This article may be cited as the Johnston County Soil Erosion and Sedimentation Control Ordinance.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

   This article 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.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

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

Act, or any order adopted pursuant to this article or the Act.

   (1)   The developer or other person who has or holds himself out as having financial or operation control over the land- disturbing activity; or

   (2)   The landowner or person in possession or control of the land that has directly or indirectly allowed the land- disturbing activity, or benefited from it or failed to comply with a duty imposed by any provision of this article, the Act, or any order adopted pursuant to this article or the Act.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

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

         a.   Forage and sod crops, grain and feed crops, tobacco, cotton, and peanuts.

         b.   Dairy animals and dairy products.

         c.   Poultry and poultry products.

         d.   Livestock, including beef cattle, sheep, swine, horses, ponies, mules, and goats.

         e.   Bees and apiary products.

         f.   Fur producing animals.

         g.   Mulch, ornamental plants, and other horticultural products. For purposes of this section, “mulch” means substances composed primarily of plant remains or mixtures of such substances.

      (2)   An activity 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 article shall apply to such activity and any related land-disturbing activity on the tract.

      (3)   An activity for which a permit is required under the Mining Act of 1971, Article 7 of Chapter 74 of the General Statutes.

      (4)   A land-disturbing activity over which the State has exclusive regulatory jurisdiction as provided in G.S. 113A-56(a).

      (5)   An activity which is essential to protect human life during an emergency.

      (6)   Activities undertaken to restore the wetland functions of converted wetlands to provide compensatory mitigation to offset impacts permitted under Section 404 of the Clean Water Act.

      (7)   Activities undertaken pursuant to Natural Resources Conservation Service standards to restore the wetlands functions of converted wetlands as defined in Title 7 Code of Federal Regulations § 12.2

(Ord. of 6-3-2013; Amend. of 12-13-2023)

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

   (d)   Ground cover. Whenever land-disturbing activity that will disturb more than one acre or less than one acre if part of a larger common plan of development is undertaken for development, the person conducting the land-disturbing activity shall install erosion and sedimentation control devices and practices that are sufficient to retain the sediment generated by the land disturbing activity within the boundaries of the tract during construction upon and development of said tract, and shall plant or otherwise provide a permanent ground cover sufficient to restrain erosion after completion of construction or development. Except as provided in Section 14-685(b) of this article, provisions for a permanent ground cover sufficient to restrain erosion must be accomplished within 90 calendar days following completion of construction or development.

    (e)   Prior plan approval. No person shall initiate any land-disturbing activity that will disturb more than one acre or less than one acre if part of a larger common plan of development unless, 30 or more days prior to initiating the activity, a plan for the activity is filed with and approved by Johnston County. The County shall forward to the Director of the Division of Water Resources 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.

   (f)   The land-disturbing activity shall be conducted in accordance with the approved erosion and sedimentation control plan.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

      (1)    Is signed by the financially responsible party for the land-disturbing activity or his attorney in fact, including the mailing and street addresses of the principal place of business of the person financially responsible, the owner of the land, and any registered agents;

      (2)   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 article, or rules or orders adopted or issued pursuant to this article;

      (3)   If the applicant is not the owner of the land to be disturbed, the erosion and sedimentation control plan must include the owner's written consent for the applicant to submit an erosion and sedimentation control plan and to conduct the anticipated land-disturbing activity.

      (1)   If no construction activity has begun within three years from the date of permit issuance, the permit becomes null and void.

      (2)   If the County determines, either upon review of an approved plan or upon inspection of the development site, that the plan is inadequate to meet the requirements of the Act or this ordinance, the County shall require a revised plan. Pending the preparation of the revised plan, work shall cease or shall continue under conditions outlined by the County.

      (1)   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;

      (2)   The applicant is conducting or has conducted land-disturbing activity without an approved Plan, or has received notice of violation on a previously approved erosion and sedimentation control plan and has not complied with the notice within the time specified in the notice;

      (3)   The applicant 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.

      (4)   The applicant 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;

      (5)   The applicant has failed to substantially comply with state rules or local ordinances and regulations adopted pursuant to the North Carolina Sedimentation Pollution Control Act.

