North Carolina Gen. Stat. § 113A, Article 4
Sedimentation Pollution Control Act of 1973
§ 113A-50. Short title.
§ 113A-51. Preamble.
§ 113A-52. Definitions.
§ 113A-52.1. Forest Practice Guidelines.
§ 113A-52.01. Applicability of this Article.
§ 113A-53. [Repealed]
§ 113A-54. Powers and duties of the Commission.
§ 113A-54.1. Approval of erosion control plans.
§ 113A-54.2. Approval Fees.
§ 113A-55. Authority of the Secretary.
§ 113A-56. Jurisdiction of the Commission.
§ 113A-57. Mandatory standards for land-disturbing
activity.
§ 113A-58. Enforcement authority of the Commission.
§ 113A-59. Educational activities.
§ 113A-60. Local erosion control programs.
§ 113A-61. Local approval of erosion control plans.
§ 113A-61.1. Inspection of land-disturbing activity;
notice of violation.
§ 113A-62. Cooperation with the United States.
§ 113A-63. Financial and other assistance.
§ 113A-64. Penalties.
§ 113A-64.1. Restoration of areas affected by
failure to comply.
§ 113A-65. Injunctive relief.
§ 113A-65.1. Stop-work orders.
§ 113A-66. Civil relief.
§ 113A-50. Short title.
This Article shall be known as and may be cited as the
"Sedimentation Pollution Control Act of 1973." (1973, c. 392, s.
1.)
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§ 113A-51. Preamble.
The sedimentation of streams, lakes and other waters of this
State constitutes a major pollution problem. Sedimentation occurs
from the erosion or depositing of soil and other materials into
the waters, principally from construction sites and road
maintenance. The continued development of this State will result
in an intensification of pollution through sedimentation unless
timely and appropriate action is taken. Control of erosion and
sedimentation is deemed vital to the public interest and
necessary to the public health and welfare, and expenditures of
funds for erosion and sedimentation control programs shall be
deemed for a public purpose. It is the purpose of this Article to
provide for the creation, administration, and enforcement of a
program and for the adoption of minimal mandatory standards which
will permit development of this State to continue with the least
detrimental effects from pollution by sedimentation. In
recognition of the desirability of early coordination of
sedimentation control planning, it is the intention of the
General Assembly that preconstruction conferences be held among
the affected parties, subject to the availability of staff.
(1973, c. 392, s. 2; 1975, c. 647, s. 3.)
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§ 113A-52. Definitions.
As used in this Article, unless the context otherwise
requires:
(1) Repealed by Session Laws 1973, c. 1417, s. 1.
(1a) "Affiliate" has the same meaning as in 17 Code
of Federal Regulations § 240.12(b)-2 (1 June 1993 Edition), which
defines "affiliate" as a person that directly, or indirectly
through one or more intermediaries, controls, is controlled by,
or is under common control of another person.
(2) "Commission" means the North Carolina
Sedimentation Control Commission.
(3) "Department" means the North Carolina
Department of Environment and Natural Resources.
(4) "District" means any Soil and Water
Conservation District created pursuant to Chapter 139, North
Carolina General Statutes.
(5) "Erosion" means the wearing away of land
surface by the action of wind, water, gravity, or any combination
thereof.
(6) "Land-disturbing activity" means any use of the
land by any person in residential, industrial, educational,
institutional or commercial development, highway and road
construction and maintenance that results in a change in the
natural cover or topography and that may cause or contribute to
sedimentation.
(7) "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 this
Article.
(7a) "Parent" has the same meaning as in 17 Code of
Federal Regulations § 240.12(b)-2 (1 June 1993 Edition), which
defines "parent" as an affiliate that directly, or indirectly
through one or more intermediaries, controls another person.
(8) "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.
(9) "Secretary" means the Secretary of Environment
and Natural Resources.
(10) "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.
(10a) "Subsidiary" has the same meaning as in 17
Code of Federal Regulations § 240.12(b)-2 (1 June 1993 Edition),
which defines "subsidiary" as an affiliate that is directly, or
indirectly through one or more intermediaries, controlled by
another person.
(10b) "Tract" means all contiguous land and bodies
of water being disturbed or to be disturbed as a unit, regardless
of ownership.
(11) "Working days" means days exclusive of
Saturday and Sunday during which weather conditions or soil
conditions permit land-disturbing activity to be undertaken.
