NCS000515_16Appendix D_20200921

Appendix

Sedimentation Pollution Control Act of 1973 (SPCA)
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Sedimentation Pollution Control Act of 1973 (SPCA)
(As amended through 1999) North Carolina General Statutes Chapter
113A Article 4
§ 113A-50. Short title.
This Article shall be known as and may be cited as the "Sedimentation
Pollution Control Act of 1973." (1973, c. 392, s. 1.)
§ 113A-51. Preamble.
The sedimentation of streams, lakes and other waters of this State constitutes a major pollution problem.
Sedimentation occurs from the erosion or depositing of soil and other materials into the waters, principally frc
construction sites and road maintenance. The continued development of this State will result in an intensifica
of pollution through sedimentation unless timely and appropriate action is taken. Control of erosion and
sedimentation is deemed vital to the public interest and necessary to the public health and welfare, and
expenditures of funds for erosion and sedimentation control programs shall be deemed for a public purpose.
the purpose of this Article to provide for the creation, administration, and enforcement of a program and for tt
adoption of minimal mandatory standards which will permit development of this State to continue with the lea
detrimental effects from pollution by
sedimentation. In recognition of the desirability of early coordination of sedimentation control planning, it is th
intention of the General Assembly that preconstruction conferences be held among the affected parties, subj
to the availability of staff.(1973, c. 392, s. 2; 1975, G. 647, s. 3.)
§ 113A-52. Definitions.
As used in this Article, unless the context otherwise requires:
(1) Repealed by Session Laws 1973, c. 1417, s. 1.
(1 a) "Affiliate" has the same meaning as in 17 Code of Federal Regulations § 240.12(b)-2 (1 June 1993 Editi
which defines "affiliate" as a person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control of another person.
(2) "Commission" means the North Carolina Sedimentation Control Commission.
(3) "Department" means the North Carolina Department of Environment and Natural Resources.
(4) "District" means any Soil and Water Conservation District created pursuant to Chapter 139, North Carolin
General Statutes.
(5) "Erosion" means the wearing away of land surface by the action of wind, water, gravity, or any combinatic
thereof.
(6) "Land -disturbing activity" means any use of the land by any person in residential, industrial, educational,
institutional or commercial development, highway and road construction and maintenance that results in a
change
in the natural cover or topography and that may cause or contribute to sedimentation.
(7) "Local government" means any county, incorporated village, town, or city, or any combination of counties.
incorporated villages, towns, and cities, acting through a joint program pursuant to the provisions of this
Article.
(7a) "Parent" has the same meaning as in 17 Code of Federal Regulations § 240.12(b)-2 (1 June 1993 Editic
which defines "parent" as an affiliate that directly, or indirectly through one or more intermediaries, controls
another person.
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(8) "Person" means any individual, partnership, firm, association, joint venture, public or private corporation, i
estate, commission, board, public or private institution, utility, cooperative, interstate body, or other
legal entity.
(9) "Secretary" means the Secretary of Environment and Natural Resources.
(10) "Sediment" means solid particulate matter, both mineral and organic, that has been or is being transport
by water, air, gravity, or ice from its site of origin.
(10a) Subsidiary" has the same meaning as in 17 Code of Federal Regulations § 240.12(by2 (1 June 1993
Edition), which defines "subsidiary" as an affiliate that is directly, or indirectly through one or more
intermediaries, controlled by another person.
(10b) "Tract" means all contiguous land and bodies of water being disturbed or to be disturbed as a unit,
regardless of ownership.
(11) "Working days" means days exclusive of Saturday and Sunday during which weather conditions or soil
conditions permit land -disturbing activity to be undertaken.(1973, c. 392, s. 3; c. 1417, s. 1; 1975, c. 647,
s. 1; 1977, c. 771, s. 4; 1989, c. 179, s. 1; c. 727, s. 218(60); 1989 (Reg. Sess., 1990), c. 1004, s. 19(b); 199
275, s. 1; 1993 (Reg. Sess., 1994), c. 776, s. 1; 1997, c. 443, s. 11A.119(a).)
§ 113A-52.01. Applicability of this Article.
This Article shall not apply to the following land -disturbing activities:
(1) Activities, including the breeding and grazing of livestock, undertaken on agricultural land for the product(
plants and animals useful to man, including, but not limited to:
(a) Forages and sod crops, grains and feed crops, tobacco, cotton, and peanuts.
(b) Dairy animals and dairy products.
(c) Poultry and poultry products.
(d) Livestock, including beef cattle, llamas, sheep, swine, horses, ponies, mules, and goats.
(e) Bees and apiary products.
(f) Fur producing animals.
(2) Activities 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.
(3) Activities for which a permit is required under the Mining Act of 1971, Article 7 of Chapter 74 of the Gener
Statutes.
(4) For the duration of an emergency, activities essential to protect human life.(1993 (Reg. Sess., 1994), c. 7
s. 2; 1997, c. 84, s. 1.)
§ 113A-52.1. Forest Practice Guidelines.
