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N.C. Gen. Stat. § 143-214.20

Riparian Buffer Protection Program: Alternatives to maintaining riparian buffers; compensatory mitigation fees

Redline — June 1, 2021 → current.View current text →
Current — June 1, 2022
As of June 1, 2021
(1) Compensatory Mitigation for Riparian Buffer Loss. — The Commission shall establish a program to provide alternatives for persons who would otherwise be required to maintain riparian buffers and who can demonstrate that they have attempted to avoid and minimize the loss of the riparian buffer and that there is no practical alternative to the loss of the buffer. This program is intended to allow these persons to perform compensatory mitigation in lieu of complying with laws and rules that require that riparian buffers be protected and maintained. All compensatory mitigation for riparian buffer loss shall be consistent with rules adopted by the Commission for protection and maintenance of riparian buffers.
(1) Compensatory Mitigation for Riparian Buffer Loss. — The Commission shall establish a program to provide alternatives for persons who would otherwise be required to maintain riparian buffers and who can demonstrate that they have attempted to avoid and minimize the loss of the riparian buffer and that there is no practical alternative to the loss of the buffer. This program is intended to allow these persons to perform compensatory mitigation in lieu of complying with laws and rules that require that riparian buffers be protected and maintained. All compensatory mitigation for riparian buffer loss shall be consistent with rules adopted by the Commission for protection and maintenance of riparian buffers. (a1) Compensatory Mitigation Options Available to Government Entities. — A government entity, as defined in G.S. 143-214.11, may satisfy compensatory mitigation requirements by any of the following actions: Payment of a compensatory mitigation fee into the Riparian Buffer Restoration Fund established in G.S. 143-214.21.
(2) Compensatory Mitigation Options Available to Government Entities. - A government entity, as defined in G.S. 143-214.11, may satisfy compensatory mitigation requirements by any of the following actions: Payment of a compensatory mitigation fee into the Riparian Buffer Restoration Fund established in G.S. 143-214.21.
(3) Donation of real property or of an interest in real property to the Department, another State agency, a unit of local government, or a private nonprofit conservation organization if both the donee organization and the donated real property or interest in real property are approved by the Department. The Department may approve a donee organization only if the donee agrees to maintain the real property or interest in real property as a riparian buffer. The Department may approve a donation of real property or an interest in real property only if the real property or interest in real property either: Is a riparian buffer that will provide protection of water quality that is equivalent to or greater than that provided by the riparian buffer that is lost in the same river basin as the riparian buffer that is lost.
(2) Donation of real property or of an interest in real property to the Department, another State agency, a unit of local government, or a private nonprofit conservation organization if both the donee organization and the donated real property or interest in real property are approved by the Department. The Department may approve a donee organization only if the donee agrees to maintain the real property or interest in real property as a riparian buffer. The Department may approve a donation of real property or an interest in real property only if the real property or interest in real property either: Is a riparian buffer that will provide protection of water quality that is equivalent to or greater than that provided by the riparian buffer that is lost in the same river basin as the riparian buffer that is lost.
(4) Will be used to restore, create, enhance, or maintain a riparian buffer that will provide protection of water quality that is equivalent to or greater than that provided by the riparian buffer that is lost in the same river basin as the riparian buffer that is lost.
(3) Will be used to restore, create, enhance, or maintain a riparian buffer that will provide protection of water quality that is equivalent to or greater than that provided by the riparian buffer that is lost in the same river basin as the riparian buffer that is lost.
(5) Restoration or enhancement of an existing riparian buffer that is not otherwise required to be protected, or creation of a new riparian buffer, that will provide protection of water quality that is equivalent to or greater than that provided by the riparian buffer that is lost in the same river basin as the riparian buffer that is lost and that is approved by the Department.
(4) Restoration or enhancement of an existing riparian buffer that is not otherwise required to be protected, or creation of a new riparian buffer, that will provide protection of water quality that is equivalent to or greater than that provided by the riparian buffer that is lost in the same river basin as the riparian buffer that is lost and that is approved by the Department.
