10-10-1

The erosion and sedimentation control regulations of this Article apply to all of unincorporated Wake County with the exception of municipal extraterritorial jurisdictions. The regulations of this Article may also apply within the incorporated areas and the extraterritorial jurisdictions of municipalities upon proper resolution by the governing bodies of the respective municipalities and agreement by the Wake County Board of Commissioners.

10-10-2

Notwithstanding the provisions of G.S. 113A-56(a)(4) and Sec. 10-13-2(E) of this Article, the Wake County Board of Commissioners hereby declares that all departments and agencies of the County and its contractors and subcontractors must comply with the regulations of this Article when they are more restrictive than similar regulations of the North Carolina Sedimentation Control Commission.

10-10-3

The Wake County Department of Environmental Services is responsible for the administration and enforcement of this Article, including approval, issuance of permits related to, and enforcement of erosion and sedimentation control plans. Whenever conflict exists between federal, state, or local laws, ordinances, or rules, the more restrictive provision shall apply.

[Amended on 10/21/2019 by OA-01-19]

The erosion and sedimentation control regulations of this Article are adopted for the purposes of:

10-11-1

Regulating certain land-disturbing activities 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

10-11-2

Establishing procedures through which these purposes can be fulfilled.

[Amended on 10/21/2019 by OA-01-19]

Unless the context clearly indicates otherwise, the definitions of this section are to be used only in interpreting and administering the erosion and sedimentation control provisions of this Article.

Accelerated Erosion means any increase over the rate of natural erosion as a result of land-disturbing activity.

Act means the North Carolina Sedimentation Pollution Control Act of 1973 (NCGS Chapter 113A Article 4, as amended) and all rules and regulations adopted pursuant to it.

Active Construction means activities that contribute directly to the building of facilities including land-disturbing activities for roads, parking lots, footings, etc.

Adequate Erosion Control Measure, Structure, or Device means a measure, structure or device that controls the soil material within the land areas under responsible control of the person conducting the land-disturbing activity.

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

Best Management Practices means management and structural practices designed to reduce the quantities of pollutants washed by rain and snow melt into nearby waters.

Borrow means fill material that is required for on-site construction and is obtained from other locations.

Buffer Zone means a strip of land adjacent to a lake or natural watercourse.

Certificate of Completion for Soil Erosion and Sedimentation Control means a certificate issued by the Wake County Department of Environmental Services indicating that the permittee has achieved acceptable stabilization in accordance with the approved plan and has completed all work necessary on the site related to soil erosion, issued according to Sec. 10-31-2.

Certificate of Compliance for Preliminary Soil Erosion and Sedimentation Control means a certificate issued according to Part 3 of this Article by the Wake County Department of Environmental Services indicating that the initial erosion control devices shown on the approved plan have been installed and are operating correctly.

Commission means the North Carolina Sedimentation Control Commission.

Completion of Construction or Development means the stage of a project in which no further land-disturbing activity is required on a phase of a project except that which is necessary for establishing a permanent ground cover.

Contiguous means sharing the same boundary of property.

Department means the North Carolina Department of Environmental Quality or its successor agency.

Director of Environmental Services means the Wake County official charged with administration and enforcement of the sedimentation and erosion control regulations of this Article, including the Director's duly authorized agent or delegate.

Director of North Carolina Division of Energy, Mineral and Land Resources means the Director of the North Carolina Division of Energy, Mineral and Land Resources of the Department of Environmental Quality, including the official's duly authorized agent or delegate.

Discharge Point means the point at which stormwater runoff leaves a tract of land.

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

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

Erosion and Sedimentation Control Plan means a plan, as required by this Article, for the control of erosion and sedimentation during land-disturbing activities.

Ground Cover means any natural vegetative growth or other approved material that renders the soil surface stable against accelerated erosion.

High Quality Waters means waters classified as such in 15A NCAC 2B.0101(e)(5)—General Procedures, which is incorporated herein by reference to include further amendments pursuant to G.S. 150B-14 (c).

High Quality Water (HQW) Zones means areas in the Coastal Counties that are within 575 feet of High Quality Waters and for the remainder of the state, areas that are within one mile and draining to HQWs.

Lake or Natural Watercourse means any stream, river, brook, swamp, sound, bay, creek, run, branch, canal, waterway, estuary, and any reservoir, lake or pond, natural or impounded, in which sediment may be moved or carried in suspension, and which could be damaged by accumulation of sediment.

Land Disturbance Permit means the approval document allowing land-disturbing activities to be initiated.

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

Larger Common Plan of Development or Sale means an area where multiple separate and distinct construction or land disturbing activities may be taking place at different times and on different schedules, but under one proposed plan. A plan is any announcement or piece of documentation (including, but not limited to, a sign, public notice or hearing, sales pitch, advertisement, loan application, drawing, permit application, zoning request, subdivision application or computer design) or physical demarcation (including, but not limited to, boundary signs, lot stakes, or surveyor markings) indicating that construction activities may occur on a specific plot.

Local Government means any county, incorporated village, town, or city, or any combination of counties, incorporated villages, towns and cities, acting through a joint program pursuant to the provisions of the North Carolina Sedimentation Pollution Control Act.

Natural Erosion means the wearing away of the earth's surface by water, wind, or another natural agent under natural environmental conditions undisturbed by humans.

North Carolina Sedimentation Pollution Control Act means the North Carolina Sedimentation Pollution Control Act of 1973 (NCGS Chapter 113A Article 4, as amended) and all rules, regulations and orders adopted pursuant to it, also referred to as the Act.

Parent means an affiliate that directly, or indirectly through one or more intermediaries, controls another person.

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

Person Conducting Land-Disturbing Activity means any person who meets any of the following criteria:

(a)

A developer or other person who has or holds himself as having financial or operational control over a land-disturbing activity; or

(b)

A landowner or person in possession or control of the land that directly or indirectly allows land-disturbing activity or has benefited from it; or

(c)

A contractor or subcontractor who is authorized to perform land-disturbing work for the landowner.

Phase of Grading means one of two types of grading: rough or fine.

Plan means an erosion and sedimentation control plan.

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

Sedimentation means the process by which sediment resulting from accelerated erosion has been or is being transported off the site of the land-disturbing activity or into a lake, natural watercourse or on other property.

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

Spoils means refuse material removed from an excavation.

Stabilization means the process of restoring a site with ground cover as defined by this Article, which renders the soil stable against accelerated erosion.

Stop Work Order means a written order to stop work, issued by the Director of Environmental Services, upon determining that work is being conducted in violation of this ordinance.

Storm Drainage Facilities means the system of inlets, conduits, channels, ditches, and appurtenances which serve to collect and convey stormwater through and from a given drainage area.

Stormwater Runoff means the surface flow of water resulting from precipitation in any form and occurring immediately after rainfall or melting.

Subsidiary means an affiliate that is, either directly or indirectly through one or more intermediaries, controlled by another person.

Ten-year Storm means a storm with an intensity expected to be equaled or exceeded, on the average, once in ten years, and of a duration that will produce the maximum peak rate of stormwater runoff for the watershed of interest under average antecedent wetness conditions.

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

Twenty-Five Year Storm means a storm with an intensity expected to be equaled or exceeded on the average, once in 25 years, and of a duration that will produce the maximum peak rate of stormwater runoff for the watershed of interest under average antecedent wetness conditions.

Uncovered means the removal of ground cover from, on, or above the soil surface.

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

Velocity means the average velocity of flow through the cross section of the main channel at the peak flow of the storm of interest. The cross section of the main channel is the area defined by the geometry of the channel plus the area of flow below the flood height defined by vertical lines at the main channel banks. Overload flows are not to be included for the purpose of computing velocity of flow.

