January 6, 2014 - 10:00 AM - County Board of Commissioners Meeting Minutes

10 763 Meeting of the Johnston County Board of Commissioners January 6 , 2014 10 00 am The Johnston County Board of Commissioners met in regular session Monday , January 6 , 2014 at 10 00 am in the Commissioners Meeting Room , Johnston County Courthouse Annex , Smithfield , North Carolina The following members were present Present Chairman Jeffrey P Carver , Vice Chairman Tony Braswell , Cookie Pope , Allen L Mims , Jr , DeVan Barbour , Ted G Godwin , and Chad M Stewart Absent None Also Present County Manager Rick J Hester , Clerk to the Board Paula G Woodard , Finance Officer and Assistant County Manager J Chad McLamb , County Attorney David F Mills , and Paralegal Deputy Clerk to the Board Dana Cuddington Chairman Jeffrey P Carver called the meeting to order at 10 00 am Commissioner Cookie Pope opened the meeting with a prayer Commissioner Allen L Mims , Jr led those in attendance in the pledge of allegiance to the American flag 1 Approval Discussion of Agenda Upon a motion by Commissioner DeVan Barbour , seconded by Commissioner Tony Braswell , and carried by unanimous vote , the Board approved the agenda as presented 2 Consent Agenda Items Upon a motion by Commissioner Allen L Mims , Jr , seconded by Commissioner Cookie Pope , and carried by unanimous vote , the Board approved the consent agenda items as follows A Approval of Minutes – December 2 , 2013 10 00 am and 6 00 pm B Town of Clayton – Appointments to Board of Adjustment and Planning Board Per the request of the Town of Clayton , the Board made the following appointments representing the ETJ area of the Town of Clayton Board of Adjustment Johnny House – 2975 Covered Bridge Road , Clayton term expiring 12 31 2016 Planning Board Jim Lee – 709 Fernwood Drive , Clayton term expiring 12 31 2016 James H Lipscomb – 3407 Barber Mill Road , Clayton term expiring 12 31 2016 C Second Vote – Johnston County Code of Ordinances Amendment – Section 14 - 226 In a second vote , the Board adopted the following amendment to the Johnston County Code of Ordinances Chapter 14 – Land Development Code , Section 14 - 226 Access and Circulation as it was presented at the December 2 , 2013 6 00 pm meeting following a duly advertised public hearing Section 14 - 226 Access and circulation f Subdivision road standards 1 Once a subdivision has a minimum of four occupied homes and an average of two occupied homes per tenth of a mile , no more land use permits will be issued for lots on that street until the developer or related agent petitions the North Carolina Department of Transportation for maintenance and acceptance of the subject street into the state maintained road network 2 Land use permits will be issued until 75 percent of the lots along a subject road have been permitted Once this threshold has been met , no more land use permits will be issued for lots on that street until the North Carolina Department of Transportation district engineer has accepted the subject road into the state maintained road network 1 Land use permits will be issued until 75 percent of the lots have been permitted Once this threshold has been met , no more land use permits will be issued for lots within the subdivision until the North Carolina Department of Transportation District Engineer has accepted the subject road into the state maintained road network 2 The developer shall be responsible for ensuring that all dedicated public subdivision streets are successfully accepted by NC DOT for maintenance The developer shall be responsible for maintenance of all streets and protection of rights - of - way until such streets are accepted into the state road system Page764 January 6 , 2014 – 10 00 am Continued 3 Where streets are dedicated to the public but not accepted into the state system at the time the plat is recorded , a statement explaining the status of the street shall be included on the final plat Said statements shall explain that the developer is ultimately responsible for the upkeep and maintenance of all streets until such time that the streets are included in the state system 4 In lieu of the discontinuation of permits , the developer may provide a maintenance guarantee where roads have not been accepted by or conveyed to NCDOT The amount of the maintenance guarantee shall be equal to 15 of the total estimated cost of street construction and stabilization of shoulders and drainage swales The estimated cost shall be based on a certified engineer’s or licensed contractor’s estimate , provided such engineer or contractor is independent of the developer Design Manual Section 7 Subdivision Design Standards L CERTIFICATES AND ENDORSEMENTS ON FINAL PLAT 13 Street Disclosure Statement – Public Streets As developer owner , I developer of address certify and agree to the following The developer shall be responsible for maintenance of all streets and protection of rights - of - way until such streets are accepted into the state road system The developer acknowledges that only 75 of the lots will be permitted until such time as he or she petitions the North Carolina Department of