HomeMy WebLinkAbout20020780 Ver 1_Compliance Inspection Letter_20130723A_I®
NC®ENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Pat McCrory Thomas A. Reeder John E. Skvarla, III
Governor Acting Director Secretary
July 23, 2013
Brian S. Brown
1501 Fairmount Street
Greensboro, NC 27403
Subject Property: Site Inspection
Brian Brown Property (Lot #21 Silver Acres Subdivision)
DWQ Project No. 2002 -0780
Broad Creek, Neuse River Basin
Pamlico County
Dear Mr. Brown:
On July 18, 2013, at your request, Anthony Scarbraugh of the Division of Water Quality (DWQ)
conducted an on -site review of the subject property for applicability to the Neuse Buffer Rules (15A
NCAC 2B .0233). During the on -site review, Mr. Scarbraugh marked both Zones 1 and 2 of the Neuse
Riparian Buffer on the ground with yellow flagging. A copy of the Neuse River Riparian Buffer Rules is
enclosed with this letter for your reference.
On July 23, 2002, the DWQ issued a Coastal "General" Major Variance (CGMV) under DWQ Project No.
02 -0780 for the construction of a 48X52 -foot building footprint impacting approximately 1,040 square
feet of Zone 2. In April 2011, the Environmental Management Commission did not reissue the CGMV.
However, individual approvals under the GMV prior to April 2011 do not expire unless the approval
specifically indicates that the GMV is time - limited. In addition, under Session Law 2011 -394, properties
that meet the criteria within the by the enclosed guidance document entitled Coastal Riparian Buffer
Rules Changes 2011 are eligible to pursue an Authorization Certificate per the Neuse River Buffer
Protection Rules (15A NCAC 2B .0233) or Tar - Pamlico Buffer Protection Rules (15A NCAC 2B .0259).
This letter only addresses the applicability to the buffer rules and does not approve any activity within
the buffers. Nor does this letter approve any activity within Waters of the United States or Waters of
North Carolina Division of Water Quality
943 Washington Square Mall
Washington, NC 27889
Phone: 252 - 946 -6481 1 FAX: 252 - 946 -9215
Internet: www.ncwaterguality.org
An Equal Opportunity \ Affirmative Action Employer
NorthCarohna
Naturally
Page 2 of 2
the State. If you have any additional questions or require additional information please call Anthony
Scarbraugh in the Washington Regional Office at (252) 948 -3924.
Sincerely,
ava55&4K"
Amy Adams, Regional Supervisor
Surface Water Protection Section
Washington Regional Office
Enclosed: Neuse River Riparian Buffer Rules
Approved Coastal General Major Variance
Information about the Coastal General Major Variance
Coastal Riparian Buffer Rule Changes 2011
cc: DWQ Webscape Unit
File Copy
Brad Connell, DCM Morehead City
Page 1 of 10
15A NCAC 02B .0233 NEUSE RIVER BASIN: NUTRIENT SENSITIVE WATERS MANAGEMENT
STRATEGY: PROTECTION AND MAINTENANCE OF EXISTING RIPARIAN
BUFFERS .
The following is the management strategy for maintaining and protecting existing riparian buffers in the Neuse River Basin.
(1) PURPOSE. The purpose of this Rule shall be to protect and preserve existing riparian buffers in the Neuse
River Basin to maintain their nutrient removal functions.
(2) DEFINITIONS. For the purpose of this Rule, these terms shall be defined as follows:
(a) 'Channel' means a natural water - carrying trough cut vertically into low areas of the land surface
by erosive action of concentrated flowing water or a ditch or canal excavated for the flow of
water. (current definition in Forest Practice Guidelines Related to Water Quality, 15A NCAC
11 .0102)
(b) 'DBH' means Diameter at Breast Height of a tree, which is measured at 4.5 feet above ground
surface level.
(c) 'Ditch or canal' means a man -made channel other than a modified natural stream constructed for
drainage purposes that is typically dug through inter- stream divide areas. A ditch or canal may
have flows that are perennial, intermittent, or ephemeral and may exhibit hydrological and
biological characteristics similar to perennial or intermittent streams.
(d) 'Ephemeral (stormwater) stream' means a feature that carries only stormwater in direct response
to precipitation with water flowing only during and shortly after large precipitation events. An
ephemeral stream may or may not have a well - defined channel, the aquatic bed is always above
the water table, and stormwater runoff is the primary source of water. An ephemeral stream
typically lacks the biological, hydrological, and physical characteristics commonly associated with
the continuous or intermittent conveyance of water.
(e) 'Forest plantation' means an area of planted trees that may be conifers (pines) or hardwoods. On a
plantation, the intended crop trees are planted rather than naturally regenerated from seed on the
site, coppice (sprouting), or seed that is blown or carried into the site.
(f) 'High Value Tree' means a tree that meets or exceeds the following standards: for pine species,
14 -inch DBH or greater or 18 -inch or greater stump diameter; and, for hardwoods and wetland
species, 16 -inch DBH or greater or 24 -inch or greater stump diameter.
(g) 'Intermittent stream' means a well - defined channel that contains water for only part of the year,
typically during winter and spring when the aquatic bed is below the water table. The flow may
be heavily supplemented by stormwater runoff. An intermittent stream often lacks the biological
and hydrological characteristics commonly associated with the conveyance of water.
(h) 'Modified natural stream' means an on -site channelization or relocation of a stream channel and
subsequent relocation of the intermittent or perennial flow as evidenced by topographic alterations
in the immediate watershed. A modified natural stream must have the typical biological,
hydrological, and physical characteristics commonly associated with the continuous conveyance
of water.
(i) 'Perennial stream' means a well - defined channel that contains water year round during a year of
normal rainfall with the aquatic bed located below the water table for most of the year.
Groundwater is the primary source of water for a perennial stream, but it also carries stormwater
runoff. A perennial stream exhibits the typical biological, hydrological, and physical
characteristics commonly associated with the continuous conveyance of water.
(j) 'Perennial waterbody' means a natural or man -made basin that stores surface water permanently at
depths sufficient to preclude growth of rooted plants, including lakes, ponds, sounds, non - stream
estuaries and ocean. For the purpose of the State =s riparian buffer protection program, the
waterbody must be part of a natural drainageway (i.e., connected by surface flow to a stream).
