A.

Purpose. This section is adopted for the purposes of:

1.

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

2.

Establishing procedures through which these purposes can be fulfilled.

B.

Scope and exclusions.

1.

Geographical scope of regulated land-disturbing activity. This section shall apply to land-disturbing activity within the territorial jurisdiction of the City of Rocky Mount and to the extraterritorial jurisdiction of the city as allowed by agreement between local governments, the extent of annexation, or other appropriate instrument or law.

2.

Exclusions from regulated land-disturbing activity. Notwithstanding the general applicability of this section to all land-disturbing activity, this section shall not apply to the following types of land-disturbing activity:

a.

An activity, including the production and activities relating or incidental to the production of crops, grains, fruits, vegetables, ornamental and flowering plants, dairy, livestock, poultry, and all other forms of agriculture undertaken on agricultural land for the production of plants and animals useful to man, including, but not limited to:

1)

Forage and sod crops, grain 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.

7)

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.

b.

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 North Carolina Department of Agriculture and Consumer Services. If land-disturbing activity undertaken on forestland for the production of timber and timber products is not conducted in accordance with Forest Practice Guidelines Related to Water Quality, the provisions of this section shall apply to such activity and any related land-disturbing activity on the tract.

c.

An activity for which a permit is required under the Mining Act of 1971, N.C.G.S. ch. 74, art. 7.

d.

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

e.

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

f.

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.

g.

Activities undertaken pursuant to Natural Resources Conservation Service standards to restore the wetlands function of converted wetlands as defined in Title 7 Code of Federal Regulations S12.2.

3.

Plan approval requirement for land-disturbing activity. No person shall undertake any land-disturbing activity subject to this section without first obtaining a sedimentation and erosion control (SEC) plan approval from the city.

4.

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.

5.

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

6.

Plan approval exceptions. Not withstanding the general requirement to obtain a SEC plan approval prior to undertaking land-disturbing activity, a SEC plan approval shall not be required for land-disturbing activity that does not exceed forty-three thousand five hundred sixty (43,560) square feet (one (1) acre) in surface area. In determining the area, lands under one (1) or diverse ownership developed as a unit will be aggregated.

C.

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

1.

Buffer zone.

a.

Standard buffer. 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 twenty-five (25) percent of the buffer zone nearest the land-disturbing activity.

1)

Projects on, over, or under water. This subdivision shall not apply to a land-disturbing activity in connection with the construction of facilities to be located on, over, or under a lake or natural watercourse.

2)

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

b.

Trout buffer. Waters that have been classified as trout waters by the Environmental Management Commission (EMC) shall have an undisturbed buffer zone twenty-five (25) feet wide or of sufficient width to confine visible siltation within the twenty-five (25) percent of the buffer zone nearest the land-disturbing activity, whichever is greater. Provided, however, that the sediment control commission may approve plans which include land-disturbing activity along trout waters when the duration of said disturbance would be temporary and the extent of said disturbance would be minimal.

1)

Projects on, over, or under water. This subdivision shall not apply to a land-disturbing activity in connection with the construction of facilities to be located on, over, or under a lake or natural watercourse.

2)

Trout buffer measurement. The twenty-five-foot minimum width for an undisturbed buffer zone adjacent to designated trout waters shall be measured horizontally from the top of the bank to the nearest edge of the disturbed area.

3)

Limit on land disturbance. Where a temporary and minimal disturbance has been permitted as an exception to the trout buffer, land-disturbing activities in the buffer zone adjacent to designated trout waters shall be limited to a maximum of ten (10) percent of the total length of the buffer zone within the tract to be distributed such that there is not more than one hundred (100) linear feet of disturbance in each one thousand (1,000) linear feet of buffer zone. Larger areas may be disturbed with the written approval of the director, North Carolina Division of Land Resources.

4)

Limit on temperature fluctuations. No land-disturbing activity shall be undertaken within a buffer zone adjacent to designated trout waters that will cause adverse temperature fluctuations in these waters, as set forth in 15 NCAC 2B.0211 "Fresh Surface Water Classification and Standards."

2.

Graded slopes and fills. The angle for graded slopes and fills shall be no greater than the angle which can be retained by vegetative cover or other adequate erosion control devices or structures. In any event, slopes left exposed will, within twenty-one (21) calendar days of completion of any phase of grading, whichever period is shorter, be planted or otherwise provided with ground cover, devices, or structures sufficient to restrain erosion. The angle for graded slopes and fills must be demonstrated to be stable. Stable is the condition where soil remains in its original configuration, with or without mechanical constraints.

3.

Fill material. Materials being used as fill shall be consistent with those described in 15A NCAC 13B.0562 unless a permit from the North Carolina Department of Environment and Natural Resources Division of Solid Waste Management to operate a landfill is on file for the official site. Not all materials described in Section .0562 may be suitable to meet geotechnical considerations of the fill activity and should be evaluated accordingly.

4.

Ground cover. Whenever land-disturbing activity is undertaken on a tract comprising more than one (1) acre, if more than one (1) acre is uncovered, 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. Provisions for a ground cover sufficient to restrain erosion must be accomplished within ninety (90) calendar days following completion of construction or development.

5.

Prior plan approval. No person shall initiate any land-disturbing activity on a tract if more than one (1) acre is to be uncovered unless, thirty (30) or more days prior to initiating the activity, a SEC plan for such activity is filed with and approved by the city. The land-disturbing activity may be initiated and conducted in accordance with the plan once the plan has been approved. The city shall forward to the director of the division of water quality a copy of each SEC plan for a land-disturbing activity that involves the utilization of ditches for the purpose of dewatering or lowering the water table of the tract.

6.

The land-disturbing activity shall be conducted in accordance with the approved SEC plan.

D.

Erosion and sedimentation control plans.

1.

Plan submission. A SEC plan shall be prepared for all land-disturbing activities subject to this section whenever the proposed activity is to be undertaken on a tract comprising more than one (1) acre, if more than one (1) acre is to be uncovered. The SEC plan shall be filed with the city and a copy shall be simultaneously submitted to the Edgecombe County or Nash County Soil and Water Conservation District as applicable, at least thirty (30) days prior to the commencement of the proposed activity.

2.

Financial responsibility and ownership. SEC plans may be disapproved unless accompanied by an authorized statement of financial responsibility and property ownership. This statement shall be signed by the person financially responsible for the land-disturbing activity or his attorney in fact. The statement shall include the mailing address and street address of the principal place of business of (1) the person financially responsible, (2) the owner of the land, and (3) any 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 noncompliance with the SEC plan, the Sedimentation Pollution Control Act (SPCA), this section, or rules or orders adopted or issued pursuant to this section. Except as provided in subsections (3) or (11) of this section, if the applicant is not the owner of the land to be disturbed, the draft SEC plan must include the owner's written consent for the applicant to submit a draft SEC plan to conduct the anticipated land-disturbing activity.

3.

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 SEC 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.

4.

Environmental Policy Act document. Any SEC plan submitted for a land-disturbing activity for which an environmental document is required by the North Carolina Environmental Policy Act (N.C.G.S. § 113A-1 et seq.) shall be deemed incomplete until a complete environmental document is available for review. The city shall promptly notify the person submitting the SEC plan that the thirty-day time limit for review of the SEC plan pursuant to this section shall not begin until a complete environmental document is available for review.

