N.C.P.I.—Civil 847.00

The (state number) issue reads:

“Did the defendant violate the [Sedimentation Pollution Control Act

[and]] [[an ordinance] [a rule] [an order] adopted by [the Secretary of

Environment and Natural Resources] [(state name of local government)]

pursuant to the Sedimentation Pollution Control Act], causing damage to

the plaintiff's property?”2

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, that

the defendant undertook land-disturbing activity in violation of the

Sedimentation Pollution Control Act and that such violation was a

proximate3 cause of the damage to the plaintiff's property.4

Land-disturbing activity means any use of land by any person5 in

[[residential] [industrial] [educational] [institutional] [commercial]

development] [highway and road construction and maintenance] that

results in a change in the natural cover or topography, and that may

cause or contribute to sedimentation.6 Sedimentation is the process by

which solid particulate matter, both mineral and organic, has been or is

being transported by water, air, gravity, or ice from its site of origin.7

A proximate cause is a cause which in a natural and continuous

sequence produces damage to property, and is a cause which a

reasonable and prudent person in the same or similar circumstances could

have foreseen would probably produce such damage or some similar

damaging result. There may be more than one proximate cause of

damage to the plaintiff's property. The plaintiff is not required to prove

that the defendant's undertaking of land-disturbing activity in violation of

the Sedimentation Pollution Control Act was the sole proximate cause of

the damage to the plaintiff's property. Rather, the plaintiff must prove

by the greater weight of the evidence that the defendant's land-disturbing activity in violation of the Act was a proximate cause.

In this case, the plaintiff contends, and the defendant denies, that

the defendant violated the Sedimentation Pollution Control Act, in [the

following way] [one or more of the following ways]:

[The (state appropriate number) contention is that the defendant

undertook land-disturbing activity in proximity to a natural watercourse or

lake and failed to provide a sufficient buffer zone. The Sedimentation

Pollution Control Act requires that an undisturbed buffer zone along the

margin, that is the edge, of the watercourse be 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.]8

[The (state appropriate number) contention is that the defendant,

in undertaking land-disturbing activity, created an angle for graded slopes

and fills greater than the angle that can be retained by vegetative cover

or other adequate erosion-control devices or structures. The

Sedimentation Pollution Control Act requires the angle for graded slopes

and fills to be no greater than the angle that can be retained by

vegetative cover or other adequate erosion control devices or structures.9

]

[The (state appropriate number) contention is that the defendant,

in undertaking land-disturbing activity, left graded slopes exposed for 21

calendar days without planting or otherwise providing temporary or

permanent ground cover, devices, or structures sufficient to restrain

erosion. The Sedimentation Pollution Control Act requires that graded

slopes left exposed shall, 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.] 10

The (state appropriate number) contention is that the defendant, in

undertaking land-disturbing activity, violated [an ordinance] [a rule] [an

order] adopted pursuant to the Sedimentation Pollution Control Act by

[the Secretary of Environment and Natural Resources] [state name of

local government, e.g., Wake County] which provides as follows: (State

provisions of ordinance, rule or order). The law requires compliance with

[ordinances] [rules] [orders] adopted by [the Secretary of Environment

and Natural Resources] [local governments, such as (state name of local

government)].

(If it is contended that more than one ordinance, rule or order has

been violated, state such additional contentions individually in the

format of the paragraph above.)

(NOTE WELL: The following two alternatives address

land-disturbing activity in violation of an approved

erosion and sedimentation control plan. The first

alternative is based upon N.C Gen. Stat. § 113A-66;

the second is based upon N.C. Gen. Stat. § 113A-57(5),

effective August 23, 2006. As n.12 implies, the

distinction may well be one of form rather than

substance; however, an abundance of caution dictates

using one or the other alternative according to the

chronology of the case at issue.).

[The (state appropriate number) contention is that the defendant

[initiated] [continued] [initiated and continued] land-disturbing activity in

violation of an approved erosion and sedimentation control plan. Under

the Sedimentation Pollution Control Act, land-disturbing activity for which

an erosion and sedimentation control plan is required must be [initiated]

[continued] [initiated and continued] in accordance with the terms,

conditions, and provisions of an approved plan.] 11

[The (state appropriate number) contention is that the defendant

conducted land-disturbing activity in violation of an approved erosion and

sedimentation control plan. The Sedimentation Pollution Control Act

requires that land-disturbing activity be conducted in accordance with the

approved erosion and sedimentation control plan.12]

(NOTE WELL: The following four alternatives apply

when land-disturbing activity is undertaken that will

disturb more than one acre13 on a tract14.)15

[The (state appropriate number) contention is that the defendant,

in undertaking land-disturbing activity that would disturb more than one

acre on a tract, failed to install erosion and sedimentation control devices

and practices sufficient to retain the sediment generated by the land-disturbing activity within the boundaries of the tract during construction

and development of the tract. Erosion refers to the wearing away of land

surface by the action of wind, water or gravity, acting separately or in

combination.16 Sediment is solid particulate matter, both mineral and

organic, that has been transported by water and gravity from its site of

origin.17 When land-disturbing activity that will disturb more than one

acre is undertaken on a tract, the Sedimentation Pollution Control Act

requires the installation of erosion and sedimentation control devices and

practices sufficient to retain the sediment generated by the land-disturbing activity within the boundaries of the tract during construction

and development of the tract.18]

[The (state appropriate number) contention is that the defendant,

in undertaking land-disturbing activity that would disturb more than one

acre on a tract, failed to plant or otherwise provide a permanent ground

cover sufficient to restrain erosion after completion of construction or

development of the tract. Erosion refers to the wearing away of land

surface by the action of wind, water or gravity, acting separately or in

combination.19 When land-disturbing activity that will disturb more than

one acre is undertaken on a tract, the Sedimentation Pollution Control Act

requires the planting or other provision of permanent ground cover

sufficient to restrain erosion after completion of construction or

development within a time period specified by the North Carolina

Sedimentation Control Commission.]20

[The (state appropriate number) contention is that the defendant,

before initiating land-disturbing activity that would disturb more than one

acre on a tract, failed to file an erosion and sedimentation control plan

for the activity with the agency having jurisdiction. Before land-disturbing activity is undertaken that will disturb more than one acre on a

tract, the Sedimentation Pollution Control Act requires the filing of an

erosion and sedimentation control plan with the agency having

jurisdiction [30 or more days prior to initiating the activity21].22 The

(state name of agency) is the agency having jurisdiction over the activity

at issue in this case.].

[The (state appropriate number) contention is that the defendant,

before initiating land-disturbing activity that would disturb more than one

acre on a tract, failed to secure approval of an erosion and sedimentation

control plan for the activity from the agency having jurisdiction. Before

land-disturbing activity is undertaken that will disturb more than one acre

on a tract, the Sedimentation Pollution Control Act requires approval of

an erosion and sedimentation control plan for the activity by the agency

having jurisdiction [30 or more days prior to initiating the activity23].24

The (state name of agency) is the agency having jurisdiction over the

activity at issue in this case.]

Finally, as to this (state number) issue on which the plaintiff has

the burden of proof, if you find, by the greater weight of the evidence,

that the defendant violated the Sedimentation Pollution Control Act in

[the way] [any one or more of the ways] that I have explained to you,

and that such violation was a proximate cause of damage to the

plaintiff's property, then it would be your duty to answer this issue "Yes"

in favor of the plaintiff. If, on the other hand, you fail to so find, then it

would be your duty to answer this issue "No" in favor of the defendant.