ARTICLE 15:  WATERSHED PROTECTION
Section
15.1   Water supply watershed protection rules
15.2   Stormwater requirements for new development implementing the Falls Lake rules
15.3   Stormwater control measure additional standards
15.4   Illicit discharges
§ 15.1  WATER SUPPLY WATERSHED PROTECTION RULES.
   15.1.1   Authority and general regulations.
   (A)   Authority. The state legislature has, in G.S. Ch. 160A, Art. 8, § 174, General Ordinance Authority; and in G.S. Ch. 143, Art. 21, Watershed Protection Rules, delegated the responsibility or directed local governmental units to adopt regulations designed to promote the public health, safety, and general welfare of its citizenry. The Town Council does hereby ordain and enact into law the following provisions.
   (B)   Jurisdiction. The provisions of this article shall apply within the areas designated as a Public Water Supply Watershed by the state’s Environmental Management Commission and shall be defined and established on the map entitled, “Watershed Protection Map of the Town of Butner, North Carolina” (“the Watershed Map”), which is adopted simultaneously herewith. The Watershed Map and all explanatory matter contained thereon accompanies and is hereby made a part of this LDO. This ordinance shall be permanently kept on file in the office of the Town Clerk.
   (C)   Exceptions to applicability.
      (1)   Nothing contained herein shall repeal, modify, or amend any federal or state law or regulation, or any ordinance or regulation pertaining thereto except any ordinance which these regulations specifically replace; nor shall any provision of this article amend, modify, or restrict any provisions of the LDO or the Code of Ordinances of the town; however, the adoption of this article shall and does amend any and all ordinances, resolutions, and regulations in effect in the town at the time of the adoption of this article that may be construed to impair or reduce the effectiveness of this article or to conflict with any of its provisions.
      (2)   It is not intended that these regulations interfere with any easement, covenants, or other agreements between parties. However, if the provisions of these regulations impose greater restrictions or higher standards for the use of a building or land, then the provisions of these regulations shall control.
      (3)   Existing development, as defined in § 17.1, is not subject to the requirements of § 15.1. Expansions to structures classified as existing development must meet the requirements of § 15.1, however, the built-upon area of the existing development is not required to be included in the density calculations.
      (4)   If a nonconforming lot of record is not contiguous to any other lot owned by the same party, then that lot of record shall not be subject to the development restrictions of this article if it is developed for single-family residential purposes. Any lot or parcel created as part of a family subdivision after the effective date of these rules shall be exempt from these rules if it is developed for one single-family detached residence and if it is exempt from the subdivision regulations set out in the LDO. Any lot or parcel created as part of any other type of subdivision that is exempt from the LDO’s subdivision ordinance, shall be subject to the land use requirements (including impervious surface requirements) of this article, except that such a lot or parcel must meet the minimum buffer requirements to the maximum extent practicable.
   15.1.2   Subdivision regulations.
   (A)   General provisions.
      (1)   No subdivision plat of land within the Public Water Supply Watershed shall be filed or recorded by the Register of Deeds until it has been approved in accordance with the provisions of this article. Likewise, the Clerk of Superior Court shall not order or direct the recording of a plat if the recording of such plat would be in conflict with this article.
      (2)   The approval of a plat does not constitute or effect the acceptance by the town or the public of the dedication of any street or other ground, easement, right-of-way, public utility line, or other public facility shown on the plat and shall not be construed to do so.
      (3)   All subdivisions shall conform with the mapping requirements contained in G.S. § 47-30.
      (4)   All subdivisions of land within the jurisdiction of town after the effective date of this article shall require a plat to be prepared, approved, and recorded pursuant to this article.
   (B)   Subdivision application and review procedures.
      (1)   All proposed subdivisions shall be reviewed prior to recording with the Register of Deeds by submitting a vicinity map to the Ordinance Administrator to determine whether or not the property is located within the designated Public Water Supply Watershed. Subdivisions that are not within the designated watershed area shall not be subject to the provisions of this article and may be recorded provided the Ordinance Administrator signs all appropriate certifications. In addition, subdivisions within a WS-IV watershed are subject to the provisions of this article only when an erosion and sedimentation plan is required under the provisions of state law, or approved local program. Subdivisions within the designated watershed area shall comply with the provisions of this article and all other state and local requirements that may apply.
      (2)   Subdivision applications shall be filed with the Ordinance Administrator. The application shall include a completed application form, two copies of the plat, and supporting documentation deemed necessary by the Ordinance Administrator or the Planning Board (see Appendix A).
      (3)   The Ordinance Administrator shall review the completed application and shall either approve, approve conditionally, or disapprove each application. The Ordinance Administrator shall take final action within 45 days of submission of the application. The Ordinance Administrator or the Planning Board may provide public agencies an opportunity to review and make recommendations. However, failure of the agencies to submit their comments and recommendations shall not delay action within the prescribed time limit. Said public agencies may include, but are not limited to, the following:
         (i)   The North Carolina Department of Transportation (NCDOT) District Highway Engineer with regard to proposed streets and highways that will be maintained by the NCDOT;
         (ii)   The Health Department with regard to proposed private water system or sewer systems normally approved by the Health Department;
         (iii)   The North Carolina Department of Environmental Quality (NCDEQ) - Division of Water Resources (DWR) with regard to proposed water and sewer systems normally approved by the Division;
         (iv)   The South Granville Water and Sewer Authority with regard to proposed public water and sewer systems normally approved by the Authority; and
         (v)   Any other agency or official designated by the Ordinance Administrator or Planning Board.
      (4)   If the Ordinance Administrator approves the application, such approval shall be indicated on both copies of the plat by the certificate of watershed compliance (see Appendix B) and signed by the Ordinance Administrator.
      (5)   If the Ordinance Administrator disapproves or approves conditionally the application, the reasons for such action shall be stated in writing for the applicant and entered in the minutes. The subdivider may make changes and submit a revised plan which shall constitute a separate request for the purpose of review.
      (6)   All subdivision plats shall comply with the requirements for recording of the County Register of Deeds.
      (7)   The plat shall be recorded within 30 days of approval. The Subdivider shall provide the Watershed Administrator with evidence the plat has been recorded with the Register of Deeds within five working days.
   (C)   Subdivision standards and required improvements.
      (1)   Adequate building space. All lots shall provide adequate building space in accordance with the development regulations contained in division 15.1.3. Existing lots of record which are smaller than the minimum required for residential lots may be developed using built-upon area criteria in accordance with division 15.1.3.
      (2)   Storm water drainage facilities. The application shall be accompanied by a description of the proposed method of providing storm water drainage. The subdivider shall provide a drainage system that diverts stormwater runoff away from surface waters and incorporates best management practices to minimize water quality impacts.
      (3)   Erosion and sedimentation control. The application shall, where required, be accompanied by a written statement that a sedimentation and erosion control plan has been submitted to and approved by the state’s Division of Land Quality.
      (4)   Roads constructed in critical areas and watershed buffer areas. Where possible, roads should be located outside of critical areas and watershed buffer areas. Roads constructed within these areas shall be designed and constructed to minimize their impact on water quality.
   (D)   Construction procedures.
      (1)   No construction or installation of improvements shall commence in a proposed subdivision until a subdivision plat has been approved, public roadway construction drawings are approved, the stormwater permit is issued, and NCDEQ has issued an erosion control permit.
      (2)   No building or other permits shall be issued for erection of a structure on any lot not of record at the time of adoption of this article until all requirements of this article have been met. The subdivider, prior to commencing any work within the subdivision, shall make arrangements with the Watershed Administrator to provide for adequate inspection.
   (E)   Penalties for transferring lots in unapproved subdivision. Any person who, being the owner or agent of the owner of any land located within the jurisdiction of town’s planning and zoning jurisdiction, thereafter subdivides his or her land in violation of this ordinance or transfers or sells land by reference to, exhibition of, or any other use of a plat showing a subdivision of the land before the plat has been properly approved under this ordinance and recorded in the office of the Register of Deeds, shall be guilty of a misdemeanor. The description by metes and bounds in the instrument of transfer or other document used in the process of selling or transferring land shall not exempt the transaction from this penalty. The town’s planning and zoning jurisdiction may bring an action for injunction of any illegal subdivision, transfer, conveyance, or sale of land, and the court shall, upon appropriate findings, issue an injunction and order requiring the offending party to comply with this ordinance.