5.

Content. The SEC 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 section. Plan content may vary to meet the needs of specific site requirements. Detailed guidelines for SEC plan preparation may be obtained from the city on request.

6.

Soil and water conservation district comments. The Edgecombe County or Nash County Soil and Water Conservation District as applicable shall review the plan and submit any comments and recommendations to the city within twenty (20) days after the soil and water conservation district received the SEC plan, or within any shorter period of time as may be agreed upon by the soil and water conservation district and the city. Failure of the soil and water conservation district to submit its comments and recommendations within twenty (20) days or within any agreed-upon shorter period of time shall not delay final action on the SEC plan.

7.

Timeline for decisions on plans. The city will review each complete SEC plan submitted to them and within thirty (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 SEC plan within thirty (30) days of receipt shall be deemed approval. The city will review each revised SEC plan submitted to them and within fifteen (15) days of receipt thereof will notify the person submitting the SEC plan that it has been approved, approved with modifications, or disapproved. Failure to approve, approve with modifications, or disapprove a revised SEC plan within fifteen (15) days of receipt shall be deemed approval.

8.

Approval. The city 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 city shall condition approval of SEC plans upon the applicant's compliance with federal and state water quality laws, regulations and rules. A permit issued under this article shall be valid for a period not to exceed two (2) years from the date of the approval or the time required to complete the permitted project including stabilization of all disturbed areas, whichever is less.

9.

Disapproval for content. The city may disapprove a SEC plan or draft SEC plan based on its content. A disapproval based upon a SEC plan's content must specifically state in writing the reasons for disapproval.

10.

Other disapprovals. The city may disapprove a SEC plan or draft SEC plan where implementation of the plan would result in a violation of the rules adopted by the EMC to protect riparian buffers along surface waters, 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 SEC plan, or has received notice of violation of a SEC plan previously approved by the commission or a local government pursuant to the SPCA 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 SPCA or a local ordinance adopted pursuant to the SPCA by the time the payment is due;

c.

Has been convicted of a misdemeanor pursuant to N.C.G.S. § 113A-64(b) or any criminal provision of a local ordinance adopted pursuant to the SPCA; or

d.

Has failed to substantially comply with state rules or local ordinances and regulations adopted pursuant to the SPCA.

For purposes of this subsection (10), an applicant's record may be considered for only the two (2) years prior to the application date. In the event that a SEC plan is disapproved pursuant to this subsection, the city shall notify the director of the division of land resources of such disapproval within ten (10) days. The city shall advise the applicant or the proposed transferee and the director of the division of land resources in writing as to the specific reasons that the SEC plan was disapproved. Notwithstanding the provisions of subsection P, the applicant may appeal the local government's disapproval of the plan directly to the SCC.

11.

Transfer of plans. The city may transfer an SEC 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 subsection.

a.

The city may transfer a plan if all of the following conditions are met:

(i)

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 documentation of property ownership.

(ii)

The city finds all of the following:

1.

The plan holder is one (1) of the following: A natural person who is decreased; a partnership limited liability corporation, corporation, or any other business association that has been dissolved; a person who has been lawfully and finally divested of title to the property on which the permitted activity is occurring or will occur; 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.

b.

The plan holder shall comply with all terms and conditions of the plan until such time as the plan is transferred.

c.

The successor-owner shall comply with all terms and conditions of the plan once the plan has been transferred.

d.

Notwithstanding changes to law made after the original issuance of the plan, the city may not impose new or different terms and conditions in the plan without prior express consent of the successor-owner. Nothing in this subsection shall prevent the city from requiring a revised plan pursuant to N.C.G.S. § 113A-54.1(b).

12.

Notice of activity initiation. No person may initiate a land-disturbing activity before notifying the agency that issued the SEC plan approval of the date that land-disturbing activity will begin.

13.

Preconstruction conference. When deemed necessary by the approving authority, a preconstruction conference may be required and noted on the approved plan.

14.

Display of plan approval. A SEC plan approval issued under this article shall be prominently displayed until all construction is complete, all temporary measures have been removed, all permanent sedimentation and erosion control measures are installed, and the site has been stabilized. A copy of the approved SEC plan shall be kept on file at the job site.

15.

Required revisions. After approving a SEC plan, if the city, either upon review of such SEC plan or on inspection of the job site, determines that a significant risk of accelerated erosion or off-site sedimentation exists, the city shall require a revised SEC plan. Pending the preparation of the revised SEC 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 SEC plan, the city determines that the SEC plan is inadequate to meet the requirements of this section, the city may require any revision of the SEC plan that is necessary to comply with this section.

16.

Amendment to plan. Applications for amendment of a SEC 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 city, the land-disturbing activity shall not proceed except in accordance with the SEC plan as originally approved.

17.

Failure to file a plan. Any person engaged in land-disturbing activity who fails to file a SEC plan in accordance with this section, or who conducts a land-disturbing activity except in accordance with provisions of an approved plan shall be deemed in violation of this section.

18.

Self-inspections. 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 N.C.G.S. § 113A-57(2). In addition, weekly and rain-event self-inspections are required by federal regulations, that are implemented through the NPDES Construction General Permit No. NCG 010000. 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 subsection shall be in addition to inspections required by N.C.G.S. § 113A-61.1.

Where inspections are required by this section or N.C.G.S. § 113A-54.1(e), the following apply:

(a)

The inspection shall be performed during or after each of the following phases of the plan;

(i)

Initial installation of erosion and sediment control measures;

(ii)

Clearing and grubbing of existing ground cover;

(iii)

Completion of any grading that requires ground cover;

(iv)

Completion of all land-disturbing activity, construction, or development, including permanent ground cover establishment and removal of all temporary measures; and

(v)

Transfer of ownership or control of the tract of land where the erosion and sedimentation control plan has been approved and work has begun. The new owner or person in control shall conduct and document inspections until the project is permanently stabilized as set forth in sub-item (iii) of this item.

(b)

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

(i)

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

(ii)

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

(iii)

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.

(iv)

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.

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 (1) acre is being disturbed on each lot.

E.

Basic control objectives. A SEC plan may be disapproved if the plan fails to address the following control objectives:

1.

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.

2.

Limit time of exposure. All land-disturbing activities are to be planned and conducted to limit exposure to the shortest time specified in N.C.G.S. § 113A-57, the rules of the aforementioned chapter, or as directed by the approving authority.

3.

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 (1) time.

4.

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.

5.

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

6.

Manage stormwater runoff. Plans shall be designed so that any increase in velocity of stormwater runoff resulting from a land-disturbing activity will not result in accelerated erosion of the receiving stormwater conveyance or at the point of discharge. Plans shall include measures to prevent accelerated erosion within the project boundary and at the point of discharge.

F.

Design and performance standards.

1.

Except as provided otherwise in this section, erosion and sedimentation control measures, structures and devices shall be so 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, Soil Conservation Service's "National Engineering Field Manual for Conservation Practices," or other acceptable calculation procedures.

2.

HQW zones. In high quality water (HQW) zones the following design standards shall apply:

a.

Limit on uncovered area. Uncovered areas in HQW zones shall be limited at any time to a maximum total area of twenty (20) acres within the boundaries of the tract. 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, North Carolina Division of Land Resources upon providing engineering justification with a construction sequence that consider phasing, limiting exposure, weekly submitted self-inspection reports, and a more conservative design than the twenty-five-year storm.

b.

