20091022 Ver 1_Request for Adjudicatory Hearing_20091106

•
Integrated Design
TO: DWQ 401 Unit
2321 Crabtree Blvd.
Suite 250
Raleigh, NC 27604
TEL: [phone]
ATTN: Amy Chapman
RE: MCTH - Noble Townes Minor Variance
No. Copies
1
1
Under separate cover:
Description 0 q - D a.?
Request for Adjudicatory Hearing
Certificate of Service
:1U MU
DENR - WATER QUALITY
WETLANnS ANn cTLYiMANA SP NGH
Notes:
Amy,
Here is the paper work we submitted to the State of North Carolina Office of Administrative Hearings.
Thank you,
Sam Nye
VIA FAX -PAGES Including this Cover
OVERNIGHT
X MAIL
HAND CARRY
TO BE PICKED UP
COPIES TO:
Integrated Design, PA
1111 Oberlin Road
Raleigh, North Carolina 27605-1136
Please notify us immediately if enclosures are not as noted
JOB CODE: MCTH
DATE: 5 November 2009
X Attached:
FOR YOUR REVIEW
FOR YOUR APPROVAL
X FOR YOUR USE
AS REQUESTED
RETURN COPY EACH
SIGNE
Samuel R. Nye, PE
Phone: [phone]
Fax: [phone]
www.id-aeo.com
CERTIFICATE OF SERVICE
I certify that this Petition has been served on the State agency named below by depositing
a copy of it with the United States Postal Service with sufficient postage or by delivering it to the
named agency.
Served on: /' nl uk- Wt q ?v
(Line of person being served)
A10 I U J7' (State agency being served)
3aI G?-u4?yr6 i31yd, s?;k 250
(address)
(address)
This the F " f- t day of V e-vv4v ,r 2009.
(Pe tioner's ature)
? r= r;?, r --I
tM 6.2000
DENR - hIATER QUALITY
WETLANDS AND STDRMW4TER BRANCH
kF4@1e30W14 MCTH
NOV 6 2009 27 October 2009
Office of Administrative Hearings DENR-WATER QUALITY
?g
6714 Mail Service Center WETLANDS AND STORMWATER BRANCH oc?
Raleigh, NC 27699-6714;
e
(foR N c??tvR
RE: Request for Adjudicatory Hearing
Nobel Townes, LLC hereby requests an adjudicatory hearing to appeal the denial of a Minor
Variance to the Neuse River Riparian Buffer Rule (15A NCAC 02B.0233) for the Nobel Townes
property in Raleigh, NC.
On September 22, 2009, at the direction of DWQ, we requested a Minor Variance to expand our
existing decks 365 square feet within Zone 2. Our request was based on a DWQ memorandum
dated September 22, 2006, signed by John Dorney which states that the requested deck
expansion would be allowable with mitigation in Zone 2. The required mitigation, per DWQ
regulations, would be 1.5 times the buffer impact (548 square feet). We contacted Restoration
Systems, LLC who provided the attached letter stating they have available mitigation credits for
purchase.
The Minor Variance was denied on the grounds that the property was purchased after the
effective date of the rule, August 1, 2000. We do not dispute this fact. The purchase date
stipulation is listed as a requirement to grant a- variance for buffer impacts. A variance would
only be required when a prohibited use is requested. Under 15A NCAC 02B .202(13) decks are
defined as pervious surface, which is an allowed use within Zone 2 of a buffer. The previously
referenced DWQ memorandum identifies this specific case and further protects the buffer by
stating decks below a height of eight (8) feet are allowable with mitigation in Zone 2.
We believe that DWQ incorrectly requested that we submit a Minor Variance application. Our
use is not prohibited and therefore requires no variance. DWQ should have provided us with an
Authorization Certificate per 15A NCAC 02B .0233(8), allowed us to pay for the required
mitigation, and allowed us to construct the proposed decks.
