8.5.9 Uses

A. 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.

B. No new clearing, grading, or development shall take place nor shall any new building permits be issued in violation of this section. Parties subject to this section shall abide by all state rules and laws regarding waters of the state including but not limited to 15A NCAC 2B .0230 and .0231, 15A NCAC 2H .0500, 15A NCAC 2H .1300, and Sections 401 and 404 of the Federal Water Pollution Control Act.

C. Buildings and other features that require grading and construction shall be set back at least ten feet from the edge of the riparian buffer. When an encroachment into a riparian buffer is permitted either by right, through required authorization, or from approval of a variance, grading and construction necessary for that encroachment shall be allowed within the set back.

D. Any use authorized by this section shall be designed, constructed and maintained to minimize the amount of intrusion into the riparian buffer and to minimize clearing, grading, erosion, water quality degradation, and damage to vegetation.

E. Where any use involves temporary land clearing, revegetation shall occur pursuant to an approved vegetation plan. Such 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 Caorlina Piedmont region.

An exempt use may occur without authorization provided it adheres to the limitations contained in the Table of Uses below. In addition, an exempt use shall be designed, constructed, maintained and monitored to minimize soil disturbance and maximize water quality protection.

An allowable use requires written authorization from the North Carolina Division of Water Resources, City, or County as appropriate and may occur following a finding of “no practical alternatives” and issuance of an Authorization Certificate pursuant to paragraph 8.5.10, No Practical Alternatives/Authorization Certificate.

An allowable with mitigation use requires written authorization from the North Carolina Division of Water Resources, City, or County as appropriate and may occur following a finding of “no practical alternatives” and issuance of an Authorization Certificate pursuant to paragraph 8.5.10, No Practical Alternatives/Authorization Certificate, and approval of a mitigation strategy pursuant to paragraph 8.5.11, Mitigation.

The following table sets out potential new uses within the riparian buffer, or outside of the buffer with impacts upon the buffer, and categorizes them as exempt, allowable, or allowable with mitigation. The requirements for each category are contained in paragraph F, Use Category Requirements, above. All uses not categorized as exempt, allowable, or allowable with mitigation are prohibited and may not occur within the riparian buffer or outside of the riparian buffer with impacts on the buffer unless a variance is obtained pursuant to paragraph 8.5.12, Variances. Uses include construction, monitoring, and maintenance activities.

