NCS000504_11_Land Disturbance Ordinance 9-1407_20200207

§9-1407 SOIL EROSION & SEDIMENTATION CONTROL
a. General Provisions
(1) Title. This Ordinance may be cited as the Town's Soil Erosion & Sedimentation Control
Ordinance. It is referred to herein as "Erosion & Sedimentation Control Requirements."
(2) Purpose. This Ordinance is adopted for the purposes of -
A. Regulating certain land disturbing activity to control accelerated erosion and
sedimentation in order to prevent the pollution of water and other damage to lakes,
watercourses, and other public and private property by sedimentation; and
B. Establishing procedures through which these purposes can be fulfilled.
(3) Definitions. As used in this Ordinance, unless the context clearly indicates otherwise,
definitions apply as provided in Article S Interpretations & Definitions.
(4) Applicability. Except for the exemptions noted in this Section, the erosion and
sedimentation control regulations of this Article apply to all land disturbances exceeding
one (1) acre in disturbed surface area.
A. Jurisdiction. This Ordinance shall apply to land disturbing activity within the
jurisdiction of the Town.
B. Borrow & Waste Areas. When the person conducting the land disturbing activity is
also the person conducting the borrow or waste disposal activity, areas from which
borrow is obtained and which are not regulated by the provisions of the Mining Act
of 1971, and waste areas for surplus materials other than landfills regulated by the
North Carolina Department of Environmental Quality's (DEQ) Division of Waste
Management shall be considered as part of the land disturbing activity where the
borrow material is being used or from which the waste material originated. When the
person conducting the land disturbing activity is not the person obtaining the borrow
and/or disposing of the waste, these areas shall be considered a separate land
disturbing activity.
C. Access & Haul Roads. Temporary access and haul roads, other than public roads,
constructed or used in connection with any land disturbing activity shall be
considered a part of such activity.
D. Plan Approval Requirement for Land Disturbing Activity. No person shall undertake
any land disturbing activity subject to this Ordinance without first obtaining a plan
approval from the Town.
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E. Protection of Property. Persons conducting land disturbing activity shall take all
reasonable measures to protect all public and private property from damage caused by
such activity.
F. Conflict with Federal, State, County or Other Town Regulations. Whenever conflicts
exist between federal, state, or local laws, ordinance, or rules, the more restrictive
provision shall apply.
G. Plan Approval Exceptions. Notwithstanding the general requirement to obtain a plan
approval prior to undertaking land disturbing activity, a plan approval shall not be
required for land disturbing activity that does not exceed one (1) acre in surface area.
In determining the area, lands under one (1) or diverse ownership being developed as
a unit will be aggregated.
H. Exclusions from Regulated Land Disturbing Activity. Notwithstanding the general
applicability of this Ordinance to all land disturbing activity, this Ordinance shall not
apply to the following types of land disturbing activity:
i. Agricultural Activities. An activity, including production and activities relating
or incidental to the production of crops, grains, fruits, vegetables, ornamental
and flowering plants, dairy, livestock, poultry and all other forms of agriculture
undertaken on agricultural land for the production of plants and animals useful
to man, including, but not limited to:
1. Forage and sod crops, grain and feed crops, tobacco, cotton, and peanuts
2. Dairy animals and dairy products
3. Poultry and poultry products
4. Livestock, including beef cattle, sheep, swine, horses, ponies, mules, and
goats
5. Bees and apiary products
6. Fur -producing animals
7. Mulch, ornamental plants and other horticultural products. For the purposes
of this Section, "mulch" means substances composed primarily of plant
remains or mixtures of such substances.
ii. Forestland Activities. An activity undertaken on forestland for the production
and harvesting of timber and timber products and conducted in accordance with
best management practices set out in Forest Practice Guidelines Related to
Water Quality, as adopted by the Department. If land disturbing activity
undertaken on forestland for the production and harvesting of timber and timber
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products is not conducted in accordance with Forest Practice Guidelines Related
to Water Quality, the provisions of this Ordinance shall apply to such activity
and any related land disturbing activity on the tract.
iii. Mining. An activity for which a permit is required under the Mining Act of
1971, Article 7 of Chapter 74 of the North Carolina General Statutes.
iv. Activities Under State Jurisdiction. A land disturbing activity over which the
State has exclusive regulatory jurisdiction as provided in North Carolina
General Statute 113A-56(a), including land disturbing activities that are:
1. Conducted by local, state or federal government
2. Conducted by persons having the power of eminent domain
3. Funded in whole or part by the state or federal government.
v. Emergency Activities. An activity which is essential to protect human life during
an emergency.
b. General Standards
(1) Mandatory Standards for Land Disturbing Activity.
A. Whenever land disturbing activities disturb more than one (1) acre on a tract, an
approved erosion and sedimentation control plan and land disturbance permit is
required. Any person conducting a land disturbing activity must install erosion and
sedimentation control devices and practices that are sufficient to retain the sediment
generated by the land disturbing activity within the boundaries of the tract during the
development of said tract.
