HomeMy WebLinkAboutKeith Hinnant NOVMCRTH CAROLINA
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ROY COOPER
Governor
MICHAEL S. REGAN
Secretary January 4, 2019
LINDA CULPEPPER
Director
CERTIFIED MAIL #7018 2290 00018043 6418
RETURN RECEIPT REQUESTED
Keith Hinnant
116 Twin Oaks Place
Goldsboro, NC 27530
CERTIFIED MAIL #7018 2290 0001 8043 6425
RETURN RECEIPT REQUESTED
A/K Grading and Demolition, Inc.
Attn: Aaron Kornegay
103 Warehouse Drive
LaGrange, NC 28551
Subject: NOTICE OF VIOLATION and
RECOMMENDATION FOR ENFORCEMENT
NOV-2018-PC-0141
Keith Hinnant Properties —106 and 108 Point Shore Dr.
Neuse River Riparian Buffer Violations
Wayne County
Dear Mr. Hinnant:
The purpose of this correspondence is to clearly communicate to you a violation regarding the Neuse River
Riparian Buffer Rules (15A NCAC 213 .0233) on the subject property and the expectation to comply with
the riparian buffer rules. On December 27, 2018, Anthony Scarbraugh of Division of Water Resources
(DWR) conducted an inspection on your property known as Wayne County PINS 3537912238 and
3537914530 located at 106 and 108 Point Shore Drive within the Walnut Creek Village, Wayne County.
The property is bordered by Walnut Creek (Spring Lake), which is located in the Neuse River Basin and is
therefore subject to the Neuse Buffer Rules.
During the inspection, DWR staff observed unauthorized impacts from lot clearing activities resulting in
the removal of understory and forest vegetation in Zones 1 and 2 of the Neuse River Riparian buffer along
approximately 450 linear feet of the Walnut Creek In addition, DWR staff also observed impacts from
non -diffuse flow to the riparian buffer along the Walnut Creek (Spring Lake). Impacts consisted of erosion
rills and conveyed sediment resulting from lack of established groundcover. Failure to properly install and
maintain erosion and sediment control devices and non -diffuse flow of stormwater through the protected
riparian buffer is a violation of the riparian buffer rules.
North Carolina Department of Environmental Quality IDivision of Water Resources - Washington Regional Office
943 Washington Square Mall, Washington, North Carolina 27889
252-946-6481
As a result of the site inspection and file review, the following violations, detailed below, are noted:
(1) Neuse River Riparian Buffer Violation -Vegetation Removal
(2) Neuse Buffer Violation — Diffuse Flow
(1) Neuse River Buffer Violation (15A NCAC 02B.0233(2))
The removal of all Zone 1 vegetation along 450 linear feet of Walnut Creek (Spring Lake) is prohibited
in the buffer rules and therefore represents a violation of 15A NCAC 02B .0233 (1) which states in
Zone 1, the purpose of this Rule shall be to protect and preserve existing riparian buffers in the Neuse
River Basin to maintain their nutrient removal functions. Riparian buffers shall be protected and
maintained and must follow the guidelines outlined in 15A NCAC 02B .0233 (1) through (6) of this
Rule. Specifically, this Rule applies to the 50 -foot wide riparian buffers directly adjacent to surface
waters in the Neuse River Basin (intermittent streams, perennial streams, lakes, ponds, and estuaries
that appear on either the soil survey map prepared by the Natural Resource Conservation Service of the
United States Department of Agriculture or the most recent version of the 1:24000 scale quadrangle
topographic maps prepared by the United States Geographic Survey (USGS) in buffered counties).
Further, the protected riparian buffer has two zones as follows: (a) Zone 1 [measured from the most
landward limit of the normal high water level, normal water level or the landward limit of coastal
wetlands as defined by Division of Coastal Management and extending landward a distance of 30 feet]
shall consist of a vegetated area that is undisturbed except for uses provided for in Subparagraph (6)
of 15A NCAC 2B .0233, and (b) Zone 2 [the outer 20 feet, landward from the outer edge of Zone 1]
shall consist of a stable vegetated area that is undisturbed except for activities and uses provided for
in Subparagraph (6) of 15A NCAC 2B .0233. Any activity within the riparian buffer other than those
uses listed as "Exempt" requires approval from the DWR. The purpose of these rules is to protect and
preserve riparian buffers in the Neuse River Basin to maintain the nutrient removal functions of the
streamside areas necessary to protect surface waters.
Specifically, the inspection revealed that understory and mature vegetation were mechanically
removed within the Neuse River Riparian Buffer impacting approximately 450 linear feet of Zones 1
and 2.
(2) Neuse River Buffer Violation (15A NCAC 02B.0233(5))
According to Title 15A North Carolina Administrative Code 2B .0233(5) Diffuse Flow Requirements,
diffuse flow of runoff shall be maintained in the riparian buffer by dispersing concentrated flow and
reestablishing vegetation. In addition, 15A NCAC Code 2B .0233 (5) (a) states, concentrated runoff
from ditches or manmade conveyances shall be converted to diffuse flow before the runoff enters
Zone 2 of the riparian buffer.
�DE
North Carolina Department of Environmental Quality (Division of Water Resources - Washington Regional Office
943 Washington Square Mall, Washington, North Carolina 27889
252-946-6481
This Office requests that you respond to this letter in writing within 30 calendar days of receipt of this
Notice. Your response should be sent to this office at the letterhead address. Your response should
address the following items:
1. Please explain when construction (excavation, grubbing, and clearing) began at the site.
2. A map of the restoration site. (This would be a plat of the property indicating the total area of buffer
and subsequent restoration areas delineated).
