SUBCHAPTER 02R – Ecosystem enhancement PROGRAM

 

SECTION .0100 - PURPOSE AND DEFINITIONS

 

15A NCAC 02R .0101       purpose

This Subchapter establishes the North Carolina Ecosystem Enhancement Program pursuant to G.S. 143-214.8 through 143-214.13.

 

History Note:        Authority G.S. 143-214.8; 143-214.9; 143-215.3;

Eff. August 1, 1998;

Amended Eff. July 3, 2008.

15A NCAC 02R .0102       DEFINITIONS

The definition of any word or phrase used in this Subchapter shall be the same as given in G.S. 143, Article 21.  The following words and phrases, which are not defined by statute, shall be interpreted as follows:

(1)           "Mitigation bank" means a site where wetlands or other aquatic resources are restored, created, enhanced, or preserved expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar resources.

(2)           "Non-riparian wetlands" means Class WL wetlands as defined in 15A NCAC 2B .0101(c)(8) whose major source of water is precipitation.  Wetland types generally considered to be non-riparian include wet flats, pocosins and ephemeral wetlands.

(3)           "Riparian area" means an area that does not meet the definition of wetlands found at 15A NCAC 2B .0202 and that is located within 300 feet of any perennial or intermittent water body as shown by the most recently published version of the United States Geological Survey 1:24,000 (7.5 minute) scale topographic map or other site specific data.

(4)           "Riparian wetlands" means Class WL wetlands as defined in 15A NCAC 2B .0101(c)(8) whose major source of water is ground water or surface water.  Wetland types generally considered to be riparian include freshwater marshes, swamp forests, bottomland hardwood forests, headwater forests, bog forests, mountain bogs and seeps.

 

History Note:        Authority G.S. 143-214.8; 143-214.9; 143-214.11;143-215.3;

Eff. August 1, 1998.

 

 

 

 

 

SECTION .0200 - BASINWIDE RESTORATION PLANS

 

15A NCAC 02R .0201       PURPOSE

The purpose of the Basinwide Restoration Plans is to identify wetlands and riparian areas within each of the 17 major river basins of the state that have the potential, through restoration, enhancement, creation or preservation, to contribute to the goals of the Ecosystem Enhancement Program.

 

History Note:        Authority G.S. 143-214.10; 143-215.3;

Eff. August 1, 1998;

Amended Eff. July 3, 2008.

 

15A NCAC 02R .0202       COMPONENTS

(a)  The Basinwide Restoration Plans for each of the 17 major river basins shall consist of the following components:

(1)           an assessment of the existing wetlands and riparian area resources within each basin;

(2)           an assessment of the existing needs of the river basin as identified by the Department with input from other state and federal agencies, local governments, institutions of higher learning, non-profit organizations and the general public;

(3)           identification of areas that have the potential, if restored or enhanced, to contribute to the goals of the Basinwide Restoration Plans;

(4)           identification of wetland and reparian areas that have the potential, if preserved, to contribute to the goals of the Basinwide Restoration Plans;

(5)           prioritization of the areas identified in Subparagraphs (3) and (4) of this Paragraph based on the area's ability to contribute to the specific goals of the Basinwide Restoration Plans and the needs of each river basin as identified in Subparagraph (2) of this Paragraph; and

(6)           an outline of the specific goal to be accomplished through implementation of the Basinwide Restoration Plan.

(b)  During the period July 1, 1997 through June 30, 2002, the Department may develop and implement Basinwide Restoration Plans that include only the following information:

(1)           an assessment of the existing needs of the river basin as identified by the Department with input from other state and federal agencies, local governments, institutions of higher learning, non-profit organizations and the general public;

(2)           identification of areas that have the potential, if restored or enhanced, to contribute to the specific goals of the Basinwide Restoration Plans;

(3)           prioritization of the areas identified in Subparagraph (2) of this Paragraph based on the area's ability to contribute to the goals of the Basinwide Restoration Plans and the needs of each river basin as identified in Subparagraph (b)(1) of this Rule;

(4)           identification of wetland and riparian areas that have the potential, if preserved, to contribute to the goals of the Basinwide Restoration Plans; and

(5)           an outline of the specific goals to be accomplished through implementation of the Basinwide Restoration Plan.