Wake County Department of Environmental Services means the Wake County Department of Environmental Services or successor agencies.

Wake County Soil Erosion and Sedimentation Control Checklist means a form containing the list of items required in order for an erosion and sedimentation control plan to be considered complete for review, as provided by the Wake County Department of Environmental Services.

Waste means surplus materials resulting from on-site land-disturbing activities and being disposed of at a location other than the site of the land-disturbing activity.

Working Days means days exclusive of Saturday and Sunday and state and federal holidays during which weather conditions or soil conditions permit land-disturbing activity to be undertaken.

[Amended on 10/21/2019 by OA-01-19]

10-13-1

Applicability.

(A)

Except for the exemptions noted in Sec. 10-13-2, the erosion and sedimentation control regulations of this Article apply to all disturbances of land equal to or greater than one acre, and to land disturbances of less than one acre that are part of a larger common plan of development or sale, including without limitation a subdivision. For land disturbances of less than one acre that are not part of a larger common plan of development or sale, refer to Sec. 10-20-5(B) of this Article for erosion and sedimentation control requirements. This Article expressly applies to the following land-disturbing activities:

(1)

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

(2)

Borrow and Waste Areas. When the person conducting the land-disturbing activity is not the person obtaining borrow and/or disposing of the waste, these areas are considered a separate land-disturbing activity. When the person conducting the land-disturbing activity is also the person conducting the borrow or waste disposal activity, the borrow or waste area must be considered part of the land-disturbing activity when:

(a)

Areas from which borrow is obtained are not regulated by the provisions of the Mining Act of 1971;

(b)

Waste areas for surplus materials that are not landfills regulated by the North Carolina Department of Environment and Natural Resources' Division of Waste Management; or

(c)

Waste areas for surplus materials that are not landfills regulated by Wake County under its Solid Waste Ordinance.

(3)

Utility Construction. Land-disturbing activities connected with utility construction over which the State of North Carolina does not have exclusive regulatory jurisdiction as provided in G.S. 113A-56 are considered part of such activity.

10-13-2

Exemptions. The erosion and sedimentation control regulations of this Article do not apply in the following situations:

(A)

Agricultural Activities. Land-disturbing activities 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:

a.

Forages and sod crops, grains and feed crops, tobacco, cotton, and peanuts.

b.

Dairy animals and dairy products.

c.

Poultry and poultry products.

d.

Livestock, including beef cattle, llamas, 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.

(B)

Forestland Activities. Land-disturbing activities undertaken on forestland for the production and harvesting of timber and timber products provided:

(1)

The timber cutting is not an initial step in a development project or part of a larger common plan of development or sale, in which case the timbering shall not occur until after an erosion and sedimentation plan has been approved and permitted in accordance with this Article.

(2)

The land disturbing activities undertaken on forestland for the production and harvesting of timber and timber products are conducted in accordance with best management practices set forth in Forest Practice Guidelines Related to Water Quality as published by the North Carolina Forest Service.

(a)

The North Carolina Forest Service is the agency that makes the determination whether the land disturbing activities on forestland are being conducted in accordance with Forest Practice Guidelines Related to Water Quality.

(b)

If such land-disturbing activities are not conducted in accordance with Forest Practice Guidelines Related to Water Quality, the provisions of this Article shall apply.

(C)

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

(D)

Emergency Activities. Activities essential to protect human life during an emergency.

(E)

Activities Under State Jurisdiction. Land-disturbing activities over which the state has exclusive regulatory jurisdiction as provided in G.S. 113A-56, including land-disturbing activities that are:

(1)

Conducted by the local, state or federal government;

(2)

Conducted by persons having the power of eminent domain; or

(3)

Funded in whole or in part by the state or federal government.

[Amended on 10/21/2019 by OA-01-19]

Land-disturbing activities shall not be undertaken except in accordance with the following standards:

10-20-1

Minimum Standards. All soil erosion and sedimentation control plans and measures must conform to the minimum applicable standards specified in North Carolina's Erosion and Sediment Control Planning and Design Manual and the Wake County Sedimentation and Erosion Control Plan Review Manual. Erosion control devices must be installed to prevent any offsite sedimentation for any construction site regardless of the size of the land disturbance.

10-20-2

Buffer Zone. No land-disturbing activity during periods of construction or improvement to land is permitted in proximity to a lake or natural watercourse unless a buffer zone is provided along the margin of the watercourse of sufficient width to confine visible siltation within the 25 percent of the buffer zone nearest the land-disturbing activity.

(A)

Projects On, Over or Under Water. A buffer is not required for a land-disturbing activity in connection with the construction of facilities to be located on, over, or under a lake or natural watercourse.

(B)

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 25 percent of the strip nearer the land-disturbing activity containing natural or artificial means of confining visible siltation.

10-20-3

Operation in Lakes or Natural Watercourses. Land disturbing activity in connection with construction in, on, over, or under a lake of natural watercourse must 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 must minimize unnecessary changes in the stream flow characteristics.

10-20-4

Fill Material. Unless a permit from the North Carolina Division of Waste Management to operate a landfill is on file for the official site, acceptable fill material must be free of organic or other degradable materials, masonry, concrete and brick in sizes exceeding 12 inches, and any materials which would cause the site to be regulated as a landfill by the State of North Carolina.

10-20-5

Standards for Erosion and Sedimentation Control Devices.

(A)

Land Disturbances Requiring A Plan and Permit.

(1)

An approved erosion and sedimentation control plan and a land disturbance permit is required whenever land disturbing activities will result in the disturbance of land equal to or greater than one acre and to land disturbances of less than one acre that are part of a larger common plan of development or sale, including without limitation a subdivision.

(2)

The person conducting the land-disturbing activity must install and maintain 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 the development of said tract.

(3)

The person conducting the land-disturbing activity must plant or otherwise provide a permanent ground cover sufficient to restrain erosion after completion of construction or development within 14 calendar days following completion of construction or development, except as provided in 15A NCAC 4B.0124(e).

(B)

Land Disturbances Not Requiring A Permit.

(1)

Whenever land-disturbing activities disturb less than one acre and such disturbance is not part of a larger common plan of development or sale, including without limitation a subdivision, an erosion and sedimentation control plan and permit is not required. However, the person conducting the land disturbing activity must install and maintain 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 the development of said tract; and

(2)

Must install a construction entrance, ten foot in width and 30 foot in length or equivalent, at the access point(s) for construction vehicles; and

(3)

Must install silt fences on the low sides of the lot prior to the initial footing inspection conducted by the Building Inspections Division

(4)

Areas within 25 feet of the edge of pavement or gravel of the road must be stabilized before issuance of a Certificate of Occupancy

(5)

All uncovered areas that result from land disturbing activities, and are subject to continued and accelerated erosion, and are causing the movement of sediment offsite from the tract, must be provided with a ground cover or other protective measures, structures or devices sufficient to restrain accelerated erosion and control off-site sedimentation.

(6)

The property owner or agent must be given notice of responsibility for compliance at the issuance of a building permit for said land disturbing activity.

(7)

While a permit is not required for land disturbances of less than one acre that are not part of a larger common plan of development or sale, the County retains the right to take enforcement actions and assess penalties if the movement of sediment offsite from the tract is observed during an inspection. Enforcement actions and penalties are described in Part 4 of this Article.

(8)

Notwithstanding the provisions of subsection (B)(1) herein, a permit is not required for land disturbing activities that disturb less than one acre upon a lot for which a certificate of occupancy for a single-family dwelling previously has been issued.