3. Please submit the following documents for review and approval.
Riparian Buffer Restoration Plan is required to address the cutting and removal of the buffer
vegetation as described above. This planting plan must be developed such that at least two
native tree species are to be planted at a density 260 trees/acre at maturity. This density can
usually be achieved by planting approximately 360 (11 x 11 spacing) to 538 (9 x 9 spacing)
trees per acre.) Restoration of trees/shrubs/forest must be completed by the first subsequent
planting season (November 1 through March 30). Note, if the tree plantings do not survive,
they will need to be replaced such that the density is sufficient to provide 320 trees per acre
at maturity. [15A NCAC 02H .0507 (c), 15A NCAC 02H .0506 (b)(3), and 15A NCAC 02B .0233]
b. Specifications for physical and biological monitoring will be required for Buffer Restoration
Areas for 5 five years (5 years of monitoring with a written report provided to the Regional
Office by June 1 of each year)
c. Please indicate in your response a detailed schedule with dates explaining when the
restoration will be accomplished. It is the expectation of this office that the riparian buffer
impacts are abated no later than March 15, 2019. Please tailor your response and schedule
to achieve compliance by this date.
d. Finally, you should include in your response an explanation of how you propose to prevent
these problems from reoccurring on this project and on future projects.
****You are encouraged to secure a consultant to assist you with your plan development to achieve
compliance. ****
Thank you for your attention to this matter. DWR requires that the violations, as detailed above, be
abated immediately and properly resolved. Failure to resolve this matter could result in this Office
pursuing additional avenues of enforcement such as assessments of civil penalties.
Pursuant to G.S. 143-215.6A, the above mentioned violations and any future violations are subject to a
civil penalty assessment of up to a maximum of $25,000.00 per day for each violation. Pursuant to G.S.
143-215.6C, DWR can request injunctive relief through the courts to obtain compliance on the site. Your
above-mentioned response to this correspondence, the degree and extent of harm to the environment
and the duration and gravity of the violation(s) will be considered in any further process that may occur.
�DE
North Carolina Department of Environmental Quality (Division of Water Resources - Washington Regional Office
943 Washington Square Mall, Washington, North Carolina 27889
252-946-6481
Should you have any questions regarding these matters, please contact Anthony Scarbraugh at (252) 948-
3924 or myself at (252) 948-3921.
Sincerely,
Plow Tri•"
Robert Tankard, Assistant Regional Supervisor
Water Quality Regional Operations Section
Division of Water Resources, NCDEQ
Enclosures: Neuse River Riparian Buffer Rules
cc: Samantha Dailey, US Army Corps of Engineers Raleigh Regulatory Office
(via email: Samantha.I.dailey@usace.army.mil)
Samir Dumpor— DEMLR WaRO (via email)
Shelton Sullivan — 401 & Buffer Permitting Unit (via email)
DWR WaRO File
North Carolina Department of Environmental Quality IDivision of Water Resources - Washington Regional Office
943 Washington Square Mall, Washington, North Carolina 27889
252-946-6481
1974 Wayne County NRCS Soil Survey
North Carolina Department of Environmental Quality IDivision of Water Resources - Washington Regional Office
943 Washington Square Mall, Washington, North Carolina 27889
252-946-6481
USGS Topographic Map
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North Carolina Department of Environmental Quality IDivision of Water Resources - Washington Regional Office
943 Washington Square Mall, Washington, North Carolina 27889
252-946-6481
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15A NCAC 02B.0233
NEUSE RIVER BASIN: NUTRIENT SENSITIVE WATERS MANAGEMENT
STRATEGY: PROTECTION AND MAINTENANCE OF EXISTING RIPARIAN
BUFFERS
The following is the management strategy for maintaining and protecting existing riparian buffers in the Neuse
River Basin.
(1) PURPOSE. The purpose of this Rule shall be to protect and preserve existing riparian buffers in
the Neuse River Basin to maintain their nutrient removal functions.
(2) DEFINITIONS. For the purpose of this Rule, these terms shall be defined as follows:
(a)
'Channel' means a natural water -carrying trough cut vertically into low areas of the land
surface by erosive action of concentrated flowing water or a ditch or canal excavated for
the flow of water. (current definition in Forest Practice Guidelines Related to Water
Quality, 15A NCAC 01 I .0102)
(b)
'DBH' means Diameter at Breast Height of a tree, which is measured at 4.5 feet above
ground surface level.
(c)
'Ditch or canal' means a man-made channel other than a modified natural stream
constructed for drainage purposes that is typically dug through inter -stream divide areas.
A ditch or canal may have flows that are perennial, intermittent, or ephemeral and may
exhibit hydrological and biological characteristics similar to perennial or intermittent
streams.
(d)
'Ephemeral (stormwater) stream' means a feature that carries only stormwater in direct
response to precipitation with water flowing only during and shortly after large
precipitation events. An ephemeral stream may or may not have a well-defined channel,
the aquatic bed is always above the water table, and stormwater runoff is the primary
source of water. An ephemeral stream typically lacks the biological, hydrological, and
physical characteristics commonly associated with the continuous or intermittent
conveyance of water.
