Chapter 87, EROSION AND SEDIMENT CONTROL

[HISTORY: Adopted by the Board of Supervisors of Shenandoah County 1-1-1976; amended in its entirety at time of adoption of Code; see Ch. 1, General Provisions, Art. I. Subsequent amendments noted where applicable.]

GENERAL REFERENCES
Subdivision of land -- See Ch. 142.
Fees -- See Ch. A170.

§ 87-1. PURPOSE

This ordinance shall be known as the “Erosion and Sediment Control Ordinance of Shenandoah County. The purpose of this chapter is to prevent the degradation of properties, stream channels, waters and other natural resources of Shenandoah County by establishing requirements for the control of soil erosion, sediment deposition and nonagricultural runoff and by establishing procedures whereby these requirements shall be administered and enforced. This Chapter is authorized by the Code of Virginia, Title 10.1, Chapter 5, Article 4 (Sec. 10.1-560 et seq.), known as the Virginia Erosion and Sediment Control Law.

§ 87-2. DEFINITIONS

As used in the ordinance, unless the context requires a different meaning:

ACT -- The Erosion and Sediment Control Law, Article 4 (§ 10.1-560 et seq.) of Chapter 5 of Title 10.1 of the Code of Virginia.

ADMINISTRATOR -- The official designated by the governing body to serve as its agent to administer this chapter.

AGREEMENT IN LIEU OF A PLAN -- A contract between Shenandoah County and the owner which specifies conservation measures which must be implemented in the construction of a single-family dwelling; this contract may be executed by Shenandoah County in lieu of a formal site plan.

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

BOARD -- The Virginia Soil and Water Conservation Board.

CERTIFIED INSPECTOR -- An employee or agent of a program authority who holds a certificate of competence from the Board in the area of project inspection or is enrolled in the Board's training program for project inspection and successfully completes such program within one (1) year after enrollment.

CERTIFIED PLAN REVIEWER -- An employee or agent of a program authority who holds a certificate of competence from the Board in the area of plan review, is enrolled in the Board's training program for plan review and successfully completes such program within one (1) year after enrollment or is licensed as a professional engineer, architect, certified landscape architect or land surveyor pursuant to Article 1 (§ 54.1-400 et seq.) of Chapter 4 of Title 54.1.

CERTIFIED PROGRAM ADMINISTRATOR -- An employee or agent of a program authority who holds a certificate of competence from the Board in the area of program administration or is enrolled in the Board's training program for program administration and successfully completes such program within one (1) year after enrollment.

CLEARING -- Any activity which removes the vegetative growth cover including, but not limited to, root mat removal and/or topsoil removal.

COUNTY -- The County of Shenandoah.

DEPARTMENT -- The Department of Conservation and Recreation.

DEVELOPMENT -- A tract of land developed or to be developed as a single unit under single ownership or unified control which is to be used for any business or industrial purpose or is to contain three (3) or more residential dwelling units.

DISTRICT or SOIL AND WATER CONSERVATION DISTRICT -- Herein referred to as "Lord Fairfax Soil and Water Conservation District."

EROSION AND SEDIMENT CONTROL PLAN, or PLAN -- A document containing material for the conservation of soil and water resources of a unit or group of units of land. It may include appropriate maps, an appropriate soil and water plan inventory and management information with needed interpretations, and a record of decisions contributing to conservation treatment. The "plan" shall contain all major conservation decisions to assure that the entire unit or units of land will be so treated to achieve the conservation objectives. Plans for residential subdivisions must also include an overall lot grading plan.

EROSION IMPACT AREA -- An area of land not associated with current land-disturbing activity but subject to persistent soil erosion resulting in the delivery of sediment onto neighboring properties or into state waters. This definition shall not apply to any lot or parcel of land of ten thousand (10,000) square feet or less used for residential purposes.

EXCAVATING -- Any digging, scooping or other methods of removing earth materials.

FILLING -- Any depositing or stockpiling of earth materials.

