03_Burlington-UDO-3-15-22

CHAPTER 7 ENVIRONMENT
Section 7.4 Stormwater
(AMENDED 10.20.20 UDOTA-03-20)
This section 7.4, Stormwater, shall be known as the "City of Burlington Stormwater Management Ordinance."
This ordinance may be referred to as "this section."
A. AUTHORITY
1. This section is adopted pursuant to the authority vested in City of Burlington by the North Carolina
law, including, but not limited to:
a. Article 14, Section 5 of the Constitution of North Carolina;
b. The Charter of the City of Burlington;
c. Section 143-214.7 of the North Carolina General Statutes;
d. All applicable rules promulgated by the Environmental Management Commission in accordance
with the North Carolina General Statutes;
e. Session Law 2004-163;
f. Session Law 2006-246; and
g. Sections 160A-174 and 160A-185 of the North Carolina General Statutes.
2. The Stormwater Administrator shall interpret these standards in accordance with Section 2.4.F,
Determination. The Stormwater Administrator shall maintain a record of all written determinations of
these standards.
B. FINDINGS
(AMENDED 10.20.20 UDOTA-03-20)
The City Council establishes this set of stormwater quality and quantity regulations to meet the
requirements of State and federal law regarding control of stormwater runoff and discharge based on the
determination that:
1. Development and redevelopment alter the hydrologic response of local watersheds and increases
stormwater runoff rates and volumes, flooding, soil erosion, stream channel erosion, nonpoint and
point source pollution, and sediment transport and deposition, as well as reducing groundwater
recharge;
2. These changes in stormwater runoff contribute to increased quantities of water -borne pollutants and
alterations in hydrology which are harmful to public health and safety as well as to the natural
environment;
3. These effects can be managed and minimized by applying proper design and well -planned controls to
manage stormwater runoff from development sites; and
4. The Federal Water Pollution Control Act of 1972 ("Clean Water Act") and federal Phase II Stormwater
Rules promulgated under it, as well as rules of the North Carolina Environmental Management
Commission promulgated in response to federal Phase II requirements, compel certain urbanized
areas, including this jurisdiction, to adopt the minimum stormwater controls such as those included in
this ordinance.
C. PURPOSE AND INTENT
(AMENDED 10.20.20 UDOTA-03-20)
The purpose of this section is to protect, maintain, and enhance the public health, safety, environment,
and general welfare by establishing minimum requirements and procedures to control the adverse effects
of increased post -development stormwater runoff and nonpoint and point source pollution associated with
new development and redevelopment as well as illicit discharges into municipal separate stormwater
systems. It has been determined that proper management of construction related stormwater and post -
development stormwater runoff will minimize damage to public and private property and infrastructure;
safeguard the public health, safety, and general welfare; and protect water resources and the aquatic
environment. These standards seek to meet the general purpose through the following specific objectives
and means:
1. Establish decision -making processes for development that protect the integrity of watersheds and
preserve the health of water resources;
2. Require that new development and redevelopment maintain the pre -development hydrologic response
in their post -development state as nearly as practicable for the applicable design storm to reduce
flooding, streambank erosion, nonpoint and point source pollution and increases in stream
temperature, and to maintain the integrity of stream channels and aquatic habitats;
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CHAPTER 7 ENVIRONMENT
Section 7.4 Stormwater
3. Establish minimum post -development stormwater management standards and design criteria for the
regulation and control of stormwater runoff quantity and quality;
4. Establish design and review criteria for the construction, function, and use of structural stormwater
control measures (SCMs) that may be used to meet the minimum post -development stormwater
management standards;
5. Encourage the use of best management and site design practices, such as the use of vegetated
conveyances for stormwater and the preservation of greenspace, riparian buffers, and other
conservation areas, to the maximum extent practicable;
6. Establish provisions for the long-term responsibility for and maintenance of structural and
nonstructural SCMs to ensure that they continue to function as designed, are maintained appropriately,
and pose no threat to public safety;
7. Establish administrative procedures for the submission, review, approval and disapproval of
stormwater management plans, for the inspection of approved projects, and to assure appropriate
long-term maintenance;
8. Require site design plans that include open space and natural areas in accordance with this section
and the City's adopted policy guidance;
9. Control illicit discharges into the City's stormwater system;
10. Control erosion and sedimentation from construction activities per Section 7.5, Soil Erosion and
Sedimentation; and
11. Assign responsibility and processes for approving the creation and maintenance of adequate drainage
and flood damage prevention measures per the City's adopted policy guidance and floodplain
management program.
D. APPLICABILITY
(AMENDED 10.20.20 UDOTA-03-20)
1. Unless exempted in accordance with Section 7.4.E, Exemptions, the standards in this section and
Section 2.4.U, Stormwater Permit, shall be applicable to all development and redevelopment,
including, but not limited to site plans, subdivisions, and land disturbing activities located in the City's
jurisdiction.
2. No development or redevelopment shall occur except in compliance with the provisions of this section,
unless exempted.
3. No development for which a permit is required pursuant to this section shall occur except in compliance
with the provisions, conditions, and limitations of the permit and this section.
E. EXEMPTIONS
(AMENDED 10.20.20 UDOTA-03-20)
The following activities shall be exempt from this section:
1. Development or redevelopment that cumulatively disturbs less than one acre and is not part of a larger
common plan of development or sale is exempt from these standards. Development and
redevelopment that cumulatively disturbs less than one acre are not exempt from these standards if
such activities are part of a larger common plan of development or sale, even though multiple,
separate, or distinct activities take place at different times on different schedules; and
2. Activities that are exempt from permit requirements of Section 404 of the federal Clean Water Act as
specified in 40 CFR 232 (e.g., ongoing farming and forestry activities).
F. EFFECTIVE DATE
(AMENDED 10.20.20 UDOTA-03-20)
The stormwater standards in this section shall take effect on July 1, 2007.
G. PRE-EXISTING DEVELOPMENT AND REDEVELOPMENT
(AMENDED 10.20.20 UDOTA-03-20)
1. This section shall not require private property owners to install new or increased stormwater controls
for:
a. Pre-existing development; or
b. Redevelopment activities that do not remove or decrease existing stormwater controls and do not
increase impervious surface.
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Section 7.4 Stormwater
2. When a pre-existing development is redeveloped, either in whole or in part, increased stormwater
controls shall only be required for the amount of impervious surface being created that exceeds the
amount of impervious surface that existed before the redevelopment.
