NCS000446_E&SC Ordinance_20201218

ARTICLE X. - SOIL EROSION AND SEDIMENTATION CONTROL
Sec. 5-140. - Reserved.
Editor's note— Section 1 of an ordinance adopted Oct. 7, 1997, repealed former § 5-140, which
pertained to incorporation of the soil erosion and sedimentation regulatory procedures by
reference, and derived from Ch. 17.2 of the 1973 Code.
Sec. 5-141. • Title.
This article may be cited as the "Town of Apex Soil Erosion and Sedimentation Control Ordinance."
(Ord. of7-16-96, § 1; Ord. No. 05-0719-11, § 1, 7-19-05)
Sec. 5-142. - Purposes.
This article is adopted for the purposes of:
(1) Regulating certain land -disturbing activity within the corporate limits of the town and within the
extraterritorial jurisdiction (ETJ) of the town 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
(2) Establishing procedures through which these purposes can be fulfilled.
(Ord. of7-16-96, § 2; Ord. No. 05-0719-11, § 1, 7-19-05)
Sec. 5-143. - Definitions.
As used in this article, unless the context clearly indicates otherwise, the following definitions apply:
Accelerated erosion means any increase over the rate of natural erosion as a result of land -
disturbing activity.
Act means the North Carolina Sedimentation Pollution Control Act of 1973 and all rules and orders
adopted pursuant to it.
Adequate erosion control measure, structure, or device means one which controls the soil material
within the land area under responsible control of the person conducting the land -disturbing activity.
Affiliate means a person that directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control of another person.
Being conducted means a land -disturbing activity has been initiated and permanent stabilization of
the site has not been completed.
Borrow means fill material which is required for on -site construction and is obtained from other
locations.
Buffer zone means the strip of land adjacent to a lake or natural watercourse to remain undisturbed
and in its natural state.
Certificate of compliance means a certificate issued by the town once all the measures shown on the
approved soil erosion and sedimentation control plan are installed, inspected and approved.
Commission means the North Carolina Sedimentation Control Commission.
(i )

Completion of construction or development means that no further land -disturbing activity is required
on a phase of a project except that which is necessary for establishing a permanent ground cover.
Construction site waste management plan means the town's plan for containing, managing, and
disposing of building materials, other waste materials and general good housekeeping of the building site.
A copy of the plan is available on the town website at the following link: http://www.apexnc.org/2691Soil-
Erosion-Sedimentation-Control.
Department means the North Carolina Department of Environment, Health, and Natural Resources.
Director means the director of the Division of Land Resources of the Department of Environment,
Health, and natural resources.
Discharge point means that point at which runoff leaves a tract of land or enters a water body or
public storm drainage.
District means the Wake Soil and Water Conservation District created pursuant to G.S. ch. 139.
Energy dissipater means a structure or a shaped channel section with mechanical armoring placed
at the outlet of pipes or conduits to receive and break down the energy from high velocity flow.
Erosion means the wearing away of land surface by the action of wind, water, gravity, or any
combination thereof.
Ground cover means any natural vegetative growth or other material which renders the soil surface
stable against accelerated erosion.
High quality waters means those classified as such in 15A NCAC 2B.0101(e)(5), General
Procedures, which is incorporated herein by reference to include further amendments pursuant to G.S.
15015-14(c).
High quality water (HQWj zones means areas that are within one mile and drain to waters
designated as HQWs.
Lake or natural watercourse means any stream, river, brook, swamp, sound, bay, creek, run, branch,
canal, waterway, estuary, and any reservoir, lake or pond, natural or impounded, in which sediment may
be moved or carried in suspension, and which could be damaged by accumulation of sediment.
Land -disturbing activity means any use of the land within the corporate limits or extraterritorial
jurisdiction of the town 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.
Letter of soil erosion and sedimentation control plan approval means a letter issued by the town, only
after tree protection fencing is installed and inspected, indicating approval of the proposed soil erosion
and sedimentation control plan.
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 the Act.
Natural erosion means the wearing away of the earth's surface by water, wind, or other natural
agents under natural environmental conditions undisturbed by man.
Parent an affiliate that directly, or indirectly through one or more intermediaries, controls another
person.
Person means any individual, partnership, firm, association, joint venture, public or private
corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate
body, or other legal entity.
Person conducting land -disturbing activity means any person who may be held responsible for a
violation unless expressly provided otherwise by this article, the Act, or any order adopted pursuant to this
article or the Act.

