ARTICLE VIII. NATURAL RESOURCES

The following sections are incorporated herein by reference and considered to be a part of the regulations of this Article VIII, Subpart A: §42-307 (Henderson County Flood Damage Prevention Board), §42-311 (Henderson County Floodplain Administrator),§42-350 (Floodplain Development Permits), §42-355 (Special Fill Permits), §42- 368 (Variances (Flood Damage Prevention), §42-378 (Violations of Article VIII (Natural Resources) Subpart A (Flood Damage Prevention), §42-379 (Appeals), and §42-391 (Definitions).

The Legislature of the State of North Carolina has in Part 6 of Article 21 of Chapter 143 and Article 6 of Chapter 153A; and Article 7, 9, and 11 of Chapter 160D of the North Carolina General Statutes (NCGS), delegated local governmental units the authority to adopt regulations designed to promote the public health, safety, and general welfare.

1. The flood prone areas with the jurisdiction of Henderson County are subject to periodic inundation which results in loss of life, property, health and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures of flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare.
2. These flood losses are caused by the cumulative effect of obstructions in floodplains causing increases in flood heights and velocities and by the occupancy in flood prone areas of uses vulnerable to floods or other hazards.

The objectives of this Subpart A are to:

1. Protect human life, safety and health;
2. Minimize expenditure of public money for costly flood control projects;
3. Minimize the need for rescue and relief efforts associated with flooding and generally undertaken at the expense of the general public;
4. Minimize prolonged business losses and interruptions;
5. Minimize interruptions and disruptions of family life caused by flooding;
6. Minimize damage to public facilities and utilities (i.e. water and gas mains; electric, telephone and sewer lines; and streets and bridges that are located in flood prone areas;
7. Help maintain a stable tax base by providing for the sound use and development of flood prone areas;
8. Permit and encourage the retention of open land uses which will be so located and designed as to constitute a harmonious and appropriate part of the physical development of the community and which will not impede the flow of flood waters;
9. Prevent victimization by ensuring that potential land, home and business buyers are notified that property is located in an identified flood hazard area; and
10. Prevent increased flood levels caused by unwise floodplain development.
11. Minimize damage to private and public property due to flooding;
12. Ensure that potential buyers are aware that property is in a Special Flood Hazard Area;
13. Maintain the natural and beneficial functions of the floodplains; and
14. Make flood insurance available to the community through the National Flood Insurance Program.

It is the purpose of this Subpart A to promote public health, safety, and general welfare and to minimize public and private losses due to flood conditions within flood prone areas by provisions designed to:

1. Restrict or prohibit uses that are dangerous to health, safety, and property due to water or erosion hazards or that result in damaging increases in erosion, flood heights or velocities;
2. Require that uses vulnerable to floods, including facilities that serve such uses, be protected against flood damage at the time of initial construction;
3. Control the alteration of natural floodplains, stream channels, and natural protective barriers, which are involved in the accommodation of floodwaters;
4. Control filling, grading, dredging, and all other development that may increase erosion or flood damage; and
5. Prevent or regulate the construction of flood barriers that will unnaturally divert flood waters or which may increase flood hazards to other lands.

The provisions of this Subpart A shall apply to all Special Flood Hazard Areas within (1) the unincorporated areas of Henderson County lying outside the extraterritorial jurisdiction of any municipality, and (2) the incorporated areas and extraterritorial jurisdiction of any municipality specifically requesting its enforcement by Henderson County upon the agreement of the Henderson County Board of Commissioners, in accordance with the Flood Insurance Study (FIS) and its accompanying Flood Insurance Rate Map(s) (FIRM), for Henderson County dated October 2, 2008. (In making such a request, the municipality must comply with the requirements of NCGS §160D-923). Unless otherwise provided herein, in no instance shall this subpart apply to any area which is not duly established and identified as a Special Flood Hazard Area, either by the methods listed in §42-232.2 (Basis for Establishing the Special Flood Hazard Areas), or as shown on the Flood Insurance Study (FIS) and its accompanying Flood Insurance Rate Map(s) (FIRM), for Henderson County. The Chapter and map shall be on file in the office of Henderson County Floodplain Administrator.

The Special Flood Hazard Areas are those identified under the Cooperating Technical State (CTS) agreement between the State of North Carolina and the Federal Emergency Management Agency (FEMA) in its Flood Insurance Study (FIS) and its accompanying Flood Insurance Rate Map(s) (FIRM), for Henderson County dated October 2, 2008, which are adopted by reference and declared to be part of this Chapter, and all revisions thereto.  

NOTE: If detailed topographic mapping or surveying shows that a building site adjacent to a Special Flood Hazard Area is below the Base Flood Elevation, it must be regulated as being within the Special Flood Hazard Area, even if not shown within the boundaries of the Special Flood Hazard Area shown in the FIRM or any accompanying maps. For regulatory purposes, flood elevations are the ruling guideline.

A Floodplain Development Permit shall be required in conformance with the provisions of this Subpart A and §42- 349 (Floodplain Development Permits) prior to the commencement of any development activities within Special Flood Hazard Areas as determined in §42-232.2 (Basis for Establishing the Special Flood Hazard Areas).

No structure or land shall hereafter be located, extended, converted, altered, or developed in any way without full compliance with the terms of this subpart and other applicable regulations.

1. Subpart A is not intended to repeal, abrogate, or impair any existing easements, covenants, or deed restrictions. However, where this Subpart A and another regulation conflict or overlap, whichever imposes the more stringent restrictions shall prevail.
2. The following may impose additional regulations for land uses and structures located in any portion of a floodplain and are hereby adopted and incorporated into this Subpart A by reference as though they were copied herein fully. However, where this Subpart A and another regulation conflict or overlap, whichever imposes the more stringent restrictions shall prevail.
   
   1. The International Building Codes, as adopted by the North Carolina Building Code Council and enforced by State and local code enforcement officials, and including all volumes.
   2. The Southern Building Code Congress International “SBCCI Standard for Floodplain Management” SSTD 4-89,
   3. The US Army Corps of Engineers “Flood Proofing Regulations” –  EP 11651-2-314, December 15, 1995.
   4. Federal Emergency Management Agency “Managing Floodplain Development in Approximate Zone A Areas,” April, 1995.

1. The granting of a permit under the provisions of this Subpart A and §42-349 (Floodplain Development Permits) or §42-354 (Special Fill Permits) shall in no way affect any other type of approval required by any other statute or ordinance of the State or any political subdivision of the State, or of the United States, but shall be construed as an added requirement.
2. No permit for the construction of any structure to be located within a floodplain shall be granted unless the applicant has first obtained the permit required by this Subpart A.

In the interpretation and application of this Subpart A, all provisions shall be:

1. Considered as minimum requirements;
2. Liberally construed in favor of the governing body; and
3. Deemed neither to limit nor repeal any other powers granted under State statutes.

The degree of flood protection required by this Subpart A is considered reasonable for regulatory purposes and is based on scientific and engineering consideration. Larger floods can and will occur. Actual flood heights may be increased by man-made or natural causes. Subpart A does not imply that land outside the Special Flood Hazard Areas or uses permitted within such areas will be free from flooding or flood damages. Subpart A shall not create liability on the part of Henderson County or by any officer or employee thereof for any flood damages that result from reliance on this Subpart A or any administrative decision lawfully made hereunder.

The provisions of Subpart A, related to administration can be found in the following sections:

1. Designation, Duties and Responsibilities of Floodplain Administrator. (See §42-310 (Henderson County Floodplain Administrator)).
2. Floodplain Development Permit Application Requirements and Fees. (See §42-349 - Floodplain Development Permits).
3. Special Fill Permit Procedures and Fees. (See §42-354 - Special Fill Permits).
4. Variance Procedures. (See §42-368 (Variances - Flood Damage Prevention).
5. Appeal Procedures. (See §42-379 - Appeals).
6. Corrective Procedures and Penalties for Violation. (See §42-378 (Violations of Article VIII (Natural Resources) Subpart A (Flood Damage Prevention).

In all Special Flood Hazard Areas the following provisions are required.