B. All soil erosion and sedimentation control plans and measures must conform to the
minimum applicable standards specified in the most current North Carolina's Erosion
and Sediment Control Planning and Design Manual and the most current Town's
Standard Specifications & Construction Details. Erosion control devices must be
installed to prevent any offsite sedimentation for any construction site regardless of the
size of the land disturbance.
C. Buffer
i. Standard Buffer. No land disturbing activity during periods of construction or
improvement to land shall be permitted in proximity to a lake or natural
watercourse unless a buffer is provided along the margin of the watercourse of
sufficient width to confine visible siltation within the 25 percent (25%) of the
buffer nearest the land disturbing activity.
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1. Projects On, Over, or Under Water. This subdivision shall not apply to a
land disturbing activity in connection with the construction of facilities
to be located on, over, or under a lake or natural watercourse.
2. Buffer Measurement. Unless otherwise provided, the width of a buffer
zone is measured horizontally from the edge of the water to the nearest
edge of the disturbed area, with the 25 percent (25%) of the strip nearer
the land disturbing activity containing natural or artificial means of
confining visible siltation.
D. Operations in Lakes or Natural Watercourses. Land disturbing activity in connection
with construction in, on, over, or under a lake or natural watercourse shall minimize the
extent and duration of disruption of the stream channel. Where relocation of a stream
forms an essential part of the proposed activity, the relocation shall minimize
unnecessary changes in the stream flow characteristics.
E. Graded Slopes & Fills. The angle for graded slopes and fills shall be no greater than the
angle that can be retained by vegetative cover or other adequate erosion control devices
or structures. In any event, slopes left exposed will, within seven (7) calendar days
from the last date of land disturbing activity, be planted or otherwise provided with
temporary or permanent ground cover, devices, or structures sufficient to restrain
erosion. The angle for graded slopes and fills must be demonstrated to be stable. Stable
is the condition where the soil remains in its original configuration, with or without
mechanical constraints.
F. Fill Material. Unless a permit from DEQ's Division of Waste Management to operate a
landfill is on file for the official site, acceptable fill material shall be free of organic or
other degradable materials, masonry, concrete and brick in sizes exceeding 12 inches,
and any materials which would cause the site to be regulated as a landfill by the State
of North Carolina.
G. Ground Cover. Whenever land disturbing activity that will disturb more than one (1)
acre is undertaken on a tract, the person conducting the land disturbing activity shall
install erosion and sedimentation control devices and practices that are sufficient to
retain the sediment generated by the land disturbing activity within the boundaries of
the tract during construction upon and development of said tract, and shall plant or
otherwise provide a permanent ground cover sufficient to restrain erosion after
completion of construction or development. Except as provided in this Section,
provisions for a ground cover sufficient to restrain erosion must be accomplished
within 14 calendar days from the last land disturbing activity.
H. The land disturbing activity shall be conducted in accordance with the approved erosion
and sedimentation control plan.
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I. Prior Plan Approval. No person shall initiate any land disturbing activity that will
disturb more than one (1) acre on a tract unless, 30 or more days prior to initiating the
activity, a plan for the activity is filed with and approved by the Town. The land
disturbing activity may be initiated and conducted in accordance with the plan once the
plan has been approved. The Town shall forward to the Director of the Division of
Water Resources a copy of each plan for a land disturbing activity that involves the
utilization of ditches for the purpose of de -watering or lowering the water table of the
tract.
c. Plan Review & Approval Procedures
(1) Erosion & Sedimentation Control Plans
A. Plan Submission. A plan shall be prepared for all land disturbing activities subject to
this Ordinance whenever the proposed activity will disturb more than one (1) acre on a
tract. See the Town's Standard Specifications & Construction Details for submittal
requirements.
B. Financial Responsibility & Ownership. Plans may be disapproved unless accompanied
by an authorized statement of financial responsibility and ownership. This statement
shall be signed by the person financially responsible for the land disturbing activity or
his/her attorney in fact. The statement shall include the mailing and street addresses of
the principal place of business of the following:
i. The Person Financially Responsible. If the person financially responsible is not
a resident of Wake County, North Carolina, a Wake County agent must be
designated in the statement for the purpose of receiving notice of compliance or
noncompliance with the plan, the act, this Ordinance, or rules or orders adopted
or issued pursuant to this Ordinance.
ii. The Owner of The Land
iii. Authorized Agents. Except as provided in this Section, if the applicant is not the
owner of the land to be disturbed, the erosion and sedimentation control plan
application must include the owner's written consent to submit an erosion and
sedimentation control plan and to conduct the anticipated land disturbing
activity.
1. If the applicant is not the owner of the land to be disturbed and the
anticipated land disturbing activity involves the construction of utility lines
for the provision of water, sewer, gas, telecommunications, or electrical
service, the erosion and sedimentation control plan application may be
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submitted without the written consent of the owner of the land, so long as
the owner of the land has been provided prior notice of the project.
C. Fees. Payment of fees, as established by the Town Board of Commissioners, must be
made with plan submittal.