   15.1.3   Development regulations.
   (A)   Establishment of watershed areas. For purposes of this article the town and its extraterritorial jurisdiction are hereby divided into the following areas, as appropriate.
 
WS-I
WS-II-C (Critical Area)
WS-II-P (Protected Area)
WS-III-C (Critical Area)
WS-III-P (Protected Area)
WS-IV-C (Critical Area)
WS-IV-P (Protected Area)
 
   (B)   Watershed areas described.
      (1)   WS-II Watershed Areas - Critical Area (WS-II-NSW-C).
         Low density option. In order to maintain a predominately undeveloped land use intensity pattern, single-family residential uses shall be allowed at a maximum of one dwelling unit per two acres. No residential lot shall be less than two acres, except within an approved cluster development. All other residential and nonresidential development shall be allowed at a maximum 6% built-upon area. New residuals application sites and landfills are specifically prohibited. Low density developments shall comply with division 15.1.3(D), Low Density Design Standards.
         High density option. If the development density exceeds the low density requirements above, then permanent stormwater control measures are required in accordance with division 15.1.3(E) High Density Design Standards; new residential and nonresidential development density shall not exceed 24% built-upon area.
         (i)   Allowed uses.
            (a)   Agriculture subject to the provisions of the Food Security Act of 1985, Pub. Law 99-198, and the Food, Agriculture, Conservation, and Trade Act of 1990, 104 Stat. 3359, and the rules and regulations of the Soil and Water Conservation Commission;
            (b)   Silviculture, subject to the provisions of the Forest Practices Guidelines Related to Water Quality (15 NCAC 11.6101-.0209);
            (c)   Residential development; and
            (d)   Nonresidential development, excluding: 1) landfills and 2) sites for land application of residuals or petroleum contaminated soils.
      (2)   WS-II Watershed Areas - Balance of Watershed (WS-II-NSW-P).
         Low density option. In order to maintain predominantly undeveloped land use intensity, single-family residential uses shall be allowed at a maximum of one dwelling unit per acre (1 du/ac), except with an approved cluster development. All other residential and nonresidential development shall be allowed a maximum of 12% built-upon area. Low density developments shall comply with division 15.1.3(D), Low Density Design Standards.
         High density option. If the development density exceeds the low density requirements above, then permanent stormwater control measures are required in accordance with division 15.1.3(E), High Density Design Standards; new residential and nonresidential development density shall not exceed 30% built-upon area.
         In addition, new development may occupy 10% of the watershed area which is outside the critical area, with 70% built-upon area when approved as a special intensity allocation (SIA). The Ordinance Administrator is authorized to approve SIAs consistent with the provisions of this ordinance. Projects must, to the maximum extent practicable, minimize built-upon surface area, direct stormwater away from surface waters and incorporate stormwater control measures to minimize water quality impacts. Non-discharging landfills and residuals application sites are allowed.
         (i)   Allowed uses.
            (a)   Agriculture, subject to the provisions of the Food Security Act of 1985 and the Food, Agricultural, Conservation, and Trade Act of 1990;
            (b)   Silviculture, subject to the provisions of the Forest Practices Guidelines Related to Water Quality (15 NCAC 11.0101-.0209);
            (c)   Residential development; and
            (d)   Nonresidential development excluding discharging landfills.
      (3)   WS-III Watershed Areas - Critical Area (WS-III-C).
         Low density option. In order to maintain low to moderate land use intensity, single- family residential uses are allowed at a maximum of one dwelling unit per acre (1 du/ac), except within an approved cluster development. All other residential and nonresidential development shall be allowed to at a maximum of 12% built-upon area. New residuals application sites and landfills are specifically prohibited. Low density developments shall comply with division 15.1.3(D), Low Density Design Standards.
         High density option. If the development density exceeds the low density requirements above, then permanent stormwater control measures are required in accordance with division 15.1.3(E), High Density Design Standards; new residential and nonresidential development density shall not exceed 30% built-upon area.
         (i)   Allowed uses.
            (a)   Agriculture, subject to the provisions of the Food Security Act of 1985 and the Food, Agriculture, Conservation, and Trade Act of 1990 and the rules and regulations of the Soil and Water Conservation Commission;
            (b)   Silviculture, subject to the provisions of the Forest Practices Guidelines Related to Water Quality (15 NCAC 11.0101-.0209);
            (c)   Residential; and
            (d)   Nonresidential development, excluding: 1) landfills and 2) sites for land application of residuals or petroleum contaminated soils.
      (4)   WS-IV Watershed Areas - Critical Area (WS-IV-NSW-C).
         Low density option. Only new development activities that require an erosion/sedimentation control plan under state law or approved local program are required to meet the provisions of this ordinance when located in a WS-IV watershed. In order to address a moderate to high land use intensity pattern, single-family residential uses are allowed at a maximum of two dwelling units per acre. No residential lot shall be less than one-half acre (or 20,000 square feet excluding roadway right-of-way), except within an approved cluster development. All other residential and nonresidential development shall be allowed at a maximum of 24% built-upon area. New residuals application sites and landfills are specifically prohibited. Low density developments shall comply with division 15.1.3(D), Low Density Design Standards.
         High density option. If the development density exceeds the low density requirements above, then permanent stormwater control measures are required in accordance with division 15.1.3(E), High Density Design Standards; new residential and nonresidential development density shall not exceed 50% built-upon area.
         (i)   Allowed uses.
            (a)   Agriculture subject to the provisions of the Food Security Act of 1985 and the Food, Agriculture, Conservation, and Trade Act of 1990 and the rules and regulations of the Soil and Water Conservation Commission;
            (b)   Silviculture, subject to the provisions of the Forest Practices Guidelines Related to Water Quality (15 NCAC 11.0101-.0209);
            (c)   Residential; and
            (d)   Nonresidential development, excluding:
               1.   Landfills; and
               2.   Sites for land application of residuals or petroleum contaminated soils.
      (5)   WS-IV Watershed Areas - Protected Area (WS-IV-NSW-P).
         Low density option. Only new development activities that require an erosion/sedimentation control plan under state law or approved local government program are required to meet the provisions of this ordinance when located in a WS-IV Watershed. In order to accommodate moderate to high land use intensity, single-family residential uses shall develop at a maximum of two dwelling units per acre (2 du/ac). No residential lot shall be less than one-half acre (or 20,000 square feet excluding roadway right-of-way), or one-third acre for projects without a curb and gutter street system, except within an approved cluster development.
         All other residential and nonresidential development shall be allowed at a maximum of 24% built-upon area. A maximum of three dwelling units per acre (3 du/ac) or 36% built-upon area is allowed for projects without a curb and gutter street system.
         High density option. If the development density exceeds the low density requirements above, then permanent stormwater control measures are required in accordance with division 15.1.3 (E), High Density Design Standards; new residential and nonresidential development density shall not exceed 70% built-upon area.
         (i)   Allowed uses.
            (a)   Agriculture, subject to the provisions of the Food Security Act of 1985 and the Food, Agricultural, Conservation, and Trade Act of 1990;
            (b)   Silviculture, subject to the provisions of the Forest Practices Guidelines Related to Water Quality (15 NCAC 11.0101-.0209);
            (c)   Residential development; and
            (d)   Nonresidential development.
   (C)   Calculation of project density.
      (1)   The following requirements shall apply to the calculation of project density:
         (i)   Project density shall be calculated as the total built-upon area divided by the total project area;
         (ii)   A project with existing development may use the calculation method in division (C)(1)(i) above or shall have the option of calculating project density as the difference of total built-upon area minus existing built-upon area divided by the difference of total project area minus existing built-upon area;
         (iii)   Total project area shall exclude the following:
            (a)   Areas below the normal high water line (NHWL); and
            (b)   Areas defined as “coastal wetlands” pursuant to 15A NCAC 07H .0205 as measured landward from the normal high water line (NHWL).
         (iv)   On a case-by-case basis as determined by the Ordinance Administrator during application review, projects may be considered to have both high and low density areas based on one or more of the following criteria:
            (a)   Natural drainage area boundaries;
            (b)   Variations in land use throughout the project; and
            (c)   Construction phasing.
   (D)   Low density design standards.
      (1)   Low density projects shall meet the following minimum design criteria.
