1999-12-06 RM Erosion Control Exhibit
AN ORDINANCE
OF THE
NEW HANOVER COUNTY
BOARD OF COMMISSIONERS
The Board of Commissioners of New Hanover County, North Carolina, does
hereby ordain that Chapter 7, Erosion and Sedimentation Control, New Hanover
County Code, is hereby amended, with modification to Sections 7-3, 7-4, 7-5, 7-6, 7-
7,7-131,7-18,7-21,7-22, and 7-24, as follows:
Section 7-1 Title
This ordinance may be cited as the New Hanover County Soil Erosion and
Sedimentation Control Ordinance.
Section 7-2 Purposes
This ordinance is 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.
Section 7-3 Definitions
As used in this ordinance, unless the context clearly indicates otherwise, the
following definitions apply-
A. Accelerated Erosion - means any increase over the rate of natural erosion as a
result of land-disturbing activity
B Act - means the North Carolina Sedimentation Pollution Control Act of 1973
and all rules and orders adopted pursuant to it.
C. Adequate Erosion Control Measures. 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
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D Affiliate - has the same meaning as in 17 Code of Federal Regulations &
240 12(b)-2 (I June 1993 Edition), which defines "affiliate" as a person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control of another person.
E. Being Conducted - means a land-disturbing activity has been initiated and
permanent stabilization of the site has not been completed.
F Borrow - means fill material which is required for on-site construction and is
obtained from other locations.
G. Buffer Zone - means the strip of land adjacent to a lake or natural watercourse.
H Coastal Counties - means the following counties: Beaufort, Bertie, Brunswick,
Camden, Carteret, Chowan, Craven, Currituck, Dare, Gates, Hertford, Hyde,
New Hanover, Onslow, Pamlico, Pasquotank, Pender, Perquimans, Tyrrell and
Washington.
I. Commission - means the North Carolina Sedimentation Control Commission.
J 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
K. Department - means the North Carolina Department of Environment, Health,
and Natural Resources.
L. Director - means the Director of the Division of Land Resources of the
Department of Environment, Health and Natural Resources.
M. Discharge Point - means that point at which runoff leaves a tract of land.
N District - means the New Hanover County Soil and Water Conservation
District created pursuant to Chapter 139, North Carolina General Statutes.
o Energy Dissipator - means a structure or a shaped channel section with
mechanical annoring placed at the outlet of pipes of conduits to receive and
break down the energy from high velocity flow
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P Erosion - means the wearing away of land surface by the action of wind, water,
gravity, or any combination thereof.
Q Ground Cover - means any natural vegetative growth or other material which
renders the soil surface stable against accelerated erosion.
R. High Ouality Waters - means those classified as such in 15A NCAC
2B OlOl (e)(5) - General Procedures, which is incorporated herein by reference
to include further amendments pursuant to G.S 150B-14(c)
S High Ouality Water (HOW) Zones - means areas in the Coastal Counties that
are within 575 feet of High Quality Waters and for the remainder of the state
areas that are within one mile and drain to HQW's
T 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.
U Land-Disturbing Activity - means any use of the land by any person in
residential, industrial, educational, institutional, or commercial development,
highway and road construction and maintenance that results in a change in the
natural cover or topography and that may cause or contribute to
sedimentation.
V 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.
W Natural Erosion - means the wearing away of the earth's surface by water,
wind, or other natural agents under natural environment conditions
undisturbed by man.
x. Parent - has the same meaning as in 17 Code of Federal Regulations &
240 l2(b)-2 (I June 1993 Edition), which defines "parent" as an affiliate that
directly, or indirectly through one or more intermediaries, controls another
person.
y Person - means any individual, partnership, firm, association, joint venture,
public or private corporation, trust estate, commission, board, public or private
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institution, utility, cooperative, interstate body, or other legal entity
Z. Person Responsible for the Violation - as used in this Ordinance, and G S
l13A-65 means
(I) 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-disturbed activity or has
benefitted from it or he has failed to comply with any provision of this
Ordinance, the Act, or any order adopted pursuant to this Ordinance or
the Act as imposes a duty upon him.
