§ 10. Permits Procedures, Requirements, and Approvals.

A.

Determination of No Practical Alternatives/Request for Authorization Certificate.

1.

Persons who wish to undertake uses designated as allowable or allowable with mitigation shall submit a request for a "no practical alternatives" determination to the Stormwater Administrator. The applicant shall certify that the project meets all the following criteria for finding "no practical alternatives":

a.

The basic project purpose cannot be practically accomplished in a manner that would better minimize disturbance, preserve aquatic life and habitat, and protect water quality;

b.

The use cannot practically be reduced in size or density, reconfigured or redesigned to better minimize disturbance, preserve aquatic life and habitat, and protect water quality; and

c.

Best management practices shall be used if necessary to minimize disturbance, preserve aquatic life and habitat, and protect water quality.

2.

The applicant shall also submit at least the following information in support of their assertion of "no practical alternatives":

a.

The name, address and phone number of the applicant;

b.

The nature of the activity to be conducted by the applicant;

c.

The location of the activity, including the jurisdiction;

d.

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 any disturbance in riparian buffers associated with the activity, and the extent of riparian buffers on the land;

e.

An explanation of why this plan for the activity cannot be practically accomplished, reduced or reconfigured to better minimize disturbance to the riparian buffer, preserve aquatic life and habitat and protect water quality; and

f.

Plans for any best management practices proposed to be used to control the impacts associated with the activity.

3.

Within 60 days of a submission that addresses Section 10.(A)(2) , the Stormwater Administrator shall review the entire project and make a finding of fact as to whether the criteria in Section 10.(A)(1) of this Section have been met. A finding of "no practical alternatives" shall result in issuance of 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 unless one of the following occurs:

a.

The applicant agrees, in writing, to a longer period;

b.

The Stormwater Administrator determines that the applicant has failed to furnish requested information necessary to the Stormwater Administrator's decision;

c.

The final decision is to be made pursuant to a public hearing; or

d.

The applicant refuses access to its records or premises for the purpose of gathering information necessary to the Stormwater Administrator's decision.

4.

The Stormwater Administrator may attach conditions to the Authorization Certificate that support the purpose, spirit and intent of this Ordinance.

5.

Any appeals of determinations regarding Authorization Certificates shall be referred to the Director of the Division of Water Quality, c/o the 401 Oversight Express Permitting Unit, or its successor. The Director's decision is subject to review as provided in G.S. 150B Articles 3 and 4.

B.

Variances.

1.

Requirements for Variances.

Persons who wish to undertake prohibited uses may pursue a variance. The City Council may grant minor variances. For major variances, the Stormwater Administrator shall prepare preliminary findings and submit them to the Division of Water Quality, 401 Oversight Express Permitting Unit, or its successor for approval by the Environmental Management Commission. The variance request procedure shall be as follows:

a.

For any variance request, the City Council shall make a finding of fact as to whether there are practical difficulties or unnecessary hardships that prevent compliance with the riparian buffer protection requirements. A finding of practical difficulties or unnecessary hardships shall require that the following conditions are met:

i.

If the applicant complies with the provisions of this Ordinance, he/she can secure no reasonable return from, nor make reasonable use of, his/her property. Merely proving that the variance would permit a greater profit from the property shall not be considered adequate justification for a variance. Moreover, the City Council shall consider whether the variance is the minimum possible deviation from the terms of this Ordinance that shall make reasonable use of the property possible;

ii.

The hardship results from application of this Ordinance to the property rather than from other factors such as deed restrictions or other hardship;

iii.

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 ordinance would not allow reasonable use of the property;

iv.

The applicant did not cause the hardship by knowingly or unknowingly violating this Ordinance;

v.

The applicant did not purchase the property after the effective date of this Ordinance, and then request a variance; and

vi.

The hardship is rare or unique to the applicant's property.

b.

The variance is in harmony with the general purpose and intent of the State's riparian buffer protection requirements and this Ordinance and preserves its spirit; and

c.

In granting the variance, the public safety and welfare have been assured, water quality has been protected, and substantial justice has been done.

2.

Minor Variances.

A minor variance request pertains to activities that will impact only Zone Two of the riparian buffer. Minor variance requests shall be reviewed and approved based on the criteria in Section 10.(B)(1) by the City Council pursuant to G.S. 160A-Article 19. The City Council may attach conditions to the variance approval that support the purpose, spirit and intent of the riparian buffer protection program. Request for appeals to decisions made by the City Council shall be made in writing to the Director of the Division of Water Quality c/o the 401 Oversight Express Permitting Unit, or its successor. The Director's decision is subject to review as provided in G.S. 150B Articles 3 and 4.

3.

Major Variances.

