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This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA REGISTER VOLUME 26 ● ISSUE 07 ● Pages 550 - 643 October 3, 2011 I. EXECUTIVE ORDERS Executive Order No. 103-107 ............................................................................. 550 – 562 II. IN ADDITION Written Advisory – Board of Elections ........................................................... 563 – 564 Decision Letters on "Changes Affecting Voting" from US Attorney General 565 – 566 III. PROPOSED RULES Justice, Department of Sheriffs' Education and Training Standards .................................................... 567 – 570 Occupational Licensing Boards and Commissions Podiatry Examiners, Board of ......................................................................... 570 – 572 IV. TEMPORARY RULES Commerce, Department of Tax Reform Allocation Committee ................................................................. 573 – 574 V. APPROVED RULES ........................................................................................ 575 – 625 Cultural Resources, Department of Public Librarian Certification Commission Environment and Natural Resources, Department of Department Environmental Management Commission Wildlife Resources Commission Health and Human Services, Department of Social Services Commission Insurance, Department of Home Inspector Licensure Board Occupational Licensing Boards and Commissions Cosmetic Art Examiners, Board of Massage and Bodywork Therapy, Board of Engineers & Surveyors, Board of Examiners of Refrigeration Examiners, Board of VI. RULES REVIEW COMMISSION ................................................................. 626– 639 VII. CONTESTED CASE DECISIONS Index to ALJ Decisions ...................................................................................... 640– 643 This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 Contact List for Rulemaking Questions or Concerns For questions or concerns regarding the Administrative Procedure Act or any of its components, consult with the agencies below. The bolded headings are typical issues which the given agency can address, but are not inclusive. Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc. Office of Administrative Hearings Rules Division 1711 New Hope Church Road (919) 431-3000 Raleigh, North Carolina 27609 (919) 431-3104 FAX contact: Molly Masich, Codifier of Rules molly.masich@oah.nc.gov (919) 431-3071 Dana Vojtko, Publications Coordinator dana.vojtko@oah.nc.gov (919) 431-3075 Julie Edwards, Editorial Assistant julie.edwards@oah.nc.gov (919) 431-3073 Tammara Chalmers, Editorial Assistant tammara.chalmers@oah.nc.gov (919) 431-3083 Rule Review and Legal Issues Rules Review Commission 1711 New Hope Church Road (919) 431-3000 Raleigh, North Carolina 27609 (919) 431-3104 FAX contact: Joe DeLuca Jr., Commission Counsel joe.deluca@oah.nc.gov (919) 431-3081 Bobby Bryan, Commission Counsel bobby.bryan@oah.nc.gov (919) 431-3079 Fiscal Notes & Economic Analysis and Governor's Review Office of State Budget and Management 116 West Jones Street (919) 807-4700 Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX Contact: Anca Grozav, Economic Analyst osbmruleanalysis@osbm.nc.gov (919) 807-4740 NC Association of County Commissioners 215 North Dawson Street (919) 715-2893 Raleigh, North Carolina 27603 contact: Rebecca Troutman rebecca.troutman@ncacc.org NC League of Municipalities (919) 715-4000 215 North Dawson Street Raleigh, North Carolina 27603 contact: Erin L. Wynia ewynia@nclm.org Legislative Process Concerning Rule-making Joint Legislative Administrative Procedure Oversight Committee 545 Legislative Office Building 300 North Salisbury Street (919) 733-2578 Raleigh, North Carolina 27611 (919) 715-5460 FAX contact: Karen Cochrane-Brown, Staff Attorney Karen.cochrane-brown@ncleg.net Jeff Hudson, Staff Attorney Jeffrey.hudson@ncleg.net This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA REGISTER Publication Schedule for January 2011 – December 2011 FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY RULES Volume & issue number Issue date Last day for filing Earliest date for public hearing End of required comment period Deadline to submit to RRC for review at next meeting Earliest Eff. Date of Permanent Rule Delayed Eff. Date of Permanent Rule 31st legislative day of the session beginning: 270th day from publication in the Register 25:13 01/03/11 12/08/10 01/18/11 03/04/11 03/21/11 05/01/11 05/2012 09/30/11 25:14 01/18/11 12/22/10 02/02/11 03/21/11 03/21/11 05/01/11 05/2012 10/15/11 25:15 02/01/11 01/10/11 02/16/11 04/04/11 04/20/11 06/01/11 05/2012 10/29/11 25:16 02/15/11 01/25/11 03/02/11 04/18/11 04/20/11 06/01/11 05/2012 11/12/11 25:17 03/01/11 02/08/11 03/16/11 05/02/11 05/20/11 07/01/11 05/2012 11/26/11 25:18 03/15/11 02/22/11 03/30/11 05/16/11 05/20/11 07/01/11 05/2012 12/10/11 25:19 04/01/11 03/11/11 04/16/11 05/31/11 06/20/11 08/01/11 05/2012 12/27/11 25:20 04/15/11 03/25/11 04/30/11 06/14/11 06/20/11 08/01/11 05/2012 01/10/12 25:21 05/02/11 04/08/11 05/17/11 07/01/11 07/20/11 09/01/11 05/2012 01/27/12 25:22 05/16/11 04/25/11 05/31/11 07/15/11 07/20/11 09/01/11 05/2012 02/10/12 25:23 06/01/11 05/10/11 06/16/11 08/01/11 08/22/11 10/01/11 05/2012 02/26/12 25:24 06/15/11 05/24/11 06/30/11 08/15/11 08/22/11 10/01/11 05/2012 03/11/12 26:01 07/01/11 06/10/11 07/16/11 08/30/11 09/20/11 11/01/11 05/2012 03/27/12 26:02 07/15/11 06/23/11 07/30/11 09/13/11 09/20/11 11/01/11 05/2012 04/10/12 26:03 08/01/11 07/11/11 08/16/11 09/30/11 10/20/11 12/01/11 05/2012 04/27/12 26:04 08/15/11 07/25/11 08/30/11 10/14/11 10/20/11 12/01/11 05/2012 05/11/12 26:05 09/01/11 08/11/11 09/16/11 10/31/11 11/21/11 01/01/12 05/2012 05/28/12 26:06 09/15/11 08/24/11 09/30/11 11/14/11 11/21/11 01/01/12 05/2012 06/11/12 26:07 10/03/11 09/12/11 10/18/11 12/02/11 12/20/11 02/01/12 05/2012 06/29/12 26:08 10/17/11 09/26/11 11/01/11 12/16/11 12/20/11 02/01/12 05/2012 07/13/12 26:09 11/01/11 10/11/11 11/16/11 01/03/12 01/20/12 03/01/12 05/2012 07/28/12 26:10 11/15/11 10/24/11 11/30/11 01/17/12 01/20/12 03/01/12 05/2012 08/11/12 26:11 12/01/11 11/07/11 12/16/11 01/30/12 02/20/12 04/01/12 05/2012 08/27/12 26:12 12/15/11 11/22/11 12/30/11 02/13/12 02/20/12 04/01/12 05/2012 09/10/12 This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 EXPLANATION OF THE PUBLICATION SCHEDULE This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling. Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6. GENERAL The North Carolina Register shall be published twice a month and contains the following information submitted for publication by a state agency: (1) temporary rules; (2) notices of rule-making proceedings; (3) text of proposed rules; (4) text of permanent rules approved by the Rules Review Commission; (5) notices of receipt of a petition for municipal incorporation, as required by G.S. 120-165; (6) Executive Orders of the Governor; (7) final decision letters from the U.S. Attorney General concerning changes in laws affecting voting in a jurisdiction subject of Section 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H; (8) orders of the Tax Review Board issued under G.S. 105-241.2; and (9) other information the Codifier of Rules determines to be helpful to the public. COMPUTING TIME: In computing time in the schedule, the day of publication of the North Carolina Register is not included. The last day of the period so computed is included, unless it is a Saturday, Sunday, or State holiday, in which event the period runs until the preceding day which is not a Saturday, Sunday, or State holiday. FILING DEADLINES ISSUE DATE: The Register is published on the first and fifteen of each month if the first or fifteenth of the month is not a Saturday, Sunday, or State holiday for employees mandated by the State Personnel Commission. If the first or fifteenth of any month is a Saturday, Sunday, or a holiday for State employees, the North Carolina Register issue for that day will be published on the day of that month after the first or fifteenth that is not a Saturday, Sunday, or holiday for State employees. LAST DAY FOR FILING: The last day for filing for any issue is 15 days before the issue date excluding Saturdays, Sundays, and holidays for State employees. NOTICE OF TEXT EARLIEST DATE FOR PUBLIC HEARING: The hearing date shall be at least 15 days after the date a notice of the hearing is published. END OF REQUIRED COMMENT PERIOD An agency shall accept comments on the text of a proposed rule for at least 60 days after the text is published or until the date of any public hearings held on the proposed rule, whichever is longer. DEADLINE TO SUBMIT TO THE RULES REVIEW COMMISSION: The Commission shall review a rule submitted to it on or before the twentieth of a month by the last day of the next month. FIRST LEGISLATIVE DAY OF THE NEXT REGULAR SESSION OF THE GENERAL ASSEMBLY: This date is the first legislative day of the next regular session of the General Assembly following approval of the rule by the Rules Review Commission. See G.S. 150B- 21.3, Effective date of rules. EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 550 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 551 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 552 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 553 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 554 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 555 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 556 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 557 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 558 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 559 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 560 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 561 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 562 IN ADDITION 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 563 IN ADDITION 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 564 IN ADDITION 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 565 IN ADDITION 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 566 PROPOSED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 567 Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60 days. Statutory reference: G.S. 150B-21.2. TITLE 12 – DEPARTMENT OF JUSTICE Notice is hereby given in accordance with G.S. 150B-21.2 that the NC Sheriffs' Education and Training Standards Commission intends to amend the rules cited as 12 NCAC 10B .0908, .2004 and .2005. Link to agency website pursuant to G.S. 150B.19.1(c): http://www.ncdoj.gov/About-DOJ/Law-Enforcement-Training-and- Standards/Sheriffs-Education-and-Training-Standards/All- Commission-Forms-and-Publications.aspx Proposed Effective Date: December 1, 2012 Public Hearing: Date: December 8, 2011 Time: 8:30 a.m. Location: 1705 Tryon Park Drive, Raleigh, NC 27610 Reason for Proposed Action: 12 NCAC 10B .0908 – Description: Revision sets out that the requirements for an individual seeking a limited lecturer certification to teach the Fire Emergencies in the Jail block of instruction in the Detention Officer Certification Course. Purpose: This topic requires the instructor to be knowledgeable in the specific techniques for Fire Emergencies; and the proposed amendment is being made to increase the number of individuals who can qualify to teach this block of instruction. Baseline: Current rules specify that an individual may qualify to teach the Fire Emergencies block of instruction if the person is a certified Fire Instructor. 12 NCAC 10B .2004 – Description: Revision sets out that the optional topic of Subject Control Arrest Techniques must be taught by a Subject Control Arrest Technique Instructor. Purpose: This topic requires the instructor to be knowledgeable in the specific techniques for Subject Control Arrest Techniques. Baseline: Current rule specifies what may qualify an individual to teach various in-service training topics, but does not include the topic of Subject Control Arrest Techniques: Equipment Retention. If this rule is not amended, then a person who only holds a General Instructor certification would be eligible to teach this topical area. 12 NCAC 10B .2005 – Description: The revisions set out what will be required for in-service training in 2012. These in-service training programs began in 2005 with Deputies completing 4 hours of Domestic Violence; then since 2006 Deputies are required to complete 24 hours of in-service. Since 2007 Detention Officers and Telecommunicators are required to complete 16 hours. In the year of 2012, Deputies must likewise complete 24 hours, and Detention Officers and Telecommunicators must complete 16 hours. The only changes are in the topical areas. Purpose: To improve performance, reduce errors and reduce the number of lawsuits, and protect the public health, safety and welfare by ensuring each officer remains knowledgeable in their areas of enforcement, corrections or communications. Baseline: Current rules only lay out the in-service training requirements through 2011. Without these rule changes there would not be requirements for 2112 with the exception of Firearms Qualification which is separately required in 12 NCAC 10B Section .2000. Firearms may be conducted at a minimum in 4 hours. Therefore the impact of these rules is cost related to the training requirements for Deputies, Detention Officers and Telecommunicators. Procedure by which a person can object to the agency on a proposed rule: Objections shall be submitted in writing explaining the reasons for objection and specifying the portion of the rule to which the objection is being made. Such objection(s) should be sent to: Julia Lohman, Sheriffs' Standards Division, NC Department of Justice, P. O. Box 629, Raleigh, NC 27602. Comments may be submitted to: Julia Lohman, Sheriffs' Standards Division, NC Department of Justice, P. O. Box 629, Raleigh, NC 27602; phone (919) 662-4370; fax (919) 662-4516; email Jlohman@ncdoj.gov Comment period ends: December 2, 2011 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission after the adoption of the Rule. If the Rules Review Commission receives written and signed objections after the adoption of the Rule in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-431-3000. Fiscal impact (check all that apply). State funds affected 12 NCAC 10B .2005 Environmental permitting of DOT affected Analysis submitted to Board of Transportation PROPOSED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 568 Local funds affected 12 NCAC 10B .2005 Substantial economic impact (≥$500,000) 12 NCAC 10B .2005 Approved by OSBM 12 NCAC 10B .0908, 12 NCAC 10B .2004, 12 NCAC 10B .2005 Approval by OSBM not required CHAPTER 10 - N.C. SHERIFFS' EDUCATION AND TRAINING STANDARDS COMMISSION SUBCHAPTER 10B - N.C. SHERIFFS' EDUCATION AND TRAINING STANDARDS COMMISSION SECTION .0900 - MINIMUM STANDARDS FOR JUSTICE OFFICER INSTRUCTORS 12 NCAC 10B .0908 LIMITED LECTURER CERTIFICATION (a) The Commission may issue a Limited Lecturer Certification to an applicant who has developed specific or special skills by virtue of specific or special training. Limited Lecturer Certification may be issued in the following topical areas: (1) First Aid and CPR; (2) Subject Control Techniques; (3) Fire Emergencies in the Jail; (4) Medical Care in the Jail; (5) Physical Fitness for Detention Officers. (b) To be eligible for a Limited Lecturer Certificate for topic areas set forth in Rule .0908(a), the applicant must meet the qualifications as follows: (1) First Aid and CPR: first aid and CPR instructor with the American Red Cross, American Heart Association (AHA), American Safety and Health Institute (ASHI), or National Safety Council (NSC); or a licensed physician, Family Nurse Practitioner, Licensed Practical Nurse (LPN), Registered Nurse (RN), Physician's Assistant, or EMT; (2) Subject Control Techniques: certified by N.C. Criminal Justice Education and Training Standards Commission as Defensive Tactics Instructor and compliance with Rule .0903(c) of this Section; (3) Fire Emergencies in the Jail: Certified Fire Instructor (Level II or higher) through the North Carolina Department of Insurance Office of State Fire Marshal; Marshall, or a Specialized Instructor in the Explosive and Hazardous Material Emergencies topical area through the NC Criminal Justice Commission; (4) Medical Care in a Jail: A Licensed Physician, Family Nurse Practitioner, LPN, RN, or EMT, or Physician's Assistant; (5) Physical Fitness for Detention Officer: certified as a Physical Fitness Instructor by the North Carolina Criminal Justice Education and Training Standards Commission. (c) In addition to the requirements set out in Paragraph (b) of this Rule, applicants for Limited Lecturer Certification must possess current certification to perform CPR and which was obtained through the applicant having shown proficiency both cognitively and through skills testing. Authority G.S. 17E-4. SECTION .2000 – IN-SERVICE TRAINING FOR JUSTICE OFFICERS 12 NCAC 10B .2004 INSTRUCTORS The following requirements and responsibilities are hereby established for instructors who conduct a Commission-mandated In-Service Training Program: (1) The instructors shall: (a) hold General Instructor Certification as issued by the North Carolina Criminal Justice Education and Training Standards Commission as set out in 12 NCAC 09B .0302, .0304, and .0306; (b) hold Professional Lecturer Instructor certification issued by either the Commission as set out in either 12 NCAC 10B .0906 or .0916, or the Criminal Justice Education and Training Standards Commission as set out in 12 NCAC 09B .0306, or General Instructor Certification as issued by the North Carolina Criminal Justice Education and Training Standards Commission as set out in 12 NCAC 09B .0302, .0304, and .0306, when teaching a legal block of instruction; (c) hold Professional Lecturer Instructor certification issued by the Criminal Justice Education and Training Standards Commission as set out in 12 NCAC 09B .0306, when teaching a medical or psychological block of instruction; or (d) hold Specific Instructor Certification issued by the Criminal Justice Education and Training Standards Commission when teaching the lesson plans published by the NC Justice Academy as follows: (i) Firearms must be taught by a Firearms Instructor certified in accordance with 12 NCAC 09B .0304(e); (ii) Weapons Retention and Disarming Techniques must be taught by Subject Control Arrest Techniques Instructor certified in accordance with 12 NCAC 09B .0304(e); (iii) Spontaneous Attack Defense and Subject Control/Arrest PROPOSED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 569 Techniques must be taught by a Subject Control Arrest Techniques Instructor certified in accordance with 12 NCAC 09B .0304(b); (iv) Handcuffing and Impact Weapons Refresher and Subject Control Arrest Techniques: Equipment Retention must be taught by a Subject Control Arrest Techniques Instructor certified in accordance with 12 NCAC 09B .0304(e); (v) Wellness and Stress Awareness and Health and Fitness for Detention Officers must be taught by a Physical Fitness Instructor certified in accordance with 12 NCAC 09B .0304(g); and (vi) Law Enforcement Driver Training (classroom and practical) must be taught by a Specialized Law Enforcement Driver Training Instructor certified in accordance with 12 NCAC 09B .0304(f). (vii) Active Shooter: Practical Refresher must be taught by a Firearms Instructor certified in accordance with 12 NCAC 09B .0304(e). In addition, each instructor certified by the Criminal Justice Commission to teach in a Commission-certified course shall remain competent in his/her specific or specialty areas. Such competence includes remaining current in the instructor's area of expertise, which may be demonstrated by attending and successfully completing all instructor updates issued by the Commission. (2) The use of guest participants is permitted provided they are subject to the direct on-site supervision of a commission-certified instructor. (3) The instructor shall deliver the training consistent with the specifications as established in the rules in this Section. (4) The instructor shall document the successful or unsuccessful completion of training for each person attending a training program and forward a record of their completion to each person's Sheriff or Department Head. Authority G.S. 17E-4; 17E-7. 12 NCAC 10B .2005 MINIMUM TRAINING REQUIREMENTS (a) A Sheriff or Department Head may use a lesson plan developed by the North Carolina Justice Academy, or may use a lesson plan for any of the topical areas developed by another entity. The Sheriff or Department Head may also use a lesson plan developed by a certified instructor, provided that the instructor develops the lesson plan in accordance with the Instructional Systems Development model as taught in Criminal Justice Instructor Training in 12 NCAC 09B .0209. (b) The 2010 Law Enforcement In-Service Training Program requires 24 hours of training in the following topical areas: (1) Legal Update; (2) Juvenile Minority Sensitivity Training: Race Matters; (3) Career Survival: Positive Ways to be Successful; (4) Firearms Training and Requalification for deputy sheriffs as set out in Section .2100 of this Subchapter; and (5) Any topic areas of the Sheriff's choosing. (c) The 2010 Detention Officer In-Service Training Program requires 16 hours of training in the following topical areas: (1) Cryptology and Contraband via Mail; (2) Legal Update for Detention Officers; (3) Career Survival for Detention Officers; and (4) Any topic areas of the Sheriff's or Department Head's choosing. (d) The 2010 Telecommunicator In-Service Training Program requires 16 hours of training in the following topical areas: (1) Amber and Silver Alerts; (2) Call Taking Procedures in Emergency Services; (3) Critical Incident Stress Management; and (4) Any topic areas of the Sheriff's or Department Head's choosing. (e)(b) The 2011 Law Enforcement In-Service Training Program requires 24 hours of training in the following topical areas: (1) Legal Update; (2) Juvenile Minority Sensitivity Training: Interactions, Communications, and Understanding; (3) Career Survival: Leadership and Mentoring; (4) Firearms Training and Requalification for deputy sheriffs as set out in Section .2100 of this Subchapter; (5) Domestic Violence: Lesbian, Gay, Bi-Sexual and Transgender (LGBT) Relationships; and (6) Any topic areas of the Sheriff's choosing. (f)(c) The 2011 Detention Officer In-Service Training Program requires 16 hours of training in the following topical areas: (1) Legal Update for Detention Officers; (2) Career Survival for Detention Officers; Interpersonal Communications; (3) Communicable Diseases and Pandemics; and (4) Any topic areas of the Sheriff's or Department Head's choosing. PROPOSED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 570 (g)(d) The 2011 Telecommunicator In-Service Training Program requires 16 hours of training in the following topical areas: (1) Elder Abuse Awareness and the Telecommunicator; (2) Tactical Dispatch; (3) Handling Difficult Callers; and (4) Any topic areas of the Sheriff's or Department Head's choosing. (e) The 2012 Law Enforcement In-Service Training Program requires 24 hours of training in the following topical areas: (1) Legal Update; (2) Juvenile Minority Sensitivity Training: Interactions Skills in Building Rapport; (3) Career Survival: Social Networking and Digital Communications; (4) Firearms Training and Requalification for deputy sheriffs as set out in Section .2100 of this Subchapter; (5) Awareness of Issues Surrounding Returning Military Personnel; and (6) Any topic areas of the Sheriff's choosing. (f) The 2012 Detention Officer In-Service Training Program requires 16 hours of training in the following topical areas: (1) Inmate Movement; (2) Career Survival for Detention Officers; Social Networking and Digital Communications; (3) Any topic areas of the Sheriff's or Department Head's choosing. (g) The 2012 Telecommunicator In-Service Training Program requires 16 hours of training in the following topical areas: (1) Legal Update for Telecommunicators; (2) Career Survival for Telecommunicators; Social Networking and Digital Communications; (3) Any topic areas of the Sheriff's or Department Head's choosing. Authority G.S. 17E-4; 17E-7. TITLE 21 – OCCUPATIONAL LICENSING BOARDS AND COMMISSIONS CHAPTER 52 - BOARD OF PODIATRY EXAMINERS Notice is hereby given in accordance with G.S. 150B-21.2 that the Board of Podiatry Examiners intends to amend the rule cited as 21 NCAC 52 .0208. Link