The city council of the City of Virginia Beach, acting pursuant to Chapter 13 (§ 28.2-1300 et seq.) of the Code of Virginia, reordains this article regulating the use and development of wetlands.

(Ord. No. 1804, 8-22-88; Ord. No. 2198, 12-8-92)

For the purposes of this article:

(a)

Commission means the Virginia Marine Resources Commission.

(b)

Commissioner means the commissioner of marine resources.

(c)

Person means any corporation, association, partnership, individual, company, business, trust, joint venture or other legal entity or any unit of government or agency thereof.

(d)

Governmental activity means any or all of the services provided by the City of Virginia Beach to its citizens for the purpose of maintaining this city, and shall include, but not be limited to, such services as constructing, repairing and maintaining roads, providing sewage facilities, supplying and treating water, providing street lights, and constructing public buildings.

(e)

Vegetated wetlands means lands lying between and contiguous to mean low water and an elevation above mean low water equal to the factor one and one-half (1½) times the mean tide range at the site of the proposed project in the City of Virginia Beach; and upon which is growing any one (1) or more of the following species: saltmarsh cordgrass (Spartina alterniflora), saltmeadow hay (Spartina patens), saltgrass (Distichlis spicata), black needlerush (Juncus roemerianus), saltwort (Salicornia spp.), sea lavender (Limonium spp.), marsh elder (Iva frutescens), groundsel bush (Baccharis halimifolia), wax myrtle (Myrica sp.), sea oxeye (Borrichia frutescens), arrow arum (Peltandra virginica), pickerelweed (Pontederia cordata), big cordgrass (Spartina cynosuroides), rice cutgrass (Leersia oryzoides), wildrice (Zizania aquatica), bulrush (Scirpus validus), spikerush (Eleocharis sp.), sea rocket (Cakile edentula), southern wildrice (Zizaniopsis miliacea), cattails (Typha spp.), three-squares (Scirpus spp.), buttonbush (Cephalanthus occidentalis), bald cypress (Taxodium distichum), black gum (Nyssa sylvatica), tupelo (Nyssa aquatica), dock (Rumex spp.), yellow pond lily (Nuphar sp.), marsh fleabane (Pluchea purpurascens), royal fern (Osmunda regalis), marsh hibiscus (Hibiscus moscheutos), beggar's tick (Bidens sp.), smartweeds (Polygonum sp.), arrowhead (Sagittaria spp.), sweet flag (Acorus calamus), water hemp (Amaranthus cannabinus), reed grass (Phragmites communis), and switch grass (Panicum virgatum).

(f)

Vegetated wetlands of Back Bay and its tributaries or vegetated wetlands of the North Landing River and its tributaries shall mean all marshes subject to flooding by normal and wind tides, but not hurricane or tropical storm tides, and upon which is growing any of the following species: saltmarsh cordgrass (Spartina alterniflora), saltmeadow hay (Spartina patens), black needlerush (Juncus roemerianus), marsh elder (Iva frutescens), groundsel bush (Baccharis halimifolia), wax myrtle (Myrica sp.), arrow arum (Peltandra virginica), pickerelweed (Pontederia cordata), big cordgrass (Spartina cynosuroides), rice cutgrass (Leersia oryzoides), wildrice (Zizania acquatica), bulrush (Scirpus validus), spikerush (Eleocharis sp.), cattails (Typha spp.), three-squares (Scirpus spp.), dock (Rumex sp.), smartweed (Polygonum sp.), yellow pond lily (Nuphar sp.), royal fern (Osmunda regalis), marsh hibiscus (Hibiscus moscheutos), beggar's tick (Bidens sp.), arrowhead (Sagittaria sp.), water hemp (Amaranthus cannabinus), reed grass (Phragmites communis), and switch grass (Panicum virgatum).

(g)

Wetlands board or board means the Wetlands Board of the City of Virginia Beach.

(h)

Back Bay and its tributaries means the following, as shown on the U.S. Geological Survey Quadrangle Sheets for Virginia Beach, North Bay, and Knotts Island: Back Bay north of the Virginia-North Carolina state line; Capsies Creek north of the Virginia-North Carolina state line; Deal Creek; Devil Creek; Nawney Creek; Redhead Bay, Sand Bay, Shipps Bay, North Bay, and the waters connecting them; Beggars Bridge Creek; Muddy Creek; Ashville Bridge Creek; Hells Point Creek; Black Gut; and all coves, ponds and natural waterways adjacent to or connecting with the above-named bodies of water.

