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HomeMy WebLinkAbout2015-116 Planning - NC Sedimentation Control Commission MOA for erosion control ordinance development s IN „ . PAF _Please return this copy to the Clerk to the Board's_ office for permanent agenda file. ab)S— (J(p MEMORANDUM OF AGREEMENT BETWEEN THE NORTH CAROLINA SEDIMENTATION CONTROL COMMISSION AND *ORANGE COUNTY,NORTH CAROLINA* This MEMORANDUM OF AGREEMENT is entered into between the North Carolina Sedimentation Control Commission (hereinafter, "Commission") and *Orange County, North Carolina* (hereinafter, "*Local Government*," collectively, "Parties") for the purpose of clarifying their roles in the enforcement of the Sedimentation Pollution Control Act of 1973, N.C. Gen. Stat. Ch. 113A Art. 4 and any rules adopted pursuant to the Act (hereinafter collectively, "SPCA.") This Memorandum of Agreement supersedes and replaces any prior memorandum(s) of agreement between the parties regarding clarifying their roles in the enforcement of the Sedimentation Pollution Control Act of 1973. 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 and sedimentation control ordinance (hereinafter, "model ordinance") for adoption by local governments who wish to operate a delegated local erosion and sedimentation control program (hereinafter, "local program.") 2. Update its model ordinance upon changes in the SPCA. B. Proposed Ordinance Review The Parties agree that: 1. Local governments who choose to create and operate a local program may do so by ordinance (hereinafter, "local program ordinance".) However, the local government must submit the proposed local program ordinance to the Commission for review prior to adoption. 2. North Carolina General Statute § 113A-60(b) requires the Commission to review, approve, approve as modified, or disapprove proposed local program ordinances based upon the minimum requirements of the SPCA. 3. The Commission shall review a local program ordinance submitted and, within 90 days of receipt thereof, shall notify the local government submitting the program that it has been approved, approved with modifications, or disapproved. 4. The local program's erosion and sedimentation control standards must equal or exceed those of the SPCA. 5. The *Local Government* has an existing local program and an ordinance approved 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 the SPCA. The results of the reviews shall be presented at the next quarterly meeting of the Commission. 2. If the Commission determines that any local government is failing to administer or enforce an approved erosion and sedimentation control program, it shall notify the local government in writing and shall specify the deficiencies of administration and enforcement. -2- 3. If the local government has not taken corrective action within 30 days of receipt of notification from the Commission, the Commission shall assume administration and enforcement of the program until such time as the local government indicates its willingness and ability to resume administration and enforcement of the program. B. Training and Education for Local Programs The Parties agree that the Commission shall provide the following: 1. Educational programs in erosion and sedimentation control directed toward persons engaged in land-disturbing activities, general educational materials on erosion and sedimentation control, and instructional materials for persons involved in the enforcement of the SPCA and erosion and sedimentation control rules, ordinances, regulations, and plans. 2. Manuals and publications to assist in the design, construction and inspection of erosion and sedimentation control measures. 3. Periodic reviews of local erosion and sedimentation control programs and through the reviews provide recommendations to improve program administration. 4. Technical assistance in review of draft erosion and sedimentation control plans for complex activities. C. Concurrent Jurisdiction The Parties agree that the Commission shall maintain concurrent jurisdiction with the local government for land-disturbing activities and may take appropriate compliance action if the Commission determines that the local government has failed to take appropriate compliance action. -3- D. Exclusive Jurisdiction The Parties agree that the Commission shall maintain exclusive jurisdiction to administer the 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 pad site. Part III. Responsibilities and Expectations of the Local Government. A. Enforcement The Parties agree that the local government shall administer its own local program ordinances, through the following: 1. Enforce the provisions of the SPCA. 2. Administer the SPCA for all land-disturbing activity within its jurisdiction, including existing sites at the time the local government received program delegation. The Commission may continue to administer the SPCA over specific projects under enforcement action upon mutual agreement with the local government. The local program is not responsible for activities over which the Commission has exclusive jurisdiction. 3. Employ a sufficient number of qualified personnel. Qualified personnel shall be competent to review sedimentation and erosion control plans and conduct inspections of land-disturbing activities. 4. Provide adequate resources for plan review and compliance inspections. B. Reporting The Parties agree that the local government shall provide the following reports/information: 1. Monthly activity reports to the Commission in the form adopted by the Commission. 2. Copy of Notices of Violation to the appropriate regional office of the Division of Energy, Mineral, and Land Resources. -4- 3. Current contact information for their local program to the Division of Energy, Mineral, and Land Resources. C. Sediment and Erosion Control Plans for Land-Disturbing Activity Review The Parties agree that the local government shall review erosion and sedimentation control plans for land-disturbing activity (hereinafter, "plans") submitted to its local program under the following standards: 1. Review plans within 30 days of receipt of a new plan and within 15 days of a revised plan. 2. Approve, approve with modifications, approve with performance reservations, or disapprove draft plans in conformance with the basic control objectives contained in 15A NCAC 04B .0106. 