In the event that a plan is disapproved pursuant to this subsection and disapproved after the appeal process established in Section 14-697, the County shall notify the Director of the North Carolina State Division of Energy, Mineral, and Land Resources of such disapproval within ten days. The County 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 Section 14-697(a), the applicant may appeal the local government's disapproval of the plan directly to the Commission.

For purposes of this subsection, an applicant's record or the proposed transferee's record may be considered for only the two years prior to the application date.

      (1)   The County may transfer a plan if all of the following conditions are met:

         a.   The successor-owner of the property submits to the County a written request for the transfer of the plan and an authorized statement of financial responsibility and documentation of property ownership.

         b.   The County finds all of the following:

            1.   The plan holder is one of the following:

               i.   A natural person who is deceased.

               ii.   A partnership, limited liability corporation, corporation, or any other business association that has been dissolved.

               iii.   A person who has been lawfully and finally divested of title to the property on which the permitted activity is occurring or will occur.

               iv.   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.

            4.   There will be no substantial change in the permitted activity.

         c.   The plan approval permit transfer fee has been received.

      (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.

    (m)   Display of plan approval. A plan approval issued under this article 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 County 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 County 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 County determines that the plan is inadequate to meet the requirements of this article, the County may require any revision of the plan that is necessary to comply with this article.

    (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 County, the land-disturbing activity shall not proceed except in accordance with the plan as originally approved.

      (1)   Where inspections are required by Section 14-686(q) of this article or G.S. 113A-54.1(e), they shall be performed weekly and after rain events.

      (2)   Documentation of self-inspections performed under item (1) of this rule shall include:

         a.   Visual verification of ground stabilization and other erosion control measures and practices as called for in the approved plan;

         b.   Verification by measurement of settling basins, temporary construction entrances, energy dissipators, and traps.

         c.   The name, address, organization affiliation, telephone number, and signature of the person conducting the inspection and the date of the inspection shall be included, whether on a copy of the approved erosion and sedimentation control plan or an inspection report. A template for an example of an inspection and monitoring report is provided on the DEMLR website at: https://deq.nc.gov/about/divisions/ energy-mineral-land-resources/erosion- sediment-control/forms. 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.

         d.   A record of any significant deviation from any erosion or sedimentation control measure from that on the approved plan. For the purpose of this rule, a “significant deviation” means an omission, alternation, or relocation of an erosion or sedimentation control measure that prevents it from performing as intended. The record shall include measures required to correct the significant deviation, along with documentation of when those measures were taken. Deviations from the approved plan may also be recommended to enhance the intended performance of the sedimentation and erosion control measures.

      (3)   Except as may be required under federal law, rule or regulation, no periodic self-inspections or rain gauge installation is required on individual residential lots where less than one acre is being disturbed on each lot.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

   An erosion and sedimentation control plan may be disapproved if the plan fails to address the following control objectives:

(Ord. of 6-3-2013; Amend. of 12-13-2023)

   (a)   Except as provided in Section 14-688(b)(2) of this article, erosion and sedimentation control measures, structures, and devices shall be planned, designed, and constructed 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 USDA, NRCS’s "National Engineering Field Manual for Conservation Practices", or other acceptable calculation procedures.

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

      (2)   Have a minimum of 1800 cubic feet of storage area per acre of disturbed area;

      (3)   Have a minimum surface area of 325 square feet per cfs of the twenty-five 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.

(Ord. of 6-3-2013 ; Amend. of 12-13-2023)

      (1)   The velocity established by the Maximum Permissible Velocities Table set out within this subsection; or

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

If condition (1) or (2) of this paragraph cannot be met, then the receiving watercourse to and including the discharge point shall be designed and constructed to withstand the expected velocity anywhere the velocity exceeds the "prior to development" velocity by ten percent.

TThe following is a table for maximum permissible velocity for storm water discharges in feet per second (F.P.S.) and meters per second (M.P.S.):

 

[Source - Adapted from recommendations by Special Committee on Irrigation Research, American Society of Civil Engineers, 1926, for channels with straight alignment. For sinuous channels, multiply allowable velocity by 0.95 for slightly sinuous, by 0.9 for moderately sinuous channels, and by 0.8 for highly sinuous channels.]

