HomeMy WebLinkAbout15a ncac 02b .026715A NCAC 02B .0267 JORDAN WATER SUPPLY NUTRIENT STRATEGEY: PROTECTION OF
EXISTING RIPARIAN BUFFERS
(See S.L. 2013-395)
Protection of the nutrient removal and other water quality benefits provided by riparian buffers throughout the watershed
is an important element of the overall Jordan water supply nutrient strategy. The following is the strategy for riparian
buffer protection and maintenance in the Jordan watershed, as prefaced in 15A NCAC 02B .0262:
(1) PURPOSE. The purposes of this Rule shall be to protect and preserve existing riparian buffers
throughout the Jordan watershed as generally described in 15A NCAC 02B .0262, in order to maintain
their nutrient removal and stream protection functions. Additionally this Rule will help protect the
water supply uses of Jordan Reservoir and of designated water supplies throughout the Jordan
watershed. Local governments shall establish programs to meet or exceed the minimum requirements
of this Rule. The requirements of this Rule shall supersede all locally implemented buffer
requirements stated in 15A NCAC 02B .0214 through .0216 as applied to WS-II, WS-III, and WS-IV
waters in the Jordan watershed. Local governments subject to this Rule may choose to implement
more stringent requirements, including requiring additional buffer width.
(2) DEFINITIONS. For the purpose of this Rule, these terms shall be defined as follows:
(a) 'Access Trails' means pedestrian trails constructed of pervious or impervious surfaces and
related structures to access a surface water, including boardwalks, steps, rails, and signage.
(b) 'Airport Facilities' means all properties, facilities, buildings, structures, and activities that
satisfy or otherwise fall within the scope of one or more of the definitions or uses of the
words or phrases 'air navigation facility', 'airport', or 'airport protection privileges' under G.S.
63-1; the definition of 'aeronautical facilities' in G.S. 63-79(1); the phrase 'airport facilities' as
used in G.S. 159-48(b)(1); the phrase 'aeronautical facilities' as defined in G.S. 159-81 and
G.S. 159-97; and the phrase 'airport facilities and improvements' as used in Article V, Section
13, of the North Carolina Constitution, which shall include, without limitation, any and all of
the following: airports, airport maintenance facilities, clear zones, drainage ditches, fields,
hangars, landing lighting, airport and airport-related offices, parking facilities, related
navigational and signal systems, runways, stormwater outfalls, terminals, terminal shops, and
all appurtenant areas used or suitable for airport buildings or other airport facilities, and all
appurtenant rights-of-way; restricted landing areas; any structures, mechanisms, lights,
beacons, marks, communicating systems, or other instrumentalities or devices used or useful
as an aid, or constituting an advantage or convenience to the safe taking off, navigation, and
landing of aircraft, or the safe and efficient operation or maintenance of an airport or
restricted landing area; easements through, or interests in, air space over land or water,
interests in airport hazards outside the boundaries of airports or restricted landing areas, and
other protection privileges, the acquisition or control of which is necessary to ensure safe
approaches to the landing areas of airports and restricted landing areas, and the safe and
efficient operation thereof and any combination of any or all of such facilities.
Notwithstanding the foregoing, the following shall not be included in the definition of 'airport
facilities':
(i) Satellite parking facilities;
(ii) Retail and commercial development outside of the terminal area, such as rental car
facilities; and
(iii) Other secondary development, such as hotels, industrial facilities, free-standing
offices and other similar buildings, so long as these facilities are not directly
associated with the operation of the airport, and are not operated by a unit of
government or special governmental entity such as an airport authority, in which
case they are included in the definition of 'airport facilities'.
(c) 'Forest management plan' means as defined in Chapter 160A-458.5(4).
(d) 'Forest plantation' means an area of planted trees that may be conifers (pines) or hardwoods.
On a plantation, the intended crop trees are planted rather than naturally regenerated from
seed on the site, coppice (sprouting), or seed that is blown or carried into the site.
(e) 'Greenway / Hiking Trails' means pedestrian trails constructed of pervious or impervious
surfaces and related structures including but not limited to boardwalks, steps, rails, and
signage, and that generally run parallel to the shoreline.
(f) 'High Value Tree' means a tree that meets or exceeds the following standards: for pine
species, 14-inch DBH or greater or 18-inch or greater stump diameter; or for hardwoods and
wetland species, 16-inch DBH or greater or 24-inch or greater stump diameter.
(g) 'Shoreline stabilization' is the in-place stabilization of an eroding shoreline. Stabilization
techniques which include "soft" methods or natural materials (such as root wads, or rock
vanes) may be considered as part of a restoration design. However, stabilization techniques
that consist primarily of "hard" engineering, such as concrete lined channels, riprap, or
gabions, while providing bank stabilization, shall not be considered stream restoration.
(h) 'Stream restoration' is defined as the process of converting an unstable, altered or degraded
stream corridor, including adjacent riparian zone and flood-prone areas to its natural or
referenced, stable conditions considering recent and future watershed conditions. This
process also includes restoring the geomorphic dimension, pattern, and profile as well as
biological and chemical integrity, including transport of water and sediment produced by the
stream's watershed in order to achieve dynamic equilibrium. 'Referenced' or 'referenced
reach' means a stable stream that is in dynamic equilibrium with its valley and contributing
watershed. A reference reach can be used to develop natural channel design criteria for
stream restoration projects.
(i) 'Stump diameter' means the diameter of a tree measured at six inches above the ground
surface level.
(j) 'Temporary road' means a road constructed temporarily for equipment access to build or
replace hydraulic conveyance structures such as bridges, culverts, pipes or water dependent
structures, or to maintain public traffic during construction.