Maximum peak rate of runoff protection. Erosion and sedimentation control measures, structures, and devices within HQW zones shall be so planned, designed and constructed to provide protection from the runoff of the twenty-five-year storm which produces the maximum peak rate of runoff as calculated according to procedures in the United States Department of Agriculture Soil Conservation Service's "National Engineering Field Manual for Conservation Practices" or according to procedures adopted by any other agency of this state or the United States or any generally recognized organization or association.

c.

Settling efficiency sediment basin design. Sediment basins within HQW zones shall be designed and constructed according to the following criteria:

(i)

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

(ii)

Have a minimum of one thousand eight hundred (1,800) cubic feet of storage area per acre of disturbed area;

(iii)

Have a minimum surface area of three hundred twenty-five (325) square feet per cubic feet per second of the twenty-five-year storm peak flow;

(iv)

Have a minimum dewatering time of forty-eight (48) hours and incorporates three (3) baffles unless the basin is less than twenty (20) feet in length, in which case two (2) baffles shall be sufficient.

d.

Grade. Newly constructed open channels in HQW zones shall be designed and constructed with side slopes no steeper than two (2) horizontal to one (1) vertical (2:1) if a vegetative cover is used for stabilization unless soil conditions permit a steeper slope or where the slopes are stabilized by using mechanical devices, structural devices or other acceptable ditch liners proven as being effective in restraining accelerated erosion. In any event, the angle for side slopes shall be sufficient to restrain accelerated erosion.

G.

Storm water outlet protection.

1.

Intent. Stream banks and channels downstream from any land disturbing activity shall be protected from increased degradation by accelerated erosion caused by increased velocity of runoff from the land disturbing activity.

2.

Performance standard. 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 8-1 of this section; or

b.

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

If conditions (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 (10) percent.

3.

Acceptable management measures. Measures applied alone or in combination to satisfy the intent of this section are acceptable if there are no objectionable secondary consequences. The city recognizes that 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 potential to produce successful results. Some alternatives, while not exhaustive, 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 place 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;

d.

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

e.

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.

4.

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.

5.

Velocity. The following is a table for maximum permissible velocity for storm water discharges:

Table 8-1
Maximum Permissible Velocities

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.

H.

Borrow and waste areas. 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, N.C.G.S. ch. 74, art. 7, or is a landfill regulated by the division of waste management. When the person conducting the land-disturbing activity is not the person obtaining the borrow permit and/or disposing of the waste, these areas shall be considered a separate land-disturbing activity.

I.

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

J.

Operations in lakes or natural watercourses. 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 changes in the stream flow characteristics.

K.

Responsibility for maintenance. During the development of a site, the person conducting the land-disturbing activity shall install and maintain all temporary and permanent erosion and sedimentation control measures as required by the approved SEC plan or any provision of this section, the SPCA, or any order adopted pursuant to this section or the SPCA. 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.

L.

Additional measures. Whenever the city determines that significant sedimentation is occurring as a result of land-disturbing activity despite application and maintenance of protective practices, the person conducting the land-disturbing activity will be required to and shall take additional protective action to achieve compliance with the conditions specified in this section.

M.

Existing uncovered areas.

1.

All uncovered areas existing on the effective date of this section which resulted from land-disturbing activity, exceed one (1) 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.

2.

The city shall serve upon the landowner or other person in possession or control of the land a written notice to comply with the SPCA, this section, a rule or order adopted or issued pursuant to the SPCA by the SCC or by the city. The notice to comply shall be sent by registered or certified mail, return receipt requested, or other means provided in N.C.G.S. § 1A-1, Rule 4. 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.

3.

The city reserves the right to require preparation and approval of an SEC plan in any instance where extensive control measures are required.

4.

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

N.

Fees.

1.

The city may establish a fee schedule for the review and approval of erosion and sedimentation control plans.

2.

In establishing the fee schedule, the city shall consider the administrative and personnel costs incurred for reviewing the plans and for related compliance activities.

3.

Applicable fees for review and approval of SEC plans shall be reviewed and adopted by city council and may be subject to periodic adjustments. Applicable fees shall be set forth in Section X of the city's Administrative Policy Manual.

O.

Plan appeals.

1.

Except as provided herein, the appeal of a disapproval or approval with modifications of a SEC plan shall be governed by the following provisions:

a.

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

b.

Hearings held pursuant to this section shall be conducted by the city within ten (10) days after the date of the appeal or request for a hearing.

c.

The agency conducting the hearings shall make recommendations to the city council within ten (10) days of date of the hearing on any SEC plan.

d.

The city council will render its final decision on any SEC plan upon which a hearing is requested within thirty (30) days of receipt of the recommendations from the agency conducting the hearings.

e.

If the city upholds the disapproval or approval with modification of a proposed SEC 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 (SCC) as provided in N.C.G.S. § 113A-61(c) and Title 15A NCAC 4B.0018(d).

2.

In the event that a SEC plan is disapproved pursuant to this section, the city shall notify the director of the North Carolina Division of Land Resources of such disapproval within ten (10) days. The city shall advise the applicant and the director in writing as to the specific reasons that the plan was disapproved. The applicant may appeal the city disapproval of the plan pursuant to this section directly to the SCC.

P.

Inspections and investigations.

1.

Inspection. Agents, officials, or other qualified persons authorized by the city will periodically inspect land-disturbing activities to ensure compliance with the SPCA, this section, or rules or orders adopted or issued pursuant to this section, and to determine whether the measures required in the SEC plan are effective in controlling erosion and sedimentation resulting from land-disturbing activity. Notice of the right to inspect shall be included in the certificate of approval of each SEC plan.

2.

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

3.

Notice of violation. If the city determines that a person engaged in land-disturbing activity has failed to comply with the SPCA, this section, or rules, or orders adopted or issued pursuant to this section, a notice of violation shall be served upon that person. The notice may be served by any means authorized under N.C.G.S. § 1A-1, Rule 4. The notice shall specify a date by which the person must comply with the SPCA, or this section, or rules, or orders adopted pursuant to this section, and inform the person of the actions that need to be taken to comply with the SPCA, this section, or rules or orders adopted pursuant to this section. Any person who fails to comply within the time specified is subject to the civil and criminal penalties for a continuing violation as provided in N.C.G.S. § 113A-64 provided in this section.

If the person engaged in the land-disturbing activity has not received a previous notice of violation under this section, the city shall offer assistance in developing corrective measures. Assistance may be provided by referral to a technical assistance program on behalf of the city, referral to a cooperative extension program, or by the provision of written materials such as department guidance documents. The notice of violation may be served in the manner prescribed for service of process by N.C.G.S. § 1A-1, Rule 4, and shall include information on how to obtain assistance in developing corrective measures.

4.

Investigation. The city shall have the power to conduct such investigation as it may reasonably deem necessary to carry out its duties as prescribed in this section, 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.

5.

Statements of reports. The city shall also have the power to require written statements, or filing of reports under oath, with respect to pertinent questions relating to land-disturbing activity.

Q.

Penalties.

1.

Civil penalties.

a.

