WSMU_APEX_WSWP Ordinance_20200914

ARTICLE 6 OVERLAY DISTRICTS
6.1 WATERSHED PROTECTION OVERLAY DISTRICTS
6.1.1 Purpose, Authority, and Enactment
The purpose of the Watershed Protection Overlay Districts is to ensure the availability of
public water supplies at a safe and acceptable level of water quality, to ensure protection
of public water supplies for recreational and aesthetic purposes, to minimize
sedimentation of streams, and to protect the environment, health, and general welfare of
present and future residents of the Town and the Triangle Region under the authority set
forth in Sec. 1.2 Authority of this Ordinance and in NCGS 160A-174. In addition, the
Legislature of the State of North Carolina has, in Chapter 143, Article 21 of the North
Carolina General Statutes, entitled Water and Air Resources, directed local governmental
units to adopt regulations designed to promote the public health, safety, and general
welfare pursuant to the more specific requirements set forth in 15A NCAC 213 .0100, 15A
NCAC 213 .0200, and in the Jordan Water Supply Watershed Nutrient Management
Strategy Rules, 15A NCAC 213 .0262 through .0273 and .0311(p). Also pursuant to the
Federal Water Pollution Control Act of 1972, federal Phase II Stormwater rules
promulgated under it, and NCGS 143-215.1 and S.L. 2006-246, the Town is required to
obtain a Phase II National Pollutant Discharge Elimination System (NPDES) permit for
stormwater management for its municipal separate storm sewer system and to adopt,
among other things, requirements and procedures to control the adverse effects of
increased post development stormwater runoff and nonpoint and point source pollution
associated with new development and redevelopment. (Additional specific purposes may
be found in the Swift Creek Land Management Plan and the 2045 Land Use Map
Update.) In furtherance of these goals and under such authorities, the Town of Apex
promulgated this Sec. 6.1 Watershed Protection Overlay Districts.
6.1.2 Primary and Secondary Watershed Protection Overlay Districts
Except for those lands and uses exempted pursuant to Sec. 6.1.3 Exemptions, the
Watershed Protection Overlay Districts shall encompass all lands within the Town of
Apex and its extraterritorial jurisdiction as established in Sec. 1.2.2 Authority to Regulate
Zoning, Subdivision And Building Practices in ETJ. The boundaries for the Town's
extraterritorial jurisdiction area (hereinafter "ETJ") are delineated on the Town of Apex's
"Official Zoning District Map." A copy of this map shall be on record in the office of the
Town Clerk and in the Planning Department for inspection by the general public during
normal business hours.
The Town and its ETJ shall be divided into two (2) districts for the purpose of watershed
protection. The Primary Watershed Protection District shall consist of all lands identified
by the state as water supply watershed protected areas. The Secondary Watershed
Protection District shall consist of the remainder of lands within the Town and its ETJ.
These two (2) districts shall be identified on the Town of Apex's "Watershed Protection
Overlay District Map." A copy of this map shall be on record in the office of the Town
Clerk and in the Planning Department for inspection by the general public during normal
business hours. All subsequent changes to the area that is identified by the state as
water supply watershed protected area are herein adopted by reference, and the
Planning Department shall cause such changes to be reflected on said map. A portion of
the Jordan Lake Watershed, which consists of all lands and waters draining to the B.
Everette Jordan Reservoir, is located within the Town's Primary Watershed Protection
District and a portion is located within the Secondary Watershed Protection District as
also depicted on the Town's Watershed Protection Overlay District Map.
The Town shall also maintain a "Stormwater Control Measures (SCMs) Map" of the Town
and its ETJ that depicts the geographic location of all the SCMs approved under Sec. 6.1
July 21, 2020 Article 6 - Page 1

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.3 / Exemptions
and the map shall be updated as necessary to accurately reflect the location of such
structures. A copy of this map shall be on record in the office of the Town Clerk and in the
Planning Department for inspection by the general public during normal business hours.
6.1.3 Exemptions
This Section does not apply to Sec. 6.1.11 Riparian Buffers.
The following activities are exempted from the requirements of Sec. 6.1 Watershed
Protection Overlay Districts:
A) Development that cumulatively disturbs less than one (1) acre and is not part of a
larger common plan of development;
B) Redevelopment that cumulatively disturbs less than one (1) acre and is not part
of a larger common plan or development or sale;
C) Development Existing as of the Effective Date of this Section
1) Date built. The continued use of structures that were built prior to the
effective date of this Section;
2) Substantial expenditures. The completion of development for which the
developer prior to the effective date of this Section made substantial
expenditures of resources (e.g. time, labor, money) based on a good
faith reliance on a valid permit received from the Town;
3) Outstanding building permit. The construction of any structure for which
a developer has an outstanding valid building permit in compliance with
NCGS 160A-385.1 prior to the original effective date of this Section.
4) Vested right. The completion of development for which a vested right, as
defined in NCGS 160A-385.1(b)(6), was obtained prior to the original
effective date of this Section.
D) Expansions to Existing Development
Any expansion to a lot or project that is exempt from the requirements of Sec. 6.1
pursuant to Sec. 6.1.3.C. Development Existing as of the Effective Date of this
Section and disturbs greater than one (1) acre must comply with the
requirements of Sec. 6.1. The built -upon area of the existing development shall
be included in the built -upon area calculations for any proposed expansion to any
such lot or project. Provided, however, that the built -upon area of any school
facility owned by the Wake County Public School System or any qualified
nonpublic school that is exempt from the requirements of Sec. 6.1 pursuant to
Sec. 6.1.3.0 Development Existing as of the Effective Date of this Section is not
required to be included in the built -upon area calculations for any expansion to
such existing development. For purposes of this Section, "school facility" means
any building, structure or other facility used by the Wake County Public School
System or any qualified nonpublic school for educational purposes. For purposes
of this Section, "qualified nonpublic school' means a school having an enrollment
of 100 or more students, and that has one or more of the characteristics set out
in NCGS 115C-555.
E) Developments and Uses Exempted by State Law
Any use, development, or activity that has been specifically exempted by any
applicable state law from local regulations of the type established by this
Ordinance.
July 21, 2020 Article 6 - Page 2

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.4 / General
F) Complete Applications
All projects for which a complete application for site plan or master subdivision
plan was submitted and accepted by the Town on or before the effective date of
Sec. 6.1 shall be exempt from complying with all provisions of Sec. 6.1 if the
application is approved and development occurs in conformity with the permit
terms. However, the project is not exempt from the watershed regulations in
effect at the time of submittal.
6.1.4 General
A) Development Review
All development within the Watershed Protection Overlay Districts shall comply
with the watershed protection standards of Sec. 6.1 Watershed Protection
Overlay Districts, and shall demonstrate compliance concurrent with the
submission for approval of a Site Plan (major or minor) (Sec. 2.3.6), Master
Subdivision Plan (Sec. 2.3.7.D), or development plan for MEC-CZ, PUD-CZ, or
TND-CZ (Sec. 2.3.4), whichever occurs first.
B) Compliance Prior to Approval of Certificate of Occupancy
Prior to approval of a Final Plat (with respect to a subdivision), issuance of a
certificate of occupancy (with respect to a site plan), or commencement of a use,
in addition to meeting all other requirements of this Ordinance, all of the
watershed protection standards required by Sec. 6.1 must be met, all required
facilities must be in place, be operational, and be approved by the Environmental
Engineering Manager.
C) Definitions
Certain words in this Section have meanings that are specific for the purposes of
Sec. 6.1 Watershed Protection Overlay Districts. Such words shall be defined in
Article 12: Definitions.
6.1.5 Uses
The uses allowed within the Watershed Protection Overlay Districts shall be governed by
the use regulations permitted in the base zoning district within which the land is located
as set forth in the Sec. 4.2.2 Use Table.
6.1.6 Low -Density Development Option
A) General
All development within both the Primary Watershed Protection District and the
Secondary Watershed Protection District shall be designed to comply with the
standards of the low -density development option unless the Technical Review
Committee or Town Council, as applicable, approves a plan of development
pursuant to the procedures and standards for the high -density development
option, or unless a minor or major variance is approved pursuant to Sec. 6.1.13
Modifications by Variance.
B) Standards
All development under the low -density development option shall meet the
following standards:
1) Within the Primary Watershed Protection District
a) Built -Upon Area
Within the Primary Watershed Protection District, built -upon area
for a development shall not exceed 12% of the total lot(s) area. If
July 21, 2020 Article 6 - Page 3

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.6 / Low -Density Development Option
the development meets the requirement of Sec. 7.5.4.B.4.b
Exemptions, the built -upon area for the development shall be the
State -mandated maximum for low -density development (24%)
located within the Town's jurisdiction and outside of the Swift
Creek Watershed, and all storm -water conveyances from the
proposed structures shall be discharged directly to pervious
areas within the property, generally known as `downspout
disconnects'.
b) Vegetated Conveyances
Stormwater runoff from the development shall be transported
from the development by vegetated conveyances to the
maximum extent practicable provided that the standards of Sec.
7.5.4.B.4 are met.
c) Riparian Buffers for Perennial Streams
Within the Primary Watershed Protection District, a vegetative
buffer with a width of not less than 100 feet shall be maintained
along each side of a perennial stream (defined for purposes of
this Section in Article 12: Definitions). All buffers shall meet the
requirements of Sec. 6.1.11 Riparian Buffers.
d) Riparian Buffers for Intermittent Streams
Within the Primary Watershed Protection District, a vegetative
buffer with a width of not less than 50 feet shall be maintained
along each side of an intermittent stream (defined for purposes
of this Section in Article 12: Definitions). All buffers shall meet
the requirements of Sec. 6.1.11 Riparian Buffers.
e) Riparian Buffers for Lakes and Ponds That Are Part of a Natural
Drainage Way
Within the Primary Watershed Protection District, a vegetative
buffer with a width of not less than 50 feet shall be maintained
around any lake or pond, provided, however, that any lake or
pond that joins with a perennial stream shall have a vegetative
buffer width of not less than 100 feet around the lake or pond. All
buffers shall meet the requirements of Sec. 6.1.11 Riparian
Buffers.
2) Within the Secondary Watershed Protection District
a) Built -Upon Area, Vegetated Conveyances, and Riparian Buffers
for Intermittent Streams
Within the Secondary Watershed Protection District, the
standards for Built -Upon Area, Vegetated Conveyances and
Riparian Buffers for Intermittent Streams for the Low Density
Development option are the same as those in Sec. 6.1.6.B.1.a,
b., and d. for within the Primary Watershed Protection District. As
addressed below in Sec. 6.1.6.B.2.b and c, the difference in
standards in the Secondary Watershed Protection District
pertaining to a required vegetative buffer for perennial streams,
or a lake or pond that joins with a perennial stream, is that in the
Secondary Watershed Protection District the buffer may average
100 feet.
July 21, 2020 Article 6 - Page 4

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.7 / High -Density Development Option
b) Riparian Buffers for Perennial Streams
Within the Secondary Watershed Protection District, a vegetative
buffer with an average width of not less than 100 feet shall be
maintained along each side of a perennial stream. At no point
shall the buffer width along each side of a perennial stream be
less than 50 feet. All variable width buffers must be delineated
with monuments. All buffers shall meet the requirements of Sec.
6.1.11 Riparian Buffers.
c) Riparian Buffers for Lakes and Ponds That Are Part of a Natural
Drainage Way
Within the Second Watershed Protection District, a vegetative
buffer with a width of not less than 50 feet shall be maintained
around any lake or pond, provided, however, that any lake or
pond that joins with a perennial stream shall have a vegetative
buffer with an average width of not less than 100 feet maintained
along each side of the lake or pond. At no point shall the buffer
width around the lake or pond be less than 50 feet. All variable
width buffers must be delineated with monuments. All buffers
shall meet the requirements of Sec. 6.1.11 Riparian Buffers.
6.1.7 High -Density Development Option
Developers wishing to exceed the built -upon limitations for low -density development
within either the Primary Watershed Protection District or the Secondary Watershed
Protection District, as set forth in Sec. 6.1.6.B Standards, shall submit an appropriate
development plan per Sec. 2.3 Development Approvals, which shall meet the following
standards:
A) Within the Primary Watershed Protection District
1) Built -Upon Area
Within the Primary Watershed Protection District, all development shall
comply with the built -upon area limitations for the underlying district
found in Sec. 5.1 Table of Intensity and Dimensional Standards.
2) Vegetated Conveyances
Stormwater runoff from the development may be transported from the
development by vegetated conveyances to the maximum extent
practicable provided that the standards of Sec. 7.5.4.B.4 are met.
3) Stormwater Control Measures (SCMs)
All Stormwater control measures shall meet the requirements in Sec.
6.1.12 Stormwater Control Measures.
For water quality purposes, SCMs shall be used to collect and hold the
runoff from the first one-(1) inch of rainfall. This runoff volume shall be
released in two (2) to five (5) days in accordance with Sec. 6.1.12.
The post -development peak runoff rate shall be limited to the pre -
development peak runoff rate for the 1-year, 24-hour and the 10-year,
24-hour storms. Within the Upper Northwest Tributary to Williams Creek
basin and the Upper Beaver Creek basin (as shown on the Watershed
Protection Overlay District Map), the post -development peak runoff rate
shall also be limited to the pre -development peak runoff rate for the 25-
year, 24-hour storm. Additionally within those basins, runoff volume for
the 10-year, 24-hour storm shall be detained.
July 21, 2020 Article 6 - Page 5

