15A NCAC 02H .1305. REVIEW OF APPLICATIONS

(a)  In evaluating requests for an Individual Permit or Certificate of Coverage under a General Permit based on the procedures outlined in Paragraphs (c) through (d) of this Rule, the Director shall determine if the proposed discharge resulting from an activity has the potential to remove or degrade those existing uses in 15A NCAC 02B .0231(a) and (b) which are present in the isolated wetland or listed in the classification for classified isolated surface water.  Discharges resulting from activities which would not remove or degrade existing uses shall be reviewed according to the procedures found in Subparagraphs (c)(2) through (c)(6) or (d)(2) through (d)(6) of this Rule.  An applicant may also demonstrate that designated uses are not present at a particular site using a wetland evaluation procedure approved by the Director according to the criteria found in 15A NCAC 02B .0103(c); otherwise the designated uses as outlined at 15A NCAC 02B .0231(a) and (b) are assumed to exist, and the appropriate review procedures shall be undertaken.   An Individual Permit or Certificate of Coverage under a General Permit shall be issued where the Director determines water quality standards will be met, including protection of existing uses.

(b)  Discharges from Activities Deemed to be Permitted: Discharges resulting from activities in isolated wetlands or waters that are below the thresholds described in Subparagraphs (c)(2) and (d)(2) of this Rule, are deemed to be permitted as long as they fully comply with conditions listed below and may proceed without review procedures outlined in Subparagraphs (c)(1) through (c)(6) and (d)(1) through (d)(6) of this Rule.  However, the Director may require that any discharge resulting from an activity obtain an Individual Permit or Certificate of Coverage under a General Permit if the Director determines that the discharge would result in a violation of water quality or wetland standards listed in 15A NCAC 02B .0200.  This determination shall be made based on existing or projected environmental impacts.  Conditions which must be met for projects deemed to be permitted:

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

(2)           All erosion and sediment control practices placed in isolated wetlands or isolated classified surface waters must be removed and the original grade restored within two months after the Division of Energy, Mineral, and Land Resources or local delegated program determines that the land disturbance project is completed and the file is closed out;

(3)           Live or fresh concrete shall not come into contact with surface water until the concrete has hardened; and

(4)           Measures shall be taken to ensure that the hydrology of any remaining isolated wetland or isolated classified surface waters is not affected by the discharge.

(c)  The Director shall issue an Individual Permit or Certificate of Coverage under a General Permit upon determining that existing uses are not removed or degraded by a discharge to isolated classified surface waters for a discharge resulting from an activity which:

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

(2)           will minimize adverse impacts to the isolated classified surface waters under criteria outlined in Paragraph (f) of this Rule, or impacts less than or equal to 1/3 acre of isolated classified surface waters or less than or equal to 150 linear feet of isolated streams for the entire project;

(3)           does not result in the violation of groundwater standards, or water quality standards in the remaining surface waters;

(4)           does not result in cumulative impacts which are environmental impacts resulting from incremental effects of an activity when added to other past, present, and reasonably foreseeable future activities regardless of what entities undertake such other actions, and that cause or will cause a violation of downstream water quality standards;

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

(6)           provides for replacement of existing uses through mitigation with the following provisions:

(A)          Impacts to all surface waters on the site which total less than one acre of surface waters or less than 150 linear feet of streams do not require compensatory mitigation;

(B)          Mitigation shall be at a 2:1 ratio of acreage of waters or length of isolated stream of mitigation to the acreage of waters or length of isolated stream;

(C)          Mitigation for impacts to waters shall be conducted within the same river basin and physiographic province when practical; and

(D)          In-kind mitigation will be required unless other forms of mitigation provide greater water quality or aquatic life benefit.

(d)  The Director shall issue an Individual Permit or Certificate of Coverage under a General Permit upon determining that existing uses are not removed or degraded by a discharge to isolated wetlands for a discharge resulting from an activity which:

(1)           has no practical alternative as described in Paragraph (e) of this Rule;

(2)           will minimize adverse impacts to the isolated wetlands under Paragraph (f) of this Rule on consideration of existing topography, vegetation, fish and wildlife resources, and hydrological conditions or impacts less than or equal to 1/3 acre of isolated wetlands east of I-95 and less than or equal to 0.1 acre of isolated wetlands west of I-95 for the entire project;

(3)           does not result in the violation of groundwater standards, or wetland standards in the remaining wetlands;

(4)           does not result in cumulative impacts which are described in Subparagraph (c)(4) of this Rule and that cause or will cause a violation of downstream water quality standards;

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

(6)           provides for replacement of existing uses through wetland mitigation as described in Subparagraphs (g)(1) through (g)(9) of this Rule.

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

(f)  Minimization of discharges may be demonstrated by showing that any remaining isolated classified surface waters or wetlands are able to continue to support the existing uses after project completion, or that the discharges are required due to:

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

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

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

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

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

(2)           Mitigation shall not be required for discharges resulting from activities that impact a total of less than one acre of isolated and other wetlands.

(3)           Participation in wetland restoration programs coordinated by the Department of Environment and Natural Resources or approved mitigation banks (those mitigation banks which have been approved by the United States Army Corp of Engineers through the Mitigation Banking Review Team process) shall be required whenever the Director finds that such participation is available and satisfies the other requirements of this Paragraph, unless the applicant can demonstrate that participation in these restoration programs is not practical.

(4)           Acceptable methods of wetlands mitigation are listed below:

(A)          Restoration:  Re-establishment of hydrology to the natural or reference condition which are sites within a specific geographic region that are chosen, for the purposes of functional assessment or mitigation, to encompass the known variation of a group or class of wetlands, including both natural and disturbance variations and is in an area that contains hydric soils.  Vegetation must also be re-established if it differs from the natural or reference condition;

(B)          Creation:  Construction of wetlands in an area where wetlands did not exist in the past;

(C)          Enhancement:  Increasing one or more of the functions of an existing wetland by manipulation of vegetation or hydrology; and

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

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

(6)           For all discharges resulting from activities which impact, in total, more than one acre of isolated and other wetlands, the mitigation ratio shall be 2:1 acres of mitigation to the acreage impacted.  This mitigation must include at least a 1:1 ratio of restoration or creation except as outlined in Subparagraph (g)(7) of this Rule.  The acres of required mitigation for other types of mitigation shall be determined by multiplying the 2:1 ratio by 1.5 for creation, 2 for enhancement, and 5 for preservation.  The multiplier ratios listed in this Paragraph do not apply to mitigation sites where the state and federal review agencies have approved credit/debit ratios.

(7)           All mitigation proposals shall provide for the replacement of wetland acres lost due to the proposed discharge resulting from an activity at a minimum of a 1:1 ratio through restoration or creation prior to utilizing enhancement or preservation to satisfy the mitigation requirements, unless the Director determines that other forms of mitigation would provide greater water quality or aquatic life benefit.

 (8)          Mitigation for impacts to isolated wetlands designated in Paragraph (b) of this Rule shall be conducted within the same river basin and physiographic province when practical.

(9)           In-kind mitigation is required unless other forms of mitigation provide greater water quality or aquatic life benefit.

 

History Note:        Authority G.S. 143-215.1(a)(6); 143-215.3(a)(1); 143-215.3(c);

Codifier determined that findings did not meet criteria for temporary rule on September 26, 2001 and October 12, 2001;

Temporary Adoption Eff. October 22, 2001;

Eff. April 1, 2003;

Amended Eff. August 1, 2012 (see S.L. 2012-143, s.1.(f)).