H. DETERMINATION
(AMENDED 10.20.20 UDOTA-03-20)
1. Generally
The Stormwater Administrator has authority to determine these standards. Any person may request
a determination by submitting a written request in accordance with Section 2.4.F, Determination. The
Stormwater Administrator shall respond to an application for a formal determination of these standards
in writing within 30 days.
2. Meaning and Intent
All provisions, terms, phrases, and expressions contained in this section shall be construed according
to the general and specific purposes set forth in Section 7.4.C, Purpose and Intent. If a different
meaning is given for a term defined elsewhere in this Ordinance, the meaning and application of the
term in Section 7.4, Stormwater, shall control for the purposes of application of these standards.
I. STORMWATER DESIGN MANUAL
(AMENDED 10.20.20 UDOTA-03-20)
1. Reference to Stormwater Design Manual
a. The Stormwater Administrator shall use the policy, criteria, and information, including technical
specifications and standards, in the Stormwater Design Manual as the basis for decisions about
stormwater permits and about the design, implementation and performance of structural and non-
structural SCMs.
b. The Stormwater Design Manual includes a list of acceptable stormwater treatment practices,
including specific design criteria for each stormwater practice. Stormwater treatment practices
that are designed, constructed, and maintained in accordance with these design and sizing criteria
will be presumed to meet the minimum water quality performance standards of the Phase II laws.
2. Relationship of Stormwater Design Manual to Other Laws and Regulations
If the specifications or guidelines of the Stormwater Design Manual are more restrictive or apply a
higher standard than other laws or regulations, that fact shall not prevent application of the
specifications in the Stormwater Design Manual, to the extent permitted by law.
3. Changes to Standards and Specification
If the standards, specifications, guidelines, policies, criteria, or other information in the Stormwater
Design Manual are amended subsequent to the submittal of an application for approval pursuant to
these standards but prior to approval, the new information shall control and shall be utilized in
reviewing the application and in implementing these standards with regard to the application.
4. Amendments to Stormwater Design Manual
a. The Stormwater Design Manual may be updated and expanded from time to time, based on
advancements in technology and engineering, improved knowledge of local conditions, or local
monitoring or maintenance experience.
b. Prior to amending or updating the Stormwater Design Manual, proposed changes shall be
generally publicized and made available for review, and an opportunity for comment by interested
persons shall be provided.
]. STANDARDS
All development and redevelopment subject to this section shall comply with the following:
1. Development Standards for Low -Density Projects
(AMENDED 10.20.20 UDOTA-03-20); (AMENDED 10.20.20 UDOTA-03-20)
Low -density projects are defined as projects that have no more than 24 percent built -upon area for
all residential and non-residential development and shall comply with each of the following standards.
a. Stormwater runoff from the development shall be transported from the development by vegetated
conveyances to the maximum extent practicable. Green infrastructure and on -site stormwater
treatment devices in particular, those promoting infiltration, may also be used as added controls
for stormwater runoff.
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Section 7.4 Stormwater
b. All built -upon area shall be at least 50 feet landward of all perennial and intermittent surface
waters in accordance with Section 7.3, Riparian Buffers, and Section 7.4.3.3, Undisturbed Buffer.
c. The approval of the stormwater permit shall require an enforceable restriction on property usage
that runs with the land, such as a recorded deed restriction or protective covenants, to ensure
that future development and redevelopment maintains the site consistent with the approved
project plans.
2. Development Standards for High -Density Projects
(AMENDED 10.20.20 UDOTA-03-20)
a. High -density projects, defined as, any project that exceeds the low -density threshold for built -
upon area, shall implement stormwater control measures that comply with each of the following
standards:
i. The measures shall be designed to control and treat the stormwater runoff generated from all
surfaces by the first one inch of rain;
ii. Runoff volume drawdown time shall be a minimum of 48 hours, but not more than 120 hours;
iii. Discharge the storage volume at a rate equal to or less than the predevelopment discharge
rate for the one-year, 24-hour storm;
iv. All structural SCMs used to meet these requirements shall be designed to have a minimum of
85 percent average annual removal for Total Suspended Solids (TSS);
v. General engineering design criteria for all projects shall be in accordance with 15A NCAC 2H
.1008(c), as explained in the Stormwater Design Manual; and
vi. All built -upon area shall be at least 50 feet landward of all perennial and intermittent surface
waters in accordance with Section 7.3, Riparian Buffers, and Section 7.4.13, Undisturbed
Buffer.
b. The approval of the stormwater permit shall require an enforceable restriction on property usage
that runs with the land, such as recorded deed restrictions or protective covenants, to ensure that
future development and redevelopment maintains the site consistent with the approved project
plans.
3. Undisturbed Buffer
a. Buffer Width, Generally
(AMENDED 10.20.20 UDOTA-03-20)
i. A minimum 30-foot wide undisturbed buffer measured horizontally on a line perpendicular to
a vertical line marking the edge of the top of the bank shall be provided directly adjacent to
surface waters, including intermittent streams, perennial streams, lakes, reservoirs, and
ponds.
ii. All built -upon area shall be at least 50 feet landward of surface waters, including intermittent
streams, perennial streams, lakes, reservoirs, and ponds.
iii. A surface water shall be deemed present if the feature is approximately shown on either the
most recent published version of the soil survey map prepared by the Natural Resources
Conservation Service of the United States Department of Agriculture (USDA) or the most
recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic maps prepared by
the United States Geologic Survey (USGS). An exception to this requirement may be allowed
when surface waters are not present in accordance with the provisions of 15A NCAC 2B .0233
(3)(a) or similar site -specific determination made using NC Department of Environmental
Quality -approved methodology.