(6) Construction of an alternative measure that reduces nutrient loading as well or better than the riparian buffer that is lost in the same river basin as the riparian buffer that is lost and that is approved by the Department.
(5) Construction of an alternative measure that reduces nutrient loading as well or better than the riparian buffer that is lost in the same river basin as the riparian buffer that is lost and that is approved by the Department.
(7) Participation in a compensatory mitigation bank if the Department has approved the bank and the Department approves the use of the bank for the required compensatory mitigation.
(8) Compensatory Mitigation Options Available to Applicants Other than Government Entities. — An applicant other than a government entity, as defined in G.S. 143-214.11, may satisfy compensatory mitigation requirements by any of the following actions: Participation in a compensatory mitigation bank if the Department has approved the bank and the Department approves the use of the bank for the required compensatory mitigation. This option is only available in a hydrologic area, as defined in G.S. 143-214.11, where there is at least one compensatory mitigation bank that has been approved by the Department.
(6) Participation in a compensatory mitigation bank if the Department has approved the bank and the Department approves the use of the bank for the required compensatory mitigation. (a2) Compensatory Mitigation Options Available to Applicants Other than Government Entities. — An applicant other than a government entity, as defined in G.S. 143-214.11, may satisfy compensatory mitigation requirements by any of the following actions: (1) Participation in a compensatory mitigation bank if the Department has approved the bank and the Department approves the use of the bank for the required compensatory mitigation. This option is only available in a hydrologic area, as defined in G.S. 143-214.11, where there is at least one compensatory mitigation bank that has been approved by the Department. (2) Payment of a compensatory mitigation fee into the Riparian Buffer Restoration Fund established in G.S. 143-214.21. This option only is available to an applicant who demonstrates that the option under subdivision (1) of this subsection is not available. (3) Donation of real property or of an interest in real property to the Department, another State agency, a unit of local government, or a private nonprofit conservation organization if both the donee organization and the donated real property or interest in real property are approved by the Department. The Department may approve a donee organization only if the donee agrees to maintain the real property or interest in real property as a riparian buffer. The Department may approve a donation of real property or an interest in real property only if the real property or interest in real property either: Is a riparian buffer that will provide protection of water quality that is equivalent to or greater than that provided by the riparian buffer that is lost in the same river basin as the riparian buffer that is lost.
(9) Payment of a compensatory mitigation fee into the Riparian Buffer Restoration Fund established in G.S. 143-214.21. This option only is available to an applicant who demonstrates that the option under subdivision (1) of this subsection is not available.
(10) Donation of real property or of an interest in real property to the Department, another State agency, a unit of local government, or a private nonprofit conservation organization if both the donee organization and the donated real property or interest in real property are approved by the Department. The Department may approve a donee organization only if the donee agrees to maintain the real property or interest in real property as a riparian buffer. The Department may approve a donation of real property or an interest in real property only if the real property or interest in real property either: Is a riparian buffer that will provide protection of water quality that is equivalent to or greater than that provided by the riparian buffer that is lost in the same river basin as the riparian buffer that is lost.
(7) Will be used to restore, create, enhance, or maintain a riparian buffer that will provide protection of water quality that is equivalent to or greater than that provided by the riparian buffer that is lost in the same river basin as the riparian buffer that is lost. (4) Restoration or enhancement of an existing riparian buffer that is not otherwise required to be protected, or creation of a new riparian buffer, that will provide protection of water quality that is equivalent to or greater than that provided by the riparian buffer that is lost in the same river basin as the riparian buffer that is lost and that is approved by the Department. (5) Construction of an alternative measure that reduces nutrient loading as well as or better than the riparian buffer that is lost in the same river basin as the riparian buffer that is lost and that is approved by the Department.
(11) Will be used to restore, create, enhance, or maintain a riparian buffer that will provide protection of water quality that is equivalent to or greater than that provided by the riparian buffer that is lost in the same river basin as the riparian buffer that is lost.
(12) Restoration or enhancement of an existing riparian buffer that is not otherwise required to be protected, or creation of a new riparian buffer, that will provide protection of water quality that is equivalent to or greater than that provided by the riparian buffer that is lost in the same river basin as the riparian buffer that is lost and that is approved by the Department.
