Virginia Code
Title 10.1, Chapter 11 Forest
Resources and the Department of Forestry, Article 10.1
Water
Quality Law
§ 10.1-1181.1. Definitions.
§ 10.1-1181.2. Conduct of silvicultural activities; issuance of
special orders.
§ 10.1-1181.3. Civil penalties.
§ 10.1-1181.4. Final decisions; costs of hearing examiner.
§ 10.1-1181.5. Judicial review.
§ 10.1-1181.6. Enforcement by injunction.
§ 10.1-1181.7. Virginia Forest Water Quality Fund established;
administration and disbursements.
§ 10.1-1181.1. Definitions.
As used in this article unless the context requires a different
meaning:
"Operator" means any person that operates or has
operated or exercises or has exercised control over any
silvicultural activity.
"Owner" means any person that (i) owns or leases land
on which silvicultural activity occurs or has occurred or (ii) owns
timber on land on which silvicultural activity occurs or has
occurred.
"Pollution" means such alteration of the physical,
chemical or biological properties of any state waters resulting from
sediment deposition as will or is likely to create a nuisance or
render such waters (i) harmful or detrimental or injurious to the
public health, safety or welfare, or to the health of animals, fish
or aquatic life; (ii) unsuitable with reasonable treatment for use
as present or possible future sources of public water supply; or
(iii) unsuitable for recreational, commercial, industrial,
agricultural, or other reasonable uses.
"Silvicultural activity" means any forest management
activity, including but not limited to the harvesting of timber, the
construction of roads and trails for forest management purposes, and
the preparation of property for reforestation.
"Special order" means a special order or emergency
special order issued under subsection B or C of §
10.1-1181.2.
(1993, c. 948; 1998, c. 578.)
§ 10.1-1181.2. Conduct of silvicultural activities; issuance of
special orders.
A. If the State Forester determines that an owner or operator has
conducted or is conducting or has allowed or is allowing the conduct
of any silvicultural activity in a manner which is causing or is
likely to cause pollution, he may notify the owner or operator of
corrective measures needed to prevent or cease the pollution.
Failure of the State Forester to notify an owner or operator of such
corrective measures shall not impair the State Forester's authority
to issue special orders pursuant to subsection B or C of this
section.
B. The State Forester shall have the authority to issue special
orders to any owner or operator who has conducted or is conducting,
or has allowed or is allowing to be conducted, any silvicultural
activity in a manner which is causing or is likely to cause
pollution, to cease immediately all or part of the silvicultural
activities on the site, and to implement specified corrective
measures within a stated period of time. Such special orders are to
be issued only after a hearing with reasonable notice to the owner
or operator, or both, of the time, place and purpose thereof, and
they shall become effective not less than five days after service as
provided in subsection D of this section.
C. If the State Forester finds that any owner or operator is
conducting any silvicultural activity in a manner which is causing
or is likely to cause an alteration of the physical, chemical or
biological properties of any state waters resulting from sediment
deposition presenting an imminent and substantial danger to (i) the
public health, safety or welfare, or the health of animals, fish or
aquatic life; (ii) a public water supply; or (iii) recreational,
commercial, industrial, agricultural or other reasonable uses, the
State Forester may issue, without advance notice or hearing, an
emergency order directing the owner or operator, or both, to cease
immediately all or part of the silvicultural activities on the site,
and to implement specified corrective measures within a stated
period of time. The commencement of proceedings by the State
Forester for the issuance of a special order pursuant to subsection
B of this section shall not impair the State Forester's authority to
issue an emergency special order pursuant to this subsection. The
State Forester shall provide an opportunity for a hearing, after
reasonable notice as to the time and place thereof to the owner or
operator, to affirm, modify, amend or cancel such emergency special
order.
D. The owner or operator to whom such special order is directed
shall be notified by certified mail, return receipt requested, sent
to the last known address of the owner, or operator, or by personal
delivery by an agent of the State Forester, and the time limits
specified shall be counted from the date of receipt.
E. The State Forester shall not issue a special order to any
owner or operator who has incorporated generally acceptable water
quality protection techniques in the operation of silvicultural
activities, which techniques have failed to prevent pollution, if
the State Forester determines that the pollution is the direct
result of unusual weather events which could not have been
reasonably anticipated.
F. Any hearing required under this section shall be conducted in
accordance with § 2.2-4020
unless the parties consent to informal proceedings.
G. The State Forester shall not issue a notice under subsection A
of this section or a special silvicultural order or emergency
special order under subsection B or C of this section more than one
year after the silvicultural activity has occurred on the property.
H. Prior to or not later than three working days after the
commencement of an operation, the owner or operator shall notify the
State Forester of the commercial harvesting of timber. For the
purpose of this section, commercial harvesting of timber means the
harvesting of trees for the primary purpose of transporting to
another site for additional manufacturing. The notification may be
verbal or written and shall (i) specify the location and the actual
or anticipated date of the activity and (ii) be made in a manner
prescribed by the State Forester.
(1993, c. 948; 1998, c. 578.)