Person responsible for the violation as used in this article, and G.S. 113A-64, means:
(1) The developer or other person who has or holds himself out as having financial or operational
control over the land -disturbing activity, or
(2) The landowner or person in possession or control of the land when he has directly or indirectly
allowed the land -disturbing activity or has benefited from it or he has failed to comply with any
provision of this article, the Act_ or any order adopted pursuant to this article or the Act as
imposes a duty upon him.
Phase of grading means one of two types of grading. rough or fine.
Soil erosion and sedimentation control plan means plan to control soil erosion and sedimentation
and to protect associated riparian buffers
Sediment means solid particulate matter, both mineral and organic, that has been or is being
transported by water, air, gravity, or ice from its site of origin_
Sedimentation means the process by which sediment resulting from accelerated erosion has been or
is being transported off the site of the land -disturbing activity or into a lake or natural watercourse.
Siltation means sediment resulting from accelerated erosion which is settleable or removable by
properly designed, constructed, and maintained control measures; and which has been transported from
its point of origin within the site of a land -disturbing activity; and which has been deposited, or is in
suspension in water.
Storm drainage facilities means the system of inlets, conduits. channels, ditches and appurtenances
which serve to collect and convey stormwater through and from a given drainage area.
Stormwater runoff means the direct runoff of water resulting from precipitation in any form.
Subsidiary means an affiliate that is directly or indirectly through one or more intermediaries,
controlled by another person.
Ten-year storm means the surface runoff resulting from a rainfall of an intensity expected to be
equaled or exceeded, on the average, once in ten years, and of a duration which will produce the
maximum peak rate of run-off, for the watershed of interest under average antecedent wetness
conditions.
The town means the Town of Apex, North Carolina.
Tract means all contiguous land and bodies of water being disturbed or to be disturbed as a unit,
regardless of ownership.
Twenty -five-year storm means the surface runoff resulting from a rainfall of an intensity expected to
be equaled or exceeded, on the average, once in 25 years, and of a duration which will produce the
maximum peak rate of runoff, from the watershed of interest under average antecedent wetness
conditions.
Uncovered means the removal of ground cover from, on, or above the soil surface.
Undertaken means the initiating of any activity, or phase of activity, which results or will result in a
change in the ground cover or topography of a tract of land.
Velocity means the average velocity of flow through the cross section of the main channel at the
peak flow of the storm of interest. The cross section of the main channel shall be that area defined by the
geometry of the channel plus the area of flow below the flood height defined by vertical lines at the main
channel banks. Overload flows are not to be included for the purpose of computing velocity of flow.
Waste means surplus materials resulting from on -site construction and disposed of at other
locations.
Working days means days exclusive of Saturday and Sunday during which weather conditions or soil
conditions permit land -disturbing activity to be undertaken.

(Ord. of 7-16-96, § 3; Ord. No. 05-0719-11, § 1, 7-19-05; Ord. No. 2015-0915-36, § 1, 9-15-
2015)
Cross reference Definitions and rules of construction generally, § 1-3.
Sec. 5-144. - Exclusions.
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 production of 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, 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. 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; and
(3) Activities for which a permit is required under the Mining Act of 1971, G.S. ch. 74, art. 7.
(4) Land -disturbing activity over which the state has exclusive regulatory jurisdiction as provided in
G.S. 113A-56(a).
(5) For the duration of an emergency, activities essential to protect human life.
(6) For the purpose of fighting fires.
(7) For the stock piling of raw or processed sand, stone, or gravel in material processing plants
and storage yards, provided that sediment control measures have been utilized to protect
against off -site damage.
To qualify for exemption under this section, a request for exemption shall be submitted to the town (no
exemption is to be assumed until approval of the request by the town). Where land disturbing activities
are undertaken for the purpose of establishing a farm, constructing farm roads, paths, or ponds, the
owner of the property shall file an application for exemption to the town's environmental programs
coordinator. The environmental programs coordinator shall review the application and grant or deny the
exemption within 15 working days of receipt. The land owner shall receive notification of this decision in
writing and have ten working days to respond if the exemption is denied. The director of public works and
utilities shall have five days to review and decide on the appeal. After receipt of the exemption, the
property owner shall have 30 days to file a conservation plan for review with the Wake Soil and Water
Conservation District board of supervisors. The board of supervisors will have 30 days to review the
request. Conservation measures must be installed as scheduled in the approved plan. Failure to meet the
conditions of the exemption shall constitute a violation of this article and shall be retroactive to the
approved date of the original exemption.
(Ord. of 7-16-96, § 4; Ord. No. 05-0719-11, § 1, 7-19-05)

