Wetlands 15A NCAC 02H .1401-140

HEARING OFFICER’S REPORT OF PROCEEDINGS
PUBLIC HEARING AND COMMENT PERIOD
Adoption of Permanent Rules 15A NCAC 02H .1400
Discharges to Federally Non-Jurisdictional Wetlands and Federally Non-Jurisdictional
Classified Surface Waters
AND
Adoption of Amendment to Rule 15A NCAC 02H .1301
Discharges to Isolated Wetlands and Isolated Waters: Purpose and Scope
Environmental Management Commission
December 2021
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Basic Information

Commission: Environmental Management Commission
Water Quality Committee

Agency Department of Environmental Quality, Division of Water Resources

Title Discharges to Federally Non-Jurisdictional Wetlands and Federally
Non-Jurisdictional Classified Surface Waters

Discharges to Isolated Wetlands and Isolated Waters

Citations 15A NCAC 02H .1400
15A NCAC 02H .1301

Description of the
Proposed Rules
On April 21, 2020, the U.S. Environmental Protection Agency (EPA) and the
Department of the Army published the Navigable Waters Protection Rule
(NWPR) in the Federal Register to finalize a revised definition of “Waters of
the United States” under the Clean Water Act. The NWPR became effective
on June 22, 2020. As a result of the Another reason to establish permanent
state rules is that, a subset of wetlands classified under State law are no
longer subject to federal Clean Water Act jurisdiction. These classified
wetlands remain protected by 15A NCAC 02B .0231 - Wetland Standards,
but, as a result of the Another reason to establish permanent state rules is
that, there was no permitting mechanism available to authorize impacts to
these wetlands. To provide a regulatory mechanism to authorize impacts to
wetlands that are no longer federally jurisdictional, and to provide regulatory
certainty, temporary rules were adopted by the Environmental Management
Commission (EMC) and approved by the Rule Review Commission (RRC)
in May 2021. In accordance with G.S. 150B-21.1(d)(5), these temporary
rules will expire 270 days from the date of publication in the NC Register
unless the permanent rule is adopted by the EMC to replace the temporary
rule. The proposed permanent rules will provide regualatory certainty by
providing a permitting mechanism for wetlands that were determined to be
excluded from Federal jurisdiction during the time the NWPR was effective.

Agency Contact Sue Homewood
[e-mail]
[phone]

Authority G.S. 143-215.1(a)(6); G.S. 143-215(b)(3); G.S. 143-215.3(a)(1); G.S. 143-
215.3(c)

Statement of Necessity These rules are proposed for adoption in order to replace temporary rules
adopted in May of 2021 which provide a permitting mechanism for classified
wetlands and classified surface waters in NC that are no longer eligible for
permitting through Section 401 of the Clean Water Act because of the
adoption of the NWPR.

Hearing Officer Commissioner Maggie Monast
Comment Period October 1, 2021 to December 1, 2021 (DWR issued a Public Notice and
began accepting comments on September 22, 2021)
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Public Hearing November 4, 2021

Appendices APPENDIX 1 – Public Notice of Permanent Rule
APPENDIX 2 – List of Registered Attendees for Virtual Public Hearing
APPENDIX 3 – Link to Audio Recording of the Virtual Public Hearing
APPENDIX 4 – Link to Public Comments
APPENDIX 5 – 2001 Environmental Management Commission
Interpretive Ruling and Department of Justice Advisory
Opinion
APPENDIX 6 – Revised Rule Text
APPENDIX 7 – OSBM Approved Regulatory Impact Analysis
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Background

On April 21, 2020, the U.S. Environmental Protection Agency (EPA) and the Department of the
Army – Corps of Engineers (USACE) published the Navigable Waters Protection Rule in
the Federal Register to finalize a revised definition of “Waters of the United States” under the
Clean Water Act. The NWPR became effective on June 22, 2020. As a result of the NWPR, a
subset of wetlands classified under State law are no longer subject to federal Clean Water Act
jurisdiction. These classified wetlands remain protected by 15A NCAC 02B .0231 - Wetland
Standards, but, as a result of the NWPR, there is no permitting mechanism available to authorize
unavoidable impacts to these wetlands.

To provide a regulatory mechanism to authorize impacts to wetlands that are no longer Federally
jurisdictional and to provide regulatory certainty, temporary rules were adopted by the EMC and
approved by the RRC in May 2021. In accordance with G.S. 150B-21.1(d)(5), these temporary
rules will expire 270 days from the date of publication in the NC Register unless the permanent
rule is adopted by the EMC to replace the temporary rule.

The proposed permanent rules will establish a permitting mechanism for classified wetlands that
are not eligible for coverage under existing wetland permitting rules in 15A NCAC 02H .0500 or
15A NCAC 02H.1300. In addition, definitions for “isolated wetlands” and “isolated waters” are
proposed as a rule amendment to 15A NCAC 02H .1301 in order to define a term that was
previous defined by the USACE.

On August 30, 2021, the U.S. District Court for the District of Arizona vacated the NWPR and in
light of this order the EPA and USACE halted implementation of the Navigable Waters Protection
Rule and are interpreting “Waters of the US” consistent with the pre-2015 regulatory regime. On
November 18, 2021 the EPA and the USACE announced the signing of a proposed rule to revise
the definition of the “Waters of the United States”. On December 7, 2021 this proposed rule was
published in the Federal Register. However, further developments in litigation over the NWPR
have the potential to bring the rule back into effect before new rules are promulgated. Therefore,
permanent rules are still warranted to avoid future regulatory uncertainty.

Another reason to establish permanent state rules is that under existing USACE policy, Approved
Jurisdictional Determination (AJDs) are valid for five years. AJDs that were issued during the
time the NWPR was in effect will remain valid until the expiration dates provided in the approvals
(typically 5 years). Approximately 300 wetlands in North Carolina were identified as “Federally
non-jurisdictional” by USACE issued AJDs between June 2020 and August 2021 in accordance
with the NWPR. The adoption of these permanent rules will provide landowners and applicants
with a permitting mechanism for unavoidable impacts to these wetlands when valid AJDs identify
federally non-jurisdictional wetlands.

Public Comment and Hearing

The proposed permanent rules were approved by the EMC to proceed to public comment and
hearing at the September 2021 EMC meeting. Commissioner Maggie Monast was designated as
the hearing officer.

The proposed rules were published on the Office of Administrative Hearings (OAH) website on
October 1, 2021. The proposed rules were also published on the Division 401 Buffer and
Permitting Branch website and on the Department of Environmental Quality’s (DEQ) proposed
rules website throughout the public comment period.

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The Division also sent a link to the published notice and rule text for public comment to interested
parties via email to the 401 and Buffer Permitting Branch Listserv on September 22, 2021. The
public notice issued by the Division is included in Appendix 1.

Public Hearing

The Division held a virtual public hearing via WebEx Events on November 4, 2021. Commissioner
Maggie Monast served as the hearing officer for the hearing. The public notice also provided a
link for attendees to register to speak at the hearing. The list of people who registered to attend
and speak at the hearing is included in Appendix 2.

Eight people registered to speak at the hearing. Some of the speakers were representing multiple
organizations. In addition, the hearing officer asked if anyone that did not register to speak in
advance would still like to provide comments before the hearing was closed. A link to an audio
recording of the virtual hearing can be found in Appendix 3. A summary of the comments
received during the virtual public hearing is included in Appendix 4. All speakers were in favor of
the proposed permanent rules.

The Division also received 13 written comments. Some of the written comments were submitted
on behalf of multiple organizations. One comment was a petition representing 757 citizens who
signed it. The majority of the comments that were received indicated support for the rules
because the commenter/organization believed that wetland protection was important, and
because the commenter/organization believed that providing a permitting mechanism for the
regulated community was essential. Three commenting organizations stated that they were
opposed to the rules and/or did not believe the rules were necessary.

Comments have been summarized into succinct points for ease of review within this document
and similar comments, written and oral, have been grouped together with one agency response
provided. A few commenters provided specific requests for modifications to the proposed rule
text. Copies of all written comments received, and a staff summary of oral comments received,
are attached in Appendix 4. The Division has reviewed all comments and has proposed some
changes to the text of the rules based on the input received.