(3) APPLICABILITY. This Rule applies to all landowners and other persons conducting activities in the
Jordan watershed, including state and federal entities, and to all local governments in the Jordan
watershed, as described in 15A NCAC 02B .0262. Local governments shall develop riparian buffer
protection programs for approval by the Commission, incorporating the minimum standards set out
throughout this Rule and shall apply the requirements of this Rule throughout their jurisdictions within
the Jordan watershed except where The Division shall exercise jurisdiction. For the following types of
buffer activities in the Jordan watershed, wherever local governments are referenced in this Rule, the
Division shall implement applicable requirements to the exclusion of local governments:
(a) Activities conducted under the authority of the State.
(b) Activities conducted under the authority of the United States.
(c) Activities conducted under the authority of multiple jurisdictions.
(d) Activities conducted under the authority of local units of government.
(e) Forest harvesting activities described in Item (14) of this Rule.
(f) Agricultural activities.
(g) Activities conducted in a location where there is no local government program implementing
NPDES stormwater requirements, Water Supply Watershed requirements, or a voluntary
local stormwater or buffer initiative at the time of the activity.
(4) BUFFERS PROTECTED. The following minimum criteria shall be used for identifying regulated
buffers:
(a) This Rule shall apply to activities conducted within, or outside of with impacts upon, 50-foot
wide riparian buffers directly adjacent to surface waters in the Jordan watershed (intermittent
streams, perennial streams, lakes, reservoirs and ponds), excluding wetlands.
(b) Wetlands adjacent to surface waters or within 50 feet of surface waters shall be considered as
part of the riparian buffer but are regulated pursuant to 15A NCAC 02H .0506.
(c) A surface water shall be subject to this Rule if the feature is approximately shown on any of
the following references, and shall not be subject if it does not appear on any of these
references:
(i) The most recent version of the soil survey map prepared by the Natural Resources
Conservation Service of the United States Department of Agriculture.
(ii) The most recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic
maps prepared by the United States Geologic Survey (USGS).
(iii) Maps approved by the Geographic Information Coordinating Council and by the
Commission. Prior to approving such maps, the Commission shall provide a 30-day
public notice and opportunity for comment. Maps approved under this sub-item
shall not apply to projects that are existing and ongoing within the meaning of this
Rule as set out in Item (6).
(d) Where the specific origination point of a stream regulated under this Item is in question, upon
request of the Division or another party, the local government shall make an on-site
determination. A local government representative who has successfully completed the
Division's Surface Water Identification Training Certification course, its successor, or other
equivalent training curriculum approved by the Division, shall establish that point using the
latest version of the Division publication, Identification Methods for the Origins of
Intermittent and Perennial Streams, available at
http://portal.ncdenr.org/web/wq/swp/ws/401/waterresources/streamdeterminations or from
the Division of Water Quality, 401/Wetlands Unit, 1650 Mail Service Center, Raleigh, NC,
27699-1650. A local government may accept the results of a site assessment made by
another party who meets these criteria. Any disputes over on-site determinations made
according to this Sub-Item shall be referred to the Director in writing. The Director's
determination is subject to review as provided in Articles 3 and 4 of G.S. 150B.
(e) Riparian buffers protected by this Rule shall be measured pursuant to Item (7) of this Rule.
(f) Parties subject to this rule shall abide by all State rules and laws regarding waters of the state
including but not limited to 15A NCAC 02H .0500, 15A NCAC 02H .1300, and Sections 401
and 404 of the Federal Water Pollution Control Act.
(g) A riparian buffer may be exempt from this Rule as described in Item (5) or (6) of this Rule.
(h) No new clearing, grading, or development shall take place nor shall any new building permits
be issued in violation of this Rule.
(5) EXEMPTION BASED ON ON-SITE DETERMINATION. When a landowner or other affected party
including the Division believes that the maps have inaccurately depicted surface waters, he or she shall
consult the appropriate local government. Upon request, a local government representative who has
successfully completed the Division's Surface Water Identification Training Certification course, its
successor, or other equivalent training curriculum approved by the Division, shall make an on -site
determination. Local governments may also accept the results of site assessments made by other
parties who have successfully completed such training. Any disputes over on-site determinations shall
be referred to the Director in writing. A determination of the Director as to the accuracy or application
of the maps is subject to review as provided in Articles 3 and 4 of G.S. 150B. Surface waters that
appear on the maps shall not be subject to this Rule if a site evaluation reveals any of the following
cases:
(a) Man-made ponds and lakes that are not part of a natural drainage way that is classified in
accordance with 15A NCAC 02B .0100, including ponds and lakes created for animal
watering, irrigation, or other agricultural uses. A pond or lake is part of a natural drainage
way when it is fed by an intermittent or perennial stream or when it has a direct discharge
point to an intermittent or perennial stream.
(b) Ephemeral streams.
(c) The absence on the ground of a corresponding intermittent or perennial stream, lake,
reservoir, or pond.
(d) Ditches or other man-made water conveyances, other than modified natural streams.
(6) EXEMPTION WHEN EXISTING USES ARE PRESENT AND ONGOING. This Rule shall not
apply to uses that are existing and ongoing; however, this Rule shall apply at the time an existing,
ongoing use is changed to another use. Change of use shall involve the initiation of any activity that
does not meet either of the following criteria for existing, ongoing activity:
(a) It was present within the riparian buffer as of the effective date of a local program enforcing
this Rule and has continued to exist since that time. For any Division-administered activities
listed in Item (3) of this Rule, a use shall be considered existing and ongoing if it was present
within the riparian buffer as of the Rule’s effective date of August 11, 2009 and has
continued to exist since that time. Existing uses shall include agriculture, buildings, industrial
facilities, commercial areas, transportation facilities, maintained lawns, utility lines and on-
site sanitary sewage systems, any of which involve either specific, periodic management of
vegetation or displacement of vegetation by structures or regular activity. Only the portion of
the riparian buffer occupied by the footprint of the existing use is exempt from this Rule.
