HomeMy WebLinkAboutAgenda - 09-18-2001 - 8h � 1
ORANGE COUNTY
BOARD OF COUNTY COMMISSIONERS
PUBLIC HEARING AGENDA ITEM ABSTRACT
Meeting Date: September 18, 2001
Action Agenda
Item No.
SUBJECT: Orange County Stormwater Program Regulatory Enhancements for Lands Within the
Neuse River Basin
DEPARTMENT: Planning and Inspections PUBLIC HEARING: (Y/N) No
ATTACHMENT(S): INFORMATION CONTACT:
Outline of Excerpts from the amended Sections 3 Craig Benedict, ext 2592
through 21 of the Stormwater Ordinance Ren Ivins, ext 2586
TELEPHONE NUMBERS:
Ordinance in full is available in the County Clerk's Hillsborough 732-8181
Office. Chapel Hill 968-4501
Durham 688-7331
Mebane (336)227-2031
PURPOSE: To comply with state requirements in order to request and fully receive delegated
authority to implement and enforce the Neuse River Riparian Buffer Rule (NCAC 15A 2B .0233).
This rule is incorporated into Orange County's Stormwater Ordinance in Sections 3 and 4.
BACKGROUND: The Orange County Stormwater Ordinance, which incorporates this rule, was
adopted in December 2000, and the following amendments were required by the State so that
our program will parallel the State program as closely as possible, with special emphasis on civil
and criminal penalties. Orange County is the first in the state to proceed with a request for
delegated authority, and NCDENR- Division of Water Quality staff hope to use the County's
Ordinance as a 'boilerplate' Ordinance for other local governments within the Neuse River Basin.
In order to comply with NCAC 15A 213 .0233 Item 12: 'Requirements Specific to Local Governments
with Stormwater Programs for Nitrogen Control,' Orange County has two options for protecting
riparian buffers within the Neuse Basin:
(1) Obtain authority (delegated authority) to implement a local riparian buffer protection program
pursuant to 15A NCAC 2B .0241.
(2) Refrain from issuing local approvals for new development projects unless either:
(a) The person requesting the approval does not propose to impact the riparian buffer of a
surface water that appears on either an Orange County Soil Survey map or the most
recent USGS topographic quadrangle.
(b) The person requesting the approval proposes to impact the riparian buffer of a surface
water that appears on the above-mentioned maps has permission from the Division of
Water Quality to proceed.
Impacts that would require submittal to the Division of Water Quality before any approvals could be
issued by the County include driveway crossings that disturb greater that 25 linear feet of the
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buffer, bridges, greenway trails, utilities, ponds, and road crossings.
The attached Stormwater Ordinance amendments conform to requirements by NCDENR- Division
of Water Quality, the Environmental Management Commission, and the NC Administrative Code,
rules 15A 2B .0233 and .0241. These changes are the result of the State Attorney General's office
extensive review, and NCDENR-DWQ staff enforcement experience.
Request
To adopt the amendments to the Orange County Stormwater Program and Ordinance for Lands
within the Neuse River Basin.
The deadline for submittal to the State in order to be placed on the October agenda of the
Environmental Management Commission is September 15th so a tentative request will be made
pending the outcome of the September 18, 2001 BOCC meeting.
Location
Upper Neuse River Basin within Orange County which includes Upper and Lower Eno, Little River
and Flat River watershed basins.
Existing and Proposed Conditions
Existing:
Orange County Stormwater Program for Lands within the Neuse River Basin in place without
implementation or enforcement for Sections 3 and 4, Riparian Buffers. Erosion and Sedimentation
Control, and Water Supply Watershed Requirements, and Subdivision buffer requirements currently
in place.
Proposed:
• change in the disputes and variance process for the Stormwater Ordinance to parallel the
State's process (page 14)
• change in Section 4.F.2 from citing 15A NCAC 2B .0242 to incorporating .0242 word for word
per the State Attorney General's office. (page 16)
• change in civil penalty to add phrase 'per day' (page 31)
• change in criminal penalty to conform with state administrative code (page 32)
• semantic revisions involving the definition of the word County, the use of words such as 'rule',
etc.
Development Process. Schedule, and Action
• Public Hearing held May 22, 2000 with no speakers from the public.
• Forwarded Draft Program to NCDENR-DWQ upon approval by the Board.
• Approved by DWQ, the Environmental Management Commission-Water Quality Committee on
October 11, 2000.
• Adoption of Program and Ordinance on December 4, 2000 per the Board's approval.
• December 2000 through March 2001: implement Phase 1 of the Program and Ordinance with
the focus being on Nitrogen Reduction standards and measures, and Public Education and
Outreach.
• Meetings regarding the legal requirements for the granting of delegated authority between
County Staff, Harmony Wayland, Division of Water Quality Staff, and the Attorney General's
office.
• Public hearing held August 27, 2001 with no speakers from the public.
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FINANCIAL IMPACT: The program is voluntary to be implemented at the local level but if
delegated (as Orange County staff has requested), this program does not receive funds from the
state. If the state was to implement the program, the monitoring and enforcement would not match
the existing level of interest and field investigation present in the county's erosion control division.
Existing Erosion Control staff are currently responsible for implementing and administering the
Program. The Planning and Inspections Department is gauging the impact of the Program by
developing a process where this additional data collection, plan review, inspection, monitoring,
reporting, enforcement, and public outreach is included. The Environmental Compliance Officer
requested, but unfunded at this time, in this year's 2001-2002 budget would have had primary
implementation responsibilities. In the absence of this position, some public outreach is being
sought through Triangle J Council of Governments (TJCOG) and other private consultants. Other
portions of this program will be implemented at the minimum required by the state until additional
personnel resources can be accommodated.