10-20-6

Analysis.

10-20-7

Inspection by Landowner.

(A)

The landowner, the financially responsible party, or their agent must perform an inspection of the area covered by the erosion and sedimentation control plan after each phase of the plan has been completed and after establishment of temporary ground cover in accordance with G.S. 113A-57(2).

(B)

The person who performs the inspection must maintain and make available a record of the inspection at the site of the land-disturbing activity. The record must set out any significant deviation from the approved erosion and sedimentation control plan, identify any measures that may be required to correct the deviation, and document the completion of those measures. The record must be maintained until permanent ground cover has been established as required by the approved erosion and sedimentation control plan.

(C)

The inspections required by this subsection are in addition to inspections required by G.S. 113A-61.1.

10-20-8

Protection of Property. Persons conducting land-disturbing activities must take all reasonable measures to protect all public and private property from damage caused by such activities.

10-20-9

Maximum Peak Rate of Runoff. During construction, the planned soil erosion and sedimentation control practices and devices must be employed to restrict sedimentation soil losses from each land-disturbing site in accordance with plans approved by the Wake County Department of Environmental Services Sedimentation and Erosion Control Section. Such erosion and sedimentation control measures, structures, and devices must be planned, designed, and constructed to provide protection from the calculated maximum peak rate of runoff from the ten-year storm. Runoff rates must be calculated using the procedures in the United States Department of Agriculture National Resources Conservation Service's National Engineering Field Manual for Conservation Practices, or other calculation procedures acceptable to the County.

10-20-10

Grade.

(A)

The angle for graded slopes and fills shall not be greater than the angle that can be retained by vegetative cover or other adequate erosion control devices or structures.

(B)

Slopes left exposed must be planted or otherwise provided with ground cover, devices, or structures sufficient to restrain erosion within 21 calendar days following completion of any phase or grading, or when grading equipment leaves the site in accordance with the following stabilization timeframes:

General Ground Stabilization Requirements

Falls Lake Watershed Ground Stabilization Requirements

(C)

The angle for graded slopes and fills must be demonstrated to be stable. Stable is the condition where the soil remains in its final modified configuration, with or without mechanical constraints.

10-20-11

Standards for High Quality Water (HQW) Zones. Land-disturbing activities to be conducted in High Quality Water Zones must be designed as follows:

(A)

Uncovered Areas. Uncovered areas in High Quality Water (HQW) zones must be limited at any time to a maximum total area of 20 acres within the boundaries of the tract. Only the portion of the land-disturbing activity within a HQW zone is governed by this rule. Larger areas may be uncovered within the boundaries of the tract with the written approval of the Director of the North Carolina Division of Energy, Mineral and Land Resources.

(B)

Maximum Peak Rate of Runoff. Erosion and sedimentation control measures, structures, and devices within HQW zones must be planned, designed and constructed to provide protection from the runoff of the 25-year storm which produces the maximum peak rate of runoff as calculated according to procedures in the United States Department of Agricultural, Natural Resources 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 basins within HQW zones must be designed and constructed so that the basin will have a settling efficiency of at least 70 percent for the 40 micron (0.04mm) size soil particle transported into the basin by the runoff of that two-year storm which produces the maximum peak rate of runoff. The maximum peak rate of runoff must be calculated according to procedures in the United States Department of Agriculture Natural Resources Conservation Services National Engineering Field Manual for Conservation Practices or according to procedures adopted by any other agency of this state or in the United States or any generally recognized organization or association.

(D)

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

(E)

Ground Cover. Ground cover sufficient to restrain erosion must be provided for any portion of land-disturbing activity in a HQW zone within seven calendar days, following completion of any phase or grading, or when grading equipment leaves the site.

10-20-12

Design Standards for Falls Lake Watershed.

In addition to any other requirements of State, federal, and local law, land-disturbing activity in the Falls Lake Watershed shall meet all of the following design standards for sedimentation and erosion control:

(A)

Erosion and sedimentation control measures, structures, and devices shall be planned, designed and constructed to provide protection from the runoff of the 25-year storm that produces the maximum peak rate of runoff as calculated according to procedures set out in the United States Department of Agriculture Natural Resources Conservation Service's "National Engineering Field Manual for Conservation Practices" or according to procedures adopted by any other agency of the State or the United States.

(B)

Sediment basins shall be planned, designed, and constructed so that the basin will have a settling efficiency of at least 70 percent for the 40-micron size soil particle transported into the basin by the runoff as calculated according to procedures in the United States Department of Agriculture Natural Resources Conservation Service's "National Engineering Field Manual for Conservation Practices" or according to procedures adopted by any other agency of the State or the United States.

(C)

Newly constructed open channels shall be planned, designed, and constructed with side slopes no steeper than two horizontal to one vertical if a vegetative cover is used for stabilization unless soil conditions permit steeper side slopes or where the side slopes are stabilized by using mechanical devices, structural devices, or other ditch liners sufficient to restrain accelerated erosion. The angle for side slopes shall be sufficient to restrain accelerated erosion.

(D)

For an area of land disturbing activity where grading activities have been completed, temporary or permanent ground cover sufficient to restrain erosion shall be provided as soon as practicable, but in no case later than seven calendar days after completion of grading. For an area of land-disturbing activity where grading activities have not been completed, temporary ground cover shall be provided as follows:

(1)

For an area with no slope, temporary ground cover shall be provided for the area if it has not been disturbed for a period of 14 calendar days.

(2)

For an area of moderate slope, temporary ground cover shall be provided for the area if it has not been disturbed for a period of ten calendar days. For purposes of this Item, "moderate slope" means an inclined area, the inclination of which is less than or equal to three units of horizontal distance to one unit of vertical distance.

(3)

For an area of steep slope, temporary ground cover shall be provided for the area if it has not been disturbed for a period of seven calendar days. For purposes of this Item, "steep slope" means an inclined area, the inclination of which is greater than three units of horizontal distances to one unit of vertical distance.

10-20-13

Standards for Landfills.

(A)

Land disturbance permits for landfills are valid for five calendar years. If no construction activity has begun within two years, the land disturbance permit becomes null and void.

(B)

A valid land disturbance permit is required for the duration of the "active life" of the landfill or phased permitted portion thereof until completion of closure activities.

(C)

Land disturbance permits for landfills may be renewed in five-year increments.

(D)

Land Disturbance permits for landfills may be automatically renewed upon the certification of Financially Responsible Party and upon concurrence by County staff that there are no major modifications to the approved plan and that the project adheres to all current applicable standards.

(E)

Automatic permit renewals will not be subject to plan review and land disturbance permit fees.

(F)

No plan shall be approved unless it complies with all applicable state and Wake County erosion and sedimentation control and stormwater management requirements. Approval assumes the applicant's compliance with federal and state water quality and landfill laws, regulations and rules in addition to Wake County's regulations.

(G)

Adequate erosion and sediment control measures consisting of vegetative cover, materials, structures or devices must be utilized to prevent sediment from leaving the landfill facility.

(H)

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 party conducting the land-disturbing activity will be required to and shall take additional protective action.

(I)

Adequate erosion and sediment control measures consisting of vegetative cover, materials, structures or devices must be utilized to prevent excessive on-site erosion of the landfill facility or portion thereof.

(J)

Erosion and sedimentation control measures, structures and devices for landfills must be designed, constructed and maintained to manage the calculated maximum peak rate of runoff generated by the 24-hour, 25-year storm event. Runoff rates must be calculated using the procedures in the United States Department of Agriculture Conservation Service's National Engineering Field manual for Conservation Practices, or the North Carolina Department of Environment and Natural Resources Erosion and Sediment Control Planning and Design Manual or other calculation procedures acceptable to Wake County.