to agency website pursuant to G.S. 150B.19.1(c): www.ncbpe.org Proposed Effective Date: February 1, 2012 Public Hearing: Date: December 1, 2011 Time: 10:00 a.m. Location: Upton Associates, 3733 Benson Dr, Raleigh, NC 27609 Reason for Proposed Action: To permit podiatrists still in residency to use their residency hours to meet their continuing education requirement for renewal. To clarify when a podiatrist may submit continuing education certificates to the Board. To identify the Board's retention policy for continuing education certificates. To allow for issuance of waiver of continuing requirements or of conditional license in the case of undue hardship (military leave, medical issues, natural disaster, etc.) Procedure by which a person can object to the agency on a proposed rule: Any person wishing to object to a proposed rule shall address their request to: Board of Podiatry Examiners, 1500 Sunday Drive, Suite 102, Raleigh, NC 27607. The caption of the objection should bear the notation: RULEMAKING OBJECTION RE: and then the subject area. The written objection should include the following information: (1) an indication of the subject area to which the objection is directed. For example: "This objection concerns the rulemaking hearing to amend Rule 0000"; (2) either a draft of the proposed rule or a summary of its contents; (3) reason for the objection; (4) the effect on existing rules; (5) any data supporting the objection; (6) effect of the proposed rule on existing practices in the area involved, including cost factors; (7) names of those most likely to be affected by the rule with addresses if reasonably known; and (8) name(s) and address(es) of objector(s). Comments may be submitted to: Penney De Pas, Rulemaking Coordinator, Board of Podiatry Examiners, 1500 Sunday Drive, Suite 102, Raleigh, NC 27607-5151, Fax (919)787-4916, email info@ncbpe.org Comment period ends: December 2, 2011 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission after the adoption of the Rule. If the Rules Review Commission receives written and signed objections after the adoption of the Rule in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-431-3000. Fiscal impact (check all that apply). State funds affected Environmental permitting of DOT affected Analysis submitted to Board of Transportation Local funds affected PROPOSED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 571 Date submitted to OSBM: Substantial economic impact (≥$500,000) Approved by OSBM Approval by OSBM not required Note: The text in italics is pending approval by the Rules Review Commission SECTION .0200 - EXAMINATION AND LICENSING 21 NCAC 52 .0208 CONTINUING EDUCATION (a) An additional requirement for issuance of the annual renewal certificate shall be certification to the board of proof of having complied with the continuing education provisions of the General Statutes. The board shall notify all podiatrists that 25 hours are required annually. (b) General CME policy – Minimum of 25 hours / year (1) Completion of 25 hours of Continuing Medical Education (CME) is required per year (July 1- June 30) for renewal of licensure. CME credits cannot be carried over from the previous licensure year. (2) It shall be the responsibility of the individual podiatrist to ascertain in advance that the courses which he/she attends have received proper approval of the certifying organizations. The Board shall respond in writing or by email with approval or denial to individuals requesting approval of CME courses and credit hours. All decisions by the Board are final. (3) Certificates of completion of courses other than that sponsored by the NC Foot and Ankle Society (NCF&AS) must be submitted to the Board along with the podiatrist’s annual license renewal documents. Completion certificates must contain the following information: (A) Podiatrist’s name; (B) Course name, location, and date; (C) Number of hours CME completed; (D) Signature of seminar chairperson; and (E) Name of certifying/sponsored agency. Handwritten certificates are not acceptable. It is the podiatrist’s responsibility to contact the seminar organizer to secure a printed certificate before submitting to the Board for approval along with a renewal. (4) In the case of a licensed podiatrist participating in the second or third year of a medical residency, a letter signed by the podiatric residency director indicating podiatrist’s name and the dates the podiatrist has been in residency will substitute for the 25-credit hour requirement and a CME certificate. (5) A podiatrist has the choice of submitting his CME certificates along with the other required renewal documents or in advance of the renewal to the Board in hardcopy, facsimile, or electronic methods. (6) The Board shall retain CME documentation along with the individual podiatrist’s license renewal information. (c) Category 1: Minimum requirement 20 hours / year. (1) Continuing medical education (CME) credit shall be allowed for attendance at educational seminars offered by the North Carolina Foot and Ankle Society (NCF&AS). The number of qualifying hours of continuing education shall be determined and approved by the Board in advance based on the standards in 90-202.11. NCF&AS shall provide the Board directly with a listing of individuals attending its CME events and credits earned. (2) Continuing medical education credit shall be recognized for attendance at educational seminars offered by other national, state and podiatric education providers, as certified by the Council on Podiatric Medical Education (CPME) of the American Podiatric Medical Association (APMA). The number of qualifying hours of continuing education shall be determined and approved by the Council on Podiatric Medical Education. (3) Lecturers may receive one hour of credit for each hour of CPME- or APMA- approved lectures given, but such credit shall be limited to one hour for each discrete topic. A brief summary of the content of each lecture must be submitted for approval. (4) Category 1 is limited to educational seminars either offered by NCF&AS or by sponsors pre-approved by CPME: http://www.apma.org/Members/Education/CP MEAccreditation/ContinuingEducation/CPME 700.aspx?FT=.pdf (5) (N.B. APMA- or CPME- approved online or journal courses are considered Category 2.) (d) Category 2: Only a maximum of 5 of the total 25 CME hours will be allowed (1) Continuing medical education (CME) credit shall be allowed for educational programs approved for Category 1 credit by the American Medical Association (AMA) and the American Osteopathic Association (AOA) or their affiliated organizations. (2) Continuing medical education (CME) credit shall be allowed for courses approved by North Carolina Area Health Education Center (AHEC). (3) Online or medical journal courses approved by CPME are permitted. (4) For courses not pre-approved by AHEC, AOA, or AMA, all requests for CME approval should contain a timeline and course description. PROPOSED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 572 (e) Waiver for Certified Illness, Medical Condition, Natural Disaster, or Undue Hardship Since continuing education is one of the methods whereby a podiatrist keeps his medical knowledge and skills up-to-date, in the case of an unexpected, certified illness or medical condition of the licensee or immediate family member (as certified by a letter from a licensed physician) or undue hardship (e.g., active military service or natural disaster) which precludes a licensed podiatrist from completing his continuing education requirement within the 18-month timeframe from July 1 of the year of last license or renewal issuance through December 31 of the following year, the Board may waive the continuing education requirement for license renewal by issuing the podiatrist a conditional license predicated on the licensee acquiring all of the required continuing education credits in a mutually-agreeable timeframe, but no later than 24 months after December 31 of the year following the year of license or renewal issuance. The Board reserves the right to require additional information to support the licensee’s claim. The Board will notify the licensee of its decision in writing. Authority G.S. 90-202.4(g); 90-202.11. TEMPORARY RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 573 Note: This emergency rule was adopted under the procedure set out in G.S. 150B-21.1B. Adoption of rule to implement the American Recovery and Reinvestment Act. TITLE 04 – DEPARTMENT OF COMMERCE Rule-making Agency: Tax Reform Allocation Committee Rule Citation: 04 NCAC 01H .0501 Effective Date: September 8, 2011 Received by Codifier for entry into the NCAC on August 30, 2011. See G.S. 150B-21.1B. Reason for Action: Section 1112 of Title 1 of Division B of the American Recovery and Reinvestment Act of 2009 ("ARRA"), Pub. L. No. 111-5, 123 Stat. 115 (2009), amended 26 USC 54D(d) to increase the national bond volume cap authorization for Qualified Energy Conservation Bonds ("QECBs") from $800 million to $3.2 billion. Additionally, that section in the ARRA created the availability of "green community programs" as a tool for utilization of QECB capacity. North Carolina general statutes provided that the TRAC is the appropriate state entity to allocate QECB capacity and directed the TRAC to create procedures regarding such allocation. See, e.g., G.S. 143-433.8 and G.S. 143-433.9(a). Finally, 150B-21.1B provides that "It is the policy of the State…to quickly and efficiently complete the awards of grants and contracts under the ARRA" and provides that ARRA rule-making provisions be "liberally construed to allow agencies maximum flexibility in implementing the ARRA." The TRAC has been informed that a substantial number of energy conservation projects are anxiously awaiting the allocation of QECB capacity, and the TRAC is in need of rules in which to allocate such capacity to eligible issuers. As such, it is imperative that QECB capacity be allocated immediately so that energy conservation projects can be commenced. In any event, the ARRA itself provided in Section 5 ("Emergency Designations") that: "Each amount in this Act is designated as an emergency requirement and necessary to meet emergency needs pursuant to section 204(a) of S. Con. Res. 21 (110th Congress) and section 301(b)(2) of S. Con. Res. 70 (110th Congress), the concurrent resolutions on the budget for fiscal years 2008 and 2009." To the extent, if any, that such may be necessary, the Agency requests the Commission and/or the Codifier to waive any 210- day requirement under 150B-21.1(a2) or other law upon consideration of the degree of public benefit, the lack of control by the Agency, the need for a waiver, and other relevant factors in order to comport with the liberal construction contemplated by 150-21.1B ("Adoption of rules to implement the American Recovery and Reinvestment Act"). CHAPTER 01 - DEPARTMENTAL RULES SUBCHAPTER 01H - PRIVATE ACTIVITY BOND VOLUME CAPACITY PROGRAM SECTION .0500 - QUALIFIED ENERGY CONSERVATION BONDS 04 NCAC 01H .0501 PROCEDURES AND CRITERIA FOR ALLOCATION OF QUALIFIED ENERGY CONSERVATION BONDS The North Carolina Tax Reform Allocation Committee (the "Committee") is directed to allocate Qualified Energy Conservation Bond ("QECB") capacity to eligible issuers of such bonds as follows: (1) To "large local governments," as such term is used in 26 U.S.C.S. 54D(e)(2) in such amounts and manner as specifically directed by the United States Internal Revenue Service ("IRS") in 26 U.S.C.S. 54D and all relevant implementing notices provided by the IRS (including IRS Notice 2009-29), as may be modified, amended or supplemented. For purposes of calculating the populations of local governments to determine which constitutes a "large local government," the Committee shall use population estimates as of July 1, 2007, as directed by the IRS. (2) To "Indian tribal governments," as such term is used in 26 U.S.C.S. 54D(h) in such amounts as may be specifically directed by the IRS in 26 U.S.C.S. 54D and relevant implementing notices provided by the IRS (including IRS Notice 2009-29), as may be modified, amended or supplemented. (3) Following the allocations described in Items (1) and (2) of this Rule, the Committee shall allocate the remaining QECB capacity to eligible issuers. Such allocation shall be made by the Committee in its sole discretion, upon completed application by an eligible issuer, and after consideration of any factor the Committee deems relevant in its good faith and discretion, including (without limitation) some or all of the following factors: (a) The ability of the State to ensure that at least 70 percent of the State's allocation is used for government projects, and no more than 30 percent for projects considered QECB private activity bonds under IRS rules, regulations and guidelines; (b) The extent to which the project constitutes an eligible conservation purpose under 26 U.S.C.S. 54D and all relevant implementing notices provided by the IRS (including IRS Notice 2009-29), as may be modified, amended or supplemented; (c) The extent to which the project demonstrates the potential to directly conserve energy; TEMPORARY RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 574 (d) The extent to which the project supports the development or implementation of innovative energy conservation technology; (e) The extent to which the project uses renewable resources to produce energy; (f) The number of citizens benefiting from the project; (g) The estimated number of jobs to be produced by the projects (for private activity allocations) and the amount of QECB authority per job produced; (h) The readiness of the project to proceed; (i) The certainty of the issuer using the allocation within the estimated timelines; (j) The amount of other public and private funding leveraged by the QECB allocation; (k) The amount of local community support for the project; (l) The best interests of the State of North Carolina with regard to economic development, energy conservation, green initiatives and the general prosperity of the State; (m) Whether the unit of local government is in competition with another state for project benefits such as jobs and tax base; (n) Whether the availability of the allocation is a crucial part of attracting a new company or keeping an existing company in place; (o) Whether the requested allocation will benefit a project for which an eligible issuer is already issuing QECBs; (p) The ability of the unit of local government or company benefiting from the QECB to obtain financing and close the issue in a timely manner, including demonstration of a commitment from a bank or other financial institution to purchase or underwrite the QECBs; (q) The total amount of capacity available to the Committee for allocation. (4) Where required by law, local governments shall coordinate issuance of QECBs with and through the North Carolina Local Government Commission (the "LGC") in the Office of the North Carolina State Treasurer, and shall obtain approval from the LGC for QECB issuance. (5) Entities allocated QECB capacity by the Committee and/or entities who issue QECBs shall ensure compliance with all federal and state laws, rules, regulations and requirements applicable to such allocation or issue. (6) Entities receiving an allocation under Items (1) and (2) of this Rule ("large local governments" and "Indian tribal governments") have the right to waive and/or reallocate to the State of North Carolina all or a portion of their allocation. Upon the State's receipt of any additional QECB capacity through any such waiver or reallocation, the Committee shall allocate such capacity to eligible issuers in the manner described in Item (3) of this Rule. (7) The Committee shall attach such contingencies upon any allocation of QECB capacity made under Item (3) of this Rule as the Committee may deem appropriate, including (without limitation) contingencies relating to a time deadline for issuance of the QECBs pursuant to the allocated capacity and contingencies limiting the use of the allocated QECB capacity for public or private activity bonds. History Note: Authority G.S. 143-433.6(d); 143-433.8; 143- 433.9(a); 150B-21.1B; S.L. 2009-140; S.L. 2009-475; Emergency Adoption Eff. July 15, 2011; Temporary Adoption Eff. September 8, 2011. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 575 This Section includes a listing of rules approved by the Rules Review Commission followed by the full text of those rules. The rules that have been approved by the RRC in a form different from that originally noticed in the Register or when no notice was required to be published in the Register are identified by an * in the listing of approved rules. Statutory Reference: G.S. 150B- 21.17. Rules approved by the Rules Review Commission at its meeting on August 18, 2011. REGISTER CITATION TO THE NOTICE OF TEXT PUBLIC LIBRARIAN CERTIFICATION COMMISSION Purpose of the Commission 07NCAC 02F .0101 25:21 NCR Full Certification 07NCAC 02F .0102 25:21 NCR Application Procedure for Public Librarian Certification 07 NCAC 02F .0103 25:21 NCR Purpose of the Commission 07NCAC 02J .0101 25:21 NCR Full Certification 07NCAC 02J .0102 25:21 NCR Application Procedure for Public Librarian Certification 07 NCAC 02J .0103 25:21 NCR SOCIAL SERVICES COMMISSION Licensure 10ANCAC 70G .0403* 25:19 NCR Licensure 10ANCAC 70H .0114* 25:19 NCR Buildings and Ground Equipment 10ANCAC 70J .0106* 25:19 NCR HOME INSPECTOR LICENSURE BOARD Definitions 11NCAC 08 .1020 25:20 NCR Program Structuring and Admission Requirements 11 NCAC 08 .1021 25:20 NCR Program Sponsors 11NCAC 08 .1022 25:20 NCR Application for Program Sponsor 11 NCAC 08 .1023* 25:20 NCR Course Requirements 11NCAC 08 .1024* 25:20 NCR Course Completion Standards 11NCAC 08 .1025* 25:20 NCR Course Scheduling 11NCAC 08 .1026 25:20 NCR Textbooks 11NCAC 08 .1027* 25:20 NCR Course Completion 11NCAC 08 .1028* 25:20 NCR Purpose and Scope 11NCAC 08 .1103 25:20 NCR ENVIRONMENTAL MANAGEMENT COMMISSION Jordan Water Supply Nutrient Strategy: Purpose and… 15A NCAC 02B .0262* n/a G.S. 150B-21.5(a)(4) Jordan Water Supply Nutrient Strategy: Protection of... 15A NCAC 02B .0267* n/a G.S. 150B-21.5(a)(5) Jordan Water Supply Nutrient Strategy: Mitigation of... 15A NCAC 02B .0268* n/a G.S. 150B-21.5(a)(5) Jordan Water Supply Nutrient Strategy: Stormwater... 15A NCAC 02B .0271* n/a G.S. 150B-21.5(a)(5) Sulfur Oxides 15ANCAC 02D .0402 25:19 NCR Nitrogen Dioxide 15ANCAC 02D .0407 25:19 NCR WILDLIFE RESOURCES COMMISSION Tyrell County 15ANCAC 10F .0365* 25:20 NCR Appointment of Wildlife Service Agents 15ANCAC 10G .0402 25:18 NCR Wildlife Service Agent Agreement 15ANCAC 10G .0403* 25:18 NCR APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 576 Wildlife Service Agent Terms and Conditions 15ANCAC 10G .0405* 25:18 NCR ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF Fee Schedule 15ANCAC 28 .0302 25:21 NCR COSMETIC ART EXAMINERS, BOARD OF Prerequisites 21NCAC 14C .0202 25:18 NCR Renewals, Expired Licenses, Licenses Required 21 NCAC 14P .0105 25:18 NCR Revocation of Licenses and Other Disciplinary Measures 21 NCAC 14P .0108 25:18 NCR MASSAGE AND BODYWORK THERAPY, BOARD OF Standards of Professional Conduct 21 NCAC 30 .0624* 25:18 NCR ENGINEERS AND SURVEYORS, BOARD OF EXAMINERS FOR Rules of Professional Conduct 21NCAC 56 .0701* 25:20 NCR Surveying Procedures 21NCAC 56 .1602* 25:20 NCR REFRIGERATION EXAMINERS, BOARD OF Office of the Board 21NCAC 60 .0102* 25:17 NCR TITLE 07 – DEPARTMENT OF CULTURAL RESOURCES 07 NCAC 02F .0101 PURPOSE OF THE COMMISSION 07 NCAC 02F .0102 FULL CERTIFICATION 07 NCAC 02F .0103 APPLICATION PROCEDURE FOR PUBLIC LIBRARIAN CERTIFICATION History Note: Authority G.S. 143B-67; Eff. February 10, 1976; Readopted Eff. December 1, 1977; Amended Eff. August 1, 1995; June 1, 1989; June 1, 1981; Repealed Eff. September 1, 2011. 07 NCAC 02J .0101 PURPOSE OF THE COMMISSION (a) The North Carolina Public Librarian Certification Commission sets minimum standards for certification for public librarians to accomplish the following purposes: (1) Guarantee the best possible public library service for all North Carolinians; (2) Protect and maintain public library resources; (3) Assure professional management and administration of library programs; and (4) Provide certified professionals to meet the Department of Cultural Resources' personnel requirements for State and other aid administered by the State Library of North Carolina. (b) The Commission shall review applications and certify those librarians who meet the certification requirements enumerated in Rule .0102 of this Subchapter. History Note: Authority G.S. 143B-67; Eff. September 1, 2011. 07 NCAC 02J .0102 FULL CERTIFICATION (a) The North Carolina Public Librarian Certification Commission shall issue public librarian certificates to applicants who have received graduate degrees in library and information science from programs accredited by the American Library Association or from regionally-accredited programs of higher education in North Carolina. (b) Coursework must include the following core courses: (1) cataloging, (2) reference, (3) collection development, and (4) library management. (c) Courses specifically designed for school, media center, academic, or special librarianship, must reflect general principles of librarianship. History Note: Authority G.S. 143B-67; Eff. September 1, 2011. 07 NCAC 02J .0103 APPLICATION PROCEDURE FOR PUBLIC LIBRARIAN CERTIFICATION Applicants shall send a completed application form for public librarian certification, accompanied by an official transcript APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 577 which contains the date of conferral of the degree, to the Library Development Section of the State Library of North Carolina. History Note: Authority G.S. 143B-67; Eff. September 1, 2011. TITLE 10A - DEPARTMENT OF HEALTH AND HUMAN SERVICES 10A NCAC 70G .0403 LICENSURE (a) License. (1) Licensure is required in accordance with G.S. 131D-10.3 and with rules in Subchapters 70F and 70G of this Chapter. (2) Licenses shall be in effect for two years unless suspended or revoked. Appeal procedures specified in 10A NCAC 70L .0301 apply for persons seeking an appeal of the licensing authority's decision to deny, suspend, or revoke a license. (3) Child-placing agencies for foster care licensed after September 1, 2011 shall have a three year or longer accreditation from either the Council on Accreditation (COA), The Joint Commission, formerly known as the Joint Commission on Accreditation of Healthcare Organizations (TJC), The Commission on Accreditation and Rehabilitation Facilities (CARF) or The Council on Quality and Leadership (CQL). (4) Applicants shall inform the licensing authority of any current licenses or licenses held in the past five years for child-placing agencies, maternity homes, or residential child-care facilities in other states. Applicants shall provide written documentation from the licensing authority in other states regarding violations, penalties, or probationary status imposed in other states. (b) Changes in any information on the license. (1) The licensing authority shall change a license during the period of time it is in effect if the change is in compliance with rules in Subchapters 70F and 70G of this Chapter. (2) A child-placing agency for foster care shall notify the licensing authority in writing of its request for a change in license, including information that is necessary to assure the change is in compliance with the rules in Subchapters 70F and 70G of this Chapter. (c) Termination. (1) When a child-placing agency for foster care voluntarily discontinues operations, either temporarily or permanently, the child-placing agency for foster care shall notify the licensing authority in writing of the date, reason and anticipated length of closing. (2) If a license is not renewed by the end of the licensure period, the licensing authority shall automatically terminate the license. (3) When the license of a child-placing agency for foster care is terminated, the agency shall meet all requirements of a new agency prior to being licensed. (d) Adverse licensure action. (1) The licensing authority shall deny, suspend or revoke a license when a child-placing agency for foster care is not in compliance with the rules in Subchapters 70F and 70G of this Chapter unless the agency within 10 working days from the date the agency received the deficiency report from the licensing authority submits a plan of correction. The plan of correction shall specify the following: (A) the measures that will be put in place to correct the deficiency; (B) the systems that will be put in place to prevent a re-occurrence of the deficiency; (C) the individual or individuals who will monitor the corrective action; and (D) the date the deficiency will be corrected which is no later than 60 days from the date the routine monitoring was concluded. (2) The licensing authority shall notify a child-placing agency for foster care in writing of the decision to deny, suspend or revoke a license. (3) Appeal procedures specified in 10A NCAC 70L .0301 are applicable for persons seeking an appeal to the licensing authority's decision to deny, suspend or revoke a license. (e) Licensure shall be denied when any of the following conditions apply: (1) the applicant owns a facility or agency licensed under G.S. 122C and that facility or agency incurred a penalty for a Type A or B violation under Article 3 of G.S. 122C; or any combination thereof, and any one of the following conditions exist: (A) A single violation has been assessed in the six months prior to the application. (B) Two violations have been assessed in the 18 months prior to the application and 18 months have not passed from the date of the most recent violation. (C) Three violations have been assessed in the 36 months prior to the application and 36 months have not passed from the date of the most recent violation. (D) Four or more violations have been assessed in the 60 months prior to application and 60 months have not APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 578 passed from the date of the most recent violation. (2) the Department of Health and Human Services has initiated revocation or summary suspension proceedings against any facility licensed pursuant to G.S. 122C, Article 2; G.S. 131D, Articles 1 or 1A; or G.S. 110, Article 7 that was previously held by the applicant and the applicant voluntarily relinquished the license and 60 months have not passed from the date of the revocation or summary suspension; (3) there is a pending appeal of a denial, revocation or summary suspension of any facility licensed pursuant to G.S. 122C, Article 2; G.S. 131D, Articles 1 or 1A; or G.S. 110, Article 7 that is owned by the applicant; (4) the applicant has an individual as part of their governing body or management who previously held a license that was revoked or summarily suspended under G.S. 122C, Article 2; G.S. 131D, Articles 1 or 1A; and G.S. 110, Article 7 and the rules adopted under these laws and 60 months have not passed from the date of the revocation or summary suspension; (5) the applicant is an individual who has a finding or pending investigation by the Health Care Personnel Registry in accordance with G.S. 131E-256; or (6) the applicant is an individual who has a finding on the Responsible Individual's List as described in 10A NCAC 70A .0102. History Note: Authority G.S. 131D-1; 131D-10.3; 131D- 10.5; 143B-153; Eff. September 1, 2011. 