(13) Construction of an alternative measure that reduces nutrient loading as well as or better than the riparian buffer that is lost in the same river basin as the riparian buffer that is lost and that is approved by the Department.
(14) Compensatory mitigation is available for loss of a riparian buffer along an intermittent stream, a perennial stream, or a perennial waterbody.
(8) Compensatory mitigation is available for loss of a riparian buffer along an intermittent stream, a perennial stream, or a perennial waterbody.
(15) The Commission shall establish a standard schedule of compensatory mitigation fees for payments to the Riparian Buffer Restoration Fund pursuant to this section. The compensatory mitigation fee schedule shall be based on the area of the riparian buffer that is permitted to be lost and the cost to provide equivalent or greater protection of water quality in the same river basin as that provided by the riparian buffer this is lost by: Restoration or enhancement of existing riparian buffers.
(9) The Commission shall establish a standard schedule of compensatory mitigation fees for payments to the Riparian Buffer Restoration Fund pursuant to this section. The compensatory mitigation fee schedule shall be based on the area of the riparian buffer that is permitted to be lost and the cost to provide equivalent or greater protection of water quality in the same river basin as that provided by the riparian buffer this is lost by: Restoration or enhancement of existing riparian buffers.
(16) Acquisition of land for and creation of new riparian buffers.
(10) Acquisition of land for and creation of new riparian buffers.
(17) Maintenance and monitoring of restored, enhanced, or created riparian buffers over time.
(11) Maintenance and monitoring of restored, enhanced, or created riparian buffers over time.
(18) Construction of alternative measures that reduce nutrient loading.
(12) Construction of alternative measures that reduce nutrient loading.
(19) The Commission may adopt rules to implement this section.
(13) The Commission may adopt rules to implement this section.
History
(1999-448, s. 1; 2009-337, s. 2.)
Water Quality and Quantity in the Upper Neuse River Basin. - For provisions pertaining to protection and restoration of water quality and quantity in the Upper Neuse River Basin, Falls Lake, and other drinking supply reservoirs pursuant to Session Laws 2009-486, see the notes at G.S. 143-214.1 and G.S. 143-215.
Jordan Lake Riparian Buffer Rules. - The preamble to Session Laws 2013-395, provides: "Whereas, the United States Congress authorized the United States Army Corps of Engineers (USACE) to create what is now the B. Everett Jordan Lake in 1963; and
"Whereas, the USACE submitted a Final Environmental Impact Statement (EIS) in November 1971 that stated, 'Of primary concern is the eutrophic tendency of the lake. Eutrophication is a term used to describe the natural change in productivity of a lake during aging. It is usually a long-term phenomenon, which may be measured in geologic time.... Studies have shown that, assuming that all other elements necessary are available, the amounts of nitrogen and phosphorus presently found in the influent are adequate to produce algae blooms in the lake.'; and
"Whereas, the USACE stated in the EIS, 'Several studies have indicated that the major water quality problem will be associated with anticipated nuisance algal growths resulting from excess nutrients from upstream sources.'; and
"Whereas, the United States Environmental Protection Agency (EPA) commented in the EIS, 'Nutrient concentration in both the Haw River and New Hope River are high, and nuisance algal growth detrimental to water supply and recreation are a virtual certainty.... Impoundment should not take place until there is a strong technical basis for the prediction that nuisance algal growths will not occur.'; and
"Whereas, the USACE, in responding to the EPA's comments in the EIS, stated, '… it is doubtful whether a strong technical basis exists for the prediction that nuisance algal growths will not occur on most existing reservoirs ….'; and
"Whereas, the United States Department of the Interior Bureau of Sport Fisheries and Wildlife commented in the EIS that, 'High nutrient concentrations will intensify and extend water quality problems into the upper surface layers. Therefore, impoundment will create a pollution problem to the detriment of the ecosystem.'; and
"Whereas, the EIS contained a summary of complaints from pending litigation that included, 'Even in the absence of nutrients from wastes, the shallowness … would ensure abnormally heavy algae growths that could not be controlled …. Probably the most serious deficiency of defendants' environmental statement is its de-emphasis on the certainty that the water … will be of exceptionally bad quality.'; and
"Whereas, despite the many inherent challenges of managing the water quality of Jordan Lake, the General Assembly remains committed to addressing issues that affect the water quality of the Lake; and
"Whereas, it is the intent of the General Assembly to continue implementation of current measures to address water quality issues in Jordan Lake; and
"Whereas, it is the intent of the General Assembly to temporarily delay additional implementation of measures to address water quality issues in Jordan Lake in order to allow for further evaluation of those measures and further exploration of other measures and technologies to improve the water quality of the Lake; Now, therefore"
Session Laws 2013-395, s. 2(a)-(e), provides: "(a) The definitions set out in G.S. 143-212 and 15A NCAC 02B.0267 (Jordan Water Supply Nutrient Strategy: Protection of Existing Riparian Buffers) apply to this section. For purposes of this section, "Protection of Existing Riparian Buffers Rule" means 15A NCAC 02B.0267 (Jordan Water Supply Nutrient Strategy: Protection of Existing Riparian Buffers).