(1973, c. 392, s. 3; c. 1417, s. 1; 1975, c. 647, s. 1; 1977, c.
771, s. 4; 1989, c. 179, s. 1; c. 727, s. 218(60); 1989 (Reg.
Sess., 1990), c. 1004, s. 19(b); 1991, c. 275, s. 1; 1993 (Reg.
Sess., 1994), c. 776, s. 1; 1997-443, s. 11A.119(a).)
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§ 113A-52.1. Forest Practice Guidelines.
(a) The Department shall adopt Forest Practice Guidelines
Related to Water Quality (best management practices). The
adoption of Forest Practices Guidelines Related to Water Quality
under this section is subject to the provisions of Chapter 150B
of the General Statutes.
(b) If land-disturbing activity undertaken on forestland
for the production and harvesting of timber and timber products
is not conducted in accordance with Forest Practice Guidelines
Related to Water Quality, the provisions of this Article shall
apply to such activity and any related land-disturbing activity
on the tract.
(c) The Secretary shall establish a Technical Advisory
Committee to assist in the development and periodic review of
Forest Practice Guidelines Related to Water Quality. The
Technical Advisory Committee shall consist of one member from the
forest products industry, one member who is a consulting
forester, one member who is a private landowner knowledgeable in
forestry, one member from the United States Forest Service, one
member from the academic community who is knowledgeable in
forestry, one member who is knowledgeable in erosion and
sedimentation control, one member who is knowledgeable in
wildlife management, one member who is knowledgeable in marine
fisheries management, one member who is knowledgeable in water
quality, and one member from the conservation community. (1989,
c. 179, s. 2.)
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§ 113A-52.01. Applicability of this
Article.
This Article shall not apply to the following land-
disturbing activities:
(1) Activities, including the breeding and grazing
of livestock, undertaken on agricultural land for the production
of plants and animals useful to man, including, but not limited
to:
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.
(2) Activities undertaken on forestland for the
production and harvesting of timber and timber products and
conducted in accordance with best management practices set out in
Forest Practice Guidelines Related to Water Quality, as adopted
by the Department.
(3) Activities for which a permit is required under
the Mining Act of 1971, Article 7 of Chapter 74 of the General
Statutes.
(4) For the duration of an emergency, activities
essential to protect human life. (1993 (Reg. Sess., 1994), c.
776, s. 2; 1997-84, s. 1.)
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§ 113A-53. Repealed by Session Laws 1973, c. 1262, s. 41.
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§ 113A-54. Powers and duties of the
Commission.
(a) The Commission shall, in cooperation with the Secretary
of Transportation and other appropriate State and federal
agencies, develop, promulgate, publicize, and administer a
comprehensive State erosion and sedimentation control program.
(b) The Commission shall develop and adopt and shall revise
as necessary from time to time, rules and regulations for the
control of erosion and sedimentation resulting from land-
disturbing activities. The Commission shall adopt or revise its
rules and regulations in accordance with Chapter 150B of the
General Statutes.
(c) The rules and regulations adopted pursuant to G.S. 113A-
54(b) for carrying out the erosion and sedimentation control
program shall:
(1) Be based upon relevant physical and
developmental information concerning the watershed and drainage
basins of the State, including, but not limited to, data relating
to land use, soils, hydrology, geology, grading, ground cover,
size of land area being disturbed, proximate water bodies and
their characteristics, transportation, and public facilities and
services;
(2) Include such survey of lands and waters as may
be deemed appropriate by the Commission or required by any
applicable laws to identify those areas, including
multijurisdictional and watershed areas, with critical erosion
and sedimentation problems; and
(3) Contain conservation standards for various
types of soils and land uses, which standards shall include
criteria and alternative techniques and methods for the control
of erosion and sediment resulting from land-disturbing
activities.
(d) In implementing the erosion and sedimentation control
program, the Commission shall:
(1) Assist and encourage local governments in
developing erosion and sediment control programs and, as a part
of this assistance, the Commission shall develop a model local
erosion control ordinance. The Commission shall approve, approve
as modified, or disapprove local programs submitted to it
pursuant to G.S. 113A-60.
(2) Assist and encourage other State agencies in
developing erosion and sedimentation control programs to be
administered in their jurisdictions. The Commission shall
approve, approve as modified, or disapprove programs submitted
pursuant to G.S. 113A-56 and from time to time shall review these
programs for compliance with rules adopted by the Commission and
for adequate enforcement.