1. In the flood fringe area as indicated on the FIRM,  no more than 20 percent of the total of the flood fringe area may be filled, except that additional fill may be permitted in the flood fringe pursuant to a special fill permit (See §42-354 (Special Fill Permits)).
2. In the floodway area as indicated on the FIRM, fill may be permitted in the floodway pursuant to a special fill permit (See §42-354 (Special Fill Permits))
3. All new construction and substantially improvements shall be:
   1. Designed (or modified) and adequately anchored to prevent flotation, collapse, or lateral movement of the structure.
   2. Constructed with materials and utility equipment resistant to flood damage.
   3. Constructed by methods and practices that minimize flood damages.
4. All new utility equipment, substations, lines and other materials used in the provision of services to the public such as telephone, electricity, natural gas, and cable television shall be located outside a floodplain, unless no viable alternative exists.
5. Electrical, heating, ventilation, plumbing, air conditioning equipment, and other service facilities shall be designed and/or located so as to prevent water from entering or accumulating within the components during conditions of flooding to the Regulatory Flood Protection Elevation. These include but are not limited to HVAC equipment, water softener units, bath/kitchen fixtures, ductwork, electrical/gas meter panels/boxes, utility/cable boxes, appliances (i.e. washers, dryers, refrigerator, etc.), hot water heaters, electric outlets/switches.
6. All new and replacement water supply systems shall be located outside the Special Flood Hazard Area, unless no other viable alternative exists. Where they must be placed in the SFHA the systems shall be designed to minimize or eliminate infiltration of flood waters into the system, and also to meet all other applicable State and local requirements.
7. All new and replacement sanitary sewage and on-site waste disposal systems shall be located outside the Special Flood Hazard Area, unless no other viable alternative exists. Where they must be placed in the SFHA the systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters, and also to meet all other applicable State and local requirements.
8. On-site waste disposal systems constructed near or adjoining Special Flood Hazard Areas shall be located and constructed to avoid impairment to them or contamination from them during flooding.
9. No new private wells shall be located within the Special Flood Hazard Area unless no viable alternative exists and that such wells meet all other applicable state and local requirements. Private wells constructed near or adjoining Special Flood Hazard Areas shall be located and constructed to minimize or eliminate infiltration of flood water into the system.
10. Any alteration, repair, reconstruction, or improvements to a structure which is in compliance with the provisions of this Subpart A, shall meet the requirements of new construction as contained in this Subpart A.
11. Any fill material on which a structure is located shall:
    1. Be extended to grade ten (10) feet beyond the limits of the structure foundation;
    2. Be graded to drain;
    3. Be protected against erosion;
    4. Have a side slope no steeper than two (2) feet horizontal to one (1) foot vertical;
    5. Not contain any contaminated, toxic or hazardous materials; and
    6. Be approved before placement.
12. Nonconforming structures or other development may not be enlarged, replaced, or rebuilt unless such enlargement or reconstruction is accomplished in conformance with the provisions of this Subpart A. Provided, however, nothing in this subpart shall prevent the repair, reconstruction, or replacement of a structure existing on the original effective date of these regulations (July 5, 2005) and located totally or partially within the floodway, non-encroachment area, or stream setback, provided that the bulk of the structure below the Regulatory Flood Protection Elevation in the floodway, non-encroachment area, or stream setback is not increased and provided that such repair, reconstruction, or replacement meets all of the other requirements of this Subpart A, and nothing in this Subpart A shall prevent the permitted maintenance, repair, reconstruction or replacement of agriculture-related water diversion structures where the permit for the same is granted by other than Henderson County. No permit shall be required from Henderson County to reconstruct agricultural development which pre-exists the original effective date of these regulations (July 5, 2005).
13. The following are permitted uses for the flood fringe: all uses otherwise permitted by the applicable land use regulations, so long as such uses are in compliance with the terms of this Subpart A.
14. New solid waste disposal facilities and sites, hazardous waste management facilities, solid waste sites, salvage yards, and chemical storage facilities shall not be permitted in Special Flood Hazard Areas, except by variance as specified in Subpart A and §42-368 (Variances (Flood Damage Prevention)). A structure or tank for chemical or fuel storage incidental to an allowed use, including but not limited to agriculture, or to the operation of a water treatment plant or wastewater treatment facility may be located in a Special Flood Hazard Area only if the structure or tank is either elevated or flood proofed to at least the Regulatory Flood Protection Elevation and certified according to §42-349 (Floodplain Development Permits) C(2) (Certification Requirements).
15. All subdivision and other development proposals shall:
    1. Be consistent with the need to minimize flood damage;
    2. Have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage;
    3. Have adequate drainage provided to reduce exposure to flood hazards; and
    4. Have received all necessary permits from those governmental agencies for which approval is required by Federal or State law, including Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334.
16. When a structure is partially located in a Special Flood Hazard Area, the entire structure shall meet the requirements for new construction and substantial improvements.
17. When a structure is located in multiple flood hazard zones or in a flood hazard risk zone with multiple Base Flood Elevations (BFEs), the provisions for the more restrictive flood hazard risk zone and the highest Base Flood Elevation (BFE) shall apply.

In all Special Flood Hazard Areas where BFE data has been provided, as set forth in this Subpart A, the following provisions in addition to those required in §42-234.1 (General Standards) are required:

1. Residential Construction. New construction and substantial improvement of any residential structure (including manufactured/mobile homes) shall have the reference level, including basement, elevated no lower than the Regulatory Flood Protection Elevation.
2. Nonresidential Construction. New construction and substantial improvement of any nonresidential structure shall have the reference level, including basement, elevated no lower than the Regulatory Flood Protection Elevation. Structures located in A, AE and AO Zones may be flood proofed to the Regulatory Flood Protection Elevation in lieu of elevation provided that all areas of the structure, together with attendant utility and sanitary facilities, below the required flood protection elevation are watertight with walls substantially impermeable to the passage of water, using structural components having the capability of resisting hydrostatic and hydrodynamic loads and the effect of buoyancy. For AO Zones, the flood proofing elevation shall be in accordance with §42-234.7 (Standards for Areas of Shallow Flooding (Zone AO)). A registered professional engineer or architect shall certify that the flood proofing standards of this subsection are satisfied. Such certification shall be provided to the Floodplain Administrator as set forth in §42-349 (Floodplain Development Permits) C (2) (Certification Requirements), along with operational plan and the maintenance and inspection plan.
3. Manufactured/Mobile Homes. No manufactured/mobile homes shall be permitted except replacement manufactured/mobile homes in an existing manufactured home park, existing manufactured home subdivision, or replacement manufactured/mobile homes on an individual parcel, provided the following conditions are met:
   1. Manufactured/mobile homes shall be elevated so that the reference level of the manufactured/mobile home is no lower than the Regulatory Flood Protection Elevation.
   2. Manufactured/mobile homes shall be securely anchored to an adequately anchored foundation to resist flotation, collapse, and lateral movement in accordance with the State of North Carolina Regulations for Manufactured Homes adopted by the Commissioner of Insurance pursuant to NCGS §143-143.15. Additionally, when the elevation would be met by an elevation of the chassis 36 inches or less above the grade at the site, the chassis shall be supported by reinforced piers or engineered foundation system. When the elevation of the chassis is above 36 inches in height, an engineering certification is required.
   3. All enclosures or skirting shall be in accordance with §42-234.2 (Specific Standards) D (Elevated Structures).
   4. An evacuation plan must be developed for evacuation of all residents of all substantially improved or substantially damaged manufactured/mobile home parks or subdivisions located within flood prone areas. This plan shall be filed with and approved by the Floodplain Administrator and the local Emergency Management coordinator.
4. Elevated Structures. Enclosed areas, of new construction or substantially improved structures, which are below the Regulatory Flood Protection Elevation shall:
   1. Not be designed to be used for human habitation, but shall only be used for parking of vehicles, structure access, or limited storage of maintenance equipment used in connection with the premises. Access to the enclosed area shall be the minimum necessary to allow for parking of vehicles (garage door) or limited storage of maintenance equipment (standard exterior door) or entry to the living area (stairway or elevator). The interior portion of such enclosed area shall not be partitioned or finished into separate rooms, except to enclose storage areas;
   2. Be constructed entirely of flood resistant materials at least to the Regulatory Flood Protection Elevation;
   3. Include, in Zones A, AO and AE, flood openings to automatically equalize hydrostatic flood forces on walls by allowing for the entry and exit of floodwaters. To meet this requirement, the openings must either be certified by a professional engineer or architect or meet or exceed the following minimum design criteria;
      
      1. Provide a minimum of two (2) openings on different sides of each enclosed area subject to flooding;
      2. The total net area of all openings must be at least one (1) square inch for each square foot of each enclosed area subject to flooding;
      3. If a structure has more than one (1) enclosed area, each area must have flood openings to allow floodwater to automatically enter and exit;
      4. The bottom of all required openings shall be no higher than one (1) foot above the adjacent grade; and,
      5. Flood openings may be equipped with screens, louvers, or other opening coverings or devices provided they permit the automatic flow of floodwaters in both directions.

Foundation enclosures made of flexible skirting are not considered enclosures for regulatory purposes, and, therefore, do not require openings. Masonry or wood skirting, regardless of structural status, is considered an enclosure and requires openings as outlined above.