AA. Person Conducting Land-Disturbing Activity - means any person who may be
held responsible for a violation unless expressly provided otherwise by this
Ordinance, the Act or any order adopted pursuant to this Ordinance or the
Act.
BB Phase of Grading - means one or two types of grading, rough or fine.
Cc. Plan - means an erosion and sedimentation control plan.
DD Sediment - means solid particulate matter, both mineral and organic, that has
beer! or is being transported by water, air, gravity, or ice from its site of origin.
EE. 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.
FF Siltation - means sediment resulting from accelerated erosion which is able to
settle or removable by properly designed, constructed, and maintained control
measures; and which has been transported from its point or origin within the
site of a land-disturbing activity; and which has been deposited, or is in
suspension in water
GG Storm Drainage Facilities- means the system of inlets, conduits, channels
ditches and appurtenances which serve to collect and convey storm water
through and from a given drainage area.
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HH. Storm Water Runoff - means the direct runoff of water resulting from
precipitation in any form.
II. Subsidiary - has the same meaning as in 17 Code of Federal Regulations &
240 12(b)-2 (1 June 1993 Edition), which defines "subsidiary" as an
affiliate that is directly, or indirectly through one or more intermediaries,
controlled by another person.
JJ 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 runoff, from
the watershed of interest under average antecedent wetness conditions.
KK. Tract - means all contiguous land and bodies of water being disturbed or to be
disturbed as a unit, regardless of ownership
LL. 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
MM. Uncovered - means the removal of ground cover from, on, or above the soil
surface.
NN 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.
00 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
pp Waste - means surplus materials resulting from on-site construction and
disposed of at other locations.
QQ Working Days - means days exclusive of Saturday and Sunday during which
weather conditions or soil conditions permit land-disturbing activity to be
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undertaken.
Section 7-4 Scope and Exclusions
This ordinance shall apply to land-disturbing activities undertaken by any
person, with the following exclusions:
A. those undertaken on agricultural land for the production of plants and animals
useful to man, including but not limited to' forage and sod crops, grain and
feed crops, tobacco, cotton and peanuts; dairy animals and dairy products;
poultry and poultry products; livestock, including beef cattle, sheep, swine,
horses, ponies, mules or goats, including.the breeding and grazing of any or all
such animals; bees and apiary products; fur producing animals; and
B those undertaken on forest land for the production and harvesting of timber
and timber products and which are conducted in accordance \vith Forest
Practice Guidelines Related to Water Quality (best management practices) as
adopted by the Department. If land-disturbing activity undertaken on forest
land 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 ordinance shall apply to such activity and any
related land-disturbing activity on the tract; and
C. activity undertaken by persons as defined in G.S 113 A-52(8) who are
otherwise regulated by the provisions of The Mining Act of 1971 , G.S 74-46
through G.S 74-68, and
D land-disturbing activity over which the State has exclusive regulatory
jurisdiction as provided in G.S 113A-56(a)
E. for the duration of an emergency, activities essential to protect human life.
Section 7-5 General Requirements
A. Plan Required - No person shall initiate any land-disturbing activity which
uncovers more than one acre without having an erosion control plan approved
by the County No land disturbing activity may be initiated until the County
is notified of the date that the land disturbing activity will begin.
B Protection of Property - Persons conducting land disturbing activity shall take
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all reasonable measures to protect all public and private property from damage
caused by such activity
C. More Restrictive Rules Shall Apply - Whenever conflicts exist between federal,
state, or local laws, ordinances, or rules, the more restrictive provision shall
apply
D Building Permits - No building permit, unless excluded by Section 17 of this
Ordinance, shall be issued without an erosion control sign-off pursuant to G.S
153A-357 and 160A-4I7 as amended.
E. Inspections - Any and all applicable intermediate inspections may be held in
any trade (building, mechanical, electric and/or plumbing) if any land
disturbing activity, on a tract, including single family residences, is found not
to be in compliance with any part of this ordinance.
F Building Finals - Building finals and/or Certificate of Occupancies may not be
issued if any land disturbing activity, including single family residences, is
found not to be in compliance with any part of this ordinance.
