15A N.C. Admin. Code 2H.1405

Current through Register Vol. 38, No. 24, June 17, 2024

Section 02H .1405 - REVIEW OF APPLICATIONS

(a) The following activities shall be deemed to be permitted:

(1) Discharges resulting from activities that impact less than 1/2 acre of federally non-jurisdictional classified open waters (e.g., lakes, ponds) for the entire project are deemed to be permitted provided they comply with the conditions listed in Subparagraph (4) of this Paragraph, and it shall not be necessary for the Division to issue permits for these activities.

(2) Discharges resulting from activities that impact less than a total of 150 linear feet of federally non-jurisdictional classified intermittent and perennial streams for the entire project are deemed to be permitted provided they comply with the conditions listed in Subparagraph (4) of this Paragraph, and it shall not be necessary for the Division to issue permits for these activities.

(3) Discharges resulting from activities that impact less than or equal to one acre of federally non-jurisdictional wetlands for the entire project in the coastal region, less than or equal to one-half acre of federally non-jurisdictional wetlands for the entire project in the piedmont region, and less than or equal to one-third acre of federally non-jurisdictional wetlands for the entire project in the mountain region are deemed to be permitted provided they comply with the conditions listed in Subparagraph (4) of this Paragraph, and it shall not be necessary for the Division to issue permits for these activities. For purposes of implementing this Subparagraph, the coastal, piedmont and mountain regions shall be as follows:

(A) "Coastal Region" includes Beaufort, Bertie, Bladen, Brunswick, Camden, Carteret, Chowan, Columbus, Craven, Cumberland, Currituck, Dare, Duplin, Edgecombe, Gates, Greene, Halifax, Harnett, Hertford, Hoke, Hyde, Johnston, Jones, Lee, Lenoir, Martin, Moore, Nash, New Hanover, Northampton, Onslow, Pamlico, Pasquotank, Pender, Perquimans, Pitt, Richmond, Robeson, Sampson, Scotland, Tyrrell, Washington, Wayne, and Wilson Counties;

(B) "Piedmont Region" includes Alamance, Alexander, Anson, Burke, Cabarrus, Caldwell, Caswell, Catawba, Chatham, Cleveland, Davidson, Davie, Durham, Forsyth, Franklin, Gaston, Granville, Guilford, Iredell, Lincoln, Mecklenburg, Montgomery, Orange, Person, Polk, Randolph, Rockingham, Rowan, Rutherford, Stanly, Stokes, Surry, Union, Vance, Wake, Warren, Wilkes, and Yadkin Counties;

(C) "Mountain Region" includes Alleghany, Ashe, Avery, Buncombe, Cherokee, Clay, Graham, Haywood, Henderson, Jackson, Macon, Madison, McDowell, Mitchell, Swain, Transylvania, Watauga and Yancey Counties.

(D) When a landowner believes their property is not in the correct region for purposes of this Rule, they may conduct a site-specific evaluation to determine the soil series. If required by G.S. 89F, a soil scientist shall prepare this evaluation. The landowner shall submit the soil report to the supervisor of the 401 & Buffer Permitting Branch of the Division of Water Resources for review. Soil series that occur in North Carolina have been categorized by the Natural Resources Conservation Service of the US Department of Agriculture as defined in Rule .1306 of this Subchapter.

(4) Conditions which shall be met for projects deemed to be permitted:

(A) Erosion and sediment control practices shall equal at a minimum those required by the N.C. Division of Energy, Mineral, and Land Resources (DEMLR) or its local delegated program for the Sedimentation Pollution Control Act and shall be in compliance with all DEMLR or appropriate local delegated program specifications governing the design, installation, operation, and maintenance of such practices in order to help assure compliance with the appropriate turbidity and other water quality standards;

(B) All erosion and sediment control practices placed in federally non-jurisdictional wetlands or federally non-jurisdictional classified surface waters shall be removed and the original grade restored within two months after the DEMLR or appropriate local delegated program has released the specific drainage area within the project;

(C) Uncured or curing concrete shall not come into direct contact with waters of the State;

(D) All work in or adjacent to federally non-jurisdictional intermittent or perennial streams shall be conducted so that the flowing stream does not come in contact with the disturbed area; and

(E) Measures shall be taken to ensure that the hydrologic functions of any remaining federally non-jurisdictional wetland and federally non-jurisdictional classified surface waters are not adversely affected by the discharge.