(a) The Department shall adopt Forest Practice Guidelines Related to Water Quality (best management
practices). The adoption of Forest Practices Guidelines Related to Water Quality under this section is subject
to the provisions of Chapter 150E of the General Statutes.
(b) If land -disturbing activity undertaken on forestland for the production and harvesting of timber and timber
products is not conducted in accordance with Forest Practice Guidelines Related to Water Quality, the
provisions of this Article shall apply to such activity and any related land -disturbing activity on the tract.
(c) The Secretary shall establish a Technical Advisory Committee to assist in the development and periodic
review of Forest Practice Guidelines Related to Water Quality. The Technical Advisory Committee shall cons
one member from the forest products industry, one member who is a consulting forester, one member who is
private landowner knowledgeable in forestry, one member from the United States Forest Service, one memb
from the academic community who is knowledgeable in forestry, one member who is knowledgeable in erosit
and
sedimentation control, one member who is knowledgeable in wildlife management, one member who is
knowledgeable in marine fisheries management, one member who is knowledgeable in water quality, and on
member from the conservation community.(1989, c. 179, s. 2.)
§ 113A-53. Repealed by Session Laws 1973, c. 1262, s. 41.
§ 113A-54. Powers and duties of the Commission.
(a) The Commission shall, in cooperation with the Secretary of Transportation and other appropriate State a
federal agencies, develop, promulgate, publicize, and administer a comprehensive State erosion and
sedimentation control program.
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(b) The Commission shall develop and adopt and shall revise as necessary from time to time, rules and
regulations for the control of erosion and sedimentation resulting from land- disturbing activities. The Commi:
shall adopt or revise its rules and regulations in accordance with Chapter 150E of the General Statutes.
(c) The rules and regulations adopted pursuant to G.S. 113A-54(b) for carrying out the erosion and sediment
control program shall:
(1) Be based upon relevant physical and developmental information concerning the watershed and drainage
basins of the State, including, but not limited to, data relating to land use, soils, hydrology, geology, grading,
ground cover, size of land area being disturbed, proximate water bodies and their characteristics, transportat
and public facilities and services;
(2) Include such survey of lands and waters as may be deemed appropriate by the Commission or required t
any applicable laws to identify those areas, including multijurisdictional and watershed areas, with critical ero
and sedimentation problems; and
(3) Contain conservation standards for various types of soils and land uses, which standards shall include cri
and alternative techniques and methods for the control of erosion and sediment resulting from land -
disturbing activities.
(d) In implementing the erosion and sedimentation control program, the Commission shall:
(1) Assist and encourage local governments in developing erosion and sediment control programs and, as a
of this assistance, the Commission shall develop a model local erosion control ordinance. -The
Commission shall approve, approve as modified, or disapprove local programs submitted to it pursuant to G.
113A-60.
(2) Assist and encourage other State agencies in developing erosion and sedimentation control programs to
administered in their jurisdictions. The Commission shall approve, approve as modified, or disapprove
programs submitted pursuant to G.S. 113A-56 and from time to time shall review these programs for complia
with rules adopted by the Commission and for adequate enforcement.
(3) Develop recommended methods of control of sedimentation and prepare and make available for distributi
publications and other materials dealing with sedimentation control techniques appropriate for use by
persons engaged in land -disturbing activities, general educational materials on erosion and sedimentation
control, and instructional materials for persons involved in the enforcement of this Article and erosion control
rules, ordinances, regulations, and plans.
(4) Require submission of erosion control plans by those responsible for initiating land -disturbing activities foi
approval prior to commencement of the activities.
(e) To assist it in developing the erosion and sedimentation control program required by this Article, the
Commission is authorized to appoint an advisory committee consisting of technical experts in the fields of wa
resources, soil science, engineering, and landscape architecture.
(f) Repealed by Session Laws 1987, c. 827, s. 10, effective August 13, 1987. (1973, c. 392, s. 5; c. 1331, S.
1417, s. 6; 1975, 2nd Sess., c. 983, s. 74; 1977, c. 464, s. 35; 1979, c. 922, s. 2; 1983 (Reg. Sess.,
1984), c. 1014, ss. 1, 2; 1987, c. 827, s. 10; 1987 (Reg. Sess., 1988), c. 1000, s. 3; 1989, c. 676, s. 1; 1993
Sess., 1994), c. 776, s. 3.)
§ 113A-54.1. Approval of erosion control plans.
(a) A draft erosion control plan must contain the applicant's address and, if the applicant is not a resident of P
Carolina, designate a North Carolina agent for the purpose of receiving notice from the Commission or the
Secretary of compliance or noncompliance with the plan, this Article, or any rules adopted pursuant to this Ai
The Commission shall approve, approve with modifications, or disapprove a draft erosion control plan for tho
land- disturbing activities for which prior plan approval is required within 30 days of receipt. The Commission
shall condition approval of a draft erosion control plan upon the applicant's compliance with federal and StatE
water quality laws, regulations, and rules. Failure to approve, approve with modifications, or disapprove a
completed draft
erosion control plan within 30 days of receipt shall be deemed approval of the plan. If the Commission
disapproves a draft erosion control plan or a revised erosion control plan, it must state in writing the specific
reasons that
the plan was disapproved. Failure to approve, approve with modifications, or disapprove a revised erosion cc
plan within 15 days of receipt shall be deemed approval of the plan. The Commission may establish an expir
date for erosion control plans approved under this Article.