(k) 'Stream' means a body of concentrated flowing water in a natural low area or natural channel on
the land surface.
(1) 'Surface water' means all waters of the state as defined in G.S. 143 -212 except underground
waters.
(m) 'Tree' means a woody plant with a DBH equal to or exceeding five inches.
(3) APPLICABILITY. This Rule shall apply to 50 -foot wide riparian buffers directly adjacent to surface
waters in the Neuse River Basin (intermittent streams, perennial streams, lakes, ponds, and estuaries),
excluding wetlands. Except as described in Sub -Item (4)(a)(iii) of this Rule, wetlands adjacent to surface
waters or within 50 feet of surface waters shall be considered as part of the riparian buffer but are regulated
pursuant to 15A NCAC 2H .0506. The riparian buffers protected by this Rule shall be measured pursuant
to Item (4) of this Rule. For the purpose of this Rule, a surface water shall be 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 United States Department of Agriculture or the most recent version
of the 1:24,000 scale (7.5 minute) quadrangle topographic maps prepared by the United States Geologic
J
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Survey (USGS). Riparian buffers adjacent to surface waters that do not appear on either of the maps shall not be
subject to this Rule. Riparian buffers adjacent to surface waters that appear on the maps shall be subject to
this Rule unless one of the following applies.
(a) EXEMPTION WHEN AN ON -SITE DETERMINATION SHOWS THAT SURFACE WATERS
ARE NOT PRESENT. When a landowner or other affected party believes that the maps have
inaccurately depicted surface waters, he or she shall consult the Division or the appropriate
delegated local authority. Upon request, the Division or delegated local authority shall make on-
site determinations. Any disputes over on -site determinations shall be referred to the Director in
writing. A determination of the Director as to the accuracy or application of the maps is subject to
review as provided in Articles 3 and 4 of G.S. 150B. Surface waters that appear on the maps shall
not be subject to this Rule if an on -site determination shows that they fall into one of the following
categories.
(i) Ditches and manmade conveyances other than modified natural streams unless
constructed for navigation or boat access.
(ii) Manmade ponds and lakes that are located outside natural drainage ways.
(iii) Ephemeral (stormwater) streams.
(b) EXEMPTION WHEN EXISTING USES ARE PRESENT AND ONGOING. This Rule shall not
apply to portions of the riparian buffer where a use is existing and ongoing according to the
following:
(i) A use shall be considered existing if it was present within the riparian buffer as of July
22, 1997. Existing uses shall include, but not be 'limited to, agriculture, buildings,
industrial facilities, commercial areas, transportation facilities, maintained lawns, utility
lines and on -site sanitary sewage systems. Only the portion of the riparian buffer that
contains the footprint of the existing use is exempt from this Rule. Activities necessary
to maintain uses are allowed provided that no additional vegetation is removed from
Zone 1 except that grazed or trampled by livestock and existing diffuse flow is
maintained. Grading and revegetating Zone 2 is allowed provided that the health of the
vegetation in Zone 1 is not compromised, the ground is stabilized and existing diffuse
flow is maintained.
(ii) At the time an existing use is proposed to be converted to another use, this Rule shall
apply. An existing use shall be considered to be converted to another use if any of the
following applies:
(A) Impervious surface is added to, the riparian buffer in locations where it did not
exist previously.
(B) An agricultural operation within the riparian buffer is converted to a non-
agricultural use.
(C) A lawn within the riparian buffer ceases to be maintained.
(4) ZONES OF THE RIPARIAN BUFFER. The protected riparian buffer shall have two zones as follows:
(a) Zone 1 shall consist of a vegetated area that is undisturbed except for uses provided for in Item
(6) of this Rule. The location of Zone 1 shall be as follows:
(i) For intermittent and perennial streams, Zone 1 shall begin at the most landward limit of
the top of bank or the rooted herbaceous vegetation and extend landward a distance of 30
feet on all sides of the surface water, measured horizontally on a line perpendicular to the
surface water.
(ii) For ponds, lakes and reservoirs located within a natural drainage way, Zone 1 shall
begin at the most landward limit of the normal water level or the rooted herbaceous
vegetation and extend landward a distance of 30 feet, measured horizontally on a line
perpendicular to the surface water.
(iii) For surface waters within the 20 Coastal Counties (defined in 15A NCAC 2B .0202)
within the jurisdiction of the Division of Coastal Management, Zone 1 shall begin at the
most landward limit of:
(A) the normal high water level;
(B) the normal water level; or .
(C) the landward limit of coastal wetlands as defined by the Division of
Coastal Management;
and extend landward a distance of 30 feet, measured horizontally on a line perpendicular
to the surface water, whichever is more restrictive.
(b) Zone 2 shall consist of a stable, vegetated area that is undisturbed except for activities and uses
provided for in Item (6) of this Rule. Grading and revegetating Zone 2 is allowed provided that
the health of the vegetation in Zone 1 is not compromised. Zone 2 shall begin at the outer edge of
Zone 1 and extend landward 20 feet as measured horizontally on a line perpendicular to the
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surface water. The combined width of Zones 1 and 2 shall be 50 feet on all sides of the surface water.
(5) DIFFUSE FLOW REQUIREMENT. Diffuse flow of runoff shall be maintained in the riparian buffer by
dispersing concentrated flow and reestablishing vegetation.
(a) Concentrated runoff from new ditches or manmade conveyances shall be converted to diffuse
flow before the runoff enters the Zone 2 of the riparian buffer.
(b) Periodic corrective action to restore diffuse flow shall be taken if necessary to impede the
formation of erosion gullies.
(6) TABLE OF USES. The following chart sets out the uses and their designation under this Rule as exempt,
allowable, allowable with mitigation, or prohibited. The requirements for each category are given in Item
(7) of this Rule.