Sec. 5-145. - General requirements.
(a) Soil erosion and sedimentation control plan, letter of soil erosion and sedimentation control plan
approval and certificate of compliance required, No person shall initiate any land -disturbing activity
which uncovers more than 20,000 square feet without having a soil erosion and sedimentation
control plan approved by the town as evidenced by receipt of a letter of soil erosion and
sedimentation control plan approval. Applicants shall receive a letter of soil erosion and
sedimentation control plan approval only after all required tree protection fencing is installed and
inspected. Before installing any approved erosion and sedimentation control measures the applicant
must have received the letter of soil erosion and sedimentation control plan approval. No land
disturbing activity, other than the installation of the erosion and sedimentation control measures,
shall be started until the town issues a certificate of compliance to the applicant. A certificate of
compliance will be signed once all the measures shown on the approved soil erosion and
sedimentation control plan are installed, inspected and approved. Sites must follow the approved soil
erosion and sedimentation control plan which includes the construction sequence. Grading and
development of sites, including single-family residential lots, not exceeding 20,000 square feet shall
meet the requirements of subsection (b) of this section.
(b) Grading and development of sites including single-family residential lots not exceeding 20,000
square feet in surface area shall implement and maintain control measures to restrain erosion and
prevent off -site sediment migration. No person shall initiate any land disturbing activity under 20,000
square feet without submitting an erosion and sedimentation control installation and maintenance
agreement for residential lots. Minimum required measures will include: silt fencing (steel posts,
woven wire, and silt fence geotextile fabric), construction entrances, and downstream rock check
dams in ditch lines. Disturbed areas shall not be left exposed after 15 working days or 30 calendar
days of completion of any phase of grading. No footing inspection by the building inspection division
shall be approved without proper installation of the required sedimentation and erosion control
measures.
(c) 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.
(d) More restrictive rules shall apply. Whenever conflicts exist between federal, state, or local laws,
ordinance or rules, the more restrictive provision shall apply.
(e) Applicants shall post a performance guarantee as provided by section 5-162 of the Apex Town
Code.
(f) Construction site waste management plan. The development of all sites requiring a soil erosion and
sedimentation control plan must adhere to the requirements as stated in the construction site waste
management plan.
(Ord. of 7-16-96, § 5; Ord. No. 05-0719-11, § 1, 7-19-05; Ord. No. 09-0804-07, § 1, 8-4-09; Ord.
No. 2015-0915-36, § 2, 9-15-2015)
Sec. 5-146. - Basic control objectives.
A soil erosion and sedimentation control plan may be disapproved pursuant to section 5-157 of this
article if the plan fails to address the following control objectives:
(1) 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.
(2) Limit time of exposure. All land -disturbing activity is to be planned and conducted to limit
exposure to the shortest feasible time In any event, areas left exposed will, within 15 working
days or 30 calendar days of completion of any phase of grading, whichever period is shorter, be

planted or otherwise provided with ground cover, devices, or structures sufficient to restrain
erosion.
(3) 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 time.
(4) 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.
(5) Control sedimentation. All land -disturbing activity is to be planned and conducted so as to
prevent off -site sedimentation damage.
(6) 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, plans are 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.
Measures are to be implemented to ensure that post -development stream velocities of the
receiving watercourses do not exceed the pre -development velocities as defined in section 5-
149 of this article.
(Ord. of 7-16-96, § 6; Ord. No. 05-0719-11, § 1, 7-19-05)
Sec. 5-147. - Mandatory standards for land -disturbing activity.
No land -disturbing activity subject to the control of this article shall be undertaken except in
accordance with the following mandatory standards:
(1) Buffer zone.
a. 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
25 percent of the buffer zone nearest the land -disturbing activity. 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. Refer to section 6.1, watershed
protection overlay districts, of the town's UDO for primary and secondary buffers.
b. Unless otherwise provided, the width of a buffer zone is measured horizontally from the top
of the bank (nearest the land -disturbing activity) of the stream or waterbody to the nearest
edge of the disturbed area. The 25 percent of the strip nearest the land -disturbing activity
must contain natural or artificial means of confining visible siltation.
(2) Graded slopes and fills. The angle for graded slopes and fills shall be no greater than the angle
which can be retained by vegetative cover or other adequate erosion control devices or
structures. In any event, slopes left exposed will, within 21 calendar days of completion of any
phase of grading, whichever period is shorter, be planted or otherwise provided with
groundcover, devices, or structures sufficient to restrain erosion.
(3) Groundcover. Whenever land -disturbing activity is undertaken on a tract compromising more
than 20,000 square feet, if more than 20,000 square feet is uncovered, the person conducting
the land -disturbing activity shall install such sedimentation and erosion 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. All seeding and mulch activities shall be stabilized
with a tackifier, netting or other suitable material that secures the mulch. Except as provided in
section 5-148(b)(5) of this article, provisions for a ground cover sufficient to restrain erosion
must be accomplished 15 working days or 30 calendar days following completion of
construction or development whichever period is shorter.

