This subchapter is adopted for the purposes of:

   (A)   Regulating certain land-disturbing activity to control accelerated erosion and sedimentation in order to prevent the pollution of water and other damage to lakes, watercourses, and other public and private property by sedimentation; and

   (B)   Establishing procedures through which these purposes can be fulfilled.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1700) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   As used in this subchapter, unless the context clearly indicates otherwise, the following definitions apply:

   ACCELERATED EROSION. Means any increase over the rate of natural erosion as a result of land-disturbing activity.

   ACT. Means the North Carolina Sedimentation Pollution Control Act of 1973 and all rules and orders adopted pursuant to it.

   ADEQUATE EROSION CONTROL MEASURE, STRUCTURE, or DEVICE. Means one which controls the soil material within the land area under responsible control of the person conducting the land-disturbing activity.

   AFFILIATE. Means a person that directly, or indirectly through one or more intermediaries, control, is controlled by, or is under common control of another person.

   BEING CONDUCTED. Means a land-disturbing activity has been initiated and not deemed complete by the approving authority.

   BORROW. Means fill material which is required for on-site construction and is obtained from other locations.

   BUFFER ZONE. Means the strip of land adjacent to a lake or natural watercourse.

   COASTAL COUNTIES. Means the following counties: Beaufort, Bertie, Brunswick, Camden, Carteret, Chowan, Craven, Currituck, Dare, Gates, Hertford, Hyde, New Hanover, Onslow, Pamlico, Pasquotank, Pender, Perquimans, Tyrrell and Washington.

   COMMISSION. Means the North Carolina Sedimentation Control Commission.

   COMPLETION OF CONSTRUCTION or DEVELOPMENT. Means that no further land-disturbing activity is required on a phase of a project except that which is necessary for establishing a permanent ground cover.

   DEPARTMENT.  Means the North Carolina Department of Environmental Quality.1

   DIRECTOR.  Means the Director of the Division of Land Resources of the Department of Environmental Quality. 2

   DISTRICT. Means the Watauga Soil and Water Conservation District created pursuant to G.S. Ch. 139, North Carolina General Statutes.

   ENERGY DISSIPATER. Means a structure or a shaped channel section with mechanical armoring placed at the outlet of pipes or conduits to receive and break down the energy from high velocity flow.

   EROSION. Means the wearing away of land surface by the action of wind, water, gravity, or any combination thereof.

   GROUND COVER. Means any natural vegetative growth or other material which renders the soil surface stable against accelerated erosion.

   HIGH QUALITY WATER (HQW) ZONES. Means areas in the coastal counties that are within 575 feet of High Quality Waters and for the remainder of the state areas that are within one mile and drain to HQW's.

   HIGH QUALITY WATERS. Means those classified as such in 15A NCAC 2B .0224, which is herein incorporated by reference including subsequent amendments and additions.

   LAKE or NATURAL WATERCOURSE. Means any stream, river, brook, swamp, sound, bay, creek, run, branch, canal, waterway, estuary, and any reservoir, lake or pond.

   LAND-DISTURBING ACTIVITY. Means any use of the land by any person in residential, industrial, educational, institutional, or commercial development, highway and road construction and maintenance that results in a change in the natural cover or topography and that may cause or contribute to sedimentation.

   LOCAL GOVERNMENT. Means any county, incorporated village, town or city, or any combination of counties, incorporated villages, towns and cities, acting through a joint program pursuant to the provisions of the Act.

   NATURAL EROSION. Means the wearing away of the earth's surface by water, wind, or other natural agents under natural environmental conditions undisturbed by man.

   PARENT. An affiliate that directly, or indirectly through one or more intermediaries, controls another person.

   PERSON. Means any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity.

   PERSON CONDUCTING LAND-DISTURBING ACTIVITY. Means any person who may be held responsible for a violation unless expressly provided otherwise by this chapter, the Act, or any order adopted pursuant to this chapter or the Act.