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Exempt
All owable
Allowable
Prohibited
with
Mitigation
Airport facilities:
C Airport facilities that impact equal to or less than 150 linear
X
feet or one -third of an acre of riparian buffer
C Airport facilities that impact greater than 150 linear feet or
X
one -third of an acre of riparian buffer
Archaeological activities
X
Bridges
X
Dam maintenance activities
X
Drainage ditches, roadside ditches and stormwater outfalls
through riparian buffers:
C Existing drainage ditches, roadside ditches, and stormwater
X
outfalls provided that they are managed to minimize the
sediment, nutrients and other pollution that convey to
waterbodies
C New drainage ditches, roadside ditches and stormwater
X
outfalls provided that a stormwater management facility is
installed to control nitrogen and attenuate flow before the
conveyance discharges through the riparian buffer
C New drainage ditches, roadside ditches and stormwater
X
outfalls that do not provide control for nitrogen before
discharging through the riparian buffer
C Excavation of the streambed in order to bring it to the same
X
elevation as the invert of a ditch
Drainage of a pond in a natural drainage way provided that a
X
new riparian buffer that meets the requirements of Items (4)
and (5) of this Rule is established adjacent to the new channel
Driveway crossings of streams and other surface waters
subject to this Rule:
C Driveway crossings on single family residential lots that
X
disturb equal to or less than 25 linear feet or 2, 500 square
feet of riparian buffer
C Driveway crossings on single family residential lots that
X
disturb greater than 25 linear feet or 2,500 square feet of
riparian buffer .
C In a subdivision that cumulatively disturb equal to or less
X
than 150 linear feet or one -third of an acre of riparian buffer
C In a subdivision that cumulatively disturb greater than 150
X
linear feet or one -third of an acre of riparian buffer
Fences provided that disturbance is minimized and installation
X
does not result in removal of forest vegetation
Forest harvesting - see Item 11 of this Rule
Fertilizer application:
C One -time fertilizer application to establish replanted
X
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vegetation
C Ongoing fertilizer application
X
Grading and revegetation in Zone 2 only provided that diffuse
X
ow and the health of existing vegetation in Zone 1 is not
compromised and disturbed areas are stabilized
Greenway/hiking trails
X
Historic preservation
X
Landfills as defined by G.S. 130A -290
X
Mining activities:
C Mining activities that are covered by the Mining Act
X
provided that new riparian buffers that meet the
requirements of Items (4) and (5) of this Rule are
established adjacent to the relocated channels
C Mining activities that are not covered by the Mining Act
X
OR where new riparian buffers that meet the requirements
or Items (4) and (5) of this Rule are not established adjacent
to the relocated channels
C Wastewater or mining dewatering wells with approved
X
NPDES permit
Non-electric utility lines:
C Impacts other than perpendicular crossings in Zone 2 only3
X
C Impacts other than perpendicular crossings in Zone 13
X
Non-electric utility line perpendicular crossing of streams and
other surface waters subject to this Rule3:
C Perpendicular crossings that disturb equal to or less than 40
X
linear feet of riparian buffer with a maintenance corridor
equal to or less than 10 feet in width
C Perpendicular crossings that disturb greater than 40 linear
X
feet of riparian buffer with a maintenance corridor greater
than 10 feet in width
C Perpendicular crossings that disturb greater than 40 linear
X
feet but equal to or less than 150 linear feet of riparian
buffer with a maintenance corridor equal to or less than 10
feet in width
C Perpendicular crossings that disturb greater than 40 linear
X
feet but equal to or less than 150 linear feet of riparian
buffer with a maintenance corridor greater than 10 feet in
width
C Perpendicular crossings that disturb greater than 150 linear
X
feet of riparian buffer
On -site sanitary sewage systems - new ones that use ground
X
absorption
Overhead electric utility lines:
C Impacts other than perpendicular crossings in Zone 2 only3
X
C Impacts other than perpendicular crossings in Zone 1 1,2,3
X
Overhead electric utility line perpendicular crossings of
streams and other surface waters subject to this Rule3
C Perpendicular crossings that disturb equal to or less than
X
150 linear feet of riparian buffer I
C Perpendicular crossings that disturb greater than 150 linear
X
feet of riparian buffer 1., 2
Periodic maintenance of modified natural streams such as
X
canals and a grassed travelway on one side of the surface
water when alternative forms of maintenance access are not
practical
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1 Provided that, in Zone 1, all of the following BMPs for overhead utility lines are used. If all of these BMPs are not used,
then the overhead utility lines shall require a no practical alternatives evaluation by the Division.
• A minimum zone of 10 feet wide immediately adjacent to the water body shall be managed such that only
vegetation that poses a hazard.or has the potential to grow tall enough to interfere with the line is removed.
• Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed.
• Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain where trees are
cut.
• Rip rap shall not be used unless it is necessary to stabilize a tower.
• No fertilizer shall be used other than a one -time application to re- establish vegetation.
■ Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area, and the
time in which areas remain in a disturbed state.
■ Active measures shall be taken after construction and during routine maintenance to ensure diffuse flow of
stormwater through the buffer.
■ In wetlands, mats shall be utilized to minimize soil disturbance.
2 Provided that poles or towers shall not be installed within 10 feet of a water body unless the Division completes a no
practical alternatives evaluation.