4. Standards for Stormwater Control Measures
a. Evaluation According to Contents of Design Manual
All stormwater control measures (SCMs) and stormwater treatment practices required under this
section shall be evaluated by the Stormwater Administrator according to the policies, criteria, and
information, including technical specifications and standards and the specific design criteria for
each stormwater practice, in the Stormwater Design Manual. The Stormwater Administrator shall
determine whether proposed SCMs will be adequate to meet the requirements of this section.
b. Determination of Adequacy; Presumptions and Alternatives
Stormwater treatment practices that are designed, constructed, and maintained in accordance
with the criteria and specifications in the Stormwater Design Manual will be presumed to meet the
minimum water quality and quantity performance standards of this section. Whenever an applicant
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Section 7.4 Stormwater
proposes to utilize a practice or practices not designed and constructed in accordance with the
criteria and specifications in the Stormwater Design Manual, the applicant shall have the burden
of demonstrating that the practice(s) will satisfy the minimum water quality and quantity
performance standards of this section. The Stormwater Administrator may require the applicant
to provide the documentation, calculations, and examples necessary for the Stormwater
Administrator to determine whether such an affirmative showing is made.
c. Separation from Seasonal High Water Table
(AMENDED 10.20.20 UDOTA-03-20)
For SCMs that require a separation from the seasonal high-water table, the separation shall be
provided by naturally occurring soil above the seasonal high water table at a depth that meets the
applicable standards in the Stormwater Design Manual for that SCM.
5. Dedication of SCMs, Facilities & Improvements
Unless otherwise approved by City Council, ownership and maintenance responsibility of any existing
or future stormwater management facilities shall remain with the owner of the property or a legally
established property owners' association. Such facilities shall meet all the requirements of this section
and include adequate and perpetual access and sufficient area, by easement or otherwise, for
inspection and regular maintenance.
6. Animal Waste
(AMENDED 10.20.20 UDOTA-03-20)
a. It shall be unlawful for the owner or custodian of any animal to take it off the owner's own property
limits without the means to properly remove and dispose of the animal's feces from any public
property.
b. It is the responsibility of the animal's owner or custodian to clean up the animal's feces from any
public property outside of the animal owner's own property limits. Such property includes, but is
not limited to, parks, rights -of -way, paths, and public access areas.
c. "Means to properly remove and dispose of feces" shall consist of having on or near one's person
a device such as a plastic bag, or other suitable container that can be used to clean up and contain
animal waste until it can be disposed of in an appropriate container. Such a device must be
produced and shown, upon request, to anyone authorized to enforce these standards.
d. This provision shall not apply to persons with disabilities who are assisted by trained guide or
assistant dogs, or other service animals trained to assist persons with disabilities.
e. Violations of these animal waste standards are determined to be dangerous to the public health
or safety and declared to be a public nuisance and shall be addressed in accordance with Section
2.5, Enforcement, and Chapter 22 of the City Code of Ordinances.
7. Nutrient Sensitive Waters
In addition to the standards for stormwater handling set out in the Stormwater Design Manual,
development and redevelopment that drains in whole or part to class NSW waters shall design and
implement the best stormwater practices that reduce nutrient loading, while still meeting the other
requirements of these standards.
8. Nutrient Application Management Program
a. Generally
The purpose of this provision is to protect water quality by managing the application of nutrients,
both inorganic fertilizer and organic nutrients, to lands in the region. This provision requires
nutrient application in keeping with the most current state -recognized technical guidance on
proper nutrient management in order to help protect water quality in the region.
b. Applicability
(AMENDED 10.20.20 UDOTA-03-20)
These standards shall apply to the following persons within the City's jurisdiction
i. Persons who own or manage cropland areas for commercial purposes;
ii. Persons who own or manage commercial ornamental and floriculture areas and greenhouse
production areas;
iii. Persons who own or manage golf courses, grassed public recreational lands, grassed road or
utility rights -of -way, or other institutional lands totaling at least five acres in size;
iv. Persons hired to apply nutrients to the lands described in items (i) through (iii) above or to
residential, commercial, industrial, or institutional properties, if the total area of the properties
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served exceeds ten acres. This shall not apply to residential, commercial, or industrial
landowners who apply nutrients to their own property.
v. Nutrient management consultants hired by any of the persons listed above to provide nutrient
management advice for lands in the City's jurisdiction.
c. Standards
Persons subject to the standards in this section shall comply with the following requirements:
i. Any person subject to this rule who applies nutrients to, or who is hired to provide nutrient
management advice for, land within the City's jurisdiction shall either:
a) Attend and complete nutrient management training pursuant to Section 7.4.1.9, Nutrient
Management Training; or
b) Complete and properly implement a nutrient management plan for all lands to which they
apply or manage the application of nutrients, or for which they provide nutrient
management advice in accordance with Section 7.4.110, Nutrient Management Plans.
ii. Persons who hire an applicator to apply nutrients to the land that they own or manage shall
either:
a) Ensure that the applicator they hire has attended and completed nutrient management
training pursuant to Section 7.4.3.9, Nutrient Management Training;
b) Ensure that the applicator they hire has completed a nutrient management plan for the
land that they own or manage pursuant to Section 7.4.3.10, Nutrient Management Plans;
or
c) Complete a nutrient management plan for the land that they own or manage pursuant to
Section 7.4.3.10, Nutrient Management Plans, and ensure that the applicator they hire
follows this plan.
9. Nutrient Management Training
(AMENDED 10.20.20 UDOTA-03-20)
Persons who choose to meet this requirement by completing nutrient management training shall
comply with the following requirements:
a. Persons subject to this section shall complete training provided by either the Cooperative Extension
Service or the North Carolina Department of Environmental Quality's Division of Water Resources
and obtain a certificate from the training entity to that effect within one year from the date that
they became subject to these requirements. Training shall be sufficient to provide participants
with an understanding of the value and importance of proper management of nitrogen and
phosphorus, and the water quality impacts of poor nutrient management, and the ability to
understand and properly carry out a nutrient management plan;
b. Persons who fail to obtain the nutrient management certificate within the required timeframes or
who are found by the Stormwater Administrator to have knowingly failed to follow nutrient
management requirements in this subsection shall develop and properly implement nutrient
management plans pursuant to Section 7.4.3.10, Nutrient Management Plans; and
c. Training certificates shall be kept on -site, at the job site, or be produced within 24 hours of a
request by the City.
