Sec. 8.5. Riparian Buffer Protection Standards
8.5.1. Purpose
The primary purpose of Sec. 8.5, Riparian Buffer Protection Standards (which may be referred to herein as “this section”) is to maintain land adjacent
Property abutting directly on the boundary of, touching, or sharing a common point. to surface waters in a vegetated state in order to enhance and maintain water quality, protect stream A body of concentrated flowing water in a natural low area or natural channel on the land surface. channel wetlands An area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly as hydrophytic vegetation, as defined by responsible State or Federal agencies., minimize stormwater runoff The direct runoff of water resulting from precipitation in any form., reduce sedimentation Solid particulate matter, both mineral and organic, that has been, or is being, transported by water, air, gravity or ice from its site of origin. and erosion The wearing away of land surface by the action of wind, water, gravity or any combination thereof., provide nutrient removal, conserve plant and wildlife habitat and protect wildlife movement corridors.
8.5.2. Applicability
This section shall apply to any person Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. or entity conducting activities within the City or County of Durham, except where such activities are otherwise regulated by the State of North Carolina or the United States. Outside of the Neuse River Basin, activities otherwise regulated by the State include forest harvesting and agricultural activities, activities conducted by a local, state, or federal government, and activities under multiple jurisdictions except where such multiple jurisdictions are the City and County of Durham exclusively. This section shall supersede all locally implemented buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. requirements stated in 15A NCAC 02B .0214 through .0216 as applied to WS-II, WS-III, and WS-IV waters in the Jordan watershed All of the land area draining to a particular point on a water course or to a water body.. Where any requirement of this section conflicts with any other valid law, the most stringent requirement shall apply.
The requirements of this section shall apply in all cases, including where State standards are less stringent. Review and approval by the City or County is always required, except in the case of an exempt use, and shall occur pursuant to the applicable process in each case (e.g., Preliminary Plat A map indicating the proposed layout of a development and related information that is submitted for preliminary review., Major Site Plan An accurately scaled development plan that shows existing conditions on a site as well as depicting details of proposed development., etc.). Within the Neuse River Basin, final review by the City or County shall occur after any State action is completed.
8.5.3. Definitions
Within the Neuse River Basin, the definitions contained or referenced in 15A NCAC 02B .0233 and .0242 shall apply to this section. Outside of the Neuse River Basin, the definitions contained or referenced in 15A NCAC 02B .0263, .0267, and .0268 shall apply to this section. Such definitions shall supersede any conflicting UDO definition for purposes of this section.
8.5.4. Riparian Buffers Protected
A. Regulated Activities
This section shall apply to any activity conducted within any riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants., and to any activity conducted outside of any riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. that has hydrologic impacts upon that buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. in violation The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. of the diffuse flow requirements of paragraph 8.5.5, Diffuse Flow Requirements. There is no disturbed area minimum for regulated activities and they include but are not limited to activities conducted pursuant to building As defined in the North Carolina Building Code, as amended, or the North Carolina Residential Code for One and Two-Family Dwellings, as amended, as applicable. permits. As stated in paragraph 8.5.2, Applicability, compliance with this entire section is required even where State standards are less stringent. Within the Neuse River Basin, final review by the City or County shall occur after any State action is completed.
B. Buffers Protected
1. General Riparian Buffers
a. Riparian buffers as depicted on the table below shall be required adjacent Property abutting directly on the boundary of, touching, or sharing a common point. to the following surface waters: intermittent streams perennial Except under Sec. 8.5, Riparian Buffer Protection Standards, a watercourse that collects surface runoff and is shown as a solid blue line on the most recent USGS 7½-minute quadrangle topographic maps, is shown as a perennial stream on maps in the most recent US Department of Agriculture (USDA) Soil Survey, or is shown as a perennial stream on the Natural Resource Conservation Service (NRCS) maps.l streams A body of concentrated flowing water in a natural low area or natural channel on the land surface.; modified natural streams A body of concentrated flowing water in a natural low area or natural channel on the land surface.; lakes; and ponds including beaver ponds.
b. The table includes the additional buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. width required for certain surface waters in watershed All of the land area draining to a particular point on a water course or to a water body. protection overlays. It does not include the 10-foot setback The minimum distance between a property line (or a different encumbrance, improvement, or feature as required within a specific regulation) and a building or structure. required under paragraph 8.5.9C below.
c. A lake or pond shall receive the same buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. as the stream A body of concentrated flowing water in a natural low area or natural channel on the land surface. to which it is connected at the point of initial connection.
d. A gap of 300 feet or less in a stream A body of concentrated flowing water in a natural low area or natural channel on the land surface., as determined by the City or County, shall receive the same buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. as the upstream portion of such stream A body of concentrated flowing water in a natural low area or natural channel on the land surface., including culverted or piped streams A body of concentrated flowing water in a natural low area or natural channel on the land surface. approved and installed after the effective dates listed in paragraph 8.5.4C.3.a.
Commentary: UDO Sec. 17.3, Defined Terms, defines “adjacent Property abutting directly on the boundary of, touching, or sharing a common point.” as “[p]roperty abutting directly on the boundary of, touching, or sharing a common point.” The applicable state rules define “modified natural stream A body of concentrated flowing water in a natural low area or natural channel on the land surface.” as “an on-site channelization or relocation of a stream A body of concentrated flowing water in a natural low area or natural channel on the land surface. channel and subsequent relocation of the intermittent or perennial flow as evidenced by topographic alterations in the immediate watershed All of the land area draining to a particular point on a water course or to a water body.. A modified natural stream A body of concentrated flowing water in a natural low area or natural channel on the land surface. must have the typical biological, hydrological, and physical characteristics commonly associated with the conveyance of water.”
Key:
P – Perennial
I – Intermittent
NA – Not applicable because not located therein
M/LR-A – Lake Michie/Little River Critical Area
M/LR-B – Lake Michie/Little River Protected Area
E-A; E-A(2) – Eno River Critical Area
E-B – Eno River Protected Area
F/J-A – Falls/Jordan Critical Area
F/J-B – Falls/Jordan Protected Area
2. Riparian Reservoir Buffers
Riparian buffers shall be required adjacent Property abutting directly on the boundary of, touching, or sharing a common point. to reservoirs pursuant to Sec. 8.6, Water Supply Reservoir Buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants..
3. Riparian Wetland Buffers
Riparian buffers shall be required adjacent Property abutting directly on the boundary of, touching, or sharing a common point. to wetlands An area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly as hydrophytic vegetation, as defined by responsible State or Federal agencies. pursuant to Sec. 8.9, Wetlands An area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly as hydrophytic vegetation, as defined by responsible State or Federal agencies. Protection Standards.
