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Chapter 37.1 STORMWATER MANAGEMENT
Chapter 37.1 STORMWATER MANAGEMENT [1]
ARTICLE I. - IN GENERAL
ARTICLE II. - SERVICE CHARGE
ARTICLE III. - STORM SEWER DISCHARGE
ARTICLE IV. - STORMWATER CONTROL REGULATIONS
ARTICLE V. - CHESAPEAKE BAY PRESERVATION
ARTICLE VI. - FERTILIZER REGULATIONS
ARTICLE VII. - SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES
FOOTNOTE(S):
--- (1) --Cross reference— Watercraft, docks, piers and waterways, Ch. 11; health and sanitation generally, Ch.
20; sewers and sewage disposal, Ch. 33; water supply, Ch. 42; zoning ordinance, Ch. 45.; subdivision
regulations, App. B. (Back)
State Law reference— Erosion and sediment control, Code of Virginia, § 10.1-560 et seq.; Local
stormwater management program, Code of Virginia, § 10.1-603.3. (Back)
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ARTICLE I. IN GENERAL
ARTICLE I. IN GENERAL
Sec. 37.1-1. General.
Sec. 37.1-2. Program administration.
Secs. 37.1—3—37.1-9. Reserved.
Sec. 37.1-1. General.
The City of Newport News has developed and continues to maintain an infrastructure of manmade
and natural components of a stormwater management system to both limit and manage the volume of
stormwater runoff to control flood events and, through stormwater pollution control measures, to prevent
degradation of the city's waterways. Adequate revenues shall be generated to provide for balanced
operating and capital improvement budgets for the stormwater management system by setting sufficient
levels of the service charge.
(Ord. No. 4482-93, § 1)
Sec. 37.1-2. Program administration.
The Newport News stormwater management program shall be administered by the department of
engineering.
(Ord. No. 4482-93, § 1)
Secs. 37.1—3—37.1-9. Reserved.
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ARTICLE II. SERVICE CHARGE
ARTICLE II. SERVICE CHARGE
Sec. 37.1-10. Findings and determinations.
Sec. 37.1-11. Definitions.
Sec. 37.1-12. Establishment of service charge and expenditures of revenue.
Sec. 37.1-13. Imposition of service charge.
Sec. 37.1-14. Service charge, billing, payment, interest, fee and lien.
Sec. 37.1-15. Administration, waiver and adjustment of service charge.
Secs. 37.1-16—37.1-19. Reserved.
Sec. 37.1-10. Findings and determinations.
(a) Stormwater runoff is associated with all real estate in the city, whether residential or nonresidential,
and the quantity and quality of runoff is correlated to the amount of impervious surface and landdisturbing activities on each parcel.
(b) The elements of the stormwater management system provide benefit and service to all land within the
city through direct protection of property, control of flooding of critical components of the infrastructure,
and enhancement of water quality and the city's natural environment.
(c) The costs of monitoring, operating, maintaining and constructing the system required in the city, both
to meet stormwater pollution control regulations and to address and resolve erosion and flooding
needs, should therefore be allocated to the extent practicable to all property owners based on their
contribution to stormwater runoff.
(Ord. No. 4482-93, § 1)
Sec. 37.1-11. Definitions.
The following words and terms used in this chapter shall have the following meanings:
(1) Developed multifamily residential property shall mean any property used primarily for residential
living purposes and containing dwelling units that are stacked vertically or one (1) on top of
another, and are two (2) or three (3) dwelling units in height.
(2) Developed other property shall mean developed property that does not serve a primary purpose
of providing permanent dwelling units or contain structures that are greater than three (3) stories
in height.
(3) Developed property shall mean a parcel of real property that has been altered in whole or in part
from its natural state by the addition of improvements, such as buildings, structures, paving and/or
other impervious surfaces.
(4) Developed residential property shall mean any property used primarily for residential living
purposes that does not have a separate dwelling unit located vertically or stacked above the
single dwelling unit's footprint.
(5) Director shall mean the director of the department of engineering or his designee.
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(6) Dwelling unit shall mean a single housing unit, mobile home, townhouse, condominium or
apartment providing complete, independent living facilities for one (1) or more persons, including
provisions for living, sleeping, eating, cooking and sanitation.
(7) Equivalent residential unit (ERU) shall mean the equivalent impervious area of the developed
residential property class per dwelling unit located within the city based on the statistical average
horizontal impervious area of developed residential property in the city. One (1) ERU shall equal
one thousand seven hundred seventy-seven (1,777) square feet of impervious surface area.
(8) ERU rate shall mean the service charge fee charged for one (1) ERU as established in this article.
(9) Impervious surface area shall mean a surface that is covered with material that is resistant to
infiltration by water, including, but not limited to, most conventionally surfaced streets, roofs,
sidewalks, parking lots and other similar structures.
(10) Service charge shall mean the user fee based upon the ERU rate applied to property owners of
developed residential property, developed multifamily residential property and developed other
property.
(11) Stormwater management revenues or revenues shall mean all rates, service charges, fees,
assessments, rentals, other charges or other income received in connection with the
management and operation of the system, including amounts received from the investment or
deposit of money in any fund or account and any amounts contributed by the city council from
general revenues of the city.
(12) Stormwater management system or system shall mean the stormwater management
infrastructure and equipment of the city and all improvements thereto. Infrastructure and
equipment shall include structural and natural stormwater control facilities of all types including,
without limitation, retention and detention basins, conduits, pumping stations, and other plants,
structures, and real and personal property used for support of the system.
(13) Undeveloped property shall mean any parcel that has not been altered from its natural state in
such a manner that the topography or soils on the property have been disturbed or altered to the
extent that the rate of surface infiltration of stormwater has been affected.
(Ord. No. 4482-93, § 1; Ord. No. 4683-95)
Sec. 37.1-12. Establishment of service charge and expenditures of revenue.
(a) There is hereby established a service charge pursuant to the statutory authority granted to localities
in Title 15.2 of the Code of Virginia, 1950, as amended, and Section 2.01 of the Charter of the City of
Newport News, Virginia, to provide for the general health, welfare and safety of the city and its
residents.
(b) The revenues collected pursuant to this article shall be deposited in a separate ledger account. The
funds deposited shall be used exclusively to provide services and facilities related to the system.
Services and facilities related to the system shall include, but not be limited to, the following:
(1) Acquisition of real or personal property and interests therein necessary to construct, operate and
maintain the system;
(2) The cost of administering such programs, to include the establishment of reasonable operating
and capital reserves to meet unanticipated or emergency requirements of the system and all
associated legal and collection costs;
(3) Engineering, planning, design, inspection, debt retirement, and construction costs for new
facilities and enlargement or improvement of existing facilities, including the enlargement and
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improvement of dams, levees, floodwalls, and pump stations, whether publicly or privately owned,
that serve to control stormwater;
(4) Facility and equipment maintenance including the maintenance of dams, levees, floodwalls and
pump stations whether publicly or privately owned, that serve to control stormwater;
(5) Monitoring of the quantity and quality of stormwater and associated control devices; and
(6) Other activities consistent with the state or federal regulations or permits governing stormwater
management, including, but not limited to, public education, watershed planning, inspection and
enforcement activities, and pollution prevention planning and implementation.
(Ord. No. 4482-93, § 1; Ord. No. 5307-99; Ord. No. 6807-11, § 1)
Editor's note—
Ord. No. 6807-11 shall be in effect on and after July 1, 2011.
Sec. 37.1-13. Imposition of service charge.
(a) For the fiscal year beginning on July 1, 1993 and ending on June 30, 1994 and for each and every
fiscal year thereafter there shall be and hereby is levied an annual stormwater management service
charge on all developed property in the City of Newport News.
(b) For the purposes of determining the service charge, all properties in the city are classified into one (1)
or more of the following classes:
(1) Developed residential property;
(2) Developed multifamily residential property;
(3) Developed other property; or
(4) Undeveloped property.
(c) The service charge for developed residential property shall equal the ERU rate multiplied by the
number of dwelling units.
(d) The service charge for developed multifamily residential property shall be 0.42 multiplied by the ERU
rate per dwelling unit or residence.
(e) The service charge for developed other property shall be the ERU rate multiplied by the numerical
factor obtained by dividing the total impervious surface area square footage of the property by the
square footage contained in one (1) ERU. The numbered factor will then be rounded up to the nearest
tenth (0.1) of a unit. The minimum service charge for any developed other property shall equal the
ERU rate.
(f)
The service charge for vacant developed property shall be calculated in the same manner as for
occupied property of the same class.
(g) Undeveloped property shall not be subject to the service charge.
(h) Stormwater management service charges levied annually under the provisions of this article shall be
effective on the first day of July in the year for which the same is made.
(Ord. No. 4482-93, § 1; Ord. No. 4683-95)
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ARTICLE II. SERVICE CHARGE
Sec. 37.1-14. Service charge, billing, payment, interest, fee and lien.
(a) The levied service charge shall be billed, due and payable in two (2) equal installments. The first (1st)
installment shall be due on or before the fifth (5th) day of December and the second installment shall
be due on or before the fifth (5th) day of June. Any parcel or dwelling unit owner who has remitted
payment of the service charges and believes that it is incorrect may submit an adjustment request as
provided for in this article.
(b) The service charge is to be paid by the owner of each parcel or dwelling unit that is subject to the
charge. The owner of each parcel or dwelling unit in the city, except undeveloped property, shall be
mailed a statement for the stormwater service charges. The statements shall include a date by which
payment shall be due. All statements shall be mailed at least thirty (30) days prior to the payment due
date stated thereon. Payments received after the due date of the bill shall be subject to interest as
established in this article.
(c) The service charge due the city from property owners for stormwater management shall be based on
the ERU rate of one hundred seventeen dollars ($117.00) per ERU per year. When applicable, the
service charge shall be prorated at nine dollars and seventy-five cents ($9.75) per ERU per month.
(d) Any bill which has not been paid by the due date shall be deemed delinquent. Unpaid service charges
and accrued interest shall constitute a lien against the property, ranking on a parity with liens for unpaid
taxes. All charges and interest due may be recovered by action at law and/or suit in equity. For
delinquent charges, interest thereon shall commence on the first day of the month following the due
date and shall accrue at the rate of ten (10) percent per annum until such time as the delinquent
charges and accrued interest are paid.
(e) When previously undeveloped properties are brought into the system or in the event of alterations or
additions to developed multifamily property or developed other property that alter the amount of
impervious surface and/or the number of dwelling units, a service charge will accrue as determined by
the director:
(1) Upon substantial completion of the improvements; or
(2) In the event completion of the improvements is not diligently pursued, upon establishment of the
impervious area or dwelling units that affect stormwater runoff. A statement will be issued and
said charges will be prorated for the number months for which the parcel is subject to the service
charge.
(f)
Prior to the adoption of any ordinance pursuant to this section related to the enlargement, improvement
or maintenance of privately owned dams, notice consistent with Virginia Code § 15.2-1427 shall be
given and a public hearing held.
(Ord. No. 4482-93, § 1; Ord. No. 4683-95; Ord. No. 5463-00, § 1; Ord. No. 5622-01, § 1; Ord. No.
6126-05, § 1; Ord. No. 6243-06, § 1; Ord. No. 6362-07, § 1; Ord. No. 6484-08, § 1; Ord. No. 658509, § 1; Ord. No. 6807-11, § 1; Ord. No. 6873-12, § 1; Ord. No. 6966-13, § 1; Ord. No. 7058-14, § 1)
Editor's note—
Ord. No. 7058-14, § 1, adopted May 13, 2014, shall be in effect on and after July 1, 2014.
Sec. 37.1-15. Administration, waiver and adjustment of service charge.
(a) The property owner may make application in writing to the director for an adjustment to or waiver of
the stormwater management service charge. The property owner shall substantiate the claim to the
satisfaction of the director with plans, engineering calculations and related documents prepared by a
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licensed professional engineer or land surveyor. The director may waive the licensed professional
requirement if in his opinion the specific adjustment request does not warrant such a requirement.
(1) New construction service charge adjustment applications for new construction shall be made in
conjunction with the relevant site plan or development plan submittal or a request for waiver of
normal site plan processing requirements. Action on such applications shall be within the
response times specified for such submittals and requests. Approved adjustments shall be
effective from the date of approval and will be prorated from the first day of the month in which
the adjustment is approved.
(2) Any owner of a developed parcel or dwelling unit who believes his service charge to be incorrect
may make application for adjustment of the charge to the director. Response to such requests
shall be made by the director within thirty (30) calendar days of receipt of a complete request.
The director shall develop an administrative policy regarding the refund or credit of overpaid fees.
(b) Any owner may appeal the director's decision to the city manager but must do so in writing within
fifteen (15) calendar days of the date of the director's response. The city manager shall respond to the
appeal within fifteen (15) calendar days and such response shall be final.
(c) The director may extend such city response times as appropriate to ensure full and complete
evaluation of the application. In these cases, the director shall notify the applicant of the action by
certified mail.
(d) Full waiver of the service charge shall be provided upon approval of a request for waiver for properties
owned by a federal, state and local government or a public entity, that holds a permit to discharge
stormwater from a municipal separate storm sewer system; except that the waiver of charges shall
apply only to property covered by any such permit.
(e) Adjustments:
(1) The city recognizes that on-site stormwater control facilities and increased green area reduce
peak stormwater runoff rates and the transport of pollutants. The city's stormwater management
system is constructed and maintained for the benefit of everyone in the city. Each land owner in
the city has an obligation to pay an equitable share of the stormwater management program
costs. The partial waiver of service charges established in this section account for the efforts of
individuals who install, operate and maintain a stormwater management facility that achieves a
permanent reduction in stormwater flow or pollutant discharges. The amount of the waiver shall
be based in part on the percentage reduction in stormwater flow or pollutant discharges, or both,
from pre-installation to post-installation of the facility, as set for more fully below. No waiver shall
be given to any person who does not obtain a stormwater permit from the department of
conservation and recreation of the department of environmental quality when such permit is
required by statute or regulations. The total maximum additive service charge adjustment shall
be twenty-five (25) percent of the service charge for items contained in [subsections] (e)(2) and
(e)(3).
(2) a.
In order to be eligible and maintain eligibility for the following service charge adjustments, all
of the following conditions shall be met:
1.
Applicant required to apply for and demonstrate to the satisfaction of the director that
an adjustment is warranted;
2.
Service charge after adjustment shall be greater than one (1) ERU;
3.
Control facility shall be privately constructed, owned, operated and maintained;
4.
Control facility shall be covered under an on-going maintenance program approved by
the director;
5.
Control facility shall be a permanent, on-site facility;
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ARTICLE II. SERVICE CHARGE
b.
c.
6.
Control facility shall operate at design efficiency;
7.
Service charge adjustment eligibility shall be certified by the owner and approved by
the director every two (2) years; and
8.
Control facility shall be designed to meet or exceed the minimum criteria as established
and maintained in writing by the director.
Parcels utilizing stormwater control facilities that control the peak rate of discharge from a
site in accordance with the following shall receive the service charge adjustment stated for
the area controlled:
1.
Seventy-five (75) to one hundred (100) percent reduction in post development peak
runoff rate—Fifteen (15) percent service charge adjustment;
2.
Fifty (50) to seventy-four (74) percent reduction in post development peak runoff rate—
Ten (10) percent service charge adjustment; and
3.
Thirty (30) to forty-nine (49) percent reduction in post development peak runoff rate—
Five (5) percent service charge adjustment.
Parcels utilizing stormwater control facilities that provide structural stormwater pollution
controls which serve at least eighty (80) percent of the developed portion of the site shall
receive a service charge adjustment according to the following:
1.
Wet retention basin(s)—Fifteen (15) percent;
2.
Extended dry detention—Ten (10) percent; and
3.
Infiltration facilities—Five (5) percent.
(3) In order to be eligible for the following service charge credits, all of the indicated conditions shall
be met:
• Applicant shall apply for and demonstrate to the satisfaction of the director that an adjustment
is warranted; and
• Service charge after adjustment shall be greater than one (1) ERU.
a.
b.
Parcels providing green area (percentage shall be based upon the ratio of green area to
developed area) shall receive the service charge adjustment specified as follows:
1.
Greater than ten (10) percent and up to and including twenty (20) percent green area—
Five (5) percent; and
2.
Greater than twenty (20) percent of green area—Ten (10) percent.
Parcels that are encumbered by a recorded public easement used exclusively for drainage
purposes, the undeveloped area of which exceeds fifteen (15) percent of the parcel area
with no portion of the encumbrance area being used to meet green area requirements or
receive any other service charge adjustment, shall receive a one (1) percent service charge
adjustment, not to exceed ten (10) percent of the service charge, for each one (1) percent of
the easement area that exceeds fifteen (15) percent of the parcel area.
(4) Service charge adjustments shall be given to parcels that meet the conditions established in
[subsection] (e)(2)a. and for which a reduction in the city stormwater management program costs
can be documented to the satisfaction of the director. This is a stand alone adjustment that will
be considered separate and not added to any other service charge adjustment. Any such credit
shall be awarded on the basis of a "betterment" test and the reduction in the city's stormwater
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management program costs. The total maximum credit for this adjustment shall be seventy (70)
percent of the service charge.
(5) A one hundred (100) percent service charge adjustment shall be granted upon approval of a
request for those portions of parcels that are subject to and in compliance with the requirements
of an individual federal or state industrial stormwater discharge permit, drain into a privately
owned, operated and maintained storm drainage systems, and discharge directly into waters of
the United States.
(6) A fifteen (15) percent service charge adjustment off of the annual service charge shall be granted
to the owners of developed, individually billed and owned residential property and dwelling units
within multi-family residential property who provide evidence of participation in the household
chemical collection program at least once in a billing year.
(Ord. No. 4482-93, § 1; Ord. No. 5053-97; Ord. No. 5294-99; Ord. No. 6807-11, § 1)
Editor's note—
Ord. No. 6807-11 shall be in effect on and after July 1, 2011.
Secs. 37.1-16—37.1-19. Reserved.
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Chapter 37.1 - STORMWATER MANAGEMENT
ARTICLE III. STORM SEWER DISCHARGE
ARTICLE III. STORM SEWER DISCHARGE [2]
Sec. 37.1-20. Findings and determinations.
Sec. 37.1-21. Definitions.
Sec. 37.1-22. Violations and penalties.
Sec. 37.1-23. Inspections and monitoring.
Secs. 37.1-24—37.1-29. Reserved.
Sec. 37.1-20. Findings and determinations.
(a) Pollutants in stormwater runoff from many sources are largely uncontrolled and have an adverse
impact upon the quality of receiving waters. Major sources of stormwater runoff that cause water
quality impacts include construction sites, illicit connections, illegal dumping and industrial activities.
(b) Amendments to the Clean Water Act (CWA) in 1987 required the Environmental Protection Agency
(EPA) to establish National Pollutant Discharge Elimination System (NPDES) requirements for
municipal separate storm sewer systems. NPDES regulations require the City of Newport News to
control through ordinance, permit, contract, order or similar means the contribution of pollutants into
waters of the United States.
(c) This article is adopted as an integral part of the city's stormwater management program.
(Ord. No. 7017-13, § 1)
Sec. 37.1-21. Definitions.
The following words and terms used in this article shall have the following meanings.
Discharge means to dispose, deposit, spill, pour, inject, dump, leak or place by any means, or that
which is disposed, deposited, spilled, poured, injected, dumped, leaked or placed by any means.
Groundwater means all subsurface water, including, but not limited to, that part within the zone of
saturation.
Industrial wastes means liquid or other wastes resulting from any process of industry, manufacture,
trade or business, or from the development of any natural resources.
Other waste means materials that can adversely affect waters of the United States should they be
discharged into same, including, but not limited to, garbage, refuse, lime, fertilizer, ashes, offal, tar, paint,
solvents, petroleum products, antifreeze and chemicals.
Person means any individual, corporation, partnership, limited partnership, limited liability company,
association, state, municipality, commission, or political subdivision of a state, governmental body, including
federal, state, or local entity as applicable, any interstate body or any other legal entity.
Sanitary sewer means a system of underground conduits that collect and deliver sanitary wastewater
to a wastewater treatment or pumping facility.
Sewage means the water-carried human wastes from residences, buildings, industrial establishments
or other places, together with such industrial wastes, stormwater or other water as may be present.
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ARTICLE III. STORM SEWER DISCHARGE
State projects means any projects undertaken by the Commonwealth of Virginia or its state agencies.
This does not apply to the projects of political subdivisions of the state located within the physical
boundaries of the City of Newport News.
Storm sewer system means the system of roads, streets, catch basins, curbs, gutters, ditches, pipes,
lakes, ponds, channels, storm drains and other facilities designed or used for collecting, storing or
conveying stormwater or through which stormwater is collected, stored or conveyed.
Surface runoff means stormwater runoff from rain, snow or other forms of precipitation.
(Ord. No. 7017-13, § 1)
Sec. 37.1-22. Violations and penalties.
(a) It shall be a violation of this article to:
(1) Discharge, or cause or allow to be discharged, sewage, industrial wastes or other wastes into the
storm sewer system, or any component thereof, or onto driveways, sidewalks, parking lots or
other areas draining to the storm sewer system;
(2) Connect, or cause or allow to be connected, any sanitary sewer to the storm sewer system,
including any sanitary sewer connected to the storm sewer system as of the date of adoption of
this article;
(3) Obstruct, block, divert, or otherwise alter the design capacity or specifications of any storm sewer
system or to impede the efficient functioning of any storm sewer system without approval by the
city manager, or designee; or
(4) Place, put, throw or deposit, or allow or cause to be placed, put, thrown or deposited, any limbs,
leaves, wire mesh, compost, chips, construction debris, wood, or any other substance in the storm
sewer system or in an area which drains into the storm sewer system.
(b) The following activities shall not be considered a violation of this article.