   PERSON WHO VIOLATES or VIOLATOR. As used in G.S. § 113A-64, means: any landowner or other person who has financial or operational control over the land-disturbing activity; or who has directly or indirectly allowed the activity, and who has failed to comply with any provision of the Act, the rules of this chapter or any order or local ordinance adopted pursuant to the Act as it imposes a duty upon that person.

   PLAN. Means an erosion and sedimentation control plan.

   SEDIMENT. Means solid particulate matter, both mineral and organic, that has been or is being transported by water, air, gravity, or ice from its site of origin.

   SEDIMENTATION. Means the process by which sediment resulting from accelerated erosion has been or is being transported off the site or the land-disturbing activity or into a lake or natural watercourse.

   SILTATION. Means sediment resulting from accelerated erosion which is settleable or removable by properly designed, constructed, and maintained control measures; and which has been transported from its point of origin within the site of a land-disturbing activity; and which has been deposited, or is in suspension in water.

   STORM DRAINAGE FACILITIES. Means the system of inlets, conduits, channels, ditches and appurtenances which serve to collect and convey storm water through and from a given drainage area.

   STORM WATER RUNOFF. Means the direct runoff of water resulting from precipitation in any form.

   SUBSIDIARY. An affiliate that is directly, or indirectly through one or more intermediaries, controlled by another person.

   TEN-YEAR STORM. Means a rainfall of an intensity that, based on historical data, is predicted by a method acceptable to the approving authority to be equaled or exceeded, on the average, once in ten years, and of a duration that will produce the maximum peak rate of runoff, for the watershed of interest under average antecedent wetness conditions.

   TRACT. Means all contiguous land and bodies of water being disturbed or to be disturbed as a unit, regardless of ownership.

   TWENTY-FIVE YEAR STORM. Means a rainfall of an intensity that, based on historical data, is predicted by a method acceptable to the approving authority to be equaled or exceeded, on the average, once in 25 years, and of a duration that will produce the maximum peak rate of runoff, from the watershed of interest under average antecedent wetness conditions.

   UNCOVERED. Means the removal of ground cover from, on, or above the soil surface.

   UNDERTAKEN. Means the initiating of any activity, or phase of activity, which results or will result in a change in the ground cover or topography of a tract of land.

   VELOCITY. Means the speed of flow through the cross section perpendicular to the direction of the main channel at the peak flow of the storm of interest but not exceeding bank full flows.

   WASTE. Means surplus materials resulting from on-site construction and disposed of at other locations.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1701) (Ord. passed 11-14-1995; Ord. passed 2-8-2005; Ord. 2021-03, passed 6-8-2021)

   This subchapter shall not apply to the following land-disturbing activities:

   (A)   Activities, including the breeding and grazing of livestock, undertaken on agricultural land for the production of plants and animals useful to man, including, but not limited to:

      (1)   Forages and sod crops, grains and feed crops, tobacco, cotton and peanuts.

      (2)   Dairy animals and dairy products.

      (3)   Poultry and poultry products.

      (4)   Livestock, including beef cattle, sheep, swine, horses, ponies, mules and goats.

      (5)   Bees and apiary products.

      (6)   Fur producing animals.

   (B)   Activities undertaken on forestland for the production and harvesting of timber and timber products and conducted in accordance with best management practices set out in Forest Practice Guidelines Related to Water Quality, as adopted by the Department. If land-disturbing activity undertaken on forestland for the production and harvesting of timber and timber products is not conducted in accordance with Forest Practice Guidelines Related to Water Quality, the provisions of this subchapter shall apply to such activity and any related land-disturbing activity on the tract; and

   (C)   Activities for which a permit is required under the Mining Act of 1971, G.S. Ch. 74, Art. 7.

   (D)   Land-disturbing activity over which the state has exclusive regulatory jurisdiction as provided in G.S. § 113A-56(a).