(b) The Division shall issue an individual permit or a Certificate of Coverage under a general permit upon determining that the proposed activity will comply with State water quality standards, which includes designated uses, numeric criteria, narrative criteria, and the State's antidegradation policy, as defined in the rules of 15A NCAC 02B .0200 and the rules of 15A NCAC 02L .0100 and 02L .0200. In assessing whether the proposed activity will comply with water quality standards, the Division shall evaluate if the proposed activity:

(1) has no practical alternative. 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 project and all alternative designs, that the basic project purpose cannot be practically accomplished in an economically viable manner, which would avoid or result in less adverse impact to federally non-jurisdictional wetlands and federally non-jurisdictional classified surface waters;

(2) has avoided and minimized impacts to federally non-jurisdictional wetlands and federally non-jurisdictional classified surface waters to ensure any remaining surface waters or wetlands, and any surface waters or wetlands downstream, continue to support existing uses during and after project completion;

(3) would not cause or contribute to a violation of water quality standards;

(4) would not result in secondary or cumulative impacts that cause or contribute to, or will cause or contribute to, a violation of downstream water quality standards; and

(5) provides for replacement of existing uses through compensatory mitigation as described in Paragraph (c) of this Rule.

(c) Replacement by mitigation of unavoidable losses of existing uses in federally non-jurisdictional wetlands and federally non-jurisdictional classified surface waters shall be reviewed in accordance with all of the following guidelines:

(1) The Division shall coordinate mitigation requirements with other permitting agencies that are requiring mitigation for a specific project;

(2) Mitigation requirements for impacts to federally non-jurisdictional wetlands shall only apply to the amount of impact that exceeds the threshold set out in Subparagraph (a)(3) of this Rule. The mitigation ratio for impacts exceeding the threshold for the entire project shall be 1:1. Impacts to non-jurisdictional wetlands shall not be combined with the project impacts to wetlands that are regulated under Section 404 of the Clean Water Act or isolated wetlands for the purpose of determining when impact thresholds that trigger a mitigation requirement are met;

(3) Total impacts to less than 300 linear feet of federally non-jurisdictional perennial streams for the entire project shall not require compensatory mitigation. For linear publicly owned and maintained transportation projects that the U.S. Army Corps of Engineers determines are not part of a larger common plan of development, impacts to less than 300 linear feet per stream shall not require compensatory mitigation. The mitigation ratio for federally non-jurisdictional stream impacts shall be 1:1;

(4) The required area or length of mitigation required shall be multiplied by 1 for restoration, 1.5 for establishment, 2 for enhancement and 5 for preservation. These multipliers do not apply to approved mitigation sites where the Interagency Review Team has approved other ratios;

(5) Mitigation shall comply with the requirements set forth in G.S. 143-214.11. Mitigation projects implemented within waters or wetlands that are regulated under Section 404 of the Clean Water Act or Section .1300 of this Subchapter may be used to satisfy the requirements of this Paragraph;

(6) Acceptable methods of mitigation as defined in 33 CFR Part 332 available free of charge on the internet at: http://water.epa.gov/lawsregs/guidance/wetlands/wetlandsmitigation_index.cfm, include restoration, including both re-establishment and rehabilitation, establishment (creation), enhancement and preservation. No more than 25 percent of the mitigation required by Subparagraph (2) or (3) of this Paragraph may be met through preservation, unless the Director determines that the public good would be better served by a higher percentage of preservation;

(7) Mitigation for impacts to federally non-jurisdictional wetlands and federally non-jurisdictional classified surface waters shall be conducted in North Carolina within the same river basin and in accordance with 33 CFR Part 332, available free of charge on the internet at: http://water.epa.gov/lawsregs/guidance/wetlands/wetlandsmitigation_index.cfm, unless otherwise approved by the Director; and

(8) In-kind mitigation is required unless the Director determines that other forms of mitigation would provide greater water quality or aquatic life benefit.

15A N.C. Admin. Code 02H .1405

Authority G.S. 143-211(c); 143-214.7C; 143-215.1(a)(6); 143-215.3(a)(1); 143-215.3(c);
Temporary Adoption Eff. May 28, 2021.

Authority G.S. 143-211(c); 143-214.7C; 143-215.1(a)(6); 143-215.3(a)(1); 143-215.3(c);
Temporary Adoption Eff. 5/28/2021.