Change of ownership through purchase or inheritance is not a change of use. Activities
necessary to maintain uses are allowed provided that the site remains similarly vegetated, no
impervious surface is added within 50 feet of the surface water where it did not previously
exist as of the effective date of a local program enforcing this Rule, or for Division-
administered activities listed in Item (3) of this Rule as of the Rule’s effective date of August
11, 2009, and existing diffuse flow is maintained. Grading and revegetating Zone Two is
allowed provided that the health of the vegetation in Zone One is not compromised, the
ground is stabilized and existing diffuse flow is maintained.
(b) Projects or proposed development that are determined by the local government to meet at
least one of the following criteria:
(i) Project requires a 401 Certification/404 Permit and these were issued prior to the
effective date of the local program enforcing this Rule, and prior to the August 11,
2009 effective date of this Rule for Division-administered activities listed in Item
(3) of this Rule;
(ii) Projects that require a state permit, such as landfills, NPDES wastewater discharges,
land application of residuals and road construction activities, have begun
construction or are under contract to begin construction and had received all
required state permits and certifications prior to the effective date of the local
program implementing this Rule, and prior to the August 11, 2009 effective date of
this Rule for Division-administered activities listed in Item (3) of this Rule;
(iii) Projects that are being reviewed through the Clean Water Act Section 404/National
Environmental Policy Act Merger 01 Process (published by the US Army Corps of
Engineers and Federal Highway Administration, 2003) or its immediate successor
and that have reached agreement with DENR on avoidance and minimization by the
effective date of the local program enforcing this Rule, and prior to the August 11,
2009 effective date of this Rule for state and federal entities; or
(iv) Projects that are not required to be reviewed by the Clean Water Act Section
404/National Environmental Policy Act Merger 01 Process (published by the US
Army Corps of Engineers and Federal Highway Administration, 2003) or its
immediate successor if a Finding of No Significant Impact has been issued for the
project and the project has the written approval of the local government prior to the
effective date of the local program enforcing this Rule, or the written approval of
the Division prior to the August 11, 2009 effective date of this Rule for state and
federal entities.
(7) ZONES OF THE RIPARIAN BUFFER. The protected riparian buffer shall have two zones as
follows:
(a) Zone One shall consist of a vegetated area that is undisturbed except for uses provided for in
Item (9) of this Rule. The location of Zone One shall be as follows:
(i) For intermittent and perennial streams, Zone One shall begin at the top of the bank
and extend landward a distance of 30 feet on all sides of the surface water,
measured horizontally on a line perpendicular to a vertical line marking the top of
the bank.
(ii) For ponds, lakes and reservoirs located within a natural drainage way, Zone One
shall begin at the normal water level and extend landward a distance of 30 feet,
measured horizontally on a line perpendicular to a vertical line marking the normal
water level.
(b) Zone Two shall consist of a stable, vegetated area that is undisturbed except for uses
provided for in Item (9) of this Rule. Grading and revegetating in Zone Two is allowed
provided that the health of the vegetation in Zone One is not compromised. Zone Two shall
begin at the outer edge of Zone One and extend landward 20 feet as measured horizontally on
a line perpendicular to the surface water. The combined width of Zones One and Two shall
be 50 feet on all sides of the surface water.
(8) DIFFUSE FLOW REQUIREMENT. Diffuse flow of runoff shall be maintained in the riparian buffer
by dispersing concentrated flow prior to its entry into the buffer and reestablishing vegetation as
follows:
(a) Concentrated runoff from new ditches or manmade conveyances shall be converted to diffuse
flow at non-erosive velocities before the runoff enters Zone Two of the riparian buffer;
(b) Periodic corrective action to restore diffuse flow shall be taken as necessary and shall be
designed to impede the formation of erosion gullies;
(c) As set out in Items (7) and (9) of this Rule, no new stormwater conveyances are allowed
through the buffers except for those specified in Item (9) of this Rule addressing stormwater
management ponds, drainage ditches, roadside ditches, and stormwater conveyances; and
(d) Activities conducted outside of buffers identified in Item (4) that alter the hydrology in
violation of the diffuse flow requirements set out in this Item shall be prohibited.
(9) TABLE OF USES. The following chart sets out potential new uses within the buffer, or outside the
buffer with impacts on the buffer, and categorizes them as exempt, allowable, or allowable with
mitigation. All uses not categorized as exempt, allowable, or allowable with mitigation are considered
prohibited and may not proceed within the riparian buffer, or outside the buffer if the use would impact
diffuse flow through the buffer, unless a variance is granted pursuant to Item (12) of this Rule. The
requirements for each category are given in Item (10) of this Rule.
Use Exempt* Allowable*
Allowable
with
Mitigation*
Access trails: Pedestrian access trails leading to the surface
water, docks, fishing piers, boat ramps and other water
dependent activities:
Pedestrian access trails that are restricted to the
minimum width practicable and do not exceed 4
feet in width of buffer disturbance, and provided
that installation and use does not result in removal
of trees as defined in this Rule and no impervious
surface is added to the riparian buffer
Pedestrian access trails that exceed 4 feet in width
of buffer disturbance, the installation or use results
in removal of trees as defined in this Rule or
impervious surface is added to the riparian buffer
X
X
Airport facilities:
Airport facilities that impact equal to or less than
150 linear feet or one-third of an acre of riparian
buffer
Airport facilities that impact greater than 150
linear feet or one-third of an acre of riparian
buffer
Activities necessary to comply with FAA
requirements (e.g. radar uses or landing strips)1
X
X
X
Archaeological activities X
Bridges X
Canoe Access provided that installation and use does not
result in removal of trees as defined in this Rule and no
impervious surface is added to the buffer.
X
* To qualify for the designation indicated in the column header, an activity must adhere to the
limitations defined for it in a given listing as well as the requirements established in Item (10) of
this Rule.