GOVERNING BODY -- The Board of Supervisors of Shenandoah County.

GRADING -- Any excavating or filling of earth materials or any combination thereof, including the land in its excavated or filled condition.

LAND-DISTURBING ACTIVITY -- Any land change which may result in soil erosion from water or wind and the movement of sediments into state waters or onto lands in the commonwealth, including but not limited to clearing, grading, excavating, transporting and filling of land, except that the term shall not include:

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

B. Individual service connections.

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

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

E. Surface or deep mining.

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

G. Tilling, planting or harvesting of agricultural, horticultural or forest crops or livestock feedlot operations, including engineering operations and agricultural engineering operations as follows: construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds not required to comply with the Dam Safety Act, Article 2, (Sec. 10.1-604 et seq.) of Chapter 6, ditches, strip cropping, lister furrowing, contour cultivating, contour furrowing, land drainage and land irrigation; however, this exception shall not apply to harvesting of forest crops unless the area on which harvesting occurs is reforested artificially or naturally in accordance with the provisions of Chapter 11 (§ 10.1-1100 et seq.) of Title 10.1 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.

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

I. Disturbed land areas of less than ten thousand (10,000) square feet in size, except that land-disturbing activities, associated with the construction of single-family dwellings, of less than 10,000 square feet on individual lots in a residential development shall not fall under this exemption.

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

K. Shoreline erosion control projects on tidal waters when all of the land disturbing activities are within the regulatory authority of and approval by local wetlands boards, the 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 ordinance.

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

LAND-DISTURBING PERMIT -- A permit issued by the Planning Office of Shenandoah County for the clearing, filling, excavating, grading, transporting of land or for any combination thereof or for any purpose set forth herein.

LOCAL EROSION AND SEDIMENT CONTROL PROGRAM -- An outline of the various methods employed by a program authority to regulate land-disturbing activities and thereby minimize erosion and sedimentation in compliance with the state program and may include such items as local ordinances, policies and guidelines, technical materials, inspection, enforcement and evaluation.

OWNER -- 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. The owner shall be responsible for obtaining all permits and approvals required.

PERMITTEE -- The person to whom the permit authorizing land-disturbing activities is issued or the person who certifies that the approved erosion and sediment control plan will be followed.

PERSON -- Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town or other political subdivision of the commonwealth, any interstate body or any other legal entity.

PLAN APPROVING AUTHORITY -- The Planning Office of Shenandoah County.

PLANNING OFFICE – The Planning and Zoning Office of Shenandoah County.

PRECONSTRUCTION CONFERENCE – A meeting on-site, with the owner, excavating contractor, engineer, and the Administrator, or his designee present; required for all sites needing an Erosion & Sediment Control Plan, conducted before a land-disturbance permit is issued.

PROGRAM AUTHORITY -- The Planning Office of Shenandoah County.

RESPONSIBLE LAND DISTURBER – An individual from the project or development team, who will be in charge of and responsible for carrying out a land-disturbing activity covered by an approved plan or agreement in lieu of a plan, who (i) holds a Responsible Land Disturber certificate of competence, (ii) holds a current certificate of competence from the Board in the areas of Combined Administration, Program Administration, Inspection, or Plan Review, or (iii) is licensed in Virginia as a professional engineer, architect, certified landscape architect or land surveyor pursuant to Article 1 (Sec. 54.1-400 et seq.) of Chapter 4 of Title 54.1

SINGLE-FAMILY DWELLING -- A noncommercial dwelling that is occupied exclusively by one (1) family.

STATE EROSION AND SEDIMENT CONTROL PROGRAM or STATE PROGRAM -- The program administered by the Board pursuant to this chapter, including regulations designed to minimize erosion and sedimentation.

STATE WATERS -- All waters on the surface and under the ground wholly or partially within or bordering the commonwealth or within its jurisdiction.

TOWN -- An incorporated town.