   (E)   For the duration of an emergency, activities essential to protect human life.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1702) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   (A)   Plan required. No person shall initiate any land-disturbing activity which uncovers more than one-half acre without having an erosion control plan approved by the Town of Beech Mountain.

   (B)   Protection of property. Persons conducting land-disturbing activity shall take all reasonable measures to protect all public and private property from damage caused by such activity.

   (C)   More restrictive rules shall apply. Whenever conflicts exist between federal, state or local laws, ordinance or rules, the more restrictive provision shall apply.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1703) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   An erosion and sedimentation control plan may be disapproved pursuant to § 154.225 of this subchapter if the plan fails to address the following control objectives.

   (A)   Identify critical areas. On-site areas which are subject to severe erosion, and off-site areas which are especially vulnerable to damage from erosion and/or sedimentation, are to be identified and receive special attention.

   (B)   Limit time of exposure. All land-disturbing activity is to be planned and conducted to limit exposure to the shortest feasible time.

   (C)   Limit exposed areas. All land-disturbing activity is to be planned and conducted to minimize the size of the area to be exposed at any one time.

   (D)   Control surface water. Surface water runoff originating upgrade of exposed areas should be controlled to reduce erosion and sediment loss during the period of exposure.

   (E)   Control sedimentation. All land-disturbing activity is to be planned and conducted so as to prevent off-site sedimentation damage.

   (F)   Manage storm water runoff. When the increase in the velocity of storm water runoff resulting from a land-disturbing activity is sufficient to cause accelerated erosion of the receiving watercourse, plans are to include measures to control the velocity to the point of discharge so as to minimize accelerated erosion of the site and increased sedimentation of the stream.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1704) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   No land-disturbing activity subject to the control of this subchapter shall be undertaken except in accordance with the following mandatory standards.

   (A)   Buffer zone.

      (1)   No land-disturbing activity during periods of construction or improvement to land shall be permitted in proximity to a lake or natural watercourse unless a buffer zone is provided along the margin of the watercourse of sufficient width to confine visible siltation within the 25% of the buffer zone nearest the land-disturbing activity. This subdivision shall not apply to a land-disturbing activity in connection with the construction of facilities to be located on, over, or under a lake or natural watercourse. 1

      (2)   Unless otherwise provided, the width of a buffer zone is measured from the edge of the water to the nearest edge of the disturbed area, with the 25% of the strip nearer the land-disturbing activity containing natural or artificial means of confining visible siltation.

      (3)   The 25-foot minimum width for an undisturbed buffer zone adjacent to designated trout waters shall be measured horizontally from the top of the bank.

      (4)   Where a temporary and minimal disturbance has been permitted as an exception by § 154.224(A)(1) of this chapter, land-disturbing activities in the buffer zone adjacent to designated trout waters shall be limited to a maximum of 10% of the total length of the buffer zone within the tract to be distributed such that there is not more than 100 linear feet of disturbance in each 1,000 linear feet of buffer zone. Larger areas may be disturbed with the written approval of the Director. 2

      (5)   No land-disturbing activity shall be undertaken within a buffer zone adjacent to designated trout waters that will cause adverse temperature fluctuations, as set forth in 15A NCAC 02B .0211 (Fresh Surface Water Quality Standards for Class C Waters), in these waters.

   (C)   Fill material.  Materials being used as fill shall be consistent with those described in 15A NCAC 13B.0562 unless the site is permitted by the Department’s Division of Waste Management to operate as a landfill. Not all materials described in Section .0562 may be suitable to meet geotechnical considerations of the fill activity and should be evaluated accordingly.  4

   (E)   Prior plan approval. No person shall initiate any land-disturbing activity on a tract if more than one-half acre is to be uncovered unless, 30 or more days prior to initiating the activity, an erosion and sedimentation control plan for such activity is filed with and approved by the Town of Beech Mountain.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1705) (Ord. passed 11-14-1995; Ord. passed 2-8-2005; Ord. passed 4-12-2011; Ord. 2021-03, passed 6-8-2021)

   (A)   Except as provided in division (B)(2) below, erosion and sedimentation control measures, structures and devices shall be so planned, designed and constructed as to provide protection from the calculated maximum peak rate of runoff from the ten-year storm. Runoff rates shall be calculated using the procedures in the latest edition of the USDA, Natural Resources Conservation Service’s National Engineering Field Handbook, or other acceptable calculation procedures.

