The North Carolina Erosion and Sedimentation Pollution Control Act and its statutes are performance oriented and meant to prevent harmful erosion and sedimentation by prohibiting visible off-site sedimentation. They apply to most properties being disturbed during construction or land movement activities, minus a few industrial exceptions. Landowners, contractors, and developers must be aware of North Carolina laws regarding erosion and sedimentation pollution and control as they are all potentially liable parties under the Act and rules.
Sedimentation of streams, lakes and other waters of North Carolina occurs from the erosion or depositing of soil and other materials into the waters and constitutes a major pollution problem. These statutes are particularly needed and applicable in Asheville and counties of Western NC where we have steeper slopes, an increase in development in recent years, heavier rainfall, and valuable natural ecosystems that need to be protected for a number of reasons, including enjoyment, resources, local industry and tourism.
The law (N.C.G.S. § 113A-50 to 113A-70) governs all land-disturbing activities, except those related to agriculture, mining, and forestry, as long as those operations are following best management practices. Regardless of the size of the disturbed area, land developers and builders must plan and implement effective short-term and long-term measures to control accelerated erosion and prevent off-site sedimentation. These plans start with the submission and approval of an erosion and sedimentation control plan with the local building permit department or office.
The Act allows authorized local governments or agencies may adopt, administer, and enforce their own ordinances with the approval and oversight of the Sedimentation Control Commission. However, any local city or county ordinances must meet or exceed the minimum State standards. The Land Quality Section of the North Carolina Department of Environment, Health, and Natural Resources (DENR) reviews local programs periodically to ensure uniform enforcement of the Act and reports the status to the State’s Sedimentation Control Commission.
Generally, if one plans to develop more than one acre, it is recommended that the builder contact the local regional office of the Land Quality Section of DENR to find out whether or not submission and approval of an erosion and sedimentation control plan is required.
On most sites erosion and sedimentation control measures must provide protection from a rainfall event equivalent to the 10-year peak runoff, but in areas with High Quality Waters, the design requirement is a 25-year storm. High Quality Waters are waters which are rated excellent based on biological and physical/chemical characteristics through monitoring or special studies, primary nursery areas designated by the Marine Fisheries Commission, and other functional nursery areas designated by the Marine Fisheries Commission. Builders and landowners will need to check with local and state entities to confirm what water classification is in the area of their construction site.
The Act provides the following basic framework for erosion and sedimentation control practices:
- Requires submission and approval of an erosion control plan before a land-disturbing activity begins that would uncover the soil by removing or disturbing the vegetation on more than one acre. The plan must be submitted 30 days before beginning the land disturbance.
- A “buffer zone” is necessary along any natural waterway or lake. The buffer zone/strip must be wide enough to retain all visible sediment within the first 25 percent of the buffer zone nearest the disturbed area. Additionally, along trout streams, the buffer zone must be a minimum of 25 feet wide.
- All disturbed areas must be stabilized by vegetation or other suitable erosion control methods. Disturbed soil areas must be stabilized within 30 working days after the completion of any phase of land grading.
- Off-site sedimentation must be prevented. Ground cover that prevents erosion must be established within 30 working days or 120 calendar days following completion of the construction phase, whichever is shorter.
During construction, responsibility for and maintenance of the erosion and sedimentation control practices is shared by the landowner and the person financially responsible for site development. There is some flexibility as the laws do permit the land disturber to determine the most economical, effective methods for controlling erosion and sedimentation at the particular site.
The Act does not specify erosion control practices, devices, or techniques, but allows for innovation and site flexibility. This flexibility requires each developer or builder to carefully consider the erosion potential and plan appropriate construction activities for the applicable site. Construction plans must not only include measures to reduce erosion at the construction site, but also prevent off-site sedimentation. After construction is complete and the soil surface stabilized, responsibility for erosion and sedimentation control and prevention passes to the landowner or the person managing the land.
The Sedimentation Pollution Control Act provides authority to the state or authorized local agencies to inspect land-disturbing activities and to prosecute violators. Citizens damaged by violations of the Act may also take action through the courts. Civil penalties, criminal penalties, injunction relief, and stop-work orders can be assessed, including the following:
- Starting a land-disturbing activity without an approved erosion and sedimentation control plan can result in a $500 per day penalty.
- Civil penalties can carry a fine of up to $500 per day for each violation and for each day a site is in violation.
- Criminal penalties for knowing or willful violations are up to 90 days in jail or a $5,000 fine.
- An injunction to abate or prevent a violation can be brought to a superior court when the state or local program authorities believe a person is violating or threatening to violate the law.
- A stop-work order can be issued if a serious violation is found and the violation is knowing and willful.
- Any citizen injured by a violation of the Act may bring civil action against the persons alleged to be in violation.
Contractors, developers, builders, and property owners are recommended to follow the practices set out below to decrease the danger of harmful erosion and sedimentation runoff, and the civil, commercial, and penal penalties and damages that may come with violations of our State and Federal statutes:
- Fit the planned development to existing site conditions.
- Minimize the extent and duration of bare soil exposure.
- Protect disturbed areas from storm water runoff.
- Stabilize disturbed soil areas.
- Minimize run-off velocities.
- Keep sediment on the site.
- Inspect and maintain control measures.
Forrest P. Merithew, Attorney at Law, regularly practices construction, environmental, property, and municipal law in Asheville, Buncombe County, and surrounding counties of Western NC. In addition to his civil and commercial legal work, Forrest’s practice includes consulting with developers and builders about regulatory and administrative issues and requirements. Forrest is also available to pursue lawsuits against and recovery damages from violators of both State and Federal laws and statutes created to protect our natural resources. Please contact Forrest P. Merithew, Attorney at Law if you have any questions or concerns with respect to land use, development, green building, or other construction, property or environmental and water contamination or other legal issues or matters.