Subpart E. Soil Erosion and Sedimentation Control

42-252. Purpose

This subpart is adopted for the purposes of: (1) regulating certain land-disturbing activity to control accelerated erosion and sedimentation in order to prevent the pollution of water and other damage to lakes, watercourses, and other public and private property by sedimentation; (2) protecting economic and ecological integrity of the County; and (3) establishing procedures through which these purposes can be fulfilled.

42-253. Scope and Exclusions
  1. Geographical Scope of Regulated Land-Disturbing Activity. This subpart shall apply to land-disturbing activity within the unincorporated areas of Henderson County and its municipalities as allowed by agreement between local governments, the extent of annexation other appropriate legal instrument or law.
  2. Exclusions from Regulated Land-Disturbing Activity. Notwithstanding the general applicability of this subpart to all land-disturbing activity, this subpart shall not apply to the following types of land-disturbing activity:
    1. 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:
      1. forage and sod crops, grain and feed crops, tobacco, cotton, and peanuts.
      2. dairy animals and dairy products.
      3. poultry and poultry products.

      4. livestock, including beef cattle, llamas, sheep swine, horses, ponies, mules, and goats.

      5. bees and apiary products.
      6. fur producing animals.

      7. mulch, ornamental plants, and other horticultural products. For purposes of this section, "mulch" means substances composed primarily of plant remains or mixtures of such substances.

    2. An activity undertaken on forestland for the production and harvesting of timber and timber products and conducted in accordance with standards defined by the Forest Practice Guidelines Related to Water Quality(Best Management Practices), as adopted by North Carolina Department of Agriculture and Consumer Services. If land-disturbing activity undertaken on forestland for the production and harvesting of timber and timber products is not conducted in accordance with standards defined by the Forest Practice Guidelines Related to Water Quality, the provisions of this subpart shall apply to such activity and any related land-disturbing activity on the tract.
    3. An activity for which a permit is required under the Mining Act of 1971, Article 7 of Chapter 74 of the General Statutes.
    4. A land-disturbing activity over which the State has exclusive regulatory jurisdiction as provided in G.S. §113A-56(a).
    5. An activity which is essential to protect human life during an emergency.

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

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

  3. Plan Approval Requirement for Land-Disturbing Activity. No Person shall undertake any land-disturbing activity subject to this subpart without first obtaining a Plan approval from the Soil Erosion and Sedimentation Control Administrator.
    1. For the purpose of the subpart, an erosion control plan shall be required for:
      1. Any land-disturbing activity which uncovers one or more acres (43,560 square feet) of land.
  4. Protection of Property. Persons conducting land-disturbing activity shall take all reasonable measures to protect all public and private property from damage caused by such activity.
  5. More Restrictive Rules Shall Apply. Whenever conflicts exist between federal, state, or local laws, ordinances, or rules, the more restrictive provision shall apply.
  6. Plan Approval Exceptions. Notwithstanding the general requirement to obtain an Erosion and Sedimentation Control Plan approval prior to undertaking land-disturbing activity, Plan approval shall not be required for land-disturbing activity that does not exceed one acre of land disturbance. No Erosion and Sedimentation Control Plan approval is required if a building permit has been obtained prior to the effective date of this subpart (October 1, 2007) and Erosion and Sedimentation Control Plan approval was not required under State rules. In determining the area, lands under one or diverse ownership being developed as a unit will be aggregated.
42-254. Mandatory Standards for Land Disturbing Activity

