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.