(b) If, following commencement of a land -disturbing activity pursuant to an approved erosion control plan, the
Commission determines that the plan is inadequate to meet the requirements of this Article, the Commission
require any revision of the plan that is necessary to comply with this Article. Failure to approve, approve with
modifications, or disapprove a revised erosion control plan within 15 days of receipt shall be deemed
approval of the plan.
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(c) The Commission shall disapprove an erosion 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. The Director of the Division of Land Resources may disapprove an erosion control plat
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 c
violation of a plan previously approved by the Commission or a local government 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 tc
Article by the time the payment is due;
(3) Has been convicted of a misdemeanor pursuant to G.S. 113A-64(b) or any criminal provision of a local
ordinance adopted pursuant to this Article; or
(4) Has failed to substantially comply with State rules or local ordinances and regulations adopted pursuant t(
this Article.
(d) In the event that an erosion control plan is disapproved by the Director pursuant to subsection (c) of this
section, the Director shall state in writing the specific reasons that the plan was disapproved. The applicant n
appeal the Director's disapproval of the plan to the Commission. For purposes of this subsection and subsec
(c) of this section, an applicant's record may be considered for only the two years prior to the
application date. (1989, c. 676, s. 2; 1993 (Reg. Sess., 1994), c. 776, s. 4; 1998, c. 221, s. 1.11(a); 1999, c.
S. 1.)
§ 113A-54.2. Approval Fees.
(a) The Commission may establish a fee schedule for the review and approval of erosion control plans under
Article. In establishing the fee schedule, the Commission shall consider the administrative and personnel
costs incurred by the Department for reviewing the plans and for related compliance activities. An application
may not exceed fifty dollars ($50.00) per acre of disturbed land shown on an erosion control plan or of
land actually disturbed during the life of the project.
(b) The Sedimentation Account is established as a nonreverting account within the Department. Fees collect
under this section shall be credited to the Account and shall be applied to the costs of administering this
Article.
(c) Repealed by Session Laws 1991 (Reg. Sess., 1992), c. 1039, s. 3, effective July 24, 1992.
(d) This section may not limit the existing authority of local programs approved pursuant to this Article to ass(
fees for the approval of erosion control plans. (1989 (Reg. Sess., 1990), c. 906, s. 1; 1991 (Reg. Sess.,
1992), c. 1039, s. 3; 1993 (Reg. Sess., 1994), c. 776, s. 5; 1999, c. 379,
S. 1.)
§ 113A-55. Authority of the Secretary.
The sedimentation control program developed by the Commission shall be administered by the Secretary un
the direction of the Commission. To this end the Secretary shall employ the necessary clerical, technical, anc
administrative personnel, and assign tasks to the various divisions of the Department for the purpose of
implementing this Article. The Secretary may bring enforcement actions pursuant to G.S. 113A-64 and G.S.
113A-65. The Secretary shall make final agency decisions in contested cases that arise from civil penalty
assessments pursuant to G.S. 113A-64. (1973, c. 392, s. 6; c. 1417, s. 3; 1993 (Reg. Sess., 1994), c. 776, s.
§ 113A-56. Jurisdiction of the Commission.
(a) The Commission shall have jurisdiction, to the exclusion of local governments, to adopt rules concerning
disturbing activities that are:
(1) Conducted by the State;
(2) Conducted by the United States;
(3) Conducted by persons having the power of eminent domain;
(4) Conducted by local governments; or
(5) Funded in whole or in part by the State or the United States.
(b) The Commission may delegate the jurisdiction conferred by G.S. 113A- 56(a), in whole or in part, to any c
State agency that has submitted an erosion control program to be administered by it, if such
program has been approved by the Commission as being in conformity with the general State program.
(c) The Commission shall have concurrent jurisdiction with local governments over all other land -disturbing
activities. (1973, c. 392, s. 7; c. 1417, s. 4; 1987, c. 827, s. 130; 1987 (Reg. Sess., 1988), c. 1000, s. 4.)
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Sedimentation Pollution Control Act of 1973 (SPCA) Page 5 of 11
§ 113A-57. Mandatory standards for land -disturbing activity.
No land -disturbing activity subject to this Article shall be undertaken except in accordance with the following
mandatory requirements:
(1) 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 zone is provided along the margin of the
watercourse of sufficient width to confine visible siltation within the twenty-five percent (25%) of the buffer zoi
nearest the land -disturbing activity. Waters that have been classified as trout waters by the Environmental
Management Commission shall have an undisturbed buffer zone 25 feet wide or of sufficient width to confine
visible siltation within the twenty-five percent (25%) of the buffer zone nearest the land -disturbing activity,
whichever is greater. Provided, however, that the Sedimentation Control Commission may approve plans wh
include land -disturbing activity along trout waters when the duration of said disturbance would be temporary;
the extent of said disturbance would be minimal. This subdivision shall not apply to a land -disturbing activity i
connection with
the construction of facilities to be located on, over, or under a lake or natural watercourse.