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.7 / High -Density Development Option
Detention volumes stored for peak flow attenuation and volume control
shall drain within 72 hours to allow for subsequent storms.
A stormwater impact statement shall be prepared by a qualified
professional engineer registered to practice in North Carolina and
submitted with the initial application for any development or activity that
is not exempt from the requirements of Sec. 6.1 Watershed Protection
Overlay Districts showing the impacts from the development site to the
confluence point downstream where the area of the proposed
development is less than 10% of the total drainage area (the 10%
point"). The impact statement shall verify the effects of detention on the
downstream hydrographs to ensure that the peaks do not increase for a
given storm. The impact statement shall list the infrastructure (ditches,
culverts, etc.) and indicate all the adverse effects and impacts (to roads,
culverts, businesses, homes, lawns, etc.) from the development to the
10% point. If backwater from detention appears to be a problem, then the
impact statement shall also consider potential effects on upstream
properties for the 100-year, 24-hour storm.
4) Riparian Buffers for Perennial Streams
Within the Primary Watershed Protection District, a vegetative buffer of
not less than 100 feet shall be maintained along each side of a perennial
stream. All buffers shall meet the requirements in Sec. 6.1.11 Riparian
Buffers.
5) Riparian Buffers For Intermittent Streams
Within the Primary Watershed Protection District, a vegetative buffer with
a width of not less than 50 feet shall be maintained along each side of an
intermittent stream. All buffers shall meet the requirements in Sec. 6.1.11
Riparian Buffers.
6) Riparian Buffers For Lakes and Ponds That Are Part of a Natural
Drainage Way
Within the Primary Watershed Protection District a vegetative buffer with
a width of not less than 50 feet shall be maintained around any lake or
pond, provided, however, that any lake or pond that joins with a
perennial stream shall have a vegetative buffer width of not less than 100
feet around the lake or pond. All buffers shall meet the requirements of
Sec. 6.1.11 Riparian Buffers.
B) Within the Secondary Watershed Protection District
1) Built -Upon Area Vegetated Conveyances, SCMs and Riparian Buffers
For Intermittent Streams
Within the Secondary Watershed Protection District, the standards for
Built -Upon Area, Vegetated Conveyances, SCMs and Riparian Buffers
for Intermittent Streams for the High Density Development option are the
same as those in Sec. 6.1.7.A.1-3 and 5 for within the Primary
Watershed Protection District. As addressed below in Sec. 6.1.7.B.2 and
3, the difference in standards in the Secondary Watershed Protection
District pertaining to a required vegetative buffer for perennial streams,
or a lake or pond that joins with a perennial stream, is that in the
Secondary Watershed Protection District the buffer may average 100
feet.
July 21, 2020 Article 6 - Page 6

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.8 / Clustered Development Option
2) Riparian Buffers for Perennial Streams
Within the Secondary Watershed Protection District, a vegetative buffer
with an average width of not less than 100 feet shall be maintained along
each side of a perennial stream. At no point shall the buffer width along
each side of a perennial stream be less than 50 feet. All variable width
buffers must be delineated with monuments. All buffers shall meet the
requirements in Sec. 6.1.11 Riparian Buffers.
3) Riparian Buffers For Intermittent Streams
Within the Secondary Watershed Protection District, a vegetative buffer
with a width of not less than 50 feet shall be maintained along each side
of an intermittent stream. All buffers shall meet the requirements in Sec.
6.1.11 Riparian Buffers.
4) Riparian Buffers for Lakes and Ponds
Within the Secondary Watershed Protection District, a vegetative buffer
with a width of not less than 50 feet shall be maintained around any lake
or pond, provided, however, that any lake or pond that joins with a
perennial stream shall have a vegetative buffer with an average width of
not less than 100 feet maintained along each side of the lake or pond. At
no point shall the buffer width around the lake or pond be less than 50.
All variable width buffers must be delineated with monuments. All buffers
shall meet the requirements of Sec. 6.1.11 Riparian Buffers.
6.1.8 Clustered Development Option
Clustering of development is allowed under either the low -density development option or
the high -density development option under Sec. 2.3.4 Planned Development Districts, if
the development complies with the following additional standards:
A) Density
The overall density of the development shall not exceed the density allowed in
the underlying base zoning district found in Sec. 5.1 Table of Intensity and
Dimensional Standards (for the high -density development option) or the density
limitation of the low -density development option for the Primary or Secondary
Watershed Protection District;
B) Buiit-Upon Areas
Built -upon areas shall be designed and sited to minimize storm -water runoff
volume and velocity and the overall impact of storm -water runoff on receiving
streams; and
C) Piat Certificate
No plat shall be approved until the developer has caused the Final Plat to be
certified as follows:
"This is a clustered development pursuant to the Town of Apex Unified
Development Ordinance and may not be further subdivided or developed."
6.1.9 Definition of Built -Upon Area
For the purposes of complying with the standards and requirements of the Watershed
Protection Overlay Districts, calculation of the built -upon area within the proposed
development shall include, but not be limited to, all existing public and private streets,
proposed public streets, sidewalks, driveways, rooftops, parking lots, patios, and all other
impervious and partially impervious surfaces, including CABC and gravel within the
development. The water area of swimming pools and wooden slatted decks shall not be
included in the calculation of the built -upon area.
July 21, 2020 Article 6 - Page 7

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.10 / Calculation of Built -Upon Area
6.1.10 Calculation of Built -Upon Area
For the purposes of complying with the standards and requirements of the Watershed
Protection Overlay Districts, built -upon area calculations shall be made based on the total
acreage of built -upon area within a proposed development, divided by the total acreage
of the lot area. Density calculations for expansions shall be based on the total acreage of
built -upon area proposed for expansion, divided by the total acreage of lot area proposed
for expansion. A certificate of occupancy shall not be granted, nor shall any Final Plat be
recorded until a developer has caused all information pertaining to the percentage of the
built -upon area on a property to be shown on the Final Plat for the property.
6.1.11 Riparian Buffers
No new clearing, grading, or development shall take place nor shall any new building
permits be issued in violation of this section. No exemptions shall be permitted from this
section except for any use, development, or activity that has been specifically exempted
by any applicable state law from local regulations of the type established by this
Ordinance, or as provided in Sec. 6.1.11.J Exemption When Existing Uses are Present
and Ongoing. The following activities impacting Zone 1 and/or 2 of a riparian buffer in the
Jordan Lake Watershed or in the Neuse River Basin shall be administered by the NC
Department of Environmental Quality (NC DEQ): (i) activities conducted under the
authority of the State, the United States, multiple jurisdictions, or local units of
government, (ii) forest harvesting or (iii) agricultural activities.
A) Relationship to Resource Conservation Areas
The area of land on a property that is located within the riparian buffer may be
counted by the developer in accordance with Sec. 8.1.2 Resource Conservation
Area, when calculating the amount of RCA that is required on that property by
said Section.
B) Measurement of Riparian Buffers
The buffer width at a particular point along a stream shall be measured on a line
perpendicular to a vertical line marking the top of the stream bank to the
landward edge of the buffer. For ponds and lakes the buffer shall begin at the
normal water level and extend landward on a line perpendicular to a vertical line
marking the normal water level.
1) Additional Setbacks from Riparian Buffers
All buildings shall be set back 10 feet and all vehicular use areas shall be
set back five (5) feet from any riparian buffer.
C) Classification of Surface Waters on Property
Riparian buffers shall be maintained for all perennial and intermittent streams,
lakes, and ponds as set forth in Sec. 6.1.6 Low -Density Development Option,
and Sec. 6.1.7 High -Density Development Option of this Ordinance.
Classifications of surface waters as perennial or intermittent streams, as
ephemeral streams (a classification requiring no buffer under the requirements of
Sec. 6.1 Watershed Protection Overlay Districts), or as a lake or pond shall be as
indicated on the most recent version of the U.S.G.S. 1:24,000 (7.5 minute) scale
topographic maps, the most recent version of the soil survey map prepared by
the Natural Resources Conservation Service of the United States Department of
Agriculture, or a map approved by the Geographic Information Coordinating
Council and the Environmental Management Commission. In the event that there
exists a discrepancy among any of these maps that would affect a required
buffer, the classification requiring the most stringent buffer shall be applied.
However, an alternative map approved by the Environmental Management
Commission shall not be used for buffer delineation on projects that are existing
and ongoing within the meaning of Sec. 6.1.11.J.
July 21, 2020 Article 6 - Page 8

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.11 / Riparian Buffers
D) Appeals of Stream Classification
Because the Neuse River is protected by a state-wide buffer program, which is
managed by the NC DEQ, the authority to hear appeals of stream classifications
for that portion of the Town of Apex and its ETJ that lies within the Neuse River
Basin, which shall be indicated on the Town of Apex's "Watershed Protection
Overlay District Map," rests within the sole jurisdiction of the NC DEQ unless the
Town of Apex is delegated the authority to maintain its Neuse Buffer Program
locally. Therefore, appeals of stream classifications shall be handled in the
following manner:
1) Within the Neuse River Basin
When any affected party within the Neuse River Basin believes that the
maps have inaccurately depicted surface waters, he or she shall consult
the NC DEQ as set forth in 15A N.C.A.C. 2B.0233(3).
In the event that the Town of Apex is delegated the authority to maintain
Neuse buffers locally, the Environmental Engineering Manager shall
make decisions and interpretations regarding stream classifications in
accordance with all applicable state criteria and the best available
scientific information. Any disputes over such on -site determination shall
be referred to the Director of the NC DEQ 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.
2) Within the Jordan Lake Watershed
When any affected party within the Jordan Lake Watershed believes that
the maps have inaccurately depicted surface waters, the Environmental
Engineering Manager, or his or her designee, shall make decisions and
interpretations regarding stream classifications in accordance with the
protocol in Sec. 6.1.11.D.4 and all applicable state criteria and the best
available scientific information. Any disputes over such on -site
determination made by the Town of Apex shall be referred to the Director
of the NC DEQ 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.
3) In All Remaining Areas Within Both the Primary Watershed Protection
District and the Secondary Watershed Protection District
In all remaining areas, the Environmental Engineering Manager, or his or
her designee, shall make decisions and interpretations regarding stream
classifications in accordance with the protocol in Sec. 6.1.11.D.4 and all
applicable state criteria and the best available scientific information. Any
person aggrieved by a decision of the Town regarding such on -site
determination may appeal such decision to the Board of Adjustment.
4) Exemption Based On On -Site Determination
A Town representative who makes an on -site stream classification shall
have successfully completed the NC DEQ's Surface Water Identification
Training Certification course, its successor, or other equivalent training
curriculum approved by the NC DEQ. The specific origination point of a
stream shall be established using the latest version of the Division
publication, Methodology for Identification of Intermittent and Perennial
Streams and Their Origins, available at https://deq.nc.gov/about/
divisions/water-resources/water-resources-permits/wastewater-branch/
401-wetlands-buffer-permits/401-application-forms-help-documents or
from the NC DEQ — 401 and Buffer Permitting Branch, or its successor.
July 21, 2020 Article 6 - Page 9

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.11 / Riparian Buffers
Surface waters that appear on the maps used to determine surface water
classifications shall not be subject to the requirements of Sec. 6.1.11 if a
site evaluation reveals any of the following cases:
a) Man-made ponds and lakes that are not part of a natural
drainage way that is classified in accordance with 15A NCAC 2B
.0100, including ponds and lakes created for animal watering,
irrigation, or other agricultural uses. A pond or lake is part of a
natural drainage way when it is fed by an intermittent or
perennial stream or when it has a direct discharge point to an
intermittent or perennial stream.
b) Ephemeral streams.
c) The absence on the ground of a corresponding intermittent or
perennial stream, lake, reservoir, or pond.
d) Ditches or man-made water conveyances, other than modified
natural streams.
E) Diffuse Fiow Requirement
Diffuse flow of runoff shall be maintained in the riparian buffer by dispersing
concentrated flow and reestablishing vegetation.
1) Concentrated runoff from new ditches or manmade conveyances shall
be converted to diffuse flow before the runoff enters the riparian buffer.
2) Periodic corrective action to restore diffuse flow shall be taken if
necessary to impede the formation of erosion gullies.
3) As set out in Secs. 6.1.11.E and GA of this Ordinance, Zones of the
Riparian Buffer and Table of Uses respectively, no new stormwater
conveyances are allowed through the buffers except for those specified
in the Table of Uses, Sec. 6.1.11.G.1 of this Ordinance.
F) Zones of the Riparian Buffer
1) Perennial Streams: The protected riparian buffer for perennial streams
shall have three (3) zones as follows:
a) Zone 1 shall consist of a vegetated area that is undisturbed
except for uses provided in Table of Uses 6.1.11.G.1. Zone 1
shall begin at the most landward limit of the top of bank and
extend landward a distance of 30 feet on all sides of the surface
water.
b) Zone 2 shall consist of a vegetated area that is undisturbed
except for uses provided in Table of Uses 6.1.11.G.1. Zone 2
shall begin at the outer edge of Zone 1 and extend landward a
distance of 20 feet. The combined width of Zones 1 and 2 shall
be 50 feet on all sides of the surface water.
c) Zone 3 shall consist of a vegetated area that is undisturbed
except for the same uses provided in Table of Uses 6.1.11.G.1
that are permitted in Zone 2. In the Primary Watershed
July 21, 2020 Article 6 - Page 10

