15A NCAC 02H .0506       REVIEW OF APPLICATIONS

(a)  In evaluating requests for certification based on the procedures outlined in Paragraphs (b) through (e) of this Rule, the Director shall determine if the proposed activity has the potential to remove or degrade those significant existing uses which are present in the wetland or surface water.  Activities which would not remove or degrade existing uses shall be reviewed according to the procedures found in Subparagraph (c)(2)-(5) of this Rule.  Those activities covered by general certifications [15A NCAC 2H .0501(c)(2)] which do not require written concurrence from the Division shall be deemed certified if the conditions of the certification are followed and may proceed without the review procedures outlined in Paragraphs (b) through (e) of this Rule.  An applicant may also demonstrate that designated uses are not present at a particular site using a wetland evaluation procedure approved by the Director according to the criteria found in 15A NCAC 2B .0103(c); otherwise the designated uses as outlined at 15A NCAC 2B .0231(a)(1)-(6) are assumed to exist in all classes of wetlands, and the appropriate review procedures shall be undertaken.  Certification shall be issued where the Director determines water quality standards are met, including protection of existing uses.

(b)  The Director shall issue a certification upon determining that existing uses are not removed or degraded by a discharge to classified surface waters for an activity which:

(1)           has no practical alternative under the criteria outlined in Paragraph (f) of this Rule;

(2)           will minimize adverse impacts to the surface waters based on consideration of existing topography, vegetation, fish and wildlife resources, and hydrological conditions under the criteria outlined in Paragraph (g) of this Rule;

(3)           does not result in the degradation of groundwaters or surface waters;

(4)           does not result in cumulative impacts, based upon past or reasonably anticipated future impacts, that cause or will cause a violation of downstream water quality standards;

(5)           provides for protection of downstream water quality standards through the use of on-site stormwater control measures; and

(6)           provides for replacement of existing uses through mitigation as described at Subparagraphs (h)(1) of this Rule.

(c)  The Director shall issue a certification upon determining that sufficient existing uses are not removed or degraded by a discharge to Class WL wetlands as defined at 15A NCAC 2B .0101(c)(8), for an activity which:

(1)           has no practical alternative as described in Paragraph (f) of this Rule, or impacts less than three acres of Class WL wetlands;                              

(2)           will minimize adverse impacts to the wetland based on consideration of existing topography, vegetation, fish and wildlife resources, and hydrological conditions under the criteria outlined in Paragraph (g) of this Rule; or impacts less than one acre of wetland within 150 feet (including less than 1/3 acre of wetland within 50 feet), of the mean high water line or normal water level of any perennial or intermittent water body as shown by the most recently published version of the United State Geological Survey 1:24,000 (7.5 minute) scale topographical map or other site specific data;

(3)           does not result in the degradation of groundwaters or surface waters;

(4)           does not result in cumulative impacts, based upon past or reasonably anticipated future impacts, that cause or will cause a violation of downstream water quality standards;

(5)           provides protection for downstream water quality standards through the use of on-site stormwater control measures; and

(6)           provides for replacement of existing uses through wetland mitigation under U.S. Army Corps of Engineers requirements or as described in Subparagraph (h)(1)-(8) of this Rule.

(d)  The Director shall issue a certification upon determining that significant existing uses are not removed or degraded by a discharge to Class SWL wetland as defined at 15A NCAC 2B .0101(d)(4),wetlands that are contiguous to waters designated as ORW, HQW, SA, WS-I, WS-II or Trout, or wetlands that are contiguous to rivers designated as a North Carolina or National Wild and Scenic River for an activity which satisfies Subparagraphs (c)(2)-(5) of this Rule, and:

(1)           for wetlands classified as coastal wetlands pursuant to 15A NCAC 7H .0205:

(A)          has no practical alternative as described in Paragraph (f) of this Rule; and

(B)          is water dependent and requires access to water as a central element of its basic function, although, projects funded by government agencies may be exempted from this requirement; and

(2)           provides for replacement of existing uses through wetland mitigation under U.S. Army Corps of Engineers requirements, or as described in Subparagraphs (h)(1)-(7) and (9) of this Rule.

(e)  The Director shall issue a certification upon determining that significant existing uses are not removed or degraded by a discharge to wetlands of exceptional state or national ecological significance including but not limited to Class UWL wetlands, and wetlands that have been documented to the satisfaction of the Director as habitat essential for the conservation of state or federally listed threatened or endangered species, provided that the wetlands have been so classified or designated prior to the date of application for certification or a draft environmental impact statement has been submitted to the Director, for an activity which satisfies Subparagraphs (c)(2)-(5) and (d)(1)-(2) and:

(1)           the wetland impacts are necessary for the proposed project to meet a demonstrated public need; and

(2)           provides for replacement of existing uses through wetland mitigation under U.S. Army Corps of Engineers requirements, or as described in Subparagraphs (h)(1)-(7) and (10) of this Rule.