(2) The angle for graded slopes and fills shall be no greater than the angle which can be retained by vegetati
cover or other adequate erosion -control devices or structures. In any event, slopes left exposed will, within 1!
working days or 30 calendar days of completion of any phase of grading, whichever period is shorter, be plar
or otherwise
provided with ground cover, devices, or structures sufficient to restrain erosion.
(3) Whenever land -disturbing activity is undertaken on a tract comprising more than one acre, if more than or
acre is uncovered, the person conducting the land- disturbing activity shall install such sedimentation and erc
control devices and practices as 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 within a time period to be specified by rule of the Commission.
(4) No person shall initiate any land -disturbing activity on a tract if more than one acre is to be uncovered unl
30 or more days prior to initiating the activity, an erosion and sedimentation con o p an for such activity is fil
with the agency having jurisdiction. The agency having jurisdiction shall forward to the Director of the Divisior
Water Quality a copy of each erosion and sedimentation control plan for a land -disturbing activity that involve
the utilization of ditches for the purpose of de -watering or lowering the water table of the tract. (1973, c. 392,
c. 1417, s. 5; 1975, c. 647, s. 2; 1979, c. 564; 1983 (Reg. Sess., 1984). c. 1014, s. 3;
1987, c. 827, s. 131; 1989, c. 676, s. 3; 1991, c. 275, s. 2; 1998, c. 99,
s. 1.; 1999, c. 379, s. 1.)
§ 113A-58. Enforcement authority of the Commission.
In implementing the provisions of this Article the Commission is authorized and directed to:
(1) Inspect or cause to be inspected the sites of land -disturbing activities to determine whether applicable fay
regulations or erosion control plans are being complied with;
(2) Make requests, or delegate to the Secretary authority to make requests, of the Attorney General or solicit
for prosecutions of violations of this Article. (1973, c. 392, s. 9.)
§ 113A-59. Educational activities.
The Commission in conjunction with the soil and water conservation districts, the North Carolina Agricultural
Extension Service, and other appropriate State and federal agencies shall conduct educational programs
in erosion and sedimentation control, such programs to be directed towards State and local governmental
officials, persons engaged in land -disturbing activities, and interested citizen groups. (1973, c. 392, s.
10.)
§ 113A-60. Local erosion control programs.
(a) Any local government may submit to the Commission for its approval an erosion and sediment control
program for its jurisdiction, and to this end local governments are authorized to adopt ordinances and regulat
necessary to establish and enforce erosion and sediment control programs. Local governments are authorize
create or designate agencies or subdivisions of local government to administer and enforce the programs. Ar
ordinance adopted by a local government shall at least meet and may exceed the minimum requirements of 1
Article and the rules adopted pursuant to this Article. Two or more units of local government are authorized t(
establish a joint program and to enter into any agreements that are necessary for the proper administration a
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enforcement of the
program. The resolutions establishing any joint program must be duly recorded in the minutes of the governir ^
body of each unit of local government participating in the program, and a certified copy of each resolution mL J
be filed with the Commission.
(b) The Commission shall review each program submitted and within 90 days of receipt thereof shall notify th
local government submitting the program that it has been approved, approved with modifications, or disapprc
The Commission shall only approve a program upon determining that its standards equal or exceed those of
Article and rules adopted pursuant to this Article.
(c) If the Commission determines that any local government is failing to administer or enforce an approved
erosion and sediment control program, it shall notify the local government in writing and shall specify the
deficiencies of administration and enforcement. If the local government has not taken corrective action within
days of receipt of notification from the Commission, the Commission shall assume enforcement of the progra
until such time as the local government indicates its willingness and ability to resume administration and
enforcement of the program. (1973, c. 392, s. 11; 1993 (Reg. Sess., 1994), c. 776, s. 7.)
§ 113A-61. Local approval of erosion control plans.
(a) For those land -disturbing activities for which prior approval of an erosion control plan is required, the
Commission may require that a local government that administers an erosion and sediment control program
approved under G.S. 113A-60 require the applicant to submit a copy of the erosion control plan to the
appropriate soil and water conservation district or districts at the same time the applicant submits the erosion
control plan to the local government for approval. The soil and water conservation district or districts shall re%
the plan and submit any
comments and recommendations to the local government within 20 days after the soil and water conservatio
district received the erosion control plan or within any shorter period of time as may be agreed upon by the si
and water conservation district and the local government. Failure of a soil and water conservation district to
submit comments and recommendations within 20 days or within agreed upon shorter period of time shall no
delay final action on the proposed plan by the local government.
(b) Local governments shall review each erosion control plan submitted to them and within 30 days of receipt
thereof shall notify the person submitting the plan that it has been approved, approved with modifications, or
disapproved. A local govemment shall only approve a plan upon determining that it complies with all applicat
State and local regulations for erosion and sediment control.