4. Wetlands An area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly as hydrophytic vegetation, as defined by responsible State or Federal agencies. adjacent Property abutting directly on the boundary of, touching, or sharing a common point. to, or within 50 feet of, surface waters shall be considered part of the riparian buffers but are regulated pursuant to 15A NCAC 2B .0230 and .0231, 15A NCAC 2H .0500, 15A NCAC 2H .1300, and Sections 401 and 404 of the Federal Water Pollution Control Act.
C. Buffer Measurement
Riparian buffers shall be measured as follows:
1. For intermittent and perennial streams A body of concentrated flowing water in a natural low area or natural channel on the land surface., begin at the top of the bank and extend landward the required distance on all sides of the surface water, measured horizontally on a line perpendicular to a vertical line marking the top of the bank.
2. For ponds, lakes and reservoirs located within a natural drainage way, begin at the normal water level and extend landward the required distance, measured horizontally on a line perpendicular to a vertical line marking the normal water level.
3. Where an intermittent or perennial stream A body of concentrated flowing water in a natural low area or natural channel on the land surface. begins or ends, including but not limited to when it goes underground, enters or exits a culvert, or enters or exits a wetland An area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly as hydrophytic vegetation, as defined by responsible State or Federal agencies., begin at the top of the bank and extend landward the required distance in a radius around the beginning or end.
a. The radius requirement shall apply to culverts or piping present within the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. as of July 22, 1997 within the Neuse River Basin, or as of the effective date of this section (November 4, 2010 for the City; November 8, 2010 for the County) outside of the Neuse River Basin, and has continued to exist since that time.
b. Paragraph 8.5.8, Piping Streams A body of concentrated flowing water in a natural low area or natural channel on the land surface., shall apply to culverts or piping that were approved and installed after such effective dates.
4. Where an intermittent, perennial, or modified natural stream A body of concentrated flowing water in a natural low area or natural channel on the land surface. contains a gap of 300 feet or less, as determined by the City or County, extend the upstream buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. in a straight line through the gap, or in an alternative manner if approved by the Planning Director or designee, until it meets the downstream buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants.. This shall include culverted or piped streams A body of concentrated flowing water in a natural low area or natural channel on the land surface. approved and installed after the effective dates listed in paragraph 8.5.4C.3.a.
D. Buffer Identification
1. Riparian buffers shall be clearly indicated on all development Pursuant to NCGS 160D-102, any of the following:
a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure.
b. The excavation, grading, filling, clearing, or alteration of land.
c. The subdivision of land as defined in G.S. 160D-802.
d. The initiation or substantial change in the use of land or the intensity of use of land. plans, site plans An accurately scaled development plan that shows existing conditions on a site as well as depicting details of proposed development., preliminary plats A map indicating the proposed layout of a development and related information that is submitted for preliminary review., final plats A map, chart or plan of a tract or parcel of land which is to be or which has been, subdivided., sedimentation Solid particulate matter, both mineral and organic, that has been, or is being, transported by water, air, gravity or ice from its site of origin. and erosion The wearing away of land surface by the action of wind, water, gravity or any combination thereof. control plans, any other plans required before, during, or after construction, and any other documents as required under applicable law or policy.
2. Signs Any words, lettering, parts of letters, figures, numerals, phrases, sentences, emblems, devices, structures, designs, trade names, or trade marks by which anything is made known such as are used to designate an individual, a firm, an association, a corporation, a profession, a business, or a commodity or products, which are legible from any public street or adjacent property and used to attract attention. This definition includes the structure or the face on which a sign message is displayed. For the purposes of this Ordinance, this definition shall not include "trade dress" i.e.: architectural features identified with a product or business, as a sign. or other mechanisms that clearly demarcate riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. boundaries shall be required for all new development Pursuant to NCGS 160D-102, any of the following:
a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure.
b. The excavation, grading, filling, clearing, or alteration of land.
c. The subdivision of land as defined in G.S. 160D-802.
d. The initiation or substantial change in the use of land or the intensity of use of land. or redevelopment.
a. Temporary signs Any words, lettering, parts of letters, figures, numerals, phrases, sentences, emblems, devices, structures, designs, trade names, or trade marks by which anything is made known such as are used to designate an individual, a firm, an association, a corporation, a profession, a business, or a commodity or products, which are legible from any public street or adjacent property and used to attract attention. This definition includes the structure or the face on which a sign message is displayed. For the purposes of this Ordinance, this definition shall not include "trade dress" i.e.: architectural features identified with a product or business, as a sign. shall be installed before clearing and grading A land disturbing activity that modifies the contours of the land. begins and maintained until permanent signs Any words, lettering, parts of letters, figures, numerals, phrases, sentences, emblems, devices, structures, designs, trade names, or trade marks by which anything is made known such as are used to designate an individual, a firm, an association, a corporation, a profession, a business, or a commodity or products, which are legible from any public street or adjacent property and used to attract attention. This definition includes the structure or the face on which a sign message is displayed. For the purposes of this Ordinance, this definition shall not include "trade dress" i.e.: architectural features identified with a product or business, as a sign. are installed. Tree save or silt fencing may be used in lieu of temporary signs Any words, lettering, parts of letters, figures, numerals, phrases, sentences, emblems, devices, structures, designs, trade names, or trade marks by which anything is made known such as are used to designate an individual, a firm, an association, a corporation, a profession, a business, or a commodity or products, which are legible from any public street or adjacent property and used to attract attention. This definition includes the structure or the face on which a sign message is displayed. For the purposes of this Ordinance, this definition shall not include "trade dress" i.e.: architectural features identified with a product or business, as a sign. with prior approval from the City or County as appropriate.
b. Permanent signs Any words, lettering, parts of letters, figures, numerals, phrases, sentences, emblems, devices, structures, designs, trade names, or trade marks by which anything is made known such as are used to designate an individual, a firm, an association, a corporation, a profession, a business, or a commodity or products, which are legible from any public street or adjacent property and used to attract attention. This definition includes the structure or the face on which a sign message is displayed. For the purposes of this Ordinance, this definition shall not include "trade dress" i.e.: architectural features identified with a product or business, as a sign. shall be installed prior to issuance of certificate of occupancy and maintained in perpetuity.
c. All signs Any words, lettering, parts of letters, figures, numerals, phrases, sentences, emblems, devices, structures, designs, trade names, or trade marks by which anything is made known such as are used to designate an individual, a firm, an association, a corporation, a profession, a business, or a commodity or products, which are legible from any public street or adjacent property and used to attract attention. This definition includes the structure or the face on which a sign message is displayed. For the purposes of this Ordinance, this definition shall not include "trade dress" i.e.: architectural features identified with a product or business, as a sign. shall be posted at intervals of one per parcel See “Lot of record.” or every 50 feet, whichever is less.
