Consolidated Buffer Mitigation Rule 15A NCAC 02B .0295

1. Consolidated Buffer Mitigation Rule15A NCAC 02B .0295 January 8, 2015

2. History • Process started within DWQ in 2006 • G.S. 143-214.20 required the Division to adopt rules concerning “alternative measures (of buffer mitigation) • Formal stakeholder meetings in 2009/2010 • Permanent Rule passed by EMC May 2013 • RRC received 10 letters of objection • SL 2014-95: EMC shall adopt a Buffer Mitigation Rule no later than October 1, 2014 • Temporary Rule adopted by EMC September 30, 2014 • Temporary Rule effective October 24, 2014

3. Benefits of Proposed Rule • Easier to understand • Consistent across basins/watersheds • Greater flexibility for compliance • Increases number of sites and options for buffer mitigation • Provides value to communities, homeowners and developers • Consistent with the principles in Executive Order 70 and SB781

4. Proposed Permanent Rule vs. Temporary Rule

5. Major Changes • Changes to text to address comments received by RRC during Temporary Rule review • Modifications to text to provide clarity and consistency in areas identified by staff • Modification to the text regarding completion bonds • Remove donation language and reference 15A NCAC 02R .0403 for consistency • Change retroactive credit allowance from alternative mitigation projects to all types of mitigation projects • Reorganization of Rule for clarity

6. Attachments for Review • Temporary Rule with track changes • Reorganized Temporary Rule with track changes for text edits only • Reorganized Temporary Rule with track changes for text changes AND reorganizational changes • Version that will be published in Register • Draft Permanent Rule (without track changes)

7. RRC comments • Correct Division to Authority as necessary throughout the rule • Provide definitions and references in areas such as “Zone” and “streams Not Subject” • Indicate timeline and provide clarity for some requirements: • “If the applicant or mitigation provider determines that elimination of existing stormwater conveyances is not feasible, then they shall include a justification and shall provide a delineation of the watershed draining to the stormwater outfall and the percentage of the total drainage by area treated by the riparian buffer with the mitigation plan specified in Subparagraph (4) of this Paragraph for Authority approval. During mitigation plan review and approval the Authority may reduce mitigation credit proportionally.”

8. Staff recommended changes for clarity and consistency • Add definitions: • Compensatory Buffer Mitigation Bank • Mitigation Banking Instrument • Add option for other mitigation options when approved by the EMC during variance approval • Slight changes to language in vegetation plan requirements and annual reporting for restoration or enhancement sites • Reference Donation Language in NCAC 02R .0403 • Remove unclear language in sewer easement option • Remove references to nutrient offset credits in Accounting section

9. Changes to Completion Bond language • Temporary Rule language “A completion bond that is payable to the Division sufficient to ensure that land or easement purchase, construction, monitoring and maintenance are completed.” • Proposed language: “A financial assurance in the form of a completion bond, credit insurance, letter of credit, escrow, or other vehicle acceptable to the Authority payable to, or for the benefit of, the Authority in an amount sufficient to ensure that the property is secured in fee title or by easement, and that planting monitoring and maintenance, are completed as necessary to meet success criteria as specified in the approved mitigation plan.”

10. Retroactive Credit • (m)Alternative Buffer Mitigation Options (1)(a) Projects that have been constructed and are within the required monitoring period on the effective date of this Rule are eligible for use as buffer mitigation sites. Projects that have completed monitoring and released by the Division on or before the effective date of this Rule are eligible for use as buffer mitigation sites for a period of 10 years from the effective date of this Rule. • Relocated to beginning of rule to clearly allow for any type of project to receive retroactive credit, not just alternative projects

11. Reorganization Temporary Rule Draft Permanent Rule Purpose Definitions Mitigation Requirements Area of Impact Zonal Mitigation Ratios Locational Mitigation Ratios Geographic Restrictions Mitigation Options for Applicants Purchase of Mitigation Bank Credits Payment into EEP Donation of Property Mitigation Site Requirements for Applicants and Mitigation Providers Buffer Credit Accounting General site Requirements Mitigation Units Restoration/Enhancement Alternative Mitigation Options • Purpose • Definitions • Application Requirements, Mitigation Site Requirements and Mitigation Options • Area of Impact • Zonal Mitigation Ratios • Locational Mitigation Ratios • Geographic Restrictions • Mitigation Units • Restoration/Enhancement • Purchase of Mitigation Bank Credits • Payment into EEP • Donation of Property • Alternative Mitigation Options • Buffer Credit Accounting

12. Permanent Rulemaking Schedule

13. Request • DWR requests a waiver of 30-day rule • DWR requests permission to proceed to public notice and public hearing with the proposed Mitigation Program Requirements for the Protection and Maintenance of Riparian Buffers Rule (15A NCAC 02B .0295)