City of Asheville / County of Buncombe

The City of Asheville has enacted a Stormwater Ordinance in order to establish minimum stormwater management requirements and controls to protect and safeguard the general health, safety, and welfare of the public residing in watersheds within this jurisdiction.  The City of Asheville is the permitting authority for all land disturbing activities and requires the land owner to maintain all on-site stormwater control facilities and all open space areas (e.g. parks or “green” areas) required by the approved stormwater control plan. The City of Asheville will only provide construction permits to projects that establish a plan to manage stormwater runoff occurring during the construction process. The City of Ashville, under the NPDES program, also has the authority to inspect properties for noncompliance and can issue a notice of violation (NOV) for any deficiency or infraction onsite. Property owners are responsible for the maintenance of any stormwater facilities or practices located on the property. The City of Asheville has the authority to inspect stormwater facilities and practices in order to ascertain that they are properly maintained and functioning.

Buncombe County’s Stormwater Management program

Buncombe County’s Stormwater Management program is the result of a new ordinance adopted on September 27, 2006. “Chapter 26 Environment, Article VII: Stormwater Management” was adopted to establish minimum requirements for the control of adverse impacts due to stormwater runoff associated with new development in the county. This ordinance requires all properties in the county to comply with federal regulations (EPA Clean Water Act) and the county’s NPDES permit. Buncombe County, as the operator of its MS4, has authority to inspect properties for noncompliance and may issue a Notice of Violation for any stormwater infractions onsite.

Proper management of stormwater runoff will protect property, lessen stream channel erosion, prevent increased flooding and provide additional protection of floodplains, wetlands and water resources, riparian and aquatic ecosystems.

The ordinance requires permits be issued for residential development activity disturbing one acre or more.  Commercial activity requires permits for activities that are on tracts one acre or larger.  The ordinance requires developers to install permanent measures to control the rate of runoff to that which existed prior to development for the 1 Year 24 Hour storm events.

Ordinance # 08-06-20

CHAPTER 26 ENVIRONMENT Article VII: Stormwater Management

Division 2. Administration and Procedures

Section 2: Review and Appeals Procedures

a. A stormwater permit is required for all development and redevelopment which equals or exceeds one acre of residential development, or on commercial lots that are one acre in size or more, unless exempt pursuant to this ordinance.

b. The Buncombe County Board of Commissioners shall establish permit review fees as well as policies, and may amend and update the fees and policies when needed.

c. An applicant shall be entitled to two (2) readings of any application submitted without payment of an additional permit review fee. This shall be construed to mean review of the original application and review of the re-submittal of that application with or without revisions. Any re-submittal by the applicant thereafter shall be treated as a new application and must be accompanied by payment of the full permit review fee in existence at the time of filing.

d. For all activities which are subject to this ordinance, no person shall initiate, proceed, or undertake any land disturbing or development activity for which a permit is required without first being issued a written stormwater control permit. All other required applications must be received and permits must be obtained prior to the start of the work. These may include but are not limited to Soil Erosion and Sedimentation Control, Flood Damage Prevention, Subdivision, Building Permits and Inspections, NC Department of Transportation, NC Division of Water Quality, US Army Corps of Engineers, and NC DENR-Dam Safety.

e. Plan review fees shall be double the amount when land disturbing activity begins before a stormwater permit is obtained from the county.

f. Two (2) copies of the stormwater plan submittal shall be submitted to Planning and Development for review.

g. The Department shall review the plan for completeness and for compliance with the requirements of this ordinance. An incomplete or nonconforming stormwater plan will be returned to the applicant prior to review with an explanation of issues requiring resolution before plan review can be initiated.

h. Within thirty (30) days of receipt of application for stormwater plan approval, Planning and Development shall take action on the plan.

i. Planning and Development shall forward a copy of the plan to the Buncombe County Soil and Water Conservation District who, within twenty (20) days of receipt of the plan, will review the plan and submit its comments and recommendations to the Stormwater Administrator at the Buncombe County Planning and Development Department. Failure of the Soil and Water Conservation District to submit its comments and recommendations within twenty (20) days shall not delay final action on the plan. Planning and Development is solely responsible for plan(s) review and will incorporate review comments and recommendations from the Soil and Water Conservation District into its examination of the plan application.

j. Approval, approval with modifications, or denial of the proposed stormwater plan shall be in writing. In the case of denial, the reasons for denial shall be clearly stated. The applicant may appeal the decision of the Stormwater Administrator at the Buncombe County Planning and Development Department to a plan review committee within 15 days after receipt of written notice of disapproval or approval with modifications. Only the applicant can appeal the decision of the Stormwater Administrator.