Use Exempt* Allowable*
Allowable
with
Mitigation*
Dam maintenance activities:
Dam maintenance activities that do not cause
additional buffer disturbance beyond the footprint
of the existing dam or those covered under the
U.S. Army Corps of Engineers Nationwide Permit
No. 3
Dam maintenance activities that do cause
additional buffer disturbance beyond the footprint
of the existing dam or those not covered under the
U.S. Army Corps of Engineers Nationwide Permit
No.3
X
X
* To qualify for the designation indicated in the column header, an activity must adhere to the
limitations defined for it in a given listing as well as the requirements established in Item (10) of
this Rule.
Use Exempt* Allowable*
Allowable
with
Mitigation*
Drainage ditches, roadside ditches and stormwater
conveyances through riparian buffers:
New stormwater flows to existing drainage
ditches, roadside ditches, and stormwater
conveyances provided flows do not alter or result
in the need to alter the conveyance and are
managed to minimize the sediment, nutrients and
other pollution that convey to waterbodies.
Realignment of existing roadside drainage ditches
retaining the design dimensions, provided that no
additional travel lanes are added and the minimum
required roadway typical section is used based on
traffic and safety considerations.
New or altered drainage ditches, roadside ditches
and stormwater outfalls provided that a
stormwater management facility is installed to
control nutrients and attenuate flow before the
conveyance discharges through the riparian buffer
New drainage ditches, roadside ditches and
stormwater conveyances applicable to linear
projects that do not provide a stormwater
management facility due to topography constraints
provided that other practicable BMPs are
employed.
X
X
X
X
* To qualify for the designation indicated in the column header, an activity must adhere to the
limitations defined for it in a given listing as well as the requirements established in Item (10) of
this Rule.
Use Exempt* Allowable*
Allowable
with
Mitigation*
Drainage of a pond in a natural drainage way provided that
a new riparian buffer that meets the requirements of Items
(7) and (8) of this Rule is established adjacent to the new
channel
X
Driveway crossings of streams and other surface waters
subject to this Rule:
Driveway crossings on single family residential
lots that disturb equal to or less than 25 linear feet
or 2,500 square feet of riparian buffer
Driveway crossings on single family residential
lots that disturb greater than 25 linear feet or
2,500 square feet of riparian buffer
In a subdivision that cumulatively disturb equal to
or less than 150 linear feet or one-third of an acre
of riparian buffer
In a subdivision that cumulatively disturb greater
than 150 linear feet or one-third of an acre of
riparian buffer
X
X
X
X
Driveway impacts other than crossing of a stream or other
surface waters subject to this Rule
X
Fences:
Fences provided that disturbance is minimized and
installation does not result in removal of trees as
defined in this Rule
Fences provided that disturbance is minimized and
installation results in removal of trees as defined
in this Rule
X
X
Forest harvesting - see Item (14) of this Rule
Fertilizer application: one-time application to establish
vegetation
X
* To qualify for the designation indicated in the column header, an activity must adhere to the
limitations defined for it in a given listing as well as the requirements established in Item (10) of
this Rule.
Use Exempt* Allowable*
Allowable
with
Mitigation*
Grading and revegetation in Zone Two provided that
diffuse flow and the health of existing vegetation in Zone
One is not compromised and disturbed areas are
stabilized until they are revegetated.
X
Greenway/hiking trails designed, constructed and
maintained to maximize nutrient removal and erosion
protection, minimize adverse effects on aquatic life and
habitat, and protect water quality to the maximum extent
practical.
X
Historic preservation X
Maintenance access on modified natural streams: a grassed
travel way on one side of the water body when less
impacting alternatives are not practical. The width and
specifications of the travel way shall be only that needed for
equipment access and operation. The travel way shall be
located to maximize stream shading.
X
Mining activities:
Mining activities that are covered by the Mining
Act provided that new riparian buffers that meet
the requirements of Items (7) and (8) of this Rule
are established adjacent to the relocated channels
Mining activities that are not covered by the
Mining Act OR where new riparian buffers that
meet the requirements or Items (7) and (8) of this
Rule are not established adjacent to the relocated
channels
Wastewater or mining dewatering wells with
approved NPDES permit
X
X
X
* To qualify for the designation indicated in the column header, an activity must adhere to the
limitations defined for it in a given listing as well as the requirements established in Item (10) of
this Rule.
Use Exempt* Allowable*
Allowable
with
Mitigation*
Playground equipment:
Playground equipment on single family lots
provided that installation and use does not result
in removal of vegetation
Playground equipment installed on lands other
than single-family lots or that requires removal of
vegetation
X
X
Ponds created by impounding streams and not used as
stormwater BMPs:
New ponds provided that a riparian buffer that
meets the requirements of Items (7) and (8) of this
Rule is established adjacent to the pond
New ponds where a riparian buffer that meets the
requirements of Items (7) and (8) of this Rule is
NOT established adjacent to the pond
X
X
Protection of existing structures, facilities and stream banks
when this requires additional disturbance of the riparian
buffer or the stream channel
X
Railroad impacts other than crossings of streams and other
surface waters subject to this Rule.
X
* To qualify for the designation indicated in the column header, an activity must adhere to the
limitations defined for it in a given listing as well as the requirements established in Item (10) of
this Rule.
Use Exempt* Allowable*
Allowable
with
Mitigation*
Railroad crossings of streams and other surface waters
subject to this Rule:
Railroad crossings that impact equal to or less
than 40 linear feet of riparian buffer
Railroad crossings that impact greater than 40
linear feet but equal to or less than 150 linear feet
or one-third of an acre of riparian buffer
Railroad crossings that impact greater than 150
linear feet or one-third of an acre of riparian
buffer
X
X
X
Recreational and accessory structures in Zone Two:
Sheds and gazebos in Zone Two, provided they
are not prohibited under local water supply
ordinance:
o Total footprint less than or equal to 150
square feet per lot.
o Total footprint greater than 150 square
feet per lot.
Wooden slatted decks and associated steps,
provided the use meets the requirements of Items
(7) and (8) of this Rule:
o Deck at least eight feet in height and no
vegetation removed from Zone One.
o Deck less than eight feet in height or
vegetation removed from Zone One.