TRANSPORTING -- Any moving of earth materials from one place to another, other than such movement incidental to grading, when such movement results in destroying the vegetative ground cover, either by tracking or the buildup of earth materials to the extent that erosion and sedimentation will result from the soil or earth materials over which such transporting occurs.

§ 87-3. LOCAL EROSION AND SEDIMENT CONTROL PROGRAM

A. Pursuant to Section 10.1-562 of the Code of Virginia, Shenandoah County hereby adopts the regulations, references, guidelines, standards and specifications promulgated by the Board for the effective control of soil erosion and sediment deposition to prevent the unreasonable degradation of properties, stream channels, waters and other natural resources. Said regulations, references, guidelines, standards and specifications for erosion and sediment control are included but not limited to the “Virginia Erosion and Sediment Control Regulations” and the Virginia Erosion and Sediment Control Handbook, as amended.

B. Before adopting or revising regulations, Shenandoah County shall give due notice and conduct a public hearing on the proposed or revised regulations, except that a public hearing shall not be required when Shenandoah County is amending its program to conform to revisions in the state program.

However, a public hearing shall be held if Shenandoah County proposes or revises regulations that are more stringent than the state program.

C. Pursuant to Section 10.1-561.1 of the Code of Virginia, an erosion control plan shall not be approved until it is reviewed by a certified plan reviewer. Inspections of land-disturbing activities shall be conducted by a certified inspector. The Erosion Control Program of Shenandoah County shall contain a certified program administrator, a certified plan reviewer, and a certified inspector, who may be the same person.

D. Shenandoah County hereby designates the Planning Office as the plan-approving authority, program authority, and inspections authority.

E. The programs and regulations provided for in this ordinance shall be made available for public inspection at the Planning Office.

§ 87-4. PLAN SUBMISSION

A. Except as provided herein, no person may engage in any land-disturbing activity until he or she has submitted to the Planning Office of Shenandoah County an erosion and sediment control plan for the land-disturbing activity, and such plan has been approved by the plan-approving authority and a land-disturbance permit has been issued by the Administrator. It shall be the responsibility of the owner to secure such approval. Plans submitted shall include two sets of drawings, a completed application, and the appropriate plan review fee. Where land-disturbing activities involve lands under the jurisdiction of more than one local control program, an erosion and sediment control plan, at the option of the applicant, may be submitted to the Board for review and approval rather than to each jurisdiction concerned.

Where the land-disturbing activity results from the construction of a single-family residence, an “Agreement in Lieu of a Plan” may be substituted for an erosion and sediment control plan if executed by Shenandoah County.

B. The standards contained within the “Virginia Erosion and Sediment Control Regulations” and the Virginia Erosion and Sediment Control Handbook are to be used by the applicant when making a submittal under the provisions of this ordinance and in preparation of an erosion and sediment control plan. Shenandoah County, in considering the adequacy of a submitted plan, shall be guided by the same standards, regulations and guidelines.

In addition, an overall lot grading plan shall accompany Erosion & Sediment Control Plans for all residential subdivisions. It is required that the developer provide the builder/owner of lots within that subdivision a copy of the original engineered site grading plan. A copy of this plan shall be submitted by the builder/owner as part of the Agreement in Lieu of a Plan application for land disturbance related to house construction. If the residential subdivision requires permanent stormwater detention facilities, a maintenance agreement shall be submitted as part of the plan detailing the responsible entity for maintaining the detention facility. This agreement shall include a schedule of when routine maintenance is to occur.

Before a Certificate of Occupancy is issued for new dwellings on lots for which grading plans were required, the following must be completed:

1. A certified as-built plan showing properly annotated boundary lines, setback lines, house footprint, offsets to house, elevations as necessary to show positive drainage, driveways, final floor elevations to include basement, first floor and garage, and erosion and sediment controls, if required. The as-built plan shall be accompanied by a document prepared by a professional engineer or a certified land surveyor certifying that the as-built conditions meet the intent of the approved site grading plan.

