(A) Plan submission. A plan shall be prepared for all land-disturbing activities subject to this chapter whenever the proposed activity will disturb more than one acre on a tract. At least 30 days prior to the commencement of the proposed activity, the applicant shall file three copies of the plan with the town and simultaneously one copy of the plan with the Polk County Soil and Water Conservation District. The town shall forward to the Director of the Division of Water Quality a copy of each plan for a land-disturbing activity that involves the utilization of ditches for the purpose of de-watering or lowering the water table of the tract.
(B) Financial responsibility and ownership.
(1) Plans may be disapproved unless accompanied by an authorized statement of financial responsibility and ownership. This statement shall be signed by the person financially responsible for the land-disturbing activity or his or her attorney in fact.
(2) The statement shall include the mailing and street addresses of the principal place of business of:
(a) The person financially responsible;
(b) The owner of the land; and
(c) Any registered agents.
(3) If the person financially responsible is not a resident of the State of North Carolina, a State of North Carolina agent must be designated in the statement for the purpose of receiving notice of compliance or non-compliance with the plan, the Act, this chapter, or rules or orders adopted or issued pursuant to this chapter.
(4) If the applicant is not the owner of the land to be disturbed and the anticipated land-disturbing activity involves the construction of utility lines for the provision of water, sewer, gas, telecommunications, or electrical service, the draft erosion and sedimentation control plan may be submitted without the written consent of the owner of the land, so long as the owner of the land has been provided prior notice of the project.
(5) Except as provided in divisions (B)(2) or (J) of this section, if the applicant is not the owner of the land to be disturbed, the draft erosion and sedimentation control plan must include the owner’s written consent for the applicant to submit a draft erosion and sedimentation control plan and to conduct the anticipated land-disturbing activity.
(C) Environmental policy act document. Any plan submitted for a land-disturbing activity for which an environmental document is required by the State Environment Policy Act (G.S. § 113A-1 et seq.) shall be deemed incomplete until a complete environmental document is available for review. The town shall promptly notify the person submitting the plan that the 30-day time limit for review of the plan pursuant to this chapter shall not begin until a complete environmental document is available for review.
(D) Content. The plan required by this section shall contain architectural and engineering drawings, maps, assumptions, calculations, and narrative statements as needed to adequately describe the proposed development of the tract and the measures planned to comply with the requirements of this chapter. Plan content may vary to meet the needs of specific site requirements. Detailed guidelines for plan preparation may be obtained from the town, on request.
(E) Soil and water conservation district comments. The district shall review the plan and submit any comments and recommendations to the town, within 20 days after the district received the plan, or within any shorter period of time as may be agreed upon by the district and the town. Failure of the district to submit its comments and recommendations within 20 days or within any agreed-upon shorter period of time shall not delay final action on the plan.
(F) Time line for decisions on plans. The town will review each complete plan submitted to it and within 30 days of receipt thereof will notify the person submitting the plan that it has been approved, approved with modifications, approved with performance reservations, or disapproved. Failure to approve, approve with modifications, or disapprove a complete plan within 30 days of receipt shall be deemed approval. The town will review each revised plan submitted to them and within 15 days of receipt thereof will notify the person submitting the plan that it has been approved, approved with modifications, approved with performance reservations, or disapproved. Failure to approve, approve with modifications, or disapprove a revised plan within 15 days of receipt shall be deemed approval.
(G) Approval. The town shall only approve a plan upon determining that it complies with all applicable state and local regulations for erosion and sedimentation control. Approval assumes the applicant’s compliance with the federal and state water quality laws, regulations, and rules. The town shall condition approval of plans upon the applicant’s compliance with federal and state water quality laws, regulations, and rules. The town may establish an expiration date, not to exceed three years, for plans approved under this chapter.
(H) Disapproval for content. The town shall disapprove a plan or draft plan based on its content. A disapproval based upon a plan’s content must specifically state in writing the reasons for disapproval.
(I) Other disapprovals.