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.11 / Riparian Buffers
Protection District, Zone 3 shall begin at the outer edge of Zone
2 and extend landward a distance of 50 feet. The combined
width of Zones 1, 2 and 3 in the Primary Watershed Protection
District shall be 100 feet on all sides of the surface water. In the
Secondary Watershed Protection District, Zone 3 shall begin at
the outer edge of Zone 2 and extend landward an average
distance of 50 feet. The combined width of Zones 1, 2 and 3 in
the Secondary Watershed Protection District shall average 100
feet on all sides of the surface water.
2) Intermittent Streams: The protected riparian buffer for intermittent
streams shall have two (2) zones as follows:
a) Zone 1 shall consist of a vegetated area that is undisturbed
except for uses provided in Table of Uses 6.1.11.G.1. Zone 1
shall begin at the most landward limit of the top of bank and
extend landward a distance of 30 feet on all sides of the surface
water.
b) Zone 2 shall consist of a vegetated area that is undisturbed
except for uses provided in Table of Uses 6.1.11.G.1. Zone 2
shall begin at the outer edge of Zone 1 and extend landward a
distance of 20 feet. The combined width of Zones 1 and 2 shall
be 50 feet on all sides of the surface water.
3) Lakes and Ponds: The protected riparian buffer for lakes and ponds that
are part of a natural drainage way shall have Zones 1 and 2 as described
below, unless the lake or pond joins with a perennial stream in which
case the riparian buffer shall have Zones 1, 2, and 3 as follows:
a) Zone 1 shall consist of a vegetated area that is undisturbed
except for uses provided in Table of Uses 6.1.11.G.1. Zone 1
shall begin at the most landward limit of the top of bank and
extend landward a distance of 30 feet on all sides of the surface
water.
b) Zone 2 shall consist of a vegetated area that is undisturbed
except for uses provided in Table of Uses 6.1.11.G.1. Zone 2
shall begin at the outer edge of Zone 1 and extend landward a
distance of 20 feet. The combined width of Zones 1 and 2 shall
be 50 feet on all sides of the surface water.
c) Zone 3, where a lake or pond joins a perennial stream in the
Primary Watershed Protection District, shall consist of a
vegetated area that is undisturbed except for the same uses
provided in Table of Uses 6.1.11.G.1 that are permitted in Zone
2. Zone 3 shall begin at the outer edge of Zone 2 and extend
landward a distance of 50 feet. The combined width of Zones 1,
2 and 3 shall be 100 feet on all sides of the surface water. Where
a lake or pond joins a perennial stream in the Secondary
Watershed Protection District, Zone 3 shall begin at the outer
edge of Zone 2 and extend landward an average distance of 50
feet. The combined width of Zones 1, 2 and 3 shall average 100
feet on all sides of the surface water.
July 21, 2020 Article 6 - Page 11

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.11 / Riparian Buffers
G) Uses Permitted Within the Riparian Buffer
This Section shall apply to activities conducted within, or outside of with
hydrologic impacts in violation of the diffuse flow requirements set out in Sec.
6.1.11.E upon, a riparian buffer regulated by this Section. The Town shall issue
an approval for new development only if the proposed development will avoid
impacts to riparian buffers regulated by this Section or, if an impact to any such
buffer is proposed, in accordance with the requirements in Sec. 6.1.11.G.1 or 2
below, as applicable, the applicant has demonstrated that: (i) the proposed
activity is exempt, (ii) the proposed activity is allowable or allowable with
mitigation, and the requirements of this Section for proceeding such designated
use have been met, or (iii) a variance authorizing the proposed activity has been
obtained.
1) Within Zones 1 and 2 of the Neuse River Basin
Riparian buffers within the Neuse River Basin shall be maintained and
protected per 15A NCAC 2B.0233 Neuse River Basin: Nutrient Sensitive
Waters Management Strategy: Protection and Maintenance of Existing
Riparian Buffers. Development activity may take place within Zone 1 or
Zone 2 of a riparian buffer provided that the landowner has one of the
following:
a) For any use, other than one specified as exempt, an
authorization certificate that documents that the NC DEQ has
approved an allowable use, or an allowable use with mitigation,
as described in 15A NCAC 2B.0233 Neuse River Basin: Nutrient
Sensitive Waters Management Strategy: Protection and
Maintenance of Existing Riparian of Existing Riparian Buffers.
b) An opinion from the NC DEQ that vested rights has been
established for that activity.
c) A letter from the NC DEQ documenting that a variance has been
granted for the proposed activity.
2) Within Zone 3 of a Riparian Buffer in the Neuse River Basin and All
Other Remaining Areas of Both the Primary Watershed Protection
District and the Secondary Watershed Protection District
Within all areas, other than Zones 1 and 2 or the Neuse River Basin, the
following land disturbing activities and uses shall be permitted within any
required riparian buffer:
a) Those activities and uses that are specifically listed as exempt,
allowable, or allowable with mitigation in the Table of Uses
shown below in Table 6.1.11.G.1. The requirements for each
category are given in Sec. 6.1.11.G.4 below.
b) All uses not categorized as exempt, allowable, or allowable with
mitigation are considered prohibited and may not proceed within
the riparian buffer or outside the buffer if the use would impact
the buffer, unless a variance is granted pursuant to Sec. 6.1.13
below.
July 21, 2020 Article 6 - Page 12

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.11 / Riparian Buffers
Allowable
Use
Exempt*•
.•-*
with
Mitigation*
Access trails: Pedestrian access trails leading to the surface
water, docks, fishing piers, boat ramps and other water
dependent activities:
• Pedestrian access trails that are restricted to the
X
minimum width practicable and do not exceed 4 feet in
width of buffer disturbance, and provided that installation
and use does not result in removal of trees as defined in
this Ordinance and no impervious surface is added to
the riparian buffer
• Pedestrian access trails that exceed 4 feet in width of
X
buffer disturbance, the installation or use results in
removal of trees as defined in this Ordinance or
impervious surface is added to the riparian buffer
Airport facilities:
• Airport facilities that impact equal to or less than 150
X
linear feet or one-third of an acre of riparian buffer
• Airport facilities that impact greater than 150 linear feet
X
or one-third of an acre of riparian buffer
• Activities necessary to comply with FAA requirements
X
(e.g. radar uses or landing strips)'
Archaeological activities
X
Bridges
X
Canoe access provided that installation and use does not
X
result in removal of trees as defined in this Ordinance and
no impervious surface is added to the buffer
Dam maintenance activities:
• Dam maintenance activities that do not cause additional
X
buffer disturbance beyond the footprint of the existing
dam or those covered under the U.S. Army Corps of
Engineers Nationwide Permit No. 3
• Dam maintenance activities that do cause additional
X
buffer disturbance beyond the footprint of the existing
dam or those not covered under the U.S. Army Corps of
Engineers Nationwide Permit No.3
Drainage ditches, roadside ditches and stormwater
conveyances through riparian buffers:
• New stormwater flows to existing drainage ditches,
X
roadside ditches, and stormwater conveyances provided
flows do not alter or result in the need to alter the
conveyance and are managed to minimize the
sediment, nutrients and other pollution that convey to
water bodies
• High flow bypass from SCMs
X
• Realignment of existing roadside drainage ditches
X
retaining the design dimensions, provided that no
additional travel lanes are added and the minimum
required roadway typical section is used based on traffic
and safety considerations
• New or altered drainage ditches, roadside ditches and
X
stormwater outfalls provided that a stormwater control
measure is installed to control nutrients and attenuate
July 21, 2020 Article 6 - Page 13

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.11 / Riparian Buffers
Allowable
-
- •t*
Allowable*
with
Mitiga
flow before the conveyance discharges through the
riparian buffer
• New drainage ditches, roadside ditches and stormwater
X
conveyances applicable to linear projects that do not
provide a stormwater control measure due to
topography constraints provided that other practicable
SCMs are employed
Drainage of a pond in a natural drainage way provided that
X
a new riparian buffer that meets the requirements of Sec.
6.1.11.E and F of this Ordinance is established adjacent to
the new channel.
Driveway crossings of streams and other surface waters
subject to this Rule:
• 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
• Driveway crossings on single-family residential lots that
X
disturb greater than 25 linear feet or 2,500 square feet
of riparian buffer
• In a subdivision that cumulatively disturb equal to or less
X
than 150 linear feet or one-third of an acre of riparian
buffer
• In a subdivision that cumulatively disturb greater than
X
150 linear feet or one-third of an acre of riparian buffer
Driveway impacts other than crossing of a stream or other
X
surface waters subject to this Rule
Fences:
• Fences provided that disturbance is minimized and
X
installation does not result in removal of trees as defined
in this Ordinance
• Fences provided that disturbance is minimized and
X
installation results in removal of trees as defined in this
Ordinance
Fertilizer application: one-time application to establish
X
vegetation
Forest harvesting — see 15A NCAC 2B .0267(14) for
requirements6
Grading and revegetation in Zones 2 and 3 provided that
X
diffuse flow and the health of existing vegetation in Zone 1 is
not compromised and disturbed areas are stabilized until
they are revegetated
Greenway/hiking trails designed, constructed and maintained
X
to maximize nutrient removal and erosion protection,
minimize adverse effects on aquatic life and habitat, and
protect water quality to the maximum extent practical
Historic preservation
X
Maintenance access on modified natural streams: a grassed
X
travel way on one side of the water body when less
impacting alternatives are not practical. The width and
specifications of the travel way shall be only that needed for
July 21, 2020 Article 6 - Page 14

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.11 / Riparian Buffers
Allowable
-
- •t*
Allowable*
with
Mitiga
equipment access and operation. The travel way shall be
located to maximize stream shading
Mining activities:
• Mining activities that are covered by the Mining Act
X
provided that new riparian buffers that meet the
requirements of Sec. 6.1.11.E and F of this Rule are
established adjacent to the relocated channels
• Mining activities that are not covered by the Mining Act
X
OR where new riparian buffers that meet the
requirements of Sec. 6.1.11.E and F of this Rule are not
established adjacent to the relocated channels
• Wastewater or mining dewatering wells with approved
X
NPDES permit
• Piping of a stream allowed under a permit issued by the
X
United States Army Corp of Engineers
Playground equipment:
• Playground equipment on single-family lots provided
X
that installation and use does not result in removal of
vegetation
• Playground equipment installed on lands other than
X
single-family lots or that requires removal of vegetation
Ponds created by impounding streams and not used as
SCMs:
• New ponds provided that a riparian buffer that meets the
X
requirements of Sec. 6.1.11.E. and F of this Ordinance
is established adjacent to the pond
• New ponds where a riparian buffer that meets the
X
requirements of Sec. 6.1.11.E and F of this Ordinance is
NOT established adjacent to the pond
Protection of existing structures, facilities and stream banks
X
when this requires additional disturbance of the riparian
buffer or the stream channel
Railroad impacts other than crossings of streams and other
X
surface waters subject to this Ordinance
Railroad crossings of streams and other surface waters
subject to this Ordinance:
• Railroad crossings that impact equal to or less than 40
X
linear feet of riparian buffer
• 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
• Railroad crossings that impact greater than 150 linear
X
feet or one-third of an acre of riparian buffer
Recreational and accessory structures in Zones 2 and 3:
• Sheds and gazebos in Zones 2 and 3, except along
perennial waters in Neuse River Basin where high
density development option is utilized
o Total footprint less than or equal to 150 square
feet per lot
X
o Total footprint greater than 150 square feet per
lot
X
July 21, 2020 Article 6 - Page 15

