Rule 391-3-7-.05 - Buffer Variance Procedures and Criteria(1) Buffers on state waters are valuable in protecting and conserving land and water resources; therefore, buffers should be protected. The buffer variance process will apply to all projects legally eligible for variances and to all state waters having vegetation wrested from the channel by normal stream flow, provided that adequate erosion control measures are incorporated in the project plans and specifications and are implemented. Rule 391-3-7-.05 does not apply to coastal marshlands. The following activities do not require application to or approval from the Division: (a) stream crossings for water lines or stream crossing for sewer lines that occur at an angle, as measured from the point of crossing, within 25 degrees of perpendicular to the stream and cause a width of disturbance of not more than 50 feet within the buffer; or(b) where drainage structures must be constructed within the twenty-five (25) foot buffer area of any state water not classified as a trout stream; or(c) where roadway drainage structures must be constructed within the twenty-five (25) foot buffer area of any state waters or the fifty (50) foot buffer of any trout stream; or(d) construction of bulkheads or sea walls on Lake Oconee and Lake Sinclair where required to prevent erosion at the shoreline; or(e) construction of public water system reservoirs.(2) Variance applications will be reviewed by the Director only where the applicant provides reasonable evidence that impacts to the buffer have been avoided or minimized to the fullest extent practicable and only in the following cases:(a) The project involves the construction or repair of an existing infrastructure project or a structure that, by its nature, must be located within the buffer. Such structures include, but are not limited to, dams, public water supply intake structures, detention/retention ponds, waste water discharges, docks including access ways, boat launches including access ways, and stabilization of areas of public access to water; or(b) The project will result in the restoration or enhancement to improve water quality and/or aquatic habitat quality; or(c) Buffer intrusion is necessary to provide reasonable access to a property or properties; or(d) The intrusion is for water and sewer lines that cannot reasonably be placed outside the buffer, and stream crossings and vegetative disturbance are minimized; or(e) Crossing for utility lines, including but not limited to gas, liquid, power, telephone, and other pipelines, provided that the number of crossings and the amount of vegetative disturbance are minimized; or(f) Recreational foot trails and viewing areas, providing that impacts to the buffer are minimal; or(g) The project involves construction of one (1) single family home for residential use by the owner of the subject property and, at the time of adoption of this rule, there is no opportunity to develop the home under any reasonable design configuration unless a buffer variance is granted. Variances will be considered for such single family homes only if construction is initiated or local government approval is obtained prior to January 10, 2005; or(h) For non-trout waters, the proposed land disturbing activity within the buffer is part of a project that will require a permit from the United States Army Corps of Engineers under Section 404 of the federal Water Pollution Control Act Amendment of 1972, 33 U.S.C. Section 1344, contingent upon approval by the Corps of Engineers of that permit; or(i) For non-trout waters, a plan is provided for buffer intrusion that shows that, even with the proposed land disturbing activity within the buffer, the completed project will result in maintained or improved water quality downstream of the project; or(j) For non-trout waters, the project with a proposed land disturbing activity within the buffer is located in, or upstream and within ten linear miles of, a stream segment listed as impaired under Section 303(d) of the federal Water Pollution Control Act Amendment of 1972, 33 U.S.C. Section 1313(d) and a plan is provided that shows that the completed project will result in maintained or improved water quality in such listed stream segment and that the project has no adverse impact relative to the pollutants of concern in such stream segment; or(k) The proposed land disturbing activity within the buffer is part of a project that is not eligible for a permit from the United States Army Corps of Engineers under Section 404 of the federal Water Pollution Control Act Amendment of 1972, 33 U.S.C. Section 1344, but includes required mitigation in accordance with current EPD "Stream Buffer Variance Mitigation Guidance" document, and involves: 1. piping, filling, or re-routing of non-trout waters that are not jurisdictional Waters of the U.S.; or2. stream buffer impacts due to new infrastructure projects adjacent to state waters (jurisdictional and non-jurisdictional Waters of the U.S.). This criterion shall not apply to maintenance and/or modification to existing infrastructure, which are covered under 391-3-7-.05(2)(a).(3) If the buffer impact will be minor, the buffer variance request shall include the following information at a minimum: (a) Site map that includes locations of all state waters, wetlands, floodplain boundaries and other natural features, as determined by field survey.(b) Description of the shape, size, topography, slope, soils, vegetation and other physical characteristics of the property.(c) Dated and numbered detailed site plan that shows the locations of all structures, impervious surfaces, and the boundaries of the area of soil disturbance, both inside and outside of the buffer. The exact area of the buffer to be impacted shall be accurately and clearly indicated.