§45-46-5  Model ordinance – Soil erosion and sediment control. –


Published: 2015

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TITLE 45

Towns and cities

CHAPTER 45-46

Soil Erosion and Sediment Control

SECTION 45-46-5



   § 45-46-5  Model ordinance – Soil

erosion and sediment control. –

ARTICLE I

    Section 1. Purpose.



   (a) The (city or town) council finds that excessive

quantities of soil are eroding from certain areas that are undergoing

development for non agricultural uses such as housing developments, industrial

areas, recreational facilities, and roads. This erosion makes necessary costly

repairs to gullies, washed out fills, roads, and embankments. The resulting

sediment clogs the storm sewers and road ditches, muddies streams, leaves

deposits of silt in ponds and reservoirs, and is considered a major water

pollutant.



   (b) The purpose of this ordinance is to prevent soil erosion

and sedimentation from occurring as a result of non agricultural development

within the city or town by requiring proper provisions for water disposal, and

the protection of soil surfaces during and after construction, in order to

promote the safety, public health, and general welfare of the city or town.



   ARTICLE II

    Section 1. Applicability.



   This ordinance is applicable to any situation involving any

disturbance to the terrain, topsoil or vegetative ground cover upon any

property within the city or town of ]]]]]]]] after determination of

applicability by the building official or his or her designee based upon

criteria outlined in article III. Compliance with the requirements as described

in this ordinance shall not be construed to relieve the owner/applicant of any

obligations to obtain necessary state or federal permits.



   ARTICLE III

    Section 1. Determination of applicability.



   (a)(1) It is unlawful for any person to disturb any existing

vegetation, grades, and contours of land in a manner which may increase the

potential for soil erosion, without first applying for a determination of

applicability from the building official or his or her designee. Upon

determination of applicability, the owner/applicant shall submit a soil erosion

and sediment control plan for approval by the building official or his or her

designee, as provided in article IV. The application for determination of

applicability shall describe the location, nature, character, and time schedule

of the proposed land disturbing activity in sufficient detail to allow the

building official or his or her designee to determine the potential for soil

erosion and sedimentation resulting from the proposed project. In determining

the applicability of the soil erosion and sediment control ordinance to a

particular land disturbing activity, the building official or his or her

designee shall consider site topography, drainage patterns, soils, proximity to

watercourses, and other information deemed appropriate by the building official

or his or her designee. A particular land disturbing activity shall not be

subject to the requirements of this ordinance if the building official or his

or her designee finds that erosion resulting from the land disturbing activity

is insignificant and represents no threat to adjacent properties or to the

quality of any coastal feature or watercourse, as defined in Article IX. The

current "Rhode Island Soil Erosion and Sediment Control Handbook," U.S.

department of agriculture soil conservation service, R.I. department of

environmental management, and R.I. state conservation committee shall be

consulted in making this determination.



   (2) This ordinance shall not apply to existing quarrying

operations actively engaged in excavating rock but shall apply to sand and

gravel extraction operations.



   (b) No determination of applicability is required for the

following:



   (1) Construction, alteration, or use of any additions to

existing single family or duplex homes or related structures; provided, that

the grounds coverage of addition is less than one thousand (1,000) square feet,

and construction, alteration and use does not occur within one hundred (100')

feet of any watercourse or coastal feature, and the slopes at the site of land

disturbance do not exceed ten percent (10%).



   (2) Use of a home garden in association with onsite

residential use.



   (3) Accepted agricultural management practices such as

seasonal tilling and harvest activities associated with property utilized for

private and/or commercial agricultural or silvacultural purposes.



   (4) Excavations for improvements other than those described

in subsection (b)(1) of this section which exhibit all of the following

characteristics:



   (i) Does not result in a total displacement of more than

fifty (50) cubic yards of material;



   (ii) Has no slopes steeper than ten feet (10') vertical in

one hundred feet (100') horizontal or approximately ten percent (10%); and



   (iii) Has all disturbed surface areas promptly and

effectively protected to prevent soil erosion and sedimentation.



   (5) Grading, as a maintenance measure, or for landscaping

purposes on existing developed land parcels or lots; provided, that all bare

surface is immediately seeded, sodded or otherwise protected from erosive

actions, and all of the following conditions are met:



   (i) The aggregate area of activity does not exceed two

thousand (2,000) square feet; and



   (ii) The change of elevation does not exceed two feet (2') at

any point; and



   (iii) The grading does not involve a quantity of fill greater

than eighteen (18) cubic yards; except where fill is excavated from another

portion of the same parcel and the quantity does not exceed fifty (50) cubic

yards.