d. Each sign Any words, lettering, parts of letters, figures, numerals, phrases, sentences, emblems, devices, structures, designs, trade names, or trade marks by which anything is made known such as are used to designate an individual, a firm, an association, a corporation, a profession, a business, or a commodity or products, which are legible from any public street or adjacent property and used to attract attention. This definition includes the structure or the face on which a sign message is displayed. For the purposes of this Ordinance, this definition shall not include "trade dress" i.e.: architectural features identified with a product or business, as a sign. shall be [at least, City only] four inches by six inches in size, shall face away from the buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants., and shall read “Riparian Buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. – Do Not Disturb Except as Authorized by the City [County] of Durham”.
e. All signs Any words, lettering, parts of letters, figures, numerals, phrases, sentences, emblems, devices, structures, designs, trade names, or trade marks by which anything is made known such as are used to designate an individual, a firm, an association, a corporation, a profession, a business, or a commodity or products, which are legible from any public street or adjacent property and used to attract attention. This definition includes the structure or the face on which a sign message is displayed. For the purposes of this Ordinance, this definition shall not include "trade dress" i.e.: architectural features identified with a product or business, as a sign. must be placed on metal or wood posts installed securely in the ground, except that permanent signs Any words, lettering, parts of letters, figures, numerals, phrases, sentences, emblems, devices, structures, designs, trade names, or trade marks by which anything is made known such as are used to designate an individual, a firm, an association, a corporation, a profession, a business, or a commodity or products, which are legible from any public street or adjacent property and used to attract attention. This definition includes the structure or the face on which a sign message is displayed. For the purposes of this Ordinance, this definition shall not include "trade dress" i.e.: architectural features identified with a product or business, as a sign. may be placed on permanent fencing along the buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. boundary. If wood posts are used they must be at least two inches by two inches in size and be made of treated wood. Posts must extend a minimum of three feet above ground and be sunk at least two feet below ground.
8.5.5. Diffuse Flow Requirements
Diffuse flow shall be maintained in riparian buffers by dispersing concentrated flow prior to its entry into a buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. and reestablishing vegetation as listed below. These requirements apply to all development Pursuant to NCGS 160D-102, any of the following:
a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure.
b. The excavation, grading, filling, clearing, or alteration of land.
c. The subdivision of land as defined in G.S. 160D-802.
d. The initiation or substantial change in the use of land or the intensity of use of land., including development Pursuant to NCGS 160D-102, any of the following:
a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure.
b. The excavation, grading, filling, clearing, or alteration of land.
c. The subdivision of land as defined in G.S. 160D-802.
d. The initiation or substantial change in the use of land or the intensity of use of land. that does not propose to impact or conduct an activity within a riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants..
A. Concentrated runoff Water from precipitation that flows off a property. from new ditches or man-made conveyances shall be converted to diffuse flow at non-erosive velocities before the runoff Water from precipitation that flows off a property. enters a riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. except as authorized under paragraph 8.5.10, Uses.
B. Corrective action to restore diffuse flow shall be taken as necessary and shall be designed to impede the formation of erosion The wearing away of land surface by the action of wind, water, gravity or any combination thereof. gullies.
C. New stormwater The flow of water which results from precipitation and which occurs immediately following rainfall or snowmelt. conveyances including drainage ditches, roadside ditches, and stormwater The flow of water which results from precipitation and which occurs immediately following rainfall or snowmelt. BMPs shall not be allowed in or through riparian buffers except as authorized under paragraph 8.5.10, Uses.
8.5.6. Maps and On-Site Determinations
A. Maps
All of the following maps shall be used to identify surface water subject to the requirements of this section:
1. The most recent version of the soil survey map prepared by the Natural Resources Conservation Service of the United States Department of Agriculture, which means the most recent hard copy paper bound map or CD-ROM or PDF of such map; and
2. The most recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic map prepared by the United States Geologic Survey (USGS); and
3. Outside of the Neuse River Basin, any map approved by the Geographic Information Coordinating Council, the North Carolina Environmental Management Commission and both governing bodies as more accurate than the maps listed in paragraphs 1 and 2 above. However, such map shall not be used for buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. delineation on projects that are existing and ongoing under paragraph 8.5.7, Existing Use The purpose for which a building, structure, or area of land may be arranged or occupied or the activity conducted or proposed in a building, structure, or on an area of land. Exemption.
Surface water shall be deemed present if it is at least approximately shown on any map. If any surface water is depicted differently on different maps, the most restrictive depiction shall apply.
B. On-Site Determinations
1. Within the Neuse River Basin
A landowner or other affected party who believes that surface water is inaccurately depicted shall consult the North Carolina Division of Water Resources (Division) and may request an on-site determination by the Division.
2. Outside the Neuse River Basin
a. The Division or another party may request an on-site determination by the City or County as appropriate of the specific origination point of a stream A body of concentrated flowing water in a natural low area or natural channel on the land surface. where it is in question.
b. A landowner or other affected party, including the Division, who believes that one or more maps inaccurately depict, or omit based on site-specific evidence, surface water shall consult the City or County as appropriate and may request an on-site determination by the City or County.
c. When an on-site determination is requested, a City or County representative, or other party authorized or accepted by the City or County, who has successfully completed the Division’s Surface Water Identification Training Certification course, its successor, or other equivalent training curriculum approved by the Division, shall make the on-site determination following submission of any fees, information or documents required by the City or County. An origination point shall be established using the latest version of the Division publication, Identification Methods for the Origins of .
d. A City or County representative, or other party authorized or accepted by the City or County, who has successfully completed the training required above may also make either type of on-site determination absent an outside consultation or request.
e. An on-site determination shall be valid for five years from the date of the determination unless specified otherwise therein.
3. Surface water shown on a map shall be exempt from Sec. 8.5, Riparian Buffer Protection Standards, if it is determined on site to be: 1) a manmade pond or lake located outside of a natural drainage way, meaning the pond or lake is not fed by directly nor indirectly, and has no direct nor indirect discharge to, an intermittent or perennial stream A body of concentrated flowing water in a natural low area or natural channel on the land surface.; 2) an ephemeral stream A body of concentrated flowing water in a natural low area or natural channel on the land surface.; 3) not present on the ground, except for any stream A body of concentrated flowing water in a natural low area or natural channel on the land surface. gap of 300 feet or less; or 4) a ditch or other manmade conveyance other than a modified natural stream A body of concentrated flowing water in a natural low area or natural channel on the land surface. unless constructed for navigation or boat access.
4. Surface water not shown on a map shall be governed by Sec. 8.5, Riparian Buffer Protection Standards, if it is determined on site to be: 1) a lake, pond, or impoundment located in a natural drainage way, meaning the lake, pond, or impoundment is fed by and discharges to an intermittent or perennial stream perennial Except under Sec. 8.5, Riparian Buffer Protection Standards, a watercourse that collects surface runoff and is shown as a solid blue line on the most recent USGS 7½-minute quadrangle topographic maps, is shown as a perennial stream on maps in the most recent US Department of Agriculture (USDA) Soil Survey, or is shown as a perennial stream on the Natural Resource Conservation Service (NRCS) maps.ennial stream A body of concentrated flowing water in a natural low area or natural channel on the land surface., including any gap of 300 feet or less; 3) an intermittent stream A body of concentrated flowing water in a natural low area or natural channel on the land surface., including any gap of 300 feet or less; or 4) a modified natural stream A body of concentrated flowing water in a natural low area or natural channel on the land surface., including any gap of 300 feet or less.