X
X
X
X
Removal of previous fill or debris provided that diffuse
flow is maintained and vegetation is restored
X
Road impacts other than crossings of streams and other
surface waters subject to this Rule
X
* To qualify for the designation indicated in the column header, an activity must adhere to the
limitations defined for it in a given listing as well as the requirements established in Item (10) of
this Rule.
Use Exempt* Allowable*
Allowable
with
Mitigation*
Road crossings of streams and other surface waters subject
to this Rule:
Road crossings that impact equal to or less than 40
linear feet of riparian buffer
Road crossings that impact greater than 40 linear
feet but equal to or less than 150 linear feet or
one-third of an acre of riparian buffer
Road crossings that impact greater than 150 linear
feet or one-third of an acre of riparian buffer
X
X
X
Road relocation: Relocation of existing private access roads
associated with public road projects where necessary for
public safety:
Less than or equal to 2,500 square feet of buffer
impact
Greater than 2,500 square feet of buffer impact
X
X
Stormwater BMPs:
Wet detention, bioretention, and constructed
wetlands in Zone Two if diffuse flow of discharge
is provided into Zone One
Wet detention, bioretention, and constructed
wetlands in Zone One
X
X
Scientific studies and stream gauging X
Streambank or shoreline stabilization X
* To qualify for the designation indicated in the column header, an activity must adhere to the
limitations defined for it in a given listing as well as the requirements established in Item (10) of
this Rule.
Use Exempt* Allowable*
Allowable
with
Mitigation*
Temporary roads, provided that the disturbed area is
restored to pre-construction topographic and hydrologic
conditions immediately after construction is complete and
replanted immediately with comparable vegetation, except
that tree planting may occur during the dormant season. A
one-time application of fertilizer may be used to establish
vegetation: At the end of five years the restored buffer
shall comply with the restoration criteria in Item (8) of 15A
NCAC 02B .0268:
Less than or equal to 2,500 square feet of buffer
disturbance
Greater than 2,500 square feet of buffer
disturbance
Associated with culvert installation or bridge
construction or replacement.
X
X
X
* To qualify for the designation indicated in the column header, an activity must adhere to the
limitations defined for it in a given listing as well as the requirements established in Item (10) of
this Rule.
Use Exempt* Allowable*
Allowable
with
Mitigation*
Temporary sediment and erosion control devices, provided
that the disturbed area is restored to pre-construction
topographic and hydrologic conditions immediately after
construction is complete and replanted immediately with
comparable vegetation, except that tree planting may occur
during the dormant season. A one-time application of
fertilizer may be used to establish vegetation. At the end of
five years the restored buffer shall comply with the
restoration criteria in Item (8) of Rule 15A NCAC 02B
.0268:
In Zone Two provided ground cover is established
within timeframes required by the Sedimentation
and Erosion Control Act, vegetation in Zone One
is not compromised, and runoff is released as
diffuse flow in accordance with Item (8) of this
Rule.
In Zones one and two to control impacts
associated with uses approved by the local
government or that have received a variance,
provided that sediment and erosion control for
upland areas is addressed, to the maximum extent
practical, outside the buffer.
In-stream temporary erosion and sediment control
measures for work within a stream channel that is
authorized under Sections 401 and 404 of the
Federal Water Pollution Control Act.
In-stream temporary erosion and sediment control
measures for work within a stream channel.
X
X
X
X
* To qualify for the designation indicated in the column header, an activity must adhere to the
limitations defined for it in a given listing as well as the requirements established in Item (10) of
this Rule.
Use Exempt* Allowable*
Allowable
with
Mitigation*
Utility, electric, aerial, perpendicular crossings of streams
and other surface waters subject to this Rule2,3,5:
Disturb equal to or less than 150 linear feet of
riparian buffer
Disturb greater than 150 linear feet of riparian
buffer
X
X
Utility, electric, aerial, other than perpendicular crossings5:
Impacts in Zone Two
Impacts in Zone One2,3
X
X
Utility, electric, underground, perpendicular crossings3,4,5:
Disturb less than or equal to 40 linear feet of
riparian buffer
Disturb greater than 40 linear feet of riparian
buffer
X
X
Utility, electric, underground, other than perpendicular
crossings4:
Impacts in Zone Two
Impacts in Zone One1
X
X
* To qualify for the designation indicated in the column header, an activity must adhere to the
limitations defined for it in a given listing as well as the requirements established in Item (10) of
this Rule.
Use Exempt* Allowable*
Allowable
with
Mitigation*
Utility, non-electric, perpendicular crossings of streams and
other surface waters subject to this Rule3,5:
Disturb equal to or less than 40 linear feet of
riparian buffer with a maintenance corridor equal
to or less than 10 feet in width
Disturb equal to or less than 40 linear feet of
riparian buffer with a maintenance corridor greater
than 10 feet in width
Disturb greater than 40 linear feet but equal to or
less than 150 linear feet of riparian buffer with a
maintenance corridor equal to or less than 10 feet
in width
Disturb greater than 40 linear feet but equal to or
less than 150 linear feet of riparian buffer with a
maintenance corridor greater than 10 feet in width
Disturb greater than 150 linear feet of riparian
buffer
X
X
X
X
X
Utility, non-electric, other than perpendicular crossings4,5:
Impacts in Zone Two
Impacts in Zone One1
X
X
* To qualify for the designation indicated in the column header, an activity must adhere to the
limitations defined for it in a given listing as well as the requirements established in Item (10) of
this Rule.
Use Exempt* Allowable*
Allowable
with
Mitigation*
Vegetation management:
Emergency fire control measures provided that
topography is restored
Mowing or harvesting of plant products in Zone
Two
Planting vegetation to enhance the riparian buffer
Pruning forest vegetation provided that the health
and function of the forest vegetation is not
compromised
Removal of individual trees that are in danger of
causing damage to dwellings, other structures or
human life, or are imminently endangering
stability of the streambank.