C. The Planning Office shall review conservation plans submitted to it and shall act on them within 45 days from receipt thereof by either approving said plan in writing or by disapproving said plan in writing and giving specific reasons for its disapproval. When the plan is determined to be inadequate, the Planning Office shall specify such modifications, terms and conditions that will permit approval of the plan. If no action is taken within 45 days, the plan shall be deemed approved and the person authorized to proceed with the proposed activity.

D. An approved plan may be changed by the Planning Office when:

1. Inspections reveal that the plan is inadequate to satisfy applicable regulations; or

2. The person responsible for carrying out the plan finds that because of changed circumstances or for other reasons the approved plan cannot be effectively carried out, and proposed amendments to the plan, consistent with the requirements of this ordinance, are agreed to by the Planning Office and the person responsible for carrying out the plans.

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

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

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

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

G. State agency projects are exempt from the provisions of this ordinance except as provided for in the Code of Virginia, Section 10.1-564.

§ 87-5. PERMITS AND BONDING

A land-disturbance permit will be issued by Shenandoah County after:

1. The Erosion & Sediment Control Plan has been approved by the Planning Office and certification that the plan will be followed has been submitted to the Administrator.

2. The application and the appropriate fee have been submitted to the Planning Office.

3. A preconstruction conference has been held on-site with the owner, excavating contractor, engineer, and the Administrator or his designee.

4. The person responsible for carrying out the plan has provided the name of an individual holding a certificate of competence, as provided by §10.1-561 of the Virginia Erosion and Sediment Control Law, who will be in charge of and responsible for carrying out the land-disturbing activity.

5. A reasonable performance bond with surety, cash escrow, letter of credit, or any combination thereof or such other legal arrangement acceptable to Shenandoah County has been posted. The purpose of this posting is to ensure that measures could be taken by the governing body at the applicant’s expense should he fail, after proper notice, within the time specified to initiate or maintain appropriate conservation action which may be required of him by the approved plan as a result of his land-disturbing activity.

The amount of the bond or other security for performance shall be 110% of the total of the estimated cost to initiate and maintain appropriate conservation action.

Before the bond is released, the following infrastructure shall be completed and stabilized within the subdivision, subsection, or phase as shown on the approved plan:

1. Stormwater conveyance systems including culverts, road surface, curb and gutter, stormwater structures, drainage swales and ditches, channel linings, stormwater/sediment ponds, and all cleared areas shall be adequately stabilized. Adequate stabilization shall be determined by the Administrator.

2. A certified as-built plan shall be submitted and reviewed by the county before the bond is released. This plan should include stormwater conveyance systems including curb and gutter, drainage swales and ditches, stormwater/sediment ponds, and graded areas. A letter from the engineer-of-record shall be included with the as-built plan which states that the subdivision has been constructed in accordance with the approved plan.

If the as-built shows that the subdivision was constructed in accordance with the approved plan and adequate stabilization, as determined by Shenandoah County, has been established in any project or section of a project, such bond or other security for performance, or the unexpended or unobligated portion thereof shall be either refunded to the applicant or terminated, based upon the percentage of area completed in the project or project section.

This refund or termination of the security bond shall take place within 60 days of the establishment of adequate stabilization and within 60 days of submittal of the as-built plan, if approved by Shenandoah County.

Any applicant aggrieved by a decision of the Administrator with respect to the terms or requirements of such performance bond or other security for performance may cause that decision to be reviewed by the Board of Supervisors, provided that a notice of appeal is filed with the Administrator within 30 days after such decision.

The appeal shall be considered by the Board of Supervisors at its next regular meeting which occurs no less than 25 days after receipt of the notice of appeal by the Administrator.

§ 87-6. INSPECTIONS AND ENFORCEMENT

A. Shenandoah County may require the person responsible for carrying out the plan to monitor the land-disturbing activity. The person responsible for carrying out the plan will maintain records of these inspections and maintenance, to ensure compliance with the approved plan and to determine whether the measures required in the plan are effective in controlling erosion and sedimentation.

