NORTH CAROLINA REGISTER VOLUME 28 ● ISSUE 24 ● Pages 2975 – 3111 June 16, 2014 EXECUTIVE ORDERS Executive Order No. 51 2975 – 2976 Executive Order No. 52 2977 – 2979 Executive Order No. 53 2980 – 2981 II. IN ADDITION Environmental Management Commission – Public Notice. 2982 Health Service Regulation, Division of – COPA 2983 III. PROPOSED RULES Environment and Natural Resources, Department of Environmental Management Commission 3004 – 3032 Insurance, Department of Agent Services Division 2984 – 2985 Justice, Department of Criminal Justice Education and Training Standards Commission 2985 – 3004 Occupational Licensing Boards and Commissions Irrigation Contractors Licensing, Board of 3032 – 3034 Landscape Architects, Licensing Board of 3034 – 3040 Soil Scientists, Board for Licensing of 3040 – 3041 IV. RULES REVIEW COMMISSION 3042 – 3052 V. CONTESTED CASE DECISIONS Index to ALJ Decisions 3053 – 3069 Text of ALJ Decisions 12 DHR 09028 3070 – 3074 12 OSP 04550 3075 – 3082 13 EDC 16807 3083 – 3087 13 OSP 02680 3088 – 3108 14 EHR 00662 3109 – 3111 PUBLISHED BY The Office of Administrative Hearings Rules Division 6714 Mail Service Center Raleigh, NC 27699-6714 Telephone (919) 431-3000 Fax (919) 431-3104 Julian Mann III, Director Molly Masich, Codifier of Rules Dana Vojtko, Publications Coordinator Tammara Chalmers, Editorial Assistant Lindsay Woy, Editorial Assistant
development by vegetated conveyances to the maximum extent practicable; (E) A maximum of 10 percent of each jurisdiction's portion of the watershed outside of the critical area as delineated on July 1, 1993 may be developed with new development projects and expansions of existing development of up to 70 percent builtupon surface area in addition to the new development approved in compliance with the appropriate requirements of SubItem (3)(b)(i)(A) or SubItem (3)(b)(i)(B) of this Rule. For expansions to existing development, the existing builtupon surface area is not counted toward the allowed 70 percent builtupon surface area. A local government having jurisdiction within the watershed may transfer, in whole or in part, its right to the 10 percent/70 percent land area to another local government within the watershed upon submittal of a joint resolution and review by the Commission. When the water supply watershed is composed of public lands, such as National Forest land, local governments may count the public land acreage within the watershed outside of the critical area in calculating the acreage allowed under this provision. For local governments that do not choose to use the high density option in that WSII watershed, each project must, to the maximum extent practicable, minimize builtupon surface area, direct stormwater runoff away from surface waters and incorporate best management practices to minimize water quality impacts. If the local government selects the high density development option within that WSII watershed, then engineered stormwater controls must be employed for the new development; (F) If local governments choose the high density development option which requires stormwater controls, then they shall assume ultimate responsibility for operation and maintenance of the required controls as outlined in Rule .0104 of this Subchapter; (G) Minimum 100 foot vegetative buffer is required for all new development activities that exceed the low density option requirements as specified in SubItems (3)(b)(i)(A) and SubItem (3)(b)(ii)(A) of this Rule, otherwise a minimum 30 foot vegetative buffer for development activities is required along all perennial waters indicated on the most recent versions of U.S.G.S. 1:24,000 (7.5 minute) scale topographic maps or as determined by local government studies. Nothing in this Rule shall stand as a bar to
Any discharger may be required by the Commission to disclose all chemical constituents present or potentially present in their wastes and chemicals which could be spilled or be present in runoff from their facility which may have an adverse impact on downstream water quality. These facilities may be required to have spill and treatment failure control plans as well as perform special monitoring for toxic substances; (b) Nonpoint Source and Stormwater Pollution: none that would adversely impact the waters for use as water supply or any other designated use; (i) Nonpoint Source and Stormwater Pollution Control Criteria For Entire Watershed: (A) Low Density Option: development density must be limited to either no more than two dwelling units of single family detached residential development per acre (or 20,000 square foot lot excluding roadway rightofway) or 24 percent builtupon area for all other residential and nonresidential development in watershed outside of the critical area; stormwater runoff from the development shall be transported by vegetated conveyances to the maximum extent practicable; (B) High Density Option: if new development density exceeds the low density option requirements specified in SubItem (3)(b)(i)(A) of this Rule then development must control runoff from the first inch of rainfall; new residential and nonresidential development shall not exceed 50 percent builtupon area; (C) Land within the watershed shall be deemed compliant with the density requirements if the following condition is met: the density of all existing development at the time of reclassification does not exceed the density requirement when densities are averaged throughout the entire watershed area; (D) Cluster development is allowed on a projectbyproject basis as follows: (I) overall density of the project meets associated density or stormwater control requirements of this Rule; (II) buffers meet the minimum statewide water supply watershed protection requirements; (III) builtupon areas are designed and located to minimize stormwater runoff impact to the receiving waters, minimize concentrated stormwater flow, maximize the use of sheet flow through vegetated areas, and maximize the flow length through vegetated areas; (IV) areas of concentrated development
are located in upland areas and away, to the maximum extent practicable, from surface waters and drainageways; (V) remainder of tract to remain in vegetated or natural state; (VI) area in the vegetated or natural state may be conveyed to a property owners association, a local government for preservation as a park or greenway, a conservation organization or placed in a permanent conservation or farmland preservation easement; (VII) a maintenance agreement for the vegetated or natural area shall be filed with the Register of Deeds; and (VIII) cluster development that meets the applicable low density option requirements shall transport stormwater runoff from the development by vegetated conveyances to the maximum extent practicable; (E) A maximum of 10 percent of each jurisdiction's portion of the watershed outside of the critical area as delineated on July 1, 1993 may be developed with new development projects and expansions of existing development of up to 70 percent builtupon surface area in addition to the new development approved in compliance with the appropriate requirements of SubItem (3)(b)(i)(A) or SubItem (3)(b)(i)(B) of this Rule. For expansions to existing development, the existing builtupon surface area is not counted toward the allowed 70 percent builtupon surface area. A local government having jurisdiction within the watershed may transfer, in whole or in part, its right to the 10 percent/70 percent land area to another local government within the watershed upon submittal of a joint resolution and review by the Commission. When the water supply watershed is composed of public lands, such as National Forest land, local governments may count the public land acreage within the watershed outside of the critical area in figuring the acreage allowed under this provision. For local governments that do not choose to use the high density option in that WSIII watershed, each project must, to the maximum extent practicable, minimize builtupon surface area, direct stormwater runoff away from surface waters, and incorporate best management practices to minimize water quality impacts. If the
local government selects the high density development option within that WSIII watershed, then engineered stormwater controls must be employed for the new development; (F) If local governments choose the high density development option which requires engineered stormwater controls, then they shall assume ultimate responsibility for operation and maintenance of the required controls as outlined in Rule .0104 of this Subchapter; (G) Minimum 100 foot vegetative buffer is required for all new development activities that exceed the low density requirements as specified in Sub-Item (3)(b)(i)(A) and (3)(b)(ii)(A) of this Rule, otherwise a minimum 30 foot vegetative buffer for development is required along all perennial waters indicated on the most recent versions of U.S.G.S. 1:24,000 (7.5 minute) scale topographic maps or as determined by local government studies. Nothing in this Rule shall stand as a bar to artificial streambank or shoreline stabilization; (H) No new development is allowed in the buffer; water dependent structures, or other structures such as flag poles, signs and security lights, which result in only de minimus increases in impervious area and public projects such as road crossings and greenways may be allowed where no practicable alternative exists. These activities shall minimize builtupon surface area, direct runoff away from surface waters and maximize the utilization of BMPs; (I) No NPDES permits shall be issued for landfills that discharge treated leachate; (ii) Critical Area Nonpoint Source and Stormwater Pollution Control Criteria: (A) Low Density Option: new development limited to either no more than one dwelling unit of single family detached residential development per acre (or 40,000 square foot lot excluding roadway rightofway) or 12 percent builtupon area for all other residential and nonresidential development; stormwater runoff from the development shall be transported by vegetated conveyances to the maximum extent practicable; (B) High Density Option: if new development exceeds the low density requirements specified in SubItem (3)(b)(ii)(A) of this Rule, then engineered stormwater controls must be used to control runoff from the first inch of rainfall; development shall not exceed 30 percent builtupon area; (C) No new permitted sites for land application of