Transportation to accept the streets meeting the satisfaction of the Department’s petitioning and construction requirements or has provided the County with a maintenance guarantee for these purposes Notarized signature___________________ D Second Vote – Johnston County Code of Ordinances Amendment – Section 14 - 393 In a second vote , the Board adopted the following amendment to the Johnston County Code of Ordinances Chapter 14 – Land Development Code , Section 14 - 393 Riparian Buffer Protection as it was presented at the December 2 , 2013 6 00 pm meeting following a duly advertised public hearing Sec 14 - 393 - Riparian buffer protection for lands within the Neuse River Basin This section is adopted pursuant to the authority vested in Johnston County by the Session Laws and the General Statutes of North Carolina , particularly GS 153A - 121 , 153A - 140 , ch 153A , article 18 , GS 160A - 174 , 160A - 193 , ch 160A , article 19 , and any special legislation enacted by the General Assembly for Johnston County a Purpose and intent The purposes of Johnston County in adopting the following section is to protect and preserve existing riparian buffers throughout the Neuse River Watershed within the countys jurisdiction as generally described in Rule 15A NCAC 02B 0233 Neuse River Basin Nutrient Sensitive Waters Management Strategy Protection and Maintenance of Existing Riparian Buffers , in order to maintain their nutrient removal and stream protection functions Additionally this section will help protect the water supply uses of the Neuse River and of designated water supplies throughout the Neuse River watershed 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 b Title This section shall be known as the Johnston County Riparian Buffer Protection Ordinance [ for Lands within the Neuse River Watershed ] c Jurisdiction This section shall be applied to all land in the planning jurisdiction of Johnston County that is located within the Neuse River Watershed d Applicability This section applies to all landowners and other persons conducting activities in the area described in subsection c , with the exception of activities conducted under the authority of the state , the United States , multiple jurisdictions , or local units of government , and forest harvesting and agricultural activities The NC Division of Water Quality Environmental Management Commission shall administer the requirements of Rule 15A NCAC 02B 0233 and 0242 Neuse River Basin Nutrient Sensitive Waters Management Strategy Protection of Existing Riparian Buffers and Mitigation Program for Protection and Maintenance of Existing Riparian Buffers , respectively for these activities e Relation to other ordinances The requirements of this section shall supersede all locally implemented buffer requirements stated in Rules 15A NCAC 02B 0214 through 0216 as applied to WS - II , WS - III , and WS - IV waters in the Neuse River watershed If the provisions of this section otherwise conflict with the provisions of any other validly enforceable ordinance s or laws , the most stringent provisions shall control This section is not intended to interfere with , abrogate , or annul any other ordinance , rule , regulation , or other provision of law f Riparian area protection within the Neuse River Watershed 1 Buffers protected The following minimum criteria shall be used for identifying regulated buffers 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 75 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 thisPage765 January 6 , 2014 – 10 00 am Continued 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 75 minute quadrangle topographic maps prepared by the United States Geologic Survey USGS iv Where the specific origination point of a stream regulated under this Item is in question , upon request of the NC Division of Water Quality Resources or another party , Johnston County shall make an on - site determination A Johnston County representative who has successfully completed the Divisions Surface Water Identification Training Certification course , its successor , or other equivalent training curriculum approved by the Division , shall establish that point using the latest version of the Division publication , Identification Methods for the Origins of Intermittent and Perennial Streams , available at http h2oenrstatencus ncwetlands documents NC_Stream_ID_Manualpdf or from the NC Division of Water Quality Resources - 401 Oversight Express & Buffer Permitting Unit , or its successor Johnston County may accept the results of a site assessment made by another party who meets these criteria Any disputes over on - site determinations made according to this Item shall be referred to the Director of the Division of Water Quality Resources c o the 401 Oversight Express & Buffer Permitting Unit , or its successor , in writing The directors determination is subject to review as provided in articles 3 and 4 of GS ch 150B 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 Division’sof water qualitys Surface Water Identification Training Certification course , its successor , or other equivalent training curriculum approved by