(K)

Stormwater plan review for landfills shall be included in the plan review for erosion and sedimentation control and stormwater improvements shall be permitted under the land disturbance permit upon payment of applicable land disturbances review and permit fees.

(L)

Landfills shall conform to the requirements of the Sedimentation and Pollution Control Law (15A NCAC 04) and any required NPDES permits.

(M)

Phased permits may be closed upon compliance with Wake County's certificate of completion requirements.

[Amended on 11/17/2008 by OA 07-08; 10/21/2019 by OA-01-19]

10-21-1

Applicability. This section does not apply where it can be demonstrated to the County that stormwater discharge velocities will not create an erosion problem in the receiving watercourse.

10-21-2

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

10-21-3

Maximum Permissible Velocity.

(A)

All land-disturbing activities must be planned and conducted so that the velocity of stormwater runoff in the receiving watercourse at the point of discharge resulting from a ten-year storm after development shall not exceed the greater of:

(1)

The velocity as determined from the table in this subsection; or

(2)

The velocity in the receiving watercourse determined for the ten-year storm prior to development.

(B)

If the conditions in Sec. 10-21-3(A)(1) and Sec. 10-21-3(A)(2) cannot be met, then the receiving watercourse to and including the discharge point must be designed and constructed to withstand the expected velocity anywhere the velocity exceeds the "prior to development" velocity by ten percent.

(C)

The following is a table for maximum permissible velocity for stormwater discharges:

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.

10-21-4

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 County recognizes that the management of stormwater runoff to minimize or control downstream channel and bank erosion is a developing technology. Innovative techniques and ideas will be considered and may be used when shown to have the potential to produce successful results. Some alternatives include:

(A)

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

(B)

Avoiding increases in surface water discharge velocities by using vegetated or roughened swales or waterways in lieu of closed drains and high velocity paved sections;

(C)

Providing energy dissipators at outlets of storm drainage facilities to reduce flow velocities at the point of discharge;

(D)

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

(E)

Upgrading or replacing the receiving device, structure, or watercourse so 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.

10-22-1

Adoption.

(A)

Section 15 A NCAC 2B.0233 has been adopted with changes as published 12:6 NCR 462-479 (Subchapter 2b - Surface Water and Wetlands Standards, Monitoring; Section .0200 - Classifications and Water Quality Standards Applicable to Surface Waters and Wetlands of North Carolina .0233 Neuse River Basin: Nutrient Sensitive Waters Management Strategy: Protection and Maintenance of Riparian Areas with Existing Forest Vegetation).

(B)

The riparian buffer protection rules of 15 A NCAC 2B.0233 (Neuse River Basin: Nutrient Sensitive Waters Management Strategy: Protection and Maintenance of Existing Riparian Buffers) apply to all lands within the Neuse River and Cape Fear River basins.

10-22-2

Applicability. All plans must meet the requirements of this management strategy or receive an exemption from the North Carolina Department of Environmental Quality, Division of Water Resources. The following is the management strategy for maintaining and protecting riparian areas in the Neuse River Basin:

(A)

Riparian areas must be protected and maintained in accordance with the Neuse River regulations of this section on all sides of surface waters in the Neuse and Cape Fear River Basins (intermittent streams, perennial streams, lakes, ponds, and estuaries) as indicated on the most recent versions of United States Geological Survey 1:24,000 scale (7.5 minute quadrangle) topographic maps, and/or the Soil Survey for Wake County, North Carolina, whichever is more restrictive. The regulations of this section only apply to riparian areas where forest vegetation is established in Zone 1 as of July 22, 1997. Forest vegetation, as defined in 15A NCAC2B. 0202, of any width in Zone 1 must be protected and maintained in accordance with the Neuse River regulations of this section. The Neuse River regulations of this section do not establish new buffers in riparian areas. Exceptions to the Neuse River regulations for riparian areas are described in Sec. 10-22-2(B). Maintenance of the riparian areas should be so that, to the maximum extent possible, sheet flow of surface water is achieved. The Neuse River regulations of this section specify requirements that must be implemented in riparian areas to ensure that the pollutant removal functions of the riparian area are protected and maintained.

(B)

Exceptions. The following water bodies and land uses are exempt from the riparian area protection requirements.

(1)

Ditches and manmade conveyances other than modified natural streams;

(2)

When evidence from a field investigation reveals that areas mapped as intermittent streams, perennial streams, lakes, ponds, or estuaries on the most recent versions of United States Geological Survey 1:24,000 scale (7.5 minute quadrangle) topographic maps and/or the Soil Survey for Wake County, North Carolina, are not present as shown on the maps; then the property owner shall present the evidence from the field investigation to Wake County (Neuse of Cape Fear River Basins) or the North Carolina Division of Water Resources (Neuse River Basin only) for concurrence.

(3)

Ponds and lakes created for animal watering, irrigation, or other agricultural uses that are not part of a natural drainage way that is classified in accordance with 15A NCAC 2B.0100;

(4)

Water dependent structures as defined in 15A NCAC2B.0202, provided that they are located, designed, constructed and maintained to provide maximum nutrient removal, to have the least adverse effects on aquatic life and habitat and to protect quality;

(5)

The following uses may be allowed where no practical alternative exists. A lack of practical alternatives may be shown by demonstrating that, considering the potential for a reduction in size, configuration or density of the proposed activity and all alternative designs, the basic project purpose cannot be practically accomplished in a manner which would avoid or result in less adverse impact to surface waters. Also, these structures must be located, designed, constructed, and maintained to have minimal disturbance, to provide maximum nutrient removal and erosion protection, to have the least adverse effects on aquatic life and habitat, and to protect water quality to the maximum extent practical through the use of best management practices.

(a)

Road crossings, railroad crossings, bridges, airport facilities, and utility crossings;

(b)

Stormwater management facilities and ponds, and utility construction and maintenance corridors for utilities such as water, sewer or gas, provided they are located in Zone 2 of the riparian area; are located at least 30 feet from the top of bank or mean high water line; and that they comply with the requirements for utility construction and maintenance corridors in Sec. 10-22-2 (B)(6).

(6)

A corridor for the construction and maintenance of utility lines, such as water, sewer or gas, (including access roads and stockpiling of materials) running parallel to the stream and located within Zone 2 of the riparian area, as long as no practical alternative exists and they are located at least 30 feet from the top of bank or mean high water line and best management practices are installed to minimize runoff and maximize water quality protection to the maximum extent practicable. Permanent, maintained access corridors must be restricted to the minimum width practicable and shall not exceed ten feet in width except at manhole locations. A ten feet perpendicular vehicle turnaround is allowed provided that turnarounds are spaced at least 500 feet apart along the riparian area.

(7)

Stream restoration projects, scientific studies, stream gauging, water wells, passive recreation facilities such as boardwalks, trails, pathways, historic preservation and archaeological activities are allowed, provided that they are located in Zone 2 and are least 30 feet from the top of bank or mean high water line and are designed, constructed and maintained to provide the maximum nutrient removal and erosion protection, to have the least adverse effects on aquatic life and habitat, and to protect water quality to the maximum extent practical through the use of best management practices. Activities that must cross the stream or be located within Zone 1 are allowed as long as all other requirements of this subsection are met.

(8)

Stream crossings associated with timber harvesting are allowed if performed in accordance with the Forest Practices Guidelines Related to Water Quality (15A NCAC 1I.0201-0209).