   (B)   In High Quality Water (HQW) zones the following design standards shall apply:

      (1)   Uncovered areas in HQW zones shall be limited at any time to a maximum total area within the boundaries of the tract of 20 acres. Only the portion of the land-disturbing activity within a HQW zone shall be governed by this section. Larger areas may be uncovered within the boundaries of the tract with the written approval of the Director upon providing engineering justification with a construction sequence that considers phasing, limiting exposure, weekly submitted self-inspection reports, and a more conservative design than the 25-year storm.

      (3)   (a)   Sediment basins within HQW zones shall be designed and constructed according to the following criteria:

            1.   Use a surface withdrawal mechanism, except when the basin drainage area is less than 1.0 acre;

            2.   Have a minimum of 1,800 cubic feet of storage area per acre of disturbed area;

            3.   Have a minimum surface area of 325 square feet per cfs of the 25-year storm (Q25) peak flow;

            4.   Have a minimum dewatering time of 48 hours;

            5.   Incorporate three baffles, unless the basin is less than 20 feet in length, in which case two baffles shall be sufficient.

         (b)   Upon a written request of the applicant, the Director may allow alternative design and control measures in lieu of meeting the conditions required in divisions (3)(a)2. through (3)(a)5. of this division (B) if the applicant demonstrates that meeting all of those conditions will result in design or operational hardships and that the alternative measures will provide an equal or more effective level of erosion and sediment control on the site. Alternative measures may include quicker application of ground cover, use of sediment flocculants, and use of enhanced ground cover practices.

      (4)   Newly constructed open channels in HQW zones shall be designed and constructed with side slopes no steeper than two horizontal to one vertical if a vegetative cover is used for stabilization unless soil conditions permit a steeper slope or where the slopes are stabilized by using mechanical devices, structural devices or other forms of ditch liners proven as being effective in restraining accelerated erosion. In any event, the angle for side slopes shall be sufficient to restrain accelerated erosion.

(1989 Code, Title V, Ch. 51, Art. XVII, §706) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   (A)   General.

      (1)   Persons shall conduct land-disturbing activity so that the post construction velocity of the ten-year storm runoff in the receiving watercourse to the discharge point does not exceed the greater of:

         (a)   The velocity established by the table in division (D) below of this section; or

         (b)   The velocity of the ten-year storm runoff in the receiving watercourse prior to development.

      (2)   If divisions (A)(1) or (2) above cannot be met, then the receiving watercourse to and including the discharge point shall be designed and constructed to withstand the expected velocity anywhere the velocity exceeds the "prior to development" velocity by 10%.

   (B)   Acceptable management measures.

      (1)   Measures applied alone or in combination to satisfy the intent of this section are acceptable if there are no objectionable secondary consequences. The Commission recognizes that the management of storm-water runoff to minimize or control downstream channel and bank erosion is a developing technology. Innovative techniques and ideas will be considered and may be used when shown to have the potential to produce successful results

      (2)   Some alternatives are to:

         (a)   Avoid increases in surface runoff volume and velocity by including measures to promote infiltration to compensate for increased runoff from areas rendered impervious;

         (b)   Avoid increases in storm-water discharge velocities by using vegetated or roughened swales and waterways in lieu of closed drains and high velocity paved sections;

         (c)   Provide energy dissipaters at outlets of storm drainage facilities to reduce flow velocities to the point of discharge. These may range from simple rip-rapped sections to complex structures; and

         (d)   Protect watercourses subject to accelerated erosion by improving cross sections and/or providing erosion-resistant lining.