(3) Develop recommended methods of control of
sedimentation and prepare and make available for distribution
publications and other materials dealing with sedimentation
control techniques appropriate for use by persons engaged in land-
disturbing activities, general educational materials on erosion
and sedimentation control, and instructional materials for
persons involved in the enforcement of this Article and erosion
control rules, ordinances, regulations, and plans.
(4) Require submission of erosion control plans by
those responsible for initiating land-disturbing activities for
approval prior to commencement of the activities.
(e) To assist it in developing the erosion and
sedimentation control program required by this Article, the
Commission is authorized to appoint an advisory committee
consisting of technical experts in the fields of water resources,
soil science, engineering, and landscape architecture.
(f) Repealed by Session Laws 1987, c. 827, s. 10, effective
August 13, 1987. (1973, c. 392, s. 5, c. 1331, s. 3, c. 1417, s.
6; 1975, 2nd Sess., c. 983, s. 74; 1977, c. 464, s. 35; 1979, c.
922, s. 2; 1983 (Reg. Sess., 1984), c. 1014, ss. 1, 2; 1987, c.
827, s. 10; 1987 (Reg. Sess., 1988), c. 1000, s. 3; 1989, c. 676,
s. 1; 1993 (Reg. Sess., 1994), c. 776, s. 3.)
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§ 113A-54.1. Approval of erosion control plans.
(a) A draft erosion control plan must contain the
applicant's address and, if the applicant is not a resident of
North Carolina, designate a North Carolina agent for the purpose
of receiving notice from the Commission or the Secretary of
compliance or noncompliance with the plan, this Article, or any
rules adopted pursuant to this Article. The Commission shall
approve, approve with modifications, or disapprove a draft
erosion control plan for those land-disturbing activities for
which prior plan approval is required within 30 days of receipt.
The Commission shall condition approval of a draft erosion
control plan upon the applicant's compliance with federal and
State water quality laws, regulations, and rules. Failure to
approve, approve with modifications, or disapprove a completed
draft erosion control plan within 30 days of receipt shall be
deemed approval of the plan. If the Commission disapproves a
draft erosion control plan or a revised erosion control plan, it
must state in writing the specific reasons that the plan was
disapproved. Failure to approve, approve with modifications, or
disapprove a revised erosion control plan within 15 days of
receipt shall be deemed approval of the plan. The Commission may
establish an expiration date for erosion control plans approved
under this Article.
(b) If, following commencement of a land-disturbing
activity pursuant to an approved erosion control plan, the
Commission determines that the plan is inadequate to meet the
requirements of this Article, the Commission may require any
revision of the plan that is necessary to comply with this
Article. Failure to approve, approve with modifications, or
disapprove a revised erosion control plan within 15 days of
receipt shall be deemed approval of the plan.
(c) The Commission shall disapprove an erosion control plan
if implementation of the plan would result in a violation of
rules adopted by the Environmental Management Commission to
protect riparian buffers along surface waters. The Director of
the Division of Land Resources may disapprove an erosion control
plan upon finding that an applicant or a parent, subsidiary, or
other affiliate of the applicant:
(1) Is conducting or has conducted land-disturbing
activity without an approved plan, or has received notice of
violation of a plan previously approved by the Commission or a
local government pursuant to this Article and has not complied
with the notice within the time specified in the notice;
(2) Has failed to pay a civil penalty assessed
pursuant to this Article or a local ordinance adopted pursuant to
this Article 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 this Article; or
(4) Has failed to substantially comply with State
rules or local ordinances and regulations adopted pursuant to
this Article.
(d) In the event that an erosion control plan is
disapproved by the Director pursuant to subsection (c) of this
section, the Director shall state in writing the specific reasons
that the plan was disapproved. The applicant may appeal the
Director's disapproval of the plan to the Commission. For
purposes of this subsection and subsection (c) of this section,
an applicant's record may be considered for only the two years
prior to the application date. (1989, c. 676, s. 2; 1993 (Reg.
Sess., 1994), c. 776, s. 4; 1998-221, s. 1.11(a); 1999-379, s.
1.)
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§ 113A-54.2. Approval Fees.
(a) The Commission may establish a fee schedule for the
review and approval of erosion control plans under this Article.