Comments and Agency Responses

Written and oral comments in support of the proposed rules and specific items within the rules
and the reasons why. Comments received from North Carolina Wildlife Commission, Eco Terra,
Mountain True, Sound Rivers, Waterkeepers Carolina, Haw River Assembly, North Carolina
Coastal Federation, Yadkin Riverkeeper, NC Conservation Network and 757 signers of a
petition, Southern Environmental Law Center (and on behalf of 20 other organizations), and 5
Individuals.
 Support of the proposed deemed permitted threshold of 0.10 acre of wetlands
o Many wetlands in NC are small and small wetlands can be as important as
large wetlands
o Will provide for reasonable permitting pathway while managing the
resources responsibly
o Will provide important knowledge of what is being impacted
o Development is expected to double in the Piedmont over the next 20 years
where small wetlands are prominent
 Support of the rules to address the permitting gap for wetlands that have been
regulated by the EMC for at least 20 years
 Regulatory certainty is important
 Important to finalize rules with uncertainty of Federal regulations/litigation
 Wetland functions are essential to the health of NC, flood resiliency, coastal seafood
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and fisheries, tourism and recreation
 North Carolina’s water quality and unique landscape depend on the health of the
state’s wetlands
 Wetlands are the kidneys of the coast
 The state has an obligation to protect wetlands
 Will provide mitigation of impacts, not stop impacts
 Important to provide consistency with the 401 Certification program
 Non jurisdictional wetlands provide essential habitat for numerous state and federal
listed species as well as Species of Greatest Conservation Need across the state

No Agency Response Necessary
Written comment from the North Carolina Aggregates Association:
Opposed to the permanent rule because they do not believe that the DEQ has the
authority to implement the opposed rule.

Written comment from the North Carolina Farm Bureau:
States there is a lack of authority under the Administrative Procedures Act (APA). Cites
G.S. 150B-19.3(a) which states that an agency may not adopt a rule for the protection of
the environment or natural resources that imposes a more restrictive standard,
limitation, or requirement than those imposed by federal law or rule, if a federal law or
rule pertaining to the same subject matter has been adopted.

Written comment from the Southern Environmental Law Center (and on behalf of 20 other
organizations):
Permanent rules are within the Environmental Management Commission’s authority –
the Commission has regulated impacts to wetlands covered by the rule for decades.
That authority is well grounded in the North Carolina Constitution, state statute, and
case law. (comment provides citations and attachments of referenced rules, statutes
and case law)

Agency Response:
Prior to proposing new rules, the Division carefully evaluated relevant existing federal and
state regulations and statutes in detail. Based on this review, the Division concluded that the
proposed rules are within the EMC’s authority to adopt and are necessary to provide a
permitting mechanism to the regulated community for unavoidable impacts to wetlands that
are not subject to Section 404 of the Federal Clean Water Act and are not Isolated Wetlands.
Wetland Standards (15A NCAC 02B .0231) were first promulgated by the EMC in 1996. The
standards protect all wetlands within North Carolina pursuant to directives of the North
Carolina General Assembly for the conservation of the State’s water resources and based on
the definition of Waters of the State in General Statute (G.S. 143-212). The Wetland
Standard rules, and state statutes upon which they are promulgated, predate the language
cited in G.S. 150B-19.3(a). The rules being proposed are not “for the protection of the
environment or natural resources that impose a more restrictive standard, limitation or
requirement imposed by federal law or rule” because they are permitting rules which allow for
impacts to wetlands which have been protected since 1996. G.S. 150B-19.3(a) is not
applicable because the Federal definition of "Waters of the United States" only affects the
scope of Federal jurisdiction. Without the proposed permitting rules, the regulated community
has no permitting mechanism under which they may impact the subject wetlands.
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Written comments from the North Carolina Home Builders Association (representing 14,000
firms) and the North Carolina Farm Bureau:
Opposed to the rules because they believe that need for these rules is
misrepresented by the Division and perceive that the Division’s reasoning for the
proposed rules is built upon a state wetland definition that was not properly
adopted in 2019 during the 15A NCAC 02B rules readoption process. They
request that the EMC review the change to the wetland definition that occurred
in the 2019 rulemaking process.

Agency Response:
The rules readoption process for 15A NCAC 02B .0200 was conducted by the Division from
2017 – 2019. The definition of “wetlands” as cited is found specifically in .0202 which was
readopted as part of the Triennial Review. Information related to that process can be found on
the Division’s website – Historical Triennial Review Information 2017-2019. The Rules were
adopted consistent with the APA as evidenced by RRC approval. The readopted rules became
effective on November 1, 2019. The request to the EMC to review the previously conducted
rules readoption process is outside of the purview of the current rulemaking proposal.

This question was brought forth during the rules readoption process and was thoroughly
reviewed by staff at that time. This issue was addressed by an interpretive ruling of the EMC
dated July 12th, 2001 regarding the EMC’s authority to enact rules related to Isolated Wetland
permitting (see Appendix 5). The ruling states that “The definition of “wetlands” in 15A NCAC
2B .0202(71) incorporates the definition of “Waters of the United States” that was present in the
Army Corps of Engineers (33 CFR 328.3) and the Environmental Protection Agency (40 CFR
230.3) regulation at the time the Commission adopted its definition and water quality standards
for wetlands in 1996. 15A NCAC 2B .0202(71); 15A NCAC 2B .0231. By not directing the
Division to include subsequent amendments and editions of the cited federal regulations and
by omitting where copies of the referenced regulations can be obtained, the Commission
incorporated only the definition of wetlands that existed in the cited federal regulations at the
time of the adoption of its wetland rules. G.S.§150B-21.6”. The change to the definition of
wetlands to remove the reference to the US Army Corps of Engineers jurisdiction was done in
order to maintain the definition of “wetlands” from 1996 in accordance with the interpretive
ruling.
Written comment from the North Carolina Aggregates Association:
Do not believe that there is a need for the proposed rule, that the state should not have
the authority to regulate any wetlands other than basins or bogs, that are not regulated
by Section 404 of the Clean Water Act.

Written comment from the Southern Environmental Law Center (and on behalf of 20 other
organizations):
In 2014, the North Carolina General Assembly established a set of impact thresholds for
wetlands that have been the subject of dispute under federal law. In 2015, the North
Carolina General Assembly limited the application of the EMC’s existing isolated
wetlands regulations to “Basin Wetlands” and “Bogs.” Neither the 2014 nor the 2015
session laws applied to the wetlands at issue under the permanent rules, which were
clearly “waters of the United States” at that time and, therefore, regulated by North
Carolina through the Section 401 Certification process. These session laws directed the
EMC to revise North Carolina’s existing isolated wetlands regulations – they did not
repeal the Commission’s authority to authorize or permit activities in wetlands….

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Agency Response:
Prior to proposing new rules, the Division carefully evaluated existing Federal and State
regulations in detail. Based on the Division’s review, the Division concluded that the proposed
rules are necessary in order to provide a permitting mechanism to the regulated community for
unavoidable impacts to wetlands that are not subject to Section 404 of the Federal Clean Water
Act and are not Isolated Wetlands. Wetland Standards (15A NCAC 02B .0231) were
promulgated by the EMC in 1996. The standards protect all wetlands within North Carolina
pursuant to directives of the North Carolina General Assembly for the conservation of the
State’s water resources and based on the definition of Water of the State in General Statute
(G.S. 143-212), while the scope of Federal jurisdiction was always limited by the Clean Water
Act to navigable waters. This was reaffirmed by an interpretive ruling of the EMC dated July
12th, 2001 (Appendix 5) and the 2014 and 2015 Session Laws are examples that the General
Assembly has recognized that the EMC’s jurisdiction to regulate wetland impacts extends to
wetlands that may not fall within Federal jurisdiction The Isolated Wetland Permitting Rules in
2H .1300 were specifically promulgated to provide a permitting mechanism for wetlands that
were determined to be Isolated pursuant by the USACE implementation of the Supreme Court
decision in Solid Waste Authority of Northern Cook County v. US Army Corps of Engineers;
“SWANCC.” and subsequently further refined by guidance following the Supreme Court
decision in Rapanos v. United States & Carabell v. United States “Rapanos”. These wetlands
were defined by the USACE as those that did not have a “significant nexus” to jurisdictional
waters. The narrowing of jurisdiction resulting from the NWPR does not affect the Isolated
Wetland Rules nor the 2014 or 2015 NC Session Laws which mandated changes to those rules,
nor did it affect the EMC’s specific authority by the NC General Assembly to require permits for
activities having impacts to waters of the State.
Written comment from the North Carolina Farm Bureau:
Do not believe that there is a need for the proposed rule given recent vacatur of the
Navigable Waters Protection Rule and announcements from EPA and the USACE
stating that they are beginning rulemaking regarding the definition of Waters of the
United States.