   (C)   Exceptions. This rule shall not apply where it can be demonstrated that storm-water discharge velocities will not create an erosion problem in the receiving watercourse.

   (D)   Table. The following is a table for maximum permissible velocity for storm-water discharges.

 

(1989 Code, Title V, Ch. 51, Art. XVII, § 1707) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   If the same person conducts the land-disturbing activity and any related borrow or waste activity, the related borrow or waste activity shall constitute part of the land-disturbing activity, unless the borrow or waste activity is regulated under the Mining Act of 1971, G.S. 74, Art. 7, or is a landfill regulated by the Division of Waste Management. If the land-disturbing activity and any related borrow or waste activity are not conducted by the same person, they shall be considered by the approving authority as separate land-disturbing activities.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1708) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   Temporary access and haul roads, other than public roads, constructed or used in connection with any land-disturbing activity shall be considered a part of such activity.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1709) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   Land-disturbing activity in connection with construction in, on, over or under a lake or natural watercourse shall be planned and conducted in such a manner as to minimize the extent and duration of disturbance of the stream channel. The relocation of a stream, where relocation is an essential part of the proposed activity, shall be planned and executed so as to minimize changes in the stream flow characteristics, except when justification for significant alteration to flow characteristic is provided.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1710) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   During the development of a site, the person conducting the land-disturbing activity shall install and maintain all temporary and permanent erosion and sedimentation control measures as required by the approved plan or any provision of this subchapter, the Act, or any order adopted pursuant to this subchapter or the Act. After site development, the landowner or person in possession or control of the land shall install and/or maintain all necessary permanent erosion and sediment control measures, except those measures installed within a road or street right-of-way or easement accepted for maintenance by a governmental agency.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1711) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   Whenever the Town of Beech Mountain determines that accelerated erosion and sedimentation continues despite the installation of protective practices, they shall direct the person conducting the land- disturbing activity to take additional protective action necessary to achieve compliance with the conditions specified in the Act or its rules.

(1989 Code, Title V, Ch. 51, Art. XVII, §1712) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   (A)   All uncovered areas existing on the effective date of this subchapter which resulted from land-disturbing activity, exceed one-half acre, are subject to continued accelerated erosion, and are causing off-site damage from sedimentation, shall be provided with a ground cover or other protective measures, structures or devices sufficient to restrain accelerated erosion and control off-site sedimentation.

   (B)   The Town of Beech Mountain will serve upon the landowner or other person in possession or control of the land a written notice of violation by registered or certified mail, return receipt requested, or other means reasonably calculated to give actual notice. The notice will set forth the measures needed to comply and will state the time within which such measures must be completed. In determining the measures required and the time allowed for compliance, the authority serving notice shall take into consideration the economic feasibility, technology, and quantity of work required, and shall set reasonable and attainable time limits of compliance.

   (C)   The Town of Beech Mountain reserves the right to require preparation and approval of an erosion control plan in any instance where extensive control measures are required.

   (D)   This rule shall not require ground cover on cleared land forming the future basin of a planned reservoir.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1713) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   (A)   No person shall undertake any land-disturbing activity subject to this subchapter without first obtaining a permit therefore from the Town of Beech Mountain, except that no permit shall be required for any land-disturbing activity:

      (1)   For the purpose of fighting fires; or

      (2)   For the stock piling of raw or processed sand, stone, or gravel in material processing plants and storage yards, provided that sediment control measures have been utilized to protect against off-site damage; or

      (3)   That does not exceed one-half acre in surface area. In determining the area, lands under one or diverse ownership being developed as a unit will be aggregated.

   (B)   The Town of Beech Mountain may establish a fee if considered necessary.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1714) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   (A)   (1)   An erosion control plan shall be prepared for all land-disturbing activities subject to this subchapter whenever the proposed activity is to be undertaken on a tract comprising more than one-half acre, if more than one-half acre is to be uncovered.

