be subject to the penalties provided in this chapter. However, the VESCP plan-approving authority may waive the responsible land disturber certificate requirement for an agreement in lieu of a plan for construction of a single-family detached residential structure. If a violation occurs during the land-disturbing activity associated with the construction of the single-family detached residential structure, then the person responsible for carrying out the agreement in lieu of a plan shall correct the violation and provide the name of the responsible land disturber to the VESCP authority. Failure to provide the name of the responsible land disturber shall be a violation of this chapter.
   (D)   When the plan is determined to be inadequate, written notice of disapproval stating the specific reasons for disapproval shall be communicated to the applicant within 45 days. The notice shall specify such modifications, terms and conditions that will permit approval of the plan. If no action is taken within 45 days, the plan shall be deemed approved and the person authorized to proceed with the proposed activity.
   (E)   The VESCP authority shall act on any erosion and sediment control plan that has been previously disapproved within 45 days after the plan has been revised, resubmitted for approval, and deemed adequate.
   (F)   The VESCP authority may require changes to an approved plan when:
      (1)   The inspection reveals that the plan is inadequate to satisfy applicable regulations; or
      (2)   The person responsible for carrying out the plan finds that because of changed circumstances or for other reasons the approved plan cannot be effectively carried out, and proposed amendments to the plan, consistent with the requirements of this chapter, are agreed to by the VESCP plan-approving authority and the person responsible for carrying out the plans.
   (G)   Variances. The VESCP plan-approving authority may waive or modify any of the standards that are deemed to be inappropriate or too restrictive for site conditions by granting a variance. A variance may be granted under these conditions:
      (1)   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 VESCP plan-approving authority 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 VESCP plan-approving authority. The VESCP plan-approving authority shall respond in writing either approving or disapproving such a request. If the VESCP plan-approving authority does not approve a variance within ten 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 VESCP authority shall consider variance requests judiciously, keeping in mind both the need of the applicant to maximize cost effectiveness and the need to protect off-site properties and resources from damage.
   (H)   In order to prevent further erosion, Northampton County may require approval of a plan for any land identified in the local program as an erosion impact area.
   (I)   When a land-disturbing activity will be required of a contractor performing construction work pursuant to a construction contract, the preparation, submission, and approval of an erosion and sediment control plan shall be the responsibility of the owner.
   (J)   As an alternative to submitting soil erosion control and stormwater management plans pursuant to VA Code § 62.1-44.15:34 to the VESCP authority, any person engaging in more than one jurisdiction in the creation and operation of a wetland mitigation or stream restoration bank that has been approved and is operated in accordance with applicable federal and state guidance, laws, or regulations for the establishment, use, and operation of: (1) a wetlands mitigation or stream restoration bank, pursuant to a mitigation banking instrument signed by the Department, the Marine Resources Commission, or the U.S. Army Corps of Engineers; or (2) a stream restoration project for purposes of reducing nutrients or sediment entering state waters may submit standards and specifications for Department approval that describe how land-disturbing activities shall be conducted.
(Ord. passed 4-9-2024)
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