(1) The town may disapprove an erosion and sedimentation control plan if implementation of the plan would result in a violation of the rules adopted by the Environmental Management Commission to protect riparian buffers along surface waters. The town may disapprove an erosion and sedimentation control plan or disapprove a transfer of a plan under division (J) of the section upon finding that an applicant or a parent, subsidiary, or other affiliate of the applicant:
(a) Is conducting or has conducted land-disturbing activity without an approved plan, or has received notice of violation of a plan previously approved by the Commission or a local government pursuant to this section and has not complied with the notice within the time specified in the notice;
(b) Has failed to pay a civil penalty assessed pursuant to the Act or a local ordinance adopted pursuant to this section by the time the payment is due;
(c) Has been convicted of a misdemeanor pursuant to G.S. § 113A-64(b) or any criminal provision of a local ordinance adopted pursuant to this section; or
(d) Has failed to substantially comply with state rules or local ordinances and regulations adopted pursuant to this Article.
(2) In the event that an erosion and sedimentation control plan or a transfer of a plan is disapproved by the town pursuant to division (I)(1) of this section, the local government shall so notify the Director of the Division of Energy, Mineral, and Land Resources within ten days of the disapproval. The town shall advise the applicant or the proposed transferee and the Director in writing as to the specific reasons that the plan was disapproved. Notwithstanding the provisions of § 152.26(A) of this chapter, the applicant may appeal the local government’s disapproval of the plan directly to the Commission. For purposes of this division (I)(2), an applicant’s record or the proposed transferee’s record may be considered for only the two years prior to the application date.
(J) The town administering an erosion and sedimentation control program may transfer an erosion and sedimentation control plan approved pursuant to this section without the consent of the plan holder to a successor-owner of the property on which the permitted activity is occurring or will occur as provided in this division (J).
(1) The town may transfer a plan if all of the following conditions are met.
(a) The successor-owner of the property submits to the local government a written request for the transfer of the plan and an authorized statement of financial responsibility and ownership.
(b) The town finds all of the following:
1. The plan holder is one of the following:
a. A natural person who is deceased;
b. A partnership, limited liability corporation, corporation, or any other business association that has been dissolved;
c. A person who has been lawfully and finally divested of title to the property on which the permitted activity is occurring or will occur; or
d. A person who has sold the property on which the permitted activity is occurring or will occur.
2. The successor-owner holds title to the property on which the permitted activity is occurring or will occur;
3. The successor-owner is the sole claimant of the right to engage in the permitted activity; and
4. There will be no substantial change in the permitted activity.
(2) The plan holder shall comply with all terms and conditions of the plan until such time as the plan is transferred.
(3) The successor-owner shall comply with all terms and conditions of the plan once the plan has been transferred.
(4) Notwithstanding changes to law made after the original issuance of the plan, the town may not impose new or different terms and conditions in the plan without the prior express consent of the successor-owner. Nothing in this division shall prevent the town from requiring a revised plan pursuant to G.S. § 113A-54.1(b).
(K) Notice of activity initiation. No person may initiate a land-disturbing activity before notifying the agency that issued the plan approval of the date that land-disturbing activity will begin.
(L) Preconstruction conference. When deemed necessary by the approving authority a preconstruction conference may be required.
(M) Display of plan approval. A plan approval issued under this section shall be prominently displayed until all construction is complete, all permanent sedimentation and erosion control measures are installed and the site has been stabilized. A copy of the approved plan shall be kept on file at the job site.
(N) Required revisions. After approving a plan, if the town, either upon review of the plan or on inspection of the job site, determines that a significant risk of accelerated erosion or off-site sedimentation exists, the town shall require a revised plan. Pending the preparation of the revised plan, work shall cease or shall continue under conditions outlined by the appropriate authority. If following commencement of a land-disturbing activity pursuant to an approved plan, the town determines that the plan is inadequate to meet the requirements of this chapter, the town may require any revision of the plan that is necessary to comply with this chapter.
(O) Amendment to a plan. Applications for amendment of a plan in written and/or graphic form may be made at any time under the same conditions as the original application. Until such time as said amendment is approved by the town, the land-disturbing activity shall not proceed except in accordance with the plan as originally approved.
(P) Failure to file a plan. Any person engaged in land-disturbing activity who fails to file a plan in accordance with this chapter, or who conducts a land-disturbing activity except in accordance with provisions of an approved plan shall be deemed in violation of this chapter.