We have attached copies of the DWQ memorandum, the Minor Variance Request Form, the
letter from Restoration Systems, LLC for mitigation payment, the DWQ denial letter, highlighted
copies of the referenced State Rules and 11" x 17" reductions of the existing and proposed
impervious surface plans. Please let us know your schedule for the hearing and if you require
any additio al information. F l
Sincerely,
%ew
L e Norris
Member, Nobel Townes, LLC
Enclosures
Cc: Ms. Cyndi Karoly, 401 Oversight/Express Review Permitting Unit
Mr. Ed Sconfienza, PE, Integrated Design, PA
Cn Ui!al 7
Cn
September 22, 2006
MEMORANDUM
Govemor
William G. Ross, Jr., 5ecrelary
Department of environment and Waturai Resources
Alan W. Klimek, P_F_, Director
Division of Water ouaiity
RE DWQ`s stance on wooden-slatted decks and associated wooden-slatted steps within the Neuse and Tar-Pamlico
Protected Riparian Buffers
Problem: it has been brought to DWQ's attention that wooden-slatted decks and associated steps in either zone of the
protected riparian buffers has only been addressed in the definitions under 15A•NCAC 02B.0202(13), where wooden-siatted
decks are considered pervious. However, DWQ has concerns that not all wooden-s}afted decks are high enough to allow for
adequate sunlight and moisture to penetrate them to ensure that Zones 1 and 2 of the buffers are continuing to be
maintained in vegetation as required in 18 NCAC 2B.D233(4) and 15NCAC 23.0259(4).
Solution: Provided that minimal vegetation is removed from Zone 2 and no vegetation is removed from Zone1 during the
installation of the deck, if the deck is at least 8 feet (ft) in height to allow for adequate sunlight and moisture for maintaining
vegetation beneath it and that it meets the requirements of diffuse flow and having a "Zone 1 and Zone 2 of the buffers, then
decks (and associated steps) would be allowable in Zones 1 and 2 of the protected riparian buffers. However, if the deck
does not meet any of the requirements listed above, it would be considered allowable with mitigation in Zone 2, but
prohibited in Zone 1 of the protected riparian buffers.
Please note: If the
Major Variance, thf
Signature:
401 Wetlands Cerfiucapon
is built within one of the 20 Coastal Counties that meets the criteria for the General Coastal
iN -m does not apR1y-
Date: _422 Lo(?_
2321 Craatree Boulevard, Suite 25D, Raleioh,-Narih Cam8na?27otk
Phone: [phone]) FAX 915 733 n&93I fnt=_met htto:!/h2o_enrstate.nc_usincwetlands
An ~ovaf Dppoaunity/Affrmalrve A^iion Employer- 502 Recycletltlp Post Consumer Paper
1"
NCDENR
Norm Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Governor
Director
Variance Request Form
(For Minor and Major Variances)
Protection and Maintenance of Riparian Areas Rules
NOTE. This form may be photocopied for use as an original.
Check the appropriate bog below:
11 Major Variance
X Minor Variance
Please identify which Riparian Area Protection Rule applies (Note-this must be one of
North Carolina's four buffered river basins. The River Bain map is available at
htti)://h2-o.tiir.state.nc.us/admin/mai)o.,/.)
X Neuse River Basin: Nutrient Sensitive Waters Management Strategy
Protection and Maintenance of Riparian Areas Rule (15A NCAC 02B.0233)
? Tar-Pamlico River Basin: Nutrient Sensitive Waters Management Strategy
Protection and Maintenance of Riparian Areas Rule (15A NCAC 02B.0259)
Part 1: General Information
(Please include attachments if the room provided is insufficient.)
1. Applicant's name (the corporation, individual, etc. who owns the property):
GHC - WHITAKER TOWNES. LLC
2. Print owner/Signing official (person legally responsible for the property and its compliance)
Name: Crain Briner
Title: Managing Member
Street address: 404 Glenwood Avenue
City, State, Zip: Raleigh. North Carolina 27607
Telephone: [phone]
3. Contact person who can answer questions about the proposed project:
Dee Freeman
Secretary
Verson 6: July 2009
Name: _Ed Sconfienza, P_E., Integiated Desicm
Telephone: (919 ) 832-6658
Fax: (919 ) 839-2255
Email: efsaid-aep.com
4. Project name (Subdivision, facility, or establishment name - consistent with project name on
plans, specifications, letters, operation and maintenance agreements, etc.):
Nobel Townes
5. Project location:
Street address: 2530, 2532, 2544 & 2546 Noble Road
City State, Zip: -Raleigh, NC 27608
County: Wake
Latitude/longitude: 65° 48"-45-'N 78° 37' 53"W
6. Date property was purchased: August 31, 2009
;'. Directions to site from nearest major intersection (Attach an 8 1/2 x l l copy of the USGS
topographic map indicating the location of the site).
From the intersection of Wake Forest Rd & 1440, south on Wake Forest Rd +0.9 mile: turn Rt on
McNeil Street, 2 blocks to the intersection with Noble Road. Property is on the left.
8. Stream to be impacted by the proposed activity:
Stream name (for unnamed streams label as "UT" to the nearest named stream):
UT to Crabtree Creek
9. Which of the following permits/approvals will be required or have been received already for this
project?