(b1) A local government shall condition approval of a draft erosion control plan upon the applicant's complian
with federal and State water quality laws, regulations, and rules. A local government shall disapprove an ero.,
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. A local government may disappro
an erosion control plan upon finding that an applicant or a parent, subsidiary, or other affiliate of the applican
(1) Is conducting or has conducted land -disturbing activity without an approved plan, or has received notice c
violation of a plan previously approved by the Commission or a local government 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 tc
Article by the time the payment is due;
(3) Has been convicted of a misdemeanor pursuant to G.S. 113A-64(b) or any criminal provision of a local
ordinance adopted pursuant to this Article; or
(4) Has failed to substantially comply with State rules or local ordinances and regulations adopted pursuant t
this Article.
(b2) In the event that an erosion control plan is disapproved by a local government pursuant to subsection (b
this section, the local government shall so notify the Director of the Division of Land Resources within 10 day
such disapproval. The local government shall advise the applicant and the Director in writing as to the specifi
reasons that the plan was disapproved. Notwithstanding the provisions of subsection (c) of this section, the
applicant may appeal the local government's disapproval of the plan directly to the Commission. For purpose
this subsection and subsection (b1) of this section, an applicant's record may be considered for only the two
years prior to the application date.
(c) The disapproval or modification of any proposed erosion control plan by a local government shall entitle tt
person submitting the plan to a public hearing if such person submits written demand for a hearing within 15
after receipt of written notice of the disapproval or modification. The hearings shall be conducted pursuant to
procedures adopted by the local government. If the local government upholds the disapproval or modificatior
proposed erosion control plan following the public hearing, the person submitting the erosion control plan st
entitled to appeal the local govemment's action disapproving or modifying the plan to the Commission. The
Commission, by regulation, shall direct the Secretary to appoint such employees of the Department as may I:
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necessary to hear appeals from the disapproval or modification of erosion control plans by local govemment:
addition to providing for the appeal of local government decisions disapproving or modifying erosion control F
to
designated employees of the Department, the Commission shall designate an erosion control plan review
committee consisting of three members of the Commission. The person submitting the erosion control plan n
appeal the decision of an employee of the Department who has heard an appeal of a local government actioi
disapproving or modifying an erosion control plan to the erosion plan review committee of the Commission.
Judicial review of the final action of the erosion plan review committee of the Commission may be had in the
superior court of the county in which the local government is situated. (d) Repealed by Session Laws 1989, c
676, s. 4, effective October 1,
1989. (1973, c. 392, s. 12; 1979, c. 922, s. 1; 1989, c. 676, s. 4; 1993 (Reg. Sess., 1994), c. 776, ss. 8, 9; 19
c. 221, s. 1.11(b); 1999, c. 379, s. 1.)
§ 113A-61.1. Inspection of land -disturbing activity; notice of violation.
(a) The Commission, a local government that administers an erosion and sediment control program approve(
under G.S. 113A-60, or other approving authority shall provide for inspection of land -disturbing activities to
ensure compliance with this Article and to determine whether the measures required in an erosion control pie
are effective in controlling erosion and sediment resulting from the land -disturbing activity. Notice of this right
inspection shall be included in the certificate of approval of each erosion control plan.
(b) No person shall willfully resist, delay, or obstruct an authorized representative of the Commission, an
authorized representative of a local government, or an employee or an agent of the Department while the
representative, employee, or agent is inspecting or attempting to inspect a land -disturbing activity under this
section.(() If the Secretary, a local government that administers an erosion and sediment control program
approved under G.S. 113A-60, or other approving authority determines that the person engaged in the land -
disturbing activity has failed to comply with this Article, the Secretary, local government, or other approving
authority shall immediately serve a
notice of violation upon that person. The notice may be served by any means authorized under G.S. 1A-1, F
4. A notice of violation shall specify a date by which the person must comply with this Article and inform the
person of the actions that need to be taken to comply with this Article. Any person who fails to comply within
time specified is subject to additional civil and criminal penalties for a continuing violation as provided in G.S.
113A-64. (1989, c. 676, s. 5; 1993 (Reg. Sess., 1994), c. 776, s. 10; 1999, c. 379, s. 1.)
§ 113A-62. Cooperation with the United States.
The Commission is authorized to cooperate and enter into agreements with any agency of the United States
government in connection with plans for erosion control with respect to land- disturbing activities on lands the
are under the jurisdiction of such agency. (1973, c. 392, s. 13.)
§ 113A-63. Financial and other assistance.
The Commission and local governments are authorized to receive from federal, State, and other public and
private sources financial, technical, and other assistance for use in accomplishing the purposes of this Article
(1973, c. 392, s. 14.)
§ 113A-64. Penalties.
(a) Civil Penalties. -
(1) Any person who violates any of the provisions of this Article or any ordinance, rule, or order adopted or is
pursuant to this Article by the Commission or by a local government, or who initiates or continues a land -
disturbing activity for which an erosion control plan is required except in accordance with the terms, conditior
and provisions of an approved plan, is subject to a civil penalty. The maximum civil penalty for a violation is fi
thousand dollars ($5,000). A civil penalty may be assessed from the date of the violation. Each day of a
continuing violation shall constitute a separate violation.