         (i)   Density thresholds. Low density projects shall not exceed the low density development thresholds set forth in this article. For projects subject to the requirements for non-coastal high quality waters and outstanding resource waters, dwelling unit per acre may be used instead of density to establish low density status for single-family detached residential development as set forth in Rule .1021 (15A NCAC 2H .1021).
         (ii)   Dispersed flow. Projects shall be designed to maximize diffuse dispersed flow through vegetated areas and minimize channelization of flow.
         (iii)   Vegetated conveyances. Stormwater that cannot be released as diffuse dispersed flow shall be transported by vegetated conveyances. A minimal amount of non-vegetated conveyances for erosion protection or piping for driveways or culverts under a road shall be allowed when it cannot be avoided. Vegetated conveyances shall meet the following requirements:
            (a)   Side slopes shall be no steeper than 3:1 (horizontal to vertical) unless it is demonstrated to the Ordinance Administrator that the soils and vegetation will remain stable in perpetuity based on engineering calculations and on-site soil investigation; and
            (b)   The conveyance shall be designed so that it does not erode during the peak flow from the ten-year storm as demonstrated by engineering calculations.
         (iv)   Curb outlet systems. Low density projects may use curb and gutter with outlets to convey stormwater to grassed swales or vegetated areas. Requirements for these curb outlet systems are as follows:
            (a)   The curb outlets shall be designed such that the swale or vegetated area can carry the peak flow from the ten-year storm at a non-erosive velocity;
            (b)   The longitudinal slope of the swale or vegetated area shall not exceed 5%, where practicable. Where not practical due to physical constraints, devices to slow the rate of runoff and encourage infiltration to reduce pollutant delivery shall be provided;
            (c)   The swale’s cross-section shall be trapezoidal with a minimum bottom width of two feet;
            (d)   The side slopes of the swale or vegetated area shall be no steeper than 3:1 (horizontal to vertical);
            (e)   The minimum length of the swale or vegetated area shall be 100 feet;
            (f)   Low density projects may use treatment swales designed pursuant to 15A NCAC 02H .1061 in lieu of the requirements specified in divisions (a) through (e) above; and
            (g)   Stormwater outlets shall be designed so that they do not cause erosion immediately downslope of the discharge point during the peak flow from the ten-year storm event as shown by engineering calculations.
   (E)   High density design standards.
      (1)   High density projects are projects that exceed the low density development thresholds as defined in this Article. High density projects shall meet the following minimum design criteria.
         (i)   Treatment requirements. SCMs shall be designed, constructed, and maintained so that the project achieves either “runoff treatment” or “runoff volume match” as those terms are defined in 15A NCAC 2H .1002.
         (ii)   Off-site stormwater. Stormwater runoff from off-site areas and existing development that pre-dates the effective dates of these rules is not required to be treated in the SCM. Runoff from off-site areas or existing development that is not bypassed shall be included in the sizing of on-site SCMs at its full built-out potential.
         (iii)   Off-site SCM. A project that controls runoff through an off-site SCM shall be allowed on a case-by-case basis as determined by the Watershed Administrator; if the off-site SCM meets the provisions of this article.
         (iv)   Replacement and expansion of existing development. Expansions to existing development shall be subject to this article. Where there is a net increase of built-upon area, only the area of net increase shall be subject to this article. Where existing development is being replaced with new built-upon area, and there is a net increase of built-upon area, only the area of net increase shall be subject to this article.
         (v)   Minimum design criteria (MDC) for stormwater control measures (SCM). SCMs shall meet the relevant MDC set forth in 15A NCAC 2H .1050 through .1062 except in accordance with division (F) below.
         (vi)   Project shall have no adverse impact to downstream properties.
         (vii)   Development that increases the peak runoff rate from the one-year storm from pre-development conditions shall provide stormwater control measures in accordance with the town stormwater standards such that there is no net increase in peak runoff rate.
         (viii)   Developments that increases the peak runoff rate from either the two-year or the ten-year storm from predevelopment conditions shall be required to provide stormwater management facilities to address the impact, unless otherwise determined by the Ordinance Administrator.
         (ix)   Developments that increases the peak runoff from the 100-year storm may be required to install stormwater management facilities to address the impact, as determined by the Ordinance Administrator.
   (F)   Variations from division 15.1.3(D) and (E). The Ordinance Administrator may approve projects that do not comply with all of the provisions of this section on a case-by-case basis as follows.
      (1)   If the variation pertains to an SCM design that does not meet all of the MDC, then the applicant shall provide technical justification based on engineering calculations and the results of research studies showing that the proposed design is equally or more protective of water quality than the requirements of this section and that it shall function in perpetuity. The Ordinance Administrator shall have the option to require compliance with the MDC in the event that the alternative SCM design fails.
      (2)   If the variation pertains to other aspects of the project, then the applicant shall demonstrate that the project provides equal or better stormwater control and equal or better protection of waters of the state.
   (G)   Cluster development. Cluster development is allowed in all Watershed Areas [except WS-I] under the following conditions:
      (1)   Minimum lot sizes are not applicable to single-family cluster development projects; however, the total number of lots shall not exceed the number of lots allowed for single-family detached developments in division 15.1.3. Density or built-upon area for the project shall not exceed that allowed for the critical area, balance of watershed, or protected area, whichever applies.
      (2)   All built-upon area shall be designed and located to minimize stormwater runoff impact to the receiving waters and minimize concentrated stormwater flow, maximize the use of sheet flow through vegetated areas, and maximize the flow length through vegetated areas.
      (3)   Areas of concentrated density development shall be located in upland area and away, to the maximum extent practicable, from surface waters and drainageways.
      (4)   The remainder of the tract shall remain in a vegetated or natural state. The title to the open space area shall be conveyed to an incorporated homeowners’ association for management; to a local government for preservation as a park or open space; or to a conservation organization for preservation in a permanent easement. Where a property association is not incorporated, a maintenance agreement shall be filed with the property deeds.
      (5)   Cluster developments that meet the applicable low density requirements shall transport stormwater runoff by vegetated conveyances to the maximum extent practicable.
   (H)   Buffer areas required.
      (1)   A minimum 100-foot vegetative buffer is required for all new development activities that exceed the low density option; otherwise, a minimum 30-foot vegetative buffer for development activities is required along all perennial waters indicated on the most recent versions of U.S.G.S. 1:24,000 (7.5 minute) scale topographic maps or as determined by local government studies. Desirable artificial streambank or shoreline stabilization is permitted.
      (2)   No new development is allowed in the buffer except for water dependent structures, other structures such as flag poles, signs, and security lights which result in only diminutive increases in impervious area and public projects such as road crossings and greenways where no practical alternative exists. These activities should minimize built-upon surface area, direct runoff away from the surface waters, and maximize the utilization of stormwater stormwater control measures.
   (I)   Rules governing the interpretation of watershed area boundaries. Where uncertainty exists as to the boundaries of the watershed areas, as shown on the Watershed Map, the following rules shall apply.
      (1)   Where area boundaries are indicated as approximately following either street, alley, railroad, or highway lines or centerlines thereof, such lines shall be construed to be said boundaries.
      (2)   Where area boundaries are indicated as approximately following lot lines, such lot lines shall be construed to be said boundaries. However, a surveyed plat prepared by a registered land surveyor may be submitted to the town’s planning and zoning jurisdiction as evidence that one or more properties along these boundaries do not lie within the watershed area.
      (3)   Where the watershed area boundaries lie at a scaled distance more than 25 feet from any parallel lot line, the location of watershed area boundaries shall be determined by use of the scale appearing on the Watershed Map.
      (4)   Where the watershed area boundaries lie at a scaled distance of 25 feet or less from any parallel lot line, the location of watershed area boundaries shall be construed to be the lot line.
      (5)   Where other uncertainty exists, the Watershed Administrator shall interpret the Watershed Map as to location of such boundaries. This decision may be appealed to the Watershed Review Board.
   (J)   Application of regulations.
      (1)   No building or land shall hereafter be used and no development shall take place except in conformity with the regulations herein specified for the watershed area in which it is located.
      (2)   No area required for the purpose of complying with the provisions of this ordinance shall be included in the area required for another building.
      (3)   If a use or class of use is not specifically indicated as being allowed in a watershed area, such use or class of use is prohibited.