3 Perpendicular crossings are those that intersect the surface water at an angle between 75 degrees and 105 degrees.
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Exempt
Allowable
Allowable
Prohibited
with
Mitigation
Playground equipment:
C Playground equipment on single family lots provided
X
that installation and use does not result in removal of
vegetation
C Playground equipment installed on lands other than
X
single - family lots or that requires removal of
vegetation
Ponds in natural drainage ways, excluding dry ponds:
C New ponds provided that a riparian buffer that meets
X
_
the requirements of Items (4) and (5) of this Rule is
established adjacent to the pond
_
C New ponds where a riparian buffer that meets the
X
requirements of Items (4) and (5) of this Rule is
NOT established adjacent to the pond
Protection of existing structures, facilities and
_
X
streambanks when this requires additional disturbance
of the riparian buffer or the stream channel
Railroad impacts other than crossings of streams and
X
other surface waters subject to this Rule
Railroad crossings of streams and other surface waters
_
subject to this Rule:
C Railroad crossings that impact equal to or less than
X
40 linear feet of riparian buffer
C Railroad crossings that impact greater than 40 linear
X
feet but equal to or less than 150 linear feet or one -
third of an acre of riparian buffer
C Railroad crossings that impact greater than 150 linear
X
feet or one -third of an acre of riparian buffer
Removal of previous fill or debris provided that diffuse
X
flow is maintained and any vegetation removed is
restored
Road impacts other than crossings of streams and other
X
surface waters subject to this Rule
Road crossings of streams and other surface waters
_
subject to this Rule:
_
C Road crossings that impact equal to or less than 40
X
linear feet of riparian buffer
_
C Road crossings that impact greater than 40 linear feet
X
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but equal to or less than 150 linear feet or one -third of
an acre of riparian buffer
C Road crossings that impact greater than 150 linear
X
feet or one -third of an acre of riparian buffer
Scientific studies and stream gauging
X
Stormwater management ponds excluding dry ponds:
C New stormwater management ponds provided that a
X
riparian buffer that meets the requirements of Items
(4) and (5) of this Rule is established adjacent to the
pond
X
C New stormwater management ponds where a riparian
buffer that meets the requirements of Items (4) and
(5) of this Rule is NOT established adjacent to the
and
Stream restoration
X
Streambank stabilization
X
Temporary roads:
C Temporary roads that disturb less than or equal to
X
2,500 square feet provided that vegetation is restored
within six months of initial disturbance
C Temporary roads that disturb greater than 2,500
X
square feet provided that vegetation is restored
within six months of initial disturbance
C Temporary roads used for bridge construction or
X
replacement provided that restoration activities, such
as soil stabilization and revegetation, are conducted
immediately after construction
Temporary sediment and erosion control devices:
C In Zone 2 only provided that the vegetation in Zone 1
X
_
is not compromised and that discharge is released as
_
diffuse flow in accordance with Item (5) of this Rule
_
C In Zones 1 and 2 to control impacts associated with
_
X
uses approved by the Division or that have received
_
a variance provided that sediment and erosion
_
control for upland areas is addressed to the
_
maximum extent practical outside the buffer
_
C In- stream temporary erosion and sediment control
X
measures for work within a stream channel
Underground electric utility lines:
C Impacts other than perpendicular crossings in Zone 2
X
only
X
C Impacts other than perpendicular crossings in Zone
13,4
Underground electric utility line perpendicular
crossings of streams and other surface waters subject to
this Rule:3
X
C Perpendicular crossings that disturb less than or
equal to 40 linear feet of riparian buffer3,4
X
C Perpendicular crossings that disturb greater than 40
linear feet of riparian buffer3,4
4 Provided that, in Zone 1, all of the following BMPs for underground utility lines are used. If all of these BMPs are not
used, then the underground utility line shall require a no practical alternatives evaluation by the Division.
• Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed.
• Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain, except in the
trench, where trees are cut.
• Underground cables shall be installed by vibratory plow or trenching.
• The trench shall be backfilled with the excavated soil material immediately following cable installation.
• No fertilizer shall be used other than a one -time application to re- establish vegetation.
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Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area, and the
time in which areas remain in a disturbed state.
Active measures shall be taken after construction and during routine maintenance to ensure diffuse flow of
stormwater through the buffer.
In wetlands, mats shall be utilized to minimize soil disturbance.
(7) REQUIREMENTS FOR CATEGORIES OF USES. Uses designated as exempt, allowable, allowable
with mitigation and prohibited in Item (6) of this Rule shall have the following requirements:
(a) EXEMPT. Uses designated as exempt are allowed within the riparian buffer. Exempt uses shall
be designed, constructed and maintained to minimize soil disturbance and to provide the
maximum water quality protection practicable. In addition, exempt uses shall meet requirements
listed in Item (6) of this Rule for the specific use.
(b) ALLOWABLE. Uses designated as allowable may proceed within the riparian buffer provided
that there are no practical alternatives to the requested use pursuant to Item (8) of this Rule. These
uses require written authorization from the Division or the delegated local authority:
(c) ALLOWABLE WITH MITIGATION. Uses designated as allowable with mitigation may
proceed within the riparian buffer provided that there are no practical alternatives to the requested
use pursuant to Item (8) of this Rule and an appropriate mitigation strategy has been approved
pursuant to Item (10) of this Rule. These uses require written authorization from the Division or
the delegated local authority.
(d) PROHIBITED. Uses designated as prohibited may not proceed within the riparian buffer unless
a variance is granted pursuant to Item (9) of this Rule. Mitigation may be required as one
condition of a variance approval.
(8) DETERMINATION OF "NO PRACTICAL ALTERNATIVES." Persons who wish to undertake uses
designated as allowable or allowable wiih mitigation shall submit a request for a "no practical alternatives"
determination to the Division or to the delegated local authority. The applicant shall certify that the criteria
identified in Sub -Item (8)(a) of this Rule are met. The Division or the delegated local authority shall grant
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Exempt
Allowable
Allowable
Prohibited
with
Miti ation
Vegetation management:
C Emergency fire control measures provided that
X
topography is restored
C Periodic mowing and harvesting of plant products in
X
Zone 2 only
C Planting vegetation to enhance the riparian buffer
X
C Pruning forest vegetation provided that the health
X
and function of the forest vegetation is not
compromised
X
C Removal of individual trees which are in danger of
causing damage to dwellings, other structures or
human life
X
C Removal of poison ivy
X
C Removal of understory nuisance vegetation as
defined in: Smith, Cherri L. 1998. Exotic Plant
Guidelines. Department of Environment and Natural
Resources. Division of Parks and Recreation.
Raleigh, NC. Guideline #30
Water dependent structures as defined in 15A NCAC
X
2B .0202
Water supply reservoirs:
-
C New reservoirs provided that a riparian buffer that
X
_
meets the requirements of Items (4) and (5) of this
_
Rule is established adjacent to the reservoir
_
C New reservoirs where a riparian buffer that meets the
requirements of Items (4) and (5) of this Rule is
X
NOT established adjacent to the reservoir
Water wells
X
Wetland restoration
X
(7) REQUIREMENTS FOR CATEGORIES OF USES. Uses designated as exempt, allowable, allowable
with mitigation and prohibited in Item (6) of this Rule shall have the following requirements:
(a) EXEMPT. Uses designated as exempt are allowed within the riparian buffer. Exempt uses shall
be designed, constructed and maintained to minimize soil disturbance and to provide the
maximum water quality protection practicable. In addition, exempt uses shall meet requirements
listed in Item (6) of this Rule for the specific use.