(2) The Secretary or a local government that administers an erosion and sediment control program approved
under G.S. 113A-60 shall determine the amount of the civil penalty and shall notify the person who is assess
the civil penalty of the amount of the penalty and the reason for assessing the penalty. The notice of assessr
shall be served by any means authorized under G.S. 1A-1, Rule 4, and shall direct the violator to either pay t
assessment or contest the assessment within 30 days by filing a petition for a contested case under Article 3
Chapter 150B of the General Statutes. If a violator does not pay a civil penalty assessed by the Secretary wit
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30 days after it is due, the Department shall request the Attorney General to institute a civil action to recover
amount of the assessment. If a violator does not pay a civil penalty assessed by a local government within 3(
days after it is due, the local government may institute a civil action to recover the amount of the assessment
The civil action may be brought in the superior court of any county where the violation occurred or the violato
residence or principal place of business is located. A civil action must be filed within three years of the date t!
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 revie
of the assessment.
(3) In determining the amount of the penalty, the Secretary shall consider the degree and extent of harm cau
by the violation, the cost of rectifying the damage, the amount of money the violator saved by noncompliance
whether the violation was committed willfully and the prior record of the violator in complying or failing to com
with this Article.
(4) Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 776, s. 11, effective October 1, 1994.
(5) The clear proceeds of civil penalties collected by the Department or other State agency under this subset
shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2. Civil penalties
collected by a local government under this subsection shall be credited to the general fund of the local
government as nontax revenue.
(b) Criminal Penalties. — Any person who knowingly or willfully violates any provision of this Article or any
ordinance, rule, regulation, or order duly adopted or issued by the Commission or a local government, or whc
knowingly or willfully initiates or continues a land- disturbing activity for which an erosion control plan is requi
except in accordance with the terms, conditions, and provisions of an approved plan, shall be guilty of a Clas
misdemeanor which may include a fine not to exceed five thousand dollars ($5,000). (1973, c. 392, s. 15; 19'
c. 852; 1987, c. 246, s. 3; 1987 (Reg. Sess., 1988), c. 1000, s. 5; 1989, c. 676, s. 6; 1991, c. 412, s. 2; c. 72E
5; 1993, c. 539, s. 873; 1994, Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 776, s. 11; 1998-215, s.
1999, c. 379,
S. 1.)
§ 113A-64.1. Restoration of areas affected by failure to comply.
The Secretary or a local government that administers a local erosion and sediment control program approve(
under G.S. 113A-60 may require a person who engaged in a land -disturbing activity and failed to retain sedir
generated by the activity, as required by G.S. 113A-57(3), to restore the waters and land affected by the failu
so as to minimize the detrimental effects of the resulting pollution by sedimentation. This authority is in additis
any other civil or criminal penalty or injunctive relief authorized under this Article. (1993 (Reg. Sess., 1994), c
776, s. 12.)
§ 113A-65. Injunctive relief.
(a) Violation of State Program. — Whenever the Secretary has reasonable cause to believe that any person is
violating or is threatening to violate the requirements of this Article he may, either before or after the institutio
any other action or proceeding authorized by this Article, institute a civil action for injunctive relief to restrain i
violation or threatened violation. The action shall be brought in the superior court of the county in which the
violation or threatened violation is occurring or about to occur, and shall be in the name of the State upon the
relation of the
Secretary.
(b) Violation of Local Program. — Whenever the governing body of a local government having jurisdiction has
reasonable cause to believe that any person is violating or is threatening to violate any ordinance, rule,
regulation, or order adopted or issued by the local government pursuant to this Article, or any term, condition
provision of an erosion control plan over which it has jurisdiction, may, either before or after the institution of
other action or proceeding authorized by this Article, institute a civil action in the name of the local govemme
for injunctive relief to restrain the violation or threatened violation. The action shall be brought in the superior
court of the county in which the violation is occurring or is threatened.
(c) Abatement, etc., 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 tha
restoration is performed, or to prevent the threatened violation. The institution of an action for injunctive relief
under subsections (a) or (b) of this section shall not relieve any party to the proceeding from any civil or crimi
penalty prescribed for violations of this Article. (1973, c. 392, s. 16; 1993 (Reg. Sess., 1994), c. 776, s. 13.)
§ 113A-65.1. Stop -work orders.
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(a) The Secretary may issue a stop -work order if he finds that a land -disturbing activity is being conducted in
violation of this Article or of any rule adopted or order issued pursuant to this Article, that the violation is
knowing and willful, and that either:
(1) Off -site sedimentation has eliminated or severely degraded a use in a lake or natural watercourse or that
degradation is imminent.
(2) Off -site sedimentation has caused severe damage to adjacent land or that such damage is imminent.
(3) The land -disturbing activity is being conducted without an approved plan.