3. Notify in writing the person submitting the plan that it has been approved, approved with modifications, approved with performance reservations or disapproved within 30 days of 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 federal and State 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-disturbing activity. -5- D. Inspection The Parties agree that the local government shall inspect all sites undergoing land-disturbing activity under the following standards: 1. Periodically and regularly inspect sites undergoing land-disturbing activity within its jurisdiction. Periodically and regularly means with sufficient frequency to effectively monitor compliance with the SPCA and rules adopted pursuant to the SPCA and the local erosion and sedimentation control ordinance. 2. Document all inspections in writing, including electronic documents. 3. Inspection reports shall include, at a minimum, all information in the model sedimentation inspection report developed by the Commission. 4. Maintain inspection records for active projects in accordance with State and local record retention policies. E. Enforcement The Parties agree that the local government shall enforce its local program ordinance under the following standards: 1. Issue Notices of Violation (hereinafter, "NOV") for any significant violation of the SPCA, rules adopted pursuant to the SPCA, or the local erosion and sedimentation control ordinance documented in an inspection report. An NOV shall be issued to the persons responsible for the violations,pursuant to N.C. Gen. Stat. § 113A-61.1. 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 the local ordinance d. a date by which the person must comply with the SPCA and the local ordinance e. inform the violator that 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 G.S. 113A-64 and the local ordinance -6- 3. Undertake appropriate enforcement actions, including injunctive relief, or assessment of civil penalties for an initial penalty or a daily penalty for continuing violations. 4. 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 space left intentionally blank.] -7- IN WITNESS HEREOF, the Parties enter into this Memorandum of Agreement, this the day of PJ ANC h . 20l5 SEDIMENTATION CONTROL COMMISSION 'ORANGE COUNTY,NC* By: e'er By: 4 a54 M Earl McKee Chair Chair, Orange County Board of Commissioners Dated: 13 // q a(S Dated: i 2-1��s DIVISION OF ENERGY,MIN L,AND LAND RESOU ES By: By: Tracy E. avis, PE, CPM Earl McKee Direct Chair, Orange County Board of Commissioners Da d: Dated: Approved as to Form Approved as to Form James Bernier, Jr. ohn L. Roberts Counsel to the Commission Orange County Attorney Dated: b � Dated: -8- Appendix I. NORTH CAROLINA GENERAL STATUTES Sedimentation Pollution Control Act(Ch. 113A Art.4) (selected statutes) §113A-54.Powers and duties of the Commission. and sedimentation control program to be (d) In implementing the erosion and sedimentation administered by it,if the program has been approved control program,the Commission shall: by the Commission as being in conformity with the (1) Assist and encourage local governments in general State program. developing erosion and sedimentation control (c) The Commission shall have concurrent jurisdiction programs and, as a part of this assistance, the with local governments that administer a delegated Commission shall develop a model local erosion erosion and sedimentation control program over all and sedimentation control ordinance. The other land-disturbing activities. In addition to the Commission shall approve, approve as authority granted to the Commission in G.S. 113A- modified, or disapprove local programs 60(c), the Commission has the following authority submitted to it pursuant to G.S. 113A-60. with respect to a delegated erosion and sedimentation control program: § 113A-56.Jurisdiction of the.Commission. (1) To review erosion and sedimentation control (a) The Commission shall have jurisdiction, to the plan approvals made by a delegated erosion and exclusion of local governments, to adopt rules sedimentation control program and to require a concerning land-disturbing activities that are: revised plan if the commission determines that a (1)Conducted by the State. plan does not comply with the requirements of 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 (4)Conducted by a local government. program and to take appropriate compliance (5) Funded in whole or in part by the State or the action if the Commission determines that the United States. local government has failed to take appropriate 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 (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 § 113A-60. Local erosion and sedimentation control its standards equal or exceed those of this Article programs. and rules adopted pursuant to this Article. (a) A local government may submit to the Commission (c) If the Commission determines that any local for its approval an erosion and sedimentation control government is failing to administer or enforce an program for its jurisdiction, and to this end local approved erosion and sedimentation control governments are authorized to adopt ordinances and program, it shall notify the local government in regulations necessary to establish and enforce writing and shall specify the deficiencies of erosion and sedimentation control programs. An administration and enforcement. If the local ordinance adopted by a local government may government has not taken corrective action within establish a fee for the review of an erosion and 30 days of receipt of notification from the sedimentation control plan and related activities. Commission, the Commission shall assume Local governments are authorized to create or administration and enforcement of the program until designate agencies or subdivisions of local such time as the local government indicates its government to'administer and enforce the programs. willingness and ability to resume administration and An ordinance adopted by a local government shall at enforcement of the program. 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 (b) The Commission shall review each program regulations necessary to establish a limited erosion submitted and within 90 days of receipt thereof shall and sedimentation control program. An ordinance M 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) i 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 Commission for review. A local government may (1973, c. 392, s. 11; 1993 (Reg. Sess., 1994), c. 776, s. create or designate agencies or subdivisions of the 7; 2002-165, s. 2.8; 2006-250, s. 3.) local government to administer the limited program.