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.11 / Riparian Buffers
Allowable
-
- •t*
Allowable*
with
Mitiga
• Wooden slatted decks and associated steps, provided
the use meets the requirements of Sec. 6.1.11.E and F
of this Ordinance:
o Deck at least eight (8) feet in height and no
vegetation removed from Zone 1
X
o Deck less than eight (8) feet in height or
vegetation removed from Zone 1
X
Removal of previous fill or debris provided that diffuse flow
X
is maintained and vegetation is restored
Road impacts other than crossings of streams and other
X
surface waters subject to this Ordinance
Road crossings of streams and other surface waters subject
to this Ordinance:
• Road crossings that impact equal to or less than 40
X
linear feet of riparian buffer
• Road crossings that impact greater than 40 linear feet
X
but equal to or less than 150 linear feet or one-third of
an acre of riparian buffer
• Road crossings that impact greater than 150 linear feet
X
or one-third of an acre of riparian buffer
Road relocation: Relocation of existing private access roads
associated with public road projects where necessary for
public safety:
• Less than or equal to 2,500 square feet of buffer impact
X
• Greater than 2,500 square feet of buffer impact
X
Scientific studies and stream gauging
X
Stormwater Control Measures (SCMs):
• Wet detention, bioretention, and constructed wetlands in
X
Zones 2 and 3 if diffuse flow of discharge is provided
into Zone 1
• Wet detention, bioretention, and constructed wetlands in
X
Zone 1
Streambank or shoreline stabilization
X
Temporary roads, provided that the disturbed area is
restored to pre -construction topographic and hydrologic
conditions immediately after construction is complete and
replanted immediately with comparable vegetation, except
that tree planting may occur during the dormant season. A
one-time application of fertilizer may be used to establish
vegetation. At the end of five (5) years the restored buffer
shall comply with the restoration criteria in Item (8) of Rule
15A NCAC 02B.0268:
• Less than or equal to 2,500 square feet of buffer
X
disturbance
• Greater than 2,500 square feet of buffer disturbance
X
• Associated with culvert installation or bridge
X
construction or replacement
Temporary sediment and erosion control devices, provided
that the disturbed area is restored to pre -construction
topographic and hydrologic conditions immediately after
construction is complete and replanted immediately with
July 21, 2020 Article 6 - Page 16

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.11 / Riparian Buffers
Allowable
-
- •t*
Allowable*
with
Mitiga
comparable vegetation, except that tree planting may occur
during the dormant season. A one-time application of
fertilizer may be used to establish vegetation. At the end of
five (5) years the restored buffer shall comply with the
restoration criteria in Item (8) of Rule 15A NCAC 02B.0268:
• In Zones 2 and 3 provided ground cover is established
X
within timeframes required by the Sedimentation and
Erosion Control Act, vegetation in Zone 1 is not
compromised, and runoff is released as diffuse flow in
accordance with Sec. 6.1.11.E of this Ordinance
• In Zones 1, 2 and 3 to control impacts associated with
uses approved by the local government or that have
X
received a variance, provided that sediment and erosion
control for upland areas is addressed, to the maximum
extent practical, outside the buffer
• In -stream temporary erosion and sediment control
measures for work within a stream channel that is
X
authorized under Sections 401 and 404 of the Federal
Water Pollution Control Act
• In -stream temporary erosion and sediment control
measures for work within a stream channel
X
Utility, electric, aerial, perpendicular crossings of streams
and other surface waters subject to this Ordinance2,3,5:
• Disturb equal to or less than 150 linear feet of riparian
X
buffer
• Disturb greater than 150 linear feet of riparian buffer
X
Utility, electric, aerial, other than perpendicular crossings5:
• I mpacts in Zones 2 and 3
X
• Impacts in Zone 12,3
X
Utility, electric, underground, perpendicular crossings3,4,5:
• Disturb less than or equal to 40 linear feet of riparian
X
buffer
• Disturb greater than 40 linear feet of riparian buffer
X
Utility, electric, underground, other than perpendicular
crossings4:
• Impacts in Zones 2 and 3
X
• Impacts in Zone 1'
X
Utility, non -electric, perpendicular crossings of streams and
other surface waters subject to this Ordinance3,5:
• Disturb equal to or less than 40 linear feet of riparian
X
buffer with a maintenance corridor equal to or less than
10 feet in width
• Disturb equal to or less than 40 linear feet of riparian
X
buffer with a maintenance corridor greater than 10 feet
in width
• Disturb greater than 40 linear feet but equal to or less
X
than 150 linear feet of riparian buffer with a maintenance
corridor equal to or less than 10 feet in width
• Disturb greater than 40 linear feet but equal to or less
X
than 150 linear feet of riparian buffer with a maintenance
corridor greater than 10 feet in width
July 21, 2020 Article 6 - Page 17

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.11 / Riparian Buffers
Allowable
-
- •t*
Allowable*
with
Mitiga
• Disturb greater than 150 linear feet of riparian buffer
X
Utility, non -electric, other than perpendicular crossings4,5:
• I mpacts in Zones 2 and 3
X
• Impacts in Zone 1'
X
Vegetation management:
• Emergency fire control measures provided that
X
topography is restored
• Mowing or harvesting of plant products in Zones 2 and 3
X
• Planting vegetation to enhance the riparian buffer
• Pruning forest vegetation provided that the health and
X
function of the forest vegetation is not compromised
X
• Removal of individual trees which are in danger of
causing damage to dwellings, other structures or human
X
life, or are imminently endangering stability of the
streambank
• Removal of individual trees which are dead, diseased or
damaged
X
• Removal of poison ivy
X
• Removal of invasive exotic vegetation as defined in:
X
Smith, Cherri L. 1998. Exotic Plant Guidelines. Dept. of
Environment and Natural Resources. Division of Parks
and Recreation. Raleigh, NC. Guideline #30
Vehicular access roads leading to water -dependent
X
structures as defined in 15A NCAC 02B .0202, provided
they do not cross the surface water and have minimum
practicable width not exceeding ten feet
Water dependent structures as defined in 15A NCAC 02B
X
.0202 where installation and use result in disturbance to
riparian buffers
Water supply reservoirs:
• New reservoirs where a riparian buffer that meets the
X
requirements of Sec. 6.1.11.E and F of this Ordinance is
established adjacent to the reservoir
• New reservoirs where a riparian buffer that meets the
X
requirements of Sec. 6.1.11.E and F of this Ordinance is
not established adjacent to the reservoir
Water wells:
• Single-family residential water wells
X
• All other water wells
X
Wetland, stream and buffer restoration that results in
impacts to the riparian buffers
• Wetland, stream and buffer restoration that requires
X
Division approval for the use of a 401 Water Quality
Certification
• Wetland, stream and buffer restoration that does not
X
require Division approval for the use of a 401 Water
Quality Certification
Wildlife passage structures
X
*To qualify for the designation indicated in the column header, an activity must adhere to the limitations
defined for it in a given listing as well as the requirements established in Sec. 6.1.11.G.3 of this
Ordinance.
July 21, 2020 Article 6 - Page 18

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.11 / Riparian Buffers
'Provided that:
- No heavy equipment is used in Zone 1.
- Vegetation in undisturbed portions of the buffer is not compromised.
- Felled trees are removed by chain.
- No permanent felling of trees occurs in protected buffers or streams.
- Stumps are removed only by grinding.
- At the completion of the project the disturbed area is stabilized with native vegetation.
-Zones 1, 2, and 3 meet the requirements of Sec. 6.1.11.E and F of this Ordinance.
z Provided that, in Zone 1 of the buffer, all of the following SCMs 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 Town.
- 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.
3 Provided that poles or towers shall not be installed within 10 feet of a water body unless the Town
completes a no practical alternatives evaluation.
4 Provided that, in Zone 1 of the buffer, all of the following SCMs for underground utility lines are used. If
all of these SCMs are not used, then the underground utility line shall require a no practical alternatives
evaluation by the Town of Apex.
- 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.
- 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.
5Perpendicular crossings are those that intersect the surface water at an angle between 75 degrees and
105 degrees.
6Requirements are administered by the NC DEQ in Zones 1 and 2 in the Jordan Lake Watershed and in
Zones 1 and 2 in the Neuse River Basin, but the Town shall be notified in advance of forest harvesting
activity in those buffer areas. Requirements are administered by the Town in Zone 3 in the Jordan Lake
Watershed and the Neuse River Basin and in Zones 1, 2 and 3 in the Cape Fear River Basin outside of
the Jordan Lake Watershed. The requirements in 15A NCAC 2B .0267(14) that are applicable to Zone 2
shall also apply to Zone 3.
3) Requirements for Categories of Uses
Uses designated as exempt, allowable, and prohibited in Sec. 6.1.11.G.1
Uses Permitted Within the Riparian Buffer shall have the following
requirements:
July 21, 2020 Article 6 - Page 19

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.11 / Riparian Buffers
a) EXEMPT. Uses designated as exempt are allowed within the
riparian buffer without written authorization from the Town of
Apex. Exempt uses shall be designed, constructed and
maintained to minimize soil disturbance and to provide the
maximum water quality protection practicable, including
construction, monitoring, and maintenance activities.
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 Sec. 6.1.11.G.4
Determination of "No Practical Alternatives". This includes
construction, monitoring, and maintenance activities. These uses
require written authorization from the Town of Apex.
c) ALLOWABLE WITH MITIGATION. Uses designated as allowable
may proceed within the riparian buffer provided that there are no
practical alternatives to the requested use pursuant to Sec.
6.1.11.G.4 Determination of "No Practical Alternatives" and an
appropriate mitigation strategy has been approved pursuant to
Sec. 6.1.14 below. These uses require written authorization from
the Town of Apex.
4) Determination of "No Practical Alternatives"
Persons who wish to undertake uses designated as allowable, or
allowable with mitigation, in Table of Uses 6.1.11.G.1 shall submit a
request for a "no practical alternatives" determination to the
Environmental Engineering Manager. The applicant shall certify that the
project meets the criteria identified in this Sec. 6.1.11.G.4.a.i-iii. The
Town of Apex shall grant an Authorization Certificate upon making a "no
practical alternatives" determination. The Town may attach conditions to
the Authorization Certificate that support the purpose, spirit, and intent of
Sec. 6.1.11. The procedure for making a decision whether to grant an
Authorization Certificate shall be as follows:
a) For any request for a "no practical alternatives" determination for
which the applicant has made a complete submission of all
information set forth in Sec. 6.1.11.G.4.c, the Town of Apex shall
review the entire project and make a finding of fact as to whether
the following criteria have been met in support of such
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.
July 21, 2020 Article 6 - Page 20

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.11 / Riparian Buffers
b) Requests for a "no practical alternatives" determination shall be
reviewed and either approved or denied within 60 days of receipt
of a complete submission that includes the information set forth
in Sec. 6.1.11.G.4.c. Failure to issue an approval or denial within
60 days of an applicant's submission shall constitute a
determination that the applicant has demonstrated "no practical
alternatives" and an Authorization Certificate shall be issued to
the applicant unless one of the following occurs:
(i) The applicant agrees, in writing, to a longer period;
(i i) The Town of Apex determines that the applicant has
failed to furnish requested information necessary to the
Town's decision;
(iii) The final decision is made pursuant to a public hearing;
or
(iv) The applicant refuses access to its records or premises
for the purpose of gathering information necessary for
the Town's decision. The Town may attach conditions to
the Authorization Certificate that support the purpose,
spirit and intent of the riparian buffer protection program.
c) Complete submissions shall include at least the following
information in support of a "no practical alternatives"
determination:
(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;
(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;
(vi) Plans for any best management practices proposed to
be used to control the impacts associated with the
activity; and
(vii) The applicant's certification that the project meets all of
the criteria in Sec. 6.1.11.G.4.a.i-iii for finding "no
practical alternatives."
July 21, 2020 Article 6 - Page 21

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.11 / Riparian Buffers
d) Any person aggrieved by a decision of the Environmental
Engineering Manager pertaining to issuance of an Authorization
Certificate for a riparian buffer within the Jordan Lake Watershed
may appeal such decision in writing to the Director of the NC
DEQ, c/o the 401 Oversight Express Permitting Unit, or its
successor. The Director's decision is subject to review as
provided in G.S. 150B Articles 3 and 4. Appeals of an
Authorization Certificate decision by the Environmental
Engineering Manager pertaining to a riparian buffer that is not
within the Jordan Lake Watershed shall be to the Town of Apex
Board of Adjustment.
5) 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 an Authorization Certificate pursuant to Sec. 6.1.11.G.4;
and
b) Obtain approval for a mitigation proposal pursuant to Sec.
6.1.14.
H) Minimization of Impact
All uses and activities that are permitted within any required riparian buffer shall
be designed to minimize impact on water quality.
Notification on Site Plan and Subdivision Plan and Recording of
Information
Where required, stream buffers shall be shown on all site plans and subdivision
plans approved pursuant to Sec. 6.1.4 of this Ordinance. A certificate in the form
established in the Town of Apex Design and Development Manual shall be
lettered on the face of the site plan or the recorded subdivision map. Prior to
approval of a Final Plat (with respect to a subdivision), issuance of a certificate of
occupancy (with respect to a site plan), or commencement of a use, a developer
shall first cause all information pertaining to required riparian buffers to be shown
on the Final Plat for the property.
J) Exemption When Existing Uses are Present and Ongoing
This Sec. 6.1.11 shall not apply to uses that are existing and ongoing; however,
this Section shall apply at the time an existing, ongoing use is changed to
another use. Change of use shall mean the initiation of any activity that does not
meet either of the following criteria for existing, ongoing activity:
1) It was present within the riparian buffer as of the effective date of this
Sec. 6.1.11 and has continued to exist since that time. Existing uses
shall include agriculture, buildings, industrial facilities, commercial areas,
transportation facilities, maintained lawns, utility lines and on -site
sanitary sewage systems, any of which involve specific, periodic
management of vegetation or displacement of vegetation by structures or
regular activity. Only the portion of the riparian buffer occupied by the
footprint of the existing use is exempt from Sec. 6.1.11. Change of
ownership is not a change of use. Activities necessary to maintain uses
are allowed provided that the site remains similarly vegetated, no
impervious surface is added within the required buffer area where it did
not previously exist as of the effective date of this Section, and existing
July 21, 2020 Article 6 - Page 22