   (K)   Existing development. Existing development as defined in § 17.1 may be continued and maintained subject to the provisions provided herein. Expansions to structures classified as existing development must meet the requirements of § 15.1, however, the built-upon area of the existing development is not required to be included in the built-upon area calculations.
      (1)   Uses of land. This category consists of uses existing at the time of adoption of this ordinance where such use of the land is not permitted to be established hereafter in the watershed area in which it is located. Such uses may be continued except as follows.
         (i)   When such use of land has been changed to an allowed use, it shall not thereafter revert to any prohibited use.
         (ii)   Such use of land shall be changed only to an allowed use.
         (iii)   When such use ceases for a period of at least one year, it shall not be reestablished.
      (2)   Reconstruction of buildings or built-upon areas. Any existing building or built-upon area not in conformance with the restrictions of this ordinance that has been damaged or removed may be repaired and/or reconstructed, except that there are no restrictions on single-family residential development, provided:
         (i)   Repair or reconstruction is initiated within 12 months and completed within two years of such damage; and
         (ii)   The total amount of space devoted to built-upon area may not be increased unless stormwater control that equals or exceeds the previous development is provided.
   (L)   Stormwater management permit.
      (1)   Except where a single-family residence is constructed on a lot deeded prior to the effective date of this ordinance, no building or built-upon area shall be erected, moved, enlarged, or structurally altered, nor shall any building permit be issued nor shall any change in the use of any building or land be made until a watershed protection permit has been issued by the Watershed Administrator. No watershed protection permit shall be issued except in conformity with the provisions of this ordinance.
      (2)   Stormwater management permit applications shall be filed with the Ordinance Administrator. The application shall include a completed application form and supporting documentation deemed necessary by the Ordinance Administrator.
      (3)   Prior to issuance of a stormwater management permit, the Ordinance Administrator may consult with qualified personnel for assistance to determine if the application meets the requirements of this ordinance.
      (4)   A stormwater management permit shall expire if a building permit or occupancy permit for such use is not obtained by the applicant within 12 months from the date of issuance.
   (M)   Building permit required. No permit required under the state’s Building Code shall be issued for any activity for which a stormwater management permit is required until that permit has been issued.
   (N)   Watershed protection occupancy permit.
      (1)   The Ordinance Administrator shall give approval for an occupancy permit certifying that all requirements of this ordinance have been met prior to the occupancy or use of a building hereafter erected, altered, or moved and/or prior to the change of use of any building or land.
      (2)   An occupancy permit, either for the whole or part of a building, shall be applied for coincident with the application for a stormwater management permit and shall be issued or denied within ten days after the erection or structural alterations of the building.
      (3)   When only a change in use of land or existing building occurs, the Ordinance Administrator shall approve issuance of an occupancy permit certifying that all requirements of this ordinance have been met coincident with the stormwater management permit.
      (4)   If the occupancy permit is denied, the Ordinance Administrator shall notify the applicant in writing stating the reasons for denial.
      (5)   No building or structure which has been erected, moved, or structurally altered may be occupied until the Ordinance Administrator has approved the issuance of an occupancy permit.
   15.1.4   Public health regulations.
   (A)   Public health, in general. No activity, situation, structure, or land use shall be allowed within the watershed which poses a threat to water quality and the public health, safety, and welfare. Such conditions may arise from inadequate on-site sewage systems which utilize ground absorption; inadequate sedimentation and erosion control measures; the improper storage or disposal of junk, trash, or other refuse within a buffer area; the improper management of stormwater runoff; or any other situation found to pose a threat to water quality.
   (B)   Abatement.
      (1)   The Ordinance Administrator shall monitor land use activities within the watershed areas to identify situations that may pose a threat to water quality.
      (2)   The Ordinance Administrator shall report all findings to the Town Council. The Ordinance Administrator may consult with any public agency or official and request recommendations.
      (3)   Where the Town Council finds a threat to water quality and the public health, safety, and welfare, the Council shall institute any appropriate action or proceeding to restrain, correct, or abate the condition and/or violation.
   15.1.5   Administration, enforcement, and appeals.
   (A)   Ordinance Administrator and duties thereof. The Town Council shall appoint an Ordinance Administrator, who shall be duly sworn in. It shall be the duty of the Ordinance Administrator to administer and enforce the provisions of this ordinance as follows.
      (1)   The Ordinance Administrator shall issue stormwater management permits and approve issuance of occupancy permits as prescribed herein. A record of all permits shall be kept on file and shall be available for public inspection during regular office hours of the Administrator.
      (2)   The Ordinance Administrator shall keep records of all amendments to the local water supply watershed protection ordinance and shall provide copies of all amendments upon adoption to the water quality section of the division of water quality.
      (3)   The Ordinance Administrator shall keep records of the jurisdiction’s use of the provision that a maximum of 10% of the non-critical area of WS-II and WS-III watersheds and, for local governments that do not choose to incorporate the high density option, 10% of the protected area of WS-IV watersheds may be developed with new development at a maximum of 70% built-upon surface area. Records for each watershed shall include the total acres of non-critical watershed area, total acres eligible to be developed under this option, total acres approved for this development option, and individual records for each project with the following information: location, number of developed acres, type of land use, and stormwater management plan (if applicable).
      (4)   The Ordinance Administrator or his or her designee is granted the authority to administer and enforce the provisions of this ordinance, exercising in the fulfillment of his or her responsibility the full police power of the town. The Ordinance Administrator, or his or her duly authorized representative, may enter any building, structure, or premises, as provided by law, to perform any duty imposed upon him or her by this ordinance.
      (5)   The Ordinance Administrator shall keep a record of variances to the local Water Supply Watershed Protection Ordinance. This record shall be submitted for each calendar year to the Water Quality Section of the Division of Environmental Management on or before January 1 of the following year and shall provide a description of each project receiving a variance and the reasons for granting the variance.
   (B)   Appeal from the Ordinance Administrator.
      Any order, requirement, decision, or determination made by the Ordinance Administrator may be appealed to and decided by the Board of Adjustment.
      An appeal from a decision of the Ordinance Administrator must be submitted to the Board of Adjustment within 30 days from the date the order, interpretation, decision, or determination is made. all appeals must be made in writing stating the reasons for appeal. Following submission of an appeal, the Ordinance Administrator shall transmit to the Board all papers constituting the record upon which the action appealed from was taken.
      An appeal stays all proceedings in furtherance of the action appealed, unless the officer from whom the appeal is taken certifies to the Board after the notice of appeal has been filed with him or her, that by reason of facts stated in the certificate, a stay would in his or her opinion cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the Board or by a court of record on application of notice of the officer from whom the appeal is taken and upon due cause shown.
      The Board shall fix a reasonable time for hearing the appeal and give notice thereof to the parties and shall decide the same within a reasonable time. At the hearing, any party may appear in person, by agent or by attorney.
   (C)   Changes and amendments to this article.
      (1)   The Town Council may, on its own motion or on petition, after public notice and hearing, amend, supplement, change, or modify the watershed regulations and restrictions as described herein.
      (2)   No action shall be taken until the proposal has been submitted to the Planning Board for review and recommendations. If no recommendation has been received from the Planning Board within 45 days after submission of the proposal to the Chairperson of the Planning Board, the Town Council may proceed as though a favorable report had been received.
      (3)   Under no circumstances shall the Town Council adopt such amendments, supplements, or changes that would cause this ordinance to violate the watershed protection rules as adopted by the state’s Environmental Management Commission. All amendments must be filed with the state’s Division of Water Quality, the state’s Division of Environmental Health, and the state’s Division of Community Assistance.
   (D)   Public notice and hearing required. Before adopting or amending this ordinance, the Council shall hold a public hearing on the proposed changes. A notice of the public hearing shall be given once a week for two successive calendar weeks in a newspaper having general circulation in the area. The notice shall be published for the first time not less than ten nor more than 25 days before the date for the hearing.
   (E)   Establishment of Watershed Review Board. The Board of Adjustment shall serve as the Watershed Review Board.
   (F)   Powers and duties of the Watershed Review Board.
      (1)   Administrative review. The Watershed Review Board shall hear and decide appeals from any decision or determination made by the Ordinance Administrator in the enforcement of this ordinance.