"(b) Protection of Existing Riparian Buffers Rule. - Until the effective date of the revised permanent rule that the Commission is required to adopt pursuant to Section 2(d) of this act, the Commission and the Department shall implement the Protection of Existing Riparian Buffers Rule as provided in Section 2(c) of this act.
"(c) Implementation. - The Protection of Existing Riparian Buffers Rule shall be implemented as follows:
"(1) Notwithstanding the Table of Uses set out in subdivision (9) of the Protection of Existing Riparian Buffers Rule, utility, nonelectric, other than perpendicular crossings that have impacts only in Zone Two shall be categorized as exempt.
"(2) Notwithstanding the Table of Uses set out in subdivision (9) of the Protection of Existing Riparian Buffers Rule, the piping of a stream allowed under a permit issued by the United States Army Corps of Engineers shall be categorized as an allowable use.
"(3) Notwithstanding the definition of 'Airport Facilities' set out in sub-subdivision (b) of subdivision (2) of the Protection of Existing Riparian Buffers Rule, "Airport Facilities" shall include any aeronautic industrial facilities that require direct access to the airfield.
"(d) Additional Rule-Making Authority. - The Environmental Management Commission shall adopt a rule to amend 15A NCAC 02B.0267 (Jordan Water Supply Nutrient Strategy: Protection of Existing Riparian Buffers) consistent with Section 2(c) of this act. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of Section 2(c) of this act. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).
"(e) Sunset. - Section 2(c) of this act expires on the date that rules adopted pursuant to Section 2(d) of this act become effective."
For provisions pertaining to Delay Jordan Lake Rules and Jordan Lake Session Laws, see editor's note to Session Laws 2013-395, s. 1(a), (b) under G.S. 143-214.7 and G.S. 143-215.1.
Amend the Protection of Existing Buffers Rules to Exempt Certain Applicability Requirements for Public Safety. - Session Laws 2017-209, s. 9, provides: "(a) Definitions. - 'Protection of Existing Buffers Rules' means all of the following rules for purposes of this section and its implementation:
"(1) Neuse River Basin: Nutrient Sensitive Waters Management Strategy: Protection and Maintenance of Existing Riparian Buffers (15A NCAC 02B.0233).
"(2) Tar-Pamlico River Basin: Nutrient Sensitive Waters Management Strategy: Protection and Maintenance of Existing Riparian Buffers (15A NCAC 02B.0259).
"(3) Randleman Lake Water Supply Watershed: Protection and Maintenance of Existing Riparian Buffers (15A NCAC 02B.0250).
"(4) Jordan Water Supply Nutrient Strategy: Protection of Existing Riparian Buffers (15A NCAC 02B.0267).
"(5) Goose Creek Watershed Water Quality Management Plan (15A NCAC 02B.0605, 15A NCAC 02B.0606, 15A NCAC 02B.0607, 15A NCAC 02B.0608).
"(6) Mitigation Program Requirements for Protection and Maintenance of Riparian Buffers (15A NCAC 02B.0295).