Section 7-6 Basic Control Objectives
An erosion and sedimentation control plan may be disapproved pursuant to
Section 7-18 of this ordinance if the plan fails to address the following control
objectives.
A. Identify Critical Areas - On-site areas which are subject to severe erosion, and
off-site areas which are especially vulnerable to damage from erosion and/or
sedimentation are to be identified and receive special attention.
B Limit Time of Exposure - All land-disturbing activity is to be planned and
conducted to limit exposure to the shortest feasible time.
C. Limited Exposed Area - All land-disturbing activity is to be planned and
conducted to minimize the size of the area to be exposed at anyone time.
D Control Surface Water - Surface water runoff originating upgrade of exposed
areas should be controlled to reduce erosion and sediment loss during the
period of exposure.
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E. Control Sedimentation - All land-disturbing activity is to be planned and
conducted so as to prevent off-site sedimentation damage.
F Manage Storm Water Runoff - When the increase in the velocity of storm
water 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 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.
G When deemed necessary by the County, a preconstruction conference may be
required.
Section 7-7 Mandatory Standards for Land-Disturbing Activity
No land-disturbing activity subject to the control of this ordinance shall be
undertaken except in accordance with the following mandatory standards:
A. Buffer Zone
1 No land-disturbing activity during period of construction or
improvement to land shall be permitted in proximity to a lake or natural
watercourse unless a buffer zone is provided along the margin of the
watercourse of sufficient width to confine visible siltation within the
twenty-five percent (25%) of the buffer zone nearer the land-disturbing
activity Waters that have been classified as trout waters by the
Environmental Management Commission shall have an undisturbed
buffer zone 25 feet wide or of sufficient width to confine visible siltation
within the twenty-five percent (25%) of the buffer zone nearest the
land-disturbing activity, whichever is greater Provided, however, that
New Hanover County may approve plans which include land-disturbing
activity along trout waters when the duration of said disturbance would
be temporary and the extent of said disturbance would be minimal
This subdivision shall not apply to a land-disturbing activity in
connection with the construction of facilities to be located on, over, or
under a lake or natural watercourse.
2 Unless otherwise provided, the width of a buffer zone is measured from
the edge of the water to the nearest edge of the disturbed area, with 25
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percent of the strip nearer the land-disturbing activity containing
natural or artificial means of confining visible siltation.
3 The 25 foot minimum width for an undisturbed buffer zone adjacent to
designated trout waters shall be measured horizontally from the top of
the bank.
4. Where a temporary and minimal disturbance is permitted as an
exception by Section 7 (a)( 1) of this ordinance, land-disturbing activities
in the buffer zone adjacent to designated trout waters shall be limited to
a maximum of 10% of the total length of the buffer zone within the
tract to be distributed such that there is not more than 100 linear feet
of disturbance in each 1,000 linear feet of buffer zone. Larger areas
may be disturbed with the written approval of the Director
5 No land-disturbing activity shall be undertaken within a buffer zone
adjacent to designated trout waters that will cause adverse temperature
fluctuations, as set forth in 15 NCAC 2B 0211 "Fresh Surface Water
Classification and Standards", in these waters.
B Graded Slopes and Fills - The angle for graded slopes and fills shall be no
greater than the angle, from zero to nineteen degrees, which can be retained by
vegetative cover or other adequate erosion control devices or structures. Only
when approved by the County may slopes be steeper than two foot of run to
one foot of rise. In any event, slopes left exposed will, within 15 working days
or 30 calendar days, whichever is shorter, of completion of any phase of
grading, be planted or otherwise provided with ground cover, devices, or
structures sufficient to restrain erosion.
C. Ground Cover - Whenever land-disturbing activity is undertaken on a tract
comprising more than one acre, if more than one acre 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
othenvise provide a permanent ground cover sufficient to restrain erosion after
completion of construction or development. Except as provided in Section 7-
8(b)(5)of this ordinance, provisions for a ground cover sufficient to restrain
erosion must be accomplished within 30 working days or 120 calendar days
follo\ving completion of construction or development whichever period is
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shorter
D Prior Plan Approval - No person shall initiate any land-disturbing activity on a
tract if more than one acre is to be uncovered unless, thirty or more days prior
to initiating the activity, an erosion and sedimentation control plan for such
activity must be both filed with and approved by the County The County
shall forward to the Director of the Division of Water Quality a copy of each
erosion and sedimentation control plan for a land disturbing activity that
involves the utilization of ditches for the purpose of dewatering or lowering the
water table of the tract.