      (2)   Variances. The Watershed Review Board shall have the power to authorize, in specific cases, minor variances from the terms of this article as will not be contrary to the public interests where, owing to special conditions, a literal enforcement of this article will result in practical difficulties or unnecessary hardship, so that the spirit of this article shall be observed, public safety and welfare secured, and substantial justice done. In addition, the town shall notify and allow a reasonable comment period for all other local governments having jurisdiction in the designated watershed where the variance is being considered.
         (i)   Applications for a variance shall be made on the proper form obtainable from the Watershed Administrator and shall include the following information:
            (a)   A site plan, drawn to a scale of at least one inch to 40 feet, indicating the property lines of the parcel upon which the use is proposed; any existing or proposed structures; parking areas and other built-upon areas; and surface water drainage. The site plan shall be neatly drawn and indicate north point, name and address of person who prepared the plan, date of the original drawing, and an accurate record of any later revisions;
            (b)   A complete and detailed description of the proposed variance, together with any other pertinent information which the applicant feels would be helpful to the Watershed Review Board in considering the application; and
            (c)   The Ordinance Administrator shall notify in writing each local government having jurisdiction in the watershed and the entity using the water supply for consumption. Such notice shall include a description of the variance being requested. Local governments receiving notice of the variance request may submit comments to the Ordinance Administrator prior to a decision by the Watershed Review Board. Such comments shall become a part of the record of proceedings of the Watershed Review Board.
         (ii)   Before the Watershed Review Board may grant a major or minor variance, it shall make the findings of fact set out in division 3.2.5(E) of this ordinance.
         (iii)   In granting the variance, the Board may attach thereto such conditions regarding the location, character, and other features of the proposed building, structure, or use as it may deem advisable in furtherance of the purpose of this ordinance. If a variance for the construction, alteration, or use of property is granted, such construction, alteration, or use shall be in accordance with the approved site plan.
         (iv)   The Watershed Review Board shall refuse to hear an appeal or an application for a variance previously denied if it finds that there have been no substantial changes in conditions or circumstances bearing on the appeal or application.
         (v)   A variance issued in accordance with this section shall be considered a watershed protection permit and shall expire if a building permit or occupancy permit for such use is not obtained by the applicant within six months from the date of the decision.
         (vi)   If the application calls for the granting of a major variance, and if the Watershed Review Board decides in favor of granting the variance, the Board shall prepare a preliminary record of the hearing with all deliberate speed. The preliminary record of the hearing shall include:
            (a)   The variance application;
            (b)   The hearing notices;
            (c)   The evidence presented;
            (d)   Motions, offers of proof, objections to evidence, and rulings on them;
            (e)   Proposed findings and exceptions; and
            (f)   The proposed decision, including all conditions proposed to be added to the permit.
         (vii)   The preliminary record shall be sent to the Environmental Management Commission for its review and approval as follows.
            (a)   If the Commission concludes from the preliminary record that the variance qualifies as a major variance and approves the major variance either as proposed or with conditions and stipulations, the Board shall prepare a final decision granting the proposed variance with or without conditions or stipulations as set out in the Commission decision authorizing the Watershed Review Board to issue a final decision.
            (b)   If the Commission concludes from the preliminary record that the variance qualifies as a major variance and the Commission denies the major variance, the Board shall prepare a final decision denying the proposed major variance as set out in the Commission decision.
      (3)   Approval of all development greater than the low density option.
   (G)   Appeals from the Watershed Review Board. Appeals from the Watershed Review Board on a major or minor variance request are made on certiorari to the County Superior Court. Appeals from the Commission decision on a major variance request are made on judicial review to Superior Court.
§ 15.2  STORMWATER REQUIREMENTS FOR NEW DEVELOPMENT IMPLEMENTING THE FALLS LAKE RULES.
   15.2.1   Authority. This article is adopted pursuant to G.S. § 143-214.7, Session Law 2006-246 and the rules promulgated by the state’s Environmental Management Commission thereunder. Specifically, this article is adopted to comply with the standards of the Universal Stormwater Management Program and the Falls Nutrient Strategy New Development Rule as set forth in the state’s Administrative Code (15A NCAC 2H .1020(b) and 15A NCAC 02B .0277).
   15.2.2   Findings. It is hereby determined that:
   (A)   Development and redevelopment alter the hydrologic response of local watersheds and increase 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;
   (B)   These changes in stormwater runoff contribute to increased quantities of water-borne pollutants and alterations in hydrology that are harmful to public health and safety as well as to the natural environment;
   (C)   These effects can be managed and minimized by applying proper design and well-planned controls to manage stormwater runoff from development sites;
   (D)   Further, the Commission has identified Falls of Neuse reservoir, a water supply reservoir as nutrient sensitive waters; has identified all or a portion of the reservoir as impaired waters under the Federal Clean Water Act, being 33 U.S.C. §§ 1251 et seq. due to exceedances of the chlorophyll a standard; and has promulgated rules (the “Falls Rules”) to reduce the average annual loads of nitrogen and phosphorus delivered to Falls Reservoir from all point and nonpoint sources of these nutrients located within its watershed, including stormwater from new development in this jurisdiction; and
   (E)   Therefore, the town establishes this set of water quality and quantity regulations to meet the requirements of state and federal law regarding control of stormwater runoff and discharge for development.
   15.2.3   Purpose.
   (A)   General.
      The purpose of this article 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, nitrogen and phosphorus in stormwater runoff, and nonpoint and point source pollution associated with new development and redevelopment. It has been determined that proper management of construction-related 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 and aquatic resources.
      This article seeks to meet its general purpose through the following specific objectives and means:
      (1)   Establishing decision-making processes for development that protect the integrity of watersheds and preserve the health of water resources;
      (2)   Requiring 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, stream bank erosion, nonpoint and point source pollution and increases in stream temperature, and to maintain the integrity of stream channels and aquatic habitats;
      (3)   Establishing minimum post-development stormwater management standards and design criteria for the regulation and control of stormwater runoff quantity and quality;
      (4)   Establishing design criteria for the construction, function, and use of structural stormwater best management practices ( BMPs) that may be used to meet the minimum post-development stormwater management standards;
      (5)   Encouraging the use of better management and site design practices, such as the use of vegetated conveyances for stormwater and the preservation of open space, riparian buffers, and other conservation areas to the maximum extent practicable;
      (6)   Establishing provisions for the long-term responsibility for and maintenance of structural and nonstructural stormwater BMPs to ensure that they continue to function as designed, are maintained appropriately, and pose no threat to public safety; and
      (7)   Establishing administrative procedures for the inspection of approved projects and to assure adequate and appropriate long-term maintenance.
   15.2.4   Applicability.
   (A)   General. This article shall be applicable to all development and redevelopment activities, unless exempt pursuant to division 15.2.4(E), Exemptions.
   (B)   Effective date. The effective date of § 15.2, Stormwater Requirements For New Development Implementing the Falls Lake Rules, is May 3, 2012.
   (C)   Final approvals, complete applications.
      All development and redevelopment projects for which complete and full applications were submitted and approved by the town of, if prior to incorporation, by the county prior to the effective date of this article and which remain valid, unexpired, unrevoked, and not otherwise terminated at the time of development shall be exempt from complying with all provisions of this article dealing with the control and/or management of stormwater.
      A phased development plan shall be deemed approved prior to the effective date of this article if it has been approved by all necessary government units, it remains valid, unexpired, unrevoked, and not otherwise terminated, and it shows:
      (1)   For the initial or first phase of development or redevelopment, the type and intensity of use for a specific parcel or parcels, including at a minimum, the boundaries of the project and a subdivision plan that has been approved; and
      (2)   For any subsequent phase of development or redevelopment, sufficient detail so that implementation of the requirements of this article to that phase of development would require a material change in that phase of the plan.
   (D)   Violations continue. Any violation of provisions existing on the effective date of this article shall continue to be a violation under this article and be subject to penalties and enforcement under this article unless the use, development, construction, or other activity complies with the provisions of this article.
   (E)   Exemptions.
      (1)   Thresholds.
         (i)   Single-family and duplex residential and recreational development and redevelopment that cumulatively disturbs less than one-half acre and is not part of a larger common plan of development or sale is exempt from the provisions of this article.
         (ii)   Commercial, industrial, institutional, multi-family residential, or local government development and redevelopment that cumulatively disturbs less than 12,000 square feet, and is not part of a larger common plan of development or sale is exempt from the provisions of this article.