   (6) Grading, filling, removal, or excavation activities and

operations undertaken by the city or town under the direction and supervision

of the director of public works for work on streets, roads, or rights-of-ways

dedicated to public use; provided, that adequate and acceptable erosion and

sediment controls are incorporated, in engineering plans and specifications,

and employed. Appropriate controls apply during construction as well as after

the completion of these activities. All work shall be undertaken in accordance

with the performance principles provided for in Article V, Section 1(c) and the

standards and definitions that may be adopted to implement the performance

principles.



   ARTICLE IV

    Section 1. Provisions of plan – Procedures.



   (a) Plan.



   (1) To obtain approval for a land disturbing activity as

found applicable by the building official or his or her designee under article

III, an applicant shall first file an erosion and sediment control plan signed

by the owner of the property, or authorized agent, on which the work subject to

approval is to be performed. The plan or drawings, as described in article V,

shall include proposed erosion and sediment control measures to be employed by

the applicant or the applicant's agent.



   (2) R.I. Freshwater Wetlands Permit: Where any portion of a

proposed development requires approval under any provision of the general laws

approved by the general assembly or where the approval contains provisions for

soil erosion and sediment controls, that approved plan shall be a component of

the overall soil erosion and sediment control plan required under this

ordinance for the development.



   (b) Fees.



   The city or town adopting this ordinance may collect fair and

reasonable fees from each applicant requesting approval of a soil erosion and

sediment control plan for the purposes of administering this ordinance.



   (c) Plan review.



   (1) Within five (5) working days of the receipt of a

completed plan, the building official or his or her designee shall send a copy

of the plan to the review authorities which may include the public works

department, the planning board or planning department, and conservation

commission for the purpose of review and comment. The building official or his

or her designee may also, within five (5) working days, submit copies of the

plan to other local departments or agencies, including the conservation

district that services their county, in order to better achieve the purposes of

this chapter. Failure of these review authorities to respond within twenty-one

(21) days of their receipt of the plan shall be deemed as no objection to the

plan as submitted.



   (2) The time allowed for plan review shall be commensurate

with the proposed development project, and shall be done simultaneously with

other reviews.



   (d) Plan approval.



   (1) The building official or his or her designee shall take

action in writing, either approving or disapproving the plan, with reasons

stated within ten (10) days after the building official has received the

written opinion of the review authorities.



   (2) In approving a plan, the building official or his or her

designee may attach conditions deemed reasonably necessary by the review

authorities to further the purposes of this ordinance. The conditions

pertaining to erosion and sediment control measures and/or devices, may

include, but are not limited to, the erection of walls, drains, dams, and

structures, planting vegetation, trees and shrubs, furnishings, necessary

easements, and specifying a method of performing various kinds of work, and the

sequence or timing of the work. The applicant/owner shall notify the building

inspector, or his or her designee, in advance of his or her intent to begin

clearing and construction work described in the erosion and sediment control

plan. The applicant shall have the erosion and sediment control plan on the

site during grading and construction.



   (e) Appeals.



   (1) Administrative procedures: (A) If the ruling made by the

building official or his or her designee is unsatisfactory to the

applicant/owner, the applicant/owner may file a written appeal. The appeal of

plans for soil erosion and sediment control shall be to the zoning board of

review or other appropriate board of review, as determined by the city or town

council.



   (B) Appeal procedures shall follow current requirements for

appeal to the above-mentioned boards.



   (C) During the period in which the request for appeal is

filed, and until the time that a final decision is rendered on the appeal, the

decision of the building official or his or her designee remains in effect.



   (2) Expert opinion: The official, or his or her designee, the

zoning board of review, or other board of review, may seek technical assistance

on any soil erosion and sediment control plan. The expert opinion must be made

available in the office of the building official, or his or her designee, as a

public record prior to the appeals hearing.



   ARTICLE V.

    Section 1. Soil Erosion and Sediment Control Plan.



   (a) Plan preparation.



   The erosion and sediment control plan shall be prepared by a

registered engineer, or landscape architect or a soil and water conservation

society certified erosion and sediment control specialist, and copies of the

plan shall be submitted to the building official or his or her designee.



   (b) Plan contents.



   The erosion and sediment control plan shall include

sufficient information about the proposed activities and land parcels to form a

clear basis for discussion and review and to assure compliance with all

applicable requirements of this chapter. The plan shall be consistent with the

data collection, data analysis, and plan preparation guidelines in the current

"Rhode Island Soil Erosion and Sediment Control Handbook," prepared by the U.S.

department of agriculture, soil conservation service, R.I. department of

environmental management, R.I. state conservation committee, and at a minimum,

shall contain:



   (1) A narrative describing the proposed land disturbing

activity and the soil erosion and sediment control measures and stormwater

management measures to be installed to control erosion that could result from

the proposed activity. Supporting documentation, such as a drainage area,

existing site, and soil maps shall be provided as required by the building

official or his or her designee.



