Subchapter 1D - Conformity with North Carolina Environmental Policy Act

September 24, 1986

SUBCHAPTER 1D - CONFORMITY WITH NORTH CAROLINA
ENVIRONMENTAL POLICY ACT

SECTION .0000 - GENERAL PROVISIONS

.0001 PURPOSE
.0002 INCORPORATION OF STATE REGULATIONS
.0003 RESPONSIBLE STATE OFFICIAL: DELEGATION
.0004 APPLICABILITY OF ACT TO DEPARTMENT ACTIONS
.0005 EFFECT OF PROPOSED ACTION ON THE ENVIRONMENT OF THE
STATE
.0006 PREPARATION AND FORM OF ENVIRONMENTAL IMPACT
STATEMENT
.0007 REVIEW PROCEDURES FOR ENVIRONMENTAL IMPACT
STATEMENT
.0008 APPROVAL AND PREPARATION OF ENVIRONMENTAL IMPACT
STATEMENT
.0009 RECORD OF ACTIONS

History Note: Statutory Authority G.S. 113A, Article
143B-10;
Eff. February 1, 1976;
Repealed Eff.

SECTION .0100 - GENERAL PROVISIONS

.0101 STATEMENT OF PURPOSE, POLICY, AND SCOPE
(a) The purpose of the rules in this Subchapter is to
establish procedures within the Department of Natural
Resources and Community Development (NRCD) for conforming
with the North Carolina Environmental Policy Act (NCEPA).
(1) Rules for implementation of the NCEPA (1 NCAC
25) as amended effective February 1, 1986,
are hereby incorporated by reference.
(2) The NRCD's procedures must insure that
environmental documents are available to
public officials and citizens before
decisions are made and before actions are
taken. The information must be of high
quality and sufficient to allow selection among
alternatives.
(b) The Secretary is the 'responsible state official"
for NRCD The Secretary may delegate responsibility for the
implementation of the NCEPA to an appropriate staff member.
(c) The provisions of the rules in this Subchapter, the
state rules (1 NCAC 25), and the NCEPA must be read together
as a whole in order to comply with the spirit and letter of
the law.
(d) For the purpose of this chapter:
(1) "Agency" means the Divisions and Offices of NRCD,

as well as the boards, commissions, committees,
and councils of NRCD with decision-making
authority; except where the context clearly
indicates otherwise.
(2) "Cumulative Effect" results from the incremental
impact of the proposed activity when added to
other past, present, and reasonably foreseeable
future activities regardless of what entities
undertake such other activities. Cumulative
effects can result from individually minor but
collectively significant activities taking place
over a period of time.
(3) "Major Activity" means any activity with a
potential for significantly affecting the quality
of the environment, depending upon how the
activity is carried out, including but not
limited to construction, management, and
maintenance programs and projects.
(4) "Minor Activity" includes those activities that
are clearly not major and have only a minimum
potential for significantly affecting the quality
of the environment.
(5) "Non-State Entity" includes local governments,
special purpose units of government, contractors,
and individuals/corporations to which the NCEPA
may apply.
(6) "Secondary Effects" are caused by and result from
the proposed activity although they are later in
time or farther removed in distance, but they are
still reasonably foreseeable.
(7) "Secretary" means the Secretary of NRCD.
(8) "Worst Case Analysis" means an analysis of the
potential environmental effects of a proposed
activity assuming the most severe consequences
that might reasonably occur in the given
situation.

History Note: Statutory Authority G.S.

.0102 AGENCY COMPLIANCE
Each NRCD agency shall interpret the provisions of the
NCEPA as a supplement to its existing authority and as a
mandate to view its policies and programs in the light of
the NCEPA's comprehensive environmental objectives, except
where existing law applicable to the agency's operations
expressly prohibit or make compliance impossible.

History Note: Statutory Authority G.S.

