NCS000446_Delegated Local Program Agreement_20201218

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NCDENR
North Carolina Department of Environment and Natural Resources
Division of Energy, Mineral and Land Resources
Tracy E. Davis, PE, CPM Land Quality Section Beverly Eaves Perdue, Governor
Director Dee Freeman, Secretary
Town of Apex
The Honorable Keith H.
P.O. Box 250
Apex, NC 27502
Dear Mayor Weatherly:
November 19, 2012
Weatherly, Mayor
The Sedimentation Control Commission met on November 14, 2012, and approved the
Memorandum of Agreement with the Town of Apex. A signed original is enclosed.
Thank you for.submitting your MOA for approval. The Town's willingness to participate as a
delegated erosion and sedimentation control program is greatly appreciated.
Sincerely,
GL—A ��e�, �,
T. Gray Hauser, Jr., PE
State Sedimentation Specialist
Enclosure: Memorandum of Agreement (Signed)
1612 Mail Service Center, Raleigh, North Carolina 27699-1612 • 919-707-92201 FAX; 919-733-2876
512 North Salisbury Street, Raleigh, North Carolina, 27604 • hitp:Nportal.ncdenr,orglwebllrllandquality
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MEMORANDUM OF AGREEMENT
BE'rwLEN
THE NORTH CAROLINA SEDIMENTAT ION CONTROL COMMISSION
AND
TOWN OF APEX
This 'MEMORANDUM OF AGREEMENT is entered into between the North
Carolina Sedimentation Control Commission (hereinafter, "Commission") and
the Town of Apex (hereinafter, "Local Government," collectively, "Parties") for
the purpose of clarifying their roles in the enforcement of the Sedimentation
Pollution Control Act of 1973, N.C. Gen. Stat. Ch. 113A Art. 4 and any rules
adopted pursuant to the Act (hereinafter collectively, "SPCA.")
Part 1. Local Program Creation.
A. Model Ordinance
The Parties agree that the Commission shall do the following:
I. Per N.C. Gen. Stat. § 113A-54(d)(1), provide a model erosion and sedimentation
control ordinance (hereinafter, `model ordinance") for adoption by local governments
who wish to operate a delegated local sedimentation and erosion program
(hereinafter, `'local program.")
2. Update its model ordinance upon changes in the SPCA.
B. ProposedOrdinance Review
"I'he Parties agree that:
. Local governments who choose to create and operate a local program may do so by
ordinance (hereinafter, "local program ordinance".) The local government must
submit the proposed local program ordinance to the Commission staff for review
prior to adoption. The local government must also adopt the ordinance prior to
submission to the Commission for approval.
2. North Carolina General Statute § 113A-60(b) requires the Commission to review,
approve, approve as modified, or disapprove proposed local program ordinances
based upon the minimum requirements of the SPCA.
3. The Commission shall review a local program ordinance submitted and, within 90
_ days of receipt thereof, shall notify the local .SQY,er me l�submittingfile }Lgram lot
it has been approved, approved with modifications, or disapproved.

4. The local program's erosion and sedimentation control standards must equal or
exceed those of the SPCA.
Part II. Responsibilities and Expectations of the Commission.
A. Local Program Review
The Parties agree that the Commission shall do the following:
Review periodically approved local programs for compliance with the SPCA. The
results of the reviews shall be presented at the next quarterly meeting of the
Commission.
2. If the Commission determines that any local government is failing to administer or
enforce an approved erosion and sedimentation control program, it shall notify the
local government in writing and shall specify the deficiencies of administration and
enforcement.
3. If the local government has not taken corrective action within 30 days of receipt of
notification from the Commission, the Commission shall assume administration and
enforcement of the program until such time as the local government indicates its
willingness and ability to resume administration and enforcement of the program.
B. 'i-raining and Education for Local Programs
The Parties agree that the Commission shall provide the following:
l . Educational programs in erosion and sedimentation control directed toward persons
engaged in land -disturbing activities, general educational materials on erosion and
sedimentation control, and instructional materials for persons involved in the
enforcement of the SPCA and erosion and sedimentation control rules, ordinances,
regulations, and plans.
