The purpose of this article is to establish minimum criteria to control and minimize quantitative and qualitative impacts of stormwater runoff from development within the county, a nutrient management program for new development in accordance with 15A NCAC 2B .0235 Neuse River Basin - Nutrient Sensitive Waters Management Strategy: Basinwide Stormwater Requirements and to establish regulations to provide additional protection within the environmentally sensitive area district (ES). Further, prudent site planning should include special consideration for the purposes of preserving natural drainageways, maximizing infiltration, and slowing stormwater runoff from individual sites en route to streams and rivers by use of effective runoff management, structural and nonstructural best management practices, drainage structures, and stormwater facilities.

(Ord. of 7-10-2000, § 9.1; Ord. of 1-2-2001, § 9.1)

   The provisions of this article shall apply to all areas within the planning jurisdictional limits of the county. The provisions of the environmentally sensitive area district shall apply to those areas defined and established on the map entitled "Environmentally Sensitive Areas of Johnston County, North Carolina."

(Ord. of 7-10-2000, § 9.2; Ord. of 1-2-2001, § 9.2)

   The provisions of this article shall not apply to:

   (1)   Developers/property owners that can demonstrate that they have vested rights as of the adoption date of the revised stormwater ordinance from which this article is derived shall be exempt from the revised stormwater ordinance.

   (2)   Exemption from storm attenuation. Developments that meet one of the following requirements shall be exempt from storm attenuation:

      a.   The increase in peak flow between pre- and post-development conditions does not exceed ten percent; or

      b.   The proposed development meets all of the following criteria: overall impervious surface is less than 15 percent outside the ES and 12 percent inside the ES, and the pervious portions of the site are utilized to the extent practical to convey and control stormwater runoff.

   Nutrient management and/or reduction shall still be required.

(Ord. of 7-10-2000, § 9.2.1; Ord. of 1-2-2001, § 9.2.1)

   The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

   Applicant means an owner or developer of a site who executes the stormwater permit application pursuant to this article and is considered the applicant.

   Best management practices (BMPs) means a wide range of practices that have been demonstrated to effectively manage the quality and/or quantity of stormwater runoff and which are compatible with the planned land use. BMPs can be structural (detention ponds, wetlands, etc.) or nonstructural (reduced road pavement width, cluster development, etc.).

   Channel bank means the location of the upper edge of the active channel above which the water spreads into the overbanks on either side of the channel or the elevation of the two-year frequency storm. Where the channel bank is not well defined, the channel bank shall be considered the edge of the waterline.

   Design storm means the specific frequency and, if necessary, duration of the rainfall event to be used in design to meet the criteria established in the stormwater design manual.

   Development means any of the following actions taken by a public or private individual or entity:

   (1)   The division of a lot, tract or parcel of land into two or more lots, plots, sites, tracts, parcels or other divisions by plat or deed; or

   (2)   Any land change, including, without limitation, clearing, tree removal, grubbing, stripping, dredging, grading, excavating, transporting and filling of land.

   Drainage structures include swales, channels, storm sewers, curb inlets, yard inlets, culverts and other structures designed to convey stormwater.

   Existing development means an individual nonresidential site with site plan approval by the planning department or a nonresidential or residential subdivision with preliminary subdivision approval from the planning board.

   Illegal discharge means any unlawful disposal, placement, emptying, dumping, spillage, leakage, pumping, pouring, or other discharge of any substance other than stormwater into a stormwater conveyance system, the waters of the state or upon the land such that the substance is likely to reach a stormwater conveyance system or waters of the state and constitutes an illegal discharge.

   Impervious surface means a surface composed of any material that impedes or prevents natural infiltration of water into the soil. Gravel areas shall be considered impervious.

   Land disturbance means removal of topsoil, grubbing, stump removal and/or grading.

   Natural drainageway means an incised channel with a defined channel bed and banks that are part of the natural topography. Construction channels such as drainage ditches shall not be considered a natural drainageway unless the constructed channel was a natural drainageway that has been relocated, widened, or otherwise improved.

   New development means as follows:

   (1)   Any activity that disturbs more than one acre of land or creates more than 17,000 square feet of impervious surfaces for a single-family or duplex residential development, recreational facility, or multifamily, institutional, commercial or industrial development; and

   (2)   New development shall not include mining, agricultural or forestry activities.

   Riparian buffer means an area of trees, shrubs, or other forest vegetation, that is adjacent to surface waters. For purposes of this article, surface water shall be present if the feature is approximately shown on either the most recent version of the county soil survey report prepared by the NRCS or the most recent version of the 1:24,000 scale (7.5 min.) quadrangle topographic maps prepared by the United States Geological Survey. Riparian buffers adjacent to surface waters that do not appear on either of the maps shall not be subject to this article, except as noted in section 14-103.

   Stormwater means flow resulting from and occurring after any form of precipitation.

   Stormwater administrator means the person designated by the county manager to have authority to review and approve stormwater permits and stormwater management plans. The stormwater administrator shall also be responsible for inspecting development and enforcing the provisions of this article.