(i)

North Landing River and its tributaries means the following, as shown on United States Geological Survey Quadrangle Sheets for Pleasant Ridge, Creeds, and Fentress: the North Landing River from the Virginia-North Carolina line to Virginia Highway 165 at North Landing Bridge; the Chesapeake and Albemarle Canal from Virginia Highway 165 at North Landing Bridge to the locks at Great Bridge; all named and unnamed streams, creeks and rivers flowing into the North Landing River and the Chesapeake and Albermarle Canal except the following: West Neck Creek north of Indian River Road; Pocaty River west of Blackwater Road; Blackwater Creek west of its forks located at a point approximately six thousand four hundred (6,400) feet due west of the point where the Blackwater Road crosses the Blackwater Creek at the village of Blackwater; and Mill Dam Creek west of Blackwater Road.

(j)

Nonvegetated wetlands means unvegetated lands lying contiguous to mean low water and between mean low water and mean high water, including those unvegetated areas of Back Bay and its tributaries and the North Landing River and its tributaries subject to flooding by normal and wind tides but not hurricane or tropical storm tides.

(k)

Wetlands means both vegetated and nonvegetated wetlands.

(l)

Ordinance means the Wetlands Zoning Ordinance [this article].

(Ord. No. 1804, 8-22-88; Ord. No. 2198, 12-8-92; Ord. No. 2268, 6-14-94)

The following uses of and activities in wetlands are authorized, if otherwise permitted by law:

(a)

The construction and maintenance of noncommercial catwalks, piers, boathouses, boat shelters, fences, duckblinds, wildlife management shelters, footbridges, observation decks and shelters and other similar structures; provided that such structures are so constructed on pilings as to permit the reasonably unobstructed flow of the tide and preserve the natural contour of the wetlands;

(b)

The cultivation and harvesting of shellfish, and worms for bait;

(c)

Noncommercial outdoor recreational activities, including hiking, boating, trapping, hunting, fishing, shellfishing, horseback riding, swimming, skeet and trap shooting, and shooting on shooting preserves; provided that no structure shall be constructed except as permitted in subsection (a) of this section;

(d)

Grazing, haying, and the cultivation and harvesting of agricultural, forestry or horticultural products;

(e)

Conservation, repletion and research activities of the commission, the Virginia Institute of Marine Science, the Department of Game and Inland Fisheries and other conservation-related agencies;

(f)

The construction or maintenance of aids to navigation which are authorized by governmental authority;

(g)

Emergency measures decreed by any duly appointed health officer of a governmental subdivision acting to protect the public health;

(h)

The normal maintenance and repair of, or addition to, presently existing roads, highways, railroad beds, or facilities abutting on or crossing wetlands, provided that no waterway is altered and no additional wetlands are covered;

(i)

Governmental activity on wetlands owned or leased by the commonwealth or a political subdivision thereof;

(j)

The normal maintenance of manmade drainage ditches, provided that no additional wetlands are covered; and provided further, that this subsection shall not be deemed to authorize construction of any drainage ditch; and

(k)

Outdoor recreational activities other than those set forth in subsection (c), provided that such activities do not impair the natural functions of the wetlands or alter the natural contour of the wetlands.

(l)

The construction of living shoreline projects authorized pursuant to a general permit developed under Va. Code § 28.2-104.1B.

(Ord. No. 1804, 8-22-84; Ord. No. 1903, 8-14-89; Ord. No. 2198, 12-8-92; Ord. No. 3360, 7-1-14)

(a)

Any person who desires to use or develop any wetland within this city, other than for those activities specified in section 1402, shall first file an application for a permit with the Wetlands Board.