(e)
'Forest plantation' means an area of planted trees that may be conifers (pines) or
hardwoods. On a plantation, the intended crop trees are planted rather than naturally
regenerated from seed on the site, coppice (sprouting), or seed that is blown or carried
into the site.
(f)
'High Value Tree' means a tree that meets or exceeds the following standards: for pine
species, 14 -inch DBH or greater or 18 -inch or greater stump diameter; and, for
hardwoods and wetland species, 16 -inch DBH or greater or 24 -inch or greater stump
diameter.
(g)
'Intermittent stream' means a well-defined channel that contains water for only part of the
year, typically during winter and spring when the aquatic bed is below the water table.
The flow may be heavily supplemented by stormwater runoff. An intermittent stream
often lacks the biological and hydrological characteristics commonly associated with the
conveyance of water.
(h)
'Modified natural stream' means an on-site channelization or relocation of a stream
channel and subsequent relocation of the intermittent or perennial flow as evidenced by
topographic alterations in the immediate watershed. A modified natural stream must
have the typical biological, hydrological, and physical characteristics commonly
associated with the continuous conveyance of water.
(i)
'Perennial stream' means a well-defined channel that contains water year round during a
year of normal rainfall with the aquatic bed located below the water table for most of the
year. Groundwater is the primary source of water for a perennial stream, but it also
carries stormwater runoff. A perennial stream exhibits the typical biological,
hydrological, and physical characteristics commonly associated with the continuous
conveyance of water.
(j)
'Perennial waterbody' means a natural or man-made basin that stores surface water
permanently at depths sufficient to preclude growth of rooted plants, including lakes,
ponds, sounds, non -stream estuaries and ocean. For the purpose of the State=s riparian
buffer protection program, the waterbody must be part of a natural drainageway (i.e.,
connected by surface flow to a stream).
(k) 'Stream' means a body of concentrated flowing water in a natural low area or natural
channel on the land surface.
(1) 'Surface water' means all waters of the state as defined in G.S. 143-212 except
underground waters.
(m) 'Tree' means a woody plant with a DBH equal to or exceeding five inches.
(3) APPLICABILITY. This Rule shall apply to 50 -foot wide riparian buffers directly adjacent to
surface waters in the Neuse River Basin (intermittent streams, perennial streams, lakes, ponds, and
estuaries), excluding wetlands. Except as described in Sub -Item (4)(a)(iii) of this Rule, wetlands
adjacent to surface waters or within 50 feet of surface waters shall be considered as part of the
riparian buffer but are regulated pursuant to 15A NCAC 02H .0506. The riparian buffers
protected by this Rule shall be measured pursuant to Item (4) of this Rule. For the purpose of this
Rule, a surface water shall be present if the feature is approximately shown on either the most
recent version of the soil survey map prepared by the Natural Resources Conservation Service of
the United States Department of Agriculture or the most recent version of the 1:24,000 scale (7.5
minute) quadrangle topographic maps prepared by the United States Geologic Survey (USGS).
Riparian buffers adjacent to surface waters that do not appear on either of the maps shall not be
subject to this Rule. Riparian buffers adjacent to surface waters that appear on the maps shall be
subject to this Rule unless one of the following applies.
(a) EXEMPTION WHEN AN ON-SITE DETERMINATION SHOWS THAT SURFACE
WATERS ARE NOT PRESENT. When a landowner or other affected party believes that
the maps have inaccurately depicted surface waters, he or she shall consult the Division
or the appropriate delegated local authority. Upon request, the Division or delegated
local authority shall make on-site determinations. Any disputes over on-site
determinations shall be referred to the Director in writing. A determination of the
Director as to the accuracy or application of the maps is subject to review as provided in
Articles 3 and 4 of G.S. 150B. Surface waters that appear on the maps shall not be
subject to this Rule if an on-site determination shows that they fall into one of the
following categories.
(i) Ditches and manmade conveyances other than modified natural streams unless
constructed for navigation or boat access.
(ii) Manmade ponds and lakes that are located outside natural drainage ways.
(iii) Ephemeral (stormwater) streams.
(b) EXEMPTION WHEN EXISTING USES ARE PRESENT AND ONGOING. This Rule
shall not apply to portions of the riparian buffer where a use is existing and ongoing
according to the following:
(i) A use shall be considered existing if it was present within the riparian buffer as
of July 22, 1997. Existing uses shall include, but not be limited to, agriculture,
buildings, industrial facilities, commercial areas, transportation facilities,
maintained lawns, utility lines and on-site sanitary sewage systems. Only the
portion of the riparian buffer that contains the footprint of the existing use is
exempt from this Rule. Activities necessary to maintain uses are allowed
provided that no additional vegetation is removed from Zone 1 except that
grazed or trampled by livestock and existing diffuse flow is maintained.
Grading and revegetating Zone 2 is allowed provided that the health of the
vegetation in Zone 1 is not compromised, the ground is stabilized and existing
diffuse flow is maintained.
(ii) At the time an existing use is proposed to be converted to another use, this Rule
shall apply. An existing use shall be considered to be converted to another use if
any of the following applies:
(A) Impervious surface is added to the riparian buffer in locations where it
did not exist previously.
(B) An agricultural operation within the riparian buffer is converted to a
non-agricultural use.
(C) A lawn within the riparian buffer ceases to be maintained.