   Stormwater conveyance system or structure means any feature, natural or manmade, that collects and transports stormwater, including, but not limited to, roadways with collection systems, catch basins, manmade and natural channels, streams, pipes and culverts, and any other structure or system designed to transport runoff.

   Stormwater design manual means the manual of design, performance, and review criteria adopted by the board of commissioners for the administration of the stormwater program.

   Vegetative buffer means an area that has a dense ground cover of herbaceous or woody species, which provides for diffusion and infiltration of runoff and filtering of pollutants.

   Vested rights for stormwater shall be based upon the following criteria:

   (1)   Having an outstanding valid building permit in compliance with G.S. 160D-108 and 160D-108.1; or

   (2)   Having an approved site specific or phased development plan in compliance with G.S. 160D-108 and 160D-108.1.

Projects that require a state permit, such as landfills, NPDES wastewater discharges, land application or residuals and road construction activities, shall be considered to have vested rights if a state permit was issued prior to the effective date of the adoption of the revised stormwater ordinance from which this article is derived.

(Ord. of 7-10-2000, § 9.3; Ord. of 1-2-2001, § 9.3; Amend. of - - )

   Cross reference—Definitions generally, § 1-2.

   In interpreting and applying this article, the requirements are intended to be minimum requirements, which are imposed and are to be conformed to, and are in addition to, and not in lieu of, all other legal requirements. This section shall not be deemed to interfere with or annul or otherwise affect in any manner whatsoever any ordinance, rule, regulation, permit, or easement, covenant, or other agreement between parties; provided, however, where this article imposes greater restrictions and controls with respect to stormwater management, the provisions of this article shall prevail.

(Ord. of 1-2-2001, § 9.4)

   (a)   Violations. Whenever, by the provisions of this article, the performance of any act is required, or the performance of any act is prohibited, or whenever any regulation or limitation is imposed on the use of any land, or on the erection, alteration, or the use or change of use of a structure, a failure to comply with such provisions shall constitute a violation of this article. The owner, tenant, or occupant of any land or structure, or part thereof, and any architect, engineer, builder, contractor, agent, or other person who participates in, assists, directs, creates, or maintains any situation that is contrary to the requirements of this article may be held responsible for the violation and be subject to the penalties and remedies provided in this section. Failure to follow an approved stormwater management plan or permit shall constitute a violation of this article and shall be subject to the penalties and remedies provided in this article.

   (b)   Procedures upon discovery of violations. Procedures upon discovery of violations of this article shall be as follows:

   (1)   Upon determination that any provision of this article is being violated, the stormwater administrator shall deliver a written notice by personal service or by registered or certified mail, return receipt requested, to the person responsible for such violation, indicating the nature of the violation, ordering the action necessary to correct it and outlining the timeframe for gaining compliance. Additional written notices may be sent at the stormwater administrator's discretion.

   (2)   The final written notice, which may also be the initial notice, shall state the enforcement action the county intends to take if the violation is not corrected, and shall advise that the stormwater administrator's order may be appealed to the board of adjustment as provided in article XI of this chapter.

   In cases when delay would seriously threaten the effective enforcement of this article, or pose a danger to the public health, safety, or general welfare, the stormwater administrator may seek enforcement without prior written notice by invoking any of the penalties or remedies contained in this section.

   (c)   Penalties and remedies. Penalties and remedies for a violation of this article shall be as follows:

   (1)   Any violation of any provision of any section of this article shall constitute a misdemeanor and shall subject the violator to a penalty of $500.00 and/or imprisonment for not more than 30 days.

   (2)   Development that begins land disturbing activities prior to obtaining a stormwater management permit shall also be subject to a one-time $1,000.00 penalty.

   (3)   Illegal discharge. Any designer, engineer, consultant, contractor or person that allows, acts in concert, participates, directs or assists directly or indirectly in an illegal discharge shall be subject to civil penalties as follows:

      a.   For first time offenders if the quantity of the discharge is equal to or less than five gallons and consists of domestic or household products, such person shall be assessed a civil penalty not to exceed $100.00 per violation or per day for any continuing violation. If the quantity of the discharge is greater than five gallons or contains nondomestic substances or if the person cannot provide clear and convincing evidence of the volume and nature of the substance discharged, such person shall be assessed a civil penalty not to exceed $1,000.00 per violation or per day for any continuing violation.

      b.   For repeat offenders, the amount of the penalty shall be double the amount assessed for the previous penalty, not to exceed $10,000.00 per violation or per day for any continuing violation.

      c.   The county manager or his designee shall take the following into consideration when determining the civil penalty amount:

         1.   The degree and extent of harm to the environment, public health, and property;

         2.   The cost of remedying the damage;

         3.   The willfulness of the violation;

         4.   The duration of the violation;

         5.   The violator's prior record in complying or failing to comply with this article; and

         6.   The amount of money saved by the violator by noncompliance.

   If the offender fails to pay the penalty within ten days of receiving final written notice of a violation, the county in a civil action may recover the penalty. A civil penalty may not be appealed to the board of adjustment if the offender received a final written notice of violation and did not appeal to the board of adjustment within 30 days. Each day that any violation continues after receipt of the final written notice of such violation shall constitute a separate violation and a separate offense for purposes of the penalties and remedies specified in this section. In addition to the penalties and remedies of this section, the county may institute any appropriate action or proceedings to prevent, restrain, correct, or abate a violation of this article.