5. Additions/Improvements.
   1. Additions and/or improvements to pre-FIRM structures where the addition and/or improvements in combination with any interior modifications to the existing structure are:
      
      1. Not a substantial improvement, the addition and/or improvements must be designed to minimize flood damages and must not be any more nonconforming than the existing structure.
      2. A substantial improvement, both the existing structure and the addition and/or improvements must comply with the standards for new construction.
   2. Additions to post-FIRM structures with no modifications to the existing structure other than standard door in the common wall shall require only the addition to comply with the standards for new construction.
   3. Additions and/or improvements to post-FIRM structures where the addition and/or improvements in combination with any interior modifications to the existing structure are:
      
      1. Not a substantial improvement, the addition and/or improvements only must comply with the standards for new construction.
      2. A substantial improvement, both the existing structure and the addition and/or improvements must comply with the standards for new construction.
   4. Where a fire wall or independent perimeter load-bearing wall is provided between the addition and the existing structure, the addition(s) shall be considered a separate structure and only the addition must comply with the standards for new construction.
6. Recreational Vehicles. Recreational vehicles (RVs) shall either:
   1. Be on site for fewer than 180 consecutive days and be fully licensed and ready for highway use (a recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick disconnect type utilities, and has no permanently attached additions); or
   2. Meet all the requirements for new construction. (See also §42-61 (Supplemental Requirements to the Table of Permitted and Special Uses) SR 4.15 (Recreational Vehicle Park).
7. Temporary Nonresidential Structures. Prior to the issuance of a Floodplain Development Permit for a temporary structure, applicants must submit to the Floodplain Administrator a plan for the removal of such structure(s) in the event of a hurricane, flash flood or other type of flood warning notification. The following information shall be submitted in writing to the Floodplain Administrator for review and written approval:
   1. A specified time period for which the temporary use will be permitted, time specified may not exceed three (3) months, renewable up to one (1) year;
   2. The name, address, and phone number of the individual responsible for the removal of the temporary structure;
   3. The timeframe prior to the event at which a structure will be removed (i.e. minimum of 72 hours before landfall of a hurricane or immediately upon flood warning notification);
   4. A copy of the contract or other suitable instrument with the entity responsible for physical removal of the structure insuring the availability of removal equipment when needed; and
   5. Designation, accompanied by documentation, of a location outside the Special Flood Hazard Area to which the temporary structure will be moved.
8. Accessory Structures. When accessory structures (sheds, detached garages, etc.) are to be placed within a Special Flood Hazard Area, the following criteria shall be met:
   1. Accessory structures shall not be used for human habitation (including working, sleeping, living, cooking or restroom areas);
   2. Accessory structures shall not be temperature controlled;
   3. Accessory structures shall be designed to have low flood damage potential;
   4. Accessory structures shall be constructed and placed on the structure site so as to offer the minimum resistance to the flow of floodwaters;
   5. Accessory structures shall be firmly anchored in accordance with §42-234.1 (General Standards) B(1);
   6. All service facilities such as electrical and heating equipment shall be installed in accordance with 42-234.1 (General Standards) B(2);
   7. Flood openings to facilitate automatic equalization of hydrostatic flood forces shall be provided below Regulatory Flood Protection Elevation in conformance with §42-234.2 (Specific Standards) D (Elevated Structures) (3);
   8. An accessory structure with a footprint less than 150 square feet does not require an elevation or flood proofing certificate (a Floodplain Development Permit is still required). Elevation or flood proofing certifications are required for all other accessory structures in accordance with §42-349 (Floodplain Development Permits) C (2) (Certification Requirements).

No new manufactured home parks or manufactured home subdivisions shall be allowed within a Special Flood Hazard Area (except that where real estate located within a Special Flood Hazard Area which is a part of such Manufactured Home Park or subdivision and upon which no development has occurred can be considered as “open space” within such park or subdivision). In addition, manufactured home parks and manufactured home subdivisions existing on the date of original enactment (July 5, 2005) of this Subpart A may not be expanded. All other subdivisions or other residential development located wholly or in part within a Special Flood Hazard Area shall:

1. Be consistent with the need to minimize flood damage;
2. Have public utilities and facilities such as sewer, gas, electrical, and water systems located and constructed to minimize flood damage;
3. Have adequate drainage provided to reduce exposure to flood hazards; and,
4. Have Base Flood Elevation (BFE) data provided if development is greater than the lesser of five (5) acres or 50 lots / manufactured/mobile home sites. Such Base Flood Elevation (BFE) data shall be adopted by reference in accord with §42-232.2 (Basis for Establishing the Special Flood Hazard Areas) in implementing this Subpart A.

Within the Special Flood Hazard Areas designated as Approximate Zone A and established in §42-232.2 (Basis for Establishing the Special Flood Hazard Areas), where no BFE data has been provided by FEMA, the following provisions, in addition to §42-234.1 (General Standards), shall apply:

1. No encroachments, including fill, new construction, substantial improvements or new development shall be permitted within a distance of 20 feet from each side of the stream measured from the top of the bank or five (5) times the width of the stream, whichever is greater, unless certification with supporting technical data by a registered professional engineer is provided demonstrating that such encroachments shall not result in any increase in flood levels during the occurrence of the base flood discharge.
2. The BFE used in determining the Regulatory Flood Protection Elevation shall be determined based on one (1) of the following criteria set in priority order:
   
   1. When BFE data is available from other sources, such as Federal, State or other, all new construction and substantial improvements within such areas shall also comply with all applicable provisions of this subpart and shall be elevated or flood proofed in accordance with standards in this §42-234.1 (General Standards) and §42-234.2 (Specific Standards).
   2. When floodway or non-encroachment area data are available from a Federal, State, or other source, all new construction and substantial improvements within floodway and non-encroachment areas shall also comply with the requirements of §42-234.2 (Specific Standards) and §42-234.6 (Floodways and Non-Encroachment Areas).
   3. When a subdivision, manufactured home park or other development proposal is greater than five (5) acres or has more than 50 lots/manufactured home sites/spaces, BFE data shall be provided. Such BFE data shall be adopted by reference in accordance with §42-232.2 (Basis for Establishing the Special Flood Hazard Areas).
   4. When BFE data is not available from a Federal, State, or other source as outlined above, the reference level shall be elevated or flood proofed to or above the Regulatory Flood Protection Elevation as defined in Article XIV (Definitions).

Along rivers and streams where BFE data is provided by FEMA or is available from another source but neither floodway nor non-encroachment areas are identified for a Special Flood Hazard Area on the FIRM or in the FIS reports, the following requirements shall apply to all development within such areas:

1. Standards outlined in §42-234 (Flood Hazard Reduction); and
2. Until a regulatory floodway or non-encroachment area is designated, No encroachments, including fill, new construction, substantial improvements, or other development, shall be permitted unless certification with supporting technical data by a registered professional engineer is provided demonstrating that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one (1) foot at any point within the community.

Areas designated as floodways or non-encroachment areas are located within the Special Flood Hazard Areas established in §42-232.2 (Basis for Establishing the Special Flood Hazard Areas). The floodways and non- encroachment areas are extremely hazardous areas due to the velocity of floodwaters that have erosion potential and carry debris and potential projectiles. The following provisions, in addition to the standards outlined in §42-234.1 (General Standards) and §42-234.2 (Specific Standards), shall apply to all development within such areas.

1. No encroachments, including fill, new construction or substantial improvements shall be permitted unless:
   
   1. The structure is a functionally dependent facility, excluding enclosed structures, new water and sewer lines provided no viable alternative exists, recreational uses (excluding enclosed structures) and stream bank restoration projects, provided the requirements of §42-234.2 (Specific Standards) and §42-234.6 (Floodways or Non-Encroachment Areas) A (2) are met;
   2. The parcel owner first having obtained and submitted to the Floodplain Administrator an acceptable certification by a registered professional engineer proving that the anticipated encroachment(s) shall not result in any increase in the elevation of the regulatory flood during an occurrence of the base flood. The Floodplain Administrator shall require documentation of the certification which shall include either:
      
      1. A completed “engineering no-rise” certification form as published by FEMA, or acceptable alternative form approved by FEMA together with:
         
         1. Technical documentation in the form of detailed site and construction plans, showing that all requirements of this Subpart A are met;
         2. Technical documentation in the form of hydraulic analysis of the existing and proposed conditions. This documentation shall be either: complete runs of existing and proposed conditions using the HEC II/HEC-RAS step backwater analysis computer program as prepared by the US Army Corps of Engineers for the analysis of flow plan hydraulics; or
         3. An alternative method currently approved by FEMA for use in the revision process for FEMA flood maps. In this case, the engineer shall provide a letter from FEMA indicating that the method used is acceptable; or
      2. A Conditional Letter of Map Revision (CLOMR) which has been approved by FEMA. A Letter of Map Revision (LOMR) must also be obtained upon completion of the proposed encroachment.
2. If 234.6 (Floodways or Non-encroachment Areas) A is satisfied, all development shall comply with all applicable flood hazard reduction provisions of this Subpart A.
3. No manufactured/mobile homes shall be permitted, except replacement manufactured/mobile homes in an existing manufactured home park or subdivision, provided the following provisions are met:
   
   1. The anchoring and the elevation standards of §42-234.2 (Specific Standards) C (Manufactured/Mobile Homes); and
   2. The no encroachment standard of §42-234.6 (Floodways of Non-encroachment Areas).