Agency Response:
Until litigation is final, there is a potential that the NWPR could be reinstated. More importantly,
approximately 300 wetlands have been identified as non-jurisdictional by the USACE during
the period of time when the NWPR was in effect and these determinations remain valid until
the expiration date established by the USACE (typically 5 years) irrespective of the status of
the proposed federal rule revising the definition of “Waters of the Unites States.” Project
proponents who have unavoidable impacts to these wetlands would be prevented from
proceeding with their proposed projects without a permitting mechanism. These rules provide
certainty to the regulated community in both cases.
Written comments from the North Carolina Aggregates Association and the North Carolina
Farm Bureau:
Do not agree with DEQ creating a definition of Isolated Wetland and use of the term
“significant nexus” to differentiate isolated wetlands from other non-jurisdictional
wetlands. Believes that DEQ is creating a new class of state isolated wetlands by
adding a definition for isolated wetlands.

Agency Response:
The Isolated Wetland Permitting Rules in 15A NCAC 2H .1300 were specifically promulgated
to provide a permitting mechanism for wetlands that were determined to be Isolated pursuant
to the USACE implementation of the Supreme Court decision in Solid Waste Authority of
Northern Cook County v. US Army Corps of Engineers; “SWANCC.” and subsequently further
refined by guidance following the Supreme Court decision in Rapanos v. United States &
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Carabell v. United States “Rapanos”. These wetlands were defined by the USACE as those
that did not have a “significant nexus” to jurisdictional waters. The narrowing of jurisdiction
resulting from the NWPR does not affect the Isolated Wetland Rules nor the 2014 or 2015 NC
Session Laws which mandated changes to those rules, nor did it affect the EMC’s authority
granted by the NC General Assembly to require permits for activities having impacts to waters
of the State. Since the term “Isolated” is not used in the NWPR, the Division has proposed a
definition for the term “Isolated Wetlands” in an effort to maintain consistency with the permitting
purview of the Isolated Wetlands permitting rule at the time it was promulgated. The inclusion
of the term “significant nexus” ensures consistency with rules and court decisions as
implemented by the USACE prior to the NWPR.
Oral comments from seven speakers (Eco Terra, Mountain True, Sound Rivers,
Waterkeepers Carolina, Haw River Assembly, North Carolina Coastal Federation, Yadkin
Riverkeeper, NC Conservation Network, Southern Environmental Law Center) and written
comments from the Southern Environmental Law Center (and on behalf of 20 other
organizations) and two individuals:
Request that the agency consider lower, or no, deemed permitted thresholds for impacts
to Unique Wetlands and wetlands adjacent to High Quality Water, Outstanding
Resource Waters, 303d listed waters, etc.

Agency Response:
Rule text has modified so as to maintain consistency with the 401 Water Quality Certification
program for specific high quality and sensitive wetlands and waters.
Written comments from two individuals:
Urge that the agency consider a 0-acre [wetland] threshold for deemed permitting as
every small impact has the potential to add up to significant wetland loss across the
state.

Oral comment from Yadkin Riverkeeper:
Would like to see the minimum acreage requirement [deemed permitted] adjusted lower
for smaller wetlands.

Written comment from the North Carolina Farm Bureau:
If the proposed rule is to move forward the NCFB is opposed to the proposed [wetland]
thresholds and proposes that the thresholds should be consistent with the isolated
wetland rule thresholds.

Written comment from the Southern Environmental Law Center (and on behalf of 20 other
organizations):
The rules appropriately set the proposed deemed permitted [wetland] threshold at 0.10
acre.

Agency Response:
The Division acknowledges the comments provided and notes that there are comments
requesting both changes to decrease and to increase the proposed thresholds. Based on
significant comments received during the temporary rule development and evaluation of the
conclusions of the Regulatory Impact Analysis (Appendix 7), the Division has determined that
consistency with the 401 Water Quality Certification program is appropriate at this time. It
should also be noted that in response to the comments, some changes have been proposed to
the rule which will lower the deemed permitted threshold for certain unique and high-quality
wetlands.
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Oral comments from seven speakers (Eco Terra, Mountain True, Sound Rivers,
Waterkeepers Carolina, Haw River Assembly, North Carolina Coastal Federation, Yadkin
Riverkeeper, NC Conservation Network, Southern Environmental Law Center) and written
comment from the North Carolina Coastal Federation, Southern Environmental Law Center
(and on behalf of 20 other organizations), and five individuals:
Request that the agency increase the [wetland] mitigation ratio to greater than 1:1 to
account for lost wetland functions which have been shown as not effectively replaced at
a 1:1 acreage ratio. Most commenters suggested a 2:1 ratio.

Agency Response:
The Division acknowledges the requests and the scientific justification provided for increasing
the mitigation threshold. The Division has determined that consistency with the 401 Water
Quality Certification Rules - 15A NCAC 02H .0500 is appropriate at this time. The Division
believes that further evaluation of these comments should be conducted during the next rules
review and readoption process when it can thoroughly be evaluated for all wetland rules and
programs.
Written comments from the Southern Environmental Law Center (and on behalf of 20 other
organizations):
The final rule should include a more explicit requirement that mitigation occur not just in
the same river basin, but also in the same watershed as the project in question.

Agency Response:
The Division has determined that consistency with the 401 Water Quality Certification Rules -
15A NCAC 02H .0500 is appropriate at this time and therefore proposes no changes to the
requirement that mitigation be provided for in the same river basin as the impact. However,
the Division has realized that it inadvertently omitted a mitigation requirement specific to
Unique Wetlands when drafting these rules and therefore has been added a requirement that
states that mitigation for Unique Wetlands be provided for within the same watershed as the
impact.
Oral comments from Mountain True, Yadkin Riverkeeper, and Haw River Assembly:
Deemed permitted and mitigation thresholds are too high for stream impacts.

Agency Response:
It is the Division’s experience that very few streams are determined by the US Army Corps of
Engineers to be Federally Non-Jurisdictional. The Division proposes to maintain the deemed
permitted and mitigation threshold for streams to be consistent with the 401 Water Quality
Certification Rules 15A NCAC 02H .0500 and Isolated Wetlands and Waters Rules 15A NCAC
2H .1300.
Written comment from Natural Resource Consultants:
The proposed rules provide a permitting system for discharges to this type of wetland.
Discharges are defined as a deposition of dredge or fill material. Limiting the proposed
rules to discharges does not provide a permitting mechanism for other types of impacts
that would violate water quality and wetland standards such as flooding and draining.
These standards are important to protect wetlands and classified surface waters and
require permitting mechanisms for all types of impacts to ensure proper avoidance,
minimization and mitigation. Therefore, the rule should be expanded to apply to all
types of impacts that would otherwise violate water quality standards.

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Agency Response:
The Division agrees that the term “discharge” unnecessarily limits the use of these rules.
Applicants, consultants and engineers have previously expressed concern regarding the
limitations of this term within the other wetland programs. Upon further review it was determined
that the Division used both the term “discharge” and the term “impact” interchangeably
throughout the rules. Therefore, the Division proposes revising the rules to only use the term
“impact” which is consistent with terminology used throughout the other wetland permitting
programs and is well understood by the regulated community. This would allow for these rules
to be utilized for projects that propose alterations that would otherwise violate water quality
standards but would not meet the definition of “discharge.”
Written comment from the North Carolina Farm Bureau:
If the proposed rule is to move forward the rules should be written so that entities do not
require both state and federal permits, should ensure that there state and federal rules
do not overlap or create another “permitting gap” in the future.

Agency Response:
The Division agrees and has strived to create a rule which would not create any overlap
between programs nor create any future permitting gaps.
Written comment from the North Carolina Farm Bureau:
If the proposed rule is to move forward the NCFB would oppose any change that alters
the prior converted cropland exclusion.

Agency Response:
There are no proposed changes to this exclusion.
Written comment from the North Carolina Farm Bureau:
If the proposed rule is to move forward the NCFB believes that proposed rule
appropriately exempts ephemeral streams from regulation and would oppose any
change that would include regulation of ephemeral streams

Agency Response:
There are no proposed changes to this exemption.