10-22-3

Riparian Area Zones. The protected riparian area has two zones as follows:

(A)

Zone 1. Zone 1 is intended to be an undisturbed area of forest vegetation. Any forest vegetation, as defined in Rule .0202 of 15A NCAC 2B, in Zone 1 as of July 22, 1997 must be maintained and protected in accordance with this section.

(1)

Location.

(a)

For intermittent streams and perennial streams, Zone 1 begins at the top of bank and extends landward a distance of 30 feet on all sides of the water body, measured horizontally on a line perpendicular to the water body.

(b)

For all other water bodies, Zone 1 begins at the top of bank or mean high water line and extends landward a distance of 30 feet, measured horizontally on a line perpendicular to the water body.

(2)

Activities Allowed. The following practices and activities are allowed in Zone 1:

(a)

Natural regeneration of forest vegetation and planting vegetation to enhance the riparian area if disturbance is minimized, provided that any plantings primarily consist of locally native trees and shrubs;

(b)

Selective cutting of individual trees of high value in the outer 20 feet of Zone 1, provided that the basal area (measured at 12-inch diameter at breast height) remains at or above 0.52 square feet per running feet of the over 20 feet of Zone 1, as measured along the bank of the stream or water body. Limited mechanized equipment is allowed in this area;

(c)

Horticultural or silvicultural practices to maintain the health of individual trees;

(d)

Removal of individual trees that are in danger of causing damage to dwellings, other structures or the stream channel;

(e)

Removal of dead trees and other timber cutting techniques necessary to prevent extensive pest or disease infestation if recommended by the Director of the North Carolina Division of Forest Resources and approved by the Director of the North Carolina Division of Water Resources; and

(f)

Ongoing agricultural operations, provided that existing forest vegetation is protected and requirements in Rules .0236 and .0238 of 15A NCAC 2B are followed.

(3)

Activities Prohibited. The following practices are expressly prohibited in Zone 1:

(a)

Land-disturbing activities and placement of fill and other materials that would disturb forest vegetation, as defined in Rule .0202 of 15A NCAC 2B, other than those allowed in Sec. 10-22-2(B) and Sec. 10-22-3(A)(2);

(b)

New development, except as provided in Sec. 10-22-2(B);

(c)

New on-site sanitary sewage systems that use ground adsorption;

(d)

The application of fertilizer; and

(e)

Any activity that threatens the health and function of the vegetation including, but not limited to, application of chemicals in amounts exceeding the manufacturer's recommended rate, uncontrolled sediment sources on adjacent lands, and the creation of any areas with bare soil.

(B)

Zone 2. Vegetation in Zone 2 must consist of a dense ground cover composed of herbaceous or woody species that provides for diffusion and infiltration of runoff and filtering of pollutants.

(1)

Location. Zone 2 begins at the outer edge of Zone 1 and extends landward a minimum of 20 feet as measured horizontally on a line perpendicular to the water body. The combined minimum width of Zones 1 and 2 must be at least 50 feet on all sides of the water body.

(2)

Activities Allowed. The following practices and activities are allowed in Zone 2 in addition to those allowed in Zone 1:

(a)

Periodic moving and removal of plant products such as timber, nuts, and fruit on a periodic basis, provided the intended purpose of the riparian area is not compromised by harvesting, disturbance, or loss of forest or herbaceous ground cover.

(b)

Forest vegetation in Zone 2 may be managed to minimize shading on adjacent land outside the riparian area if the water quality function of the riparian area is not compromised.

(c)

Ongoing agricultural operations, provided that requirements of Rules .0236 and .0238 of 15A NCAC 2B are followed.

(3)

Activities Prohibited. The following practices and activities are not allowed in Zone 2:

(a)

Land-disturbing activities and placement of fill and other materials, other than those allowed in Sec. 10-22-2(B), Sec. 10-22-3(A)(2) and Sec. 10-22-3(B)(2);

(b)

New development, except as provided in Sec. 10-22-2(B);

(c)

New on-site sanitary sewage that use ground adsorption;

(d)

The application of fertilizer; and

(e)

Any activity that threatens the health and function of the vegetation including, but not limited to, application of chemicals in amounts exceeding the manufacture's recommended rate, uncontrolled sediment sources on adjacent lands, and the creation of any area with bare soil.

(4)

Tree Removal. Timber removal and skidding of trees must be directed away from the watercourse or water body. Skidding must be done in a manner to prevent the creation of ephemeral channels perpendicular to the water body. Any tree removal must be performed in a manner that does not compromise the intended purpose of the riparian area and is in accordance with the Forest Practices Guidelines Related to Water Quality (15A NCAC 1I .0201-.0209).

(5)

Sheet Flow. Maintenance of sheet flow in Zones 1 and 2 is required in accordance with this subsection.

(a)

Sheet flow must be maintained to the maximum extent practical through dispersing concentrated flow and/or re-establishment of vegetation to maintain the effectiveness of the riparian area.

(b)

Concentrated runoff from new ditches and manmade conveyances must be dispersed into sheet flow before the runoff enters Zone 2 of the riparian area. Existing ditches and manmade conveyances, as specified in Sec. 10-22-2(B)(1), are exempt from this requirement; however, care should be taken to minimize pollutant loading through these existing ditches and manmade conveyances from fertilizer application or erosion.

(c)

Periodic corrective action to restore sheet flow should be taken by the landowner if necessary to impede the formation of erosion gullies which allow concentrated flow to bypass treatment in the riparian area.

(6)

Maintenance Access.

(a)

Periodic maintenance of modified natural streams such as canals is allowed provided that disturbance is minimized and the structure and function of the riparian area is not compromised.

(b)

A grassed travel way is allowed on one side of the water body when alternative forms of maintenance access are not practical. The width and specifications of the travel way must be limited to only that needed for equipment access and operation. The travel way must be located to maximize stream shading.

(7)

Municipal Stormwater Management. If a local government has been issued a Municipal Separate Stormwater Sewer System permit or has been delegated to implement a local stormwater program, then the local government must ensure that the riparian areas to be protected are, as a standard practice, recorded on new or modified plats.

10-22-4

Variances. Where application of the regulations of this section would prevent all reasonable uses of a lot platted and recorded before June 3, 1974, a variance may be granted by the North Carolina Environmental Management Commission if it finds that:

(A)

Practical difficulties or unnecessary hardships would result in strict application of applicable regulations.

(B)

Such difficulties or hardships result from conditions which are peculiar to the property involved; and

(C)

The general purpose and intent of the regulations would be preserved, water quality would be protected and substantial justice would be done if the variance were granted.

[Amended on 10/21/2019 by OA-01-19]

10-23-1

During the development of a site, the person conducting the land-disturbing activity must install, routinely inspect and maintain in good working order all temporary and permanent erosion and sedimentation control measures as required by the approved plan or any provision of this Article, the North Carolina Sedimentation Pollution Control Act, or any order adopted pursuant to the erosion and sedimentation control regulations of this Article or the North Carolina Sedimentation Pollution Control Act.

10-23-2

After site development, the property owner or person in possession or control of the land must 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.

10-23-3

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.

10-23-4

All streets, sidewalks, greenways or other travel ways must be kept free from mud, dirt, dust or other material that may create a hazard to public safety or cause the travel way to be unreasonably muddy, as determined by the County.

[Amended on 10/21/2019 by OA-01-19]

10-30-1

Applicability.

(A)

Except as provided in Sec. 10-13, it is unlawful to conduct any land disturbing activity that will result in the disturbance of land equal to or greater than one acre, or that will result in the land disturbance of less than one acre if part of a larger common plan of development or sale, including without limitation a subdivision, until both an approved erosion and sedimentation control plan and a land disturbance permit issued by the County have been obtained.