Located within the Special Flood Hazard Areas established in §42-232.2 (Basis for Establishing the Special Flood Hazard Areas) designated as shallow flooding areas. These areas have special flood hazards associated with base flood depths of one (1) to three (3) feet where a clearly defined channel does not exist and where the path of flooding is unpredictable and indeterminate. In addition to §42-234.1 (General Standards) and §42-234.2 (Specific Standards), all new construction and substantial improvements shall meet the following requirements:

1. The reference level shall be elevated at least as high as the depth number specified on the FIRM, in feet, plus a freeboard of two (2) feet, above the highest adjacent grade; or at least four (4) feet above the highest adjacent grade if no depth number is specified.
2. Nonresidential structures may, in lieu of elevation, be flood proofed to the same level as required by §42-234.7 (Standards for Areas of Shallow Flooding (Zone AO)) (1) so that the structure, together with attendant utility and sanitary facilities, below that level shall be watertight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. Certification is required in accordance with §42-349 (Floodplain Development Permits) C (2) (Certification Requirements) and §42-234.2 (Specific Standards) B (Nonresidential Construction).
3. Adequate drainage paths shall be provided around structures on slopes, to guide flood waters around and away from the structures.

This Subpart A in part comes forward by re-enactment of some of the provisions of the Flood Damage Prevention Ordinance enacted July 5, 2005 as amended, and it is not the intention to repeal but rather to re-enact and continue to enforce without interruption of such existing provisions, so that all rights and liabilities that have accrued thereunder are reserved and may be enforced. The enactment of this ordinance shall not affect any action, suit or proceeding instituted or pending. All provisions of the Flood Damage Prevention Ordinance of Henderson County enacted on July 5, 2005, as amended, which are not reenacted herein are repealed. The dates of the initial flood damage prevention ordinance for each municipal jurisdiction within Henderson County are as follows:

1. Town of Fletcher, dated January 13, 2003
2. City of Hendersonville, dated January 7, 1982
3. Town of Laurel Park, dated December 20, 2005

Nothing herein contained shall require any change in the plans, construction, size or designated use of any development or any part thereof for which a Floodplain Development Permit has been granted by the Floodplain Administrator or his or her authorized agents before the time of passage of this Subpart A; provided, however, that when construction is not begun under such outstanding permit within a period of six (6) months subsequent to passage of this subpart or any revision thereto, construction or use shall be in conformity with the provisions of this Subpart A.

Nothing herein contained shall require any change in the plans, construction, size or designated use of any development or any part thereof for which a Building Permit has been granted by the Building Codes Administrator or his authorized agents before the time of passage of this Subpart A (July 5, 2005); provided, however, that when construction is not begun under such outstanding permit within a period of six (6) months subsequent to passage of this subpart or any revision thereto, construction or use shall be in conformity with the provisions of this Subpart A.

Subpart A originally became effective 30 July 2005 as amended through 1 October 2008.

This Subpart B is adopted pursuant to North Carolina law, including but not limited to Article 14, Section 5 of the Constitution of North Carolina; NCGS 143-214.7 and rules promulgated by the North Carolina Environmental Management Commission (NCEMC) thereunder;; NCGS 113A, Article 4; NCGS 143, Article 21, Part 6; and the authority vested by NCGS Chapter 160D-925 and Chapter 143, Article 21 (Watershed and Air Resources).

Further, the Federal Water Pollution Control Act of 1972 (“Clean Water Act”) and federal Water Quality Rules promulgated under it, as well as rules of the NCEMC promulgated in response to federal Phase II requirements, compel certain urbanized areas, including this jurisdiction, to adopt minimum stormwater controls such as those included in this Subpart B.

This Subpart B shall not be construed to repeal or modify applicable local, state and federal laws, except that to the extent that the provisions of this Subpart B conflict with any applicable local, state or federal laws, the most stringent of all applicable laws shall govern. It is not intended that these regulations interfere with any easement, covenants or other agreements between parties. However, if the provisions of these regulations impose greater restrictions or higher standards for the use of a structure or land, then the provisions of these regulations shall control.

1. Development and redevelopment alter the hydrologic response of local watersheds and as reduce groundwater recharge increase:
   
   1. Stormwater runoff rates and volumes,
   2. Flooding,
   3. Soil erosion,
   4. Stream channel erosion,
   5. Nonpoint and point source pollution, and
   6. Sediment transport and deposition.
2. Changes in stormwater runoff contribute to increased quantities of water-borne pollutants and alterations in hydrology that are harmful to public health and safety and the natural environment;
3. These effects can be managed and minimized by applying proper design and well-planned controls to manage stormwater runoff from development sites; and
4. The Federal Water Pollution Control Act of 1972 (“Clean Water Act”) and federal Phase II Stormwater Rules promulgated under it, as well as rules of the North Carolina Environmental Management Commission promulgated in response to federal Phase II requirements, compel certain urbanized areas, including this jurisdiction, to adopt minimum stormwater controls such as those included in this Subpart B.
5. It is the intention of the Board of Commissioners to enact provisions which are identical to those existing under the laws of the State of North Carolina, and provisions which in no event are more restrictive of the landowners of Henderson County than those of the State of North Carolina.

1. General. The provisions established in this Subpart B are designed to protect, maintain, and enhance public health, safety, environment and general welfare and protect water and aquatic resources by:
   
   1. Managing (by enforcing standards which shall limit the impact from existing or potential sources of contamination through the regulation of lot sizes and development intensity ) the uses of land and structures encompassed by watersheds in order to maintain the high quality of surface water in these watersheds;
   2. Managing (by establishing minimum requirements and procedures to control the adverse effects of increased post-development stormwater runoff and nonpoint and point source pollution associated with new development and redevelopment) construction-related and post-development stormwater runoff to minimize damage to public and private property and infrastructure;
2. Specific. This Subpart B seeks to meet its general purpose by:
   1. Establishing decision-making processes for development that protect the integrity of watersheds and preserve the health of water resources;
   2. Requiring new development and redevelopment maintain the pre-development hydrologic response in their post-development state as nearly as practicable for the applicable design storm to reduce flooding, stream bank erosion, nonpoint and point source pollution and increases in stream temperature, and to maintain the integrity of stream channels and aquatic habitats;
   3. Establishing minimum post-development stormwater management standards and design criteria for the regulation and control of stormwater runoff quantity and quality;
   4. Establishing design and review criteria for the construction, function, and use of structural stormwater BMPs that may be used to meet the minimum post-development stormwater management standards;
   5. Encouraging the use of better management and site design practices, such as the use of vegetated conveyances for stormwater and the preservation of green space, riparian buffers and other conservation areas to the maximum extent practicable;
   6. Establishing provisions for the long-term responsibility for and maintenance of structural stormwater BMPs and nonstructural stormwater BMPs to ensure that they continue to function as designed, are maintained appropriately, and pose no threat to public safety;
   7. Establishing administrative procedures for the submission, review, approval and disapproval of stormwater management plans, for the inspection of approved projects, and to assure appropriate long-term maintenance.

This Subpart B shall apply to all land-disturbing activity, development and redevelopment including, but not limited to, site plan applications, subdivision applications, and grading applications) within the unincorporated areas of Henderson County and its municipalities as allowed by agreement between local governments, other appropriate legal instrument or law. Water supply watershed regulations shall apply within any unincorporated areas and also to incorporated areas specifically requesting enforcement by Henderson County upon the consent of the Commissioners, and which are designated as a public water supply watershed by NCEMC and delineated on the map titled "Henderson County Water Supply Watershed Protection Map," herein referred to as the "Watershed Map," as amended. (In making such a request, the city or town must comply with the requirements of NCGS §160D-926.) The Watershed Map and all explanatory matter contained thereon accompany and are hereby made a part of this Chapter. This Chapter shall be permanently kept, along with subsequent amendments thereto, on file in the office of the Clerk to the Board of Commissioners.

In cases where a municipality extends its extraterritorial jurisdiction into a watershed herein defined, the restrictions applicable to development in that watershed shall remain in effect until they are amended or repealed or until the County and such municipality, by mutual consent, transfer authority to administer and enforce watershed regulations not inconsistent with state rules.

Stormwater management regulations shall apply within any unincorporated and also to any incorporated areas specifically requesting enforcement by Henderson County upon the consent of the Commissioners, provided that areas designated as a public water supply watershed by NCEMC and delineated on the Watershed Map are specifically excluded. A map shall be maintained by the Stormwater Administrator indicating the geographic location of all structural best management practices permitted under this Subpart B.

The “Water Quality Administrator” hereby appointed and authorized to administer and enforce the water SUPPLY WATERSHED and stormwater regulations under the terms and conditions of this Subpart B.

The Watershed Protection Overlay District (and the subdistricts thereof) is/are outlined in Article II of this Chapter. The Watershed Protection Overlay District, and all regulations outlined therein, is included by reference in this Subpart B.