Commentary: A lake, pond, or impoundment of a jurisdictional water does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature, through a culvert, dike, spillway, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature.
5. Despite the provisions of Section 2.4, Board of Adjustment, any dispute shall be referred to the Division Director c/o the 401 Oversight Express Permitting Unit, or its successor, in writing. The Director’s determination is subject to review as provided in Articles 3 and 4 of G.S. 150B.
8.5.7. Existing Use Exemption
A. General
This section shall not apply to the portion of a riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. occupied by the footprint of a legal existing and ongoing use. An existing and ongoing use is a use that was present within the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. as of July 22, 1997 within the Neuse River Basin, or as the effective date of this section outside of the Neuse River Basin, and has continued to exist since that time. Such uses may include but are not limited to agriculture, buildings, industrial facilities, commercial areas, transportation facilities, maintained lawns, utility lines and on-site sanitary sewage systems. A use that converts from an existing and ongoing use to another use shall no longer be exempt. Conversion includes but is not limited to changing an agricultural operation to non-agricultural use, failing to maintain a lawn, or failing to meet the criteria specified below for activities allowed.
B. Exemption Maintained
The following activities do not convert an existing and ongoing use to another use:
1. Activities necessary to maintain a use provided that no impervious surface A surface composed of any material that impedes or prevents natural infiltration of water into the soil and qualifies as “built-upon area” as defined by NCGS 143-214.7, as amended. is added to the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. where it did not exist as of the applicable date, existing diffuse flow is maintained, and either 1) outside of the Neuse River Basin, the site remains similarly vegetated, or 2) within the Neuse River Basin, no additional vegetation is removed except that grazed or trampled by livestock Livestock includes but is not limited to poultry and hoofed animals such as cattle, horses, goats, sheep and swine; however, swine commonly referred to as Miniature, Vietnamese or Oriental Pot-Bellied pigs (Sus scroda vittatus) shall not be considered livestock if the animals are no more than 18 inches in height, the owner has proof of registry with the International Potbellied Pig Registry (IPPR), and no more than two are kept at any household.;
2. Grading A land disturbing activity that modifies the contours of the land. and revegetating of the outer 20 feet of a buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. that is not located in a watershed All of the land area draining to a particular point on a water course or to a water body. protection overlay, provided that the health of the vegetation in the inner 30 feet of the buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. is not compromised, the ground is stabilized and existing diffuse flow is maintained; or
3. Outside of the Neuse River Basin, change of ownership through purchase or inheritance.
C. Outside the Neuse River Basin
Outside of the Neuse River Basin, a project that meets at least one of the following criteria is also existing and ongoing:
1. The project requires a 401 Certification and 404 Permit and they were issued prior to the effective date of this section;
2. The project requires a state permit (e.g., landfill, National Pollutant Discharge Elimination System (NPDES) wastewater discharge, land application of residuals, road See “Street, Public” and “Street, Private.” construction activity), has started construction or is under contract to start construction, and received all required state permits and certifications prior to the effective date of this section;
3. The project is reviewed through the Clean Water Act Section 404/National Environmental Policy Act Merger 01 Process or its immediate successor and reached agreement with the NC Department of Environmental Quality on avoidance and minimization prior to the effective date of this section; or
4. The project can avoid review under the Clean Water Act Section 404/National Environmental Policy Act Merger 01 Process or its immediate successor due to a Finding of No Significant Impact and received written approval from the City or County as appropriate prior to the effective date of this section.
D. Development of Existing Single-Family Lots within the Neuse River Basin under Certain Conditions
1. Applicability
Where application of the Neuse River Basin riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. requirements would preclude construction of a single-family A residential use consisting of one dwelling unit per lot of record. As described in Sec. 7.1, Housing Types, includes: single-family detached house; zero lot line house; traditional house; or attached house. Not to include manufactured housing. residence and necessary infrastructure, such as an on-site wastewater system, the single-family A residential use consisting of one dwelling unit per lot of record. As described in Sec. 7.1, Housing Types, includes: single-family detached house; zero lot line house; traditional house; or attached house. Not to include manufactured housing. residence may encroach When used in reference to Sec. 8.4, Floodplain and Flood Damage Protection Standards, the advance or infringement of uses, fill, excavation, buildings, permanent structures or development into a floodplain, which may impede or alter the flow capacity of a floodplain. into the buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. if all of the following criteria are met.
a. The lot was platted A map, chart or plan of a tract or parcel of land which is to be or which has been, subdivided. and recorded prior to August 1, 2000.
b. The lot area The total area within the lot lines of a platted lot. is two acres or less.
c. The lot is adjacent Property abutting directly on the boundary of, touching, or sharing a common point. to the buffered surface waters.
d. The lot is not within a watershed All of the land area draining to a particular point on a water course or to a water body. protection overlay, or the lot is within a watershed All of the land area draining to a particular point on a water course or to a water body. protection overlay but was recorded prior to the effective date of the applicable watershed All of the land area draining to a particular point on a water course or to a water body. protection overlay.
2. If documentation demonstrates the lot meets all of the above criteria, then a single-family A residential use consisting of one dwelling unit per lot of record. As described in Sec. 7.1, Housing Types, includes: single-family detached house; zero lot line house; traditional house; or attached house. Not to include manufactured housing. residence can encroach When used in reference to Sec. 8.4, Floodplain and Flood Damage Protection Standards, the advance or infringement of uses, fill, excavation, buildings, permanent structures or development into a floodplain, which may impede or alter the flow capacity of a floodplain. into the buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. with the following conditions:
a. The residence is set back the maximum feasible distance from the top of the bank, rooted herbaceous vegetation, normal high-water level, or normal water level, whichever is applicable, on the existing lot and designed to minimize encroachment When used in reference to Sec. 8.4, Floodplain and Flood Damage Protection Standards, the advance or infringement of uses, fill, excavation, buildings, permanent structures or development into a floodplain, which may impede or alter the flow capacity of a floodplain. into the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants.;
b. The residence is set back a minimum of 30 feet landward of the top of the bank, rooted herbaceous vegetation, normal high-water level, or normal water level, whichever is applicable;
c. Stormwater The flow of water which results from precipitation and which occurs immediately following rainfall or snowmelt. generated by new impervious surface A surface composed of any material that impedes or prevents natural infiltration of water into the soil and qualifies as “built-upon area” as defined by NCGS 143-214.7, as amended. within the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. is treated, and diffuse flow of stormwater The flow of water which results from precipitation and which occurs immediately following rainfall or snowmelt. is maintained through the buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants.; and
d. If the residence will be served by an on-site wastewater system, no part of the septic tank or drain field shall encroach When used in reference to Sec. 8.4, Floodplain and Flood Damage Protection Standards, the advance or infringement of uses, fill, excavation, buildings, permanent structures or development into a floodplain, which may impede or alter the flow capacity of a floodplain. into the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants..