10. Nutrient Management Plans
(AMENDED 10.20.20 UDOTA-03-20)
Persons who choose to meet this requirement by completing and implementing a nutrient
management plan shall meet the following requirements:
a. Nutrient management plans shall be developed and implemented within six months from the date
they became subject to these requirements, and shall meet the following standards:
i. Nutrient management plans for cropland shall meet the standards and specifications adopted
by the NC Soil and Water Conservation Commission, including those found in 15A NCAC 06E
.0104 and 15A NCAC 06F .0104, which are incorporated herein by reference, including any
subsequent amendments and additions to such rules that are in place at the time that plans
are approved by a technical specialist as required under Section (b) below;
ii. Nutrient management plans for turfgrass shall follow the North Carolina Cooperative Extension
Service guidelines in "Water Quality and Professional Lawn Care" (NCCES publication number
WQMM-155), "Water Quality and Home Lawn Care" (NCCES publication number WQMM-151),
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or other equivalent or more stringent guidance distributed by land-grant universities for
turfgrass management; and
iii. Nutrient management plans for nursery crops and greenhouse production shall follow the
Southern Nurserymen's Association guidelines promulgated in "Best Management Practices
Guide For Producing Container -Grown Plants" or other equivalent or more stringent guidelines
distributed by land-grant universities. The materials related to nutrient management plans for
turfgrass, nursery crops and greenhouse production are hereby incorporated by reference
including any subsequent amendments and editions and are available for inspection at the
Department of Environmental Quality's offices.
b. Nutrient management plans shall be approved by a technical specialist in accordance with the
following:
i. Nutrient management plans for cropland using either inorganic fertilizer or organic nutrients
shall be approved by a technical specialist designated pursuant to the process and criteria
specified in rules adopted by the Soil and Water Conservation Commission for nutrient
management planning, including 15A NCAC 06F .0105, excepting Sub -Item (a)(2) of that rule;
and
ii. Nutrient management plans for turfgrass and nursery crops and greenhouse production shall
be approved by a technical specialist designated by the Soil and Water Conservation
Commission pursuant to the process and criteria specified in 15A NCAC 06F .0105, excepting
Sub -Item (a)(2) of that rule. If the Soil and Water Conservation Commission does not
designate such specialists, then the Environmental Management Commission shall do so using
the same process and criteria.
c. Nutrient management plans and supporting documents shall be kept on -site or be produced within
24 hours of a request by the City.
11.On-Site Wastewater
a. On -Site Wastewater System Permit
For new development and redevelopment that utilize on -site wastewater treatment systems, a
copy of the approved on -site wastewater system permit issued by the Alamance County or Guilford
County Health Department, as appropriate, shall be provided to the Stormwater Administrator as
part of the stormwater permit application.
b. Standards for Operation and Maintenance
On -site treatment systems for domestic wastewater shall be operated and maintained so as to
avoid adverse effects on surface water and groundwater, including eutrophication of surface water
and microbial or nitrate contamination of groundwater. Septic tank residuals shall be pumped
whenever necessary to assure the proper operation of the system to meet these standards, and
the septage shall be reused or disposed of in a manner that does not present significant risks to
human health, surface water, or groundwater.
12. Stormwater Impact Analysis
a. The City may require a stormwater impact analysis prior to the issuance of a stormwater permit.
b. The purpose of the stormwater impact analysis is to access, prior to development, potential
flooding, erosion, and water pollution impacts on existing downstream areas as a result of a
proposed development.
c. Compliance with recommendations in a stormwater impact analysis may be required.
K. MAINTENANCE
1. General Standards for Maintenance
a. Function of SCMs as Intended
The owner of each structural SCM installed pursuant to these standards shall maintain and operate
it so as to preserve and continue its function in controlling stormwater quality and quantity at the
degree or amount of function for which the structural SCM was designed.
b. Annual Maintenance Inspection and Report
(AMENDED 10.20.20 UDOTA-03-20)
i. The person responsible for maintenance of any structural SCM installed pursuant to this
section shall submit to the Stormwater Administrator an inspection report from one of the
following persons performing services only in their area of competence: a qualified licensed
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North Carolina professional engineer, surveyor, landscape architect, soil scientist, aquatic
biologist, or person certified by the North Carolina Cooperative Extension Service for
stormwater treatment practice inspection and maintenance.
ii. The inspection report shall contain all of the following:
a) The project name;
b) The name, address, and contact information of the landowner;
c) The recorded book and page number and the Parcel Identification Number (PIN) or Parcel
Number as assigned by Alamance County or Guilford County respectively of the lot of each
structural SCM;
d) The name, address, and contact information of the inspector;
e) A statement that an inspection was made of all structural SCMs;
f) The date the inspection was made;
g) The date and depth of the last recorded rainfall;
h) A statement that an inspection was made of all structural SCMs;
i) A statement that all inspected structural SCMs are performing properly and are in
compliance with the terms and conditions of the approved maintenance agreement
required by this ordinance;
j) The original signature and seal of the engineer, surveyor, or landscape architect; and
k) Photographs of each SCM.
iii. All inspection reports shall be on forms supplied by the Stormwater Administrator. An original
inspection report shall be provided to the Stormwater Administrator beginning one year from
the date of as -built certification and each year thereafter on or before May 31.
2. Operation and Maintenance Agreement
a. In General
i. Prior to the conveyance or transfer of any lot or building site to be served by a structural SCM
pursuant to this section, and prior to issuance of any permit for development or redevelopment
requiring a structural SCM pursuant to these standards, the applicant or owner of the site
must execute an operation and maintenance agreement that shall be binding on all
subsequent owners of the site, portions of the site, and lots or parcels served by the structural
SCM. Until the transference of all property, sites, or lots served by the structural SCM, the
original owner or applicant shall have primary responsibility for carrying out the provisions of
the maintenance agreement.
ii. The operation and maintenance agreement shall require the owner or owners to maintain,
repair and, if necessary, reconstruct the structural SCM, and shall state the terms, conditions,
and schedule of maintenance for the structural SCM. In addition, it shall grant to the City a
right of entry in the event that the Stormwater Administrator has reason to believe it has
become necessary to inspect, monitor, maintain, repair, or reconstruct the structural SCM;
however, in no case shall the right of entry, of itself, confer an obligation on the City to assume
responsibility for the structural SCM.
iii. The operation and maintenance agreement must be approved by the Stormwater
Administrator prior to plan approval, and it shall be referenced on the final plat and shall be
recorded with the county Register of Deeds upon final plat approval. A copy of the recorded
maintenance agreement shall be given to the Stormwater Administrator within 14 days
following its recordation.