(d) Description of the project, with details of the buffer disturbance, including estimated length of time for the disturbance and justification for why the disturbance is necessary.(e) Calculation of the total area and length of the buffer disturbance.(f) Letter from the issuing authority (if other than the Division and as applicable) stating that the issuing authority has visited the site and determined the presence of state waters that require a buffer and that a stream buffer variance is required as per the local erosion and sedimentation control ordinance.(g) Erosion, sedimentation and pollution control plan.(h) Re-vegetation plan as described in the most recent publication of the Division's guidance book, "Streambank and Shoreline Stabilization" and/or a plan for permanent vegetation as per the "Manual for Erosion and Sedimentation Control in Georgia."(i) For projects within the buffer of or upstream and within one linear mile of impaired stream segments on Georgia's "305(b)/303(d) List Documents (Final)," documentation that the project will have no adverse impacts relative to the pollutants of concern and if applicable, documentation that the project will be in compliance with the TMDL Implementation Plan(s).(j) Any other reasonable information related to the project that the Division deems necessary to effectively evaluate the variance request.(k) Applications must be on the most current forms provided by the Division.(4) If the buffer impact will be major, the buffer variance request shall include all of the information in Sections (3)(a) thru (k) above, with the exception of (3)(h). A buffer variance request for major buffer impacts shall also include the following additional information: (a) For variance requests made under Section (2)(h):1. Joint Public Notice (JPN), if it is an individual permit;2. Pre-Construction Notification (PCN), if it is a Nationwide Permit;3. Mitigation calculations; and4. Permit approval from the United States Army Corps of Engineers or, if not yet received, a signed statement from the applicant certifying that the applicant will provide a copy of the permit approval upon receipt.(b) Buffer mitigation plan addressing impacts to critical buffer functions, including water quality and floodplain, watershed and ecological functions based on an evaluation of existing buffer conditions and predicted post construction buffer conditions pursuant to Section (7)(c) herein.(c) Plan for stormwater control once site stabilization is achieved, when required by a local stormwater ordinance.(d) For variance requests made under Sections (2)(i) and (2)(j), the application shall include the following water quality information: 1. Documentation that post-development stormwater management systems to conform to the minimum standards for water quality, channel protection, overbank flood protection and extreme flood protection as established in the Georgia Stormwater Management Manual or the equivalent and if applicable, the Coastal Stormwater Supplement to the Georgia Stormwater Management Manual.2. Documentation that existing water quality will be maintained or improved based on predicted pollutant loading under pre- and post-development conditions as estimated by models accepted by the Division.(e) For variance requests made under Section (2)(j), if the proposed project is in, or upstream and within ten linear miles of impaired stream segments on Georgia's "305(b)/303(d) List Documents (Final)," documentation that the project will have no adverse impacts relative to the pollutants of concern and if applicable, documentation that the project will be in compliance with the TMDL Implementation Plan(s).(f) For variance requests made under Section (2)(k)1., the application shall include documentation from the United States Army Corps of Engineers verifying the water bodies identified in the application are non-jurisdictional waters of the United States under Section 404 of the Clean Water Act.(5) Upon receipt of a completed application in accordance with Sections 391-3-7-.05(3) or 391-3-7-.05(4), the Division shall consider the completed application and the following factors in determining whether to issue a variance:(a) Locations of state waters, wetlands, floodplain boundaries and other natural features as determined by field surveys.(b) Shape, size, topography, slope, soils, vegetation and other physical characteristics of the property.(c) Location and extent of buffer intrusion.(d) Whether reasonable alternative project designs, such as the use of retaining walls, are possible which do not require buffer intrusion or which require less buffer intrusion.(e) Whether issuance of the variance, with the required mitigation plan, re-vegetation plan and/or plan for permanent vegetation, is at least as protective of natural resources and the environment (including wildlife habitat).(f) The current condition of the existing buffer, to be determined by: 1. The extent to which existing buffer vegetation is disturbed;2. The hydrologic function of the buffer; and3. Stream characteristics such as bank vegetative cover, bank stability, prior channel alteration or sediment deposition.(g) The extent to which the encroachment into the buffer may reasonably impair buffer functions.(h) The value of mitigation activities conducted pursuant to this rule, particularly Subsections 391-3-7-.05(7)(c) and 391-3-7-.05(7)(d) herein, and shall take regional differences into consideration on-site or downstream, to be determined by development techniques or other measures that will contribute to the maintenance or improvement of water quality, including the use of low impact designs and integrated best management practices, and reduction in effective impervious surface area.