Removal of individual trees which are dead,
diseased or damaged.
Removal of poison ivy
Removal of invasive exotic vegetation as defined
in:
Smith, Cherri L. 1998. Exotic Plant Guidelines. Dept. of
Environment and Natural Resources. Division of Parks and
Recreation. Raleigh, NC. Guideline #30
X
X
X
X
X
X
X
X
Vehicular access roads leading to water-dependent
structures as defined in 15A NCAC 02B .0202, provided
they do not cross the surface water and have minimum
practicable width not exceeding ten feet.
X
Water dependent structures as defined in 15A NCAC 02B
.0202 where installation and use result in disturbance to
riparian buffers.
X
* To qualify for the designation indicated in the column header, an activity must adhere to the
limitations defined for it in a given listing as well as the requirements established in Item (10) of
this Rule.
Use Exempt* Allowable*
Allowable
with
Mitigation*
Water supply reservoirs:
New reservoirs where a riparian buffer that meets
the requirements of Items (7) and (8) of this Rule
is established adjacent to the reservoir
New reservoirs where a riparian buffer that meets
the requirements of Items (7) and (8) of this Rule
is not established adjacent to the reservoir
X
X
Water wells
Single family residential water wells
All other water wells
X
X
Wetland, stream and buffer restoration that results in
impacts to the riparian buffers:
Wetland, stream and buffer restoration that
requires Division approval for the use of a 401
Water Quality Certification
Wetland, stream and buffer restoration that does
not require Division approval for the use of a 401
Water Quality Certification
X
X
Wildlife passage structures X
* To qualify for the designation indicated in the column header, an activity must adhere to the
limitations defined for it in a given listing as well as the requirements established in Item (10) of this
Rule.
1 Provided that:
No heavy equipment is used in Zone One.
Vegetation in undisturbed portions of the buffer is not compromised.
Felled trees are removed by chain.
No permanent felling of trees occurs in protected buffers or streams.
Stumps are removed only by grinding.
At the completion of the project the disturbed area is stabilized with native vegetation.
Zones one and two meet the requirements of Sub-Items (7) and (8) of this Rule.
2 Provided that, in Zone One, all of the following BMPs for overhead utility lines are used. If all of
these BMPs are not used, then the overhead utility lines shall require a no practical
alternative evaluation by the local government, as defined in Item (11) of this Rule.
A minimum zone of 10 feet wide immediately adjacent to the water body shall be managed
such that only vegetation that poses a hazard or has the potential to grow tall enough to
interfere with the line is removed.
Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed.
Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall
remain where trees are cut.
Riprap shall not be used unless it is necessary to stabilize a tower.
No fertilizer shall be used other than a one-time application to re-establish vegetation.
Construction activities shall minimize the removal of woody vegetation, the extent of the
disturbed area, and the time in which areas remain in a disturbed state.
Active measures shall be taken after construction and during routine maintenance to ensure
diffuse flow of stormwater through the buffer.
In wetlands, mats shall be utilized to minimize soil disturbance.
3 Provided that poles or aerial infrastructure shall not be installed within 10 feet of a water body unless
the local government completes a no practical alternative evaluation as defined in Item (11)
of this Rule.
4 Provided that, in Zone One, all of the following BMPs for underground utility lines are used. If all
of these BMPs are not used, then the underground utility line shall require a no practical
alternative evaluation by the local government, as defined in Item (11) of this Rule.
Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed.
Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall
remain, except in the trench where trees are cut.
Underground cables shall be installed by vibratory plow or trenching.
The trench shall be backfilled with the excavated soil material immediately following cable
installation.
No fertilizer shall be used other than a one-time application to re-establish vegetation.
Construction activities shall minimize the removal of woody vegetation, the extent of the
disturbed area, and the time in which areas remain in a disturbed state.
Measures shall be taken upon completion of construction and during routine maintenance to
ensure diffuse flow of stormwater through the buffer.
In wetlands, mats shall be utilized to minimize soil disturbance.
5 Perpendicular crossings are those that intersect the surface water at an angle between 75 degrees and
105 degrees.
(10) REQUIREMENTS FOR CATEGORIES OF USES. Uses designated in Item (9) of this Rule as
exempt, allowable, and allowable with mitigation within a riparian buffer shall have the following
requirements:
(a) EXEMPT. Uses designated as exempt are permissible without local government
authorization provided that they adhere to the limitations of the activity as defined in Item
(9). In addition, exempt uses shall be designed, constructed and maintained to minimize soil
disturbance and to provide the maximum water quality protection practicable, including
construction, monitoring, and maintenance activities.
(b) ALLOWABLE. Uses designated as allowable may proceed provided that there are no
practical alternatives to the requested use pursuant to Item (11) of this Rule. This includes
construction, monitoring, and maintenance activities. These uses require written
authorization from the local government.
(c) ALLOWABLE WITH MITIGATION. Uses designated as allowable with mitigation may
proceed provided that there are no practical alternatives to the requested use pursuant to Item
(11) of this Rule and an appropriate mitigation strategy has been approved pursuant to Item
(13) of this Rule. These uses require written authorization from the local government.
(11) DETERMINATION OF "NO PRACTICAL ALTERNATIVES."
(a) Persons who wish to undertake uses designated as allowable or allowable with mitigation
shall submit a request for a "no practical alternatives" determination to the local government.