Section 7-8 Design and Performance Standards
A. Except as provided in Section 7-8(B)(2) of this ordinance erosion and
sedimentation control measures, structures, and devices shall be so planned,
designed, and constructed as to provide protection from the calculated
maximum peak of runoff from the ten-year storm. Runoff rates shall be
calculated using the procedures in 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.
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3 Sediment basins within HQW zones shall be designed and constructed
such that the basin will have a settling efficiency of at least 70% for the
40 micron (0 04mm) 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 Services "National
Engineering Field Manual for Conservation Packages" 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 three 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 slopes 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
Section 7-9 Storm Water Outlet Protection
A. 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
I the velocity established by the table in Paragraph (d) of this Section, or
2 the velocity of the ten-year storm runoff in the receiving watercourse
prior to development.
If conditions (I) or (2) of this paragraph cannot be met, then the receiving
watercourse to and including the discharge point shall be designed and
constructed to withstand the expected velocity anywhere the velocity exceeds
the "prior to development" velocity by 10%.
B Acceptable Management Measures - Measures applied alone or in combination
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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 dissipators 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
C. Exceptions - This rule shall not apply where it can be demonstrated that
stonnwater discharge velocities will not create an erosion problem in the
receiving watercourse.
D The following is a table for maximum permissible velocity for storm water
discharges:
Material
Fine sand (noncolloidal)
Sandy loam (noncolloidal)
Silt loam (noncolloidal)
Ordinary firm loam
Fine gravel
Stiff clay (very colloidal)
Graded, loam to cobbles (noncolloidal)
Graded, silt to cobbles (colloidal)
Maximum Permissible Velocities
F.P.S. M.P.S.
2.5
2.5
30
3.5
50
50
50
5.5
8
8
9
1 I
1.5
1.5
1.5
1 7
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Material
Maximum Permissible Velocities
F.P.S. M.P.S.
Alluvial silts (noncolloidal)
Alluvial silts (colloidal)
Coarse gravel (noncolloidal)
Cobbles and shingles
Shales and hard pans
3.5
50
60
5.5
60
1 1
1.5
I 8
I 7
18
Source - Adapted from recommendations by Special Committee on Irrigation
Research, American Society of Civil Engineer, 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.
Section 7-10 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
Section 7-11 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
Section 7-12 Operations in Lakes, 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,
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shall be planned and executed so as to minimize changes in the stream flow
characteristics, except when justification for significant alteration to flow
characteristics is provided.
Section 7-13 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 plan or any provision of
this Ordinance, the Act, or any order adopted pursuant to this Ordinance or the Act.
After site development, the land owner 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
Section 7-13.1 Restoration of Areas Affected by Failure to Comply
New Hanover County 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 Ordinance.
Section 7-14 Additional Measures
Whenever the County 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.
Section 7-15 Areas Not Otherwise Covered
Notwithstanding previous provisions when it is determined that severe off site
erosion and/or sedimentation occur as a result of any land-disturbing activity,
regardless of the size of the site, remedial action shall be taken within a reasonable
time period after notification. Notification of violation shall be submitted in writing
by the County Engineering Department and receipted by the owner or agent
responsible for the damage.
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Section 7-16 Existing Uncovered Areas
A. All uncovered areas existing on the effective date of this ordinance which
resulted from land-disturbing activity, exceed one acre, 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 County 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 other means reasonably calculated to give actual
notice. 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 County reserves the right to require preparation and approval of an
erosion control plan in any instance where extensive control measures are
required.
D This rule shall not require ground cover on cleared land forming the future
basin of a planned reservoir
Section 7-17 Permits
A. No person shall undertake any land-disturbing activity subject to this
ordinance without first obtaining a permit from the County, except that no
permit shall be required for any land-disturbing activity.