   (2) Construction drawings illustrating in detail existing and

proposed contours, drainage features, and vegetation; limits of clearing and

grading, the location of soil erosion and sediment control and stormwater

management measures, detail drawings of measures; stock piles and borrow areas;

sequence and staging of land disturbing activities; and other information

needed for construction.



   (3) Other information or construction plans and details as

deemed necessary by the building official or his or her designee for a thorough

review of the plan prior to action being taken as prescribed in this chapter.

Withholding or delay of information may be reasons for the building official or

his or her designee to judge the application as incomplete and providing

grounds for disapproval of the application.



   (c) Performance principles.



   The contents of the erosion and sediment control plan shall

clearly demonstrate how the principles, outlined in this subsection, have been

met in the design and are to be accomplished by the proposed development

project.



   (1) The site selected shall show due regard for natural

drainage characteristics and topography.



   (2) To the extent possible, steep slopes shall be avoided.



   (3) The grade of created slopes shall be minimized.



   (4) Post development runoff rates should not exceed pre

development rates, consistent with other stormwater requirements which may be

in effect. Any increase in storm runoff shall be retained and recharged as

close as feasible to its place of origin by means of detention ponds or basins,

seepage areas, subsurface drains, porous paving, or similar technique.



   (5) Original boundaries, alignment, and slope of watercourses

within the project locus shall be preserved to the greatest extent feasible.



   (6) In general, drainage shall be directed away from

structures intended for human occupancy, municipal or utility use, or similar

structures.



   (7) All drainage provisions shall be of a design and capacity

so as to adequately handle stormwater runoff, including runoff from tributary

upstream areas which may be outside the locus of the project.



   (8) Drainage facilities shall be installed as early as

feasible during construction, prior to site clearance, if possible.



   (9) Fill located adjacent to watercourses shall be suitably

protected from erosion by means of riprap, gabions, retaining walls, vegetative

stabilization, or similar measures.



   (10) Temporary vegetation and/or mulching shall be used to

protect bare areas and stockpiles from erosion during construction; the

smallest areas feasible shall be exposed at any one time; disturbed areas shall

be protected during the non growing months, November through March.



   (11) Permanent vegetation shall be placed immediately

following fine grading.



   (12) Trees and other existing vegetation shall be retained

whenever feasible; the area within the dripline shall be fenced or roped off to

protect trees from construction equipment.



   (13) All areas damaged during construction shall be resodded,

reseeded, or otherwise restored. Monitoring and maintenance schedules, where

required, shall be predetermined.



   (d) Existing uses and facilities.



   (1) The building official and/or his or her designee shall

accept plans for existing uses and facilities which by their nature may cause

erosion and sedimentation, such as excavation and quarrying operations;

provided, that this section shall not apply to article III, section 1(a)(1).

Plans or satisfactory evidence to demonstrate that the existing operations

accomplish the objectives of the section shall be submitted to the building

official and/or his/her designee within one hundred twenty (120) days from the

date of the determination of applicability. Implementation of the plan shall be

initiated upon approval of the plan.



   (2) When the preexisting use is a gravel extraction

operation, the property owner shall conduct the operation in a manner so as not

to devalue abutting properties; to protect abutting property from wind erosion

and soil erosion due to increased runoff, sedimentation of reservoirs, and

drainage systems; and to limit the depth of extraction so as not to interfere

with the existing nearby water table.



   ARTICLE VI. Enforcement.

    Section 1. Performance bond.



   (a) Performance bond.



   (1) Before approving an erosion sediment control plan, the

building official or his or her designee may require the applicant/owner to

file a surety company performance bond, deposit of money, negotiable

securities, or other method of surety, as specified by the building official or

his or her designee. When any land disturbing activity is to take place within

one hundred feet (100') of any watercourse or coastal feature or within an

identified flood hazard district, or on slopes in excess of ten percent (10%),

the filing of a performance bond shall be required. The amount of the bond, as

determined by the public works department, or in its absence, the building

official or his or her designee, shall be sufficient to cover the cost of

implementing all erosion and sediment control measures as shown on the plan.



   (2) The bond or negotiable security filed by the applicant

shall be subject to approval of the form, content, amount, and manner of

execution by the public works director and the city or town solicitor.