10A NCAC 70H .0114 LICENSURE (a) License. (1) Licensure is required in accordance with G.S. 131D-10.3 and with rules in Subchapters 70F and 70H of this Chapter. (2) Licenses shall be in effect for two years unless suspended or revoked. Appeal procedures specified in 10A NCAC 70L .0301 apply for persons seeking an appeal of the licensing authority's decision to deny, suspend, or revoke a license. (3) Child-placing agencies for adoption licensed after September 1, 2011shall have a three year or longer accreditation from either the Council on Accreditation (COA), The Joint Commission, formerly known as the Joint Commission on Accreditation of Healthcare Organizations (TJC), The Commission on Accreditation and Rehabilitation Facilities (CARF) or The Council on Quality and Leadership (CQL). (4) Applicants shall inform the licensing authority of any current licenses or licenses held in the past five years for child-placing agencies, maternity homes, or residential child-care facilities in other states. Applicants shall provide written documentation from the licensing authority in other states regarding violations, penalties, or probationary status imposed in other states. (b) Changes in any information on the license. (1) The licensing authority shall change a license during the period of time it is in effect if the change is in compliance with rules in Subchapters 70F and 70H of this Chapter. (2) A child-placing agency for adoption shall notify the licensing authority in writing of its request for a change in license, including information that is necessary to assure the change is in compliance with the rules in Subchapters 70F and 70H of this Chapter. (c) Termination. (1) When a child-placing agency for adoption voluntarily discontinues operations, either temporarily or permanently, the child-placing agency for adoption shall notify the licensing authority in writing of the date, reason and anticipated length of closing. (2) If a license is not renewed by the end of the licensure period, the licensing authority shall automatically terminate the license. (3) When the license of a child-placing agency for adoption is terminated, the agency shall meet all requirements of a new agency prior to being licensed. (d) Adverse licensure action. (1) The licensing authority shall deny, suspend or revoke a license when a child-placing agency for adoption is not in compliance with the rules in Subchapters 70F and 70H of this Chapter unless the agency within 10 working days from the date the agency received the deficiency report from the licensing authority submits a plan of correction. The plan of correction shall specify the following: (A) the measures that will be put in place to correct the deficiency; (B) the systems that will be put in place to prevent a re-occurrence of the deficiency; (C) the individual or individuals who will monitor the corrective action; and (D) the date the deficiency will be corrected which are no later than 60 days from the date the routine monitoring was concluded. (2) The licensing authority shall notify a child-placing agency for adoption in writing of the decision to deny, suspend or revoke a license. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 579 (3) Appeal procedures specified in 10A NCAC 70L .0301 are applicable for persons seeking an appeal to the licensing authority's decision to deny, suspend or revoke a license. (e) Licensure shall be denied when any of the following conditions apply: (1) the applicant owns a facility or agency licensed under G.S. 122C and that facility or agency incurred a penalty for a Type A or B violation under Article 3 of G.S. 122C; or any combination thereof, and any one of the following conditions exist: (A) A single violation has been assessed in the six months prior to the application. (B) Two violations have been assessed in the 18 months prior to the application and 18 months have not passed from the date of the most recent violation. (C) Three violations have been assessed in the 36 months prior to the application and 36 months have not passed from the date of the most recent violation. (D) Four or more violations have been assessed in the 60 months prior to application and 60 months have not passed from the date of the most recent violation. (2) the Department of Health and Human Services has initiated revocation or summary suspension proceedings against any facility licensed pursuant to G.S. 122C, Article 2; G.S. 131D, Articles 1 or 1A; or G.S. 110, Article 7 that was previously held by the applicant and the applicant voluntarily relinquished the license and 60 months have not passed from the date of the revocation or summary suspension; (3) there is a pending appeal of a denial, revocation or summary suspension of any facility licensed pursuant to G.S. 122C, Article 2; G.S. 131D, Articles 1 or 1A; or G.S. 110, Article 7 that is owned by the applicant; (4) the applicant has an individual as part of their governing body or management who previously held a license that was revoked or summarily suspended under G.S. 122C, Article 2; G.S. 131D, Articles 1 or 1A; and G.S. 110, Article 7 and the rules adopted under these laws and 60 months have not passed from the date of the revocation or summary suspension; (5) the applicant is an individual who has a finding or pending investigation by the Health Care Personnel Registry in accordance with G.S. 131E-256; or (6) the applicant is an individual who has a finding on the Responsible Individual's List as described in 10A NCAC 70A .0102. History Note: Authority G.S. 131D-10.3; 131D-10.5; 143B- 153; Eff. September 1, 2011. 10A NCAC 70J .0106 BUILDINGS AND GROUND EQUIPMENT (a) Facilities. (1) All sleeping units must provide at least the following space: (A) 50 square feet per person; (B) 30 inches between sides of beds. (2) All camper sleeping facilities shall be limited to one level structures. (3) Any structure, sleeping or otherwise, with an occupancy of more than 12 persons, including staff, shall have at least two separate and independent means of exit. (4) Open flame lighting shall not be used in sleeping shelters for lighting and heating. (b) Grounds: (1) There shall be potable water available at each camp site. (2) At each children's camp there shall be provided a minimum of: (A) one shower head for each 20 children; (B) one flush toilet for each 20 children; (C) one urinal for each 30 male children (urinals may not be substituted for flush toilets); (D) one handwashing facility, adjacent to toilet facilities, for each 20 children; and (E) a wilderness latrine facility approved pursuant to the rules of the Commission for Health Services. (3) The hot water temperature at all fixtures used by residents shall be maintained at a minimum of 100 degrees F (38 degrees C) and shall not exceed 116 degrees F (46.7 degrees C). (c) Equipment: (1) Laundry facilities or equipment shall be available at each camp for all staff and children. (2) Gasoline, kerosene, and other flammable materials shall be stored in covered safe containers, labeled for contents. (3) Power tools: (A) All power tools, including mowers and trimmers, must have safety devices and be used according to manufacturer's instruction, maintained in good repair, and used only by those persons trained and experienced in their safety. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 580 (B) Campers shall receive safety instructions before using such equipment. (C) When campers are using such equipment, a trained and responsible adult must be present. (D) When not in use, all power tools shall be stored in a locked place not occupied by children. (4) Fire extinguishers shall be available in all areas so designated by fire safety officials, shall be properly charged and shall have current inspection labels. History Note: Authority G.S. 131D-10.5; 143B-153; Eff. July 1, 1999 (See S.L. 1999, c. 237, s. 11.30); Amended Eff. September 1, 2011; July 18, 2002. TITLE 11 – DEPARTMENT OF INSURANCE 11 NCAC 08 .1020 DEFINITIONS (a) As used in Rules .1020 through .1028 of this Section: (1) "Course Sponsor" means a person approved by the Board to conduct home inspection prelicensing courses. (2) "Credit hour" means one continuing education course hour, comprising at least 50 minutes of instruction. (3) "License period" means October 1 through the following September 30. (4) "Licensee" means a home inspector or associate home inspector licensed by the Board under G.S. 143, Article 9F. (5) "Person" means an individual, partnership, firm, association, corporation, joint-stock company, trust, any similar entity, or any combination of the foregoing acting in concert. (b) The definitions contained in G.S. 143-151.45 apply to this Section. History Note: Authority G.S. 143-151.45; 143-151.49; 143- 151.51; Eff. October 1, 2011. 11 NCAC 08 .1021 PROGRAM STRUCTURING AND ADMISSION REQUIREMENTS The home inspection prelicensing education program shall consist of a minimum total of 200 hours consisting of classroom and field training as follows: (1) Academic education consisting of at least 120 hours classroom instruction; and (2) Training consisting of at least 80 hours of field instruction with at least 10 site visits. History Note: Authority G.S. 143-151.49; 143-151.51; Eff. October 1, 2011. 11 NCAC 08 .1022 PROGRAM SPONSORS The course sponsor of a home inspection prelicensing program shall obtain approval of the Board for its educational program. History Note: Authority G.S. 143-151.49; 143-151.51; 143- 151.64; Eff. October 1, 2011. 11 NCAC 08 .1023 APPLICATION FOR PROGRAM SPONSOR APPROVAL (a) An entity seeking approval to sponsor a home inspection prelicensing education program must make written applications to the Board upon a form provided by the Board. (b) An applying entity that is not a resident of North Carolina shall also file with the application a consent to service of process and pleading. (c) The applicant shall submit separate applications to sponsor the academic classroom and practical training portions of the program. (d) The application shall be accompanied by a program plan outline, course description materials, instructor's guide and textbook, North Carolina Standards of Practice and Code of Ethics (Section .1100 of Chapter 8), sample exams, and report formats. (e) The sponsor must obtain approval by the Board 45 days prior to the commencement of any courses or training. History Note: Authority G.S. 143-151.49; 143-151.51; 143- 151.57; Eff. October 1, 2011. 11 NCAC 08 .1024 COURSE REQUIREMENTS (a) Prelicensing programs shall be comprised of the following subject areas: (1) Introduction to Home Inspection N.C. General Statutes, Standards of Practice and Code of Ethics, and (2) Inspection defect and report writing including: (A) Structural Components; (B) Exteriors; (C) Roofing; (D) Plumbing; (E) Electrical; (F) Heating; (g) Air Conditioning; (H) Insulation and Ventilation; (I) Interiors; and (J) Built in Kitchen Appliances. (b) Courses may include coverage of additional related subject areas not prescribed by the Board; however, any such course shall provide additional class time above the minimum requirement for the coverage of such additional subject areas. (c) Classroom time and instructional materials shall be utilized for instructional purposes only and not for promoting the interests of or recruiting employees or members for any particular home inspector, home inspection firm or franchise. (d) Practical training time and instructional materials shall be utilized for instructional purposes only and not for promoting the APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 581 interests of or recruiting employees or members for any particular home inspector, home inspection firm or franchise. History Note: Authority G.S. 143-151.49; 143-151.51; Eff. October 1, 2011. 11 NCAC 08 .1025 COURSE COMPLETION STANDARDS (a) An applicant must attend at least 90 percent of all scheduled classroom hours. (b) A student's grade shall be based solely on his performance on examinations, on graded homework and class work assignments. (c) An applicant for licensure shall obtain a grade of at least 75 percent on a comprehensive final course examination that covers all prescribed subject areas. Take home or open book final course examinations are prohibited. Sponsors and instructors may utilize other course quizzes and tests in addition to the final course examination provided that a student's grade on the final course examination accounts for at least 75 percent of the student's grade for the course. (d) Prelicensing course final examinations may be provided by the Board for use by approved sponsors and instructors. If the Board does not provide such examinations, or if a sponsor or instructor elects not to use Board-provided examinations, the sponsor or instructor shall use a comprehensive examination which tests student's knowledge and mastery of the course subject matter. The examination is subject to review and approval by the Board. Sponsors may, within 90 days of the course ending date, allow a prelicensing course student one opportunity to make up any missed course final examination or to retake any failed course final examination without repeating the course. If examinations provided by the Board are used, any makeup or repeat examination shall consist of a different form of the examination than the one previously administered in the student's course. If examinations not provided by the Board are used, any makeup or repeat examination shall be comparable to the initial examination with regard to the number of questions, subject areas tested and overall difficulty, and at least 75 percent of the questions shall be different from those used on the initial examination. (e) Sponsors shall protect the security and integrity of course examinations at all times. This includes: (1) Maintaining examinations and answer keys in a secure place accessible only to the instructor or sponsor; (2) Prohibiting students from retaining copies of examinations, answer sheets, scratch paper containing notes or calculations that jeopardize examination security; and (3) Monitoring students at all times when examinations are being administered. (f) Any student who gives or receives assistance during the examination shall turn in all exam materials and leave the room. Under these circumstances, the student's answer sheet shall not be scored and information regarding the giving of assistance shall be reported by the course sponsor to the Board within 10 days of the incident. History Note: Authority G.S. 143-151.49; 143-151.51; Eff. October 1, 2011. 11 NCAC 08 .1026 COURSE SCHEDULING (a) All courses must have fixed beginning and ending dates. (b) Sponsors may not utilize a scheduling system that allows students to enroll late for a course and then complete their course work in a subsequently scheduled course. (c) Late enrollment is permitted only if the enrolling student can satisfy the minimum attendance requirements set forth in Rule .1025 of this Section. (d) Courses shall not have practical training field exercises that exceed a total of eight hours in any given day. History Note: Authority G.S. 143-151.49; 143-151.51; Eff. October 1, 2011. 11 NCAC 08 .1027 TEXTBOOKS (a) Each course shall utilize a textbook or course materials which are approved by the Board (b) A request for Board approval of a proposed textbook or similar course materials shall be submitted in writing to the Board and accompanied by two copies of the proposed textbook or course materials. (c) Approval of a textbook or other course materials applies only to the edition reviewed by the Board. (d) A request for approval of a new edition of an approved textbook shall be made in writing to the Board. (e) If requested by the Board, the sponsor shall provide a copy of the new edition to the Board or shall submit a list of changes. (f) Approval is for an indefinite period; however, such approval may be terminated by the Board at any time upon determining that the approved edition no longer complies with the criteria for approval. The criteria for approval is: (1) The textbook or materials shall provide accurate, current and complete coverage of the subject matter required by the Board for the course for which approval of the textbook or materials is sought, including coverage of unique North Carolina home inspection related laws, rules and practices that are integrated into the basic coverage; and (2) The information provided shall be logically organized. History Note: Authority G.S. 143-151.49; 143-151.51; Eff. October 1, 2011. 11 NCAC 08 .1028 COURSE COMPLETION REPORTING (a) Program sponsors shall submit to the Board verification of each student who completes a prelicensing course that is in compliance with Board rules. (b) Sponsors shall provide students a certificate of course completion upon completing a prelicensing course that is in compliance with the Board rules. (c) A course completion certificate shall be prepared in the following format: APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 582 (1) the certificate shall be printed on the official sponsor letterhead offering the prelicensing course; (2) the title of the completed prelicensing course; (3) the first and last name of the student who completed the prelicensing course; (4) the instructor's name; and (5) the signature certifying the completion of the course program shall be either an original signature, an electronic signature or stamped signature of the director, dean or other official and shall be in a color other than black ink. History Note: Authority G.S. 143-151.49; 143-151.51; Eff. October 1, 2011. 11 NCAC 08 .1103 PURPOSE AND SCOPE (a) Home inspections performed according to this Section shall provide the client with an understanding of the property conditions, as inspected at the time of the home inspection. (b) Home inspectors shall: (1) Provide a written contract, signed by the client, before the home inspection is performed that shall: (A) State that the home inspection is in accordance with the Standards of Practice of the North Carolina Home Inspector Licensure Board; (B) Describe what services shall be provided and their cost; and (C) State, when an inspection is for only one or a limited number of systems or components, that the inspection is limited to only those systems or components; (2) Inspect readily visible and readily accessible installed systems and components listed in this Section; and (3) Submit a written report to the client that shall: (A) Describe those systems and components required to be described in Rules .1106 through .1115 of this Section; (B) State which systems and components present at the home and designated for inspection in this Section were not inspected, and the reason for not inspecting; (C) State any systems or components so inspected that do not function as intended, allowing for normal wear and tear, or adversely affect the habitability of the dwelling; (D) State whether the condition reported requires repair or subsequent observation, or warrants further investigation by a specialist. The statements shall describe the component or system and how the condition is defective, explain the consequences of the condition, and direct the recipient to a course of action with regard to the condition or refer the recipient to a specialist; and (E) State the name, license number, and signature of the person supervising the inspection and the name, license number, and signature of the person conducting the inspection. (c) This Section does not limit home inspectors from: (1) Reporting observations and conditions or rendering opinions of items in addition to those required in Paragraph (b) of this Rule; or (2) Excluding systems and components from the inspection if requested by the client, and so stated in the written contract. History Note: Authority G.S. 143-151.49; 143-151.58; Codifier determined that agency findings did not meet criteria for temporary rule Eff. October 15, 1996; Temporary Adoption Eff. October 24, 1996; Eff. July 1, 1998; Amended Eff. October 1, 2011; March 1, 2010; February 1, 2009; February 1, 2007; April 1, 2005; May 1, 2003; July 1, 2000. TITLE 15A – DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES 15A NCAC 02B .0262 JORDAN WATER SUPPLY NUTRIENT STRATEGY: PURPOSE AND SCOPE PURPOSE. The purpose of this Rule, 15A NCAC 02B .0263 through .0273 and .0311(p) shall be to restore and maintain nutrient-related water quality standards in B. Everett Jordan Reservoir; protect its classified uses as set out in 15A NCAC 02B .0216, including use as a source of water supply for drinking water, culinary and food processing purposes; and maintain or enhance protections currently implemented by local governments in existing water supply watersheds. These Rules, as further enumerated in Item (3) of this Rule, together shall constitute the Jordan water supply nutrient strategy, or Jordan nutrient strategy. Additional provisions of this Rule include establishing the geographic and regulatory scope of the Jordan nutrient strategy, defining its relationship to existing water quality regulations, setting specific nutrient mass load goals for Jordan Reservoir, providing for the use of adaptive management to restore Jordan Reservoir, and citing general enforcement authorities. The following provisions further establish the framework of the Jordan water supply nutrient strategy: (1) SCOPE. B. Everett Jordan Reservoir is hereafter referred to as Jordan Reservoir. All lands and waters draining to Jordan Reservoir are hereafter referred to as the Jordan watershed. Jordan Reservoir and all waters draining to it have been supplementally classified