The applicant shall certify that the project meets all the following criteria for finding "no
practical alternatives":
(i) The basic project purpose cannot be practically accomplished in a manner that
would better minimize disturbance, preserve aquatic life and habitat, and protect
water quality;
(ii) The use cannot practically be reduced in size or density, reconfigured or redesigned
to better minimize disturbance, preserve aquatic life and habitat, and protect water
quality; and
(iii) Best management practices shall be used if necessary to minimize disturbance,
preserve aquatic life and habitat, and protect water quality;
(b) The applicant shall also submit at least the following information in support of their assertion
of "no practical alternatives":
(i) The name, address and phone number of the applicant;
(ii) The nature of the activity to be conducted by the applicant;
(iii) The location of the activity, including the jurisdiction;
(iv) A map of sufficient detail to accurately delineate the boundaries of the land to be
utilized in carrying out the activity, the location and dimensions of any disturbance
in riparian buffers associated with the activity, and the extent of riparian buffers on
the land;
(v) An explanation of why this plan for the activity cannot be practically accomplished,
reduced or reconfigured to better minimize disturbance to the riparian buffer,
preserve aquatic life and habitat and protect water quality; and
(vi) Plans for any best management practices proposed to be used to control the impacts
associated with the activity.
(c) Within 60 days of a submission that addresses Sub-Item (11)(b) of this Rule, the local
government shall review the entire project and make a finding of fact as to whether the
criteria in Sub-Item (11)(a) have been met. A finding of "no practical alternatives" shall
result in issuance of an Authorization Certificate. Failure to act within 60 days shall be
construed as a finding of "no practical alternatives" and an Authorization Certificate shall be
issued to the applicant unless one of the following occurs:
(i) The applicant agrees, in writing, to a longer period;
(ii) The local government determines that the applicant has failed to furnish requested
information necessary to the local government's decision;
(iii) The final decision is to be made pursuant to a public hearing; or
(iv) The applicant refuses access to its records or premises for the purpose of gathering
information necessary to the local government's decision.
(d) The local government may attach conditions to the Authorization Certificate that support the
purpose, spirit and intent of the riparian buffer protection pr ogram.
(e) Any appeals of determinations regarding Authorization Certificates shall be referred to the
Director. The Director's decision is subject to review as provided in G.S. 150B Articles 3
and 4.
(12) VARIANCES. Persons who wish to undertake prohibited uses may pursue a variance. The local
government may grant minor variances. For major variances, local governments shall prepare
preliminary findings and submit them to the Commission for approval. The variance request
procedure shall be as follows:
(a) For any variance request, the local government shall make a finding of fact as to whether
there are practical difficulties or unnecessary hardships that prevent compliance with the
riparian buffer protection requirements. A finding of practical difficulties or unnecessary
hardships shall require that the following conditions are met:
(i) If the applicant complies with the provisions of this Rule, he/she can secure no
reasonable return from, nor make reasonable use of, his/her property. Merely
proving that the variance would permit a greater profit from the property shall not
be considered adequate justification for a variance. Moreover, the local
government shall consider whether the variance is the minimum possible deviation
from the terms of this Rule that shall make reasonable use of the property possible;
(ii) The hardship results from application of this Rule to the property rather than from
other factors such as deed restrictions or other hardship;
(iii) The hardship is due to the physical nature of the applicant's property, such as its
size, shape, or topography, such that compliance with provisions of this rule would
not allow reasonable use of the property;
(iv) The applicant did not cause the hardship by knowingly or unknowingly violating
this Rule;
(v) The applicant did not purchase the property after August 11, 2009, the effective
date of this Rule, and then request a variance; and
(vi) The hardship is rare or unique to the applicant's property.
(b) For any variance request, the local government shall make a finding of fact as to whether the
variance is in harmony with the general purpose and intent of the State's riparian buffer
protection requirements and preserves its spirit; and
(c) For any variance request, the local government shall make a finding of fact as to whether, in
granting the variance, the public safety and welfare have been assured, water quality has been
protected, and substantial justice has been done.
(d) MINOR VARIANCES. A minor variance request pertains to activities that will impact only
Zone Two of the riparian buffer. Minor variance requests shall be reviewed and approved
based on the criteria in Sub-Items (12)(a) through (12)(c) of this Rule by the local
government pursuant to G.S. 153A-Article 18, or G.S. 160A-Article 19. The local
government may attach conditions to the variance approval that support the purpose, spirit
and intent of the riparian buffer protection program. Request for appeals to decisions made
by the local governments shall be made in writing to the Director. The Director's decision is
subject to review as provided in G.S. 150B Articles 3 and 4.
(e) MAJOR VARIANCES. A major variance request pertains to activities that will impact any
portion of Zone One or any portion of both Zones One and Two of the riparian buffer. If the
local government has determined that a major variance request meets the requirements in
Sub-Items (12)(a) through (12)(c) of this Rule, then it shall prepare a preliminary finding and
submit it to the Commission for approval. Within 90 days after receipt by the local
government, the Commission shall review preliminary findings on major variance requests
and take one of the following actions: approve, approve with conditions and stipulations, or
deny the request. Appeals from a Commission decision on a major variance request are made
on judicial review to Superior Court.
(13) MITIGATION. Persons who wish to undertake uses designated as allowable with mitigation shall
meet the following requirements in order to proceed with their proposed use:
(a) Obtain a determination of "no practical alternatives" to the proposed use pursuant to Item
(11) of this Rule; and
(b) Obtain approval for a mitigation proposal pursuant to 15A NCAC 02B .0268.
(14) REQUIREMENTS SPECIFIC TO FOREST HARVESTING. The following requirements shall apply
for forest harvesting operations and practices:
(a) All the following measures shall apply in the entire riparian buffer as applicable:
(i) Logging decks and sawmill sites shall not be placed in the riparian buffer;
(ii) Access roads and skid trails shall be prohibited except for temporary and permanent
stream crossings established in accordance with 15A NCAC 01I .0203. Temporary
stream crossings shall be permanently stabilized after any site disturbing activity is
completed;
(iii) Timber felling shall be directed away from the stream or waterbody;
(iv) Skidding shall be directed away from the stream or water body and shall be done in
a manner that minimizes soil disturbance and prevents the creation of channels or
ruts;
(v) Individual trees may be treated to maintain or improve their health, form or vigor;
(vi) Harvesting of dead or infected trees as necessary to prevent or control the spread of
tree pest and disease infestation shall be allowed. These practices must be approved
by the Division of Forest Resources for a specific site pursuant to the rule. The
Division of Forest Resources must notify the Division of all approvals;
(vii) Removal of individual trees that are in danger of causing damage to structures or
human life shall be allowed;
(viii) Natural regeneration of forest vegetation and planting of trees, shrubs, or ground
cover plants to enhance the riparian buffer shall be allowed provided that soil
disturbance is minimized;
(ix) High-intensity prescribed burns shall not be allowed; and
(x) Application of fertilizer shall not be allowed except as necessary for permanent
stabilization. Broadcast application of fertilizer to the adjacent forest stand shall be
conducted so that the chemicals are not applied directly to or allowed to drift into
the riparian buffer.