Required: Received: Date received:
_N/A
N/A
N/A
N/A_
Y *In Process - C.O.R. Grading Permit
N/A
N/A
N/A
Permit Type:
CAMA Major
CAMA Minor
401 Certification/404 Permit
On-site Wastewater Permit
NPDES Permit (including stormwater)
Non-discharge Permit
Water Supply Watershed Variance
Erosion/Sedimentation Control
Others (specify)
Part 2: Proposed Activity
(Please include attachments if the room provided is insufficient.)
1. Description of proposed activity [Also, please attach a map of sufficient detail (such as a plat map
or site plan in Adobe (pdf) format) to accurately delineate the boundaries of the land to be utilized
in carrying out the activity, the location and dimension of any disturbance in the riparian buffers
associated with the activity, and the extent of riparian buffers on the land. Include the area of
buffer impact
----- T P?roD %ode=v lop=ent_inc a-de in dej J i i - ,°xistja z TentaLunits--into-tom? rh m-es-wIJ2k-Ii weFe -
ori-inally constructed prior to the .N-RB rules. The remodel includes deck additions. We are
pronosiaz to not extend the decks for lots 8 and 24 because that would result in an impact to
Variance Reauesz Form page 2
Version 6 Juiy 2009
Zone!. We are proposing 365 sf of impacts to Zone 2 ofthe?N(IZB. These impacts consist of a
wooden deck with mulch underneath. The existing dum-oster for this project is on a gravel pad
and we are proposina_ to make the pad concrete This area is in Zone 1 but is not being considered
an impact because it is an existing dumpster pad.
2. Fill in the table below to identify the square footage of impact to Zones 1 & 2 in the protected
riparian buffers and the required mitigation (Fill in the impacts portion of the table, even if
mitigation is not required):
Buffer impact
Zone of Impact in Number Purpose for
Multiplier Required
Impact Square Feet (Indicate on the Impact Mitigation
Plan Sheet)
Zone 1 0 NA NA 3 0
Zone 2 365 1 &2 Deck Addition 1.5 548
Total 365 548
*Zone 1 extends out 30 feet perpendicular from the most landward limit of the top of bank or the rooted herbaceous
vegetation; Zone 2 extends an additional 20 feet from the edge of Zone 1.
State reasons why this plan for the proposed activity cannot be practically accomplished, reduced
or reconfigured to better minimise or eliminate disturbance to the riparian buffers:
The existing development predates Neuse River Buffer rules and was built _closer to the creek
than would be acceptable based on today's standards. We are adding to the buffer impact only for
the purpose of extending the decks on the existing buildings that are within the buffer. We have
already reduced our plans to show no impacts to zone 1 of the buffer by not adding decks to lots 8
& 24
4. Description of any best management practices to be used to control impacts associated with the
proposed activity (i.e., control of runoff from impervious surfaces to provide diffuse flow, re-
planting vegetation or enhancement of existing vegetation, etc.):
The decks will be installed with slats for drainage. Underneath the slats we will install mulch to
revent erosion and facilitate ground recharge
5. Please provide an explanation of the following:
(1) The practical difficulties or hardships that would result from the strict application of this Rule.
The buildings are existing and were built prior to the Neuse River Buffer rules. There would be
no way to extend the decks without a variance.
(2) How these difficulties or hardships result from conditions that are unique to the property
involved.
The situation is unique because the buildings are existing and we
(3) If economic hardship is the major consideration, then include a specific explanation of the
economic hardships and the proportion of the hardship to the entire value of the project.
The decks are all being extended in an effort to renovate and reuse existing structures. This will
reduce the need for future developments to use ur green space. The lots without extended decks
-wil]'?bt at -a distinct-digativaiitage m-d-vTHI b e-harder-to-s--E.
Variance Request Form, page 3
Version 6 Juiy 2009
Part 3: Stormwater
Provide a description of all best management practices (BMPs) that will be used to control
nutrients and sedimentation impacts associated with the proposed activity. Please ensure to
include all applicable operation & maintenance agreements and worksheets for the proposed
BMPs. Also, include the BMPs on your plan sheets.
We are not proposing any structural BMPs as our impacts are only 365 SF of decking with mulch
underneath.
2. Attach a description of how diffuse flow will be maintained through the protected riparian
buffers. Please ensure to include all applicable operation & maintenance agreements and
worksheets for the proposed diffuse flow measure(s). Also, include the diffuse flow measure(s)
on your plan sheets.