(Ord. of 1-2-2001, § 9.13)

   Stormwater shall be conveyed from a development in an adequately designed drainage system of natural drainageways, grass swales, storm sewers, culverts, inlets, and channels. Drainage systems shall be designed, constructed, and maintained to encourage natural infiltration, control velocity, control flooding, and extend the time of concentration of stormwater runoff. The post-development runoff rate for the one-year storm event shall be attenuated to the predevelopment runoff rate for the one-year storm. The nitrogen loading contributed by new development shall be restricted to 3.6 pounds of nitrogen per acre per year. Methodologies for determining nitrogen loading are outlined in the stormwater design manual. A developer has the option of offsetting the nitrogen loading from a development by paying into the state wetlands restoration program. Procedures for offset payments are outlined in the stormwater design manual. When using the offset payment, the total nitrogen loading from a development shall not exceed six pounds per acre per year for residential development and ten pounds per acre per year for nonresidential development.

(Ord. of 7-10-2000, § 9.5; Ord. of 1-2-2001, § 9.7)

   (a)   Except where provided elsewhere in this chapter, land disturbing activities shall not commence without obtaining a stormwater permit pursuant to the provisions of this article and the stormwater design manual. The stormwater permit application shall be made by, or on behalf of, the owner or developer of the site for which the permit is sought. The application shall be filed with the county on a form supplied by the county and shall be accompanied with the information identified in the stormwater design manual. A stormwater permit shall not be issued until the following conditions are met:

   (1)   Approval of the stormwater management plan by the stormwater administrator.

   (2)   Submission and approval of any required easements and impervious area statements on a map to be recorded.

   (3)   Submission and approval of any required inspection and maintenance agreement and/or escrow account or other legal instrument established to ensure longterm maintenance of BMPs.

   (4)   Payment of all fees.

   (b)   If the development requires approval of an erosion and sediment control plan, the stormwater permit will be conditional upon the owner receiving such erosion and sediment control approval. The stormwater permit will be valid for one year from the date of issuance or until significant changes in the development are made that change the intent of the permit. The stormwater administrator shall determine significant changes. If significant changes are made, the original stormwater permit shall not be valid, and a new permit shall be required.

(Ord. of 7-10-2000, § 9.4; Ord. of 1-2-2001, § 9.5)

   A list of fees associated with this article is available at the office of the clerk to the board of commissioners in the county courthouse.

(Ord. of 1-2-2001, § 9.6)

   Stormwater management plans shall:

   (1)   Include drawings, maps, supporting calculations, specifications, and summaries as outlined in the stormwater design manual.

   (2)   Demonstrate through accepted engineering practices described in the stormwater design manual the impacts of the proposed development. Impacts of the proposed development shall include:

      a.   Effects on existing upstream and/or downstream drainage systems and property;

      b.   Ability of the natural drainageway to handle additional stormwater runoff; and

      c.   Site-specific criteria supporting the analysis of any impacts noted in subsections (2)a. and (2)b. of this section.

   (3)   Demonstrate through accepted engineering practices described in the stormwater design manual that stormwater runoff is adequately conveyed through the development in a drainage system designed to meet the criteria described in the stormwater design manual.

   (4)   Demonstrate through accepted engineering practices described in the stormwater design manual that stormwater facilities required to control the impacts of the development are designed to meet the criteria described in the stormwater design manual.

   (5)   Demonstrate that the nitrogen loading from the new development does not exceed the limits set forth in section 14-387.

(Ord. of 7-10-2000, § 9.5.1; Ord. of 1-2-2001, § 9.7.1)

   (a)   Maintenance agreement. A written inspection and maintenance agreement in a form acceptable to the county attorney and executed by the applicant and the owner of the BMP, if different than the applicant, shall be provided prior to receiving a stormwater permit. The agreement shall:

   (1)   Bind the parties thereto and all subsequent owners, successors, and assigns to maintenance and inspection of the system or structure.

   (2)   State that if the county directs the correction, repair, replacement, or maintenance of the system or structure in writing and the actions are not satisfactorily performed within a reasonable time (but not greater than 120 days), the county (or its contractors) may, after reasonable notice, enter the land and perform all the necessary work and may assess the owner of the facility with the cost of the work performed or the county can seize all or part of the escrow or other fund set aside by the applicant for perpetual maintenance. The owner served by the facility shall be jointly responsible to the county for the maintenance of the facility and liable for any costs incurred by the county pursuant to the agreement. All properties are jointly subject to the imposition of the liens for such costs.

   (3)   The inspection and maintenance agreement shall be recorded in the register of deeds at the expense of the applicant.