b. Special Requirement for Homeowners' and Other Associations
For all structural SCMs required pursuant to this section and that are to be or are owned and
maintained by a homeowners' association, property owners' association, or similar entity, the
required operation and maintenance agreement shall include all of the following provisions:
i. Acknowledgment that the association shall continuously operate and maintain the stormwater
control and management facilities;
ii. Establishment of an escrow account, which can be spent solely for sediment removal,
structural, biological or vegetative replacement, major repair, or reconstruction of the
structural SCMs. If structural SCMs are not performing adequately or as intended or are not
properly maintained, the City, in its sole discretion, may remedy the situation, and in such
instances the City shall be fully reimbursed from the escrow account. Escrowed funds may be
spent by the association for sediment removal, structural, biological or vegetative
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replacement, major repair, and reconstruction of the structural SCMs, provided that the City
shall first consent to the expenditure;
iii. The escrow account shall be funded to a level suitable to conduct the activities listed in Section
(ii) above, which shall be based upon a submittal of construction costs and anticipated
maintenance costs prepared and sealed by the design professional, and approved by the
Stormwater Administrator. Both developer contribution and annual sinking funds shall fund
the escrow account. Prior to plat recordation or issuance of infrastructure permits, whichever
shall first occur, the developer shall pay into the escrow account an amount equal to 15
percent of the initial construction cost of the structural SCMs. Two-thirds (2/3) of the total
amount of sinking fund budget shall be deposited into the escrow account within the first five
years and the full amount shall be deposited within ten years following initial construction of
the structural SCMs. Funds shall be deposited each year into the escrow account. A portion of
the annual assessments of the association shall include an allocation into the escrow account.
Any funds drawn down from the escrow account shall be replaced in accordance with the
schedule of anticipated work used to create the sinking fund budget;
iv. The percent of developer contribution and lengths of time to fund the escrow account may be
varied by the City depending on the design and materials of the stormwater control and
management facility;
v. Granting to the City a right of entry to inspect, monitor, maintain, repair, and reconstruct
structural SCMs;
vi. Allowing the City to recover from the association and its member's any and all costs the City
expends to maintain or repair the structural SCMs or to correct any operational deficiencies.
Failure to pay the City all of its expended costs, after 45 days written notice, shall constitute
a breach of the agreement. In case of a deficiency, the City shall thereafter be entitled to
bring an action against the association and its members to pay, or foreclose upon the lien
hereby authorized by the agreement against the property, or both. Interest, collection costs,
and attorney fees shall be added to the recovery;
vii. A statement that this agreement shall not obligate the City to maintain or repair any structural
SCMs, and the City shall not be liable to any person for the condition or operation of structural
SCMs;
viii.A statement that this agreement shall not in any way diminish, limit, or restrict the right of
the City to enforce any of its ordinances as authorized by law; and
ix. A provision indemnifying and holding harmless the City for any costs and injuries arising from
or related to the structural SCM, unless the City has agreed in writing to assume the
maintenance responsibility for the SCM and has accepted dedication of any and all rights
necessary to carry out that maintenance.
3. Inspection Program
a. Inspections and inspection programs by the City may be conducted or established on any
reasonable basis, including but not limited to:
i. Routine inspections;
ii. Random inspections;
iii. Inspections based upon complaints or other notice of possible violations; and
iv. Joint inspections with other agencies inspecting under environmental or safety laws.
b. Inspections may include, but are not limited to:
i. Reviewing maintenance and repair records;
ii. Sampling discharges, surface water, groundwater, and material or water in SCMs; and
iii. Evaluating the condition of SCMs.
c. If the owner or occupant of any property refuses to permit such inspection, the Stormwater
Administrator shall proceed to obtain an administrative search warrant pursuant to Section 15-
27.2 of the North Carolina General Statutes or its successor.
d. No person shall obstruct, hamper or interfere with the Stormwater Administrator while carrying
out their official duties.
4. Performance Guarantee for Installation and Maintenance
(AMENDED 10.20.20 UDOTA-03-20)
a. May Be Required
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The City may, at its discretion, require the submittal of a performance guarantee or bond with
surety, cash escrow, irrevocable letter of credit or other acceptable legal arrangement prior to
issuance of a stormwater permit, or prior to plat recordation in order to ensure that the structural
SCMs are:
i. Installed by the permit holder as required by the approved stormwater management plan;
and
ii. Maintained by the owner as required by the operation and maintenance agreement.
b. Amount
i. Installation
The amount of an installation performance guarantee shall be the total estimated construction
cost of the SCMs approved under the permit, plus 25 percent. The estimate of construction
cost shall be prepared by a qualified licensed North Carolina professional engineer, surveyor,
soil scientist, or landscape architect.
ii. Maintenance
The amount of a maintenance performance guarantee shall be the present value of an annuity
of perpetual duration based on a reasonable estimate of the annual cost of inspection,
operation, and maintenance of the SCMs approved under the permit, at a discount rate that
reflects the jurisdiction's cost of borrowing minus a reasonable estimate of long term inflation.
c. Uses of Performance Guarantee
i. Forfeiture Provisions
The performance guarantee shall contain forfeiture provisions for failure, after proper notice,
to complete work within the time specified, or to initiate or maintain any actions which may
be required of the applicant or owner in accordance with this section, approvals issued
pursuant to this section, or an operation and maintenance agreement established pursuant to
this section.
ii. Default
Upon default of the owner to construct, maintain, repair and, if necessary, reconstruct any
structural SCM in accordance with the applicable permit or operation and maintenance
agreement, the Stormwater Administrator shall obtain and use all or any portion of the
guarantee to make necessary improvements based on an engineering estimate. Such
expenditure of funds shall only be made after requesting the owner to comply with the permit
or maintenance agreement. In the event of a default triggering the use of the installation
performance guarantee, the City shall not return any of the unused deposited cash funds or
other guarantee, which shall be retained for maintenance.
iii. Costs in Excess of Performance Guarantee
If the City takes action upon such failure by the applicant or owner, the City may collect from
the applicant or owner the difference between the amount of the reasonable cost of such
action and the amount of the guarantee held, in addition to any other penalties or damages
due.
iv. Refund
Within 60 days of the final approval, the installation performance guarantee shall be refunded
to the applicant or terminated, except any amount attributable to the cost (plus 25 percent)
of landscaping installation and ongoing maintenance associated with the SCMs covered by the
guarantee. Any such landscaping shall be inspected one year after installation with
replacement for compliance with the approved plans and specifications and, if in compliance,
the portion of the performance guarantee attributable to landscaping shall be released.