(4) ZONES OF THE RIPARIAN BUFFER. The protected riparian buffer shall have two zones as
follows:
(a) Zone 1 shall consist of a vegetated area that is undisturbed except for uses provided for in
Item (6) of this Rule. The location of Zone 1 shall be as follows:
(i) For intermittent and perennial streams, Zone 1 shall begin at the most landward
limit of the top of bank or the rooted herbaceous vegetation and extend landward
a distance of 30 feet on all sides of the surface water, measured horizontally on a
line perpendicular to the surface water.
(ii) For ponds, lakes and reservoirs located within a natural drainage way, Zone 1
shall begin at the most landward limit of the normal water level or the rooted
herbaceous vegetation and extend landward a distance of 30 feet, measured
horizontally on a line perpendicular to the surface water.
(iii) For surface waters within the 20 Coastal Counties (defined in 15A NCAC 02B
.0202) within the jurisdiction of the Division of Coastal Management, Zone 1
shall begin at the most landward limit of:
(A) the normal high water level;
(B) the normal water level; or
(C) the landward limit of coastal wetlands as defined by the Division of
Coastal Management;
and extend landward a distance of 30 feet, measured horizontally on a line
perpendicular to the surface water, whichever is more restrictive.
(b) Zone 2 shall consist of a stable, vegetated area that is undisturbed except for activities
and uses provided for in Item (6) of this Rule. Grading and revegetating Zone 2 is
allowed provided that the health of the vegetation in Zone 1 is not compromised. Zone 2
shall begin at the outer edge of Zone 1 and extend landward 20 feet as measured
horizontally on a line perpendicular to the surface water. The combined width of Zones 1
and 2 shall be 50 feet on all sides of the surface water.
(5) DIFFUSE FLOW REQUIREMENT. Diffuse flow of runoff shall be maintained in the riparian
buffer by dispersing concentrated flow and reestablishing vegetation.
(a) Concentrated runoff from new ditches or manmade conveyances shall be converted to
diffuse flow before the runoff enters the Zone 2 of the riparian buffer.
(b) Periodic corrective action to restore diffuse flow shall be taken if necessary to impede the
formation of erosion gullies.
(6) TABLE OF USES. The following chart sets out the uses and their designation under this Rule as
exempt, allowable, allowable with mitigation, or prohibited. The requirements for each category
are given in Item (7) of this Rule.
Exempt
Allowable
Allowable
Prohibited
with
Mitigation
Airport facilities:
• Airport facilities that impact equal to or less than 150 linear
X
feet or one-third of an acre of riparian buffer
• Airport facilities that impact greater than 150 linear feet or
X
one-third of an acre of riparian buffer
Archaeological activities
X
Bridges
X
Dam maintenance activities
X
Drainage ditches, roadside ditches and stormwater outfalls
through riparian buffers:
Existing drainage ditches, roadside ditches, and stormwater
X
outfalls provided that they are managed to minimize the
sediment, nutrients and other pollution that convey to
waterbodies
New drainage ditches, roadside ditches and stormwater
X
outfalls provided that a stormwater management facility
is installed to control nitrogen and attenuate flow before
the conveyance discharges through the riparian buffer
• New drainage ditches, roadside ditches and stormwater
X
outfalls that do not provide control for nitrogen before
discharging through the riparian buffer
• Excavation of the streambed in order to bring it to the same
X
elevation as the invert of a ditch
Drainage of a pond in a natural drainage way provided that a
X
new riparian buffer that meets the requirements of Items (4)
and (5) of this Rule is established adjacent to the new channel
Driveway crossings of streams and other surface waters
subject to this Rule:
• Driveway crossings on single family residential lots that
X
disturb equal to or less than 25 linear feet or 2, 500
square feet of riparian buffer
• Driveway crossings on single family residential lots that
X
disturb greater than 25 linear feet or 2,500 square feet of
riparian buffer
• In a subdivision that cumulatively disturb equal to or less
X
than 150 linear feet or one-third of an acre of riparian
buffer
X
• In a subdivision that cumulatively disturb greater than 150
linear feet or one-third of an acre of riparian buffer
Fences provided that disturbance is minimized and
X
installation does not result in removal of forest vegetation
Forest harvesting - see Item (11) of this Rule
Fertilizer application:
• One-time fertilizer application to establish replanted
X
vegetation
• Ongoing fertilizer application
X
Grading and revegetation in Zone 2 only provided that diffuse
X
flow and the health of existing vegetation in Zone 1 is not
compromised and disturbed areas are stabilized
Greenway/hiking trails
X
Historic preservation
X
Landfills as defined by G.S. 130A-290
X
Mining activities:
• Mining activities that are covered by the Mining Act
X
provided that new riparian buffers that meet the
requirements of Items (4) and (5) of this Rule are
established adjacent to the relocated channels
• Mining activities that are not covered by the Mining Act
X
OR where new riparian buffers that meet the
requirements or Items (4) and (5) of this Rule are not
established adjacent to the relocated channels
• Wastewater or mining dewatering wells with approved
X
NPDES permit
Non -electric utility lines:
Impacts other than perpendicular crossings in Zone 2 only'
X
Impacts other than perpendicular crossings in Zone V
X
Non -electric utility line perpendicular crossing of streams and
other surface waters subject to this Rule':
• Perpendicular crossings that disturb equal to or less than 40
X
linear feet of riparian buffer with a maintenance corridor
equal to or less than 10 feet in width
• Perpendicular crossings that disturb greater than 40 linear
X
feet of riparian buffer with a maintenance corridor greater
than 10 feet in width
• Perpendicular crossings that disturb greater than 40 linear
X
feet but equal to or less than 150 linear feet of riparian
buffer with a maintenance corridor equal to or less than
10 feet in width
Perpendicular crossings that disturb greater than 40 linear
X
feet but equal to or less than 150 linear feet of riparian
buffer with a maintenance corridor greater than 10 feet in
width
• Perpendicular crossings that disturb greater than 150 linear
X
feet of riparian buffer
On-site sanitary sewage systems - new ones that use ground
X
absorption
Overhead electric utility lines:
• Impacts other than perpendicular crossings in Zone 2 only'
X
• Impacts other than perpendicular crossings in Zone 1 1,2,'
X
Overhead electric utility line perpendicular crossings of
streams and other surface waters subject to this Rule'
• Perpendicular crossings that disturb equal to or less than
X
150 linear feet of riparian buffer 1
• Perpendicular crossings that disturb greater than 150 linear
X
feet of riparian buffer 1, 2
Periodic maintenance of modified natural streams such as
X
canals and a grassed travelway on one side of the surface
water when alternative forms of maintenance access are not
ractical
' Provided that, in Zone 1, all of the following BMPs for overhead utility lines are used. If all of these BMPs are
not used, then the overhead utility lines shall require a no practical alternatives evaluation by the Division.