D. Content. The plan required by this Section shall contain architectural and engineering
drawings, maps, assumptions, calculations, and narrative statements as needed to
adequately describe the proposed development of the tract and the measures planned to
comply with the requirements of this Ordinance. Plan content may vary to meet the
needs of specific site requirements. Detailed guidelines for plan preparation may be
obtained from the Town on request.
E. Timeline for Decisions on Plans. The Town will review each complete plan submitted
to them and within 30 days of receipt thereof will notify the person submitting the plan
that it has been approved, approved with modifications, approved with performance
reservations, or disapproved. Failure to approve, approve with modifications, or
disapprove a complete plan within 30 days of receipt shall be deemed approved. The
Town will review each revised plan submitted to them and within 15 days of receipt
thereof will notify the person submitting the plan that it has been approved, approved
with modifications, approved with performance reservations, or disapproved. Failure to
approve, approve with modifications, or disapprove a revised plan within 15 days of
receipt shall be deemed approved.
F. Approval. The Town shall only approve a plan upon determining that it complies with
all applicable state and local regulations for erosion and sedimentation control.
Approval assumes the applicant's compliance with the federal and state water quality
laws, regulations, and rules. The Town shall condition approval of plans upon the
applicant's compliance with federal and state water quality laws, regulations, and rules.
G. Disapproval for Content. The Town may disapprove a plan or draft plan based on its
content. A disapproval based upon a plan's content must specifically state in writing the
reasons for disapproval.
H. Other Disapprovals. The Town shall disapprove an erosion and sedimentation control
plan if implementation of the plan would result in a violation of rules adopted by the
Environmental Management Commission to protect riparian buffers along surface
waters.
i. The Town may disapprove an erosion and sedimentation control plan or
disapprove a transfer of a plan under this Section upon finding that an applicant
or a parent, subsidiary, or other affiliate of the applicant:
1. Is conducting or has conducted land disturbing activity without an approved
plan or has received notice of violation of a plan previously approved by the
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Commission, the Town or the County pursuant to this Article and has not
complied with the notice within the time specified in the notice.
2. Has failed to pay a civil penalty assessed pursuant to this Article or a local
ordinance adopted pursuant to this Article by the time the payment is due.
3. Has been convicted of a misdemeanor pursuant to North Carolina General
Statute I I3A-64(b) or any criminal provision of a local ordinance adopted
pursuant to this Article.
4. Has failed to substantially comply with state rules or local ordinances and
regulations adopted pursuant to this Article.
ii. In the event that an erosion and sedimentation control plan or a transfer of a
plan is disapproved by the Town pursuant this Section, the Town shall so notify
the Director of the Division of Energy, Mineral, and Land Resources within 10
days of the disapproval. The Town shall advise the applicant or the proposed
transferee and the Director of Engineering in writing as to the specific reasons
that the plan was disapproved. Notwithstanding the provisions of this Section,
the applicant may appeal the Town's disapproval of the plan directly to the
Commission. For purposes of this Section, an applicant's record or the proposed
transferee's record may be considered for only the two (2) years prior to the
application date.
I. The Town may transfer an erosion and sedimentation control plan approved pursuant to
this Section without the consent of the plan holder to a successor -owner of the property
on which the permitted activity is occurring or will occur as provided in this subsection.
The Town may transfer a plan if all the following conditions are met:
i. The successor -owner of the property submits to the Town a written request for
the transfer of the plan and an authorized statement of financial responsibility
and ownership.
ii. The Town finds all of the following:
1. The plan holder is one (1) of the following:
a. A natural person who is deceased.
b. A partnership, limited liability corporation, corporation, or any other
business association that has been dissolved.
c. A person who has been lawfully and finally divested of title to the
property on which the permitted activity is occurring or will occur.
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d. A person who has sold the property on which the permitted activity
is occurring or will occur.
2. The successor -owner holds title to the property on which the permitted
activity is occurring or will occur.
3. The successor -owner is the sole claimant of the right to engage in the
permitted activity.
4. There will be no substantial change in the permitted activity.
iii. The plan holder shall comply with all terms and conditions of the plan until
such time as the plan is transferred.
iv. The successor -owner shall comply with all terms and conditions of the plan
once the plan has been transferred.
v. Notwithstanding changes to law made after the original issuance of the plan,
the Town may not impose new or different terms and conditions in the plan
without the prior express consent of the successor -owner. Nothing in this
subsection shall prevent the Town from requiring a revised plan pursuant to
North Carolina General Statute 113A-54.1(b).
J. Failure to File a Plan. Any person engaged in land disturbing activity who fails to file
a plan in accordance with this Ordinance, or who conducts a land disturbing activity
except in accordance with provisions of an approved plan shall be deemed in violation
of this Ordinance.
(2) Basic Control Objectives
An erosion and sedimentation control plan may be disapproved if the plan fails to address
the following control objectives:
A. Identify Critical Areas. On -site areas which are subject to severe erosion, and off -site
areas which are especially vulnerable to damage from erosion and/or sedimentation, are
to be identified and receive special attention.