3. Prior to the issuance of a building permit A permit issued by the Inspections Department in conformance with the State Building Code., a buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. authorization is required for any encroachments When used in reference to Sec. 8.4, Floodplain and Flood Damage Protection Standards, the advance or infringement of uses, fill, excavation, buildings, permanent structures or development into a floodplain, which may impede or alter the flow capacity of a floodplain. into the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants..
8.5.8. Piping Streams
Piping of streams A body of concentrated flowing water in a natural low area or natural channel on the land surface. is prohibited except where necessary to accomplish a use that is authorized under paragraph 8.5.10, Uses, and approved as required.
Commentary: Approved piping is a use within an existing buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. and the buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. remains in effect. There is no gap in the buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants., so buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. requirements apply along the piped portion of the stream A body of concentrated flowing water in a natural low area or natural channel on the land surface..
8.5.9. Uses
A. As stated in paragraph 8.5.2, Applicability, compliance with this entire section is required even where State standards are less stringent. Within the Neuse River Basin, final review by the City or County shall occur after any State action is completed.
B. No new clearing, grading A land disturbing activity that modifies the contours of the land., or development Pursuant to NCGS 160D-102, any of the following:
a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure.
b. The excavation, grading, filling, clearing, or alteration of land.
c. The subdivision of land as defined in G.S. 160D-802.
d. The initiation or substantial change in the use of land or the intensity of use of land. shall take place nor shall any new building As defined in the North Carolina Building Code, as amended, or the North Carolina Residential Code for One and Two-Family Dwellings, as amended, as applicable. permits be issued in violation The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. of this section. Parties subject to this section shall abide by all state rules and laws regarding waters of the state including but not limited to 15A NCAC 2B .0230 and .0231, 15A NCAC 2H .0500, 15A NCAC 2H .1300, and Sections 401 and 404 of the Federal Water Pollution Control Act.
C. Buildings and other features that require grading A land disturbing activity that modifies the contours of the land. and construction shall be set back at least ten feet from the edge of the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants.. When an encroachment When used in reference to Sec. 8.4, Floodplain and Flood Damage Protection Standards, the advance or infringement of uses, fill, excavation, buildings, permanent structures or development into a floodplain, which may impede or alter the flow capacity of a floodplain. into a riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. is permitted either by right, through required authorization, or from approval of a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship., grading A land disturbing activity that modifies the contours of the land. and construction necessary for that encroachment When used in reference to Sec. 8.4, Floodplain and Flood Damage Protection Standards, the advance or infringement of uses, fill, excavation, buildings, permanent structures or development into a floodplain, which may impede or alter the flow capacity of a floodplain. shall be allowed within the set back.
D. Any use authorized by this section shall be designed, constructed and maintained to minimize the amount of intrusion into the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. and to minimize clearing, grading A land disturbing activity that modifies the contours of the land., erosion The wearing away of land surface by the action of wind, water, gravity or any combination thereof., water quality degradation, and damage to vegetation.
E. Where any use involves temporary land clearing, revegetation shall occur pursuant to an approved vegetation plan. Such plan shall include trees as specified under paragraph 9.2.3B.6, Mixing of Tree Species, and the Durham Landscape Manual, planted at a density The number of dwelling units per gross acre, excluding accessory residences or dwelling units, or any other exclusion within this Ordinance. sufficient to provide 320 trees per acre at maturity with at least 50% of those trees having the potential of attaining a two and a half inch or greater dbh within seven years. All selected species must be native to the North Carolina Piedmont region.
F. Use Category Requirements
1. Exempt
An exempt use may occur without authorization provided it adheres to the limitations contained in the Table of Uses below. In addition, an exempt use shall be designed, constructed, maintained and monitored to minimize soil disturbance and maximize water quality protection.
2. Allowable
An allowable use requires written authorization from the North Carolina Division of Water Resources, City, or County as appropriate and may occur following a finding of “no practical alternatives” and issuance of an Authorization Certificate pursuant to paragraph 8.5.10, No Practical Alternatives/Authorization Certificate.
3. Allowable with Mitigation
An allowable with mitigation use requires written authorization from the North Carolina Division of Water Resources, City, or County as appropriate and may occur following a finding of “no practical alternatives” and issuance of an Authorization Certificate pursuant to paragraph 8.5.10, No Practical Alternatives/Authorization Certificate, and approval of a mitigation strategy pursuant to paragraph 8.5.11, Mitigation.
G. Table of Uses
The following table sets out potential new uses within the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants., or outside of the buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. with impacts upon the buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants., and categorizes them as exempt, allowable, or allowable with mitigation. The requirements for each category are contained in paragraph F, Use The purpose for which a building, structure, or area of land may be arranged or occupied or the activity conducted or proposed in a building, structure, or on an area of land. Category Requirements, above. All uses not categorized as exempt, allowable, or allowable with mitigation are prohibited and may not occur within the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. or outside of the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. with impacts on the buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. unless a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. is obtained pursuant to paragraph 8.5.12, Variances. Uses include construction, monitoring, and maintenance activities.
8.5.10. No Practical Alternatives/Authorization Certificate
A. A person Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. who wishes to undertake a use designated as allowable or allowable with mitigation shall first submit a request for a “no practical alternatives” determination. Within the Neuse River Basin, the request shall be submitted to the North Carolina Division of Water Resources (Division). Outside of the Neuse River Basin, the request shall be submitted to the City or County as appropriate. In the request, the applicant shall certify that the project meets all of the following criteria:
1. The basic project purpose cannot be practically accomplished to better minimize disturbance, preserve aquatic life and habitat, and protect water quality;
2. The use cannot practically be reduced in size or density The number of dwelling units per gross acre, excluding accessory residences or dwelling units, or any other exclusion within this Ordinance., reconfigured or redesigned to better minimize disturbance, preserve aquatic life and habitat, and protect water quality; and
3. Best management practices shall be used if necessary to minimize disturbance, preserve aquatic life and habitat, and protect water quality.