We are not proposing anv adjustment to the current drainage patterns into the buffer. The decks
will not change the existing drainage patterns.
3. What will be the annual nitrogen load contributed by this site after development in pounds per
acre per year without structural BMPs (stormwater pond, wetland, infiltration basin, etc)? Attach
a detailed plan for all proposed structural stormwater BMPs.
Drainage Size of Post-development BMP nitrogen6 Final Final
basin drainage nitrogen 6 loading removal nitrogen6 nitrogen6
basin rate without BMPs4 eff ciency5 loading rate loading
(ac) (lbs/ac/yr) (%) (Ibs/acfyr) from
drainage
basin (Ibs
1 1.68 9.79 NA 9.79 1.59
2
3
4
S
T T-
4 Attach calculations and references.
5 Attach calculations and references.
61'nclude Phosphorus in the Tar-Pamlico Basin
4. Attach all applicable supplement form(s) and Inspection and Maintenance (I&M) Form(s) to this
completed application. The applicable supplemental form(s) and I&M form(s) for-the proposed
B_MPs noted in your application can be downloaded from the following website:
httc://h7o.car.state_nc.us/su/bm-D forms.htm
Varaao-- Request F-.=. pave 4
Version 6 July 2009
Part 4: Proposed Impacts and Mitigation
Provide a description of how mitigation will be achieved at your site pursuant to 15A NCAC 2B .0242
for the Neuse Basin and 15A IN-CAC 2B.060 for the Tar-Pamlico Basin.
If buffer restoration is the method you are requesting, be sure to include a detailed planting plan to
include plant type, date of plantings, the date of the one-time fertilization in the protected riparian
buffers and a plan sheet showing the-pr-0posed-location--o#=# ie-plantings_--A--guide to-buffer-restoration
can be downloaded at the following website: http://v,- ? .nceep.net/news/reports/buffers.i)df
If payment into a buffer restoration fund is how you plan to achieve your mitigation requirement, then
on bank you propose to use stating they have the
include an acceptance letter from the mitigati
mitigation credits available for the mitigation requested.
Part 5: Deed Restrictions
By your signature in Part 6 of this application, you certify that all structural stormwater BMPs
required by this variance shall be located in recorded stormwater easements, that the easements will
run with the land, that the easements cannot be changed or deleted without concurrence from the
State, and that the easements will be recorded prior to the sale of any lot.
Part 6: Applicant's Certification
I, -Craig Griner (print or type name of person listed in
Part L Item 2), certify that the information included on this permit application form is correct, that the
project will be constructed in conformance with the approved plans and that the deed restrictions in
accordance with Part 5 of this form will be recorded with all required permit conditions.
Signature:
Date:
Title:
Part 7: Plan Sheets
Be sure to include a copy of all of your completed application form, plan sheets and maps in Adobe
(pd f) format on a CD or floppy disk.
Variance Reauea Form, pane 5
Version 6 3ui7 2009
Managing Niember
Part 8: Checklist
A complete application submittal consists of the following components. Incomplete submittals will
be returned to the applicant. The complete variance request submittal must be received 90 days prior
to the EMC meeting at which you wish the request to be heard. Initial below to indicate that the
necessary information has been provided.
Applicant's Item
Initials
EFS • Original and two copies of the Variance Request Form and the attachments
listed below.