B. Shenandoah County shall periodically inspect the land-disturbing activity in accordance with Section 4VAC50-30-60 of the Virginia Erosion and Sediment Control Regulations to ensure compliance with the approved plan and to determine whether the measures required in the plan are effective in controlling erosion and sedimentation. The owner, permittee, or person responsible for carrying out the plan shall be given notice of the inspection.

If the inspector determines that there is a failure to comply with the plan, notice shall be served upon the permittee or person responsible for carrying out the plan by registered or certified mail to the address specified in the permit application or in the plan certification, or by delivery at the site of the land-disturbing activities to the agent or employee supervising such activities

The notice shall specify the measures needed to comply with the plan and shall specify the time frame which such measures shall be completed. Upon failure to comply within the specified time, the permit may be revoked and the permittee or person responsible for carrying out the plan shall be deemed to be in violation of this ordinance and shall be subject to the penalties provided by this ordinance.

C. Upon determination of a violation of this ordinance, the Administrator may, in conjunction with or subsequent to a notice to comply as specified in this ordinance, 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. If land-disturbing activities have commenced without an approved plan, the Administrator may, in conjunction with or subsequent to a notice to comply as specified in this ordinance, issue an order requiring that all of the land-disturbing activities on the site 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 without regard to whether the permittee has been issued a notice to comply as specified in this ordinance. Otherwise, such an order may be issued only after the permittee has failed to comply with such a notice to comply.

The order shall be served in the same manner as a notice to comply, and shall remain in effect for a period of seven days from the date of service pending application by the enforcing authority or permit holder for appropriate relief to the Circuit Court of Shenandoah County.

If the alleged violator has not obtained an approved plan or any required permits within seven days from the date of service of the order, the Administrator 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 Shenandoah County. The owner may appeal the issuance of an order to the Circuit Court of Shenandoah County.

Any person violating or failing, neglecting or refusing to obey an order issued by the Administrator may be compelled in a proceeding instituted in the Circuit Court of Shenandoah County 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 Administrator from taking any other action authorized by this ordinance.

§ 87-7. PENALTIES, INJUNCTIONS, AND OTHER LEGAL ACTIONS

A. A violation of this chapter shall be deemed a Class I misdemeanor.

B. Any person who violates any provision of this ordinance shall, upon a finding of the District Court of Shenandoah County, be assessed a civil penalty. The civil penalty for any one violation shall be $100, except that the civil penalty for commencement of land-disturbing activities without an approved plan shall be $1,000. Each day during which the violation is found to have existed shall constitute a separate offense. In no event shall a series of specified violations arising from the same operative set of facts result in civil penalties which exceed a total of $3,000, except that a series of violations arising from the commencement of land-disturbing activities without an approved plan for any site shall not result in civil penalties which exceed a total of $10,000.

C. The Administrator, or the owner of property which has sustained damage or which is in imminent danger of being damaged, may apply to the Circuit Court of Shenandoah County to enjoin a violation or a threatened violation of this ordinance, without the necessity of showing that an adequate remedy at law does not exist.

However, an owner of property shall not apply for injunctive relief unless (i) he has notified in writing the person who has violated the local program, and the program authority, that a violation of the local program has caused, or creates a probability of causing, damage to his property, and (ii) neither the person who has violated the local program nor the program authority has taken corrective action within fifteen days to eliminate the conditions which have caused, or create the probability of causing, damage to his property.

D. In addition to any criminal penalties provided under this ordinance, any person who violates any provision of this ordinance may be liable to Shenandoah County in a civil action for damages.

E. Without limiting the remedies which may be obtained in this section, any person violating or failing, neglecting, or refusing to obey any injunction, mandamus or other remedy obtained pursuant to this section shall be subject, in the discretion of the court, to a civil penalty not to exceed $2,000 for each violation. A civil action for such violation or failure may be brought by Shenandoah County.

