Article VIII - Natural Resources
Subpart E. Soil Erosion and Sedimentation Control
§42-253.
Purpose
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.
§42-254.
Scope and Exclusions
A.
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, other appropriate legal instrument or law. 
B.
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)
An activity, including breeding and grazing of livestock, undertaken on agricultural land for the
production of plants and animals useful to man, including, but not limited to:
a.
forage and sod crops, grain and feed crops, tobacco, cotton, orchards and fruit crops, and
peanuts.
b.
dairy animals and dairy products.
c.
poultry and poultry products.
d.
livestock, including beef cattle, sheep swine, horses, ponies, mules, and goats.
e.
bees and apiary products.
f.
fur producing animals.
(2)
An activity undertaken on forestland for the production and harvesting of timber and timber
products and conducted in accordance with best management practices set out in Forest Practice
Guidelines Related to Water Quality, as adopted by NCDENR. If land-disturbing activity
undertaken on forestland for the production and harvesting of timber and timber products is not
conducted in accordance with 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 NCGS.
(4)
A land-disturbing activity over which the State has exclusive regulatory jurisdiction as provided in
(5)
An activity which is essential to protect human life during an emergency.
C.
Plan Approval Requirement for Land-Disturbing Activity. No person shall undertake any land-disturbing
activity subject to this subpart without first obtaining an Erosion and Sedimentation Control 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:
a.
Any land-disturbing activity which uncovers one or more acres (43,560 square feet) of
land.
b.
Any land-disturbing activity which uncovers one-half (1/2) acre or more (21,780 square
feet) of land with an average slope of 16 percent (7.2 degrees) to 25 percent (11.25
degrees) in its natural state. The average slope shall be calculated only for the disturbed
area.
c.
Any land-disturbing activity which uncovers one-quarter (1/4) acre or more (10,890
square feet) of land with an average slope over 25 percent (11.25 degrees in its natural
state). The average slope shall be calculated only for the disturbed area.
D.
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.
E.
More Restrictive Rules Shall Apply. Whenever conflicts exist between federal, state, or local laws,
ordinances, or rules, the more restrictive provision shall apply.
  
F.
Plan Approval Exceptions. Notwithstanding the general requirement to obtain an Erosion and
Sedimentation Control Plan approval prior to undertaking land-disturbing activity, an Erosion and
Sedimentation Control Plan approval shall not be required for land-disturbing activity that does not exceed
the provisions as specified in §42-254 (Scope and Exclusions) C (Plan Approval Requirement for Land-
Disturbing Activity). 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.
§42-255.
Mandatory Standards for Land Disturbing Activity
No land-disturbing activity subject to the control of this subpart shall be undertaken except in accordance with the
following mandatory standards:
A.
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.
a.
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.
b.
Buffer Measurement. Unless otherwise provided, the width of a buffer zone is measured
horizontally from the edge of the bankfull elevation 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 North Carolina Sedimentation Control
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.
a.
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.
b.
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.
c.
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 of the Division of Land
Resources of NCDENR.
d.
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.”
B.
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.
C.
Fill Material. Unless a permit from NCDENR’s Division of Waste Management to operate a landfill is on
file for the official site, acceptable fill material shall be free of organic or other degradable materials,
  
masonry, concrete and brick in sizes exceeding 12 inches, and any materials which would cause the site to
be regulated as a landfill by the State of North Carolina.
D.
Ground Cover. Whenever land-disturbing activity 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
§42-258 (Design and Performance Standards) B(5) of this subpart, provisions for a ground cover sufficient
to restrain erosion must be accomplished within 21 calendar days following completion of construction or
development.
E.
Prior Plan Approval. No person shall initiate any land-disturbing activity on a tract unless, 30 or more days
prior to initiating the activity, an Erosion and Sedimentation Control Plan for the activity is filed with and
approved by the Soil Erosion and Sedimentation Control Administrator. An Erosion and Sedimentation
Control Plan may be filed less than 30 days prior to initiation of a land-disturbing activity if the plan is
submitted under an approved express permit program, and the land-disturbing activity may be initiated and
conducted in accordance with the plan once the plan has been approved. 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
§42-256.
Erosion and Sedimentation Control Plans
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
G.
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.
H.
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, approved with performance reservations, 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.
I.
Approval. 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.
J.
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.
K.
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.
L.
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.
M.
Preconstruction Conference. When deemed necessary by the approving authority a preconstruction
conference may be required.
N.
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.
O.
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.
P.
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.
Q.
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.
§42-257.
Basic Control Objectives
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:
A.
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.
B.
Limit Time of Exposure. All land-disturbing activities are to be planned and conducted to limit exposure to
the shortest feasible time.
C.
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.
D.
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.
E.
Control Sedimentation. All land-disturbing activity is to be planned and conducted so as to prevent off-site
sedimentation damage.
F.
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.
§42-258.
Design and Performance Standards
A.
Except as provided in §42-258 (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 USDA, Soil Conservation Service’s “National
Engineering Field Manual for Conservation Practices”, or other acceptable calculation procedures.
B.
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 of the
Division of Land Resources of NCDENR.
(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 United States Department of Agriculture Soil
Conservation Service’s “National Engineering Field Manual for Conservation Practices” or
according to procedures adopted by any other agency of this state or the United States or any
generally recognized organization or association.
(3)
Settling Efficiency. Sediment basins within HQW zones shall be designed and constructed such
that the basin will have a settling efficiency of at least 70 percent for the 40 micron (0.04
millimeter) size soil particle transported into the basin by the runoff of that two (2) year storm
which produces the maximum peak rate of runoff as calculated according to procedures in the
United States Department of Agriculture Soil Conservation Service’s “National Engineering Field
Manual for Conservation Practices” or according to procedures adopted by any other agency of
this state or the United States or any generally recognized organization or association.
(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 acceptable ditch liners. In any event, the
angle for side slopes shall be sufficient to restrain accelerated erosion.
(5)
Ground Cover. Ground cover sufficient to restrain erosion must be provided for any portion of a
land-disturbing activity in a HQW zone within 15 working days or 60 calendar days following
completion of construction or development, whichever period is shorter.
§42-259.
Stormwater Outlet Protection
A.
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.
B.
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.
Table 8.1. Maximum Permissible Velocities
Material
Feet Per Second
Meters Per Second
  