B. Limit Time of Exposure. All land disturbing activities are to be planned and conducted
to limit exposure to the shortest feasible time.
C. Limit Exposed Areas. All land disturbing activity is to be planned and conducted to
minimize the size of the area to be exposed at any one (1) time.
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D. Control Surface Water. Surface water runoff originating upgrade of exposed areas
should be controlled to reduce erosion and sediment loss during the period of exposure.
E. Control Sedimentation. All land disturbing activity is to be planned and conducted so as
to prevent off -site sedimentation damage.
F. Manage Stormwater Runoff. When the increase in the velocity of stormwater runoff
resulting from a land disturbing activity is sufficient to cause accelerated erosion of the
receiving watercourse, a plan is to include measures to control the velocity to the point
of discharge so as to minimize accelerated erosion of the site and increased
sedimentation of the stream.
(3) Design & Performance Standard
A. Except as provided in this Ordinance, erosion and sedimentation control measures,
structures, and devices shall be planned, designed, and constructed to provide
protection from the calculated maximum peak rate of runoff from the 10-year storm.
Runoff rates shall be calculated using the procedures in the United States Department
of Agriculture (USDA), Soil Conservation Service's "National Engineering Field
Manual for Conservation Practices", or other acceptable calculation procedures.
B. High Quality Water (HQW) Zones. In HQW zones, the following design standards shall
apply:
Limit on Uncovered Area. Uncovered areas in HQW zones shall be limited at
any time to a maximum total area of 20 acres within the boundaries of the tract.
Only the portion of the land disturbing activity within an HQW zone shall be
governed by this Section. Larger areas may be uncovered within the boundaries
of the tract with the written approval of the Director of Engineering.
ii. Maximum Peak Rate of Runoff Protection. Erosion and sedimentation control
measures, structures, and devices within HQW zones shall be planned,
designed, and constructed to provide protection from the runoff of the 25-year
storm which produces the maximum peak rate of runoff as calculated according
to procedures in the USDA Soil Conservation Service's "National Engineering
Field Manual for Conservation Practices" or according to procedures adopted
by any other agency of this state or the United States or any generally
recognized organization or association.
iii. Settling Efficiency. Sediment basins within HQW zones shall be designed and
constructed such that the basin will have a settling efficiency of at least 70% for
the 40 micron (0.04 millimeter) size soil particle transported into the basin by
the runoff of that two (2)-year storm which produces the maximum peak rate of
runoff as calculated according to procedures in the USDA Soil Conservation
Service's "National Engineering Field Manual for Conservation Practices" or
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according to procedures adopted by any other agency of this state or the United
States or any generally recognized organization or association.
iv. Grade. Newly constructed open channels in HQW zones shall be designed and
constructed with side slopes no steeper than two (2) horizontal to one (1)
vertical if a vegetative cover is used for stabilization unless soil conditions
permit a steeper slope or where the slopes are stabilized by using mechanical
devices, structural devices or other acceptable ditch liners. In any event, the
angle for side slopes shall be sufficient to restrain accelerated erosion.
v. Ground Cover. Ground cover sufficient to restrain erosion must be provided for
any portion of a land disturbing activity in a HQW zone within 14 calendar days
from the last land disturbing activity.
(4) Stormwater Outlet Protection. If condition (i) or (ii) of this paragraph cannot be met, then
the receiving watercourse to and including the discharge point shall be designed and
constructed to withstand the expected velocity anywhere the velocity exceeds the "prior to
development" velocity by 10 percent (10%).
A. Intent. Stream banks and channels downstream from any land disturbing activity shall
be protected from increased degradation by accelerated erosion caused by increased
velocity of runoff from the land disturbing activity.
B. Performance standard. Persons shall conduct land disturbing activity so that the post
construction velocity of the 10-year storm runoff in the receiving watercourse to the
discharge point does not exceed the greater of:
The velocity established by the Table — Maximum Permissible Velocities set out
within this subsection; or
ii. The velocity of the 10-year storm runoff in the receiving watercourse prior to
development.
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Table — Maximum Permissible Velocities
Material
Feet per Second (FPS)
Meters per Second (MPS)
Fine Sand Noncolloidal
2.5
0.8
Sandy Loam oncolloidal
2.5
0.8
Silt Loam oncolloidal
3.0
0.9
Ordinary Firm Loam
3.5
1.1
Fine Gravel
5.0
1.5
Stiff Clay (Very Colloidal
5.0
1.5
Graded, Loam to Cobbles
oncolloidal
5.0
1.5
Graded, Silt to Cobbles
Colloidal
5.5
1.7
Alluvial Silts oncolloidal
3.5
1.1
Alluvial Silts Colloidal
5.0
1.5
Coarse Gravel oncolloidal
6.0
1.8
Cobbles & Shingles
5.5
1.7
Shales & Hard Pans
6.0
1.8
Source - Adapted from recommendations by Special Committee on Irrigation Research, American Society of Civil Engineers, 1926,
for channels with straight alignment. For sinuous channels, multiply allowable velocity by 0. 95for slightly sinuous, by 0.9 for
moderately sinuous channels, and by 0.8 for highly sinuous channels.