Use	Category
Key (see paragraph 8.5.9F, Use Category Requirements): E = Exempt; A = Allowable; AM = Allowable with Mitigation; X or not listed = Prohibited; NA = Not applicable
Outside of the Neuse River Basin, access trails: pedestrian access trails leading to the surface water, docks, fishing piers, boat ramps, overlooks, view points, and other water dependent activities:
• Pedestrian access trails that are restricted to the minimum width practicable and do not exceed four feet in width of buffer disturbance, and provided that installation and use does not result in removal of any tree and no impervious surface is added to the riparian buffer.	E
• Pedestrian access trails that exceed four feet in width of buffer disturbance, the installation or use results in removal of any tree or impervious surface is added to the riparian buffer.	A
Airport facilities:
• Airport facilities that impact equal to or less than 150 linear feet or one-third of an acre of riparian buffer.	X
• Airport facilities that impact greater than 150 linear feet or one-third of an acre of riparian buffer.	X
• Outside of the Neuse River Basin, activities necessary to comply with FAA requirements (e.g. radar uses or landing strips).¹	A
Archaeological activities not covered by another specific use.	E
Bridges not covered by another specific use.	A
Outside of the Neuse River Basin, canoe access provided that installation and use does not result in removal of any tree and no impervious surface is added to the buffer.	E
Dam maintenance activities:
• Dam maintenance activities that do not cause additional buffer disturbance beyond the footprint of the existing dam or those covered under the U.S. Army Corps of Engineers Nationwide Permit No. 3.	E
• Dam maintenance activities that do cause additional buffer disturbance beyond the footprint of the existing dam or those not covered under the U.S. Army Corps of Engineers Nationwide Permit No. 3.	A
Drainage ditches, roadside ditches and stormwater conveyances through riparian buffers:
• New stormwater flows to existing drainage ditches, roadside ditches, and stormwater conveyances provided flows do not alter or result in the need to alter the conveyance and are managed to minimize the sediment, nutrients and other pollution that convey to waterbodies.	E
• Outside of the Neuse River Basin, realignment of existing roadside drainage ditches retaining the design dimensions, provided that no additional travel lanes are added and the minimum required roadway typical section is used based on traffic and safety considerations.	A
• New (or altered if outside of the Neuse River Basin) drainage ditches, roadside ditches and stormwater outfalls provided that a stormwater management facility is installed to control nutrients as directed by the appropriate jurisdiction and attenuate flow before the conveyance discharges through the riparian buffer.	A
• New drainage ditches, roadside ditches and stormwater conveyances applicable to linear projects that do not provide a stormwater management facility due to topography constraints provided that other practicable BMPs are employed.	AM
Driveway crossings of streams and other surface waters subject to this section:
• Driveway crossings on single family residential lots that disturb equal to or less than 25 linear feet or 2,500 square feet of riparian buffer.	A
• Driveway crossings on single family residential lots that disturb greater than 25 linear feet or 2,500 square feet of riparian buffer.	A
• In a subdivision that cumulatively disturb equal to or less than 150 linear feet or one-third of an acre of riparian buffer.	A
• In a subdivision that cumulatively disturb greater than 150 linear feet or one-third of an acre of riparian buffer.	AM
• Outside of the Neuse River Basin, driveway impacts other than crossing of a stream or other surface waters subject to this section.	AM
Fences:
• Fences on single-family lots provided that disturbance is minimized and installation does not result in removal of any tree (or, within the Neuse River Basin, forest vegetation).	X
• Fences on lands other than single-family lots provided that disturbance is minimized and installation does not result in removal of any tree (or, within the Neuse River Basin, forest vegetation)	X
• Outside of the Neuse River Basin, fences provided that disturbance is minimized and installation results in removal of any tree.	X
Fertilizer application: one-time application only, to establish vegetation.	E
Forest harvesting as regulated by the State of North Carolina pursuant to 15A NCAC 02B .0233 and 15A NCAC 02B .0267.	Per State Regulation
Greenway / hiking trails designed, constructed and maintained to maximize nutrient removal and erosion protection, minimize adverse effects on aquatic life and habitat, and protect water quality to the maximum extent practical.	A
Historic preservation not covered by another specific use.	E
Landscaping of the outer 20 feet of a riparian buffer in the Urban, Compact Neighborhood, or Downtown Tier that is not located in a watershed protection overlay in accordance with an approved City or County revegetation plan.	E
Maintenance access on modified natural streams: a grassed travel way on one side of the water body when less impacting alternatives are not practical. The width and specifications of the travel way shall be only that needed for equipment access and operation. The travel way shall be located to maximize stream shading.	A
Mining activities:
• Mining activities that are covered by the Mining Act provided that new riparian buffers that meet the requirements of this section are established adjacent to the relocated channels.	A
• Mining activities that are not covered by the Mining Act OR where new riparian buffers that meet the requirements of this section are not established adjacent to the relocated channels.	AM
• Wastewater or mining dewatering wells with approved NPDES permit.	E
Playground equipment:
• Playground equipment on single family lots that exist as of adoption of this section provided that installation and use does not result in removal of vegetation.	E
• Playground equipment installed on lands other than single-family lots or that requires removal of vegetation.	X
Within the Neuse River Basin, ponds in natural drainage ways, excluding dry ponds; outside of the Neuse River Basin, ponds created by impounding streams and not used as stormwater BMPs:
• New ponds provided that a riparian buffer that meets the requirements of this section is established adjacent to the pond.	A
• New ponds where a riparian buffer that meets the requirements of this section is NOT established adjacent to the pond.	AM
Protection of existing structures, facilities and stream banks when this requires additional disturbance of the riparian buffer or the stream channel.	A
Railroad impacts other than crossings of streams and other surface waters subject to this section.	AM
Railroad crossings of streams and other surface waters subject to this section:
• Railroad crossings that impact equal to or less than 40 linear feet of riparian buffer.	A
• Railroad crossings that impact greater than 40 linear feet but equal to or less than 150 linear feet or one-third of an acre of riparian buffer.	A