(b)

An application shall be accompanied by plans and other data in reference to the proposed use or development. Plans shall be prepared, stamped and endorsed by such qualified professional licensed to practice in the Commonwealth of Virginia as the planning director may require; provided, however, that this requirement may be waived if, in the judgment of the planning director, the nature of the work to be performed renders it unnecessary. An application shall include the following: The name and address of the applicant; a detailed description of the proposed activity or activities; map, drawn to an appropriate and uniform scale, showing the area of wetland directly affected, with the location of the proposed work thereon, indicating the area of existing and proposed fill and excavation, the location, width, depth and length of any proposed channel the disposal area, and the location of all existing and proposed structures, sewage collection and treatment facilities, utility installations, roadways, and other related appurtenances or facilities, including those on adjacent uplands; a description of the type of equipment to be used and the means of equipment access to the activity site; the names and addresses of owners of record of adjacent land and known claimants of water rights in or adjacent to the wetland of whom the applicant has notice; and estimate of cost; the primary purpose of the project; and secondary purposes of the project, including further projects; the public benefit to be derived from the proposed project; a complete description of measures to be taken during and after the alteration to reduce detrimental off-site effects; the completion date of the proposed work, project, or structure and such additional materials and documentation as the Wetlands Board or planning director may require.

(c)

A nonrefundable processing fee to cover the cost of processing the application shall accompany each permit application. Such fee shall be in an amount of four hundred fifty dollars ($450.00). Such fees shall include the costs of notifications and advertising. Such fees shall apply to original applications, including after-the-fact applications, and to reapplications. A fee in an amount of two hundred thirty dollars ($230.00) shall be required for deferral of an application unless waived by the Board for good cause shown.

(Ord. No. 1804, 8-22-88; Ord. No. 1874, 5-15-89; Ord. No. 1883, 6-19-89; Ord. No. 2030, 2-12-91; Ord. No. 2152, 6-23-92; Ord. No. 2198, 12-8-92; Ord. No. 2811, 5-11-04; Ord. No. 3278, 5-14-13, eff. 7-1-13; Ord. No. 3544, 5-15-18, eff. 7-1-18)

All applications, maps, and documents relating thereto shall be open for public inspection at the planning department.

(Ord. No. 1804, 8-22-88; Ord. No. 2152, 6-23-62; Ord. No. 2198, 12-8-92)

Not later than sixty (60) days after receipt of a complete application, the Wetlands Board shall hold a public hearing on such application. The applicant, the city council, the commissioner, the owner of record of any land adjacent to the wetlands in question, known claimants of water rights in or adjacent to the wetlands in question, the Virginia Institute of Marine Science, the Department of Wildlife Resources, the State Water Control Board, the Department of Transportation, and any governmental agencies expressing an interest therein shall be notified of the hearing. The Board shall mail or email such notices not less than twenty (20) days prior to the date set for the hearing. The Board shall also cause notice of the hearing to be published at least once in the seven (7) days prior to such hearing in a newspaper of general circulation in the City of Virginia Beach; post a notice of the hearing on its website at least fourteen (14) days prior to such hearing; and (iii) provide a copy of such notice to the Commission for submittal to the Virginia Regulatory Town Hall. The published notice shall state that copies of the application may be examined in the planning department. The costs of such publication shall be paid by the applicant. In the event that the board submits a correct and timely notice for publication and the newspaper fails to publish the notice or publishes the notice incorrectly, the board shall be deemed to have met the notice requirements of this subsection so long as the notice is published in the next available edition of such newspaper. The applicant shall also erect, on the property which is the subject of the hearing, a sign of a size, type and lettering approved by the board. One such sign shall be posted within ten (10) feet of every public street adjoining the property, and within ten (10) feet of any body of water or waterway less than five hundred (500) feet wide adjoining the property or in such alternate location or locations as may be prescribed by the planning director. Such sign shall be erected not less than thirty (30) days before the Wetlands Board hearing and shall state the nature of the application and date and time of the hearing. Such signs shall be removed no later than five (5) days thereafter. In any case in which the Wetlands Board determines that the requirements of this section have not been met, the application shall be deferred or denied.

(Ord. No. 1804, 8-22-88; Ord. No. 2152, 6-23-92; Ord. No. 2198, 12-8-92; Ord. No. 2683, 1-22-02; Ord. No. 2741, 4-22-03; Ord. No. 3747, 7-11-23)

(a)

In acting on any application for a permit, the Board shall grant the application upon the affirmative vote of note less than four (4) members. If the application receives less than four (4) affirmative votes, the permit shall be denied.