5. Notice to Owners
a. Deed Recordation and Indications on Plat
The applicable operations and maintenance agreement pertaining to every structural SCM shall be
referenced on the final plat and shall be recorded with the county Register of Deeds upon final
plat approval. If no subdivision plat is recorded for the site, then the operations and maintenance
agreement, shall be recorded with the county Register of Deeds so as to appear in the chain of
title of all subsequent purchasers under generally accepted searching principles.
b. Signage
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Where appropriate in the determination of the Stormwater Administrator to assure compliance
with this section, structural SCMs shall be posted with a conspicuous sign stating who is
responsible for required maintenance and annual inspection. The sign shall be maintained so as
to remain visible and legible.
6. Records of Installation and Maintenance Activities
The owner of each structural SCM shall keep records of inspections, maintenance, and repairs for at
least five years from the date of creation of the record and shall submit the same upon reasonable
request to the Stormwater Administrator.
7. Nuisance
The owner of each stormwater SCM, whether structural or nonstructural SCM, shall maintain it so as
not to create or result in a nuisance condition.
S. Maintenance Easement
(AMENDED 10.20.20 UDOTA-03-20)
Every structural SCM installed pursuant to this section shall be made accessible for adequate
maintenance and repair by a maintenance easement. The access maintenance easement shall have a
minimum width of 20 feet, a maximum slope of 15 percent, be connected to public right-of-way, be
cleared, and be traversable by construction equipment. The easement shall be recorded and its terms
shall specify who may make use of the easement and for what purposes, including the City. Dedicated
access and/or maintenance easements for structural SCMs on private property are for the use of the
owner of the structural SCM(s). Dedication of access and/or maintenance easements for structural
SCMs in no way binds or requires the City to perform maintenance on structural SCMs on private
property.
9. Existing Structural SCMs
a. Sections 7.4.K.1, General Standards for Maintenance, 7.4.K.3, Inspection Program, 7.4.K.4,
Performance Guarantee for Installation and Maintenance, 7.4.K.5.b, Signage, 7.4.K.6, Records of
Installation and Maintenance Activities, and 7.4.K.7, Nuisance, shall also apply to structural SCMs
that were installed prior to July 1, 2007.
b. At the time of subdivision, recombination, development or redevelopment of property having
structural SCMs installed prior to July 1, 2007, Sections 7.4.K.2, Operation and Maintenance
Agreement, 7.4.K.5.a, Deed Recordation and Indications on Plat, and 7.4.K.8, Maintenance
Easement, shall also apply.
L. ENFORCEMENT AND VIOLATIONS
1. General
a. Authority to Enforce
The provisions of this section shall be enforced by the Stormwater Administrator, their designee,
or any authorized agent of the City.
b. Violation Unlawful
i. Any failure to comply with an applicable requirement, prohibition, standard, or limitation
imposed by this section, or the terms or conditions of any permit or other development or
redevelopment approval or authorization granted pursuant to this section, is unlawful and
shall constitute a violation of this Ordinance.
ii. Enforcement actions against violations shall comply with the standards in Section 2.5.C,
Statute of Limitations.
c. Each Day a Separate Offense
Each day that a violation continues shall constitute a separate and distinct violation or offense.
d. Responsible Persons/Entities
i. Any person who erects, constructs, reconstructs, alters (whether actively or passively), or fails
to erect, construct, reconstruct, alter, repair or maintain any structure, SCM, practice, or
condition in violation of this section shall be subject to the remedies, penalties, and/or
enforcement actions in accordance with this section. Persons subject to the remedies and
penalties set forth herein may include any architect, engineer, landscape architect, soil
scientist, surveyor, builder, contractor, developer, agency, or any other person who
participates in, assists, directs, creates, causes, or maintains a condition that results in or
constitutes a violation of this section, or fails to take appropriate action, so that a violation of
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this section results or persists; or an owner, any tenant or occupant, or any other person, who
has control over, or responsibility for, the use or development of the property on which the
violation occurs.
ii. For the purposes of this section, responsible person(s) shall include but not be limited to:
a) Person Maintaining Condition Resulting in or Constituting Violation
An architect, engineer, landscape architect, soil scientist, surveyor, builder, contractor,
developer, agency, or any other person who participates in, assists, directs, creates,
causes, or maintains a condition that constitutes a violation of this section, or fails to take
appropriate action, so that a violation of this section results or persists.
b) Responsibility for Land or Use of Land
The owner of the land on which the violation occurs, any tenant or occupant of the
property, any person who is responsible for stormwater controls or practices pursuant to
a private agreement or public document, or any person, who has control over, or
responsibility for, the use, development or redevelopment of the property.
2. Remedies and Penalties
The remedies and penalties provided for violations of this section, whether civil or criminal, shall be
cumulative and in addition to any other remedy provided by law, and may be exercised in any order.
a. Remedies
i. Withholding of Certificate of Occupancy
The Stormwater Administrator or other authorized agent may refuse to issue a certificate of
occupancy for the building or other improvements constructed or being constructed on the
site and served by the stormwater practices in question until the applicant or other responsible
person has taken the remedial measures set forth in the notice of violation or has otherwise
cured the violations described therein.
ii. Disapproval of Subsequent Permits and Development Approvals
As long as a violation of this section continues and remains uncorrected, the Stormwater
Administrator or other authorized agent may withhold, and the Planning and Zoning
Commission or City Council may disapprove, any request for permit or development approval
or authorization provided for by this Ordinance or the zoning, subdivision, and/or building
regulations, as appropriate for the land on which the violation occurs.
iii. Injunction and Abatements
The Stormwater Administrator, with the written authorization of the City Manager, may
institute an action in a court of competent jurisdiction for a mandatory or prohibitory injunction
and order of abatement to correct a violation of these standards. Any person violating these
standards shall be subject to the full range of equitable remedies provided in the General
Statutes or at common law.
iv. Correction as Public Health Nuisance, Costs as Lien
If the violation is deemed dangerous or prejudicial to the public health or public safety and is
within the geographic limits prescribed by Section 160A-193 of the North Carolina General
Statutes, the Stormwater Administrator, with the written authorization of the City Manager,
may cause the violation to be corrected and the costs to be assessed as a lien against the
property.
v. Stop Work Order
The Stormwater Administrator may issue a stop work order to the person(s) violating these
standards. The stop work order shall remain in effect until the person has taken the remedial
measures set forth in the notice of violation or has otherwise cured the violation or violations
described therein. The stop work order may be withdrawn or modified to enable the person
to take the necessary remedial measures to cure such violation or violations.
b. Civil Penalties
(AMENDED 10.20.20 UDOTA-03-20)
In addition to other remedies cited in this Ordinance for the enforcement of its provisions, the
regulations and standards of this section may be enforced through the issuance of civil penalties
by the Stormwater Administrator. Civil penalties may be recovered in a civil action in the nature
of a debt if the offender does not pay the penalty within 30 days after notice of the violation is
issued by the Stormwater Administrator. Civil penalties may be assessed up to the full amount of
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penalty to which the City is subject for violations of its Phase II Stormwater permit or if no Phase
II Stormwater permit violation exists for the jurisdiction, civil penalties may be assessed up to the
full amount allowed by law.
c. Criminal Penalties
Violation of this section may be enforced as a misdemeanor subject to the maximum fine
permissible under North Carolina law.
