8.5.11 Mitigation

Mitigation is required where: 1) a person wishes to undertake a use designated as allowable with mitigation and has obtained a “no practical alternatives” determination; and 2) a person is required to perform mitigation as a condition of variance 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.

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 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 pursuant to paragraph E, Riparian Buffer Restoration or Enhancement, below; or

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 Division.

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

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

c. The area of any ongoing maintenance corridors within the riparian buffer 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. Impacts to the inner 30 feet of the riparian buffer shall be multiplied by three;

b. Impacts to the outer 20 feet of the riparian buffer shall be multiplied by one and one-half; and

c. Impacts to wetlands within those two portions 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.

1. Within the Falls Reservoir Watershed, mitigation shall be located within the Upper Falls Watershed, 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 provided that the mitigation proposal accounts for differences in delivery of nutrients to the Upper Falls Watershed resulting from differences between the locations of the buffer impact and mitigation.

2. Within the Jordan Reservoir Watershed, 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 impact and mitigation.

3. In any location, mitigation of riparian buffer loss in the watershed of a drinking water supply shall be performed in the watershed 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.

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 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 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 and Riparian Restoration Plan (within the Neuse River Basin) or its Basinwide Wetlands and Riparian Restoration Plan for the Cape Fear River Basin (outside of the Neuse River Basin), both developed pursuant to NCGS 143-214.10;

b. 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 paragraph E.4 below;

c. 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 measured horizontally on a line perpendicular to the surface water;

d. The size of the restorable riparian buffer 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, 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;

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

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

c. 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";

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 as identified by the Appraisal Board in the "Uniform Standards of Professional North Carolina Appraisal Practice"; and

e. A title certificate.

Mitigation through riparian buffer restoration or enhancement shall meet the following requirements:

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

a. The area of riparian buffer restoration is equal to the required area of mitigation determined pursuant to paragraph B, Mitigation Area, above; or

b. The area of riparian buffer 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 restoration or enhancement shall comply with the requirements of paragraph C, Mitigation Location, above;

3. The riparian buffer 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 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. Enhancement shall be distinguished from restoration based on existing buffer 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 shall be enhanced. Where existing woody vegetation is absent, meaning less than 100 trees per acre, a buffer 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 sufficient to provide 320 trees per acre at maturity with at least 50% of those trees having the potential of attaining a two and one-half inch or greater dbh within seven years. All selected species must be native to the North Carolina Piedmont region;

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

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 has been restored or enhanced. If proof is not presented within this timeframe, the applicant shall be in violation of both the State and local riparian buffer protection programs;

7. The mitigation area shall be placed under a perpetual conservation easement 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 has been maintained. The applicant shall replace trees that do not survive and restore diffuse flow if needed during that five-year period.