(b)

The chairperson of the Board, or in his or her absence the acting chairperson, may administer oaths and compel the attendance of witnesses. Any person may appear and testify at the public hearing. Each witness at the hearing may submit a concise written statement of his testimony. The Board shall make a record of the proceeding, which shall include the application, any written statements of witnesses, a summary of statements of all witnesses, the findings and decision of the Board, and the rationale for the decision.

(c)

The Board shall make its determination within thirty (30) days of the hearing. If the Board fails to take a vote within such time, the application shall be deemed approved. Within forty-eight (48) hours of its determination, the Board shall notify the applicant and the commissioner of such determination. If the Board has not made a determination within such thirty-day period, it shall promptly notify the applicant and the commission that the application is deemed approved.

(d)

If the Board's decision is reviewed or appealed, the Board shall transmit the record of its hearing to the commissioner. Upon a final determination by the commission, the record shall be returned to the Board. The record shall be open for public inspection at the planning department.

(Ord. No. 1804, 8-22-88; Ord. No. 2152, 6-23-92; Ord. No. 2198, 12-8-92)

The Board may require a reasonable bond or letter of credit in an amount and with surety and conditions satisfactory to it, securing to the Commonwealth compliance with the conditions and limitations set forth in the permit. The Board may, after hearing as provided herein, suspend or revoke a permit if the Board finds that the applicant has failed to comply with any of the conditions or limitations set forth in the permit or has exceeded the scope of work described in the application. The Board, after hearing, may suspend a permit if the applicant fails to comply with the terms and conditions set forth in the application.

(Ord. No. 1804, 8-22-88; Ord. No. 2198, 12-8-92)

In fulfilling its responsibilities under this article, the Board shall preserve, and prevent the despoliation and destruction of, wetlands within its jurisdiction while accommodating necessary economic development in a manner consistent with wetlands preservation.

(Ord. No. 2198, 12-8-92)

(a)

In making its decision whether to grant, to grant in modified form, or to deny an application for a permit, the Board shall consider the following:

(1)

The testimony of any person in support of or in opposition to the permit application.

(2)

Impact of the development on the public health and welfare; and

(3)

The proposed development's conformance with the standards prescribed in section 1408.1 of this ordinance and Code of Virginia, section 28.2-1308 and the guidelines promulgated by the commission pursuant to Code of Virginia, section 28.2-1301.

(b)

The Board shall grant the permit if all of the following criteria have been met:

(1)

The anticipated public and private benefit of the proposed activity exceeds its anticipated public and private detriment;

(2)

The proposed development conforms with the standards prescribed in section 1408.1 of this ordinance and Code of Virginia, section 28.2-1308 and the guidelines promulgated by the commission pursuant to Code of Virginia, section 28.2-1301; and

(3)

The proposed activity does not violate the purposes and intent of this article or Code of Virginia, chapter 13 (§ 28.2-1300 et seq.) of Title 28.

If the Board finds that any of the criteria set forth in subdivisions (1), (2) and (3) of this subsection are not met, the Board shall deny the permit application with leave to the applicant to resubmit the application in modified form.

(Ord. No. 1804, 8-22-88; Ord. No. 2198, 12-8-92)

(a)

The following standards shall apply to the use and development of wetlands and shall be considered by the Board in the determination of whether any permit required by this article should be granted or denied:

(1)

Wetlands of primary ecological significance shall not be altered so that the ecological systems in the wetlands are unreasonably disturbed; and

(2)

To the maximum extent practical, development shall be concentrated in wetlands of lesser ecological significance, in vegetated wetlands which have been irreversibly disturbed before July 1, 1972, in nonvegetated wetlands which have been irreversibly disturbed prior to January 1, 1983, and in areas outside of wetlands.

(b)

The provisions of guidelines promulgated by the commission pursuant to Code of Virginia, section 28.2-1301 shall be considered in applying the standards set forth in subsection (a).