as Nutrient Sensitive Waters (NSW) APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 583 pursuant to 15A NCAC 02B .0101(e)(3) and 15A NCAC 02B .0223. Water supply waters designated WS-II, WS-III, and WS-IV within the Jordan watershed shall retain their classifications. The remaining waters in the Jordan watershed shall be classified WS-V. The requirements of all of these water supply classifications shall be retained and applied except as specifically noted in Item (6) of this Rule and elsewhere within the Jordan nutrient strategy. Pursuant to G.S. 143-214.5(b), the entire Jordan watershed shall be designated a critical water supply watershed and through the Jordan nutrient strategy given additional, more stringent requirements than the state minimum water supply watershed management requirements. These requirements supplement the water quality standards applicable to Class C waters, as described in Rule .0211 of this Section, which apply throughout the Jordan watershed. (2) STRATEGY GOAL. Pursuant to G.S. 143- 215.1(c5), 143-215.8B, and 143B-282(c) and (d) of the Clean Water Responsibility Act of 1997, the Environmental Management Commission establishes the goal of reducing the average annual loads of nitrogen and phosphorus delivered to Jordan Reservoir from all point and nonpoint sources of these nutrients located within its watershed, as specified in Item (5) of this Rule, and provides for adaptive management of the strategy and goal, as specified in Item (8) of this Rule. (3) RULES ENUMERATED. The second rule in the following list provides definitions for terms that are used in more than one rule of the Jordan nutrient strategy. An individual rule may contain additional definitions that are specific to that rule. The rules of the Jordan nutrient strategy shall be titled as follows: (a) Rule .0262 Purpose and Scope; (b) Rule .0263 Definitions; (c) Rule .0264 Agriculture; (d) Rule .0265 Stormwater Management for New Development; (e) Rule .0266 Stormwater Management for Existing Development; (f) Rule .0267 Protection of Existing Riparian Buffers; (g) Rule .0268 Mitigation for Riparian Buffers; (h) Rule .0269 Riparian Buffer Mitigation Fees to the NC Ecosystem Enhancement Program; (i) Rule .0270 Wastewater Discharge Requirements; (j) Rule .0271 Stormwater Requirements for State and Federal Entities; (k) Rule .0272 Fertilizer Management; (l) Rule .0273 Options for Offsetting Nutrient Loads; and (m) Rule .0311 Cape Fear River Basin. (4) RESERVOIR ARMS AND SUBWATERSHEDS. For the purpose of the Jordan nutrient strategy, Jordan Reservoir is divided into three arms and the Jordan watershed is divided into three tributary subwatersheds as follows: (a) The Upper New Hope arm of the reservoir, identified by index numbers 16-41-1-(14), 16-41-2-(9.5), and 16-41-(0.5) in the Schedule of Classifications for the Cape Fear River Basin, 15A NCAC 02B .0311, encompasses the upper end of the reservoir upstream of SR 1008, and its subwatershed encompasses all lands and waters draining into it. (b) The Lower New Hope arm of the reservoir, identified by index number 16-41-(3.5) in the Schedule of Classifications for the Cape Fear River Basin, 15A NCAC 02B .0311, lies downstream of SR 1008 and upstream of the Jordan Lake Dam, excluding the Haw River arm of the reservoir, and its subwatershed encompasses all lands and waters draining into the Lower New Hope arm of the reservoir excluding those that drain to the Upper New Hope arm of the reservoir and the Haw River arm of the reservoir. (c) The Haw River arm of the reservoir, identified by index number 16-(37.5) in the Schedule of Classifications for the Cape Fear River Basin, 15A NCAC 02B .0311, lies immediately upstream of Jordan Lake Dam, and its subwatershed includes all lands and waters draining into the Haw River arm of the reservoir excluding those draining into the Upper and Lower New Hope arms. (5) NUTRIENT REDUCTION GOALS. Each arm of the lake has reduction goals, total allowable loads, point source wasteload allocations, and nonpoint source load allocations for both nitrogen and phosphorus based on a field-calibrated nutrient response model developed pursuant to provisions of the Clean Water Responsibility Act of 1997, G.S. 143-215.1(c5). The reduction goals and allocations are to be met collectively by the sources regulated under the Jordan nutrient strategy. The reduction goals are expressed in terms of a percentage reduction in delivered loads from the baseline years, 1997-2001, APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 584 while allocations are expressed in pounds per year of allowable delivered load. Each arm and subwatershed shall conform to its respective allocations for nitrogen and phosphorus as follows: (a) The at-lake nitrogen load reduction goals for the arms of Jordan Reservoir are as follows: (i) The Upper New Hope arm has a 1997-2001 baseline nitrogen load of 986,186 pounds per year and a TMDL reduction goal of 35 percent. The resulting TMDL includes a total allowable load of 641,021 pounds of nitrogen per year: a point source mass wasteload allocation of 336,079 pounds of nitrogen per year, and a nonpoint source mass load allocation of 304,942 pounds of nitrogen per year. (ii) The Lower New Hope arm has a 1997-2001 baseline nitrogen load of 221,929 pounds per year and a nitrogen TMDL capped at the baseline nitrogen load. The resulting TMDL includes a total allowable load of 221,929 pounds of nitrogen per year: a point source mass wasteload allocation of 6,836 pounds of nitrogen per year, and a nonpoint source mass load allocation of 215,093 pounds of nitrogen per year. (iii) The Haw River arm has a 1997-2001 baseline nitrogen load of 2,790,217 pounds per year and a TMDL percentage reduction of 8 percent. The resulting TMDL includes a total allowable load of 2,567,000 pounds of nitrogen per year: a point source mass wasteload allocation of 895,127 pounds of nitrogen per year, and a nonpoint source mass load allocation of 1,671,873 pounds of nitrogen per year. (b) The at-lake phosphorus load reduction goals for the arms of Jordan Reservoir are as follows: (i) The Upper New Hope arm has a 1997-2001 baseline phosphorus load of 87,245 pounds per year and a TMDL percentage reduction of five percent. The resulting TMDL includes a total allowable load of 82,883 pounds of phosphorus per year: a point source mass wasteload allocation of 23,108 pounds of phosphorus per year, and a nonpoint source mass load allocation of 59,775 pounds of phosphorus per year. (ii) The Lower New Hope arm has a 1997-2001 baseline phosphorus load of 26,574 pounds per year and a phosphorus TMDL capped at the baseline phosphorus load. The resulting TMDL includes a total allowable load of 26,574 pounds of phosphorus per year: a point source mass wasteload allocation of 498 pounds of phosphorus per year, and a nonpoint source mass load allocation of 26,078 pounds of phosphorus per year. (iii) The Haw River arm has a 1997-2001 baseline phosphorus load of 378,569 pounds per year and a TMDL percentage reduction of five percent. The resulting TMDL includes a total allowable load of 359,641 pounds of phosphorus per year: a point source mass wasteload allocation of 106,001 pounds of phosphorus per year, and a nonpoint source mass load allocation of 253,640 pounds of phosphorus per year. (c) The allocations established in this Item may change as a result of allocation transfer between point and nonpoint sources to the extent provided for in rules of the Jordan nutrient strategy and pursuant to requirements on the sale and purchase of load reduction credit set out in 15A NCAC 02B .0273. (6) RELATION TO WATER SUPPLY REQUIREMENTS. For all waters designated APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 585 as WS-II, WS-III, or WS-IV within the Jordan watershed, the requirements of water supply 15A NCAC 02B .0214 through .0216 shall remain in effect with the exception of Sub- Item (3)(b) of those rules addressing nonpoint sources. The nonpoint source requirements of Sub-Item (3)(b) of those rules are superseded by the requirements of this Rule and 15A NCAC 02B .0263 through .0269, and .0271 through .0273, except as specifically stated in any of these Rules. For the remaining waters of Jordan watershed, the requirements of water supply Rule .0218 and Rules .0263 through .0273 and .0311 shall be applied. For WS-II, WS-III, and WS-IV waters, the retained requirements of 15A NCAC 02B .0214 through .0216 are the following: (a) Item (1) of 15A NCAC 02B .0214 through .0216 addressing best usages; (b) Item (2) of 15A NCAC 02B .0214 through .0216 addressing predominant watershed development conditions, discharges expressly allowed watershed-wide, general prohibitions on and allowances for domestic and industrial discharges, Maximum Contaminant Levels following treatment, and the local option to seek more protective classifications for portions of existing water supply watersheds; (c) Sub-Item (3)(a) of 15A NCAC 02B .0214 through .0216 addressing waste discharge limitations; and (d) Sub-Items (3)(c) through (3)(h) of 15A NCAC 02B .0214 through .0216 addressing aesthetic and human health standards. (7) APPLICABILITY. Types of parties responsible for implementing rules within the Jordan nutrient strategy and, as applicable, their geographic scope of responsibility, are identified in each rule. The specific local governments responsible for implementing Rules .0265, .0266, .0267, .0268, and .0273 shall be as follows: (a) Rules .0265, .0266, .0267, .0268, and .0273 shall be implemented by all incorporated municipalities, as identified by the Office of the Secretary of State, with planning jurisdiction within or partially within the Jordan watershed. Those municipalities currently are: (i) Alamance; (ii) Apex; (iii) Burlington; (iv) Carrboro; (v) Cary; (vi) Chapel Hill; (vii) Durham; (viii) Elon; (ix) Gibsonville; (x) Graham; (xi) Green Level; (xii) Greensboro; (xiii) Haw River; (xiv) Kernersville; (xv) Mebane; (xvi) Morrisville; (xvii) Oak Ridge; (xviii) Ossipee; (xix) Pittsboro; (xx) Pleasant Garden; (xxi) Reidsville; (xxii) Sedalia; (xxiii) Stokesdale; (xxiv) Summerfield; and (xxv) Whitsett. (b) Rules .0265, .0266, .0267, .0268, and .0273 shall be implemented by the following counties for the portions of the counties where the municipalities listed in Sub-Item (7)(a) do not have an implementation requirement: (i) Alamance; (ii) Caswell; (iii) Chatham; (iv) Durham; (v) Guilford; (vi) Orange; (vii) Rockingham; and (viii) Wake. (c) A unit of government may arrange through interlocal agreement or other instrument of mutual agreement for another unit of government to implement portions or the entirety of a program required or allowed under any of the rules listed in Item (3) of this Rule to the extent that such an arrangement is otherwise allowed by statute. The governments involved shall submit documentation of any such agreement to the Division. No such agreement shall relieve a unit of government from its responsibilities under these Rules. (8) ADAPTIVE MANAGEMENT. The Division shall evaluate the effectiveness of the Jordan nutrient strategy after at least ten years following the effective date and periodically thereafter as part of the review of the Cape Fear River Basinwide Water Quality Plan. The Division shall base its evaluation on, at a minimum, trend analyses as described in the monitoring section of the B. Everett Jordan Reservoir, North Carolina Nutrient APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 586 Management Strategy and Total Maximum Daily Load, and lake use support assessments. The Division may also develop additional watershed modeling or other source characterization work. Any nutrient response modeling and monitoring on which any recommendation for adjustment to strategy goals may be based shall meet the criteria set forth in G.S. 143-215.1(c5), also known as the Clean Water Responsibility Act, and meet or exceed criteria used by the Division for the monitoring and modeling used to establish the goals in Item (5) of this Rule. Any modification to these rules as a result of such evaluations would require additional rulemaking. (9) LIMITATION. The Jordan nutrient strategy may not fully address significant nutrient sources in the Jordan watershed in that the rules do not directly address atmospheric sources of nitrogen to the watershed from sources located both within and outside of the watershed. As better information becomes available from ongoing research on atmospheric nitrogen loading to the watershed from these sources, and on measures to control this loading, the Commission may undertake separate rule making to require such measures it deems necessary from these sources to support the goals of the Jordan nutrient strategy. (10) ENFORCEMENT. Failure to meet requirements of Rules .0262, .0264, .0265, .0266, .0267, .0268, .0269, .0270, .0271, .0272 and .0273 of this Section may result in imposition of enforcement measures as authorized by G.S. 143-215.6A (civil penalties), G.S. 143-215.6B (criminal penalties), and G.S. 143-215.6C (injunctive relief). History Note: Authority G.S. 143-214.1; 143-214.5; 143- 214.7; 143-215.1; 143-215.3(a)(1); 143-215.6A; 143-215.6A; 143-215.6B; 143 215.6C; 143-215.8B; 143B-282(c); 143B- 282(d); S.L. 2005-190; S.L. 2006-259; Eff. August 11, 2009; Amended Eff. September 1, 2011. 15A NCAC 02B .0267 JORDAN WATER SUPPLY NUTRIENT STRATEGEY: PROTECTION OF EXISTING RIPARIAN BUFFERS (See S.L. 2009-216 and S.L. 2009-484) Protection of the nutrient removal and other water quality benefits provided by riparian buffers throughout the watershed is an important element of the overall Jordan water supply nutrient strategy. The following is the strategy for riparian buffer protection and maintenance in the Jordan watershed, as prefaced in 15A NCAC 02B .0262: (1) PURPOSE. The purposes of this Rule shall be to protect and preserve existing riparian buffers throughout the Jordan watershed as generally described in 15A NCAC 02B .0262, in order to maintain their nutrient removal and stream protection functions. Additionally this Rule will help protect the water supply uses of Jordan Reservoir and of designated water supplies throughout the Jordan watershed. Local governments shall establish programs to meet or exceed the minimum requirements of this Rule. The requirements of this Rule shall supersede all locally implemented buffer requirements stated in 15A NCAC 02B .0214 through .0216 as applied to WS-II, WS-III, and WS-IV waters in the Jordan watershed. Local governments subject to this Rule may choose to implement more stringent requirements, including requiring additional buffer width. (2) DEFINITIONS. For the purpose of this Rule, these terms shall be defined as follows: (a) 'Access Trails' means pedestrian trails constructed of pervious or impervious surfaces and related structures to access a surface water, including boardwalks, steps, rails, and signage. (b) 'Airport Facilities' means all properties, facilities, buildings, structures, and activities that satisfy or otherwise fall within the scope of one or more of the definitions or uses of the words or phrases 'air navigation facility', 'airport', or 'airport protection privileges' under G.S. 63-1; the definition of 'aeronautical facilities' in G.S. 63-79(1); the phrase 'airport facilities' as used in G.S. 159- 48(b)(1); the phrase 'aeronautical facilities' as defined in G.S. 159-81 and G.S. 159-97; and the phrase 'airport facilities and improvements' as used in Article V, Section 13, of the North Carolina Constitution, which shall include, without limitation, any and all of the following: airports, airport maintenance facilities, clear zones, drainage ditches, fields, hangars, landing lighting, airport and airport-related offices, parking facilities, related navigational and signal systems, runways, stormwater outfalls, terminals, terminal shops, and all appurtenant areas used or suitable for airport buildings or other airport facilities, and all appurtenant rights-of-way; restricted landing areas; any structures, mechanisms, APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 587 lights, beacons, marks, communicating systems, or other instrumentalities or devices used or useful as an aid, or constituting an advantage or convenience to the safe taking off, navigation, and landing of aircraft, or the safe and efficient operation or maintenance of an airport or restricted landing area; easements through, or interests in, air space over land or water, interests in airport hazards outside the boundaries of airports or restricted landing areas, and other protection privileges, the acquisition or control of which is necessary to ensure safe approaches to the landing areas of airports and restricted landing areas, and the safe and efficient operation thereof and any combination of any or all of such facilities. Notwithstanding the foregoing, the following shall not be included in the definition of 'airport facilities': (i) Satellite parking facilities; (ii) Retail and commercial development outside of the terminal area, such as rental car facilities; and (iii) Other secondary development, such as hotels, industrial facilities, free-standing offices and other similar buildings, so long as these facilities are not directly associated with the operation of the airport, and are not operated by a unit of government or special governmental entity such as an airport authority, in which case they are included in the definition of 'airport facilities'. (c) 'Forest management plan' means as defined in Chapter 160A-458.5(4). (d) 'Forest plantation' means an area of planted trees that may be conifers (pines) or hardwoods. On a plantation, the intended crop trees are planted rather than naturally regenerated from seed on the site, coppice (sprouting), or seed that is blown or carried into the site. (e) 'Greenway / Hiking Trails' means pedestrian trails constructed of pervious or impervious surfaces and related structures including but not limited to boardwalks, steps, rails, and signage, and that generally run parallel to the shoreline. (f) 'High Value Tree' means a tree that meets or exceeds the following standards: for pine species, 14-inch DBH or greater or 18-inch or greater stump diameter; or for hardwoods and wetland species, 16-inch DBH or greater or 24-inch or greater stump diameter. (g) 'Shoreline stabilization' is the in-place stabilization of an eroding shoreline. Stabilization techniques which include "soft" methods or natural materials (such as root wads, or rock vanes) may be considered as part of a restoration design. However, stabilization techniques that consist primarily of "hard" engineering, such as concrete lined channels, riprap, or gabions, while providing bank stabilization, shall not be considered stream restoration. (h) 'Stream restoration' is defined as the process of converting an unstable, altered or degraded stream corridor, including adjacent riparian zone and flood-prone areas to its natural or referenced, stable conditions considering recent and future watershed conditions. This process also includes restoring the geomorphic dimension, pattern, and profile as well as biological and chemical integrity, including transport of water and sediment produced by the stream's watershed in order to achieve dynamic equilibrium. 'Referenced' or 'referenced reach' means a stable stream that is in dynamic equilibrium with its valley and contributing watershed. A reference reach can be used to develop natural channel design criteria for stream restoration projects. (i) 'Stump diameter' means the diameter of a tree measured at six inches above the ground surface level. (j) 'Temporary road' means a road constructed temporarily for equipment access to build or replace hydraulic conveyance structures such as bridges, culverts, pipes or water dependent structures, or to maintain public traffic during construction. (3) APPLICABILITY. This Rule applies to all landowners and other persons conducting activities in the Jordan watershed, including APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 588 state and federal entities, and to all local governments in the Jordan watershed, as described in 15A NCAC 02B .0262. Local governments shall develop riparian buffer protection programs for approval by the Commission, incorporating the minimum standards set out throughout this Rule and shall apply the requirements of this Rule throughout their jurisdictions within the Jordan watershed except where The Division shall exercise jurisdiction. For the following types of buffer activities in the Jordan watershed, wherever local governments are referenced in this Rule, the Division shall implement applicable requirements to the exclusion of local governments: (a) Activities conducted under the authority of the State. (b) Activities conducted under the authority of the United States. (c) Activities conducted under the authority of multiple jurisdictions. (d) Activities conducted under the authority of local units of government. (e) Forest harvesting activities described in Item (14) of this Rule. (f) Agricultural activities. (g) Activities conducted in a location where there is no local government program implementing NPDES stormwater requirements, Water Supply Watershed requirements, or a voluntary local stormwater or buffer initiative at the time of the activity. (4) BUFFERS PROTECTED. The following minimum criteria shall be used for identifying regulated buffers: (a) This Rule shall apply to activities conducted within, or outside of with impacts upon, 50-foot wide riparian buffers directly adjacent to surface waters in the Jordan watershed (intermittent streams, perennial streams, lakes, reservoirs and ponds), excluding wetlands. (b) 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 15A NCAC 02H .0506. (c) A surface water shall be subject to this Rule if the feature is approximately shown on any of the following references, and shall not be subject if it does not appear on any of these references: (i) The most recent version of the soil survey map prepared by the Natural Resources Conservation Service of the United States Department of Agriculture. (ii) The most recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic maps prepared by the United States Geologic Survey (USGS). (iii) The maps approved by the Commission as more accurate than those identified in Sub-Item (4)(c)(i) and (4)(c)(ii) of this Rule. (d) Where the specific origination point of a stream regulated under this Item is in question, upon request of the Division or another party, the local government shall make an on-site determination. A local government representative who has successfully completed the Division's Surface Water Identification Training Certification course, its successor, or other equivalent training curriculum approved by the Division, shall establish that point using the latest version of the Division publication, Identification Methods for the Origins of Intermittent and Perennial Streams, available at http://h2o.enr.state.nc.us/ncwetlands/ documents/NC_Stream_ID_Manual.p df or from the Division of Water Quality, 401/Wetlands Unit, 1650 Mail Service Center, Raleigh, NC, 27699-1650. A local government 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 Sub-Item shall be referred to the Director in writing. The Director's determination is subject to review as provided in Articles 3 and 4 of G.S. 150B. (e) Riparian buffers protected by this Rule shall be measured pursuant to Item (7) of this Rule. (f) Parties subject to this rule shall abide by all State rules and laws regarding waters of the state including but not limited to 15A NCAC 02H .0500, 15A NCAC 02H .1300, and Sections 401 and 404 of the Federal Water Pollution Control Act. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 589 (g) A riparian buffer may be exempt from this Rule as described in Item (5) or (6) of this Rule. (h) No new clearing, grading, or development shall take place nor shall any new building permits be issued in violation of this Rule. (5) 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 appropriate local government. Upon request, a local government representative who has successfully completed the Division's Surface Water Identification Training Certification course, its successor, or other equivalent training curriculum approved by the Division, shall make an on-site determination. Local governments 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 in writing. A determination of the Director as to the accuracy or application of the maps is subject to review as provided in Articles 3 and 4 of G.S. 150B. Surface waters that appear on the maps shall not be subject to this Rule if a site evaluation reveals any of the following cases: (a) Man-made ponds and lakes that are not part of a natural drainage way that is classified in accordance with 15A NCAC 02B .