(4) Prior plan approval. No person shall initiate any land -disturbing activity on a tract if more than
20,000 square feet is to be uncovered unless, 30 or more days prior to initiating the activity, a
soil erosion and sedimentation control plan for such activity is filed with and approved by the
town as outlined in section 5-145.
(5) Fill material. Unless a permit from the state department of environment and natural resources
division of solid 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 or a
landfill by the state.
(6) The land -disturbing activity shall be conducted in accordance with the approved soil erosion
and sedimentation control plan.
(Ord. of7-16-96, § 7; Ord. No. 05-0719-11, § 1, 7-19-05; Ord. No. 07-0821-12, § 2, 8-21-07)
Sec. 5-148. - Design and performance standards.
(a) Except as provided in subsection (b)(2) herein, erosion and sedimentation control measures,
structures, and devices shall be so planned, designed, and constructed as to provide protection from
the calculated maximum peak rate of runoff from the 25-year storm. Runoff rates shall be calculated
using the procedures in the USDA Soil Conservation Service's "National Engineering Field Manual
for Conservation Practices," or other acceptable calculation procedures.
(b) In high quality water (HQW) zones the following design standards shall apply:
(1) Uncovered areas in HQW zones shall be limited at any time to a maximum total area within the
boundaries of the tract of 20 acres. Only the portion of the land -disturbing activity within a 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.
(2) Erosion and sedimentation control measures, structures, and devices within HQW zones shall
be so planned, designed and constructed to provide protection from the run off of the 25-year
storm which produces the maximum peak rate of run-off as calculated according to procedures
in the United States Department of Agriculture 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.
(3) Sediment basins within HQW zones shall be designed and constructed such that the basin will
have a settling efficiency of at least 70 percent for the 40 micron (0.04 mm) size soil particle
transported into the basin by the runoff of that two-year storm which produces the maximum
peak rate of runoff as calculated according to procedures in the United States Department of
Agriculture 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.
(4) Newly constructed open channels in HQW zones shall be designed and constructed with side
slopes no steeper than two horizontal to one 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 slope shall be sufficient to restrain accelerated erosion.
(5) Ground cover sufficient to restrain erosion must be provided for any portion of a land -disturbing
activity in a HQW zone within 15 working days or 60 calendar days following completion of
construction or development, whichever period is shorter.
(Ord. of 7-16-96, § 8; Ord. No. 05-07 l 9-11, § 1, 7-19-05; Ord. No. 07-0821-12, § 3, 8-21-07)

Sec. 5-149. - Stormwater outlet protection.
(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 standards. Persons shall conduct land -disturbing activity so that the post construction
velocity of the ten-year storm runoff in the receiving watercourse to the discharge point does not
exceed the greater of:
(1) The velocity established by the table in subsection (d) of this section; or
(2) The velocity of the ten-year storm runoff in the receiving watercourse prior to development.
If conditions (1) or (2) of this subsection 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 ten percent.
(c) Acceptable management measures. Measures applied along or in combination to satisfy the intent
of this section are acceptable if there are no objectionable secondary consequences. The
commission 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 are to:
(1) Avoid increases in surface runoff volume and velocity by including measures to promote
infiltration to compensate for increased runoff from areas rendered impervious.
(2) Avoid increases in stormwater discharge velocities by using vegetated or roughened swales
and waterways in lieu of closed drains and high velocity paved sections.
(3) Provide energy dissipaters at outlets of storm drainage facilities to reduce flow velocities to the
point of discharge. These may range from simple rip -rapped sections to complex structures.
(4) Protect watercourses subject to accelerated erosion by improving cross sections and/or
providing erosion -resistant lining.
(5) 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.
(6) Energy dissipaters and outlet structures shall not be constructed in riparian buffer areas unless
no practical alternative exists. In any event, there shall be no direct discharge of stormwater into
watercourses.
(d) Exceptions. This rule shall not apply where it can be demonstrated that stormwater discharge
velocities will not create an erosion problem in the receiving watercourse.
(e) Maximum permissible velocities. The following is a table for maximum permissible velocity for
stormwater discharges:
Material F.P.S. M.P.S.
Fine sand (noncolloidal) 2.5 .8
Sandy loan (noncolloidal)
Silt loan (noncolloidal) 3.0 .9
-- - -

Ordinary firm loam 1 3.5 1 1.1
Fine gravel 1 5.0 f 1.5
Stiff clay (very colloidal) 1 5.0 1 1.5 Ty
Graded, loam to cobbles (noncolloidal) 5.0 1.5
a
Graced, silt to cobbles (colloidal) 5.5 1.7
Alluvial silts (noncolloidal) 3.5 1.1
Alluvial silts (colloidal) �y 5.0 1.5
Coarse gravel (noncolloidal) 6.0 1.8
Cobbles and shingles
Shales and hard pans
5.5 1.7
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 0.95 for slightly sinuous, by 0.9 for moderately sinuous channels, and by 0.8 for
highly sinuous channels.
(Ord. of 7-16-96, § 9; Ord. No. 05-0719-11, § 1, 7-19-05)
Sec. 5-150. - Borrow and 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 department's division of solid 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.
(Ord. of7-16-96, § 10; Ord. No. 05-0719-I 1, § 1, 7-19-05)
Sec. 5-151. - Access and 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.