Hearing Officer’s Recommendation

The Hearing Officer recommends that the Environmental Management Commission adopt
Permanent Rules .15A NCAC 2H .1401 through .1405 and Permanent Rule Amendment 15A
NCAC 2H .1301 with the following proposed changes (also see specific rule text as shown in
Appendix 6.):

1. Make technical edits to correct typographical errors and to correct terminology errors
identified by staff.
2. Change “discharge” to “impact” throughout Section .1400 in order to expand the use of
these rules to all possible types of projects/impacts and improve consistency in language
used throughout the rules.
3. Add language in .1405 to establish consistency with deemed permitted thresholds and
mitigation requirements for Unique Wetlands, Coastal Wetlands and wetlands adjacent to
various High Quality and other sensitive waterbodies.
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15A NCAC 2H .1405(a)(3): Except for activities that impact wetlands classified as
coastal wetlands [15A NCAC 07H .0205], Unique Wetlands (UWL) [15A NCAC 02B
.0231]; or are adjacent to waters designated as: ORW (including SAV), HQW
(including PNA), SA, WS-I, WS-II, Trout or North Carolina National Wild and Scenic
River, Discharges resulting from activities activities that impact less than or equal to
1/10 acre of federally non-jurisdictional wetlands for the entire project are deemed to
be permitted provided they comply with the conditions listed in Subparagraph (4) of
this Paragraph, and it shall not be necessary for the Division to issue permits for these
activities.
15A NCAC 2H .1405(c)(8): Mitigation for impacts to wetlands designated in
Subparagraph (b)(6) of this Rule shall be of the same wetland type and within the
same watershed when practical;
[Subparagraph (b)(6): “Class UWL wetlands and wetlands that are habitat for state or
federally listed threatened or endangered species”]

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APPENDIX 1

Public Notice of Proposed Rules

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APPENDIX 2

List of Registered Attendees for Virtual Public Hearing

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APPENDIX 3

Link to Audio Recording of Virtual Public Hearing:

https://edocs.deq.nc.gov/WaterResources/Browse.aspx?id=2097046&dbid=0&repo=WaterResources

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APPENDIX 4

Link to Public Comments:

https://edocs.deq.nc.gov/WaterResources/Browse.aspx?id=2097050&dbid=0&repo=WaterResources

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APPENDIX 5

2001 Environmental Management Commission Interpretive Ruling

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APPENDIX 6

Revised Rule Text

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APPENDIX 7

Link to OSBM Approved Regulatory Impact Analysis:

https://edocs.deq.nc.gov/WaterResources/DocView.aspx?id=2104146&dbid=0&repo=WaterResources

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APPENDIX 1

Public Notice of Proposed Rules

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September 22, 2021
TO: DEQ-DWR-Wetlands-Public Listserv
FROM: Jeff Poupart, N.C. Division of Water Resources, Water Quality Permitting Section
RE: Public Hearing for Permanent Rules 15A NCAC 02H .1301 (Revision) and 15A NCAC
02H .1400 (.1401 through .1405)
The purpose of this Public Notice is outlined below. This notice is available electronically at
http://deq.nc.gov/about/divisions/water-resources/water-resources-permits/wastewater-branch/401-
wetlands-buffer-permits/401-public-notices.
I. Public Notice and Notice of a Public Hearing on November 4, 2021 for Permanent Rules 15A NCAC
02H .1301 (Revision) and 15A NCAC 02H .1400 (.1401 through .1405)
PUBLIC NOTICE is hereby given that, on September 9, 2021, the North Carolina Environmental
Management Commission approved the Division of Water Resources (DWR) to initiate rulemaking
for Permanent Rules 15A NCAC 02H .1301 (Revision) and 15A NCAC 02H .1400 (.1401
through .1405).
Background: On April 21, 2020, the U.S. Environmental Protection Agency (EPA) and the Department
of the Army published the Navigable Waters Protection Rule in the Federal Register to finalize a
revised definition of “waters of the United States” under the Clean Water Act (“Federal Rule”). The
new Federal Rule became effective on June 22, 2020. As a result of the new Federal Rule, a subset
of wetlands classified under North Carolina State law are no longer subject to federal Clean Water
Act jurisdiction. These classified wetlands remain protected by 15A NCAC 02B .0231 - Wetland
Standards, but, as a result of the new Federal Rule, there is no permitting mechanism available to
authorize impacts to these wetlands. To provide a regulatory mechanism to authorize impacts to
wetlands that are no longer federally jurisdictional and to provide regulatory certainty, DWR
adopted temporary rules and initiated permanent rulemaking.
The public is hereby notified that DWR will hold a public hearing at 6 p.m. on Thursday, November
4, 2021 via an online WebEx meeting event detailed below. Sign-in will begin at 5:45 p.m. The
purpose of this public hearing is to allow interested persons to submit oral comments regarding the
DWR’s proposed Permanent Rules 15A NCAC 02H .1301 (Revision) and 15A NCAC 02H .1400 (.1401
through .1405).
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Register to attend and/or speak at this hearing using the following registration form. This form will
be active until noon on November 4, 2021.
Registration form: Link to Registration Form: https://forms.office.com/g/FhPHLB99a8
QR Code for Registration Form:
WebEx event address for attendees:
https://ncdenrits.webex.com/ncdenrits/onstage/g.php?MTID=e654c6f5c2c373a09e7107df42864e5
46
Event number: 2425 226 6629 Event password: X2p8DPmSf8p
Audio conference: To receive a call back, provide your phone number when you join the event, or call
the number below and enter the access code.
1-415-655-0003, Access code: 2425 226 6629
The public is also invited to comment in writing on the application. Written comments must be
received by DWR no later than 5:00 p.m. on December 1, 2021. Please email written comments to
[e-mail]. Please include “Wetland Rules” in the email’s subject line.
Comments may also be submitted in writing to: Sue Homewood, Division of Water Resources, 450
W. Hanes Mill Rd, Winston Salem NC 27107.
The proposed permanent rules and supporting documents are available on DWR’s website:
https://deq.nc.gov/about/divisions/water-resources/water-resources-regulations-guidance/401-
buffer-permitting-statutes
The permanent rules and supporting documents are also available at the DWR Central Office,
located at 512 N. Salisbury St., 9th Floor, Raleigh, NC 26704, and may be inspected with an
appointment between 8 am and 5 pm, Monday through Friday, excluding state holidays. For
questions or to schedule an appointment, contact Paul Wojoski at [e-mail] . File
materials may not be removed from any DWR office; copy machines are available for use upon
payment of the cost thereof to DWR pursuant to G.S. 132-6.2.
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APPENDIX 2

List of Registered Attendees for Virtual Public Hearing

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ID Name:Title:Employer/Representing:Email Address:Do you wish to speak at the hearing?
1 Luna Mountainsea member, Friends of Pokeberry Creek Beavers and Wetlands Friends of Pokeberry Creek Beavers and Wetlands [e-mail] No
2 Marjorie Fish JC ROWLAND FARMS LLC [e-mail] No
3 Norton Webster Chief Strategy Officer Eco Terra [e-mail] Yes
4 Jonathan Hinkle Lead Environmental Engineer GPI [e-mail] No
5 Gray Jernigan Southern Regional Director MountainTrue [e-mail] Yes
6 Heather Deck Executive Director Sound Rivers and Waterkeepers Carolina [e-mail] Yes
7 Emily Sutton Haw Riverkeeper Haw River Assembly [e-mail] Yes
8 Kerri Allen Coastal Advocate North Carolina Coastal Federation [e-mail] Yes
9 Anne Coan NC Farm Bureau Federation [e-mail] No
10 Edgar Miller Riverkeeper/Executive Director Yadkin Riverkeeper [e-mail] Yes
11 Grady McCallie Policy Director NC Conservation Network [e-mail] Yes
12 Dakota Loveland Associate Attorney Southern Environmental Law Center [e-mail] No
13 Kelly Moser Senior Attorney Southern Environmental Law Center [e-mail] Yes
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APPENDIX 3

Link to Audio Recording of Virtual Public Hearing:

https://edocs.deq.nc.gov/WaterResources/Browse.aspx?id=2097046&dbid=0&repo=WaterResources

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APPENDIX 4

Link to Public Comments:

https://edocs.deq.nc.gov/WaterResources/Browse.aspx?id=2097050&dbid=0&repo=WaterResources