For purposes of this Subpart B, all watershed areas designated by the North Carolina Environmental Management Commission which are within the County's jurisdiction pursuant to Article II of this Chapter are shown on the Official Water Supply Watershed Map which is maintained by the Water Quality Administrator.

Where uncertainty exists as to the boundaries of the watershed areas, as shown on the Watershed Map, the following rules shall apply. Where:

1. Area boundaries are indicated as approximately following either road, alley, railroad or highway lines or center lines thereof, such lines shall be construed to be said boundaries;
2. Area boundaries are indicated as approximately following lot lines, such lot lines shall be construed to be said boundaries. However, a surveyed plat prepared by a professional land surveyor may be submitted to Henderson County as evidence that one or more properties along these boundaries do not lie within the watershed area;
3. Area boundaries lie at a scaled distance more than 25 feet from any parallel lot line, the location of watershed area boundaries shall be determined by use of the scale appearing on the Watershed Map;
4. Area boundaries lie at a scaled distance of 25 feet or less from any parallel lot line, the location of watershed area boundaries shall be construed to be the lot line; and
5. Other uncertainty exists; the Water Quality Administrator shall interpret the Watershed Map as to the location of such boundaries. This decision may be appealed to the Water Quality Board.

A Water Supply Watershed Use Permit, Watershed Protection Compliance Permit and Watershed High-Density Development Permit (§42-360) shall be required in conformance with the provisions of this Chapter for development activities within the water supply watershed.

1. Minimizing Impact on Water Quality. No building or land shall hereafter be used and no development shall take place except in conformity with the regulations herein specified for the watershed area in which it is located. All development must minimize built-upon surface area; direct stormwater away from surface waters; and incorporate best management practices to minimize water quality impacts.
2. Prevent Impact on Water Quality and Public Health. No activity, situation, structure or land use shall be allowed within the watershed which poses a threat to water quality and the public health, safety and welfare. Such conditions may arise from inadequate on-site sewage systems which utilize ground absorption; inadequate sedimentation and erosion control measures; the improper storage or disposal of junk, trash or other refuse within a buffer area; the improper management of stormwater runoff; or any other situation found to pose a threat to water quality.
3. Nontransferable Area. No area required for the purpose of complying with the provisions of this Subpart B shall be included in the area required for another building.

Subdivisions of land within defined watershed areas shall require a plat to be prepared, approved and recorded pursuant to this Subpart B. No subdivision plat within a water supply watershed shall be filed or recorded by the Register of Deeds until it has been approved in accordance with the provisions of this Chapter and certified as being in compliance with the terms of this Subpart B by the Water Quality Administrator. Likewise, the Clerk of Superior Court shall not order or direct the recording of a plat if the recording of such plat would be in conflict with this Subpart B. Subdivisions within a designated watershed area shall adhere to the following additional processes:

1. Upon receipt of an application for the subdivision of property as set forth in Article III, such application shall be reviewed by the Water Quality Administrator to determine if such property lies wholly or in part within a water supply watershed area.
2. If a parcel is determined to be in a watershed, the Water Quality Administrator shall determine if such application complies with the requirements of this Chapter and shall certify to such on any application forms, on preliminary development drawings and on any plat proposed for recordation. The certification shall state:

I certify that property shown on this plat is located in a watershed area classified _____________________. The plat shown here on complies with the Henderson County Water Supply Watershed Protection Requirements and is approved for recordation in the Register of Deeds office.

___________________________            __________________________

 Water Quality Administrator                                        Date

This certification shall constitute water supply watershed development approval and shall not operate so as to amend, repeal or replace any other approvals or certifications required on such plat by other applicable local, state or federal laws.

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

1. Stormwater BMP Manual. The Water Quality Administrator shall use the policy, criteria, and information, including technical specifications and standards, in the Stormwater BMP Manual as the basis for decisions about Stormwater Management Permits and about the design, implementation and performance of structural stormwater BMPs and non-structural stormwater BMPs. The Stormwater BMP Manual includes a list of acceptable stormwater treatment practices, including specific design criteria for each stormwater practice. Stormwater treatment practices that are designed, constructed, and maintained in accordance with these design and sizing criteria will be presumed to meet the minimum water quality performance standards of the Phase II laws.
2. Relationship of Stormwater BMP Manual to Other Laws and Regulations. If the specifications or guidelines of the Stormwater BMP Manual are more restrictive or apply a higher standard than other laws or regulations, that fact shall not prevent application of the specifications or guidelines in the Stormwater BMP Manual.
3. Changes to Standards and Specifications. If the standards, specifications, guidelines, policies, criteria, or other information in the Stormwater BMP Manual are amended subsequent to the submittal of an application for approval pursuant to this Subpart B but prior to approval, the new information shall control and shall be utilized in reviewing the application and in implementing this Subpart B with regard to the application.

1. A Stormwater Management Permit (see §42-356 (Stormwater Management Permit)) shall not be required for development and redevelopment that: (1) cumulatively disturbs less than one (1) acre and is not part of a larger common plan of development or sale is exempt from the provisions of this Subpart B; (2) occurs within a designated water supply watershed; or (3) occurs within a larger development for which a stormwater management permit has been issued, provided the property owner complies with the requirements of the overall project’s stormwater management permit. A Stormwater Management Permit (see §42-356 (Stormwater Management Permit)) shall be required in conformance with the provisions of this Chapter for:
   
   1. Development and redevelopment that cumulatively disturbs more than one (1) acre and is not part of a larger common plan of development or sale;
   2. Development and redevelopment that disturb less than one (1) acre where such activities are part of a larger common plan of development or sale, even though multiple, separate or distinct activities take place at different times on different schedules; or
   3. Any activity not exempt from permit requirements of Section 404 of the Federal Clean Water Act as specified in 40 CFR 232 (primarily, ongoing agriculture and forestry activities).
2. Where a Stormwater Management Permit is required for a high-density project as noted in §42-239.5 (Standards for High-Density Projects), stormwater control measures shall be implemented that comply with each of the following standards:
   
   1. The measures shall control and treat stormwater runoff from the first inch of rain over a 24-hour period. Runoff volume drawdown time shall be a minimum of 48 hours, but not more than 120 hours.
   2. All structural stormwater treatment systems used to meet these requirements shall be designed to have a minimum of 85% average annual removal for Total Suspended Solids (TSS).
   3. General engineering design criteria for all projects shall be in accordance with 15A NCAC 2H .1008(c), as explained in the Stormwater BMP Manual.

No development or redevelopment shall occur except in compliance with the provisions of this Subpart B or unless exempted. No development for which a permit is required pursuant to this Subpart B shall occur except in compliance with the provisions, conditions, and limitations of the permit.

The approval of the Stormwater Management Permit shall require an enforceable restriction on property usage that runs with the land, such as a recorded deed restriction or protective covenants, to ensure that future development and redevelopment maintains the site consistent with the approved project plans

A low-density project:

1. Has no more than two (2) dwelling units per acre or 24 percent built-upon area for all residential and non-residential development; and
2. The overall density of a project is at or below the relevant low-density threshold (and which may contain areas with a density greater than the overall project density, provided the project meets or exceeds the post construction model practices for low-density projects and, to the maximum extent practicable, locates the higher-density portion in upland areas and away from surface waters and drainage ways).

A high-density project is anything that exceeds the thresholds outlined herein above.

Stormwater runoff from the development shall be transported from the development by vegetated conveyances to the maximum extent practicable.

High-density projects shall implement stormwater control measures that comply with each of the standards outlined in §42-239.2 (Establishment of Stormwater Management Permit) B.

1. Evaluation According to Contents of Stormwater BMP Manual. All stormwater control measures and structural stormwater BMPs required under this Subpart B shall be evaluated by the Water Quality Administrator according to the policies, criteria, and information, including technical specifications and standards and the specific design criteria for each stormwater practice, in the Stormwater BMP Manual. The Water Quality Administrator shall determine whether proposed stormwater BMPs will be adequate to meet Subpart B requirements.
2. Determination of Adequacy; Presumptions and Alternatives. Stormwater treatment practices that are designed, constructed, and maintained in accordance with the criteria and specifications in the Stormwater BMP Manual will be presumed to meet the minimum water quality and quantity performance standards of Subpart B. Whenever an applicant proposes to utilize a practice or practices not designed and constructed in accordance with the criteria and specifications in the Stormwater BMP Manual, the applicant shall have the burden of demonstrating that the practice(s) will satisfy the minimum water quality and quantity performance standards of Subpart B. The Water Quality Administrator may require the applicant to provide the documentation, calculations, and examples necessary so he/she may determine whether such an affirmative showing is made.
3. Separation from Seasonal High Water Table. For stormwater BMPs that require a separation from the seasonal high water table, the separation shall be provided by at least 12 inches of naturally occurring soil above the seasonal high water table.

In addition to the standards for handling stormwater set out in the Stormwater BMP Manual, development and redevelopment that drains in whole or part to class TR waters shall design and implement the best stormwater practices that do not result in a sustained increase in receiving water temperature, while still meeting the other requirements of Subpart B.