1. 1. A condition of plan approval will be the right to physical inspection of the drainage structures and stormwater management measures during and after construction.

k. Hearings held pursuant to this section shall be conducted by a plan review committee consisting of the director of Planning and Development, the director of the Soil and Water Conservation District, and the director of General Services within 30 days after the date of the appeal or request for hearing.

l. The plan review committee shall decide appeals within 15 days after the date of the hearing on any stormwater plan. If the review committee upholds the disapproval or modification of a proposed plan following the hearing, the person submitting the plan shall then be entitled to appeal the local plan review committee’s decision to the Board of Adjustment within 15 days.

m. The Board of Adjustment will conduct a hearing in the nature of a quasijudicial proceeding with all findings of fact supported by material evidence.

n. Decisions appealing the final decision by the Board of Adjustment may be filed in Buncombe County Superior Court, to be reviewed by proceedings in the nature of certiorari, within thirty (30) days of the final decision of the Board of Adjustment.

o. The Stormwater Administrator shall take action on revisions to a stormwater plan which has been previously denied, within fifteen (15) days of receipt of the revised plan application for approval.

p. If a revised application is not re-submitted within sixty (60) calendar days from the date the applicant was notified, the application shall be considered withdrawn, and a new submittal for the same or substantially the same project shall be required along with the appropriate fee and pursuant to the current standards. One re-submittal of a revised application may be submitted without payment of an additional permit review fee. Any re-submittal after the first re-submittal shall be accompanied by a permit review fee additional fee, as established pursuant to this ordinance.

q. Application for an amendment to a stormwater plan in written and graphic form may be made at any time. Until such time that any amendment is approved by the Stormwater Administrator, it shall be unlawful to deviate from the approved plan.

r. An approved plan shall become null and void if the applicant has failed to make progress on the site within six months after the date of approval. The Stormwater Administrator may grant a single, six-month extension of this time limit, for good cause shown, upon receiving a written request from the applicant before the expiration of the approved plan. In granting an extension, the Stormwater Administrator may require compliance with standards adopted since the original application was submitted unless there has been substantial reliance on the original permit and the change in standards would infringe the applicant’s vested rights.

Section 3: Penalties for Violation

Civil penalties may be imposed as follows:

a) Any person who violates any of the provisions of this article, or rules or orders adopted or issued pursuant to this article, or who initiates or continues a development for which a stormwater plan is required, except in accordance with the terms, conditions and provisions of an approved plan, is subject to a civil penalty to be recovered in a civil action in the nature of a debt if the violator does not pay the penalty within 30 days after notice of the violation is issued by the Stormwater Administrator. Civil penalties may be assessed up to the full amount of penalty to which Buncombe County is subject for violations of its Phase II Stormwater permit as a result of the applicant’s non-compliance. Each day of a continuing violation shall constitute a separate violation. Additional fees may be charged for remedies and enforcement of this article.

b) No penalty shall be assessed until the applicant has been notified of the violation by registered or certified mail, return receipt requested, or other means reasonably calculated to give actual notice. The notice shall describe the violation with reasonable particularity, specify a reasonable time period within which the violation can be corrected, and warn that failure to correct the violation within the time period will result in the assessment of a civil penalty or other enforcement action.

c) If the violation has not been corrected within the designated time period, a civil penalty may be assessed from the date the violation is detected.

d) Refusal to accept the notice or failure to notify the Stormwater Administrator of a change of address shall not relieve the violator’s obligation to pay such a penalty.

e) The Stormwater Administrator or other authorized agent may refuse to issue a certificate of occupancy for any building or other improvements constructed or being constructed on the site and served by the stormwater practices in question until the applicant has taken the remedial measures set forth in the notice of violation and cured the violations described therein.

f) Buncombe County review or approval of any plans, applications, specifications or plats of any form or nature delivered to the county by any applicant in respect to this ordinance shall not create a responsibility or liability of the county for their accuracy, sufficiency or compliance with other laws and regulations.