(1) Water line flushing;
(2) Landscape irrigation;
(3) Diverting stream flows or rising groundwater;
(4) Public safety activities, including, but not limited to, law enforcement and fire suppression;
(5) Pumping of uncontaminated groundwater from potable water sources, foundation drains,
irrigation waters, springs, or water from crawl spaces or footing drains;
(6) Lawn watering;
(7) Individual car washing on residential properties;
(8) Dechlorinated swimming pools discharges;
(9) Street washing;
(10) Any activity authorized by and in compliance with a valid Virginia Pollutant Discharge Elimination
System (VPDES) permit or Virginia Pollution Abatement (VPA) permit;
(11) Any activity by a governmental entity for the maintenance or repair of drinking water reservoirs or
drinking water treatment or distribution systems; and
(12) Any activity by the city, its agents and employees, for the maintenance of lakes and other
components of its stormwater management system.
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(c) A willful or knowing violation of the provisions of this article shall constitute a misdemeanor. Each day
that a continuing violation of this article is maintained or permitted to remain shall constitute a separate
offense.
(d) Any person who, intentionally or otherwise, commits any of the acts prohibited by this article shall be
liable to the city for all costs of containment, cleanup, abatement, removal and disposal of any
substance unlawfully discharged into the storm sewer system.
(e) Any person who, intentionally or otherwise, commits any of the acts prohibited by this article shall be
subject to a civil penalty in an amount not more than thirty two thousand five hundred dollars
($32,500.00) for each day that a violation of this article continues. Any civil penalties assessed by a
court as a result of a summons issued by a locality as an approved VSMP authority shall be paid into
the treasury of the city.
(f)
The city may bring legal action to enjoin the continuing violation of this article, and the existence of
any other remedy, at law or in equity, shall be no defense to any such action.
(g) The city manager, or designee, shall have authority to order that any activity found to be in violation of
this article be stopped or conducted in such a manner as to avoid the discharge of sewage, industrial
wastes or other wastes into the storm sewer system.
(h) With the consent of any person who has violated or failed, neglected or refused to obey any ordinance,
any condition of a permit, any order of the city, or any provision of this article, the city may provide, in
an order issued against such person, for the payment of civil charges for violations in specific sums,
not to exceed the limit specified in this section. Such civil charges shall be instead of any appropriate
civil penalty that could be imposed under this section. Any civil charges collected shall be paid to the
treasury of the city for the purpose of abating, preventing or mitigating environmental pollution.
(i)
The remedies set forth in this section shall be cumulative, not exclusive, and it shall not be a defense
to any action, civil or criminal, that one (1) or more of the remedies set forth herein has been sought
or granted.
(Ord. No. 7017-13, § 1)
Sec. 37.1-23. Inspections and monitoring.
The city manager, or designee, shall have authority to make such lawful inspections and conduct such
monitoring of stormwater outfalls or other components of the storm sewer system as may be necessary or
appropriate in the administration and enforcement of this article. The city may, at reasonable times and
under reasonable circumstances, enter any establishment or upon any property, public or private, for the
purpose of obtaining information or conducting surveys or investigations necessary in the enforcement of
the provisions of this article. This authority shall apply only to those properties from which a discharge
enters their municipal separate storm sewer.
(Ord. No. 7017-13, § 1)
Secs. 37.1-24—37.1-29. Reserved.
FOOTNOTE(S):
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--- (2) --Editor's note— Ord. No. 7017-13, § 1, adopted November 26, 2013, effective on and after July 1, 2014,
repealed the former art. III, §§ 37.1-20—37.1-23, and enacted a new art. III as set out herein. The former
art. III pertained to similar subject matter and derived from Ord. No. 4569-94; Ord. No. 4669-94; Ord. No.
5829-02, § 1; Ord. No. 6282-06, § 1; Ord. No. 6807-11, § 1. (Back)
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ARTICLE IV. STORMWATER CONTROL REGULATIONS [3]
Sec. 37.1-30. Findings and determinations; purpose.
Sec. 37.1-31. Applicability.
Sec. 37.1-32. Definitions.
Sec. 37.1-33. General criteria.
Sec. 37.1-34. Regional stormwater management.
Sec. 37.1-35. Technical criteria.
Sec. 37.1-36. Stormwater management plan requirements.
Sec. 37.1-36.1. Pollution prevention plan; contents of plans.
Sec. 37.1-36.2. Stormwater pollution prevention plan; contents of plans.
Sec. 37.1-37. Plan approval and conditions of approval.
Sec. 37.1-37.1. Hearings.
Sec. 37.1-37.1:1. Appeals.
Sec. 37.1-37.2. Fees.
Sec. 37.1-37.3. Stormwater nonpoint nutrient offsets.
Sec. 37.1-38. Construction inspections.
Sec. 37.1-39. Maintenance.
Sec. 37.1-40. Enforcement.
Secs. 37.1-41—37.1-45. Reserved.
Sec. 37.1-30. Findings and determinations; purpose.
(a) The Stormwater Management Act, Sections 62.1-44.15:24 through 66 of the Code of Virginia, requires
localities to prepare and adopt a stormwater management plan and implementing ordinance no later
than July 1, 2014.
(b) The city council hereby finds that the waters and waterways within the City of Newport News are at
times subjected to flooding and channel erosion due to urban stormwater runoff, tidal action and
storms; such flooding is a danger to the lives and property of the public; such flooding and channel
erosion is also a danger to the natural and water resources of the city; urban stormwater runoff carries
pollution which causes the deterioration of the water resources of the city; the control of stormwater
pollution discharges to the maximum extent practicable, is required by state and federal statutes and
regulations; and such increased flooding, erosion and pollution discharges can be controlled to some
extent by the regulation of stormwater runoff from new development. Therefore, it is determined that it
is in the public interest to establish requirements to regulate the discharge of stormwater runoff.
(c) It is the purpose of this article to establish minimum stormwater management requirements and
controls to:
(1) Reduce flood damage to public health, life, and property;
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(2) Minimize increased stormwater runoff where such runoff will increase flood damage;
(3) Maintain the adequacy of existing and proposed culverts and bridges, dams and other structures;
(4) Prevent, to the maximum extent practicable, an increase in stormwater pollution;
(5) Maintain the integrity of stream channels for their biological functions, as well as for drainage and
other purposes;
(6) Reduce the impact of increased runoff upon stream erosion; and
(7) Preserve and protect water supply facilities and water resources by means of controlling
increased flood discharges, stream erosion, and nonpoint source pollution to the extent
authorized by state and federal law.
(Ord. No. 7017-13, § 1)
Sec. 37.1-31. Applicability.
(a) Except as provided for in section 37.1-31(b) of this article, all land development projects shall comply
with the requirements of this article. All land development projects located within Chesapeake Bay
Preservation or Reservoir Protection areas shall additionally comply with the provisions of those
respective ordinances. In the event of a conflict, the provisions of chapter 37.1, article V, Chesapeake
Bay Preservation and chapter 42, article V, Reservoir Protection of the City Code shall take
precedence for land development projects in their respective areas.
(b) The following activities are exempt from this article:
(1) Permitted surface or deep mining operations and projects, or oil and gas operations and projects
conducted under the provisions of Title 45.1 of the Code of Virginia.
(2) Clearing of lands specifically for agricultural purposes and the management, tilling, planting, or
harvesting of agricultural, horticultural, or forest crops, livestock feedlot operations, or as
additionally set forth by the board in regulations, 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 the Code of Virginia] or is converted to bona fide agricultural or
improved pasture use as described in subsection B of § 10.1-1163 [of the Code of Virginia];
(3) Single-family residences separately built and not part of a larger common plan of development or
sale, including additions or modifications to existing single-family detached residential structures.
(4) Land development projects that disturb less than one (1) acre of land area and discharge
stormwater to an adequate system, except when those projects are located within Chesapeake
Bay Preservation or Reservoir Protection areas, or activities that are part of a larger common plan
of development or sale that is one (1) acre or greater of disturbance.
(5) Reserved.
(6) State projects as defined in this chapter.
(7) Reserved.
(8) Activities under a state or federal reclamation program to return an abandoned property to an
agricultural or open land use.
(9) Discharges to a sanitary sewer system.
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(10) Routine maintenance that is performed to maintain the original line and grade, hydraulic capacity,
or original construction of the project. The paving of an existing road with a compacted or
impervious surface and reestablishment of existing associated ditches and shoulders shall be
deemed routine maintenance if performed in accordance with this subsection.
(11) Conducting 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 VSMP authority shall be advised of the disturbance within
seven (7) days of commencing the land-disturbing activity and compliance with the administrative
requirements of subsection A is required within thirty (30) days of commencing the land-disturbing
activity.
(c) Reserved.
(d) Land development projects subject to the grandfathering provisions of 9VAC25-870-48 [of the Virginia
Administrative Code] that are located within the watershed of and discharge stormwater to a cityapproved regional stormwater management facility for water quality control or have thirty-six (36)
percent or less of impervious cover shall be exempt from complying with section 37.1-35(b) but shall
comply with section 37.1-35(c).
(e) Approvals issued pursuant to this article do not relieve the applicant of the responsibility to secure
required permits or approvals for activities regulated by any other applicable code, rule, act or
ordinance.
(f)
If the provisions of any article, section, subsection, paragraph, subdivision or clause of this article shall
be judged invalid by a court of competent jurisdiction, such order or judgment shall not affect or
invalidate the remainder of any article, section, subsection, paragraph, subdivision or clause of this
article.
(Ord. No. 7017-13, § 1)
Sec. 37.1-32. Definitions.
Unless specifically defined below, words or phrases used in this article shall be interpreted so as to
give them the meaning they have in common usage and to give this article its most reasonable application.
Adequate stormwater management system or adequate system means the stormwater management
infrastructure and equipment of the city and all improvements thereto that will convey the designated
frequency storm event without overtopping the channel banks, causing erosive damage or flooding.
Applicant means any person submitting an application for a permit or requesting issuance of a permit
under this chapter.
Board means the Virginia State Water Control Board.
Channel means a natural stream or manmade waterway.
Chesapeake Bay Preservation Act land-disturbing activity means a land-disturbing activity including
clearing, grading, or excavation that results in a land disturbance equal or greater than two thousand five
hundred (2,500) square feet and less than one (1) acre in all areas of jurisdictions designated as subject to
the regulations adopted pursuant to the Chesapeake Bay Preservation Act, Code of Virginia, § 62.144.15:67, et seq.
Common plan of development or sale means a contiguous area where separate and distinct
construction activities may be taking place at different times on different schedules.
Department means the Virginia Department of Environmental Quality.
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Development means land disturbance and the resulting landform associated with the construction of
residential, commercial, industrial, institutional, recreation, transportation or utility facilities or structures or
the clearing of land for non-agricultural or non-silvicultural purposes.
Flooding means a volume of water that is too great to be confined within the banks or walls of the
stream, water body or conveyance system and that overflows onto adjacent lands, causing or threatening
damage.
Floodplain means those areas adjoining a river, stream, channel, estuary, bay or lake which are likely
to be covered by flooding.
Impervious surface means a hard surface area which either prevents or retards the entry of water into
the soil mantle as under natural conditions prior to development, and/or a hard surface area which causes
water to run off the surface in greater quantities or at an increased rate of flow from the flow present under
natural conditions prior to development. Impervious areas include, but are not limited to, roof tops,
walkways, patios, driveways, parking lots or storage areas, concrete or asphalt paving, gravel roads,
packed earthen materials, and oiled, macadam, or other surfaces which similarly impede the natural
infiltration of stormwater. Natural waterbodies and open, uncovered retention/detention facilities shall not
be considered as impervious surfaces.
Infiltration facility means a stormwater management facility which temporarily stores stormwater and
discharges it via infiltration through the surrounding soil.
Inspection means an on-site review of the project's compliance with the approved plan, the local
stormwater management program, a state-issued stormwater construction general or individual permit as
applicable, and any applicable design criteria.
Land development or land development project means a manmade change to the land surface that
potentially changes its runoff characteristics.
Minor modification means an amendment to an existing general permit before its expiration not
requiring extensive review and evaluation including, but not limited to, changes in EPA promulgated test
protocols, increasing monitoring frequency requirements, changes in sampling locations, and changes to
compliance dates within the overall compliance schedules. A minor general permit modification or
amendment does not substantially alter general permit conditions, substantially increase or decrease the
amount of surface water impacts, increase the size of the operation, or reduce the capacity of the facility to
protect human health or the environment.
Nonpoint source pollution means pollution such as sediment, nitrogen, phosphorous, hydrocarbons,
heavy metals, and toxics whose sources cannot be pinpointed but rather are washed from the land surface
in a diffuse manner by stormwater runoff.
Onsite stormwater management facilities means facilities which are designed to control stormwater
runoff emanating from a specific site.
Peak flow rate means the maximum instantaneous flow from a prescribed design storm at a particular
location.
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.
Point source means any discernible, confined, and discrete conveyance including, but not limited to,
any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal
feeding operation, landfill leachate collection system, vessel, or other floating craft from which pollutants
are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural
stormwater runoff.
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Pollutant means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage,
sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those
regulated under the Atomic Energy Act of 1954, as amended (42 USC § 2011 et seq.)), heat, wrecked or
discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into
water. It does not mean:
1.
Sewage from vessels; or
2.
Water, gas, or other material that is injected into a well to facilitate production of oil or gas, or
water derived in association with oil and gas production and disposed of in a well if the well used
either to facilitate production or for disposal purposes is approved by the board and if the board
determines that the injection or disposal will not result in the degradation of ground or surface
water resources.
Pollutant discharge means the average amount of a particular pollutant measured in pounds per year
or other standard reportable unit as appropriate, delivered by stormwater runoff.
Pollution means such alteration of the physical, chemical or biological properties of any state waters
as will or is likely to create a nuisance or render such waters (a) harmful or detrimental or injurious to the
public health, safety or welfare, or to the health of animals, fish or aquatic life; (b) unsuitable with reasonable
treatment for use as present or possible future sources of public water supply; or (c) unsuitable for
recreational, commercial, industrial, agricultural, or other reasonable uses, provided that (i) an alteration of
the physical, chemical, or biological property of state waters, or a discharge or deposit of sewage, industrial
wastes or other wastes to state waters by any owner which by itself is not sufficient to cause pollution, but
which, in combination with such alteration of or discharge or deposit to state waters by other owners, is
sufficient to cause pollution; (ii) the discharge of untreated sewage by any owner into state waters; and (iii)
contributing to the contravention of standards of water quality duly established by the State Water Control
Board, are "pollution" for the terms and purposes of this chapter.
Post-development refers to conditions that reasonably may be expected or anticipated to exist after
completion of the land development activity on a specific site or tract of land.
Pre-development refers to the land use that exists at the time that plans for the land development are
submitted. Where phased development or plan approval occurs (preliminary grading, roads and utilities,
etc.), the existing land use at the time the first item is submitted shall establish pre-development conditions.
Regional (watershed wide) stormwater management facility or regional facility means a facility or
series of facilities designed to control stormwater runoff from a large contributing area, although only
portions of the watershed may experience land development.
Regional stormwater management plan or regional plan means a document containing material
describing how runoff from open space, existing development and future planned development areas within
a watershed will be controlled by coordinated design and implementation of regional stormwater
management facilities.
Regulations mean the Virginia Stormwater Management Regulations (9VAC25-870-10, et seq. [of the
Virginia Administrative Code]).
Runoff volume or stormwater runoff volume means that portion of precipitation that is discharged
across the land surface or through conveyances to one (1) or more waterways.
State construction general permit means an approval to conduct a land-disturbing activity issued by
the State Board in the form of a state stormwater individual permit or coverage issued under a state general
permit or an approval issued by the State Board for stormwater discharges from an MS4. Under these state
permits, the Commonwealth imposes and enforces requirements pursuant to the Federal Clean Water Act
and regulations, the Virginia Stormwater Management Act and the Regulations.
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State project means the construction of any facility or expansion of an existing facility including, but
not limited to land clearing, soil movement, or land development, which is undertaken by any state agency,
board, commission, authority or any branch of state government, including state supported institutions of
higher learning.
Stormwater detention basin or detention basin means a stormwater management facility which
temporarily impounds runoff and discharges it through a hydraulic outlet structure to a downstream
conveyance system. To achieve stormwater pollution control, the detention basin may include a permanent
pool of water or some other treatment component specified in the Design Criteria Manual.
Stormwater management facility means a device that controls stormwater runoff and changes the
characteristics of that runoff including, but not limited to, the peak flow rate and pollution discharges, the
period of release or the velocity of flow.
Stormwater management plan or plan means a document containing material for describing how
existing runoff characteristics will be maintained by a land development project and comply with the
requirements of this article.
Subdivision means the division of a parcel of land into three (3) or more lots or parcels of less than
five (5) acres each for the purpose of transfer of ownership or building development, or, if a new street is
involved in such division, any division of a parcel of land. The term includes resubdivision and, when
appropriate to the context, shall relate to the process of subdividing or to the land subdivided.
Virginia Stormwater Management Program or VSMP means a program approved by the State Board
after September 13, 2011, that has been established by a locality to manage the quality and quantity of
runoff resulting from land-disturbing activities and shall include such items as local ordinances, rules, permit
requirements, annual standards and specifications, policies and guidelines, technical materials, and
requirements for plan review, inspection, enforcement, where authorized in this article, and evaluation
consistent with the requirements of this article and associated regulations.
Water quality volume means the volume equal to the first one-half (0.5) inch of runoff multiplied by the
new impervious surface area of the land development project.
Watershed means the total drainage area contributing runoff to a single point.
(Ord. No. 7017-13, § 1)
Sec. 37.1-33. General criteria.
(a) Proposed residential, commercial, or industrial subdivisions or other projects shall apply these
stormwater management criteria to the land development as a whole. Individual lots or phases in new
subdivisions or other projects shall not be considered separate land development projects, but rather
the entire subdivision or other projects shall be considered a common plan of development or sale.
Hydrologic parameters shall reflect the ultimate land development and shall be used in all engineering
calculations.
(b) Construction of stormwater management facilities or modifications to channels shall comply with all
applicable laws and regulations.
(c) The design of impounding structures that are not covered by the Virginia Dam Safety Regulations shall
be checked by the applicant for structural integrity and floodplain impacts for the one hundred-year
storm event.
(d) Land development projects shall comply with article VII of this chapter and the Virginia Erosion and
Sediment Control Law (Virginia Code § 62.1-44.15:51-66, et seq.) and attendant regulations.
(e) When appropriate, safety measures should be incorporated into the design of stormwater
management facilities. These may include but are not limited to, safety ledges, warning signs, anti-
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vortex devices, stadia rod indicating depth at the lowest point, and outlet structures designed to limit
public access.
(f)
Outlets from stormwater management facilities shall be designed to function without manual, electrical
or mechanical controls.
(g) Detention facilities shall be designed to minimize propagation of insects, particularly mosquitoes.
(h) New construction of onsite stormwater management facilities in floodplains should be avoided. When
this is unavoidable, a special examination to determine adequacy of proposed stormwater
management facilities shall be conducted as determined by the city manager, or designee. Such new
construction shall be in compliance with all applicable regulations under the National Flood Insurance
Program.
(i)
Basic requirements for water quality and quantity control need not be satisfied solely by means of
structural methods. Non-structural practices including, but not limited to, cluster land use development,
minimization of impervious surface, open space acquisition, floodplain management, and protection of
wetlands, steep slopes and vegetation should be coordinated with structural requirements. Such
changes in land use often decrease the runoff coefficients, thus reducing the number, size and cost of
structural practices; however all methods to meet water quality and quantity control shall be selected
and designed in accordance with the Virginia Stormwater Best Management Practice (BMP)
Clearinghouse to the extent these standards do not conflict with more stringent city requirements in
effect as of January 1, 2013.
(j)
Land disturbance shall be limited to the area necessary to provide for the desired use or development.
(1) In accordance with an approved site plan, the limits of land disturbance, including clearing or
grading shall be clearly shown on submitted plans and physically marked on the development
site.
(2) Where feasible, ingress and egress during construction shall be limited to one (1) access point,
unless otherwise approved by the city manager, or designee.
(k) Indigenous vegetation shall be preserved to the maximum extent possible consistent with the use and
development permitted and in accordance with the Virginia Erosion and Sediment Control Handbook,
as adopted by chapter 37.1, article VII, of the Newport News City Code.
(1) Existing trees more than five (5) inches in diameter four and one-half (4.5) feet above existing
grade shall be preserved outside the limits of land disturbance. Trees that are diseased or that
have been weakened by age, storm, fire or other injury may be removed.
(2) Clearing shall be allowed only to provide necessary visual and vehicular access, positive site
drainage, water quality stormwater management control facilities, and the installation of utilities
as approved by the city manager, or designee.
(3) Prior to clearing or grading, suitable protective barriers, such as fencing, shall be erected five (5)
feet outside of the dripline of any tree or stand of trees to be preserved. These protective barriers
shall remain so erected throughout all phases of construction. The storage of equipment,
materials, debris or fill shall not be allowed within the area protected by the barrier unless
otherwise authorized by the city manager, or designee.
(l)
Land development shall minimize impervious cover to promote infiltration of stormwater into the ground
consistent with the use or development permitted.
(Ord. No. 7017-13, § 1)
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Sec. 37.1-34. Regional stormwater management.
The applicant shall comply with the requirements of any regional stormwater management plan for the
watershed in which the proposed land development is located.
(Ord. No. 7017-13, § 1)
Sec. 37.1-35. Technical criteria.
(a) Unless otherwise exempt, all land development projects shall comply with stormwater quantity and
quality technical design criteria specified in this article or contained in the City of Newport News Design
Criteria Manual as of January 1, 2013; whichever is more stringent.