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

  1. Buffer Zone
    1. Standard Buffer. No land-disturbing activity during periods of construction or improvement to land shall be permitted in proximity to a lake or natural watercourse unless a buffer zone is provided along the margin of the watercourse of sufficient width to confine visible siltation within the 25 percent of the buffer zone nearest the land-disturbing activity.
      1. Projects On, Over or Under Water. This subsection shall not apply to a land-disturbing activity in connection with the construction of facilities to be located on, over, or under a lake or natural watercourse.
      2. Buffer Measurement. Unless otherwise provided, the width of a buffer zone is measured horizontally from the edge of the water to the nearest edge of the disturbed area, with the 25 percent of the strip nearer the land-disturbing activity containing natural or artificial means of confining visible siltation.
    2. Trout Buffer. 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 25 percent of the buffer zone nearest the land-disturbing activity, whichever is greater. Provided, however, that the Commission may approve plans which include land-disturbing activity along trout waters when the duration of said disturbance would be temporary and the extent of said disturbance would be minimal.
      1. Projects On, Over or Under Water. This subsection shall not apply to a land-disturbing activity in connection with the construction of facilities to be located on, over, or under a lake or natural watercourse.
      2. Trout Buffer Measurement. The 25 foot minimum width for an undisturbed buffer zone adjacent to designated trout waters shall be measured horizontally from the top of the bank to the nearest edge of the disturbed area.
      3. Limit on Land Disturbance. Where a temporary and minimal disturbance has been permitted as an exception to the trout buffer, land-disturbing activities in the buffer zone adjacent to designated trout waters shall be limited to a maximum of ten (10) percent of the total length of the buffer zone within the tract to be disturbed such that there is not more than 100 linear feet of disturbance in each 1000 linear feet of buffer zone. Larger areas may be disturbed with the written approval of the Director.
      4. Limit on Temperature Fluctuations. No land-disturbing activity shall be undertaken within a buffer zone adjacent to designated trout waters that will cause adverse temperature fluctuations in the trout waters, as set forth in 15 NCAC 2B.0211 “Fresh Surface Water Classification and Standards.”
  2. Graded Slopes and Fills. The angle for graded slopes and fills shall be no greater than the angle that can be retained by vegetative cover or other adequate erosion control devices or structures. In any event, slopes left exposed will, within 21 calendar days of completion of any phase of grading, be planted or otherwise provided with temporary or permanent ground cover, devices, or structures sufficient to restrain erosion. The angle for graded slopes and fills must be demonstrated to be stable. Stable is the condition where the soil remains in its original configuration, with or without mechanical constraints.
  3. Fill Material. Materials being used as fill shall be consistent with those described in 15A NCAC 13B .0562 unless the site is permitted by the Departments Division of Waste Management to operate as a landfill. Not all materials described in Section .0562 may be suitable to meet geotechnical considerations of the fill activity and should be evaluated accordingly. 
  4. Ground Cover. Whenever land-disturbing activity that will disturb more than one acre is undertaken on a tract, the Person conducting the land-disturbing activity shall install erosion and sedimentation control devices and practices that are sufficient to retain the sediment generated by the land-disturbing activity within the boundaries of the tract during construction upon and development of said tract, and shall plant or otherwise provide a permanent ground cover sufficient to restrain erosion after completion of construction or development. Except as provided in §42-257 (Design and Performance Standards) B(5) of this subpart, provisions for a ground cover sufficient to restrain erosion must be accomplished within 90 calendar days following completion of construction or development.
  5. Prior Plan Approval. No Person shall initiate any land-disturbing activity that will disturb more than one acre on a tract unless, 30 or more days prior to initiating the activity, a Plan for the activity is filed with and approved by the Henderson County Soil Erosion and Sedimentation Control Administrator. The County 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.
  6. The land disturbing activity shall be conducted in accordance with the approved erosion and sedimentation control plan.

 