• A minimum zone of 10 feet wide immediately adjacent to the water body shall be managed such that only
vegetation that poses a hazard or has the potential to grow tall enough to interfere with the line is removed.
• Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed.
• Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain where
trees are cut.
• Rip rap shall not be used unless it is necessary to stabilize a tower.
■ No fertilizer shall be used other than a one-time application to re-establish vegetation.
■ Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area,
and the time in which areas remain in a disturbed state.
■ Active measures shall be taken after construction and during routine maintenance to ensure diffuse flow of
stormwater through the buffer.
■ In wetlands, mats shall be utilized to minimize soil disturbance.
z Provided that poles or towers shall not be installed within 10 feet of a water body unless the Division completes a
no practical alternatives evaluation.
I Perpendicular crossings are those that intersect the surface water at an angle between 75 degrees and 105 degrees.
Exempt
Allowable
Allowable
Prohibited
with
Mitigation
Playground equipment:
• Playground equipment on single family lots provided
X
that installation and use does not result in removal of
vegetation
• Playground equipment installed on lands other than
X
single-family lots or that requires removal of
vegetation
Ponds in natural drainage ways, excluding dry ponds:
• New ponds provided that a riparian buffer that meets the
X
requirements of Items (4) and (5) of this Rule is
established adjacent to the pond
• New ponds where a riparian buffer that meets the
X
requirements of Items (4) and (5) of this Rule is NOT
established adjacent to the pond
Protection of existing structures, facilities and streambanks
X
when this requires additional disturbance of the riparian
buffer or the stream channel
Railroad impacts other than crossings of streams and other
X
surface waters subject to this Rule
Railroad crossings of streams and other surface waters
subject to this Rule:
• Railroad crossings that impact equal to or less than 40
X
linear feet of riparian buffer
• Railroad crossings that impact greater than 40 linear feet
X
but equal to or less than 150 linear feet or one-third of
an acre of riparian buffer
• Railroad crossings that impact greater than 150 linear
X
feet or one-third of an acre of riparian buffer
Removal of previous fill or debris provided that diffuse
X
flow is maintained and any vegetation removed is restored
Road impacts other than crossings of streams and other
X
surface waters subject to this Rule
Road crossings of streams and other surface waters subject
to this Rule:
• Road crossings that impact equal to or less than 40 linear
X
feet of riparian buffer
• Road crossings that impact greater than 40 linear feet but
X
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
X
one-third of an acre of riparian buffer
Scientific studies and stream gauging
X
Stormwater management ponds excluding dry ponds:
• New stormwater management ponds provided that a
X
riparian buffer that meets the requirements of Items (4)
and (5) of this Rule is established adjacent to the pond
• New stormwater management ponds where a riparian
X
buffer that meets the requirements of Items (4) and (5)
of this Rule is NOT established adjacent to the pond
Stream restoration
X
Streambank stabilization
X
Temporary roads:
• Temporary roads that disturb less than or equal to 2,500
X
square feet provided that vegetation is restored within
six months of initial disturbance
• Temporary roads that disturb greater than 2,500 square
X
feet provided that vegetation is restored within six
months of initial disturbance
• Temporary roads used for bridge construction or
X
replacement provided that restoration activities, such
as soil stabilization and revegetation, are conducted
immediately after construction
Temporary sediment and erosion control devices:
• In Zone 2 only provided that the vegetation in Zone 1 is
X
not compromised and that discharge is released as
diffuse flow in accordance with Item (5) of this Rule
• In Zones 1 and 2 to control impacts associated with uses
X
approved by the Division or that have received a
variance provided that sediment and erosion control
for upland areas is addressed to the maximum extent
practical outside the buffer
• In -stream temporary erosion and sediment control
X
measures for work within a stream channel
Underground electric utility lines:
• Impacts other than perpendicular crossings in Zone 2
X
only'
X
• Impacts other than perpendicular crossings in Zone 1',a
Underground electric utility line perpendicular crossings of
streams and other surface waters subject to this Rule:'
• Perpendicular crossings that disturb less than or equal to
X
40 linear feet of riparian buffer 3,1
• Perpendicular crossings that disturb greater than 40
X
linear feet of riparian buffer 3,4
4 Provided that, in Zone 1, all of the following BMPs for underground utility lines are used. If all of these BMPs are
not used, then the underground utility line shall require a no practical alternatives evaluation by the Division.
• Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed.
• Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain, except
in the trench, where trees are cut.
• Underground cables shall be installed by vibratory plow or trenching.
The trench shall be backfilled with the excavated soil material immediately following cable installation.
No fertilizer shall be used other than a one-time application to re-establish vegetation.
Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area,
and the time in which areas remain in a disturbed state.
Active measures shall be taken after construction and during routine maintenance to ensure diffuse flow of
stormwater through the buffer.
• In wetlands, mats shall be utilized to minimize soil disturbance.
Exempt Allowable Allowable Prohibited
with
(7) REQUIREMENTS FOR CATEGORIES OF USES. Uses designated as exempt, allowable,
allowable with mitigation and prohibited in Item (6) of this Rule shall have the following
requirements:
(a) EXEMPT. Uses designated as exempt are allowed within the riparian buffer. Exempt
uses shall be designed, constructed and maintained to minimize soil disturbance and to
provide the maximum water quality protection practicable. In addition, exempt uses shall
meet requirements listed in Item (6) of this Rule for the specific use.
(b) ALLOWABLE. Uses designated as allowable may proceed within the riparian buffer
provided that there are no practical alternatives to the requested use pursuant to Item (8)
of this Rule. These uses require written authorization from the Division or the delegated
local authority.
(c) ALLOWABLE WITH MITIGATION. Uses designated as allowable with mitigation
may proceed within the riparian buffer provided that there are no practical alternatives to
the requested use pursuant to Item (8) of this Rule and an appropriate mitigation strategy
has been approved pursuant to Item (10) of this Rule. These uses require written
authorization from the Division or the delegated local authority.
(d) PROHIBITED. Uses designated as prohibited may not proceed within the riparian buffer
unless a variance is granted pursuant to Item (9) of this Rule. Mitigation may be required
as one condition of a variance approval.
(8) DETERMINATION OF "NO PRACTICAL ALTERNATIVES." 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 Division or to the delegated local authority. The applicant shall
certify that the criteria identified in Sub -Item (8)(a) of this Rule are met. The Division or the
Mitigation
Vegetation management:
• Emergency fire control measures provided that
X
topography is restored
• Periodic mowing and harvesting of plant products in
X
Zone 2 only
• Planting vegetation to enhance the riparian buffer
X
• Pruning forest vegetation provided that the health and
X
function of the forest vegetation is not compromised
• Removal of individual trees which are in danger of
X
causing damage to dwellings, other structures or
human life
• Removal of poison ivy
X
• Removal of understory nuisance vegetation as defined
X
in: Smith, Cherri L. 1998. Exotic Plant Guidelines.
Department of Environment and Natural Resources.
Division of Parks and Recreation. Raleigh, NC.
Guideline #30
Water dependent structures as defined in 15A NCAC 02B
X
.0202
Water supply reservoirs:
• New reservoirs provided that a riparian buffer that meets
X
the requirements of Items (4) and (5) of this Rule is
established adjacent to the reservoir
• New reservoirs where a riparian buffer that meets the
requirements of Items (4) and (5) of this Rule is NOT
X
established adjacent to the reservoir
Water wells
X
Wetland restoration
X
(7) REQUIREMENTS FOR CATEGORIES OF USES. Uses designated as exempt, allowable,
allowable with mitigation and prohibited in Item (6) of this Rule shall have the following
requirements:
(a) EXEMPT. Uses designated as exempt are allowed within the riparian buffer. Exempt
uses shall be designed, constructed and maintained to minimize soil disturbance and to
provide the maximum water quality protection practicable. In addition, exempt uses shall
meet requirements listed in Item (6) of this Rule for the specific use.
(b) ALLOWABLE. Uses designated as allowable may proceed within the riparian buffer
provided that there are no practical alternatives to the requested use pursuant to Item (8)
of this Rule. These uses require written authorization from the Division or the delegated
local authority.
(c) ALLOWABLE WITH MITIGATION. Uses designated as allowable with mitigation
may proceed within the riparian buffer provided that there are no practical alternatives to
the requested use pursuant to Item (8) of this Rule and an appropriate mitigation strategy
has been approved pursuant to Item (10) of this Rule. These uses require written
authorization from the Division or the delegated local authority.
(d) PROHIBITED. Uses designated as prohibited may not proceed within the riparian buffer
unless a variance is granted pursuant to Item (9) of this Rule. Mitigation may be required
as one condition of a variance approval.
(8) DETERMINATION OF "NO PRACTICAL ALTERNATIVES." 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 Division or to the delegated local authority. The applicant shall
certify that the criteria identified in Sub -Item (8)(a) of this Rule are met. The Division or the
delegated local authority shall grant an Authorization Certificate upon a "no practical alternatives"
determination. The procedure for making an Authorization Certificate shall be as follows:
(a) For any request for an Authorization Certificate, the Division or the delegated local
authority shall review the entire project and make a finding of fact as to whether the
following requirements have been met in support of a "no practical alternatives"
determination:
(i) The basic project purpose cannot be practically accomplished in a manner that
would better minimize disturbance, preserve aquatic life and habitat, and protect
water quality.
(ii) The use cannot practically be reduced in size or density, reconfigured or
redesigned to better minimize disturbance, preserve aquatic life and habitat, and
protect water quality.