(B)

The County may require preparation and approval of an erosion and sedimentation control plan for land-disturbing activities that disturb less than one acre and that are not part of a larger common plan of development or sale when sediment control measures are needed to protect against off-site damages.

(C)

A project may be developed in phases with separate erosion and sedimentation control plans and land disturbing permits for each phase.

10-30-2

Application Submittal and Acceptance of Erosion and Sedimentation Control Plan.

(A)

Submittal. A complete erosion and sedimentation control plan must be filed with the Wake County Department of Environmental Services at least 30 days prior to the anticipated start of the land-disturbing activity.

(B)

Contents. The erosion and sedimentation control plan application submittal must include all of the following, with sufficient copies for necessary referrals and records, those forms, maps, plans, sets of calculations and other documents as prescribed by the Director of Environmental Services as necessary to determine compliance with applicable regulations or to address the required conclusions:

(1)

Erosion and Sedimentation Control Checklist. The erosion and sedimentation control plan must contain at least all of the items specified on the Wake County Erosion and Sedimentation Control Checklist, including an application, administrative fees; 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 erosion and sedimentation control regulations of this Article. Detailed guidelines for plan preparation may be obtained from the Wake County Department of Environmental Services upon request.

(2)

Financial Responsibility and Ownership. The erosion and sedimentation control plan must include an authorized statement of financial responsibility and ownership that complies with the following:

(a)

Is signed by the financially responsible party for the land-disturbing activity or their Attorney in Fact, including the mailing and street addresses of the principal place of business of the financially responsible party the owner of the land; and any registered agents. A post office box is not an acceptable mailing address;

(b)

If the financially responsible party is not a resident of Wake County, a resident Wake County agent must be designated for the purpose of receiving notices of compliance or non-compliance with the erosion and sedimentation control plan, this Article, the North Carolina Sedimentation Pollution Control Act or any other applicable erosion and sedimentation control regulations;

(c)

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.

(3)

The Director of Environmental Services may waive one or more application requirements by certifying in writing that such information is unnecessary in the particular case to determine compliance with the applicable regulations.

(C)

Acceptance.

(1)

The Director of Environmental Services must review a submitted plan and determine whether it complies with submittal requirements.

(2)

If the erosion and sedimentation control plan does not comply with submittal requirements, the Director of Environmental Services must notify the applicant of the submittal deficiencies and invite the applicant to revise the erosion and sedimentation control plan to correct the deficiencies.

(3)

No further processing of incomplete plans will occur until the deficiencies are corrected.

(4)

If or when the erosion and sedimentation control plan complies with all submittal requirements, the Director of Environmental Services must accept the application as complete.

(5)

An erosion and sedimentation control plan will be considered complete and ready for processing only if submitted according to the application completeness requirements of this Article. The Director of Environmental Services must promptly notify the person submitting the erosion and sedimentation control plan that the 30-day time limit for review will not begin until the plan is deemed complete.

10-30-3

Review and Decision.

(A)

The County must forward a copy of each erosion and sedimentation control 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 to the Director of the North Carolina Division of Water Resources.

(B)

After accepting an erosion and sedimentation control plan as complete, the Director of Environmental Services must refer it to appropriate staff for review.

(C)

The review staff must review the erosion and sedimentation control plan, determine whether the proposed activity complies with all applicable regulations, identify any noncompliant features, and whenever feasible, suggest modifications to correct the noncompliant features.

(D)

Within 30 days of receipt of a complete initial plan submittal, and within 15 days of receipt of each revised plan, the Wake County Department of Environmental Services must notify the applicant that the plan has been approved, approved with modifications, approved with performance reservations, or disapproved.

(E)

Failure to approve, approve with modifications, approve with performance reservations or disapprove a complete initial erosion and sedimentation control plan within 30 days of receipt constitutes an action of approval.

(F)

Failure to approve, approve with modifications, approve with performance reservations or disapprove a resubmission of an erosion and sedimentation control plan within 15 days of receipt constitutes an action of approval.

(G)

No plan shall be approved unless it complies with all applicable state and County regulations for soil erosion and sedimentation control. Plan approval shall be conditioned upon the applicant's compliance with federal and state water quality laws, regulations, and rules.

(H)

Applicant shall provide documentation, when requested, of compliance with federal, state and local laws, regulations and rules.

(I)

Denial of the erosion and sedimentation control plan must specifically state in writing the reasons for denial.

(J)

If an erosion and sedimentation control plan has been disapproved, the applicant has 12 months to submit revised plans addressing the reasons for disapproval or the erosion and sedimentation control plan is deemed null and void.

10-30-4

Decision-making Criteria.

(A)

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

(1)

Identify Critical Areas. On-site areas that are subject to severe erosion, and off-site areas that are especially vulnerable to damage from erosion and/or sedimentation, must be identified and receive special attention.

(2)

Limit Time of Exposure. All land-disturbing activities must be planned and conducted to limit exposure to the shortest feasible time.

(3)

Limit Exposed Areas. All land-disturbing activity must be planned and conducted to minimize the size of the area to be exposed at any one time.

(4)

Control Surface Water. Surface water runoff originating upgrade of exposed areas must be controlled to reduce erosion and sediment loss during the period of exposure.

(5)

Control Sedimentation. All land-disturbing activity must be planned and conducted to prevent off-site sedimentation damage.

(6)

Manage Stormwater Runoff. When the increase in the velocity of stormwater runoff resulting from a land-disturbing activity is sufficient to cause accelerated erosion of the receiving watercourse, plans must include measures to control the velocity at the point of discharge to minimize accelerated erosion of the site and increased sedimentation of the stream.

(B)

The County must disapprove an erosion and sedimentation control plan or draft plans if implementation of the erosion and sedimentation control plan would result in a violation of the rules adopted by the Environmental Management Commission to protect riparian buffers along surface waters.

(C)

The County may disapprove an erosion and sedimentation control plan upon finding that an applicant, or a parent, subsidiary, or other affiliate of the applicant, within the two years prior to the application date:

(1)

Is conducting or has conducted land-disturbing activity without an approved plan, or has received a notice of violation on a previously approved erosion and sedimentation control plan and has not complied with the notice within the time specified;

(2)

Has failed to pay a civil penalty assessed pursuant to the North Carolina Sedimentation Pollution Control Act or a local ordinance adopted pursuant to the North Carolina Sedimentation Pollution Control Act by the time the payment is due;

(3)

Has been convicted of a misdemeanor pursuant to G.S. 113A-64(b) or any criminal provision of a local ordinance adopted pursuant to the North Carolina Sedimentation Pollution Control Act; or

(4)

Has failed to substantially comply with state rules or local ordinances and regulations adopted pursuant to the North Carolina Sedimentation Pollution Control Act.

(5)

When an erosion and sedimentation control plan is disapproved under the provisions of this subsection, the County must notify the Director of the North Carolina State Division of Energy, Mineral and Land Resources of such disapproval within ten days. The County must advise the applicant and the North Carolina State Division of Energy, Mineral and Land Resources in writing as to the specific reasons that the erosion and sedimentation control plan was disapproved.

10-30-5

Amendment of Plans.

(A)

Application for amendment of an erosion and sedimentation control plan in written and/or graphic form may be made at any time under the same conditions as the original application. Until the County approves the amendment, the land-disturbing activity shall not proceed except in accordance with the erosion and sedimentation control plan as originally approved.