(Ord. of 7-16-96, § 11; Ord. No. 05-0719-11, § 1, 7-19-05)
Sec. 5-152. - Operations in lakes or natural watercourses.
Land -disturbing activity in connection with construction in, on, over, or under a lake or natural
watercourse shall be planned and conducted in such a manner as to minimize the extent and duration of
disturbance of the stream channel. The relocation of a stream, where relocation is an essential part of the
proposed activity, shall be planned and executed so as to minimize changes in the stream flow
characteristics, except when justification for significant alteration to flow characteristic is provided.
(Ord. of 7-16-96, § 12; Ord. No. 05-0719-11, § 1, 7-19-05)
Sec. 5-153. - Responsibility for maintenance.
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 soil erosion and sedimentation control plan or any provision of this article, the Act, or any order
adopted pursuant to this article 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 and sediment control
measures, except those measures installed within a road or street right-of-way or easement accepted for
maintenance by a governmental agency.
(Ord. of 7-16-96, § 13; Ord. No. 05-0719-11, § 1, 7-19-05)
Sec. 5-154. - Additional measures.
Whenever the town determines that significant 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.
(Ord. of 7-16-96, § 14; Ord. No. 05-0719-11, § 1, 7-19-05)
Sec. 5-155. - Existing uncovered areas.
(a) All uncovered areas existing on the effective date of this article which resulted from land -disturbing
activity, exceed 20,000 square feet, are subject to continued accelerated erosion, and are causing
off -site damage from sedimentation, shall be provided with a ground cover or other protective
measures, structures, or devices sufficient to restrain accelerated erosion and control off -site
sedimentation.
(b) The town will serve upon the landowner or other person in possession or control of the land a
written notice of violation by registered or certified mail, return receipt requested, or by any means
authorized under G.S. 1A-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 soil erosion and sedimentation
control plan (with appropriate fees) 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.

(Ord. of 7-16-96, § 15; Ord. No. 05-0719-11, § 1, 7-19-05)
Sec. 5-156. - Procedures related to soil erosion and sedimentation control plans.
(a) In determining the area to be disturbed, lands under one or diverse ownership being developed as a
unit will be aggregated. If the combined total area of aggregated lots in any subdivision equals
20,000 square feet by one owner, a grading fee and a soil erosion and sedimentation control plan
will be required even if the lots are not contiguous.
(b) A soil erosion and sedimentation control plan may be disapproved if implementation of the plan
would result in a violation of rules adopted by the environmental management commission, other
town rules, or for failure to pay fees or fines owed to the town.
(c) The town will establish a fee schedule and payment shall be required
(d) All proposed soil erosion and sedimentation control plans shall be filed with the town accompanied
by appropriate fees and a copy shall be simultaneously submitted to the Wake Soil and Water
Conservation District, at least 30 days prior to the anticipated commencement of the proposed
activity. The town shall forward to the director of the division of water quality a copy of each soil
erosion and sedimentation control 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, pursuant to G.S. 113A-
57(4).
(e) All applicants shall file two copies of the soil erosion and sedimentation control plan with the town,
at least 30 days prior to the anticipated beginning of such activity and shall keep a copy of the
approved plan on file at the job site. After approving the 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 will require a revised soil erosion and sedimentation control plan.
Pending the preparation of the revised plan, work shall cease or shall continue under conditions
outlined by the town public works and utilities director.
(f) Soil erosion and sedimentation control 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 attorney in fact. The statement
shall include the mailing and street addresses of the principal place of business of: (1) the person
financially responsible; (2) the owner of the land; and (3) any registered agents. If the person
financially responsible is not a resident of North Carolina, a North Carolina agent must be designated
in the statement for the purpose of receiving notice of compliance or noncompliance with the plan,
the Act, this article, or rules or orders adopted or issued pursuant to this article as well as for service
of civil summonses and complaints. If the applicant is not the owner of the land to be disturbed, the
draft soil erosion and sedimentation control plan must include the owner's written consent for the
applicant to submit a draft soil erosion and sedimentation control plan and to conduct the land -
disturbing activity.
(g) The Wake Soil and Water Conservation District shall review the soil erosion and sedimentation
control plan and submit any comments and recommendations to the town within 20 days after the
soil and water conservation district received the soil erosion and sedimentation control plan or within
any shorter period of time as may be agreed upon by the soil and water conservation district and the
town. Failure of the soil and water conservation district to submit its comments and
recommendations within 20 days or within any agreed upon shorter period of time shall not delay
final action on the plan.
(h) The town will review each complete soil erosion and sedimentation control 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.
Any type of approval shall be indicated by the town's executing the letter of plan approval to the
applicant. The letter of plan approval is issued only after the tree protection fencing (if applicable to
the project) is inspected and approved by the town's planning and community development
department. Failure to either approve, approve with modifications, approve with performance