42-255. Erosion and Sedimentation Control Plans
  1. Pre-Submittal Conference. A pre-submittal conference can be requested by a person or an agent of that party conducting land-disturbing activity. At the pre-submittal, the Soil Erosion and Sedimentation Control Administrator shall inform the applicant of the processes involved with Erosion and Sedimentation Control Plan review and approval, issuance of an Erosion and Sedimentation Control Plan Certificate and Letter of Approval, and the relationship of said Erosion and Sedimentation Control Plan and Letter of Approval with zoning, building code, and other land-use regulations in effect in Henderson County. At the time of application submission, the Soil Erosion and Sedimentation Control Administrator also shall notify the applicant of the appeal process as provided in the subpart.
  2. Plan Submission. An Erosion and Sedimentation Control Plan shall be prepared for all land-disturbing activities subject to this subpart. An Erosion and Sedimentation Control Plan shall be prepared by a design professional. Three (3) copies of the Erosion and Sedimentation Control Plan shall be filed with the Soil Erosion and Sedimentation Control Administrator at least 30 days prior to the commencement of the proposed activity.
  3. Financial Responsibility and Ownership. Erosion and Sedimentation Control Plans may be disapproved when not accompanied by an authorized statement of financial responsibility and ownership. This statement shall be signed by the person financially responsible for the land-disturbing activity or his attorney in fact. The statement shall include the mailing and street addresses of the principal place of business of (1) the person financially responsible, (2) the owner of the land, and (3) any registered agents. If the person financially responsible is not a resident of North Carolina, a North Carolina agent must be designated in the statement for the purpose of receiving notice of compliance or non-compliance with the Erosion and Sedimentation Control Plan, the North Carolina Sedimentation Pollution Control Act of 1973, this subpart, or rules or orders adopted or issued pursuant to this subpart. If the applicant is not the owner of the land to be disturbed, the draft Erosion and Sedimentation Control Plan must include the owner's written consent for the applicant to submit a draft Erosion and Sedimentation Control Plan and to conduct the anticipated land-disturbing activity.
  4. Environmental Policy Act Document. Any Erosion and Sedimentation Control Plan submitted for a land- disturbing activity for which an environmental document is required by the North Carolina Environment Policy Act (NCGS §113A-1, et seq.) shall be deemed incomplete until a complete environmental document is available for review. The Soil Erosion and Sedimentation Control Administrator shall promptly notify the person submitting the Erosion and Sedimentation Control Plan that the 30 day time limit for review of the Erosion and Sedimentation Control Plan pursuant to this subpart shall not begin until a complete environmental document is available for review.
  5. Content. The Erosion and Sedimentation Control Plan required by this section shall contain architectural and engineering drawings, maps, assumptions, calculations, and narrative statements as needed to adequately describe the proposed development of the tract and the measures planned to comply with the requirements of this subpart. Erosion and Sedimentation Control Plan content may vary to meet the needs of specific site requirements. Detailed guidelines for Erosion and Sedimentation Control Plan preparation may be obtained from the Soil Erosion and Sedimentation Control Administrator on request.
  6. Erosion and Sedimentation Control Design Manual. Appropriate erosion and sedimentation practices and measures shall be in accordance to the Erosion and Sedimentation Control Design Manual developed by the State or any Erosion and Sedimentation Control Design Manual adopted by Henderson County or any supplemental materials.
  7. Soil and Water Conservation District Comments. The Henderson County Soil and Water Conservation District, created pursuant to NCGS Chapter 139, and hereafter “the District” shall review the Erosion and Sedimentation Control Plan and submit any comments and recommendations to the Soil Erosion and Sedimentation Control Administrator within 20 days after the District received the Erosion and Sedimentation Control Plan or within any shorter period of time as may be agreed upon by the District and Henderson County. Failure of the District to submit its comments and recommendations within 20 days or within any agreed-upon shorter period of time shall not delay final action on the Erosion and Sedimentation Control Plan.
  8. Timeline for Decisions on Plans. The Soil Erosion and Sedimentation Control Administrator will review each complete Erosion and Sedimentation Control Plan submitted to them and within 30 days of receipt thereof will notify the person submitting the Erosion and Sedimentation Control Plan that it has been approved, approved with modifications, or disapproved. Failure to approve, approve with modifications, or disapprove a complete Erosion and Sedimentation Control Plan within 30 days of receipt shall be deemed approval. The Soil Erosion and Sedimentation Control Administrator will review each revised Erosion and Sedimentation Control Plan submitted to them and within 15 days of receipt thereof will notify the person submitting the Erosion and Sedimentation Control Plan that it has been approved, approved with modifications, approved with performance reservations, or disapproved. Failure to approve, approve with modifications, or disapprove a revised Erosion and Sedimentation Control Plan within 15 days of receipt shall be deemed approval.
  9. Approval.
    1. The Soil Erosion and Sedimentation Control Administrator shall only approve an Erosion and Sedimentation Control Plan upon determining that it complies with all applicable State and local regulations for erosion and sedimentation control. Approval assumes the applicant’s compliance with the federal and state water quality laws, regulations and rules. The Soil Erosion and Sedimentation Control Administrator shall condition approval of Erosion and Sedimentation Control Plans upon the applicant’s compliance with federal and state water quality laws, regulations and rules. The Soil Erosion and Sedimentation Control Administrator may establish an expiration date, not to exceed three (3) years, for Erosion and Sedimentation Control Plans approved under this subpart.
    2. When a development project contains an approved erosion control plan for the entire development, a separate erosion control plan shall be required by Henderson County for development of individual residential lots within that development that disturb less than one acre if the developer and the builder are the same financially responsible person. For review of an erosion control plan for a single-family lot in a common plan of development under this subsection where the developer and builder are different, Henderson County may require the following information:
      1. Name, address, telephone number, and email of owner of lot being developed.
      2. Street address of lot being developed.
      3. Subdivision name.
      4. Lot number.
      5. Tax parcel number of lot being developed.
      6. Total acreage of lot being developed.
      7. Total acreage disturbed.
      8. Anticipated start and completion date.
      9. Person financially responsible.
      10. Signature of person financially responsible.
      11. Existing platted survey of lot.
      12. A sketch plan showing erosion control measures for the lot being developed, but the sketch shall not be required to be under the seal of a design professional unless there is a design feature requiring such under federal or State law or regulations.
    3. Except as may be required by federal law, rule or regulation, a local erosion control program under section I.(b) above shall provide for all of the following:
      1. That no periodic self-inspections or rain gauge installation is required on individual residential lots where less than one acre is being disturbed on each lot.
      2. For a land-disturbing activity on more than one residential lot where the total land disturbed exceeds one acre, the person conducting the land-disturbing activity may submit for approval a single erosion control plan for all of the disturbed lots or may submit for review and approval under I.(b) of this section the erosion control measures for each individual lot.
    4. No erosion and sedimentation control plan submitted under section I.(b) above shall require any of the following:
      1. A silt fence or other erosion control measure to be placed in a location where, due to the contour and topography of the development site, that erosion control measure would not substantially and materially retain the sediment generated by the land-disturbing activity within the boundaries of the tract during construction upon and development of the tract. 
      2. A wire-backed reinforced silt fence where, due to the contour and topography of the development site, that fence would not substantially and materially retain the sediment generated by the land-disturbing activity within the boundaries of the tract during construction upon and development of the tract.
  10. Disapproval for Content. The Soil Erosion and Sedimentation Control Administrator may disapprove an Erosion and Sedimentation Control Plan or draft Erosion and Sedimentation Control Plan based on its content. A disapproval based upon an Erosion and Sedimentation Control Plan’s content must specifically state in writing the reasons for disapproval.
  11. Other Disapprovals. The Soil Erosion and Sedimentation Control Administrator may disapprove an Erosion and Sedimentation Control Plan or draft Erosion and Sedimentation Control 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. A local government may disapprove an Erosion and Sedimentation 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 Erosion and Sedimentation Control Plan, or has received notice of violation of an Erosion and Sedimentation Control Plan previously approved by the North Carolina Sedimentation Control Commission or a local government pursuant to the North Carolina Sedimentation Pollution Control Act of 1973 and has not complied with the notice within the time specified in the notice;
    2. Has failed to pay a civil penalty assessed pursuant to the North Carolina Sedimentation Pollution Control Act of 1973 or a local ordinance adopted pursuant to the North Carolina Sedimentation Pollution Control Act of 1973 by the time the payment is due;
    3. Has been convicted of a misdemeanor pursuant to NCG S §113A-64(b) or any criminal provision of a local ordinance adopted pursuant to the North Carolina Sedimentation Pollution Control Act of 1973; 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 of 1973.