(B)

The County must require a revised plan if it determines, upon review of an erosion and sedimentation control plan or inspection of the job site, that a significant risk of accelerated erosion or off-site sedimentation exists, and the erosion and sedimentation control plan is inadequate to meet the requirements of this Article. Pending the preparation of the revised plan, work must stop or continue only under conditions outlined by the appropriate authority.

10-30-6

Validity of Plan, Lapse of Approval. An approved erosion and sedimentation control plan is valid for two calendar years from the date of approval. If a land disturbance permit has not been obtained within the two-year period, the erosion and sedimentation control plan approval becomes null and void.

10-30-7

Land Disturbance Permit Requirements. Land disturbance permits may be obtained upon satisfaction of the following items:

(A)

Application. The applicant must provide to the Wake County Department of Environmental Services the number of copies of the approved erosion and sedimentation control plan as prescribed by the Director of Environmental Services.

(B)

Fees. Payment of fees established by the Wake County Board of Commissioners for administration of these erosion and sedimentation control regulations must be made at the pre-construction conference.

(C)

Pre-Construction Conference. A pre-construction conference with County staff is required prior to issuance of the land disturbance permit.

(D)

Certificate of Compliance. A certificate of compliance for preliminary soil erosion and sedimentation control must be issued confirming that initial soil erosion and sedimentation controls have been installed in accordance to the approved plan.

(1)

Grading, other than for installation of soil erosion and sedimentation control measures, is prohibited prior to the issuance of a certificate of compliance.

(2)

The certificate of compliance must be issued prior to the approval by the County of an application for building construction in the County, in any of the incorporated areas of the County, or extraterritorial jurisdictional areas of the municipalities of the County subject to the erosion and sedimentation control regulations of this Article.

(E)

Additional Requirements.

(1)

No land disturbance permit may be issued until the County is assured that the proposed land-disturbing activity will be carried out in accordance with the proposed soil erosion and sedimentation control plan;

(2)

No land disturbance permit will be issued on property owned by the same individual, corporation, etc. that is in violation of the erosion and sedimentation control regulations of this Article until that violation is corrected.

10-30-8

Actions Required Prior to Land Disturbance.

(A)

Onsite Plan and Permit. An erosion and sedimentation control plan approval and land disturbance permit issued under this Article must 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 must be kept on file at the job site.

(B)

Notice of Activity Initiation. No person shall initiate a land-disturbing activity until notifying the agency that issued the erosion and sedimentation control plan approval of the date that the land-disturbing activity will begin.

10-30-9

Effect of Permit Issuance; Lapse of Approval.

(A)

The initial land disturbance permit is valid for two calendar years except as otherwise noted in Sec. 10-20-11 Standards for Landfills. If no construction activity has begun within the two-year period, the land disturbance permit becomes null and void. If construction activity has begun, but the certificate of completion has not been issued within the two years, the land disturbance permit must be renewed.

(B)

The land disturbance permit may be renewed in one or two year increments by submitting a request for a permit extension and payment of applicable land disturbance fees. Permit renewal fees for a one-year extension will be prorated at 50 percent of the two-year renewal fee. Any change of ownership must be reflected in a revised financial responsibility form.

(C)

Projects may be phased using multiple permits. The phasing of a project under a single permit is not allowed. Each project phase requires a separate and independent plan submittal, review fees, permit approval and payment of applicable land disturbance fees.

(D)

Failure to renew the land disturbance permit, in accordance with this section, is the same as failure to submit an erosion and sedimentation control plan in accordance with this Article and may be subject to a civil penalty of up to $5,000.00 per day. Any person who is subject to civil penalty under this subsection may be subject to additional civil penalties for violation of any other provisions of this Article, or rules or orders adopted or issued pursuant to the erosion and sedimentation control regulations of this Article.

(E)

All site improvements, as shown on the approved plan, must be completed by the end of the one-year renewal period and before the certificate of completion is issued, if the land disturbance permit is not renewed for an additional one-year period as allowed by this section. Any person who fails to meet the conditions of the renewal will be subject to a civil penalty as set forth in Part 4 of this Article.

(F)

If the property associated with the approved plan is sold in whole or in part before all conditions of the approved plan are met, the land disturbance permit holder must provide notice to the new owner of conditions of the land disturbance permit and provide Wake County Environmental Services with revised financial responsibility forms.

[Amended on 11/17/2008 by OA 07-08; Amended on 10/21/2019 by OA-01-19]

10-31-1

Authority.

(A)

The County has the power to conduct investigations as it reasonably deems necessary to carry out its duties as prescribed in this Article. For this purpose, County officials may enter any property, public or private, at reasonable times for the purpose of investigating and inspecting the sites of any land-disturbing activity. No person shall refuse entry or access to any authorized representative or agent for the County who requests entry for purposes of inspections, and presents appropriate credentials, nor shall any person obstruct, hamper, or interfere with any such representatives while in the process of carrying out their official duties.

(B)

Agents and officials of the County will periodically inspect land-disturbing activities to ensure compliance with the North Carolina Sedimentation Pollution Control Act, this Article, or rules or orders adopted or issued pursuant to this Article, and to determine whether the measures required in the erosion and sedimentation control plan are effective in controlling erosion and sedimentation resulting from land-disturbing activity. Notice of right to inspect must be included in the certificate of approval of each plan.

(C)

Any land-disturbing activity will be the responsibility of the person(s) conducting the land disturbing activity, including the property owners. Failure to prevent off site sedimentation will be deemed a violation of the erosion and sedimentation control regulations of this Article.

(D)

The County may require written statements, or the filing of reports under oath, with respect to pertinent questions relating to land-disturbing activity.

(E)

If through inspections the County determines that significant erosion or 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 by the Director of Environmental Services or authorized representative to take additional protective action.

10-31-2

Certificate of Completion.

(A)

A certificate of completion must be issued when inspections indicate that:

(1)

All conditions of the approved land disturbance permit are met;

(2)

All soil disturbing activity is completed and exposed soils have been stabilized with a vegetative cover with a density of at least 80 percent or covered with a structural stabilization method. Permanent perennial vegetation may include the use of sod, shrubs, and ground cover plants mixed with mulching, aggregate or other landscaping techniques. Structural methods include concrete, retaining wall or other stabilization techniques;

(3)

All proposed roads, utilities, permanent erosion control devices, and other infrastructure has been installed according to approved plans;

(4)

All requirements of the approved stormwater plan are met; and

(5)

All temporary sediment control devices required by the approved erosion and sedimentation control plan are removed or are converted to permanent stormwater devices pursuant to an approved stormwater plan.

(B)

For approved plans involving a proposed public road dedication:

(1)

Once a certificate of completion is issued and a petition for North Carolina Department of Transportation acceptance is submitted to the Wake County Department of Environmental Services, notification must be mailed to the North Carolina Division of Highways District 1 Office; and

(2)

The notification must state that the project has been issued a certificate of completion and must describe the project in detail with publicly dedicated streets described by name and approximate length.

[Amended on 10/21/2019 by OA-01-19]

10-32-1

Local Appeal of Plan Disapproval or Modification.

(A)

Authority. If any proposed erosion and sedimentation control plan is disapproved or modified by the County, the person submitting the erosion and sedimentation control plan is entitled to a public hearing before the Director of Environmental Services.

(B)

Filing. The person who submitted the erosion and sedimentation control plan must submit a written request for a hearing within 15 days after receipt of the written notice of the disapproval or modification.

(C)

Hearing.

(1)

A hearing before the Director of Environmental Services must be conducted within 30 days after receipt of the request.

(2)

At least seven days prior to the hearing, the Director of Environmental Services must publish a notice of the hearing, at least once, in a newspaper of general circulation in the County.