(b) The stop -work order shall be in writing and shall state what work is to be stopped and what measures are
required to abate the violation. The order shall include a statement of the findings made by the Secretary
pursuant to subsection (a) of this section, and shall list the conditions under which work that has been stoppE
the order may be resumed. The delivery of equipment and materials which does not contribute to the
violation may continue while the stop- work order is in effect. A copy of this section shall be attached to the o
(c) The stop -work order shall be served by the sheriff of the county in which the land- disturbing activity is bei
conducted or by some other person duly authorized by law to serve process as provided by G.S. 1A-1,
Rule 4, and shall be served on the person at the site of the land -disturbing activity who is in operational contr
the land -disturbing activity. The sheriff or other person duly authorized by law to serve process shall post a c,
of the stop- work order in a conspicuous place at the site of the land -disturbing activity. The Department shal
also deliver a copy of the stop -work order to any person that the Department has reason to believe may be
responsible for the violation.
(d) The directives of a stop -work order become effective upon service of the order. Thereafter, any person
notified of the stop -work order who violates any of the directives set out in the order may be assessed a civil
penalty as provided in G.S. 113A 64(a). A stop -work order issued pursuant to this section may be issued for
period not to exceed five days.
(e) The Secretary shall designate an employee of the Department to monitor compliance with the stop -work
order. The name of the employee so designated shall be included in the stop- work order. The employee so
designated, or the Secretary, shall rescind the stop -work order if all the violations for which the stop -work ord
are issued are corrected, no other violations have occurred, and all measures necessary to abate the violatic
have been taken. The Secretary shall rescind a stop -work order that is issued in error.
(f) The issuance of a stop -work order shall be a final agency decisionsubject to judicial review in the same
manner as an order in a contested case pursuant to Article 4 of Chapter 150E of the General Statutes. The
petition for judicial review shall be filed in the superior court of the county in which the land -disturbing activity
being conducted.
(g) As used in this section, days are computed as provided in G.S. 1A-1, Rule 6. Except as otherwise providE
the Secretary may delegate any power or duty under this section to the Director of the Division of Land
Resources of the Department or to any person who has supervisory authority over the Director. The Director
delegate any power or duty so delegated only to a person who is designated as acting Director.
(h) The Attorney General shall file a cause of action to abate the violations which resulted in the issuance of;
stop -work order within two days of the service of the stop -work order. The cause of action shall include a mot
for an ex parte temporary restraining order to abate the violation and to effect necessary remedial measures.
resident superior court judge, or any judge assigned to hear the motion for the temporary restraining order, s
hear and determine the motion within two days of the filing of the complaint. The clerk of superior court shall
accept complaints filed pursuant to this section without the payment of filing fees. Filing fees shall be paid to
clerk of superior court within 30 days of the filing of the complaint. (1991, c. 412, s. 1; 1998, c. 99, s. 2.)
§ 113A-66. Civil relief.
(a) Any person injured by a violation of this Article or any ordinance, rule, or order duly adopted by the Secre
or a local government, or by the initiation or continuation of a land- disturbing activity for which an erosion coi
plan is required other than in accordance with the terms, conditions, and provisions of an approved plan, ma,
bring a civil action against the person alleged to be in violation (including the State and any local govemmeni
The action may seek:
(1) Injunctive relief;
(2) An order enforcing the law, rule, ordinance, order, or erosion control plan violated; or
(3) Damages caused by the violation; or
(4) Both damages and an enforcement order. If the amount of actual damages as found by the court or jury it
suits
brought under this subsection is five thousand dollars ($5,000) or less, the plaintiff shall be awarded costs of
litigation including reasonable attorneys fees and expert witness fees.
(b) Civil actions under this section shall be brought in the superior court of the county in which the alleged
violations occurred.
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(c) The court, in issuing any final order in any action brought pursuant to this section may award costs of litig;
(including reasonable attorney and expert -witness fees) to any party, whenever it determines that such an av
is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require, the
filing of a bond or equivalent security, the amount of such bond or security to be determined by the court.
(d) Nothing in this section shall restrict any right which any person (or class of persons) may have under any
statute or common law to seek injunctive or other relief. (1973, c. 392, s. 17; 1987 (Reg. Sess., 1988), c. 100
6.)
SEDIMENTATION CONTROL COMMISSION
§ 14313-298. Sedimentation Control Commission - creation; powers and duties.
There is hereby created the Sedimentation Control Commission of the Department of Environment, Health, a
Natural Resources with the power and duty to develop and administer a sedimentation control program as he
provided. The Sedimentation Control Commission has the following powers and duties:
(1) In cooperation with the Secretary of the Department of Transportation and Highway Safety and other
appropriate State and federal agencies, develop, promulgate, publicize, and administer a comprehensive StE
erosion and sedimentation control program.
(2) Develop and adopt on or before July 1, 1974, rules and regulations for the control of erosion and
sedimentation pursuant to G.S. 113A-54.
(3) Conduct public hearings pursuant to G.S. 113A-54. (4) Assist local governments in developing erosion ar
sedimentation control programs pursuant to G.S. 113A-60.
(5) Assist and encourage other State agencies in developing erosion and sedimentation control programs
pursuant to G.S. 113A-56.
(6) Develop recommended methods of control of sedimentation and prepare and make available for distributi
publications and other materials dealing with sedimentation control techniques
pursuant to G.S. 113A-54. (1973, c. 1262, s. 39; 1977, c. 771, s. 4; 1989, c. 727, s. 218(137).)