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. (b) Ephemeral streams. (c) The absence on the ground of a corresponding intermittent or perennial stream, lake, reservoir, or pond. (d) Ditches or other man-made water conveyances, other than modified natural streams. (6) EXEMPTION WHEN EXISTING USES ARE PRESENT AND ONGOING. This Rule shall not apply to uses that are existing and ongoing; however, this Rule 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: (a) It was present within the riparian buffer as of the effective date of a local program enforcing this Rule and has continued to exist since that time. For any Division-administered activities listed in Item (3) of this Rule, a use shall be considered existing and ongoing if it was present within the riparian buffer as of the effective date of this 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 Rule. 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 the effective date of a local program enforcing this Rule, or for Division-administered activities listed in Item (3) of this Rule as of the effective date of this Rule, 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. (b) Projects or proposed development that are determined by the local government to meet at least one of the following criteria: (i) Project requires a 401 Certification/404 Permit and these were issued prior to the effective date of the local program enforcing this Rule, and prior to the effective date of this Rule for Division-administered activities listed in Item (3) of this Rule; APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 590 (ii) 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 the local program implementing this Rule, and prior to the effective date of this Rule for Division-administered activities listed in Item (3) of this Rule; (iii) 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 the local program enforcing this Rule, and prior to the effective date of this Rule for state and federal entities; or (iv) 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 the local government prior to the effective date of the local program enforcing this Rule, or the written approval of the Division prior to the effective date of this Rule for state and federal entities. (7) ZONES OF THE RIPARIAN BUFFER. The protected riparian buffer shall have two zones as follows: (a) Zone One shall consist of a vegetated area that is undisturbed except for uses provided for in Item (9) of this Rule. The location of Zone One shall be as follows: (i) For intermittent and perennial streams, Zone One shall begin at the top of the bank and extend landward a distance of 30 feet on all sides of the surface water, measured horizontally on a line perpendicular to a vertical line marking the top of the bank. (ii) For ponds, lakes and reservoirs located within a natural drainage way, Zone One shall begin at the normal water level and extend landward a distance of 30 feet, measured horizontally on a line perpendicular to a vertical line marking the normal water level. (b) Zone Two shall consist of a stable, vegetated area that is undisturbed except for uses provided for in Item (9) of this Rule. 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. (8) DIFFUSE FLOW REQUIREMENT. 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: (a) Concentrated runoff from new ditches or manmade conveyances shall be converted to diffuse flow at non-erosive velocities before the runoff enters Zone Two of the riparian buffer; (b) Periodic corrective action to restore diffuse flow shall be taken as necessary and shall be designed to APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 591 impede the formation of erosion gullies; and (c) As set out in Items (7) and (9) of this Rule, no new stormwater conveyances are allowed through the buffers except for those specified in Item (9) of this Rule addressing stormwater management ponds, drainage ditches, roadside ditches, and stormwater conveyances. (9) 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 Item (12) of this Rule. The requirements for each category are given in Item (10) of this Rule. Use Exempt* Allowable * 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 defined in this Rule 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 defined in this Rule or impervious surface is added to the riparian buffer X X Airport facilities: • Airport facilities that impact equal to or less than 150 linear feet or one-third of an acre of riparian buffer • Airport facilities that impact greater than 150 linear feet or one-third of an acre of riparian buffer • Activities necessary to comply with FAA requirements (e.g. radar uses or landing strips)1 X X X Archaeological activities X Bridges X Canoe Access provided that installation and use does not result in removal of trees as defined in this Rule and no impervious surface is added to the buffer. X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 592 Use Exempt* Allowable * Allowable with Mitigation * Dam maintenance activities: • Dam maintenance activities that do not cause additional buffer disturbance beyond the footprint of the existing dam or those covered under the U.S. 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 covered under the U.S. Army Corps of Engineers Nationwide Permit No.3 X X 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 the need to alter the conveyance and are managed to minimize the sediment, nutrients and other pollution that convey to waterbodies. • Realignment of existing roadside drainage ditches retaining the design dimensions, provided that no additional travel lanes are added and the minimum required roadway typical section is used based on traffic and safety considerations. • New or altered drainage ditches, roadside ditches and stormwater outfalls provided that a stormwater management facility is installed to control nutrients 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 management facility due to topography constraints provided that other practicable BMPs are employed. X X X X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 593 Use Exempt* Allowable * Allowable with Mitigation * Drainage of a pond in a natural drainage way provided that a new riparian buffer that meets the requirements of Items (7) and (8) of this Rule is established adjacent to the new channel X Driveway crossings of streams and other surface waters subject to this Rule: • Driveway crossings on single family residential lots that disturb equal to or less than 25 linear feet or 2,500 square feet of riparian buffer • Driveway crossings on single family residential lots that disturb 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 linear feet or one-third of an acre of riparian buffer • In a subdivision that cumulatively disturb greater than 150 linear feet or one-third of an acre of riparian buffer X X X X Driveway impacts other than crossing of a stream or other surface waters subject to this Rule X Fences: • Fences provided that disturbance is minimized and installation does not result in removal of trees as defined in this Rule • Fences provided that disturbance is minimized and installation results in removal of trees as defined in this Rule X X Forest harvesting - see Item (14) of this Rule 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 disturbed areas are stabilized until they are revegetated. X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 594 Use Exempt* Allowable * Allowable with Mitigation * Greenway/hiking trails designed, constructed and maintained to maximize nutrient removal and erosion protection, minimize adverse effects on aquatic life and habitat, and protect water quality to the maximum extent practical. X 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 that needed for equipment access and operation. The travel way shall be located to maximize stream shading. X Mining activities: • Mining activities that are covered by the Mining Act provided that new riparian buffers that meet the requirements of Items (7) and (8) of this Rule are established adjacent to the relocated channels • Mining activities that are not covered by the Mining Act OR where new riparian buffers that meet the requirements or Items (7) and (8) of this Rule are not established adjacent to the relocated channels • Wastewater or mining dewatering wells with approved NPDES permit X X X Playground equipment: • Playground equipment on single family lots provided that installation and use does not result in removal of vegetation • Playground equipment installed on lands other than single-family lots or that requires removal of vegetation X X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 595 Use Exempt* Allowable * Allowable with Mitigation * Ponds created by impounding streams and not used as stormwater BMPs: • New ponds provided that a riparian buffer that meets the requirements of Items (7) and (8) of this Rule is established adjacent to the pond • New ponds where a riparian buffer that meets the requirements of Items (7) and (8) of this Rule is NOT established adjacent to the pond X X Protection of existing structures, facilities and stream banks when this requires additional disturbance of the riparian buffer or the stream channel X Railroad impacts other than crossings of streams and other surface waters subject to this Rule. X Railroad crossings of streams and other surface waters subject to this Rule: • Railroad crossings that impact equal to or less than 40 linear feet of riparian buffer • Railroad crossings that impact greater than 40 linear feet but equal to 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-third of an acre of riparian buffer X X X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 596 Use Exempt* Allowable * Allowable with Mitigation * Recreational and accessory structures in Zone Two: • Sheds and gazebos in Zone Two, provided they are not prohibited under local water supply ordinance: o Total footprint less than or equal to 150 square feet per lot. o Total footprint greater than 150 square feet per lot. • Wooden slatted decks and associated steps, provided the use meets the requirements of Items (7) and (8) of this Rule: o Deck at least eight feet in height and no vegetation removed from Zone One. o Deck less than eight feet in height or vegetation removed from Zone One. X X X X Removal of previous fill or debris provided that diffuse flow is maintained and vegetation is restored X Road impacts other than crossings of streams and other surface waters subject to this Rule X Road crossings of streams and other surface waters subject to this Rule: • Road crossings that impact equal to or less than 40 linear feet of riparian buffer • Road crossings that impact greater than 40 linear feet but equal to or 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 an acre of riparian buffer X X X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 597 Use Exempt* Allowable * Allowable with Mitigation * 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 • Greater than 2,500 square feet of buffer impact X X Stormwater BMPs: • Wet detention, bioretention, and constructed wetlands in Zone Two if diffuse flow of discharge is provided into Zone One • Wet detention, bioretention, and constructed wetlands in Zone One X 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 Item (8) of 15A NCAC 02B .0268: • Less than or equal to 2,500 square feet of buffer disturbance • Greater than 2,500 square feet of buffer disturbance • Associated with culvert installation or bridge construction or replacement. X X X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 598 Use Exempt* Allowable * Allowable with Mitigation * 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 Item (8) of Rule 15A NCAC 02B .0268: • In Zone Two provided ground cover is established within timeframes required by the Sedimentation and Erosion Control Act, vegetation in Zone One is not compromised, and runoff is released as diffuse flow in accordance with Item (8) of this Rule. • In Zones one and two to control impacts associated with uses approved by the local government or that have received a variance, 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 of the Federal Water Pollution Control Act. • In-stream temporary erosion and sediment control measures for work within a stream channel. X X X X Utility, electric, aerial, perpendicular crossings of streams and other surface waters subject to this Rule2,3,5: • Disturb equal to or less than 150 linear feet of riparian buffer • Disturb greater than 150 linear feet of riparian buffer X X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 599 Use Exempt* Allowable * Allowable with Mitigation * Utility, electric, aerial, other than perpendicular crossings5: • Impacts in Zone Two • Impacts in Zone One2,3 X X Utility, electric, underground, perpendicular crossings3,4,5: • Disturb less than or equal to 40 linear feet of riparian buffer • Disturb greater than 40 linear feet of riparian buffer X X Utility, electric, underground, other than perpendicular crossings4: • Impacts in Zone Two • Impacts in Zone One1 X X Utility, non-electric, perpendicular crossings of streams and other surface waters subject to this Rule3,5: • Disturb equal to or less than 40 linear feet of riparian buffer with a 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 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 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 in width • Disturb greater than 150 linear feet of riparian buffer X X X X X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 600 Use Exempt* Allowable * Allowable with Mitigation * Utility, non-electric, other than perpendicular crossings4,5: • Impacts in Zone Two • Impacts in Zone One1 X X Vegetation management: • Emergency fire control measures provided that topography is restored • Mowing or harvesting of plant products in Zone Two • Planting vegetation to enhance the riparian buffer • Pruning forest vegetation provided that the health and function of the 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 endangering stability of the streambank. • Removal of individual trees which are dead, diseased or damaged. • Removal of poison ivy • Removal of invasive exotic vegetation as defined in: Smith, Cherri L. 1998. Exotic Plant Guidelines. Dept. of Environment and Natural Resources. Division of Parks and Recrea
Object Description
Description
Title | North Carolina register |
Date | 2011-10-03 |
Description | Vol. 26, Issue 7 (October 3, 2011) |
Digital Characteristics-A | 4880 KB; 98 p. |
Digital Format | application/pdf |
Full Text | This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA REGISTER VOLUME 26 ● ISSUE 07 ● Pages 550 - 643 October 3, 2011 I. EXECUTIVE ORDERS Executive Order No. 103-107 ............................................................................. 550 – 562 II. IN ADDITION Written Advisory – Board of Elections ........................................................... 563 – 564 Decision Letters on "Changes Affecting Voting" from US Attorney General 565 – 566 III. PROPOSED RULES Justice, Department of Sheriffs' Education and Training Standards .................................................... 567 – 570 Occupational Licensing Boards and Commissions Podiatry Examiners, Board of ......................................................................... 570 – 572 IV. TEMPORARY RULES Commerce, Department of Tax Reform Allocation Committee ................................................................. 573 – 574 V. APPROVED RULES ........................................................................................ 575 – 625 Cultural Resources, Department of Public Librarian Certification Commission Environment and Natural Resources, Department of Department Environmental Management Commission Wildlife Resources Commission Health and Human Services, Department of Social Services Commission Insurance, Department of Home Inspector Licensure Board Occupational Licensing Boards and Commissions Cosmetic Art Examiners, Board of Massage and Bodywork Therapy, Board of Engineers & Surveyors, Board of Examiners of Refrigeration Examiners, Board of VI. RULES REVIEW COMMISSION ................................................................. 626– 639 VII. CONTESTED CASE DECISIONS Index to ALJ Decisions ...................................................................................... 640– 643 This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 Contact List for Rulemaking Questions or Concerns For questions or concerns regarding the Administrative Procedure Act or any of its components, consult with the agencies below. The bolded headings are typical issues which the given agency can address, but are not inclusive. Rule Notices, Filings, Register, Deadlines, Copies of Proposed Rules, etc. Office of Administrative Hearings Rules Division 1711 New Hope Church Road (919) 431-3000 Raleigh, North Carolina 27609 (919) 431-3104 FAX contact: Molly Masich, Codifier of Rules molly.masich@oah.nc.gov (919) 431-3071 Dana Vojtko, Publications Coordinator dana.vojtko@oah.nc.gov (919) 431-3075 Julie Edwards, Editorial Assistant julie.edwards@oah.nc.gov (919) 431-3073 Tammara Chalmers, Editorial Assistant tammara.chalmers@oah.nc.gov (919) 431-3083 Rule Review and Legal Issues Rules Review Commission 1711 New Hope Church Road (919) 431-3000 Raleigh, North Carolina 27609 (919) 431-3104 FAX contact: Joe DeLuca Jr., Commission Counsel joe.deluca@oah.nc.gov (919) 431-3081 Bobby Bryan, Commission Counsel bobby.bryan@oah.nc.gov (919) 431-3079 Fiscal Notes & Economic Analysis and Governor's Review Office of State Budget and Management 116 West Jones Street (919) 807-4700 Raleigh, North Carolina 27603-8005 (919) 733-0640 FAX Contact: Anca Grozav, Economic Analyst osbmruleanalysis@osbm.nc.gov (919) 807-4740 NC Association of County Commissioners 215 North Dawson Street (919) 715-2893 Raleigh, North Carolina 27603 contact: Rebecca Troutman rebecca.troutman@ncacc.org NC League of Municipalities (919) 715-4000 215 North Dawson Street Raleigh, North Carolina 27603 contact: Erin L. Wynia ewynia@nclm.org Legislative Process Concerning Rule-making Joint Legislative Administrative Procedure Oversight Committee 545 Legislative Office Building 300 North Salisbury Street (919) 733-2578 Raleigh, North Carolina 27611 (919) 715-5460 FAX contact: Karen Cochrane-Brown, Staff Attorney Karen.cochrane-brown@ncleg.net Jeff Hudson, Staff Attorney Jeffrey.hudson@ncleg.net This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 NORTH CAROLINA REGISTER Publication Schedule for January 2011 – December 2011 FILING DEADLINES NOTICE OF TEXT PERMANENT RULE TEMPORARY RULES Volume & issue number Issue date Last day for filing Earliest date for public hearing End of required comment period Deadline to submit to RRC for review at next meeting Earliest Eff. Date of Permanent Rule Delayed Eff. Date of Permanent Rule 31st legislative day of the session beginning: 270th day from publication in the Register 25:13 01/03/11 12/08/10 01/18/11 03/04/11 03/21/11 05/01/11 05/2012 09/30/11 25:14 01/18/11 12/22/10 02/02/11 03/21/11 03/21/11 05/01/11 05/2012 10/15/11 25:15 02/01/11 01/10/11 02/16/11 04/04/11 04/20/11 06/01/11 05/2012 10/29/11 25:16 02/15/11 01/25/11 03/02/11 04/18/11 04/20/11 06/01/11 05/2012 11/12/11 25:17 03/01/11 02/08/11 03/16/11 05/02/11 05/20/11 07/01/11 05/2012 11/26/11 25:18 03/15/11 02/22/11 03/30/11 05/16/11 05/20/11 07/01/11 05/2012 12/10/11 25:19 04/01/11 03/11/11 04/16/11 05/31/11 06/20/11 08/01/11 05/2012 12/27/11 25:20 04/15/11 03/25/11 04/30/11 06/14/11 06/20/11 08/01/11 05/2012 01/10/12 25:21 05/02/11 04/08/11 05/17/11 07/01/11 07/20/11 09/01/11 05/2012 01/27/12 25:22 05/16/11 04/25/11 05/31/11 07/15/11 07/20/11 09/01/11 05/2012 02/10/12 25:23 06/01/11 05/10/11 06/16/11 08/01/11 08/22/11 10/01/11 05/2012 02/26/12 25:24 06/15/11 05/24/11 06/30/11 08/15/11 08/22/11 10/01/11 05/2012 03/11/12 26:01 07/01/11 06/10/11 07/16/11 08/30/11 09/20/11 11/01/11 05/2012 03/27/12 26:02 07/15/11 06/23/11 07/30/11 09/13/11 09/20/11 11/01/11 05/2012 04/10/12 26:03 08/01/11 07/11/11 08/16/11 09/30/11 10/20/11 12/01/11 05/2012 04/27/12 26:04 08/15/11 07/25/11 08/30/11 10/14/11 10/20/11 12/01/11 05/2012 05/11/12 26:05 09/01/11 08/11/11 09/16/11 10/31/11 11/21/11 01/01/12 05/2012 05/28/12 26:06 09/15/11 08/24/11 09/30/11 11/14/11 11/21/11 01/01/12 05/2012 06/11/12 26:07 10/03/11 09/12/11 10/18/11 12/02/11 12/20/11 02/01/12 05/2012 06/29/12 26:08 10/17/11 09/26/11 11/01/11 12/16/11 12/20/11 02/01/12 05/2012 07/13/12 26:09 11/01/11 10/11/11 11/16/11 01/03/12 01/20/12 03/01/12 05/2012 07/28/12 26:10 11/15/11 10/24/11 11/30/11 01/17/12 01/20/12 03/01/12 05/2012 08/11/12 26:11 12/01/11 11/07/11 12/16/11 01/30/12 02/20/12 04/01/12 05/2012 08/27/12 26:12 12/15/11 11/22/11 12/30/11 02/13/12 02/20/12 04/01/12 05/2012 09/10/12 This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 EXPLANATION OF THE PUBLICATION SCHEDULE This Publication Schedule is prepared by the Office of Administrative Hearings as a public service and the computation of time periods are not to be deemed binding or controlling. Time is computed according to 26 NCAC 2C .0302 and the Rules of Civil Procedure, Rule 6. GENERAL The North Carolina Register shall be published twice a month and contains the following information submitted for publication by a state agency: (1) temporary rules; (2) notices of rule-making proceedings; (3) text of proposed rules; (4) text of permanent rules approved by the Rules Review Commission; (5) notices of receipt of a petition for municipal incorporation, as required by G.S. 120-165; (6) Executive Orders of the Governor; (7) final decision letters from the U.S. Attorney General concerning changes in laws affecting voting in a jurisdiction subject of Section 5 of the Voting Rights Act of 1965, as required by G.S. 120-30.9H; (8) orders of the Tax Review Board issued under G.S. 105-241.2; and (9) other information the Codifier of Rules determines to be helpful to the public. COMPUTING TIME: In computing time in the schedule, the day of publication of the North Carolina Register is not included. The last day of the period so computed is included, unless it is a Saturday, Sunday, or State holiday, in which event the period runs until the preceding day which is not a Saturday, Sunday, or State holiday. FILING DEADLINES ISSUE DATE: The Register is published on the first and fifteen of each month if the first or fifteenth of the month is not a Saturday, Sunday, or State holiday for employees mandated by the State Personnel Commission. If the first or fifteenth of any month is a Saturday, Sunday, or a holiday for State employees, the North Carolina Register issue for that day will be published on the day of that month after the first or fifteenth that is not a Saturday, Sunday, or holiday for State employees. LAST DAY FOR FILING: The last day for filing for any issue is 15 days before the issue date excluding Saturdays, Sundays, and holidays for State employees. NOTICE OF TEXT EARLIEST DATE FOR PUBLIC HEARING: The hearing date shall be at least 15 days after the date a notice of the hearing is published. END OF REQUIRED COMMENT PERIOD An agency shall accept comments on the text of a proposed rule for at least 60 days after the text is published or until the date of any public hearings held on the proposed rule, whichever is longer. DEADLINE TO SUBMIT TO THE RULES REVIEW COMMISSION: The Commission shall review a rule submitted to it on or before the twentieth of a month by the last day of the next month. FIRST LEGISLATIVE DAY OF THE NEXT REGULAR SESSION OF THE GENERAL ASSEMBLY: This date is the first legislative day of the next regular session of the General Assembly following approval of the rule by the Rules Review Commission. See G.S. 150B- 21.3, Effective date of rules. EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 550 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 551 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 552 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 553 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 554 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 555 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 556 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 557 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 558 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 559 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 560 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 561 EXECUTIVE ORDERS 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 562 IN ADDITION 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 563 IN ADDITION 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 564 IN ADDITION 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 565 IN ADDITION 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 566 PROPOSED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 567 Note from the Codifier: The notices published in this Section of the NC Register include the text of proposed rules. The agency must accept comments on the proposed rule(s) for at least 60 days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. If the agency adopts a rule that differs substantially from a prior published notice, the agency must publish the text of the proposed different rule and accept comment on the proposed different rule for 60 days. Statutory reference: G.S. 150B-21.2. TITLE 12 – DEPARTMENT OF JUSTICE Notice is hereby given in accordance with G.S. 150B-21.2 that the NC Sheriffs' Education and Training Standards Commission intends to amend the rules cited as 12 NCAC 10B .0908, .2004 and .2005. Link to agency website pursuant to G.S. 150B.19.1(c): http://www.ncdoj.gov/About-DOJ/Law-Enforcement-Training-and- Standards/Sheriffs-Education-and-Training-Standards/All- Commission-Forms-and-Publications.aspx Proposed Effective Date: December 1, 2012 Public Hearing: Date: December 8, 2011 Time: 8:30 a.m. Location: 1705 Tryon Park Drive, Raleigh, NC 27610 Reason for Proposed Action: 12 NCAC 10B .0908 – Description: Revision sets out that the requirements for an individual seeking a limited lecturer certification to teach the Fire Emergencies in the Jail block of instruction in the Detention Officer Certification Course. Purpose: This topic requires the instructor to be knowledgeable in the specific techniques for Fire Emergencies; and the proposed amendment is being made to increase the number of individuals who can qualify to teach this block of instruction. Baseline: Current rules specify that an individual may qualify to teach the Fire Emergencies block of instruction if the person is a certified Fire Instructor. 