Frequently Asked Questions Wetland & Stream FAQs What are waters of the State? Waters of the State include any stream, river, brook, swamp, lake, sound, tidal estuary, bay, creek, reservoir, waterway, or other body or accumulation of water. They can be surface or underground, public or private, natural or artificial. Finally, they must be contained in, flow through, or border upon any portion of this State (including any portion of the Atlantic Ocean over which the State has jurisdiction). G.S. 143-212(6) What is a stream? A stream is a body of concentrated flowing water in a natural low area or natural channel on the land surface (15A NCAC 02B .0233(2)). There are three stream types: ephemeral, intermittent, and perennial. Ephemeral streams are features that only carry stormwater in direct response to precipitation. They may have a well-defined channel and they typically lack the biological, hydrological, and physical characteristics commonly associated with intermittent or continuous conveyances of water. These features are typically not regulated by NC DWR or the U.S. Army Corps of Engineers. Intermittent streams have a well-defined channel that contains water for only part of the year (typically during winter and spring). The flow may be heavily supplemented by stormwater. When dry, they typically lack the biological and hydrological characteristics commonly associated with continuous conveyances of water. These features are regulated by NC DWR and typically regulated by the U.S. Army Corps of Engineers. Perennial streams have a well-defined channel that contains water year-round during a year with normal rainfall. Groundwater is the primary source of water, but they also carry stormwater. They exhibit the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water. These features are regulated by NC DWR and typically regulated by the U.S. Army Corps of Engineers. What is the difference between a “modified natural stream” and a “ditch” or “canal”? A modified natural stream means the channelization or relocation of a stream. Consequently, the flow is relocated. They exhibit the typical biological, hydrological, and physical characteristics commonly associated with the continuous conveyance of water. These features are regulated by NC DWR and are typically regulated by the U.S. Army Corps of Engineers. A ditch or canal means a man-made channel other than a modified natural stream. They are constructed for drainage purposes and typically dug through inter-stream divide areas. They may exhibit hydrological and biological characteristics similar to streams. These features are typically not regulated by NC DWR or the U.S. Army Corps of Engineers. Who determines if a stream is jurisdictional? Division of Water Resources (DWR) determines the presence and location of waters of the State, including streams. The U.S. Army Corps of Engineers determines waters of the U.S. In areas where there are riparian buffer protection programs, other entities may make stream determinations for the buffer rules only (see Buffer FAQs, below). To schedule a stream determination, please contact our Regional Offices. What does the term “blue-line stream” mean? “Blue-line stream” means that a stream appears as a broken or solid blue line (or a purple line) on a USGS topographic map. Streams do not have to be “blue-line” to be considered waters of the State. Do streams have to be on a map to be regulated? NO!!! While topographic maps and soil surveys may be helpful for some streams, a stream does not have to appear on a map to be regulated (see Buffer FAQs, below, for map requirements). What is a wetland? Wetlands are the interfaces between land and water. They are characterized by having hydric soils, hydrophytic plants and wetland hydrology (for more information about wetlands, please click here). Wetlands are regulated by NC DWR and the U.S. Army Corps of Engineers. Who determines if a wetland is jurisdictional? The U.S. Army Corps of Engineers determine the presence and location of wetlands that are jurisdictional under Section 404 of the Clean Water Act. 401 Certification & Permit FAQs What is a 404 permit? "404" refers to Section 404 of the Clean Water Act. The U.S. Army Corps of Engineers (USACE) is the federal agency responsible for issuing 404 Permits; these permits are required for the discharge of fill material into streams, wetlands and open waters. For more information about 404 permitting, click here. What is a 401 WQC? "401" refers to Section 401 of the Clean Water Act. The North Carolina Division of Water Resources (DWR) is the state agency responsible for issuing 401 water quality certifications (WQC). When the state issues a 401 certification (which is required for any federally permitted or licensed activity that may result in a discharge to waters of the U.S.), this certifies that a given project will not degrade Waters of the State or violate State water quality standards. When do I need a 401 WQC? A 401 WQC is required for any federally permitted or licensed activity that may result in a discharge to waters of the U.S. Typically, if the USACE determines that a 404 Permit or Section 10 Permit is required because your proposed project involves impacts to wetlands or waters, then a 401 WQC is also required. Examples of activities that may require permits include: Any disturbance to the bed (bottom) or banks (sides) of a stream. Any disturbance to a wetland. The damming of a stream channel to create a pond or lake. Placement of any material within a stream, wetland or open water, including material that is necessary for construction, culvert