the division , shall make an on - site determination Johnston County may also accept the results of site assessments made by other parties who have successfully completed such training Any disputes over on - site determinations shall be referred to the director of the division Division of water Water quality Resources c o the 401 Oversight Express & 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 GS 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 3 Exemption when existing uses are present and ongoing This section shall not apply to portions of the riparian buffer where a uses that areis existing and ongoing according to the following ; however , this section shall apply at the time an existing , ongoing use is changed to another use Change of use shall involve the initiation of any activity that does not meet either of the following criteria for existing , ongoing activity 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 Projects or proposed development that are determined by Johnston County to meet at least one of the following criteria a Project requires a 401 Certification 404 Permit and these were issued prior to the effective date of this section ; b Projects that require a state permit , such as landfills , NPDES wastewater discharges , land application of residuals and road construction activities , have begun construction or are under contract to begin construction and had received all required state permits and certifications prior to the effective date of this section ; c Projects that are being reviewed through the Clean Water Act Section 404 National Environmental Policy Act Merger 01 Process published by the US Army Corps of Engineers and Federal Highway Administration , 2003 or its immediate successor and that have reached agreement with DENR on avoidance and minimization by the effective date of this section ; orPage766 January 6 , 2014 – 10 00 am Continued d Projects that are not required to be reviewed by the Clean Water Act Section 404 National Environmental Policy Act Merger 01 Process published by the US Army Corps of Engineers and Federal Highway Administration , 2003 or its immediate successor if a Finding of No Significant Impact has been issued for the project and the project has the written approval of Johnston County prior to the effective date of this section 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 4 Zones of the riparian buffer The protected riparian buffer shall have two zones as follows 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 5 Diffuse flow requirements Diffuse flow of runoff shall be maintained in the riparian buffer by dispersing concentrated flow prior to its entry into the buffer and reestablishing vegetation as follows 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 g Potential uses and associated requirements 1 Approval for new development Johnston County shall issue an approval for new development only if the development application proposes to avoid impacts to riparian buffers defined in subsection f 1 of this section , or where the application proposes to impact such buffers , it demonstrates that the applicant has done the following , as applicable 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 2 Table of Uses The following chart sets out potential new uses within the buffer , or outside the buffer with impacts on the buffer , and categorizes them as exempt , allowable , or allowable with mitigation All uses not categorized as exempt , allowable , or allowable with mitigation are considered prohibited and may not proceed within the riparian buffer or outside the buffer if the use would impact the buffer , unless a variance is granted pursuant to subsection h 2 of this section , Variances The requirements for each category are given in subsection g 3 of this section following the Table of Uses Allowable Use Exempt Allowable with Mitigation Access trails Pedestrian access trails leading to the surface water , docks , fishing piers , boat ramps and other water dependent activities • Pedestrian access trails that are restricted to the minimum width practicable and do not exceed 4 feet in width of buffer disturbance , and provided that installation and use does not result in removal of trees as X defined in this section and no impervious surface is added to the riparian buffer • Pedestrian access trails that exceed 4 feet in width of buffer disturbance , the installation or use results in removal of trees as X defined in this section or impervious surface is added to the riparian buffer Airport facilities • Airport facilities that impact equal to or less than 150 linear feet or X one - third of an acre of riparian buffer • Airport facilities that impact greater than 150 linear feet or one - third X of an acre of riparian buffer • Activities necessary to comply with FAA requirements eg radar XPagePage pageNumber5767 January 6 , 2014 – 10 00 am Continued 1 uses or landing strips Archaeological activities X Bridges X Canoe Access provided that installation and use does not result in removal of trees as defined in this section and no impervious surface is X added to the buffer Dam