(b) ALLOWABLE. Uses designated as allowable may proceed within the riparian buffer provided
that there are no practical alternatives to the requested use pursuant to Item (8) of this Rule. These
uses require written authorization from the Division or the delegated local authority:
(c) ALLOWABLE WITH MITIGATION. Uses designated as allowable with mitigation may
proceed within the riparian buffer provided that there are no practical alternatives to the requested
use pursuant to Item (8) of this Rule and an appropriate mitigation strategy has been approved
pursuant to Item (10) of this Rule. These uses require written authorization from the Division or
the delegated local authority.
(d) PROHIBITED. Uses designated as prohibited may not proceed within the riparian buffer unless
a variance is granted pursuant to Item (9) of this Rule. Mitigation may be required as one
condition of a variance approval.
(8) DETERMINATION OF "NO PRACTICAL ALTERNATIVES." Persons who wish to undertake uses
designated as allowable or allowable wiih mitigation shall submit a request for a "no practical alternatives"
determination to the Division or to the delegated local authority. The applicant shall certify that the criteria
identified in Sub -Item (8)(a) of this Rule are met. The Division or the delegated local authority shall grant
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an Authorization Certificate upon a Ano practical alternatives@ determination. The procedure for making an
Authorization Certificate shall be as follows:
(a) For any request for an Authorization Certificate, the Division or the delegated local authority
shall review the entire project and make a finding of fact as to whether the following requirements
have been met in support of a "no practical alternatives" determination:
(i) The basic project purpose cannot be practically accomplished in a manner that would
better minimize disturbance, preserve aquatic life and habitat, and protect water quality.
(ii) The use cannot practically be reduced in size or density, reconfigured or redesigned to
better minimize disturbance, preserve aquatic life and habitat, and protect water quality.
(iii) Best management practices shall be used if necessary to minimize disturbance, preserve
aquatic life and habitat, and protect water quality.
(b) Requests for an Authorization Certificate shall be reviewed and either approved or denied within
60 days of receipt of a complete submission based on the criteria in Sub -Item (8)(a) of this Rule
by either the Division or the delegated local authority. Failure to issue an approval or denial
within 60 days shall constitute that the applicant has demonstrated "no practical alternatives." The
Division or the delegated local authority may attach conditions to the Authorization Certificate
that support the purpose, spirit and intent of the riparian buffer protection program. Complete
submissions shall include the following:
(i) The name, address and phone number of the applicant;
(ii) The nature of the activity to be conducted by the applicant;
(iii) The location of the activity, including the jurisdiction;
(iv) A map of sufficient detail to accurately delineate the boundaries of the land to be utilized
in carrying out the activity, the location and dimensions of any disturbance in riparian
buffers associated with the activity, and the extent of riparian buffers on the land;
(v) An explanation of why this plan for the activity cannot be practically accomplished,
reduced or reconfigured to better minimize disturbance to the riparian buffer, preserve
aquatic life and habitat and protect water quality; and
(vi) Plans for any best management practices proposed to be used to control the impacts
associated with the activity.
(c) Any disputes over determinations regarding Authorization Certificates shall be referred to the
Director for a decision. The Director's decision is subject to review as provided in Articles 3 and 4
of G.S. 150B.
(9) VARIANCES. Persons who wish to undertake uses designated as prohibited may pursue a variance. The
Division or the appropriate delegated local authority may grant minor variances. The variance request
procedure shall be as follows:
(a) For any variance request, the Division or the delegated local authority shall make a finding of fact
as to whether the following requirements have been met:
(i) There are practical difficulties or unnecessary hardships that prevent compliance with
the strict letter of the riparian buffer protection requirements. Practical difficulties or
unnecessary hardships shall be evaluated in accordance with the following:
(A) If the applicant complies with the provisions of this Rule, he /she can secure no
reasonable return from, nor make reasonable use of, his/her property. Merely
proving that the variance would permit a greater profit from the property shall
not be considered adequate justification for a variance. Moreover, the Division
or delegated local authority shall consider whether the variance is the minimum
possible deviation from the terms of this Rule that shall make reasonable use of
the property possible.
(B) The hardship results from application of this Rule to the property rather than
from other factors such as deed restrictions or other hardship.
(C) The hardship is due to the physical nature of the applicant's property, such as its
size, shape, or topography, which is different from that of neighboring property.
(D) The applicant did not cause the hardship by knowingly or unknowingly
violating this Rule.
(E) The applicant did not purchase the property after the effective date of this Rule,
and then requesting an appeal.
(F) The hardship is unique to the applicant's property, rather than the result of
conditions that are widespread. If other properties are equally subject to the
hardship created in the restriction, then granting a variance would be a special
privilege denied to others, and would not promote equal justice;
(ii) The variance is in harmony with the general purpose and intent of the State's riparian
buffer protection requirements and preserves its spirit; and
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Page 9 of 10
(iii) In granting the variance, the public safety , and welfare have been assured water quality
has been protected, and substantial justice has been done.
(b) MINOR VARIANCES. A minor variance request pertains to activities that are proposed only to
impact any portion of Zone 2 of the riparian buffer. Minor variance requests shall be reviewed
and approved based on the criteria in Sub -Item (9)(a) of this Rule by the either the Division or the
delegated local authority pursuant to G.S. 153A Article 18, or G.S. 160A- Article 19. The Division
or the delegated local authority may attach conditions to the variance approval that support the
purpose, . spirit and intent of the riparian buffer protection program. Requests for appeals of
decisions made by the Division shall be made to the Office of Administrative Hearings. Request
for appeals made by the delegated local authority shall be made to the appropriate Board of
Adjustment under G.S. 160A -388 or G.S. 153A -345.