EFS . A vicinity map of the project (see Part 1, Item 5)
EFS • Narrative demonstration of the need for a variance (see Part 2)
EFS • A detailed narrative description of stormwater treatment/management (see Part

4)
EFS • Calculations supporting nitrogen (phosphorus in the Tar-Pamlico Basin)
EFS loading estimates (see Part 4)
• Calculations and references supporting nitrogen (phosphorus in the Tar-
NA Pamlico Basin) removal from proposed BMPs (see Part 4)
Location and details for all proposed structural stormwater BMPs (see Part 4)
NA • Three copies of the applicable Supplement Form(s) and I&M Form(s) for each
BMP and/or narrative for each innovative BMP (see Part 4)
EFS
EFS Three copies of plans and specifications, including:
EFS 0 Development/Project name
EFS 0 Engineer and firm
EFS 0 Legend and north arrow
EFS 0 Scale (1" = 50' is preferred)
EFS 0 Revision number & date
NA 0 Mean high water line (if applicable)
EFS 0 Dimensioned property/project boundary
EFS 0 Location map with named streets or NC State Road numbers
EFS 0 Original contours, proposed contours, spot elevations, finished floor
elevations
NA 0 Details of roads, parking, cul-de-sacs, sidewalks, and curb and gutter
EFS 0 Footprint of any proposed buildings or other structures
EFS 0 Wetlands delineated, or a note on plans that none exist
EFS 0 Existing drainage (including off-site), drainage easements, pipe sizes,
runoff calculations
EFS 0 Drainage basins delineated
EFS 0 Perennial and intermittent streams, ponds, lakes, rivers and estuaries
EFS 0 Location of forest vegetation along the streams, ponds, lakes, rivers and
estuaries
Variance R?ques erm, pzge 6
Version 6 July 2009
NCDENR
North Carolina Department of Environment and
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Governor Director
October 6, 2009
n G
OCT 1 1? 20019
Natural Resources
Integrated De n
e Freeman
Secretary
DWQ Project # 09-1022
Wake County
CERTIFIED MAIL: RETURN RECEIPT REQUESTED
GHC-Whitaker Townes, LLC
Attn: Mr. Craig Briner
404 Glenwood Avenue
Raleigh, NC 27607
Subject Property: Nobel Townes, Raleigh, NC
UT to Crabtree Creek [030402, 27-33-(10), C, NSW]
Dear Mr. Briner:
On September 24, 2009, the Division of Water Quality (DWQ) received your minor variance application
dated September 16, 2009, to fill or otherwise impact 365 square feet of Zone 2 protected riparian buffers
to construct the decks at the subject property.
By guidance from the Attorney General's Office on the interpretation of the Neuse Buffer Rule, you must
meet the hardships outlined in 15A NCAC 02B .0233(9)(a) in order to qualify for a variance from the
Neuse Buffer Rules. You have not met the hardship described in 15A NCAC 02B .0233(9)(a)(i)(E), in
that you purchased the property after the effective date of the rule. Therefore this office can not process
your application.
Individuals that dispute a permitting determination from a riparian buffer rule by the DWQ may ask for
an adjudicatory hearing. You must act within 60 days of the date that you receive this letter. To ask for a
hearing, send a written petition, which conforms to Chapter 150B of the North Carolina General Statutes
to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, N.C. 27699-6714. This
determination is final and binding unless you ask for a hearing within 60 days.
Please be aware that you have no authorization under the Neuse Buffer Rules for this activity and any
work done within the protected riparian buffers that requires a variance or buffer authorization would be a
401 GversighUtxoress Review Permitting Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
Location: 2321 Crabtree Blvd., Raleigh, North Carolina 27604
Phone: [phone] FAX: [phone]
Internet: http://h2c.enr.state.nc.us/ncwetlands/
NorthCarolina
naturally
An Iqual Ooogrtuniry', Affirrnaove Action Emoioyer
Right Force, Inc
Page 2 of 2
October 5, 2009
violation of North Carolina General Statutes and Administrative Code. Please call Ms. Cyndi Karoly or
Ms. Amy Chapman at 919-733-1786 if you have any questions or concerns.
S inc ely
Cyndi Karoly, Supervisor
401 Oversight/Express Review Permitting Unit
CBKlasc
cc: Lauren Witherspoon, DWQ Raleigh Regional Office
DLR Raleigh Regional Office
File Copy
Mr. Ed Sconfienza, Integrated Design, 111 Oberlin Rd.. Raleigh, NC 27605-1136
Filename: 091022NobelTownes(W ake)NBR_UnpennittableAppli cation
15A NCAC 02B Page 1 of 10
q ©C-T 2 ee9
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
-- - -
approximate sKovvn-on-either-the-most-receirt-version-of-the-soii-survey-map-prepared--bythe--atnral
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
http://ncrules.state.nc.us/ncac/title%2015a%20-%20enviro=ent%20and%20natural%2Or... 10/19/2009
15A NCAC 02B
Page 2 of 10
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 parry 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
-- pr-ovi ed=for=in=Item-(6)=of-this=Rule=Gr-ad-ing=and-T-e-vegetatirrg-Zone-2-is=allow-e&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.
Exempt Allowable 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
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

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
flow and the health of existing vegetation in Zone I is not
compromised and disturbed areas are stabilized
Greenwa /hikin trails X
Historic reservation X
Landfills as defined b 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
Wastewater or mining dewatering wells with approved X
NPDES permit
on-electric utility lines:
C Impacts other than perpendicular crossings in Zone 2 only3 X
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:
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 1
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_wher>_altemadve_forms-ofmaintenance-acc-ess_arenat____
practical
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' 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.