   (b)   Easements. Easements for stormwater BMPs shall include the area of the BMP, area of ponded water, and enough area for access and maintenance. The easement shall be recorded in the register of deeds at the expense of the applicant and shall be depicted on the final plat or recorded map.

(Ord. of 7-10-2000, § 9.6; Ord. of 1-2-2001, § 9.8)

   (a)   Illegal discharge. No person shall cause or allow the discharge, disposal, pouring or pumping directly or indirectly to any stormwater conveyance structure, stormwater conveyance system, stream, lake, pond, wetland or other body of water, or upon the land in proximity to the same, any fluid, solid or other substance (other than stormwater). Prohibited substances include, but are not limited to oil, antifreeze, chemicals, animal waste, paints, garbage and litter. Examples of illegal discharges are:

   (1)   Dumping of oil, antifreeze, paint or cleaning fluids.

   (2)   Untreated commercial carwash washwater.

   (3)   Industrial discharges.

   (4)   Contaminated foundation drains.

   (5)   Cooling waters, unless no chemicals are added and have a valid NPDES permit.

   (6)   Washwater from commercial and industrial activities.

   (7)   Chlorinated backwash and draining associated with swimming pools.

   (8)   Domestic wastewater.

   (9)   Septic system effluent.

   (10)   Washing machine discharges.

   (b)   Allowable discharges. Examples of allowed discharges under this article are:

   (1)   Water line flushing.

   (2)   Irrigation.

   (3)   Uncontaminated groundwater pumping.

   (4)   Street wash water.

   (5)   Dechlorinated backwash and drainage associated with swimming pools.

   (6)   NPDES permitted discharges.

   (c)   Illegal connections. Connections to a stormwater conveyance system or structure that allow the discharge of nonstormwater are unlawful. Prohibited connections include, but are not limited to:

   (1)   Floor drains.

   (2)   Wastewater from washing machines or sanitary sewers.

   (3)   Wash water from commercial vehicle washing or steam cleaning.

   (4)   Wastewater from septic systems.

   (d)   Determination of connection. Upon determining that a connection to a stormwater conveyance system:

   (1)   May result in the discharge of hazardous materials, may pose a threat to health and safety, or is likely to result in immediate injury or harm to human or animal life, natural resources, to real or personal property, or habitat; or

   (2)   Was made in violation of any applicable regulation or ordinance.

   The stormwater administrator shall outline in a notice of violation, sent by certified mail, the time in which the connection shall be removed. Failure to comply with the terms and deadlines set in the notice of violation will constitute a violation of this article.

(Ord. of 1-2-2001, § 9.9)

   This section is adopted pursuant to the authority vested in Johnston County by the Session Laws and the General Statutes of North Carolina, particularly G.S. 153A-121, 153A-140, ch. 153A, article 18, G.S. 160A-174, 160A-193, ch. 160A, article 19, and any special legislation enacted by the General Assembly for Johnston County.

   Buffers adjacent to streams provide multiple environmental protection and resource management benefits. Forested buffers enhance and protect the natural ecology of stream systems, as well as water quality through bank stabilization, shading, and nutrient removal. They also help to minimize flood damage in flood prone areas. Well-vegetated streamside riparian areas help to remove nitrogen and prevent sediment and sediment-bound pollutants such as phosphorous from reaching the streams.

         i.   This section shall apply to 50-foot wide riparian buffers directly adjacent to surface waters in the Neuse River Basin (intermittent streams, perennial streams, lakes, ponds, and estuaries), excluding wetlands. The riparian buffers protected by this Rule shall be measured pursuant to subsection (f)(4) of this Rule. For the purpose of this Rule, a surface water shall be present if the feature is approximately shown on either the most recent version of the soil survey map prepared by the Natural Resources Conservation Service of the United States Department of Agriculture or the most recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic maps prepared by the United States Geologic Survey (USGS). Riparian buffers adjacent to surface waters that do not appear on either of the maps shall not be subject to this Rule. Riparian buffers adjacent to surface waters that appear on the maps shall be subject to this Rule unless one of the following applies.

         ii.   Wetlands adjacent to surface waters or within 50 feet of surface waters shall be considered as part of the riparian buffer but are regulated pursuant to Rules 15A NCAC 2B .0230 and .0231, Rules 15A NCAC 2H .0500, 15A NCAC 2H .1300, and Sections 401 and 404 of the Federal Water Pollution Control Act.

         iii.   For the purpose of this section, a surface water shall be present if the feature is approximately shown on only one of the following types of maps:

            a.   The most recent version of the soil survey map prepared by the Natural Resources Conservation Service of the United States Department of Agriculture.

            b.   The most recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic maps prepared by the United States Geologic Survey (USGS).

         v.   Riparian buffers protected by this section shall be measured pursuant to subsection (f)(4) of this section.

         vi.   Parties subject to this section shall abide by all state rules and laws regarding waters of the state including but not limited to Rules 15A NCAC 2B .0230 and .0231, Rules 15A NCAC 2H .0500, 15A NCAC 2H .1300, and Sections 401 and 404 of the Federal Water Pollution Control Act.

         vii.   No new clearing, grading, or development shall take place nor shall any new building permits be issued in violation of this section.