C. Acceptable Management Measures. Measures applied alone or in combination to satisfy
the intent of this Section are acceptable if there are no objectionable secondary
consequences. The Town recognizes that the management of stormwater runoff to
minimize or control downstream channel and bank erosion is a developing technology.
Innovative techniques and ideas will be considered and may be used when shown to
have the potential to produce successful results. Some alternatives, while not
exhaustive, are to:
i. Avoid increases in surface runoff volume and velocity by including measures to
promote infiltration to compensate for increased runoff from areas rendered
impervious;
ii. Avoid increases in stormwater discharge velocities by using vegetated or
roughened swales and waterways in place of closed drains and high velocity
paved sections;
iii. Provide energy dissipaters at outlets of storm drainage system to reduce flow
velocities to the point of discharge;
iv. Protect watercourses subject to accelerated erosion by improving cross sections
and/or providing erosion -resistant lining; and
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v. Upgrade or replace the receiving device structure, or watercourse such that it
will receive and conduct the flow to a point where it is no longer subject to
degradation from the increased rate of flow or increased velocity.
D. Exceptions. This rule shall not apply where it can be demonstrated to the Town that
stormwater discharge velocities will not create an erosion problem in the receiving
watercourse.
(5) Existing Uncovered Areas
A. All uncovered areas existing on the effective date of this Ordinance which resulted
from land disturbing activity, exceed one (1) acre, are subject to continued accelerated
erosion, and are causing off -site damage from sedimentation, shall be provided with
ground cover or other protective measures, structures, or devices sufficient to restrain
accelerated erosion and control off -site sedimentation.
B. The Town shall serve upon the landowner or other person in possession or control of
the land a written notice to comply with the act, this Ordinance, a rule or order adopted,
or issued pursuant to the Act by the Commission or by the Town. The notice to comply
shall be sent by registered or certified mail, return receipt requested, or other means
provided in North Carolina General Statute IA-1, Rule 4. The notice will set forth the
measures needed to comply and will state the time within which such measures must be
completed. In determining the measures required and the time allowed for compliance,
the authority serving notice shall take into consideration the economic feasibility,
technology, and quantity of work required, and shall set reasonable and attainable time
limits of compliance.
C. The Town reserves the right to require preparation and approval of a plan in any
instance where extensive control measures are required.
D. This rule shall not require ground cover on cleared land forming the future basin of a
planned reservoir.
(6) Plan Appeals
A. Except as provided in this Ordinance, the appeal of a disapproval or approval with
modifications of a plan shall be governed by the provisions set forth in Article P
Administrative Powers & Duties.
B. In the event that a plan is disapproved pursuant to Section (c)(1)(H) of this Ordinance,
the applicant may appeal the Town's disapproval of the plan directly to the
Commission.
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(7) Display of Plan Approval. A plan approval issued under this Article shall be prominently
displayed until all construction is complete, all permanent sedimentation and erosion
control measures are installed, and the site has been stabilized. A copy of the approved plan
shall be kept on file at the job site.
(8) Required Revisions. After approving a plan, if the Town, either upon review of such plan
or on inspection of the job site, determines that a significant risk of accelerated erosion or
off -site sedimentation exists, the Town shall require a revised plan. Pending the preparation
of the revised plan, work shall cease or shall continue under conditions outlined by the
appropriate authority. If following commencement of a land disturbing activity pursuant to
an approved plan, the Town determines that the plan is inadequate to meet the requirements
of this Ordinance, the Town may require any revision of the plan that is necessary to
comply with this Ordinance.
(9) Amendment to a Plan. Applications for amendment of a plan in written and/or graphic
form may be made at any time under the same conditions as the original application. Until
such time as said amendment is approved by the Town, the land disturbing activity shall
not proceed except in accordance with the plan as originally approved.
(10) Validity of Plan, Lapse of Approval. An approved erosion and sedimentation control plan
is valid for one (1) calendar year from the date of approval. If a land disturbance permit has
not been obtained within the one (1) year period, the erosion control and sedimentation
plan approval becomes null and void.
d. Land Disturbance Permit Requirements
(1) Land Disturbance Permits may be obtained upon satisfaction of the following items:
A. Erosion & Sedimentation Control Plan Approval
B. Preconstruction Meeting. A preconstruction meeting is required following construction
plan approval and prior to initiating land disturbing activity.
C. Fees. Payment of fees established by the Town Board for the administration of these
erosion control regulations must be made prior to scheduling of a preconstruction
meeting.
(2) Compliance Inspection. An approved compliance inspection must be issued confirming
that initial erosion and sedimentation controls have been installed in accordance with the
approved plan.
A. Grading, other than for installation of erosion and sedimentation control measures, is
prohibited prior to completion of an approved compliance inspection.
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(3) Notice of Activity Initiation. No person may initiate a land disturbing activity before
notifying the agency that issued the plan approval of the date that land disturbing activity
will begin.