Exempt Allowable Allowable Prohibited
with
Mitigation
Playground equipment:
C Playground equipment on single family lots X
provided 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 and
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 X
linear 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-- -ol?ad c-?oss??hat?mpaef?q?tal=to-o?Iess?ha?=40_ --.- - --
linear feet of riparian buffer

C Road crossings that impact greater than 40 linear
X _
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feet 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 X _
1 is not compromised and that discharge is released _
as diffuse flow in accordance with Item (5) of this
Rule X
C In Zones 1 and 2 to control impacts associated with _
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 X
C In-stream temporary erosion and sediment control
measures for work within a stream channel
Underground electric utility lines:
C Impacts other than perpendicular crossings in Zone 2 X
only3 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-sy_stems_shalLbe_left intact to maintain the integrityof 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.
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• 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.
Exempt Allowable Allowable Prohibited
with
Mitigation
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.
- - - -- FB) -S?TEL?MIN?3 ?4 _O??O_PI?AE C-AL?A?TEI?NA LV ersons--whc,w-isl-fo_-undert_ake_uses -
designated as allowable or allowable with 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
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identified in Sub-Item (8)(a) of this Rule are met. The Division or the delegated local authority shall grant 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
eon bons are-arse-widespread: 1- Cher-properties=are equally--subJecr o=thc? - ---
hardship created in the restriction, then granting a variance would be a special
privilege denied to others, and would not promote equal justice;
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(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
(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.
-- -
High=ii tensity -_scribed-bums-be allawec - - -- _ _
(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
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shall be conducted so that the chemicals are not applied directly to or allowed to drift into the
riparian buffer.
(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 I1 .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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15A NCAC 02B.0202 DEFINITIONS
The definition of any word or phrase used in this Section shall be the same as given in G.S. 143, Article 21. The following
words and phrases, which are not defined in this article, shall be interpreted as follows:
(1) Acute toxicity to aquatic life means lethality or other harmful effects sustained by either resident aquatic
populations or indicator species used as test organisms in a controlled toxicity test due to a short-term
exposure (relative to the life cycle of the organism) to a specific chemical or mixture of chemicals (as,in an
effluent). Short-term exposure for acute tests is generally 96 hours or less. Acute toxicity shall be
determined using the following procedures:
(a) for specific chemical constituents or compounds, acceptable levels shall be equivalent to a
concentration of one-half or less of the Final Acute Value (FAV) as determined according to
"Guidelines for Deriving Numerical Water Quality Criteria for the Protection of Aquatic Life and
its Uses" published by the Environmental Protection Agency and referenced in the Federal
Register (50 FR 30784, July 29, 1985) which is hereby incorporated by reference including any
subsequent amendments.
(b) for specific chemical constituents or compounds for which values described under Subparagraph
(1)(a) of this Rule can not be determined, acceptable levels shall be equivalent to a concentration
of one-third or less of the lowest available LC50 value.
(c) for effluents, acceptable levels are defined as no statistically measurable lethality (99 percent
confidence level using Students t test) during a specified exposure period. Concentrations of
exposure shall be determined on a case-by-case basis.
(d) in instances where detailed dose response data indicate that levels of acute toxicity are
significantly different from those defined in this Rule, the Director may determine on a
case-by-case basis an alternate acceptable level through statistical analyses of the dose response
curve.
(2) Acute to Chronic Ratio (ACR) means the ratio of acute toxicity expressed as an LC50 for a specific
toxicant or an effluent to the chronic value for the same toxicant or effluent.
(3) Agricultural uses include the use of waters for stock watering, irrigation, and other farm purposes.
(4) Applicator means any person, firm, corporation, wholesaler, retailer, distributor, any local, state, or federal
governmental agency, or any other person who applies fertilizer to the land of a consumer or client or to
land they own or to land which they lease or otherwise hold rights.
(5) Approved treatment, as applied to water supplies, means treatment accepted as satisfactory by the Division
of Environmental Health or Division of Water Quality.
(6) Average (except bacterial) means arithmetical average and includes the analytical results of all samples
taken during the specified period; all sampling shall be done as to obtain the most representative sample
under prevailing conditions:
(a) Daily Average for dissolved oxygen, shall be of at least four samples;
(b) Weekly Average means the average of all daily composite samples obtained during the calendar
week. If only one grab sample is taken each day, the weekly average is the average of all daily
grab samples. A minimum of three daily grab samples is needed to calculate a weekly average.
(c) Monthly Average means the average of all daily composites (or grab samples if only one per day)
obtained during the calendar month.