 

History Note:        Authority G.S. 143-214.10; 143-215.3;

Eff. August 1, 1998.

 

 

 

15A NCAC 02R .0203       PUBLIC INVOLVEMENT; AVAILABILITY

(a)  The Secretary, or the Secretary's designee, shall provide interested parties an opportunity to review and comment on the proposed Basinwide Restoration Plans.

(b)  The Basinwide Restoration Plans shall be available for review through the Ecosystem Enhancement Program's website at www.nceep.net.

 

History Note:        Authority G.S. 143-214.10; 143-215.3;

Eff. August 1, 1998;

Amended Eff. July 3, 2008.

 

SECTION .0300 - COMPENSATORY MITIGATION

 

15A NCAC 02R .0301       GENERAL

All projects implemented for the purpose of satisfying compensatory mitigation requirements of certifications issued by the Department under 33 USC ' 1341; and permits or authorizations issued by the United States Army Corps of Engineers (Corps) under 33 USC ' 1344, shall be consistent with the Basinwide Restoration Plan for the appropriate river basin.  A project is consistent with the Basinwide Restoration Plan if the project is located within an area that is identified as a priority for restoration in the Basinwide Restoration Plan; or is located at a site that is otherwise consistent with the goals outlined in the Basinwide Restoration Plan for the appropriate river basin; or is approved by the United States Army Corps of Engineers.

 

History Note:        Authority G.S. 143-214.11; 143-214.12; 143-215.3;

Eff. August 1, 1998.

 

 

 

15A NCAC 02R .0302       MITIGATION BANKS

(a)  All sponsors of mitigation banks that submit a prospectus to the United States Army Corps of Engineers after the effective date of this Rule must provide the Secretary, or the Secretary's designee, documentation that the proposed mitigation bank is consistent with the approved Basinwide Restoration Plan for the appropriate river basin and meets the requirements of G.S. 143-214.11(f).  A mitigation bank is consistent with the Basinwide Restoration Plans if the mitigation bank is located within an area that is identified as a priority for restoration in the Basinwide Restoration Plan; or is located at a site that is otherwise consistent with the goals outlined in the Basinwide Restoration Plan for the appropriate river basin; or is approved by the United States Army Corps of Engineers.  The Secretary, or the Secretary's designee, shall provide comments concerning this documentation through participation on the Mitigation Bank Review Team in accordance with "Federal Guidance for the Establishment, Use and Operation of Mitigation Banks," found in Volume 60, Number 228 of the Federal Register, November 28, 1995.  The signature of the Secretary, or the Secretary's designee, on the Mitigation Banking Instrument, described in the above guidance, shall be considered as a finding by the Department that the mitigation bank is consistent with the Basinwide Restoration Plan.

(b)  Each credit in a proposed mitigation bank must include a minimum of one acre of restoration or creation as defined in 15A NCAC 2H .0506(h)(4).

 

History Note:        Authority G.S. 143-214.11; 143-214.12; 143-215.3;

Eff. August 1, 1998.

 

 

 

 

 

SECTION .0400 - ecosystem RESTORATION FUND

 

15A NCAC 02R .0401       PURPOSE

This Section establishes the Ecosystem Restoration Fund pursuant to G.S. 143-214.12.

 

History Note:        Authority G.S. 143-214.11; 143-214.12; 143-215.3;

Eff. August 1, 1998;

Amended Eff. July 3, 2008.

 

15A NCAC 02R .0402       SCHEDULE OF FEES

(a)  The amount of payment into the Fund necessary to achieve compliance with compensatory mitigation requirements shall be determined in accordance with Subparagraphs (1) through (7) of this Paragraph. The fee shall be based on the acres and types of compensatory mitigation specified in the approved certifications issued by the Department u n d e r 33 USC 1341; and permits or authorizations issued by the United States Army Corps of Engineers under 33 USC 1344. Payments shall be rounded up in increments of linear feet for streams and in 0.25 acre increments for wetlands, e.g. for streams, 520.3 linear feet of compensatory mitigation would be considered as 521 feet, and for wetlands, 2.35 acres of required compensatory mitigation would be considered as 2.5 acres for the purpose of calculating the amount of payment.