      (2)   The plan shall be filed with the Town of Beech Mountain, and a copy shall be simultaneously submitted to the Watauga Soil and Water Conservation District, at least 30 days prior to the commencement of the proposed activity. A copy of the Erosion Control Plan for any land-disturbing activity that involve the utilization of ditches for the purpose of de-watering or lowering the water table must be forwarded to the Director of the Division of Water Quality.

      (3)   The approval of an Erosion Control Plan is conditioned on the applicant's compliance with Federal and State water quality laws, regulations and rules. 1

   (B)   Persons conducting land-disturbing activity on a tract which covers one-half or more acres shall file two copies of the erosion control plan with the town at least 30 days prior to beginning such activity and shall keep another copy of the plan on file at the job site. After approving the plan, if the town, either upon review of such plan or on inspection of the job site, determines that a significant risk of accelerated erosion or off-site sedimentation exists, the town will require a revised plan. Pending the preparation of the revised plan, work shall cease or shall continue under conditions outlined by the appropriate authority.

   (C)   Erosion control plans may be disapproved unless accompanied by an authorized statement of financial responsibility and ownership. This statement shall be signed by the person financially responsible for the land-disturbing activity or his or her attorney in fact. The statement shall include the mailing and street addresses of the principal place of business of the person financially responsible and of the owner of the land or their registered agents. If the person financially responsible is not a resident of North Carolina, a North Carolina agent must be designated in the statement for the purpose of receiving notice of compliance or non-compliance with the plan, the Act, this subchapter or rules or orders adopted or issued pursuant to this subchapter.

   (D)   The Watauga Soil and Water Conservation District shall review the plan and submit any comments and recommendations to the Town of Beech Mountain within 20 days after the Soil and Water Conservation District received the erosion control plan, or within any shorter period of time as may be agreed upon by the Soil and Water Conservation District and the town. Failure of the Soil and Water Conservation 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.

   (E)   The Town of Beech Mountain will review each complete plan submitted to them and within 30 days of receipt thereof will notify the person submitting the plan that it has been approved, approved with modifications, or disapproved. Failure to approve, approve with modifications or disapprove a complete erosion and sedimentation control plan within 30 days of receipt shall be deemed approval. Disapproval of a plan must specifically state in writing the reasons for disapproval. The town must approve, approve with modifications, or disapprove a revised plan within 15 days of receipt, or it is deemed to be approved. If, following commencement of a land-disturbing activity pursuant to an approved plan, the Town determines that the plan is inadequate to meet the requirements of this subchapter, the town may require any revision of the plan that is necessary to comply with this subchapter. Failure to approve, approve with modifications or disapprove a revised erosion control plan within 15 days of receipt shall be deemed approval of the plan. The town may establish an expiration date for erosion control plans approved under this subchapter.

   (G)   The plan required by this section shall contain architectural and engineering drawings, maps, assumptions, calculations, and narrative statements as needed to adequately describe the proposed development of the tract and the measures planned to comply with the requirements of this subchapter. Plan content may vary to meet the needs of specific site requirements. Detailed guidelines for plan preparation may be obtained from the Town of Beech Mountain on request.

   (H)   A local government may disapprove an erosion control plan upon a finding that an applicant, or a parent, subsidiary or other affiliate of the applicant:

      (1)   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 the Act and has not complied with the notice within the time specified in the notice;

      (2)   Has failed to pay a civil penalty assessed pursuant to the Act or a local ordinance adopted pursuant to the Act by the time the payment is due.

      (3)   Has been convicted of a misdemeanor pursuant to G.S. § 113A-64(b) or any criminal provision of a local ordinance adopted pursuant to the Act, or

      (4)   Has failed to substantially comply with state rules or local ordinances and regulations adopted pursuant to the Act. For purposes of this division (H) an applicant's record may be considered for only the two years prior to the application date.