(c) MAJOR VARIANCES. A major variance request pertains to activities that are proposed to
impact any portion of Zone 1 or any portion of both Zones 1 and 2 of the riparian buffer. If the
Division or the delegated local authority has determined that a major variance request meets the
requirements in Sub -Item (9)(a) of this Rule, then it shall prepare a preliminary finding and submit
it to the Commission. Preliminary findings on major variance requests shall be reviewed by the
Commission within 90 days after receipt by the Director. Requests for appeals of determinations
that the requirements of Sub -Item (9)(a) of this Rule have not been met shall be made to the Office
of Administrative Hearings for determinations made by the Division or the appropriate Board of
Adjustments under G.S. 160A -388 or G.S. 153A -345 for determinations made by the delegated
local authority. The purpose of the Commission's review is to determine if it agrees that the
requirements in Sub -Item (9)(a) of this Rule have been met. Requests for appeals of decisions
made by the Commission shall be made to the Office of Administrative Hearings. The following
actions shall be taken depending on the Commission's decision on the major variance request:
(i) Upon the Commission's approval, the Division or the delegated local authority shall
issue a final decision granting the major variance.
(ii) Upon the Commission's approval with conditions or stipulations, the Division or the
delegated local authority shall issue a final decision, which includes these conditions or
stipulations.
(iii) Upon the Commission's denial, the Division or the delegated local authority shall issue a
final decision denying the major variance.
(10) MITIGATION. Persons who wish to undertake uses designated as allowable with mitigation shall meet the
following requirements in order to proceed with their proposed use.
(a) Obtain a determination of "no practical alternatives" to the proposed use pursuant to Item (8) of
this Rule.
(b) Obtain approval for a mitigation proposal pursuant to 15A NCAC 2B .0242.
(11) REQUIREMENTS SPECIFIC TO FOREST HARVESTING. The following requirements shall apply for
forest harvesting operations and practices.
(a) The following measures shall apply in the entire riparian buffer:
(i) Logging decks and sawmill sites shall not be placed in the riparian buffer.
(ii) Access roads and skid trails shall be prohibited except for temporary and permanent
stream crossings established in accordance with 15A NCAC 11 .0203. Temporary stream
crossings shall be permanently stabilized after any site disturbing activity is completed.
(iii) Timber felling shall be directed away from the stream or water body.
(iv) Skidding shall be directed away from the stream or water body and shall be done in a
manner that minimizes soil disturbance and prevents the creation of channels or ruts.
(v) Individual trees may be treated to maintain or improve their health, form or vigor.
(vi) Harvesting of dead or infected trees or application of pesticides necessary to prevent or
control extensive tree pest and disease infestation shall be allowed. These practices must
be approved by the Division of Forest Resources for a specific site. The Division of
Forest Resources must notify the Division of all approvals.
(vii) Removal of individual trees that are in danger of causing damage to structures or human
life shall be allowed.
(viii) Natural regeneration of forest vegetation and planting of trees, shrubs, or ground cover
plants to enhance the riparian buffer shall be allowed provided that soil disturbance is
minimized. Plantings shall consist primarily of native species.
(ix) High intensity prescribed burns shall not be allowed.
(x) Application of fertilizer shall not be allowed except as necessary for permanent
stabilization. Broadcast application of fertilizer or herbicides to the adjacent forest stand
shall be conducted so that the chemicals are not applied directly to or allowed to drift into
the riparian buffer.
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Page 10 of 10
(b) In Zone 1, forest vegetation shall be protected and maintained. Selective harvest as provided for
below is allowed on forest lands that have a deferment for use value under forestry in accordance
with G.S. 105 -277.2 through G.S. 277.6 or on forest lands that have a forest management plan
prepared or approved by a registered professional forester. Copies of either the approval of the
deferment for use value under forestry or the forest management plan shall be produced upon
request. For such forest lands, selective harvest is allowed in accordance with the following:
(i) Tracked or wheeled vehicles are not permitted except at stream crossings designed,
constructed and maintained in accordance with 15A NCAC 11 .0203."
(ii) Soil disturbing site preparation activities are not allowed.
(iii) Trees shall be removed with the minimum disturbance to the soil and residual
vegetation.
(iv) The following provisions for selective harvesting shall be met:
(A) The first 10 feet of Zone 1 directly adjacent to the stream or waterbody shall be
undisturbed except for the removal of individual high value trees as defined
provided that no trees with exposed primary roots visible in the streambank be
cut.
(B) In the outer 20 feet of Zone 1, a maximum of 50 percent of the trees greater
than five inches dbh may be cut and removed. The reentry time for harvest shall
be no more frequent than every 15 years, except on forest plantations where the
reentry time shall be no more frequent than every five years. In either case, the
trees remaining after harvest shall be as evenly spaced as possible.
(C) In Zone 2, harvesting and regeneration of the forest stand shall be allowed
provided that sufficient ground cover is maintained to provide for diffusion and
infiltration of surface runoff.
(12) REQUIREMENTS SPECIFIC TO LOCAL GOVERNMENTS WITH STORMWATER PROGRAMS
FOR NITROGEN CONTROL. Local governments that are required to have local stormwater programs
pursuant to 15A NCAC 2B .0235 shall have two options for ensuring protection of riparian buffers on new
developments within their jurisdictions as follows.
(a) Obtain authority to implement a local riparian buffer protection program pursuant to 15A NCAC
2B .0241. ,
(b) Refrain from issuing local approvals for new development projects unless either:
(i) The person requesting the approval does not propose to impact the riparian buffer of a
surface water that appears on either the most recent versions of the soil survey maps
prepared by the Natural Resources Conservation Service of the United States Department
of Agriculture or the most recent versions of the 1:24,000 scale (7.5 minute quadrangle)
topographic maps prepared by the United States Geologic Survey (USGS).
(ii) The person requesting the approval proposes to impact the riparian buffer of a surface
water that appears on the maps described in Sub -Item (12)(b)(i) of this Rule and either:
(A) Has received an on -site determination from the Division pursuant to Sub -Item
(3)(a) of this Rule that surface waters are not present;
(B) Has received an Authorization Certificate from the Division pursuant to Item
(8) of this Rule for uses designated as Allowable under this Rule;
(C) Has received an Authorization Certificate from the Division pursuant to Item
(8) of this Rule and obtained the Division's approval on a mitigation plan
pursuant to Item (10) of this Rule for uses designated as Allowable with
Mitigation under this Rule; or
(D) Has received a variance from the Commission pursuant to Item (9) of this Rule.
(13). OTHER LAWS, REGULATIONS AND PERMITS. In all cases, compliance with this Rule does not
preclude the requirement to comply with all federal, state and local regulations and laws.