(iii) Best management practices shall be used if necessary to minimize disturbance,
preserve aquatic life and habitat, and protect water quality.
(b) Requests for an Authorization Certificate shall be reviewed and either approved or denied
within 60 days of receipt of a complete submission based on the criteria in Sub -Item
(8)(a) of this Rule by either the Division or the delegated local authority. Failure to issue
an approval or denial within 60 days shall constitute that the applicant has demonstrated
"no practical alternatives." The Division or the delegated local authority may attach
conditions to the Authorization Certificate that support the purpose, spirit and intent of
the riparian buffer protection program. Complete submissions shall include the
following:
(i) The name, address and phone number of the applicant;
(ii) The nature of the activity to be conducted by the applicant;
(iii) The location of the activity, including the jurisdiction;
(iv) A map of sufficient detail to accurately delineate the boundaries of the land to be
utilized in carrying out the activity, the location and dimensions of any
disturbance in riparian buffers associated with the activity, and the extent of
riparian buffers on the land;
(v) An explanation of why this plan for the activity cannot be practically
accomplished, reduced or reconfigured to better minimize disturbance to the
riparian buffer, preserve aquatic life and habitat and protect water quality; and
(vi) Plans for any best management practices proposed to be used to control the
impacts associated with the activity.
(c) Any disputes over determinations regarding Authorization Certificates shall be referred to
the Director for a decision. The Director's decision is subject to review as provided in
Articles 3 and 4 of G.S. 150B.
(9) VARIANCES. Persons who wish to undertake uses designated as prohibited may pursue a
variance. The Division or the appropriate delegated local authority may grant minor variances.
The variance request procedure shall be as follows:
(a) For any variance request, the Division or the delegated local authority shall make a
finding of fact as to whether the following requirements have been met:
(i) There are practical difficulties or unnecessary hardships that prevent compliance
with the strict letter of the riparian buffer protection requirements. Practical
difficulties or unnecessary hardships shall be evaluated in accordance with the
following:
(A) If the applicant complies with the provisions of this Rule, he/she can
secure no reasonable return from, nor make reasonable use of, his/her
property. Merely proving that the variance would permit a greater
profit from the property shall not be considered adequate justification
for a variance. Moreover, the Division or delegated local authority
shall consider whether the variance is the minimum possible deviation
from the terms of this Rule that shall make reasonable use of the
property possible.
(B) The hardship results from application of this Rule to the property rather
than from other factors such as deed restrictions or other hardship.
(10)
(C) The hardship is due to the physical nature of the applicant's property,
such as its size, shape, or topography, which is different from that of
neighboring property.
(D) The applicant did not cause the hardship by knowingly or unknowingly
violating this Rule.
(E) The applicant did not purchase the property after the effective date of
this Rule, and then requesting an appeal.
(F) The hardship is unique to the applicant's property, rather than the result
of conditions that are widespread. If other properties are equally
subject to the hardship created in the restriction, then granting a
variance would be a special privilege denied to others, and would not
promote equal justice;
(ii) The variance is in harmony with the general purpose and intent of the State's
riparian buffer protection requirements and preserves its spirit; and
(iii) In granting the variance, the public safety and welfare have been assured water
quality has been protected, and substantial justice has been done.
(b) MINOR VARIANCES. A minor variance request pertains to activities that are proposed
only to impact any portion of Zone 2 of the riparian buffer. Minor variance requests shall
be reviewed and approved based on the criteria in Sub -Item (9)(a) of this Rule by the
either the Division or the delegated local authority pursuant to G.S. 153A Article 18, or
G.S. 160A -Article 19. The Division or the delegated local authority may attach
conditions to the variance approval that support the purpose, spirit and intent of the
riparian buffer protection program. Requests for appeals of decisions made by the
Division shall be made to the Office of Administrative Hearings. Request for appeals
made by the delegated local authority shall be made to the appropriate Board of
Adjustment under G.S. 160A-388 or G.S. 153A-345.
(c) MAJOR VARIANCES. A major variance request pertains to activities that are proposed
to impact any portion of Zone 1 or any portion of both Zones 1 and 2 of the riparian
buffer. If the Division or the delegated local authority has determined that a major
variance request meets the requirements in Sub -Item (9)(a) of this Rule, then it shall
prepare a preliminary finding and submit it to the Commission. Preliminary findings on
major variance requests shall be reviewed by the Commission within 90 days after receipt
by the Director. Requests for appeals of determinations that the requirements of Sub -
Item (9)(a) of this Rule have not been met shall be made to the Office of Administrative
Hearings for determinations made by the Division or the appropriate Board of
Adjustments under G.S. 160A-388 or G.S. 153A-345 for determinations made by the
delegated local authority. The purpose of the Commission's review is to determine if it
agrees that the requirements in Sub -Item (9)(a) of this Rule have been met. Requests for
appeals of decisions made by the Commission shall be made to the Office of
Administrative Hearings. The following actions shall be taken depending on the
Commission's decision on the major variance request:
(i) Upon the Commission's approval, the Division or the delegated local authority
shall issue a final decision granting the major variance.
(ii) Upon the Commission's approval with conditions or stipulations, the Division or
the delegated local authority shall issue a final decision, which includes these
conditions or stipulations.
(iii) Upon the Commission's denial, the Division or the delegated local authority
shall issue a final decision denying the major variance.