§ 10.1-1181.3. Civil penalties.
A. Any owner or operator who violates, or fails or refuses to
obey any special order may be assessed a civil penalty by the State
Forester. Such penalty shall not exceed $5,000 for each violation.
Each day of a continuing violation may be deemed a separate
violation for purposes of assessing penalties. In determining the
amount of the penalty, consideration shall be given to the owner's
or operator's history of noncompliance; the seriousness of the
violation, including any irreparable harm to the environment and any
hazard to the health or safety of the public; whether the owner or
operator was negligent; and the demonstrated good faith of the owner
or operator in reporting and remedying the pollution.
B. A civil penalty may be assessed by the State Forester only
after the owner or operator has been given an opportunity for a
hearing. Any hearing required under this section shall be conducted
in accordance with § 2.2-4020,
unless the parties consent to informal proceedings. If the owner or
operator fails to avail himself of the opportunity for a formal
hearing, a civil penalty shall be assessed by the State Forester
after the State Forester finds that a violation of a special order
has occurred and the amount of the civil penalty warranted, and
issues an order requiring that the civil penalty be paid.
C. If a person who is required to pay a civil penalty fails to do
so, the State Forester may transmit a true copy of the final order
assessing such penalty to the clerk of circuit court of any county
or city wherein it is ascertained that the person owing the penalty
has any estate; and the clerk to whom such copy is sent shall record
it, as a judgment is required by law to be recorded, and shall index
the same in the name of the Commonwealth as well as of the person
owing the penalty, and thereupon there shall be a lien in favor of
the Commonwealth on the property of the owner or operator within
such county or city in the amount of the penalty. The State Forester
may collect civil penalties which are owed in the same manner as
provided by law in respect to judgment of a court of record. All
civil penalties shall be paid into the state treasury and deposited
by the State Treasurer into the Virginia Forest Water Quality Fund
pursuant to § 10.1-1181.7.
D. With the consent of any owner or operator who has violated or
failed, neglected or refused to obey any special order of the State
Forester issued pursuant to subsection B or C of §
10.1-1181.2,
the State Forester may provide, in an order issued by the State
Forester against such owner or operator, for the payment of civil
charges for violations in specific sums, not to exceed the limit
specified in subsection A of this section. Such civil charges shall
be in lieu of any civil penalty which could be imposed under
subsection A of this section, and shall be placed in the Virginia
Forest Water Quality Fund pursuant to §
10.1-1181.7.
(1993, c. 948.)
§ 10.1-1181.4. Final decisions; costs of hearing examiner.
A. Any final order or decision rendered pursuant to this article
shall be reduced to writing and shall contain the explicit findings
of fact and conclusions of law upon which the decision is based.
Certified copies of the written decision shall be delivered or
mailed by certified mail to the parties affected by the decision.
B. If any final agency case decision is rendered following a
hearing conducted in accordance with § 2.2-4020
presided over by a hearing officer, the officer shall be paid by the
State Forester if the owner or operator is the prevailing party, or
by the owner or operator if the State Forester is the prevailing
party. The findings of the hearing officer shall specify which party
prevailed in the hearing.
(1993, c. 948.)
§ 10.1-1181.5. Judicial review.
Any person aggrieved by a final order or decision under this
article shall be entitled to judicial review thereof in accordance
with the Administrative Process Act (§ 2.2-4000
et seq.). The commencement of a proceeding for judicial review under
this section shall not, unless specifically ordered by the court,
operate as a stay of the order or decision of the State Forester.
(1993, c. 948.)
§ 10.1-1181.6. Enforcement by injunction.
Any owner or operator violating or failing, neglecting or
refusing to obey any special order issued by the State Forester may
be compelled in a proceeding instituted in any appropriate circuit
court by the State Forester to obey same and to comply therewith by
injunction, mandamus or other appropriate remedy, without the
necessity of showing that an adequate remedy at law does not exist.
(1993, c. 948.)
§ 10.1-1181.7. Virginia Forest Water Quality Fund established;
administration and disbursements.
A. There is hereby established a special, nonreverting fund in
the state treasury to be known as the Virginia Forest Water Quality
Fund, hereafter referred to as the Fund, to be used for education
efforts, promoting the implementation of proper silvicultural
activities, research, and monitoring the effectiveness of practices
to prevent erosion and sedimentation. The Fund shall be a nonlapsing
fund consisting of moneys received and credited to the Fund by the
State Treasurer for civil penalties and civil charges assessed
pursuant to this article. Interest earned on the Fund shall be
credited to the Fund. The Fund shall be established on the books of
the State Comptroller. Any money remaining in the Fund at the end of
the biennium shall not revert to the general fund but shall remain
in the Fund.
B. Disbursement of moneys from the Fund shall be made by the
State Comptroller at the written request of the State Forester.
Disbursements from the Fund may be made for the purposes set forth
in subsection A of this section, including, but not limited to,
personnel, administrative, and equipment costs and expenses directly
incurred by the Department in connection with such purposes.
(1993, c. 948.)
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