installation, causeways, road fills, dams, dikes or artificial islands, property protection, reclamation devices and fill for pipes or utility lines. Temporary impacts including dewatering of dredged material prior to final disposal and temporary fill for access roads, cofferdams, storage and work areas. How much can I impact? The best practice is to avoid all impacts to streams, wetlands and open waters when possible. Before you start any project that might have impacts, contact your local USACE or DWR representative to determine whether permits are needed. It is essential that when you plan your project, you seek all practical attempts to avoid or minimize impacts to streams, wetlands and open waters. The permitting process is not automatic – applicants must demonstrate that they have avoided and minimized impacts to the maximum extent practical. Avoid: Has the project been designed to avoid impacts to wetlands, streams and other natural resources? Have alternative options, designs and locations been considered? Minimize: Where project impacts are unavoidable, is the project designed such that the impacts have been minimized? What type of WQC do I need? The USACE determines which type of permit is required. Once the USACE determines which type of permit, there will be a corresponding water quality certification. Most activities fall under one of our general certifications. Do I always have to apply to DWR to be covered under a 401 WQC? No, not all activities require written approval to be covered under a general certification. Once the USACE has determined which type of permit and you have read the application requirements in the corresponding certification, you can determine if written approval is required for your project. Please note that your project is still covered under the 401 WQC and all conditions of that certification must be followed, including the stormwater management plan condition. What if I do not need written approval to be covered under a 401 WQC? If written approval is not required, and the project meets all of the conditions of the certification, then you do not need to submit a formal application to DWR, nor will you receive a signed 401 WQC from DWR. Please note that your project is still covered under the 401 WQC and all conditions of that certification must be followed, including the stormwater management plan condition. What is an Isolated and Other Non-404 Jurisdictional Wetlands and Waters Permit? An Isolated and Other Non-404 Jurisdictional Wetlands and Waters Permit is a permit for impacts to isolated wetlands or surface waters or any other non-404 jurisdictional wetlands or surface waters. When do I need an Isolated and Other Non-404 Jurisdictional Wetlands and Waters Permit? An Isolated and Other Non-404 Jurisdictional Wetlands and Waters Permit is required when a proposed project involves impacts to wetlands or waters that the USACE determines are not jurisdictional under Section 404 of the CWA. For a list of activities that may require a permit, click here. How do I apply for a 401 WQC or Isolated and Other Non-404 Jurisdictional Wetlands and Waters Permit? Use the pre-construction notification (PCN) form to apply for general 401 WQCs and Isolated and Other Non-404 Jurisdictional Wetlands and Waters Permit. A different form is required for individual permits. In addition to the completed PCN Form, at a minimum you should include the following items with your application: A cover letter explaining your project. A vicinity map. A site plan, drawn to scale, depicting all proposed impact areas (temporary and permanent impacts). Please note: DWR can accept full size plan sheets. Any supporting documentation available, such as correspondence received from the USACE or photographs. All additional information requested within the PCN Form, such as proof of pre-filing meeting request at least 30 days prior to submittal of PCN form. The appropriate application fee. Where do I send my application packet? If you have a transportation project please send the application for DWR to: Mailing Address (if sending by first class mail via the US Postal Service): NC DWR, Transportation Permitting Branch 1617 Mail Service Center Raleigh, NC 27699-1617 Physical Address (if sending by delivery service, UPS, FedEx, etc.): NC DWR, Transportation Permitting Branch 512 North Salisbury Street Raleigh, NC 27604 For all other projects, please send the application for DWR to: Mailing Address (if sending by first class mail via the US Postal Service): NC DWR, 401 & Buffer Permitting Branch 1617 Mail Service Center Raleigh, NC 27699-1617 Physical Address (if sending by delivery service, UPS, FedEx, etc.): NC DWR, 401 & Buffer Permitting Branch 512 North Salisbury Street Raleigh, NC 27604 Is there an application fee? Yes. Please see our fee page for more information. Is there an express review option? Yes, the Express Review Program offers a more timely review than the traditional permit review process. Participation in the program is voluntary and higher fees are charged. What happens after my application is received by DWR? Once your application is received by DWR and determined to be complete, we have 60 days to prepare a response. All applications will be reviewed in the order received. Please note that if your application is determined to be incomplete by DWR, then the 60-day clock has not begun. Many applications are forwarded to the appropriate DWR Regional Office for site-specific review. Once a staff report is submitted, DWR may issue the 401 Certification or may request more information. If we request more information and that information