(4) Permit Validity
A. The land disturbance permit is valid for two (2) calendar years. If no construction
activity has begun within the two (2) year period, the land disturbance permit becomes
null and void. If construction activity has begun, but an approved compliance
inspection has not been renewed within the two (2) years, the land disturbance permit
must be renewed.
B. The land disturbance permit may be renewed for a maximum of two (2) years as either
a single two (2)-year extension or in two (2) one (I) -year extensions by submitting a
request for a permit extension 30 days prior to the expiration date and payment of all
applicable land disturbance fees.
i. Permit renewal fees for the one (I) -year extension will be prorated at 50% of
the two (2)-year renewal fee. Extension of the original permit approval beyond
the maximum two (2)-year renewal period is not allowed. Any change of
ownership must be reflected in a revised financial responsibility form.
C. Projects shall be phased using multiple permits. The phasing of a project under a single
permit is not permissible. Each project phase requires a separate and independent plan
submittal, review fees, permit approval and payment of applicable land disturbance
fees.
D. Failure to renew the land disturbance permit, in accordance with this Section, is the
same as failure to submit an erosion and sedimentation control plan in accordance with
this Article and may be subject to a civil penalty per the Adopted Fee Schedule for that
fiscal year. Any person who is subject to civil penalty under this subsection may be
subject to additional civil penalties for violation of any other provisions of this Article,
or rules or orders adopted or issued pursuant to the erosion and sedimentation control
regulations of this Article.
i. All site improvements, as shown on the approved plan, must be completed by
the end of the one-year renewal period and before an approved permit
completion is issued, if the land disturbance permit is not renewed for an
additional 1-year period as allowed by this Section. Any person who fails to
meet the conditions of the renewal will be subject to a civil penalty as set forth
in the Adopted Fee Schedule for that fiscal year.
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ii. If the property associated with the approved plan is sold in whole or in part
before all conditions of the approved plan are met, the land disturbance permit
holder must provide notice to the new owner of conditions of the land
disturbance permit and provide The Town with revised financial responsibility
forms.
e. Inspection Requirements
(1) Self -Inspections. The landowner, the financially responsible party, or the landowner's or
the financially responsible party's agent shall perform an inspection of the area covered by
the plan after each phase of the plan has been completed and after establishment of
temporary ground cover in accordance with North Carolina General Statute 113A-57(2).
The person who performs the inspection shall maintain and make available a record of the
inspection at the site of the land disturbing activity. The record shall set out any significant
deviation from the approved erosion control plan, identify any measures that may be
required to correct the deviation, and document the completion of those measures. The
record shall be maintained until permanent ground cover has been established as required
by the approved erosion and sedimentation control plan. The inspections required by this
Subsection shall be in addition to inspections required by North Carolina General Statute
113A-61.1.
A. Where inspections are required by this Ordinance and North Carolina General Statute
113A-54.1(e), the following apply:
i. The person who performs the inspection shall make a record of the site
inspection by documenting the following items:
1. All of the erosion and sedimentation control measures, practices and devices
shown on the approved erosion and sedimentation plan. Such documentation
shall be accomplished by initialing and dating each measure, practice, or
device shown on a copy of the plan or by completing, dating, and signing an
itemized inspection report. This documentation is required only upon the
initial installation or a modification after initial installation.
2. The completion of any phase of grading for all graded slopes and fills shown
on the approved erosion and sedimentation control plan, specifically noting
the location and condition. Such documentation shall be accomplished by
initialing and dating a copy of the approved erosion and sedimentation
control plan or by completing, dating, and signing an inspection report.
3. The location of temporary or permanent ground cover and that the
installation of the ground cover does not significantly deviate from the
approved erosion and sedimentation control plan. Such documentation shall
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be accomplished by initialing and dating a copy of the approved erosion and
sedimentation control plan or by completing, dating, and signing an
inspection report.
4. The maintenance and repair requirements for all temporary and permanent
erosion and sedimentation control measures, practices, and devices have
been performed. Such documentation shall be accomplished by completing,
dating, and signing an inspection report (the general stormwater permit
monitoring form may be used to verify the maintenance and repair
requirements).
5. Any significant deviations from the approved erosion and sedimentation
control plan, actions required to correct the deviation, and completion of the
corrective actions. Such documentation shall be accomplished by initialing
and dating a copy of the approved erosion and sedimentation control plan or
by completing, dating, and signing an inspection report. A significant
deviation means an omission, alteration, or relocation of an erosion or
sedimentation control measure that prevents the measure from performing as
intended.
ii. The documentation, whether on a copy of the approved erosion and
sedimentation control plan or an inspection report, shall include the name,
address, affiliation, telephone number, and signature of the person conducting
the inspection and the date of the inspection. Any relevant licenses and
certifications may also be included. Any documentation of inspections that
occur on a copy of the approved erosion and sedimentation control plan shall
occur on a single copy of the plan and that plan shall be made available on the
site. Any inspection reports shall also be made available on the site.
iii. The inspection shall be performed during or after each of the following phases
of a plan:
1. Installation of perimeter erosion and sedimentation control measures.
2. Clearing and grubbing of existing ground cover.
3. Completion of any phase of grading of slopes or fills that requires provision
of temporary or permanent ground cover pursuant to North Carolina General
Statute 113A-57(2).