• Railroad crossings that impact greater than 150 linear feet or one-third of an acre of riparian buffer.	AM
Removal of previous fill or debris provided that diffuse flow is maintained and vegetation is restored.	A
Road impacts other than crossings of streams and other surface waters subject to this section.	AM
Road crossings of streams and other surface waters subject to this section:
• Road crossings that impact equal to or less than 40 linear feet of riparian buffer.	A
• Road crossings that impact greater than 40 linear feet but equal to or less than 150 linear feet or one-third of an acre of riparian buffer.	A
• Road crossings that impact greater than 150 linear feet or one-third of an acre of riparian buffer.	AM
Outside of the Neuse River Basin, road relocation: Relocation of existing private access roads associated with public road projects where necessary for public safety:
• Less than or equal to 2,500 square feet of buffer impact.	A
• Greater than 2,500 square feet of buffer impact.	AM
Scientific studies and stream gauging.	E
Within the Neuse River Basin, stormwater management ponds excluding dry ponds:
• New stormwater management ponds provided that a riparian buffer that meets the requirements of this section is established adjacent to the pond.	A
• New stormwater management ponds where a riparian buffer that meets the requirements of this section is not established adjacent to the pond.	AM
Outside of the Neuse River Basin, stormwater BMPs:
• Wet detention, bioretention, and constructed wetlands.	AM
Streambank or, outside of the Neuse River Basin, shoreline stabilization.	A
Temporary roads, provided that the disturbed area is restored to pre-construction topographic and hydrologic conditions immediately after construction is complete and replanted immediately with comparable vegetation, except that tree planting may occur during the dormant season. A one-time application of fertilizer may be used to establish vegetation. At the end of five years the restored buffer shall comply with the restoration criteria of paragraph 8.5.11E, Riparian Buffer Restoration or Enhancement.
• Less than or equal to 2,500 square feet of buffer disturbance and not perpendicular to the stream.	X
• Greater than 2,500 square feet of buffer disturbance and not perpendicular to the stream.	X
• Associated with culvert installation outside of the Neuse River Basin or bridge construction or replacement and not perpendicular to the stream	X
• Perpendicular to the stream	A
Temporary sediment and erosion control devices, provided that the disturbed area is restored to pre-construction topographic and hydrologic conditions immediately after construction is complete and replanted immediately with comparable vegetation, except that tree planting may occur during the dormant season. A one-time application of fertilizer may be used to establish vegetation. At the end of five years the restored buffer shall comply with the restoration criteria of paragraph 8.5.11E, Riparian Buffer Restoration or Enhancement.
• To control impacts associated with uses approved by the appropriate jurisdiction or that have received a variance, provided that sediment and erosion control for upland areas is addressed to the maximum extent possible, outside the buffer.	A
• In-stream temporary erosion and sediment control measures for work within a stream channel that is authorized under Sections 401 and 404 of the Federal Water Pollution Control Act.	A
• In-stream temporary erosion and sediment control measures for work within a stream channel.	A
Utility, electric, aerial, perpendicular crossings of streams and other surface waters subject to this section:²^,³^,⁵
• Disturb equal to or less than 150 linear feet of riparian buffer.	E
• Disturb greater than 150 linear feet of riparian buffer.	A
Utility, electric, aerial, other than perpendicular crossings:²^,³^,⁵	AM
Utility, electric, underground, perpendicular crossings:³^,⁴^,⁵
• Disturb less than or equal to 40 linear feet of riparian buffer.	E
• Disturb greater than 40 linear feet of riparian buffer.	A
Utility, electric, underground, other than perpendicular crossings:¹^,⁴	E
Utility, non-electric, perpendicular crossings of streams and other surface waters subject to this section:³^,⁵
• Disturb equal to or less than 40 linear feet of riparian buffer with a maintenance corridor equal to or less than 10 feet in width.	A
• Disturb equal to or less than 40 linear feet of riparian buffer with a maintenance corridor greater than 10 feet in width.	A
• Disturb greater than 40 linear feet but equal to or less than 150 linear feet of riparian buffer with a maintenance corridor equal to or less than 10 feet in width.	A
• Disturb greater than 40 linear feet but equal to or less than 150 linear feet of riparian buffer with a maintenance corridor greater than 10 feet in width.	AM
• Disturb greater than 150 linear feet of riparian buffer.	AM
Utility, non-electric, other than perpendicular crossings.¹^,⁴^,⁵	AM
Vegetation management, pursuant to applicable City or County guidelines.
• Emergency fire control measures provided that topography is restored.	E
• Planting vegetation to enhance the riparian buffer.	E
• Pruning forest vegetation provided that the health and function of the forest vegetation is not compromised.	E
• Removal of individual trees that are in danger of causing damage to dwellings, other structures or human life, or outside of the Neuse River Basin, are imminently endangering stability of the streambank.	E
• Outside of the Neuse River Basin, removal of individual trees that are dead, diseased or damaged.	E
• Removal of poison ivy.	E
• Removal of either 1) within the Neuse River Basin, understory nuisance vegetation, or 2) outside of the Neuse River Basin, invasive exotic vegetation, both as defined in:	E
Smith, Cherri L. 1998. Exotic Plant Guidelines. Dept. of Environment and Natural Resources. Division of Parks and Recreation. Raleigh, NC. Guideline #30.
• Outside of the Neuse River Basin, vehicular access roads leading to water-dependent structures as defined in 15A NCAC 02B .0202, provided they do not cross the surface water and have minimum practicable width not exceeding ten feet.	A
• Water dependent structures as defined in 15A NCAC 02B .0202, including their installation, maintenance, use, and removal.	A
Water supply reservoirs:
• New reservoirs where a riparian buffer that meets the requirements of this section is established adjacent to the reservoir.	A
• New reservoirs where a riparian buffer that meets the requirements of this section is not established adjacent to the reservoir.	AM
Water wells
• Single family residential water wells.	E
• All other water wells.	A
Wetland, stream and, outside of the Neuse River Basin, buffer restoration:
• Wetland, stream and buffer restoration that requires NC Division of Water Resources approval for the use of a 401 Water Quality Certification.	E
• Wetland, stream and buffer restoration that does not require Division of Water Resources approval for the use of a 401 Water Quality Certification.	A
Outside of the Neuse River Basin, wildlife passage structures.	A