      (2)   Exemption based on on-site determination. When a landowner or other affected party, including the Division, believes that the maps have inaccurately depicted surface waters, he or she shall consult the environmental and stormwater manager. Upon request, a Johnston County representative who has successfully completed the Division’s Surface Water Identification Training Certification course, its successor, or other equivalent training curriculum approved by the division, shall make an on-site determination. Any disputes over on-site determinations shall be referred to the director of the Division of Water Resources c/o the 401 & Buffer Permitting Unit, or its successor, in writing. A determination of the director as to the accuracy or application of the maps is subject to review as provided in articles 3 and 4 of G.S. ch. 150B. Surface waters that appear on the maps shall not be subject to these buffer requirements if a site evaluation reveals any of the following cases:

         i.   Man-made ponds and lakes that are not part of a natural drainage way that is classified in accordance with 15A NCAC 2B .0100, including ponds and lakes created for animal watering, irrigation, or other agricultural uses. (A pond or lake is part of a natural drainage way when it is fed by an intermittent or perennial stream or when it has a direct discharge point to an intermittent or perennial stream.)

         ii.   Ephemeral streams.

         iii.   The absence on the ground of a corresponding intermittent or perennial stream, lake, reservoir, or pond.

         iv.   Ditches or other man-made water conveyances, other than modified natural streams.

         i.   It existed prior to July 22, 1997, the effective date of the Neuse Rule and has continued to exist since that time. Existing uses shall include agriculture, buildings, industrial facilities, commercial areas, transportation facilities, maintained lawns, utility lines and on-site sanitary sewage systems, any of which involve either specific, periodic management of vegetation or displacement of vegetation by structures or regular activity. Only the portion of the riparian buffer occupied by the footprint of the existing use is exempt from this section. Change of ownership through purchase or inheritance is not a change of use. Activities necessary to maintain uses are allowed provided that the site remains similarly vegetated, no impervious surface is added within 50 feet of the surface water where it did not previously exist as of July 22, 1997, and existing diffuse flow is maintained. Grading and revegetating Zone Two is allowed provided that the health of the vegetation in Zone One is not compromised, the ground is stabilized and existing diffuse flow is maintained.

         ii.   At the time an existing use is proposed to be converted to another use, this Rule shall apply. An existing use shall be considered to be converted to another use if any of the following applies:

            a.   Impervious surface is added to the riparian buffer in locations where it did not exist previously.

            b.   An agricultural operation within the riparian buffer is converted to a non-agricultural use.

            c.   A lawn within the riparian buffer ceases to be maintained.

         i.   Zone One shall consist of a vegetated area that is undisturbed except for uses provided for in the Table of Uses, subsection (g)(2) of this section. The location of Zone One shall be as follows:

            a.   For intermittent and perennial streams, Zone One shall begin at the most landward limit of the top of bank or the rooted herbaceous vegetation and extend landward a distance of 30 feet on all sides of the surface water, measured horizontally on a line perpendicular to the surface water.

            b.   For ponds, lakes and reservoirs located within a natural drainage way, Zone One shall begin at the most landward limit of the normal water level or rooted herbaceous vegetation and extend landward a distance of 30 feet, measured horizontally on a line perpendicular to a vertical line marking the normal water level.

         ii.   Zone Two shall consist of a stable, vegetated area that is undisturbed except for uses provided for in the Table of Uses, subsection 8.(B) of this section. Grading and revegetating in Zone Two is allowed provided that the health of the vegetation in Zone One is not compromised. Zone Two shall begin at the outer edge of Zone One and extend landward 20 feet as measured horizontally on a line perpendicular to the surface water. The combined width of Zones One and Two shall be 50 feet on all sides of the surface water.

         i.   Concentrated runoff from new ditches or man-made conveyances shall be converted to diffuse flow at non-erosive velocities before the runoff enters Zone Two of the riparian buffer;

         ii.   Periodic corrective action to restore diffuse flow shall be taken as necessary and shall be designed to impede the formation of erosion gullies; and

         iii.   As set out in subsections (f)(4) and (g)(2) of this section, Zones of the riparian buffer and Table of Uses respectively, no new stormwater conveyances are allowed through the buffers except for those specified in the Table of Uses, subsection (g)(2) of this section, addressing stormwater management ponds, drainage ditches, roadside ditches, and stormwater conveyances.

         i.   Determined the activity is exempt from requirements of this section;

         ii.   Received an Authorization Certificate from Johnston County pursuant to subsection (h)(1) of this section;

         iii.   For uses designated as Allowable with Mitigation in the Table of Uses in subsection (g)(2), received approval of mitigation plan pursuant to subsection (h)(3) of this section; and

         iv.   Received a variance pursuant to subsection (h)(2).

 

         iv.   Uses that are not listed may not proceed within the riparian buffer unless a variance is granted pursuant to subsection (h)(2) of this section. Mitigation may be required as one condition of a variance approval.

