8.5.10 No Practical Alternatives/Authorization Certificate
A. A person 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, 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, 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 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 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.