         (iii)   Development and redevelopment that disturb less than the above thresholds are not exempt if such activities are part of a larger common plan of development or sale and the larger common plan exceeds the relevant threshold, even though multiple, separate, or distinct activities take place at different times on different schedules.
         (iv)   Development that is exempt from permit requirements of § 404 of the Federal Clean Water Act, being 33 U.S.C. § 1344, as specified in 40 C.F.R. part 232, (primarily, ongoing farming and forestry activities) are exempt from the provisions of this article.
      (2)   General exemption.
         (i)   This article does not apply to agricultural activities that are governed by 15A NCAC 02B .0280 or to forestry activity that the town is prohibited from regulating under G.S. § 160A-458.5. Nothing herein shall be read to limit, expand, or otherwise alter the authority of a town to regulate those things which it is allowed to regulate under G.S. § 160A-458.5(c).
         (ii)   Without limitation of its other authority under G.S. § 160A-458.5(c), the town may regulate activity associated with development. The town may deny a building permit or refuse to approve a site or subdivision plan for either a period of up to:
            (a)   Three years after the completion of a timber harvest if the harvest results in the removal of all or substantially all of the trees that were protected under city regulations governing development from the tract of land for which the permit or approval is sought; or
            (b)   Five years after the completion of a timber harvest if the harvest results in the removal of all or substantially all of the trees that were protected under city regulations governing development from the tract of land for which the permit or approval is sought and the harvest was a willful violation of the city regulations.
   (F)   No development or redevelopment until compliance and permit. No development or redevelopment shall occur except in compliance with the provisions of this article as evidenced by the issuance of a stormwater management permit, unless exempted herein. No development or redevelopment for which a permit is required pursuant to this article shall occur except in compliance with the provisions, conditions, and limitations of the permit.
   (G)   Map.
      (1)   The provisions of this article shall apply within the areas designated on the map titled “Town of Butner Watershed Map”, which is adopted simultaneously herewith. The town’s Watershed Map and all explanatory matter contained thereon accompanies, and is hereby made a part of, this ordinance and is integrated with the Official Zoning Map.
      (2)   The town’s Watershed Map shall be kept on file by the Ordinance Administrator and shall be updated to take into account changes in the land area covered by this article and the geographic location of all structural BMPs permitted under this article. In the event of a dispute, the applicability of this article to a particular area of land or BMP shall be determined by reference to the state’s statutes, the state’s Administrative Code, and the standards for determining zoning district boundaries as set forth in division 1.8.3.
   15.2.5   Stormwater Design Manual.
   (A)   Reference to Stormwater Design Manual.
      The Ordinance Administrator shall use the policy, criteria, and information, including technical specifications and standards, in the NCDEQ Stormwater Design Manual as the basis for decisions about stormwater permits and about the design, implementation, and performance of structural and non-structural stormwater BMPs and other practices for compliance with this article.
      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 Phase II, Falls Rules and other applicable stormwater laws.
   (B)   Relationship of Stormwater Design Manual to other laws and regulations.
      (1)   Conflict of laws. This article is not intended to modify or repeal any other article, ordinance, rule, regulation, or other provision of law. The requirements of this article are in addition to the requirements of any other article, ordinance, rule, regulation, or other provision of law. Where any provision of this article imposes restrictions different from those imposed by any other article, ordinance, rule, regulation, or other provision of law, whichever provision is more restrictive or imposes higher protective standards for human or environmental health, safety, and welfare shall control.
      (2)   Private agreements. This article is not intended to revoke or repeal any easement, covenant, or other private agreement. However, where the regulations of this article are more restrictive or impose higher standards or requirements than such an easement, covenant, or other private agreement, the requirements of this article shall govern. Nothing in this article shall modify or repeal any private covenant or deed restriction, but such covenant or restriction shall not legitimize any failure to comply with this article. In no case shall the town be obligated to enforce the provisions of any easements, covenants, or agreements between private parties.
   (C)   Changes to standards and specifications. 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 this ordinance but prior to approval, the new information shall control and shall be utilized in reviewing the application and in implementing this ordinance with regard to the application.
   15.2.6   Review and decision-making entities.
   (A)   Stormwater Administrator.
      (1)   Designation. The Ordinance Administrator shall be the Stormwater Administrator.
      (2)   Powers and duties. In addition to the powers and duties that may be conferred by other provisions of this ordinance and other laws, the Ordinance Administrator shall have the following powers and duties under this article:
         (i)   To review and approve, approve with conditions, or disapprove applications for approval of plans pursuant to this article;
         (ii)   To make determinations and render interpretations of this article;
         (iii)   To establish application requirements and schedules for submittal and review of applications and appeals, to review and make recommendations to the Town Council on applications for development or redevelopment approvals;
         (iv)   To enforce the provisions of this article in accordance with its enforcement provisions;
         (v)   To maintain records, maps, forms, and other official materials as relate to the adoption, amendment, enforcement, and administration of this article;
         (vi)   To provide expertise and technical assistance to the (name of governing board and, if a stormwater board is established, the name of that board as well), upon request;
         (vii)   To designate appropriate other person(s) who shall carry out the powers and duties of the Ordinance Administrator; and
         (viii)   To take any other action necessary to administer the provisions of this article.
   (B)   Review procedures.
      (1)   Permit required; must apply for permit. A stormwater permit is required for all development and redevelopment unless exempt pursuant to this article. A permit may only be issued subsequent to a properly submitted and reviewed permit application, pursuant to this section. Applications shall be governed by other applicable provisions of this ordinance, specifically including, but not limited to, Article 3, Review and Approval Procedures.
      (2)   Effect of permit.
      A stormwater permit shall govern the design, installation, and construction of stormwater management and control practices on the site, including engineered stormwater controls and elements of site design for stormwater management other than engineered stormwater controls.
      The permit is intended to provide a mechanism for the review, approval, and inspection of the approach to be used for the management and control of stormwater for the development or redevelopment site consistent with the requirements of this article, whether the approach consists of engineered stormwater controls or other techniques such as low-impact or low-density design. The permit does not continue in existence indefinitely after the completion of the project; rather, compliance after project construction is assured by the maintenance provisions of this article.
      (3)   Authority to file application. All applications required pursuant to this Code shall be submitted to the Stormwater Administrator by the land owner or the land owner’s duly authorized agent.
      (4)   Establishment of application requirements, schedule, and fees.
         (i)   Application contents and form. The Ordinance Administrator shall establish requirements for the content and form of all applications and shall amend and update those requirements from time to time. At a minimum, the stormwater permit application shall describe in detail how post-development stormwater runoff will be controlled and managed, the design of all stormwater facilities and practices, and how the proposed project will meet the requirements of this article.
         (ii)   Submission schedule. The Ordinance Administrator may establish a submission schedule for applications. The schedule shall establish deadlines by which complete applications must be submitted for the purpose of ensuring that there is adequate time to review applications, and that the various stages in the review process are accommodated.
         (iii)   Permit review fees. The Town Council shall establish permit review fees as well as policies regarding refund of any fees upon withdrawal of an application, and may amend and update the fees and policies from time to time.
         (iv)   Administrative manual. For applications required under this article, the Ordinance Administrator shall compile the application requirements, submission schedule, fee schedule, a copy of this article, and information on how and where to obtain the Design Manual in an Administrative Manual, which shall be made available to the public.
      (5)   Submittal of complete application.
      Applications shall be submitted to the Ordinance Administrator pursuant to the application submittal schedule in the form established by the Ordinance Administrator, along with the appropriate fee established pursuant to this section.
      An application shall be considered as timely submitted only when it contains all elements of a complete application pursuant to this article, along with the appropriate fee. If the Ordinance Administrator finds that an application is incomplete, the applicant shall be notified of the deficient elements and shall be provided with an opportunity to submit a complete application. However, the submittal of an incomplete application shall not suffice to meet a deadline contained in the submission schedule established above.
      (6)   Review. The Ordinance Administrator shall review the application and determine whether the application complies with the standards of this article.
         (i)   Approval. If the Ordinance Administrator finds that the application complies with the standards of this ordinance, the Ordinance Administrator shall approve the application. The Ordinance Administrator may impose conditions of approval as needed to ensure compliance with this article. The conditions shall be included as part of the approval.
         (ii)   Fails to comply. If the Stormwater Administrator finds that the application fails to comply with the standards of this ordinance, the Stormwater Administrator shall notify the applicant and shall indicate how the application fails to comply. The applicant shall have an opportunity to submit a revised application.