(c)

When any activity authorized by a permit issued pursuant to this article is conditioned upon compensatory mitigation for adverse impacts to wetlands, the applicant may be permitted to satisfy all or part of such mitigation requirements by the purchase of credits from any wetlands mitigation bank that has been approved and is operating in accordance with applicable federal guidance for the establishment, use and operation of mitigation banks as long as: (1) the bank is in the same U.S.G.S. cataloging unit, as defined by the Hydrologic Unit Map of the United States (U.S.G.S. 1980), or an adjacent cataloging unit within the same river watershed, as the impacted site; (2) the bank is ecologically preferable to practicable on-site and off-site individual mitigation options, as defined by federal wetlands regulations; and (3) the banking instrument, if approved after July 1, 1996, has been approved by a process that included public review and comment.

(d)

Where an agreed-upon permit condition requires the contribution of in-lieu fees to offset permitted wetland losses, the Wetlands Board shall credit the application for any in-lieu fee payments made to the Virginia Aquatic Resources Trust Fund or another decided wetlands restoration fund with reference to the same activity.

(Ord. No. 2198, 12-8-92; Ord. No. 2428, 10-29-96; Ord. No. 3360, 7-1-14)

The permit shall be in writing and signed by the chairperson of the Board or an authorized representative. The Board shall transmit a copy of the permit to the commissioner.

(Ord. No. 1804, 8-22-88; Ord. No. 2198, 12-8-92; Ord. No. 2305, 12-13-94; Ord. No. 3747, 7-11-23)

No permit granted by the Board shall in any way affect the applicable zoning and land use ordinances of the City of Virginia Beach or the right of any person to seek compensation for any injury in fact incurred by him or her because of the proposed activity.

(Ord. No. 2198, 12-8-92)

No permit shall be granted without an expiration date established by the Board; provided, however, that the Board may, upon proper application, extend the permit expiration date.

(Ord. No. 1804, 8-22-88; Ord. No. 2198, 12-8-92)

Notwithstanding the provisions of sections 1401 through 1410, sand grading activities are permitted on nonvegetated wetlands located on the Atlantic shoreline of the City of Virginia Beach if otherwise permitted by law, and if the city manager has declared an emergency and has issued a permit for this purpose. Such activities may be conducted without advance notice and hearing; however, the city manager, upon request and after reasonable notice as to time and place, shall hold a hearing to affirm, modify, amend, or cancel such emergency permit.

"Emergency," as used in this section, means a sudden and unforeseeable occurrence or condition, either as to its onset or as to its extent, of such disastrous severity or magnitude that governmental action beyond that authorized or contemplated by existing law is required because governmental inaction for the period required to amend the law to meet the exigency would work immediate and irrevocable harm upon the citizens of the commonwealth or some clearly defined portion or portions thereof.

(Ord. No. 2198, 12-8-92)

It shall be unlawful for any person to conduct any activity requiring a permit under this article without first having obtained a permit authorizing such activity.

(Ord. No. 2198, 12-8-92)

The Board shall have the authority to investigate all projects, whether proposed or ongoing, which alter wetlands within the City of Virginia Beach. The Board shall have the authority to prosecute violations of its orders, or any violation of any of the provisions of this article.

(Ord. No. 1804, 8-22-88; Ord. No. 2198, 12-8-92)

(a)

The Board chairperson may require a permittee to implement monitoring and reporting procedures the chairperson believes are reasonably necessary to ensure compliance with the provisions of the permit and this article.

(b)

The chairperson may require such on-site inspections as he or she believes are reasonably necessary to determine whether the measures required by the permit are being properly performed, or whether the provisions of this article are being violated. Prior to conducting any such inspections, notice shall be provided by the chairperson to the resident owner, occupier or operator, who shall be given an opportunity to accompany the site inspector. If it is determined that there is a failure to comply with the permit, the chairperson shall serve notice upon the permittee at the address specified in his or her application or by delivery at the site of the permitted activities to the person supervising such activities and designated in the permit to receive the notice. Such notice shall describe the measures needed for compliance and the time within which such measures shall be completed. Failure of such person to comply within the specified period, shall constitute a violation of this section.