(I) for the purpose of fighting fires; or
(2) 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; or
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(3) that does not exceed 43,560 square feet in surface area. In determining
the area, lands under one or diverse ownership being developed as a unit
will be aggregated.
(NOTE. THIS EXCLUSION FROM PERMITS SHOULD ALLOW
LAND-DISTURBING ACTIVITIES FOR CONSTRUCTION OF A
SINGLE FAMILY RESIDENCE ON A SINGLE LOT, BUT MAY NOT
EXCEED ONE ACRE.
B The County has established the following rate schedule for the permit fee:
Acres
Fee
Acres
Fee
1 00 - 1 49
1.50 - 2 49
2.50 - 3 49
3.50 - 4.49
4.50 - 5 49
$25 00
$50 00
$7500
$100 00
$12500
5.50 - 649
6.50 - 7 49
7.50 - 8 49
8.50 - 9 49
9.50 - 1000
$150 00
$17500
$200 00
$225 00
$250 00
Over ten (10) acres additional $50 per acre.
C. The County may establish a fee schedule for the review and approval of
erosion control plans In establishing a fee schedule, the County shall consider
the administrative and personnel cost incurred by the Department for
reviewing the plans and for related compliance activities
o Permits will expire one year from the date of issue if no construction
activity begins on site. If activity ceases on a permitted site for a period of 12
months, the permit will expire.
Section 7-18 Erosion and Sedimentation Control Plans
A. An erosion control plan shall be prepared for all land-disturbing activities
subject to this ordinance whenever the proposed activity is to be undertaken
on a tract comprising more than one acre, if more than one acre is to be
uncovered.
The plan shall be filed with the County Engineering Department, the New
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Hanover Soil and Water Conservation District, and for areas outside
municipal corporate limits, the County Planning Department, at least 30 days
prior to the commencement of the proposed activity
B Persons conducting land-disturbing activity on a tract which covers one or
more acres shall file three copies of the erosion control plan with the County at
least 30 days prior to beginning such activity and shall keep another copy of
the approved plan and a posted copy of the permit at the job entrance on the
job site before construction begins. After approving the plan, if the County
either upon review of such plan or on inspection of the job site, determines
that a significant risk of accelerated erosion or offsite sedimentation exists, the
County will require a revised plan. Pending the preparation of the revised
plan, work shall cease or shall continue under conditions outlined by the
appropriate authority
C. Erosion 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 the person
financially responsible and of the owner of the land or their 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 Non-Compliance with the plan, the Act,
this ordinance, or rules or orders adopted or issued pursuant to this ordinance.
D The New Hanover Soil and Water Conservation District and the County
Planning Department within 20 days of receipt of any plan, or within such
additional time as may be prescribed by the County Engineering Department,
shall review such plan and submit its comments and recommendations to the
County Engineering Department. Failure of the Soil and Water Conservation
District and the County Planning Department to submit its comments and
recommendations within 20 days or within the prescribed additional time will
not delay final action on the plan.
E. The County will review each complete plan submitted to them and within 30
days of receipt thereof will notify the person submitting the plan that it has
been approved, approved with modifications, approved with performance
reservations, or disapproved. The County shall condition approval of an
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erosion control plan upon the applicants compliance with Federal and State
Water Quality laws, regulations, and rules. The County shall also disapprove
an erosion control plan if implementation of the plan would result in a
violation of rules adopted by the Environmental Management Commission to
protect riparian buffers along surface waters. Failure to approve, approve with
modifications, or disapprove a complete erosion and sedimentation control
plan within 30 days of receipt shall be deemed approval. Disapproval of an
erosion control plan or a revised erosion control plan must specifically state in
writing the reasons for disapproval. The County 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 plan, the County determines that the plan is
inadequate to meet the requirements of this ordinance, the County may
require any revision 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 will be deemed approval of the plan. The
County may establish an expiration date for erosion control plans approved
under this article.