Civil penalty for a violation. Any person who violates any of the provisions of this section, or rules or orders adopted or issued pursuant to this section, or who initiates or continues a land-disturbing activity for which a SEC plan is required except in accordance with the terms, conditions, and provisions of an approved SEC plan, is subject to a civil penalty. The maximum civil penalty amount that the city may assess per violation is five thousand dollars ($5,000.00). A civil penalty may be assessed from the date of the violation. Each day of a continuing violation shall constitute a separate violation.

When the person has not been assessed any civil penalty under this subsection for any previous violation, and that person abated continuing environmental damage resulting from the violation within one hundred eighty (180) days from the date of the notice of violation, the maximum cumulative total civil penalty assessed under this subsection for all violations associated with the land-disturbing activity for which the erosion and sedimentation control plan is required is twenty-five thousand dollars ($25,000.00).

b.

Civil penalty assessment factors. The director of public works or designee of the city shall determine the amount of the civil penalty based upon the following factors:

1)

The degree and extent of harm caused by the violation;

2)

The cost of rectifying the damage;

3)

The amount of money the violator saved by noncompliance;

4)

Whether the violation was committed willfully; and

5)

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

c.

Notice of civil penalty assessment. The director of public works or designee of the city shall provide notice of the civil penalty amount and basis for assessment to the person assessed. The notice of assessment shall be served by any means authorized under N.C.G.S. § 1A-1, Rule 4, and shall direct the violator to either pay the assessment, contest the assessment within thirty (30) days after receipt of the notice of assessment by written demand for a hearing with the city, or file a request with the city for remission of the assessment within thirty (30) days or receipt of the notice of assessment. A remission request must be accompanied by a waiver of the right to a contested case hearing pursuant to N.C.G.S. ch. 150B and a stipulation on the facts on which the assessment was based.

d.

Hearing. A hearing on a civil penalty shall be conducted by the city manager within thirty (30) days after the date of the written demand for the hearing. The city manager shall make a recommendation to the city council concerning the appeal within fifteen (15) days after the date of the hearing.

e.

Final decision. The city manager's recommendation will be forwarded to the city council, and the city council shall render its final decision on the civil penalty within fifteen (15) days of the receipt of the recommendation.

f.

Appeal of final decision. Appeal from the final decision of the city council shall be to the superior court of the county where the violation occurred, or the location of the violator's residence or principal place of business. Such appeals must be made within thirty (30) days of the final decision of the city council.

g.

Remission of civil penalties. A request for remission of a civil penalty may be filed with the city within thirty (30) days of receipt of the notice of assessment. A remission request must be accompanied by a waiver of the right to a contested case hearing pursuant to N.C.G.S. ch. 150B and a stipulation of the facts on which the assessment was based.

The following factors shall be considered in determining whether a civil penalty remission request will be approved:

(i)

Whether one (1) or more of the civil penalty assessment factors in N.C.G.S. § 113A-64(a)(3) were wrongly applied to the detriment of the petitioner.

(ii)

Whether the petitioner promptly abated continuing environmental damage resulting from the violation.

(iii)

Whether the violation was inadvertent or a result of an accident.

(iv)

Whether the petitioner had been assessed civil penalties for any previous violations.

(v)

Whether payment of the civil penalty will prevent payment for necessary remedial actions or would otherwise create a significant financial hardship.

(vi)

The assessed property tax valuation of the petitioner's property upon which the violation occurred, excluding the value of any structures located on the property.

h.

Collection. If payment is not received within thirty (30) days after it is due, the city 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 (3) years of the date the assessment was due. An assessment that is not contested is due when the violator is served with a notice of assessment. An assessment that is contested is due at the conclusion of the administrative and judicial review of the assessment.

i.

Credit of civil penalties. Civil penalties collected pursuant to this section shall be credited to the civil penalty and forfeiture fund in accordance with N.C.G.S. § 115C-457.2. Penalties collected by the city may be diminished only by the actual cost of collection. The collection cost percentage to be used shall be established and approved by the North Carolina Office of State and Budget Management on an annual basis, based upon the computation of actual collection costs by the city for the prior fiscal year.

2.

Criminal penalties. Any person who knowingly or willfully violates any provision of this section, or rule or order adopted or issued pursuant to this section, or who knowingly or willfully initiates or continues a land-disturbing activity for which a SEC plan is required except in accordance with the terms, conditions, and provisions of an approved SEC plan, shall be guilty of a class 2 misdemeanor which may include a fine not to exceed five thousand dollars ($5,000.00) as provided in N.C.G.S. § 113A-64.

R.

Injunctive relief.

1.

Violation of local program. Whenever the city council has reasonable cause to believe that any person is violating or threatening to violate this section or any rule or order adopted or issued pursuant to this section, or any term, condition, or provision of an approved SEC plan, it may, either before or after the institution of any other action or proceeding authorized by this section, institute a civil action in the name of the city 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 or is threatened.

2.

Abatement of violation. 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, 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 section.

S.

Removal of temporary measures. All temporary erosion and sediment control measures shall be removed within thirty (30) days after final site stabilization is achieved or after temporary measures are no longer needed. Areas containing or receiving trapped sediment shall be approved upland areas, shall be fine graded to receive vegetation and amendments, and shall be permanently stabilized.

T.

Restoration of areas affected by failure to comply. The city may require a person who engaged in a land-disturbing activity and failed to retain sediment generated by the activity, as required by N.C.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 section.

(Ord. No. O-2004-65, § 2, 8-9-04; Ord. No. O-2005-34A, § 2, 5-9-05; Ord. No. O-2011-32, §§ 2, 3, 4-11-11; Ord. No. O-2021-2, § 4, 1-11-21; Ord. No. O-22-48, § 4, 7-11-22)

The Legislature of the State of North Carolina has designated specific local governments in the Tar-Pamlico River Basin and has required them to develop a stormwater management program in conformance with 15A NCAC 2B.0258, Tar-Pamlico River Basin-Nutrient Sensitive Waters Management Strategy. This section is adopted pursuant to the authority contained in Article 19 of Chapter 160A, planning and development and the requirements of 15A NCAC 2B.0258. Any modifications to this section are subject to the approval by the North Carolina Division of Water Quality (DWQ).

A.

Applicability.

1.

The provisions of this section shall apply within the corporate limits of the City of Rocky Mount and the ETJ, as defined in section 205 of this LDC.

2.

All land development activity meeting the criteria listed below must comply with the requirements of this section.

a.

Any activity that disturbs greater than one (1) acre of land to establish or expand a single-family or duplex residential development or recreational facility. For individual single-family residential lots of record that are not part of a larger common plan of development or sale, the activity must also result in greater than five (5) percent built-upon area.

b.

Any activity that disturbs more than one-half (½) acre of land in order to establish a multi-family residential development or a commercial, industrial, institutional or any other nonresidential facility that are not part of a larger common plan of development.

c.

Any activity that disturbs more than one-half (½) acre of land in order to expand a multi-family residential development or a commercial, industrial, institutional, or any other nonresidential facility that are not part of a larger common plan of development and result in greater than twenty-four (24) percent built-upon area.

B.

Exceptions.

1.

Projects meeting the criteria listed in subsections 802.A.2.a. and b. that replace or expand existing structures or improvements and that do not result in a net increase in built-upon area are not required to comply with the provisions of this section.

2.