   (I)   Applications for amendment of an erosion control plan in written and/or graphic form may be made at any time under the same conditions as the original application. Until such time as said amendment is approved by the town, the land-disturbing activity shall not proceed except in accordance with the erosion control plan as originally approved.

   (J)   Any person engaged in land-disturbing activity who fails to file a plan in accordance with this subchapter or who conducts a land-disturbing activity except in accordance with provisions of an approved plan shall be deemed in violation of this subchapter.

   (K)   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. 2

   (L)   A plan approval issued under this subchapter 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 site. 3

(1989 Code, Title V, Ch. 51, Art. XVII, § 1715) (Ord. passed 11-14-1995; Ord. passed 12-14-1999; Ord. passed 2-8-2005; Ord. 2021-03, passed 6-8-2021)

   (A)   Except as provided in division (B) below the appeal of a disapproval or approval with modifications of a plan shall be governed by the following provisions:

      (1)   The disapproval of modification of any proposed erosion control plan by the Town of Beech Mountain shall entitle the person submitting the plan to a public hearing if such person submits written demand for a hearing within 15 days after receipt of written notice of disapproval or modifications.

      (2)   Hearings held pursuant to this section shall be conducted by the Beech Mountain Board of Adjustment 30 days after the date of the appeal or request for a hearing.

      (3)   The Beech Mountain Board of Adjustment will render its final decision on any erosion control plan upon which a hearing is requested within 30 days after the public hearing.

      (4)   If the Board of Adjustment upholds the disapproval or modification of a proposed soil erosion and sedimentation control plan following the hearing, the person submitting the plan shall then be entitled to appeal the local government's decision to the North Carolina Sedimentation Control Commission as provided in G.S. § 113A-61(c) and Title 15A NCAC 04B .0018(d).

   (B)   In the event that an erosion control plan is disapproved pursuant to § 154.225(H) of this subchapter, the town shall notify the Director of the Division of Land Resources of such disapproval within ten days. The town shall advise the applicant and the Director in writing as to the specific reasons that the plan was disapproved. The applicant may appeal the town's disapproval of the plan pursuant to section § 154.225(H) of this subchapter directly to the Commission. Said appeal must be in writing and must be received by the Commission within 30 days after receipt of written notice of disapproval.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1716) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   (A)   Agents, officials or other qualified persons authorized by the town will periodically inspect land-disturbing activities to ensure compliance with the Act, this subchapter or rules or orders adopted or issued pursuant to this subchapter, and to determine whether the measures required in the plan are effective in controlling erosion and sediment resulting from land-disturbing activity. Notice of the right to inspect shall be included in the certificate of approval of each erosion control plan.

   (B)   No person shall willfully resist, delay or obstruct an authorized representative, employee or agent of the town while that person is inspecting or attempting to inspect a land-disturbing activity under this section.

   (C)   If it is determined that a person engaged in land-disturbing activity has failed to comply with the Act, this subchapter or rules or orders adopted or issued pursuant to this subchapter, a notice of violation shall be served upon that person. The notice may be served by any means authorized under G.S. § 1A-1, Rule 4. The notice shall specify a date by which the person must comply with the Act, or this subchapter or rules or orders adopted pursuant to this subchapter, and inform the person of the actions that need to be taken to comply with the Act, this subchapter, or rules or orders adopted pursuant to this subchapter. However, no time period for compliance need be given for failure to submit an erosion control plan for approval or for obstructing, hampering or interfering with an authorized representative while in the process of carrying out his or her official duties. Any person who fails to comply within the time specified is subject to the civil and criminal penalties provided in this subchapter.

   (D)   The Town of Beech Mountain shall have the power to conduct such investigations as it may reasonably deem necessary to carry out its duties as prescribed in this subchapter, and for this purpose to enter at reasonable times upon any property, public or private, for the purpose of investigating and inspecting the sites of any land-disturbing activity.

   (E)   The Town of Beech Mountain shall also have the power to require written statements, or the filing of reports under oath, with respect to pertinent questions relating to land-disturbing activity.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1717) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   (A)   Civil penalties.