F Any plan submitted for a land-disturbing activity for which an environmental
document is required by the North Carolina Environmental Policy Act (G.S
113A-l, et seq ) shall be deemed incomplete until a complete environmental
document is available for review The County shall promptly notify the person
submitting the plan that the 30-day time limit for review of the plan pursuant
to Section 17-18(e) of this ordinance shall not begin until a complete
environmental document is available for review
G. The plan required by this section shall contain architectural and engineering
drawings, maps, assumptions, calculations, and narrative statements as needed
to adequately describe the proposed development of the tract and the
measures planned to comply with the requirements of this ordinance. Plan
content may vary to meet the needs of specific site requirements. Detailed
guidelines for plan preparation may be obtained from the County, on request.
H An erosion control plan may be disapproved upon a finding that an applicant,
or a parent, subsidiary, or other affiliate of the applicant.
I is conducting or has conducted land-disturbing activity without an
approved plan, or has received notice of violation of a plan previously
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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
(7-21(B)) or;
4. has failed to substantially comply with State rules or local ordinances
and regulations adopted pursuant to the Act.
For purposes of this subsection (H) an applicant's record may be considered
for only two years prior to the application date.
I Applications for amendment of an erosion 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
County, the land-disturbing activity shall not proceed except in accordance
with the erosion control plan as originally approved.
J Any person engaged in land-disturbing activity who fails to file a plan in
accordance with the ordinance or who conducts a land-disturbing activity
except in accordance with provisions of an approved plan shall be deemed in
violation of the ordinance.
Section 7-19 Appeals
A. Except as provided in Section 19(b) of this ordinance the appeal of a
disapproval or approval with modifications of a plan shall be governed by the
following provisions:
1 The disapproval or modification of any proposed erosion control plan by
the County shall entitle the person submitting the plan to a public
hearing if such person submits written demand for a hearing within 15
days after receipt of written notice of disapproval or modifications.
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2 Hearings held pursua~1t to this section shall be conducted by the New
Hanover County Engineer within ten days after the date of the appeal
or request for a hearing
3 The New Hanover County Engineer shall make recommendations to the
Board of New Hanover County Commissioners, within ten days after
the date of the hearing on any erosion control plan.
4 The Board of New Hanover County Commissioners will render its final
decision on any erosion control plan upon which a hearing is requested
within 30 days of conducting the hearings.
5 If the County, 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 New
Hanover County decision to the North Carolina Sedimentation Control
Commission as provided in Section 113A-61 (c) of the General Statutes
and Title 15 NCAC 4B 0018(b)
B In the event that an erosion control plan is disapproved pursuant to Section 7-
18(h) of this ordinance, the County shall notify the Director of the Division of
Land Resources of such disapproval within ten days. The County shall advise
the applicant and the Director in writing as to the specific reasons that the
plan was disapproved. The applicant may appeal the County disapproval of
the plan pursuant to Section 7-18(h) of this ordinance directly to the
Commission.
Section 7-20 Inspections and Investigations
A. Agents and officials, or other qualified persons authorized by the County, will
periodically inspect the sites of land-disturbing activity to ensure compliance
with the Act, this ordinance, or rules or orders adopted or issued pursuant to
this ordinance, and to determine whether the activity is being conducted in
accordance with an approved plan and whether the measures required in the
plan are effective in controlling erosion and sediment resulting
from land-disturbing activity Notice of the right to inspect shall be included
in the notification of plan approval.
B If, through inspection, it is determined that a person engaged in land-
disturbing activity has failed to comply with the Act, this ordinance, or rules or
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orders adopted or issued pursuant to this ordinance, or has failed to comply
with an approved plan, a notice of violation shall be served upon that person
by registered or certified mail or other means reasonably calculated to give
actual notice. The notice shall set forth the measures necessary to achieve
compliance with the plan, specify a reasonable time period within which such
measures must be completed, and warn that failure to correct the violation
within the time period will result in additional civil and criminal penalties for a
continuing violation. However. no time period for compliance need be given
for failure to submit an erosion control plan for approval or for obstructing,
hampering or interfering with an authorized representative while in the process
of carrying out his official duties. If the person engaged in land-disturbing
activity fails to comply within the time specified, enforcement action shall be
initiated.