maintenance activities • Dam maintenance activities that do not cause additional buffer disturbance beyond the footprint of the existing dam or those covered X under the US Army Corps of Engineers Nationwide Permit No 3 • Dam maintenance activities that do cause additional buffer disturbance beyond the footprint of the existing dam or those not X covered under the US Army Corps of Engineers Nationwide Permit No 3 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 X the need to alter the conveyance and are managed to minimize the sediment , nutrients and other pollution that convey to waterbodies • New drainage ditches , roadside ditches and stormwater outfalls provided that a stormwater management facility is installed to control X nitrogen and attenuate flow before the conveyance discharges through the riparian buffer • New drainage ditches , roadside ditches and stormwater conveyances applicable to linear projects that do not provide a stormwater X management facility due to topography constraints provided that other practicable BMPs are employed Drainage of a pond in a natural drainage way provided that a new riparian buffer that meets the requirements of f 4 and f 5 of this X section is established adjacent to the new channel Driveway crossings of streams and other surface waters subject to this section • Driveway crossings on single family residential lots that disturb equal X to or less than 25 linear feet or 2,500 square feet of riparian buffer • Driveway crossings on single family residential lots that disturb X greater than 25 linear feet or 2,500 square feet of riparian buffer • In a subdivision that cumulatively disturb equal to or less than 150 X linear feet or one - third of an acre of riparian buffer • In a subdivision that cumulatively disturb greater than 150 linear feet X or one - third of an acre of riparian buffer Driveway impacts other than crossing of a stream or other surface X waters subject to this section Fences • Fences provided that disturbance is minimized and installation does X not result in removal of trees as defined in this section • Fences provided that disturbance is minimized and installation results in removal of trees as defined in this sectionForest Harvesting – See X Section 4 of this Ordinance Fertilizer application one - time application to establish vegetation X Grading and revegetation in Zone Two provided that diffuse flow and the health of existing vegetation in Zone One is not compromised and X disturbed areas are stabilized until they are revegetated Greenway hiking trails designed , constructed and maintained to maximize nutrient removal and erosion protection , minimize adverse X effects on aquatic life and habitat , and protect water quality to the maximum extent practical Historic preservation X 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 X that needed for equipment access and operation The travel way shall be located to maximize stream shading Mining activities • Mining activities that are covered by the Mining Act provided that new riparian buffers that meet the requirements of subsections f 4 X and f 5 of this section are established adjacent to the relocated channels • Mining activities that are not covered by the Mining Act OR where X new riparian buffers that meet the requirements of subsections f 4 PagePage pageNumber6768 January 6 , 2014 – 10 00 am Continued and f 5 of this section are not established adjacent to the relocated channels • Wastewater or mining dewatering wells with approved NPDES X permit Playground equipment • Playground equipment on single family lots provided that installation X and use does not result in removal of vegetation • Playground equipment installed on lands other than single - family lots X or that requires removal of vegetation Ponds created by impounding streams and not used as stormwater BMPs • New ponds provided that a riparian buffer that meets the requirements of subsections f 4 and f 5 of this section is X established adjacent to the pond • New ponds where a riparian buffer that meets the requirements of subsections f 4 and f 5 of this section is NOT established adjacent X to the pond Protection of existing structures , facilities and stream banks when this requires additional disturbance of the riparian buffer or the stream X channel Railroad impacts other than crossings of streams and other surface X waters subject to this section 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 X riparian buffer • Railroad crossings that impact greater than 40 linear feet but equal to X or less than 150 linear feet or one - third of an acre of riparian buffer • Railroad crossings that impact greater than 150 linear feet or one - X third of an acre of riparian buffer Recreational and accessory structures in Zone Two • Sheds and gazebos in Zone Two , provided they are not prohibited under local water supply ordinance ° Total footprint less than or equal to 150 square feet per lot X ° Total footprint greater than 150 square feet per lot X • Wooden slatted decks and associated steps , provided the use meets the requirements of subsections f 4 and f 5 of this section ° Deck at