A major variance request pertains to activities that will impact any portion of Zone One or any portion of both Zones One and Two of the riparian buffer. If the City has determined that a major variance request meets the requirements in Section 9.(C)(3) through 10.(B)(1), then it shall prepare a preliminary finding and submit it to the NC Environmental Management Commission c/o the Division of Water Quality, 401 Oversight Express Permitting Unit, or its successor, for approval. Within 90 days after receipt by the City, the Commission shall review preliminary findings on major variance requests and take one of the following actions: approve, approve with conditions and stipulations, or deny the request. Appeals from a Commission decision on a major variance request are made on judicial review to Superior Court.

C.

Mitigation.

1.

This item shall apply to persons who wish to impact a riparian buffer in the Jordan watershed when one of the following applies:

d.

A person has received an Authorization Certificate pursuant to Section 10.(A) of this Ordinance for a proposed use that is designated as "allowable with mitigation;" or

e.

A person has received a variance pursuant to Section 10.(B) of this Ordinance and is required to perform mitigation as a condition of a variance approval.

2.

Issuance of the Mitigation Approval.

The Stormwater Administrator shall issue a mitigation approval upon determining that a proposal meets the requirements set out in this Ordinance. The approval shall identify at a minimum the option chosen, the required and proposed areas, and either the mitigation location or offset payment amount as applicable.

3.

Options for Meeting the Mitigation Requirement.

The mitigation requirement may be met through one of the following options:

a.

Payment of a compensatory mitigation fee to the Riparian Buffer Restoration Fund pursuant to 15A NCAC 02B .0269 (Jordan Water Supply Nutrient Strategy: Riparian Buffer Mitigation Fees to the NC Ecosystem Enhancement Program) contingent upon acceptance of payments by the NC Ecosystem Enhancement Program, or to a private mitigation bank that complies with banking requirements of the US Army Corps of Engineers, currently set out at http://www.saw.usace.army.mil/WETLANDS/Mitigation/mitbanks.html or from the US Army Corps of Engineers, P.O. Box 1890, Wilmington, NC, 28402-1890, and the applicable trading criteria in Rule 15A NCAC 02B .0273;

b.

Donation of real property or of an interest in real property pursuant to Section 10.(C)(6) of this Ordinance; or

c.

Restoration or enhancement of a non-forested riparian buffer pursuant to the requirements of Section 10.(C)(7) of this Ordinance.

4.

The Area of Mitigation.

The Stormwater Administrator shall determine the required area of mitigation, which shall apply to all mitigation options identified in Section 10.(C)(3) of this Ordinance and as further specified in the requirements for each option set out in this Section, according to the following:

a.

The impacts in square feet to each zone of the riparian buffer shall be determined by the Stormwater Administrator by adding the following:

i.

The area of the footprint of the use causing the impact to the riparian buffer;

ii.

The area of the boundary of any clearing and grading activities within the riparian buffer necessary to accommodate the use; and

iii.

The area of any ongoing maintenance corridors within the riparian buffer associated with the use.

b.

The required area of mitigation shall be determined by applying the following multipliers to the impacts determined in Section 10.(4)(a) of this Ordinance to each zone of the riparian buffer:

i.

Impacts to Zone One of the riparian buffer shall be multiplied by three;

ii.

Impacts to Zone Two of the riparian buffer shall be multiplied by one and one-half; and

iii.

Impacts to wetlands within Zones One and Two of the riparian buffer that are subject to mitigation under 15A NCAC 2H .0506 shall comply with the mitigation ratios in 15A NCAC 2H .0506.

5.

The Location of Mitigation.

For any option chosen, the mitigation effort shall be located within the same subwatershed of the Jordan watershed, as defined in 15A NCAC 02B.0262, and the same distance from the Jordan Reservoir as the proposed impact, or closer to the Reservoir than the impact, and as close to the location of the impact as feasible. Alternatively, the applicant may propose mitigation anywhere within the same subwatershed of the Jordan watershed, as defined in 15A NCAC 02B.0262, provided that the mitigation proposal accounts for differences in delivery of nutrients to the affected arm of Jordan Reservoir resulting from differences between the locations of the buffer impact and mitigation. Additional location requirements for the property donation option are enumerated in Section 10.(C)(6)(c)(i) of this Ordinance.

6.

Donation of Property.

Persons who choose to satisfy their mitigation determination by donating real property or an interest in real property shall meet the following requirements:

a.

The donation of real property interests may be used to either partially or fully satisfy the payment of a compensatory mitigation fee to the Riparian Buffer Restoration Fund pursuant to 15A NCAC 02B .0273. The value of the property interest shall be determined by an appraisal performed in accordance with Section 10.(C)(6)(d)(iv) of this Ordinance. The donation shall satisfy the mitigation determination 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 calculated pursuant to 15A NCAC 02B .0273, the applicant shall pay the remaining balance due.

b.

The donation of conservation easements to satisfy compensatory mitigation requirements shall be accepted only if the conservation easement is granted in perpetuity.

c.

Donation of real property interests to satisfy the mitigation determination shall be accepted only if such property meets all of the following requirements:

i.