(F.P.S.)
(M.P.S.)
Fine sand (noncolloidal)
2.5
0.8
Sandy loam (noncolloidal)
2.5
0.8
Silt loam (noncolloidal)
3.0
0.9
Ordinary firm loam
3.5
1.1
Fine gravel
5.0
1.5
Stiff clay (very colloidal)
5.0
1.5
Graded, loam to cobbles (noncolloidal)
5.0
1.5
Graded, silt to cobbles (colloidal)
5.5
1.7
Alluvial silts (noncolloidal)
3.5
1.1
Alluvial silts (colloidal)
5.0
1.5
Coarse gravel (noncolloidal)
6.0
1.8
Cobbles and shingles
5.5
1.7
Shales and hard pans
6.0
1.8
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 channels.
C.
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 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.
D.
Exceptions. This rule shall not apply where it can be demonstrated to the Soil Erosion and Sedimentation
Control Administrator that stormwater discharge velocities will not create an erosion problem in the
receiving watercourse.
§42-260.
Borrow and Waste Areas
When the person conducting the land-disturbing activity is also the person conducting the borrow or waste disposal
activity, areas from which borrow is obtained and which are not regulated by the provisions of the Mining Act of
1971, and waste areas for surplus materials other than landfills regulated by NCDENR’s Division of Waste
Management shall be considered as part of the land-disturbing activity where the borrow material is being used or
from which the waste material originated. When the person conducting the land-disturbing activity is not the person
obtaining the borrow and/or disposing of the waste, these areas shall be considered a separate land-disturbing
activity.
§42-261.
Access and Haul Roads
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. Whenever an access or haul road adjoins a dedicated
  
public or private road, sufficient depth, width, and type of stone, properly compacted, shall be installed as a mud
matt to prevent the accumulation of soil and mud on existing roads.
§42-262.
Operations in Lakes or Natural Watercourses
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.
§42-263.
Responsibility for Maintenance
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 North Carolina Sedimentation Pollution Control Act of 1973, or any order adopted
pursuant to this subpart or the North Carolina Sedimentation Pollution Control Act of 1973. 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.
§42-264.
Additional Measures
Whenever the Soil Erosion and Sedimentation Control Administrator determines that significant erosion and
sedimentation is occurring as a result of land-disturbing activity, despite application and maintenance of protective
practices, the person conducting the land-disturbing activity will be required to and shall take additional protective
action.
§42-265.
Existing Uncovered Areas
A.
All uncovered areas existing on the effective date of this subpart which resulted from land-disturbing
activity, exceed one (1) acre, are subject to continued accelerated erosion, and are causing off-site damage
from sedimentation, shall be provided with a ground cover or other protective measures, structures, or
devices sufficient to restrain accelerated erosion and control off-site sedimentation.
B.
The Soil Erosion and Sedimentation Control Administrator shall serve upon the landowner or other person
in possession or control of the land a written notice to comply with the North Carolina Sedimentation
Pollution Control Act of 1973, this subpart, a rule or order adopted or issued pursuant to the North Carolina
Sedimentation Pollution Control Act of 1973 by the North Carolina Sedimentation Control Commission or
by the Soil Erosion and Sedimentation Control Administrator. The notice to comply shall be sent by
registered or certified mail, return receipt requested, or other means provided in NCGS 1A-1, Rule 4. The
notice will set forth the measures needed to comply and will state the time within which such measures
must be completed. In determining the measures required and the time allowed for compliance, the
authority serving notice shall take into consideration the economic feasibility, technology, and quantity of
work required, and shall set reasonable and attainable time limits of compliance.
C.
The Soil Erosion and Sedimentation Control Administrator reserves the right to require preparation and
approval of an Erosion and Sedimentation Control Plan in any instance where extensive control measures
are required.
D.
This rule shall not require ground cover on cleared land forming the future basin of a planned reservoir.
§42-266.Fees
A.
Henderson County may establish a fee schedule for the review and approval of Erosion and Sedimentation
Control 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.
§42-267.
Plan Appeals
A.
Except as provided in §42-267 (Plan Appeals) B of this subpart, the appeal of a disapproval or approval
with modifications of an Erosion and Sedimentation Control Plan shall governed by the following
provisions:
  