1. Final Approvals, Complete Applications. All development and redevelopment projects for which complete and full applications were submitted and approved by the County prior to the effective date of Subpart B and which remain valid, unexpired, unrevoked and not otherwise terminated at the time of development or redevelopment shall be exempt from complying with all provisions of this subpart dealing with the control and/or management of post-construction runoff, but shall be required to comply with all other applicable provisions. A phased development plan shall be deemed approved prior to the effective data of Subpart B if it has been approved by all necessary government units, it remains valid, unexpired, unrevoked and not otherwise terminated, and it shows for:
   
   1. The initial or first phase of development, the type and intensity of use for a specific parcel or parcels, including at a minimum, the boundaries of the project and a subdivision plan that has been approved.
   2. Any subsequent phase of development, sufficient detail so that implementation of the requirements of Subpart B to that phase of development would require a material change in that phase of the plan.
2. Violations Continue. Any violation of provisions existing on the effective date of Subpart B shall continue to be a violation under this Subpart B and be subject to penalties and enforcement under this subpart unless the use, development, construction, or other activity complies with the provisions of this Subpart B.

1. Operation and Maintenance Requirements. New and replaced onsite systems for domestic wastewater installed after the effective date of Subpart B shall be subject to the same requirements for operation and maintenance as structural stormwater BMPs for stormwater, including, at a minimum, annual inspection reports and a recorded operation and maintenance agreement, pursuant to §42-240 (Maintenance).
2. Standards for Operation and Maintenance. Onsite systems for domestic wastewater covered by Subpart B shall be operated and maintained so as to avoid adverse effects on surface water and groundwater, including eutrophication of surface water and microbial or nitrate contamination of groundwater. Septic tank residuals shall be pumped whenever necessary to assure the proper operation of the system to meet these standards, and the septage shall be reused or disposed of in a manner that does not present significant risks to human health, surface water or groundwater.

Exceptions shall be granted from the 30 foot landward location of built-upon area requirement and deed restrictions/protective covenants requirements in any of the following instances:

1. When there is a lack of practical alternatives for a:
   
   1. Road crossing,
   2. Railroad crossing,
   3. Bridge,
   4. Airport facility,
   5. Utility crossing
   6. Stormwater management facility,
   7. Stormwater management pond, or
   8. Utility (including, but not limited to, water, sewer, or gas construction and maintenance corridor)

And such are located, designed, constructed, and maintained to:

1. Minimize disturbance,
2. Provide maximum nutrient removal,
3. Protect against erosion and sedimentation,
4. Have the least adverse effects on aquatic life and habitat,
5. Protect water quality to the maximum extent practicable through the use of BMPs, and
6. Remain 15 feet landward of all perennial and intermittent surface waters (this provision applies only to stormwater management facilities, stormwater management ponds, and stormwater utility).

2. Showing a Lack of Practical Alternatives. A lack of practical alternatives may be shown by demonstrating that, considering the potential for a reduction in size, configuration, or density of the proposed activity and all alternative designs, the basic project purpose cannot be practically accomplished in a manner which would avoid or result in less adverse impact to surface waters.

The County may, but is not obligated to, accept dedication of any existing or future stormwater management facility for maintenance, provided such facility meets all the requirements of Subpart B and includes adequate and perpetual access and sufficient area, by easement or otherwise, for inspection and regular maintenance.

1. Function of Stormwater BMPs As Intended. The owner of each structural stormwater BMP installed pursuant to Subpart B shall maintain and operate it so as to preserve and continue its function in controlling stormwater quality and quantity at the degree or amount of function for which the structural stormwater BMP was designed.
2. Annual Maintenance Inspection and Report. The person responsible for maintenance of any structural stormwater BMP installed pursuant to Subpart B shall submit to the Water Quality Administrator an inspection report from either a qualified registered North Carolina professional engineer or landscape architect. The inspection report shall contain all of the following:
   
   1. The name and address of the land owner;
   2. The recorded book and page number of the lot of each structural BMP;
   3. A statement that an inspection was made of all structural stormwater BMPs;
   4. The date the inspection was made;
   5. A statement that all inspected structural stormwater BMPs are performing properly and are in compliance with the terms and conditions of the approved maintenance agreement required by Subpart B; and
   6. The original signature and seal of the engineer or landscape architect.

All inspection reports shall be on forms supplied by the Water Quality Administrator. An original inspection report shall be provided to the Water Quality Administrator beginning one (1) year from the date of as-built certification and each year thereafter on or before the date of the as-built certification.

1. In General. Prior to the conveyance or transfer of any lot or building site to be served by a structural stormwater BMP pursuant to Subpart B, and prior to issuance of any permit for development or redevelopment requiring a structural stormwater BMP pursuant to Subpart B, the applicant or owner of the site must execute an operation and maintenance agreement that shall be binding on all subsequent owners of the site, portions of the site, and lots or parcels served by the structural BMP. Until the transference of all property, sites, or lots served by the structural BMP, the original owner or applicant shall have primary responsibility for carrying out the provisions of the maintenance agreement.

The operation and maintenance agreement shall require the owner or owners maintain, repair and, if necessary, reconstruct the structural BMP, and shall state the terms, conditions, and schedule of maintenance for the structural BMP. In addition, it shall grant the County a right of entry in the event that the Water Quality Administrator has reason to believe it has become necessary to inspect, monitor, maintain, repair, or reconstruct the structural BMP; however, in no case shall the right of entry, of itself, confer an obligation on the County to assume responsibility for the structural BMP.

The operation and maintenance agreement must be approved by the Water Quality Administrator prior to plan approval, and it shall be referenced on the final plat and shall be recorded with the County Register of Deeds upon final plat approval.  A copy of the recorded maintenance agreement shall be given to the Water Quality Administrator within 14 days following its recordation. 

2. Special Requirement for Homeowners’ and Other Associations. For all structural stormwater BMPs required pursuant to Subpart B and that are to be or are owned and maintained by a homeowners’ association, property owners’ association, or similar entity, the required operation and maintenance agreement shall include all of the following provisions:
   1. Acknowledgment that the association shall continuously operate and maintain the stormwater control and management facilities.
   2. Granting to the County a right of entry to inspect, monitor, maintain, repair, and reconstruct structural stormwater BMPs.
   3. Allowing the County to recover from the association and its members any and all costs the County expends to maintain or repair the structural stormwater BMPs or to correct any operational deficiencies. Failure to pay the County all of its expended costs, after 45 days written notice, shall constitute a breach of the agreement. In case of a deficiency, the County shall thereafter be entitled to bring an action against the association and its members to pay, or foreclose upon the lien hereby authorized by the agreement against the property, or both. Interest, collection costs, and attorney fees shall be added to the recovery.
   4. A statement that this agreement shall not obligate the County to maintain or repair any structural stormwater BMPs, and the County shall not be liable to any person for the condition or operation of structural stormwater BMPs.
   5. A statement that this agreement shall not in any way diminish, limit, or restrict the right of the County to enforce any of its ordinances as authorized by law.
   6. A provision indemnifying and holding harmless the County for any costs and injuries arising from or related to the structural stormwater BMP, unless the County has agreed in writing to assume the maintenance responsibility for the BMP and has accepted dedication of any and all rights necessary to carry out that maintenance.

Inspections and inspection programs by the County may be conducted or established on any reasonable basis, including but not limited to routine inspections; random inspections; inspections based upon complaints or other notice of possible violations; and joint inspections with other agencies inspecting under environmental or safety laws. Inspections may include, but are not limited to, reviewing maintenance and repair records; sampling discharges, surface water, groundwater, and material or water in stormwater BMPs; and evaluating the condition of stormwater BMPs.

If the owner or occupant of any property refuses to permit such inspection, the Water Quality Administrator shall proceed to obtain an administrative search warrant pursuant to NCGS 15-27.2 or its successor. No person shall obstruct, hamper or interfere with the Water Quality Administrator while carrying out his/her official duties.

1. Deed Recordation and Indications on Plat. The applicable operations and maintenance agreement, conservation easement, or dedication and acceptance into public maintenance (whichever is applicable) pertaining to every structural stormwater BMP shall be referenced on the final plat and shall be recorded with the County Register of Deeds upon final plat approval. If no subdivision plat is recorded for the site, the operations and maintenance agreement, conservation easement, or dedication and acceptance into public maintenance, whichever is applicable shall be recorded with the County Register of Deeds so as to appear in the chain of title of all subsequent purchasers under generally accepted searching principles.
2. Signage. Where appropriate in the determination of the Water Quality Administrator to assure compliance with this Subpart B, structural stormwater BMPs shall be posted with a conspicuous sign stating who is responsible for required maintenance and annual inspection. The sign shall be maintained so as to remain visible and legible.

The owner of each structural stormwater BMP shall keep records of inspections, maintenance, and repairs for at least five (5) years from the date of creation of the record and shall submit the same upon reasonable request to the Water Quality Administrator.