12 NCAC 10B .2004 – Description: Revision sets out that the optional topic of Subject Control Arrest Techniques must be taught by a Subject Control Arrest Technique Instructor. Purpose: This topic requires the instructor to be knowledgeable in the specific techniques for Subject Control Arrest Techniques. Baseline: Current rule specifies what may qualify an individual to teach various in-service training topics, but does not include the topic of Subject Control Arrest Techniques: Equipment Retention. If this rule is not amended, then a person who only holds a General Instructor certification would be eligible to teach this topical area. 12 NCAC 10B .2005 – Description: The revisions set out what will be required for in-service training in 2012. These in-service training programs began in 2005 with Deputies completing 4 hours of Domestic Violence; then since 2006 Deputies are required to complete 24 hours of in-service. Since 2007 Detention Officers and Telecommunicators are required to complete 16 hours. In the year of 2012, Deputies must likewise complete 24 hours, and Detention Officers and Telecommunicators must complete 16 hours. The only changes are in the topical areas. Purpose: To improve performance, reduce errors and reduce the number of lawsuits, and protect the public health, safety and welfare by ensuring each officer remains knowledgeable in their areas of enforcement, corrections or communications. Baseline: Current rules only lay out the in-service training requirements through 2011. Without these rule changes there would not be requirements for 2112 with the exception of Firearms Qualification which is separately required in 12 NCAC 10B Section .2000. Firearms may be conducted at a minimum in 4 hours. Therefore the impact of these rules is cost related to the training requirements for Deputies, Detention Officers and Telecommunicators. Procedure by which a person can object to the agency on a proposed rule: Objections shall be submitted in writing explaining the reasons for objection and specifying the portion of the rule to which the objection is being made. Such objection(s) should be sent to: Julia Lohman, Sheriffs' Standards Division, NC Department of Justice, P. O. Box 629, Raleigh, NC 27602. Comments may be submitted to: Julia Lohman, Sheriffs' Standards Division, NC Department of Justice, P. O. Box 629, Raleigh, NC 27602; phone (919) 662-4370; fax (919) 662-4516; email Jlohman@ncdoj.gov Comment period ends: December 2, 2011 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission after the adoption of the Rule. If the Rules Review Commission receives written and signed objections after the adoption of the Rule in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-431-3000. Fiscal impact (check all that apply). State funds affected 12 NCAC 10B .2005 Environmental permitting of DOT affected Analysis submitted to Board of Transportation PROPOSED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 568 Local funds affected 12 NCAC 10B .2005 Substantial economic impact (≥$500,000) 12 NCAC 10B .2005 Approved by OSBM 12 NCAC 10B .0908, 12 NCAC 10B .2004, 12 NCAC 10B .2005 Approval by OSBM not required CHAPTER 10 - N.C. SHERIFFS' EDUCATION AND TRAINING STANDARDS COMMISSION SUBCHAPTER 10B - N.C. SHERIFFS' EDUCATION AND TRAINING STANDARDS COMMISSION SECTION .0900 - MINIMUM STANDARDS FOR JUSTICE OFFICER INSTRUCTORS 12 NCAC 10B .0908 LIMITED LECTURER CERTIFICATION (a) The Commission may issue a Limited Lecturer Certification to an applicant who has developed specific or special skills by virtue of specific or special training. Limited Lecturer Certification may be issued in the following topical areas: (1) First Aid and CPR; (2) Subject Control Techniques; (3) Fire Emergencies in the Jail; (4) Medical Care in the Jail; (5) Physical Fitness for Detention Officers. (b) To be eligible for a Limited Lecturer Certificate for topic areas set forth in Rule .0908(a), the applicant must meet the qualifications as follows: (1) First Aid and CPR: first aid and CPR instructor with the American Red Cross, American Heart Association (AHA), American Safety and Health Institute (ASHI), or National Safety Council (NSC); or a licensed physician, Family Nurse Practitioner, Licensed Practical Nurse (LPN), Registered Nurse (RN), Physician's Assistant, or EMT; (2) Subject Control Techniques: certified by N.C. Criminal Justice Education and Training Standards Commission as Defensive Tactics Instructor and compliance with Rule .0903(c) of this Section; (3) Fire Emergencies in the Jail: Certified Fire Instructor (Level II or higher) through the North Carolina Department of Insurance Office of State Fire Marshal; Marshall, or a Specialized Instructor in the Explosive and Hazardous Material Emergencies topical area through the NC Criminal Justice Commission; (4) Medical Care in a Jail: A Licensed Physician, Family Nurse Practitioner, LPN, RN, or EMT, or Physician's Assistant; (5) Physical Fitness for Detention Officer: certified as a Physical Fitness Instructor by the North Carolina Criminal Justice Education and Training Standards Commission. (c) In addition to the requirements set out in Paragraph (b) of this Rule, applicants for Limited Lecturer Certification must possess current certification to perform CPR and which was obtained through the applicant having shown proficiency both cognitively and through skills testing. Authority G.S. 17E-4. SECTION .2000 – IN-SERVICE TRAINING FOR JUSTICE OFFICERS 12 NCAC 10B .2004 INSTRUCTORS The following requirements and responsibilities are hereby established for instructors who conduct a Commission-mandated In-Service Training Program: (1) The instructors shall: (a) hold General Instructor Certification as issued by the North Carolina Criminal Justice Education and Training Standards Commission as set out in 12 NCAC 09B .0302, .0304, and .0306; (b) hold Professional Lecturer Instructor certification issued by either the Commission as set out in either 12 NCAC 10B .0906 or .0916, or the Criminal Justice Education and Training Standards Commission as set out in 12 NCAC 09B .0306, or General Instructor Certification as issued by the North Carolina Criminal Justice Education and Training Standards Commission as set out in 12 NCAC 09B .0302, .0304, and .0306, when teaching a legal block of instruction; (c) hold Professional Lecturer Instructor certification issued by the Criminal Justice Education and Training Standards Commission as set out in 12 NCAC 09B .0306, when teaching a medical or psychological block of instruction; or (d) hold Specific Instructor Certification issued by the Criminal Justice Education and Training Standards Commission when teaching the lesson plans published by the NC Justice Academy as follows: (i) Firearms must be taught by a Firearms Instructor certified in accordance with 12 NCAC 09B .0304(e); (ii) Weapons Retention and Disarming Techniques must be taught by Subject Control Arrest Techniques Instructor certified in accordance with 12 NCAC 09B .0304(e); (iii) Spontaneous Attack Defense and Subject Control/Arrest PROPOSED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 569 Techniques must be taught by a Subject Control Arrest Techniques Instructor certified in accordance with 12 NCAC 09B .0304(b); (iv) Handcuffing and Impact Weapons Refresher and Subject Control Arrest Techniques: Equipment Retention must be taught by a Subject Control Arrest Techniques Instructor certified in accordance with 12 NCAC 09B .0304(e); (v) Wellness and Stress Awareness and Health and Fitness for Detention Officers must be taught by a Physical Fitness Instructor certified in accordance with 12 NCAC 09B .0304(g); and (vi) Law Enforcement Driver Training (classroom and practical) must be taught by a Specialized Law Enforcement Driver Training Instructor certified in accordance with 12 NCAC 09B .0304(f). (vii) Active Shooter: Practical Refresher must be taught by a Firearms Instructor certified in accordance with 12 NCAC 09B .0304(e). In addition, each instructor certified by the Criminal Justice Commission to teach in a Commission-certified course shall remain competent in his/her specific or specialty areas. Such competence includes remaining current in the instructor's area of expertise, which may be demonstrated by attending and successfully completing all instructor updates issued by the Commission. (2) The use of guest participants is permitted provided they are subject to the direct on-site supervision of a commission-certified instructor. (3) The instructor shall deliver the training consistent with the specifications as established in the rules in this Section. (4) The instructor shall document the successful or unsuccessful completion of training for each person attending a training program and forward a record of their completion to each person's Sheriff or Department Head. Authority G.S. 17E-4; 17E-7. 12 NCAC 10B .2005 MINIMUM TRAINING REQUIREMENTS (a) A Sheriff or Department Head may use a lesson plan developed by the North Carolina Justice Academy, or may use a lesson plan for any of the topical areas developed by another entity. The Sheriff or Department Head may also use a lesson plan developed by a certified instructor, provided that the instructor develops the lesson plan in accordance with the Instructional Systems Development model as taught in Criminal Justice Instructor Training in 12 NCAC 09B .0209. (b) The 2010 Law Enforcement In-Service Training Program requires 24 hours of training in the following topical areas: (1) Legal Update; (2) Juvenile Minority Sensitivity Training: Race Matters; (3) Career Survival: Positive Ways to be Successful; (4) Firearms Training and Requalification for deputy sheriffs as set out in Section .2100 of this Subchapter; and (5) Any topic areas of the Sheriff's choosing. (c) The 2010 Detention Officer In-Service Training Program requires 16 hours of training in the following topical areas: (1) Cryptology and Contraband via Mail; (2) Legal Update for Detention Officers; (3) Career Survival for Detention Officers; and (4) Any topic areas of the Sheriff's or Department Head's choosing. (d) The 2010 Telecommunicator In-Service Training Program requires 16 hours of training in the following topical areas: (1) Amber and Silver Alerts; (2) Call Taking Procedures in Emergency Services; (3) Critical Incident Stress Management; and (4) Any topic areas of the Sheriff's or Department Head's choosing. (e)(b) The 2011 Law Enforcement In-Service Training Program requires 24 hours of training in the following topical areas: (1) Legal Update; (2) Juvenile Minority Sensitivity Training: Interactions, Communications, and Understanding; (3) Career Survival: Leadership and Mentoring; (4) Firearms Training and Requalification for deputy sheriffs as set out in Section .2100 of this Subchapter; (5) Domestic Violence: Lesbian, Gay, Bi-Sexual and Transgender (LGBT) Relationships; and (6) Any topic areas of the Sheriff's choosing. (f)(c) The 2011 Detention Officer In-Service Training Program requires 16 hours of training in the following topical areas: (1) Legal Update for Detention Officers; (2) Career Survival for Detention Officers; Interpersonal Communications; (3) Communicable Diseases and Pandemics; and (4) Any topic areas of the Sheriff's or Department Head's choosing. PROPOSED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 570 (g)(d) The 2011 Telecommunicator In-Service Training Program requires 16 hours of training in the following topical areas: (1) Elder Abuse Awareness and the Telecommunicator; (2) Tactical Dispatch; (3) Handling Difficult Callers; and (4) Any topic areas of the Sheriff's or Department Head's choosing. (e) The 2012 Law Enforcement In-Service Training Program requires 24 hours of training in the following topical areas: (1) Legal Update; (2) Juvenile Minority Sensitivity Training: Interactions Skills in Building Rapport; (3) Career Survival: Social Networking and Digital Communications; (4) Firearms Training and Requalification for deputy sheriffs as set out in Section .2100 of this Subchapter; (5) Awareness of Issues Surrounding Returning Military Personnel; and (6) Any topic areas of the Sheriff's choosing. (f) The 2012 Detention Officer In-Service Training Program requires 16 hours of training in the following topical areas: (1) Inmate Movement; (2) Career Survival for Detention Officers; Social Networking and Digital Communications; (3) Any topic areas of the Sheriff's or Department Head's choosing. (g) The 2012 Telecommunicator In-Service Training Program requires 16 hours of training in the following topical areas: (1) Legal Update for Telecommunicators; (2) Career Survival for Telecommunicators; Social Networking and Digital Communications; (3) Any topic areas of the Sheriff's or Department Head's choosing. Authority G.S. 17E-4; 17E-7. TITLE 21 – OCCUPATIONAL LICENSING BOARDS AND COMMISSIONS CHAPTER 52 - BOARD OF PODIATRY EXAMINERS Notice is hereby given in accordance with G.S. 150B-21.2 that the Board of Podiatry Examiners intends to amend the rule cited as 21 NCAC 52 .0208. Link to agency website pursuant to G.S. 150B.19.1(c): www.ncbpe.org Proposed Effective Date: February 1, 2012 Public Hearing: Date: December 1, 2011 Time: 10:00 a.m. Location: Upton Associates, 3733 Benson Dr, Raleigh, NC 27609 Reason for Proposed Action: To permit podiatrists still in residency to use their residency hours to meet their continuing education requirement for renewal. To clarify when a podiatrist may submit continuing education certificates to the Board. To identify the Board's retention policy for continuing education certificates. To allow for issuance of waiver of continuing requirements or of conditional license in the case of undue hardship (military leave, medical issues, natural disaster, etc.) Procedure by which a person can object to the agency on a proposed rule: Any person wishing to object to a proposed rule shall address their request to: Board of Podiatry Examiners, 1500 Sunday Drive, Suite 102, Raleigh, NC 27607. The caption of the objection should bear the notation: RULEMAKING OBJECTION RE: and then the subject area. The written objection should include the following information: (1) an indication of the subject area to which the objection is directed. For example: "This objection concerns the rulemaking hearing to amend Rule 0000"; (2) either a draft of the proposed rule or a summary of its contents; (3) reason for the objection; (4) the effect on existing rules; (5) any data supporting the objection; (6) effect of the proposed rule on existing practices in the area involved, including cost factors; (7) names of those most likely to be affected by the rule with addresses if reasonably known; and (8) name(s) and address(es) of objector(s). Comments may be submitted to: Penney De Pas, Rulemaking Coordinator, Board of Podiatry Examiners, 1500 Sunday Drive, Suite 102, Raleigh, NC 27607-5151, Fax (919)787-4916, email info@ncbpe.org Comment period ends: December 2, 2011 Procedure for Subjecting a Proposed Rule to Legislative Review: If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission after the adoption of the Rule. If the Rules Review Commission receives written and signed objections after the adoption of the Rule in accordance with G.S. 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in G.S. 150B-21.3(b1). The Commission will receive written objections until 5:00 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at 919-431-3000. Fiscal impact (check all that apply). State funds affected Environmental permitting of DOT affected Analysis submitted to Board of Transportation Local funds affected PROPOSED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 571 Date submitted to OSBM: Substantial economic impact (≥$500,000) Approved by OSBM Approval by OSBM not required Note: The text in italics is pending approval by the Rules Review Commission SECTION .0200 - EXAMINATION AND LICENSING 21 NCAC 52 .0208 CONTINUING EDUCATION (a) An additional requirement for issuance of the annual renewal certificate shall be certification to the board of proof of having complied with the continuing education provisions of the General Statutes. The board shall notify all podiatrists that 25 hours are required annually. (b) General CME policy – Minimum of 25 hours / year (1) Completion of 25 hours of Continuing Medical Education (CME) is required per year (July 1- June 30) for renewal of licensure. CME credits cannot be carried over from the previous licensure year. (2) It shall be the responsibility of the individual podiatrist to ascertain in advance that the courses which he/she attends have received proper approval of the certifying organizations. The Board shall respond in writing or by email with approval or denial to individuals requesting approval of CME courses and credit hours. All decisions by the Board are final. (3) Certificates of completion of courses other than that sponsored by the NC Foot and Ankle Society (NCF&AS) must be submitted to the Board along with the podiatrist’s annual license renewal documents. Completion certificates must contain the following information: (A) Podiatrist’s name; (B) Course name, location, and date; (C) Number of hours CME completed; (D) Signature of seminar chairperson; and (E) Name of certifying/sponsored agency. Handwritten certificates are not acceptable. It is the podiatrist’s responsibility to contact the seminar organizer to secure a printed certificate before submitting to the Board for approval along with a renewal. (4) In the case of a licensed podiatrist participating in the second or third year of a medical residency, a letter signed by the podiatric residency director indicating podiatrist’s name and the dates the podiatrist has been in residency will substitute for the 25-credit hour requirement and a CME certificate. (5) A podiatrist has the choice of submitting his CME certificates along with the other required renewal documents or in advance of the renewal to the Board in hardcopy, facsimile, or electronic methods. (6) The Board shall retain CME documentation along with the individual podiatrist’s license renewal information. (c) Category 1: Minimum requirement 20 hours / year. (1) Continuing medical education (CME) credit shall be allowed for attendance at educational seminars offered by the North Carolina Foot and Ankle Society (NCF&AS). The number of qualifying hours of continuing education shall be determined and approved by the Board in advance based on the standards in 90-202.11. NCF&AS shall provide the Board directly with a listing of individuals attending its CME events and credits earned. (2) Continuing medical education credit shall be recognized for attendance at educational seminars offered by other national, state and podiatric education providers, as certified by the Council on Podiatric Medical Education (CPME) of the American Podiatric Medical Association (APMA). The number of qualifying hours of continuing education shall be determined and approved by the Council on Podiatric Medical Education. (3) Lecturers may receive one hour of credit for each hour of CPME- or APMA- approved lectures given, but such credit shall be limited to one hour for each discrete topic. A brief summary of the content of each lecture must be submitted for approval. (4) Category 1 is limited to educational seminars either offered by NCF&AS or by sponsors pre-approved by CPME: http://www.apma.org/Members/Education/CP MEAccreditation/ContinuingEducation/CPME 700.aspx?FT=.pdf (5) (N.B. APMA- or CPME- approved online or journal courses are considered Category 2.) (d) Category 2: Only a maximum of 5 of the total 25 CME hours will be allowed (1) Continuing medical education (CME) credit shall be allowed for educational programs approved for Category 1 credit by the American Medical Association (AMA) and the American Osteopathic Association (AOA) or their affiliated organizations. (2) Continuing medical education (CME) credit shall be allowed for courses approved by North Carolina Area Health Education Center (AHEC). (3) Online or medical journal courses approved by CPME are permitted. (4) For courses not pre-approved by AHEC, AOA, or AMA, all requests for CME approval should contain a timeline and course description. PROPOSED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 572 (e) Waiver for Certified Illness, Medical Condition, Natural Disaster, or Undue Hardship Since continuing education is one of the methods whereby a podiatrist keeps his medical knowledge and skills up-to-date, in the case of an unexpected, certified illness or medical condition of the licensee or immediate family member (as certified by a letter from a licensed physician) or undue hardship (e.g., active military service or natural disaster) which precludes a licensed podiatrist from completing his continuing education requirement within the 18-month timeframe from July 1 of the year of last license or renewal issuance through December 31 of the following year, the Board may waive the continuing education requirement for license renewal by issuing the podiatrist a conditional license predicated on the licensee acquiring all of the required continuing education credits in a mutually-agreeable timeframe, but no later than 24 months after December 31 of the year following the year of license or renewal issuance. The Board reserves the right to require additional information to support the licensee’s claim. The Board will notify the licensee of its decision in writing. Authority G.S. 90-202.4(g); 90-202.11. TEMPORARY RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 573 Note: This emergency rule was adopted under the procedure set out in G.S. 150B-21.1B. Adoption of rule to implement the American Recovery and Reinvestment Act. TITLE 04 – DEPARTMENT OF COMMERCE Rule-making Agency: Tax Reform Allocation Committee Rule Citation: 04 NCAC 01H .0501 Effective Date: September 8, 2011 Received by Codifier for entry into the NCAC on August 30, 2011. See G.S. 150B-21.1B. Reason for Action: Section 1112 of Title 1 of Division B of the American Recovery and Reinvestment Act of 2009 ("ARRA"), Pub. L. No. 111-5, 123 Stat. 115 (2009), amended 26 USC 54D(d) to increase the