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APPENDIX 5

2001 Environmental Management Commission Interpretive Ruling

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APPENDIX 6

Revised Rule Text

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15A NCAC 02B .1401 is adopted as published in 36: 07 NCR 443-450 with changes as follows: 1
2
SECTION .1400 – DISCHARGES IMPACTS TO FEDERALLY NON-JURISDICTIONAL WETLANDS 3
AND FEDERALLY NON-JURISDICTIONAL CLASSIFIED SURFACE WATERS 4
5
15A NCAC 02H .1401 SCOPE AND PURPOSE 6
(a) The provisions of this Section shall apply to Division of Water Resources (Division) regulatory and resource 7
management determinations regarding federally non-jurisdictional wetlands and federally non-jurisdictional classified 8
surface waters. For the purpose of this Section, "discharge" shall be the deposition of dredged or fill material (e.g. fill, 9
earth, construction debris, soil.) Isolated wetlands and isolated waters as defined in Rule .1301 of this Subchapter shall 10
be regulated pursuant to Section .1300 of this Subchapter. Federally jurisdictional wetlands and federally 11
jurisdictional classified waters that the U.S. Army Corps of Engineers (USACE) or its designee has determined to be 12
subject to Section 404 of the Clean Water Act shall be regulated pursuant to Section .0500 of this Subchapter. 13
(b) This Section outlines the application and review procedures for permitting of discharges into impacts to federally 14
non-jurisdictional wetlands and federally non-jurisdictional classified surface waters that have been listed in 15A 15
NCAC 02B .0300. If the USACE or its designee determines that a particular water or wetland is not regulated under 16
Section 404 of the Clean Water Act, and the particular water or wetland is not an isolated wetland or isolated water as 17
defined in Rule .1301 of this Subchapter, then discharges impacts to that water or wetland shall be covered by this 18
Section. Where the USACE has not previously confirmed the extent and/or location of the federally non-jurisdictional 19
wetlands, the Division shall confirm the extent and location of federally non-jurisdictional wetlands using the U.S. 20
Army Corps of Engineers Wetland Delineation Manual (Technical Report Y-87-1) (available free of change on the 21
internet at: https://usace.contentdm.oclc.org/digital/collection/p266001coll1/id/4532/) and subsequent regional 22
supplements (available free of charge on the internet at: https://www.usace.army.mil/Missions/Civil-23
Works/Regulatory-Program-and-Permits/reg_supp/). Where the USACE has not previously confirmed the extent 24
and/or location of the federally non-jurisdictional streams, the Division shall confirm the extent and location of 25
federally non-jurisdictional streams using the Division publication, Methodology for Identification of Intermittent and 26
Perennial Streams and Their Origins (v.4.11, 2010). Any disputes by the applicant or landowner over wetland or 27
stream determinations made by the Division shall be referred to the Director in writing within 60 calendar days of 28
written notification from the Division. The Director's determination shall be subject to review as provided in Article 29
3 of G.S. 150B. 30
(c) Activities that result in a discharge an impact may be deemed permitted as described in Rule .1405(a) of this 31
Section or authorized by the issuance of either an individual permit or a Certificate of Coverage to operate under a 32
general permit: 33
(1) Individual permits shall be issued on a case-by-case basis using the procedures outlined in this 34
Section. These individual permits do not require approval by the U.S. Environmental Protection 35
Agency. 36
(2) General permits may be developed by the Division and issued by the Director for types or groups 37
of discharges impacts resulting from activities that are similar in nature and considered to have 38
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minimal impact. General permits do not require approval by the U.S. Environmental Protection 1
Agency. All activities that receive a Certificate of Coverage under a general permit from the 2
Division shall be covered under that general permit. When written approval is required in the general 3
permit, the application and review procedures for requesting a Certificate of Coverage under a 4
general permit from the Division for the proposed activity are the same as the procedures outlined 5
in this Section for individual permits. The Director may require an Individual Permit individual 6
permit for any project if it is deemed in the public’s best interest or determined that the project is 7
likely to have a significant adverse effect upon water quality, including state or federally listed 8
endangered or threatened aquatic species, or will degrade the waters so that existing uses of the 9
waters or downstream waters are precluded. 10
(d) Discharges Impacts resulting from activities that are deemed permitted as described in Rule .1405(a) of this 11
Section, or that receive an individual permit or Certificate of Coverage under a general permit pursuant to this Section 12
shall not be considered to remove existing uses of the wetland or classified surface waters. 13
(e) The following are exempt from this Section: 14
(1) Activities described in 15A NCAC 02B .0230; 15
(2) Discharges Impacts to the following features if they were constructed for erosion control or 16
stormwater management purposes: 17
(A) federally non-jurisdictional man-made wetlands, or 18
(B) federally non-jurisdictional man-made ditches; 19
(3) Discharges Impacts to federally non-jurisdictional man-made ponds; 20
(4) Discharges Impacts to federally non-jurisdictional ephemeral streams as defined by 15A NCAC 02B 21
.0610; 22
(5) Discharges of treated effluent into federally non-jurisdictional wetlands or federally non-23
jurisdictional classified surface waters resulting from activities that receive NPDES Permits or State 24
Non-Discharge Permits; and 25
(6) Discharges Impacts for water dependent structures as defined in 15A NCAC 02B .0202. 26
(f) The terms used in this Section shall be as defined in G.S. 143-212, G.S. 143-213, and Rule .1301 of this Subchapter. 27
28
History Note: Authority G.S. 143-215.1(a)(6); 143-215.1(b)(3); 143-215.3(a)(1); 143-215.3(c); 29
Temporary Adoption Eff. May 28, 2021. 30
Eff. March 1, 2022. 31
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15A NCAC 02B .1402 is adopted as published in 36: 07 NCR 443-450 with changes as follows: 1
2
15A NCAC 02H .1402 FILING APPLICATIONS 3
(a) Any person seeking issuance of an individual permit or Certificate of Coverage under a general permit for 4
discharges resulting from activities that affect propose to impact federally non-jurisdictional wetlands or federally 5
non-jurisdictional classified surface waters shall file with the Director, at 1617 Mail Service Center, Raleigh, North 6
Carolina, 27699-1617, or 512 N Salisbury Street, Raleigh, NC 27604, an original and one copy of an application for 7
a permit or submit one complete application electronically via the following website: 8
https://edocs.deq.nc.gov/Forms/DWR_Wetlands_Online_Submittal_Page. The application shall be made on a form 9
provided or approved by the Division, available electronically via the following website: 10
https://deq.nc.gov/about/divisions/water-resources/water-quality-permitting/401-buffer-permitting-11
branch/application. The application shall include at a minimum the following: 12
(1) the date of application; 13
(2) the name, address, and phone number of the property applicant. If the applicant is not the property 14
owner(s), name, address, and phone number of the property owners(s); 15
(3) if the applicant is a corporation, the name and address of the North Carolina process agency, and 16
the name, address, and phone number of the individual who is the authorized agent of the corporation 17
and responsible for the activity for which certification permit is sought. The corporation must be 18
registered with the NC Secretary of State's Office to conduct business in NC; 19
(4) the nature of the discharge, impact, including cumulative impacts to all wetlands and waters 20
(isolated wetlands, isolated classified surface waters, federally non-jurisdictional wetlands, federally 21
non-jurisdictional classified surface waters, jurisdictional wetlands, and jurisdictional waters) that 22
cause or will cause a violation of downstream water quality standards resulting from an activity to 23
be conducted by the applicant; 24
(5) whether the discharge impact has occurred or is proposed; 25
(6) the location and extent of the discharge, impact, stating the municipality, if applicable, and the 26
county; the drainage basin; the name of the nearest named surface waters; and the location of the 27
point of discharge impact with regard to the nearest named surface waters; 28
(7) an application fee as required by G.S. 143-215.3D. If payment of a fee is required for a 401 Water 29
Quality Certification, then that fee shall suffice for this Rule; 30
(8) a map(s) with scales and north arrows that is legible to the reviewer and of sufficient detail to 31
delineate the boundaries of the lands owned or proposed to be utilized by the applicant in carrying 32
out the discharge: impact; the location, dimensions, and type of any structures that affect federally 33
non-jurisdictional wetlands or federally non-jurisdictional classified surface waters for use in 34
connection with the discharge: impact; and the location and extent of the federally non-jurisdictional 35
wetlands or federally non-jurisdictional classified surface waters within the boundaries of the lands; 36
and 37
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(9) a signature by the applicant or an agent authorized by the applicant. If an agent is signing for the 1
applicant, an agent authorization letter shall be provided. In signing the application, the applicant 2