(b)  Payments made pursuant to Subparagraphs (3) through (6) of this Paragraph are subject to separate fees determined by which 8-digit hydrologic unit (as defined by the United States Geological Survey) the permitted impact is located. Fees are assessed according to the location of the permitted impact and mitigation type as follows:

(1)           Fees in Subparagraphs (3) and (4) shall be applied to the following 8 digit hydrologic units organized by river basin: Broad: 03050105; Cape Fear: 03030002, 03030004, 03030005, 03030007; Catawba: 03050101, 03050102, 03050103; French Broad: 06010106, 06010105, 06010108; Hiwassee: 06020002; Little Tennessee: 06010202, 06010203, 06010204; Lumber 03040207;  Neuse: 03020201; New: 05050001; Roanoke: 03010107; Savannah: 03060101, 03060102; Tar-Pamlico: 03020101; Watauga: 06010103; White Oak:  03030001, 03020106; Yadkin: 03040102, 03040103, 03040105, 03040202

(2)           Fees in Subparagraphs (5) and (6) shall be applied to all other 8 digit hydrologic units not listed in Subparagraph (1).

(3)           Classified surface waters other than wetlands as defined in 15A NCAC 02B .0202.  The payment shall be three hundred and twenty-three dollars ($323.00) per linear foot of stream.

(4)           Class WL wetlands as defined in 15A NCAC 02B .0101(c)(8). The payment shall be:

(A)          Forty-three thousand dollars ($43,000) per acre for non-riparian wetlands.

(B)          Fifty-nine thousand and six hundred dollars ($59,600) per acre for riparian wetlands.

(5)           Classified surface waters other than wetlands as defined in 15A NCAC 02B .0202.  The payment shall be two hundred and forty-four dollars ($244.00) per linear foot of stream.

(6)           Class WL wetlands as defined in 15A NCAC 02B .0101(c)(8). The payment shall be:

(A)          Twenty-two thousand one hundred and thirteen dollars ($22,113) per acre for non-riparian wetlands.

(B)          Thirty-three thousand six hundred and ninety-six ($33,696) per acre for riparian wetlands.

(7)           Class SWL wetlands as defined in 15A NCAC 02B .0101(d)(4). The payment shall be one hundred and forty-six thousand and six hundred and fifteen dollars ($146,615.00) per acre.

(c)  The fees outlined in Subparagraphs (b)(1) through (b)(7) and Paragraph (e) of this Rule shall be reviewed annually by the Department and compared to the actual cost of restoration activities conducted by the Department, including planning, monitoring and maintenance costs. Based upon this annual review, revisions to Paragraph (a) of this Rule shall be recommended to the Commission when adjustments to this Schedule of Fees are deemed necessary to ensure that the Schedule of Fees reflects the actual costs of restoration activities.

(d)  The fees outlined in Subparagraphs (b)(1) through (b)(7) and Paragraph (e) of this Rule shall be adjusted for inflation on an annual basis using the Civil Works Construction Cost Index System published by the US Army Corps of Engineers. This adjustment shall occur at the end of each calendar year as follows: the fees in Subparagraphs (b)(1) through (b)(7) and Paragraph (e) of this Rule for each year shall be multiplied by the annual composite Civil Works Construction Cost Index yearly percentage change issued in September of each year and the result shall be the increase to that fee for the next fiscal year.  The revised fees shall be made available via the NC Ecosystem Enhancement Program's web site (www.nceep.net) and become effective on the following July 1st.

(e)  For properties and easements donated to the NC Department of Environment and Natural Resources, a fee of one thousand dollars ($1,000) per acre shall be charged at the time the land or easement is transferred to the Department's Conservation Grant Fund Endowment to cover costs of long-term management of the property.  For properties that are less than one acre in size, the minimum payment shall be one thousand dollars ($1,000).  This charge applies only to properties and easements donated to the Department for the sole purpose of property or easement maintenance.  This does not apply to properties or easements donated to the Department in association with restoration projects conducted by the Department.