is not provided, the application will be returned. How can I track the status of my application? Please go to the DENR application tracker website for more information on the status of your application. How can I access the project files? Please go our electronic document management system to view and print files for projects that include buffer impacts, stream determinations, mitigation and 401 certifications and 401 stormwater management plans. Riparian Buffer FAQs What is a riparian buffer? A riparian buffer is a vegetated area bordering a body of water, such as a stream, lake or pond. How do riparian buffers work? The vegetated area closest to the body of water stabilizes the streambank and provides shade and habitat for aquatic life. The vegetation also acts like a filter and sponge to remove, transform, or store nutrients and other pollutants. The outer reaches of the vegetated buffer slow and spread out the flow of water over the land, trapping sediment and attached pollutants How are riparian buffers beneficial? Riparian buffers filter stormwater runoff before it enters the stream. The vegetation within the buffer absorbs excess nutrients and sediment, controls erosion, moderates water temperature and provides habitat for wildlife. They also provide flood control and protect property. Can I use the online soil survey maps to determine if a stream is subject? The most recent published version of the NRCS soil survey maps is the acceptable version to be used for applicability to the riparian buffer rules. Buffer Clarification Memo # 2007-0008 and the Interpretive Ruling on NRCS Soils Survey Map clarify this in more detail. What is diffuse/dispersed flow? Diffuse/dispersed flow refers to overland water flow that is spread out over the landscape, rather than concentrated in a defined channel or pipe. Where are riparian buffer protection programs in place? There are state riparian buffer protection programs in the Neuse River Basin, Tar-Pamlico River Basin, Catawba River Basin, Randleman Lake Watershed, Jordan Lake Watershed and Goose Creek Watershed. There are also local buffer protection programs across the state. Are there other programs with buffer or setbacks on surface waters? Yes, there are many different programs. Stormwater programs include: Phase I and Phase II NPDES, Session Law 2006-246, Water Supply Watershed, Coastal Stormwater, High Quality Waters, Outstanding Resource Waters, Universal Stormwater Management and Goose Creek Watershed. There are also programs regulated under the Non-discharge (2T) rules with setbacks, including sewer extensions, irrigation systems and recycle systems. The Division of Land Resources implements a buffer on Trout waters. (Click here for a Trout Buffer factsheet and here for a Trout Buffer FAQ brochure). Where do the riparian buffer rules apply? In the Neuse River Basin, Tar-Pamlico River Basin and the Goose Creek Watershed the buffer applies to: intermittent streams, perennial streams, lakes, ponds, estuaries and modified natural streams that are depicted on the most recent printed version of the soil survey map prepared by the Natural Resources Conservation Service OR the 1:24,000 scale quadrangle topographic map prepared by the U.S. Geologic Survey. In the Randleman Lake Watershed the buffer applies to: same as above OR if other site specific evidence indicates to DWR the presence of waters not shown on either of the two maps. In the Catawba River Basin the buffer applies to: the Catawba River mainstem below Lake James and along mainstem lakes from and including Lake James to the South Carolina border in the Catawba River Basin. (Catawba buffer rules also apply to the South Fork of the Catawba river up to the 569’ elevation of Lake Wylie). In the Jordan Lake Watershed the buffer applies to: intermittent streams, perennial streams, lakes, ponds and reservoirs that are depicted only on the following maps: the most recent printed version of the soil survey map prepared by the Natural Resources Conservation Service OR the 1:24,000 scale quadrangle topographic map prepared by the U.S. Geologic Survey OR a map approved by the Geographic Information Coordinating Council and by the N.C. Environmental Management Commission. Are there provisions to allow existing uses to remain in the riparian buffer? Yes. A use is considered “existing” if it was present within the riparian buffer prior to the effective date of that rule for DWR regulated activities (Neuse: July 22, 1997; Tar-Pamlico: January 1, 2000; Catawba: June 30, 2001; Randleman: April 1, 1999; Goose Creek: February 1, 2009; Jordan Lake: August 11, 2009 or the date of local government implementation for local government regulated activities). For more information about existing uses, please see the appropriate buffer rule(s). What uses are allowed within the riparian buffer? The riparian buffer must be undisturbed, regardless of property size or type of land use. Within each set of buffer rules*, there is a Table of Uses for specific activities: Deemed Allowable (Jordan: Exempt) uses are allowed in the riparian buffer without approval from the Division of Water Resources (DWR). Allowable upon Authorization (Jordan: (Potentially) Allowable) uses may occur in the buffer after written authorization from DWR. Some of these impacts may require mitigation for the impacts and the uses are therefore considered Allowable with Mitigation upon Authorization (Jordan: Allowable with Mitigation ). Prohibited uses are not allowed in the buffer unless a variance is granted from the N.C. Environmental Management Commission. Activities not listed in the Table