Agricultural Exemptions to Erosion and Sediment Control




Information regarding the exemption of farm roads from Erosion and Sediment Control Regulation




Tucker, Foley, Davis, Kamptner, Graham







June 6, 2007



ACTION:                                   INFORMATION:   



     ACTION:                              INFORMATION:  X










At the May 2nd Board meeting, Board members requested information on how newly constructed roads could be exempted from County regulation under the “farm road exemption” and later used for development purposes.  This executive summary provides that information.  



STRATEGIC PLAN:   Effectively manage growth and development




To understand the exemption of “farm roads” from County regulation, staff considers it important to start with the State enabling authority.  The authority for the County’s Erosion and Sediment Control Program comes from the State’s Erosion and Sediment Control Law (Title 10.1, Chapter 5, Article 4).  In that law, there are 13 specific types of activities exempted from regulation set forth in the definition of a “land disturbing activity,” including the following:

7.    Tilling, planting or harvesting of agricultural, horticultural or forest crops, or livestock feedlot operations; including a specific list of engineering operations;

10.  Agricultural engineering operations including but not limited to the construction of terraces, terrace outlets, check dams, desilting basins, dikes, ponds not required to comply with the provisions of the Virginia Dam Safety Act, ditches, strip-cropping, lister furrowing, contour cultivating, contour furrowing, land drainage and land irrigation;.

No state law, regulation, or guideline expressly exempts agricultural roads.  However, staff has been consistently advised by the Department of Conservation and Recreation that it interprets the State agricultural exemption to include agricultural roads if those roads are used only for exempted activities. For example, a farm road to a pasture would be exempted but a farm road that also provides access to the house on the property would not be exempted.  The County’s Water Protection Ordinance includes the State exemptions and also includes a definition of “Agricultural Road” so that the Ordinance is consistent with the State’s interpretation of the law.  The County Code definition reads:


 Agricultural road. The term “agricultural road” means a road or portion of a road that is constructed exclusively for access to agricultural land and is located on or serves a lot which is not the subject of a pending or approved preliminary or final plat, preliminary or final site plan, zoning map amendment to a non-agricultural zoning district, or a special use permit for a use or activity not directly related to agriculture.

One of the most common complaints staff hears is that a property owner is abusing this exemption.  Staff admits it is very easy to abuse the exemption because it is practically impossible to prove the owner’s intent violates the ordinance without a confession by the property owner.   For example, a property owner can build a pond for his aesthetic use claiming it will be used to water cattle and then decide against raising cattle.  Similarly, he could build a road to access his fields, claiming an agricultural exemption, and decide to convert the land to another use as soon as he finishes construction of the road.   There is nothing in the State law that would prevent a property owner from changing his mind once the clearing and grading is complete.  With respect to the most egregious violation, converting agricultural roads to a non-exempt use, the County has attempted to address this with the following provision in the Water Protection Ordinance:


17-200 A.4.  for the prior construction of an agricultural road, when the owner submits a preliminary or final plat, preliminary or final site plan, an application for a zoning map amendment to a non-agricultural zoning district, or an application for a special use permit for a use or activity not directly related to agriculture for the lot on which the agricultural road is located or serves, if both: (i) the plat, plan or application was submitted within twenty-four (24) months after construction of the agricultural road began; and (ii) the program authority determines that the dimensions and alignment of the agricultural road substantially correspond to the dimensions and alignment of a road proposed on the plat, plan or any document submitted as part of an application.


Basically, staff can require a plan for anyone converting the road to a non-exempt use within two years of starting construction of the road. Staff notes this provision provides a limited ability to manage the abuse.  First, it is after the fact.  That means the environmental damage of sediment leaving the property is complete and there is no sediment control during construction.  Second, as the use is established, requiring the building of the sediment control measures at that point will basically require the disturbance of additional land with no benefit.  Similarly, requiring the building of a different road will only repeat the land disturbance and increase the impact.   Third, it is noted this ordinance provision does not apply to a building permit, which is the most common circumstance for this type of activity.   Fourth, this is limited to activities where a plan is submitted within two years.  If the property owner waits one day longer, the provision doesn’t apply.  Fifth, it should be noted that even if the County requires an after the fact permit, the property owner has avoided the cost of installing the sediment control measures and County oversight for construction.  That provides a significant financial incentive to abuse this exemption in the State law.  


Finally, staff would note Albemarle County is hardly unique in experiencing this type of abuse.  This same concern is heard from many localities and the State is certainly aware of it.   This State exemption remains despite the reported problems.  Staff speculates that the issue is that the removal of this exemption would require regulation of farmers, and the State has not found that the correction of the abuse justifies the cost of regulation for legitimate farmers.  However, Virginia Code § 10.1-570 authorizes any locality to adopt more stringent regulations than those imposed by the State, so the Water Protection Ordinance could be amended to either remove the exemption for agricultural roads or to regulate them under certain circumstances where there is a high risk that erosion will impact adjacent properties or sensitive environmental resources (e.g., when they are within a certain distance of a waterway or an adjoining property).  Staff is also studying how the Water Protection Ordinance’s provision for “erosion impact areas” can be better utilized to regulate otherwise exempt activities not subject to the County’s erosion and sediment control regulations if those activities are found to be adversely impacting other properties.  This authority can not prevent unregulated land disturbing activity, but it may allow the County to require the landowner to correct activities that are persistently impacting other properties with damaging sediment. 



There are no direct budget impacts for the County from this activity.   Indirect impacts, however, can include degraded natural resources, which devalue the County, and/or the County addressing the impacts by increased funding for stream buffers and stream mitigation.



Staff is providing this material for information only.  If there is an interest in adopting more stringent regulations in the Water Protection Ordinance, staff can discuss this with the Board when changes to the erosion and sediment control regulations are considered later this year.  



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