 

History Note:        Authority G.S. 143-214.11; 143-214.12; 143-215.3;

Eff. August 1, 1998;

Amended Eff. July 18, 2008; April 1, 2003.

 

15A NCAC 02R .0403       DONATION OF PROPERTY

(a)  If approved by the Council of State, donations or dedications of interests in real property, for the purposes of restoration, enhancement, or preservation, may be accepted by the Secretary, or the Secretary's designee, if the property is consistent with the Basinwide Restoration Plan for the appropriate river basin subject to the factors listed in Paragraphs (b) and (c) of this Rule, or if the property interest is being donated to satisfy a condition of a certification issued by the Department under 33 USC 1341.  The property is consistent with the Basinwide Restoration Plan if the property is located within an area that is identified as a priority for restoration in the Basinwide Restoration Plan or is located at a site that is otherwise consistent with the goals outlined in the Basinwide Restoration Plan for the appropriate river basin.

(b)  The factors that shall be considered by the Secretary, or the Secretary's designee, in determining whether to accept donations or dedications of interests in real property for the purposes of wetland or riparian area restoration or enhancement include the following:

(1)           whether the property is adjacent to, or will become a part of, a Department approved restoration or preservation project; or is adjacent to or includes a sensitive natural resource, as identified in the Basinwide Restoration Plan; or is adjacent to or includes property with known occurrences of rare species as identified by the North Carolina Natural Heritage Program in the "Natural Heritage Program List of Rare Animal Species of North Carolina" or the "Natural Heritage Program List of the Rare Plant Species of North Carolina"; or is adjacent to or includes a Significant Natural Heritage Area as identified by the North Carolina Natural Heritage Program in the "North Carolina Natural Heritage Program Biennial Protection Plan, List of Significant Natural Heritage Areas."  Copies of these documents may be obtained from the Department of Environment and Natural Resources, Division of Parks and Recreation, Natural Heritage Program, PO Box 27687, Raleigh, North Carolina 27611;

(2)           whether the size of the property is at least five contiguous acres;

(3)           the likelihood that the site can be successfully restored or enhanced, based on hydrology, soils, and vegetation;

(4)           the extent of activities required to successfully restore or enhance the site.  Sites requiring extreme measures for successful restoration, such as removal of structures or infrastructure, will not be accepted;

(5)           absence of cultural and historic resources;

(6)           prior, current, and future land use of the donated property and adjacent properties;

(7)           existence of federally or state-listed sensitive, endangered, or threatened species, or their critical habitat;

(8)           the potential for enhancement of natural resource values of public lands;

(9)           absence of hazardous substance and solid waste;

(10)         whether the property is adjacent to non-supporting, partially supporting, or support-threatened waters as designated by the Division of Water Quality pursuant to 40 CFR 131.10(a) through (g).  This material is available for inspection at the Department of Environment and Natural Resources, Division of Water Quality, Water Quality Section, 512 North Salisbury Street, Raleigh, North Carolina;

(11)         absence of encumbrances and conditions on the transfer of the property interests; and

(12)         provisions have been made for the long term maintenance and management of the property.

(c)  The factors that shall be considered by the Secretary, or the Secretary's designee, in determining whether to accept donations or dedications of interests in real property for the purpose of preservation of existing wetland and riparian areas include the following:

(1)           whether the property has clearly identifiable unique wetland or riparian area functions or values, such as  federally or state-listed sensitive, endangered or threatened species, or their critical habitat;

(2)           the potential for enhancement of natural resource values of public lands;

(3)           whether the property is adjacent to, or will become a part of a Department approved restoration or preservation project; or is adjacent to or includes a sensitive natural resource, as identified in the Basinwide Restoration Plan; or is adjacent to or includes property with known occurrences of rare species as identified by the North Carolina Natural Heritage Program in the "Natural Heritage Program List of Rare Animal Species of North Carolina" or the "Natural Heritage Program List of the Rare Plant Species of North Carolina"; or is adjacent to or includes a Significant Natural Heritage Area as identified by the North Carolina Natural Heritage Program in the "North Carolina Natural Heritage Program Biennial Protection Plan, List of Significant Natural Heritage Areas."  Copies of these documents may be obtained from the Department of Environment and Natural Resources, Division of Parks and Recreation, Natural Heritage Program, PO Box 27687, Raleigh, North Carolina 27611;