(i) The long-term water quality impacts of the proposed variance, as well as the construction impacts. And for applications made under Subsections 391-3-7-.05(2)(i) and 391-3-7-.05(2)(j), the following criteria, which reflect regional differences in the state, shall be used by the Director to assist in determining whether the project seeking a variance will, when completed and with approved mitigation, result in maintained or improved water quality downstream of the project and minimal net impact to the buffer: 1. Division will assume that the existing water quality conditions are commensurate with an undeveloped forested watershed unless the applicant provides documentation to the contrary. If the applicant chooses to provide baseline documentation, site and/or stream reach specific water quality, habitat, and/or biological data would be needed to document existing conditions. If additional data are needed to document existing conditions, the applicant may need to submit a monitoring plan and have it approved by the Division prior to collecting any monitoring data. Existing local data may be used, if available and of acceptable quality to the Division.2. The results of the predicted pollutant loading under pre- and post-development conditions as estimated by models accepted by the Division indicate that existing water quality conditions will be maintained or improved.(j) For applications made under Section 391-3-7-.05(2)(j), for which a land disturbing activity is proposed within the buffer of a 303(d) listed stream, or upstream and within 10 linear miles of a 303(d) listed stream, the results of the model demonstrate that the project has no adverse impact relative to the pollutants of concern in such stream segment.(6) Within 60 days of receipt of a complete buffer variance application, the Division will either provide written comments to the applicant or propose to issue a variance. (a) When the Division proposes to issue a variance, it will issue a public notice. The public notice shall describe the proposed buffer encroachment, the location of the project, where the public can review site plans, and where comments should be sent. The public shall have 30 days from the date of publication of the public notice to comment on the proposed buffer variance.(b) If after the public comment period for a proposed buffer variance has closed or a buffer variance has been issued the applicant proposes to change the project as described in the variance application, the applicant must notify the Division in writing of those proposed changes. 1. If the proposed changes include a change in the location of the buffer impacts, an increase in buffer impact, or change in project concept or design such that there may be a change to the applicable variance criteria described in Section 391-3-7-.05(2) and the Division approves such changes, the Division shall issue public notice in accordance with Section 391-3-7-.05(6)(a).2. If the proposed changes do not include changes described in 391-3-7-.05(6)(b)(1), the Division may approve those changes in writing or may elect to issue public notice in accordance with Section 391-3-7-.05(6)(a).(c) If after the public comment period for a proposed buffer variance has closed or a buffer variance has been issued a person or entity other than the applicant wishes to carry out the work described in the proposed variance or variance, the new person or entity must submit an application for that variance and all other requirements and procedures described in this Section 391-3-7-.05 shall apply. A new application shall not be required where the applicant is merely changing its name or corporate structure, but the applicant must notify the Division in writing of that name or corporate structure change.(7) In all cases in which a buffer variance is issued, the following conditions shall apply: (a) The variance shall be the minimum reduction in buffer width necessary to provide relief. Streams shall not be piped if a buffer width reduction is sufficient to provide relief.(b) Disturbance of existing buffer vegetation shall be minimized.(c) Mitigation is required for all major buffer impacts and shall offset the buffer encroachment and any loss of buffer functions. Where lost functions cannot be replaced, mitigation shall provide other buffer functions that are beneficial. Buffer functions include, but are not limited to: 1. temperature control (shading);2. streambank stabilization;3. trapping of sediments, if any;4. removal of nutrients, heavy metals, pesticides and other pollutants;5. aquatic habitat and food chain;6. terrestrial habitat, food chain and migration corridor; and7. buffering of flood flows.(d) Mitigation should be on-site when possible. Depending on site conditions, acceptable forms of mitigation may include but are not limited to: 1. Restoration of the buffer to a naturally vegetated state to the extent practicable, or to current existing conditions;2. Bioengineering of channels to reduce bank erosion and improve habitat;3. Creation or restoration of wetlands;4. Stormwater management systems to better maintain the pre-development flow regime (with consideration given to downstream effects) that exceeds the requirements of applicable ordinances at the time of application;5. Reduction in pollution sources, such as on-site water quality treatment or improving the level of treatment of septic systems;6. Other forms of mitigation that protect or improve water quality and/or aquatic wildlife habitat;7. An increase in buffer width elsewhere on the property;8. Mitigation as required under a Clean Water Act Section 404 or Nationwide permit issued by the U.S. Army Corps of Engineers;9. Stormwater management systems described in the most recent publication of the Georgia Stormwater Management Manual and the Coastal Stormwater Supplement to the Georgia Stormwater Management Manual;10. Mitigation as described in the most recent publication of the Division's guidance document, Stream Buffer Mitigation Guidance.