         (iii)   Revision and subsequent review.
         A complete revised application shall be reviewed by the Ordinance Administrator after its re-submittal and shall be approved, approved with conditions, or disapproved.
         If a revised application is not re-submitted within 30 calendar days from the date the applicant was notified, the application shall be considered withdrawn and a new submittal for the same or substantially the same project shall be required along with the appropriate fee for a new submittal.
         One re-submittal of a revised application may be submitted without payment of an additional permit review fee. Any re-submittal after the first re-submittal may require additional review fees, as established pursuant to this article.
   15.2.7   Stormwater management standards. All development and redevelopment to which this article applies shall comply with the standards of this section.
   (A)   Riparian buffer standards.
      (1)   Riparian buffer requirements.
      Proposed new development shall demonstrate compliance with the riparian buffer protection requirements of 15A NCAC 02B .0233 and .0242 or subsequent amendments or replacements to those requirements.
      If surface waters (intermittent, perennial, lakes, ponds, and estuaries) are present, riparian stream buffers are required and measured from the top of bank as follows; Zone 1 a 30-foot undisturbed buffer; and Zone 2 a 20-foot vegetated buffer, both in accordance with 15A NCAC 02B .0233.
   (B)   Stormwater control requirements.
      (1)   Stormwater control measures shall be designed to control and treat the runoff generated from all surfaces by one inch of rainfall. The treatment volume shall be drawn down pursuant to standards specific to each practice as provided in the Stormwater BMP Design Manual.
      (2)   To ensure that the integrity and nutrient processing functions of receiving waters and associated riparian buffers are not compromised by erosive flows, stormwater flows from the development shall not contribute to degradation of waters of the state. At a minimum, the development shall not result in a net increase in peak flow leaving the site from pre-development conditions for the one-year, 24-hour storm event. New development may satisfy the requirements of this rule by meeting the post-development hydrologic criteria set out in Chapter 2 of the state’s Low Impact Development Guidebook, dated June 2009, or the hydrologic criteria in the most recent version of that guidebook.
   (C)   Standards.
      (1)   General standards. All development and redevelopment to which this article applies shall comply with the standards of this section. 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)   Nitrogen and phosphorus loading.
         (i)   Nitrogen and phosphorus loads contributed by the proposed new development shall not exceed the following unit-area mass loading rates: [2.2 and 0.33 pounds per acre per year for nitrogen and phosphorus, respectively].
         (ii)   Notwithstanding 15A NCAC 2B .104(q), redevelopment subject to this ordinance that would replace or expand existing structures or improvements and would result in a net increase in built-upon area shall have the option of either meeting the loading standards identified in division 15.2.7(A)(1) or meeting a loading rate that achieves the following nutrient loads compared to the existing development: 40% and 77% reduction for nitrogen and phosphorus, respectively.
         (iii)   Nitrogen and phosphorus loading rates shall be calculated by using the approved accounting tool and methods.
      (3)   Nitrogen and phosphorus standard is supplemental. The nitrogen and phosphorus loading standards in this article are supplemental to, not replacements for, stormwater standards otherwise required by federal, state, or local law, including without limitation any riparian buffer requirements applicable to the location of the development. This includes, without limitation, the riparian buffer protection requirements of 15A NCAC 2B .0233 and .0242.
      (4)   Partial offset of nutrient control requirements. Development subject to this article shall attain nitrogen and phosphorus loading rate reductions on-site that meet the following criteria prior to using an off-site offset measure:
         (i)   Thirty percent or more reduction in both nitrogen and phosphorus loading from the untreated conditions for any single-family, detached and duplex residential development disturbing one half acre but less than one acre;
         (ii)   Fifty percent or more reduction in both nitrogen and phosphorus loading from the untreated conditions for any single-family, detached and duplex residential development disturbing more than one acre;
         (iii)   Thirty percent or more reduction in both nitrogen and phosphorus loading from the untreated condition for other development, including multi-family residential, commercial, and industrial development disturbing 12,000 square feet but less than one acre;
         (iv)   Fifty percent or more reduction in both nitrogen and phosphorus loading from the untreated condition for other development, including multi-family residential, commercial, and industrial development disturbing more than one acre; or
         (v)   Thirty percent or more reduction in both nitrogen and phosphorus loading from the untreated condition for proposed redevelopment activities in a designated downtown area that would replace or expand structures or improvements that existed as of December 2006.
      A developer subject to this ordinance may achieve the additional reductions in nitrogen and phosphorus loading required by this article by making offset payments to the state’s Ecosystem Enhancement Program contingent upon acceptance of payments by that program. A developer may use an offset option provided by the town. A developer may propose other offset measures to the town, including providing his or her own off-site offset or utilizing a private seller. All offset measures permitted by this ordinance shall meet the requirements of 15A NCAC 02B .0282 and 15A NCAC 02B .0240.
   (D)   Standards for stormwater control measures.
      (1)   Evaluation according to contents of design manual. All stormwater control measures and stormwater treatment practices (also referred to as best management practices, or BMPs) required under this article shall be evaluated by the Ordinance 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 BMP Design Manual. The Ordinance Administrator shall determine whether proposed BMPs will be adequate to meet the requirements of this article.
      (2)   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 BMP Design Manual will be presumed to meet the minimum water quality and quantity performance standards of this article. Whenever an applicant proposes to utilize a practice or practices not designed and constructed in accordance with the criteria and specifications in the Stormwater BMP 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 article. The Ordinance Administrator may require the applicant to provide the documentation, calculations, and examples necessary for the Ordinance Administrator to determine whether such an affirmative showing is made.
      (3)   Dedication of BMPs, facilities, and improvements. The town may accept the dedication of any existing or future stormwater management facility for maintenance, provided such facility meets all the requirements of this article and includes adequate and perpetual access and sufficient area, by easement or otherwise, for inspection and regular maintenance.
   15.2.8   Variances. Applications for variances shall be considered as set out in division 3.2.5 of this ordinance.
   15.2.9   Maintenance.
   (A)   Standards for maintenance.
      (1)   Function of BMPs as intended. The owner of each structural BMP installed pursuant to this article 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 BMP was designed.
      (2)   Annual maintenance inspection and report. The person responsible for maintenance of any structural BMP installed pursuant to this article shall submit to the Ordinance Administrator an inspection report from a registered state professional engineer or a state registered landscape architect, or by a person who has been awarded a Stormwater BMP Inspection and Maintenance Certification by the North Carolina State University Cooperative Extension Service. The inspection report shall contain all of the following:
         (i)   The name and address of the land owner;
         (ii)   The recorded book and page number of the lot of each structural BMP;
         (iii)   A statement that an inspection was made of all structural BMPs;
         (iv)   The date the inspection was made;
         (v)   A statement that all inspected structural BMPs are performing properly and are in compliance with the terms and conditions of the approved maintenance agreement required by this article; and
         (vi)   The original signature and seal of the engineer, surveyor, or landscape architect.
   All inspection reports shall be on forms supplied by the Ordinance Administrator. An original inspection report shall be provided to the Ordinance Administrator beginning one year from the date of as-built certification and each year thereafter on or before the date of the as-built certification.
   (B)   Operation and maintenance agreement.
      (1)   In general.
         (i)   Prior to the conveyance or transfer of any lot or building site to be served by a structural BMP pursuant to this article, and prior to issuance of any permit for development or redevelopment requiring a structural BMP pursuant to this article, 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 BMP. Until the transference of all property, sites, or lots served by the structural BMP, 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 BMP, and shall state the terms, conditions, and schedule of maintenance for the structural BMP. In addition, it shall grant to the town a right of entry in the event that the Ordinance Administrator has reason to believe it has become necessary to inspect, monitor, maintain, repair, or reconstruct the structural BMP; however, in no case shall the right of entry, of itself, confer an obligation on the town to assume responsibility for the structural BMP.
         (iii)   The operation and maintenance agreement must be approved by the Ordinance 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 Ordinance Administrator within 14 days following its recordation.
      (2)   Special requirement for homeowners’ and other associations. For all structural BMPs required pursuant to this article 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 BMPs. If structural BMPs are not performing adequately or as intended or are not properly maintained, the town, in its sole discretion, may remedy the situation, and in such instances the town shall be fully reimbursed from the escrow account. Escrowed funds may be spent by the association for sediment removal, structural, biological or vegetative replacement, major repair, and reconstruction of the structural BMPs, provided that the town shall first consent to the expenditure.
