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HomeMy WebLinkAboutAgenda - 01-22-2015 - 6h 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date:January 22, 2015 Action Agenda Item No.6-h SUBJECT: RevisedMemorandum of Agreementbetween the NC Sedimentation Control Commission and Orange County DEPARTMENT:PUBLIC HEARING: (Y/N) Planning and InspectionsNo ATTACHMENT(S):INFORMATION CONTACT: 1.Original Letter of Explanation from Howard W. Fleming, Jr., PE, NCDENREngineering/Stormwater 2.Clarification Letterof Explanation Supervisor, 245-2586 from NCDENRCraig Benedict, Planning Director, 245- 3.Current Memorandum of Agreement2592 4.Revised Memorandum of AgreementJames Bryan, Staff Attorney, 245-2319 to be Executed PURPOSE: To approve revisions tothecurrentMemorandum of Agreement(MOA)between the Sedimentation Control Commission (SCC) and Orange County for the purpose of clarifying roles in the enforcement of the Sedimentation Pollution Control Act of 1973, N.C. General StatuteChapter 113A, Article4 and any rules adopted pursuant to the Act. BACKGROUND: Orange County is responsible for enforcing the sedimentation control standards issued by the Sedimentation Control Commission(the “SCC”)andadopted a local program in 1975.The Sedimentation Pollution Control Act was amended in July 2011and provided a model sedimentation control ordinancefor adoption by the local programs. The SCC provided an associatedMOA which was approved by the BOCC onSeptember 6, 2012. It is included as Attachment 3for informational purposes. However, the Board is being asked to approve therevisedMOAcontained in Attachment 4. As stated in the attached cover (Attachment 1) and clarification (Attachment 2) letters from Ashley Rodgers, North Carolina Department of Environment & Natural Resources (NCDENR) State Sediment Specialist, the changes in the Revised MOA are targeted at the State maintaining exclusive jurisdiction over oil and gas exploration and development. Ms. Rodgers has also provided some clarifications by way of answers to some questions posed to her outlining the primary differences of significance as follows: 1.Section II D, which adds a reference to North Carolina General Statute § 113A-56, even though that statute has been in existence for years, but goes on to add exclusive jurisdiction by the SCC over activities related to oil and gas exploration and development on the well pad site. 2.Revised the reporting the Countymust make, formerly tothe Division of Water Quality (DWQ), and nowto the Division of Energy, Mineral, and Land Resources (DEMLR). 2 3.Removed a requirement to report with copies of every application for erosion and sedimentation control plan approvals, when received for review. County staff contacted Ms. Rodgers regardingthe January 1, 2015 date specified in herletter because BOCC consideration was scheduled for January 22, 2015.Ms. Rodgersindicated that theSCC meeting is on February 5, 2015, and ifthe County couldprovide the executed document by January 26th, it could be provided itto the SCC. FINANCIAL IMPACT: There is no financial impact associated with affirmative action on this decision.Should the BOCC declineto adopt the revised MOA, Orange County would most likely lose its delegated program status, along with associated revenue and the assurance of close oversight of land development activities in the County. Current projected FY 2014-2015 revenue from Erosion Control, Stormwater and Surface Water Identification (SWID) fees is anticipated to be between $300,000 and $400,000. RECOMMENDATION(S): The Manager recommends that the Board approve the Revised Memorandum of Agreement(Attachment 4) and authorize the Chair to sign the agreement. 3 Attachment 1 4 Attachment 2 5 Attachment 3 6 7 8 9 10 11 12 13 Attachment 4 MEMORANDUM OF AGREEMENT BETWEEN NCSCC THE ORTH AROLINA EDIMENTATION ONTROL OMMISSION AND *OC,NC* RANGEOUNTYORTHAROLINA This MEMORANDUM OF AGREEMENT is entered into between the North (hereinafter, “Commission”) and Carolina Sedimentation Control Commission * (hereinafter, “*Local Government*,” Orange County, North Carolina* collectively, “Parties”) for the purpose of clarifying their rol of the Sedimentation Pollution Control Act of 1973, N.C. Gen. St Art. 4 and any rules adopted pursuant to the Act (hereinafter co “SPCA.”) This Memorandum of Agreement supersedes and replaces any prior memorandum(s) of agreement between the parties regarding clarify in the enforcement of the Sedimentation Pollution Control Act of Part I. Local Program Creation. A.Model Ordinance The Parties agree that the Commission shall do the following: 1.Per N.C. Gen. Stat. § 113A-54 (d) (1), provide a model erosion a control ordinance (hereinafter, “model ordinance”) for adoption who wish to operate a delegated local erosion and sedimentation (hereinafter, “local program.”) 2.Update its model ordinance upon changes in the SPCA. 14 B.Proposed Ordinance Review The Parties agree that: 1.Local governments who choose to create and operate a local progr ordinance (hereinafter, “local program ordinance”.) However, th must submit the proposed local program ordinance to the Commissi prior to adoption. 