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A. General

This section shall not apply to the portion of a riparian buffer occupied by the footprint of a legal existing and ongoing use. An existing and ongoing use is a use that was present within the riparian buffer as of July 22, 1997 within the Neuse River Basin, or as the effective date of this section outside of the Neuse River Basin, and has continued to exist since that time. Such uses may include but are not limited to agriculture, buildings, industrial facilities, commercial areas, transportation facilities, maintained lawns, utility lines and on-site sanitary sewage systems. A use that converts from an existing and ongoing use to another use shall no longer be exempt. Conversion includes but is not limited to changing an agricultural operation to non-agricultural use, failing to maintain a lawn, or failing to meet the criteria specified below for activities allowed.

B. Exemption Maintained

The following activities do not convert an existing and ongoing use to another use:

1. Activities necessary to maintain a use provided that no impervious surface is added to the riparian buffer where it did not exist as of the applicable date, existing diffuse flow is maintained, and either 1) outside of the Neuse River Basin, the site remains similarly vegetated, or 2) within the Neuse River Basin, no additional vegetation is removed except that grazed or trampled by livestock;

2. Grading and revegetating of the outer 20 feet of a buffer that is not located in a watershed protection overlay, provided that the health of the vegetation in the inner 30 feet of the buffer is not compromised, the ground is stabilized and existing diffuse flow is maintained; or

3. Outside of the Neuse River Basin, change of ownership through purchase or inheritance.

C. Outside the Neuse River Basin

Outside of the Neuse River Basin, a project that meets at least one of the following criteria is also existing and ongoing:

1. The project requires a 401 Certification and 404 Permit and they were issued prior to the effective date of this section;

2. The project requires a state permit (e.g., landfill, National Pollutant Discharge Elimination System (NPDES) wastewater discharge, land application of residuals, road construction activity), has started construction or is under contract to start construction, and received all required state permits and certifications prior to the effective date of this section;

3. The project is reviewed through the Clean Water Act Section 404/National Environmental Policy Act Merger 01 Process or its immediate successor and reached agreement with the NC Department of Environmental Quality on avoidance and minimization prior to the effective date of this section; or

4. The project can avoid review under the Clean Water Act Section 404/National Environmental Policy Act Merger 01 Process or its immediate successor due to a Finding of No Significant Impact and received written approval from the City or County as appropriate prior to the effective date of this section.

D. Development of Existing Single-Family Lots within the Neuse River Basin under Certain Conditions

1. Applicability

Where application of the Neuse River Basin riparian buffer requirements would preclude construction of a single-family residence and necessary infrastructure, such as an on-site wastewater system, the single-family residence may encroach into the buffer if all of the following criteria are met.

a. The lot was platted and recorded prior to August 1, 2000.

b. The lot area is two acres or less.

c. The lot is adjacent to the buffered surface waters.

d. The lot is not within a watershed protection overlay, or the lot is within a watershed protection overlay but was recorded prior to the effective date of the applicable watershed protection overlay.

2. If documentation demonstrates the lot meets all of the above criteria, then a single-family residence can encroach into the buffer with the following conditions:

a. The residence is set back the maximum feasible distance from the top of the bank, rooted herbaceous vegetation, normal high-water level, or normal water level, whichever is applicable, on the existing lot and designed to minimize encroachment into the riparian buffer;

b. The residence is set back a minimum of 30 feet landward of the top of the bank, rooted herbaceous vegetation, normal high-water level, or normal water level, whichever is applicable;

c. Stormwater generated by new impervious surface within the riparian buffer is treated, and diffuse flow of stormwater is maintained through the buffer; and

d. If the residence will be served by an on-site wastewater system, no part of the septic tank or drain field shall encroach into the riparian buffer.

3. Prior to the issuance of a building permit, a buffer authorization is required for any encroachments into the riparian buffer.