         (iii)   Both a developer contribution(s) and annual sinking funds shall fund the escrow account. Prior to plat recordation or issuance of construction permits, whichever shall first occur, the developer shall pay into the escrow account an amount equal to 15% of the initial construction cost of the structural BMPs. Two-thirds 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 BMPs. 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 town depending on the design and materials of the stormwater control and management facility.
         (v)   Granting to the town a right of entry to inspect, monitor, maintain, repair, and reconstruct structural BMPs.
         (vi)   Allowing the town to recover from the association and its members any and all costs the (name of local government) expends to maintain or repair the structural BMPs or to correct any operational deficiencies. Failure to pay the town all of its expended costs, after 45 days written notice, shall constitute a breach of the agreement. In case of a deficiency, the town 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 town to maintain or repair any structural BMPs, and the town shall not be liable to any person for the condition or operation of structural BMPs.
         (viii)   A statement that this agreement shall not in any way diminish, limit, or restrict the right of the town to enforce any of its ordinances as authorized by law.
         (ix)   A provision indemnifying and holding harmless the town for any costs and injuries arising from or related to the structural BMP, unless the town has agreed in writing to assume the maintenance responsibility for the BMP and has accepted dedication of any and all rights necessary to carry out that maintenance.
   (C)   Inspection program.
      Inspections and inspection programs by the town may be conducted or established on any reasonable basis, including, but not limited to, routine inspections, random inspections, inspections based upon complaints or other notice of possible violations, and joint inspections with other agencies inspecting under environmental or safety laws. Inspections may include, but are not limited to, reviewing maintenance and repair records; sampling discharges, surface water, groundwater, and material or water in BMPs; and evaluating the condition of BMPs.
      If the owner or occupant of any property refuses to permit such inspection, the Ordinance Administrator shall proceed to obtain an administrative search warrant pursuant to G.S. § 15-27.2 or its successor. No person shall obstruct, hamper, or interfere with the Ordinance Administrator or his or her designee while carrying out his or her official duties.
§ 15.3  STORMWATER CONTROL MEASURE ADDITIONAL STANDARDS.
   15.3.1   Performance security may be required.
   (A)   The Ordinance Administrator may, at his or her discretion, require the submittal of a performance security or bond with surety, cash escrow, letter of credit, or other acceptable legal arrangement prior to issuance of a permit in order to ensure that the structural BMPs are:
      (1)   Installed by the permit holder as required by the approved stormwater management permit; and/or
      (2)   Maintained by the owner as required by the operation and maintenance agreement.
   (B)   Amount of security.
      (1)   Installation security. The amount of an installation performance security shall be the total estimated construction cost of the BMPs approved under the permit, plus 25%.
      (2)   Maintenance security. The amount of a maintenance performance security 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 BMPs 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 security.
      (1)   Forfeiture provisions. The performance security 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 ordinance, approvals issued pursuant to this ordinance, or an operation and maintenance agreement established pursuant to this ordinance.
      (2)   Default. Upon default of the owner to construct, maintain, repair, and, if necessary, reconstruct any structural BMP in accordance with the applicable permit or operation and maintenance agreement, the Ordinance Administrator shall obtain and use all or any portion of the security 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 installation performance security, the town shall not return any of the unused deposited cash funds or other security, which shall be retained for maintenance.
      (3)   Costs in excess of performance security. If the Ordinance Administrator takes action upon such failure by the applicant or owner, the town may collect from the applicant or owner the difference between the amount of the reasonable cost of such action and the amount of the security held, in addition to any other penalties or damages due.
      (4)   Refund. Within 60 days of the final approval, the installation performance security shall be refunded to the applicant or terminated, except any amount attributable to the cost (plus 25%) of landscaping installation and ongoing maintenance associated with the BMPs covered by the security. 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 financial security attributable to landscaping shall be released.
   15.3.2   Notice to owners.
      (1)   Deed recordation and indications on plat. The applicable operations and maintenance agreement, conservation easement, or dedication and acceptance into public maintenance, as applicable, pertaining to every structural BMP 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, conservation easement or dedication, and acceptance into public maintenance, as applicable, 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.
      (2)   Signage. Where appropriate in the determination of the Ordinance Administrator to assure compliance with this article, structural BMPs shall be posted with a conspicuous sign stating who is responsible for required maintenance and annual inspection along with that person or entity’s contact information including phone number. The sign shall be maintained so as to remain visible and legible. In addition, danger and no trespassing signs shall be posted around any structural BMP.
   15.3.3   Records of installation and maintenance activities. The owner of each structural BMP 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 Ordinance Administrator.
   15.3.4   Nuisance. The owner of each stormwater BMP, whether a structural or non-structural BMP, shall maintain it so as not to create or result in a nuisance condition.
   15.3.5   Inspection easement. Every structural BMP installed pursuant to this article shall be made accessible for inspection by an inspection easement. The easement shall be recorded and its terms shall specify who may make use of the easement and for what purposes.
   15.3.6   Enforcement and violations.
   (A)   Responsible persons/entities.
      Any person who erects, constructs, reconstructs, alters (whether actively or passively), or fails to erect, construct, reconstruct, alter, repair, or maintain any structure, BMP, engineered stormwater control, practice, or condition in violation of this article 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, 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 ordinance, or fails to take appropriate action, so that a violation of this ordinance 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.
      For the purposes of this article, responsible person(s) shall include, but not be limited to:
      (1)   Person maintaining condition resulting in or constituting violation. An architect, engineer, 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 ordinance, or fails to take appropriate action, so that a violation of this ordinance results or persists; and
      (2)   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 or development of the property.
§ 15.4  ILLICIT DISCHARGES.
   15.4.1   Illicit discharges and connections.
   (A)   Illicit discharges. 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:
      (1)   Water line flushing;
      (2)   Landscape irrigation;
      (3)   Diverted stream flows;
      (4)   Rising ground waters;
      (5)   Uncontaminated ground water infiltration (as defined at 40 C.F.R. § 35.2005(20));
      (6)   Uncontaminated pumped ground water;
      (7)   Discharges from potable water sources;
      (8)   Foundation drains;
      (9)   Air conditioning condensation;
      (10)   Irrigation water;
      (11)   Springs;
      (12)   Water from crawl space pumps;
      (13)   Footing drains;
      (14)   Lawn watering;
      (15)   Individual residential car washing;
      (16)   Flows from riparian habitats and wetlands;
      (17)   Dechlorinated swimming pool discharges;
      (18)   Street wash water; and
      (19)   Other non-stormwater discharges for which a valid NPDES discharge permit has been approved and issued by the state, and provided that any such discharges to the municipal separate storm sewer system shall be authorized by (name of Phase II jurisdiction).
      Prohibited substances include, but are not limited to, oil, anti-freeze, chemicals, animal waste, paints, garbage, and litter.
   (B)   Illicit connections.
      (1)   Connections to a stormwater conveyance or stormwater conveyance system that allow the discharge of non-stormwater, other than the exclusions described in division (A) 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.
      (2)   Where such connections exist in violation of this section and said connections were made prior to the adoption of this provision or any other ordinance prohibiting such connections, the property owner or the person using said connection shall remove the connection within one year following the effective date of this ordinance. However, the one-year grace period shall not apply to connections which may result in the discharge of hazardous materials or other discharges which pose an immediate threat to health and safety, or are likely to result in immediate injury and harm to real or personal property, natural resources, wildlife, or habitat.
      (3)   Where it is determined that said connection:
         (i)   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
         (ii)   Was made in violation of any applicable regulation or ordinance, other than this section;
      The Stormwater Administrator shall designate the time within which the connection shall be removed. In setting the time limit for compliance, the Stormwater Administrator shall take into consideration:
         (iii)   The quantity and complexity of the work;
         (iv)   The consequences of delay;
         (v)   The potential harm to the environment, to the public health, and to public and private property; and
         (vi)   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 Town Public Safety 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)   Nuisance. Illicit discharges and illicit connections which exist within the town 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 and the same shall be addressed as slowed by G.S. § 160A-193 or other applicable law. Such public nuisances shall be abated in accordance with the procedures set forth in Article 4.