least eight feet in height and no vegetation removed from X Zone One ° Deck less than eight feet in height or vegetation removed from X Zone One Removal of previous fill or debris provided that diffuse flow is X maintained and vegetation is restored Road impacts other than crossings of streams and other surface waters X subject to this section 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 X riparian buffer • Road crossings that impact greater than 40 linear feet but equal to or X less than 150 linear feet or one - third of an acre of riparian buffer • Road crossings that impact greater than 150 linear feet or one - third of X an acre of riparian buffer 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 X • Greater than 2,500 square feet of buffer impact X Stormwater BMPs • Wet detention , bioretention , and constructed wetlands in Zone Two if X diffuse flow of discharge is provided into Zone One • Wet detention , bioretention , and constructed wetlands in Zone One X Scientific studies and stream gauging X Streambank or shoreline stabilization X 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 in subsection h 3 vii of this section PagePage pageNumber7769 January 6 , 2014 – 10 00 am Continued • Less than or equal to 2,500 square feet of buffer disturbance X • Greater than 2,500 square feet of buffer disturbance X • Associated with culvert installation or bridge construction or X replacement 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 in subsection h 3 vii of this section • In Zone Two provided ground cover is established within timeframes required by the Sedimentation and Erosion Control Act , vegetation in X Zone One is not compromised , and runoff is released as diffuse flow in accordance with subsection f 5 of this section • In Zones one and two to control impacts associated with uses approved by Johnston County or that have received a variance , X provided that sediment and erosion control for upland areas is addressed , to the maximum extent practical , outside the buffer • In - stream temporary erosion and sediment control measures for work within a stream channel that is authorized under Sections 401 and 404 X of the Federal Water Pollution Control Act • In - stream temporary erosion and sediment control measures for work X within a stream channel Utility , electric , aerial , perpendicular crossings of streams and other 2,3,5 surface waters subject to this section • Disturb equal to or less than 150 linear feet of riparian buffer X • Disturb greater than 150 linear feet of riparian buffer X 5 Utility , electric , aerial , other than perpendicular crossings • Impacts in Zone Two X 2,3 • Impacts in Zone One X 3,4,5 Utility , electric , underground , perpendicular crossings • Disturb less than or equal to 40 linear feet of riparian buffer X • Disturb greater than 40 linear feet of riparian buffer X 4 Utility , electric , underground , other than perpendicular crossings • Impacts in Zone Two X 1 • Impacts in Zone One X Utility , non - electric , perpendicular crossings of streams and other 3,5 surface waters subject to this section • Disturb equal to or less than 40 linear feet of riparian buffer with a X maintenance corridor equal to or less than 10 feet in width • Disturb equal to or less than 40 linear feet of riparian buffer with a X maintenance corridor greater than 10 feet in width • 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 X 10 feet in width • 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 X in width • Disturb greater than 150 linear feet of riparian buffer X 45 Utility , non - electric , other than perpendicular crossings • Impacts in Zone Two X 1 • Impacts in Zone One X Vegetation management • Emergency fire control measures provided that topography is restored X • Mowing or harvesting of plant products in Zone Two X • Planting vegetation to enhance the riparian buffer X • Pruning forest vegetation provided that the health and function of the X forest vegetation is not compromised • Removal of individual trees that are in danger of causing damage to dwellings , other structures or human life , or are imminently X endangering stability of the streambank • Removal of individual trees which are dead , diseased or damaged X • Removal of poison ivy X • Removal of invasive exotic vegetation as defined in Smith , Cherri L 1998 Exotic Plant Guidelines Dept of Environment and Natural X Resources Division of Parks and Recreation Raleigh , NC Guideline # 30 • Vehicular access roads leading to water - dependent structures as defined in 15A NCAC 02B 0202 , provided they do not cross the X surface water and have minimum practicable width not exceeding tenPagePage pageNumber8770 January 6 , 2014 – 10 00 am Continued feet • Water dependent structures as defined in 15A NCAC 02B 0202 X where installation and use result in disturbance to riparian buffers Water supply reservoirs • New reservoirs where a riparian buffer that meets the requirements of subsections f 4 and f 5 of this section is established adjacent to X the reservoir • New reservoirs where a riparian buffer that meets the requirements of subsections f 4 and f 5 of this