reservations, or disapprove a completed soil erosion and sedimentation control plan within 30 days
of receipt shall be deemed approval. Disapproval of a plan must specifically state in writing the
reasons for disapproval. The town must approve, approve with modifications, or disapprove a
revised plan within 15 days of receipt, or it is deemed to be approved. If, following commencement of
a land -disturbing activity pursuant to an approved soil erosion and sedimentation control plan, the
town determines that the plan is inadequate to meet the requirements of this article, the town may
require any revision of the plan that is necessary to comply with this ordinance. 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. If land disturbing activities are not initiated within one year
from the date of the letter of plan approval, plan approval shall expire and a new plan submittal is
required. The approval of an soil erosion and sedimentation control plan is conditioned upon the
applicant's compliance with federal and state water quality laws, regulations and rules pursuant to
G.S. 113A-61(b)(1). Documentation of compliance with federal and state water quality laws, rules
and regulations from the regulating agency shall be submitted at the request of the plan reviewer.
(i) Any soil erosion and sedimentation control plan submitted for a land -disturbing activity for which an
environmental document is required by the North Carolina Environmental Policy Act (G.S. 113A-1 et
seq.) shall be deemed incomplete until a complete environmental document is available for review.
The town shall promptly notify the person submitting the plan that the 30-day time limit for review of
the plan pursuant to subsection (h) of this section shall not begin until a complete environmental
document is available for review.
(j) The soil erosion and sedimentation control plan required by this section shall contain architectural
and engineering drawings, maps, assumptions, calculations, and narrative statements appropriately
sealed by the responsible designer as needed to adequately describe the proposed development of
the tract and the measures planned to comply with the requirements of this article. Soil erosion and
sedimentation control plan content may vary to meet the needs of specific site requirements.
Detailed mandatory guidelines for plan preparation shall be drafted by the public works department
of the town and may be obtained from the town on request.
(k) The town may disapprove a plan or draft plans if implementation of the plan would result in a
violation of the rules adopted by the environmental management commission to protect riparian
buffers along surface waters. The town may disapprove or revoke a soil erosion and sedimentation
control plan upon a 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 soil erosion and
sedimentation control plan, or has received notice of violation of a plan previously approved by
the commission or a local government pursuant to the Act 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 the Act or a local ordinance adopted
pursuant to the Act 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 the Act;
(4) Has failed to pay appropriate fees required by the town; or
(5) Has failed to substantially comply with state rules or local ordinances and regulations adopted
pursuant to the Act.
For purposes of this subsection an applicant's record may be considered for only the two years prior
to the application date.
In the event that a plan is disapproved pursuant to this subsection, the town shall notify the director
of such disapproval within ten days. The town shall advise the applicant and the director in writing as to
the specific reasons that the plan was disapproved.
(1) Applications for amendment of a soil erosion and sedimentation control 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 soil erosion and sedimentation control plan as originally approved.
(m) No person may initiate a land -disturbing activity in accordance with an approved plan before
notifying the town of the date that the land -disturbing will begin.
(n) When deemed necessary by the town, a preconstruction conference may be required.
(o) Any person engaged in land -disturbing activity who fails to file a soil erosion and sedimentation
control plan in accordance with this article, or who conducts a land -disturbing activity except in
accordance with provisions of an approved soil erosion and sedimentation control plan shall be
deemed in violation of this article.
(p) The public works director may issue a stop work order to any person in violation of any section of
this article.
(q) Fees. The town shall adopt and periodically update a fee schedule to cover the costs of
administering the sediment and erosion control program.
(Ord, of 7-16-96, § 16; Ord. No. 05-0719-11, § 1, 7-19-05; Ord. No. 07-0821-12, §§ 4-6, 8-21-
07)
Sec. 5-157. - Appeals.
(a) Except as provided in subsection (b) of this section, the appeal of a disapproval or approval with
modifications of a soil erosion and sedimentation control plan shall be governed by the following
provisions:
(1) The disapproval or modification of any proposed soil erosion and sedimentation control plan by
the town shall entitle the person submitting the plan to a public hearing if such person submits
written demand for a hearing to the town clerk within 15 days after receipt of written notice of
disapproval or modification.
(2) Hearings held pursuant to this section shall be conducted by the town council within 30 days
after the date of the town's receipt of the appeal or request for a hearing.
(3) The town council will render its final decision on any soil erosion and sedimentation control
plan upon which a hearing is requested within 20 days of the close of the hearings record.
(4) If the town upholds the disapproval or modification of a proposed soil erosion and
sedimentation control plan following the hearing, the person submitting the plan shall then be
entitled to appeal the local government's decision to the state sedimentation control commission
as provided in G.S. 113A-61(c) and title 15A NCAC 413.0018(d).
(b) In the event that a soil erosion and sedimentation control plan is disapproved pursuant to section 5-
156(k) of this article, the town shall notify the director of the division of land resources of such
disapproval within ten days. The town shall advise the applicant and the director in writing as to the
specific reasons that the plan was disapproved. The applicant may appeal the town disapproval of
the soil erosion and sedimentation control plan pursuant to section 5-156 of this article directly to the
commission.
(Ord. of 7-16-96, § l 7; Ord. No. 05-0719-11, § 1, 7-19-05)
Sec. 5-158. - Inspections and investigations.
(a) Agents, officials, or other qualified persons authorized by the town will periodically inspect land -
disturbing activities to ensure compliance with the Act, this article, or rules or orders adopted or
issued pursuant to this article, and to determine whether the measures required in the soil erosion
and sedimentation control plan are effecting in controlling erosion and sediment resulting from land-