(b) To protect the quality and quantity of state water from the potential harm of unmanaged stormwater
runoff resulting from land-disturbing activities, the city hereby adopts the technical criteria for regulated
land-disturbing activities set forth in Part II B of the Regulations, as amended, expressly to include
9VAC25-870-63 (water quality design criteria requirements); 9VAC25-870-65 (water quality
compliance); 9VAC25-870-66 (water quantity); 9VAC25-870-69 (offsite compliance options); 9VAC25870-72 (design storms and hydrologic methods); 9VAC25-870-74 (stormwater harvesting); 9VAC25870-76 (linear development project); and, 9VAC25-870-85 (stormwater management impoundment
structures or facilities) [of the Virginia Administrative Code], which shall apply to all land-disturbing
activities regulated pursuant to this chapter, except as expressly set forth in subsection (d) of this
section.
(c) Until June 30, 2019, any land-disturbing activity for which a currently valid proffered or conditional
zoning plan, preliminary or final subdivision plat, preliminary or final site plan or zoning with a plan of
development, or any document determined by the city manager, or designee, as being equivalent
thereto, was approved by the director of engineering, or designee, prior to July 1, 2012, and for which
no coverage under the general permit has been issued prior to July 1, 2014, shall be considered
grandfathered in accordance with 9VAC25-870-48 [of the Virginia Administrative Code] and shall not
be subject to the technical criteria of Part II B of the Regulations (9VAC25-870-62 through 92[of the
Virginia Administrative Code]), but shall be subject to the technical criteria of Part II C of the
Regulations (9VAC25-870-93 through 99 [of the Virginia Administrative Code]) for those areas that
were included in the approval, provided that the city manager, or designee, finds that such proffered
or conditional zoning plan, preliminary or final subdivision plat, preliminary or final site plan or zoning
with a plan of development, or any document determined by the city manager, or designee, as being
equivalent thereto,
(1) Provides for a layout, and;
(2) The resulting land-disturbing activity will be compliant with the requirements of Part II C [of the
Regulations].
In the event that the approved development plan is subsequently modified or amended in a
manner such that there is no increase over the previously approved plat or plan in the amount of
phosphorus leaving each point of discharge of the land-disturbing activity through stormwater
runoff, and such that there is no increase over the previously approved plat or plan in the volume
or rate of runoff, the grandfathering shall continue as before.
(1) Until June 30, 2019, for local, state, and federal projects for which there has been an obligation
of local, state, or federal funding, in whole or in part, prior to July 1, 2012, or for which the
department has approved a stormwater management plan prior to July 1, 2012, such projects
shall be considered grandfathered by the City of Newport News and shall not be subject to the
technical requirements of Part II B of the Regulations, but shall be subject to the technical
requirements of Part II C of the Regulations for those areas that were included in the approval.
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(2) For land-disturbing activities grandfathered under this subsection, construction must be
completed by June 30, 2019, or portions of the project not under construction shall become
subject to the technical requirements of Subsection (b) above.
(d) In cases where governmental bonding or public debt financing has been issued for a project prior to
July 1, 2012, such project shall be subject to the technical requirements Part II C of the Regulations,
as adopted by the locality in subsection (c) of this section.
(e) The city manager, or designee, may grant exceptions to the technical requirements of Part II B or Part
II C of the Regulations, provided that:
(i)
The exception is the minimum necessary to afford relief,
(ii)
Reasonable and appropriate conditions are imposed so that the intent of the Act, the
Regulations, and this chapter are preserved,
(iii) Granting the exception will not confer any special privileges that are denied in other similar
circumstances, and;
(iv) Exception requests are not based upon conditions or circumstances that are self-imposed
or self-created. Economic hardship alone is not sufficient reason to grant an exception from
the requirements of this chapter.
(1) Exceptions to the requirement that the land-disturbing activity obtain required VSMP authority
permit shall not be given by the city manager, or designee, nor shall the city manager, or
designee, approve the use of a BMP not found on the Virginia Stormwater BMP Clearinghouse
Website, or any other control measure duly approved by the department unless such BMP is
contained in the City of Newport News Design Criteria Manual as of January 1, 2013 and is
identified as being more stringent than state minimum requirements at the time of program
submittal to the department for review.
(2) Exceptions to requirements for phosphorus reductions shall not be allowed unless offsite options
otherwise permitted pursuant to 9VAC25-870-69[of the Virginia Administrative Code] have been
considered and found not available.
(f)
Nothing in this section shall preclude an operator from constructing to a more stringent standard at
their discretion.
(g) Land development projects located in Chesapeake Bay Preservation or Reservoir Protection areas
shall comply with the ordinance provisions affecting those respective ordinances.
(Ord. No. 7017-13, § 1)
Sec. 37.1-36. Stormwater management plan requirements.
(a) Except as provided for in section 37.1-31(b) of this article, no land-disturbing, grading, building, or
other permit shall be issued for land development unless a stormwater management plan has been
submitted to and approved by the city manager, or designee, and proof of coverage under the state
stormwater construction general permit, and if applicable, has been submitted to the city manager, or
designee.
(b) The following information, where applicable, shall be required for each proposed project subject to
review under this article. All maps, plans, designs, narratives and calculations shall be certified by a
professional engineer or class III B surveyor. The city manager, or designee, may require additional
information as may be necessary to properly review the land development plan.
(1) General description of the project.
(2) General description of the erosion and sediment controls.
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(3) General description of temporary and permanent stormwater management facilities.
(4) Project schedule, including a sequence of construction.
(5) General description of maintenance plan for stormwater management facilities.
(6) A boundary map of the drainage area tributary to the project site.
(7) The location of the project relative to significant features in the general surroundings such as
roads, pedestrian ways, access to the site, adjacent land uses, property lines, existing manmade
structures, public facilities, landmarks, and places of architectural and historical significance.
(8) Existing contours at two-foot intervals, extending a minimum of two hundred (200) feet beyond
the limits of the proposed development.
(9) Streams, lakes, ponds, existing drainage swales, wetlands, forested areas and other physical
features within or adjacent to the project area.
(10) Unique, unusual, or environmentally sensitive features that provide particular opportunities or
constraints for development.
(11) Locations of existing and proposed utilities, sewers and water lines.
(12) Soil types and boundaries and locations of areas with steep slopes or highly erodible soils.
(13) Alterations in the natural terrain, cover, and grade including lawns and other landscaping.
(14) Areas to be cut or filled.
(15) The location of proposed buildings, roads, parking areas, and other permanent structures.
(16) Final contours at two-foot intervals, extending a minimum of two hundred (200) feet beyond the
limits of the proposed development.
(17) All stormwater management facilities must be shown on the plan as required by chapter 33.02
Site Regulations, article II Site Plan Form and Content [of this Code], including details; geographic
coordinates based on the City of Newport News datum (NAD83 Virginia State Plane) reported in
degrees, minutes, seconds; plan, profile, and cross sections; acres treated and the receiving
water or watershed into which they discharge.
(18) If infiltration facilities are proposed, the locations of existing and proposed wells and septic system
drain fields must be shown.
(19) Comprehensive hydrologic and hydraulic design calculations, including all assumptions and
criteria, for the pre-development and post-development conditions for the design storms specified
in this article verifying compliance with the water quality and quantity requirements of section
37.1-35 of this chapter.
(20) A soils report and boring logs.
(21) A maintenance plan indicating the person responsible for maintenance of the stormwater
management facilities and a maintenance program for the proposed stormwater management
facilities.
(22) An analysis showing the pre-existing total amount of phosphorous, nitrogen and sediment in the
runoff from the developed area.
(23) An analysis showing onsite or offsite facilities that are calculated to result in reduction of
phosphorous, nitrogen and sediment to bring the total within the limits of the Virginia Stormwater
Regulation and the Chesapeake Bay total maximum daily load.
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(24) If the calculations indicate that required water quality compliance cannot be achieved onsite, a
proposal for purchase of stormwater nonpoint nutrient offsets, as set out in section 37.1-37.3
below.
(c) If an operator intends to meet the water quality and/or quantity requirements set forth in section 37.135 of this chapter through the use of off-site compliance options other than the purchase of non-point
nutrient offsets as set out in section 37.1-37.3, below, where applicable, then a letter of availability
from the off-site provider must be included.
Approved off-site options must achieve the necessary nutrient reductions prior to the commencement
of the applicant's land-disturbing activity except as otherwise allowed by § 62.1-44.15:35 of the Code of
Virginia.
(d) Elements of the stormwater management plans that include activities regulated under Chapter 4 (§
54.1-400 et seq.) of Title 54.1 of the Code of Virginia shall be appropriately sealed and signed by a
professional registered in the Commonwealth of Virginia pursuant to Article 1 (§ 54.1-400 et seq.) of
Chapter 4 of Title 54.1 of the Code of Virginia.
(e) A construction record drawing for permanent stormwater management facilities shall be submitted to
the city manager, or designee. The construction record drawing shall be appropriately sealed and
signed by a professional registered in the Commonwealth of Virginia, certifying that the stormwater
management facilities have been constructed in accordance with the approved plan, unless the city
manager, or designee, determines pursuant to 9VAC 25-870-112[of the Virginia Administrative Code]
that such drawing is not necessary.
(Ord. No. 7017-13, § 1)
Sec. 37.1-36.1. Pollution prevention plan; contents of plans.
(a) Pollution prevention plan, required by 9VAC25-870-56 [of the Virginia Administrative Code], shall be
developed, implemented, and updated as necessary and must detail the design, installation,
implementation, and maintenance of effective pollution prevention measures to minimize the discharge
of pollutants. At a minimum, such measures must be designed, installed, implemented, and maintained
to:
(1) Minimize the discharge of pollutants from equipment and vehicle washing, wheel wash water, and
other wash waters. Wash waters must be treated in a sediment basin or alternative control that
provides equivalent or better treatment prior to discharge;
(2) Minimize the exposure of building materials, building products, construction wastes, trash,
landscape materials, fertilizers, pesticides, herbicides, detergents, sanitary waste, and other
materials present on the site to precipitation and to stormwater; and,
(3) Minimize the discharge of pollutants from spills and leaks and implement chemical spill and leak
prevention and response procedures.
(b) The pollution prevention plan shall include effective best management practices to prohibit the
following discharges:
(1) Wastewater from washout of concrete, unless managed by an appropriate control;
(2) Wastewater from washout and cleanout of stucco, paint, form release oils, curing compounds,
and other construction materials;
(3) Fuels, oils, or other pollutants used in vehicle and equipment operation and maintenance; and,
(4) Soaps or solvents used in vehicle and equipment washing.
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(c) Discharges from dewatering activities, including discharges from dewatering of trenches and
excavations, are prohibited unless managed by appropriate controls.
(Ord. No. 7017-13, § 1)
Sec. 37.1-36.2. Stormwater pollution prevention plan; contents of plans.
(a) The Stormwater Pollution Prevention Plan (SWPPP) required by the state stormwater construction
general permit shall include the content specified by section 9VAC25-870-54 [of the Virginia
Administrative Code] and must also comply with the requirements and general information set forth in
section 9VAC25-880-70, Section II (stormwater pollution prevention plan) [of the Virginia
Administrative Code] of the general permit and amendments thereto.
(b) The SWPPP shall be amended by the operator whenever there is a change in design, construction,
operation, or maintenance that has a significant effect on the discharge of pollutants to state waters
which is not addressed by the existing SWPPP.
(c) The SWPPP must be maintained by the operator at a central location onsite. If an onsite location is
unavailable, notice of the SWPPP's location must be posted near the main entrance at the construction
site. Operators shall make the SWPPP available for public review in accordance with Section II of the
general permit, either electronically or in hard copy.
(Ord. No. 7017-13, § 1)
Sec. 37.1-37. Plan approval and conditions of approval.
(a) The stormwater management plan required by this article shall be included as part of the submission
requirement by site plan or subdivision ordinance plan submittal requirements.
(1) The city manager, or designee, shall determine the completeness of a stormwater management
plan in accordance with section 37.1-36 of this chapter, and shall notify the applicant, in writing,
of such determination, within fifteen (15) calendar days of receipt. If the stormwater management
plan is deemed to be incomplete, the above written notification shall contain the reasons the
stormwater management plan is deemed incomplete.
(2) The city manager, or designee, shall have an additional sixty (60) calendar days from the date of
the communication of completeness to review the stormwater management plan, except that if a
determination of completeness is not made within the time prescribed in subdivision (1), then the
stormwater management plan shall be deemed complete and the city manager, or designee, shall
have sixty (60) calendar days from the date of submission to review the stormwater management
plan.
(3) The city manager, or designee, shall review any stormwater management plan that has been
previously disapproved, within forty-five (45) calendar days of the date of resubmission.
(4) During the review period, the stormwater management plan shall be approved or disapproved
and the decision communicated in writing to the person responsible for the land-disturbing activity
or his designated agent. If the stormwater management plan is not approved, the reasons for not
approving the stormwater management plan shall be provided in writing. Approval or denial shall
be based on the stormwater management plan's compliance with the requirements of this chapter.
(5) If a stormwater management plan meeting all requirements of this chapter is submitted and no
action is taken within the time provided above in subdivision (2) for review, the stormwater
management plan shall be deemed approved.
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(b) The applicant shall comply with all applicable requirements of the approved plan and the local program
and shall certify in writing that all land clearing, construction, land development and drainage will be
done according to the approved plan.
(c) The land development project shall be conducted only within the area specified in the approved plan.
(d) The city shall be allowed to conduct periodic inspections of the project. The owner, occupier or operator
shall be given the opportunity to accompany the city manager, or designee.
(e) No transfer, assignment or sale of the rights granted by virtue of an approved plan shall be made
unless a written notice of transfer is filed with the city and the transferee certifies agreement to comply
with all obligations and conditions of the approved plan.
(f)
Modifications may only be made to an approved plan upon review and written approval by the city
manager, or designee, in accordance with the following:
(1) Modifications to an approved stormwater management plan shall be allowed only after review
and written approval by the city manager, or designee. The city manager, or designee, shall have
sixty (60) calendar days to respond in writing either approving or disapproving such request.
(2) The city manager, or designee, may require that an approved stormwater management plan be
amended, within a time prescribed by the city manager, or designee, to address any deficiencies
noted during inspection.
(g) Reserved.
(h) Reserved.
(i)
The city manager, or designee, shall require the submission of a construction record drawing for
permanent stormwater management facilities.
(Ord. No. 7017-13, § 1)
Sec. 37.1-37.1. Hearings.
(a) Any permit applicant or permittee, or person subject to the requirements of this chapter, aggrieved by
any action of the city taken without a formal hearing, or by inaction of the city, may demand in writing
a formal hearing by the city manager, or designee, of such grievance, provided a petition requesting
such hearing is filed with the city manager, or designee, within thirty (30) days after notice of such
action is given by the city manager, or designee.
(b) The hearings held under this section shall be conducted by the city manager, or a designee, appointed
in writing by the city manager.
(c) A verbatim record of the proceedings of such hearings shall be taken and retained by the city manager,
or designee, pending an appeal. Depositions may be taken and read as in actions at law.
(d) The city manager, or designee, shall have power to issue subpoenas and subpoenas duces tecum,
and at the request of any party shall issue such subpoenas. The failure of a witness without legal
excuse to appear or to testify or to produce documents shall be acted upon by the local governing
body, or its designated member, whose action may include the procurement of an order of enforcement
from the circuit court. Witnesses who are subpoenaed shall receive the same fees and reimbursement
for mileage as in civil actions.
(e) The city manager, or designee, shall issue a decision in the matter in writing. This written decision will
be retained as part of the record.
(f)
The applicant may appeal to the wetlands board by filing a notice of appeal with the city manager, or
designee, within thirty (30) days after the rendering of the written decision.
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(Ord. No. 7017-13, § 1)
Sec. 37.1-37.1:1. Appeals.
(a) Any permit applicant or permittee, or person subject to the requirements of this chapter, aggrieved by
any decision of the city manager, or designee, after a formal hearing, may demand in writing an appeal
to the wetlands board, provided a petition for appeal is filed with the city manager, or designee, within
thirty (30) days after the date of the written decision in the formal hearing.
(b) The appeals held under this section shall be conducted by the wetlands board at its next regularly
scheduled meeting following the notice of appeal, unless good cause is shown for a continuance of
the appeal to another regularly scheduled meeting,
(c) The appeal shall be based upon a review of the record from the formal hearing and argument of the
parties to the appeal. The wetlands boards determination shall be in writing.
(Ord. No. 7017-13, § 1)
Sec. 37.1-37.2. Fees.
(a) Fees to cover costs associated with implementation of a VSMP related to land disturbing activities and
issuance of general permit coverage and VSMP authority permits shall be imposed in accordance with
table 1.
Table 1: Fees for land disturbance and construction general permit issuance
Fee Type
Total Fee to be Paid by
Applicant to the City of
Newport News for Land
Disturbance Permit
Issuance
Fee Paid by Applicant to
the
Department of
Environmental Quality
for Construction
General Permit
Issuance*
Projects with land-disturbance acreage between
$100.00
2,500 square feet and less than 10,001 square feet
not in a designated Chesapeake Bay Preservation
Area Resource Protection Area (RPA) or Resource
Management Area (RMA)
$0.00
Projects with land-disturbance acreage equal to
$200.00
10,001 square feet and less than 0.9999 acre not in
a designated Chesapeake Bay Preservation Area
Resource Protection Area (RPA) or Resource
Management Area (RMA)
$0.00
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Projects in either designated RPA or RMA areas,
$290.00
equal to or greater than 2,500 square feet and less
than 1 acre
$0.00
General/Stormwater Management—Small
Construction Activity/Land Clearing (Areas within
common plans of development or sale with land
disturbance acreage less than 1 acre.)
$81.00
$209.00
General/Stormwater Management—Small
$1,944.00
Construction Activity/Land Clearing (Sites or areas
within common plans of development or sale with
land disturbance acreage equal to or greater than 1
acre and less than 5 Acres)
$756.00
General/Stormwater Management—Large
$2,448.00
Construction Activity/Land Clearing (Sites or areas
within common plans of development or sale with
land disturbance acreage equal to or greater than 5
acres and less than 10 acres)
$952.00
General/Stormwater Management—Large
Construction Activity/Land Clearing (Sites or areas
within common plans of development or sale with
land disturbance acreage equal to or greater than
10 acres and less than 50 acres.)
$ 3,240.00
$1,260.00
General/Stormwater Management—Large
Construction Activity/Land Clearing (Sites or areas
within common plans of development or sale with
land disturbance acreage equal to or greater than
50 acres and less than 100 acres)
$4,392.00
$1,708.00
General/Stormwater Management—Large
Construction Activity/Land Clearing (Sites or areas
within common plans of development or sale with
land disturbance acreage equal to or greater than
100 acres)
$6,912.00
$2,688.00
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Individual Stormwater Management Construction
General Permit
Fee as stated above
based on area of land
disturbance.
$15,000.00
* If the project is completely administered by the department such as may be the case for a state or federal
project or projects covered by individual permits, the entire applicant fee shall be paid to the department.
(b) Generally, fees for the modification or transfer of registration statements from the general permit issued
by the state will not be separately assessed. If, however, the general permit modifications result in an
increase in total disturbed acreage, the applicant shall pay the difference in the initial state permit fee
paid and the permit fee that would have been due the state for the total disturbed acreage in table 1.
(c) The fees set forth in subsections (a) and (b) above, shall apply to:
(1) All persons seeking coverage under the general permit.
(2) All permittees who request modifications to or transfers of their existing registration statement for
coverage under a general permit.
(3) Persons whose coverage under the general permit has been revoked shall apply to the
department for an individual permit for discharges of stormwater from construction activities.
(4) Permit and permit coverage modification fees outlined under sections 37.1-37.2(a) and (b) may
apply to each general permit holder.
(d) No general permit application fees will be assessed to:
(1) Permittees who request minor modifications to general permits as defined in section 37.1-35 of
this chapter. Permit modifications at the request of the permittee resulting in changes to
stormwater management plans that require additional review by the city manager, or designee,
shall not be exempt pursuant to this section.
(2) Permittees whose general permits are modified or amended at the initiative of the department,
excluding errors in the registration statement identified by the city manager, or designee, or errors
related to the acreage of the site.
(e) All incomplete payments will be deemed as nonpayments, and the applicant shall be notified of any
incomplete payments. Interest may be charged for late payments at the underpayment rate set forth
in § 58.1-15 of the Code of Virginia and is calculated on a monthly basis at the applicable periodic rate.
A ten (10) percent late payment fee shall be charged to any delinquent (over ninety (90) days past
due) account. The city shall be entitled to all remedies available under the Code of Virginia in collecting
any past due amount.
(Ord. No. 7017-13, § 1)
Sec. 37.1-37.3. Stormwater nonpoint nutrient offsets.
(a) As used in this section:
Nonpoint nutrient offset means nutrient reductions certified as nonpoint nutrient offsets under the
Chesapeake Bay Watershed Nutrient Exchange Program (§ 62.1-44.19:12 et seq. [of the Code of Virginia]).
Tributary has the same meaning as in Virginia Code § 62.1-44.19:13.
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(b) The City of Newport News, through its approval of the stormwater management plan, may allow
compliance with stormwater nonpoint nutrient runoff water quality criteria established pursuant to
Virginia Code § 62.1-44.15:28, in whole or in part, through the use of acquisition of nonpoint nutrient
offsets in the same tributary.
(c) Nonpoint nutrient offsets will not be allowed to address water quantity control requirements. Nonpoint
nutrient offsets or other off-site options shall not be used in contravention of local water quality-based
limitations: (i) consistent with determinations made pursuant to subsection B of Virginia Code § 62.144.19:14, (ii) adopted pursuant to Virginia Code § 62.1-44.15:33 or other applicable authority,, (iii)
deemed necessary to protect public water supplies from adverse nutrient impacts, or (iv) as otherwise
may be established or approved by the State Water Control Board. Where such a limitation exists,
other off-site options may be used provided that such options do not preclude or impair compliance
with the local limitation.