certifies that all information contained therein or in support thereof is true and correct to the best of 3
their knowledge. 4
(b) The Division may request in writing, and the applicant shall furnish, any additional information necessary to 5
clarify or complete the information provided in the application under Paragraph (a) of this Rule, or to complete the 6
evaluation in Rule .1405 of this Section. 7
(c) If the applicant believes that it is not feasible or is unnecessary to furnish any portion of the information required 8
by Paragraphs (a) and (b) of this Rule, then the applicant shall submit an explanation detailing the reasons for omission 9
of the information. The final decision regarding the completeness of the application shall be made by the Division 10
based upon the information required in Paragraphs (a) and (b) of this Rule, and any explanation provided by the 11
applicant regarding omitted information provided in this Paragraph. 12
(d) Pursuant to G.S. 143-215.3(a)(2), the staff of the Division shall conduct such investigation as the Division deems 13
necessary to clarify the information provided in the application under Paragraph (a) of this Rule or to complete the 14
evaluation in Rule .1405 of this Section. For the purpose of review of an application, the applicant shall allow the staff 15
safe access to the lands and facilities of the applicant proposed impacts and lend such assistance as shall be reasonable 16
for those places, upon the presentation of credentials, and advanced notice of at least three days. 17
(e) Joint applications with 401 certification and/or isolated wetlands permitting submitted to the Division shall suffice 18
for an application pursuant to this Rule, so long as the application contains all of the information required by this Rule 19
and provided that the applicant specifically indicates that authorization is sought under this Rule. 20
(f) Submission of an application to the Division of Coastal Management for a permit to develop in North Carolina’s 21
coastal area in accordance with the rules of 15A NCAC 07J .0200 shall suffice as an application for a water quality 22
certification individual permit or certificate of coverage under a general certification permit upon receipt by the 23
Division from the Division of Coastal Management. 24
25
26
History Note: Authority G.S. 143-214.1; 143-215.1(a)(6); 143-215.3(a)(1); 27
Temporary Adoption Eff. May 28, 2021. 28
Eff. March 1, 2022. 29
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15A NCAC 02B .1403 is adopted as published in 36: 07 NCR 443-450 with changes as follows: 1
2
15A NCAC 02H .1403 PUBLIC NOTICE AND PUBLIC HEARING 3
(a) The Division shall provide public notice for proposed general permits. This notice shall be sent to all individuals 4
on the mailing list described in Paragraph (g) of this Rule and posted on the Division's website: 5
https://deq.nc.gov/about/divisions/water-resources/water-quality-permitting/401-buffer-permitting-branch/public-6
notices. Notice shall be made at least 30 calendar days prior to issuance of the general permit by the Division. Public 7
notice shall not be required for those activities covered by Certificates of Coverage under a general permit. 8
(b) Notice of each pending application for an individual permit shall be sent be to all individuals on the mailing list 9
described in Paragraph (g) of this Rule and shall be posted on the Division's website. Notice shall be made at least 30 10
calendar days prior to proposed final action by the Division on the application. 11
(c) The notice for each pending application for an individual permits shall set forth: 12
(1) the name and address of the applicant; 13
(2) the action requested in the application; 14
(3) the nature and location of the discharge; impact; and 15
(4) the proposed date of final action to be taken by the Division on the application. 16
The notice shall also state where additional information is available online and on file with the Division. Information 17
on file shall be made available upon request between 8:00 am and 5:00 pm, Monday through Friday, excluding State 18
holidays, and copies shall be made available upon payment of the cost thereof to the Division pursuant to G.S. 132-19
6.2. 20
(d) The public notice requirement for an individual permit as described in Paragraph (b) of this Rule may be satisfied 21
by a joint notice with the Division of Coastal Management, pursuant to 15A NCAC 07J .0206, the U.S. Army Corps 22
of Engineers according to their established procedures, by a joint notice by the Division for an individual certification 23
in accordance with Rule .0503 of this Subchapter, or by a joint notice by the Division for an individual permit in 24
accordance with Rule .1303 of this Subchapter. 25
(e) Any person who desires a public hearing on a general permit or an individual permit application shall submit a 26
written request to the to the Division at the address listed in Rule .1402 of this Section. In order to be considered by 27
the Director, the request must be received by the Division within 30 calendar days following the public notice. 28
(f) If the Director determines that there is significant public interest in holding a hearing, based upon such factors as 29
the reasons why a hearing was requested, the nature of the project, and whether the project is likely to have a significant 30
adverse effect upon water quality, including state or federally listed endangered or threatened aquatic species, or will 31
degrade the waters so that existing uses of the waters or downstream waters are precluded, the Division shall notify 32
the applicant in writing that there will be a hearing. The Division shall also provide notice of the hearing to all 33
individuals on the mailing list as described in Paragraph (g) of this Rule and shall post the notice on the Division's 34
website. The notice shall be published at least 30 calendar days prior to the date of the hearing. The notice shall state 35
the time, place, and format of the hearing. The notice may be combined with the notice required under Paragraph (c) 36
of this Rule. The hearing shall be held within 90 calendar days following date of notification to the applicant. The 37
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record for each hearing held under this Paragraph shall remain open for a period of 30 calendar days after the public 1
hearing to receive public comments. 2
(g) Any person may request that he or she be emailed copies of all public notices required by this Rule. The Division 3
shall add the email address of any such person to an email listerv and follow procedures set forth in Rule .0503(g) of 4
this Subchapter. 5
(h) Any public hearing held pursuant to this Rule may be coordinated with other public hearings held by the 6
Department or the U.S. Army Corps of Engineers. 7
8
History Note: Authority G.S. 143-215.1(a)(6); 143-215.3(a)(1); 143-215.3(a)(1e); 143-215.3(a)(3); 143-215.3(c); 9
Temporary Adoption Eff. May 28, 2021. 10
Eff. March 1, 2022. 11
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15A NCAC 02B .1404 is adopted as published in 36: 07 NCR 443-450 with changes as follows: 1
2
15A NCAC 02H .1404 DECISION ON APPLICATION FOR PERMITS OR CERTIFICATES OF 3
COVERAGE 4
(a) The Director shall issue the permit or Certificate of Coverage, deny the application, provide notice of hearing 5
pursuant to Rule .1403 of this Section, or request additional information within 60 calendar days after receipt of the 6
application. When the Director requests additional information, the 60-day review period restarts upon receipt of all 7
of the additional information requested by the Director. Failure to issue the permit or Certificate of Coverage, deny 8
the application, provide notice of hearing, or request additional information within 60 calendar days shall be 9
considered an approval of the application, unless: 10
(1) The applicant agrees, in writing, to a longer period; 11
(2) The final decision is to be made pursuant to a public hearing; 12
(3) The applicant refuses the staff access to its records or premises for the purpose of gathering 13
information necessary to the Director's decision; or 14
(4) Information necessary to the Director's decision is unavailable. 15
(b) The Director shall issue the permit or Certificate of Coverage, deny the application, or request additional 16
information within 60 calendar days following the close of the record for the public hearing. Failure to take action 17
within 60 calendar days shall be considered an approval of the application by the Director, unless Subparagraphs 18
(a)(1), (3), or (4) of this Rule apply. 19
(c) Any permit or Certificate of Coverage issued pursuant to this Section may contain such conditions as the Director 20
shall deem necessary to ensure compliance with this Section, including written post-discharge notification to the 21
Division. Division that the impacts have been completed. 22
(d) Modification or Revocation of permit or Certificate of Coverage: 23
(1) Any permit or Certificate of Coverage issued pursuant to this Section may be subject to revocation 24
or modification by the Director for violation of conditions of the permit or Certificate of Coverage; 25
and 26
(2) Any permit or Certificate of Coverage issued pursuant to this Section may be subject to revocation 27
or modification by the Director upon a determination that information contained in the application 28
or presented in support thereof is incorrect or if the Director finds that the discharge has activities 29
have violated or may violate a downstream water quality standard. 30
(e) The Division shall notify the applicant of the final action to issue or deny the application. In the event that the 31
Director denies the application, the Director shall specify the reasons for the denial. 32
(f) Certificates of Coverage for general permits shall be issued for a period of five years, after which time the approval 33