In addition to the location requirements of Section 10.(C)(5) of this Ordinance, 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 Basinwide Wetlands and Riparian Restoration Plan for the Cape Fear River Basin developed by NC Division of Water Quality pursuant to G.S. 143-214.10;

ii.

The property shall contain riparian buffers not currently protected by the State's riparian buffer protection program that are in need of restoration as defined in Section 10.(7)(d) of this Ordinance;

iii.

The restorable riparian buffer on the property shall have a minimum length of 1000 linear feet along a surface water and a minimum width of 50 feet as measured horizontally on a line perpendicular to the surface water;

iv.

The size of the restorable riparian buffer on the property to be donated shall equal or exceed the area of mitigation responsibility determined pursuant to Section 10.(C)(4) of this Ordinance;

v.

Restoration shall not require removal of man-made structures or infrastructure;

vi.

The property shall be suitable to be successfully restored, based on existing hydrology, soils, and vegetation;

vii.

The estimated cost of restoring and maintaining the property shall not exceed the value of the property minus site identification and transaction costs;

viii.

The property shall not contain any building, structure, 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;

ix.

The property shall not contain any hazardous substance or solid waste;

x.

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 owner's expense in accordance with state and local health and safety regulations;

xi.

The property and adjacent properties shall not have prior, current, and known future land use that would inhibit the function of the restoration effort; and

xii.

The property shall not have any encumbrances or conditions on the transfer of the property interests.

d.

At the expense of the applicant or donor, the following information shall be submitted to the City with any proposal for donations or dedications of interest in real property:

i.

Documentation that the property meets the requirements laid out in Section 10.(C)(6)(c) of this Ordinance;

ii.

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 map showing the location of the property to be donated along with information on existing site conditions, vegetation types, presence of existing structures and easements;

iii.

A current property survey performed in accordance with the procedures of the North Carolina Department of Administration, State Property Office as identified by the State Board of Registration for Professional Engineers and Land Surveyors in "Standards of Practice for Land Surveying in North Carolina." Copies may be obtained from the North Carolina State Board of Registration for Professional Engineers and Land Surveyors, 3620 Six Forks Road, Suite 300, Raleigh, North Carolina 27609;

iv.

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 as identified by the Appraisal Board in the "Uniform Standards of Professional North Carolina Appraisal Practice." Copies may be obtained from the Appraisal Foundation, Publications Department, P.O. Box 96734, Washington, D.C. 20090-6734; and

v.

A title certificate.

7.

Riparian Buffer Restoration or Enhancement.

Persons who choose to meet their mitigation requirement through riparian buffer restoration or enhancement shall meet the following requirements:

a.

The applicant may restore or enhance a non-forested riparian buffer if either of the following applies:

i.

The area of riparian buffer restoration is equal to the required area of mitigation determined pursuant to Section 10.(C)(4) of this Ordinance; or

ii.

The area of riparian buffer enhancement is three times larger than the required area of mitigation determined pursuant to Section 10.(C)(4) of this Ordinance;

b.

The location of the riparian buffer restoration or enhancement shall comply with the requirements in Section 10.(C)(5) of this Ordinance;

c.

The riparian buffer restoration or enhancement site shall have a minimum width of 50 feet as measured horizontally on a line perpendicular to the surface water;

d.

Enhancement and restoration shall both have the objective of establishing a forested riparian buffer according to the requirements of this Item. Enhancement shall be distinguished from restoration based on existing buffer conditions. Where existing trees are sparse, that is greater than or equal to 100 trees per acre but less than 200 trees per acre, a buffer may be enhanced. Where existing woody vegetation is absent, that is less than 100 trees per acre, a buffer may be restored;

e.

The applicant shall first receive an Authorization Certificate for the proposed use according to the requirements of Section 10.(A) of this Ordinance. After receiving this determination, the applicant shall submit a restoration or enhancement plan for approval by the Stormwater Administrator. The restoration or enhancement plan shall contain the following:

i.

A map of the proposed restoration or enhancement site;

ii.

A vegetation plan. The vegetation plan shall include a minimum of at least two native hardwood tree species planted at a density sufficient to provide 320 trees per acre at maturity;

iii.

A grading plan. The site shall be graded in a manner to ensure diffuse flow through the riparian buffer;

iv.

A fertilization plan; and

v.

A schedule for implementation;

f.

Within one year after the Stormwater Administrator has approved the restoration or enhancement plan, the applicant shall present proof to the Stormwater Administrator that the riparian buffer has been restored or enhanced. If proof is not presented within this timeframe, then the person shall be in violation of both the State's and the City's riparian buffer protection program;

g.

The mitigation area shall be placed under a perpetual conservation easement that will provide for protection of the property's nutrient removal functions; and

h.

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 has been maintained. The applicant shall replace trees that do not survive and restore diffuse flow if needed during that five-year period.

(Ord. No. 2012-05, 2-21-12)