(d) Nonpoint nutrient offsets off-site options may only be used in the stormwater management plan when
the:
(1) The applicant demonstrates to the satisfaction of the city manager, or designee, that (i) alternative
site designs have been considered that may accommodate on-site best management practices,
(ii) on-site best management practices have been considered in alternative site designs to the
maximum extent practicable, (iii) appropriate on-site best management practices will be
implemented, and (iv) full compliance with post-development nonpoint nutrient runoff compliance
requirements cannot practicably be met on site. For purposes of this subdivision, if an applicant
demonstrates on-site control of at least seventy-five (75) percent of the required phosphorous
nutrient reductions, the applicant shall be deemed to have met the requirements of clauses (i)
through (iv);
(2) Less than five (5) acres of land will be disturbed; or
(3) The post-construction phosphorous control requirement is less than 10 (ten) pounds per year.
(e) Documentation of the acquisition of nonpoint nutrient offsets by the person proposing the stormwater
management plan shall be provided to the permit issuing authority in a certification from an offset
broker documenting the number of phosphorus nonpoint nutrient offsets acquired and the associated
ratio of nitrogen nonpoint nutrient offsets at the offset generating facility.
(f)
Nonpoint nutrient offsets used pursuant to subsection (b) shall be generated in the same or adjacent
eight-digit hydrologic unit code as defined by the United States Geological Survey as the permitted
site. Nonpoint nutrient offsets outside the same or adjacent eight-digit hydrologic unit code may only
be used if it is determined by the city manager, or designee, that no nonpoint nutrient offsets are
available within the same or adjacent eight-digit hydrologic unit code when the permit issuing authority
accepts the final site design. In such cases, and subject to other limitations imposed in this section,
nonpoint nutrient offsets generated within the same tributary may be used. In no case shall nonpoint
nutrient offsets from another tributary be used.
(g) For that portion of a site's compliance with stormwater nonpoint nutrient runoff water quality criteria
being obtained through nonpoint nutrient offsets, the city manager, or designee, shall (i) use a oneone-one (1:1) ratio of the nonpoint nutrient offsets to the site's remaining post-development nonpoint
nutrient runoff compliance requirement and (ii) assure that the nonpoint nutrient offsets are secured in
perpetuity.
(h) The city may not grant an exception to, or waiver of, post-development nonpoint nutrient runoff
compliance requirements unless off-site options have been considered and found not available.
(i)
Until July 1, 2014, priority was to be given to the use of nonpoint nutrient offsets unless the city
manager, or designee, requires a pro-rata share payment plan pursuant to the code of the City of
Newport News, Appendix B—Subdivision Regulations, Section 4.01.7 or to the Regional BMP Water
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Quality Banking Program Policy, as revised, adopted by Resolution No. 9418-99 adopted by the city
council. In the case of a phased project, the permittee may acquire or achieve the off-site nutrient
reductions prior to the commencement of each phase of the land-disturbing activity in an amount
sufficient for each such phase.
(j)
The city manager, or designee, will allow incorporation into or amendment to the stormwater
management plan to reflect full or partial substitution of nonpoint nutrient offsets for existing on-site
nutrient controls when (i) the nonpoint nutrient offsets will compensate for ten (10) or fewer pounds of
the annual phosphorous requirement associated with the original land-disturbing activity or (ii) existing
on-site controls are not functioning as anticipated after reasonable attempts to comply with applicable
maintenance agreements or requirements and the use of nonpoint nutrient offsets will account for the
deficiency. The party responsible for maintenance shall be released from maintenance obligations
related to the on-site phosphorous controls for which the nonpoint nutrient offsets are substituted.
(k) To the extent available, with the consent of the proposer of the stormwater management plan, the city
manager, or designee, may include the use of nonpoint nutrient offsets or other off-site measures in
resolving enforcement actions to compensate for (i) nutrient control deficiencies occurring during the
period of noncompliance and (ii) permanent nutrient control deficiencies.
(l)
This section shall not be construed as limiting the authority established under Virginia Code §
15.2-2243; however, under any pollutant loading pro rata share program established thereunder,
the subdivider or developer shall be given appropriate credit for nutrient reductions achieved
through nonpoint nutrient offsets or other off-site options.
Sec. 37.1-38. Construction inspections.
(a) The city shall inspect the land-disturbing activity during construction for:
(1) Compliance with the approved erosion and sediment control plan;
(2) Compliance with the approved stormwater management plan;
(3) Development, updating, and implementation of a pollution prevention plan; and,
(4) Development and implementation of any additional control measures necessary to address a
TMDL.
(b) The applicant shall notify the city manager, or designee, forty-eight (48) hours prior to the
commencement of any activity covered by this article so that appropriate inspections can be made to
insure compliance with this article.
(c) Inspection reports shall be maintained as part of the land development project file.
(d) The city may, at reasonable times and under reasonable circumstances, enter any establishment or
upon any property, public or private, for the purpose of obtaining information or conducting surveys or
investigations necessary in the enforcement of the provisions of this chapter to the extent allowed by
applicable law.
(e) In accordance with a performance bond with surety, cash escrow, letter of credit, any combination
thereof, or such other legal arrangement or instrument, the city manager or any duly authorized agent
of the city manager may also enter any establishment or upon any property, public or private, for the
purpose of initiating or maintaining appropriate actions which are required by the permit conditions
associated with a land-disturbing activity when a permittee, after proper notice, has failed to take
acceptable action within the time specified to the extent allowed by applicable law.
(f)
Pursuant to § 62.1-44.15:40 of the Code of Virginia, the city manager or any duly authorized agent of
the city manager may require every VSMP authority permit applicant or permittee, or any such person
subject to VSMP authority permit requirements under this chapter, to furnish when requested such
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application materials, plans, specifications, and other pertinent information as may be necessary to
determine the effect of his discharge on the quality of state waters, or such other information as may
be necessary to accomplish the purposes of this chapter.
(g) Post-construction inspections of stormwater management facilities required by the provisions of this
chapter shall be conducted by the city pursuant to city adopted and State Board approved inspection
program, and shall occur, at minimum, at least once every five (5) years except as may otherwise be
provided for in section 37.1-39, below.
(Ord. No. 7017-13, § 1)
Sec. 37.1-39. Maintenance.
(a) Responsibility for the operation and maintenance of stormwater management facilities, unless
assumed by a governmental agency, shall remain with the property owner and shall pass to any
successor or owner. If portions of the land are to be sold, legally binding arrangements shall be made
to pass the basic responsibility to successors in title. These arrangements shall designate for each
parcel the property owner, governmental agency, or other legally established entity to be permanently
responsible for maintenance. The documents prepared to accomplish the requirements of this
subsection shall be reviewed and approved by the city attorney and be recorded in the land records.
(b) In the case of developments where subdivision lots are to be sold, permanent arrangements
satisfactory to the city manager, or designee, shall be made to insure continued performance of these
obligations.
(c) In the event that the stormwater management facilities are in need of maintenance or become a danger
to public safety or public health, the property owner shall be notified in writing, advised of the corrective
measures required, and given a reasonable period of time to take necessary action. If the property
owner fails or refuses to perform such maintenance and repair, the city has the authority to perform
the work and to recover the costs from the responsible person.
(d) To ensure proper performance of the stormwater management facility between scheduled
maintenance operations, the owner is responsible for inspecting the stormwater management facility
on a semi-annual basis and after any storm which causes the capacity of the facility to be exceeded.
All such inspection reports shall be appropriately sealed and signed by a professional registered in the
Commonwealth of Virginia pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1 of the
Code of Virginia and submitted to the city manager, or designee, within thirty (30) days of the
inspection.
(d) Right-of-entry agreements or easements may be required from the applicant for purposes of inspection
and maintenance by the city manager, or designee.
(Ord. No. 7017-13, § 1)
Sec. 37.1-40. Enforcement.
(a) If it is determined that there is a failure to comply with the approved plan, notice shall be served upon
the property owner by registered or certified mail to the address specified in the application or plan
certification, or by delivery at the land development site to the agent or employee supervising such
activities.
(b) The notice shall specify the measures needed to comply with the plan and shall specify the time within
which such measures shall be completed.
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(c) Upon failure to comply within the time specified, the permit or approval may be revoked and the
property owner shall be deemed to be in violation of this article.
(d) Any person who willfully or knowingly violates any provision of this article shall be guilty of a
misdemeanor and shall be subject to a fine or imprisonment for each violation, or both, as provided for
in Section 62.1-44.15:49 of the Code of Virginia.
(e) The city may apply to the circuit court to enjoin a violation or a threatened violation of this article as
provided for in Sections 62.1-44.15:42 and 62.1-44.15:49 of the Code of Virginia without the necessity
of showing that an adequate remedy at law does not exist.
(f)
Without limiting the remedies which may be obtained in this section, the city may bring a civil action
against any person for violation of this article, or any condition of the permit or approval, or any
provision of the local program. The action may seek to impose of a civil penalty of not more than thirtytwo thousand five hundred dollars ($32,500.00) per day for each violation as provided for in Section
62.1-44.15:49 of the Code of Virginia.
(g) With the consent of any person who has violated or failed, neglected or refused to obey this article or
any condition of the permit or approval or any provision of the local program, the city may issue an
order against or to such person for the payment of civil charges for violations in specific sums not to
exceed the limit specified in subsection (f) of this section as provided for in Section 62.1-44.15:49 of
the Code of Virginia. Such civil charges shall be instead of any appropriate civil penalty which could
be imposed under subsection (f).
(Ord. No. 7017-13, § 1)
Secs. 37.1-41—37.1-45. Reserved.
FOOTNOTE(S):
--- (3) --Editor's note— Ord. No. 7017-13, § 1, adopted November 26, 2013, effective on and after July 1, 2014,
repealed the former art. IV, §§ 37.1-30—37.1-40, and enacted a new art. IV as set out herein. The former
art. III pertained to similar subject matter and derived from Ord. No. 4569-94; Ord. No. 6807, § 1. (Back)
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ARTICLE V. CHESAPEAKE BAY PRESERVATION
ARTICLE V. CHESAPEAKE BAY PRESERVATION [4]
Sec. 37.1-46. Findings of fact.
Sec. 37.1-47. Purpose and intent.
Sec. 37.1-48. Definitions.
Sec. 37.1-49. Areas of applicability.
Sec. 37.1-50. Interpretation of chesapeake bay preservation areas.
Sec. 37.1-51. Performance standards.
Sec. 37.1-52. Plan of development.
Sec. 37.1-53. Nonconforming uses and noncomplying structures.
Sec. 37.1-54. Exemptions for utilities, railroads, public roads and facilities.
Sec. 37.1-55. Exceptions.
Sec. 37.1-55.1. Appeals, limitations.
Sec. 37.1-56. Conflict with other regulations.
Sec. 37.1-57. Enforcement.
Sec. 37.1-46. Findings of fact.
The Chesapeake Bay and its perennial tributaries constitute one (1) of the most important and
productive estuarine systems in the world, providing economic and social benefits to the citizens of Newport
News and the Commonwealth of Virginia. The health of the bay is vital to maintaining Newport News'
economy and the welfare of its citizens.
The industrialized portion of Newport News' waterfront constitutes one (1) of the most important
industrial areas in the Commonwealth of Virginia. It provides economic and social benefits to Newport
News, the Commonwealth of Virginia and the United States of America. The continued economic health of
the waterfront industrial areas is vital to maintaining Newport News' economy and the welfare of its citizens
as a whole; however, protection of the economic health of these areas and improving the health of the
Chesapeake Bay are not mutually exclusive. Measures consistent with the continued industrial use of
Newport News' industrial waterfront areas are available and are used for the protection of the Chesapeake
Bay.
The Chesapeake Bay waters have been degraded significantly by many sources of pollution, including
nonpoint source pollution from land uses and development. Existing waters are worthy of protection from
degradation to guard against further pollution. Certain lands that are proximate to shorelines have intrinsic
water quality value due to the ecological and biological processes they perform. Other lands have severe
development constraints from flooding, erosion, and soil limitations. With proper management, these lands
offer significant ecological benefits by providing water quality maintenance and pollution control, as well as
flood and shoreline erosion control.
There also exist, however, certain lands at or near the shoreline that, due to their intense development,
installation of sea walls, riprap and impervious surface, have little or no remaining intrinsic water quality
value. Although these lands must be monitored to ensure that there is no deterioration of existing water
quality protection as a result of the continued intensive use of these properties, the regulations and
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application of this article to these lands must be tempered by a recognition of the existing intense use and
landowners' rights to continue that use. Measures consistent with the current uses of these lands must be
employed to protect the quality of the water of the Chesapeake Bay.
All of these lands together, designated by the city council as Chesapeake Bay Preservation Areas, are
important in connection with the protection of the quality of water in the bay and consequently the quality
of life in the City of Newport News and the Commonwealth of Virginia.
(Ord. No. 7017-13, § 1)
Sec. 37.1-47. Purpose and intent.
(a) This article is adopted to implement the requirements of Sections 62.1-44.15:67-79 et seq. of the Code
of Virginia (The Chesapeake Bay Preservation Act). The intent of the city council and the purpose of
this article are to:
(1) Protect existing state and community waters.
(2) Restore state waters to a condition or quality that will permit all reasonable public uses and will
support the propagation and growth of all aquatic life, including game fish, which might reasonably
be expected to inhabit them.
(3) Prevent any further increase in nonpoint source pollution.
(4) Reduce existing nonpoint source pollution in state and community waters in order to provide for
the health, safety, and welfare of the present and future citizens of the City of Newport News.
(b) A Chesapeake Bay Preservation Area Map has been prepared and adopted by city council that
overlay's the city's one-to-two-hundred (1:200) scale real estate assessment maps, so that any parcel
of land lying in these areas can be generally identified. Site specific delineation of Chesapeake Bay
Preservation Areas shall be required as provided in section 37.1-50. Unless otherwise stated in this
article, the review and approval procedures provided for in chapter 13, Building Regulations; article VII
of this chapter; chapter 44, Wetlands; and, chapter 45, Zoning Ordinance; appendix B, Subdivision
Regulations; chapter 33.02, Site Plan Ordinance; and, all other applicable ordinances shall be followed
in reviewing and approving development, redevelopment, and uses governed by this article.
(c) Future revisions to this ordinance shall require approval from the city's regulations committee and
planning commission, as well as from city council.
(Ord. No. 7017-13, § 1)
Sec. 37.1-48. Definitions.
The following words and terms used in this article have the following meaning, unless the context
clearly indicates otherwise:
Agricultural lands means those lands used for the planting and harvesting of crops or plant growth of
any kind in the open, pasture, horticulture, dairying, floriculture, or in the raising of poultry and/or livestock,
except land used for gardening or landscaping.
Best management practices (BMPs) means schedules of activities, prohibitions of practices, including
both structural and nonstructural practices, maintenance procedures, and other management practices to
prevent or reduce the pollution of surface waters and groundwater systems from the impacts of landdisturbing activities.
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Buffer area means an area of natural or established vegetation managed to protect other components
of a resource protection area and state waters from significant degradation due to land disturbances. This
buffer area consists of three (3) trophic layers: trees, shrubs and ground cover.
Chesapeake Bay Preservation Area means any land designated as such on the map adopted by the
city council subject to the determination of the city manager, or designee, on a site-specific basis. A
Chesapeake Bay Preservation Area shall consist of a resource protection area, a resource management
area and any designated industrial waterfront intensely developed areas.
Development means land disturbance and the resulting landform associated with the construction of
residential, commercial, industrial, institutional, recreation, transportation or utility facilities or structures or
the clearing of land for non-agricultural or non-silvicultural purposes.
Diameter at breast height (DBH) means the diameter of a tree measured outside its bark at a point
four and one-half (4.5) feet above the existing grade.
Disturbed land area means an area cleared or graded as necessary for the construction of
improvements including, but not limited to, buildings, roads and drives, parking areas, and sidewalks.
Dripline means a vertical projection to the ground surface from the furthest tips of a tree's leaf canopy.
Highly erodible soils means soils which have an erodibility index of eight (8) which is the generally
accepted threshold at which the rate of soil loss becomes critical in relation to soil replacement, resulting in
severe soil erosion. The equation for the erodibility index is EI=RKLS/T, where: R = the rainfall and runoff
factor; K = the soil susceptibility to water erosion; LS = the combined effects of slope length and steepness;
and T = the soil loss tolerance. The identified highly erodible soils in the City of Newport News are: 16D
Craven-Uchee Complex, 16C Craven-Uchee Complex, 21B Slagle fine sandy loam, and 9B Craven fine
sandy loam.
Impervious cover. A surface composed of any material which significantly impedes or prevents natural
infiltration of water into the soil including, but not limited to: buildings and other structures and their
components, streets, parking, and any concrete, asphalt, or compacted gravel surface.
Industrial waterfront intensely developed area (industrial waterfront IDA or IWIDA) means any portion
of Chesapeake Bay Preservation Area so designated by the city council. Industrial waterfront IDAs are
industrial areas located along the shoreline that, because of the intensity of their use, are characterized by
an absence of natural environmental features and a preponderance of impervious surface and bulkheaded
or riprapped shoreline.
Landward fifty (50) feet of resource protection area (RPA) buffer means the fifty (50) feet of the RPA
100-foot buffer which resides between the seaward fifty (50) feet of RPA and resource management area
(RMA) components identified in section 37.1-49(a)(2).
Map means the Chesapeake Bay Preservation Area Map.
Nonpoint source pollution means pollution consisting of constituents such as sediment, nutrients, and
organic and toxic substances from diffuse sources, such as runoff from agriculture, silviculture and urban
land development and use.
Nontidal wetlands means those wetlands other than tidal wetlands that are inundated or saturated by
surface or ground water at a frequency and duration sufficient to support, and that under normal
circumstances do support a prevalence of vegetation typically adapted for life in saturated soil conditions,
as defined by the U.S. Environmental Protection Agency, in 33 C.F.R. 328.3b, dated November 13, 1986.
Noxious weeds means weeds that are difficult to control effectively, including, but not limited to
Johnson Grass, Kudzu, and multiflora rose.
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Plan of development means the process for site plan or subdivision plan review to ensure compliance
with Section 62.1-44.15:74 of the Code of Virginia and this article, prior to any clearing or grading of a site
or the issuance of a building permit.
Public roads means a publicly-owned road designed and constructed in accordance with water quality
protection criteria at least as stringent as requirements applicable to the Virginia Department of
Transportation, including regulations promulgated pursuant to (i) the Erosion and Sediment Control Law
(Sections 62.1-44.15:51-66 of the Code of Virginia) and (ii) the Virginia Stormwater Management Act
(Sections 62.1-44.15:24-50 of the Code of Virginia). This definition includes those roads where the Virginia
Department of Transportation exercises direct supervision over the design or construction activities, or both,
and cases where secondary roads are constructed or maintained, or both, in accordance with the City of
Newport News standards.
Redevelopment means the process of developing land in Chesapeake Bay Preservation Areas, except
for industrial waterfront intensely developed areas, that is currently or has been previously developed;
provided that, to be considered developed a parcel must be or have been covered by at least sixty (60)
percent impervious improvements within the five (5) years preceding the proposed development.
Resource management area (RMA) means that component of the Chesapeake Bay Preservation Area
that is not classified as the resource protection area. RMAs include land types that, if improperly used or
developed, have the potential for causing significant water quality degradation or for diminishing the
functional value of a resource protection area.
Resource management area components. See section 37.1-49(a)(2).
Resource protection area (RPA) means that component of the Chesapeake Bay Preservation Area
comprised of lands adjacent to water bodies with perennial flow that have an intrinsic water quality value
due to the ecological and biological processes they perform or are sensitive to impacts which may result in
significant degradation to the quality of state and local waters.
Resource protection area components. See section 37.1-49(a)(1).
Seaward fifty (50) feet of resource protection area buffer means the fifty (50) feet of the RPA 100-foot
buffer adjacent to RPA components identified in section 37.1-49(a)(1)a., b. and c.
Silvicultural activities means forest management activities, including but not limited to the harvesting
of timber, the construction of roads and trails for forest management purposes, and the preparation of
property for reforestation that are conducted in accordance with the silvicultural best management practices
developed and enforced by the state forester pursuant to Section 10.1-1105 of the Code of Virginia and are
located on property defined as real estate devoted to forest use under Section 58.1-3230 of the Code of
Virginia.
Tidal shore means the area of land between mean low water level and mean high water level.
Tidal wetlands means vegetated and non-vegetated wetlands as defined in Section 28.2-1300 of the
Code of Virginia, as amended.
Usable land area means not less than eighty (80) percent of the minimum lot area required by the
zoning ordinance (chapter 45 of the City Code) shall be usable land by reason of elevation above flood
level and not less than fifty (50) percent of such required minimum lot area shall be usable by reason of
absence of easements or servitudes ; provided, however, that all of the minimum area required for the
building itself together with its required front, side and rear yard lines shall be usable land landward of the
resource protection area (RPA).
Water-dependent facility means a development of land that cannot exist outside the resource
protection area and must be located on the shoreline by reason of the intrinsic nature of its operation. These
facilities include:
(1) Beaches and other public water-oriented recreation areas.
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(2) Dry docks.
(3) Fisheries or other marine resource facilities.
(4) Fueling areas associated with marinas or marine vessels.
(5) Intake and outfall structures of power plants, water treatment plants, sewage treatment plants,
and storm sewers.
(6) Loading, unloading and freight staging areas necessary for the convenient and efficient operation
of ports and marinas (including staging areas for dry and liquid bulk and "high and dry" automated
boat storage equipment).
(7) Marinas and other boat docking structures (including all utility lines necessary for convenient and
efficient operations).