The owner of each stormwater BMP, whether structural stormwater BMP or non-structural BMP, shall maintain it so as not to create or result in a nuisance condition.

Every structural stormwater BMP installed pursuant to Subpart B shall be made accessible for adequate maintenance and repair by a maintenance easement. The easement shall be recorded and its terms shall specify who may make use of the easement and for what purposes

Any person who erects, constructs, reconstructs, alters (whether actively or passively), or fails to erect, construct, reconstruct, alter, repair or maintain any structure, BMP, practice, or condition in violation of this Subpart B shall be subject to the remedies, penalties, and/or enforcement actions in accordance with this §42-377 (Violations). Persons subject to the remedies and penalties set forth herein may include any architect, engineer, builder, contractor, developer, agency, or any other person who participates in, assists, directs, creates, causes, or maintains a condition that results in or constitutes a violation of this Subpart B, or fails to take appropriate action, so that a violation of the same results or persists; or an owner, any tenant or occupant, or any other person, who has control over, or responsibility for, the use or development of the property on which the violation occurs. Responsible person(s) shall include but not be limited to:

1. Person Maintaining Condition Resulting In or Constituting Violation. An architect, engineer, builder, contractor, developer, agency, or any other person who participates in, assists, directs, creates, causes, or maintains a condition that constitutes a violation of this Subpart B or fails to take appropriate action, so that a violation of the same results or persists.
2. Responsibility For Land or Use of Land. The owner of the land on which the violation occurs, any tenant or occupant of the property, any person who is responsible for stormwater controls or practices pursuant to a private agreement or public document, or any person, who has control over, or responsibility for, the use, development or redevelopment of the property.

The Board of Commissioners shall establish permit review fees as well as policies regarding refund of any fees upon withdrawal of an application, and may amend and update the fees and policies from time to time.

This stormwater regulation of this Subpart B shall take effect September 1, 2010

If the provisions of any section, subsection, paragraph, subdivision or clause of Subpart B shall be adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or invalidate the remainder of any section, subsection, paragraph, subdivision or clause of this subpart. Notwithstanding any other provision contained herein, nothing herein shall be construed to restrict any property owner subject to this ordinance in any manner or to any extent greater than otherwise would be the case in the absence of the adoption of this Ordinance. Any provision hereof which restricts any property owner subject to this ordinance in any manner or to any extent greater than otherwise would be the case in the absence of the adoption of this Ordinance is declared to be a nullity, and shall have no effect.

A surface water shall be deemed present if the feature is approximately shown on either the most recent version of the soil survey map prepared by the Natural Resources Conservation Service of the United States Department of Agriculture or the most recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic maps prepared by the United States Geological Survey (USGS). An exception to this requirement may be allowed when surface waters are not present in accordance with the provisions of 15A NCAC 2B .0233 (3)(a) or similar site-specific determination made using methodology approved by NCDENR Division of Water Quality. All built-upon area shall be at a minimum of:

1. 30 feet landward of all perennial and intermittent surface waters; or
2. 100 feet landward of any perennial surface waters located within a water supply watershed when using the high-density option.

Desirable artificial stream bank or shoreline stabilization is permitted. No new development is allowed in the buffer except for water dependent structures, other structures such as flag poles, signs and security lights which result in only minimal increases in impervious surface area and public projects, such as road crossings and greenways where no practical alternative exists. These activities should minimize built-upon area; direct runoff away from the surface waters; and maximize the utilization of stormwater best management practices.

The 300 foot elevation requirement shall be eliminated from the definition of “protected mountain ridges” for Henderson County as authorized by NCGS 113A-206(6), and the Board of Commissioners requests that the provisions of NCGS 113A-206(6) apply to all mountain ridges in Henderson County whose elevation is 500 feet or more above the valley floor beginning January 1, 1984.

Note: The foregoing is a re-codification of an ordinance adopted by Henderson County in 1983. The adoption of the Henderson County Land Development Code only relocated its text within the Henderson County Code. Following is the applicable North Carolina General Statute as of November 6, 1983. Henderson County will make every attempt to update the language in this section in a timely manner as the State revised its Protected Mountain Ridges legislation. Below is Article 14 which describes the Mountain Ridge Protection Act of 1983, but readers are directed to the North Carolina General Statues for the most current text.

ARTICLE 14.

MOUNTAIN RIDGE PROTECTION

§ 113A-205. Short title.

This Article shall be known as the Mountain Ridge Protection Act of 1983. (1983, c. 676, s. 1.)

113A-206. Definitions. Within the meaning of this Article:

1. The word "person" includes any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, the State of North Carolina and its agencies and political subdivisions, or other legal entity.
2. A person, as defined in this section, doing business or maintaining an office within a county is a resident of the county.
3. "Tall buildings or structures" include any building, structure or unit within a multiunit building with a vertical height of more than 40 feet measured from the top of the foundation of said building, structure or unit and the uppermost point of said building, structure or unit; provided, however, that where such foundation measured from the natural finished grade of the crest or the natural finished grade of the high side of the slope of a ridge exceeds 3 feet, then such measurement in excess of 3 feet shall be included in the 40-foot limitation described herein; provided, further, that no such building, structure or unit shall protrude at its uppermost point above the crest of the ridge by more than 35 feet. "Tall buildings or structures" do not include:
   
   1. Water, radio, telephone or television towers or any equipment for the transmission of electricity or communications or both.
   2. Structures of a relatively slender nature and minor vertical projections of a parent building, including chimneys, flagpoles, flues, spires, steeples, belfries, cupolas, antennas, poles, wires, or windmills.
   3. Buildings and structures designated as National Historic Sites on the National Archives Registry.
4. "Construction" includes reconstruction, alteration, or expansion.
5. "Ridge" means the elongated crest or series of crests at the apex or uppermost point of intersection between two opposite slopes or sides of a mountain, and includes all land within 100 feet below the elevation of any portion of such line or surface along the crest.
6. "Protected mountain ridges" are all mountain ridges whose elevation is 3,000 feet and whose elevation is 500 or more feet above the elevation of an adjacent valley floor; provided, however, that a county, or a city with a population of fifty thousand (50,000) or more, may elect to eliminate the requirement for an elevation of 3,000 feet, and such election shall apply both to an ordinance adopted under G.S. 113A-208 and the prohibition against construction under G.S. 113A-209; provided, further, that such ordinance shall be adopted pursuant to the procedures of G.S. 113A-208.
7. Crest" means the uppermost line of a mountain or chain of mountains from which the land falls away on at least two sides to a lower elevation or elevations. (1983, c. 676, s. 1; 1985, c. 713, s. 1.)

§ 113A-207. Legislative findings.

The construction of tall or major buildings and structures on the ridges and higher elevations of North Carolina's mountains in an inappropriate or badly designed manner can cause unusual problems and hazards to the residents of and to visitors to the mountains. Supplying water to, and disposing of the sewage from, buildings at high elevations with significant numbers of residents may infringe on the ground water rights and endanger the health of those persons living at lower elevations. Providing fire protection may be difficult given the lack of water supply and pressure and the possibility that fire will be fanned by high winds. Extremes of weather can endanger buildings, structures, vehicles, and persons. Tall or major buildings and structures located on ridges are a hazard to air navigation and persons on the ground and detract from the natural beauty of the mountains. (1983, c. 676, s. 1.)

§ 113A-208. Regulation of mountain ridge construction by counties and cities.

1. Any county or city may adopt, effective not later than January 1, 1984, and may enforce an ordinance that regulates the construction of tall buildings or structures on protected mountain ridges by any person. The ordinance may provide for the issuance of permits to construct tall buildings on protected mountain ridges, the conditioning of such permits, and the denial of permits for such construction. Any ordinance adopted hereunder shall be based upon studies of the mountain ridges within the county, a statement of objectives to be sought by the ordinance, and plans for achieving these objectives. Any such county ordinance shall apply countywide except as otherwise provided in G.S. 160A-360, and any such city ordinance shall apply citywide, to construction of tall buildings on protected mountain ridges within the city or county, as the case may be. A city with a population of 50,000 or more may adopt, prior to January 1, 1986, an ordinance eliminating the requirement for an elevation of 3,000 feet, as permitted by G.S. 113A-206(6).
2. Under the ordinance, permits shall be denied if a permit application (and shall be revoked if a project) fails to provide for:
   