shall be void, unless the discharge impact is complete or an extension is granted pursuant to Paragraph (h) of this Rule. 34
The permit shall become enforceable when a Certificate of Coverage is issued. 35
(g) Individual permit or Certificate of Coverage renewals shall require a new complete application. 36
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(h) A Permittee may request in writing that the Division grant an extension before the permit expires. An extension 1
may be granted by the Division for a time period of one additional year, provided that the construction has commenced 2
or is under contract to commence before the permit expires. 3
(i) The issuance or denial is a final agency decision that is subject to administrative review pursuant to G.S. 150B-4
23. 5
6
History Note: Authority G.S. 143-215.1(a)(6); 143-215.1(b); 143-215.3(a)(1); 143-215.3(c); 7
Temporary Adoption Eff. May 28, 2021. 8
Eff. March 1, 2022. 9
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15A NCAC 02B .1405 is adopted as published in 36: 07 NCR 443-450 with changes as follows: 1
2
15A NCAC 02H .1405 REVIEW OF APPLICATIONS 3
(a) The following activities shall be deemed to be permitted: 4
(1) Discharges resulting from activities Activities that impact less than 1/2 acre of federally non-5
jurisdictional classified open waters (e.g., lakes, ponds) for the entire project are deemed to be 6
permitted provided they comply with the conditions listed in Subparagraph (4) of this Paragraph, 7
and it shall not be necessary for the Division to issue permits for these activities. 8
(2) Discharges resulting from activities Activities that impact less than a total of 150 linear feet of 9
federally non-jurisdictional classified intermittent and perennial streams for the entire project are 10
deemed to be permitted provided they comply with the conditions listed in Subparagraph (4) of this 11
Paragraph, and it shall not be necessary for the Division to issue permits for these activities. 12
(3) Except for activities that impact wetlands classified as coastal wetlands [15A NCAC 07H .0205], 13
Unique Wetlands (UWL) [15A NCAC 02B .0231]; or are adjacent to waters designated as: ORW 14
(including SAV), HQW (including PNA), SA, WS-I, WS-II, Trout or North Carolina National Wild 15
and Scenic River, Discharges resulting from activities activities that impact less than or equal to 16
1/10 acre of federally non-jurisdictional wetlands for the entire project are deemed to be permitted 17
provided they comply with the conditions listed in Subparagraph (4) of this Paragraph, and it shall 18
not be necessary for the Division to issue permits for these activities. 19
(4) Conditions which shall be met for projects deemed to be permitted: 20
(A) Erosion and sediment control practices are required and shall equal at a minimum those 21
required by the N.C. Division of Energy, Mineral, and Land Resources (DEMLR) or its 22
local delegated program for the Sedimentation Pollution Control Act and shall be in 23
compliance with all DEMLR or appropriate local delegated program specifications 24
governing the design, installation, operation, and maintenance of such practices in order to 25
help assure compliance with the appropriate turbidity and other water quality standards; 26
(B) All erosion and sediment control practices placed in federally non-jurisdictional wetlands 27
or federally non-jurisdictional classified surface waters shall be removed and the original 28
grade restored within two months after the DEMLR or appropriate local delegated program 29
has released the specific drainage area within the project; 30
(C) Uncured or curing concrete shall not come into direct contact with waters of the State; 31
(D) All work in or adjacent to federally non-jurisdictional intermittent or perennial streams 32
shall be conducted so that the flowing stream does not come in contact with the disturbed 33
area; and 34
(E) Measures shall be taken to ensure that the hydrologic functions of any remaining federally 35
non-jurisdictional wetlands and federally non-jurisdictional classified surface waters are 36
not adversely affected by the discharge. impact. 37
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(b) The Division shall issue an individual permit or a Certificate of Coverage under a general permit upon determining 1
that the proposed activity will comply with State water quality standards, which includes designated uses, numeric 2
criteria, narrative criteria, and the State's antidegradation policy, as defined in the rules of 15A NCAC 02B .0200 and 3
the rules of 15A NCAC 02L .0100 and .0200. In assessing whether the proposed activity will comply with water 4
quality standards, the Division shall evaluate if the proposed activity: 5
(1) has no practical alternative. A lack of practical alternatives may be shown by demonstrating that, 6
considering the potential for a reduction in size, configuration, or density of the proposed project 7
and all alternative designs, that the basic project purpose cannot be practically accomplished in an 8
economically viable manner, which would avoid or result in less adverse impact to federally non-9
jurisdictional wetlands and federally non-jurisdictional classified surface waters; 10
(2) has avoided and minimized impacts to federally non-jurisdictional wetlands and federally non-11
jurisdictional classified surface waters to ensure any remaining surface waters or wetlands, and any 12
surface waters or wetlands downstream, continue to support existing uses during and after project 13
completion; 14
(3) would not cause or contribute to a violation of water quality standards; 15
(4) would not result in secondary or cumulative impacts that cause or contribute to, or will cause or 16
contribute to, a violation of downstream water quality standards; and 17
(5) provides for replacement of existing uses through compensatory mitigation as described in 18
Paragraph (c) of this Rule; 19
(6) for Class UWL wetlands and wetlands that are habitat for state or federally listed threatened or 20
endangered species, is necessary to meet a demonstrated public need. 21
(c) Replacement by mitigation of unavoidable losses of existing uses in federally non-jurisdictional wetlands and 22
federally non-jurisdictional classified surface waters shall be reviewed in accordance with all of the following 23
guidelines: 24
(1) The Division shall coordinate mitigation requirements with other permitting agencies that are 25
requiring mitigation for a specific project; 26
(2) Total impacts to less than 1/10 acre of federally non-jurisdictional wetlands shall not require 27
compensatory mitigation. The mitigation ratio for federally non-jurisdictional wetlands shall be 1:1. 28
Impacts to non-jurisdictional wetlands shall not be combined with the project impacts to wetlands 29
that are regulated under Section 404 of the Clean Water Act or isolated wetlands for the purpose of 30
determining when impact thresholds that trigger a mitigation requirement are met; 31
(3) Total impacts to less than 300 linear feet of federally non-jurisdictional perennial streams for the 32
entire project shall not require compensatory mitigation. For linear publicly owned and maintained 33
transportation projects that the U.S. Army Corps of Engineers determines are not part of a larger 34
common plan of development, impacts to less than 300 linear feet per stream shall not require 35
compensatory mitigation. The mitigation ratio for federally non-jurisdictional stream impacts shall 36
be 1:1; 37
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(4) The required area or length of mitigation required shall be multiplied by 1 for restoration, 1.5 for 1
establishment, 2 for enhancement and 5 for preservation. These multipliers do not apply to approved 2
mitigation sites where the Interagency Review Team has approved other ratios; 3
(5) Mitigation shall comply with the requirements set forth in G.S. 143-214.11. Mitigation projects 4
implemented within waters or wetlands that are regulated under Section 404 of the Clean Water Act 5
or Section .1300 of this Subchapter may be used to satisfy the requirements of this Paragraph; 6
(6) Acceptable methods of mitigation mitigation, as defined in 33 CFR Part 332 available free of charge 7
on the internet at: http://water.epa.gov/lawsregs/guidance/wetlands/wetlandsmitigation_index.cfm, 8
include restoration, including both re-establishment and rehabilitation, establishment (creation), 9
enhancement and preservation. No more than 25 percent of the mitigation required by Subparagraph 10
(2) or (3) of this Paragraph may be met through preservation, unless the Director determines that 11
the public good would be better served by a higher percentage of preservation; 12
(7) Mitigation for impacts to federally non-jurisdictional wetlands and federally non-jurisdictional 13
classified surface waters shall be conducted in North Carolina within the same river basin and in 14
accordance with 33 CFR Part 332, available free of charge on the internet at: 15
http://water.epa.gov/lawsregs/guidance/wetlands/wetlandsmitigation_index.cfm, unless otherwise 16
approved by the Director; and 17
(8) Mitigation for impacts to wetlands designated in Subparagraph (b)(6) of this Rule shall be of the 18
same wetland type and within the same watershed when practical; and 19
(8)(9) In-kind mitigation is required unless the Director determines that other forms of mitigation would 20
provide greater water quality or aquatic life benefit. 21
22
History Note: Authority G.S. 143-211(c); 143-214.7C; 143-215.1(a)(6); 143-215.3(a)(1); 143-215.3(c); 23
Temporary Adoption Eff. May 28, 2021. 24
Eff. March 1, 2022. 25
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15A NCAC 02B .1401 is amended as published in 36: 07 NCR 443-450 as follows: 1
2
15A NCAC 02H .1301 SCOPE AND PURPOSE 3