national bond volume cap authorization for Qualified Energy Conservation Bonds ("QECBs") from $800 million to $3.2 billion. Additionally, that section in the ARRA created the availability of "green community programs" as a tool for utilization of QECB capacity. North Carolina general statutes provided that the TRAC is the appropriate state entity to allocate QECB capacity and directed the TRAC to create procedures regarding such allocation. See, e.g., G.S. 143-433.8 and G.S. 143-433.9(a). Finally, 150B-21.1B provides that "It is the policy of the State…to quickly and efficiently complete the awards of grants and contracts under the ARRA" and provides that ARRA rule-making provisions be "liberally construed to allow agencies maximum flexibility in implementing the ARRA." The TRAC has been informed that a substantial number of energy conservation projects are anxiously awaiting the allocation of QECB capacity, and the TRAC is in need of rules in which to allocate such capacity to eligible issuers. As such, it is imperative that QECB capacity be allocated immediately so that energy conservation projects can be commenced. In any event, the ARRA itself provided in Section 5 ("Emergency Designations") that: "Each amount in this Act is designated as an emergency requirement and necessary to meet emergency needs pursuant to section 204(a) of S. Con. Res. 21 (110th Congress) and section 301(b)(2) of S. Con. Res. 70 (110th Congress), the concurrent resolutions on the budget for fiscal years 2008 and 2009." To the extent, if any, that such may be necessary, the Agency requests the Commission and/or the Codifier to waive any 210- day requirement under 150B-21.1(a2) or other law upon consideration of the degree of public benefit, the lack of control by the Agency, the need for a waiver, and other relevant factors in order to comport with the liberal construction contemplated by 150-21.1B ("Adoption of rules to implement the American Recovery and Reinvestment Act"). CHAPTER 01 - DEPARTMENTAL RULES SUBCHAPTER 01H - PRIVATE ACTIVITY BOND VOLUME CAPACITY PROGRAM SECTION .0500 - QUALIFIED ENERGY CONSERVATION BONDS 04 NCAC 01H .0501 PROCEDURES AND CRITERIA FOR ALLOCATION OF QUALIFIED ENERGY CONSERVATION BONDS The North Carolina Tax Reform Allocation Committee (the "Committee") is directed to allocate Qualified Energy Conservation Bond ("QECB") capacity to eligible issuers of such bonds as follows: (1) To "large local governments," as such term is used in 26 U.S.C.S. 54D(e)(2) in such amounts and manner as specifically directed by the United States Internal Revenue Service ("IRS") in 26 U.S.C.S. 54D and all relevant implementing notices provided by the IRS (including IRS Notice 2009-29), as may be modified, amended or supplemented. For purposes of calculating the populations of local governments to determine which constitutes a "large local government," the Committee shall use population estimates as of July 1, 2007, as directed by the IRS. (2) To "Indian tribal governments," as such term is used in 26 U.S.C.S. 54D(h) in such amounts as may be specifically directed by the IRS in 26 U.S.C.S. 54D and relevant implementing notices provided by the IRS (including IRS Notice 2009-29), as may be modified, amended or supplemented. (3) Following the allocations described in Items (1) and (2) of this Rule, the Committee shall allocate the remaining QECB capacity to eligible issuers. Such allocation shall be made by the Committee in its sole discretion, upon completed application by an eligible issuer, and after consideration of any factor the Committee deems relevant in its good faith and discretion, including (without limitation) some or all of the following factors: (a) The ability of the State to ensure that at least 70 percent of the State's allocation is used for government projects, and no more than 30 percent for projects considered QECB private activity bonds under IRS rules, regulations and guidelines; (b) The extent to which the project constitutes an eligible conservation purpose under 26 U.S.C.S. 54D and all relevant implementing notices provided by the IRS (including IRS Notice 2009-29), as may be modified, amended or supplemented; (c) The extent to which the project demonstrates the potential to directly conserve energy; TEMPORARY RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 574 (d) The extent to which the project supports the development or implementation of innovative energy conservation technology; (e) The extent to which the project uses renewable resources to produce energy; (f) The number of citizens benefiting from the project; (g) The estimated number of jobs to be produced by the projects (for private activity allocations) and the amount of QECB authority per job produced; (h) The readiness of the project to proceed; (i) The certainty of the issuer using the allocation within the estimated timelines; (j) The amount of other public and private funding leveraged by the QECB allocation; (k) The amount of local community support for the project; (l) The best interests of the State of North Carolina with regard to economic development, energy conservation, green initiatives and the general prosperity of the State; (m) Whether the unit of local government is in competition with another state for project benefits such as jobs and tax base; (n) Whether the availability of the allocation is a crucial part of attracting a new company or keeping an existing company in place; (o) Whether the requested allocation will benefit a project for which an eligible issuer is already issuing QECBs; (p) The ability of the unit of local government or company benefiting from the QECB to obtain financing and close the issue in a timely manner, including demonstration of a commitment from a bank or other financial institution to purchase or underwrite the QECBs; (q) The total amount of capacity available to the Committee for allocation. (4) Where required by law, local governments shall coordinate issuance of QECBs with and through the North Carolina Local Government Commission (the "LGC") in the Office of the North Carolina State Treasurer, and shall obtain approval from the LGC for QECB issuance. (5) Entities allocated QECB capacity by the Committee and/or entities who issue QECBs shall ensure compliance with all federal and state laws, rules, regulations and requirements applicable to such allocation or issue. (6) Entities receiving an allocation under Items (1) and (2) of this Rule ("large local governments" and "Indian tribal governments") have the right to waive and/or reallocate to the State of North Carolina all or a portion of their allocation. Upon the State's receipt of any additional QECB capacity through any such waiver or reallocation, the Committee shall allocate such capacity to eligible issuers in the manner described in Item (3) of this Rule. (7) The Committee shall attach such contingencies upon any allocation of QECB capacity made under Item (3) of this Rule as the Committee may deem appropriate, including (without limitation) contingencies relating to a time deadline for issuance of the QECBs pursuant to the allocated capacity and contingencies limiting the use of the allocated QECB capacity for public or private activity bonds. History Note: Authority G.S. 143-433.6(d); 143-433.8; 143- 433.9(a); 150B-21.1B; S.L. 2009-140; S.L. 2009-475; Emergency Adoption Eff. July 15, 2011; Temporary Adoption Eff. September 8, 2011. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 575 This Section includes a listing of rules approved by the Rules Review Commission followed by the full text of those rules. The rules that have been approved by the RRC in a form different from that originally noticed in the Register or when no notice was required to be published in the Register are identified by an * in the listing of approved rules. Statutory Reference: G.S. 150B- 21.17. Rules approved by the Rules Review Commission at its meeting on August 18, 2011. REGISTER CITATION TO THE NOTICE OF TEXT PUBLIC LIBRARIAN CERTIFICATION COMMISSION Purpose of the Commission 07NCAC 02F .0101 25:21 NCR Full Certification 07NCAC 02F .0102 25:21 NCR Application Procedure for Public Librarian Certification 07 NCAC 02F .0103 25:21 NCR Purpose of the Commission 07NCAC 02J .0101 25:21 NCR Full Certification 07NCAC 02J .0102 25:21 NCR Application Procedure for Public Librarian Certification 07 NCAC 02J .0103 25:21 NCR SOCIAL SERVICES COMMISSION Licensure 10ANCAC 70G .0403* 25:19 NCR Licensure 10ANCAC 70H .0114* 25:19 NCR Buildings and Ground Equipment 10ANCAC 70J .0106* 25:19 NCR HOME INSPECTOR LICENSURE BOARD Definitions 11NCAC 08 .1020 25:20 NCR Program Structuring and Admission Requirements 11 NCAC 08 .1021 25:20 NCR Program Sponsors 11NCAC 08 .1022 25:20 NCR Application for Program Sponsor 11 NCAC 08 .1023* 25:20 NCR Course Requirements 11NCAC 08 .1024* 25:20 NCR Course Completion Standards 11NCAC 08 .1025* 25:20 NCR Course Scheduling 11NCAC 08 .1026 25:20 NCR Textbooks 11NCAC 08 .1027* 25:20 NCR Course Completion 11NCAC 08 .1028* 25:20 NCR Purpose and Scope 11NCAC 08 .1103 25:20 NCR ENVIRONMENTAL MANAGEMENT COMMISSION Jordan Water Supply Nutrient Strategy: Purpose and… 15A NCAC 02B .0262* n/a G.S. 150B-21.5(a)(4) Jordan Water Supply Nutrient Strategy: Protection of... 15A NCAC 02B .0267* n/a G.S. 150B-21.5(a)(5) Jordan Water Supply Nutrient Strategy: Mitigation of... 15A NCAC 02B .0268* n/a G.S. 150B-21.5(a)(5) Jordan Water Supply Nutrient Strategy: Stormwater... 15A NCAC 02B .0271* n/a G.S. 150B-21.5(a)(5) Sulfur Oxides 15ANCAC 02D .0402 25:19 NCR Nitrogen Dioxide 15ANCAC 02D .0407 25:19 NCR WILDLIFE RESOURCES COMMISSION Tyrell County 15ANCAC 10F .0365* 25:20 NCR Appointment of Wildlife Service Agents 15ANCAC 10G .0402 25:18 NCR Wildlife Service Agent Agreement 15ANCAC 10G .0403* 25:18 NCR APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 576 Wildlife Service Agent Terms and Conditions 15ANCAC 10G .0405* 25:18 NCR ENVIRONMENT AND NATURAL RESOURCES, DEPARTMENT OF Fee Schedule 15ANCAC 28 .0302 25:21 NCR COSMETIC ART EXAMINERS, BOARD OF Prerequisites 21NCAC 14C .0202 25:18 NCR Renewals, Expired Licenses, Licenses Required 21 NCAC 14P .0105 25:18 NCR Revocation of Licenses and Other Disciplinary Measures 21 NCAC 14P .0108 25:18 NCR MASSAGE AND BODYWORK THERAPY, BOARD OF Standards of Professional Conduct 21 NCAC 30 .0624* 25:18 NCR ENGINEERS AND SURVEYORS, BOARD OF EXAMINERS FOR Rules of Professional Conduct 21NCAC 56 .0701* 25:20 NCR Surveying Procedures 21NCAC 56 .1602* 25:20 NCR REFRIGERATION EXAMINERS, BOARD OF Office of the Board 21NCAC 60 .0102* 25:17 NCR TITLE 07 – DEPARTMENT OF CULTURAL RESOURCES 07 NCAC 02F .0101 PURPOSE OF THE COMMISSION 07 NCAC 02F .0102 FULL CERTIFICATION 07 NCAC 02F .0103 APPLICATION PROCEDURE FOR PUBLIC LIBRARIAN CERTIFICATION History Note: Authority G.S. 143B-67; Eff. February 10, 1976; Readopted Eff. December 1, 1977; Amended Eff. August 1, 1995; June 1, 1989; June 1, 1981; Repealed Eff. September 1, 2011. 07 NCAC 02J .0101 PURPOSE OF THE COMMISSION (a) The North Carolina Public Librarian Certification Commission sets minimum standards for certification for public librarians to accomplish the following purposes: (1) Guarantee the best possible public library service for all North Carolinians; (2) Protect and maintain public library resources; (3) Assure professional management and administration of library programs; and (4) Provide certified professionals to meet the Department of Cultural Resources' personnel requirements for State and other aid administered by the State Library of North Carolina. (b) The Commission shall review applications and certify those librarians who meet the certification requirements enumerated in Rule .0102 of this Subchapter. History Note: Authority G.S. 143B-67; Eff. September 1, 2011. 07 NCAC 02J .0102 FULL CERTIFICATION (a) The North Carolina Public Librarian Certification Commission shall issue public librarian certificates to applicants who have received graduate degrees in library and information science from programs accredited by the American Library Association or from regionally-accredited programs of higher education in North Carolina. (b) Coursework must include the following core courses: (1) cataloging, (2) reference, (3) collection development, and (4) library management. (c) Courses specifically designed for school, media center, academic, or special librarianship, must reflect general principles of librarianship. History Note: Authority G.S. 143B-67; Eff. September 1, 2011. 07 NCAC 02J .0103 APPLICATION PROCEDURE FOR PUBLIC LIBRARIAN CERTIFICATION Applicants shall send a completed application form for public librarian certification, accompanied by an official transcript APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 577 which contains the date of conferral of the degree, to the Library Development Section of the State Library of North Carolina. History Note: Authority G.S. 143B-67; Eff. September 1, 2011. TITLE 10A - DEPARTMENT OF HEALTH AND HUMAN SERVICES 10A NCAC 70G .0403 LICENSURE (a) License. (1) Licensure is required in accordance with G.S. 131D-10.3 and with rules in Subchapters 70F and 70G of this Chapter. (2) Licenses shall be in effect for two years unless suspended or revoked. Appeal procedures specified in 10A NCAC 70L .0301 apply for persons seeking an appeal of the licensing authority's decision to deny, suspend, or revoke a license. (3) Child-placing agencies for foster care licensed after September 1, 2011 shall have a three year or longer accreditation from either the Council on Accreditation (COA), The Joint Commission, formerly known as the Joint Commission on Accreditation of Healthcare Organizations (TJC), The Commission on Accreditation and Rehabilitation Facilities (CARF) or The Council on Quality and Leadership (CQL). (4) Applicants shall inform the licensing authority of any current licenses or licenses held in the past five years for child-placing agencies, maternity homes, or residential child-care facilities in other states. Applicants shall provide written documentation from the licensing authority in other states regarding violations, penalties, or probationary status imposed in other states. (b) Changes in any information on the license. (1) The licensing authority shall change a license during the period of time it is in effect if the change is in compliance with rules in Subchapters 70F and 70G of this Chapter. (2) A child-placing agency for foster care shall notify the licensing authority in writing of its request for a change in license, including information that is necessary to assure the change is in compliance with the rules in Subchapters 70F and 70G of this Chapter. (c) Termination. (1) When a child-placing agency for foster care voluntarily discontinues operations, either temporarily or permanently, the child-placing agency for foster care shall notify the licensing authority in writing of the date, reason and anticipated length of closing. (2) If a license is not renewed by the end of the licensure period, the licensing authority shall automatically terminate the license. (3) When the license of a child-placing agency for foster care is terminated, the agency shall meet all requirements of a new agency prior to being licensed. (d) Adverse licensure action. (1) The licensing authority shall deny, suspend or revoke a license when a child-placing agency for foster care is not in compliance with the rules in Subchapters 70F and 70G of this Chapter unless the agency within 10 working days from the date the agency received the deficiency report from the licensing authority submits a plan of correction. The plan of correction shall specify the following: (A) the measures that will be put in place to correct the deficiency; (B) the systems that will be put in place to prevent a re-occurrence of the deficiency; (C) the individual or individuals who will monitor the corrective action; and (D) the date the deficiency will be corrected which is no later than 60 days from the date the routine monitoring was concluded. (2) The licensing authority shall notify a child-placing agency for foster care in writing of the decision to deny, suspend or revoke a license. (3) Appeal procedures specified in 10A NCAC 70L .0301 are applicable for persons seeking an appeal to the licensing authority's decision to deny, suspend or revoke a license. (e) Licensure shall be denied when any of the following conditions apply: (1) the applicant owns a facility or agency licensed under G.S. 122C and that facility or agency incurred a penalty for a Type A or B violation under Article 3 of G.S. 122C; or any combination thereof, and any one of the following conditions exist: (A) A single violation has been assessed in the six months prior to the application. (B) Two violations have been assessed in the 18 months prior to the application and 18 months have not passed from the date of the most recent violation. (C) Three violations have been assessed in the 36 months prior to the application and 36 months have not passed from the date of the most recent violation. (D) Four or more violations have been assessed in the 60 months prior to application and 60 months have not APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 578 passed from the date of the most recent violation. (2) the Department of Health and Human Services has initiated revocation or summary suspension proceedings against any facility licensed pursuant to G.S. 122C, Article 2; G.S. 131D, Articles 1 or 1A; or G.S. 110, Article 7 that was previously held by the applicant and the applicant voluntarily relinquished the license and 60 months have not passed from the date of the revocation or summary suspension; (3) there is a pending appeal of a denial, revocation or summary suspension of any facility licensed pursuant to G.S. 122C, Article 2; G.S. 131D, Articles 1 or 1A; or G.S. 110, Article 7 that is owned by the applicant; (4) the applicant has an individual as part of their governing body or management who previously held a license that was revoked or summarily suspended under G.S. 122C, Article 2; G.S. 131D, Articles 1 or 1A; and G.S. 110, Article 7 and the rules adopted under these laws and 60 months have not passed from the date of the revocation or summary suspension; (5) the applicant is an individual who has a finding or pending investigation by the Health Care Personnel Registry in accordance with G.S. 131E-256; or (6) the applicant is an individual who has a finding on the Responsible Individual's List as described in 10A NCAC 70A .0102. History Note: Authority G.S. 131D-1; 131D-10.3; 131D- 10.5; 143B-153; Eff. September 1, 2011. 10A NCAC 70H .0114 LICENSURE (a) License. (1) Licensure is required in accordance with G.S. 131D-10.3 and with rules in Subchapters 70F and 70H of this Chapter. (2) Licenses shall be in effect for two years unless suspended or revoked. Appeal procedures specified in 10A NCAC 70L .0301 apply for persons seeking an appeal of the licensing authority's decision to deny, suspend, or revoke a license. (3) Child-placing agencies for adoption licensed after September 1, 2011shall have a three year or longer accreditation from either the Council on Accreditation (COA), The Joint Commission, formerly known as the Joint Commission on Accreditation of Healthcare Organizations (TJC), The Commission on Accreditation and Rehabilitation Facilities (CARF) or The Council on Quality and Leadership (CQL). (4) Applicants shall inform the licensing authority of any current licenses or licenses held in the past five years for child-placing agencies, maternity homes, or residential child-care facilities in other states. Applicants shall provide written documentation from the licensing authority in other states regarding violations, penalties, or probationary status imposed in other states. (b) Changes in any information on the license. (1) The licensing authority shall change a license during the period of time it is in effect if the change is in compliance with rules in Subchapters 70F and 70H of this Chapter. (2) A child-placing agency for adoption shall notify the licensing authority in writing of its request for a change in license, including information that is necessary to assure the change is in compliance with the rules in Subchapters 70F and 70H of this Chapter. (c) Termination. (1) When a child-placing agency for adoption voluntarily discontinues operations, either temporarily or permanently, the child-placing agency for adoption shall notify the licensing authority in writing of the date, reason and anticipated length of closing. (2) If a license is not renewed by the end of the licensure period, the licensing authority shall automatically terminate the license. (3) When the license of a child-placing agency for adoption is terminated, the agency shall meet all requirements of a new agency prior to being licensed. (d) Adverse licensure action. (1) The licensing authority shall deny, suspend or revoke a license when a child-placing agency for adoption is not in compliance with the rules in Subchapters 70F and 70H of this Chapter unless the agency within 10 working days from the date the agency received the deficiency report from the licensing authority submits a plan of correction. The plan of correction shall specify the following: (A) the measures that will be put in place to correct the deficiency; (B) the systems that will be put in place to prevent a re-occurrence of the deficiency; (C) the individual or individuals who will monitor the corrective action; and (D) the date the deficiency will be corrected which are no later than 60 days from the date the routine monitoring was concluded. (2) The licensing authority shall notify a child-placing agency for adoption in writing of the decision to deny, suspend or revoke a license. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 579 (3) Appeal procedures specified in 10A NCAC 70L .0301 are applicable for persons seeking an appeal to the licensing authority's decision to deny, suspend or revoke a license. (e) Licensure shall be denied when any of the following conditions apply: (1) the applicant owns a facility or agency licensed under G.S. 122C and that facility or agency incurred a penalty for a Type A or B violation under Article 3 of G.S. 122C; or any combination thereof, and any one of the following conditions exist: (A) A single violation has been assessed in the six months prior to the application. (B) Two violations have been assessed in the 18 months prior to the application and 18 months have not passed from the date of the most recent violation. (C) Three violations have been assessed in the 36 months prior to the application and 36 months have not passed from the date of the most recent violation. (D) Four or more violations have been assessed in the 60 months prior to application and 60 months have not passed from the date of the most recent violation. (2) the Department of Health and Human Services has initiated revocation or summary suspension proceedings against any facility licensed pursuant to G.S. 122C, Article 2; G.S. 131D, Articles 1 or 1A; or G.S. 110, Article 7 that was previously held by the applicant and the applicant voluntarily relinquished the license and 60 months have not passed from the date of the revocation or summary suspension; (3) there is a pending appeal of a denial, revocation or summary suspension of any facility licensed pursuant to G.S. 122C, Article 2; G.S. 131D, Articles 1 or 1A; or G.S. 110, Article 7 that is owned by the applicant; (4) the applicant has an individual as part of their governing body or management who previously held a license that was revoked or summarily suspended under G.S. 122C, Article 2; G.S. 131D, Articles 1 or 1A; and G.S. 110, Article 7 and the rules adopted under these laws and 60 months have not passed from the date of the revocation or summary suspension; (5) the applicant is an individual who has a finding or pending investigation by the Health Care Personnel Registry in accordance with G.S. 131E-256; or (6) the applicant is an individual who has a finding on the Responsible Individual's List as described in 10A NCAC 70A .0102. History Note: Authority G.S. 131D-10.3; 131D-10.5; 143B- 153; Eff. September 1, 2011. 