disturbing activity. Notice of the right to inspect shall be included in the letter of soil erosion and
sedimentation control plan approval of each soil erosion and sedimentation control plan.
(b) 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) If, it is determined that a person engaged in land -disturbing activity has failed to comply with the Act,
this article, or rules, or orders adopted or issued pursuant to this article, a notice of violation shall be
served upon that person. The notice may be served by any means authorized under G.S. 1A-1, Rule
4 or in the case of violations on single-family residential lots, be served by personnel service with a
return of service form.
The notice shall specify a date by which the person must comply with the Act, or this article, or rules, or
orders adopted pursuant to this article, and inform the person of the actions that need to be taken to
comply with the Act, this article, or rules or orders adopted pursuant to this article. However, no time
period for compliance need be given for failure to submit a soil erosion and sedimentation control plan for
approval or for obstructing, hampering or interfering with an authorized representative while in the
process of carrying out his official duties. Any person who fails to comply within the time specified is
subject to the civil and criminal penalties provided in this article.
(d) 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 article, 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.
(e) The town shall also have the power to require written statements, or the filing of reports under oath,
with respect to pertinent questions relating to land -disturbing activity.
(f) 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
G.S. 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 G.S. 113A-61.1.
(Ord. of 7-16-96, § 18; Ord. No. 05-0719-11, § 1, 7-19-05; Ord. No. 07-0821-12, § 7, 8-21-07)
Sec. 5-159. - Penalties.
(a) Civil penalties.
(1) Any person who violates any of the provisions of this article, or rules or orders adopted or
issued pursuant to this article, or who initiates or continues a land -disturbing activity for which
an soil erosion and sedimentation control 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 for a violation is $5,000.00. Civil penalties may be assessed from the date of the
violation. However, no penalty shall be assessed until the person alleged to be in violation has
been notified of the violation as provided in subsection 5-158(c) of this article. If, after the
allotted time period has expired, the violator has not completed corrective action a civil penalty
may be assessed. Nevertheless, no time period for compliance need be given for failure to
submit a soil erosion and sedimentation control plan for approval, proceeding with the work
before the letter of plan approval is signed by the town, or for obstructing, hampering or
interfering with an authorized representative while in the process of carrying out his official

duties. Proceeding with work before the letter of soil erosion and sedimentation control plan
approval is signed shall constitute grading without a permit. Each day of continuing violation
shall constitute a separate violation.
In addition to the civil penalty schedule listed below, the public works and utilities director may
assess a one-time civil penalty of $5,000.00 on the day of the violation for off -site sedimentation
damage especially in the case of damage to a body of water, wetlands or buffer. Moreover, any
malicious or intentional destruction of silt fencing or other sedimentation and erosion control
device will result in a one-time fine of up to $1,000.00,
Civil penalties for specific violations may be assessed as follows:
Grading without a soil erosion and sedimentation control plan or land -disturbing permit:
$5,000.00 per day for failure to secure a valid, required land disturbing permit (certificate of
compliance) prior to conducting a land -disturbing activity.
Grading beyond the limits of a grading permit: $1,000.00 per day per 1/10 of a graded acre
beyond the limits of an existing grading permit without the approval of an amended grading
permit, but not to exceed $5,000.00 per day.
Failure to protect: $5,000.00 per day for failure to take all reasonable measures to protect
public property or private property, from damage caused by the failure to retain sediment
on -site.
Failure to follow soil erosion and sedimentation control plan: $3,000.00 per day for failure
to conduct a land disturbing activity in accordance with the provisions of an approved
erosion and sedimentation control plan.
Failure to install devices: $5,000.00 per day for failure, when more than one acre is
disturbed ($2,500.00 per day when 20,000 square feet or less than 20,000 square feet is
disturbed), to install erosion and sedimentation control devices sufficient to retain the
sediment generated by the land -disturbing activity within the boundaries of the tract(s) and
prevent off -site sedimentation.
Failure to maintain permanent and/or temporary measures: $2,500.00 per day for failure to
maintain adequate erosion control measures.
Failure to maintain properly slopes and fills: $2,500.00 per day for failure on graded slopes
and fills to maintain an angle sufficient to retain vegetative cover or other adequate erosion
control measures.
Failure to protect exposed slopes: $2,500.00 per day for failure, within 15 working days or
30 calendar days of completion of any phase of grading, whichever period is shorter, to
plant or otherwise provide exposed, graded slopes or fills with groundcover, devices, or
structures sufficient to restrain erosion.
Failure to provide adequate cover: $2,500.00 per day for failure, within 15 working days or
30 calendar days of competition of any phase of grading, whichever is shorter, to plant or
otherwise provide exposed, graded slopes or fills with groundcover, devices, or structures
sufficient to restrain erosion.
Failure to correct a violation after notice: $5,000.00 per day for failure to correct violation
within the time limitations established in a notice of violation.
Failure to revise plan: $2,500.00 per day for failure to file an acceptable revised erosion
and sedimentation control plan within the established deadline after being notified of the
need to do so.