MITIGATION. Persons who wish to undertake uses designated as allowable with mitigation shall
meet the following requirements in order to proceed with their proposed use.
(a) Obtain a determination of "no practical alternatives" to the proposed use pursuant to Item
(8) of this Rule.
(b) Obtain approval for a mitigation proposal pursuant to 15A NCAC 02B .0242.
REQUIREMENTS SPECIFIC TO FOREST HARVESTING. The following requirements shall
apply for forest harvesting operations and practices.
(a) The following measures shall apply in the entire riparian buffer:
(i) Logging decks and sawmill sites shall not be placed in the riparian buffer.
(ii) Access roads and skid trails shall be prohibited except for temporary and
permanent stream crossings established in accordance with 15A NCAC 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 water body.
(iv) Skidding shall be directed away from the stream or water body and shall be done
in a manner that minimizes soil disturbance and prevents the creation of
channels or ruts.
(v) Individual trees may be treated to maintain or improve their health, form or
vigor.
(vi) Harvesting of dead or infected trees or application of pesticides necessary to
prevent or control extensive tree pest and disease infestation shall be allowed.
These practices must be approved by the Division of Forest Resources for a
specific site. The Division of Forest Resources must notify the Division of all
approvals.
(vii) Removal of individual trees that are in danger of causing damage to structures or
human life shall be allowed.
(viii) Natural regeneration of forest vegetation and planting of trees, shrubs, or ground
cover plants to enhance the riparian buffer shall be allowed provided that soil
disturbance is minimized. Plantings shall consist primarily of native species.
(ix) High intensity prescribed burns shall not be allowed.
(x) Application of fertilizer shall not be allowed except as necessary for permanent
stabilization. Broadcast application of fertilizer or herbicides to the adjacent
forest stand shall be conducted so that the chemicals are not applied directly to
or allowed to drift into the riparian buffer.
(b) In Zone 1, forest vegetation shall be protected and maintained. Selective harvest as
provided for below is allowed on forest lands that have a deferment for use value under
forestry in accordance with G.S. 105-277.2 through G.S. 277.6 or on forest lands that
have a forest management plan prepared or approved by a registered professional
forester. Copies of either the approval of the deferment for use value under forestry or
the forest management plan shall be produced upon request. For such forest lands,
selective harvest is allowed in accordance with the following:
(i) Tracked or wheeled vehicles are not permitted except at stream crossings
designed, constructed and maintained in accordance with 15A NCAC Ol I .0203.
(ii) Soil disturbing site preparation activities are not allowed.
(iii) Trees shall be removed with the minimum disturbance to the soil and residual
vegetation.
(iv) The following provisions for selective harvesting shall be met:
(A) The first 10 feet of Zone 1 directly adjacent to the stream or waterbody
shall be undisturbed except for the removal of individual high value
trees as defined provided that no trees with exposed primary roots
visible in the streambank be cut.
(B) In the outer 20 feet of Zone 1, a maximum of 50 percent of the trees
greater than five inches dbh may be cut and removed. The reentry time
for harvest shall be no more frequent than every 15 years, except on
forest plantations where the reentry time shall be no more frequent than
every five years. In either case, the trees remaining after harvest shall
be as evenly spaced as possible.
(C) In Zone 2, harvesting and regeneration of the forest stand shall be
allowed provided that sufficient ground cover is maintained to provide
for diffusion and infiltration of surface runoff.
(12) REQUIREMENTS SPECIFIC TO LOCAL GOVERNMENTS WITH STORMWATER
PROGRAMS FOR NITROGEN CONTROL. Local governments that are required to have local
stormwater programs pursuant to 15A NCAC 02B .0235 shall have two options for ensuring
protection of riparian buffers on new developments within their jurisdictions as follows.
(a) Obtain authority to implement a local riparian buffer protection program pursuant to 15A
NCAC 02B .0241.
(b) Refrain from issuing local approvals for new development projects unless either:
(i) The person requesting the approval does not propose to impact the riparian
buffer of a surface water that appears on either the most recent versions of the
soil survey maps prepared by the Natural Resources Conservation Service of the
United States Department of Agriculture or the most recent versions of the
1:24,000 scale (7.5 minute quadrangle) topographic maps prepared by the
United States Geologic Survey (USGS).
(ii) The person requesting the approval proposes to impact the riparian buffer of a
surface water that appears on the maps described in Sub -Item (12)(b)(i) of this
Rule and either:
(A) Has received an on-site determination from the Division pursuant to
Sub -Item (3)(a) of this Rule that surface waters are not present;
(B) Has received an Authorization Certificate from the Division pursuant to
Item (8) of this Rule for uses designated as Allowable under this Rule;
(C) Has received an Authorization Certificate from the Division pursuant to
Item (8) of this Rule and obtained the Division's approval on a
mitigation plan pursuant to Item (10) of this Rule for uses designated as
Allowable with Mitigation under this Rule; or
(D) Has received a variance from the Commission pursuant to Item (9) of
this Rule.
(13) OTHER LAWS, REGULATIONS AND PERMITS. In all cases, compliance with this Rule does
not preclude the requirement to comply with all federal, state and local regulations and laws.
History Note: Authority G.S. 143-214.1; 143-214.7; 143-215.3(a)(1); S.L. 1995, c. 572;
Temporary Adoption Eff. July 22, 1997;
Temporary Adoption Eff. June 22, 1999; April 22, 1998; January 22, 1998;
Eff. August 1, 2000.