      (1)   Determination of no practical alternatives / request for authorization certificate.

         i.   Persons who wish to undertake uses designated as allowable or allowable with mitigation shall submit a request for a "no practical alternatives" determination to Johnston County. The applicant shall certify that the project meets all the following criteria for finding "no practical alternatives":

            a.   The basic project purpose cannot be practically accomplished in a manner that would better minimize disturbance, preserve aquatic life and habitat, and protect water quality;

            b.   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

            c.   Best management practices shall be used if necessary to minimize disturbance, preserve aquatic life and habitat, and protect water quality.

         ii.   The applicant shall also submit at least the following information in support of their assertion of "no practical alternatives":

            a.   The name, address and phone number of the applicant;

            b.   The nature of the activity to be conducted by the applicant;

            c.   The location of the activity, including the jurisdiction;

            d.   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 any disturbance in riparian buffers associated with the activity, and the extent of riparian buffers on the land;

            e.   An explanation of why this plan for 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

            f.   Plans for any best management practices proposed to be used to control the impacts associated with the activity.

         iii.   Within 60 days of a submission that addresses subsection (h)(1)(ii), Johnston County shall review the entire project and make a finding of fact as to whether the criteria in subsection (h)(1)(i) of this section have been met. A finding of "no practical alternatives" shall result in issuance of 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 unless one of the following occurs:

            a.   The applicant agrees, in writing, to a longer period;

            b.   Johnston County determines that the applicant has failed to furnish requested information necessary for the county decision;

            c.   The final decision is to be made pursuant to a public hearing; or

            d.   The applicant refuses access to its records or premises for the purpose of gathering information necessary to Johnston County's decision.

         iv.   Johnston County may attach conditions to the Authorization Certificate that support the purpose, spirit and intent of this section.

         v.   Any appeals of determinations regarding Authorization Certificates shall be referred to the Director of the Division of Water Resources, c/o the 401 & Buffer Permitting Unit, or its successor. The director's decision is subject to review as provided in G.S. ch. 150B, art. 3 and 4.

            a.   For any variance request, the Johnston County environmental and stormwater manager shall make a finding of fact as to whether there are practical difficulties or unnecessary hardships that prevent compliance with the riparian buffer protection requirements. A finding of practical difficulties or unnecessary hardships shall require that the following conditions are met:

               i.   If the applicant complies with the provisions of this section, he/she can secure no reasonable return from, nor make reasonable use of, his/her property. Merely proving that the variance would permit a greater profit from the property shall not be considered adequate justification for a variance. Moreover, the Johnston County environmental and stormwater manager shall consider whether the variance is the minimum possible deviation from the terms of this section that shall make reasonable use of the property possible;

               ii.   The hardship results from application of this section to the property rather than from other factors such as deed restrictions or other hardship;

               iii.   The hardship is due to the physical nature of the applicant's property, such as its size, shape, or topography, such that compliance with provisions of this section would not allow reasonable use of the property;

               iv.   The applicant did not cause the hardship by knowingly or unknowingly violating this section;

               v.   The applicant did not purchase the property after the effective date of this section, and then request a variance; and

               vi.   The hardship is rare or unique to the applicant's property.

            b.   The variance is in harmony with the general purpose and intent of the state's riparian buffer protection requirements and this section and preserves its spirit; and

            c.   In granting the variance, the public safety and welfare have been assured, water quality has been protected, and substantial justice has been done.

         i.   This item shall apply to persons who wish to impact a riparian buffer in the Neuse River watershed when one of the following applies:

            a.   A person has received an Authorization Certificate pursuant to subsection (h)(1) of this section for a proposed use that is designated as "allowable with mitigation;" or

            b.   A person has received a variance pursuant to subsection (h)(2) of this section and is required to perform mitigation as a condition of a variance approval.

            a.   Payment of a compensatory mitigation fee to the Riparian Buffer Restoration Fund pursuant to 15A NCAC 02B .0242 (Mitigation Program for Protection and Maintenance of Existing Riparian Buffers) contingent upon acceptance of payments by the NC Ecosystem Enhancement Program, or to a private mitigation bank that complies with banking requirements of the US Army Corps of Engineers, currently set out at http://www.saw.usace.army.mil/WETLANDS/Mitigation/mitbanks.html or from the US Army Corps of Engineers, P.O. Box 1890, Wilmington, NC, 28402-1890, and the applicable trading criteria in Rule 15A NCAC 02B .0273;

            b.   Donation of real property or of an interest in real property pursuant to subsection (h)(3)(vi) of this section; or

            c.   Restoration or enhancement of a non-forested riparian buffer pursuant to the requirements of subsection (h)(3)(vii) of this section.

            a.   The impacts in square feet to each zone of the riparian buffer shall be determined by Johnston County by adding the following:

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

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

               iii.   The area of any ongoing maintenance corridors within the riparian buffer associated with the use.