Development that disturbs less than the thresholds listed in subsections 802.A.2.a. and b. are not exempt if such activities are part of a larger common plan of development and the larger common plan exceeds the relevant threshold, even though multiple, separate or distinct activities take place at different times on different schedules.

3.

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

C.

Exemptions.

1.

Agriculture activities subject to the requirements of the Tar-Pamlico Agriculture Rule, 15A NCAC .0732 and mining or forestry activities are exempt from the provisions of this section.

2.

Development or expansion of development with a vested right per the standards of N.C.G.S. § 160D-108 is exempt from the provisions of this section.

3.

Existing development or redevelopment is exempt from the provisions of this LDC.

4.

Development or expansion of development for which the permit application was submitted prior to the adoption of the ordinance from which this section is derived is optionally exempt from the provisions of this section per the requirements of N.C.G.S. § 143-755.

D.

Establishment and protection of riparian buffers.

1.

New developments meeting the criteria listed in subsection 802.A., must protect areas adjacent to intermittent and perennial streams in accordance with the Tar-Pamlico Riparian Buffer Rule. A fifty-foot wide riparian buffer is established on all sides of intermittent and perennial streams, ponds, and lakes shown on the most recent version of either a Natural Resources Conservation Service Soil Survey of Nash County, Soil Survey of Edgecombe County, or a 1:24,000 scale (7.5-minute quadrangle) topographic map prepared by the U.S. Geological Survey (USGS). Tar-Pamlico riparian buffers must be shown on all development plans, preliminary plats and final plats that contain land area within fifty (50) feet of an intermittent or perennial stream. If the plan or plat shows an encroachment into the riparian buffer, approval from the DWQ must accompany the submittal. The city will not approve new development plans that include land area within fifty (50) feet of the banks of a regulated water body except where one (1) of the following conditions apply:

a.

The development plan does not propose to impact the riparian buffer; or

b.

The property owner has received approval from the Division of Water Quality (DWQ) of the North Carolina Department of Environment and Natural Resources. Approval by the DWQ may be in the form of the following:

1)

An on-site determination by the DWQ in writing that regulated surface waters are not present on the site.

2)

A permit for the proposed construction activity.

3)

An authorization certificate and approval on a mitigation plan for a use designated as allowable with mitigation.

4)

A variance from DWQ and/or the Environmental Management Commission.

E.

Nutrient reduction requirements.

1.

Nitrogen and phosphorus export standards.

a.

All new development meeting the criteria listed in subsection 802.A. must limit nitrogen export to 4.0 pounds per acre per year (lbs/ac/yr) and phosphorus export to 0.8 pounds per acre per year (lbs/ac/yr).

b.

The project area used for nutrient calculation and stormwater requirements includes the site area less any existing built-upon area. The project density used for determining stormwater requirements is the amount of built-upon area subject to this section at project completion divided by the project area.

c.

The developer shall determine the nitrogen and phosphorus load and loading rate in pounds per acre per year (lb/ac/yr) generated from the project area without BMPs and determine the needed nitogen or phosphorus load reduction to meet nutrient targets by using the approved accounting tool, the SNAP tool, or an equivalent method approved by the North Carolina Division of Energy and Natural Resources (NCDENR).

2.

The nitrogen and phosphorus loading targets shall be met through some combination of the following:

a.

Projects may reduce export of nitrogen and phosphorus through any combination of BMPs treating runoff on the site, in an approved offsite BMP, or through the acquisition of permanent nutrient offset credits. The developer shall calculate the nitrogen and phosphorus reduction provided by the BMPs using the approved accounting tool. Use of the offset payment option is subject to the provisions of subsection 802G.

b.

Proposed development undertaken by a local government solely as a public road expansion or public sidewalk project, or proposed development subject to the jurisdiction of the surface transportation board, may meet nitrogen and phosphorus reduction needs for the project entirely through the use of permanent nutrient offset credits pursuant to the Nutrient Offset Trading Rule, 15A NCAC 02B .0703.

3.

Allowable best management practices for nitrogen and phosphorus reduction.

a.

All stormwater management and/or BMP facilities must be designed in accordance with section 804 of this LDC.

b.

Allowable BMPs for nitrogen and/or phosphorus reduction may include, but are not limited to, the following:

1)

Wet ponds.

2)

Constructed wetlands.

3)

Infiltration system.

4)

Permeable pavement.

5)

Green roof.

6)

Rainwater harvesting.

7)

Bioretention.

8)

Sand filters.

9)

Proprietary BMP or another approved new stormwater technology that is designed, constructed, and maintained in accordance with this LDC (subject to approval by the stormwater manager and DWQ).

c.

Specific use of any particular device or strategy is subject to the approval by stormwater manager.

F.

Control and treatment of runoff volume.

1.

All projects shall meet the stormwater system design requirements set forth in 15A NCAC 02H.1003. Projects shall use a project density threshold of greater than twenty-four (24) percent built-upon area, whereupon high-density stormwater design is required. All BMPs will meet the standards set in the Design Manual and the State's Minimum Design Criteria, 15A NCAC 02H .1050 through .1062.

2.

Where high-density stormwater design is required, stormwater systems shall meet the standards set forth in 15A NCAC 02H .1003(3) and be designed to control and treat the volume of runoff generated from all built-upon area by one (1) inch of rainfall or equivalent runoff volume in one (1) or more allowable BMPs. These projects may utilize offsite allowable BMPs dedicated to treating an area encompassing the project.

3.

Where high-density stormwater design is not required, stormwater systems shall meet the low-density stormwater design standards set forth in 15A NCAC 02H .1003(2).

G.

Use of permanent nutrient offset credits.

1.

Sufficient permanent nutrient offset credits to meet project nutrient reduction needs not provided by BMPs serving the project shall be acquired prior to approval of the development plan. The City of Rocky Mount shall issue an approval letter for the development that documents the needed nitrogen or phosphorus credits and where the development is located relative to the Tar-Pamlico Rules' geographic requirements. All permanent nutrient offset credits permitted by the LDC shall meet the requirements of 15A NCAC 02B.0703.

2.

Permanent nutrient offset credits shall be acquired pursuant to N.C.G.S. § 143-214.26 and 15A NCAC 02B.0703 prior to the start of construction of the project.

3.

A developer subject to the ordinance may acquire permanent nutrient offset credits through one (1) of the following methods:

a.

Through a private nutrient bank.

b.

Through offsite offset provided by the developer and approved by the City of Rocky Mount.

c.

Through payment into the riparian buffer restoration fund established in N.C.G.S. § 143-214.21.

d.

Excess permanent nutrient offset credits acquired beyond what is required for the development may not be applied to any other development.

4.

Nutrient offset credits may be used to satisfy regulatory obligations only when generated by a nutrient reduction project.

H.

Regional facilities and strategies. The Tar-Pamlico stormwater rule provides the option for local governments to develop regional BMPs as an alternative means for addressing nutrient or flow control requirements. Regional BMPs will be undertaken by the city on a project-by-project basis and will be incorporated into the city's comprehensive stormwater management program as they are developed and approved by DWQ.

1.

Regional facility within the context of this section means a BMP that meets the nutrient and/or flow control requirements for multiple developments in a specified area within the city's jurisdiction. Examples of regional facilities may include, but are not limited to, wet detention ponds or constructed wetlands (see subsection E.3 for a list of allowable BMPs).