(a) The provisions of this Section shall apply to Division of Water Resources (Division) regulatory and resource 4
management determinations regarding isolated wetlands and isolated classified surface waters. This Section shall only 5
apply to discharges resulting from activities that require State review after October 22, 2001 and that require a Division 6
determination concerning effects on isolated wetlands and isolated classified surface waters. For the purpose of this 7
Section, "discharge" shall be the deposition of dredged or fill material (e.g. fill, earth, construction debris, soil, etc.). 8
(b) This Section outlines the application and review procedures for permitting of discharges into isolated wetlands 9
and isolated classified surface waters that have been listed in 15A NCAC 02B .0300. If the U.S. Army Corps of 10
Engineers (USACE) or its designee determines that a particular stream or open water is not regulated under Section 11
404 of the Clean Water Act, and the stream or open water meets the definition of an isolated water in Paragraph (f) of 12
this Rule, then discharges to that stream or open water or wetland shall be covered by this Section. If the U.S. Army 13
Corps of Engineers USACE or its designee determines that a particular wetland is not regulated under Section 404 of 14
the Clean Water Act Act, that wetland meets the definition of an isolated wetland in Paragraph (f) of this Rule, and 15
that isolated wetland is a Basin Wetland or Bog as described in the North Carolina Wetland Assessment User Manual 16
prepared by the North Carolina Wetland Functional Assessment Team, version 4.1 October 2010 (available online at: 17
https://deq.nc.gov/about/divisions/water-resources/water-quality-permitting/401-buffer-permitting-branch/401-18
isolatedhttps://deq.nc.gov/about/divisions/water-resources/water-resources-data/water-quality-program-19
development/ncwam-manual), then discharges to that wetland shall be covered by this Section. Where the USACE 20
has not confirmed the extent and/or location of the wetlands or surface waters, the The Division shall verify confirm 21
the determination, extent, extent and location of isolated wetlands and isolated classified streams using the U.S. Army 22
Corps of Engineers Wetland Delineation Manual (Technical Report Y-87-1) and subsequent regional supplements 23
and the Division publication, Methodology for Identification of Intermittent and Perennial Streams and Their Origins 24
(v.4.11, 2010). 25
(c) Activities that result in a discharge may be deemed permitted as described in Rule .1305(b)(a) of this Section or 26
authorized by the issuance of either an individual permit or a Certificate of Coverage to operate under a general permit: 27
(1) Individual permits shall be issued on a case-by-case basis using the procedures outlined in this 28
Section. These Individual individual permits do not require approval by the U.S. Environmental 29
Protection Agency. 30
(2) General permits may be developed by the Division and issued by the Director for types or groups 31
of discharges resulting from activities that are similar in nature and considered to have minimal 32
impact. General permits do not require approval by the U.S. Environmental Protection Agency. All 33
activities that receive a Certificate of Coverage under a general permit from the Division shall be 34
covered under that general permit. When written approval is required in the general permit, the 35
application and review procedures for requesting a Certificate of Coverage under a general permit 36
from the Division for the proposed activity are the same as the procedures outlined in this Section 37
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for individual permits. The Director may require an Individual Permit for any project if it is deemed 1
in the public’s best interest or determined that the project is likely to have a significant adverse effect 2
upon water quality, including state or federally listed endangered or threatened aquatic species, or 3
will degrade the waters so that existing uses of the waters or downstream waters are precluded. 4
(d) Discharges resulting from activities that are deemed permitted as described in Rule .1305(a) of this Section, or 5
that receive an individual permit or Certificate of Coverage under a general permit pursuant to this Section shall not 6
be considered to remove existing uses of the isolated wetland or isolated surface waters. 7
(e) The following are exempt from this Section: 8
(1) Activities described in 15A NCAC 02B .0230; 9
(2) Discharges to the following features if they were constructed for erosion control or stormwater 10
management purposes: 11
(A) isolated man-made ponds ponds, isolated man-made wetlands; 12
(B) or isolated man-made ditches; ditches constructed for [erosion control or] stormwater 13
management purposes; 14
(3) Discharges to any man-made isolated pond; 15
(4) Discharges to any isolated wetland not regulated under Section 404 of the Clean Water Act that is 16
not a Basin Wetland or Bog as described in the North Carolina Wetland Assessment User Manual 17
prepared by the North Carolina Wetland Functional Assessment Team, version 4.1 October 2010 18
(available online at: https://deq.nc.gov/about/divisions/water-resources/water-resources-19
data/water-quality-program-development/ncwam-manual); 20
(5) Discharges to isolated ephemeral streams as defined by 15A NCAC 02B .0610; 21
(5)(6) Discharges of treated effluent into isolated wetlands and isolated classified surface waters resulting 22
from activities that receive NPDES Permits or State Non-Discharge Permits; 23
(6)(7) Discharges for water dependent structures as defined in 15A NCAC 02B .0202; and 24
(7)(8) A discharge resulting from an activity if: 25
(A) The discharge resulting from the activity requires a 401 Certification and 404 Permit and 26
these were issued prior to October 22, 2001; 27
(B) The project requires a State permit, such as landfills, NPDES discharges of treated effluent, 28
Non-Discharge Permits, land application of residuals and road construction activities, that 29
has begun construction or are under contract to begin construction and have received all 30
required State permits prior to October 22, 2001; 31
(C) The project is being conducted by the N.C. Department of Transportation and they have 32
completed 30% of the hydraulic design for the project prior to October 22, 2001; or 33
(D) The applicant has been authorized for a discharge into isolated wetlands or isolated waters 34
for a project that has established a Vested Right under North Carolina law prior to October 35
22, 2001. 36
(f) The terms used in this Section shall be as defined in G.S. 143-212 and G.S. 143-213 and as follows: 37
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(1) "Class SWL wetland" means the term as defined at 15A NCAC 02B .0101..0231(a). 1
(2) "Class UWL wetland" means the term as defined at 15A NCAC 02B .0101..0231(a). 2
(3) "Cumulative impact" means environmental impacts resulting from incremental effects of an activity 3
when added to other past, present, and reasonably foreseeable future activities, regardless of what 4
entities undertake such other actions. 5
(4) "Director" means the Director of the Division. 6
(5) "Division" means the Division of Water Resources of the North Carolina Department of 7
Environmental Quality. 8
(6) “Isolated Wetland” means: 9
(A) a wetland confirmed to be isolated by the USACE; or 10
(B) a wetland that has been determined to be non-jurisdictional by the USACE but has not been 11
confirmed to be isolated as indicated in Part (A) of this Subparagraph, and for which an 12
evaluation confirmed by the Division documents that a significant nexus is not present 13
pursuant to the Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision 14
in Rapanos v. United States & Carabell v. United States memorandum dated December 02, 15
2008 (available online at: https://deq.nc.gov/about/divisions/water-resources/water-16
quality-permitting/401-buffer-permitting-branch/401-isolated). 17
(7) “Isolated Waters” means: 18
(A) a surface water confirmed to be isolated by the USACE; or 19
(B) a surface water that has been determined to be non-jurisdictional by the USACE but has 20
not been confirmed to be isolated as indicated in Part (A) of this Subparagraph, and for 21
which an evaluation confirmed by the Division documents that a significant nexus is not 22
present pursuant to the Clean Water Act Jurisdiction Following the U.S. Supreme Court’s 23
Decision in Rapanos v. United States & Carabell v. United States memorandum dated 24
December 02, 2008. [2008 (available online at: https://deq.nc.gov/about/divisions/water-25
resources/water-quality-permitting/401-buffer-permitting-branch/401-isolated).] 26
(8) “Project” means the total project proposed or accomplished by one owner/developer or partnership 27
or other association of owners/developers. 28
(6)(9) "Secondary impact" means indirect effects, which are caused by the action and are later in time or 29
farther removed in distance, but are still reasonably foreseeable to the applicant or the Division. 30
(7)(10) "Wetland" means the term as defined in 15A NCAC 02B .0202. 31
32
33
History Note: Authority G.S. 143-215.1(a)(6); 143-215.1(b)(3); 143-215.3(a)(1); 143-215.3(c); S.L. 2014-120, s. 34
54; S.L. 2015-286, s. 4.18; 35
Codifier determined that findings did not meet criteria for temporary rule on September 26, 2001 36
and October 12, 2001; 37
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Temporary Adoption Eff. October 22, 2001; 1
Eff. April 1, 2003; 2
Readopted Eff. June 15, 2020. 3
Temporary Amendment Eff. May 28, 2021. 4
Amended Eff. March 1, 2022. 5
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APPENDIX 7

Link to OSBM Approved Regulatory Impact Analysis:

https://edocs.deq.nc.gov/WaterResources/DocView.aspx?id=2104146&dbid=0&repo=WaterResources

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