(b) In Zone One, forest vegetation shall be protected and maintained. Selective harvest as
provided for below is allowed on forest lands that have a deferment for use value under
forestry in accordance with G.S. 105-277.2 through 277.6 or on forest lands that have a forest
management plan. A plan drafted under either option shall meet the standards set out in this
Item. Copies of either the approval of the deferment for use value under forestry or the forest
management plan shall be produced upon request. For such forest lands, selective harvest is
allowed in accordance with the following:
(i) Tracked or wheeled vehicles are permitted for the purpose of selective timber
harvesting where there is no other practical alternative for removal of individual
trees provided activities comply with forest practice guidelines for water quality as
defined in 15A NCAC 01I .0101 through .0209, and provided no equipment shall
operate within the first 10 feet immediately adjacent to the stream except at stream
crossings designed, constructed and maintained in accordance with Rule 15A
NCAC 01I .0203;
(ii) Soil disturbing site preparation activities are not allowed; and
(iii) Trees shall be removed with the minimum disturbance to the soil and residual
vegetation.
(c) In addition to the requirements of (b) in this Item, the following provisions for selective
harvesting shall be met:
(i) The first 10 feet of Zone One directly adjacent to the stream or waterbody shall be
undisturbed except for the removal of individual high value trees as defined
provided that no trees with exposed primary roots visible in the streambank be cut
unless listed as an exempt activity under Vegetation Management in the Table of
Uses, Sub-Item (9) of this Rule;
(ii) In the outer 20 feet of Zone One, a maximum of 50 percent of the trees greater than
five inches DBH may be cut and removed. The reentry time for harvest shall be no
more frequent than every 15 years, except on forest plantations where the reentry
time shall be no more frequent than every five years. In either case, the trees
remaining after harvest shall be as evenly spaced as possible; and
(iii) In Zone Two, harvesting and regeneration of the forest stand shall be allowed in
accordance with 15A NCAC 01I .0100 through .0200 as enforced by the Division
of Forest Resources.
(15) RULE IMPLEMENTATION. This Rule shall be implemented as follows:
(a) For Division-administered activities listed in Item (3) of this Rule, the Division shall continue
to implement the requirements of this Rule, which it has done since its effective date of
August 11, 2009:
(b) Local governments shall continue to implement buffer programs approved by the
Commission in September 2010 and January 2011, or subsequent revisions to those programs
approved by the Commission or its delegated authority, to ensure that existing land use
activities and proposed development complies with local programs. These programs are
required to meet the standards set out in this Rule, 15A NCAC 02B .0268, and are guided by
the model buffer program approved by the Commission in September 2009. A local
government shall issue an approval for new development only if the development application
proposes to avoid impacts to riparian buffers defined in Item (4) of this Rule, or where the
application proposes to impact such buffers, it demonstrates that the applicant has done the
following, as applicable:
(i) Determined that the activity is exempt from requirements of this Rule;
(ii) Received an Authorization Certificate from the Division pursuant to Item (11) of
this Rule for uses designated as Allowable or Allowable with Mitigation;
(iii) For uses designated as Allowable with Mitigation, received approval of a mitigation
plan pursuant to 15A NCAC 02B .0268; and
(iv) Received a variance pursuant to Item (12) of this Rule;
(c) Local governments shall continue to submit annual reports to the Division summarizing their
activities in implementing the requirements of this Rule;
(d) If a local government fails to adopt or adequately implement its program as called for in this
Rule, the Division may take appropriate enforcement action as authorized by statute, and may
choose to assume responsibility for implementing that program until such time as it
determines that the local government is prepared to comply with its responsibilities; and
(e) LOCAL OVERSIGHT. The Division shall periodically inspect local programs to ensure that
they are being implemented and enforced in keeping with the requirements of this Rule.
Local governments shall maintain on-site records for a minimum of five years, and shall
furnish a copy of these records to the Division within 30 days of receipt of a written request
for them. Local programs' records shall include the following:
(i) A copy of all variance requests;
(ii) Findings of fact on all variance requests;
(iii) Results of all variance proceedings;
(iv) A record of complaints and action taken as a result of complaints;
(v) Records for stream origin calls and stream ratings; and
(vi) Copies of all requests for authorization, records approving authorization and
Authorization Certificates.
(16) OTHER LAWS, REGULATIONS AND PERMITS. In all cases, compliance with this Rule does not
preclude the requirement to comply with all other federal, state and local laws, regulations, and permits
regarding streams, steep slopes, erodible soils, wetlands, floodplains, forest harvesting, surface mining,
land disturbance activities, or any other landscape feature or water quality-related activity.
History Note: Authority 143-214.1; 143-214.5; 143-214.7; 143-215.3(a)(1); 143-215.6A; 143-215.6B; 143-215.6C;
143 215.8B; 143B-282(c); 143B-282(d) S.L. 1999-329, s. 7.1.; S.L. 2005-190; S.L. 2006-259; S.L.
2009-216; S.L. 2009-484;
Eff. August 11, 2009;
Amended Eff. September 1, 2011;
See S.L. 2013-395;
Amended Eff. July 7, 2014.