B. The applicant shall also submit at least the following information:
1. The name, address and phone number of the applicant;
2. The nature of the activity to be conducted by the applicant;
3. The location of the activity, including the jurisdiction;
4. A map of sufficient detail to accurately delineate the boundaries of the land to be utilized in carrying out the activity, the location and dimensions of the riparian buffers, and the location and dimensions of any disturbance in riparian buffers associated with the activity;
5. An explanation of why the activity cannot be practically accomplished, reduced or reconfigured to better minimize disturbance to the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants., preserve aquatic life and habitat and protect water quality; and
6. Best management practices proposed to control the impacts associated with the activity.
C. Within 60 days of a complete submission, the appropriate jurisdiction (the Division acting pursuant to 15 NCAC 02B .0233 (8)) shall review the entire project and make a finding of fact as to whether the criteria in paragraph 1 above have been met. If they have, “no practical alternatives” has been established and the jurisdiction shall issue an Authorization Certificate. Failure to act within 60 days shall be construed as a finding of “no practical alternatives” and an Authorization Certificate shall be issued to the applicant. Outside of the Neuse River Basin, however, such 60-day deadline may be extended if one of the following occurs:
1. The applicant agrees, in writing, to a longer period;
2. The jurisdiction determines that the applicant requires an additional reasonable period of time in which to furnish requested information the jurisdiction deems necessary to its decision; or
3. The final decision is to be made pursuant to a public hearing.
D. The appropriate jurisdiction may attach conditions to an Authorization Certificate that support the purpose, spirit and intent of the state riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. protection program and/or this section.
E. Outside of the Neuse River Basin, the Authorization Certificate shall be denied if the applicant refuses access to its records or premises for the purposes of gathering information the appropriate jurisdiction deems necessary to its decision or if the jurisdiction determines that the applicant has failed to furnish requested information the jurisdiction deems necessary to its decision within the 60-day period or an additional period as authorized under paragraph C.2 above.
F. Despite the provisions of Section 2.4, Board of Adjustment, appeals Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. from Authorization Certificate determinations shall be to the Division Director, c/o the 401 Oversight Express Permitting Unit, or its successor, in writing. The Director’s decision is subject to review as provided in Articles 3 and 4 of G.S. 150B.
8.5.11. Mitigation
Mitigation is required where: 1) a person Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. wishes to undertake a use designated as allowable with mitigation and has obtained a “no practical alternatives” determination; and 2) a person Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. is required to perform mitigation as a condition of variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. approval under this section. Within the Neuse River Basin, the proposal shall be submitted to the North Carolina Division of Water Resources (Division), which shall proceed pursuant to 15A NCAC 02B .0242. Outside of the Neuse River Basin, the proposal shall be submitted to the City or County as appropriate, which shall proceed pursuant to this section as authorized under 15A NCAC 02B .0268.
The appropriate jurisdiction (the Division acting pursuant to 15 NCAC 02B .0242) shall issue a mitigation approval upon determining that a proposal meets the requirements of this section. Within the Neuse River Basin, the approval shall specify the required area and location of mitigation. Outside of the Neuse River Basin, the approval shall identify at a minimum the option chosen, the required and proposed areas, and the mitigation location or offset payment amount as applicable. As stated in paragraph 8.5.2, Applicability, compliance with this entire section is required even where State standards are less stringent. Within the Neuse River Basin, final review by the City or County shall occur after any State action is completed.
A. Mitigation Options
The mitigation requirement may be met through one of the following options:
1. Participation in a private compensatory mitigation bank in the same hydrologic area, as defined in NCGS 143.214(11), as the proposed impact that is approved by the NC Department of Environmental Quality;
2. Payment of a compensatory mitigation fee to the Riparian Buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. Restoration Fund pursuant to 15A NCAC 02B .0269 contingent upon acceptance of payments by the Division of Mitigation Services. This option is available to a nongovernment applicant only if option 1 is not available;
3. Donation of real property or of an interest in real property pursuant to paragraph D, Donation of Real Property, below to satisfy a compensatory mitigation fee in whole or in part;
4. Restoration or enhancement of a non-forested riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. pursuant to paragraph E, Riparian Buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. Restoration or Enhancement, below; or
5. Construction of an alternative measure that reduces nutrient loading as well as or better than the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. that is lost in the same river basin as the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. that is lost and that is approved by the Division.
B. Mitigation Area
The appropriate jurisdiction shall determine the required area of mitigation as follows:
1. Add the following areas to determine the impacts in square feet to each portion of the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants.:
a. The area of the footprint of the use causing the impact to the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants.;
b. The area of the boundary of any clearing and grading A land disturbing activity that modifies the contours of the land. activities within the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. necessary to accommodate the use; and
c. The area of any ongoing maintenance corridors within the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. associated with the use; and
2. Apply the following multipliers to the impacts determined in paragraph 1 to each portion of the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants.:
a. Impacts to the inner 30 feet of the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. shall be multiplied by three;
b. Impacts to the outer 20 feet of the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. shall be multiplied by one and one-half; and
c. Impacts to wetlands An area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly as hydrophytic vegetation, as defined by responsible State or Federal agencies. within those two portions of the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. that are subject to mitigation under 15A NCAC 2H .0506 shall comply with the mitigation ratios in 15A NCAC 2H .0506.
C. Mitigation Location
1. Within the Falls Reservoir Watershed All of the land area draining to a particular point on a water course or to a water body., mitigation shall be located within the Upper Falls Watershed All of the land area draining to a particular point on a water course or to a water body., as defined in 15A NCAC 2B.0275 and .0276, and the same distance from, or closer to, the Upper Falls Reservoir, as defined in 15A NCAC 2B.0275 and .0276, as the proposed impact, and as close to the location of the impact as feasible. Alternatively, mitigation may be located anywhere within the Upper Falls Watershed All of the land area draining to a particular point on a water course or to a water body. provided that the mitigation proposal accounts for differences in delivery of nutrients to the Upper Falls Watershed All of the land area draining to a particular point on a water course or to a water body. resulting from differences between the locations of the buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. impact and mitigation.
2. Within the Jordan Reservoir Watershed All of the land area draining to a particular point on a water course or to a water body., mitigation shall be located within the same subwatershed, as defined in 15A NCAC 02B.0262, and the same distance from, or closer to, the reservoir as the proposed impact, and as close to the location of the impact as feasible. Alternatively, the applicant may propose mitigation anywhere within the same subwatershed, as defined in 15A NCAC 02B.0262, provided that the mitigation proposal accounts for differences in delivery of nutrients to the affected arm of the reservoir resulting from differences between the locations of the buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. impact and mitigation.
3. In any location, mitigation of riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. loss in the watershed All of the land area draining to a particular point on a water course or to a water body. of a drinking water supply shall be performed in the watershed All of the land area draining to a particular point on a water course or to a water body. of that drinking water supply and as may be further limited by the North Carolina Environmental Management Commission.
Additional location requirements for the property donation option are enumerated in paragraph D, Donation of Property, below.
D. Donation of Property
1. Donation of real property interests that meet the requirements listed below may partially or fully satisfy payment of a compensatory mitigation fee to the Riparian Buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. Restoration Fund, calculated pursuant to 15A NCAC 02B .0269. The value of the property interest shall be determined by an appraisal performed in accordance with paragraph 4 below. The donation shall satisfy the mitigation requirement 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, the applicant shall pay the balance.