      (1)   Any person who violates any of the provisions of this subchapter, or rules or orders adopted or issued pursuant to this subchapter, or who initiates or continues a land-disturbing activity for which an erosion control plan is required except in accordance with the terms, conditions and provisions of an approved plan, is subject to a civil penalty. The civil penalty for a violation, other than a violation of a stop-work order issued under G.S. § 113A-65.1, is $5,000. 1 The civil penalty for a violation of a stop-work order is $5,000. No penalty shall be assessed until the person alleged to be in violation has been notified of the violation as provided in § 154.227(C) of this subchapter. If, after the allotted time period has expired, the violator has not completed corrective action, a civil penalty may be assessed from the date the violation is detected. However, no time period for compliance need be given for failure to submit an erosion control plan for approval or for obstructing, hampering or interfering with an authorized representative while in the process of carrying out his or her official duties. Each day of continuing violation shall constitute a separate violation. A person may be assessed a one-time civil penalty in the amount of $5,000 for the day the violation is first detected. 2

      (2)   If payment is not received within 30 days after demand for payment is made, the town may institute a civil action to recover the amount of the penalty. The civil action may be brought in the Superior Court of the county where the violation occurred, or the violator's residence or principal place of business is located. Such civil actions must be filed within three years of the date the penalty was due. A penalty that is not contested is due when the violator is served with a notice of penalty. A penalty that is contested is due at the conclusion of the administrative and judicial review of the penalty. In the event it is necessary for the town to file a civil action to collect the penalty, the violator shall pay the town for all court costs and attorney fees it incurs.

      (3)   Civil penalties collected pursuant to this subchapter shall be credited to the general fund of the local government as non-tax revenue.

   (B)   Criminal penalties. Any person who knowingly or willfully violates any provision of this subchapter, or rule or order adopted or issued pursuant to this subchapter, or who knowingly or willfully initiates or continues a land-disturbing activity for which an erosion control plan is required except in accordance with the terms, conditions, and provisions of an approved plan, shall be guilty of a Class 2 misdemeanor which may include a fine not to exceed $5,000.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1718) (Ord. passed 11-14-1995; Ord. passed 12-14-1999; Ord. passed 2-8-2005; Ord. 2021-03, passed 6-8-2021)

   (A)   Whenever the governing body has reasonable cause to believe that any person is violating or threatening to violate this subchapter or any rule or order adopted or issued pursuant to this subchapter, or any terms, condition or provision of an approved erosion control plan, it may, either before or after the institution of any other action or proceeding authorized by this subchapter, institute a civil action in the name of the Town of Beech Mountain for injunctive relief to restrain the violation or threatened violation. The action shall be brought in the Superior Court of the county in which the violation is occurring.

   (B)   Upon determination by a court that an alleged violation is occurring or is threatened, the court shall enter any order or judgment that is necessary to abate the violation, or to ensure that restoration is performed, or to prevent the threatened violation. The institution of an action for injunctive relief under this section shall not relieve any party to the proceedings from any civil or criminal penalty prescribed for violations of this subchapter

(1989 Code, Title V, Ch. 51, Art. XVII, § 1719) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   The Town of Beech Mountain may require a person who engaged in a land-disturbing activity and failed to retain sediment generated by the activity, as required by G.S. § 113A-57(3), to restore the waters and land affected by the failure so as to minimize the detrimental effects of the resulting pollution by sedimentation. This authority is in addition to any other civil or criminal penalty or injunctive relief authorized under this chapter.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1720) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   If any section or sections of this subchapter is/are held to be invalid or unenforceable, all other sections shall nevertheless continue in full force and effect.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1721) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)

   This subchapter is effective November 14, 1995.

(1989 Code, Title V, Ch. 51, Art. XVII, § 1722) (Ord. passed 11-14-1995; Ord. 2021-03, passed 6-8-2021)