15a ncac 02b .0268       jordan water supply nutrient strategy: mitigation for riparian buffers

The following are requirements for the Riparian Buffer Mitigation Program for the Jordan watershed, as prefaced in 15A NCAC 02B .0262:

(1)           PURPOSE.  The purpose of this Rule is to set forth the mitigation requirements that the local governments in the Jordan watershed and listed in 15A NCAC 02B .0262, and in the cases stated in 15A NCAC 02B .0267(3) the Division, shall apply to the riparian buffer protection program called for in 15A NCAC 02B .0267.  Additionally this Rule will help to protect the water supply uses of Jordan Reservoir and of designated water supplies throughout the Jordan watershed.  Local programs shall be established to meet or exceed the minimum requirements of this Rule.  For the types of buffer activities listed in 15A NCAC 02B .0267(3), the Division shall apply the requirements of this Rule wherever local governments are referenced.  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 may choose to implement more stringent requirements, including the one-hundred foot buffer requirement set out in Sub-Items (3)(b)(i) of 15A NCAC 02B .0214 through .0216 for high-density developments.

(2)           APPLICABILITY.  This Rule applies to persons who wish to impact a riparian buffer in the Jordan watershed when one of the following applies:

(a)           A person has received an Authorization Certificate pursuant to 15A NCAC 02B .0267 for a proposed use that is designated as "allowable with mitigation;" or

(b)           A person has received a variance pursuant to 15A NCAC 02B .0267 and is required to perform mitigation as a condition of a variance approval.

(3)           ISSUANCE OF THE MITIGATION APPROVAL.  The local government shall issue a mitigation approval upon determining that a proposal meets the requirements set out in this Rule.  The approval shall identify at a minimum the option chosen, the required and proposed areas, and either the mitigation location or the offset payment amount as applicable. 

(4)           OPTIONS FOR MEETING THE MITIGATION REQUIREMENT.  The mitigation requirement may be met through one of the following options:

(a)           Payment of a compensatory mitigation fee to the Riparian Buffer Restoration Fund pursuant to 15A NCAC 02B .0269 contingent upon acceptance of payments by the NC Ecosystem Enhancement Program, or to a private mitigation bank that complies with banking requirements of the US Army Corps of Engineers, currently set out at http://www.saw.usace.army.mil/WETLANDS/Mitigation/mitbanks.html or from the US Army Corps of Engineers, P.O. Box 1890, Wilmington, NC, 28402-1890, and the applicable trading criteria in 15A NCAC 02B .0273;

(b)           Donation of real property or of an interest in real property pursuant to Item (7) of this Rule; or

(c)           Restoration or enhancement of a non-forested riparian buffer pursuant to the requirements of Item (8) of this Rule.

(5)           THE AREA OF MITIGATION.  The local government shall determine the required area of mitigation, which shall apply to all mitigation options identified in Item (4) of this Rule and as further specified in the requirements for each option set out in this Rule, according to the following:

(a)           The impacts in square feet to each zone of the riparian buffer shall be determined by the local government by adding the following:

(i)            The area of the footprint of the use causing the impact to the riparian buffer;

(ii)           The area of the boundary of any clearing and grading activities within the riparian buffer necessary to accommodate the use; and

(iii)          The area of any ongoing maintenance corridors within the riparian buffer associated with the use.

(b)           The required area of mitigation shall be determined by applying the following multipliers to the impacts determined in Sub-item (5)(a) of this Rule to each zone of the riparian buffer:

(i)            Impacts to Zone One of the riparian buffer shall be multiplied by three;

(ii)           Impacts to Zone Two of the riparian buffer shall be multiplied by one and one-half; and

(iii)          Impacts to wetlands within Zones One and Two of the riparian buffer that are subject to mitigation under 15A NCAC 02H .0506 shall comply with the mitigation ratios in 15A NCAC 02H .0506.

(6)           THE LOCATION OF MITIGATION.  For any option chosen, the mitigation effort shall be located within the same subwatershed of the Jordan watershed, as defined in Rule .0262 of this Section, and the same distance from the Jordan Reservoir as the proposed impact, or closer to the Reservoir than the impact, and as close to the location of the impact as feasible.  Alternatively, the applicant may propose mitigation anywhere within the same subwatershed of the Jordan watershed, as defined in Rule .0262 of this Section, provided that the mitigation proposal accounts for differences in delivery of nutrients to the affected arm of Jordan Reservoir resulting from differences between the locations of the buffer impact and mitigation. Additional location requirements for the property donation option are enumerated in Sub-Item (7)(c)(i) of this Rule.

(7)           DONATION OF PROPERTY.  Persons who choose to satisfy their mitigation determination by donating real property or an interest in real property shall meet the following requirements:

(a)           The donation of real property interests may be used to either partially or fully satisfy the payment of a compensatory mitigation fee to the Riparian Buffer Restoration Fund pursuant to 15A NCAC 02B .0269.  The value of the property interest shall be determined by an appraisal performed in accordance with Sub-item (7)(d)(iv) of this Rule.  The donation shall satisfy the mitigation determination if the appraised value of the donated property interest is equal to or greater than the required fee.  If the appraised value of the donated property interest is less than the required fee calculated pursuant to 15A NCAC 02B .0269, the applicant shall pay the remaining balance due;

(b)           Accepted only if the conservation easement is granted in perpetuity;

(c)           Donation of real property interests to satisfy the mitigation determination shall be accepted only if such property meets all of the following requirements:

(i)            In addition to the location requirements of Item (6), the property shall be located within an area that is identified as a priority for restoration in, or is otherwise consistent with the goals of, the Basinwide Wetlands and Riparian Restoration Plan for the Cape Fear River Basin developed by the Department pursuant to G.S.  143-214.10;

(ii)           The property shall contain riparian buffers not currently protected by the State's riparian buffer protection program that are in need of restoration as defined in Sub-Item (8)(d) of this Rule;

(iii)          The restorable riparian buffer on the property shall have a minimum length of 1000 linear feet along a surface water and a minimum width of 50 feet as measured horizontally on a line perpendicular to the surface water;

(iv)          The size of the restorable riparian buffer on the property to be donated shall equal or exceed the area of mitigation responsibility determined pursuant to Item (5) of this Rule;

(v)           Restoration shall not require  removal of man-made structures or infrastructure;

(vi)          The property shall be suitable to be successfully restored, based on existing hydrology, soils, and vegetation;

(vii)         The estimated cost of restoring and maintaining the property shall not exceed the value of the property minus site identification and transaction costs;

(viii)        The property shall not contain any building, structure, object, site, or district that is listed in the National Register of Historic Places established pursuant to Public Law 89-665, 16 U.S.C. 470 as amended;

(ix)          The property shall not contain any hazardous substance or solid waste;

(x)           The property shall not contain structures or materials that present health or safety problems to the general public.  If wells, septic, water or sewer connections exist, they shall be filled, remediated or closed at owner's expense in accordance with state and local health and safety regulations;

(xi)          The property and adjacent properties shall not have prior, current, and known future land use that would inhibit the function of the restoration effort; and

(xii)         The property shall not have any encumbrances or conditions on the transfer of the property interests;

(d)           At the expense of the applicant or donor, the following information shall be submitted to the local government with any proposal for donations or dedications of interest in real property:

(i)            Documentation that the property meets the requirements laid out in Sub-Item (7)(c) of this Rule;

(ii)           US Geological Survey 1:24,000 (7.5 minute) scale topographic map, county tax map, USDA Natural Resource Conservation Service County Soil Survey Map, and county road map showing the location of the property to be donated along with information on existing site conditions, vegetation types, presence of existing structures and easements;

(iii)          A current property survey performed in accordance with the procedures of the North Carolina Department of Administration, State Property Office as identified by the State Board of Registration for Professional Engineers and Land Surveyors in "Standards of Practice for Land Surveying in North Carolina."  Copies may be obtained from the North Carolina State Board of Registration for Professional Engineers and Land Surveyors, 3620 Six Forks Road, Suite 300, Raleigh, North Carolina 27609;

(iv)          A current appraisal of the value of the property performed in accordance with the procedures of the North Carolina Department of Administration, State Property Office as identified by the Appraisal Board in the "Uniform Standards of Professional North Carolina Appraisal Practice."  Copies may be obtained from the Appraisal Foundation, Publications Department, P.O. Box 96734, Washington, D.C. 20090-6734; and

(v)           A title certificate.

(8)           RIPARIAN BUFFER RESTORATION OR ENHANCEMENT.  Persons who choose to meet their mitigation requirement through riparian buffer restoration or enhancement shall meet the following requirements:

(a)           The applicant may restore or enhance a non-forested riparian buffer if either of the following applies:

(i)            The area of riparian buffer restoration is equal to the required area of mitigation determined pursuant to Item (5) of this Rule; or

(ii)           The area of riparian buffer enhancement is three times larger than the required area of mitigation determined pursuant to Item (5) of this Rule;

(b)           The location of the riparian buffer restoration or enhancement shall comply with the requirements in Item (6) of this Rule;

(c)           The riparian buffer restoration or enhancement site shall have a minimum width of 50 feet as measured horizontally on a line perpendicular to the surface water;

(d)           Enhancement and restoration shall both have the objective of establishing a forested riparian buffer according to the requirements of this Item.  Enhancement shall be distinguished from restoration based on existing buffer conditions.  Where existing trees are sparse, that is greater than or equal to 100 trees per acre but less than 200 trees per acre, a buffer may be enhanced. Where existing woody vegetation is absent, that is less than 100 trees per acre, a buffer may be restored;

(e)           The applicant shall first receive an Authorization Certificate for the proposed use according to the requirements of 15A NCAC 02B .0267.  After receiving this determination, the applicant shall submit a restoration or enhancement plan for approval by the local government.  The restoration or enhancement plan shall contain the following:

(i)            A map of the proposed restoration or enhancement site;

(ii)           A vegetation plan.  The vegetation plan shall include a minimum of at least two native hardwood tree species planted at a density sufficient to provide 320 trees per acre at maturity;

(iii)          A grading plan.  The site shall be graded in a manner to ensure diffuse flow through the riparian buffer;

(iv)          A fertilization plan; and

(v)           A schedule for implementation;

(f)            Within one year after the local government has approved the restoration or enhancement plan, the applicant shall present proof to the local government that the riparian buffer has been restored or enhanced.  If proof is not presented within this timeframe, then the person shall be in violation of both the State's and the local government's riparian buffer protection program;

(g)           The mitigation area shall be placed under a perpetual conservation easement that will provide for protection of the property's nutrient removal functions; and

(h)           The applicant shall submit annual reports for a period of five years after the restoration or enhancement showing that the trees planted have survived and that diffuse flow through the riparian buffer has been maintained.  The applicant shall replace trees that do not survive and restore diffuse flow if needed during that five-year period.

 

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;

Eff. August 11, 2009;

Amended Eff. September 1, 2011.