The definitions in this Paragraph do not affect the monitoring requirements for NPDES permits but rather
shall be used by the Division along with other methodologies in determining violations of water quality
standards. Arithmetical averages as defined by this Section, and not confidence limits nor other statistical
descriptions, shall be used in all calculations of limitations which require the use of averages pursuant to
this Section and 40 CFR 122.41(1)(4)(iii).
(7) Best Management Practice (BMP) means a structural or nonstructural management-based practice used
singularly or in combination to reduce nonpoint source inputs to receiving waters in order to achieve water
quality protection goals.
(8) Best usage of waters as specified for each class means those uses as determined by the Environmental
Management Commission in accordance with the provisions of G.S. 143-214.1.
(9) Bioaccumulation factor (BAF) is a unitless value that describes the degree to which substances are taken
up or accumulated into tissues of aquatic organisms from water directly and from food or other ingested
materials containing the accumulated substances, and is usually measured as a ratio of a substance's
-- --?oneea#??tior? ins?ue ver?rrs t?? oneen4iatio?in-water in situationswhere-exposure-to -th-e-substance-is --
occurring from both water and the food chain.
(10) Bioconcentration factor (BCF) is a unitless value that describes the degree to which substances are
absorbed or concentrated into tissues of aquatic organisms from water directly and is usually measured as a
htttn•//nrrnlac data nr, nc/nrar/titlao&7n1 ??oi?n_oionAr, ,?nn,on+oi?n? r70/7n, 10%7 n, 1 0 io'7 i)n0C)
15.E NCAC 02B
Page 2 of 6
ratio of substance's concentration in tissue versus its concentration in water in situations where exposure to the
substance is occurring from water only.
(11) Biological integrity means the ability of an aquatic ecosystem to support and maintain a balanced and
indigenous community of organisms having species composition, diversity, population densities and
functional organization similar to that of reference conditions.
(12) Buffer means a natural or vegetated area through which stormwater runoff flows in a diffuse manner so
that the runoff does not become channelized and which provides for infiltration of the runoff and filtering
of pollutants. The buffer shall be measured landward from the normal pool elevation of impounded
structures and from the bank of each side of streams or rivers.
(13) Built-upon area means that portion of a development project that is covered by impervious or partially
impervious cover including buildings, pavement, gravel areas (e.g. roads, parking lots, paths), recreation
facilities (e.g. tennis courts), etc. (Note: Wooden slatted decks and the water area of a swimming pool are
considered pervious.)
(14) Chronic toxicity to aquatic life means any harmful effect sustained by either resident aquatic populations
or indicator species used as test organisms in a controlled toxicity test due to long-term exposure (relative
to the life cycle of the organism) or exposure during a substantial portion of the duration of a sensitive
period of the life cycle to a specific chemical substance or mixture of chemicals (as in an effluent). In
absence of extended periods of exposure, early life stage or reproductive toxicity tests may be used to
define chronic impacts.
(15) Chronic value for aquatic life means the geometric mean of two concentrations identified in a controlled
toxicity test as the No Observable Effect Concentration (NOEC) and the Lowest Observable Effect
Concentration (LOEC).
(16) Cluster development means the grouping of buildings in order to conserve land resources and provide for
innovation in the design of the project including minimizing stormwater runoff impacts. This term includes
nonresidential development as well as single-family residential and multi-family developments. For the
purpose of Sections .0100, .0200 and .0300 of this Subchapter, planned unit developments and mixed use
development shall be considered as cluster development.
(17) Commercial applicator means any person, firm, corporation, wholesaler, retailer, distributor or any other
person who for hire or compensation applies fertilizer to the land of a consumer or client.
(18) Concentrations are the mass of a substance per volume of water and for the purposes of this Section shall
be expressed as milligrams per liter (mg/1), micrograms per liter (ug/1), or nanograms per liter (ng/1).
(19) Contiguous refers to those wetlands landward of the mean high water line or normal water level and within
575 feet of classified surface waters which appear as solid blue lines on the most recently published
versions of U.S.G.S. 1:24,000 (7.5 minute) scale topographic maps.
(20) Critical area means the area adjacent to a water supply intake or reservoir where risk associated with
pollution is greater than from the remaining portions of the watershed. The critical area is defined as
extending either 1/2 mile from the normal pool elevation of the reservoir in which the intake is located or to
the ridge line of the watershed (whichever comes first); or 1/2 mile upstream from and draining to the
intake (or other appropriate downstream location associated with the water supply) located directly in the
stream or river (run-of-the-river), or to the ridge line of the watershed (whichever comes first). Since
WS-I watersheds are essentially undeveloped, establishment of a critical area is not required. Local
governments may extend the critical area as needed. Major landmarks such as highways or property lines
may be used to delineate the outer boundary of the critical area if these landmarks are immediately adjacent
to the appropriate outer boundary of 1/2 mile. The Commission may adopt a different critical area size
during the reclassification process.