section is not established adjacent X to the reservoir Water wells X Wetland , stream and buffer restoration that results in impacts to the X riparian buffers • Wetland , stream and buffer restoration that requires NC Division of Water Quality approval for the use of a 401 Water Quality X Certification • Wetland , stream and buffer restoration that does not require Division of Water Quality approval for the use of a 401 Water Quality X Certification Wildlife passage structures X 1 Provided that • No heavy equipment is used in Zone One • 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 • Zones one and two meet the requirements of subsections f 4 and f 5 2 Provided that , in Zone One , 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 by Johnston County as defined in subsection h 1 • 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 3 Provided that poles or aerial infrastructure shall not be installed within 10 feet of a water body unless Johnston County completes a no practical alternative evaluation as defined in subsection h 1 4 Provided that , in Zone One , 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 by Johnston County , as defined in subsection h 1 • 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 • 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 5 Perpendicular crossings are those that intersect the surface water at an angle between 75 degrees and 105 degrees 3 Requirements for categories of uses Uses designated in subsection g 2 of this section as exempt , allowable , and allowable with mitigation within a riparian buffer shall have the following requirements i Exempt Uses designated as exempt are permissible without authorization by Johnston County provided that they adhere to the limitations of the activity as defined in subsection g 2 of this section , the Table of Uses In addition , eExempt uses shall be designed , constructed and maintained to minimize soil disturbance and to provide the maximum water quality protection practicable , including construction , monitoring , and maintenance activities In addition , exempt uses shall meet the requirements listed in subsection f 5 of this section ii Allowable Uses designated as allowable may proceed provided that there are no practical alternatives to the requested use pursuant to subsection h 1 of this section This includes construction , monitoring , and maintenance activities These uses require written authorization from the Johnston County environmental and stormwater manager iii Allowable with mitigation Uses designated as allowable with mitigation may proceed provided that there are no practical alternatives to the requested use pursuant to subsection h 1 of this section and an appropriate mitigation strategyPagePage pageNumber9771 January 6 , 2014 – 10 00 am Continued has been approved pursuant to subsection h 3 These uses require written authorization from the Johnston County environmental and stormwater manager 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 h Permits procedures , requirements , and approvals 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 Countys 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 QualityResources , c o the 401 Oversight Express & Buffer Permitting Unit , or its successor The directors decision is subject to review as provided in GS ch 150B , art 3 and 4 2 Variances i Requirements for variances Persons who wish to undertake prohibited uses not listed in the Table of Uses may pursue a variance Johnston County may grant minor variances For major variances , Johnston County shall prepare preliminary findings and submit them to the Division of Water Quality , 401 Oversight Express Permitting Unit , or its successor for approval by the Environmental Management Commission for approval The variance request procedure shall be as follows 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 applicants 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 applicants property b The variance is in harmony with the general purpose and intent of the states riparian buffer protection requirements and this section and preserves its spirit ; andPage0772 January 6 , 2014 – 10 00 am Continued c In granting the variance , the public safety and welfare have been assured , water quality has been protected , and substantial justice has been done ii Minor variances A minor variance request pertains to activities that will impact only Zone Two of the riparian buffer Minor variance requests shall be reviewed and approved based on the criteria in subsection h 1 i through subsection h 1 iii by the Johnston County environmental and stormwater manager pursuant to GS ch 153A , art 18 , or GS ch 160A , art 19 Johnston County may attach conditions to the variance approval that support the purpose , spirit and intent of the riparian buffer protection program Request for appeals to decisions made by Johnston County shall be made in writing to the Director of the Division of Water QualityResources c o the 401 Oversight Express & Buffer Permitting Unit , or its successor The directors decision is subject to review as provided in GS ch 150B , art 3 and 4 iii Major