            b.   The required area of mitigation shall be determined by applying the following multipliers to the impacts determined in subsection (h)(3)(iv)(a) of this section to each zone of the riparian buffer:

               i.   Impacts to Zone One of the riparian buffer shall be multiplied by three;

               ii.   Impacts to Zone Two of the riparian buffer shall be multiplied by one and one-half; and

               iii.   Impacts to wetlands within Zones One and Two 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.

            a.   The donation of real property interests may be used to either partially or fully satisfy the payment of a compensatory mitigation fee to the Riparian Buffer Restoration Fund pursuant to 15A NCAC 02B .0273. The value of the property interest shall be determined by an appraisal performed in accordance with subsection (h)(3)(vi)(d)(iv) of this section. The donation shall satisfy the mitigation determination 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 calculated pursuant to 15A NCAC 02B .0273, the applicant shall pay the remaining balance due.

            b.   The donation of conservation easements to satisfy compensatory mitigation requirements shall be accepted only if the conservation easement is granted in perpetuity.

            c.   Donation of real property interests to satisfy the mitigation determination shall be accepted only if such property meets all of the following requirements:

               ii.   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 subsection (h)(3)(vii)(d) of this section;

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

               iv.   The size of the restorable riparian buffer on the property to be donated shall equal or exceed the area of mitigation responsibility determined pursuant to subsection (h)(3)(iv) of this section;

               v.   Restoration shall not require removal of man-made structures or infrastructure;

               vi.   The property shall be suitable to be successfully restored, based on existing hydrology, soils, and vegetation;

               vii.   The estimated cost of restoring and maintaining the property shall not exceed the value of the property minus site identification and transaction costs;

               viii.   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;

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

               x.   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 owner's expense in accordance with state and local health and safety regulations;

               xi.   The property and adjacent properties shall not have prior, current, and known future land use that would inhibit the function of the restoration effort; and

               xii.   The property shall not have any encumbrances or conditions on the transfer of the property interests.

            d.   At the expense of the applicant or donor, the following information shall be submitted to the Johnston County environmental and stormwater manager with any proposal for donations or dedications of interest in real property:

               i.   Documentation that the property meets the requirements laid out in subsection (h)(3)(vi)(c) of this section;

               ii.   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 to be donated along with information on existing site conditions, vegetation types, presence of existing structures and easements;

               iii.   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." Copies may be obtained from the North Carolina State Board of Registration for Professional Engineers and Land Surveyors, 3620 Six Forks Road, Suite 300, Raleigh, North Carolina 27609;

               iv.   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." Copies may be obtained from the Appraisal Foundation, Publications Department, P.O. Box 96734, Washington, D.C. 20090-6734; and

               v.   A title certificate.

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

               i.   The area of riparian buffer restoration is equal to the required area of mitigation determined pursuant to subsection (h)(3)(iv) of this section; or

               ii.   The area of riparian buffer enhancement is three times larger than the required area of mitigation determined pursuant to subsection (h)(3)(iv) of this section;

            b.   The location of the riparian buffer restoration or enhancement shall comply with the requirements in subsection (h)(3)(v) of this section;

            c.   The riparian buffer restoration or enhancement site shall have a minimum width of 50 feet as measured horizontally on a line perpendicular to the surface water;

            d.   The applicant shall first receive an Authorization Certificate for the proposed use according to the requirements of subsection (h)(1) of this section. After receiving this determination, the applicant shall submit a restoration or enhancement plan for approval by Johnston County. The restoration or enhancement plan shall contain the following:

               i.   A map of the proposed restoration or enhancement site;

               ii.   A vegetation plan. The vegetation plan shall include a minimum of at least two native hardwood tree species planted at a density sufficient to provide 320 trees per acre at maturity;

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

               iv.   A fertilization plan; and

               v.   A schedule for implementation;

            e.   Within one year after Johnston County has approved the restoration or enhancement plan, the applicant shall present proof to the County that the riparian buffer has been restored or enhanced. If proof is not presented within this timeframe, then the person shall be in violation of both the state's and the county's riparian buffer protection program;

            f.   The mitigation area shall be placed under a perpetual conservation easement that will provide for protection of the property's nutrient removal functions; and

            g.   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.

         i.   The following measures shall apply in the entire riparian buffer:

            a.   Logging decks and sawmill sites shall not be placed in the riparian buffer.

            b.   Access roads and skid trails shall be prohibited except for temporary and permanent stream crossings established in accordance with 15A NCAC 1I .0203. Temporary stream crossings shall be permanently stabilized after any site disturbing activity is completed.

            c.   Timber felling shall be directed away from the stream or water body.

            d.   Skidding shall be directed away from the stream or water body and shall be done in a manner that minimizes soil disturbance and prevents the creation of channels or ruts.

            e.   Individual trees may be treated to maintain or improve their health, form or vigor.

            f.   Harvesting of dead or infected trees or application of pesticides necessary to prevent or control extensive tree pest and disease infestation shall be allowed. These practices must be approved by the Division of Forest Resources for a specific site. The Division of Forest Resources must notify the Division of all approvals.

            g.   Removal of individual trees that are in danger of causing damage to structures or human life shall be allowed.