(f)  A lack of practical alternatives may be shown by demonstrating that, considering the potential for a reduction in size, configuration or density of the proposed activity and all alternative designs the basic project purpose cannot be practically accomplished in a manner which would avoid or result in less adverse impact to surface waters or wetlands.

(g)  Minimization of impacts may be demonstrated by showing that the surface waters or wetlands are able to continue to support the existing uses after project completion, or that the impacts are required due to:

(1)           The spatial and dimensional requirements of the project; or

(2)           The location of any existing structural or natural features that may dictate the placement or configuration of the proposed project; or

(3)           The purpose of the project and how the purpose relates to placement, configuration or density.

(h)  Replacement or mitigation of unavoidable losses of existing uses shall be reviewed in accordance with the following guidelines:

(1)           The Director shall coordinate mitigation requirements with other permitting agencies that are requiring mitigation for a specific project.  Mitigation required by the U.S. Army Corps of Engineers shall be considered to constitute the mitigation required by the certification unless the Director determines that the mitigation proposal does not meet the criteria established in Subparagraph (6) of this Paragraph.

(2)           Mitigation shall not be required for impacts to Class WL wetlands of less than one acre.

(3)           Participation in wetland restoration programs coordinated by the Department of Environmental, Health, and Natural Resources shall be preferred to individual project mitigation whenever the Director finds that such participation is available and satisfies the other requirements of this Paragraph, unless the applicant can demonstrate that participation in these restoration programs is not practical.  Mitigation sites approved by the U.S. Army Corps of Engineers shall be deemed to be consistent with the Department's restoration plan.

(4)           Acceptable methods of wetlands mitigation are listed below in the order of preference:

(A)          Restoration:  the re-establishment of wetland hydrology and vegetation in an area where it previously existed.

(B)          Creation:  the construction of a wetland in an area where wetlands did not exist in the recent past.

(C)          Enhancement:  increasing one or more of the functions of an existing wetland by manipulation of vegetation or hydrology.

(D)          Preservation:  protection of wetlands through purchase, donation or conveyance of a conservation easement to an appropriate government or non-profit agency for management.

(5)           Restoration is the preferred method of wetlands mitigation.  The other methods may be utilized if the applicant can demonstrate that restoration is not practical or that the proposed alternative is the most ecologically viable method of replacing the lost functions and values.

(6)           All mitigation proposals shall provide for the replacement of wetland acres lost due to the proposed activity at a minimum of a 1:1 ratio through restoration or creation prior to utilizing enhancement or preservation to satisfy the mitigation requirements, unless the Director determines that the public good would be better served by other types of mitigation.

(7)           Wetlands mitigation shall be conducted based on the following ratios (acres mitigated to acres loss); 4:1, for wetlands located within 150 feet of the mean high water line or normal water level 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 topographical map; 2:1, for wetlands located between 150 feet and 1,000 feet from the mean high water line or normal water level 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 topographical map; and 1:1, for all other wetlands.  For linear projects which impact less than 3 acres of wetlands the ratio shall be 2:1 regardless of the distance from surface waters.  The above ratios apply only to restoration.  The acres of required mitigation for the other types of mitigation shall be determined by multiplying the above ratios by 1.5 for creation, 2 for enhancement, and 5 for preservation.  The above ratios do not apply to approved mitigation sites where the state and federal review agencies have approved credit/debit ratios.  This Subparagraph shall not apply to general certifications until the Department has established a wetlands restoration program or until January 1, 1997, whichever occurs first.

(8)           Mitigation for impacts to wetlands designated in Paragraph (c) of this Rule shall be conducted within the same river basin and physiographic province when practical. Unavoidable losses of wetlands adjacent to waters classified as WS-III shall be replaced within the water supply watershed when practical.

(9)           Mitigation for impacts to wetlands designated in Paragraph (d) of this Rule shall be of the same wetland type and located within the same river sub-basin when practical.  Mitigation for impacts to wetlands adjacent to waters classified as WS-I or WS-II shall be replaced within the water supply watershed when practical.

(10)         Mitigation for impacts to wetlands designated in Paragraph (e) of this Rule shall be of the same wetland type and within the same watershed when practical.

(i)            The Director shall not duplicate the site-specific application of any guidelines employed by the United State Army Corps of Engineers in evaluating permit applications under 33 U.S.C. 1344 and applicable federal regulations.

 

History Note:        Authority G.S. 143-215.3(a)(1); 143-215.3(c); 143B-282(1)(u);

RRC Objection Eff. July 18, 1996 due to lack of statutory authority and ambiguity;

Eff. October 1, 1996.