For purposes of this subsection, an applicant’s record may be considered for only the two (2) years prior to the application date.

In the event that an Erosion and Sedimentation Control Plan is disapproved pursuant to this subsection, the Soil Erosion and Sedimentation Control Administrator shall notify the Director of the Division of Land Resources of NCDENR of such disapproval within ten (10) days. The Soil Erosion and Sedimentation Control Administrator shall advise the applicant and the Director of the Division of Land Resources of NCDENR in writing as to the specific reasons that the Erosion and Sedimentation Control Plan was disapproved.

  1. Notice of Activity Initiation. No person may initiate a land-disturbing activity before notifying the agency that issued the Erosion and Sedimentation Control Plan approval of the date that land-disturbing activity will begin.
  2. Preconstruction Conference. When deemed necessary by the approving authority a preconstruction conference may be required.
  3. Display of Plan Approval. An Erosion and Sedimentation Control Plan approval issued under this subpart shall be prominently displayed until all construction is complete, all permanent sedimentation and erosion control measures are installed and the site has been stabilized. A copy of the approved plan shall be kept on file at the job site.
  4. Required Revisions. After approving an Erosion and Sedimentation Control Plan, if the Soil Erosion and Sedimentation Control Administrator either upon review of such Erosion and Sedimentation Control Plan or on inspection of the job site, determines that a significant risk of accelerated erosion or off-site sedimentation exists, the Soil Erosion and Sedimentation Control Administrator shall require a revised Erosion and Sedimentation Control Plan. Pending the preparation of the revised Erosion and Sedimentation Control Plan, work shall cease or shall continue under conditions outlined by the appropriate authority. If following commencement of a land-disturbing activity pursuant to an approved Erosion and Sedimentation Control Plan, the Soil Erosion and Sedimentation Control Administrator determines that the Erosion and Sedimentation Control Plan is inadequate to meet the requirements of this subpart, the Soil Erosion and Sedimentation Control Administrator may require any revision of the Erosion and Sedimentation Control Plan that is necessary to comply with this subpart.
  5. Amendment to a Plan. Applications 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 such time as said amendment is approved by the Soil Erosion and Sedimentation Control Administrator the land-disturbing activity shall not proceed except in accordance with the Erosion and Sedimentation Control Plan as originally approved.
  6. Failure to File a Plan. Any person engaged in land-disturbing activity who fails to file an Erosion and Sedimentation Control Plan in accordance with this subpart, or who conducts a land-disturbing activity except in accordance with provisions of an approved Erosion and Sedimentation Control Plan shall be deemed in violation of this Chapter.
42-256. Basic Control Objectives