In establishing the fee schedule, the Commission shall consider
the administrative and personnel costs incurred by the Department
for reviewing the plans and for related compliance activities. An
application fee may not exceed fifty dollars ($50.00) per acre of
disturbed land shown on an erosion control plan or of land
actually disturbed during the life of the project.
(b) The Sedimentation Account is established as a
nonreverting account within the Department. Fees collected under
this section shall be credited to the Account and shall be
applied to the costs of administering this Article.
(c) Repealed by Session Laws 1991 (Reg. Sess., 1992), c.
1039, s. 3.
(d) This section may not limit the existing authority of
local programs approved pursuant to this Article to assess fees
for the approval of erosion control plans. (1989 (Reg. Sess.,
1990), c. 906, s. 1; 1991 (Reg. Sess., 1992), c. 1039, s. 3; 1993
(Reg. Sess., 1994), c. 776, s. 5; 1999-379, s. 5.)
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§ 113A-55. Authority of the Secretary.
The sedimentation control program developed by the
Commission shall be administered by the Secretary under the
direction of the Commission. To this end the Secretary shall
employ the necessary clerical, technical, and administrative
personnel, and assign tasks to the various divisions of the
Department for the purpose of implementing this Article. The
Secretary may bring enforcement actions pursuant to G.S. 113A-64
and G.S. 113A-65. The Secretary shall make final agency decisions
in contested cases that arise from civil penalty assessments
pursuant to G.S. 113A-64. (1973, c. 392, s. 6, c. 1417, s. 3;
1993 (Reg. Sess., 1994), c. 776, s. 6.)
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§ 113A-56. Jurisdiction of the Commission.
(a) The Commission shall have jurisdiction, to the
exclusion of local governments, to adopt rules concerning
land-disturbing activities that are:
(1) Conducted by the State;
(2) Conducted by the United States;
(3) Conducted by persons having the power of
eminent domain;
(4) Conducted by local governments; or
(5) Funded in whole or in part by the State or the
United States.
(b)The Commission may delegate the jurisdiction conferred
by G.S. 113A-56(a), in whole or in part, to any other State
agency that has submitted an erosion control program to be
administered by it, if such program has been approved by the
Commission as being in conformity with the general State program.
(c)The Commission shall have concurrent jurisdiction with
local governments over all other land-disturbing activities.
(1973, c. 392, s. 7; c. 1417, s. 4; 1987, c. 827, s. 130; 1987
(Reg. Sess., 1988), c. 1000, s. 4.)
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§ 113A-57. Mandatory standards for land-disturbing
activity.
No land-disturbing activity subject to this Article shall be
undertaken except in accordance with the following mandatory
requirements:
(1) No land-disturbing activity during periods of
construction or improvement to land shall be permitted in
proximity to a lake or natural watercourse unless a buffer zone
is provided along the margin of the watercourse of sufficient
width to confine visible siltation within the twenty-five percent
(25%) of the buffer zone nearest the land-disturbing activity.
Waters that have been classified as trout waters by the
Environmental Management Commission shall have an undisturbed
buffer zone 25 feet wide or of sufficient width to confine
visible siltation within the twenty-five percent (25%) of the
buffer zone nearest the land-disturbing activity, whichever is
greater. Provided, however, that the Sedimentation 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. 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) 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 15 working days or 30
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.
(3) Whenever land-disturbing activity is undertaken
on a tract comprising more than one acre, if more than one acre
is uncovered, the person conducting the land-disturbing activity
shall install such sedimentation and erosion control devices and
practices as 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
within a time period to be specified by rule of the Commission.
(4) No person shall initiate any land-disturbing
activity on a tract if more than one acre is to be uncovered
unless, 30 or more days prior to initiating the activity, an
erosion and sedimentation control plan for such activity is filed
with the agency having jurisdiction. The agency having
jurisdiction shall forward to the Director of the Division of
Water Quality 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. (1973, c. 392, s. 8; c. 1417, s. 5; 1975, c.
647, s. 2; 1979, c. 564; 1983 (Reg. Sess., 1984), c. 1014, s. 3;
1987, c. 827, s. 131; 1989, c. 676, s. 3; 1991, c. 275, s. 2;
1998-99, s. 1; 1999-379, s. 2.)
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§ 113A-58. Enforcement authority of the Commission.
In implementing the provisions of this Article the
Commission is authorized and directed to:
(1)Inspect or cause to be inspected the sites of
land-disturbing activities to determine whether applicable laws,
regulations or erosion control plans are being complied with;
(2) Make requests, or delegate to the Secretary authority to
make requests, of the Attorney General or solicitors for
prosecutions of violations of this Article. (1973, c. 392, s. 9.)