"(7) Catawba River Basin: Protection and Maintenance of Existing Riparian Buffers (15A NCAC 02B.0243).
"(b) Protection of Existing Buffers Rules. - Until the effective date of the revised permanent rules that the Environmental Management Commission is required to adopt pursuant to subsection (d) of this section, the Commission and the Department of Environmental Quality shall implement the Protection of Existing Buffers Rules, as provided in subsection (c) of this section.
"(c) Implementation. - The Commission shall exempt from the applicability requirements of the Protection of Existing Buffers Rules any publicly owned spaces where it has been determined by the head of the local law enforcement agency with jurisdiction over that area that the buffers pose a risk to public safety.
"(d) Additional Rule-Making Authority. - The Commission shall adopt rules to amend the Protection of Existing Buffers Rules consistent with subsection (c) of this section. Notwithstanding G.S. 150B-19(4), the rules adopted by the Commission, pursuant to this section, shall be substantively identical to the provisions of subsection (c) of this section. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).
"(e) Sunset. - This section expires when permanent rules adopted as required by subsection (d) of this section become effective."
Amend the Rule for Protection and Maintenance of Existing Buffers in the Catawba River Basin to Exempt Certain Applicability of Walking Trails. - Session Laws 2017-209, s. 10(a)-(e), provides: "(a) Definitions. - 'Protection and Maintenance of Existing Riparian Buffers Rule' means 15A NCAC 02B.0243 (Catawba River Basin: Protection and Maintenance of Existing Riparian Buffers) for purposes of this section and its implementation.
"(b) Protection and Maintenance of Existing Riparian Buffers Rule. - Until the effective date of the revised permanent rule that the Environmental Management Commission is required to adopt pursuant to subsection (d) of this section, the Commission and the Department of Environmental Quality shall implement the Protection and Maintenance of Existing Riparian Buffers Rule, as provided in subsection (c) of this section.
"(c) Implementation. - The Commission shall exempt from the applicability requirements of the Protection and Maintenance of Existing Riparian Buffers Rule any publicly owned property that will be used for walking trails.
"(d) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend the Protection and Maintenance of Existing Riparian Buffers Rule consistent with subsection (c) of this section. Notwithstanding G.S. 150B-19(4), the rule adopted by the Commission, pursuant to this section, shall be substantively identical to the provisions of subsection (c) of this section. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2).
"(e) Sunset. - This section expires when permanent rules adopted as required by subsection (d) of this section become effective."
Riparian Buffer Tax Exclusion Study. - Session Laws 2017-209, s. 11(a)-(b), provides: "(a) The Fiscal Research Division of the North Carolina General Assembly is directed to estimate the value of property that is subject to the following riparian buffer rules and the value of property that is being used as a riparian buffer under these rules for each county within the affected river basins:
"(1) Neuse River Basin: Nutrient Sensitive Waters Management Strategy: Protection and Maintenance of Existing Riparian Buffers (15A NCAC 02B.0233).
"(2) Tar-Pamlico River Basin: Nutrient Sensitive Waters Management Strategy: Protection and Maintenance of Existing Riparian Buffers (15A NCAC 02B.0259).
"(3) Randleman Lake Water Supply Watershed: Protection and Maintenance of Existing Riparian Buffers (15A NCAC 02B.0250).
"(4) Jordan Water Supply Nutrient Strategy: Protection of Existing Riparian Buffers (15A NCAC 02B.0267).
"(5) Goose Creek Watershed Water Quality Management Plan (15A NCAC 02B.0605, 15A NCAC 02B.0606, 15A NCAC 02B.0607, 15A NCAC 02B.0608).
"(6) Mitigation Program Requirements for Protection and Maintenance of Riparian Buffers (15A NCAC 02B.0295).
"(7) Catawba River Basin: Protection and Maintenance of Existing Riparian Buffers (15A NCAC 02B.0243).
"(b) No later than May 1, 2018, the Fiscal Research Division shall report its estimates and analysis to the Environmental Review Commission and the Revenue Laws Study Committee."

Official source: North Carolina General Assembly. Reproduced from public-domain North Carolina statutes; confirm against the official source for the current text. Not legal advice.