An erosion and sedimentation control Erosion and Sedimentation Control Plan may be disapproved if the Erosion and Sedimentation Control Plan fails to address the following control objectives:

  1. Identify Critical Areas. On-site areas which are subject to severe erosion, and off-site areas which are especially vulnerable to damage from erosion and/or sedimentation, are to be identified and receive special attention.
  2. Limit Time of Exposure. All land-disturbing activities are to be planned and conducted to limit exposure to the shortest feasible time.
  3. Limit Exposed Areas. All land-disturbing activity is to be planned and conducted to minimize the size of the area to be exposed at any one (1) time.
  4. Control Surface Water. Surface water runoff originating upgrade of exposed areas should be controlled to reduce erosion and sediment loss during the period of exposure.
  5. Control Sedimentation. All land-disturbing activity is to be planned and conducted so as to prevent off-site sedimentation damage.
  6. Manage Stormwater Runoff. 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, an Erosion and Sedimentation Control Plan is to include measures to control the velocity to the point of discharge so as to minimize accelerated erosion of the site and increased sedimentation of the stream.
42-257. Design and Performance Standards
  1. Except as provided in §42-257 (Design and Performance Standards) B(2) of this subpart, erosion and sedimentation control measures, structures, and devices shall be planned, designed, and constructed to provide protection from the calculated maximum peak rate of runoff from the ten (10) year storm. Runoff rates shall be calculated using the procedures in the United States Department of Agricultural (USDA), Natural Resource Conservation Service’s “National Engineering Field Handbook", or other acceptable calculation procedures.
  2. HQW Zones. In High Quality Water (HQW) zones the following design standards shall apply:
    1. Limit on Uncovered Area. Uncovered areas in HQW zones shall 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 shall be governed by this section. Larger areas may be uncovered within the boundaries of the tract with the written approval of the Director upon providing engineering justification with a construction sequence that considers phasing, limiting exposure, weekly submitted self-inspection reports, and a more conservation design than the Twenty-Five Year Storm.
    2. Maximum Peak Rate of Runoff Protection. Erosion and sedimentation control measures, structures, and devices within HQW zones shall 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 latest edition of the United States Department of Agriculture Natural Resources Conservation Service’s “National Engineering Field Handbook" or according to procedures adopted by any other agency of this state or the United States or any generally recognized organization or association.
    3. Sediment Basin Design. Sediment basin within HQW zones shall be designed and constructed according to the following or association.
      1. use a surface withdrawal mechanism, except when the basin drainage area is less than 1.0 acre:
      2. have a minimum of 1800 cubic feet of storage area per acre of disturbed area;
      3. have a minimum surface area of 325 square feet per cfs of the Twenty-Five Year Storm (Q25) peak flow;
      4. have a minimum dewatering time of 48 hours;
      5. incorporate 3 baffles, unless the basin is less than 20 feet in length, in which case 2 baffles shall be sufficient.

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

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

42-258. Stormwater Outlet Protection
  1. Intent. Stream banks and channels downstream from any land-disturbing activity shall be protected from increased degradation by accelerated erosion caused by increased velocity of runoff from the land- disturbing activity.
  2. Performance Standard. Persons shall conduct land-disturbing activity so that the post construction velocity of the ten (10) year storm runoff in the receiving watercourse to the discharge point does not exceed the greater of:
    1. the velocity established by the Maximum Permissible Velocities Table set out within this subsection; or
    2. the velocity of the ten-year storm runoff in the receiving watercourse prior to development.