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§ 113A-59. Educational activities.
The Commission in conjunction with the soil and water
conservation districts, the North Carolina Agricultural Extension
Service, and other appropriate State and federal agencies shall
conduct educational programs in erosion and sedimentation
control, such programs to be directed towards State and local
governmental officials, persons engaged in land-disturbing
activities, and interested citizen groups. (1973, c. 392, s. 10.)
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§ 113A-60. Local erosion control programs.
(a) Any local government may submit to the Commission for
its approval an erosion and sediment control program for its
jurisdiction, and to this end local governments are authorized to
adopt ordinances and regulations necessary to establish and
enforce erosion and sediment control programs. Local governments
are authorized to create or designate agencies or subdivisions of
local government to administer and enforce the programs. An
ordinance adopted by a local government shall at least meet and
may exceed the minimum requirements of this Article and the rules
adopted pursuant to this Article. Two or more units of local
government are authorized to establish a joint program and to
enter into any agreements that are necessary for the proper
administration and enforcement of the program. The resolutions
establishing any joint program must be duly recorded in the
minutes of the governing body of each unit of local government
participating in the program, and a certified copy of each
resolution must be filed with the Commission.
(b) The Commission shall review each program submitted and
within 90 days of receipt thereof shall notify the local
government submitting the program that it has been approved,
approved with modifications, or disapproved. The Commission shall
only approve a program upon determining that its standards equal
or exceed those of this Article and rules adopted pursuant to
this Article.
(c) If the Commission determines that any local government
is failing to administer or enforce an approved erosion and
sediment control program, it shall notify the local government in
writing and shall specify the deficiencies of administration and
enforcement. If the local government has not taken corrective
action within 30 days of receipt of notification from the
Commission, the Commission shall assume enforcement of the
program until such time as the local government indicates its
willingness and ability to resume administration and enforcement
of the program. (1973, c. 392, s. 11; 1993 (Reg. Sess., 1994), c.
776, s. 7.)
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§ 113A-61. Local approval of erosion control plans.
(a) For those land-disturbing activities for which prior
approval of an erosion control plan is required, the Commission
may require that a local government that administers an erosion
and sediment control program approved under G.S. 113A-60 require
the applicant to submit a copy of the erosion control plan to the
appropriate soil and water conservation district or districts at
the same time the applicant submits the erosion control plan to
the local government for approval. The soil and water
conservation district or districts shall review the plan and
submit any comments and recommendations to the local government
within 20 days after the soil and water conservation district
received the erosion control plan or within any shorter period of
time as may be agreed upon by the soil and water conservation
district and the local government. Failure of a soil and water
conservation district to submit comments and recommendations
within 20 days or within agreed upon shorter period of time shall
not delay final action on the proposed plan by the local
government.
(b) Local governments shall review each erosion control
plan submitted to them and within 30 days of receipt thereof
shall notify the person submitting the plan that it has been
approved, approved with modifications, or disapproved. A local
government shall only approve a plan upon determining that it
complies with all applicable State and local regulations for
erosion and sediment control.
(b1) A local government shall condition approval of a draft
erosion control plan upon the applicant's compliance with federal
and State water quality laws, regulations, and rules. A local
government shall disapprove an erosion control plan if
implementation of the plan would result in a violation of rules
adopted by the Environmental Management Commission to protect
riparian buffers along surface waters. A local government may
disapprove an erosion control plan upon finding that an applicant
or a parent, subsidiary, or other affiliate of the applicant:
(1) Is conducting or has conducted land-disturbing
activity without an approved plan, or has received notice of
violation of a plan previously approved by the Commission or a
local government pursuant to this Article and has not complied
with the notice within the time specified in the notice;
(2) Has failed to pay a civil penalty assessed
pursuant to this Article or a local ordinance adopted pursuant to
this Article 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 this Article; or
(4) Has failed to substantially comply with State
rules or local ordinances and regulations adopted pursuant to
this Article.
(b2) In the event that an erosion control plan is
disapproved by a local government pursuant to subsection (b1) of
this section, the local government shall so notify the Director
of the Division of Land Resources within 10 days of such
disapproval. The local government shall advise the applicant and
the Director in writing as to the specific reasons that the plan
was disapproved. Notwithstanding the provisions of subsection (c)
of this section, the applicant may appeal the local government's
disapproval of the plan directly to the Commission. For purposes
of this subsection and subsection (b1) of this section, an
applicant's record may be considered for only the two years prior
to the application date.