(8) Mooring slips, docks, piers, ports, buoys, launch ramps, access roads and paths necessary to
conveniently and efficiently serve these facilities.
(9) Nature study and passive recreation facilities with no structures or impervious surfaces.
(10) Rail lines, conveyor systems and other related facilities necessary for convenient and efficient
servicing and loading or unloading water-transported goods.
(11) Seafood off-landing, handling or processing for water-transported seafood.
(12) Shipbuilding, repair and maintenance yards.
(13) Water-dependent portions of research facilities operated by educational institutions.
Wetlands. Any tidal or nontidal wetlands.
(Ord. No. 7017-13, § 1)
Sec. 37.1-49. Areas of applicability.
(a) The general location of resource protection areas, resource management areas, and industrial
waterfront and residential intensely developed areas are shown on the designated map adopted by
city council. The map, together with all explanatory matter thereon, as adopted by the city council shall
be a part of this article.
(1) The components of a resource protection area are:
a.
Tidal wetlands;
b.
Nontidal wetlands which are connected by surface flow and contiguous to tidal wetlands or
water bodies with perennial flow;
c.
Tidal shores; and
d.
A buffer area not less than one hundred (100) feet in width, located adjacent to and landward
of the components listed in subsections a. through c. above, and along both sides of any
water body with perennial flow. The full buffer area shall be designated as the landward
component of the resource protection area notwithstanding the presence of permitted uses,
encroachments and permitted vegetation clearing in compliance with section 37.1-51
(2) The components of a resource management area shall consist of all lands within one hundred
(100) feet landward of the landward boundary of the resource protection area buffer and in
addition includes all land containing slopes greater than fifteen (15) percent, all areas within the
one hundred (100) year floodplain and highly erodible soils. Council may designate other lands it
deems important to maintenance of water quality as resource management area.
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(3) Industrial waterfront intensely developed areas (IWIDAs) are those portions of Chesapeake Bay
Preservation Areas so designated by the city council because of the intensity of industrial land
uses located along the shoreline that are characterized by an absence of natural environmental
features and a preponderance of impervious surface and bulkheaded or riprapped shoreline.
Industrial waterfront IDAs are areas further characterized as areas where little of the natural
environment remains and development has severely altered the natural state of the area.
(b) The Chesapeake Bay Preservation Area Map is hereby declared to delineate the general location of
Chesapeake Bay Preservation Areas. Site specific delineation of Chesapeake Bay Preservation Areas
shall be required as provided in section 37.1-50. The city manager, or designee, shall have the final
authority in cases of uncertainty to determine the extent of these areas by application of criteria set
forth in this section.
(Ord. No. 7017-13, § 1)
Sec. 37.1-50. Interpretation of chesapeake bay preservation areas.
(a) Delineation by the applicant. The site-specific boundaries of the resource protection area shall be
determined by the applicant through the performance of an environmental site assessment, subject to
review and approval by the city manager, or designee, in accordance with section 37.1-52, plan of
development. The Chesapeake Bay Preservation Map shall be used as a guide to the general location
of resource protection areas and resource management areas. However, a reliable on site evaluation
shall be conducted to determine whether water bodies on or adjacent to the site have perennial flow
and the resource protection area boundaries for the site shall be adjusted, as necessary, based upon
the findings of the on site evaluation. The specific boundaries of the industrial waterfront are
designated by the city council on the adopted Chesapeake Bay Area Map. The boundaries of the
industrial waterfront IDA overlay the boundaries of the underlying resource protection area and
resource management area.
(b) Delineation by the city manager, or designee. The city manager, or designee, when requested by an
applicant wishing to construct a single-family residence or addition or accessory structure, may waive
the requirement for an applicant performed environmental site assessment and the city shall perform
the delineation. The applicant is responsible for incorporating this information into an application for a
building permit.
(c) Where conflict arises over delineation. Where, when required pursuant to the terms of this article, the
applicant has provided a site-specific delineation of the Chesapeake Bay Preservation Areas, the city
manager, or designee, will verify the accuracy of the boundary delineation. In determining the sitespecific RPA boundary, the city manager, or designee, may render adjustments to the applicant's
boundary delineation, in accordance with section 37.1-52, plan of development. In the event the
adjusted boundary delineation is contested by the applicant, the applicant may seek relief, in
accordance with the provisions of section 37.1-52(i), denial of plan, appeal of conditions or
modifications.
(Ord. No. 7017-13, § 1)
Sec. 37.1-51. Performance standards.
(a) Purpose and intent. The purpose and intent of these requirements, as set forth in section 37.1-47(a),
is to establish criteria to implement the following objectives: prevent a net increase in nonpoint source
pollution from development; achieve a ten (10) percent reduction in nonpoint source pollution from
redevelopment; and achieve a forty (40) percent reduction in nonpoint source pollution from
agricultural and silvicultural uses.
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The performance standards recognize that diverse local circumstances require varying methods for
protecting water quality. The performance standards establish the means to minimize erosion and
sedimentation potential, reduce land application of nutrients and toxins, and maximize rainwater infiltration.
Where land is undeveloped and not actively used, natural ground cover, especially woody vegetation, is
most effective in holding soil in place and preventing site erosion. Indigenous vegetation, with its adaptability
to local conditions without the use of harmful fertilizers or pesticides, filters stormwater runoff. Minimizing
impervious cover enhances rainwater infiltration and effectively reduces stormwater runoff potential.
Industrial waterfront intensely developed areas do not lend themselves to compliance with the
performance standards set forth above. Industrial waterfront IDAs are characterized by the absence of
indigenous vegetation, the preponderance of impervious cover and the presence of intense industrial
activities. The performance standards for industrial waterfront IDAs have been implemented in recognition
that the remaining natural ground cover may not be effective in holding soil in place and preventing site
erosion in areas subject to more intense activity and that infiltration of surface waters into the ground in
these areas may lead to groundwater contamination.
(b) General performance standards for development and redevelopment. Performance standards for
development and redevelopment within all Chesapeake Bay Preservation Areas, except within
industrial waterfront IDAs, are set forth in subsection (1). Performance standards for development and
redevelopment within all resource protection areas, except within Industrial Waterfront IDAs, are set
forth in subsection (2). Performance standards for development and redevelopment within industrial
waterfront IDA's are set forth in subsections (3).
(1) Chesapeake Bay Preservation Areas. The following performance standards for development and
redevelopment apply in all Chesapeake Bay Preservation Areas except industrial waterfront IDAs
and as otherwise hereinafter set forth.
a.
All development and redevelopment (i.e. land disturbance) exceeding two thousand five
hundred (2,500) square feet of land disturbance in Chesapeake Bay Preservation Areas
shall be subject to a plan of development process, including the approval of a site plan in
accordance with the provisions of the site plan ordinance and a stormwater management
plan in accordance with the provisions of this ordinance.
b.
Development in resource protection areas may be allowed subject to approval by the city
manager, or designee, only if it is (1) water dependent or constitutes redevelopment; (2)
constitutes development or redevelopment within a designated intensely developed area;
(3) is a new use established pursuant to subsection (b)(2)b and (b)(2)c. of this section; (4) is
a road or driveway crossing satisfying the conditions set forth in subdivision d. below; or (5)
is a flood control or stormwater management facility satisfying the conditions set forth in
subdivision (b)(1)m. of this section.
1.
2.
A new or expanded water-dependent facility may be allowed provided that:
i.
It does not conflict with the city's comprehensive plan.
ii.
It complies with the performance criteria set forth in this part.
iii.
Any non-water-dependent component is located outside of resource protection
areas.
iv.
Access will be provided with the minimum disturbance necessary. Where
practicable, a single point of access will be provided.
Redevelopment outside designated intensely developed areas shall be permitted in the
resource protection area only if there is no increase in the amount of impervious cover
and no further encroachment within the resource protection area, and it shall conform
to applicable erosion and sediment control and stormwater management criteria set
forth within this article as well as all applicable stormwater management requirements.
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c.
A water quality impact assessment shall be required for any proposed land disturbances
within any resource protection area and may be required within resource management areas
as deemed necessary by the city manager, or designee, due to the unique characteristics of
the site or based upon the intensity of development and in accordance with the provisions of
section 37.1-52, plan of development.
d.
Roads and driveways not exempt under section 37.1-54(a) of this chapter may be
constructed in or across resource protection areas if the city manager, or designee, finds
that:
e.
f.
g.
1.
There are no reasonable alternatives to aligning the road or driveway in or across the
resource protection area.
2.
The alignment and design of the road or driveway minimizes encroachment in the
resource protection area and adverse effects on water quality.
3.
The design and construction of the road or driveway satisfies all applicable criteria in
this article, including submission of a water quality impact assessment as appropriate.
4.
The plan for the road or driveway proposed in or across the resource protection area
has been reviewed through the site plan or subdivision plan review process.
Land disturbance shall be limited to the area necessary to provide for the proposed use or
development.
1.
In accordance with an approved site plan, the limits of land disturbance, including
clearing or grading shall be clearly shown on submitted plans and physically marked on
the development site.
2.
Where feasible, ingress and egress during construction shall be limited to one (1)
access point, unless otherwise approved by the city manager, or designee.
Indigenous vegetation shall be preserved to the maximum extent practicable consistent with
the use or development proposed and in accordance with the Virginia Erosion and Sediment
Control Handbook, as adopted by article VII of this chapter.
1.
Existing trees shall be preserved outside the limits of land disturbance. Diseased trees
or trees weakened by age, storm, fire, or other injury may be removed, pursuant to
section 37.1-51(b)(2)a.
2.
Clearing shall be allowed only to provide necessary vehicular access, positive site
drainage, water quality BMPs, and the installation of utilities as approved by the city
manager, or designee.
3.
Prior to clearing or grading, suitable protective barriers, such as fencing shall be erected
five (5) feet outside of the dripline of any tree or stand of trees to be preserved. These
protective barriers shall remain so erected throughout all phases of construction. The
storage of equipment, materials, debris, or fill shall not be allowed within the area
protected by the barrier unless otherwise authorized by the city manager, or designee.
Land development shall minimize impervious cover to promote infiltration of stormwater into
the ground consistent with the proposed use or development.
1.
Pervious surfaces, such as grid and modular pavements, shall be considered for any
required parking area, alley, or other low traffic driveway and approved by the city
manager, or designee.
2.
Parking requirements shall be otherwise governed by the zoning ordinance.
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h.
Notwithstanding any other provisions of this article or exceptions or exemptions thereto,
including gardening, landscaping and maintenance activities, any land disturbing activities
exceeding two thousand five hundred (2,500) square feet in a Chesapeake Bay Preservation
Area shall comply with the requirements of article VII of this chapter, Soil Removal and Other
Land-Disturbing Activities.
i.
For any development or redevelopment that exceeds those land disturbance levels identified
in h, above, stormwater runoff shall be controlled in accordance with article IV of this chapter.
j.
Prior to initiating grading or other on-site activities on any portion of a lot or parcel, all
wetlands permits required by federal, state, and local laws and regulations shall be obtained
and evidence of such submitted to the city manager, or designee, in accordance with section
37.1-52, plan of development. In lieu of the aforesaid permits, the applicant may present a
letter from a licensed engineer certifying that in his opinion no such permits are required. A
copy of said letter shall be submitted to the city manager, or designee.
k.
Stormwater management criteria consistent with the water quality protection provisions of
section 37.1-35 of article IV Stormwater Control Regulations.
1.
2.
The following stormwater management options shall be considered to comply with this
subsection of this chapter:
i.
Incorporation on the site of best management practices that meet the water quality
protection requirements set forth in this subsection. (For the purposes of this
subsection, the "site" may include multiple projects or properties that are adjacent
to one (1) another or lie within the same HUC where a single best management
practice will be utilized by those projects to satisfy water quality protection
requirements);
ii.
Compliance with a locally adopted regional stormwater management program,
which may include a Virginia Pollution Discharge Elimination System (VPDES)
permit issued by the Department of Environmental Quality to a local government
for its municipally owned separate storm sewer system discharges, that is
reviewed and found by the board to achieve water quality protection equivalent to
that required by this subsection; and
iii.
Compliance with a site-specific VPDES permit issued by the Department of
Environmental Quality, provided that the local government specifically determines
that the permit requires measures that collectively achieve water quality protection
equivalent to that required by this subsection.
Any maintenance, alteration, use or improvement to an existing structure that does not
degrade the quality of surface water discharge as determined by the city manager, or
designee, may be exempted from the requirements of this subsection.
Stormwater management criteria for redevelopment shall apply to any redevelopment,
whether or not it is located within an intensely developed area designated by the city.
l.
Where best management practices utilized require regular or periodic maintenance in order
to continue their functions such maintenance shall be ensured by a maintenance agreement
between the owner or developer and the city or some other effective mechanism that
achieves an equivalent objective as determined by the city manager, or designee.
m.
Flood control and stormwater management facilities that drain or treat water from multiple
development projects or from a significant portion of a watershed may be allowed in resource
protection areas provided that (1) the city has conclusively established the location of the
facility within the resource protection area is the optimum location; (2) the size of the facility
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is the minimum necessary to provide necessary flood control and stormwater treatment, or
both; (3) the facility must be consistent with the design standards contained in the Virginia
BMP Clearinghouse or the City of Newport News Design Standards Manual, whichever is
more stringent; (4) if all applicable permits for construction in state or federal waters are
obtained from the appropriate state and federal agencies; (5) approval must be received
from the city manager, or designee, prior to construction and (6) routine inspections and any
maintenance required are to be performed on such facilities by the owner to assure that they
continue to function as designed and such evidence of inspections and any maintenance is
provided to the city manager, or designee, as set forth in sections 37.1-38 and 37.1-39 of
this chapter. It is not the intent of this subsection to allow a best management practice that
collects and treats runoff from only an individual lot or some portion of the lot to be located
within a resource protection area.
(2) Resource protection area buffer requirements. Except as hereinafter set forth, the following
requirements shall apply within all resource protection areas. Development and redevelopment
within industrial waterfront IDAs is exempt from these requirements.
To minimize the adverse effects of human activities on the other components of resource
protection areas, state waters, and aquatic life, it is recognized that a one hundred-foot vegetative
buffer area is effective in retarding runoff, preventing erosion, and filtering nonpoint source
pollution from runoff. A vegetated buffer area not less than one hundred (100) feet in width shall
be established where it does not exist and retained where already present.
The buffer area shall be located adjacent to and landward of all RPA components and along both
sides of any water body with perennial flow. The full buffer area shall be designated as the
landward component of the RPA, in accordance with sections 37.1-49, areas of applicability and
37.1-52, plan of development.
The one hundred (100) foot buffer area shall be deemed to achieve a seventy-five (75) percent
reduction of sediments and a forty (40) percent reduction of nutrients. The buffer area shall be
maintained to meet the following additional performance standards:
a.
b.
In order to maintain the functional value of the buffer area, indigenous vegetation may be
removed subject to approval by the city manager, or designee, only to provide for reasonable
sight lines, access paths, general woodlot management and best management practices, as
follows:
1.
Trees may be pruned or removed as necessary to provide for reasonable sight lines
and vistas, provided that where they are removed, they shall be replaced with other
vegetation that is equally effective in retarding runoff, preventing erosion, and filtering
nonpoint source pollution from runoff.
2.
Any path shall be constructed and surfaced so as to effectively control erosion.
3.
Dead, diseased, or dying trees or shrubbery and noxious weeds may be removed, and
thinning of trees allowed pursuant to sound horticultural standard, subject to approval
of the city manager, or designee.
4.
For shoreline erosion control projects, trees and woody vegetation may be removed,
necessary control techniques employed, and appropriate vegetation established to
protect or stabilize the shoreline in accordance with the best available technical advice
and applicable permit conditions or requirements.
When the application of the buffer areas would result in the loss of a buildable area on a lot
or parcel recorded prior to October 1, 1989 the city manager, or designee, may allow
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encroachment into the buffer area in accordance with section 37.1-52, plan of development
and the following criteria:
c.
1.
Encroachments into the buffer area shall be the minimum necessary to achieve a
reasonable buildable area for a principal structure and necessary utilities.
2.
Where practicable, a vegetated area that will maximize water quality protection, mitigate
the effect of buffer encroachment, and is, equal to the area of encroachment into the
buffer area shall be established elsewhere on the lot or parcel.
3.
The encroachment may not extend into the seaward fifty (50) feet of the buffer area.
When the application of the buffer area would result in the loss of a buildable area on a lot
or parcel recorded between October 1, 1989 and July 1, 2004, encroachments into the buffer
area may be allowed through an administrative process in accordance with the following
criteria:
1.
The lot or parcel was created as a result of a legal process conducted in conformity with
the city's subdivision regulations;
2.
Conditions or mitigation measures imposed through previously approved exceptions
shall be met;
3.
If the use of a best management practice (BMP) was previously required, the BMP shall
be evaluated to determine if it continues to function effectively and, if necessary, the
BMP shall be re-established or repaired and maintained as required; and
4.
The criteria in subsection (2)b. of this section shall be met.
(3) Industrial waterfront intensely developed areas. For the purpose of this article, industrial
waterfront IDAs shall serve as redevelopment areas in which development is concentrated. For
the purposes of this subsection, development and redevelopment are subject to the same
requirements and are collectively referred to as "development". Any development within industrial
waterfront IDAs shall require a water quality impact assessment pursuant to subsection 37.152(f). Development within industrial waterfront IDAs shall be subject only to the requirements set
forth below.
a.
For development of land where all stormwater runoff is governed by a site specific Virginia
Pollution Discharge Elimination System (VPDES) permit, compliance with the permit shall
satisfy the performance standards of this subsection, provided that the city manager, or
designee, specifically determines that the permit requires measures that collectively achieve
water quality protection equivalent to that provided by this section; provided, further, that all
land disturbing activities exceeding two thousand five hundred (2,500) square feet shall
comply with the requirements of article VII of this chapter and the owner obtains a state
construction general permit, as required. A copy of such permit shall be submitted to the city
manager, or designee.
b.
For development of land where all stormwater runoff is not governed by a VPDES permit the
following performance standards shall apply:
1.
All development exceeding two thousand five hundred (2,500) square feet of land
disturbance shall be subject to a plan of development process in accordance with the
provisions of the site plan ordinance.
2.
All land disturbing activities exceeding two thousand five hundred (2,500) square feet
shall comply with the requirements of article VII of this chapter.
3.
Where best management practices utilized require regular or periodic maintenance in
order to continue their functions, such maintenance shall be ensured by a maintenance
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agreement between the owner or developer and the city or some other effective
mechanism that achieves an equivalent objective as determined by the city manager,
or designee, as set forth in section 37.1-39 of this chapter.
4.
For any development, stormwater runoff shall be controlled to satisfy performance
standards contained in section 37.1-35 of this ordinance.
5.
Prior to initiating grading or other land disturbing activities exceeding two thousand five
hundred (2,500) square feet, all wetlands permits required by federal, state, and local
laws and regulations shall be obtained and evidence of such submitted to the city
manager, or designee. In lieu of the aforesaid permits, the applicant may present a letter
from a licensed engineer certifying that in his opinion no such permits are required. A
copy of said letter shall be submitted to the city manager, or designee.
6.
Prior to initiating grading or other land disturbing activities exceeding two thousand five
hundred (2,500) square feet, the owner obtains coverage under and complies with the
requirements of a state construction general permit, as applicable. A copy of such
permit shall be submitted to the city manager, or designee.
(Ord. No. 7017-13, § 1)
Sec. 37.1-52. Plan of development.
(a) Required information. In addition to the requirements of chapter 33.02, Site Plan Ordinance, or the
requirements of appendix B, Subdivision Ordinance, of the City Code, all development in the
Chesapeake Bay Preservation Areas shall follow the plan of development process consisting of the
additional plans and studies identified below. These required plans and studies may be coordinated
or combined, as deemed appropriate by the city manager, or designee. The city manager, or designee,
may determine that some of the following information is unnecessary due to the scope and nature of
the proposed development.
The following plans or studies shall be submitted to the city manager, or designee, unless otherwise
noted in each subsection:
(1) An environmental site assessment;
(2) A landscaping/tree preservation plan;
(3) A stormwater management plan in accordance with section 37.1-36
(4) An erosion and sediment control plan in accordance with the Virginia Erosion and Sediment
Control Handbook, as adopted by article VII of this chapter; and
(5) A water quality impact assessment as necessary under the requirements of subsection (f).
(b) Environmental site assessment. An environmental site assessment shall be prepared, based upon
reliable on site investigation, and shall be submitted for any development or redevelopment.
(1) The environmental site assessment shall be drawn to scale and clearly delineate the following
environmental features:
a.
Tidal wetlands;
b.
Tidal shores;
c.
Nontidal wetlands connected by surface flow and contiguous to tidal wetlands or water
bodies with perennial flow; and
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d.
A buffer area not less than one hundred (100) feet in width located adjacent to and landward
of the components listed in subsection (a) through (c) above, and along both sides of any
water body with perennial flow.
(2) Wetlands delineations shall be performed consistent with the procedures specified in the Federal
Manual for Identifying and Delineating Jurisdictional Wetlands.
(3) The environmental site assessment shall delineate the site-specific geographic extent of the
resource protection area.
(4) The environmental site assessment shall be drawn at the same scale as the preliminary site plan
or subdivision plat, and shall be certified as complete and accurate by a professional engineer or
a certified land surveyor.
(c) Landscaping and tree preservation plan. A landscaping/tree preservation plan shall be submitted in
conjunction with site plan approval or as part of subdivision plat approval. No clearing or grading of
any lot or parcel shall be permitted without an approved landscaping/tree preservation plan. No
landscaping/tree preservation plan shall be required in connection with development in industrial
waterfront IDAs.
Landscaping/tree preservation plans shall be prepared and certified by design professionals practicing
within their areas of competence as prescribed by the Code of Virginia.