3. Procedures
a. Initiation/Complaint
Whenever a violation of this section occurs, or is alleged to have occurred, any person may file a
written complaint. Such complaint shall state fully the alleged violation and the basis thereof, and
shall be filed with the Stormwater Administrator, who shall record the complaint. The complaint
shall be investigated promptly by the Stormwater Administrator.
b. Inspection
The Stormwater Administrator shall have the authority, upon presentation of proper credentials,
to enter and inspect any land, building, structure, or premises to ensure compliance with this
section.
c. Notice of Violation and Order to Correct
i. When the Stormwater Administrator finds that any building, structure, or land is in violation
of this section, the Stormwater Administrator shall notify, in writing, the property owner or
other person violating these provisions. The notification shall indicate the nature of the
violation, contain the address or other description of the site upon which the violation is
occurring, order the necessary action to abate the violation, and give a deadline for correcting
the violation. If civil penalties are to be assessed, the notice of violation shall also contain a
statement of the civil penalties to be assessed, the time of their accrual, and the time within
which they must be paid or be subject to collection as a debt.
ii. The Stormwater Administrator may deliver the notice of violation and correction order
personally, by the Burlington Police Department, by certified or registered mail, return receipt
requested, or by any means authorized for the service of documents by Rule 4 of the North
Carolina Rules of Civil Procedure.
iii. If a violation is not corrected within a reasonable period of time, as provided in the notification,
the Stormwater Administrator may take appropriate action under this Ordinance to correct
and abate the violation and to ensure compliance with this section.
d. Extension of Time
A person who receives a notice of violation and correction order, or the owner of the land on
which the violation occurs, may submit to the Stormwater Administrator a written request for an
extension of time for correction of the violation. On determining that the request includes enough
information to show that the violation cannot be corrected within the specified time limit for
reasons beyond the control of the person requesting the extension, the Stormwater Administrator
may extend the time limit as is reasonably necessary to allow timely correction of the violation,
up to, but not exceeding 14 days. The Stormwater Administrator may grant seven-day extensions
in addition to the initial extension if the violation cannot be corrected within the permitted time
due to circumstances beyond the control of the person violating this section. The Stormwater
Administrator may grant an extension only by written notice of extension. The notice of extension
shall state the date prior to which correction must be made, after which the violator will be subject
to the penalties described in the notice of violation and correction order.
e. Enforcement After Time to Correct
After the time has expired to correct a violation, including any extension(s) if authorized by the
Stormwater Administrator, the Stormwater Administrator shall determine if the violation is
corrected. If the violation is not corrected, the Stormwater Administrator may act to impose one
or more of the remedies and penalties authorized by this section.
f. Emergency Enforcement
If delay in correcting a violation would seriously threaten the effective enforcement of this section
or pose an immediate danger to the public health, safety, or welfare, then the Stormwater
Administrator may order the immediate cessation of a violation. Any person so ordered shall cease
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Section 7.4 Stormwater
any violation immediately. The Stormwater Administrator may seek immediate enforcement,
without prior written notice, through any remedy or penalty authorized by this section.
4. Illicit Discharges and Connections
a. Illicit Discharges
i. No person shall cause or allow the discharge, emission, disposal, pouring, or pumping directly
or indirectly to any stormwater conveyance, the waters of the State, or upon the land in
manner and amount that the substance is likely to reach a stormwater conveyance or the
waters of the State, any liquid, solid, gas, or other substance, other than stormwater; provided
that non-stormwater discharges associated with the following activities are allowed and
provided that they do not significantly impact water quality:
a) Water line flushing;
b) Landscape irrigation;
c) Diverted stream flows;
d) Rising ground waters;
e) Uncontaminated ground water infiltration (as defined at 40 CFR 35.2005(20));
f) Uncontaminated pumped ground water;
g) Discharges from potable water sources;
h) Foundation drains;
i) Air conditioning condensation;
j) Irrigation water;
k) Springs;
1) Water from crawl space pumps;
m) Footing drains;
n) Lawn watering;
o) Individual residential car washing;
p) Flows from riparian habitats and wetlands;
q) Dechlorinated swimming pool discharges;
r) Street wash water; and
s) Flows from emergency firefighting.
ii. Other non-stormwater discharges for which a valid NPDES discharge permit has been
approved and issued by the State of North Carolina, and provided that any such discharges
to the municipal separate storm sewer system shall be authorized by the City.
iii. Prohibited substances include but are not limited to: oil, anti -freeze, chemicals, saltwater
swimming pool water discharge, animal waste, paints, garbage, and litter.
b. Illicit Connections
(AMENDED 10.20.20 UDOTA-03-20)
i. Connections to a stormwater conveyance or stormwater conveyance system that allow the
discharge of non-stormwater, other than the exclusions described in sub -sections (a)(i) and
(a)(ii) above, are unlawful. Prohibited connections include, but are not limited to: floor drains,
waste water from washing machines or sanitary sewers, wash water from commercial vehicle
washing or steam cleaning, and waste water from septic systems.
ii. This prohibition expressly includes, without limitation, illicit connections made in the past,
regardless of whether the connection was permissible under law or practices applicable or
prevailing at the time of connection.
iii. The Stormwater Administrator shall designate the time within which the connection shall be
removed where it is determined that said connection:
a) May result in the discharge of hazardous materials or may pose an immediate threat to
health and safety, or is likely to result in immediate injury and harm to real or personal
property, natural resources, wildlife, or habitat; or
b) Was made in violation of any applicable regulation or ordinance, other than this section.
iv. In setting the time limit for compliance, the Stormwater Administrator shall take into
consideration:
a) The quantity and complexity of the work;
b) The consequences of delay;
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c) The potential harm to the environment, to the public health, and to public and private
property; and
d) The cost of remedying the damage.