RECOMMENDATION(S): The Administration recommends approval and adoption of the
amendments noted in this item, and the forwarding of Orange County's official request for
Delegated Authority to NCDENR - Division of Water Quality and the Environmental Management
Commission.
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Outline to the Amendments to the Orange County
Stormwater Ordinance September 2001
Section 2 Definitions (amended 9/18/01/) PAGE 1
H. "County-shall mean the Department within Orange County that the Counly Manager
delegates authority to implement and enforcement Ordinance."
Section 3 Riparian Area Protection within the Neuse River Basin
Section 4 Table of Uses (amended 9/18/01/) PAGE 14
D. Disputes
"Any disputes over determinations regarding Authorization Certificates shall be referred
to the Planning Director for resolution and appealed if necessary to the County Manager.
Continued disputes shall be referred to the Director of NCDENR-Division of Water
Quality for a decision."
E. Variances PAGE 15
Persons who wish to undertake uses designated as prohibited have the option of
pursuing a variance. The County may grant minor variances. The variance request
procedure shall be as follows:
1. a) (5) "The applicant did not purchase the property after July 22, 1997, and then
requesting a variance."
2. Minor Variances (no change)
3. Major Variances
"A major variance request pertains to activities that are proposed to impact any portion
of Zone 1 or any portion of both Zones 1 and 2 of the riparian buffer. If the County has
determined that a major variance request meets the requirements in Section 4.E.1, then
it shall prepare a preliminary finding and submit it to the Water Quality Committee of the
Environmental Manaaement Commission. The purpose of the Water Quality
Committee's review is to determine if it agrees that the requirements in Section 4.E.1
have been met. Requests for appeals of decisions made by the Water Quality
Committee's shall be made to the Office of Administrative Hearings The following
actions shall be taken depending on the Water Quality Committee's decision on the
major variance request:"
a) "Upon the Water Quality Committee's approval, the County shall issue a final
decision granting the major variance."
b) "Upon the Water Quality Committee's approval with conditions or stipulations, the
County shall issue a final decision, which includes these conditions or
stipulations."
c) "Upon the Water Quality Committee's denial, the County shall issue a final
decision denying the major variance."
F. Mitigation PAGE 16
Persons who wish to undertake uses designated as allowable with mitigation shall meet
the following requirements in order to proceed with their proposed use.
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1. Obtain a determination of"No Practical Alternatives" to the proposed use pursuant
to Section 4.13.
2. Obtain approval for a mitigation proposal pursuant to Section G of this Ordinance.
(note: the following language is simply 15A NCAC 28 .0242 word for word from
the NC Administrative Code).
■ change in section 4.F.2 from citing 15A NCAC 28.0242 to incorporating.0242 word
for word per the State Attorney General's office.
Section 5 New Development Review
Section 6 Nutrient Load Calculations
Section 7 Stormwater Management Plan
Section 8 Permanent Nitrogen Export Reduction Best Management
Practices
Section 9 BMP Construction
Section 10 Annual Maintenance
Section 11 Land Use Planning Provisions
Section 12 Jurisdiction-Wide-and Inter-Local Approaches
Section 13 Jurisdiction-Wide Collection of Illegal Discharge Information
Orange County Planning and Inspections shall collect information related
to Illegal Discharges from all applicable sources within its Jurisdiction
within the Neuse River Basin.
Section 14 Illegal Discharges
Section 15 Inspections and Investigations (amended 9/18/01/) PAGES 29 & 30
C. Authority to Enter Property and Conduct Investigations and Inspections
"No person shall willfully resist, delay, or obstruct an authorized representative,
employee, or agent of Orange County, while that person is reviewing compliance with
the provisions of this Ordinance. The Enforcement Officer shall have the power to
conduct such investigations as deemed reasonably necessary to carry out the duties as
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prescribed in this Ordinance, and for this purpose to enter at reasonable times upon any
property, public or private, for the purpose of reviewing compliance with the erovisions of
this Ordinance."
D. Notice of Violation
"If it is determined that a person responsible for compliance with the provisions of the
Ordinance has failed to comply with this Ordinance, a notice of violation shall be served
upon that person."
Section 16 Penalties (amended 9/18/01/) PAGE 31
change in civil penalty to add phrase `per day'
A. Civil Penalties
1. Assessment of Penalties
"The maximum civil penalty ).for those
violations not willfully or unknowingly committed is ten thousand dollars ($10.000) Per
day, and for those violations that are continued willfully and knowingly, the maximum is
twenty-five thousand dollars ($25.00 per day... Each day of a continuing violation shall
constitute a separate violation under Section 2 3 MAJ."
2. Demand for Payment of Penalty
"The notice of assessment...15.D. Refer to the procedure as followed by the County."
change in criminal penalty to conform with state administrative code
4. Criminal Penalties
"Any person who...not less than fifty ($50) dollars per day, with a maximum of fifteen
thousand ($15.000) dollars per day net te emeeed $6,900, or by both, at the discretion of
the court."
Section 17 Injunction Relief
Section 18 Compliance with Requirements
Section 19 Severability
Section 20 Effective Date
Section 21 Revisions to this Ordinance
Proposed
■ semantic revisions involving the definition of the word county, the use of words such as'rule',etc.
• change in the major variance process for the Stormwater Ordinance to parallel the States process
• dispute settlement. p 14
• change in Section 4.F.2 from citing 15A NCAC 2B.0242 to incorporating word for word per the State
Attorney General's office. p.16
• change in civil penalty to add phrase per day. p.31
■ change in criminal penalty to conform with state administrative code. p.32
hrr:Stormwater Ordinance