2. Manuals and publications to assist in the design, construction and inspection of erosion
and sedimentation control measures.
3. Periodic reviews of local erosion and sedimentation control programs and through the
reviews provide recommendations to improve program administration.
4. Technical assistance in review of draft erosion and sedimentation control plans for
complex activities.
C. Concurrent .lurisdiction
Tho Parties agree that the Commission shall maintain concurrent jurisdiction with the local
government for land -disturbing activities and may take appropriate compliance action if the
Commission determines that the local government has failed to take appropriate compliance
action.
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Part III. Responsibilities and Expectations of the Local Government.
A. Enforcement
The ['allies agree that the local government shall administer its own local program ordinances,
through the following. -
Enforce the provisions of the SPCA.
?. Administer the SPCA for all land -disturbing activity within its jurisdiction, including
existing sites at the time the local government received program delegation. The
Commission may continue to administer the SPCA over specific projects under
enforcement action upon mutual agreement with the local government. The local
program is not responsible for activities over which the Commission has exclusive
jurisdiction.
3_ Employ a sufficient number of qualified personnel. Qualified personnel shall be
competent to review sedimentation and erosion control plans and conduct inspections
of land -disturbing activities.
4. Provide adequate resources for plan review and compliance inspections.
B. Reporting
The Parties agree that the local government shall provide the following reports/information:
1. ivlonthly activity report to the Commission in the form adopted by the Commission.
2. Copy of all Financial Responsibility.. -'Ownership forms to the Division of Water
Quality (DWQ) when draft erosion and sedimentation control plans are received.
3. Copy of Notices of Violation to the appropriate regional office of DWQ,
4. Current contact information for their local program to the Division of Energy,
Mineral and Land Resources.
C. Sediment and Erosion Control Plans for Land -Disturbing Activity Review
The Parties agree that the local government shall review erosion and sedimentation control plans
for land -disturbing activity (hereinafter, "plans") submitted to its local program under the
following standards:
1. Review plans within 30 days of receipt of a new plan and within 15 days of a revised
plan.
2. Approve, approve with modifications, approve with performance reservations, or
disapprove draft plans in conformance with the basic control objectives contained in
15A NCAC 04B .0106.
3. Notify in writing the person submitting the plan that it has been approved, approved
ons or disaplmved I.val in 30
days of receipt of a new plan and within 15 days of a revised plan.
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4. Include in written notifications of plan approval the following:
a. reference to NPDES General Stormwater Permit NCG 010000,
b. expiration date of the approval,
c. the right of periodic inspection, and
d. condition the approval upon the applicant's compliance with federal
and State water quality laws, regulations and rules.
5. Enclose with all written permit notifications the following
a. NPDES General Stormwater Permit NCG 010000, and
b. Certificate of Approval for posting at the site of the land -disturbing
activity.
D. Inspection
The Parties agree that the local government shall inspect all sites undergoing land -disturbing
activity under the following standards:
a. Periodically and regularly inspect sites undergoing land -disturbing
activity within its jurisdiction. Periodically and regularly means with
sufficient frequency to effectively monitor compliance with the SPCA
and rules adopted pursuant to the SPCA and the local erosion and
sedimentation control ordinance.
2. Document all inspections in writing, including electronic documents.
3. Inspection reports shall include, at a minimum, all information in the model
sedimentation inspection report developed by the Commission.
4, Maintain inspection records for active projects in accordance with State and local
record retention policies.
F. Enforcement
The Parties agree that the local government shall enforce its local program ordinance under the
following standards:
I. Issue Notices of Violation (hereinafter, "NOV") for any significant violation of the
SPCA, rules adopted pursuant to the SPCA, or the local erosion and sedimentation
control ordinance documented in an inspection report. An NOV shall be issued to the
persons responsible for the violations, pursuant to N.C. Gen. Stat. § l 13A-61.1.