4. Completion of storm drainage system.
5. Completion of construction or development.
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6. Quarterly; until the establishment of permanent ground cover sufficient to
restrain erosion or until the financially responsible party has conveyed
ownership or control of the tract of land for which the erosion and
sedimentation control plan has been approved and the agency that approved
the plan has been notified. If the financially responsible party has conveyed
ownership or control of the tract of land for which the erosion and
sedimentation control plan has been approved, the new owner or person in
control shall conduct and document inspections quarterly until the
establishment of permanent ground cover sufficient to restrain erosion.
(2) Maintenance Responsibility. During the development of a site, the person conducting the
land disturbing activity shall install and maintain all temporary and permanent erosion and
sedimentation control measures as required by the approved plan or any provision of this
Ordinance, the act, or any order adopted pursuant to this Ordinance or the act. After site
development, the landowner or person in possession or control of the land shall install
and/or maintain all necessary permanent erosion & sedimentation control measures, except
those measures installed within a road or street right-of-way or easement accepted for
maintenance by a governmental agency.
(3) Additional Measures. Whenever the Town determines that significant erosion and
sedimentation is occurring as a result of land disturbing activity, despite application and
maintenance of protective practices, the person conducting the land disturbing activity will
be required to and shall take additional protective action.
f. Enforcement
(1) Inspections & Investigations
A. Inspection. Agents, officials, or other qualified persons authorized by the Town, will
periodically inspect land disturbing activities to ensure compliance with the act, this
Ordinance, or rules or orders adopted or issued pursuant to this Ordinance, and to
determine whether the measures required in the plan are effective in controlling erosion
and sedimentation resulting from land disturbing activity. Notice of the right to inspect
shall be included in the certificate of approval of each plan.
B. Willful Resistance, Delay, or Obstruction. No person shall willfully resist, delay, or
obstruct an authorized representative, employee, or agent of the Town while that person
is inspecting or attempting to inspect a land disturbing activity under this Section.
C. Notice of Violation. If the Town determines that a person engaged in land disturbing
activity has failed to comply with the act, this Ordinance, or rules, or orders adopted or
issued pursuant to this Ordinance, a notice of violation shall be served upon that person.
The notice may be served by any means authorized under North Carolina General
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Statute lA-1, Rule 4. The notice shall specify a date by which the person must comply
with the act, or this Ordinance, or rules, or orders adopted pursuant to this Ordinance,
and inform the person of the actions that need to be taken to comply with the act, this
Ordinance, or rules or orders adopted pursuant to this Ordinance. Any person who fails
to comply within the time specified is subject to additional civil and criminal penalties
for a continuing violation as provided in North Carolina General Statute 113A-64 and
this Ordinance.
D. Initial Notice. If the person engaged in the land -disturbing activity has not received a
previous notice of violation under this Section, the Town shall deliver the notice of
violation in person and shall offer assistance in developing corrective measures. If the
Town is unable to deliver the notice of violation in person within 15 days following
discovery of the violation, the notice of violation may be served in the manner
prescribed for service of process by North Carolina General Statute 1A-1, Rule 4, and
shall include information on how to obtain assistance in developing corrective
measures.
E. Investigation. The Town shall have the power to conduct such investigation as it may
reasonably deem necessary to carry out its duties as prescribed in this Ordinance, and
for this purpose to enter at reasonable times upon any property, public or private, for
the purpose of investigating and inspecting the sites of any land disturbing activity.
F. Statements & Reports. The Town shall also have the power to require written
statements, or filing of reports under oath, with respect to pertinent questions relating to
land disturbing activity.
(2) Penalties
A. Civil Penalties
Civil Penalty for a Violation. Any person who violates any of the provisions of
this Ordinance, or rule or order adopted or issued pursuant to this Ordinance, or
who initiates or continues a land disturbing activity for which a plan is required
except in accordance with the terms, conditions, and provisions of an approved
Plan, is subject to a civil penalty. The maximum civil penalty amount that the
Town may assess per violation will be determined by the Adopted Fee Schedule
for that fiscal year. A civil penalty may be assessed from the date of the
violation. Each day of a continuing violation shall constitute a separate
violation. A civil penalty may be assessed from the date of the violation. Each
day of a continuing violation shall constitute a separate violation. When the
person has not been assessed any civil penalty under this subsection for any
previous violation and that person abated continuing environmental damage
resulting from the violation within 180 days from the date of the notice of
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violation, the maximum cumulative total civil penalty assessed under this
subsection for all violations associated with the land -disturbing activity for
which the erosion and sedimentation control plan is required is twenty-five
thousand dollars ($25,000).
ii. Civil Penalty Assessment Factors. The Town shall determine the amount of the
civil penalty based upon the following factors:
1. The degree and extent of harm caused by the violation.
2. The cost of rectifying the damage.
3. The amount of money the violator saved by noncompliance.
4. Whether the violation was committed willfully.
5. The prior record of the violator in complying of failing to comply with this
Ordinance.
