                                 CODE OF VIRGINIA

NOTICES TO COMPLY AND STOP WORK ORDERS (§ 62.1-44.15:37)

A. When the VESMP authority or the Board determines that there is a failure to
comply with the permit conditions or conditions of land-disturbance approval, or
to obtain an approved plan, permit, or land-disturbance approval prior to
commencing land-disturbing activities, the VESMP authority or the Board may
serve a notice to comply upon the owner, permittee, or person conducting
land-disturbing activities without an approved plan, permit, or approval. Such
notice to comply shall be served by delivery by facsimile, email, or other
technology; by mailing with confirmation of delivery to the address specified in
the permit or land-disturbance application, if available, or in the land records
of the locality; or by delivery at the site to a person previously identified to
the VESMP authority by the permittee or owner. The notice to comply shall
specify the measures needed to comply with the permit or land-disturbance
approval conditions, or shall identify the plan approval or permit or
land-disturbance approval needed to comply with this article, and shall specify
a reasonable time within which such measures shall be completed. In any instance
in which a required permit or land-disturbance approval has not been obtained,
the VESMP authority or the Board may require immediate compliance. In any other
case, the VESMP authority or the Board may establish the time for compliance by
taking into account the risk of damage to natural resources and other relevant
factors. Notwithstanding any other provision in this subsection, a VESMP
authority or the Board may count any days of noncompliance as days of violation
should the VESMP authority or the Board take an enforcement action. The issuance
of a notice to comply by the Board shall not be considered a case decision as
defined in &#xA7; 2.2-4001.

B. Upon failure to comply within the time specified in a notice to comply issued
in accordance with subsection A, a locality serving as the VESMP authority or
the Board may issue a stop work order requiring the owner, permittee, or person
conducting the land-disturbing activities without an approved plan or required
permit or land-disturbance approval to cease all land-disturbing activities
until the violation has ceased, or an approved plan and required permits and
approvals are obtained, and specified corrective measures have been completed.
The VESMP authority or the Board shall lift the order immediately upon
completion and approval of corrective action or upon obtaining an approved plan
or any required permits or approvals.

C. When such an order is issued by the Board, it shall be issued in accordance
with the procedures of the Administrative Process Act (&#xA7; 2.2-4000 et seq.).
Such orders shall become effective upon service on the person in the manner set
forth in subsection A. However, where the alleged noncompliance is causing or
presents an imminent and substantial danger of causing harmful erosion of lands
or sediment deposition in waters within the watersheds of the Commonwealth or
otherwise substantially impacting water quality, the locality serving as the
VESMP authority or the Board may issue, without advance notice or procedures, an
emergency order directing such person to cease immediately all land-disturbing
activities on the site and shall provide an opportunity for a hearing, after
reasonable notice as to the time and place thereof, to such person, to affirm,
modify, amend, or cancel such emergency order.

D. The owner, permittee, or person conducting a land-disturbing activity may
appeal the issuance of any order to the circuit court of the jurisdiction
wherein the violation was alleged to occur or other appropriate court.

E. An aggrieved owner of property sustaining pecuniary damage from soil erosion
or sediment deposition resulting from a violation of an approved plan or
required land-disturbance approval, or from the conduct of a land-disturbing
activity commenced without an approved plan or required land-disturbance
approval, may give written notice of an alleged violation to the locality
serving as the VESMP authority and to the Board.

   1. If the VESMP authority has not responded to the alleged violation in a
   manner that causes the violation to cease and abates the damage to the
   aggrieved owner&#8217;s property within 30 days following receipt of the
   notice from the aggrieved owner, the aggrieved owner may request that the
   Board conduct an investigation and, if necessary, require the violator to stop
   the alleged violation and abate the damage to the property of the aggrieved
   owner.

   2. Upon receipt of the request, the Board shall conduct an investigation of
   the aggrieved owner&#8217;s complaint. If the Board&#8217;s investigation of
   the complaint indicates that (i) there is a violation and the VESMP authority
   has not responded to the violation as required by the VESMP and (ii) the VESMP
   authority has not responded to the alleged violation in a manner that causes
   the violation to cease and abates the damage to the aggrieved owner&#8217;s
   property within 30 days from receipt of the notice from the aggrieved owner,
   then the Board shall give written notice to the VESMP authority that the Board
   intends to issue an order pursuant to subdivision 3.

   3. If the VESMP authority has not instituted action to stop the violation and
   abate the damage to the aggrieved owner&#8217;s property within 10 days
   following receipt of the notice from the Board, the Board is authorized to
   issue an order requiring the owner, person responsible for carrying out an
   approved plan, or person conducting the land-disturbing activity without an
   approved plan or required land-disturbance approval to cease all
   land-disturbing activities until the violation of the plan has ceased or an
   approved plan and required land-disturbance approval are obtained, as
   appropriate, and specified corrective measures have been completed. The Board
   also may immediately initiate a program review of the VESMP.

   4. Such orders are to be issued in accordance with the procedures of the
   Administrative Process Act (&#xA7; 2.2-4000 et seq.) and they shall become
   effective upon service on the person by mailing, with confirmation of
   delivery, sent to his address specified in the land records of the locality,
   or by personal delivery by an agent of the Board. Any subsequent identical
   mail or notice that is sent by the Board may be sent by regular mail. However,
   if the Board finds that any such violation is grossly affecting or presents an
   imminent and substantial danger of causing harmful erosion of lands or
   sediment deposition in waters within the watersheds of the Commonwealth, it
   may issue, without advance notice or hearing, an emergency order directing
   such person to cease all land-disturbing activities on the site immediately
   and shall provide an opportunity for a hearing, after reasonable notice as to
   the time and place thereof, to such person, to affirm, modify, amend, or
   cancel such emergency order.

   5. If a person who has been issued an order or an emergency order is not
   complying with the terms thereof, the Board may institute a proceeding in the
   appropriate circuit court for an injunction, mandamus, or other appropriate
   remedy compelling the person to comply with such order. 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 in accordance with the provisions of &#xA7;
   62.1-44.15:48. Any civil penalties assessed by a court shall be paid into the
   state treasury and deposited by the State Treasurer into the Stormwater Local
   Assistance Fund established pursuant to &#xA7; 62.1-44.15:29.1.

HISTORY: 1989, cc. 467, 499, § 10.1-603.11; 2004, c. 372; 2012, cc. 785, 819.
2013, cc. 756, 793; 2016, cc. 68, 758.