2. The NOV shall specify the following:
a. describe the violation with reasonable particularity
b. request that all illegal activity cease
c. the actions that need to be taken to comply with the SPCA and the local ordinance
d. a date by which the person must comply with the SPCA and the local ordinance
e. inform tile violator that any person who tails to comply within the time specified
is subject to additional civil and criminal penalties for a continuing violation as
provided in G.S. l 13A-64 and the local ordinance
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3. Undertake appropriate enforcement actions, including injunctive relief; or assessment
of civil penalties for an initial penalty or a daily penalty for continuing violations.
4. 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 space left intentionally blank.]
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1N WITNESS HEREOF, the Parties enter into this }Memorandum of Agreement, this the
day of _� h1ct�+�z 2012.
SEDIMENTATION CONTROL COMMISSION
Robin K. Smith
Chair
Dated:
D1vISION OF ENERGY, MINERAL AND LAND
RESOURCES
��r v
By:_UCDTv-i
Tracy
Director Dated:. d f
Approved as to Form
Counsel to the Commission
Dated: 7_e>12..
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TOWN OF APEX
Keith 1-I. Weatherly
Mayor,
Dated:
Attest:
By:
Donna B. Hosch, C1vIC
Town Clerk.
Dated:

A.Vpendix 1.
NORTH CAROLINA GENERAL S'rATUTE;S
Sedlntentatlon Pollution Control Act (Ch. 113A Art. 4)
(selected statutes)
§ 113A-54. Powers and duties of the Commission. revised plan if the commission determines that a
(d) In implementing the erosion and sedimentation plan does not comply with the requirements of
control program, the Commission shall this Article or the rules adopted pursuant to this
Article.
(1) Assist and encourage local governments in
developing erosion and sedimentation control
programs and, as a part of this assistance, the
Commission shall develop a model local erosion
and sedimentation control ordinance. The
Commission shall approve, approve as
modified, or disapprove local programs
submitted to it pursuant to G.S. 113A-60.
§ 113A-56. Jurisdiction of the Commission.
(a) The Commission shall have jurisdiction, to the
exclusion of local governments, to adopt rules
concerning land -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 other than a local government.
(4) Conducted by a local government.
(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 other State agency that has submitted an erosion
and sedimentation control program to be
administered by it, if the program has been approved
by the Commission as being in conformity with the
general State program.
(2) To review the compliance activities of a
delegated erosion and sedimentation control
program and to take appropriate compliance
action if the Commission determines that the
local government has failed to take appropriate
compliance action.
(1973, c. 392, s. 7; c. 1417, s. 4; 1987, c. 827, s. 130;
1987 (Reg. Sess., 1988), c. 1000, s. 4; 2002-165, s. 2.5;
2006-250, s.2.)
§ 113A-60. LocaI erosion and sedimentation control
programs.
(a) A local government may submit to the Commission
for its approval an erosion and sedimentation control
program for its jurisdiction, and to this end local
governments are authorized to adopt ordinances and
regulations necessary to establish and enforce
erosion and sedimentation control programs. An
ordinance adopted by a local government may
establish a fee for the review of an erosion and
sedimentation control plan and related activities.
Local governments are authorized to create or
designate agencies or subdivisions of local
government to administer and enforce the programs.
An ordinance adopted by a local government shall at
least meet and may exceed the minimum
requirements of this Article and the rules adopted
pursuant to this Article. Two or more units of local
government are authorized to establish a joint
(c) The Commission shall have concurrent jurisdiction program and to enter into any agreements that are
with local governments that administer a delegated necessary for the proper administration and
erosion and sedimentation control program over all enforcement of the program. The resolutions
other land -disturbing activities. In addition to the establishing any joint program must be duly
authority granted to the Commission in G.S. 113A- recorded in the minutes of the governing body of
60(c), the Commission has the following authority each unit of local government participating in the
with respect to a delegated erosion and program, and a certified copy of each resolution
sedimentation control program: must be filed with the Commissi6n.