(3)

The Director of Environmental Services must render a decision in writing within seven days of the public hearing.

(D)

Notice of Decision.

(1)

In the event that the appeal is not granted, the Director of Environmental Services 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 Environmental Services 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 that the request was disapproved.

(E)

Subsequent Appeals. If the Director of Environmental Services 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).

10-32-2

Direct Appeal to State Agency. If any proposed erosion and sedimentation control plan is disapproved, the applicant may appeal the Director of Environmental Service's decision directly to the North Carolina Sedimentation Control Commission.

[Amended on 10/21/2019 by OA-01-19]

Unless lawfully exempted, the following actions constitute a violation of this Article and will be deemed in violation of this Article and subject to the enforcement and penalty provisions of this Article and Article 20 of the UDO:

10-40-1

To engage in land-disturbing activity without filing an erosion and sedimentation control plan in accordance with the regulations of this Article;

10-40-2

To conduct a land-disturbing activity except in accordance with provisions of an approved plan and the land disturbance permit requirements of this Article;

10-40-3

To fail to protect against off-site sedimentation damage when conducting any land-disturbing activity;

10-40-4

To leave dirt, mud or other material on any travel way in a manner that is determined to be a hazard to public safety or deemed detrimental to the waters of the State;

10-40-5

To violate or continue to violate any other provisions of this Article, the North Carolina Sedimentation Pollution Control Act, or rules or orders adopted pursuant to this Article.

[Amended on 10/21/2019 by OA-01-19]

10-41-1

If the Director of Environmental Services determines that a person conducting a land-disturbing activity has violated this Article, a notice of violation shall be served upon that person. The notice may be served by any means authorized under G.S. 1A-1, Rule 4. The notice must:

(A)

Specify a date by which the person must come into compliance with the applicable standards; and

(B)

Inform the person of the actions that need to be taken to be brought into compliance.

10-41-2

Any person who fails to comply within the time specified is subject to additional civil and criminal penalties for a continuing violation as provided in G.S. 113A-64 and this ordinance.

[Amended on 10/21/2019 by OA-01-19]

10-42-1

Maximum Penalty. Any person who commits a violation according to Sec. 10-40 is subject to a maximum civil penalty of up to $5,000.00 per violation per day. A civil penalty may be assessed from the date of the violation. Each day of a continuing violation constitutes a separate violation.

10-42-2

Civil Penalty Assessment Factors. The Director of Environmental Services is authorized to assess the penalty. Fines will be determined by considering the following:

(A)

The degree and extent of harm caused by the violation;

(B)

The cost of rectifying the damage;

(C)

The money saved by the violator by non-compliance;

(D)

Whether the violation was willful; and

(E)

The prior record of the violator.

10-42-3

Notice of Civil Penalty Assessment.

(A)

The governing body of the County must provide notice of the civil penalty amount and the basis for assessment to the person assessed. The notice of assessment must be served by any means authorized under G.S. 1A-1, Rule 4; and

(B)

The notice must direct the violator to either pay the assessment, appeal the assessment within 30 days after receipt of the notice of assessment, or request a remission of the penalty within 60 days after the receipt of the notice of assessment.

10-42-4

Appeal of Civil Penalties.

(A)

Local Appeal. The person conducting the land-disturbing activity may appeal the assessment of civil penalties to the Director of Environmental Services within 30 days of receipt of the notice of assessment. The Director of Environmental Services must consider any and all extenuating or mitigating circumstances in determining whether to uphold, reduce, or waive the civil penalty.

(B)

State Remission of Civil Penalties. A request for remission of a civil penalty imposed under G.S. 113A-64 may be filed with the Commission within 60 days of receipt of the notice of assessment. Any such remission request must comply in all respects with the requirements set forth in G.S. 113A-64.2, including the requirement that any such remission request must be accompanied by a waiver of the right to a contested case hearing pursuant to Chapter 150B of the General Statutes, and a stipulation of the facts on which the assessment was based.

10-42-5

Demand for Payment.

(A)

The Director of Environmental Services must make a written demand, by registered or certified mail, return receipt requested, or other means provided in GS 1A-1, Rule 4 for payment upon the person in violation, and must set forth, in detail, a description of the violation for which the penalty has been imposed.

(B)

If the payment is not received or equitable settlement reached within 30 days after demand for payment is made, the matter must be referred to the County Attorney for institution of a civil action in the name of the County, in the appropriate division of the General Court of Justice in Wake County for recovery of the penalty.

10-42-6

Payment of Penalties. Civil penalties collected pursuant to this ordinance must be credited to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.

[Amended on 10/21/2019 by OA-01-19]

If the County, upon site inspection determines that due care for plan implementation is inadequate to meet the requirements of this Article the County may issue a stop work order in accordance with the decision-making criteria of Sec. 10-30-4. Upon the issuance of a stop work order, the Director of Environmental Services must require that all provisions of this Article be met.

[Amended on 10/21/2019 by OA-01-19]

Any person or companies determined in violation of Sec. 10-23 will be charged for road cleaning at the rate of $300.00 per hour for the first hour or part of hour and $200.00 per hour or part of hour thereafter until work is competed as specified by the County's authorized agent.

Any person who knowingly or willfully violates or continues to violate any provision of this Article according to Sec. 10-40 is guilty of a class 2 misdemeanor which may include a fine not to exceed $5,000.00 per violation per day as provided in G.S. § 113A-64.

[Amended on 10/21/2019 by OA-01-19]

10-46-1

Initiation.

(A)

Whenever the Director of Environmental Services has reasonable cause to believe that a person is violating or threatening to violate this Article, a rule or order adopted or issued pursuant to this Article, or any term, condition, or provision of an approved erosion and sedimentation control plan, the Director may institute a civil action in the name of the County for injunctive relief to restrain the violation or threatened violation.

(B)

The action must be brought in the Superior Court of Wake County, either before or after the institution of any other action or proceeding authorized by the erosion and sedimentation control regulations of this Article.

10-46-2

Court Action.

(A)

Upon determination by a court that an alleged violation is occurring or is threatened, the court must enter orders or judgments as are necessary to abate the violation, to ensure that restoration is performed, or to prevent the threatened violation.

(B)

The institution of an action for injunctive relief under this section does not relieve any party to the proceeding from any civil or criminal penalty prescribed for violations of the erosion and sedimentation control regulations of this Article.

[Amended on 10/21/2019 by OA-01-19]

10-47-1

Any person injured by a violation of this Article, or of any rule, regulation, or order duly adopted by the Wake County Board of Commissioners, or by the initiation or continuation of a land-disturbing activity for which an erosion and sedimentation control plan is required other than in accordance with the terms, conditions, and provisions of an approved plan, may bring a civil action against the person alleged to be in violation. The action may seek:

(A)

Injunctive relief;

(B)

An order enforcing the erosion and sedimentation control regulations of this Article or rule, regulation, order or erosion and sedimentation control plan violated;

(C)

Damages caused by the violation;

(D)

Both damages and injunctive relief; or

(E)

Both damages and enforcement order.

10-47-2

Civil action under this section may be brought in the Superior Court of Wake County. The court, in issuing any final order in any action brought pursuant to this section may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever it determines that such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security with the amount of the bond or security to be determined by the court.

10-47-3

Nothing in this section restricts any right that any person (or class of persons) may have under any statute or common law to seek injunctive or other relief.

[Amended on 10/21/2019 by OA-01-19]

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 this Article and G.S. 113A-57(3), to restore the affected waters and land 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 ordinance.

[Amended 11/19/2007 by OA 02-07; 10/21/2019 by OA-01-19]