(1) Contents of the plan.
a.
The landscaping plan shall be drawn to scale and clearly delineate the location, size and
description of existing and proposed plant material. All existing trees on the site five (5)
inches or greater DBH shall be shown on the landscaping plan. Where there are groups of
five (5) or more trees, stands may be outlined instead. The specific number of trees be
preserved outside of the limits of clearing shall be indicated on the plan. Dead, diseased and
dying trees to be removed shall be clearly delineated on the landscaping plan. The plan shall
be consistent with chapter 33.02 of the City Code, Site Plan Ordinance.
b.
Any required buffer area shall be clearly delineated and any plant material to be added to
establish or supplement the buffer area, as required by this article, shall be shown on the
landscaping plan.
c.
Within the buffer area, trees to be removed for sight lines, vistas, vehicular access, paths,
and shoreline erosion control, as provided for in this article shall be shown on the plan.
Vegetation required to replace any existing trees within the buffer area shall be also shown
on the landscaping plan.
d.
Trees to be removed for shoreline stabilization projects and any replacement vegetation
required shall be shown on the landscaping plan.
e.
The plan shall depict grade changes or other work adjacent to trees which would affect them
adversely. Specifications shall be provided as to how grade, drainage, and aeration would
be maintained around trees to be preserved.
f.
The landscaping plan will include specifications for the protection of existing trees during
clearing, grading, and all phases of construction, consistent with such measures as
described in article IV of chapter 37.1 and chapter 33.02, Site Plan Ordinance of the City
Code.
(2) Plant specifications.
a.
All plant materials necessary to supplement the buffer area or vegetated areas outside the
disturbed land area shall be installed in accordance with the specifications referred to in
chapter 33.02, Site Plan Ordinance of the City Code.
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b.
All supplementary or replacement plant materials shall be living and in a healthy condition.
Plant materials shall conform to the standards of the most recent edition of the American
Standard for Nursery Stock, published by the American Association of Nurserymen.
c.
When existing trees and other vegetation to be preserved, as designated on an approved
landscaping plan, are encroached upon, they shall be replaced. Replacement trees shall be
planted at a ratio of three (3) to one (1), at the time of planting.
(d) Stormwater management plan. A stormwater management plan shall be submitted as part of the plan
of development process required by this article and in conjunction with site plan or subdivision plan
approval; provided; however, a stormwater management plan shall not be required if discharge of
stormwater from an applicant's land is governed by a VPDES Individual Industrial Stormwater permit
or MS4 permit provided such permits are determined by the Virginia Department of Environmental
Quality to be protective of water quality and in compliance with the assumptions contained in approved
TMDLs, if any, for the waters into which they discharge.. In such cases, a copy of the permit shall be
submitted to the city manager, or designee, in lieu of the stormwater management plan.
(1) Contents of the plan. The stormwater management plan shall contain maps, charts, graphs,
tables, photographs, narrative descriptions, explanation, and citations to supporting references
as appropriate to communicate the information required by this article. At a minimum, the
stormwater management plan must be prepared in conformance with section 37.1-36 of this
chapter.
(e) Erosion and sediment control plan. An erosion and sediment control plan shall be submitted to the city
manager, or designee, that satisfies the requirements of, and in accordance with, article VII of this
chapter, in conjunction with site plan or subdivision plan approval.
(f)
Resource protection area and resource management area water quality impact assessment.
(1) Purpose and intent. The purpose of the water quality impact assessment is to:
a.
Identify the impacts of proposed development or redevelopment on water quality and lands
within the resource protection areas and the resource management areas as deemed
necessary by the city manager, or designee, due to the unique characteristics of the site or
based upon the intensity of development;
b.
Ensure that, where development does take place within these areas, it will be the least
disruptive;
c.
Provide for administrative relief from the terms of this article when warranted and in
accordance with the requirements contained herein; and
d.
Specify mitigation which will address water quality protection.
(2) Water quality impact assessment required. A water quality impact assessment is required for any
proposed land disturbances within the resource protection area, including any buffer area
encroachment as provided for in section 37.1-51(b)(2), resource protection area buffer
requirements. There shall be two (2) levels of water quality impact assessments: a minor
assessment and a major assessment.
(3) Minor water quality impact assessment. A minor water quality impact assessment pertains only
to land disturbance, development or redevelopment within the resource protection area which
causes no more than ten thousand (10,000) square feet of land disturbance and requires any
modification or reduction of the landward fifty (50) feet of the one hundred-foot buffer area.
Submission of a plan of development that demonstrates through the use of calculations provided
for by section 37.1-52(d)(1)c., that the remaining buffer area and necessary best management
practices will result in removal of no less than seventy-five (75) percent of sediments and forty
(40) percent of nutrients from post-development stormwater runoff shall be deemed to have
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satisfied the requirement for a minor water quality impact assessment. Best management
practices should retard runoff, prevent erosion and filter nonpoint source pollution the equivalent
of the full undisturbed one hundred-foot buffer area.
(4) Major water quality impact assessment. A major water quality impact assessment shall be
required for any land disturbance, development or redevelopment which: (i) exceeds ten thousand
(10,000) square feet of land disturbance within a resource protection area or (ii) disturbs any other
component of the RPA seaward of the landward fifty (50) feet of the one hundred-foot buffer area.
The information required in this section shall be considered a minimum, unless the city manager,
or designee, determines that some of the elements are unnecessary due to the scope and nature
of the proposed use and development of land.
a.
b.
c.
A hydrogeological element that:
1.
Describes the existing topography, soils, hydrology and geology of the site and adjacent
lands.
2.
Describes the impacts of the proposed development on topography, soils, hydrology
and geology on the site.
3.
Describes the proposed mitigation measures for the potential hydrogeological impacts
which may include:
i.
Proposed erosion and sediment controls; including minimizing the extent of the
cleared area, and cut and fill, perimeter controls, reduction of runoff velocities,
measures to stabilize disturbed areas, schedule and personnel for site inspection;
ii.
Proposed stormwater management system;
iii.
Creation of wetlands to replace those lost; and
iv.
Minimizing cut and fill.
A landscape element that describes the potential measures for mitigation of the water quality
and land impacts including:
1.
Replanting schedule for trees and other significant vegetation removed for construction;
2.
Demonstrating that the design of the plan will provide effective erosion control and
overland flow benefits from such vegetation; and
3.
Demonstrating the use of indigenous plants to the greatest extent possible.
As part of any major water quality impact assessment submittal, the city manager, upon his
own review or the recommendation of the designee, may require a review by the Department
of Environmental Quality (DEQ). Upon receipt of a major water quality impact assessment,
the city manager, upon his own review or the the recommendation of the designee, will
determine if such review is warranted and may request DEQ to review the assessment and
respond with written comments. Any comments by DEQ may be incorporated into the final
review by the city manager, or designee, provided that such comments are provided by DEQ
within ninety (90) days of the request.
(5) Evaluation procedure.
a.
Upon the completed review of a minor water quality impact assessment, the city manager,
or designee, will determine if any proposed modification or reduction to the buffer area is
consistent with the provisions of this article and that the following criteria have been satisfied:
1.
The proposed encroachment is necessary due to the inability to place improvements
elsewhere to provide a reasonable and appropriate buildable area on the site;
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b.
2.
Impervious surface is minimized;
3.
Proposed best management practices, where required, achieve the requisite reductions
in pollutant loadings; and
4.
The development, as proposed, meets the purpose and intent of this article.
Upon completed review of a major water quality impact assessment, the city manager, or
designee, will determine if the proposed development satisfies the following criteria:
1.
Within any RPA, the proposed development is water-dependent;
2.
Proposed erosion and sediment control concepts are adequate to achieve the
reductions in runoff and prevent off-site sedimentation;
3.
Proposed stormwater management concepts are adequate to control the stormwater
runoff to achieve the required performance standard for pollutant control;
4.
Proposed re-vegetation of disturbed areas will provide effective erosion and sediment
control benefits; and
5.
The cumulative impact of the proposed development, when considered in relation to
other development in the vicinity, will not result in a significant degradation of water
quality.
(g) Final plan.
(1) Final plans for all lands in connection with all development within a resource protection area shall
include the following additional information.
a.
The delineation of the resource protection area boundary;
b.
The delineation of required buffer areas;
c.
Evidence of all wetlands permits required by law or a letter from a licensed engineer certifying
that in his opinion no such permits are required. A copy of said letter shall be submitted to
the city manager, or designee; and
d.
A maintenance agreement as deemed necessary and appropriate by the city manager, or
designee, to ensure proper maintenance of best management practices in order to continue
their functions shall be submitted to the city manager, or designee, for review and approval.
(2) Installation and surety requirements.
a.
When the occupancy of a structure is desired prior to the completion of the required
landscaping, stormwater management facilities, or other specification of an approved plan,
a certificate of occupancy may be issued only if the applicant provides to the city manager,
or designee, a form of surety satisfactory to the city attorney in an amount equal to the
remaining plant materials, related materials, and installation costs of the required
landscaping or other specifications or maintenance costs for any required stormwater
management facilities.
b.
All required landscaping shall be installed and approved by the first planting season following
issuance of a certificate of occupancy or the surety may be forfeited to the City of Newport
News.
c.
All required stormwater management facilities or other specifications shall be installed and
approved within eighteen (18) months of project commencement. Should the applicant fail,
after proper notice, to initiate, complete or maintain appropriate actions required by the
approved plan, the surety may be forfeited to City of Newport News. The City of Newport
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News may collect from the applicant the amount by which the reasonable cost of required
actions exceeds the amount of the surety held.
d.
After all required actions of the approved plan have been completed, the applicant must
submit a written request for a final inspection. If the requirements of the approved plan have
been completed to the satisfaction of the city manager, or designee, such unexpended or
unobligated portion of the surety held shall be refunded to the applicant or terminated within
sixty (60) days following the receipt of the applicant's request for final inspection. The city
manager, or designee, may require a certificate of substantial completion from a professional
engineer or class III B Surveyor before making a final inspection.
(h) Administrative responsibility. Administration of the plan of development process shall be in accordance
with chapter 33.02, Site Plan Ordinance of the City Code.
(i)
Denial of plan, appeal of conditions or modifications.
(1) In the event the final plan or any component of the plan of development process is disapproved
and recommended conditions or modifications are unacceptable to the applicant, the applicant
may appeal such administrative decision to the city manager, or designee. Such appeals must
be in writing and be filed within ten (10) working days of the decision from which appeal is sought.
Prior to granting relief to an application, the city manager must find that the plan is in accordance
with all applicable ordinances and includes all necessary elements to mitigate any detrimental
impact on water quality. If the city manager finds that the applicant's plan does not meet the above
stated criteria, he shall deny the relief sought.
(2) If the city manager denies the relief sought as provided herein and the applicant contends such
denial was not proper, he may appeal in writing to the circuit court of Newport News, provided
that such appeal is filed with the circuit court within sixty (60) days following the date of denial.
Such appeal shall be heard by the court, which shall uphold the decision of the city manager
unless it finds that appellant has proved by clear and convincing evidence that there exists no
rational basis to support the denial.
(Ord. No. 7017-13, § 1)
Sec. 37.1-53. Nonconforming uses and noncomplying structures.
(a) The lawful use of buildings or structures and land in conjunction with improvements which existed on
July 1, 1991 and which is not in conformity with these provisions may be continued.
(b) No expansion of existing structures shall be allowed with the exception that:
(1) The city manager, or designee, may grant a development waiver for the expansion of existing
legal nonconforming principal structures provided it has been certified that:
a.
There will be no net increase in nonpoint source pollution load;
b.
Any development or land disturbance exceeding an area of two thousand five hundred
(2,500) square feet complies with all erosion and sediment control requirements and any
land disturbance exceeding one (1) acre applies for and receives coverage under and
complies with the requirements of the state stormwater construction general permit, as
applicable and provides proof of coverage to the city manager, or designee;
c.
The requested waiver from the criteria is the minimum necessary to afford relief;
d.
Granting the exception will not confer upon the applicant any special privileges that are
denied by chapter 37.1 of the City Code to other property owners who are subject to its
provisions and who are similarly situated;
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e.
The waiver is in harmony with the purpose and intent of this part and is not of substantial
detriment to water quality;
f.
The exception request is not based upon conditions or circumstances that are self-created
or self-imposed;
g.
Reasonable and appropriate conditions are imposed, as warranted, that will prevent the
allowed activity from causing a degradation of water quality;
h.
Other findings, if appropriate and required by the local government, are met.
(2) Structures existing within the Chesapeake Bay Preservation Areas as of the adoption date of this
article which are destroyed by casualty or act of God may be reconstructed as a matter of right,
provided that reconstruction begins within two (2) years of the casualty, reconstruction is,
thereafter, diligently pursued, and the new structure is constructed entirely on or within the
boundary (footprint) of the original structure.
(3) No development waiver shall be required to perform normal maintenance on any structure within
a Chesapeake Bay Preservation Area.
(4) No development waiver shall be processed unless the applicant provides satisfactory evidence
that any delinquent real estate taxes owed to the city which have been properly assessed against
the subject property have been paid.
(Ord. No. 7017-13, § 1)
Sec. 37.1-54. Exemptions for utilities, railroads, public roads and facilities.
(a) Construction, installation, operation, and maintenance of electric, steam, natural gas, CATV, fiber optic
and telephone and data transmission lines, wireless transmission infrastructure, railroads, and public
roads and their appurtenant structures in accordance with regulations promulgated pursuant to: (i) the
Erosion and Sediment Control Law (Sections 62.1-44.15:51-66 of the Code of Virginia, as amended)
and (ii) the Stormwater Management Act (Sections 62.1-44.15:24-50 of the Code of Virginia, as
amended), or an erosion and sediment control plan and a stormwater management plan approved by
the Virginia Department of Conservation and Recreation, will be deemed to constitute compliance with
this article. The exemption of public roads is further conditioned on:
(1) Optimization of the road alignment and design, consistent with other applicable requirements, to
prevent or otherwise minimize (i) encroachment in the resource protection area and (ii) adverse
effects on water quality; and
(2) The exemption for public roads shall apply to all public roads as defined in section 37.1-48
(b) Construction, installation, and maintenance of water, sewer, steam, natural gas and underground
telecommunications and cable television lines owned, permitted, or both, by a local government or
regional service authority shall be exempt from the criteria in this article provided that:
(1) To the degree possible, the location of such utilities and facilities should be outside resource
protection areas;
(2) No more land shall be disturbed than is necessary to provide for the proposed utility installation.
(3) All such construction, installation, and maintenance of such utilities and facilities shall be in
compliance with all applicable federal, state and local permits and designed and conducted in a
manner that protects water quality.
(4) Any land disturbance exceeding an area of two thousand five hundred (2,500) square feet
complies with all erosion and sediment control requirements of this article.
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(5) Any land disturbance exceeding an area of one (1) acre obtains coverage under and complies
with the requirements of the state stormwater construction general permit.
(c) Exemption for silvicultural activities, including harvesting timber, are exempt from the requirements of
this article provided such operations adhere to water quality protection procedures prescribed by the
department of forestry in its "Virginia's Forestry Best Management Practices for Water Quality"
technical guide.
(d) Exemptions in resource protection areas. The following land disturbances are exempt in the resource
protection areas from this article of chapter 37.1, provided, however that land disturbances exceeding
two thousand five hundred (2,500) square feet shall be subject to the provisions of article IV and article
VII of chapter 37.1 of the Code:
(1) Water wells;
(2) Passive recreation facilities such as boardwalks, trails, and pathways; and
(3) Historic preservation and archeological activities;
(4) Provided that for (1), (2) or (3) above it is demonstrated to the satisfaction of the city manager, or
designee, that:
a.
Any required permits, except those to which this exemption specifically applies, shall have
been issued;
b.
Any land disturbance exceeding one (1) acre applies for and receives coverage under and
complies with the requirements of the state stormwater construction general permit, as
applicable, and provides proof of coverage to the city manager, or designee.
(Ord. No. 7017-13, § 1)
Sec. 37.1-55. Exceptions.
(a) A property owner may apply to the board of zoning appeals for an exception to the requirements of
this article.
(b) No exception shall be authorized except after notice and hearing, as required by Section 15.2-2204 of
the Code of Virginia, except that only one (1) hearing shall be required before the board. However,
when giving any required notice to the owners, their agents or the occupants of abutting property and
property immediately across the street or road from the property affected, the notice may be given by
first class mail rather than by registered or certified mail.
(c) The board may grant exceptions to the provisions of sections 37.1-51(b)(1)b., 37.1-51(b)(1)c., 37.151(b)(1)d., 37.1-51(b)(1)m. and 37.1-51(b)(2) upon its making the following findings:
(1) The requested exception to the criteria is the minimum necessary to afford relief;
(2) Granting the exception will not confer upon the applicant any special privileges that are denied
by this chapter to other property owners who are subject to its provisions and who are similarly
situated;
(3) The exception is in harmony with the purpose and intent of this chapter and is not of substantial
detriment to water quality;
(4) The exception request is not based upon conditions or circumstances that are self-created or selfimposed;
(5) Reasonable and appropriate conditions are imposed as warranted that will prevent the allowed
activity from causing a degradation of water quality; and
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(6) Other conditions required by the board are met.
(d) Exceptions to other provisions of this article may be granted administratively by the city manager, or
designee, subject to the findings required by subsection (c) herein, provided that (1) exceptions to the
criteria shall be the minimum necessary to afford relief; and (2) reasonable and appropriate conditions
upon any exception granted shall be imposed, as necessary so that the purpose and intent of this
article is preserved.
(e) Notwithstanding the provisions of subsections (a) and (b), additions and modifications to existing legal
nonconforming principal structures may be processed through the provisions of section 37.1-53, but
without a requirement for a public hearing. This subsection shall not apply to accessory structures.
(f)
No exception shall be processed unless the applicant provides satisfactory evidence that any
delinquent real estate taxes owed to the city which have been properly assessed against the subject
property have been paid.
(Ord. No. 7017-13, § 1)
Sec. 37.1-55.1. Appeals, limitations.
An aggrieved party must file any appeal in the circuit court of the city of any decision of the board of
zoning appeals regarding ordinances pursuant to this article within thirty (30) days of the date of the decision
of the board.
(Ord. No. 7017-13, § 1)
Sec. 37.1-56. Conflict with other regulations.
In any case where the requirements of this article conflict with any other provision of the Code of the
City of Newport News or existing state or federal regulations, whichever imposes the more stringent
restrictions shall apply.
(Ord. No. 7017-13, § 1)
Sec. 37.1-57. Enforcement.
(a) Any person who violates any of the provisions of this article shall be guilty of a misdemeanor,
punishable by a fine of not more than one thousand dollars ($1,000.00). Each day's continuance of
such violation shall constitute a separate offense.
(b) Any person who: (i) violates any provision of this article or (ii) violates or fails, neglects, or refuses to
obey any final notice, order, rule, regulation or variance or permit condition authorized under such
chapter shall, upon such finding by an appropriate circuit court, be assessed a civil penalty not to
exceed five thousand dollars ($5,000.00) for each day of violation. Such civil penalties may, at the
discretion of the court assessing them, be directed to be paid into the treasury of the city for the
purpose of abating environmental damage to or restoring Chesapeake Bay Preservation Areas therein,
in such a manner as the court may direct by order.
(c) With the consent of any person who: (i) violates any provision of this article related to the protection of
water quality in Chesapeake Bay Preservation Areas or (ii) violates or fails, neglects, or refuses to
obey any notice, order, rule, regulation, or variance or permit condition authorized under such chapter,
the city may provide for the issuance of an order against such person for the one-time payment of civil
charges for each violation in specific sums, not to exceed ten thousand dollars ($10,000.00) for each
violation. Such civil charges shall be paid into the treasury of the city for the purpose of abating
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environmental damage to or restoring Chesapeake Bay Preservation Areas therein. Civil charges shall
be in lieu of any appropriate civil penalty that could be imposed under subsection (b) of this section.
Civil charges may be in addition to the cost of any restoration required or ordered by the city.
(Ord. No. 7017-13, § 1)
FOOTNOTE(S):
--- (4) --Editor's note— Ord. No. 7017-13, § 1, adopted November 26, 2013, effective on and after July 1, 2014,
repealed the former art. V, §§ 37.1-46—37.1-57, and enacted a new art. V as set out herein. The former
art. III pertained to similar subject matter and derived from Ord. No. 5991-03, § 1; Ord. No. 6097-05; Ord.
No. 6517-08, § 1. (Back)
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ARTICLE VI. FERTILIZER REGULATIONS
ARTICLE VI. FERTILIZER REGULATIONS [5]
Sec. 37.1-58. Definitions.
Sec. 37.1-59. Regulation of fertilizer; authority.
Sec. 37.1-60. Regulation of sale and distribution of fertilizer; exemptions.
Sec. 37.1-61. Exception for contractor-applicators, licensees regulated by the state, and golf courses.
Sec. 37.1-62. Sale of deicing agents.
Sec. 37.1-63. Labeling.
Sec. 37.1-58. Definitions.
As used in this chapter, unless the context requires a different meaning:
Brand means a term, design, trademark or product name under which a regulated product is
distributed.
Bulk means in nonpackaged form.
Bulk fertilizer means a fertilizer distributed in a nonpackaged form.
Commercial fertilizer means a fertilizer distributed for farm use, or for any other use, other than any
specialty fertilizer use.
Compost means a biologically stable material derived from the composting process.
Composting means the biological decomposition of organic matter. It may be accomplished by mixing
and piling so as to promote aerobic decay, anaerobic decay, or both aerobic and anaerobic decay.
Contractor-applicator means any person required to hold a permit to distribute or apply any regulated
product pursuant to Virginia Code § 3.2-3608.