(1) To review erosion and sedimentation control (b) The Commission shall review each program
plan approvals made by a delegated erosion and submitted and within 90 days of receipt thereof shall
,zedimentalinn c.nntrnl prnrr.'n!1 and to require ;i

that it has been approved, approved with
control program shall pay to the Commission the
modifications, or 'disapproved. The Commission
portion of the fee that equals eighty percent (80%)
shall only approve a program upon determining that
of the fee established pursuant to G.S. 1 13A-54.2(a)
its standards equal or exceed those of this Article
to cover the cost to the Commission for the
and rules adopted pursuant to this Article.
administration and enforcement of other components
(c) If the Commission determines that any local
of the erosion and sedimentation control program.
government is failing to administer or enforce an
pees paid to the Commission by a local government
approved erosion and sedimentation control
shall be deposited in the Sedimentation Account
program, it shall notify the local government in
established by G.S. I I 3A-54.2(b). A local
writing and shall specify the deficiencies of
government that administers a limited erosion and
administration and enforcement. If the local
sedimentation control program and that receives an
government has not taken corrective action within
erosion control plan and fee under this subsection
30 days of receipt of notification from the
shall immediately transmit the plan to the
Commission, the Commission shall assume
Commission for review. A local government may
administration and enforcement of the program until
create or designate agencies or subdivisions of the
such time as the local government indicates its
local government to administer the limited program.
willingness and ability to resume administration and
Two or more units of local government may
enforcement of the program.
establish a joint limited program and enter into any
agreements necessary for the proper administration
(d) A local government may submit to the Commission
of the limited program. The resolutions establishing
for its approval a limited erosion and sedimentation
any joint limited program must be duly recorded in
control program for its jurisdiction that grants the
the minutes of the governing body of each unit of
local government the responsibility only for the
local government participating in the limited
assessment and collection of fees and for the
program, and a certified copy of each resolution
inspection of land -disturbing activities within the
must be filed with the Commission. Subsections (b)
jurisdiction of the local government. The
and (c) of this section apply to the approval and
Commission shall be responsible for the
oversight of limited programs.
administration and enforcement of all other
(�) Notwithstanding r S. 113A-61.i, a local
components of the erosion and sedimentation
government with a limited erosion and
control program and the requirements of this Article.
sedimentation control program shall not issue a
The local government may adopt ordinances and
notice of violation if inspection indicates that the
regulations necessary to establish a limited erosion
person engaged in land -disturbing activity has failed
and sedimentation control program. An ordinance
-a
to comply with this Article, rules adopted pursuant
adopted by local government that establishes a
to this Article, or an approved erosion and
limited program shall conform to the minimum
sedimentation control plan. The local government
requirements regarding the inspection of land-
shall notify the Commission if any person has
disturbing activities of this Article and the rules
initiated land -disturbing activity for which an
adopted pursuant to this Article regarding the
erosion and sedimentation control plan is required in
inspection of land -disturbing activities. The local
the absence of an approved plan. If a local
government shall establish and collect a fee to be
government with a limited program determines that
paid by each person who submits an erosion and
a person engaged in a land -disturbing activity has
sedimentation control plan to the local government.
failed to comply with an approved erosion and
The amount of the fee shall be an amount equal to
sedimentation control plan, the local government
eighty percent (80%) of the amount established by
shall refer the matter to the Commission for
the Commission pursuant to G.S. 113A-54.2(a) plus
inspection and enforcement pursuant to G.S. 113A-
any amount that the local government requires to
61.1.
cover the cost of inspection and program
administration activities by the local government-
The total fee shall not exceed one hundred dollars
' E. ' s. � e. ess., , c. s
�� 2UO2-165, s. 2.8; 20U6-250, 3.}
($100.00) per acre. A local government that
adntipiSE rS_a_Limilesl rQsiotzand—sedhnentatiot