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

      (2)   Avoid increases in storm water discharge velocities by using vegetated or roughened swales and waterways in place of closed drains and high velocity paved sections:

      (3)   Provide energy dissipators at outlets of storm drainage facilities to reduce flow velocities to the point of discharge;

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

      (5)   Upgrade or replace the receiving device structure, or watercourse such that it will receive and conduct the flow to a point where it is no longer subject to degradation from the increased rate of flow or increased velocity.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

   When the person conducting the land-disturbing activity is also the person conducting the borrow or waste disposal activity, areas from which borrow is obtained and which are not regulated by the provisions of the Mining Act of 1971, and waste areas for surplus materials other than landfills regulated by the department's Division of Waste Management shall be considered as part of the land-disturbing activity where the borrow material is being used or from which the waste material originated. When the person conducting the land-disturbing activity is not the person obtaining the borrow and/or disposing of the waste, these areas shall be considered a separate land-disturbing activity.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

   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.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

   Land disturbing activity in connection with construction in, on, over, or under a lake or natural watercourse shall minimize the extent and duration of disruption of the stream channel. Where relocation of a stream forms an essential part of the proposed activity, the relocation shall minimize unnecessary changes in the stream flow characteristics.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

   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 article, the Act, or any order adopted pursuant to this article 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.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

   Whenever the County determines that significant erosion and sedimentation is occurring as a result of land-disturbing activity, despite application and maintenance of protective practices, the person conducting the land-disturbing activity will be required to and shall take additional protective action.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

   (a)   The County shall establish a fee schedule for the review and approval of plans, transfer of approved plan permits, and re-inspection fees.

   (b)   In establishing the fee schedule, the County shall consider the administrative and personnel costs incurred for reviewing the plans, inspecting the activity, and for related compliance activities.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

   The appeal of a disapproval or approval with modifications of a plan shall be governed by the following provisions:

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

   (b)   A hearing held pursuant to this section shall be conducted by the Johnston County Director of Utilities within 30 days after receipt of the request.

   (c)   At least seven days prior to the hearing, the Director of Utilities must publish a notice of hearing, at least once, in a newspaper of general circulation in the County.

   (d)   The Director of Utilities must render a decision in writing within seven days after the hearing.

      (1)   In the event that the appeal is not granted, the Director of Utilities must notify the director of the North Carolina Division of Energy, Mineral, and Land Resources of the disapproval within ten days.

      (2)   The Director of Utilities must advise the applicant and the director of the North Carolina Division of Energy, Mineral, and Land Resources in writing as to the specific reasons the request was disapproved.

   (e)   If the Director of Utilities does not grant the appeal, the person submitting the erosion and sedimentation control plan has 15 days following the denial to appeal the County's decision to the North Carolina Sedimentation Control Commission as provided in G.S. 113A-61(c) and 15A NCAC 4B .0118(d).

   (f)   If any proposed erosion and sedimentation control plan is disapproved, the applicant may appeal County's decision directly to the North Carolina Sedimentation Control Commission.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

      (1)   Non-compliance inspection report.

      (3)   Withholding building permit inspections, permits, or certificates of occupancy until compliance is obtained; and/or

      (4)   Holding final plat signatures until compliance is obtained. Sites must be in compliance with this article prior to final plat approval.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

         a.   The degree and extent of harm caused by the violation,

         b.   The cost of rectifying the damage,

         c.   The amount of money the violator saved by noncompliance,

         d.   Whether the violation was committed willfully, and

         e.   The prior record of the violator in complying or failing to comply with this article.

      (7)   Collection. If payment is not received within 30 days after it is due, the County may institute a civil action to recover the amount of the assessment. 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 assessment was due. An assessment that is not contested is due when the violator is served with a notice of assessment. An assessment that is contested is due at the conclusion of the administrative and judicial review of the assessment.

(Ord. of 6-3-2013; Amend. of 12-13-2023)

(Ord. of 6-3-2013; Amend. of 12-13-2023)

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

(Ord. of 6-3-2013; Amend. of 12-13-2023)