(c) The disapproval or modification of any proposed erosion
control plan by a local government shall entitle the person
submitting the plan to a public hearing if such person submits
written demand for a hearing within 15 days after receipt of
written notice of the disapproval or modification. The hearings
shall be conducted pursuant to procedures adopted by the local
government. If the local government upholds the disapproval or
modification of a proposed erosion control plan following the
public hearing, the person submitting the erosion control plan
shall be entitled to appeal the local government's action
disapproving or modifying the plan to the Commission. The
Commission, by regulation, shall direct the Secretary to appoint
such employees of the Department as may be necessary to hear
appeals from the disapproval or modification of erosion control
plans by local governments. In addition to providing for the
appeal of local government decisions disapproving or modifying
erosion control plans to designated employees of the Department,
the Commission shall designate an erosion control plan review
committee consisting of three members of the Commission. The
person submitting the erosion control plan may appeal the
decision of an employee of the Department who has heard an appeal
of a local government action disapproving or modifying an erosion
control plan to the erosion plan review committee of the
Commission. Judicial review of the final action of the erosion
plan review committee of the Commission may be had in the
superior court of the county in which the local government is
situated.
(d) Repealed by Session Laws 1989, c. 676, s. 4. (1973, c.
392, s. 12; 1979, c. 922, s. 1; 1989, c. 676, s. 4; 1993 (Reg.
Sess., 1994), c. 776, ss. 8, 9; 1998-221, s. 1.11(b); 1999-379,
s. 3.)
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§ 113A-61.1. Inspection of land-disturbing activity;
notice of violation.
(a) The Commission, a local government that administers an
erosion and sediment control program approved under G.S. 113A-60,
or other approving authority shall provide for inspection of land-
disturbing activities to ensure compliance with this Article and
to determine whether the measures required in an erosion control
plan are effective in controlling erosion and sediment resulting
from the land-disturbing activity. Notice of this right of
inspection shall be included in the certificate of approval of
each erosion control plan.
(b) No person shall willfully resist, delay, or obstruct an
authorized representative of the Commission, an authorized
representative of a local government, or an employee or an agent
of the Department while the representative, employee, or agent is
inspecting or attempting to inspect a land-disturbing activity
under this section.
(c) If the Secretary, a local government that administers
an erosion and sediment control program approved under G.S. 113A-
60, or other approving authority determines that the person
engaged in the land-disturbing activity has failed to comply with
this Article, the Secretary, local government, or other approving
authority shall immediately serve a notice of violation upon that
person. The notice may be served by any means authorized under
G.S. 1A-1, Rule 4. A notice of violation shall specify a date by
which the person must comply with this Article and inform the
person of the actions that need to be taken to comply with this
Article. 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. (1989, c. 676,
s. 5; 1993 (Reg. Sess., 1994), c. 776, s. 10; 1999-379, s. 6.)
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§ 113A-62. Cooperation with the United States.
The Commission is authorized to cooperate and enter into
agreements with any agency of the United States government in
connection with plans for erosion control with respect to land-
disturbing activities on lands that are under the jurisdiction of
such agency. (1973, c. 392, s. 13.)
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§ 113A-63. Financial and other assistance.
The Commission and local governments are authorized to
receive from federal, State, and other public and private sources
financial, technical, and other assistance for use in
accomplishing the purposes of this Article. (1973, c. 392, s.
14.)
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§ 113A-64. Penalties.
(a) Civil Penalties. --
(1) Any person who violates any of the provisions
of this Article or any ordinance, rule, or order adopted or
issued pursuant to this Article by the Commission or by a local
government, or who initiates or continues a land-disturbing
activity for which an erosion control plan is required except in
accordance with the terms, conditions, and provisions of an
approved plan, is subject to a civil penalty. The maximum civil
penalty for a violation is five thousand dollars ($5,000). A
civil penalty may be assessed from the date of the violation.
Each day of a continuing violation shall constitute a separate
violation.