If condition (1) or (2) of this Paragraph cannot be met, then the receiving watercourse to and including the discharge point shall be designed and constructed to withstand the expected velocity anywhere the velocity exceeds the “prior to development” velocity by 10 percent.

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

Table 8.1. Maximum Permissible Velocities
Material Feet Per Second (F.P.S.) Meters Per Second (M.P.S.)
Fine sand (noncolloidal) 2.5 0.8
Sandy loam (noncolloidal) 2.5 0.8
Silt loam (noncolloidal) 3.0 0.9
Ordinary firm loam 3.5 1.1
Fine gravel 5.0 1.5
Stiff clay (very colloidal) 5.0 1.5
Graded, loam to cobbles (noncolloidal) 5.0 1.5
Graded, silt to cobbles(colloidal) 5.5 1.7
Alluvial silts (noncolloidal) 3.5 1.1
Alluvial silts(colloidal) 5.0 1.5
Coarse gravel (noncolloidal) 6.0 1.8
Cobbles and shingles 5.5 1.7
Shales and hard pans 6.0 1.8

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

 3.  Acceptable Management Measures. Measures applied alone or in combination to satisfy the intent of this section are acceptable if there are no objectionable secondary       consequences. The Henderson County Soil Erosion and Sedimentation Control Administrator 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, while not exhaustive, are to:

  1. Avoid increases in surface runoff volume and velocity by including measures to promote infiltration to compensate for increased runoff from areas rendered impervious;
  2. Avoid increases in stormwater discharge velocities by using vegetated or roughened swales and waterways in place of closed drains and high velocity paved sections;
  3. Provide energy dissipators at outlets of storm drainage facilities to reduce flow velocities to the point of discharge;
  4. Protect watercourses subject to accelerated erosion by improving cross sections and/or providing erosion-resistant lining; and
  5. Upgrade or replace the receiving device structure or watercourse such that it will receive and conduct the flow to a point where it is no longer subject to degradation from the increased rate of flow or increased velocity.

4. Exceptions. This rule shall not apply where it can be demonstrated to the Henderson County Soil Erosion and Sedimentation Control Administrator that stormwater discharge velocities will not create an erosion problem in the receiving watercourse.

42-259. Borrow and Waste Areas

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

42-260. Access and Haul Roads

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

42-261. Operations in Lakes or Natural Watercourses

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

42-262. Responsibility for Maintenance

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

42-263. Additional Measures

Whenever the Henderson County Soil Erosion and Sedimentation Control Administrator determines that accelerated erosion and sedimentation continues despite the installation of protective practices, they shall direct the Person conducting the land-disturbing activity to take additional protective action necessary to achieve compliance withe conditions specified in the Act or its rules. 

42-264. Reserved
42-265. Fees

A. Henderson County may establish a fee schedule for the review and approval of Plans.

B. In establishing the fee schedule, the County shall consider the administrative and personnel costs incurred for reviewing the Erosion and Sedimentation Control Plans and for related compliance activities.

C. The fee shall be calculated on the basis of either the number of acres disturbed or in the case of a single-family lot in a residentail develpment or common plan of development that is less than one acre set at no more than one hundred dollars ($100.00) per lot developed.

42-266. Plan Appeals

A. Except as provided in §42-266 (Plan Appeals) B of this subpart, the appeal of a disapproval or approval with modifications of a Plan shall governed by the following provisions:

  1. The disapproval or modification of any proposed Plan by the Henderson County Soil Erosion and Sedimentation Control Administrator shall entitle the Person submitting the Plan to a public hearing if such Person submits written demand for a hearing within 15 days after receipt of written notice of disapproval or modifications.
  2. A hearing held pursuant to this section shall be conducted by the Henderson County Zoning Board of Adjustment (ZBA) within 60 days after the date of the appeal or request for a hearing.
  3. The ZBA will render its final decision on any appeal within 45 days of the completion of the hearing.
  4. If the ZBA upholds the disapproval or modification of a proposed Plan following the hearing, the Person submitting the Plan shall then be entitled to appeal the County’s decision to the Commission as provided in G.S. 113A-61(c) and 15A NCAC 4B .0118 (d).