   1. Sewering that meets the requirements of a public wastewater disposal system that it discharges into, or that is part of a separate system that meets applicable State and federal standards;
   2. A water supply system that is adequate for fire protection, drinking water and other projected system needs; that meets the requirements of any public water supply system that it interconnects with; and that meets any applicable State standards, requirements and approvals;
   3. Compliance with applicable State and local sedimentation control regulations and requirements; and
   4. Adequate consideration to protecting the natural beauty of the mountains, as determined by the local governing body.
3. Permits may be conditioned to insure proper operation, to avoid or mitigate any of the problems or hazards recited in the findings of G.S. 113A-207, to protect natural areas or the public health, and to prevent badly designed, unsafe or inappropriate construction.
4. An ordinance adopted under the authority of this section applies to all protected mountain ridges as defined in G.S. 113A-206. A county or city may apply the ordinance to other mountain ridges within its jurisdiction if it finds that this application is reasonably necessary to protect against some or all of the hazards or problems set forth in G.S. 113A-207. Additionally, a city with a population of 50,000 or more may apply the ordinance to other mountain ridges within its extraterritorial planning jurisdiction if it finds that this application is reasonably necessary to protect against some or all of the hazards or problems set forth in G.S. 113A-207.
5. Determinations by the county or city governing board of heights or elevations under this Article shall be conclusive in the absence of fraud. Any county or city that adopts a ridge ordinance under the authority of this section or other authority shall send a copy of the ordinance to the Secretary of Environment and Natural Resources.
6. Any county or city that adopts an ordinance pursuant to this section must hold a public hearing before adopting the ordinance upon the question of adopting the ordinance or of allowing the construction of tall buildings on protected mountain ridges to be governed by G.S. 113A-209. The public hearing required by this section shall be held upon at least 10 days' notice in a newspaper of general circulation in the unit adopting the ordinance. Testimony at the hearing shall be recorded and any and all exhibits shall be preserved within the custody of the governing body. The testimony and evidence shall be made available for inspection and scrutiny by any person.
7. Any resident of a county or city that adopted an ordinance pursuant to this section, or of an adjoining county, may bring a civil action against the ordinance-adopting unit, contesting the ordinance as not meeting the requirements of this section. If the ordinance is found not to meet all of the requirements of this section, the county or city shall be enjoined from enforcing the ordinance and the provisions of G.S. 113A-209 shall apply. Nothing in this Article authorizes the State of North Carolina or any of its agencies to bring a civil action to contest an ordinance, or for a violation of this Article or of an ordinance adopted pursuant to this Article. (1983, c. 676, s. 1; 1985, c. 713, ss. 2, 4; 1989, c. 727, s. 218(78); 1997-443, s. 11A.119 (a).)

§ 113A-209. Certain buildings prohibited.

1. This section applies beginning January 1, 1984, in any county or city that has failed to adopt a ridge protection ordinance pursuant to G.S. 113A-208 by January 1, 1984.
2. No county or city may authorize the construction of, and no person may construct, a tall building or structure on any protected mountain ridge.
3. No county or city may authorize the providing of the following utility services to any building or structure constructed in violation of subsection (b) of this section: electricity, telephone, gas, water, sewer, or septic system. (1983, c. 676, s. 1.)

§ 113A-210. Application to existing buildings.

General Statutes 113A-208 and 113A-209 apply to buildings that existed upon the effective date of this Article as follows:

1. No reconstruction, alteration or expansion may aggravate or intensify a violation by an existing building or structure that did not comply (a) with G.S. 113A-209 upon its effective date, or (b) with an ordinance adopted under G.S. 113A-208 upon its effective date.
2. No reconstruction, alteration or expansion may cause or create a violation by an existing building or structure that did comply (a) with G.S. 113A-209 upon its effective date, or (b) with an ordinance adopted under G.S. 113A-208 upon its effective date. (1983, c. 676, s. 1.)

§ 113A-211. Enforcement and penalties.

1. Violations of this Article shall be subject to the same criminal sanctions, civil penalties and equitable remedies as violations of county ordinances under G.S. 160-401.
2. Any person injured by a violation of this Article or any person who resides in the county in which the violation occurred may bring a civil action against the person alleged to be in violation. The action may seek:
   
   1. Injunctive relief; or
   2. An order enforcing the provision violated; or
   3. Damages caused by the violation; or
   4. Both damages and injunctive relief; or
   5. Both damages and an enforcement order; or
   6. Both an enforcement order and injunctive relief.

If actual damages as found by the court or jury in suits brought under this subsection are five hundred dollars ($500.00) or less, the plaintiff shall be awarded double the amount of actual damages; if the amount of actual damages as found by the court or jury is greater than five hundred dollars ($500.00), the plaintiff shall receive damages in the amount so found. Injunctive relief or an enforcement order under this subsection may be based upon a threatened injury, an actual injury, or both. Civil actions under this subsection shall be brought in the General Court of Justice of the county in which the alleged violation occurred. 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. Nothing in this section shall restrict any right which any person or class of persons may have under the common law or under any statute to seek injunctive or other relief.

3. Within the meaning of this section, violations of this Article include violations of local ordinances adopted pursuant to G.S. 113A- 208. (1983, c. 676, s. 1.)

§ 113A-212. Assistance to counties and cities under ridge law.

1. The Secretary of Environment and Natural Resources shall provide assistance upon request to the counties and cities in carrying out their functions pursuant to this Article, such as by providing model studies, plans, and ordinances for their consideration.
2. The Secretary of Environment and Natural Resources shall identify the protected mountain ridge crests in each county by showing them on a map or drawing, describing them in a document, or any combination thereof. Such maps, drawings, or documents shall identify the protected mountain ridges as defined in G.S. 113A-206 and such other mountain ridges as any county may request, and shall specify those protected mountain ridges that serve as all or part of the boundary line between two counties. By November 1, 1983, the map, drawing, or document tentatively identifying the protected mountain ridge crests of each county shall be filed with the board of county commissioners and with the city governing body of each city that requests it. By January 1, 1984, the map, drawing, or document identifying the protected mountain ridge crests shall be permanently filed by the Secretary with the register of deeds in the county where the land lies, and made available for inspection at the Secretary's office in Raleigh. Copies of the maps, drawings, or documents certified by the register of deeds, shall be admitted in evidence in all courts and shall have the same force and effect as would the original.
3. By January 1, 1986, a map, drawing, or document tentatively identifying the protected mountain ridge crests of each city with a population of fifty thousand (50,000) or more that has eliminated the requirement for a minimum elevation of 3,000 feet, shall be filed by the Secretary of Environment and Natural Resources with the board of county commissioners and with the city governing body. By March 1, 1986, the map, drawing, or document identifying the protected mountain ridge crests in the city with a population of fifty thousand (50,000) or more shall be permanently filed by the Secretary with the register of deeds in the county where the land within that city with a population of fifty thousand (50,000) or more lies, and shall be made available for inspection at the Secretary's office in Raleigh. Copies of the maps, drawings, or documents certified by the register of deeds shall be admitted in evidence in all courts and shall have the same force and effect as would the original.
4. Determinations by the Secretary of elevations under this section shall be conclusive in the absence of fraud. (1983, c. 676, s. 1; 1985, c. 713, s. 3; 1989, c. 727, s. 218(79); 1997-443, s. 11A.119 (a).)

§ 113A-213. Article is supplemental.

This Article provides a supplemental source of authority in addition to other present or future legislation and shall not be construed as prescribing an exclusive procedure or as granting exclusive powers. (1983, c. 676, s. 1.)

§ 113A-214. Choosing coverage or removal from coverage of this Article.

1. This Article shall apply in all counties and cities unless and until the jurisdiction adopts an ordinance exempting itself from the coverage of this Article. This exemption shall only be effective after a binding referendum, in which all registered voters in the jurisdiction are eligible to vote, which shall be held on or before May 8, 1984. The binding referendum shall be held either as a result of a resolution passed by the governing body of the jurisdiction or as a result of an initiative petition signed by fifteen percent (15%) of the registered voters in the jurisdiction and filed with the Board of Elections of that county not later than 60 days before the election is to be held. At that referendum, each qualified voter desiring to vote shall be provided a ballot on which shall be printed the following: FOR coverage under the Mountain Ridge Protection Act of 1983. AGAINST coverage under the Mountain Ridge Protection Act of 1983.
2. If a jurisdiction removes itself from the coverage of this Article, by means of a binding referendum, as provided for in subsection (a) of this section, then it shall have until May 13, 1986 to place itself again under the coverage of this Article by means of an ordinance passed after a similar binding referendum. Once a jurisdiction opts out and then opts back under the Article, it may not take any further action to again remove itself from the coverage of the Article.
3. If a county has chosen the permit procedure authorized by G.S. 113A-208, and then opts out of and either the county or any city in the county opts back under the coverage of this Article, then that jurisdiction may choose the permit procedure even after January 1, 1984.
4. When a county removes itself from the coverage of this Article all cities within the county shall be removed from the coverage of this Article. Provided, however, a city in a county that has removed itself from coverage may, under the procedure set forth in subsection (b) of this section, place itself again under the coverage of this Article.
5. When a protected mountain ridge is any part of the boundary between two jurisdictions then that part of the ridge shall be covered by this Article unless both jurisdictions remove themselves from the coverage of this Article. (1983, c. 676, s. 1.)

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.

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.

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.

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.

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.

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.

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.):

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.

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. 

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.

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.

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.

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. 

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.

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

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.

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.

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.

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.

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

This subpart becomes effective on October 1, 2007.