A BILL TO BE ENTITLED
AN ACT to amend the sedimentation pollution control act of 1973, as recommended by the environmental review commission.
The General Assembly of North Carolina enacts:
SECTION 1.  G.S. 113A‑54.1 is amended by adding a new subsection to read:
"(e)	An approved erosion and sedimentation control plan shall contain a schedule for the inspection of the area covered by the plan after each phase of the plan has been completed and after establishment of temporary ground cover in accordance with G.S. 113A-57(2). The person submitting the erosion and sedimentation control plan or an agent of the person submitting the erosion and sedimentation control plan shall perform each inspection. The person who performs each inspection shall post a record of the inspection on the site of the land-disturbing activity. The record shall certify that the work has been completed in accordance with the approved erosion and sedimentation control plan and is being maintained in a manner that satisfies the requirements of this Article. The inspections required by this subsection shall be in addition to inspections required by G.S. 113A-61.1."
SECTION 2.  G.S. 113A‑54.2(a) reads as rewritten:
"(a)	The fee for the review of an erosion and sedimentation control plan and related compliance activities shall be one hundred fifty dollars ($150.00) per acre of disturbed land as shown on an erosion and sedimentation control plan or of land disturbed during the life of the project, whichever is greater. "
SECTION 3.  G.S. 113A‑56 reads as rewritten:
"§ 113A‑56.  Jurisdiction of the Commission.
(a)	The Commission shall have jurisdiction, to the exclusion of local governments, to adopt rules concerning land‑disturbing activities that  are any of the following:
(1)	Conducted by the  State.
(2)	Conducted by the United  States.
(3)	Conducted by persons having the power of eminent  domain other than a local government.
	
(5)	Funded in whole or in part by the State or the United States.
(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 and sedimentation control program to be administered by it, if such program has been approved by the Commission as being in conformity with the general State program.
(c)	The Commission shall have concurrent jurisdiction with local governments that have an approved erosion and sedimentation control program over all other land‑disturbing activities. In addition to the authority granted to the Commission in G.S. 113A-60(c), the Commission has the following authority with respect to an approved erosion and sedimentation control program:
(1)	To review an erosion and sedimentation control plan approved by an approved erosion and sedimentation control program and to require a revised plan if the Commission determines that the plan does not comply with the requirements of this Article or the rules adopted pursuant to this Article.
(2)	To take inspection and enforcement action if the Commission determines that the local government has failed to take appropriate inspection or enforcement action."
SECTION 4.  G.S. 113A‑57 reads as rewritten:
"§ 113A‑57. Mandatory standards for land‑disturbing activity.
No land‑disturbing activity subject to this Article shall be undertaken except in accordance with the following mandatory requirements:
(1)	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 twenty‑five percent (25%) of the buffer zone nearest the land‑disturbing activity. 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 twenty‑five percent (25%) of the buffer zone nearest the land‑disturbing activity, whichever is greater. Provided, however, that the 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. This subdivision 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.
(2)	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  10 working days or  21 calendar days of completion of any phase of grading, whichever period is shorter, be planted or otherwise provided with ground cover, devices, or structures sufficient to restrain erosion.
(3)	Whenever land‑disturbing activity is undertaken on a tract comprising more than one acre, if more than one acre is uncovered, 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 within a time period to be specified by rule of the Commission.
(4)	No person shall initiate any land‑disturbing activity that will disturb more than one acre on a tract unless, 30 or more days prior to initiating the activity, an erosion and sedimentation control plan for such activity is filed with the agency having jurisdiction. The agency having jurisdiction 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."
SECTION 5.  G.S. 113A‑60 reads as rewritten:
"§ 113A‑60.  Local erosion and sedimentation control programs.
(a)	A local government may submit to the Commission for its approval an erosion and sedimentation control program for its jurisdiction, and to this end local governments are authorized to adopt ordinances and regulations necessary to establish and enforce erosion and sedimentation control programs. An ordinance adopted by a local government may establish a fee for the review of an erosion and sedimentation control plan and related compliance activities. Local governments are authorized to create or designate agencies or subdivisions of local government to administer and enforce the programs. An ordinance adopted by a local government shall at least meet and may exceed the minimum requirements of this Article and the rules adopted pursuant to this Article. Two or more units of local government are authorized to establish a joint program and to enter into any agreements that are necessary for the proper administration and enforcement of the program. The resolutions establishing any joint program must be duly recorded in the minutes of the governing body of each unit of local government participating in the program, and a certified copy of each resolution must be filed with the Commission.
(b)	The Commission shall review each program 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. The Commission shall only approve a program upon determining that its standards equal or exceed those of this Article and rules adopted pursuant to this Article.