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.12 / Stormwater Control Measures (SCMs)
diffuse flow is maintained. Grading and revegetating Zones 2 and 3 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.
2) Projects or proposed development that are determined by the Town to
meet at least one of the following criteria:
a) Project requires a 401 Certification/404 Permit and these were
issued prior to the effective date of Sec. 6.1.11;
b) Projects that require a state permit, such as landfills, NPDES
wastewater discharges, land application of residuals and road
construction activities, have begun construction or are under
contract to begin construction and had received all required state
permits and certifications prior to the effective date of Sec.
6.1.11;
c) Projects that are being reviewed through Clean Water Act
Section 404/National Environmental Policy Act Merger 01
Process (published by the US Army Corps of Engineers and
Federal Highway Administration, 2003) or its immediate
successor and that have reached agreement with DEQ on
avoidance and minimization by the effective date of Sec. 6.1.11;
or
d) Projects that are not required to be reviewed by the Clean Water
Act Section 404/National Environmental Policy Act Merger 01
Process (published by the US Army Corps of Engineers and
Federal Highway Administration, 2003) or its immediate
successor if a Finding of No Significant Impact has been issued
for the project and the project has the written approval of the
Town prior to the effective date of Sec. 6.1.11.
6.1.12 Stormwater Control Measures (SCMs)
A) Professional Design
All SCMs and any alterations thereof shall be designed by a North Carolina
registered professional with qualifications appropriate for the type of system
required and shall be in accordance with the NC DEQ Stormwater Design
Manual and the Town of Apex Standard Specifications and Standard Details;
these registered professionals are defined as professional engineers, landscape
architects (to the extent that G.S. Chapter 89A allows), and land surveyors (to
the extent that the design represents incidental drainage within a subdivision, as
provided in G.S. 89C-3(7)).
B) Design, Location, and Landscaping of SCMs
The following specific design criteria shall be met by these systems:
1) Specific requirements for SCMs shall be in accordance with the NC DEQ
Stormwater Design Manual and the Town of Apex Standard
Specifications and Standard Details;
2) SCMs shall be designed to remove 85% of total suspended solids in the
permanent pool and store runoff from a one-(1) inch rainfall from the site
above the permanent pool;
July 21, 2020 Article 6 - Page 23

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.12 / Stormwater Control Measures (SCMs)
3) The designed runoff storage volume shall be above the permanent pool;
4) The discharge rate from these systems following the one- (1) inch rainfall
design storm shall be such that the runoff does not draw down to the
permanent pool level in less than two (2) days and that the pond is
drawn down to the permanent pool level within at least five (5) days;
5) The mean permanent pool depth shall be a minimum of three (3) feet;
6) The inlet structures shall be designed to minimize turbulence using
baffles or other appropriate design features;
7) Retention basins, detention basins, headwalls, outlet structures, concrete
flow channels, rip rap channels, and other drainage improvements shall
be screened with plant material and/or berms and situated in the least
visible location or, if visible, incorporated into the natural curves of the
land;
8) Detention and retention basin embankments and the detention or
retention basin itself shall be extensively landscaped with wet tolerant
plant materials with the intention of re-creating a seasonal high water wet
eco-structure; a list of guidelines for preferred plant materials can be
found in the NC DEQ Stormwater Design Manual;
9) Detention or retention facilities shall be sized to accommodate the future
growth of vegetation planted in the basin; and
10) In lieu of peripheral fencing, detention and retention basin edges shall be
contoured and shaped to form low angles at primary water line thereby
ensuring greater pedestrian safety.
11) All supporting calculation submittals for each proposed SCM shall
include and comply with the latest version of the NC DEQ SCM
supplement.
C) Identification on Site Plan/Subdivision Plan/Final Plat of SCM
A legal description of the area containing the SCM shall be delineated on the site
plan (major or minor), subdivision plan, and recorded Final Plat along with any
easements necessary for access to the SCM. The described area shall include
sufficient area to perform inspections. The described area shall include, but is not
limited to, the detention pond, vegetative filters, all pipes and water control
structures, berms and dikes. Prior to approval of a Final Plat (with respect to a
subdivision), issuance of a certificate of occupancy (with respect to a site plan),
or commencement of a use, a developer shall first cause all information
pertaining to required SCMs to be shown and certified by the Environmental
Engineering Manager on the Final Plat for the property. Such final, approved plat
to be recorded shall also contain the following language: "All future development
or redevelopment activities on this property shall be consistent with this approved
plan. No changes to this plan shall be permitted without the Town of Apex's prior
written approval."
D) Operation and Maintenance Agreement
The owner shall have an operation and maintenance agreement for all SCMs
approved by the Environmental Engineering Manager prior to approval of a Final
Plat (with respect to a subdivision) or issuance of a certificate of occupancy (with
July 21, 2020 Article 6 - Page 24

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.12 / Stormwater Control Measures (SCMs)
respect to a site plan) for any development upon which a SCM is required. The
operation and maintenance agreement, which must be executed by the owner
and shall be binding on all subsequent owners of the site, portions of the site,
and lots or parcels served by the SCM, shall clearly indicate (i) what operation
and maintenance actions are needed and what specific quantitative standards
will be used for determining when those actions need to be taken, (ii) the steps
that will be taken for restoring a SCM if a failure occurs, and (iii) how cost will be
apportioned among lot owners served. The operation and maintenance
agreement must be recorded in the Wake County Register of Deeds office and
referenced on the Final Plat. A copy of the recorded operation and maintenance
agreement shall be provided to the Environmental Engineering Manager within
14 days following its recordation.
E) Changes or Amendments to Pians and Specifications and/or Operation and
Maintenance Agreement
Any changes or amendments to the plans and specifications of a SCM, or the
operation and maintenance agreement for a SCM shall meet all of the
requirements of this rule regarding design and approval.
F) Compliance Prior to Receiving Piat Approval or Certificate of Occupancy
Subject to Subsection G. below, prior to approval of a Final Plat (with respect to a
subdivision), issuance of a certificate of occupancy (with respect to a site plan),
or commencement of a use for any development upon which a SCM is required,
the owner shall have installed the improvements required by this Article and shall
have received the approval of the Environmental Engineering Manager with
respect to the improvements. Upon installation of the required improvements, the
Environmental Engineering Manager or his designee shall inspect the SCM and
the owner shall demonstrate that the required structure is in place, that it is
operational, that it complies with all relevant portions of Sec. 6.1.12 Stormwater
Control Measures (SCMs), and shall submit to the Environmental Engineering
Manager actual "as built" plans for the structure, which shall include the
information listed in Article 6: Overlay Districts, and Section 1.06(c) Stormwater
Drainage System of the Town of Apex Standard Specifications and Standard
Details, certifying completion of the same.
G) Performance Guarantees
1) As provided in a, b, and c below, in lieu of prior performance otherwise
required by this Article, the Town may accept a performance guarantee
that the improvements required by this Article will be constructed
according to the Town's specifications at the owner's expense.
Guarantees shall comply with the requirements of this Subsection G.
a) Site plan: In lieu of performance prior to the issuance of a
temporary certificate of occupancy related to a site plan, a
performance guarantee may be provided by the owner
guaranteeing the installation of the improvements required by
this Article. Improvements guaranteed under this Subsection a.
shall be constructed by the owner within one (1) year after
issuance of the temporary certificate of occupancy. All
improvements required by this Article related to a site plan, shall
be constructed prior to the issuance of a permanent certificate of
occupancy.
July 21, 2020 Article 6 - Page 25

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.12 / Stormwater Control Measures (SCMs)
b) Phased site plan: In lieu of performance prior to the issuance of
a temporary or permanent certificate of occupancy related to a
phased site plan, a performance guarantee may be provided by
the owner guaranteeing the installation of the improvements
required by this Article for each phase. All improvements
guaranteed under this Subsection b. shall be completed prior to
the issuance of certificates of occupancy for 90% of the buildings
within that phase, or within 60 days after receipt of written notice
that the Environmental Engineering Manager has determined
that the contributing drainage area to the SCM is sufficiently
stabilized to install the SCM, whichever occurs first.
c) Subdivisions: In lieu of performance prior to approval of a Final
Plat for subdivisions, a performance guarantee may be provided
by the owner guaranteeing the installation of the improvements
required by this Article. All improvements guaranteed under this
Subsection c. shall be completed prior to the issuance of
certificates of occupancy for 90% of the lots within the
subdivision. If the subdivision is to be phased, all improvements
within or required for each phase shall be completed prior to
issuance of certificate of occupancy for 90% of the lots within
that phase.
2) Performance guarantee. Performance guarantees shall be provided by
the owner in the amount equal to 125% of the total construction cost of
the required SCM. The total cost of the structural SCM(s) shall include all
construction costs, including but not limited to, the cost of materials,
landscaping, seeding and soil stabilization, grading, excavation and fill.
The owner shall submit his estimate of this amount subject to review,
modification, and approval by the Environmental Engineering Manager.
Such estimate shall be signed and sealed by a licensed North Carolina
professional engineer, landscape architect, or land surveyor. Guarantees
required by this Section may be in the form of a surety bond enforceable
at the sole discretion of the Town and in the form prescribed by the
Town, a letter of credit that meets the specifications of Sec. 7.5.17
Irrevocable Letter of Credit in Lieu of Surety Bond or Other Guarantee of
Performance, certified check drawn in favor of the Town, or cash
deposited with the Town.
3) Duration of performance guarantee. Performance guarantees shall run
until the requirements of Sec. 6.1.12 have been satisfied and the
Environmental Engineering Manager has given final approval of the
required SCM(s).
4) Default. Failure of the owner to construct, repair, and if necessary,
reconstruct the SCM(s) as required by Sec. 6.1.12 is a default. Upon
such default, the Town may obtain and use all or any portion of the
performance guarantee necessary to complete the improvements.
5) Costs in excess of performance guarantee. In the event the Town calls
the performance guarantee required by this Section and the reasonable
cost of performance exceeds the amount of the performance guarantee
the Town may collect the difference from the owner.
July 21, 2020 Article 6 - Page 26

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.12 / Stormwater Control Measures (SCMs)
H) Maintenance and Maintenance Guarantees
1) Duty to maintain and maintenance and defects guarantee. The owner is
responsible for all maintenance and repair of improvements required by
this Article. In addition to the Operation and Maintenance Agreement
required by Sec. 6.1.12.D, with respect to a subdivision, a maintenance
and defects guarantee shall be provided by the owner in the amount
equal to 25% of the total construction cost of the SCM to ensure proper
maintenance and repair prior to conveyance of the improvements to a
property owners association. The maintenance and defects guarantee
shall be submitted to the Town of Apex prior to SCM final approval. The
owner shall submit his estimate of this amount subject to review,
modification, and approval by the Environmental Engineering Manager.
Such estimate shall be signed and sealed by a licensed North Carolina
professional engineer, landscape architect, or land surveyor. Guarantees
required by this Section may be in the form of a surety bond enforceable
at the sole discretion of the Town and in the form prescribed by the
Town, a letter of credit that meets the specifications of Sec. 7.5.17
Irrevocable Letter of Credit in Lieu of Surety Bond or Other Guarantee of
Performance, certified check drawn in favor of the Town, or cash
deposited with the Town.
2) Duration of maintenance and defects guarantee for subdivision. The
maintenance and defects guarantee shall be in effect for one (1) year
after the SCM final approval date issued by the Town's Environmental
Engineering Manager or designee.
3) Default. Upon failure of the owner to maintain the SCM as required, the
Town may obtain and use all or any portion of the maintenance and
defects guarantee necessary to continue maintenance of the structure.
Inspection
1) Inspect once a year. On an annual basis after completion of construction
of a SCM, the owner shall submit to the Environmental Engineering
Manager an inspection report for that structure from a qualified
registered North Carolina professional engineer, surveyor, or landscape
architect performing services only in their area of competence. The
inspection report shall be on a form provided by the Environmental
Engineering Manager. An initial inspection report shall be provided to the
Environmental Engineering Manager beginning one (1) year from the
date of submittal of the certified as -built plans to the Town and each year
thereafter on or before the date of the as -built certification.
2) Inspection by Town of Apex. All property within the Primary Watershed
Protection District and/or the Secondary Watershed Protection District
shall also be subject to inspection by the Environmental Engineering
Manager or his designee. Such inspections may include, but are not
limited to, reviewing maintenance and repair records, sampling
discharges, surface water, groundwater, and material or water in SCMs,
and evaluating the condition of SCMs.
3) Corrective action. If at any time the Town of Apex determines that
corrective actions or improvements to a SCM are required, the Town of
Apex shall notify the owner of the needed corrections and of the date by
July 21, 2020 Article 6 - Page 27

