                                 CODE OF VIRGINIA

ADOPTION OF WETLANDS ZONING ORDINANCE; TERMS OF ORDINANCE (§ 28.2-1302)

Any county, city or town may adopt the following ordinance, which, after January
1, 2024, shall serve as the only wetlands zoning ordinance under which any
wetlands board is authorized to operate. Any county, city, or town that has
adopted the ordinance prior to January 1, 2024, shall amend the ordinance to
conform it to the ordinance contained herein by January 1, 2024.
		Wetlands Zoning Ordinance
		§ 1. The governing body of ________, acting pursuant to Chapter 13 (§
28.2-1300 et seq.) of Title 28.2 of the Code of Virginia, adopts this ordinance
regulating the use and development of wetlands.
		§ 2. As used in this ordinance, unless the context requires a different
meaning:
		&#8220;Back Bay and its tributaries&#8221; means the following, as shown on
the United States 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.
		&#8220;Commission&#8221; means the Virginia Marine Resources Commission.
		&#8220;Commissioner&#8221; means the Commissioner of Marine Resources.
		&#8220;Governmental activity&#8221; means any of the services provided by this
________ (county, city, or town) to its citizens for the purpose of maintaining
this ________ (county, city, or town), including but not limited to such
services as constructing, repairing, and maintaining roads; providing sewage
facilities and street lights; supplying and treating water; and constructing
public buildings.
		&#8220;Nonvegetated wetlands&#8221; 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.
		&#8220;North Landing River and its tributaries&#8221; means the following, as
shown on the 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; and all named and unnamed streams, creeks, and rivers
flowing into the North Landing River and the Chesapeake and Albemarle Canal
except West Neck Creek north of Indian River Road, Pocaty River west of
Blackwater Road, Blackwater River west of its forks located at a point
approximately 6400 feet due west of the point where Blackwater Road crosses the
Blackwater River at the village of Blackwater, and Millbank Creek west of
Blackwater Road.
		&#8220;Person&#8221; means any individual, corporation, partnership,
association, company, business, trust, joint venture, or other legal entity.
		&#8220;Vegetated wetlands&#8221; 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 times the mean tide range at the site of the proposed project in the
county, city, or town in question, and upon which is growing any 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), cattail (Typha spp.),
three-square (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&#8217;s tick (Bidens sp.), smartweed (Polygonum sp.),
arrowhead (Sagittaria spp.), sweet flag (Acorus calamus), water hemp (Amaranthus
cannabinus), reed grass (Phragmites communis), or switch grass (Panicum
virgatum).
		&#8220;Vegetated wetlands of Back Bay and its tributaries&#8221; or
&#8220;vegetated wetlands of the North Landing River and its tributaries&#8221;
means 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 aquatica),
bulrush (Scirpus validus), spikerush (Eleocharis sp.), cattail (Typha spp.),
three-square (Scirpus spp.), dock (Rumex sp.), smartweed (Polygonum sp.), yellow
pond lily (Nuphar sp.), royal fern (Osmunda regalis), marsh hibiscus (Hibiscus
moscheutos), beggar&#8217;s tick (Bidens sp.), arrowhead (Sagittaria sp.), water
hemp (Amaranthus cannabinus), reed grass (Phragmites communis), or switch grass
(Panicum virgatum).
		&#8220;Wetlands&#8221; means both vegetated and nonvegetated wetlands.
		&#8220;Wetlands board&#8221; or &#8220;board&#8221; means a board created
pursuant to § 28.2-1303 of the Code of Virginia.
		§ 3. The following uses of and activities in wetlands are authorized if
otherwise permitted by law:

1. 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;

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

3. 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 subdivision 1 of this section;

4. Other outdoor recreational activities, provided they do not impair the
natural functions or alter the natural contour of the wetlands;

5. Grazing, haying, and cultivating and harvesting agricultural, forestry, or
horticultural products;

6. Conservation, repletion, and research activities of the Commission, the
Virginia Institute of Marine Science, the Department of Wildlife Resources and
other conservation-related agencies;

7. The construction or maintenance of aids to navigation that are authorized by
governmental authority;

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

9. 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;

10. Governmental activity in wetlands owned or leased by the Commonwealth or a
political subdivision thereof;

11. The normal maintenance of man-made drainage ditches, provided that no
additional wetlands are covered. This subdivision does not authorize the
construction of any drainage ditch; and

12. The construction of living shoreline projects authorized pursuant to a
general permit developed under subsection B of § 28.2-104.1.
			§ 4. A. Any person who desires to use or develop any wetland within this
________ (county, city, or town), other than for the purpose of conducting the
activities specified in § 3 of this ordinance, shall first file an application
for a permit directly with the wetlands board or with the Commission.