2.North Carolina General Statute § 113A-60(b) requires the Commiss approve, approve as modified, or disapprove proposed local progr based upon the minimum requirements of the SPCA. 3.The Commission shall review a local program ordinance submitted days of receipt thereof, shall notify the local government submi it has been approved, approved with modifications, or disapprove 4.The local program’s erosion and sedimentation control standards exceed those of the SPCA. 5.The *Local Government* has an existing local program and an ordi by the Sedimentation Control Commission. Part II. Responsibilities and Expectations of the Commission. A.Local Program Review The Parties agree that the Commission shall do the following: 1.Review periodically approved local programs for compliance with results of the reviews shall be presented at the next quarterly Commission. 2.If the Commission determines that any local government is failin enforce an approved erosion and sedimentation control program, i local government in writing and shall specify the deficiencies o enforcement. -2- 15 3.If the local government has not taken corrective action within 3 notification from the Commission, the Commission shall assume ad enforcement of the program until such time as the local governme willingness and ability to resume administration and enforcement B.Training and Education for Local Programs The Parties agree that the Commission shall provide the followin 1.Educational programs in erosion and sedimentation control direct engaged in land-disturbing activities, general educational mater sedimentation control, and instructional materials for persons i enforcement of the SPCA and erosion and sedimentation control ru regulations, and plans. 2.Manuals and publications to assist in the design, construction a and sedimentation control measures. 3.Periodic reviews of local erosion and sedimentation control prog reviews provide recommendations to improve program administratio 4.Technical assistance in review of draft erosion and sedimentatio complex activities. C.Concurrent Jurisdiction The Parties agree that the Commission shall maintain concurrent government for land-disturbing activities and maytake appropriate compliance action if the Commission determines that the local government has failed to ta action. -3- 16 D.Exclusive Jurisdiction The Parties agree that the Commission shall maintain exclusive j SPCA for all land disturbing activities that: 1.Are outlined in North Carolina General Statute § 113A-56; or 2.Relate to oil and gas exploration and development on the well pa Part III. Responsibilities and Expectations of the Local Governm A.Enforcement The Parties agree that the local government shall administer its through the following: 1.Enforce the provisions of the SPCA. 2.Administer the SPCA for all land-disturbing activity within its existing sites at the time the local government received program Commission may continue to administer the SPCA over specific pro enforcement action upon mutual agreement with the local governme program is not responsible for activities over which the Commiss jurisdiction. 3.Employ a sufficient number of qualified personnel. Qualified per competent to review sedimentation and erosion control plans and land-disturbing activities. 4.Provide adequate resources for plan review and compliance inspec B.Reporting The Parties agree that the local government shall provide the fo 1.Monthly activity reports to the Commission in the form adopted b 2.Copy of Notices of Violation to the appropriate regional office Mineral, and Land Resources. -4- 17 3.Current contact information for their local program to the Divis and Land Resources. C.Sediment and Erosion Control Plans for Land-Disturbing Activity The Parties agree that the local government shall review erosion for land-disturbing activity (hereinafter, “plans”) submitted to following standards: 1.Review plans within 30 days of receipt of a new plan and within plan. 2.Approve, approve with modifications, approve with performance re disapprove draft plans in conformance with the basic control obj NCAC 04B .0106. 3.Notify in writing the person submitting the plan that it has bee modifications, approved with performance reservations or disappr receipt of a new plan and within 15 days of a revised plan. 4.Include in written notifications of plan approval the following: a.reference to NPDES General Stormwater Permit NCG 010000, b.expiration date of the approval, c.the right of periodic inspection, and d.condition the approval upon the applicant’s compliance with fede water quality laws, regulations and rules. 5.Enclose with all written permit notifications the following a.NPDES General Stormwater Permit NCG 010000, and b.Certificate of Approval for posting at the site of the land-dist -5- 18 D.Inspection The Parties agree that the local government shall inspect all si activity under the following standards: 1.Periodically and regularly inspect sites undergoing land-disturb its jurisdiction. Periodically and regularly means with suffici effectively monitor compliance with the SPCA and rules adopted p SPCA and the local erosion and sedimentation control ordinance. 2.Document all inspections in writing, including electronic docume 3.Inspection reports shall include, at a minimum, all information sedimentation inspection report developed by the Commission. 