§ 14313-299. Sedimentation Control Commission - members;selection; compensation; meetings.
(a) Creation; Membership. — There is hereby created in the Department of Environment, Health, and Natural
Resources the North Carolina Sedimentation Control Commission, which is charged with the duty of
developing and administering the sedimentation control program provided for in this Article. The Commission
shall consist of the following members:
(1) A person to be nominated jointly by the boards of the North Carolina League of Municipalities and the Noi
Carolina Association of County Commissioners;
(2) A person to be nominated by the Board of the North Carolina Home Builders Association;
(3) A person to be nominated by the Carolinas Branch, Associated General Contractors of America;
(4) The president, vice-president, or general counsel of a North Carolina public utility company;
(5) The Director of the North Carolina Water Resources Research Institute;
(6) A member of the State Mining Commission who shall be a representative of nongovernmental conservati(
interests, as required by G.S. 74-38(b);
(7) A member of the State Soil and Water Conservation Commission;
(8) A member of the Environmental Management Commission;
(9) A soil scientist from the faculty of North Carolina State University;
(10) Two persons who shall be representatives of nongovernmental conservation interests; and
(11) A professional engineer registered under the provisions of Chapter 89C of the General Statutes nominal
by the Professional Engineers of North Carolina, Inc.
(b) Appointment. — The Commission members shall be appointed by the Governor. All Commission member
except the person filling position number five, as specified above, shall serve staggered terms of office of thn
years and until their successors are appointed and duly qualified. The person filling position number five shal
serve as a member of the Commission, subject to removal by the Governor as hereinafter specified in this
section, so long as he continues as Director of the Water Resources Research Institute. The terms of office c
members filling positions two, four, seven, and eight shall expire on 30 June of years evenly divisible by thre,
The terms of office of members filling positions one, three, and ten shall expire on 30 June of years that foll
one year those years that are evenly divisible by three. The terms of office of members filling positions six, ni
and eleven shall expire on 30 June of years that precede by one year those years that are evenly divisible by
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three. Except for the person filling position number five, no member of the Commission shall serve more thar
complete consecutive three-year terms. Any member appointed by the Governor to fill a vacancy occurring it
of the appointments shall be appointed for the remainder of the term of the member causing the vacancy. Th
Governor may at any time remove any member of the Commission for inefficiency, neglect of duty, malfeasa
misfeasance, nonfeasance or, in the case of members filling positions five, six, seven, eight, nine, and elevet
specified above, because they no
longer possess the required qualifications for membership. In each instance appointments to fill vacancies in
membership of the Commission shall be a person or persons with similar experience and qualifications in the
same field required of the member being replaced. The office of the North Carolina Sedimentation Control
Commission is
declared to be an office that may be held concurrently with any other elective or appointive office, under the
authority of Article VI, Sec. 9, of the North Carolina Constitution.
(b1) Chairman. — The Governor shall designate a member of the Commission to serve as chairman.
(c) Compensation. — The members of the Commission shall receive the usual and customary per diem allow•
for the other members of boards and commissions of the State and as fixed in the Biennial Appropriation Act
and, in addition, the members of the Commission shall receive subsistence and travel expenses according tc
prevailing State practice and as allowed and fixed by statute for such purposes, which said travel expenses
also be allowed while going to or from any place of meeting or when on official business for the Commission.
per diem payments made to each member of the Commission shall include necessary time spent in traveling
and from their places of residence within the State to any place of meeting or while traveling on official busing
for the
Commission.
(d) Meetings of Commission. — The Commission shall meet at the call of the chairman and shall hold special
meetings at the call of a majority of the members. (1973, c. 1262, s. 40; 1977, c. 771, s. 4; 1981, c. 248, ss.
1, 2; 1989, c. 727, s. 218(138); 1989 (Reg. Sess., 1990), c. 1004, s. 19(b); 1991, c. 551, s. 1.)
BUILDING PERMITS
In 1988, the General Assembly amended G.S. 153A-357 and 160A-417 regarding building permits. The
amendments were as follows:
G.S. 153-357(b): "No permit shall be issued pursuant to subsection (a) for any land -disturbing activity, as def
in G.S. 113A-52(6), for any activity covered by G.S. 113A-57, unless an erosion control plan has been appra
by the Sedimentation Pollution Control Commission pursuant to G.S. 113A-54(d)(4) or by a local govemmeni
pursuant to G.S. 113A-61 for the site of the activity or a tract of land including the site of the activity."
G.S. 160A-417(b): "No permit shall be issued pursuant to subsection (a) for any land -disturbing activity, as
defined in G.S. 113A-52(6), for any activity covered by G.S. 113A-57, unless an erosion control plan has bee
approved by the Sedimentation Pollution Control Commission pursuant to G.S. 113A 61 for the site of the ac
or a tract of land including the site of the activity."
North Carolina Division of Land Resources - 1612 Mail Service Center., Raleigh, NC 27699-1612 919-733-3833 Disclaim
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