2.

The regional BMP must treat an area encompassing the project area.

3.

Regional facilities may be publicly or privately owned and operated, but must be approved by DWQ if the facility is proposed to serve more than one (1) classified stormwater basin.

I.

Vested rights. Projects such as landfills, NPDES wastewater discharges, and road construction that have obtained valid state permits prior to August 13, 2004 and projects that can demonstrate that they have vested rights in accordance with chapter 12 of this LDC as of August 13, 2004 will not be required to comply with the requirements of this section for the time periods specified by this LDC except that all vested rights granted by this provision shall expire five (5) years from the date that local or state approval of the project was granted.

(Ord. No. O-2004-65, § 2, 8-9-04; Ord. No. O-2006-39, §§ 2a.—j., 6-12-06; Ord. No. O-2021-2, § 4, 1-11-21; Ord. No. O-22-48, § 5, 7-11-22)

This section is adopted pursuant to the authority contained in Article 19 of Chapter 160A, Planning and Development, and N.C.G.S. Chapter 143, Section 214.5, Water Supply Watershed Protection. The provisions of this section shall apply within the areas designated as a public water supply watershed by the North Carolina Environmental Management Commission and shall be defined and established on the map entitled, "Watershed Protection Map of Rocky Mount, 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 LDC. The provisions of this section shall amend any and all LDC, resolutions or regulations of the city which are in conflict with or may be construed to impair or reduce the effectiveness of the city's watershed regulations.

A.

Watersheds general.

1.

The provisions of this LDC relating to watershed protection are adopted pursuant to the authority contained in N.C.G.S. Article 19 of Chapter 160A, Planning and Development, and N.C.G.S. Chapter 143, Section 214.5, Water Supply Watershed Protection. The provisions of this section shall apply within the areas designated as a public water supply watershed by the North Carolina Environmental Management Commission and shall be defined and established on the map entitled, "Watershed Protection Map of Rocky Mount, 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 LDC. In addition, so long as the only watershed areas in the city's jurisdiction are WS-IV-CA and WS-IV-PA, only activities that require a sedimentation and erosion control plan for the proposed development pursuant to the sedimentation and erosion control section of the LDC or State erosion/sedimentation law are required to meet the provisions of this section.

2.

Existing development, as defined in this LDC, is not subject to the requirements of this section. Expansions to structures classified as existing development must meet the requirements of this section, however, the built-upon area of the existing development is not required to be included in the density calculations.

3.

A pre-existing lot owned by an individual prior to the effective date of this section, regardless of whether or not a vested right has been established, may be developed by such individual owner or any subsequent owner for single-family residential purposes without being subject to the restrictions of this section.

B.

Standards and required improvements.

1.

All lots shall provide adequate building space in accordance with the development standards contained in this LDC. Lots which are smaller than the minimum required for residential lots shall be identified on the plat as, "not for residential purposes."

2.

For the purpose of calculating built-upon area, total project area shall include total acreage in the tract on which the project is to be developed.

3.

Where possible, roads should be located outside of critical areas and watershed buffer areas. Roads constructed within these areas shall be designed and constructed so to minimize their impact on water quality.

C.

Exceptions.

1.

Existing development, as defined in this section, is not subject to the requirements of this section.

2.

A pre-existing lot owned by an individual prior to the effective date of this section, regardless of whether or not a vested right has been established, may be developed by such individual owner or any subsequent owner for single-family residential purposes without being subject to the restrictions of this section.

D.

Establishment of watershed areas.

1.

For the purposes of this section the city and its extraterritorial jurisdiction is hereby divided into the following areas as delineated on the watershed map:

a.

WS-IV-CA (critical area)

b.

WS-IV-PA (protected area)

E.

Watershed areas described.

1.

WS-IV watershed areas—Critical area (WS-IV-CA). Only new development activities that require a sedimentation and erosion control plan under the city's sedimentation and erosion control LDC or state erosion/sedimentation law are required to meet the provisions of this section In order to address a medium to high land use intensity pattern, single-family residential uses are allowed at a maximum of two (2) dwelling units per acre. All other residential and nonresidential development shall be allowed twenty-four (24) percent built-upon area. New sludge application sites and landfills are specifically prohibited.

a.

Permitted uses.

1)

Agriculture subject to the provisions of the Food Security Act of 1985 and the Food, Agriculture, Conservation and Trade Act of 1990. Agricultural activities conducted after January 1, 1993 shall maintain a minimum ten-foot vegetative buffer, or equivalent control as determined by the soil and water conservation commission, along all perennial waters indicated on the most recent versions of U.S.G.S 1:24,000 (7.5 minutes) scale topographic maps or as determined by the director of public works. Animal operations greater than one hundred (100) animal units shall employ best management practices by July 1, 1994 as recommended by the soil and water conservation commission.

2)

Silviculture, subject to the provisions of the Forest Practices Guidelines Related to Water Quality (15 NCAC 1I.6101.0209).

3)

Residential development.

4)

Nonresidential development, excluding:

(a)

The storage of toxic and hazardous material unless a spill containment plan is implemented;

(b)

Landfills; and

(c)

Sites for land application of sludge/residuals or petroleum contaminated soils.

b.

Low density and built-upon limits.

1)

Single-family residential development shall not exceed two (2) dwelling units per acre on a project-by-project basis.

2)

All other residential and nonresidential development shall not exceed twenty-four (24) percent built-upon area on a project-by-project basis. For the purpose of calculating the built-upon area, total project area shall include total acreage in the tract on which the project is to be developed.

c.

High density and built-upon limits. High density and built-upon limits are permitted in this watershed area pursuant to the provisions of chapter 8 of this LDC.

2.

WS-IV watershed areas—Protected area (WS-IV-PA). Only new development activities that require a sedimentation and erosion control plan under the city's sedimentation and erosion control LDC or state erosion/sedimentation law are required to meet the provisions of this LDC. In order to address a medium to high land use intensity pattern, residential and nonresidential uses are permitted in this watershed area, subject to the requirements of this LDC, including the following:

a.

Uses permitted.

1)

Agriculture, subject to the provisions of the Food Security Act of 1985 and the Food, Agriculture, Conservation and Trade Act of 1990.

2)

Silviculture, subject to the provisions of the Forest Practices Guidelines Related to Water Quality (15 NCAC 1I.6101-.0209).

3)

Residential development.

4)

Nonresidential development, excluding the storage of toxic and hazardous material unless a spill containment plan is implemented.

b.

Low density and built-upon limits.

1)

Single-family residential development shall not exceed two (2) dwelling units per acre or twenty-four (24) percent built-upon area, on a project-by-project basis. For projects without a curb and gutter street system, development shall not exceed three (3) dwelling units per acre or thirty-six (36) percent built-upon area, on a project-by-project basis.

2)

All other residential and nonresidential development shall not exceed twenty-four (24) percent built-upon area, on a project-by-project basis. For projects without a curb and gutter street system, development shall not exceed thirty-six (36) percent built-upon area, on a project-by-project basis.

3)

For the purpose of calculating built-upon area, total project area shall include total acreage in the tract on which the project is to be developed.

c.

High density and built-upon limits. High density and built-upon limits are permitted in this watershed area pursuant to the provisions of chapter 8 of this LDC.