Section 2: Maintenance Manual

a) The stormwater permit application and plan shall be accompanied by an operations and maintenance manual. The manual shall contain a narrative describing each installed measure and device and its design specifications. The manual shall indicate for each installed measure and device what operation and maintenance actions are needed and what specific quantitative criteria will be used to determine when these actions will be taken. The manual must indicate the steps that will be taken to restore a measure or device to the design specifications if a failure occurs.

b) after the permit and plan is approved and installation is complete, if changes have been made to any installed measure or device, the manual shall be revised to reflect these changes, and such changes shall be subject to the review and approval of the Stormwater Administrator.

Division 4: Standards

Section 1: Stormwater Management Objectives

a) In order to reduce drainage related damage and hazards, adequate natural drainage systems or stormwater management installations are required to collect and transmit stormwater flows into either existing drainage facilities or a natural drainage system.

b) All storm drainage facilities shall be designed, constructed and maintained so that adjacent properties are not unreasonably burdened with surface waters as a result of such improvements. Specifically:

[1] Offsite areas which drain to or across a site proposed for development must be accommodated in the stormwater plans for the development. The stormwater management system must be capable of conveying the existing offsite flows through or around the development such that the volume and rate of flow from the adjacent property is not altered. If offsite flows are carried in the site system any detention system shall be sized to accommodate this flow. The flow must be released to the original drainage area.

[2] Storm drainage facilities shall be designed to limit the discharge from the site to the rate that existed prior to development of the site. For projects that are redeveloping a developed site, the discharge will be limited to that which occurs before any new development. The type and location of the discharge will be as occurred before the current development unless the discharge is to a manmade conveyance system.

c) All site improvements shall be provided with a drainage system that is adequate to prevent the undue retention of surface water while promoting recharge of groundwater through infiltration on the development site.

d) These goals for discharge can be accomplished by designing, constructing and maintaining all stormwater management installations to the extent practicable:

[1] Avoid increases in surface runoff volume and velocity by including measures which promote the infiltration of stormwater,

[2] Maximize the time of concentration of stormwater runoff, and

[3] Promote the filtration and precipitation of pollutants from stormwater runoff in order to protect the water quality of the receiving watercourse.

e) Whenever practicable, the drainage system of a development site shall coordinate with and connect to the drainage systems or drainage ways on surrounding properties or streets. Permission must be received from other applicable entities for connection.

f) To the extent practicable, all site improvements shall conform to the natural contours of the land, and without disturbance, utilize the preexisting natural and preexisting manmade drainage ways.

g) To the extent practicable, lot boundaries within subdivisions shall be made to coincide with natural and preexisting man made drainage ways to avoid creation of lots that can only be built upon by altering such drainage ways.

h) Stormwater shall not be diverted from one natural drainage basin into another.

i) Stormwater shall not be channeled or directed into sanitary sewers.

j) Stormwater controls shall not be located within the designated floodway.

k) Stormwater controls shall not be located within 30 feet landward from any perennial and intermittent surface waters. A surface water shall be deemed present if the feature is approximately shown on either the most recent version of the soil survey map prepared by the Natural Resources Conservation Service of the US Department of Agriculture or the most recent version of the quadrangle topographic maps prepared by the USGS.

l) Streams shall not be relocated unless it is demonstrated that the relocation of the stream will have a positive impact on water quality while reducing velocity. All other applicable permits must be received.

Section 5: Maintenance

All stormwater improvements must be maintained so they will continue to serve their intended functions.

a) The developer must maintain stormwater improvements until accepted by a property owners association or lot owner. The developer must disclose which party will be responsible for continued maintenance on the record plat and on the stormwater management plan. The developer will be responsible for the installation, operations, and maintenance of the stormwater controls until ownership is conveyed. The responsibility and agreement for operations and maintenance for the stormwater system is transferred with title, as each property is conveyed.

b) Before improvements are accepted for maintenance by the property owners association or lot owner, the developer or the developer’s engineer or landscape architect, must certify to the property owners association or lot owner and to the County that improvements are complete and functioning as designed.

c) The developer must reference on the record plat, deed, restriction or in covenants an operations and maintenance plan that instructs the property owners association or lot owner about the annual operations and maintenance tasks for at least a 20-year period.

d) The person responsible for maintenance of any stormwater structure or feature installed pursuant to this ordinance shall submit to the Stormwater Administrator an inspection report at least once every three (3) years. However, the Stormwater Administrator shall have the right to demand an inspection report at any time should he/she reasonably believe that any stormwater structure or feature is constructed or being maintained in violation of this ordinance. Such inspection report shall be prepared by a qualified registered North Carolina professional engineer, surveyor, or landscape architect performing services only in their area of competence. The report shall contain the following:

[1] The name and address of the land owner.