1Provided that:

• No heavy equipment is used.

• Vegetation in undisturbed portions of the buffer is not compromised.

• Felled trees are removed by chain.

• No permanent felling of trees occurs in protected buffers or streams.

• Stumps are removed only by grinding.

• At the completion of the project the disturbed area is stabilized with native vegetation.

• The buffer meets the requirements of paragraph 8.5.5, Diffuse Flow Requirements.

2Provided that all of the following BMPs for overhead utility lines are used. If all of these BMPs are not used, then the overhead utility lines shall require a no practical alternative evaluation.

• A minimum zone of 10 feet wide immediately adjacent to the water body shall be managed such that only vegetation that poses a hazard or has the potential to grow tall enough to interfere with the line is removed.

• Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed.

• Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain where trees are cut.

• Riprap shall not be used unless it is necessary to stabilize a tower.

• No fertilizer shall be used other than a one-time application to re-establish vegetation.

• Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area, and the time in which areas remain in a disturbed state.

• Active measures shall be taken after construction and during routine maintenance to ensure diffuse flow of stormwater through the buffer.

In wetlands, mats shall be utilized to minimize soil disturbance.

3Provided that poles or aerial infrastructure, including towers, shall not be installed within 10 feet of a water body absent a no practical alternative evaluation.

4Provided that all of the following BMPs for underground utility lines are used. If all of these BMPs are not used, then the underground utility line shall require a no practical alternative evaluation.

• Woody vegetation shall be cleared by hand. No land grubbing or grading is allowed.

• Vegetative root systems shall be left intact to maintain the integrity of the soil. Stumps shall remain, except in the trench where trees are cut.

• Underground cables shall be installed by vibratory plow or trenching.

• The trench shall be backfilled with the excavated soil material immediately following cable installation.

• No fertilizer shall be used other than a one-time application to re-establish vegetation.

• Construction activities shall minimize the removal of woody vegetation, the extent of the disturbed area, and the time in which areas remain in a disturbed state.

• Active measures shall be taken upon completion of construction and during routine maintenance to ensure diffuse flow of stormwater through the buffer.

In wetlands, mats shall be utilized to minimize soil disturbance.

5Perpendicular crossings are those that intersect the surface water at an angle between 75 degrees and 105 degrees.