(c)

Upon receipt of a sworn complaint of a substantial violation of this article from the designated enforcement officer of the Board, the Board chairperson may, in conjunction with or subsequent to a notice to comply as specified in subsection (b) of this section, issue an order requiring all or part of the activities on the site to be stopped until the specified corrective measures have been taken. In the case of an activity not authorized by this article, or where the alleged permit noncompliance is causing, or is in imminent danger of causing, significant harm to the wetlands protected by this article, such an order may be issued without regard to whether the person has been issued a notice to comply as specified in subsection (b) of this section. Otherwise, such an order may be issued only after the permittee 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 a period of seven (7) days from the date of service pending application by the enforcing authority, permittee, resident owner, occupier or operator for appropriate relief to the circuit court. Upon completion of corrective action, the order shall immediately be lifted. Nothing in this section shall prevent the Board chairperson from taking any other action specified in section 1413 of this ordinance.

(d)

Upon receipt of a sworn complaint of a substantial violation of this article from a designated enforcement officer, the Board may order that the affected site be restored to predevelopment conditions if the Board finds that restoration is necessary to recover lost resources or to prevent further damage to resources. The order shall specify the restoration necessary and establish a reasonable time for its completion. The order shall be issued only after a hearing with at least thirty (30) days' notice to the affected person of the hearing's time, place and purpose, and shall become effective immediately upon issuance by the Board. The Board shall require any scientific monitoring plan it believes necessary to ensure the successful reestablishment of wetlands protected by this article and may require that a prepaid contract acceptable to the Board be in effect for the purpose of carrying out the scientific monitoring plan. The Board may also require a reasonable bond or letter of credit in an amount and with surety and conditions satisfactory to it securing to the commonwealth compliance with the conditions set forth in the restoration order. The appropriate court, upon petition by the Board, may enforce such restoration order by injunction, mandamus, or other appropriate remedy. Failure to complete the required restoration is a violation of this article.

(e)

The duties of the Board chairperson prescribed in this section may be delegated to his or her designees; however, such designees shall not be designated enforcement officers.

(Ord. No. 1804, 8-22-88; Ord. No. 2198, 12-8-92)

Any person who knowingly, intentionally, or negligently violates any order, rule or regulation of the commission or any provision of this article, or any provision of a permit granted pursuant to Chapter 13 of Title 28.2 of the Code of Virginia or this article shall be guilty of a Class 1 misdemeanor. Following a conviction, every day the violation continues shall constitute a separate offense.

(Ord. No. 1804, 8-22-88; Ord. No. 2198, 12-8-92)

In addition to and not in lieu of the provisions of sections 1413, 1414, and 1415 of this ordinance, upon petition of the Wetlands Board to the circuit court, the court may enjoin an act which is unlawful under the provisions of this article and may order the defendant to take such steps as are necessary to restore, protect and preserve the wetlands involved.

(Ord. No. 1804, 8-22-88; Ord. No. 2198, 12-8-92)

Editor's note— section 1417 was repealed by Ord. No. 2198, adopted Dec. 8, 1992. The section was formerly derived from Ord. No. 1804, adopted Aug. 22, 1988, and dealt with exemptions to the provisions of this article.

(a)

Without limiting the remedies which may be obtained under this article, any person who violates any provision of this article or who violates or fails, neglects or refuse to obey any commission or Board notice, order, rule, regulation or permit condition authorized by this article or Chapter 13 of Title 28.2 of the Code of Virginia shall, upon such finding by the circuit court, be assessed a civil penalty not to exceed twenty-five thousand dollars ($25,000.00) for each day of violation. Such civil penalties may, at the discretion of the court, be directed to be paid into the treasury of the city for the purpose of abating environmental damage to or restoring wetlands in the city, in such manner as the court may, by order, direct; except that in the event the city or its agent is the violator, the court shall direct the penalty to be paid into the state treasury.

(b)

Without limiting the remedies which may be obtained under this article, and with the consent of any person who has violated any provision of this article or Chapter 13 of Title 28.2 of the Code of Virginia, or who has violated or failed, neglected or refused to obey any commission or Board order, rule, regulation or permit condition authorized by this article or Chapter 13 of Title 28.2 of the Code of Virginia, the Board may provide, in an order issued by the Board 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. Civil charges shall be in lieu of any appropriate civil penalty which could be imposed under subsection (a) of this section. Civil charges may be in addition to the cost of any restoration ordered by the commission or Board.

(Ord. No. 2198, 12-8-92)