4.Maintain inspection records for active projects in accordance wi retention policies. E.Enforcement The Parties agree that the local government shall enforce its lo following standards: 1.Issue Notices of Violation (hereinafter, “NOV”) for any signific SPCA, rules adopted pursuant to the SPCA, or the local erosion a control ordinance documented in an inspection report. An NOV sh persons responsible for the violations, pursuant to N.C. Gen. St 2.The NOV shall specify the following: a.describe the violation with reasonable particularity b.request that all illegal activity cease c.the actions that need to be taken to comply with the SPCA and th d.a date by which the person must comply with the SPCA and the loc e.inform the violator that any person who fails to comply within t subject to additional civil and criminal penalties for a continu provided in G.S. 113A-64 and the local ordinance -6- 19 3.Undertake appropriate enforcement actions, including injunctive civil penalties for an initial penalty or a daily penalty for co Require a person who engaged in a land-disturbing activity and f 4. generated by the activity, as required by G.S. 113A-57(3), to re affected by the failure so as to minimize the detrimental effect by sedimentation. [This space left intentionally blank.] -7- 20 IN WITNESS HEREOF, the Parties enter into this Memorandum of Agr day of ______________ 2014. SCC *OC,NC* EDIMENTATION ONTROL OMMISSIONRANGE OUNTY By: _________________________________ By: _________________________________ Earl McKee Chair Chair, Orange County Board of Commissioners Dated: ______________________________ Dated: ______________________________ DE,M, IVISION OF NERGY INERAL AND LR AND ESOURCES By: _________________________________ By: _________________________________ Tracy E. Davis, PE, CPM Earl McKee Director Chair, Orange County Board of Commissioners Dated: ______________________________ Dated: ______________________________ Approved as to Form Approved as to Form ____________________________________ ____________________________________ James Bernier, Jr. John L. Roberts Counsel to the Commission Orange County Attorney Dated: ______________________________Dated: ______________________________ -8- 21 Appendix I. NCGS ORTH AROLINA ENERAL TATUTES Sedimentation Pollution Control Act (Ch. 113A Art. 4) (selected statutes) and sedimentation control program to be 13A-54. Powers and duties of the Commission. § 1 administered by it, if the program has been approved (d) In implementing the erosion and sedimentation by the Commission as being in conformity with the control program, the Commission shall: general State program. (1) Assist and encourage local governments in (c) The Commission shall have concurrent jurisdiction developing erosion and sedimentation control with local governments that administer a delegated programs and, as a part of this assistance, the erosion and sedimentation control program over all Commission shall develop a model local erosion other land-disturbing activities. In addition to the and sedimentation control ordinance. The authority granted to the Commission in G.S. 113A- Commission shall approve, approve as 60(c), the Commission has the following authority modified, or disapprove local programs with respect to a delegated erosion and submitted to it pursuant to G.S. 113A-60. sedimentation control program: (1) To review erosion and sedimentation control § 113A-56. Jurisdiction of the Commission. plan approvals made by a delegated erosion and (a) The Commission shall have jurisdiction, to the sedimentation control program and to require a exclusion of local governments, to adopt rules revised plan if the commission determines that a concerning land-disturbing activities that are: plan does not comply with the requirements of (1) Conducted by the State. this Article or the rules adopted pursuant to this (2) Conducted by the United States. Article. (3) Conducted by persons having the power of (2) To review the compliance activities of a eminent domain other than a local government. delegated erosion and sedimentation control program and to take appropriate compliance (4) Conducted by a local government. action if the Commission determines that the (5) Funded in whole or in part by the State or the local government has failed to take appropriate United States. compliance action. (b) The Commission may delegate the jurisdiction conferred by G.S. 113A-56(a), in whole or in part, to any other State agency that has submitted an erosion 22 (1973, c. 392, s. 7; c. 1417, s. 4; 1987, c. 827, s. 130; notify the local government submitting the program 1987 (Reg. Sess., 1988), c. 1000, s. 4; 2002-165, s. 2.5; that it has been approved, approved with 2006-250, s.2.) modifications, or disapproved. The Commission shall only approve a program upon determining that its standards equal or exceed those of this Article § 113A-60. Local erosion and sedimentation control and rules adopted pursuant to this Article. programs. (c) If the Commission determines that any local (a) A local government may submit to the Commission government is failing to administer or enforce an for its approval an erosion and sedimentation control approved erosion and sedimentation control program for its jurisdiction, and to this end local program, it shall notify the local government in governments are authorized to adopt ordinances and