(21) Cropland means agricultural land that is not covered by a certified animal waste management plan and is
used for growing corn, grains, oilseed crops, cotton, forages, tobacco, beans, or other vegetables or fruits.
(22) Designated Nonpoint Source Agency means those agencies specified by the Governor in the North
Carolina Nonpoint Source Management Program, as approved by the Environmental Protection Agency.
(23) Development means any land disturbing activity which adds to or changes the amount of impervious or
partially impervious cover on a land area or which otherwise decreases the infiltration of precipitation into
the soil.
(24) Director means the Director of the Division of Water Quality.
(25) Discharge is the addition of any man-induced waste effluent either directly or indirectly to state surface
waters.
(261 Division-mean
s?he?ivision o?WateLC?i?atit?or ;ts sncc_ess_ors-
(27) Domestic wastewater discharge means the discharge of sewage, non-process industrial wastewater, o er
domestic wastewater or any combination of these items. Domestic wastewater includes, but is not limited
to, liquid waste generated by domestic water using fixtures and appliances, from any residence, place of
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as D05?r Ida: lvTigatit}xt. Cruets Restcsrsn Sy ??Teribrella ?uent3s
and g a a Bier ti Bad, {.D Q 09-051.4 v3). e&t ?rtr =11y •aarailable cl?itles
183 ;997, space f t of b rnitiggaiien. as well as 26,204.1.8 potmds of nitrogm o C=ent pt crcdit
Kulz wiff3 N WQ is zware of = balances for cross rvfere if ne sary.. Bees
.at ow Bad are- 25 i N and $0.96tsq ft, for buffer impacts and -we cam pry-vide- e mi i tlo
retested..
Far -additional iz fb=ation pka contact me a . 919-334•-9118
Siicer??y,.
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15A NCAC 2B.0242 is proposed for adoption as follows:
.0242 MITIGATION PROGRAM FOR PROTECTION AND MAINTENANCE OF RIPARIAN
BUFFERS
The following are the requirements for the Riparian Buffer Mitigation Program.
(1) PURPOSE. The purpose of this Rule is to set forth the mitigation requirements that apply to the State's
riparian buffer protection program.
(2) APPLICABILITY. This Rule applies to persons who wish to impact a riparian buffer when one of the
following applies:
(a) A person has received an Authorization Certificate pursuant to 15A NCAC 2B .0233 for a proposed
use that is designated as "allowable with mitigation."
(b) A person has received a variance pursuant to 15A NCAC 2B .0233 and is required to perform
mitigation as a condition of a variance approval.
(3) THE AREA OF MITIGATION. The required area of mitigation shall be determined by either the
Division or the delegated local authority according to the following:
(a) The impacts in square feet to each zone of the riparian buffer shall be determined by the Division or
the delegated local authority by adding the following:
(i) The area of the footprint of the use causing the impact to the riparian buffer.
(ii) The area of the boundary of any clearing and grading activities within the riparian buffer
necessary to accommodate the use.
(iii) The area of any ongoing maintenance corridors within the riparian buffer associated with the
use.
(b) The required area of mitigation shall be determined by applying the following multipliers to the
impacts determined in Sub-item (3)(a) of this Paragraph to each zone of the riparian buffer:
(i) Impacts to Zone I of the riparian buffer shall be multiplied by 3.
(ii) Impacts to Zone 2 of the riparian buffer shall be multiplied by 1.5.
(iii) Impacts to wetlands within Zones 1 and 2 of the riparian buffer that are subject to mitigation
under 15A NCAC 2H .0506 shall comply with the mitigation ratios in 15A NCAC 2H .0506.
(4) THE LOCATION OF MITIGATION. The mitigation effort shall be located in the same Nutrient
Management Zone of the Neuse River Basin of the proposed impact or lower in the basin. The four
Nutrient Management Zones are laid out in the Division's Report, `Total Maximum Daily Load for Total
Nitrogen to the Neuse River Estuary, North Carolina' (February 1999).
(5) ISSUANCE OF THE MITIGATION DETERMINATION. The Division or the delegated local authority
shall issue a mitigation determination that specifies the required area and location of mitigation pursuant to
Items (3) and (4) of this Paragraph.
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