[2] The recorded book and page number of the lot of each stormwater control.

[3] A statement that an inspection was made of all stormwater controls and features.

[4] The date the inspection was made.

[5] A statement that all inspected controls and features are performing properly and are in compliance with the terms and conditions of the approved maintenance agreement required by this ordinance.

[6] The signature and seal of the engineer, surveyor, or landscape architect.

Should the stormwater inspection reveal substantial maintenance or repair recommendations it shall be the owners responsibility to retain a registered professional engineer or landscape architect competent in the area of stormwater management to develop plans and specifications for such repairs. Plans for proposed repairs shall be submitted to the Buncombe County Stormwater Management Office for approval prior to construction except for emergency repairs supervised by a professional engineer or landscape architect. Plans and specifications for repairs made in emergency conditions shall be submitted to the Stormwater Management Office within 30 days after the emergency. All inspection reports shall be on forms supplied by the Stormwater Administrator. An original inspection report shall be provided to the Stormwater Administrator every three years thereafter on or before the date of the as-built certification.

It will be the responsibility of the property owners association or lot owner to update the plan annually.

e) The developer must record, and reference on the record plat, a maintenance agreement, or restrictive covenant that sets forth the property owners association’s or lot owner’s continuing responsibilities for maintenance, including specifying how cost will be apportioned among lot owners served.

f) Maintenance Agreements. All maintenance agreements or covenants shall contain without limitation the following provisions:

1. A description of the property on which the device is located and all easements from the site to the device;
2. Size and configuration of the device;
3. A statement that properties which will be served by the device are granted rights to construct, use, inspect, replace, reconstruct, repair, maintain, access to the device and to transport, store, and discharge stormwater to and from the device;
4. A statement that the association and its individual members are responsible parties for repairs and maintenance of the devices and any unpaid ad valorem taxes, public assessments for improvements and unsafe building and public nuisance abatement liens charged against the device, including all interest charges together with attorney fees, cost and expenses of collection. The maintenance agreement shall specify that each member shall have a duty to contribute to the maintenance of the stormwater device. That failure to maintain stormwater control measures is a violation of the Buncombe County Stormwater Ordinance potentially subjecting each lot owner subject to this legal document to significant daily civil penalties and other enforcement actions.
5. If an association is delegated these responsibilities, then membership into the association shall be mandatory for each parcel served by the device and any successive owner, the association shall have the power to levy assessments for these obligations, and that all unpaid assessments levied by the association shall become a lien on the member’s individual parcel who fails to pay such assessments. Common expenses for the association shall include maintenance of stormwater control measures.
6. An operation and maintenance plan or manual together with a budget shall be provided by the applicant. The plan or manual shall indicate what operation and maintenance actions are needed, and what specific quantitative criteria will be used to determine when those actions are to be undertaken. The plan or manual must indicate the steps that will be taken to restore a stormwater system to design specifications if a failure occurs. The budget should include both annual costs such as routine maintenance, periodic sediment removal and replenishment of rip-rap, insurance premiums, taxes, mowing and reseeding, required inspections. These required documents shall be attached to the property association declaration as an exhibit.
7. A statement that stormwater control measures shall be maintained in accordance with the attached stormwater operations and maintenance manual and budget and at all times the stormwater control measures shall comply with all applicable laws, ordinances, regulations, rules and directives of governmental authorities, and that the stormwater control measures shall perform as designed.
8. Without limitation to t potential liability for failure to repair and/or maintain any device(s) of the association and its individual members a statement that each such individual member shall be entitled to recover from any and all other association members a pro rata share, or an established apportionment, of any amounts that each such individual member may be found liable in excess of that individual member’s pro rata share or apportionment.

g) The developer must record easements for access, maintenance and inspections by any property owners association and by Buncombe County Government.

h) All maintenance documents required by this article must be submitted to the Stormwater Administrator before record plat approval, and such documents must be referenced on the record plat, or, in the case of single-lot developments not requiring record plats, documentation must be submitted to the Stormwater Administrator before building permit issuance.