B. In the event that a Plan is disapproved pursuant to §42-255 (Erosion and Sedimentation Control Plans) J of this subpart, the applicant may appeal the Henderson County Board of Adjustment’s disapproval of the Plan directly to the Commission

42-267. Inspections and Investigations
  1. Inspection. Agents, officials, or other qualified persons authorized by the Henderson County Soil Erosion and Sedimentation Control Administrator will periodically inspect land-disturbing activities to ensure compliance with the Act, this subpart, or rules or orders adopted or issued pursuant to this subpart, and to determine whether the measures required in the Plan are effective in controlling erosion and sedimentation resulting from land-disturbing activity. Notice of the right to inspect shall be included in the certificate of approval of each Plan.
  2. Willful Resistance, Delay or Obstruction. No person shall willfully resist, delay, or obstruct an authorized representative, employee, or agent of the County, while that person is inspecting or attempting to inspect a land-disturbing activity under this section.
  3. Notice of Violation. If the Henderson County Soil Erosion and Sedimentation Control Administrator determines that a Person engaged in land-disturbing activity has failed to comply with the Act, this subpart, or rules, or orders adopted or issued pursuant to this subpart, a notice of violation shall be served upon that Person. The notice may be served by any means authorized under NCGS 1A-1, Rule 4 upon the person conducting the land-disturbing activity and, if different from that party, the property owner. The notice shall specify a date, by which the person must comply with the Act, or this subpart, or rules, or orders adopted pursuant to this subpart, and inform the Person of the actions that need to be taken to comply with the Act, this subpart, or rules or orders adopted pursuant to this subpart. 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 NCGS §113A-64 and this subpart. If the Person engaged in the land-disturbing activity has not received a previous notice of violation under this section, the (city)(town)(county) shall offer assistance in developing corrective measures. Assistance may be provided by referral to a technical assistance program on behalf of the Approving Authority, referral to a cooperative extension program, or by the provision of written materials such as Department guidance documents. The notice of violation may be served in the manner prescribed for service of process by G.S. 1A-1, Rule 4, and shall include information on how to obtain assistance in developing corrective measures. 
  4. Investigation. The Henderson County Soil Erosion and Sedimentation Control Administrator shall have the power to conduct such investigation as it may reasonably deem necessary to carry out its duties as prescribed in this subpart, and who presents appropriate credentials for this purpose to enter at reasonable times any property, public or private, for the purpose of investigating and inspecting the sites of any land-disturbing activity.
  5. Statements and Reports. The Henderson County Soil Erosion and Sedimentation Control Administrator shall also have the power to require written statements, or filing of reports under oath, with respect to pertinent questions relating to land-disturbing activity.
42-268. Penalties
  1. Civil Penalties

    1. Civil Penalty for a Violation. Any Person who violates any of the provisions of this subpart, or rule or order adopted or issued pursuant to this subpart, or who initiates or continues a land-disturbing activity for which a 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 amount that the Henderson County Soil Erosion and Sedimentation Control Administrator may assess per violation is 5,000 dollars. A civil penalty may be assessed from the date of the violation. Each day of a continuing violation shall constitute a separate violation.When the Person has not been assessed any civil penalty under this subsection for any previous violation, and that Person abated continuing environmental damage resulting from the violation within 180 days from the date of the notice of violation, the maximum cumulative total civil penalty assessed under this subsection for all violations associated with the land-disturbing activity for which the erosion and sedimentation control plan is required is twenty-five thousand dollars ($25,000).]