writing and shall specify the deficiencies of regulations necessary to establish and enforce administration and enforcement. If the local erosion and sedimentation control programs. An government has not taken corrective action within ordinance adopted by a local government may 30 days of receipt of notification from the establish a fee for the review of an erosion and Commission, the Commission shall assume sedimentation control plan and related activities. administration and enforcement of the program until Local governments are authorized to create or such time as the local government indicates its designate agencies or subdivisions of local willingness and ability to resume administration and government to administer and enforce the programs. enforcement of the program. An ordinance adopted by a local government shall at least meet and may exceed the minimum (d) A local government may submit to the Commission requirements of this Article and the rules adopted for its approval a limited erosion and sedimentation pursuant to this Article. Two or more units of local control program for its jurisdiction that grants the government are authorized to establish a joint local government the responsibility only for the program and to enter into any agreements that are assessment and collection of fees and for the necessary for the proper administration and inspection of land-disturbing activities within the enforcement of the program. The resolutions jurisdiction of the local government. The establishing any joint program must be duly Commission shall be responsible for the recorded in the minutes of the governing body of administration and enforcement of all other each unit of local government participating in the components of the erosion and sedimentation program, and a certified copy of each resolution control program and the requirements of this Article. must be filed with the Commission. The local government may adopt ordinances and regulations necessary to establish a limited erosion (b) The Commission shall review each program and sedimentation control program. An ordinance submitted and within 90 days of receipt thereof shall 23 adopted by a local government that establishes a Two or more units of local government may limited program shall conform to the minimum establish a joint limited program and enter into any requirements regarding the inspection of land-agreements necessary for the proper administration disturbing activities of this Article and the rules of the limited program. The resolutions establishing adopted pursuant to this Article regarding the any joint limited program must be duly recorded in inspection of land-disturbing activities. The local the minutes of the governing body of each unit of government shall establish and collect a fee to be local government participating in the limited paid by each person who submits an erosion and program, and a certified copy of each resolution sedimentation control plan to the local government. must be filed with the Commission. Subsections (b) The amount of the fee shall be an amount equal to and (c) of this section apply to the approval and eighty percent (80%) of the amount established by oversight of limited programs. the Commission pursuant to G.S. 113A-54.2(a) plus (e) Notwithstanding G.S. 113A-61.1, a local any amount that the local government requires to government with a limited erosion and cover the cost of inspection and program sedimentation control program shall not issue a administration activities by the local government. notice of violation if inspection indicates that the The total fee shall not exceed one hundred dollars person engaged in land-disturbing activity has failed ($100.00) per acre. A local government that to comply with this Article, rules adopted pursuant administers a limited erosion and sedimentation to this Article, or an approved erosion and control program shall pay to the Commission the sedimentation control plan. The local government portion of the fee that equals eighty percent (80%) shall notify the Commission if any person has of the fee established pursuant to G.S. 113A-54.2(a) initiated land-disturbing activity for which an to cover the cost to the Commission for the erosion and sedimentation control plan is required in administration and enforcement of other components the absence of an approved plan. If a local of the erosion and sedimentation control program. government with a limited program determines that Fees paid to the Commission by a local government a person engaged in a land-disturbing activity has shall be deposited in the Sedimentation Account failed to comply with an approved erosion and established by G.S. 113A-54.2(b). A local sedimentation control plan, the local government government that administers a limited erosion and shall refer the matter to the Commission for sedimentation control program and that receives an inspection and enforcement pursuant to G.S. 113A- erosion control plan and fee under this subsection 61.1. shall immediately transmit the plan to the (1973, c. 392, s. 11; 1993 (Reg. Sess., 1994), c. 776, s. Commission for review. A local government may 7; 2002-165, s. 2.8; 2006-250, s. 3.) create or designate agencies or subdivisions of the local government to administer the limited program.