(4)           whether the size of the property is at least five contiguous acres;

(5)           whether the property is under imminent threat of degradation;

(6)           prior, current, and future land use of the donated property and adjacent properties;

(7)           absence of extensive structures and infrastructure;

(8)           absence of hazardous substance and solid waste;

(9)           absence of cultural and historic resources;

(10)         whether the property is adjacent to non-supporting, partially supporting, or support-threatened waters as designated by the Division of Water Quality pursuant to 40 CFR 131.10(a) through (g).  This material is available for inspection at the Department of Environment and Natural Resources, Division of Water Quality, Water Quality Section, 512 North Salisbury Street, Raleigh, North Carolina;

(11)         absence of encumbrances and conditions on the transfer of the property interests; and

(12)         provisions have been made for the long term maintenance and management of the property.

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

(1)           documentation that the property meets the criteria outlined in Paragraph (b) and (c) of this Rule;

(2)           US Geologic 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;

(3)           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;

(4)           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, PO Box 96734, Washington, D.C. 20090-6734;

(5)           a title certificate; and

(6)           documentation that the property does not contain structures 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, and in accordance with state and local health and safety regulations.

(e)  In addition to the factors outlined in Paragraphs (b) through (d) of this Rule, the Secretary, or the Secretary's designee, shall consider the following factors when determining whether to accept a donation of interest in real property to satisfy compensatory mitigation requirements:

(1)           whether restoration of the property will offset the adverse impacts of the permitted project; and

(2)           whether the adverse impacts of the permitted project are within the same subbasin as the property proposed for donation.

(f)  Donations of interests in real property for the purpose of satisfying compensatory mitigation requirements will only be considered for acceptance when the proposed donation will offset an impact for which an application has already been made to the United States Army Corps of Engineers under 33 USC 1344 or to the Department under 33 USC 1341.

(g)  For the purposes of satisfying compensatory mitigation requirements through the donation of interests in real property, for property requiring restoration, enhancement, or preservation, the size of property to be donated must equal or exceed the acreage of wetland required to be mitigated under the approved permit and every parcel must be a minimum of five contiguous acres in size.

(h)  Donation of real property interests to satisfy compensatory mitigation requirements will only be accepted if such property meets the requirements of Paragraphs (a) through (i) of this Rule and 15A NCAC 2H .0506(h) and satisfies the compensatory mitigation requirements of the approved permit.

(i)  The donation of conservation easements to satisfy compensatory mitigation requirements will only be accepted if the conservation easement is granted in perpetuity and the property to be encumbered meets the requirements of Paragraphs (a) through (j) of this Rule, or if the property interest is being donated to satisfy a condition of a certification issued by the Department under 33 USC 1341.

(j)  Donation of interests in real property may contribute to or fulfill compensatory mitigation requirements that may be satisfied through payment of a fee as outlined in the Schedule of Fees in Rule .0402(a) of this Section.  The value of the property interest shall be determined by an appraisal performed in accordance with Subparagraph (d)(4) of this Rule.  The required fee as calculated in accordance with Rule .0402(a) of this Section shall be satisfied if the appraised value of the donated property interest is equal to or greater than the fee.  If the appraised value of the donated property interest is less than the designated fee requirement as calculated in accordance with Rule .0402(a) of this Section, the applicant shall pay the remaining balance due.

 

History Note:        Authority G.S. 143-214.11; 143-214.12; 143-215.3;

Eff. August 1, 1998.

 

 

 

SECTION .0500 - WETLANDS RESTORATION FUND

 

15A NCAC 02R .0501       PURPOSE

15A NCAC 02R .0502       DEFINITIONS

15A NCAC 02R .0503       SCHEDULE OF FEES

15A NCAC 02R .0504       PAYMENT

 

History Note:        Authority G.S. 143-214.11; 143-214.12;

Temporary Adoption Eff. May 6, 1997;

Repealed Eff. August 1, 1998.