of Uses are Allowable with Exception (Jordan: Prohibited). What restoration is required if the riparian buffer is cleared without a buffer authorization? The Division's clarification memo #2008-016 outlines the requirements. When do I need a buffer authorization? A buffer authorization, or a “no practical alternatives” determination, is required for any use that is designated as “Allowable upon Authorizaton” or “Allowable with Mitigation upon Authorization” within the applicable buffer rule (see above for definition of uses). When do I need a variance? A variance is required for any activity that is listed as “prohibited” in the Table of Uses (see above for definition of uses), except in Jordan where a variance is required for any activity that is not specifically listed in the Table of Uses. Variances transfer with the property and, once approved by the DWR, the variance does not expire. There are two types of variances*, major and minor. Variances for Tar-Pamlico, Neuse, Catawba, Randleman, and Goose Creek: Uses designated as prohibited in the table of uses may not proceed within the riparian buffer unless a variance is granted pursuant to 15A NCAC 02B .0226. Variances for Jordan: Minor Variances are for impacts to Zone 2 of the buffer only. Approvals for minor variances may be granted by DWQ or the delegated local program. Major Variances are for impacts to Zone 1 or Zones 1 and 2 of the buffer. Approvals for major variances may only be granted by the N.C. Environmental Management Commission. When do I need an Authorization with Exception? An authorization with exception is required for any activity that is not specifically listed in the Table of Uses in Tar-Pamlico, Neuse, Catawba, Randleman, and Goose Creek. Major exceptions require public notice by DWR. Minor Exceptions are for impacts less than 1/3 acre Major Exceptions are for impacts greater than 1/3 acre How do I apply for a buffer authorization or variance? The pre-construction notification (PCN) form is used to apply for buffer authorizations, which includes a “no practical alternatives” determination. For variance applications, click here. Where do I send my buffer authorization or variance application? Please send your completed application with all attachments to: NC DWR, 401 & Buffer Permitting Unit 1617 Mail Service Center Raleigh, NC 27669-1617. Is there an application fee? No, there is no application fee for buffer authorizations or variances. How can I track the status of my application? Who do I contact if I have questions about riparian buffer rules? For questions about the riparian buffer rules, contact your local Surface Water Protection Regional Office Staff or DWR's 401/ Buffer Coordinator at (919) 707-3631 in the Central Office. For questions regarding minor exceptions, minor variances, and buffer authorizations in the Neuse and Tar-Pamlico Basins in the coastal counties (except for Carteret, Duplin and Onslow counties), contact the Washington Regional Office. Questions regarding the riparian buffer rules in Carteret, Duplin and Onslow counties can be directed to the Wilmington Regional Office. For questions regarding minor exceptions, minor variances, and buffer authorizations in the Neuse and Tar-Pamlico Basins in the non-coastal counties contact the Raleigh Regional Office. For questions regarding major exceptions and major variance applications in all riparian buffer basins contact Rick Trone at 919-707-3631 or firstname.lastname@example.org. You may also refer to the DENR application tracker website for general information on the status of your application. How can I access the project files? You may refer to our electronic document management system to view and print files for projects that include buffer impacts, stream determinations, mitigation and 401 certifications, and 401 stormwater management plans. Is there an Express Review option? The Central Office is no longer accepting Express applications. The Washington and Wilmington Regional offices are still accepting Express projects. For more information about express review in those two regions click here. Are there any local governments delegated to implement the riparian buffer protection programs? Yes. As of August 1, 2011, these local governments are delegated: Neuse: Orange County, Pitt County, Johnston County, Town of Morrisville, Town of Hillsborough Tar-Pamlico: Pitt County Catawba: McDowell County, Burke County Goose Creek: Mecklenburg County (for the Town of Mint Hill Only) Randleman: All local governments within the watershed (includes Forsyth County, Guilford County, Randolph County, City of Winston-Salem, City of Archdale, City of Greensboro, City of High Point, Town of Jamestown, Town of Kernersville, City of Randleman, City of Trinity) Jordan: All local governments within the watershed. For a list of those local governments and their contact information click here. (Please note: As of August 11, 2009, DWR implements the Jordan Buffer Rules for all or portions of Forsyth, Randolph, Alamance, Chatham, Caswell and Rockingham Counties and all or portions of the Towns of Summerfield, Reidsville, Ossipee and Alamance. DWR also implements the Jordan Buffer rules for any activities conducted under the authority of the State, United States, multiple jurisdictions or local units of government and all forestry and agriculture activities.) For a comprehensive list of local governments delegated/designated to administer the state riparian buffer protection rules, you may also click here. When applicable, please contact the locally delegated government agency for more information about their program.