History Note: Authority G.S. 143 - 214.1; 143 - 214.7; 143- 215.3(a)(1); S.L. 1995, c. 572;
Temporary Adoption Eff. July 22, 1997;
Temporary Adoption Eff. June 22, 1999; April 22, 1998; January 22, 1998;
Eff. August 1, 2000.
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North Carolina Division of Water Quality
of °�WArF9Q
6 Coastal Riparian Buffer
> y
Y Rule Changes 2011
Session Law 2011 -394 became effective July 1, 2011. Section 17(c)
of this law changed the application of the Neuse Riparian Buffer
Rules (15A NCAC 02B .0233) and Tar - Pamlico Riparian Buffer
Rules (15A NCAC 02B .0259) in eight coastal counties.
This session law and related rule changes apply only to the con-
struction of single - family residences on existing lots located in the
blue- shaded areas of the counties shown on the map below.
For the session law's
coastal buffer rule changes
to apply, all of the following
requirements must be met:
• The property must be in
Beaufort, Carteret, Craven,
Dare, Hyde, Onslow, Pamlico
or Washington County;
• The property must be in the
Neuse or Tar - Pamlico River
Basin;
• The property must meet the
definition of an existing lot;
• The development must be for
the construction of a single -
family residence and its nec-
essary infrastructure;
And, construction of the sin-
gle- family residence and its
necessary infrastructure
would otherwise be pre-
vented by the Neuse Buffer
Rules or Tar - Pamlico Buffer
Rules.
If all of the previously listed
requirements are met, what
does that mean for my
coastal property?
FWA
NCDENR
Revised October 2011
GLOSSARY OF TERMS
Riparian Buffer Area of vege-
tated land next to a body
of water.
Coastal Marsh Same as coastal
wetlands shown in diagram on
page two.
Diffuse Flow Overland flow of
water that is spread out over the
landscape, not concentrated into
a defined channel.
Existing Lot A lot of two acres
in size or less that was platted
and recorded in the appropriate
county Register of Deeds prior to
Aug. 1, 2000.
Impervious Surface Land cover
that prevents infiltration
of water into the ground (e.g.,
roof top, concrete).
The single - family residence
must be set back the maxi-
mum feasible distance from
the normal water level or the
normal high -water level and
be designed to minimize en-
croachment into the pro-
tected riparian buffer.
The single - family residence
must be a minimum of 30
feet landward of the normal
water level or the normal high
-water level. The protected
riparian buffer has not
changed with the implemen-
tation of this session law.
However, for properties with
a coastal marsh, a single -
family home can potentially
be built adjacent to the
continued on reverse side
Coastal Buffer Rule Changes Revised October 2011
coastal marsh provided the
home is at least 30 feet land-
ward of the normal water
level or the normal high water
level. .
• Stormwater generated by
new impervious surface must
be treated and diffuse flow
maintained through the pro-
tected riparian buffer.
• No part of a septic tank or
drainfield may encroach into
the protected riparian buffer.
How do I obtain approval to
apply the provisions of the
session law to my property?
If you meet all of the require-
ments listed on page one of
this document and would like
to apply the session law provi-
sions to your property, please
contact the North Carolina Divi-
sion of Water Quality (DWQ) at
the Washington or Wilmington
Regional Offices.
Division staff will verify that all
requirements of the session
law have been met and will
evaluate whether the No Prac-
tical Alternatives requirement
of the Neuse and Tar - Pamlico
Buffer Rules has been met.
Please note that a Buffer Au-
thorization or Variance may be
required for impacts to the pro-
tected riparian buffer.
In the Neuse and Tar - Pamlico River Basins, there is a 50 -foot
protected riparian buffer that is divided into two zones. The 30 feet
closest to the water or coastal marsh (Zone 1) must remain undis-
turbed; the outer 20 feet (Zone 2) may be managed vegetation.
IMPORTANT: Session Law 394 and related coastal buffer rule
changes apply only to construction of single - family residences on
existing lots in those areas of the eight coastal counties located in
the Neuse River Basin or Tar - Pamlico River Basin as depicted
on the map on page one of this document.
Who should I contact?
If you have any questions or concerns, please contact:
Amy Adams of the Washington Regional Office
amy.adams(cb.ncdenr.gov or 252 - 948 -3917
Joanne Steenhuis of the Wilmington Regional Office OF W ATF9 o� o�
ioanne.steenhuis(cDncdenr.gov or 910 - 796 -7306 r
Amy Chapman of the Central Office °
amy.chapman(d.)ncdenr.gov or 919 - 807 -6400
More information about the Neuse and
Tar - Pamlico Buffer Rules may be found online at:
http://Portal.ncdenr.org/web/wq/swp/ws/401/riparianbuffers.
Additional information can be found at these websites:
DWQ Washington Regional Office http: / /Portal.ncdenr.org /web /wq /home /ro /waro
NC Coastal Stormwater Permitting http: / /Portal.ncdenr.org /web /wq /ws /su /statesw#tab -2
NC Division of Coastal Management http: / /dcm2.enr.state.nc.us /rules /rules.htm
NC Stormwater Outreach and Education http: / /www.ncstormwater.org/
F WA rF
Q 9 Michael F. Easley
\Qta PG Governor
Uj William G. Ross, Jr., Secretary
> Department of Environment and Natural Resources
Alan W. Klimek, PE, Director
Division of Water Quality
July 23, 2002
DWO Project #02 -0780
Pamlico County
Page 1 of 2
CERTIFIED MAIL -- RETURN RECEIPT REQUESTED
Mr. Brian Brown
1501 Fairmont Street
Greensboro, NC 27403
Subject Property: Lot 21, Silver Acres S /D, Whortonville, NC
Broad Creek [03- 04 -10; 27 -141; SA HOW (High Quality) NSW (Nutrient Sensitive)]
APPROVAL for the use of the "General' MAJOR VARIANCE; From the Neuse and Tar - Pamilco Riparian Buffer
Rules for the Construction of Residential Structures on Existing Lots within the Coastal. Counties as defined by
the Coastal Area Management Act with ADDITIONAL CONDITIONS
Dear Mr. Brown:
On July 12, 2002, Division of Water Quality (DWO) Wetlands /401 Unit and Division of Coastal Management (DCM) staff
met with you on the subject property. As a result of this meeting it was determined that the survey provided within your
original application appears not to be accurate. A field investigation revealed that it would be required to impact Zone 2 of
the protected buffers to construct a home within a 48 x 52 -foot building footprint. It was also determined that the lot could
be developed without any impacts to Zone 1 of the protected buffers. In addition, the DCM flagged the boundary of the
coastal wetlands on the entire lot. The DWQ has determined that you are eligible for the use of the general variance as
described below.