Division 6. Enforcement and Violations.

1. General Provisions.

(a) Authority to Enforce.

(b) Violation Unlawful.

(c) Each Day a Separate Offense.

(d) Legal Action.

2. Remedies and Penalties.

The remedies and penalties provided for violations of this ordinance, whether civil or criminal, shall be cumulative and in addition to any other remedy provided by law, and may be exercised in any order.

(a) Remedies

1. Withholding of Certificate of Occupancy. The Stormwater Administrator or other authorized agent may refuse to issue a certificate of occupancy for the building or other improvements constructed or being constructed on the site and served by the stormwater devices in question until the applicant or other responsible person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violations described therein.

2. Disapproval of Subsequent Permits and Development Approvals. As long as a violation of this ordinance continues and remains uncorrected, the Stormwater Administrator or other authorized agent may withhold, and the Stormwater Administrator, or other authorized agent, may withhold may disapprove, any request for permit or development approval or authorization provided for by this ordinance for the land on which the violation occurs.

3. Injunction, Abatements, etc. The Stormwater Administrator, with the written authorization of the County Manager, or her designee, may institute an action in a court of competent jurisdiction for a mandatory or prohibitory injunction and order of abatement to correct a violation of this ordinance. Any person violating this ordinance shall be subject to the full range of equitable remedies provided in the General Statutes or at common law.

4. Correction as Public Health Nuisance, Costs as Lien, etc. If the violation is deemed dangerous or prejudicial to the public health or public safety and is within the geographic limits prescribed by North Carolina G.S. § 160A-193, the Stormwater Administrator, with the written authorization of the County Manager, or her designee, may cause the violation to be corrected and the costs to be assessed as a lien against the property.

5. Stop Work Order. The Stormwater Administrator may issue a stop work order to the person(s) violating this ordinance. The stop work order shall remain in effect until the person has taken the remedial measures set forth in the notice of violation or has otherwise cured the violation or violations described therein. The stop work order may be withdrawn or modified to enable the person to take the necessary remedial measures to cure such violation or violations.

6. Civil Penalties. Violation of this ordinance may subject the violator to a civil penalty to be recovered in a civil action in the nature of a debt if the violator does not pay the penalty within 30 days after notice of the violation is issued by the Stormwater Administrator. Civil penalties may be assessed up to the full amount of penalty to which Buncombe County is subject for violations of its Phase II Stormwater permit.

7. Criminal Penalties. Violation of this ordinance may be enforced as a misdemeanor subject to the maximum fine permissible under North Carolina law.

3. Procedures.

(a) Initiation/Complaint. Whenever a violation of this ordinance occurs, or is alleged to have occurred, any person may file a written complaint. Such complaint shall state fully the alleged violation and the basis thereof, and shall be filed with the Stormwater Administrator, who shall record the complaint. The complaint shall be investigated promptly by the Stormwater Administrator.

(b) Inspection. The Stormwater Administrator shall have the authority, upon presentation of proper credentials, to enter and inspect any land, building, structure, or premises to ensure compliance with this ordinance.

(c) Notice of Violation and Order to Correct. When the Stormwater Administrator finds that any building, structure, or land is in violation of this ordinance, the Stormwater Administrator shall notify, in writing, the responsible party or other person violating this ordinance. The notification shall indicate the nature of the violation, contain the address or other description of the site upon which the violation is occurring, order the necessary action to abate the violation, and give a deadline for correcting the violation. If civil penalties are to be assessed, the notice of violation shall also contain a statement of the civil penalties to be assessed, the time of their accrual, and the time within which they must be paid or be subject to collection as a debt.

The Stormwater Administrator may deliver the notice of violation and correction order personally, by certified or registered mail, return receipt requested, or by any means authorized for the service of documents by Rule 4 of the North Carolina Rules of Civil Procedure.

If a violation is not corrected within a reasonable period of time, as provided in the notification, the Stormwater Administrator may take appropriate action under this ordinance to correct and abate the violation and to ensure compliance with this ordinance.

This ordinance shall be effective upon adoption. Adopted this the 24th day of June, 2008.

Links:

Buncombe County Stormwater Ordinance

City of Asheville Stormwater Page