(B) High Density Option: if new development activities which require a Sedimentation/Erosion Control Plan exceed the low density requirements of (3)(b)(i)(A) of this Rule then development shall control the runoff from the first inch of rainfall; new residential and non-residential development shall not exceed 70 percent builtupon area; (C) Land within the critical and protected area shall be deemed compliant with the density requirements if the following condition is met: the density of all existing development at the time of reclassification does not exceed the density requirement when densities are averaged throughout the entire area; (D) Cluster development shall be allowed on a projectbyproject basis as follows: (I) overall density of the project meets associated density or stormwater control requirements of this Rule; (II) buffers meet the minimum statewide water supply watershed protection requirements; (III) builtupon areas are designed and located to minimize stormwater runoff impact to the receiving waters, minimize concentrated stormwater flow, maximize the use of sheet flow through vegetated areas, and maximize the flow length through vegetated areas; (IV) areas of concentrated development are located in upland areas and away, to the maximum extent practicable, from surface waters and drainageways; (V) remainder of tract to remain in vegetated or natural state; (VI) area in the vegetated or natural state may be conveyed to a property owners association, a local government for preservation as a park or greenway, a conservation organization, or placed in a permanent conservation or farmland preservation easement; (VII) a maintenance agreement for the vegetated or natural area shall be filed with the Register of Deeds; and (VIII) cluster development that meets the applicable low density option requirements shall transport stormwater runoff from the development by vegetated conveyances to the maximum extent practicable; (E) If local governments choose the high density development option
which requires engineered stormwater controls, then they shall assume ultimate responsibility for operation and maintenance of the required controls as outlined in Rule .0104 of this Subchapter; (F) Minimum 100 foot vegetative buffer is required for all new development activities that exceed the low density option requirements as specified in Sub-Item (3)(b)(i)(A) or Sub-Item (3)(b)(ii)(A) of this Rule, otherwise a minimum 30 foot vegetative buffer for development shall be required along all perennial waters indicated on the most recent versions of U.S.G.S. 1:24,000 (7.5 minute) scale topographic maps or as determined by local government studies; (G) No new development shall be allowed in the buffer; water dependent structures, or other structures, such as flag poles, signs and security lights, which result in only de minimus increases in impervious area and public projects such as road crossings and greenways may be allowed where no practicable alternative exists. These activities shall minimize builtupon surface area, divert runoff away from surface waters and maximize the utilization of BMPs; (H) For local governments that do not use the high density option, a maximum of 10 percent of each jurisdiction's portion of the watershed outside of the critical area as delineated on July 1, 1995 may be developed with new development projects and expansions to existing development of up to 70 percent builtupon surface area in addition to the new development approved in compliance with the appropriate requirements of (3)(b)(i)(A) of this Rule. For expansions to existing development, the existing built-upon surface area shall not be counted toward the allowed 70 percent built-upon surface area. A local government having jurisdiction within the watershed may transfer, in whole or in part, its right to the 10 percent/70 percent land area to another local government within the watershed upon submittal of a joint resolution for review by the Commission. When the designated water supply watershed area is composed of public land, such as National Forest land, local governments may count the public land acreage within the designated watershed area outside of the critical area in figuring the acreage allowed under this provision. Each project shall, to the maximum extent practicable, minimize builtupon surface area, direct stormwater runoff away from surface waters and incorporate best management practices to minimize water quality impacts;