(c)	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. 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.
(d)	A local government may submit to the Commission for its approval a limited erosion and sedimentation control program for its jurisdiction that grants the local government the responsibility only for the inspection of land-disturbing activities within the jurisdiction of the local government. The Commission shall be responsible for administering all components of the erosion and sedimentation control program other than the inspection of land-disturbing activities. The local government may adopt ordinances and regulations necessary to establish a limited erosion and sedimentation control program. A local government that administers a limited erosion and sedimentation control program shall pay an amount equal to one hundred twenty dollars ($120.00) per acre of disturbed land subject to inspection under the limited erosion and sedimentation control program to the Department for review of each erosion and sedimentation control plan and related compliance activities. Fees paid to the Department by a local government shall be deposited in the Sedimentation Account established by G.S. 113A‑54.2(b). The local government shall establish a fee to be paid by each person who submits an erosion and sedimentation control plan to the local government. The amount of the fee shall be the amount that the local government is required to pay to the Department under this subsection for review of the erosion and sedimentation control plan and related compliance activities. In addition, the fee may include the amount that is required to cover the cost of inspection activities conducted by the local government. A local government may create or designate agencies or subdivisions of the local government to administer the limited program. An ordinance adopted by a local government that establishes a limited program shall at least meet and may exceed the minimum requirements regarding the inspection of land-disturbing activities of this Article and the rules adopted pursuant to this Article regarding the inspection of land-disturbing activities. Two or more units of local government may establish a joint limited program and enter into any agreements necessary for the proper administration of the limited program. The resolutions establishing any joint limited program must be duly recorded in the minutes of the governing body of each unit of local government participating in the limited program, and a certified copy of each resolution must be filed with the Commission. Subsections (b) and (c) of this section apply to the approval and oversight of limited programs."
SECTION 6.  G.S. 113A‑64(a) reads as rewritten:
"(a)	Civil Penalties. – 
(1)	Any person who violates any of the provisions of this Article or any ordinance, rule, or order adopted or issued pursuant to this Article by the Commission or by a local government, 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 plan, is subject to a civil penalty. The maximum civil penalty for a violation is five thousand dollars ($5,000), except that, in order to deter violations, the Secretary may assess a civil penalty of up to ten thousand dollars ($10,000) for the first day of a violation. A civil penalty may be assessed from the date of the violation. Each day of a continuing violation shall constitute a separate violation.
(2)	The Secretary or a local government that administers an erosion and sedimentation control program approved under G.S. 113A-60(a) shall determine the amount of the civil penalty and shall notify the person who is assessed the civil penalty of the amount of the penalty and the reason for assessing the penalty. The notice of assessment shall be served by any means authorized under G.S. 1A‑1, Rule 4, and shall direct the violator to either pay the assessment or contest the assessment within 30 days by filing a petition for a contested case under Article 3 of Chapter 150B of the General Statutes. If a violator does not pay a civil penalty assessed by the Secretary within 30 days after it is due, the Department shall request the Attorney General to institute a civil action to recover the amount of the assessment. If a violator does not pay a civil penalty assessed by a local government within 30 days after it is due, the local government may institute a civil action to recover the amount of the assessment. The civil action may be brought in the superior court of any county where the violation occurred or the violator's residence or principal place of business is located. A civil action must be filed within three 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.
(3)	In determining the amount of the penalty, the Secretary shall consider the degree and extent of harm caused by the violation, the cost of rectifying the damage, the amount of money the violator saved by noncompliance, whether the violation was committed willfully and the prior record of the violator in complying or failing to comply with this Article.
(4)	Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 776, s. 11.
(5)	The clear proceeds of civil penalties collected by the Department or other State agency under this subsection shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2. Civil penalties collected by a local government under this subsection shall be credited to the general fund of the local government as nontax revenue."
SECTION 7.  Article 4 of Chapter 113A of the General Statutes is amended by adding a new section to read:
"§ 113A-67.  Annual report.
The Department of Environment and Natural Resources shall report to the Environmental Review Commission on the implementation of this Article on or before September 1 of each year. The Department shall include in the report an analysis of how well the implementation of the Sedimentation Pollution Control Act of 1973 is preventing the sedimentation of streams, rivers, lakes, and other waters of the State. The report shall also include an evaluation of whether the fees and civil penalties are adequate to properly administer and enforce this Article. In addition, the report shall include a review of the effectiveness of local erosion and sedimentation control programs."
SECTION 8.  The Department of Environment and Natural Resources shall submit the first report required by G.S. 113A‑67, as enacted by Section 7 of this act, to the Environmental Review Commission on or before 1 September 2003.
SECTION 9.  This act becomes effective 1 August 2002.