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.13 / Modifications by Variance
which the work is to be completed. All corrective work shall be consistent
with the approved operation and maintenance agreement.
4) Authorization prior to repair or reconstruction of structure. With the
exception of general landscaping and grounds maintenance, the owner
of the SCM shall obtain authorization from the Town prior to any repair or
reconstruction of the structure. All improvements and repairs shall be
consistent with the approved maintenance and operation agreement. In a
bona fide emergency, necessary measures may be taken immediately in
order to minimize damage to the structure and ensure its continued
operation. Such measures must be promptly reported to the
Environmental Engineering Manager.
6.1.13 Modifications by Variance
A) General
Requests for minor and major variances from the standards of the Watershed
Protection Overlay Districts shall be made to the Board of Adjustment, except for
variance requests pertaining to impacts within Zone 1 and/or Zone 2 of a riparian
buffer within the Neuse River Basin which shall be made to the Director of the
NC DEQ as specified below in Sec. 6.1.13.B.1.b and B.2.c. Due to certain
process differences in State statutes or rules for decision making and appeals
based on which basin or watershed a proposed project is located, a separate
variance provision is set forth below for each of the following basins or
watersheds: (i) the Neuse River Basin, (ii) the Jordan Lake Watershed portion of
the Cape Fear River Basin and (iii) the Cape Fear River Basin outside of the
Jordan Lake Watershed.
Sec 6.1.13.E sets forth an alternative variance process that is available for, but
not required to be used by, an applicant seeking a variance from Sec. 6.1 density
requirements for a project located in the Secondary Watershed Protection District
and/or from Town Buffer requirements. Town Buffers and State Buffers are
defined in Sec. 6.1.14.C. The purpose of this alternative variance process is to
provide additional design flexibility for a project that provides a unique or
additional benefit to the Town or surrounding area that would not be available
from a traditional development located in areas within the Town or its ETJ where
the applicable requirements of Sec. 6.1 are not part of a State authorized
program, or where separate State rules do not apply.
All applications for variances made to the Board of Adjustment shall be reviewed
by the Board of Adjustment, which shall approve, approve with conditions (which
may include mitigation requirements), or disapprove the variance after a public
hearing noticed pursuant to Sec. 2.2.11 Public Notification, and conducted
pursuant to Sec. 2.2.18 Public Hearing Procedures, based on the applicable
standards in Sec. 6.1.13.E or F.
B) Variances for Activities in the Neuse River Basin
1) Minor Variances
a) Minor Variance Requests that are to be Submitted to the Board
of Adjustment. A variance request for an activity in the Neuse
River Basin shall be considered minor and a decision on such
request shall be made by the Board of Adjustment when:
July 21, 2020 Article 6 - Page 28

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.13 / Modifications by Variance
(i) In a development that is subject to the low -density
option, it results in a total built -upon area of no more
than 26.4% (which represents a 10% variation from the
applicable state numerical standard of 24%); or
(ii) In a development that is subject to the high -density
option, it results in a total built -upon area of no more
than 73.5% (which represents a 5% variation from the
applicable state numerical standard of 70%) and no
variation in stormwater management requirements; or
(iii) It pertains to activities that will impact Zone 3 of a
riparian buffer located within the Neuse River Basin.
However, if the impacted area is also within the Neuse
River Basin's Primary Watershed Protection District and
along perennial waters within a high density
development option area, the area of proposed impacts
in the buffer also shall not exceed five (5%) percent of
the buffer area. If such proposed activity within the
Neuse River Basin requiring a variance for Zone 3 also
includes impacts to Zone 2 that require a variance, then
as specified in Sec. 6.1.13�B.1.b.i. the Director of the NC
DEQ shall consider the variance request as it pertains to
Zone 2 impacts, and a separate variance request shall
be submitted to the Board of Adjustment pertaining to
Zone 3 impacts.
An appeal of a minor variance decision made by the Board of
Adjustment regarding a proposed project in the Neuse River
Basin shall be subject to review in Superior Court by
proceedings in the nature of certiorari in accordance with NCGS
160A-388.
b) Minor Variance Requests that are to be Submitted to the NC
DEQ. A variance request for an activity in the Neuse River Basin
shall be considered minor and a decision on such request shall
be made by the NC DEQ when:
(i) It pertains to activities that will impact Zone 2 of a
riparian buffer located within the Neuse River Basin.
However, if the impacted area is also within the Neuse
River Basin's Primary Watershed Protection District and
along perennial waters within a high density
development option area, the proposed impacts to the
buffer also shall not exceed five (5%) percent of the
buffer area. If such proposed activity within the Neuse
River Basin requiring a variance for Zone 2 also includes
impacts to Zone 3 that require a variance, then the
Director of the NC DEQ shall consider the variance
request as it pertains to Zone 2 impacts, and as
specified in Sec. 6.1.13.B.1.a.iii a separate variance
request shall be submitted to the Board of Adjustment
pertaining to Zone 3 impacts.
Pursuant to 15A NCAC 2B .0233(9)(b), a minor variance
application for activities that will impact Zone 2 of a Neuse River
July 21, 2020 Article 6 - Page 29

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.13 / Modifications by Variance
Basin riparian buffer shall be submitted to the NC DEQ, and an
appeal of a decision by the Director of the NC DEQ shall be to
the Office of Administrative Hearings.
2) Major Variances
a) Major Variance Requests Submitted to the Board of Adjustment
That Will Be Decided by the Board of Adjustment. A request for a
variance for an activity in the Neuse River Basin shall be
considered major, and the variance application shall be filed with
the Board of Adjustment for final decision by the Board of
Adjustment when it pertains to impacts within the Secondary
Watershed Protection District portion of the Neuse River Basin
and:
(i) In a development exercising the low -density option, it
results in a total built -upon area of greater than 26.4% or
(ii) In a development exercising the high -density option, it
results in a total built -upon area of greater than 73.5%,
or it consists of any variation in stormwater management
requirements.
An appeal of a major variance decision made by the Board of
Adjustment within the scope of this Sec. 6.1.13(B)(2)(a) shall be
subject to review in Superior Court by proceedings in the nature
of certiorari in accordance with G.S. 160A-388.
b) Major Variance Requests Submitted to the Board of Adjustment
That Will Be Forwarded to the Environmental Management
Commission Upon Approval. A request for a variance for an
activity in the Neuse River Basin shall be considered major, and
the variance application shall be filed with the Board of
Adjustment for initial review and recommendation, and then
forwarded to the Environmental Management Commission if the
Board of Adjustment determines that the variance should be
granted, when the request pertains to impacts within the Primary
Watershed Protection District portion of the Neuse River Basin
and;
(i) In a development exercising the low -density option, it
results in a total built -upon area of greater than 26.4%
(which represents a variation of greater than 10% from
the applicable state numerical standard of 24%); or
(ii) In a development exercising the high -density option, and
it results in a total built -upon area of greater than 73.5%
(which represents a variation of greater than five (5%)
percent from the applicable state numerical standard of
70%), or it consists of any variation in stormwater
management requirements; or
(iii) It pertains to activities that will impact Zone 3 of a
riparian buffer for perennial waters within a development
exercising the high -density option, and more than five
(5%) percent of the riparian buffer will be impacted.
July 21, 2020 Article 6 - Page 30

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.13 / Modifications by Variance
Following a public hearing on an application within the scope of
this Sec. 6.1.13.B.2.b, the Board of Adjustment shall provide its
recommendation to the Environmental Management Commission
if the Board of Adjustment determines that the variance should
be granted. After the Board of Adjustment reviews and
recommends approval of the application for the major variance,
the Planning Director shall prepare and forward to the
Environmental Management Commission for consideration the
following materials relevant to the application:
The application for major variance;
The public hearing notice;
The transcript of the public hearing on the application for
major variance prepared by or certified by the Town
Clerk; and
(iv) Recommendation of the Board of Adjustment on the
application, including all proposed conditions, which may
also include mitigation requirements.
An appeal of the Environmental Management Commission's
determination shall be in accordance with the applicable state
statute and rules governing the Commission's determination of
that major variance request.
c) Major Variance Requests to be Submitted Directly to the NC
DEQ for Determination either by the Division or by the
Environmental Management Commission. A request for a
variance for an activity in the Neuse River Basin shall be
considered major, and pursuant to 15A NCAC 2B .0233(9)(c) an
application shall be filed directly with the NC DEQ, and the
Division will either determine that the major variance request
meets the applicable requirements and submit its preliminary
findings to the Environmental Management Commission, or
determine that such requirements have not been met when:
(i) It pertains to activities that will impact any portion of Zone
1, or Zones 1 and 2, of a riparian buffer within the Neuse
River Basin. If such proposed activity requiring a variance
for Zone 1, or Zones 1 and 2, of a riparian buffer within
the Neuse River Basin also includes impacts to Zone 3
that require a variance, then the Director of the NC DEQ
shall consider the variance request as it pertains to Zone
1, or Zones 1 and 2, impacts, and a separate variance
request shall be submitted to the Board of Adjustment
pertaining to Zone 3 impacts.
An appeal of either the Environmental Management
Commission's determination, or of the NC DEQ's determination
that the variance requirements have not been met, shall be to
the Office of Administrative Hearings.
July 21, 2020 Article 6 - Page 31

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.13 / Modifications by Variance
C) Variances for Activities in the Jordan Lake Watershed Portion of the Cape
Fear River Basin
1) Minor Variances
a) Minor Variance Requests that are to be Submitted to the Board
of Adjustment. A variance request for an activity in the Jordan
Lake Watershed Portion of the Cape Fear River Basin shall be
considered minor and a decision on such request shall be made
by the Board of Adjustment when:
(i) In a development that is subject to the low -density
option, it results in a total built -upon area of no more
than 26.4% (which represents a 10% variation from the
applicable state numerical standard of 24%); or
(ii) In a development that is subject to the high -density
option, it results in a total built -upon area of no more
than 73.5% (which represents a five (5%) percent
variation from the applicable state numerical standard of
70%) and no variation in stormwater management
requirements; or
(iii) It pertains to activities that will impact Zone 2 and/or
Zone 3 of a riparian buffer located in the Jordan Lake
Watershed.
An appeal of a minor variance decision made by the Board of
Adjustment pertaining to allowable density within the Jordan
Lake Watershed, or to an activity impacting only Zone 3 of the
riparian buffer in that watershed, shall be subject to review in
Superior Court by proceedings in the nature of certiorari in
accordance with G.S. 160A-388. An appeal of a minor variance
decision made by the Board of Adjustment pertaining to an
activity impacting Zone 2, or Zones 2 and 3, of a riparian buffer
in the Jordan Lake Watershed shall be in writing to the Director
of the NC DEQ, c/o the 401 Oversight Express Permitting Unit,
or its successor. The Director's decision is subject to review as
provided in G.S. 150B Articles 3 and 4.
2) Major Variances
a) Major Variance Requests Submitted to the Board of Adjustment
That Will Be Decided by the Board of Adjustment. A request for a
variance for an activity in the Jordan Lake Watershed Portion of
the Cape Fear River Basin shall be considered major, and the
variance application shall be filed with the Board of Adjustment
for final decision by the Board of Adjustment when it pertains to
impacts that are within the Secondary Water Supply Watershed
Protection District portion of the Jordan Lake Watershed and:
(i) In a development exercising the low -density option, it
results in a total built -upon area of greater than 26.4%;
or
July 21, 2020 Article 6 - Page 32