            h.   Natural regeneration of forest vegetation and planting of trees, shrubs, or ground cover plants to enhance the riparian buffer shall be allowed provided that soil disturbance is minimized. Plantings shall consist primarily of native species.

            i.   High intensity prescribed burns shall not be allowed.

            j.   Application of fertilizer shall not be allowed except as necessary for permanent stabilization. Broadcast application of fertilizer or herbicides to the adjacent forest stand shall be conducted so that the chemicals are not applied directly to or allowed to drift into the riparian buffer.

         ii.   In Zone 1, forest vegetation shall be protected and maintained. Selective harvest as provided for below is allowed on forest lands that have a deferment for use value under forestry in accordance with G.S. 105-277.2 through G.S. 105-277.6 or on forest lands that have a forest management plan prepared or approved by a registered professional forester. Copies of either the approval of the deferment for use value under forestry or the forest management plan shall be produced upon request. For such forest lands, selective harvest is allowed in accordance with the following:

            a.   Tracked or wheeled vehicles are not permitted except at stream crossings designed, constructed and maintained in accordance with 15A NCAC 1I .0203.

            b.   Soil disturbing site preparation activities are not allowed.

            c.   Trees shall be removed with the minimum disturbance to the soil and residual vegetation.

            d.   The following provisions for selective harvesting shall be met:

               i.   The first 10 feet of Zone 1 directly adjacent to the stream or waterbody shall be undisturbed except for the removal of individual high value trees as defined provided that no trees with exposed primary roots visible in the streambank be cut.

               ii.   In the outer 20 feet of Zone 1, a maximum of 50 percent of the trees greater than five inches DBH may be cut and removed. The reentry time for harvest shall be no more frequent than every 15 years, except on forest plantations where the reentry time shall be no more frequent than every five years. In either case, the trees remaining after harvest shall be as evenly spaced as possible.

               iii.   In Zone 2, harvesting and regeneration of the forest stand shall be allowed provided that sufficient ground cover is maintained to provide for diffusion and infiltration of surface runoff.

         i.   Agents, officials, or other qualified persons authorized by Johnston County may periodically inspect riparian buffers to ensure compliance with this section.

         ii.   Notice of the right to inspect shall be included in the letter of approval of each variance and buffer authorization.

            a.   If it is determined that a person has failed to comply with the requirements of this section, or rules, or orders adopted or issued pursuant to this section, a notice of violation shall be served upon that person. The notice may be served by any means authorized under G.S. 1A-1, rule 4.

            b.   The notice shall specify the violation and inform the person of the actions that need to be taken to comply with this section, or rules or orders adopted pursuant to this section. The notice shall direct the person to correct the violation within a specified reasonable time. The notice shall inform the person that any person who violates or fails to act in accordance with any of the provisions of this section or rules or orders adopted or issued pursuant to this section is subject to the civil and criminal penalties and other enforcement actions as provided in this section.

         i.   Any person who negligently violates any provision of this section or rule or order adopted pursuant to this section, shall be guilty of a Class 2 misdemeanor which may include a fine not to exceed fifteen thousand dollars ($15,000) per day of violation, provided that such fine shall not exceed a cumulative total of two hundred thousand dollars ($200,000) for each period of 30 days during which such a violation continues.

         ii.   Any person who knowingly or willingly violates any provision of this section or rule or order adopted pursuant to this section, shall be guilty of a Class I felony which may include a fine not to exceed one hundred thousand dollars ($100,000) per day of violation, provided that this fine shall not exceed a cumulative total of five hundred thousand dollars ($500,000) for each period of 30 days during which such a violation continues.

         iii.   Any person who maliciously violates any provision of this section or rule or order adopted pursuant to this section, shall be guilty of a Class C felony which may include a fine not to exceed two hundred fifty thousand dollars ($250,000) per day of violation, provided that this fine shall not exceed a cumulative total of one million dollars ($1,000,0000) for each period of 30 days during which such a violation continues.

         i.   Satellite parking facilities;

         ii.   Retail and commercial development outside of the terminal area, such as rental car facilities; and

         iii.   Other secondary development, such as hotels, industrial facilities, free-standing offices and other similar buildings, so long as these facilities are not directly associated with the operation of the airport, and are not operated by a unit of government or special governmental entity such as an airport authority, in which case they are included in the definition of 'airport facilities'.

(Ord. of 7-10-2000, §§ 9.7, 9.8; Ord. of 1-2-2001, § 9.10; Ord. of 5-6-2013; Ord. of 1-6-2014)

   Any county personnel, or contractors for the county, shall be permitted to enter upon public or private property for the purposes of inspection, sampling, monitoring, testing or otherwise verifying compliance. Should the county personnel, or contractor for the county, be denied reasonable access to any property, the stormwater administrator shall obtain an administrative search warrant. No person shall obstruct, hamper or interfere with any such representative while carrying out his official duties.

(Ord. of 1-2-2001, § 9.11)

   The board of adjustment shall consider all variance requests as set out in article XI of this chapter.

(Ord. of 7-10-2000, § 9.10; Ord. of 1-2-2001, § 9.12)