F.

Development in watershed areas. Clustering of development is allowed in all watershed areas 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 chapter 8 of this LDC. Built-upon area or stormwater control requirements of the project shall not exceed that allowed for the critical area or protected area, whichever applies.

2.

All built-upon areas shall be designed and located to minimize stormwater run-off impact to the receiving waters and minimize concentrated stormwater flow.

3.

The remainder of the tract shall remain in a vegetated or natural state. Where the development has an incorporated property owners association, the title of the open space area shall be conveyed to the association for management. Where a property association is not incorporated, a maintenance agreement shall be filed in the appropriate county.

G.

Buffer areas required.

1.

A minimum one hundred (100) foot vegetative buffer is required for all new development activities that exceed the low density option; otherwise, a minimum thirty (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 the director of public works. Desirable artificial stream bank or shoreline stabilization is permitted.

2.

No new development is allowed in the buffer except for water development structures 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 best management practices.

H.

Rules interpretation of watershed boundaries. Where it is believed that the majority of an existing or proposed lot in its natural, undisturbed, predevelopment state actually drains outside of the watershed (as indicated on the official watershed map), a topographic survey prepared by a registered land surveyor may be submitted to the director of the department of development services as evidence that the lot should be excluded from the official watershed area boundaries. Where uncertainty exists as to the boundaries of the watershed area, 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 director as evidence that one (1) 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 twenty-five (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 twenty-five (25) feet or less form any parallel lot line, the location of watershed area boundaries shall be construed to be the lot line.

5.

Where other uncertainty exists, the director of development services shall interpret the watershed map as to location of such boundaries. This decision may be appealed to the board of adjustment.

I.

Existing development. Any existing development as defined in this section, may be continued and maintained subject to the conditions provided herein. Expansions to structures classified as existing development must meet the requirements of this section, however, the built-upon area of the existing development is not required to be included in the density calculations.

J.

Compliance prior to issuance of permits.

1.

Except where a single-family residence is constructed on a lot of record prior to the effective date of this section, 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 the provisions of this section have been complied with.

2.

No building or structure which has been erected, moved or structurally altered may be occupied nor shall a certificate of occupancy/compliance be issued until the provisions of this section have been complied with.

K.

High density development.

1.

The planning board may approve high density development proposed consistent with the following standards:

a.

WS-IV watershed areas—Critical area (WS-IV-CA). Where new development exceeds either two (2) dwelling units per acre or twenty-four (24) percent built-upon area, engineered stormwater controls shall be used to control runoff from the first inch of rainfall and development shall not exceed fifty (50) percent built-upon area.

b.

WS-IV watershed areas—Protected areas (WS-IV-PA). Where new development requires a sedimentation and erosion control plan and exceeds either two (2) dwelling units per acre or twenty-four (24) percent built-upon area, or three (3) dwelling units per acre or thirty-six (36) percent built-upon area for projects without curb and gutter street system, engineered stormwater controls shall be used to control runoff from the first inch of rainfall and development shall not exceed seventy (70) percent built-upon area.

c.

The engineered stormwater management and/or BMP facilities shall be designed and constructed in accordance with the criteria listed in section 804 of this LDC.

2.

High density development shall meet the requirements of this LDC and the provisions of the LDC relating to watershed protection.

(Ord. No. O-2004-65, § 2, 8-9-04; Ord. No. O-2005-34B, § 1(Att. A), 5-9-05; Ord. No. O-2018-78, § 3, 8-13-18; Ord. No. O-2021-2, § 4, 1-11-21)

A.

Stormwater management facility design.

1.

All stormwater management and/or best management practices (BMP) facilities shall be designed by a North Carolina registered professional with qualifications appropriate for the type of system required; these registered professionals are defined as professional engineers, landscape architects, to the extent that N.C.G.S. ch. 89A allows, and land surveyors, to the extent that the design represents incidental drainage within a subdivision, as provided in N.C.G.S. § 89C-3(7).

2.

The standards used for the design and construction of all stormwater management and/or BMP facilities shall be in accordance with the "City of Rocky Mount Standard Specifications and Design Manual," latest edition, current state minimum design criteria and "North Carolina Department of Environmental Quality Stormwater Best Management Practices Manual." These standards and all amendments thereto and are hereby adopted by reference.

3.

Stormwater management facilities for nutrient reduction and water quality, may consist of one (1) treatment option or a combination of treatment options so long as the following conditions are met:

a.

Facility shall be designed in accordance with the provisions of subsection 804.A.1—2 and to meet the nutrient reduction requirements of section 802; and

b.

The annual runoff volume after development shall not be more than ten (10) percent higher than the annual runoff volume before development.

4.

In addition to any required vegetative filters all land areas outside of the stormwater management facility shall be provided with a ground cover sufficient to restrain erosion within thirty (30) days after any land disturbance. Upon completion of the stormwater control structure, a permanent ground cover shall be established and maintained as part of a maintenance agreement.

5.

A legal description of the area containing the stormwater control structure shall be prepared and included in a separate deed to the owning entity to be filed with the register of deeds in the appropriate county along with any easements necessary for general access to the stormwater management structure. The deeded area shall include the stormwater management structure, vegetative filters, all pipes and water control structures, berms, dikes, etc., and sufficient area to perform inspections, maintenance, repairs and reconstruction.

6.

Qualifying areas of the stormwater management structure may be considered pervious when computing total built-upon area. However, if the structure is used to compute the percentage built-upon area for one (1) site, it shall not be used to compute the built-upon area for any other site or area.

7.

Prior to the conveyance or transfer of any lot the built-upon area on that lot shall be referenced on the final plat and shall be recorded with the county register of deeds as the built-upon area limitation. The built-upon area limitation shall be binding on all subsequent owners of the site and portions of the site.

B.

Construction plan approval. If stormwater measures are required as described in this LDC, construction plan approval is required before any land-disturbing activity can begin.

C.

Posting of financial security required.

1.

Plan approval for new stormwater control structures shall be conditioned on the posting of a financial assurance as provided in section 1310 of this LDC for one hundred ten (110) percent of the estimated construction cost for the purpose of construction, repair, or reconstruction necessary for adequate performance of the stormwater management and/or BMP facility.

2.

Default under the financial assurance. Upon default of the applicant to complete and/or maintain the stormwater control structure as spelled out in the performance bond or other security, the director of public works may obtain and use all or any portion of the funds necessary to complete the improvements based on an engineering estimate. The director of public works shall return any funds not spent in completing the improvements to the owning entity; provided, however, no funds shall be returned to the owning entity until the director of public works is satisfied that adequate provisions have been made for the future maintenance, repair, and if necessary, reconstruction of the stormwater controls.

3.

Default under cash security. Upon default of the owning entity to maintain, repair and, if necessary, reconstruct the stormwater control structure in accordance with the operation and maintenance agreement, the director of public works shall obtain and use all or any portion of the cash security to make necessary improvements based on an engineering estimate. Such expenditure of funds shall only be made after exhausting all other reasonable remedies seeking the owning entity to comply with the terms and conditions of the operation and maintenance agreement. The director of public works shall not return any of the deposited cash funds.

D.