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SECTION .0200 - INTEGRATION WITH AGENCY ACTIVITY

.0201 EARLY APPLICATION OF THE NCEPA
(a) Environmental documents shall be prepared for the
following agency activities, where it is deemed by the
Secretary that a potential effect upon the environment of
the State may result. This does not include activities
excluded by the minimum criteria set out in Section .0500 of
this Subchapter.
(1) Proposed master plans and management plans for
the development or management of lands and waters
owned or managed by any NRCD agency, including
public trust areas.
(2) Proposed construction of facilities or
infrastructures on lands and waters owned or
managed by any NRCD agency. This requirement may
be met in-whole or in-part through the
fulfillment of Paragraph (a) (1) of this Rule.
(3) Specific programs conducted by NRCD agencies
on lands and waters or in the atmosphere
owned or managed by the State.
(4) Projects to be conducted by governmental agencies
or for projects to be supported in-whole or
in-part by public monies, and requiring NRCD
approval.
(b) Environmental documents shall be issued by NRCD
agencies for local government and private activities in
those cases where NRCD has State Project Agency
responsibility.

History Note: Statutory Authority G.S.

.0202 WHEN TO PREPARE ENVIRONMENTAL DOCUMENTS
(a) Agencies may prepare an environmental document on any
activity at any time in order to assist agency planning and
decision-making.
(b) Agencies shall prepare an environmental assessment in
accordance with the NCEPA and the related state rules at 1
NCAC 25 for those activities above the thresholds set in
NRCD's minimum criteria as set out in Section .0500 of this
Subchapter.
(c) An assessment is not necessary if an agency has
decided to prepare an environmental impact statement,
because the scope or complexity of the activity has a clear
potential for environmental effects.

History Note: Statutory Authority G.S.

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.0203 LEAD AND COOPERATING AGENCY RESPONSIBILITY
Where NRCD is the State Project Agency the Secretary shall
appoint a lead agency and cooperating agencies as
appropriate. The lead and cooperating agency's
responsibilities shall be established by the Secretary.

History Note: Statutory Authority G.S.

.0204 SCOPING AND HEARINGS

NRCD agencies shall utilize scoping and hearing processes
in their NCEPA activities appropriate to the complexity,
potential for environmental effects, and level of expressed
interest associated with the proposed activity. Scoping and
hearings shall be carried out in a manner established by the
Secretary.

History Note: Statutory Authority G.S.

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SECTION .0300 - PREPARATION OF ENVIRONMENTAL
DOCUMENTS

.0301 IMPLEMENTATION
NRCD agencies shall prepare environmental documents in
accordance with the NCEPA, its related rules at
1 NCAC 25, the rules in this Subchapter, and procedures
established by the Secretary.

History Note: Statutory Authority G.S.

.0302 INCORPORATION BY REFERENCE
(a) Agencies shall incorporate material into
environmental documents by reference to cut down on bulk
without impeding agency and public reviews of the action.
The incorporated material shall be cited in the document and
its contents briefly described.
(b) Incorporated-by-reference material must be reasonably
available for inspection by reviewers and potentially
interested persons within the time allowed for comment.

History Note. Statutory Authority G.S.

.0303 INCOMPLETE OR UNAVAILABLE INFORMATION
(a) Where an agency is evaluating significant effects
upon the environment in an environmental document and there
are gaps in relevant information or scientific uncertainty,
the agency should always make clear that such information is
lacking or that uncertainty exists.
(b) If the information relevant to the effects is
essential to a reasonable choice among alternatives and the
overall costs of and time for obtaining it are not out of
proportion to the potential environmental effects of the
activity, the agency should include the information in the
environmental document.
(c) If the information relevant to the effects is
e ssential to a reasoned choice among alternatives and the
overall cost of and time for obtaining it are out of
proportion to the potential environmental effects of the
activity, or the means of obtaining it are not known (beyond
the state of the art), then the agency shall weigh the need
for the action against the risk and severity of possible
adverse impacts were the action to proceed in the face of
uncertainty. If the agency proceeds, it shall include a
worst case analysis in the environmental document, with an
indication of the probability or improbability of its
occurrence to assist decision makers and the public in
evaluating the alternatives.