(1)
The disapproval or modification of any proposed Erosion and Sedimentation Control Plan by the
Soil Erosion and Sedimentation Control Administrator shall entitle the person submitting the
Erosion and Sedimentation Control 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 Erosion and Sedimentation
Control Plan following the hearing, the person submitting the Erosion and Sedimentation Control
Plan shall then be entitled to appeal the County’s decision to the Competent Court of Jurisdiction.
B.
In the event that an Erosion and Sedimentation Control Plan is disapproved pursuant to §42-256 (Erosion
and Sedimentation Control Plans) J of this subpart, the applicant may appeal the Board of Adjustment’s
disapproval of the Erosion and Sedimentation Control Plan directly to the North Carolina Sediment Control
Commission.
§42-268.Inspections and Investigations
A.
Inspection. Agents, officials, or other qualified persons authorized by the Soil Erosion and Sedimentation
Control Administrator will periodically inspect land-disturbing activities to ensure compliance with the
North Carolina Sedimentation Pollution Control Act of 1973, this subpart, or rules or orders adopted or
issued pursuant to this subpart, and to determine whether the measures required in the Erosion and
Sedimentation Control Plan or Permit 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
Erosion and Sedimentation Control Plan.
B.
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.
C.
Notice of Violation. If the Soil Erosion and Sedimentation Control Administrator determines that a person
engaged in land-disturbing activity has failed to comply with the North Carolina Sedimentation Pollution
Control Act of 1973, 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 North Carolina
Sedimentation Pollution Control Act of 1973, 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 North Carolina
Sedimentation Pollution Control Act of 1973, 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.
D.
Revocation of Permits. The notice shall set forth the actions necessary to achieve compliance with the plan
or this section, specify a reasonable time period within which such measures must be completed, and warn
that failure to correct the violation within the time period will result in one or more of the following:
(1)
Revocation of the land-disturbing permit, all building permits, and any other permits issued by the
County;
(2)
The issuance of a stop work order;
(3)
The assessment of civil penalties; or
(4)
Other enforcement action.
If work has not begun within six (6) months following the issuance date, the land-disturbing permit shall be
deemed expired. Renewal of the land-disturbing permit will require submittal of a new application and
associated plan review fees. No grading work is to be performed until the new permit is issued. 
E.
Investigation. The 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 for this purpose to enter at reasonable times upon any property, public or private, for the purpose of
investigating and inspecting the sites of any land-disturbing activity.
  
F.
Statements and Reports. The 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.
§42-269.
Penalties
A.
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 an Erosion and Sedimentation Control Plan is required except in
accordance with the terms, conditions, and provisions of an approved Erosion and Sedimentation
Control Plan or Permit, is subject to a civil penalty. The maximum civil penalty amount that the
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.
(2)
Civil Penalty Assessment Factors. The Soil Erosion and Sedimentation Control Administrator
shall determine the amount of the civil penalty based upon the following factors:
a.
the degree and extent of harm caused by the violation,
b.
the cost of rectifying the damage,
c.
the amount of money the violator saved by noncompliance,
d.
whether the violation was committed willfully, and
e.
the prior record of the violator in complying or failing to comply with this subpart.
(3)
Notice of Civil Penalty Assessment. The 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 NCGS 1A-1, Rule 4, and
shall direct the violator to either pay the assessment or contest the assessment, within 30 days after
receipt of the notice of assessment, by written demand for a hearing. 
(4)
Hearing. A hearing on a civil penalty shall be conducted by the ZBA within 30 days after the date
of the written demand for the hearing.
(5)
Final Decision. The Board of Adjustment shall render its final decision on the civil penalty within
45 days of the receipt of the appeal.
(6)
Appeal of Final Decision. Appeal from the final decision of the Board of Adjustment shall be to
the Competent Court of Jurisdiction.
(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. 
B.
Criminal Penalties. Any person who knowingly or willfully violates any provision of this subpart, or rule or
order adopted or issued pursuant to this subpart, or who knowingly or willfully initiates or continues a
land-disturbing activity for which an Erosion and Sedimentation Control 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.
§42-270.Injunctive Relief
A.
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.
  
B.
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.
§42-271.
Restoration After Non-Compliance
The 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 NCGS §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.
§42-272.
Severability
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.
§42-273.
Effective Date
This subpart becomes effective on October 1, 2007.
§42-274.
Through 42- 293. Reserved