Custom medium means a horticultural growing medium that is prepared to the exact specifications of
the person who will be planting in the medium and delivered to that person without intermediate or further
distribution.
Deficiency means the amount of nutrient found by analysis to be less than that guaranteed, which may
result from a lack of nutrient ingredients, or from lack of uniformity.
Distribute means to import, consign, manufacture, produce, compound, mix, blend, or in any way alter,
the chemical or physical characteristics of a regulated product, or to offer for sale, sell, barter, warehouse
or otherwise supply regulated product in the Commonwealth.
Distributor means any person who distributes.
Fertilizer means any substance containing one (1) or more recognized plant nutrients, which is used
for its plant nutrient content, and which is designed for use, or claimed to have value, in promoting plant
growth. Fertilizer does not include unmanipulated animal and vegetable manures, marl, lime, limestone,
and other products exempted by regulation.
Fertilizer material means a fertilizer that: (i) contains important quantities of no more than one (1) of
the primary plant nutrients: Nitrogen (N), phosphate (P205) and potash (K20); (ii) has eighty-five (85)
percent or more of its plant nutrient content present in the form of a single chemical compound; or (iii) is
derived from a plant or animal residue, a by-product, or a natural material deposit that has been processed
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or conditioned in such a way that its content of plant nutrients has not been materially changed, except by
purification and concentration.
Grade means the percentage of total nitrogen (N), available phosphate (P205) and soluble potash
(K20), stated in whole numbers in the same terms, order, and percentages as in the guaranteed analysis,
except that fertilizer materials, specialty fertilizers, bone meal, manures and similar raw materials may be
guaranteed in fractional units.
Guaranteed analysis means that information required by this chapter to be displayed on the label of a
regulated product.
Guarantor means the person whose name appears on the label of a regulated product.
Horticultural growing medium means any substance or mixture of substances that is promoted as or
is intended to function as an artificial soil for the managed growth of horticultural crops.
Industrial co-product means a product derived from an industrial process that meets the definition of
fertilizer, soil amendment, soil conditioner or horticultural growing medium.
Investigational allowance means an allowance for variations, inherent in the taking, preparation, and
analysis of an official sample.
Label means the display of all written, printed, or graphic matter, upon the immediate container, or a
statement accompanying a regulated product, including an invoice.
Labeling means all written, printed, or graphic matter, upon or accompanying any regulated product,
including invoices, advertisements, brochures, posters, and television and radio announcements, used in
promoting the sale of the regulated product.
Lawn fertilizer means any fertilizer intended for nonagricultural use on newly established turf areas
from sod or seed during the first growing season, turf areas being repaired or renovated, and turf areas
where soil tests performed within the past three (3) years indicate a nutrient deficiency.
Lawn maintenance fertilizer means any fertilizer intended for the nonagricultural routine maintenance
of turf.
Licensee means the person who receives a license to distribute any regulated product under the
provisions of this chapter.
Manipulated manure means animal or vegetable manure that is ground, pelletized, mechanically dried,
packaged, supplemented with plant nutrients or other substances other than phosphorus, or otherwise
treated in a manner to assist with the sale or distribution of the manure as a fertilizer or soil or plant additive.
Manufacturer means any person who manufactures, produces, compounds, mixes, blends, or in any
way alters the chemical or physical characteristics of any regulated product.
Mixed fertilizer means a fertilizer containing any combination or mixture of fertilizer materials.
Official analysis means the analysis of an official sample, made by the commissioner.
Official sample means the sample of regulated product taken by the commissioner, and designated as
"official" by the board.
Percent or percentage means the percentage by weight.
Primary nutrient includes total nitrogen (N), available phosphate (P205), and soluble potash (K20).
Quantity statement means the net weight (mass), net volume (liquid or dry), count or other form of
measurement of a commodity.
Registrant means the person who registers regulated products, under the provisions of this chapter.
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Regulated product means any product governed by this chapter, including any fertilizer, specialty
fertilizer, soil amendment, soil conditioner, and horticultural growing medium.
Soil amendment means any substance or mixture of substances, imported, manufactured, prepared
or sold for manurial, soil enriching, or soil corrective purposes, or intended to be used for promoting or
stimulating the growth of plants, increasing the productivity of plants, improving the quality of crops, or
producing any chemical or physical change in the soil. The following are exempt from the definition of "soil
amendment": fertilizer, unmanipulated or composted animal and vegetable manures, soil conditioners,
horticultural growing media, agricultural liming materials, unmixed mulch and unmixed peat.
Soil conditioner means any substance or mixture of substances imported, manufactured, prepared or
sold for soil corrective purposes including polyelectrolytes such as complex vinyl and acrylic compounds
and certain cellulose and lignin derivatives.
Specialty fertilizer means a fertilizer distributed for nonfarm use, including use on home gardens,
lawns, shrubbery, flowers, golf courses, municipal parks, cemeteries, greenhouses and nurseries.
Stop sale, use, removal, or seizure order means an order that prohibits the distributor from selling,
relocating, using, or disposing of a lot of regulated product, or portion thereof, in any manner, until the
commissioner or the court gives written permission to sell, relocate, use or dispose of the lot of regulated
product or portion thereof.
Ton means a unit of two thousand (2,000) pounds avoirdupois weight.
Turf means nonagricultural land that is planted as closely mowed, managed grass and includes golf
courses, parks, cemeteries, publicly owned lands, and residential, commercial, or industrial property.
Unmanipulated manure means substances composed of the excreta of domestic animals, or domestic
fowls, that has not been processed or conditioned in any manner including processing or conditioning by
drying, grinding, pelleting, shredding, addition of plant food, mixing artificially with any material or materials
(other than those that have been used for bedding, sanitary or feeding purposes for such animals or fowls),
or by any other means.
(Ord. No. 6807-11, § 1)
Sec. 37.1-59. Regulation of fertilizer; authority.
The city imposes the following prohibition of fertilizer in conjunction with requirements of the
Chesapeake Bay Preservation Act (Virginia Code § 10.1-2100 et seq. and Chapter 37.1, Article V of the
Code of the City of Newport News), the Erosion and Sediment Control Law (Virginia Code § 10.1-560 et
seq. and Chapter 35 of the Code of the City of Newport News), the Stormwater Management Act (Virginia
Code § 10.1-603.1 et seq. and Chapter 37.1, Article III of the Code of the City of Newport News), or other
nonpoint source regulations adopted by the department of conservation and recreation or the soil and water
conservation board. The provisions of this section shall not preempt the adoption, amendment, or
enforcement of the Statewide Fire Prevention Code pursuant to Virginia Code § 27-97 and Title 16 of the
Code of the City of Newport News and the Uniform Statewide Building Code pursuant to Virginia Code §
36-98 et seq. and Chapter 13 of the Code of the City of Newport News.
(Ord. No. 6807-11, § 1)
Sec. 37.1-60. Regulation of sale and distribution of fertilizer; exemptions.
(a) Any person whose name is on the label of and who distributes in the City of Newport News any
specialty fertilizer packaged in containers of fifty (50) pounds or less dry net weight, or five (5) gallons
or less liquid net volume, shall provide evidence that the person has: (i) applied for registration for such
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ARTICLE VI. FERTILIZER REGULATIONS
specialty fertilizer with the commissioner of the department of agriculture and consumer services
("commissioner") on forms furnished or approved by the commissioner; (ii) paid to the commissioner
by July 1 of each registration year a registration fee of fifty dollars ($50.00) for each grade under a
given brand prior to distributing the fertilizer in the Commonwealth; and (iii) provided labels for each
grade under a given brand with the application.
(b) Any person who distributes in the City of Newport News a soil amendment, soil conditioner, or
horticultural growing medium shall provide evidence that he has: (i) applied for registration for such
soil amendment, soil conditioner, or horticultural growing medium with the commissioner on forms
furnished or approved by the commissioner; (ii) paid to the commissioner by July 1 of each registration
year a registration fee of one hundred dollars ($100.00) for each product name or brand of soil
amendment, soil conditioner or horticultural growing medium prior to distributing the product in the
Commonwealth; and (iii) provided labels for each product name or brand with the application.
(c) Any such person who distributes any product mentioned in subsections (a) or (b) above must obtain
and display upon request a copy of the registration provided by the commissioner to the applicant after
approval of the registration.
(d) Verification of any labeling claims for any regulated product may be required.
(e) Custom-media and horticultural growing media planted with live plant material are exempt from
labeling and registration requirements and inspection fees.
(f)
Beginning December 31, 2013, no lawn maintenance fertilizer containing more than zero percent
phosphorus or other compounds containing phosphorus, such as phosphate, shall be offered for sale,
distribution, or use in the City of Newport News. This prohibition does not include lawn fertilizer,
manipulated manure, yard waste compost, products derived from sewage sludge, soils containing
fertilizer, fertilizer products intended primarily for gardening, tree, shrub, and indoor plant application,
including nurseries, or reclaimed water. The provisions of this section shall not restrict the continued
sale by retailers of any prohibited fertilizer from any existing inventories in stock on December 31,
2013.
(Ord. No. 6807-11, § 1)
Sec. 37.1-61. Exception for contractor-applicators, licensees regulated by the state, and
golf courses.
Contractor-applicators and licensees in full compliance with state regulations shall not be subject to
local ordinances governing the use or application of lawn fertilizer and lawn maintenance fertilizer. Golf
courses in compliance with this Virginia Code § 10.1-104.5. shall not be subject to any part of these
ordinances governing the use or application of fertilizer.
(Ord. No. 6807-11, § 1)
Sec. 37.1-62. Sale of deicing agents.
Beginning December 31, 2013, it is unlawful for any person to offer for sale any deicing agent
containing urea or other forms of nitrogen or phosphorus intended for application to parking lots, roadways,
and sidewalks or other paved surfaces in the City of Newport News. The provisions of this section shall not
restrict the continued sale by retailers of any deicing agent from any existing inventories in stock on
December 31, 2013.
(Ord. No. 6807-11, § 1)
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ARTICLE VI. FERTILIZER REGULATIONS
Sec. 37.1-63. Labeling.
(a) The manufacturer or guarantor of any regulated product distributed in the City of Newport News shall
affix a label to the container or provide an invoice at the time of delivery for a bulk regulated product
that states in clear, legible and conspicuous form, in the English language, the following information:
(1) The quantity statement;
(2) The grade under a given brand. The grade shall not be required when no primary nutrients are
claimed;
(3) The guaranteed analysis, which shall:
a.
For fertilizers, conform to the following, with the percentage of each plant nutrient stated as
follows:
1.
Total Nitrogen (N) ..... ____________%
Available Phosphate (P205) ..... ____________%
Soluble Potash (K20) ..... ____________%
2.
For unacidulated mineral phosphate materials and basic slag, bone, tankage, and other
organic phosphate materials, the available phosphate (P205), or the degree of fineness,
or both, may also be guaranteed;
3.
Guarantees for plant nutrients other than nitrogen (N), phosphate (P205), and potash
(K20) shall be expressed in the form of the element. A statement of the sources of
nutrients including oxides, salt, and chelates, may be required on the application for
registration of specialty fertilizers, and may be included as a parenthetical statement on
the label. Degree of acidity or alkalinity (pH), beneficial substances, or compounds
determinable by laboratory methods also may be guaranteed by permission of the
commissioner and with the advice of the Director of the Virginia Experiment Station.
When any degree of acidity or alkalinity (pH), beneficial substances, or compounds are
guaranteed, they shall be subject to inspection and analysis in accord with the methods
and regulations prescribed by the board of agriculture and consumer services;
b.
For soil amendments, consist of a list of ingredients, and may include a statement of naturally
occurring nutrient levels;
c.
For soil conditioners, including polyelectrolytes, contain the following information in the
following form:
1.
Name of active ingredient ..... ____________%
(name and list all)
2.
Total other ingredients ..... ____________%
d.
For horticultural growing media, include a list of ingredients and other guarantees as required
by regulation;
e.
When compost derived from sewage sludge, hazardous materials, unrendered animals or
poultry or their parts, or other source material specified in regulations established by the
board of agriculture and consumer services is used as an ingredient, identify the source
material of the compost; and
f.
Include a list of such other ingredients as may be required by the board through regulation.
(4) The name and address of the registrant or licensee.
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ARTICLE VI. FERTILIZER REGULATIONS
(b) A commercial fertilizer that is formulated according to specifications provided by a consumer prior to
mixing, or any fertilizer formulated for a consumer, shall be labeled to show: (i) the quantity statement;
(ii) the guaranteed analysis; and (iii) the name and address of the distributor or the licensee.
(c) For horticultural growing media, a statement of added fertilizers, if any, shall be listed on the
registration document and customer sales invoice.
(d) Beginning December 31, 2013, lawn fertilizer and lawn maintenance fertilizer shall be labeled as
follows:
"DO NOT APPLY NEAR WATER, STORM DRAINS, OR DRAINAGE DITCHES. DO NOT APPLY IF
HEAVY RAIN IS EXPECTED. APPLY THIS PRODUCT ONLY TO YOUR LAWN/GARDEN, AND
SWEEP ANY PRODUCT THAT LANDS ON THE DRIVEWAY, SIDEWALK, OR STREET, BACK
ONTO YOUR LAWN/GARDEN."
(Ord. No. 6807-11, § 1)
FOOTNOTE(S):
--- (5) --Editor's note— Ord. No. 6807-11, § 1, which added Art. VI, §§ 37.1-58—37.1-63, as set out herein, shall
be in effect on and after July 1, 2011. (Back)
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ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES
ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES
[6]
Sec. 37.1-66. Definitions.
Sec. 37.1-67. Conflict with other regulations.
Sec. 37.1-68. Exemptions from article.
Sec. 37.1-69. Violations of article—Generally.
Sec. 37.1-70. Same—Notice.
Sec. 37.1-70.1. Same—Right of entry
Sec. 37.1-71. Same—Penalty; injunctive relief.
Sec. 37.1-72. Appeals from decisions under chapter.
Secs. 37.1-73—37.1-82. Reserved.
Sec. 37.1-83. Required.
Sec. 37.1-84. Responsibility of property owner when work to be done by contractor.
Sec. 37.1-85. Preparation of plan.
Sec. 37.1-86. Approval or disapproval of plan.
Sec. 37.1-87. Amendment of approved plan.
Sec. 37.1-88. Variances.
Sec. 37.1-89. Aggressive, constant action required.
Secs. 37.1-90—37.1-92. Reserved.
Sec. 37.1-93. Required.
Sec. 37.1-94. Application; fee.
Sec. 37.1-95. Issuance and term of permit; bond.
Sec. 37.1-96. Standards for land-disturbing activities and control practices.
Sec. 37.1-97. Periodic inspections of land-disturbing activities.
Sec. 37.1-98. Final inspection and certificate of completion of land-disturbing activity.
Sec. 37.1-66. Definitions.
For the purpose of this article, the following words and phrases shall have the meanings respectively
ascribed to them by this section:
Agreement in lieu of a plan means a contract between the plan approving authority and the owner that
specifies conservation measures which must be implemented in the construction of a single-family
residence; this contract may be executed by the plan approving authority in lieu of a formal site plan or an
erosion and sediment control plan.
Applicant means any person submitting an erosion and sediment control plan or an agreement in lieu
of a plan for approval or requesting the issuance of a permit, where required, authorizing land-disturbing
activities to commence.
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Board means The Virginia State Water Control Board.
Certified inspector means an employee or agent of the City of Newport News who (i) holds a certificate
of competence from the board in the area of project inspection, or (ii) is enrolled in the board's training
program for project inspection and successfully completes such program within one (1) year after
enrollment.
Certified plan reviewer means an employee or agent of the City of Newport News who (i) holds a
certificate of competence from the board in the area of plan review, (ii) is enrolled in the board's training
program for plan review and successfully completes such program within one (1) year after enrollment, or
(iii) is licensed as a professional engineer, architect, certified landscape architect or land surveyor pursuant
to Article 1, Chapter 4 of Title 54.1 of the Code of Virginia (1950, as amended).
Certified program administrator means an employee or agent of the City of Newport News who (i)
holds a certificate of competence from the board in the area of program administration, or (ii) is enrolled in
the board's training program for program administration and successfully completes such program within
one (1) year after enrollment.
Channel means a natural stream or waterway.
Code of Virginia means the laws adopted by the Virginia General Assembly embraced in titles,
chapters, articles and sections made effective February 1, 1950, as amended thereafter.
Development means land disturbance and the resulting landform associated with the construction of
residential, commercial, industrial, institutional, recreation, transportation or utility facilities or structures or
the clearing of land for non-agricultural or non-silvicultural purposes.
Dike means an earthen embankment constructed to confine or control water, especially one built along
the banks of a river to prevent overflow of lowlands; levee.
Erosion and sediment control plan, conservation plan or plan means a document containing material
relating to the conservation of soil and water resources of a unit or a group of units of land. It may include
appropriate maps, an appropriate soil and water plan inventory and management information with needed
interpretations, and a record of decisions contributing to conservation treatment. The plan shall contain all
major conservation decisions to ensure that the entire unit or units of land will be so treated to achieve the
conservation objectives.
Erosion impact area 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 ten thousand (10,000) square feet
or less used for residential purposes or to shorelines where the erosion results from wave action or other
coastal processes.
Land-disturbing activity means any land change, including but not limited to clearing, grading,
excavating, transporting and filling of land, which may result in soil erosion from water or wind and the
movement of sediments into waters or onto adjacent properties.
Local erosion and sediment control program or local control program means an outline of the various
methods employed by the city to regulate land-disturbing activities and thereby minimize erosion and
sedimentation in compliance with the state program and may include such items as local ordinances,
policies and guidelines, technical materials, inspection, enforcement, and evaluation.
Natural stream means nontidal waterways that are part of the natural topography. They usually
maintain a continuous or seasonal flow during the year and are characterized as being irregular in crosssection with a meandering course. Constructed channels such as drainage ditches or swales shall not be
considered natural streams.
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ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES
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 VSMP authority permit is issued.
Person means any individual, partnership, firm, association, joint venture, public or private corporation,
trust, estate, commission, board, public or private institution, utility, cooperative or any other legal entity.
Plan-approving authority means the city manager, or designee, who is responsible for determining the
adequacy of a conservation plan submitted for land-disturbing activities on a unit or units of lands and for
approving plans.
Post-development means conditions that may be reasonably expected or anticipated to exist after
completion of the land development activity on a specific site or tract of land.
Pre-development means conditions at the time the erosion and sediment control plan is submitted to
the VESCP authority. Where phased development or plan approval occurs (preliminary grading, roads and
utilities, etc.), the existing conditions at the time the erosion and sediment control plan for the initial phase
is submitted for approval shall establish pre-development conditions.
Responsible land disturber means the responsible land disturber can be anyone from the project team
or development team holding a responsible land disturber certificate who will be in charge of and
responsible for carrying out the land-disturbing activity for the project. In the absence of a specific
responsible land disturber certificate issued by the Virginia Department of Conservation and Recreation,
persons having the following are automatically considered to be responsible land disturbers: (1) persons
holding combined administrator, administrator, plan reviewer, inspector, or contractor certificates issued by
the Virginia Department of Conservation and Recreation, and (2) persons holding a valid professional
engineer, land surveyor, landscape architect, or architect license issued by the Commonwealth of Virginia.
The responsible land disturber cannot be an employee of any local department of conservation and
recreation program authority or of the City of Newport News, Virginia (the local permit issuing authority).
Shore erosion control project means an erosion control project approved by local wetlands boards, the
Virginia Marine Resources Commission, the Virginia Department of Environmental Quality or the United
States Army Corps of Engineers and located on tidal waters and within nonvegetated or vegetated wetlands
as defined in Title 28.2 of the Code of Virginia.
Stabilized means land that has been treated to withstand normal exposure to natural forces without
incurring erosion damage.
State erosion and sediment control program or state program means the program administered by the
board as it relates to this chapter, including regulations designed to minimize erosion and sedimentation.
State waters means all water, on the surface and under the ground, wholly or partially within or
bordering the Commonwealth or within its jurisdiction, including wetlands.
Subdivision means the land subdivided; and, when appropriate to the context, the process of
subdividing or re-subdividing. To subdivide means the division of a parcel of land by the owner thereof into
lots for the purpose of transfer of ownership or building development and shall specifically include the
division of a lot or parcel of land by an owner in order to create within, on, or through that lot or parcel of
land a street meeting the specifications of the Subdivision Ordinance of Newport News, Virginia to be
dedicated to the public.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
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Sec. 37.1-67. Conflict with other regulations.
This article is intended to be supplemental to the subdivision ordinance, the zoning ordinance, the site
plan ordinance, the Chesapeake Bay Preservation Ordinance, the stormwater ordinance and any other city
regulation or policy governing the development of land, the removal of soil or other land-disturbing activity.
The most restrictive standards imposed by any city ordinance, regulation or policy enacted prior to January
1, 2013 shall have precedence.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-68. Exemptions from article.
The following specific uses and activities shall be excluded from the provisions of this article:
(1) Minor land-disturbing activities such as home gardens and individual home landscaping, repairs
and maintenance work.
(2) Individual service connections.
(3) Installation, maintenance or repair of any underground public utility lines, when such activity
occurs on an existing hard-surfaced road, street or sidewalk, provided such land-disturbing
activity is confined to the area of the road, street or sidewalk which is hard-surfaced.
(4) Septic tank lines or drainage fields, unless included in an overall plan for a land-disturbing activity
relating to construction of the building to be served by the septic tank system.
(5) Permitted surface or deep mining operations and projects, or oil and gas operations and projects
conducted pursuant to Title 45.1 of the Virginia Code.