History Note: Statutory Authority G.S.

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SECTION .0400 - OTHER REQUIREMENTS

.0401 AGENCY DECISION -MAKING PROCEDURES
To ensure that NRCD agency decisions are made in
accordance with the policies and purposes of the NCEPA, the
continuing responsibility for conforming existing and new
procedures and rules shall be conducted in accordance with
the directives of the Secretary.

History Note: Statutory Authority G.S.

.0402 LIMITATION ON ACTIONS DURING NCEPA PROCESS
(a) While work on an environmental document is in
progress and the activity is not covered by an existing
environmental document, no agency shall undertake in the
interim any action which might:
(1) limit the choice among alternatives or
otherwise prejudice the ultimate decision on the
issue; or
(2) have an environmental effect of its own.
(b) If an agency is considering a proposed action for
which an environmental document is to be or is being
prepared, the agency shall promptly notify the initiating
party that the agency cannot take final action until the
environmental documentation is completed and available for
use as a decision-making tool. The notification shall be
consistent with the statutory and regulatory requirements of
the agency and may be in the form of a notification that the
application is incomplete.
(c) When an agency decides that a proposed activity, for
which state actions are pending or have been taken, requires
environmental documentation then the agency should promptly
notify all action agencies of the decision. When statutory
and regulatory requirements prevent an agency from
suspending action, the agency shall deny any action for
which it determines an environmental document is necessary
but not yet available as a decision-making tool.

History Note: Statutory Authority G.S.

.0403 EMERGENCIES
(a) Where emergency circumstances make it necessary to
take an otherwise lawful action with potential environmental
effects without observing the public review provisions of
the NCEPA, the agency taking the action should notify the
Secretary and limit actions to those necessary to control
and mitigate for the immediate threat to the public health,
safety, and welfare.
(b) Agencies are encouraged to prepare and maintain

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environmental documents for repetitive emergency programs
affecting the public, to review the scope of involved
activities, identify specific effects to be expected, and
mitigation measures that can be employed in various
circumstances to assure protection of the public and
long-term environmental productivity.

History Note: Statutory Authority G.S.

.0404 NON -STATE INVOLVEMENT AND CONTRACTORS
(a) If a lead agency requires a non-state entity to
submit environmental information for use by the agency in
preparing an environmental document for the non-state
entity's activity, then the agency shall assist by outlining
the types of information requested. The agency shall
independently evaluate the information provided and shall be
responsible for its accuracy.
(b) If a lead agency permits a non-state entity to
prepare an environmental document, the lead agency shall
furnish guidance and participate in the preparation, and
take responsibility for its scope, objectivity, content, and
accuracy.
(c) An environmental document may be prepared by a
contractor, either selected by or acceptable to the lead
agency.

History Note: Statutory Authority G.S.

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SECTION .0500 - MINIMUM CRITERIA

.0501 PURPOSE
This Section establishes minimum criteria to be used in
determining when environmental documents are not required.
The minimum criteria, as defined in state rules at 1 NCAC
25, shall be used by the Secretary and NRCD agencies to
provide sound decision-making processes by allowing
separation of activities with a high potential for
environmental effects (major) from those with only a minimum
potential (minor).

.0502 MAJOR ACTIVITIES
(a) Major activities requiring environmental documents
for review by decision-makers and the public are those
presented in SECTION .0200 of this Subchapter, and not
otherwise excluded by these minimum criteria.
(b) Major activities taken after preparation of and in
conformance with a master plan, management plan, or program
for which an environmental document was completed, may
require an environmental assessment, a finding of no
significant impact, or a record of decision. Determination
of which type of document is most appropriate will be made
after considering:
(1) the need for updating information in the earlier
broader document as it relates to current
conditions and the proposed activity, and
(2) the specificity and sufficiency of the earlier,
broader document in addressing the effects of
the proposed activity.