F. With the consent of any person who has violated or failed, neglected or refused to obey any regulation or condition of a permit or any provision of this ordinance, Shenandoah County may provide for the payment of civil charges for violations in specific sums, not to exceed the limit specified in Subsection E of this section. Such civil charges shall be instead of any appropriate civil penalty which could be imposed under Subsection E.

G. The County Attorney shall, upon request of Shenandoah County, take legal action to enforce the provisions of this ordinance.

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

§ 87-8. APPEALS AND JUDICIAL REVIEW

A. Any applicant under the provision of this ordinance who is aggrieved by any action of Shenandoah County or its agent in disapproving plans submitted pursuant to this ordinance shall have the right to apply for and receive a review of such action by the Shenandoah County Board of Supervisors provided an appeal is filed within 30 days from the date of the action. Any applicant who seeks an appeal hearing before Shenandoah County shall be heard at the next regularly scheduled Shenandoah County Board of Supervisors public hearing provided that the Shenandoah County Board of Supervisors and other involved parties have at least 30 days prior notice. In reviewing the agent’s actions, the Shenandoah County Board of Supervisors shall consider evidence and opinions presented by the aggrieved applicant and agent. After considering the evidence and opinions, the Shenandoah County Board of Supervisors may affirm, reverse or modify the action. The Shenandoah County Board of Supervisor’s decision shall be final, subject only to review by the Circuit Court of Shenandoah County.

B. Final decisions of Shenandoah County under this ordinance shall be subject to review by Shenandoah County Circuit Court, provided an appeal is filed within 30 days from the date of any written decision adversely affecting the rights, duties, or privileges of the person engaging in land-disturbing activities.

§ 87-9. Approval.

A. The plan approving authority shall review conservation plans submitted to it to determine if the plan meets the requirements of the local control program and shall grant written approval within 45 days from receipt of the plan by the Program Administrator. The plan approving authority, in considering the adequacy of a submitted plan, shall be guided by the same standards, regulations and guidelines as outlined in § 87-8A for the applicant to follow in preparation of an erosion and sedimentation control plan.

B. When a plan is determined to be inadequate, written notice of disapproval stating the specific reasons for disapproval shall be sent to the applicant within 45 days. The notice shall specify the modifications, terms and conditions that will permit approval of the plan.

C. If no action is taken by the plan approving authority within the time specified above, the plan shall be deemed approved and the person authorized to proceed with the proposed activity.

§ 87-10. Bonding of performance. [Amended 3-28-2000 by Ord. No. 00-1]

A. Prior to the issuance of any permit, the permit issuing authority may require an applicant to submit a reasonable performance bond with surety, cash escrow, letter of credit, any combination thereof or such other legal arrangement acceptable to the permit issuing authority to ensure that measures could be taken by the governing body at the applicant's expense should he fail, after proper notice, within the time specified to initiate or maintain appropriate conservation action which may be required of him by the approved plan as a result of his land-disturbing activity. If the county takes such conservation action upon such failure by the permittee, the county may collect from the permittee for the difference should the amount of the reasonable cost of such action exceed the amount of the security held. The amount of the bond or other security for performance shall be 110% of the total of the estimated cost to initiate and maintain appropriate conservation action.

B. Within 60 days of the achievement of adequate stabilization of the land-disturbing activity, the bond, cash escrow, letter of credit or other legal arrangement, or the unexpended or unobligated portion thereof, shall be refunded to the applicant or terminated, as the case may be.

C. Any applicant aggrieved by a decision of the permit issuing authority with respect to the terms or requirements of such performance bond, or surety, if required, may cause that decision to be reviewed by the Board of Supervisors, provided that a notice of appeal is filed with the permit issuing authority within 30 days after such decision. The appeal shall be considered by the Board of Supervisors at its next regular meeting which occurs no less than 25 days after receipt of the notice of appeal by the permit issuing authority.

§ 87-11. Issuance of land-disturbing permit; fees. [Amended 3-28-2000 by Ord. No. 00-1]

A. Except as provided in § 87-4 and § 87-5A and B of this chapter, no person shall engage in any land-disturbing activity as defined in § 87-3 of this chapter within the County of Shenandoah or within an incorporated town which adopts jointly with the county or authorized the county to adopt an erosion and sedimentation control program within such town until he has approval of an erosion and sediment control plan and a land-disturbing permit.