C. The County, shall have the power to conduct such investigations as it may
reasonably deem necessary to carry out its duties as prescribed in this
ordinance, and for this purpose to enter at reasonable times upon any
property, pubic or private, for the purpose of investigating and inspecting the
sites of any land-disturbing activity No person shall refuse entry or access to
any authorized representative or agent of the County, who requests entry for
purposes of inspection, and who presents appropriate credentials, nor shall any
person obstruct, hamper, or interfere with any such representative while in the
process of carrying out his official duties.
o The County 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
Section 7-21 Penalties
A. Civil Penalties
(I) Any person who violates any of the provisions of this ordinance, or rules
or orders adopted or issued pursuant to this ordinance, or order adopted
or issued pursuant to this article by the Commission, or who 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 subject to a civil penalty The maximum
civil penalty for a violation is five thousand dollars ($500000) A civil
penalty may be assessed from the date of violation. Each day of a
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continuing violation shall constitute a separate violation. The person
alleged to be in violation will be notified of the violation by registered or
certified mail, return receipt requested, or other means reasonably
calculated to give actual notice. The notice shall describe the violation
with reasonable particularity, specify a reasonable time period within
which the violation must be corrected, and warn that failure to correct
the violation within the time period will result in the assessment of a
civil penalty or other enforcement action. If, after the allotted time
period has expired, the violator has not completed corrective action, a
civil penalty may be assessed from the date of the notice of violation.
However, no time period for compliance need be given for failure to
submit an erosion control plan for approval or for obstructing,
hampering or interfering with an authorized representative while in the
process of carrying out his official duties. Each day of continuing
violation shall constitute a separate violation.
(2) The County Manager or his designee, shall determine the amount of the
civil penalty to be assessed under this subsection and shall notify the
person who is assessed the civil penalty of the amount of the penalty
and the reason for assessing the penalty In determining the amount of
the penalty the County Manager or his designee 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 non-
compliance, whether the violation was committed willfully, and the
prior record of the violator in complying or failing to comply with this
ordinance and shall direct the violator to either pay the assessment or
contest the assessment within 30 days after the receipt of the notice of
assessment, by written demand for a hearing before the Board of
County Commissioners. Notice of the assessment shall be by registered
or certified mail or other means reasonably calculated to give actual
notice.
(3) Any appeals from the determination of the Board of County
Commissioners must be filed with the Superior Court of New Hanover
County within thirty (30) days following the Board's issuance of its
final determination. If payment is not received or equitable settlement
reached within 30 days after demand for payment is made, the matter
shall be referred to the County Attorney for institution of a civil action
in the name of the County in the appropriate division of the General
Courts of Justice for recovery of the Penalty A civil action must be filed
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within three (3) years of the date the assessment was due. An
assessment that is not contested is due when the violator is served with
a Notice of Assessment. An assessment that is contested is due at the
conclusion of the administrative and judicial review of the assessment.
(4) Civil penalties collected pursuant to this ordinance shall be credited to
the general fund of the County as nontax revenue.
B Criminal Penalties
Any person who knowingly or willfully violates any provision of this ordinance,
or rule or order adopted or issued pursuant to this ordinance, or who
knowingly or willfully initiates or continues a land-disturbing activity for
which an erosion control plan is required except in accordance with 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
Section 7-22 Injunctive Relief
A. Whenever the governing body has reasonable cause to believe that any person
is violating or threatening to violate this ordinance or any rule or order
adopted or issued pursuant to this ordinance, 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 ordinance,
institute a civil action in the name of the County, for injunctive relief to
restrain the violation or threatened violation. The action shall be brought in
the Superior Court of New Hanover County
B Upon determination by a court that an alleged violation is occurring or is
threatened, it shall enter such orders or judgments as are 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 anv party to such proceedings from any civil or
criminal penalty prescribed for violations of this ordinance.
Section 7-23 Severability
If any section or sections of this ordinance is/are held to be invalid or
unenforceable, all other sections shall nevertheless continue in full force and effect.
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Section 7-24 Revisions
The County shall incorporate revisions required by the Commission following
receipt of the required revisions
Section 25 Effective Date
Adopted this 6th day of December, 1999
NEW HANOVER COUNTY
t.:)~e......... c. ~
William A. Caster, Chairman
ATTEST
~.'~'(~ 7l~
rk to the Board
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