(e) Forms of mitigation that are not acceptable include: 1. Activities that are already required by the Georgia Erosion and Sedimentation Act, such as the minimal use of best management practices;2. Activities that are already required by other federal, state and local laws, except as described in 391-3-7-.05(7)(d) above. U.S. Army Corps of Engineers mitigation is acceptable.(f) The Division will not place a condition on a variance that requires a landowner to deed property or the development rights of property to the state or to any other entity. The landowner may voluntarily preserve property or the development rights of property as a mitigation option with the agreement of the Division.(8) If the approved buffer impacts are not completed within five years of the date issued, buffer variances issued on or after the effective date of this rule will become null and void, unless an extension is granted by the Division as specifically provided herein. (a) The applicant may request a time extension of that buffer variance only if the approved buffer impacts will not be completed prior to the buffer variance expiration date. The buffer variance time extension, if granted, can be for a period of up to five years. If the applicant can demonstrate that a time extension for a period of greater than five years is reasonable, the Director may grant a buffer variance time extension for a reasonable period of greater than five years. A buffer variance time extension may be issued only once.(b) The buffer variance time extension must be requested in writing at least 90 calendar days prior to the buffer variance expiration date with justifiable cause demonstrated. Once an approved buffer variance expires, it is no longer eligible for a time extension.(c) Time extension requests will be reviewed by the Division. The Division will either provide written comments to the applicant or propose to issue a buffer variance time extension within 60 days of receipt of a time extension request. If there are any other changes to the original buffer variance application, the Division shall issue a public notice in accordance with Section 391-3-7-.05(6)(a).(d) If a variance issued by the Director is acceptable to the issuing authority, the variance shall be included as a condition of permitting and therefore becomes a part of the permit for the proposed land disturbing activity project. If a stream buffer variance is not acceptable to the issuing authority, the issuing authority may issue a land disturbing permit without allowing encroachment into the buffer.(9) A general variance is provided for piping of trout streams with an average annual flow of 25 gpm or less.(10) To obtain this general variance in Section 391-3-7-.05(9) for encroaching on the buffer of a trout stream, the applicant must submit information to the issuing authority or EPD if there is no issuing authority demonstrating that the average annual flow in the stream is 25 gpm or less. There are two acceptable methods for making this determination. (a) The USGS unit area runoff map may be used to determine the threshold acreage that will produce an average annual flow of 25 gpm or less.(b) The applicant may submit a hydrologic analysis certified by a Registered Professional Engineer or Geologist that presents information sufficient to estimate that the average annual flow of each stream to be piped is 25 gpm or less with a high level of certainty.(11) Any stream piping performed in accordance with this general variance in Section 391-3-7-.05(9) shall be subject to the following terms:(a) The total length of stream that is piped in any one property shall not exceed 200 feet.(b) Any project that involves more than 200 ft of piping will require an individual variance for the entire project. The general variance may not be applied to a portion of a project; e.g., it is not permissible to pipe 200 ft of a stream under the general variance and seek an individual variance for an additional length of pipe.(c) The downstream end of the pipe shall terminate at least 25 ft before the property boundary.(d) The applicant for a Land Disturbing Activity Permit shall notify the appropriate issuing authority of the precise location and extent of all streams piping as part of the land disturbing activity permit application. The issuing authority (if other than the Division) shall compile this information and convey it to the Division annually.(e) Where piping of a stream increases the velocity of stream flow at the downstream end of the pipe, appropriate controls shall be employed to reduce flow velocity to the predevelopment level. Plans for such controls must be submitted as part of the land disturbing activity permit.Ga. Comp. R. & Regs. R. 391-3-7-.05
O.C.G.A. §§ 12-7-1 et seq., 50-13-9.1.
Original Rule entitled "Minimum Requirements" adopted. F. Apr. 6, 1977; eff. Apr. 26, 1977.Repealed: New Rule entitled "Land Disturbing Activities Within the 100 Year Flood Plain" adopted. F. Dec. 12, 1989; eff. Jan. 1, 1990.Repealed: New Rule entitled "Buffer Variance Procedures and Criteria" adopted. F. Nov. 2, 2000; eff. Nov. 22, 2000.Amended: F. Dec. 12, 2000; eff. Jan. 1, 2001.Amended: F. Nov. 5, 2003; eff. Nov. 25, 2003.Amended: F. Dec. 20, 2004; eff. Jan. 9, 2005.Amended: F. Nov. 19, 2010; eff. Dec. 9, 2010.Amended: F. Aug. 16, 2013; eff. Sept. 5, 2013.Amended: F. Mar. 31, 2016; eff. Apr. 20, 2016.Amended: F. June 25, 2021; eff. July 15, 2021.Amended: F. May 10, 2022; eff. May 30, 2022.