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.13 / Modifications by Variance
(ii) In a development exercising the high -density option, it
results in a total built -upon area of greater than 73.5%,
or it consists of any variation in stormwater management
requirements.
An appeal of a major variance decision made by the Board of
Adjustment within the scope of this Sec. 6.1.13.C.2.a. shall be
subject to review in Superior Court by proceedings in the nature
of certiorari in accordance with G.S. 160A-388.
b) Major Variance Requests Submitted to the Board of Adjustment
That Will Be Forwarded to the Environmental Management
Commission Upon Approval. A request for a variance for an
activity in the Jordan Lake Watershed Portion of the Cape Fear
River Basin shall be considered major, and the variance
application shall be filed with the Board of Adjustment for initial
review and recommendation, and then forwarded to the
Environmental Management Commission if the Board of
Adjustment determines that the variance should be granted,
when it pertains to impacts within the Primary Watershed
Protection District portion of the Jordan Lake Watershed and:
(i) In a development exercising the low -density option, it
results in a total built -upon area of greater than 26.4%
(which represents a variation of greater than 10% from
the applicable state numerical standard of 24%);
(ii) In a development exercising the high -density option, it
results in a total built -upon area of greater than 73.5%
(which represents a variation of greater than five (5%)
percent from the applicable state numerical standard of
70%) or it consists of any variation in stormwater
management requirements; or
(iii) It pertains to activities that will impact Zone 1, Zones 1
and 2, or Zones 1, 2 and 3, of a riparian buffer anywhere
in the Jordan Lake Watershed.
Following a public hearing on an application within the scope of
this Sec. 6.1.13.C.2.b, the Board of Adjustment shall provide its
recommendation to the Environmental Management Commission
if the Board of Adjustment determines that the variance should
be granted. After the Board of Adjustment reviews and
recommends approval of the application for the major variance,
the Planning Director shall prepare and forward to the
Environmental Management Commission for consideration the
following materials relevant to the application:
(iv) The application for major variance;
(v) The public hearing notice;
(vi) The transcript of the public hearing on the application for
major variance prepared by or certified by the Town
Clerk; and
July 21, 2020 Article 6 - Page 33

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.13 / Modifications by Variance
(vii) Recommendation of the Board of Adjustment on the
application, including all proposed conditions, which may
also include mitigation requirements.
An appeal of the Environmental Management Commission's
determination shall be in accordance with the applicable state
statute and rules governing the Commission's determination of
that major variance request.
D) Variances for Activities in the Cape Fear River Basin outside of the Jordan
Lake Watershed
1) Minor Variances
a) Minor Variance Requests that are to be Submitted to the Board
of Adjustment. A variance request for an activity in the Cape
Fear River Basin outside of the Jordan Lake Watershed shall be
considered minor and a decision on such request shall be made
by the Board of Adjustment when:
(i) In a development that is subject to the low -density
option, it results in a total built -upon area of no more
than 26.4% (which represents a 10% variation from the
applicable state numerical standard of 24%); or
(ii) In a development that is subject to the high -density
option, it results in a total built -upon area of no more
than 73.5% (which represents a five (5%) percent
variation from the applicable state numerical standard of
70%) and no variation in stormwater management
requirements; or
(iii) It pertains to activities that will impact Zone 2 and/or
Zone 3 of a riparian buffer located in the Cape Fear
River Basin outside of the Jordan Lake Watershed.
An appeal of a minor variance decision made by the Board of
Adjustment shall be subject to review in Superior Court by
proceedings in the nature of certiorari in accordance with G.S.
160A-388.
2) Major Variances
a) Major Variance Requests that are to be Submitted to the Board
of Adjustment. A variance request for an activity in the Cape
Fear River Basin outside of the Jordan Lake Watershed shall be
considered major and a decision on such request shall be made
by the Board of Adjustment when:
(i) In a development exercising the low -density option, it
results in a total built -upon area of greater than 26.4%;
or
(ii) In a development exercising the high -density option, it
results in a total built -upon area of greater than 73.5%,
or it consists of any variation in stormwater management
requirements; or
July 21, 2020 Article 6 - Page 34

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.13 / Modifications by Variance
(iii) It pertains to activities that will impact Zone 1, or Zones 1
and 2, or Zones 1, 2 and 3, of a riparian buffer.
Appeals of major variance decisions made by the Board of
Adjustment within the scope of this Sec. 6.1.13.D.2 shall be
subject to review in Superior Court by proceedings in the nature
of certiorari in accordance with G.S. 160A-388.
E) Standards
1) General. The standards set forth in Sec. 6.1.13.E.2-3 shall be applicable
to all variance requests submitted to the Board of Adjustment, except for
a request submitted pursuant to the alternative variance process in Sec.
6.1.13.F.
2) The Board of Adjustment shall make a finding of fact as to whether there
are practical difficulties or unnecessary hardships that prevent
compliance with the requirements at issue. A finding of practical
difficulties or unnecessary hardships shall require that the following
conditions are met:
a) If the applicant complies with the requirements at issue, 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 Board of
Adjustment shall consider whether the variance is the minimum
possible deviation from applicable requirements that shall make
reasonable use of the property possible;
b) The practical difficulties or unnecessary hardships result from
application of Sec. 6.1 to the property rather than from other
factors such as deed restrictions or other hardship;
c) The practical difficulties or unnecessary hardships is due to the
physical nature of the applicant's property, such as its size,
shape, or topography, such that compliance with Sec. 6.1 would
not allow reasonable use of the property;
d) The applicant did not cause the practical difficulties or
unnecessary hardships by knowingly or unknowingly violating
Sec. 6.1;
e) The applicant did not purchase the property after the effective
date of Sec. 6.1, and then request a variance; and
f) The practical difficulties or unnecessary hardships are rare or
unique to the applicant's property.
3) The Board of Adjustment shall also make findings of fact as to:
a) whether the variance is in harmony with the general purpose and
intent of the Town's Watershed Protection Overlay Districts and
preserves its spirit; and
July 21, 2020 Article 6 - Page 35

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.13 / Modifications by Variance
b) whether in granting the variance, the public safety and welfare
have been assured, water quality has been protected, and
substantial justice has been done.
F) Alternative Process and Standards for Variance From Density
Requirements in Secondary Watershed Protection District and/or From
Impacts to Town Buffers
1) An applicant seeking a variance from the density requirements in Sec.
6.1, which may include stormwater management requirements, for a
project located in the Secondary Watershed Protection District, and/or
from buffer requirements applicable to a Town Buffer as defined in Sec.
6.1.14.C.1, may elect to, but is not required to, seek such variance
pursuant to the process and standards set forth in this Sec. 6.1.13.F. The
purpose of this alternative variance process is to provide additional
design flexibility for a project that provides a unique or additional benefit
to the Town or surrounding area that would not be available from a
traditional development in areas where the applicable Ordinance
requirements are not part of a State authorized program or where
separate State rules do not apply.
2) The Board of Adjustment shall make a finding of fact as to whether there
are practical difficulties or unnecessary hardships that prevent
compliance with the requirements at issue. A finding of practical
difficulties or unnecessary hardships shall require that the following
conditions are met:
a) the project provides a unique or additional benefit to the Town or
surrounding area that would not be available from a traditional
development;
b) the strict application of the requirements of Sec. 6.1 create
practical difficulties or unnecessary hardships;
c) the practical difficulties or unnecessary hardships result from the
application of Sec. 6.1 to the property rather than from other
factors such as deed restrictions or other hardship;
d) the applicant did not cause the practical difficulties or
unnecessary hardships by knowingly or unknowingly violating
Sec. 6.1;
e) the development plan for which the variance is sought (including
specific proposed mitigation) provides an overall level of
environmental protection that meets or exceeds that provided by
the requirements in Sec. 6.1, including consideration of
stormwater management, nutrient removal and stream and other
surface water protection functions, sedimentation, and
downstream water quality and quantity.
3) The Board of Adjustment shall also make findings of fact as to:
a) whether the variance is in harmony with the general purpose and
intent of the Town's Watershed Protection Overlay Districts and
preserves its spirit; and
July 21, 2020 Article 6 - Page 36

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.13 / Modifications by Variance
b) whether, in granting the variance, the public safety and welfare
have been assured, water quality has been protected, and
substantial justice has been done.
4) Prior Approvals Required Before Submitting a Variance Request Under
Sec. 6.1.13.F.
a) Prior to submitting a variance request to the Board of Adjustment
pursuant to this Sec. 6.1.13.F, the applicant shall first have
obtained all required permits and approvals for the proposed
development from the DEQ and/or US Army Corps of Engineers,
as may be applicable, with regard to any proposed dredging or
filling of surface waters within the proposed development, and
with regard to any proposed impacts to State Buffers in the
Neuse River Basin (i.e. Zone 1 or Zone 2) or in the Cape Fear
River Basin outside of the Jordan Lake Watershed (i.e. Zone 1).
(i) Although the Board of Adjustment may approve a
variance request for impacts to Zone 1 of a riparian
buffer in the Cape Fear River Basin outside of the
Jordan Lake Watershed pursuant to the variance
process in Sec. 6.1.13.D.2, advance DEQ approval will
be required for such impacts to Zone 1 of a riparian
buffer in the Cape Fear River Basin outside of the
Jordan Lake Watershed if the impacts are part of a
project for which a variance is being sought pursuant to
this Sec. 6.1.13.F.
b) If the proposed project will impact any State Buffer in the Jordan
Lake Watershed (i.e. Zone 1 or Zone 2) then, prior to submitting
a variance request to the Board of Adjustment under this Sec.
6.1.13.F for the remainder of the project, the applicant shall first
submit a separate variance request to the Board of Adjustment
pursuant to the applicable process and standards set forth in
Sec. 6.1.13.0 and E pertaining to such impacts to Zone 1 and/or
Zone 2, and the applicant shall have obtained approval of this
request. Pursuant to Sec. 6.1.13.C.1.iii a minor variance request
pertaining to Zone 2 of a buffer in the Jordan Lake Watershed
will be determined by the Board of Adjustment. Pursuant to Sec.
6.1.13.C.2.b.iii, a major variance request pertaining to Zone 1, or
Zone 1 and 2, of a buffer in the Jordan Lake Watershed shall first
be considered by the Board of Adjustment, and the Board of
Adjustment shall provide its recommendation to the
Environmental Management Commission for final decision if the
Board determines that the variance should be granted.
5) An applicant for a variance who is electing to proceed pursuant to this
Sec. 6.1.13.F shall clearly state that intent in the application and shall
provide written confirmation with the application that all prior approvals
required pursuant to Sec. 6.1.13.F.4 above have been obtained, or that
no such approvals are required.
6) The application shall then be reviewed by the Board of Adjustment,
which shall approve, approve with conditions (which may include
mitigation requirements), or disapprove the variance after a public
hearing noticed pursuant to Sec. 2.2.11 Public Notification, and
July 21, 2020 Article 6 - Page 37

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.14 / Mitigation for Riparian Buffers
conducted pursuant to Sec. 2.2.18 Public Hearing Procedures, based on
the standards in Sec. 6.1.135.2 and 3.
G) Annual Report
Town shall make an annual report to the Environmental Management
Commission, as required by the state, of all variances that have been granted
within the state identified watershed protected areas including the type of
variance and the reasons for granting the variance.
6.1.14 Mitigation for Riparian Buffers
A) Applicability
1) This Section applies to persons who wish to impact a riparian buffer
within the Town or its ETJ when one of the following applies:
a) The person has received an Authorization Certificate pursuant to
Sec. 6.1.11.G.5 for a proposed use that is designated as
"allowable with mitigation"; or
b) The person has received a variance pursuant to Sec. 6.1.13 and
is required to perform mitigation as a condition of a variance
approval.
2) The mitigation provisions of this Sec. 6.1.14 apply to all buffer
requirements in the Town or its ETJ, except that in the area of the Town
or its ETJ in the Neuse River Basin the buffer mitigation requirements for
Zones 1 and 2 shall be administered by the NC DEQ.
B) Issuance of the Mitigation Approval
The Town shall issue a mitigation approval upon determining that a proposal
meets the requirements set out in this Sec. 6.1.14. The approval shall identify at
a minimum the option chosen for meeting the mitigation requirement, the
required area of mitigation, and either the mitigation location or the offset
payment amount as applicable.
C) Options for Meeting the Mitigation Requirements
The mitigation requirement may be met through one of the following options:
1) State Buffers. The mitigation requirements for State Buffers (defined
herein as buffers required by the State laws and/or rules, or approved by
the State as a State authorized program) may be met through one of
options a), b), or c) below. More specifically, State Buffers are: the 50-
foot buffer required in the Neuse River Basin area of the Town and its
ETJ; the 50-foot buffer required in the Jordan Lake Watershed area of
the Town and its ETJ; the 30-foot buffer required by Phase 2 stormwater
rules throughout the Town and its ETJ; the 30-foot buffer required
adjacent to perennial waters in the Primary Watershed Protection District
for developments utilizing the low -density option; and the 100-foot buffer
required adjacent to perennial waters in the portion of the Primary
Watershed Protection District within the Neuse River Basin for
developments utilizing the high -density option. All other buffers in the
Town and its ETJ regulated by Sec. 6.1 are referred to as "Town
Buffers."
July 21, 2020 Article 6 - Page 38