(2) The Secretary or a local government that
administers an erosion and sediment control program approved
under G.S. 113A-60 shall determine the amount of the civil
penalty and shall notify the person who is assessed the civil
penalty of the amount of the penalty and the reason for assessing
the penalty. The notice of assessment shall be served by any
means authorized under G.S. 1A-1, Rule 4, and shall direct the
violator to either pay the assessment or contest the assessment
within 30 days by filing a petition for a contested case under
Article 3 of Chapter 150B of the General Statutes. If a violator
does not pay a civil penalty assessed by the Secretary within 30
days after it is due, the Department shall request the Attorney
General to institute a civil action to recover the amount of the
assessment. If a violator does not pay a civil penalty assessed
by a local government within 30 days after it is due, the local
government may institute a civil action to recover the amount of
the assessment. The civil action may be brought in the superior
court of any county where the violation occurred or the
violator's residence or principal place of business is located. A
civil action must be filed within three years of the date the
assessment was due. An assessment that is not contested is due
when the violator is served with a notice of assessment. An
assessment that is contested is due at the conclusion of the
administrative and judicial review of the assessment.
(3) In determining the amount of the penalty, the
Secretary shall consider the degree and extent of harm caused by
the violation, the cost of rectifying the damage, the amount of
money the violator saved by noncompliance, whether the violation
was committed willfully and the prior record of the violator in
complying or failing to comply with this Article.
(4) Repealed by Session Laws 1993 (Reg. Sess.,
1994), c. 776, s. 11.
(5) The clear proceeds of civil penalties collected
by the Department or other State agency under this subsection
shall be remitted to the Civil Penalty and Forfeiture Fund in
accordance with G.S. 115C-457.2. Civil penalties collected by a
local government under this subsection shall be credited to the
general fund of the local government as nontax revenue.
(b) Criminal Penalties. -- Any person who knowingly or
willfully violates any provision of this Article or any
ordinance, rule, regulation, or order duly adopted or issued by
the Commission or a local government, or who knowingly or
willfully initiates or continues a land-disturbing activity for
which an erosion control plan is required, except in accordance
with the terms, conditions, and provisions of an approved plan,
shall be guilty of a Class 2 misdemeanor which may include a fine
not to exceed five thousand dollars ($5,000). (1973, c. 392, s.
15; 1977, c. 852; 1987, c. 246, s. 3; 1987 (Reg. Sess., 1988), c.
1000, s. 5; 1989, c. 676, s. 6; 1991, c. 412, s. 2; c. 725, s. 5;
1993, c. 539, s. 873; 1994, Ex. Sess., c. 24, s. 14(c); 1993
(Reg. Sess., 1994), c. 776, s. 11; 1998-215, s. 52; 1999-379, s.
4.)
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§ 113A-64.1. Restoration of areas affected by
failure to comply.
The Secretary or a local government that administers a local
erosion and sediment control program approved under G.S. 113A-60
may require a person who engaged in a land-disturbing activity
and failed to retain sediment generated by the activity, as
required by G.S. 113A-57(3), to restore the waters and land
affected by the failure so as to minimize the detrimental effects
of the resulting pollution by sedimentation. This authority is in
addition to any other civil or criminal penalty or injunctive
relief authorized under this Article. (1993 (Reg. Sess., 1994),
c. 776, s. 12.)
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§ 113A-65. Injunctive relief.
(a) Violation of State Program. -- Whenever the Secretary
has reasonable cause to believe that any person is violating or
is threatening to violate the requirements of this Article he
may, either before or after the institution of any other action
or proceeding authorized by this Article, institute a civil
action 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 or threatened
violation is occurring or about to occur, and shall be in the
name of the State upon the relation of the Secretary.
(b) Violation of Local Program. -- Whenever the governing
body of a local government having jurisdiction has reasonable
cause to believe that any person is violating or is threatening
to violate any ordinance, rule, regulation, or order adopted or
issued by the local government pursuant to this Article, or any
term, condition or provision of an erosion control plan over
which it has jurisdiction, may, either before or after the
institution of any other action or proceeding authorized by this
Article, institute a civil action in the name of the local
government 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.
(c) Abatement, etc., 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 subsections (a) or (b) of this
section shall not relieve any party to the proceeding from any
civil or criminal penalty prescribed for violations of this
Article. (1973, c. 392, s. 16; 1993 (Reg. Sess., 1994), c. 776,
s. 13.)
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§ 113A-65.1. Stop-work orders.