   (3) A performance bond for an erosion sediment control plan

for a subdivision may be included in the performance bond of the subdivision.

The posting of the bond as part of the subdivision performance bond does not,

however, relieve the owner of any requirements of this ordinance.



   (b) Notice of default on performance secured by bond.



   (1) Whenever the building official or his or her designee

finds that a default has occurred in the performance of any terms or conditions

of the bond or in the implementation of measures secured by the bond, written

notice shall be made to the applicant and to the surety of the bond by the

municipal solicitor. The notice shall state the nature of default, work to be

done, the estimated cost, and the period of time deemed by the building

official or his or her designee to be reasonably necessary for the completion

of the work.



   (2) Failure of the applicant to acknowledge and comply with

the provisions and deadlines outlined in the notice of default means the

institution, by the city or town solicitor, without further notice of

proceedings whatsoever, of appropriate measures to utilize the performance

bond, to cause the required work to be completed by the city or town, by

contract or by other appropriate means as determined by the city or town

solicitor.



   (c) Notice of default on performance secured by cash or

negotiable securities deposit.



   If a cash or negotiable securities deposit has been posted by

the applicant, notice and procedure are the same as provided for in subsection

(b) of this section.



   (d) Release from performance bond conditions.



   The performance bonding requirement shall remain in full

force and effect for twelve (12) months following completion of the project, or

longer if deemed necessary by the building official or his or her designee.



    Section 2. Approval – Expiration – Renewal.



   (a) Every approval granted in this ordinance shall expire at

the end of the time period established in the conditions. The developer shall

fully perform and complete all of the work required within the specified time

period.



   (b) If the developer is unable to complete the work within

the designated time period, he or she shall, at least thirty (30) days prior to

the expiration date, submit a written request for an extension of time to the

building official or his or her designee, stating the underlying reasons for

the requested time extension. If the extension is warranted, the building

official or his or her designee may grant an extension of time up to a maximum

of one year from the date of the original deadline. Subsequent extensions under

the same conditions may be granted at the discretion of the building official.



    Section 3. Maintenance of measures.



   Maintenance of all erosion sediment control devices under

this ordinance shall be the responsibility of the owner. The erosion sediment

control devices shall be maintained in good condition and working order on a

continuing basis. Watercourses originating and located completely on private

property shall be the responsibility of the owner to their point of open

discharge at the property line or at a communal watercourse within the property.



    Section 4. Liability of applicant.



   Neither approval of an erosion and sediment control plan nor

compliance with any condition of this chapter shall relieve the owner/applicant

from any responsibility for damage to persons or property, nor impose any

liability upon the city or town for damages to persons or property.



   ARTICLE VII.

    Section 1. Inspections.



   (a) Periodic inspections.



   The provisions of this ordinance shall be administered and

enforced by the building official or his or her designee. All work shall be

subject to periodic inspections by the building official, or his or her

designee. All work shall be performed in accordance with an inspection and

construction control schedule approved by the building official or his or her

designee, who shall maintain a permanent file on all of his or her inspections.

Upon completion of the work, the developer or owner shall notify the building

official or his or her designee that all grading, drainage, erosion and

sediment control measures and devices, and vegetation and ground cover planting

has been completed in conformance with the approval, all attached plans,

specifications, conditions, and other applicable provisions of this ordinance.



   (b) Final inspection.



   (1) Upon notification of the completion by the owner, the

building official or his or her designee shall make a final inspection of the

site in question, and shall prepare a final summary inspection report of its

findings which shall be retained in the department of inspections, and in the

department of public works' permanent inspections file.



   (2) The applicant/owner may request the release of his or her

performance bond from the building official or his or her designee twelve (12)

months after the final site inspection has been completed and approved. In the

instance where the performance bond has been posted with the recording of a

final subdivision, the bond shall be released after the building official or

his or her designee has been notified by the city or town planning director of

successful completion of all plat improvements by the applicant/owner.



   ARTICLE VIII. Notification.

    Section 1. Noncompliance.



   If, at any stage, the work in progress and/or completed under

the terms of an approved erosion and sediment control plan does not conform to

the plan, a written notice from the building official or his or her designee to

comply shall be transmitted by certified mail to the owner. The notice shall

state the nature of the temporary and permanent corrections required, and the

time limit within which corrections shall be completed as established in

section 2(b) of this article. Failure to comply with the required corrections

within the specified time limit is considered a violation of this ordinance, in

which case the performance bond or cash or negotiable securities deposit is

subject to notice of default, in accordance with sections 1(b) and 1(c) of

article VI.



    Section 2. Penalties.



   (a) Revocation or suspension of approval.