(6) Tilling, planting or harvesting agricultural, horticultural or forest crops, or livestock feedlot
operations; including engineering operations as follows: construction of terraces, terrace outlets,
check dams, de-silting basins, dikes, ponds, ditches, strip cropping, lister furrowing, contour
cultivating, contour furrowing land drainage and land irrigation; however, this exception shall not
apply to harvesting of forest crops unless the area on which harvesting occurs is reforested
artificially or naturally in accordance with the provisions of Chapter 11 (Section 10.1-1100 et seq.)
of Title 10.1 of the Code of Virginia or is converted to bona fide agricultural or improved pasture
use as described in subsection B of Section 10.1-1163 of the Code of Virginia.
(7) Repair or rebuilding of the tracks, rights-of-way, bridges, communication facilities and other
related structures and facilities of a railroad company.
(8) Agricultural engineering operations including but not limited to, the construction of terraces,
terrace outlets, check dams, desilting basins, dikes, ponds not required to comply with the Virginia
Dam Safety Act, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing,
land drainage and land irrigation.
(9) Disturbed land areas of less than twenty-five hundred (2,500) square feet in size.
(10) Installations of fence and sign posts, telephone and electric poles and other kinds of posts or
poles.
(11) Shore erosion control projects on tidal waters when all of the land-disturbing activities are within
the regulatory authority of and approved by the Newport News Wetlands Board, the Virginia
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ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES
Marine Resources Commission, or the United States Army Corps of Engineers; however, any
associated land that is disturbed outside of this exempted area shall remain subject to this article.
(12) Emergency work to protect life, limb or property and emergency repairs; however, if the landdisturbing activity would have required an approved erosion and sediment control plan if the
activity had not been an emergency, the land area disturbed shall be shaped and stabilized in
accordance with the requirements of this article.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-69. Violations of article—Generally.
(a) Any person who engages in any land-disturbing activity regulated by this article without first obtaining
a permit for such activity as prescribed by this article shall be in violation of this article.
(b) Any person who violates any condition of any permit for land-disturbing activity or exceeds the scope
of approval of any such activity shall be in violation of this article.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-70. Same—Notice.
(a) The city manager, or designee, upon determination of a violation of this article, shall immediately serve
upon the violator, either delivered to the site of the land-disturbing activity to the agent or employee
supervising such activities or by registered or certified mail, a notice to comply. Such notice shall set
forth the conditions of noncompliance and shall specify the time within which measures of compliance
must be completed. Failure to comply with such notice shall also be a violation of this article and may
also be grounds for revocation of the permit, if applicable.
(b) Upon receipt of a sworn complaint of a violation of this article, the city manager, or designee, in
conjunction with or subsequent to a notice to comply as specified in this article, shall issue an order
requiring that all or part of the land-disturbing activities permitted on the site be stopped until the
specified corrective measures have been taken or, if land-disturbing activities have commenced
without an approved plan as provided in this article, requiring that all of the land-disturbing activities
be stopped until an approved plan or any required permits are obtained. Where the alleged
noncompliance is causing or is in imminent danger of causing harmful erosion of lands or sediment
deposition in waters within the watersheds of the Commonwealth, or where the land-disturbing
activities have commenced without an approved plan or any required permits, such an order may be
issued whether or not the alleged violator has been issued a notice to comply as specified in this
article. Otherwise, such an order may be issued only after the alleged violator has failed to comply
with a notice to comply. The order shall be served in the same manner as a notice to comply, and shall
remain in effect for seven (7) days from the date of service pending application by the enforcing
authority or alleged violator for appropriate relief to the Circuit Court of Newport News, Virginia. If the
alleged violator has not obtained an approved plan or any required permits within seven (7) days from
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the date of service of the order, the city manager, or 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 Newport News, Virginia. Any person violating or failing, neglecting or refusing to
obey an order issued by the city manager, or designee, may be compelled in a proceeding instituted
in the Circuit Court of Newport News, Virginia to obey same and to comply therewith by injunction,
mandamus or other appropriate remedy. Upon completion and approval of corrective action or
obtaining an approved plan or any required permits, the order shall immediately be lifted. Nothing in
this section shall prevent the city manager, or designee, from taking any other action specified in this
article.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-70.1. Same—Right of entry
(a) The city manager, or any duly authorized agent of the city manager may, at reasonable times and
under reasonable circumstances, enter any establishment or upon any property, public or private, for
the purpose of obtaining information or conducting surveys or investigations necessary in the
enforcement of the provisions of this article.
(b) In accordance with a performance bond with surety, cash escrow, letter of credit, any combination
thereof, or such other legal arrangement approved by the city attorney, the city manager or any duly
authorized agent of the city manager may also enter any establishment or upon any property, public
or private, for the purpose of initiating or maintaining appropriate actions which are required by the
permit conditions associated with a land-disturbing activity when a permittee, after proper notice, has
failed to take acceptable action within the time specified.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-71. Same—Penalty; injunctive relief.
(a) A violation of any provision of this article is a class I misdemeanor.
(b) The city may apply to the circuit court for the city for injunctive relief to enjoin a violation or a threatened
violation of this article, without the necessity of showing that there does not exist an adequate remedy
at law.
(c) In addition to any criminal penalties provided under this article, any person who violates any provision
of this article may be liable to the city, in a civil action, for damages.
(d) In lieu of criminal sanctions, civil penalties may be imposed for violation of this article as follows:
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ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES
(1) A civil penalty in the amount of not less than one hundred dollars ($100.00) nor more than one
thousand dollars ($1,000.00) per violation shall be assessed for failure to provide, implement,
maintain or properly install any of the following erosion and sediment control measures required
by an approved plan.
a.
Vegetative controls including, but not limited to, permanent or temporary soil stabilization.
b.
Structural controls including, but not limited to, construction entrances, storm drain inlet and
outlet protection, sediment traps and basins.
c.
Transporting sediment or debris onto paved public road by vehicular traffic or runoff.
d.
Perimeter controls including, but not limited to, straw bales or silt fences.
e.
Commencement of land disturbing activities without a permit.
(2) Each day during which the violation is found to have existed shall constitute a separate offense.
In no event shall a series of specified violations arising from the same operative set of facts result
in civil penalties which exceed a total of ten thousand dollars ($10,000.00) except that a series of
violations arising from the commencement of land-disturbance activities without a city approved
plan for any site shall not result in civil penalties which exceed a total of ten thousand dollars
($10,000.00).
(e) Without limiting the remedies provided in this article, any person violating or failing, neglecting or
refusing to obey any injunction, mandamus or other remedy obtained pursuant to this article shall be
subject, in the discretion of the court, to a civil penalty not to exceed two thousand dollars ($2,000.00)
for each violation.
(f)
With the consent of any person who has violated or failed, neglected or refused to obey any regulation,
or any condition of a permit or any provision of this article, the city may provide, in an order issued by
the city manager, or designee, against such person, for the payment of civil charges for violations in
specific sums, not to exceed the limits specified in this article.
(g) Compliance with the provisions of this article shall be prima facie evidence in any legal or equitable
proceeding for damages caused by erosion or sedimentation that all requirements of law have been
met and the complaining party shall be required to prove negligence in order to recover any damages.
(h) Such civil penalties, as shall be imposed by a court of competent jurisdiction, pursuant to this article,
shall be deposited into the stormwater management revenues of the city's treasury, as defined by
section 37.1-11(11).
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-72. Appeals from decisions under chapter.
Final decisions of the city manager, or designee, under this article shall be subject to review by the
circuit court for the city, provided an appeal is filed within thirty (30) days from the date of the pertinent
written decision adversely affecting the rights, duties, privileges of the person engaging in or proposing to
engage in land-disturbing activities.
(Ord. No. 7017-13, § 1)
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ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Secs. 37.1-73—37.1-82. Reserved.
Sec. 37.1-83. Required.
(a) No person shall undertake any land-disturbing activity, except as exempted in this article, without first
having submitted to the city manager, or designee, four (4) copies of an erosion and sediment control
plan with certification that the plan will be followed and unless such plan has been approved as in
compliance with the intent and requirements of this article and a permit certifying such approval has
been issued as provided in this article. The city manager, or designee, may execute an agreement in
lieu of a plan for construction of a single-family residence or disturbed areas of less than ten thousand
(10,000) square feet. No permits that authorize land-disturbing activities shall be issued without an
approved erosion control plan or an executed agreement in lieu of a plan.
(b) An erosion and sediment control plan shall be filed for a land-disturbing activity and the buildings
constructed within, regardless of the phasing of construction.
(c) If individual lots or sections in a residential development are being developed by different property
owners, all land-disturbing activities related to the building construction shall be covered by an erosion
and sediment control plan or an agreement in lieu of a plan signed by the property owner.
(d) The city manager, or designee, may require an erosion and sediment control plan if in his opinion an
agreement in lieu of a plan will not provide sufficient detail to determine the effectiveness of erosion
and sediment transport control measures that may be required for the site.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-84. Responsibility of property owner when work to be done by contractor.
When any land-disturbing activity will be required of a contractor performing construction work
pursuant to a construction contract, the required plan submissions and the obtaining of the permit required
by this article shall be the responsibility of the owner.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
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ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES
Sec. 37.1-85. Preparation of plan.
(a) The plan required by this article shall be prepared by a certified professional engineer or land surveyor
duly licensed by the Commonwealth and shall be developed in accordance with the Virginia Erosion
and Sediment Control Law and the regulations promulgated thereunder.
(b) In the absence of an approved site plan issued pursuant to the site regulations of this code, an
undisturbed buffer area as described in this subsection shall be accurately located on the erosion and
sediment control plan. In such cases, the buffer area, which will function as an erosion control
measure, shall be retained and remain undisturbed as follows, except as otherwise approved in the
plan for ingress and egress:
(1) For parcel sizes less than one (1) acre, an undisturbed buffer area on the parcel twenty (20) feet
in width, parallel and adjacent to all property lines shall be retained. For parcel sizes from one (1)
acre but less than five (5) acres, an undisturbed buffer area on the parcel forty (40) feet in width
parallel and adjacent to all property lines shall be retained. For all parcel sizes from five (5) acres
but less than ten (10) acres, an undisturbed buffer area on the parcel sixty (60) feet in width
parallel and adjacent to all property lines shall be retained. For all parcel sizes ten (10) acres or
greater, an undisturbed buffer area on the parcel one hundred (100) feet in width parallel and
adjacent to all property lines shall be retained.
(2) All vegetation within a buffer area as defined in the zoning ordinance, plus an additional ten-foot
strip within the parcel and adjacent to but outside of such buffer area, shall be retained and remain
undisturbed. If a buffer area is adjacent to a property line, the greater of the requirements of the
preceding subsection (1) or this subsection shall apply.
(c) All areas of vegetation, including ground cover, trees, shrubs, grass and other plants, to be retained
in accordance with chapter 33.02, Site Regulations of this Code, shall be marked in the field prior to
clearing taking place. One temporary point of access no greater than twenty-five (25) feet in width shall
be allowed for site clearance.
(d) Land disturbance shall be limited to the area necessary to provide for the desired use or development.
(1) In accordance with an approved site plan, the limits of land disturbance, including clearing or
grading shall be clearly shown on submitted plans and physically marked on the development
site.
(2) Where feasible, ingress and egress during construction shall be limited to one access point,
unless otherwise approved by the city manager, or designee.
(e) Indigenous vegetation shall be preserved to the maximum extent possible consistent with the use and
development permitted and in accordance with the Virginia Erosion and Sediment Control Handbook.
(1) Existing trees more than five (5) inches in diameter four and one-half (4.5) feet above existing
grade shall be preserved outside the limits of land disturbance. Trees that are diseased or that
have been weakened by age, storm, fire or other injury may be removed.
(2) Clearing shall be allowed only to provide necessary visual and vehicular access, positive site
drainage, water quality stormwater management control facilities, and the installation of utilities
as approved by the city manager, or designee.
(3) Prior to clearing or grading, suitable protective barriers, such as fencing, shall be erected five (5)
feet outside of the dripline of any tree or stand of trees to be preserved. These protective barriers
shall remain so erected throughout all phases of construction. The storage of equipment,
materials, debris or fill shall not be allowed within the area protected by the barrier unless
otherwise authorized by the city manager, or designee.
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Chapter 37.1 - STORMWATER MANAGEMENT
ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES
(f)
Land development shall minimize impervious cover to promote infiltration of stormwater into the ground
consistent with the use or development permitted.
(g) As a prerequisite to approval of the plan, the person responsible for carrying out the plan shall provide,
in a note placed on the plan, the name of an individual holding a certificate of competence, as provided
by law and set forth in the Code of Virginia, who will be in charge of and responsible for carrying out
the land-disturbing activity.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-86. Approval or disapproval of plan.
(a) The city manager, or designee, shall review plans submitted to him and grant written approval within
sixty (60) days of the receipt of the plan if he determines that the plan meets the requirements of the
guidelines and standards prescribed in this article 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. In addition, as a prerequisite to engaging in the land-disturbing
activities shown on an approved plan, the person responsible for carrying out the plans shall provide
the name of an individual holding a certificate of competence to the city manager, or designee, as
provided by Section 62.1-44.15:52 of the Code of Virginia, who will be in charge of and responsible for
carrying out the land-disturbing activity. However, the city manager, or designee, may waive the
certificate of competence requirement for an agreement in lieu of a plan for construction of a single
family residence. If a violation occurs during the land-disturbing activity, then the person responsible
for carrying out the agreement in lieu of a plan shall correct the violation and provide the name of an
individual holding a certificate of competence, issued by the board, as provided by Section 62.144.15:52 of the Code of Virginia. Failure to provide the name of an individual holding a certificate of
competence prior to engaging in land-disturbing activities may result in revocation of the approval of
the plan and the person responsible for carrying out the plan shall be subject to the penalties provided
in this article.
(b) When a plan is determined to be inadequate, written notice of disapproval stating the specific reasons
for disapproval shall be communicated to the applicant within forty-five (45) days. The notice shall
specify the modifications, terms and conditions that will permit the approval of the plan. If no action is
taken by the city manager, or designee, within the time specified above, the plan shall be deemed
approved and the person authorized to proceed with the proposed activity.
(c) Where land-disturbing activities involve lands under the jurisdiction of more than one local control
program, it shall be the applicant's responsibility to comply with the program of the jurisdiction wherein
any portion of the land is located. However, an erosion and sediment control plan may, at the option
of the applicant, be submitted to the board for review and approval rather than to each jurisdiction
concerned. Regardless of the procedure followed by the applicant for plan approval, land-disturbing
activity which takes place within the municipal boundaries of the City of Newport News shall be
inspected by an inspector employed by the city and the charge set forth in this article for a landdisturbing permit shall be paid to the city before any land-disturbing activities will be allowed to
commence.
(d) In order to prevent further erosion, the city manager, or designee, may require approval of a plan for
any land identified in the local control program as an erosion impact area.
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ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES
(e) Electric, natural gas and telephone utility companies, interstate and intrastate natural gas pipeline
companies and railroad companies shall file a general erosion and sediment control specifications
annually with the board for review and approval. The specifications shall apply to:
(1) Construction, installation or maintenance of electric transmission, natural gas and telephone utility
lines and pipelines; and
(2) Construction of the tracks, rights-of-way, bridges, communications facilities and other related
structures and facilities of the railroad company.
(f)
A state agency shall not undertake a project involving a land-disturbing activity unless (i) the state
agency has submitted annual specifications for its conduct of land-disturbing activities which have
been reviewed and approved by the Virginia Department of Conservation and Recreation as being
consistent with the state program, or (ii) the state agency has submitted a conservation plan for the
project which has been reviewed and approved by the Virginia Department of Conservation and
Recreation.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-87. Amendment of approved plan.
An erosion and sediment control plan approved under this article may be amended by the city
manager, or designee, in the following cases:
(1) Where inspection has revealed that the plan is inadequate to satisfy applicable regulatory
provisions; or
(2) Where the person responsible for carrying out the approved plan finds that because of changed
circumstances or for other reasons the approved plan cannot be effectively carried out, and
proposed amendments to the plan, consistent with the requirements of this article, are agreed to
by the city manager, or designee, and the person responsible for carrying out the plan.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-88. Variances.
The city manager, or designee, may waive or modify any of the regulations that are deemed
inappropriate or too restrictive for site conditions, by granting a variance. A variance may be granted under
these conditions:
(1) At the time of plan submission, an applicant may request a variance to become part of the
approved erosion and sediment control plan. The applicant shall explain the reasons for
requesting variances in writing. Specific variances which are allowed by the city manager, or
designee, shall be documented in the plan.
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ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES
(2) During construction, the person responsible for implementing the approved plan may request a
variance in writing from the city manager, or designee. The city manager, or designee, shall
respond in writing either approving or disapproving such a request. If the city manager, or
designee, does not approve a variance within ten (10) working days of receipt of the request, the
request shall be considered to be disapproved. Following disapproval, the applicant may resubmit
a variance request with additional documentation.
(3) The city manager, or designee, shall consider variance requests judiciously, keeping in mind both
the need of the applicant to maximize cost effectiveness and the need to protect offsite properties
and resources from damage.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-89. Aggressive, constant action required.
Should a land-disturbing activity not begin during the one hundred eighty (180) day period following
plan approval or cease for more than one hundred eighty (180) days, the city manager, or designee, may
evaluate the existing approved erosion and sediment control plan to determine whether the plan still
satisfies local and state erosion and sediment control criteria and to verify that all design factors are still
valid. If the city manager, or designee, finds the previously filed plan to be inadequate, a modified plan shall
be submitted and approved prior to the resumption of land-disturbing activity.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Secs. 37.1-90—37.1-92. Reserved.
Sec. 37.1-93. Required.
It shall be unlawful for any person to undertake any land-disturbing activity, except as exempted in this
article, without first obtaining a permit for such land-disturbing activity from the city manager, or designee.
No permit shall be issued by the city manager, or designee, until proof of coverage under the state
stormwater construction general permit, as may be applicable, has been submitted.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
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Chapter 37.1 - STORMWATER MANAGEMENT
ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES
Sec. 37.1-94. Application; fee.
Any person desiring a permit required by this article shall file an application therefore with the city
manager, or designee. Such application shall contain evidence that a fee according to the following
schedule has been paid. The fee shall not be returnable. The fee shall be based on the square footage
associated with the area to be disturbed and is levied to cover the costs of processing and investigating the
application for and the inspection of the land-disturbing activity:
(1) Less than two thousand five hundred (2,500) square feet: No charge and no permit required.
(2) 2,500—10,000 square feet: One hundred seventy-five dollars ($175.00).
(3) 10,001—20,000 square feet: Two hundred twenty-five dollars ($225.00).
(4) 20,001—30,000 square feet: Two hundred seventy-five dollars ($275.00).
(5) 30,001—40,000 square feet: Three hundred dollars ($300.00).
(6) 40,001—50,000 square feet: Three hundred twenty-five dollars ($325.00).
(7) More than fifty thousand (50,000) square feet: Three hundred fifty dollars ($350.00) plus twentyfive dollars ($25.00) for square footage (in increments of ten thousand (10,000) square feet or
portion thereof) in excess of sixty thousand (60,000) square feet.
(8) An agreement in lieu of a plan: Seventy-five dollars ($75.00).
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-95. Issuance and term of permit; bond.
(a) In the case of approval of a plan submitted under this article, the city manager, or designee, shall issue
a permit certifying approval of the land-disturbing activity. Prior to the issuance of the permit, the
applicant shall provide to the city a performance bond or other security in the form of a cash escrow,
letter of credit, corporate surety bond, or other such legal arrangement as may be approved by the city
attorney. Such bond or security shall be in an amount to be determined by the city manager, or
designee, and shall be sufficient to ensure that emergency measures may be taken by the city at the
applicant's expense should the applicant fail, after proper notice and within the time specified, to initiate
or maintain appropriate conservation action which may be required as a result of such land-disturbing
activity. The bond minimum shall be two thousand dollars ($2,000.00) or five hundred dollars ($500.00)
per acre of disturbed area, whichever is greater. If the city takes such conservation action upon such
failure by the permittee, the permittee shall pay to the city the difference between the amount of the
security and the actual cost of such action if it exceeds the amount of the security held. Within sixty
(60) days after the completion of the land-disturbing activity, as indicated by the issuance of a
certificate of completion under this article, such security or the unexpended or un-obligated portion
thereof shall be refunded to the applicant or terminated as the case may be.
(b) A bond shall not be required for an agreement in lieu of a plan.
(Ord. No. 7017-13, § 1)
Editor's note—
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ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-96. Standards for land-disturbing activities and control practices.
Land-disturbing activities controlled by this article shall be designed and conducted in a manner
consistent with the standards described in 9VAC25-870-40 [of the Virginia Administrative Code].
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-97. Periodic inspections of land-disturbing activities.
The city manager, or designee, shall make such periodic inspections of land-disturbing activities as
provided in the state program to ensure compliance with the approved plan and to determine whether the
measures required in the plan are effective in controlling erosion and sedimentation resulting from the landdisturbing activity. The right of inspection shall be inherent in the issuance of the permit under this article.
The owner, occupier or operator shall be given an opportunity to accompany the city manager, or designee,
on the inspections.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
Sec. 37.1-98. Final inspection and certificate of completion of land-disturbing activity.
Upon completion of a land-disturbing activity, the permittee shall notify the city manager, or designee,
who shall make a final inspection of the project. Upon finding satisfactory evidence of compliance with the
approved plan and the achievement of adequate stabilization, the city manager, or designee, shall issue a
certificate of completion. "Adequate stabilization" of a site shall be determined by the city manager, or
designee.
(Ord. No. 7017-13, § 1)
Editor's note—
Ord. No. 7017-13, § 1, adopted November 26, 2013, shall be in effect on and after July 1, 2014.
FOOTNOTE(S):
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ARTICLE VII. SOIL REMOVAL AND OTHER LAND DISTURBING ACTIVITIES
--- (6) --Editor's note— The provisions of this article were previously codified as Ch. 35 (Back)
Newport News, Virginia, Code of Ordinances
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