B. Issuance of a land-disturbing permit is conditioned on an approved erosion and sediment control plan and certification that the plan be implemented as approved, which shall be presented at the time of application for such a permit, and in addition, the requirements of § 87-10 of this chapter concerning a performance bond, cash escrow, letter of credit, any combination thereof, or such other legal arrangements as is acceptable under the provisions of § 87-10 and to the fees herein levied for land-disturbing activities.

C. The Board of Supervisors shall establish by resolution a fee schedule for review and inspection of erosion and sediment plans. These fees shall be paid at the time of filing the erosion and sediment control plans.

§ 87-12. Agreement with towns.

The governing body is authorized to enter into agreements with incorporated towns in the county regarding the operation of an erosion and sediment control program within such towns.

§ 87-13. Changes to erosion and sedimentation plan.

An approved erosion and sedimentation plan may be changed by the plan approving authority when:

A. The on-site inspection indicates that the approved plan is inadequate to satisfy applicable regulations; or

B. 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 the proposed amendments to the plan are consistent with the requirements of this chapter, and are agreed to by the plan approving authority and the person responsible for carrying out the plans.

§ 87-14. Administrative appeal; judicial review. [Amended 3-28-2000 by Ord. No. 00-1]

A. Final decisions of the Program Administrator or the plan approving authority under this chapter shall be subject to review by the Virginia Soil and Water Conservation Board, provided that an appeal is filed within 30 days from the date of any written decision by the Program Administrator.

B. Final decisions of the Virginia Soil and Water Conservation Board under this chapter shall be subject to review by the court of record of the county, provided that an appeal is filed within 30 days from the date of the final written decision.

§ 87-15. Violations and penalties, injunction, and other legal actions.

A. A violation of this chapter shall be deemed a Class I misdemeanor.

B. Civil penalties.

(1) Any person who violates any provision of this chapter shall, upon a finding of the District Court of Shenandoah County, be assessed a civil penalty. The civil penalty for any one violation shall be $100, except that the civil penalty for commencement of land-disturbing activities without an approved plan shall be $1,000. Each day during which the violation is found to have existed shall constitute a separate offense.

(2) In no event shall a series of specified violations arising from the same operative set of facts result in civil penalties which exceed a total of $3,000, except that a series of violations arising from the commencement of land-disturbing activities without an approved plan for any site shall not result in civil penalties which exceed a total of $10,000.

(3) The adoption of civil penalties according to this schedule shall be in lieu of criminal sanctions and shall preclude the prosecution of such violation as a misdemeanor under Subsection A of this section. (Refer to the Code of Virginia, § 10.1-562J.)

C. The Program Administrator may apply to the Circuit Court of Shenandoah County to enjoin a violation or a threatened violation of this chapter, without the necessity of showing that an adequate remedy at law does not exist.

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

E. Without limiting the remedies which may be obtained in this section, any person violating or failing, neglecting or refusing to obey any injunction, mandamus or other remedy provided pursuant to this section shall be subject, in the discretion of the court, to a civil penalty not to exceed $2,000 for each violation. A civil action for such violation or failure may be brought by the Program Administrator. Any civil penalties assessed by a court shall be paid into the treasury of Shenandoah County, except that where the violator is the locality itself, or its agent, the court shall direct the penalty to be paid into the state treasury.

F. With the consent of any person who has violated or failed, neglected or refused to obey any regulation or any condition of a permit or any provision of this chapter, the administrative authority may provide for the payment of civil charges for violations in specific sums, not to exceed $2,000. Such civil charges shall be instead of any appropriate civil penalty which could be imposed under Subsection E.

G. Upon request of the administrative authority, the County Attorney shall take legal action to enforce the provisions of this chapter.

§ 87-16. Liability.

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