   The approval of an erosion and sediment control plan under

this chapter may be revoked or suspended by the building official and all work

on the project halted for an indefinite time period by the building official

after written notification is transmitted by the building official to the

developer for one or more of the following reasons:



   (1) Violation of any condition of the approved plan, or

specifications pertaining to it;



   (2) Violation of any provision of this ordinance or any other

applicable law, ordinance, rule, or regulation related to the work or site of

work; and



   (3) The existence of any condition or the performance of any

act constituting or creating a nuisance, hazard, or endangerment to human life

or the property of others, or contrary to the spirit or intent of this

ordinance.



   (b) Other penalties.



   In addition, whenever there is a failure to comply with the

provisions of this ordinance, the city or town has the right to notify the

applicant/owner that he or she has five (5) days from the receipt of notice to

temporarily correct the violations and thirty (30) days from receipt of notice

to permanently correct the violations. Should the applicant owner fail to take

the temporary corrective measures within the five (5) day period and the

permanent corrective measures within the thirty (30) day period, the city or

town then has the right to take whatever actions it deems necessary to correct

the violations and to assert a lien on the subject property in an amount equal

to the costs of remedial actions. The lien shall be enforced in the manner

provided or authorized by law for the enforcement of common law liens on

personal property. The lien shall be recorded with the records of land evidence

of the municipality, and the lien does incur legal interest from the date of

recording. The imposition of any penalty shall not exempt the offender from

compliance with the provisions of this ordinance, including revocation of the

performance bond or assessment of a lien on the property by the city or town.



   (c) In addition to any other penalties provided in this

section, a city or town is authorized and empowered to provide by local

ordinance for penalties and/or fines of not more than two hundred fifty dollars

($250) for failure to submit plans on or before the date on which the plan must

be submitted, as stated in the determination of applicability. Each day that

the plan is not submitted constitutes a separate offense.



   ARTICLE IX.

    Section 1. Definition of selected terms.



   (a) Applicant: Any persons, corporation, or public or

private organization proposing a development which would involve disturbance to

the natural terrain as defined in this ordinance.



   (b) Coastal feature: Coastal beaches and dunes,

barrier beaches, coastal wetlands, coastal cliffs, bluffs, and banks, rocky

shores, and manmade shorelines as defined in "The State of Rhode Island Coastal

Resources Management Program" as amended June 28, 1983.



   (c) Cut: An excavation. The difference between a point

on the original ground and a designated point of lower elevation on the final

grade. Also, the material removed in excavation.



   (d) Development project: Any construction,

reconstruction, demolition, or removal of structures, roadways, parking, or

other paved areas, utilities, or other similar facilities, including any action

requiring a building permit by the city or town.



   (e) Erosion: The removal of mineral and/or organic

matter by the action of wind, water, and/or gravity.



   (f) Excavate: Any act by which earth, sand, gravel, or

any other similar material is dug into, cut, removed, displaced, relocated, or

bulldozed, and includes the resulting conditions.



   (g) Fill: Any act by which earth, sand, or other

material is placed or moved to a new location above ground. The fill is also

the difference in elevation between a point of existing undisturbed ground and

a designated point of higher elevation of the final grade.



   (h) Land disturbing activity: Any physical land

development activity which includes such actions as clearance of vegetation,

moving or filling of land, removal or excavation of soil or mineral resources,

or similar activities.



   (i) Runoff: The surface water discharge or rate of

discharge of a given watershed after a fall of rain or snow, and including

seepage flows that do not enter the soil but run off the surface of the land.

Also, that portion of water that is not absorbed by the soil, but runs off the

land surface.



   (j) Sediment: Solid material, both mineral and/or

organic, that is in suspension, is being transported, or has been moved from

its site or origin by wind, water, and/or gravity as a product of erosion.



   (k) Soil erosion and sediment control plan: The

approved document required before any person may cause a disturbance to the

natural terrain within the city or town as regulated by this ordinance. Also,

referred to as erosion and sediment control plan, approved plan.



   (l) Watercourse: The term watercourse means any

tidewater or coastal wetland at its mean high water level, and any freshwater

wetland at its seasonal high water level, including, but not limited to, any

river, stream, brook, pond, lake, swamp, marsh bog, fen, wet meadow, or any

other standing or flowing body of water. The edge of the watercourse shall be

used for delineation purposes.



History of Section.

(P.L. 1982, ch. 287, § 1; P.L. 1990, ch. 261, § 1; P.L. 1991, ch.

152, § 1; P.L. 1991, ch. 334, § 1; P.L. 1991, ch. 354, § 8; P.L.

1999, ch. 354, § 51.)

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