History Note: Statutory Authority G.S.

.0503 EXCEPTIONS TO MINIMUM CRITERIA
Any activity falling within the parameters of the minimum
criteria set out in Rule .0504 of this Section will not
routinely be required to file environmental documents under
the NCEPA. However, the Secretary of NRCD may determine
that environmental documentation is required in any case
where one of the following findings applies to a proposed
activity.
(1) The proposed activity may have a potential for
significant adverse affects on wetlands,
parklands, prime or unique agricultural lands, or
areas of recognized scenic, recreational,
archaeological, or historical value including
indirect effects; or would threaten a habitat
identified on the Department of Interior's or the
State's threatened and endangered species lists.
(2) The proposed activity could cause significant
changes in industrial, commercial, residential,

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agricultural, or silvicultural land use
concentrations or distributions which would be
expected to create adverse water quality, air
quality, or ground water impacts; or affect
long-term recreational benefits, shellfish,
wildlife, or their natural habitats.
(3) The proposed activity has secondary or is part of
cumulative effects not generally covered in the
approval process for the state action that may
result in a potential risk to human health or the
environment.
(4) The proposed activity is of such an unusual
nature or has such widespread implications that
an uncommon concern for its environmental effects
has been expressed to the agency.

History Note: Statutory Authority G.S.

.0504 MINOR ACTIVITY
The following minimum criteria are established as an
indicator of the types and classes of thresholds of activity
at and below which environmental documentation under the
NCEPA is not required. As set out in Rule .0502 of this
Subsection, the Secretary may require environmental
documentation for activities that would otherwise qualify
under these minimum criteria thresholds.
(a) Sampling, survey, monitoring and related research
activities including but not limited to the following:
(1) Aerial photography projects involving the
photographing or mapping of the lands of the
state.
(2) Biological sampling and monitoring of fisheries
resources through the use of traditional
commercial fishing gear, electricity, and
rotenone.
(3) Soil survey projects involving the sampling or
mapping of the soils of the state.
(4) Establishing stream gaging stations for the
purpose of measuring water flow at a particular
site.
(5) Placement of monitoring wells for the purpose of
measuring groundwater levels, quantity, or
quality.
(6) Gathering surface or subsurface information on
the geology, minerals, or energy resources, of
the state.
(7) Placement and use of geodetic survey control
points.
(8) Other routine survey and resource monitoring
activities, or other temporary activities
required for research into the environment which
have minimum long-term effects.

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(b) Standard maintenance or repair activities as needed
to maintain the originally defined function of a project or
facility (but without expansion, increase in quantity, or
decrease in quality) including but not limited to the
following:
(1) Buildings, and their furnishings and
facilities.
(2) Roads, bridges, parking lots, and their related
facilities.
(3) Utilities (water, sewer, and electricity) on
their existing rights-of-way.
(4) Storm sewer and surface drainage systems.
(5) Boat ramps, docks, piers, bulkheads, and
associated facilities at water-based recreation
sites.
(6) Diked, highground dredge -spoiled disposal areas.
(7) Activities necessary to fulfill the existing
requirements of in-effect permits for the
protection of the environment and human health.
(8) Other maintenance and repair activities on
previously approved projects, consistent with
existing environmental documents.
(c) Minor construction activities including but not
limited to the following:
(1) New and expanded surface discharge facilities
less than 1,000,000 gallons per day.
(2) Waste water spray irrigation systems not greater
than 100,000 gallons per day.
(3) Sludge disposal facilities on sites of less than
500 cumulative acres and for which the sludge has
been determined to be not a hazardous waste.
(4) Sewer extensions with less than 10 miles of new
lines and a design volume not exceeding 5,000,000
gallons per day, or individual pump stations not
exceeding 5,000,000 gallons per day.
(5) New and expanded subsurface waste water systems
with a final design capacity not exceeding
30,000 gallons per day.
(6) Groundwater withdrawals of less than 1,000,000
gallons per day in the Piedmont and Mountain
regions of the state or from the uppermost
aquifer in the Coastal Plain region; and
groundwater withdrawals less than 3,000,000
gallons per day from the confined aquifers of the
Coastal Plain region; where such withdrawals are
not expected to cause a significant alteration in
established land use patterns, or degradation of
groundwater or surface water quality.
(7) Air emissions of pollutants from a minor source,
or modifications as defined in 15 NCAC 2 D .0530,
that are less than 100 tons per year or 250 tons
per year as defined therein.
(8) Dams less than 25 feet in height and having less
than 50 acre feet of storage capacity.