   B. The permit application shall include the following: the name and address of
   the applicant; a detailed description of the proposed activities; a map, drawn
   to an appropriate and uniform scale, showing the area of wetlands directly
   affected, the location of the proposed work thereon, the area of existing and
   proposed fill and excavation, the location, width, depth, and length of any
   proposed channel and 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 statement indicating whether use of a
   living shoreline as defined in &#xA7; 28.2-104.1 for a shoreline management
   practice is not suitable, including reasons for the determination; 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; an estimate of cost; the primary
   purpose of the project; any 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 offsite effects; the completion date of the proposed
   work, project, or structure; and such additional materials and documentation
   as the wetlands board may require.

   C. A nonrefundable processing fee shall accompany each permit application. The
   fee shall be set by the applicable governing body with due regard for the
   services to be rendered, including the time, skill, and administrator&#8217;s
   expense involved.
   				&#xA7; 5. All applications, maps, and documents submitted shall be open
   for public inspection at the office designated by the applicable governing
   body and specified in the public notice for public hearing required under
   &#xA7; 6 of this ordinance.
   				&#xA7; 6. Not later than 60 days after receipt of a complete application,
   the wetlands board shall hold a public hearing on the application. The
   applicant, local governing body, Commissioner, 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 agency expressing an
   interest in the application shall be notified of the hearing. The Commission
   or board shall mail or email these notices not less than 20 days prior to the
   date set for the hearing. The board shall also (i) cause notice of the hearing
   to be published at least once in the seven days prior to such hearing in a
   newspaper of general circulation in this _________ (county, city, or town);
   (ii) post a notice of the hearing on its website at least 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
   specify the place or places within this ________ (county, city, or town) where
   copies of the application may be examined. The costs of 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.
   				&#xA7; 7. A. Approval of a permit application shall require the
   affirmative vote of three members of a five-member board or four members of a
   seven-member board.

   B. The chairman of the board, or in his absence the acting chairman, may
   administer oaths and compel the attendance of witnesses. Any person may
   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 30 days of the hearing. If
   the board fails to act within that time, the application shall be deemed
   approved. Within 48 hours of its determination, the board shall notify the
   applicant and the Commissioner of its determination. If the board fails to
   make a determination within the 30-day period, it shall promptly notify the
   applicant and the Commission that the application is deemed approved. For
   purposes of this section, &#8220;act&#8221; means taking a vote on the
   application. If the application receives less than four affirmative votes from
   a seven-member board or less than three affirmative votes from a five-member
   board, the permit shall be denied.

   D. If the board&#8217;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 same office as was
   designated under &#xA7; 5 of this ordinance.
   				&#xA7; 8. 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 a hearing held pursuant to this ordinance,
   suspend or revoke a permit if the applicant has failed to comply with any of
   the conditions or limitations set forth in the permit or has exceeded the
   scope of the work described in the application. The board may, after a
   hearing, suspend a permit if the applicant fails to comply with the terms and
   conditions set forth in the application.
   				&#xA7; 9. In fulfilling its responsibilities under this ordinance, 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 and any standards set by the
   Commonwealth in addition to those identified in &#xA7; 28.2-1308 to ensure
   protection of shorelines and sensitive coastal habitats from sea level rise
   and coastal hazards, including the provisions of guidelines and minimum
   standards promulgated by the Commission pursuant to &#xA7; 28.2-1301 of the
   Code of Virginia.
   				&#xA7; 10. A. In deciding whether to grant, grant in modified form, or
   deny 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. The impact of the proposed development on the public health, safety, and
welfare; and

3. The proposed development&#8217;s conformance with standards prescribed in §
28.2-1308 of the Code of Virginia and guidelines promulgated pursuant to §
28.2-1301 of the Code of Virginia.

   B. The board shall grant the permit if all of the following criteria are 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 &#xA7;
28.2-1308 of the Code of Virginia and guidelines promulgated pursuant to &#xA7;
28.2-1301 of the Code of Virginia.

3. The proposed activity does not violate the purposes and intent of this
ordinance or Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 of the Code of
Virginia.

   C. If the board finds that any of the criteria listed in subsection B of this
   section are not met, the board shall deny the permit application but allow the
   applicant to resubmit the application in modified form.
   				&#xA7; 11. The permit shall be in writing and signed by the chairman of
   the board or his authorized representative. A copy of the permit shall be
   transmitted to the Commissioner.
   				&#xA7; 12. No permit shall be granted without an expiration date
   established by the board. Upon proper application, the board may extend the
   permit expiration date.
   				&#xA7; 13. No permit granted by a wetlands board shall in any way affect
   the applicable zoning and land use ordinances of this ________ (county, city,
   or town) or the right of any person to seek compensation for any injury in
   fact incurred by him because of the proposed activity.

HISTORY: 1972, c. 711, §§ 62.1-13.1, 62.1-13.5; 1973, cc. 382, 388; 1975, c.
268; 1979, c. 418; 1982, c. 300; 1985, c. 541; 1988, c. 587; 1989, c. 360; 1992,
c. 836; 1994, c. 274; 2014, cc. 112, 143; 2020, cc. 809, 958; 2023, cc. 99, 195.