variances A major variance request pertains to activities that will impact any portion of Zone One or any portion of both Zones One and Two of the riparian buffer If the Johnston County environmental and stormwater manager has determined that a major variance request meets the requirements in subsection h 1 i through subsection h 1 iii , then the environmental and stormwater manager shall prepare a preliminary finding and submit it to the NC Environmental Management Commission c o the Division of Water Quality , 401 Oversight Express Permitting Unit , or its successor , for approval Within 90 days after receipt from Johnston County , the commission shall review preliminary findings on major variance requests and take one of the following actions approve , approve with conditions and stipulations , or deny the request Appeals from a commission decision on a major variance request are made on judicial review to Superior Courtthe Office of Administrative Hearings under GS 153A – 345 3 Mitigation 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 ii Issuance of the mitigation approval Johnston County shall issue a mitigation approval upon determining that a proposal meets the requirements set out in this section The approval shall identify at a minimum the option chosen , the required and proposed areas , and either the mitigation location or the offset payment amount as applicable iii Options for meeting the mitigation requirement The mitigation requirement may be met through one of the following options 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 wwwsawusacearmymil WETLANDS Mitigation mitbankshtml or from the US Army Corps of Engineers , PO 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 iv The area of mitigation Johnston County shall determine the required area of mitigation , which shall apply to all mitigation options identified in subsection h 3 iii of this section and as further specified in the requirements for each option set out in this section , according to the following 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 v The location of mitigation For any option chosen , the mitigation effort shall be the same distance from the Neuse River estuary as the proposed impact , or closer to the estuary than the impact , and as close to the location of the impact as feasible vi Donation of property Persons who choose to satisfy their mitigation determination by donating real property or an interest in real property shall meet the following requirements 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 Page1773 January 6 , 2014 – 10 00 am Continued c Donation of real property interests to satisfy the mitigation determination shall be accepted only if such property meets all of the following requirements i In addition to the location requirements of subsection h 3 v of this section , 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 Basinwide Wetlands and Riparian Restoration Plan developed by NC Division of Water Quality Resources pursuant to GS 143 - 21410 ; or shall be located at a site that is otherwise consistent with the goals outlined in the Basinwide Wetlands and Riparian Restoration Plan ii The property shall contain riparian buffers not currently protected by the states 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 USC 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 owners 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 75 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 , PO Box 96734 , Washington , DC 20090 - 6734 ; and v A title certificate vii Riparian buffer restoration or enhancement Persons who choose to meet their mitigation requirement through riparian buffer restoration or enhancement shall meet the following requirements 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 Enhancement and restoration shall both have the objective of establishing a forested riparian buffer according to the requirements of this Item Enhancement shall be distinguished from restoration based on existing buffer conditions Where existing trees are sparse , that is greater than or equal to 100 trees per acre but less than 200 trees per acre , a buffer may be enhanced Where existing woody vegetation is absent , that is less than 100 trees per acre , a buffer may be restored ; ed 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 ;Page2774 January 6 , 2014 – 10 00 am Continued f 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 states and the countys riparian buffer protection program ; g The mitigation area shall be placed under a perpetual conservation easement that will provide for protection of the propertys nutrient removal functions ; and h 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 4 Requirements Specific to Forest Harvesting The following requirements shall apply for forest harvesting operations and practices 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 GS 105 - 2772 through GS 2776 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 Compliance and enforcement 1 Site inspections i Agents , officials , or other qualified persons authorized by Johnston County may periodically inspect