You have our approval, in accordance with the conditions listed below, to impact approximately 1,040 fe of Zone 2 (only)
of the protected riparian buffers for the purpose of constructing the proposed single family home on the subject property
as described within your application dated May 2, 2002. This letter shall act as your approval for the use of the "General'
Major Variance; From the Neuse and Tar - Pamlico Riparian Buffer Rules for the Construction of Residential Structures on
Existing Lots within the Coastal Counties as defined by the Coastal Area Management Act with ADDITIONAL
CONDITIONS as approved by the Water Quality Committee (WQC) of the Environmental Management Commission
(EMC) on May 10, 2001. In addition, you should get any other required federal, state or local permits before you proceed
with your project including (but not limited to) Sediment and Erosion Control and CAMA permits.
This approval is only valid for the purpose and design that you described in your variance request dated May 2, 2002
with additional information provided during the July 12, 2002 site visit. If you change your project, you must notify us and
you may be required to send us a new request for approval. If the property is sold, the new owner must be given a copy
of this approval and is thereby responsible for complying with all conditions. For this approval to be valid, you must
follow the conditions listed below.
Conditions:
1. No impacts shall occur to Zone 1 (i.e., 30 feet from the coastal wetland and/or surface water whichever is
more landward) of the protected buffers (except for "exempt" activities identified within 15A NCAC 213
.0233).
2. Stormwater shall be directed as diffuse flow at non - erosive velocities through the protected stream buffers
as identified within 15A NCAC 26.0259(5). Roof drainage from the house shall be directed to vegetated
areas at non - erosive velocities prior to entering the protected riparian buffers. Any additional stormwater
located on the remainder of the property shall be directed as diffuse flow at non - erosive velocities prior to
North Carolina Division of Water Quality, 401 Wetlands Certification Unit,
1650 Mail Service Center, Raleigh, NC 27699 -1650 (Mailing Address)
2321 Crabtree Blvd., Raleigh, NC 27604 -2260 (Location).
919 - 733 -1786 (phone), 919 - 733 -6893 (fax), http:// h2o.enr.state.nc.us /ncwetlands/
h
1 t Fa66 2 of 2
entering the protecte�d,riparianbaffers No;new,ditching�or piping ofESt
rmwater'througfi'tlie�prote
tbd
buffers ,is allowed; t i
x i
3 The outside boundary;of Zone 1 s(30 feet'from the:coastai wetland) sh
if be clearly
,
marked with orange
'
fab id4dricing�(or sirnllar clearly markers) for,the length of "the c+�
nstr ctlon
area that;has �be�
visible
_ approved to infringe within the buffer prior-to and for the duration,;ofan
eland disturbinglactivities
to
ensure compliance with 15A.NCAC 2B 0233. ( i?
,
;
4 -Deed`notifications or similar mechanisms, shall be` laced on all.retain
ell n'
as
s, watiers
,
p r p
and rotective°buffers in orde lo. assure corn liancel =for future'wetland
,r t �
waterdand buff impact.
t: i
Tit
,
ese t
t. a��,
mechanisms shall be:put fn place prior to impacting any wetlands, wet
t 4er
rs andlorf buffers approved
i
f r
�Irnpact untler this Variance..
if you tlo not accept anyof therconditigns of this approval,.you mays ask.for,and adjudic
tory heat, n Yau must act
g i
t" '
within'
60;days of the tlate that'.you receive this letter:; To ask fora =hearing,senda written pet
lion that conforms to'Chapter
:
i
1508: of the NortFi Carolina GenerO, tatutes to the.Office�of;Admm� st Hearings, 6
,14 Mail Service,Center,'R
}relive
NG 27699 6714 This approval and its conditions are final and binding unless you ask
or a hearing i `
_leigh,
I
i it Ty
This letter completes the review oftheDivisionof Water Quality under the.:Neuse.River
Eiipanan +Buffer Protection
Rules
(15A NCAC 2B .0233'(9)(b)) f'lease'call Mr: Bob Zar,.zeckf at919= 733- 97.26:or -Ms .De
oratiSawyer;at252=
946w6'4,81
if ¢,
>.... t
you have,anyrquestionsor require copies of our, rules:or:pracedural;:materials: j
F
,Sincerely,
a Klimek, PE.
t
x
.w
cc Deborah Sawyer,'�DWQ:Washington R;
onai Office
7raceyVNheeler, DCM Morehead City: District.,Office;'151 6 >Mwy.24;wHestron�
laze
II,' Morehead City, NC
-
57',
File :copy _
Central Files
DW Q,020780:y
i
July 23;:2002 1
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Information about the Coastal General Major Variance
Aug. 30, 2010 - In response to recent questions, the Department of Environment and Natural Resources
and the Division of Water Quality asked the state Attorney General's Office to take a more in -depth
look at the issue of transferability of variances. After researching the issue under both North Carolina
law and the law in other states, the Attorney General's Office has advised DENR that the assumption
should be that variances run with the land and can be transferred from one property owner to
subsequent owners of the property. The Division of Water Quality will base its implementation of the
Neuse and Tar - Pamlico buffer general major variance on that advice.
A number of people have also expressed concerns about expiration of the buffer variances. Although
the Coastal General Major Variance issued by the Environmental Management Commission expires in
April of 2011, individual approvals issued under the variance do not expire. According to the Attorney
General's Office, the general rule is that the approval of a variance for an individual property does not
expire unless the approval specifically indicates that it is time - limited. The language of the Coastal
General Major Variance, as it was reissued in 2006, states that the expiration of the Coastal General
Major Variance does not affect individual approvals issued under that variance. Some approval letters
issued by the Division of Water Quality state that the approval expires when the Coastal General Major
Variance expires as of April 11, 2011. DWQ is changing the wording of the form letter to be consistent
with the language of the variance.