2. A conservation easement A grant by a property owner for use by the public, a corporation or persons of an area of land for specific purposes. shall be accepted only if it is granted in perpetuity.
3. Any property interest shall be accepted only if it meets all of the following requirements:
a. In addition to the location requirements of paragraph C, Mitigation Location, above, 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 Division’s Basinwide Wetlands An area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly as hydrophytic vegetation, as defined by responsible State or Federal agencies. and Riparian Restoration Plan (within the Neuse River Basin) or its Basinwide Wetlands An area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and under normal circumstances does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly as hydrophytic vegetation, as defined by responsible State or Federal agencies. and Riparian Restoration Plan for the Cape Fear River Basin (outside of the Neuse River Basin), both developed Pursuant to NCGS 160D-102, any of the following:
a. The construction, erection, alteration, enlargement, renovation, substantial repair, movement to another site, or demolition of any structure.
b. The excavation, grading, filling, clearing, or alteration of land.
c. The subdivision of land as defined in G.S. 160D-802.
d. The initiation or substantial change in the use of land or the intensity of use of land. pursuant to NCGS 143-214.10;
b. The property shall contain riparian buffers not currently protected by the State’s riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. protection program that are in need of restoration as defined in paragraph E.4 below;
c. The restorable riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. on the property shall have a minimum length of 1000 linear feet along a surface water and a minimum width of 50 feet measured horizontally on a line perpendicular to the surface water;
d. The size of the restorable riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. on the property shall equal or exceed the area of mitigation responsibility determined under paragraph B above;
e. Outside of the Neuse River Basin, restoration shall not require removal of man-made structures or infrastructure. Within the Neuse River Basin, the property shall not require excessive measures for successful restoration, such as removal of structures or infrastructure, and restoration of the property shall be fully capable of offsetting the adverse impacts of the requested use;
f. The property shall be suitable to be successfully restored, based on existing hydrology, soils, and vegetation;
g. The estimated cost of restoring and maintaining the property shall not exceed the value of the property minus site identification and transaction costs;
h. The property shall not contain any building As defined in the North Carolina Building Code, as amended, or the North Carolina Residential Code for One and Two-Family Dwellings, as amended, as applicable., structure A walled or roofed constructed object that is principally above ground; vertical projections meeting the definition of antenna-supporting or wireless support structures; or, when used in reference to Sec. 8.4, Floodplain and Flood Damage Protection Standards, a gas or liquid storage tank that is principally above ground. Included in this definition are extensions or additions which are covered by a roof supported by walls or columns, such as but not limited to porte cocheres, carports, covered or screened porches, and breezeways., 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;
i. The property shall not contain any hazardous substance or solid waste As used in Sec. 12.10, Sedimentation and Erosion Control, surplus materials resulting from onsite construction and disposed of at other locations.;
j. 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 the expense of the applicant or donor in accordance with state and local health and safety regulations;
k. The property and adjacent Property abutting directly on the boundary of, touching, or sharing a common point. properties shall not have prior, current, or known future land use that would inhibit the function of the restoration effort; and
l. The property shall not have any encumbrances or conditions on the transfer of the property interests.
4. At the expense of the applicant or donor, the following information shall be submitted to the appropriate jurisdiction with any proposal for donation or dedication The transfer without payment of ownership or other interest in real property from a private entity to a public agency. of interest in real property:
a. Documentation that the property meets the requirements laid out in paragraph E.3 below;
b. 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 See “Street, Public” and “Street, Private.” map showing the location of the property along with information on existing site conditions, vegetation types, and existing structures and easements A grant by a property owner for use by the public, a corporation or persons of an area of land for specific purposes.;
c. A current property survey performed in accordance with the procedures of the North Carolina Department of Administration, State Property Office A room, group of rooms, or building whose primary use is the conduct of a business, professional service, or governmental activity of a non-retail nature; including administration, record keeping, clerical work, and similar functions. This definition is not meant to include manufacturing, processing, repair, or storage of materials or products. as identified by the State Board of Registration for Professional Engineers and Land Surveyors in "Standards of Practice for Land Surveying in North Carolina";
d. 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 A room, group of rooms, or building whose primary use is the conduct of a business, professional service, or governmental activity of a non-retail nature; including administration, record keeping, clerical work, and similar functions. This definition is not meant to include manufacturing, processing, repair, or storage of materials or products. as identified by the Appraisal Board in the "Uniform Standards of Professional North Carolina Appraisal Practice"; and
e. A title certificate.
E. Riparian Buffer Restoration or Enhancement
Mitigation through riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. restoration or enhancement shall meet the following requirements:
1. The applicant may restore or enhance a non-forested riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. if either of the following applies:
a. The area of riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. restoration is equal to the required area of mitigation determined pursuant to paragraph B, Mitigation Area, above; or
b. The area of riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. enhancement is three times larger than the required area of mitigation determined pursuant to paragraph B, Mitigation Area, above;
2. The location of the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. restoration or enhancement shall comply with the requirements of paragraph C, Mitigation Location, above;
3. The riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. restoration or enhancement site shall have a minimum width of 50 feet measured horizontally on a line perpendicular to a vertical line marking the top of the bank for a stream A body of concentrated flowing water in a natural low area or natural channel on the land surface. or the normal water level for a pond, lake, or reservoir;
4. Outside of the Neuse River Basin, enhancement and restoration shall each have the objective of establishing a forested riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants.. Enhancement shall be distinguished from restoration based on existing buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. conditions. Where existing trees are sparse, meaning greater than or equal to 100 trees per acre but less than 200 trees per acre, a buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. shall be enhanced. Where existing woody vegetation is absent, meaning less than 100 trees per acre, a buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. shall be restored;
5. The applicant shall first receive an Authorization Certificate for the proposed use according to the requirements of paragraph 8.5.11, No Practical Alternatives/Authorization Certificate. The applicant shall then submit a restoration or enhancement plan to the City or County as appropriate. The restoration or enhancement plan shall contain the following:
a. A map of the proposed restoration or enhancement site;
b. A vegetation plan. The vegetation plan shall include trees as specified under paragraph 9.2.3B.6, Mixing of Tree Species, and the Durham Landscape Manual, planted at a density The number of dwelling units per gross acre, excluding accessory residences or dwelling units, or any other exclusion within this Ordinance. sufficient to provide 320 trees per acre at maturity with at least 50% of those trees having the potential of attaining a two and a half inch or greater dbh within seven years. All selected species must be native to the North Carolina Piedmont region;
c. A grading A land disturbing activity that modifies the contours of the land. plan. The site shall be graded A land disturbing activity that modifies the contours of the land. in a manner to ensure diffuse flow through the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants.;
d. A fertilization plan; and
e. An implementation schedule;
6. Within one year after restoration or enhancement plan approval, the applicant shall present proof to the appropriate jurisdiction that the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. has been restored or enhanced. If proof is not presented within this timeframe, the applicant shall be in violation The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. of both the State and local riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. protection programs;
7. The mitigation area shall be placed under a perpetual conservation easement A grant by a property owner for use by the public, a corporation or persons of an area of land for specific purposes. that provides for protection of the property’s nutrient removal functions;
8. 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 A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. has been maintained. The applicant shall replace trees that do not survive and restore diffuse flow if needed during that five-year period.