C. Spills
Spills or leaks of polluting substances released, discharged to, or having the potential to be
released or discharged to the stormwater conveyance system, shall be contained, controlled,
collected, and properly disposed. All affected areas shall be restored to their preexisting condition.
Persons in control of the polluting substances immediately prior to their release or discharge, and
persons owning the property on which the substances were released or discharged, shall
immediately notify the Emergency Management Coordinator or the Fire Chief of the release or
discharge, as well as making any required notifications under State and federal law. Notification
shall not relieve any person of any expenses related to the restoration, loss, damage, or any other
liability which may be incurred as a result of said spill or leak, nor shall such notification relieve
any person from other liability which may be imposed by State or other law.
d. Industrial or Construction Activity Discharges
Any person subject to an industrial or construction activity NPDES stormwater discharge permit
shall comply with provisions of such permit. Proof of compliance with said permit may be required
in a form acceptable to the City prior to authorization of discharges to the municipal separate
storm sewer system.
e. Right of Entry, Inspection, Sampling, and Testing
i. Authority to Inspect
Whenever necessary to make an inspection to enforce any provision of this Ordinance, or
whenever the Stormwater Administrator has cause to believe that there exists, or potentially
exists, in or upon any premise any condition which constitutes a violation of this section, the
Stormwater Administrator may enter such premises at all reasonable times to inspect the same
and to inspect and copy records related to stormwater compliance. In the event the owner or
occupant refuses entry after a request to enter and inspect has been made, the City is hereby
empowered to seek assistance from any court of competent jurisdiction in obtaining such
entry.
ii. Authority to Sample, Establish Sampling Devices, and Test
During any inspection as provided herein, the Stormwater Administrator may take any samples
and perform any testing deemed necessary to aid in the pursuit of the inquiry or to record
site activities.
f. Enforcement
i. Whenever the Stormwater Administrator finds that a person has violated a prohibition or failed
to meet a requirement of this Ordinance, the Stormwater Administrator may order compliance
by written notice of violation to the responsible person and/or the property owner. Such notice
may require without limitation:
a) The performance of monitoring, analysis, and reporting;
b) The elimination of illicit connections or discharges;
c) That violating discharges, practices, or operations shall cease and desist;
d) The abatement or remediation of stormwater pollution or contamination hazards and the
restoration of any affected property;
e) Payment of a fine to cover administrative and remediation costs; and
f) The implementation of source control SCMs.
ii. If abatement of a violation or restoration of affected property is required, the notice shall set
forth a deadline within which such remediation or restoration must be completed. Said notice
shall further advise that, should the violator fail to remediate or restore within the established
deadline, the work will be done by the City or a contractor designated by the Stormwater
Administrator, and the expense shall be charged to the violator.
g. Violations Deemed a Public Nuisance
Illicit discharges and illicit connections which exist within the City's jurisdiction are hereby found,
deemed, and declared to be dangerous or prejudiced to the public health or public safety and are
found, deemed, and declared to be public nuisances. Such public nuisances shall be abated in
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Section 7.5 Soil Erosion and Sedimentation
accordance with the procedures set forth in Chapter 22 of the City of Burlington Code of
Ordinances, this section, and Section 2.5, Enforcement.
A. PURPOSE
These standards are adopted for the purposes of:
1. Regulating certain land -disturbing activity to control accelerated erosion and sedimentation in order
to prevent the pollution of water and other damage to lakes, watercourses, and other public and
private property by sedimentation; and
2. Establishing procedures through which these purposes can be fulfilled.
B. SCOPE AND EXCLUSIONS
1. Geographical Scope of Regulated Land -Disturbing Activity
These standards shall apply to land -disturbing activity within the territorial jurisdiction of the City of
Burlington, and to the extraterritorial jurisdiction of the City of Burlington as allowed by agreement
between local governments, the extent of annexation, or other appropriate legal instrument or law.
2. Exclusions from Regulated Land -Disturbing Activity
Notwithstanding the general applicability of these standards to all land -disturbing activity, these
standards shall not apply to the following types of land -disturbing activity:
a. Activities, including the production and activities relating or incidental to the production of crops,
grains, fruits, vegetables, ornamental and flowering plants, dairy, livestock, poultry, and all other
forms of agriculture undertaken on agricultural land for the production of plants and animals useful
to man, including, but not limited to:
i. Forage and sod crops, grain and feed crops, tobacco, cotton, and peanuts;
ii. Dairy animals and dairy products;
iii. Poultry and poultry products;
iv. Livestock, including beef cattle, llamas, sheep, swine, horses, ponies, mules, and goats;
v. Bees and apiary products;
vi. Fur producing animals; and
vii. Mulch, ornamental plants, and other horticultural products. For purposes of this section,
"mulch" means substances composed primarily of plant remains or mixtures of such
substances.
b. An activity undertaken on forestland for the production and harvesting of timber and timber
products and conducted in accordance with standards defined by the Forest Practice Guidelines
Related to Water Quality (Best Management Practices), as adopted by the North Carolina
Department of Agriculture and Consumer Services. If land -disturbing activity undertaken on
forestland for the production and harvesting of timber and timber products is not conducted in
accordance with standards defined by the Forest Practice Guidelines Related to Water Quality, the
provisions of these standards shall apply to such activity and any related land -disturbing activity
on the tract.
c. An activity for which a permit is required under the Mining Act of 1971, Article 7 of Chapter 74 of
the North Carolina General Statutes.
d. A land -disturbing activity over which the State has exclusive regulatory jurisdiction as provided in
Section 113A-56(a) of the North Carolina General Statutes.
e. An activity which is essential to protect human life during an emergency.
f. Activities undertaken to restore the wetland functions of converted wetlands to provide
compensatory mitigation to offset impacts permitted under Section 404 of the Clean Water Act.
g. Activities undertaken pursuant to Natural Resources Conservation Service standards to restore the
wetlands functions of converted wetlands as defined in Title 7 Code of Federal Regulations Section
12.2.
3. Plan Approval Requirement for Land -Disturbing Activity
No person shall undertake any land -disturbing activity subject to these standards without first
obtaining a Plan approval therefor from the City of Burlington.
4. Protection of Property
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