Authority to enter. The city shall have the power to conduct such investigation as it may reasonably deem necessary to carry out its duties as prescribed in this section, and for this purpose to enter at reasonable times upon any property, public or private, for the purpose of investigating and inspecting the development or stormwater management and/or BMP facilities installed pursuant to this LDC. No person shall obstruct, delay, hamper, or in any way interfere with a city agent or official while in the process of carrying out their duties under this LDC.

E.

Maintenance and upkeep.

1.

All stormwater management facilities and/or best management practice (BMPs) facilities that are constructed or implemented to meet the requirements of this LDC must be maintained in a manner that maintains the nutrient reduction levels and flow attenuation levels anticipated in the design of the facility.

2.

Prior to final plat approval or issuance of a certificate of compliance, the applicant shall enter into a binding operation and maintenance agreement between the city and all interests in the development. Such agreement shall:

a.

Require the owning entity to maintain, repair and, if necessary, reconstruct the stormwater control structure in accordance with the operation and management plan provided by the developer.

b.

The operation and maintenance of agreement shall be in recordable form executed by the owning entity and director of public works and shall be filed with the register of deeds in the appropriate county.

c.

The owning entity or entities will be responsible for submitting an annual inspection report of the stormwater management and/or BMP facility performed by a knowledgeable professional in the field to the director of public works. The annual report shall include an assessment of the condition of the facility including any improvements needed to insure that the facility operates safely and achieves the necessary nutrient reduction and flow attenuation levels anticipated in the design of the facility.

d.

The stormwater management agreement shall clearly delineate the penalties for failure to complete the required inspections, maintenance or improvements and shall grant the city authority to enter the property for the purposes of ensuring compliance with the provisions of the agreement and this LDC. If the owner and/or operator fails to complete the required inspections or any required improvements, the city shall inspect the facilities and make any necessary corrections. Any costs associated with this work, including administrative costs and fines, will be charged to the owner and/or party legally responsible for maintenance of the facility.

e.

Maintenance agreements shall run with the land and be binding upon subsequent owners of both the development project and/or any offsite facilities.

3.

As part of the operation and maintenance agreement, an operation and maintenance plan shall be provided by the developer for each stormwater control structure indicating what operation and maintenance actions are needed, what specific quantitative criteria will be used for determining when those actions are to be taken and, consistent with the operation and maintenance agreement, who is responsible for those actions. The plan shall clearly indicate the steps that will be taken for restoring a stormwater control structure to design specifications if a failure occurs.

4.

Landscaping and grounds management shall be the responsibility of the owning entity. However, vegetation shall not be established or allowed to mature to the extent that the integrity of the control structure is diminished or threatened, or to the extent of interfering with an easement or access to the stormwater control structure.

5.

Except for general landscaping and grounds management, the owning entity shall notify the director of public works prior to any repair or reconstruction of the stormwater control structure. All improvements shall be made consistent with the approved plans and specifications of the stormwater control structure and the operation and maintenance plan. After notification by the owning entity, the director of public works or designee shall inspect the completed improvements and shall inform the owning entity of any required additions, changes, or modifications and of the time period to complete such improvements. The director of public works may consult with an engineer or landscape architect (to the extent that N.C.G.S. ch. 89A allow) designated by the planning board.

6.

Amendments to the plans and specifications of the stormwater management and/or BMP facility, the operation and maintenance agreement or the operation and maintenance plan shall be approved by the planning board. Proposed changes shall be prepared by a North Carolina registered professional engineer or landscape architect (to the extent that the N.C.G.S. ch. 89A allow) and submitted to and review by the department of development services prior to consideration by the planning board.

a.

If the planning board approves the proposed change, the owning entity of the stormwater control structure shall file sealed copies of the revisions with the department of development services.

b.

If the planning board disapproves the changes, the proposal may be revised and resubmitted to the board as a new proposal. If the proposal has not been revised and is essentially the same as that already reviewed, it shall be returned to the owning entity.

7.

If the planning board finds that the operation and maintenance plan is inadequate for any reason, the board shall notify the owning entity of any required changes and the owning entity shall prepare and file copies of a revised operation and maintenance agreement with the department of development services and such revised plan shall be the plan for the development.

F.

Release of the performance bond.

1.

The director of public works shall inspect the stormwater management and/or BMP facility after the developer notifies him that all work has been completed. At or prior to this inspection, the developer shall provide to the city:

a.

Certified as-built drawings of the stormwater management and/or BMP facility.

b.

Final plat(s) creating a separate lot of record for the stormwater management facility ready for filing with the register of deeds;

c.

Signed deed(s) and related easements, as required, to convey the stormwater controls to the owning entity; and

d.

A certification sealed by an engineer or landscape architect (to the extent that the N.C.G.S. ch. 89A allow) stating that the stormwater management and/or BMP facility is complete and consistent with the approved plans and specifications.

2.

If the director of public works approves the inspection report and accepts the items listed in subsection 804.D.1, the director may release up to seventy-five (75) percent of the value of the performance bond or other security, and authorize the issuance of a certificate of compliance for the stormwater management and/or BMP facility. If deficiencies are found, the director of public works shall direct that improvements and inspections be made and/or documents corrected.

3.

No sooner than one (1) year after year after the filing date of the deed, easements, and maintenance agreement issuance of the certificate of compliance, the developer may request that the director of public works release the remaining value of the performance bond or other security. Upon receipt of such request the director of public works shall inspect the stormwater control structure to determine whether the controls are performing as designed and intended.

a.

If the director of public works approves the report and accepts the request, the director of public works shall release the remaining performance bond or other security.

b.

If the director of public works does not accept the report and rejects the request, he shall provide the developer with instructions to correct any deficiencies and all steps necessary for the release of the performance bond or other security.

4.

In the event the director of public works discovers the need for corrective action or improvements, he shall notify the owning entity of the needed improvements and the date by which the corrective action is to be completed. All improvements shall be made consistent with the plans and specifications of the stormwater control structure and the operation and maintenance plan. After notification by the owning entity, the director of public works shall inspect and approve the completed improvements.

G.

Variances. Pursuant to N.C.G.S. § 160D-406 and as described in section 509, the board of adjustment as established by the city shall hear and decide requests for variances from the requirements of this LDC. When practical difficulties or unnecessary hardships would result from carrying out the strict letter of this chapter, the board of adjustment may vary or modify any provision of this LDC so that the spirit of the chapter shall be observed; public safety and welfare secured; substantial justice done; and the project will provide equal or better protection of waters of the state than the requirements of 51A NCAC 02B.0711.

(Ord. No. O-2004-65, § 2, 8-9-04; Ord. No. 0-06-68, § 2, 7-10-06; Ord. No. O-2018-78, § 2, 8-13-18; Ord. No. O-2021-2, § 4, 1-11-21; Ord. No. O-22-48, § 6, 7-11-22)

A.

Permits. Permits for all development activities covered by this chapter shall be issued in accordance with section 717 of this LDC.

B.

Enforcement. Except as otherwise provided in this chapter, enforcement of the provisions of this chapter shall be in accordance with chapter 12 of this LDC.

C.

Appeals. Except as otherwise noted in this chapter, appeals of any order, requirement, decision or determination made by the director of public works may be made to and decided by the board of adjustment as provided in chapter 3 of this LDC.

(Ord. No. O-2004-65, § 2, 8-9-04; Ord. No. O-2021-2, § 4, 1-11-21)