8.5.12. Variances
A person Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, interstate body, or other legal entity. who wishes to undertake a prohibited use shall first submit a request for a minor or major variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. to the appropriate jurisdiction as stated below. A minor variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. is required for any activity that impacts only the outer 20 feet of a riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants.. A major variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. is required for any activity that impacts any portion of the inner 30 feet of a riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants.. Such variances A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. are separate from variances A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. authorized under Sec. 3.14, Variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship..
A. Within the Neuse River Basin
1. Minor Variance
Pursuant to 15 NCAC 02B .0233 (9), a minor variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. request shall be submitted to the North Carolina Division of Water Resources (Division) for review and decision. The Division may attach conditions to approval that support the purpose, spirit and intent of the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. protection program. Appeal Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. from the Division decision shall be to the Office A room, group of rooms, or building whose primary use is the conduct of a business, professional service, or governmental activity of a non-retail nature; including administration, record keeping, clerical work, and similar functions. This definition is not meant to include manufacturing, processing, repair, or storage of materials or products. of Administrative Hearings.
2. Major Variance
Pursuant to 15 NCAC 02B .0233 (9)(c), a major variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. request shall be submitted to the Division for initial review. If the Division determines that the request meets the requirements of paragraph 3, Variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. Requirements, below, it shall submit preliminary findings to the NC Environmental Management Commission c/o the Division of Water Resources, 401 Oversight Express Permitting Unit, or its successor. Within 90 days after receipt by the Director of a complete application, the Commission shall approve, approve with conditions or stipulations, or deny the request. Upon and in accordance with the Commission’s decision, the Division shall issue a final decision granting, granting subject to conditions or stipulations, or denying the major variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship.. Appeal Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. from either the initial Division determination or the Commission decision shall be to the Office A room, group of rooms, or building whose primary use is the conduct of a business, professional service, or governmental activity of a non-retail nature; including administration, record keeping, clerical work, and similar functions. This definition is not meant to include manufacturing, processing, repair, or storage of materials or products. of Administrative Hearings.
3. Variance Requirements
Pursuant to 15 NCAC 02B .0233 (9)(a), the Division shall make a finding of fact as to whether the following requirements have been met:
a. There are practical difficulties or unnecessary hardships that prevent compliance with the strict letter of the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. protection requirements; Practical difficulties or unnecessary hardships shall be evaluated in accordance with the following:
(1) If the applicant complies with the provisions of this section, he/she can secure no reasonable return from, nor make reasonable use of, his/her property. Merely proving that the variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. would permit a greater profit from the property shall not be considered adequate justification for a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship.. Moreover, the Division shall consider whether the variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. is the minimum possible deviation from the terms of this section that shall make reasonable use of the property possible;
(2) The hardship results from application of this section to the property rather than from other factors such as deed restrictions or other hardship;
(3) The hardship is due to the physical nature of the applicant’s property, such as its size, shape, or topography, which is different from that of neighboring property;
(4) The applicant did not cause the hardship by knowingly or unknowingly violating The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. this section; and
(5) The hardship is unique to the applicant’s property, rather than the result of conditions that are widespread. If other properties are equally subject to the hardship created in the restriction, then granting a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. would be a special privilege denied to others, and would not promote equal justice;
b. The variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. is in harmony with the general purpose and intent of this section and preserves its spirit; and
c. In granting the variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship., the public safety and welfare have been assured, water quality has been protected, and substantial justice has been done.
B. Outside of the Neuse River Basin
1. Minor Variance
A minor variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. request shall be submitted to the City or County as appropriate for review and decision. The City or County may attach conditions to approval that support the purpose, spirit and intent of the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. protection program and this section. Despite the provisions of Section 2.4, Board of Adjustment, appeal Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. from the City or County decision shall be to the Division Director, c/o the 401 Oversight Express Permitting Unit, or its successor. The Director’s decision is subject to review as provided in Articles 3 and 4 of G.S. 150B.
2. Major Variance
A major variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. request shall be submitted to the City or County as appropriate for initial review. If the City or County determines that the request meets the requirements of paragraph 3, Variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. Requirements, below, it shall submit preliminary findings to the North Carolina Environmental Management Commission c/o the Division of Water Resources, 401 Oversight Express Permitting Unit, or its successor. Within 90 days after receipt by the City or County of a complete application, the Commission approves, approves with conditions and stipulations, or denies the request. Despite the provisions of Section 2.4, Board of Adjustment, appeal Request for review of a final order, interpretation or decision by any administrative official authorized to make such decision. from the initial City or County determination or the Commission decision shall be to Superior Court.
3. Variance Requirements
The City or County shall make the following three findings of fact in order to determine that the variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. requirements are met:
a. There are practical difficulties or unnecessary hardships that prevent compliance with the riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. protection requirements. The following criteria must all be met in order to make such finding:
(1) If the applicant complies with the provisions of this section, he/she can secure no reasonable return from, nor make reasonable use of, his/her property. Merely proving that the variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. would permit a greater profit from the property shall not be considered adequate justification for a variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship.. Moreover, the variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. shall be the minimum possible deviation from the terms of this Ordinance that shall make reasonable use of the property possible;
(2) The hardship results from application of this section to the property rather than from other factors such as deed restrictions or other hardship;
(3) The hardship is due to the physical nature of the applicant’s property, such as its size, shape, or topography, such that compliance with provisions of this section would not allow reasonable use of the property;
(4) The applicant did not cause the hardship by knowingly or unknowingly violating The establishment, creation, expansion, alteration, occupation or maintenance of any use, land development activity, or structure, including but not limited to signs and buildings, that is inconsistent with any provision of this Ordinance or any order, approval, or authorization issued pursuant to this Ordinance. this Ordinance; and
(5) The hardship is rare or unique to the applicant’s property.
b. The requested variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship. is in harmony with the general purpose, spirit and intent of the state riparian buffer A portion of property designated to mitigate impacts between land uses or transportation routes, or to protect water features from pollutants. protection requirements and/or this section; and
c. In granting the variance A grant of relief to a person from the requirements of this Ordinance which permits construction or use in a manner otherwise prohibited by this Ordinance where specific enforcement would result in unnecessary hardship., the public safety and welfare have been assured, water quality has been protected, and substantial justice has been done.
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LAST AMENDED: Durham County: September 1, 2024 | City of Durham: September 1, 2024 |