(a) The Secretary may issue a stop-work order if he finds
that a land-disturbing activity is being conducted in violation
of this Article or of any rule adopted or order issued pursuant
to this Article, that the violation is knowing and willful, and
that either:
(1) Off-site sedimentation has eliminated or
severely degraded a use in a lake or natural watercourse or that
such degradation is imminent.
(2) Off-site sedimentation has caused severe damage
to adjacent land or that such damage is imminent.
(3) The land-disturbing activity is being conducted
without an approved plan.
(b) The stop-work order shall be in writing and shall state
what work is to be stopped and what measures are required to
abate the violation. The order shall include a statement of the
findings made by the Secretary pursuant to subsection (a) of this
section, and shall list the conditions under which work that has
been stopped by the order may be resumed. The delivery of
equipment and materials which does not contribute to the
violation may continue while the stop-work order is in effect. A
copy of this section shall be attached to the order.
(c) The stop-work order shall be served by the sheriff of
the county in which the land-disturbing activity is being
conducted or by some other person duly authorized by law to serve
process as provided by G.S. 1A-1, Rule 4, and shall be served on
the person at the site of the land-disturbing activity who is in
operational control of the land-disturbing activity. The sheriff
or other person duly authorized by law to serve process shall
post a copy of the stop-work order in a conspicuous place at the
site of the land-disturbing activity. The Department shall also
deliver a copy of the stop-work order to any person that the
Department has reason to believe may be responsible for the
violation.
(d) The directives of a stop-work order become effective
upon service of the order. Thereafter, any person notified of the
stop-work order who violates any of the directives set out in the
order may be assessed a civil penalty as provided in G.S. 113A-
64(a). A stop-work order issued pursuant to this section may be
issued for a period not to exceed five days.
(e) The Secretary shall designate an employee of the
Department to monitor compliance with the stop-work order. The
name of the employee so designated shall be included in the stop-
work order. The employee so designated, or the Secretary, shall
rescind the stop-work order if all the violations for which the
stop-work order are issued are corrected, no other violations
have occurred, and all measures necessary to abate the violations
have been taken. The Secretary shall rescind a stop-work order
that is issued in error.
(f) The issuance of a stop-work order shall be a final
agency decision subject to judicial review in the same manner as
an order in a contested case pursuant to Article 4 of Chapter
150B of the General Statutes. The petition for judicial review
shall be filed in the superior court of the county in which the
land-disturbing activity is being conducted.
(g) As used in this section, days are computed as provided
in G.S. 1A-1, Rule 6. Except as otherwise provided, the Secretary
may delegate any power or duty under this section to the Director
of the Division of Land Resources of the Department or to any
person who has supervisory authority over the Director. The
Director may delegate any power or duty so delegated only to a
person who is designated as acting Director.
(h) The Attorney General shall file a cause of action to
abate the violations which resulted in the issuance of a stop-
work order within two days of the service of the stop-work order.
The cause of action shall include a motion for an ex parte
temporary restraining order to abate the violation and to effect
necessary remedial measures. The resident superior court judge,
or any judge assigned to hear the motion for the temporary
restraining order, shall hear and determine the motion within two
days of the filing of the complaint. The clerk of superior court
shall accept complaints filed pursuant to this section without
the payment of filing fees. Filing fees shall be paid to the
clerk of superior court within 30 days of the filing of the
complaint. (1991, c. 412, s. 1; 1998-99, s. 2.)
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§ 113A-66. Civil relief.
(a) Any person injured by a violation of this Article or any
ordinance, rule, or order duly adopted by the Secretary or a
local government, or by the initiation or continuation of a
land-disturbing activity for which an erosion 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 (including the State and
any local government). The action may seek:
(1) Injunctive relief;
(2) An order enforcing the law, rule, ordinance,
order, or erosion control plan violated; or
(3) Damages caused by the violation; or
(4) Both damages and an enforcement order.
If the amount of actual damages as found by the court or jury in
suits brought under this subsection is five thousand dollars
($5,000) or less, the plantiff shall be awarded costs of
litigation including reasonable attorneys fees and expert witness
fees.
(b) Civil actions under this section shall be brought in the
superior court of the county in which the alleged violations
occurred.
(c) 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, the amount of such bond or security to be determined by
the court.
(d) Nothing in this section shall restrict any right which
any person (or class of persons) may have under any statute or
common law to seek injunctive or other relief. (1973, c. 392, s.
17; 1987 (Reg. Sess. 1988), c. 1000, s. 6.)
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