iii. Notice of Civil Penalty Assessment. The Town shall provide notice of the civil
penalty amount, the reason for assessing the penalty, the option available to that
person to request a remission of the civil penalty under North Carolina General
Statute 113A-64.2, the date of the deadline for that person to make the
remission request regarding this particular penalty, and, when that person has
not been assessed any civil penalty under this Section for any previous
violation, the date of the deadline for that person to abate continuing
environmental damage resulting from the violation in order to be subject to the
maximum cumulative total civil penalty under this subsection. The notice of
assessment shall be served by any means authorized under North Carolina
General Statute lA-1, Rule 4. A notice of assessment by the Town shall direct
the violator to either pay the assessment or contest the assessment within 30
days by filing a petition for hearing with the Town as directed by Article P
Administrative Powers & Duties.
iv. Appeals
Final Decision. The final decision shall be made by the governing body of
the Town of Fuquay-Varina in accordance with Article P Administrative
Powers & Duties.
2. The following factors shall be considered in determining whether a civil
penalty remission request will be approved.
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a. Whether one (1) or more of the civil penalty assessment factors in
North Carolina General Statute 113A-64(a)(3) were wrongly applied
to the detriment of the petitioner.
b. Whether the petitioner promptly abated continuing environmental
damage resulting from the violation.
c. Whether the violation was inadvertent or a result of an accident.
d. Whether the petitioner had been assessed civil penalties for any
previous violations.
e. Whether payment of the civil penalty will prevent payment for
necessary remedial actions or would otherwise create a significant
financial hardship.
f. The assessed property tax valuation of the petitioner's property upon
which the violation occurred, excluding the value of any structures
located on the property.
3. The petitioner has the burden of providing information concerning the
financial impact of a civil penalty on the petitioner and the burden of
showing the petitioner's financial hardship.
4. The Town may remit the entire amount of the penalty only when the
petitioner has not been assessed civil penalties for previous violations and
payment of the civil penalty will prevent payment for necessary remedial
actions.
5. Appeal of Final Decision. A party dissatisfied with the Final Decision shall
appeal such decision to the North Carolina Sedimentation Control
Commission (NCSCC) pursuant to Title 15, Chapter 413, Section .0018(d) of
the North Carolina Administrative Code and as provided by North Carolina
General Statute 113A-61(c).
v. Collection. If payment is not received within 30 days after it is due and a
request for remission has not been filed per North Carolina General Statute
113A-64.2, the Town may institute a civil action to recover the amount of the
assessment. The civil action may be brought in to the Superior Court of Wake
County, or the violator's residence or principal place of business is located.
Such civil actions must be filed within three (3) years of the date the assessment
was due. An assessment that is not contested is due when the violator is served
with a notice of assessment. An assessment that is contested is due at the
conclusion of the administrative and judicial review of the assessment.
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vi. Credit of Civil Penalties. The clear proceeds of civil penalties collected by the
Town under this Section shall be remitted to the Civil Penalty and Forfeiture
Fund in accordance with North Carolina General Statute 115C-457.2.
B. Criminal Penalties. Any person who knowingly or willfully violates any provision of
this Ordinance, or rule or order adopted or issued pursuant to this Ordinance, or who
knowingly or willfully initiates or continues a land disturbing activity for which a plan
is required except in accordance with the terms, conditions, and provisions of an
approved plan, shall be guilty of a Class 2 Misdemeanor which may include a fine not
to exceed the amount in the Adopted Fee Schedule for that fiscal year as provided in
North Carolina General Statute 113A-64.
(3) Injunctive Relief
A. Violation. Whenever the Town has reasonable cause to believe that any person is
violating or threatening to violate any ordinance, rule, regulation or order adopted or
issued by the Town, or any term, condition, or provision of an approved plan, it may,
either before or after the institution of any other action or proceeding authorized by this
Ordinance, institute a civil action in the name of the Town, for injunctive relief to
restrain the violation or threatened violation. The action shall be brought in the superior
court of Wake County.
B. Abatement of Violation. Upon determination by a court that an alleged violation is
occurring or is threatened, the court shall enter any order or judgment that is necessary
to abate the violation, to ensure that restoration is performed, or to prevent the
threatened violation. The institution of an action for injunctive relief under this Section
shall not relieve any party to the proceedings from any civil or criminal penalty
prescribed for violations of this Ordinance.
(4) Restoration After Noncompliance. The Town may require a person who engaged in a land
disturbing activity and failed to retain sediment generated by the activity, as required by
North Carolina General Statute 113A-57 (3), to restore the waters and land affected by the
failure so as to minimize the detrimental effects of the resulting pollution by sedimentation.
This authority is in addition to any other civil or criminal penalty or injunctive relief
authorized under this Ordinance.
(5) Severability. If any section or sections of this Ordinance is/are held to be invalid or
unenforceable, all other sections shall nevertheless continue in full force and effect.
g. Effective Date. This Ordinance becomes effective upon local program approval by the NCSCC.
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