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(9) Landscaping, sidewalks, trails, walls, gates, and
related facilities.
(10) Small buildings or structures ancillary to the
primary use of an existing facility.
(11) Buildings or structures not requiring plumbing,
electrical or other service connections.
(d) Management activities including but not limited to
the following:
(1) Replenishment of shellfish beds through the
placement of shell or seed oysters on depleted
and/or suitable marine habitat.
(2) Creation and enhancement of marine fisheries
habitat through the establishment of artificial
reefs on Environmental Protection Agency, U. S.
Army Corps of Engineers, Natural Marine Fisheries
Service, and U. S. Fish & Wildlife Service
approved sites, including the use of artificial
reef construction material requiring an EPA
certificate of cleanliness from petroleum based
products and other pollutants.
(3) Placement of fish attractors and shelter in
public waters.
(4) Translocation and stocking of native fish and
wildlife in accordance with wildlife management
plans.
(5) Reintroduction of native endangered or threatened
species in accordance with Federal guidelines or
recovery plans.
(6) Production of native and agricultural plant
species to create or enhance fish or wildlife
habitat and forest resources, including
fertilization, planting, mowing, and burning in
accordance with management plans.
(7) Timber harvest in accordance with timber
management plans.
(8) Reforestation of timberlands in
accordance with timber management plans.
(9) Control of forest or agricultural insects and
disease outbreaks, by the lawful application of
labeled pesticides and herbicides by licensed
applicators, on areas of no more than 100 acres.
(10) Control of aquatic weeds in stream channels,
canals, and other water bodies, by the lawful
application of labeled herbicides by licensed
applicators, on areas of no more than two acres
or 25 per cent of the surface area, whichever is
less.
Removal of logs, stumps, trees, and other debris
from stream channels, where there is no channel
excavation.
(12) Dredging of existing navigation channels and
basins, provided that the spoil is placed in
existing and approved high ground disposal areas.

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(13) Controlled or prescribed burning for wildlife and
timber enhancement in accordance with applicable
management plans.
(14) Discharges of water treatment plant filter
backwash and swimming pool filter backwash
(15) Drainage projects where the water table will not
be lowered more than one foot over an area of 5
square miles or less.
(16) Manipulation of water levels in reservoirs or
impoundments in accordance with approved
management plans, for the purpose of providing
for water supply storage, flood control,
recreation, hydroelectric power, and fish and
wildlife.
(17) Increases or modification in previously permitted
discharges not exceeding 1,000,000 gallons per
day or greater than 15% in daily waste loading.
(18) Installation of on-farm Best Management Practices
for the N. C. Cost Share Program For Nonpoint
Source Pollution Control codified as 15 NCAC 6E.
(19) Continuation of previously permitted activities
where no increase in quantity or decrease in
quality are proposed.
(20) Acquisition or acceptance of real property to be
retained in a totally natural condition for its
environmental benefits, or to be managed in
accordance with plans for which environmental
documents have been approved.
(21) Care of all trees, plants, and groundcovers on
public lands.
(22) Care, including medical treatment, of all animals
maintained for public display.

History Note: Statutory Authority G.S.

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