    2. Damage or Destruction of a silt fence occurring during land-disturbance activities or construction on a development project shall not be assessed a civil penalty provided that the silt fence is repaired or replaced within the compliance period/deadline noted in the inspection report or notice of violation.  This will ensure violators have an opportunity to correct these violations.  G.S. §113A-61.1(d) does not apply to off-site sediment that occurs due to the silt fence not being in place, but merely damage to the silt fence itself.
    3. Civil Penalty Assessment Factors. The Henderson County Soil Erosion and Sedimentation Control Administrator shall determine the amount of the civil penalty based upon the following factors:
      1. the degree and extent of harm caused by the violation,
      2. the cost of rectifying the damage,
      3. the amount of money the violator saved by noncompliance,
      4. whether the violation was committed willfully, and
      5. the prior record of the violator in complying or failing to comply with this subpart. 
      • Notice of Civil Penalty Assessment. The Henderson County Soil Erosion and Sedimentation Control Administrator shall provide notice of the civil penalty amount and basis for assessment to the Person assessed. The notice of assessment shall be served by any means authorized under G.S. 1A-1, Rule 4.  A notice of assessment by the Henderson County Soil Erosion and Sedimentation Control Administrator shall direct the violator to either pay the assessment, contest the assessment, within 30 days by filing a petition for hearing with the Henderson County Zoning Board of Adjustment, or file a request with the Henderson County Board of Commissioners for remission of the assessment within 30 days of receipt of the notice of assessment.  A remission request must be accompanied by a waiver of the right to a contested case hearing pursuant to Chapter 150B of the North Carolina General Statutes and a stipulation of the facts on which the assessment was based.    
    4. Final Decision. The final decision on contested assessments shall be made by the Henderson County Zoning Board of Adjustment within 45 days of receipt of the assessment.
    5. Appeal of Final Decision. Appeal from the final decision of the Henderson County Board of Adjustment shall be to the Superior Court of the county, where the violation occurred. Such appeals must be made within 30 days of the final decision of the Henderson County Zoning Board of Adjustment.
    6. Remission of Civil Penalties.   A request for remission of a civil penalty imposed under G.S. 113A-64 may be filed with the Henderson County Board of Commissioners within 30 days of receipt of the notice of assessment. A remission request must be accompanied by a waiver of the right to a contested case hearing pursuant to Chapter 150B of the General Statutes and a stipulation of the facts on which the assessment was based. The following factors shall be considered in determining whether a civil penalty remission request will be approved:   
      1. Whether one of more of the civil penalty assessment factors in G.S. 113A-64(a)(3) were wrongly applied to the detriment of the petitioner.
      2. Whether the petitioner promptly abated continuing environmental damage resulting from the violation.
      3. Whether the violation wa inadvertent or a result of an accident.
      4. Whether the petitioner had been assessed civil penalties for any previous violations.
      5. Whether payment of the civil penalty will prevent payment for necessary remedial actions or would otherwise create a significant financial hardship.
      6. The assessed property tax valuation fo the petitioners' property upon which the violation occurred, excluding the value of any structures located on the property.
    7. Collection. If payment is not received within 30 days after it is due, Henderson County may institute a civil action to recover the amount of the assessment. The civil action may be brought in the Superior Court of the county where the violation occurred, or the violator’s residence or where the violator’s principal place of business is located. Such civil actions must be filed within three (3) years of the date the assessment was due. An assessment that is not contested is due when the violator is served with a notice of assessment. An assessment that is contested is due at the conclusion of the administrative and judicial review of the assessment.
    8. Credit of Civil Penalties. Civil penalties collected pursuant to this subpart shall be credited to the Civil Penalty and Forfeiture Fund. Penalties collected by Henderson County may be diminished only by the actual costs of collection.The collection cost percentage to be used shall be established and approved by the North Carolina Office of State Budget and Management on an annual basis, based upon the computation of actual collection costs by Henderson County for the prior fiscal year. 
    • [In any event, the cost percentage shall not exceed twenty percent (20%) of penalties collected.]

B.  Criminal Penalties. Any Person who knowingly or willfully violates any provision of this subpart, or rule or order adopted or issued by the Commission or local government, or who knowingly or willfully initiates or continues a land-disturbing activity for which a Plan is required except in accordance with the terms, conditions, and provisions of an approved Erosion and Sedimentation Control Plan, shall be guilty of a Class 2 misdemeanor which may included a fine not to exceed 5,000 dollars as provided in NCGS §113A-64.

42-269. Injunctive Relief
  1. Violation of Local Program. Whenever Henderson County has reasonable cause to believe that any person is violating or threatening to violate any subpart, rule, regulation or order adopted or issued by Henderson County, or any term, condition, or provision of an approved Erosion and Sedimentation Control Plan, it may, either before or after the institution of any other action or proceeding authorized by this subpart, institute a civil action in the name of the County, for injunctive relief to restrain the violation or threatened violation. The action shall be brought in the superior court of the county in which the violation is occurring or is threatened.
  2. Abatement of Violation. Upon determination by a court that an alleged violation is occurring or is threatened, the court shall enter any order or judgment that is necessary to abate the violation, to ensure that restoration is performed, or to prevent the threatened violation. The institution of an action for injunctive relief under this section shall not relieve any party to the proceedings from any civil or criminal penalty prescribed for violations of this subpart.
42-270. Restoration After Non-Compliance

The Henderson County Soil Erosion and Sedimentation Control Administrator 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 subpart.

42-271. Severability

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

42-272. Effective Date

This subpart becomes effective on October 1, 2007.

42-273. to 42-292. Reserved