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.14 / Mitigation for Riparian Buffers
a) Payment of a compensatory mitigation fee either (i) to the State
Riparian Buffer Restoration Fund pursuant to State rules
applicable to the location of the State Buffer that is lost,
contingent upon acceptance of payments by the NC Ecosystem
Enhancement Program, or (ii) to a private mitigation bank that
complies with banking requirements of the US Army Corps of
Engineers, currently set out at
http://www.saw.usace.army.miI/WETLANDS/Mitigation/mitbanks.
html or from the US Army Corps of Engineers, P.O. Box 1890,
Wilmington, NC, 28402-1890, and the applicable trading criteria
in State rules applicable to the location of the impacted State
Buffer;
b) Donation of real property or of an interest in real property
pursuant to Sec. 6.1.14.F.; or
c) Restoration or enhancement of a non -forested riparian buffer
pursuant to the requirements of Sec. 6.1.14.G.
2) Town Buffers. The mitigation requirement for Town Buffers may be met
through one of the following options.
a) Construction of an alternative measure or combination of
measures that reduce nutrient loading as well or better than the
riparian buffer that is lost, that is located in the same river basin
as the riparian buffer that is lost, and that is approved by the
Town. Such measures may include stormwater control measures
and other means of capturing and controlling nutrients and other
pollutants and shall be located on the site of the riparian buffer
that is lost, if practicable, or as close to that location as is
practicable;
b) Payment of a compensatory mitigation fee either: (i) to a Town
Riparian Buffer Restoration Fund established by the Town, if
such fund is established and available at the time, and such fee
shall be calculated using the same fee per square foot or acre as
established in the State rules for a buffer in the same basin or
watershed as the Town Buffer at issue, but the applicable
multiplier to determine the required area of mitigation shall be
determined pursuant to Sec. 6.1.14.D.2, or (ii) to a private
mitigation bank that complies with banking requirements of the
US Army Corps of Engineers, currently as set out at
http://www.saw.usace.army.miI/WETLANDS/Mitigation/mitbanks.
html or from the US Army Corps of Engineers, P.O. Box 1890,
Wilmington, NC, 28402-1890, and the applicable trading criteria
in State rules applicable to the location of the State Buffer that is
lost;
c) Donation of real property, or of an interest in real property,
pursuant to Sec. 6.1.14.F.; or
d) Restoration or enhancement of a non -forested riparian buffer
pursuant to the requirements of Sec. 6.1.14.G.
July 21, 2020 Article 6 - Page 39

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.14 / Mitigation for Riparian Buffers
D) The Area of Mitigation
The Town shall determine the required area of mitigation for all mitigation options
identified above in Sec. 6.1.14.0 and as further specified in the requirements for
each option set out in this Sec. 6.1.14, according to the following:
1) The impacts in square feet to each zone of the riparian buffer shall be
determined by the Town by adding the following information which shall
be provided by the applicant:
a) The area of the footprint of the use causing the impact to the
riparian buffer;
b) The area of the boundary of any clearing and grading activities
within the riparian buffer necessary to accommodate the use;
and
c) The area of any ongoing maintenance corridors the maintenance
of which is not in compliance with the applicable buffer
requirements within the riparian buffer associated with the use.
2) The required area of mitigation shall be determined by applying the
following multipliers to the area of the impacts determined according to
Sec. 6.1.14.D.1. for each zone of the riparian buffer:
a) Impacts to Zone 1 of the riparian buffer shall be multiplied by
three (3);
b) Impacts to Zone 2 of the riparian buffer shall be multiplied by one
and one-half (1.5);
c) Impacts to Zone 3 of the riparian buffer shall be multiplied by one
(1); and
d) 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.
E) The Location of Mitigation of Buffer Impacts
1) State Buffers. For any option chosen for mitigation of State Buffer
impacts, the mitigation effort shall be located within the same
subwatershed where the impacted property is located and the same
distance or closer to the closest public water supply reservoir as the
proposed impact, and as close to the location of the impact as feasible.
Alternatively, the applicant may propose mitigation anywhere within the
Town's corporate limits or ETJ provided that the mitigation proposal
accounts for differences in delivery of nutrients to the affected reservoir
resulting from differences between the locations of the buffer impact and
mitigation. Additional location requirements for the property donation
option are enumerated below in Sec. 6.1.14.F.3.a.
2) Town Buffers. For any option chosen for mitigation of Town buffer
impacts, the mitigation effort shall be located within the same river basin
where the impacted property is located. Additional location requirements
for the property donation option are enumerated below in Sec.
6.1.14.F.3.a.
July 21, 2020 Article 6 - Page 40

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.14 / Mitigation for Riparian Buffers
F) Donation of Property
Persons who choose to satisfy their mitigation determination by donating real
property or an interest in real property shall meet the following requirements:
1) The donation of real property interests may be used to either partially or
fully satisfy the payment of a compensatory mitigation fee to either the
State Riparian Buffer Restoration Fund for impacts to a State Buffer or to
a Town Riparian Buffer Restoration Fund, if established and available at
the time, for impacts to a Town Buffer. The value of the property interest
shall be determined by an appraisal performed in accordance with Sec.
6.1.14.F.4.d. The donation shall satisfy the mitigation determination if the
appraised value of the donated property interest is equal to or greater
than the required mitigation fee calculated pursuant to 15A NCAC 2B
.0269. If the appraised value of the donated property interest is less than
the required fee, the applicant shall pay the remaining balance due.
2) A donation in the form of a conservation easement shall be accepted
only if the conservation easement is granted in perpetuity.
3) Donation of real property interests to satisfy the mitigation determination
shall be accepted only if such property meets all of the following
requirements:
a) In addition to the location requirements for mitigation of buffer
impacts for State Buffers and Town Buffers, as applicable in Sec.
6.1.14.E, the property shall be located within an area that is
identified as a priority for restoration in, or is otherwise consistent
with the goals of, the Basinwide Wetlands and Riparian
Restoration Plan for the Basin developed by the NC DEQ
pursuant to NCGS 143-214.10 for the basin in which the property
is located;
b) The property shall contain riparian buffers not currently protected
by the State's riparian buffer protection program that are in need
of restoration as defined in Sec. 6.1.14.G.4;
c) The restorable riparian buffer on the property shall have a
minimum length of 1000 linear feet along a surface water and a
minimum width of 50 feet as measured horizontally on a line
perpendicular to the surface water;
d) The size of the restorable riparian buffer on the property to be
donated shall equal or exceed the area of mitigation
responsibility determined pursuant to Sec. 6.1.14.D;
e) Restoration shall not require removal of man-made structures or
infrastructure;
f) The property shall be suitable to be successfully restored, based
on existing hydrology, soils, and vegetation;
g) The estimated cost of restoring and maintaining the property
shall not exceed the value of the property minus site
identification and transaction costs;
July 21, 2020 Article 6 - Page 41

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.14 / Mitigation for Riparian Buffers
h) The property shall not contain any building, structure, object,
site, or district that is listed in the National Register of Historic
Places established pursuant to Public Law 89-665, 16 U.S.C.
470 as amended;
The property shall not contain any hazardous substance or solid
waste;
j) The property shall not contain structures or materials that
present health or safety problems to the general public. If wells,
septic, water or sewer connections exist, they shall be filled,
remediated or closed at owner's expense in accordance with
state and local health and safety regulations;
k) The property and adjacent properties shall not have prior,
current, and known future land use that would inhibit the function
of the restoration effort; and
The property shall not have any encumbrances or conditions on
the transfer of the property that limit or impede its use for the
required mitigation purposes.
4) At the expense of the applicant or donor, the following information shall
be submitted to the Town with any proposal for donations or dedications
of interest in real property:
a) Documentation that the property meets the requirements laid out
in Sec. 6.1.14.F.3;
b) US Geological Survey 1:24,000 (7.5 minute) scale topographic
map, county tax map, USDA Natural Resource Conservation
Service County Soil Survey Map, and county road map showing
the location of the property to be donated along with information
on existing site conditions, vegetation types, presence of existing
structures and easements;
c) A current property survey performed in accordance with the
procedures of the North Carolina Department of Administration,
State Property Office, as identified by the State Board of
Registration for Professional Engineers and Land Surveyors in
"Standards of Practice for Land Surveying in North Carolina."
Copies may be obtained from the North Carolina State Board of
Registration for Professional Engineers and Land Surveyors,
3620 Six Forks Road, Suite 300, Raleigh, North Carolina 27609;
d) A current appraisal of the value of the property performed in
accordance with the procedures of the North Carolina
Department of Administration, State Property Office as identified
by the Appraisal Board in the "Uniform Standards of Professional
North Carolina Appraisal Practice." Copies may be obtained from
the Appraisal Foundation, Publications Department, P.O. Box
96734, Washington, D.C. 20090-6734; and
e) A title certificate.
July 21, 2020 Article 6 - Page 42

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.14 / Mitigation for Riparian Buffers
G) Riparian Buffer Restoration or Enhancement
Persons who choose to meet their mitigation requirement through riparian buffer
restoration or enhancement shall meet the following requirements:
1) The applicant may restore or enhance a non -forested riparian buffer if
either of the following applies:
a) The area of riparian buffer restoration is equal to the required
area of mitigation determined pursuant to Sec. 6.1.14.D: or
b) The area of riparian buffer enhancement is three (3) times larger
than the required area of mitigation determined pursuant to Sec.
6.1.14.D;
2) The location of the riparian buffer restoration or enhancement shall
comply with the requirements in Sec. 6.1.14.E;
3) The riparian buffer restoration or enhancement site shall have a
minimum width of 50 feet or equal to the width of the impacted buffer,
whichever is greater, as measured on a line perpendicular to the surface
water;
4) Enhancement and restoration shall both have the objective of
establishing a forested riparian buffer according to the requirements this
Section. Enhancement shall be distinguished from restoration based on
existing buffer conditions. Where existing trees are sparse, that is greater
than or equal to 100 trees per acre but less than 200 trees per acre, a
buffer may be enhanced. Where existing woody vegetation is absent,
that is less than 100 trees per acre, a buffer may be restored;
5) The applicant shall first receive an Authorization Certificate for the
proposed use according to the requirements of Sec. 6.1.11.G.5, or a
variance pursuant to Sec. 6.1.13. After receiving this Certificate or
variance, the applicant shall submit a restoration or enhancement plan
for approval by the Town. The restoration or enhancement plan shall
contain the following:
a) A map of the proposed restoration or enhancement site;
b) A vegetation plan. The vegetation plan shall include a- minimum
of at least two (2) native hardwood tree species planted at a
density sufficient to provide 320 trees per acre at maturity;
c) A grading plan. The site shall be graded in a manner to ensure
diffuse flow through the riparian buffer;
d) A fertilization plan; and
e) A schedule for implementation
6) Within one (1) year after the Town has approved the restoration or
enhancement plan, the applicant shall present proof to the Town that the
riparian buffer has been restored or enhanced. If proof is not presented
within this timeframe, then the person shall be in violation of both the
State's, where applicable, and the Town's riparian buffer protection
program and shall be subject to civil penalties pursuant to Sec. 6.15;
July 21, 2020 Article 6 - Page 43

Article 6 / Overlay Districts
Sec. 6.1 / WATERSHED PROTECTION OVERLAY DISTRICTS
Sec. 6.1.15 / Civil Penalties
7) The mitigation area shall be placed under a perpetual conservation
easement that will provide for protection of the property's nutrient
removal functions; and
8) The applicant shall submit annual reports for a period of five (5) years
after the restoration or enhancement, showing that the trees planted
have survived and that diffuse flow through the riparian buffer has been
maintained. The applicant shall replace trees that do not survive and
restore diffuse flow if needed during that five-(5) year period.
6.1.15 Civil Penalties
A) Notification of Violation
When any subdivision, development, and/or land use is found to be in violation of
any provision of Sec. 6.1 Watershed Protection Overlay Districts, the person
responsible for the violation shall be notified by the Environmental Engineering
Manager. Such notification shall take the following form:
1) It shall be made in writing.
2) It shall indicate the nature of the violation.
3) It shall order any of the following that is applicable:
a) The discontinuance of the illegal use of land, buildings or
structures,
b) The removal of illegal buildings or structures,
c) The removal of additions, alterations, or structural changes to
illegal buildings or structures,
d) The discontinuance of any illegal work being done, or
e) Any other action that is deemed necessary at that time to correct
the violation.
B) Civii Penalties
Following notification of a violation of Sec. 6.1 Watershed Protection Overlay
Districts, civil penalties may be imposed by the Water Resources Director on the
person responsible for the violation. Civil penalties will be imposed in accordance
with Sec. 11.4.4 Civil Penalties.
6.1.16 Criminal Penalties
Violation of Sec. 6.1 Watershed Protection Overlay Districts shall not be a crime under
G.S. §14-4 or other law.
6.1.17 Remedies
In addition to the imposition of civil penalties, the Town may take action in accordance
with Sec. 11.4.1 Permit Revocation, Sec. 11.4.2 Disapproval of Subsequent Permits and
Development Approvals, and/or Sec. 11.4.3 Injunction and Abatement Order in order to
prevent, stop, penalize, restrain, correct, or abate any violation of Sec. 6.1 Watershed
Protection Overlay Districts.
July 21, 2020 Article 6 - Page 44