Any other action or failure to act that constitutes a violation of this article: $2,500.00 per
day for any other action or failure to act that constitutes a violation of this article.
Failure to keep dirt and mud off public streets: $1,000.00 per day for failure to prevent the
accumulation of more than one -fourth -inch of dirt, mud, both on public streets, or in public
storm drainage, plus $500.00 per hour per wash truck if the street is cleaned by the town,
its employees or its contractors.
Failure to follow the construction site waste management plan is subject to $1,000.00 per
day for failing to follow all aspects of the plan.
An additional civil penalty of $1,000.00 per day shall be charged to any person assessed a
civil penalty for any violation of this article within the prior two years. A person may be
assessed a civil penalty from the date the violation is detected if the deadline stated is not
met. Each day of a continuing violation shall constitute a separate violation.
(2) The town public works and utilities director shall determine the amount of the civil penalty to be
assessed. In determining the amount of the penalty the town public works and utilities director
shall consider the degree and extent of harm caused by the violation and 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 of failing to comply with
this article.
(3) The town public works and utilities director shall provide notice of the civil penalty amount and
basis for assessment to the person assessed. The notice of assessment shall be served by any
means authorized under G.S. 1A-1, Rule 4, and shall direct the violator to either pay the
assessment or contest the assessment, within 30 days after receipt of the notice of assessment,
by written demand for a hearing.
(4) A hearing on a civil penalty shall be conducted by the town board of adjustment within 30 days
after the date of the written demand for the hearing. The board shall render its final decision on
the civil penalty within 20 days after the close of the hearing record. Appeal from the final
decision of the town board of adjustment shall be to the superior court of the county where the
violation occurred, or the location of the violator's residence or principal place of business.
(5) if payment is not received within 30 days after demand for payment is made the town may
institute a civil action to recover the amount of the assessment. The civil action may be brought
in the superior court of the county where the violation occurred, or the violator's residence or
principal place of business is located. Such civil actions must be filed within three 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.
(6) Civil penalties collected pursuant to this article shall be used or disbursed as directed by law.
(b) Criminal penalties. Any person who knowingly or willfully violates any provision of this article, or rule
or order adopted or issued pursuant to this article, or who knowingly or willfully initiates or continues
a land -disturbing activity for which an erosion control 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 $5,000.00 as provided in G.S. 113A-64.
(Ord. of 7-16-96, § 19; Ord. No. 05-0719-11, § 1, 7-19-05; Ord. No. 07-0821-12, § 8, 8-21-07;
Ord. No. 2015-0915-36, § 3, 9-15-2015)
Sec. 5-160. - Injunctive relief.
(a) Whenever the governing body has reasonable cause to believe that any person is violating or
threatening to violate this article or any rule or order adopted or issued pursuant to this article, or any

term, condition, or provision of an approved erosion control plan, it may, either before or after the
institution of any other action or proceeding authorized by this article, 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 the county.
(b) 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 article.
(Ord, of7-16-96, § 20; Ord. No. 05-0719-11, § 1, 7-19-05)
Sec. 5-161. - Restoration of areas affected by failure to comply.
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 G.S. 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
article.
(Ord. of 7-16-96, § 21; Ord. No. 05-0719-11, § 1, 7-19-05)
Sec. 5-162. - Performance guarantee.
(a) Prior to the town's issuing a letter of soil erosion and sedimentation control plan approval for an
approved soil erosion and sedimentation control plan, the applicant shall provide a performance
guarantee in the form of a certified check, cash or irrevocable letter of credit from any commercial
bank doing business in the State of North Carolina in terms and form approved by the town. The
amount of the performance guarantee shall be $2,500.00 per disturbed acre as defined in the
request for plan approval and approved by the public works director or designee.
(b) Compliance with this chapter and an approved soil erosion and sedimentation control plan shall be
at all times the responsibility of the applicant/owner. Land -disturbing activities that violate either this
chapter or the applicable approved soil erosion and sedimentation control plan after the deadline for
compliance stated in an applicable notice of violation has passed shall subject applicable
performance guarantees to forfeiture.
(c) The performance guarantee shall be used by the town to stabilize the site and otherwise bring the
site into compliance. Any monies in excess of cost of establishing protective measures shall be
refunded to the person responsible for the land -disturbing activity after a certificate of completion for
the project has been issued.
(d) The performance guarantee shall remain in full force and effect until 100 percent of the buildings
(residential and commercial) in the area(s) covered under the performance guarantee have received
a permanent certificate of occupancy and until a certificate of completion has been issued by the
public works department. Failure to extend an irrevocable letter of credit until a certificate of
completion has been issued by the town will result in collection of the performance guarantee.
(e) Collection or use of the performance guarantee by the town does not relieve the applicant, owner or
financially responsible party of penalties, fines or other requirements of this chapter.
(Ord. No. 09-0804-07, § 2, 8-4-09)