(Q) Self-inspection. The landowner, the financially responsible party, or the landowner’s or the financially responsible party’s agent shall perform an inspection of the area covered by the plan after each phase of the plan has been completed and after establishment of temporary ground cover in accordance with G.S. § 113A-57(2). The person who performs the inspection shall maintain and make available a record of the inspection at the site of the land-disturbing activity. The record shall set out any significant deviation from the approved erosion control plan, identify any measures that may be required to correct the deviation, and document the completion of those measures. The record shall be maintained until permanent ground cover has been established as required by the approved erosion and sedimentation control plan. The inspections required by this division (Q) shall be in addition to inspections required by G.S. § 113A-61.1. Where inspections are required by § 152.06(Q) of this chapter and G.S. § 113A-54.1(e), the following apply.
(1) The person who performs the inspection shall make a record of the site inspection by documenting the following items:
(a) All of the erosion and sedimentation control measures, practices, and devices, as called for in a construction sequence consistent with the approved erosion and sedimentation control plan, including but not limited to sedimentation control basins, sedimentation traps, sedimentation ponds, rock dams, temporary diversions, temporary slope drains, rock check dams, sediment fence or barriers, all forms of inlet protection, storm drainage facilities, energy dissipaters, and stabilization methods of open channels, have initially been installed and do not significantly deviate (as defined in division (Q)(1)(e) of this Rule) from the locations, dimensions and relative elevations shown on the approved erosion and sedimentation plan. Such documentation shall be accomplished by initialing and dating each measure or practice shown on a copy of the approved erosion and sedimentation control plan or by completing, dating and signing an inspection report that lists each measure, practice, or device shown on the approved erosion and sedimentation control plan. This documentation is required only upon the initial installation of the erosion and sedimentation control measures, practices, and devices as set forth by the approved erosion and sedimentation control plan or if the measures, practices, and devices are modified after initial installation;
(b) The completion of any phase of grading for all graded slopes and fills shown on the approved erosion and sedimentation control plan, specifically noting the location and condition of the graded slopes and fills. Such documentation shall be accomplished by initialing and dating a copy of the approved erosion and sedimentation control plan or by completing, dating, and signing an inspection report;
(c) The location of temporary or permanent ground cover, and that the installation of the ground cover does not significantly deviate (as defined in division (Q)(l)(e) of this rule) from the approved erosion and sedimentation control plan. Such documentation shall be accomplished by initialing and dating a copy of the approved erosion and sedimentation control plan or by completing, dating, and signing an inspection report;
(d) That maintenance and repair requirements for all temporary and permanent erosion and sedimentation control measures, practices, and devices have been performed. Such documentation shall be accomplished by completing, dating, and signing an inspection report (the general storm water permit monitoring form may be used to verify the maintenance and repair requirements); and
(e) Any significant deviations from the approved erosion and sedimentation control plan, corrective actions required to correct the deviation and completion of the corrective actions. Such documentation shall be accomplished by initialing and dating a copy of the approved erosion and sedimentation control plan or by completing, dating, and signing an inspection report. A significant deviation means an omission, alteration, or relocation of an erosion or sedimentation control measure that prevents the measure from performing as intended.
(2) The documentation, whether on a copy of the approved erosion and sedimentation control plan or an inspection report, shall include the name, address, affiliation, telephone number, and signature of the person conducting the inspection and the date of the inspection. Any relevant licenses and certifications may also be included. Any documentation of inspections that occur on a copy of the approved erosion and sedimentation control plan shall occur on a single copy of the plan and that plan shall be made available on the site. Any inspection reports shall also be made available on the site.
(3) The inspection shall be performed during or after each of the following phases of a plan:
(a) Installation of perimeter erosion and sediment control measures;
(b) Clearing and grubbing of existing ground cover;
(c) Completion of any phase of grading of slopes or fills that requires provision of temporary or permanent ground cover pursuant to G.S. § 113A-57(2);
(d) Completion of storm drainage facilities;
(e) Completion of construction or development; and
(f) Quarterly until the establishment of permanent ground cover sufficient to restrain erosion or until the financially responsible party has conveyed ownership or control of the tract of land for which the erosion and sedimentation control plan has been approved and the agency that approved the plan has been notified. If the financially responsible party has conveyed ownership or control of the tract of land for which the erosion and sedimentation control plan has been approved, the new owner or person in control shall conduct and document inspections quarterly until the establishment of permanent ground cover sufficient to restrain erosion.
(R) Ordinance administration. Except where duties under this chapter are expressly reserved to the Town Council, all duties of the town under this chapter shall be performed by the Town Manager or his or her designee(s).
(Ord. 2007-11, passed 10-16-2008; Am. Ord. 2015-01, passed 1-8-2015) Penalty, see § 152.99