10A NCAC 70J .0106 BUILDINGS AND GROUND EQUIPMENT (a) Facilities. (1) All sleeping units must provide at least the following space: (A) 50 square feet per person; (B) 30 inches between sides of beds. (2) All camper sleeping facilities shall be limited to one level structures. (3) Any structure, sleeping or otherwise, with an occupancy of more than 12 persons, including staff, shall have at least two separate and independent means of exit. (4) Open flame lighting shall not be used in sleeping shelters for lighting and heating. (b) Grounds: (1) There shall be potable water available at each camp site. (2) At each children's camp there shall be provided a minimum of: (A) one shower head for each 20 children; (B) one flush toilet for each 20 children; (C) one urinal for each 30 male children (urinals may not be substituted for flush toilets); (D) one handwashing facility, adjacent to toilet facilities, for each 20 children; and (E) a wilderness latrine facility approved pursuant to the rules of the Commission for Health Services. (3) The hot water temperature at all fixtures used by residents shall be maintained at a minimum of 100 degrees F (38 degrees C) and shall not exceed 116 degrees F (46.7 degrees C). (c) Equipment: (1) Laundry facilities or equipment shall be available at each camp for all staff and children. (2) Gasoline, kerosene, and other flammable materials shall be stored in covered safe containers, labeled for contents. (3) Power tools: (A) All power tools, including mowers and trimmers, must have safety devices and be used according to manufacturer's instruction, maintained in good repair, and used only by those persons trained and experienced in their safety. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 580 (B) Campers shall receive safety instructions before using such equipment. (C) When campers are using such equipment, a trained and responsible adult must be present. (D) When not in use, all power tools shall be stored in a locked place not occupied by children. (4) Fire extinguishers shall be available in all areas so designated by fire safety officials, shall be properly charged and shall have current inspection labels. History Note: Authority G.S. 131D-10.5; 143B-153; Eff. July 1, 1999 (See S.L. 1999, c. 237, s. 11.30); Amended Eff. September 1, 2011; July 18, 2002. TITLE 11 – DEPARTMENT OF INSURANCE 11 NCAC 08 .1020 DEFINITIONS (a) As used in Rules .1020 through .1028 of this Section: (1) "Course Sponsor" means a person approved by the Board to conduct home inspection prelicensing courses. (2) "Credit hour" means one continuing education course hour, comprising at least 50 minutes of instruction. (3) "License period" means October 1 through the following September 30. (4) "Licensee" means a home inspector or associate home inspector licensed by the Board under G.S. 143, Article 9F. (5) "Person" means an individual, partnership, firm, association, corporation, joint-stock company, trust, any similar entity, or any combination of the foregoing acting in concert. (b) The definitions contained in G.S. 143-151.45 apply to this Section. History Note: Authority G.S. 143-151.45; 143-151.49; 143- 151.51; Eff. October 1, 2011. 11 NCAC 08 .1021 PROGRAM STRUCTURING AND ADMISSION REQUIREMENTS The home inspection prelicensing education program shall consist of a minimum total of 200 hours consisting of classroom and field training as follows: (1) Academic education consisting of at least 120 hours classroom instruction; and (2) Training consisting of at least 80 hours of field instruction with at least 10 site visits. History Note: Authority G.S. 143-151.49; 143-151.51; Eff. October 1, 2011. 11 NCAC 08 .1022 PROGRAM SPONSORS The course sponsor of a home inspection prelicensing program shall obtain approval of the Board for its educational program. History Note: Authority G.S. 143-151.49; 143-151.51; 143- 151.64; Eff. October 1, 2011. 11 NCAC 08 .1023 APPLICATION FOR PROGRAM SPONSOR APPROVAL (a) An entity seeking approval to sponsor a home inspection prelicensing education program must make written applications to the Board upon a form provided by the Board. (b) An applying entity that is not a resident of North Carolina shall also file with the application a consent to service of process and pleading. (c) The applicant shall submit separate applications to sponsor the academic classroom and practical training portions of the program. (d) The application shall be accompanied by a program plan outline, course description materials, instructor's guide and textbook, North Carolina Standards of Practice and Code of Ethics (Section .1100 of Chapter 8), sample exams, and report formats. (e) The sponsor must obtain approval by the Board 45 days prior to the commencement of any courses or training. History Note: Authority G.S. 143-151.49; 143-151.51; 143- 151.57; Eff. October 1, 2011. 11 NCAC 08 .1024 COURSE REQUIREMENTS (a) Prelicensing programs shall be comprised of the following subject areas: (1) Introduction to Home Inspection N.C. General Statutes, Standards of Practice and Code of Ethics, and (2) Inspection defect and report writing including: (A) Structural Components; (B) Exteriors; (C) Roofing; (D) Plumbing; (E) Electrical; (F) Heating; (g) Air Conditioning; (H) Insulation and Ventilation; (I) Interiors; and (J) Built in Kitchen Appliances. (b) Courses may include coverage of additional related subject areas not prescribed by the Board; however, any such course shall provide additional class time above the minimum requirement for the coverage of such additional subject areas. (c) Classroom time and instructional materials shall be utilized for instructional purposes only and not for promoting the interests of or recruiting employees or members for any particular home inspector, home inspection firm or franchise. (d) Practical training time and instructional materials shall be utilized for instructional purposes only and not for promoting the APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 581 interests of or recruiting employees or members for any particular home inspector, home inspection firm or franchise. History Note: Authority G.S. 143-151.49; 143-151.51; Eff. October 1, 2011. 11 NCAC 08 .1025 COURSE COMPLETION STANDARDS (a) An applicant must attend at least 90 percent of all scheduled classroom hours. (b) A student's grade shall be based solely on his performance on examinations, on graded homework and class work assignments. (c) An applicant for licensure shall obtain a grade of at least 75 percent on a comprehensive final course examination that covers all prescribed subject areas. Take home or open book final course examinations are prohibited. Sponsors and instructors may utilize other course quizzes and tests in addition to the final course examination provided that a student's grade on the final course examination accounts for at least 75 percent of the student's grade for the course. (d) Prelicensing course final examinations may be provided by the Board for use by approved sponsors and instructors. If the Board does not provide such examinations, or if a sponsor or instructor elects not to use Board-provided examinations, the sponsor or instructor shall use a comprehensive examination which tests student's knowledge and mastery of the course subject matter. The examination is subject to review and approval by the Board. Sponsors may, within 90 days of the course ending date, allow a prelicensing course student one opportunity to make up any missed course final examination or to retake any failed course final examination without repeating the course. If examinations provided by the Board are used, any makeup or repeat examination shall consist of a different form of the examination than the one previously administered in the student's course. If examinations not provided by the Board are used, any makeup or repeat examination shall be comparable to the initial examination with regard to the number of questions, subject areas tested and overall difficulty, and at least 75 percent of the questions shall be different from those used on the initial examination. (e) Sponsors shall protect the security and integrity of course examinations at all times. This includes: (1) Maintaining examinations and answer keys in a secure place accessible only to the instructor or sponsor; (2) Prohibiting students from retaining copies of examinations, answer sheets, scratch paper containing notes or calculations that jeopardize examination security; and (3) Monitoring students at all times when examinations are being administered. (f) Any student who gives or receives assistance during the examination shall turn in all exam materials and leave the room. Under these circumstances, the student's answer sheet shall not be scored and information regarding the giving of assistance shall be reported by the course sponsor to the Board within 10 days of the incident. History Note: Authority G.S. 143-151.49; 143-151.51; Eff. October 1, 2011. 11 NCAC 08 .1026 COURSE SCHEDULING (a) All courses must have fixed beginning and ending dates. (b) Sponsors may not utilize a scheduling system that allows students to enroll late for a course and then complete their course work in a subsequently scheduled course. (c) Late enrollment is permitted only if the enrolling student can satisfy the minimum attendance requirements set forth in Rule .1025 of this Section. (d) Courses shall not have practical training field exercises that exceed a total of eight hours in any given day. History Note: Authority G.S. 143-151.49; 143-151.51; Eff. October 1, 2011. 11 NCAC 08 .1027 TEXTBOOKS (a) Each course shall utilize a textbook or course materials which are approved by the Board (b) A request for Board approval of a proposed textbook or similar course materials shall be submitted in writing to the Board and accompanied by two copies of the proposed textbook or course materials. (c) Approval of a textbook or other course materials applies only to the edition reviewed by the Board. (d) A request for approval of a new edition of an approved textbook shall be made in writing to the Board. (e) If requested by the Board, the sponsor shall provide a copy of the new edition to the Board or shall submit a list of changes. (f) Approval is for an indefinite period; however, such approval may be terminated by the Board at any time upon determining that the approved edition no longer complies with the criteria for approval. The criteria for approval is: (1) The textbook or materials shall provide accurate, current and complete coverage of the subject matter required by the Board for the course for which approval of the textbook or materials is sought, including coverage of unique North Carolina home inspection related laws, rules and practices that are integrated into the basic coverage; and (2) The information provided shall be logically organized. History Note: Authority G.S. 143-151.49; 143-151.51; Eff. October 1, 2011. 11 NCAC 08 .1028 COURSE COMPLETION REPORTING (a) Program sponsors shall submit to the Board verification of each student who completes a prelicensing course that is in compliance with Board rules. (b) Sponsors shall provide students a certificate of course completion upon completing a prelicensing course that is in compliance with the Board rules. (c) A course completion certificate shall be prepared in the following format: APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 582 (1) the certificate shall be printed on the official sponsor letterhead offering the prelicensing course; (2) the title of the completed prelicensing course; (3) the first and last name of the student who completed the prelicensing course; (4) the instructor's name; and (5) the signature certifying the completion of the course program shall be either an original signature, an electronic signature or stamped signature of the director, dean or other official and shall be in a color other than black ink. History Note: Authority G.S. 143-151.49; 143-151.51; Eff. October 1, 2011. 11 NCAC 08 .1103 PURPOSE AND SCOPE (a) Home inspections performed according to this Section shall provide the client with an understanding of the property conditions, as inspected at the time of the home inspection. (b) Home inspectors shall: (1) Provide a written contract, signed by the client, before the home inspection is performed that shall: (A) State that the home inspection is in accordance with the Standards of Practice of the North Carolina Home Inspector Licensure Board; (B) Describe what services shall be provided and their cost; and (C) State, when an inspection is for only one or a limited number of systems or components, that the inspection is limited to only those systems or components; (2) Inspect readily visible and readily accessible installed systems and components listed in this Section; and (3) Submit a written report to the client that shall: (A) Describe those systems and components required to be described in Rules .1106 through .1115 of this Section; (B) State which systems and components present at the home and designated for inspection in this Section were not inspected, and the reason for not inspecting; (C) State any systems or components so inspected that do not function as intended, allowing for normal wear and tear, or adversely affect the habitability of the dwelling; (D) State whether the condition reported requires repair or subsequent observation, or warrants further investigation by a specialist. The statements shall describe the component or system and how the condition is defective, explain the consequences of the condition, and direct the recipient to a course of action with regard to the condition or refer the recipient to a specialist; and (E) State the name, license number, and signature of the person supervising the inspection and the name, license number, and signature of the person conducting the inspection. (c) This Section does not limit home inspectors from: (1) Reporting observations and conditions or rendering opinions of items in addition to those required in Paragraph (b) of this Rule; or (2) Excluding systems and components from the inspection if requested by the client, and so stated in the written contract. History Note: Authority G.S. 143-151.49; 143-151.58; Codifier determined that agency findings did not meet criteria for temporary rule Eff. October 15, 1996; Temporary Adoption Eff. October 24, 1996; Eff. July 1, 1998; Amended Eff. October 1, 2011; March 1, 2010; February 1, 2009; February 1, 2007; April 1, 2005; May 1, 2003; July 1, 2000. TITLE 15A – DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES 15A NCAC 02B .0262 JORDAN WATER SUPPLY NUTRIENT STRATEGY: PURPOSE AND SCOPE PURPOSE. The purpose of this Rule, 15A NCAC 02B .0263 through .0273 and .0311(p) shall be to restore and maintain nutrient-related water quality standards in B. Everett Jordan Reservoir; protect its classified uses as set out in 15A NCAC 02B .0216, including use as a source of water supply for drinking water, culinary and food processing purposes; and maintain or enhance protections currently implemented by local governments in existing water supply watersheds. These Rules, as further enumerated in Item (3) of this Rule, together shall constitute the Jordan water supply nutrient strategy, or Jordan nutrient strategy. Additional provisions of this Rule include establishing the geographic and regulatory scope of the Jordan nutrient strategy, defining its relationship to existing water quality regulations, setting specific nutrient mass load goals for Jordan Reservoir, providing for the use of adaptive management to restore Jordan Reservoir, and citing general enforcement authorities. The following provisions further establish the framework of the Jordan water supply nutrient strategy: (1) SCOPE. B. Everett Jordan Reservoir is hereafter referred to as Jordan Reservoir. All lands and waters draining to Jordan Reservoir are hereafter referred to as the Jordan watershed. Jordan Reservoir and all waters draining to it have been supplementally classified as Nutrient Sensitive Waters (NSW) APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 583 pursuant to 15A NCAC 02B .0101(e)(3) and 15A NCAC 02B .0223. Water supply waters designated WS-II, WS-III, and WS-IV within the Jordan watershed shall retain their classifications. The remaining waters in the Jordan watershed shall be classified WS-V. The requirements of all of these water supply classifications shall be retained and applied except as specifically noted in Item (6) of this Rule and elsewhere within the Jordan nutrient strategy. Pursuant to G.S. 143-214.5(b), the entire Jordan watershed shall be designated a critical water supply watershed and through the Jordan nutrient strategy given additional, more stringent requirements than the state minimum water supply watershed management requirements. These requirements supplement the water quality standards applicable to Class C waters, as described in Rule .0211 of this Section, which apply throughout the Jordan watershed. (2) STRATEGY GOAL. Pursuant to G.S. 143- 215.1(c5), 143-215.8B, and 143B-282(c) and (d) of the Clean Water Responsibility Act of 1997, the Environmental Management Commission establishes the goal of reducing the average annual loads of nitrogen and phosphorus delivered to Jordan Reservoir from all point and nonpoint sources of these nutrients located within its watershed, as specified in Item (5) of this Rule, and provides for adaptive management of the strategy and goal, as specified in Item (8) of this Rule. (3) RULES ENUMERATED. The second rule in the following list provides definitions for terms that are used in more than one rule of the Jordan nutrient strategy. An individual rule may contain additional definitions that are specific to that rule. The rules of the Jordan nutrient strategy shall be titled as follows: (a) Rule .0262 Purpose and Scope; (b) Rule .0263 Definitions; (c) Rule .0264 Agriculture; (d) Rule .0265 Stormwater Management for New Development; (e) Rule .0266 Stormwater Management for Existing Development; (f) Rule .0267 Protection of Existing Riparian Buffers; (g) Rule .0268 Mitigation for Riparian Buffers; (h) Rule .0269 Riparian Buffer Mitigation Fees to the NC Ecosystem Enhancement Program; (i) Rule .0270 Wastewater Discharge Requirements; (j) Rule .0271 Stormwater Requirements for State and Federal Entities; (k) Rule .0272 Fertilizer Management; (l) Rule .0273 Options for Offsetting Nutrient Loads; and (m) Rule .0311 Cape Fear River Basin. (4) RESERVOIR ARMS AND SUBWATERSHEDS. For the purpose of the Jordan nutrient strategy, Jordan Reservoir is divided into three arms and the Jordan watershed is divided into three tributary subwatersheds as follows: (a) The Upper New Hope arm of the reservoir, identified by index numbers 16-41-1-(14), 16-41-2-(9.5), and 16-41-(0.5) in the Schedule of Classifications for the Cape Fear River Basin, 15A NCAC 02B .0311, encompasses the upper end of the reservoir upstream of SR 1008, and its subwatershed encompasses all lands and waters draining into it. (b) The Lower New Hope arm of the reservoir, identified by index number 16-41-(3.5) in the Schedule of Classifications for the Cape Fear River Basin, 15A NCAC 02B .0311, lies downstream of SR 1008 and upstream of the Jordan Lake Dam, excluding the Haw River arm of the reservoir, and its subwatershed encompasses all lands and waters draining into the Lower New Hope arm of the reservoir excluding those that drain to the Upper New Hope arm of the reservoir and the Haw River arm of the reservoir. (c) The Haw River arm of the reservoir, identified by index number 16-(37.5) in the Schedule of Classifications for the Cape Fear River Basin, 15A NCAC 02B .0311, lies immediately upstream of Jordan Lake Dam, and its subwatershed includes all lands and waters draining into the Haw River arm of the reservoir excluding those draining into the Upper and Lower New Hope arms. (5) NUTRIENT REDUCTION GOALS. Each arm of the lake has reduction goals, total allowable loads, point source wasteload allocations, and nonpoint source load allocations for both nitrogen and phosphorus based on a field-calibrated nutrient response model developed pursuant to provisions of the Clean Water Responsibility Act of 1997, G.S. 143-215.1(c5). The reduction goals and allocations are to be met collectively by the sources regulated under the Jordan nutrient strategy. The reduction goals are expressed in terms of a percentage reduction in delivered loads from the baseline years, 1997-2001, APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 584 while allocations are expressed in pounds per year of allowable delivered load. Each arm and subwatershed shall conform to its respective allocations for nitrogen and phosphorus as follows: (a) The at-lake nitrogen load reduction goals for the arms of Jordan Reservoir are as follows: (i) The Upper New Hope arm has a 1997-2001 baseline nitrogen load of 986,186 pounds per year and a TMDL reduction goal of 35 percent. The resulting TMDL includes a total allowable load of 641,021 pounds of nitrogen per year: a point source mass wasteload allocation of 336,079 pounds of nitrogen per year, and a nonpoint source mass load allocation of 304,942 pounds of nitrogen per year. (ii) The Lower New Hope arm has a 1997-2001 baseline nitrogen load of 221,929 pounds per year and a nitrogen TMDL capped at the baseline nitrogen load. The resulting TMDL includes a total allowable load of 221,929 pounds of nitrogen per year: a point source mass wasteload allocation of 6,836 pounds of nitrogen per year, and a nonpoint source mass load allocation of 215,093 pounds of nitrogen per year. (iii) The Haw River arm has a 1997-2001 baseline nitrogen load of 2,790,217 pounds per year and a TMDL percentage reduction of 8 percent. The resulting TMDL includes a total allowable load of 2,567,000 pounds of nitrogen per year: a point source mass wasteload allocation of 895,127 pounds of nitrogen per year, and a nonpoint source mass load allocation of 1,671,873 pounds of nitrogen per year. (b) The at-lake phosphorus load reduction goals for the arms of Jordan Reservoir are as follows: (i) The Upper New Hope arm has a 1997-2001 baseline phosphorus load of 87,245 pounds per year and a TMDL percentage reduction of five percent. The resulting TMDL includes a total allowable load of 82,883 pounds of phosphorus per year: a point source mass wasteload allocation of 23,108 pounds of phosphorus per year, and a nonpoint source mass load allocation of 59,775 pounds of phosphorus per year. (ii) The Lower New Hope arm has a 1997-2001 baseline phosphorus load of 26,574 pounds per year and a phosphorus TMDL capped at the baseline phosphorus load. The resulting TMDL includes a total allowable load of 26,574 pounds of phosphorus per year: a point source mass wasteload allocation of 498 pounds of phosphorus per year, and a nonpoint source mass load allocation of 26,078 pounds of phosphorus per year. (iii) The Haw River arm has a 1997-2001 baseline phosphorus load of 378,569 pounds per year and a TMDL percentage reduction of five percent. The resulting TMDL includes a total allowable load of 359,641 pounds of phosphorus per year: a point source mass wasteload allocation of 106,001 pounds of phosphorus per year, and a nonpoint source mass load allocation of 253,640 pounds of phosphorus per year. (c) The allocations established in this Item may change as a result of allocation transfer between point and nonpoint sources to the extent provided for in rules of the Jordan nutrient strategy and pursuant to requirements on the sale and purchase of load reduction credit set out in 15A NCAC 02B .0273. (6) RELATION TO WATER SUPPLY REQUIREMENTS. For all waters designated APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 585 as WS-II, WS-III, or WS-IV within the Jordan watershed, the requirements of water supply 15A NCAC 02B .0214 through .0216 shall remain in effect with the exception of Sub- Item (3)(b) of those rules addressing nonpoint sources. The nonpoint source requirements of Sub-Item (3)(b) of those rules are superseded by the requirements of this Rule and 15A NCAC 02B .0263 through .0269, and .0271 through .0273, except as specifically stated in any of these Rules. For the remaining waters of Jordan watershed, the requirements of water supply Rule .0218 and Rules .0263 through .0273 and .0311 shall be applied. For WS-II, WS-III, and WS-IV waters, the retained requirements of 15A NCAC 02B .0214 through .0216 are the following: (a) Item (1) of 15A NCAC 02B .0214 through .0216 addressing best usages; (b) Item (2) of 15A NCAC 02B .0214 through .0216 addressing predominant watershed development conditions, discharges expressly allowed watershed-wide, general prohibitions on and allowances for domestic and industrial discharges, Maximum Contaminant Levels following treatment, and the local option to seek more protective classifications for portions of existing water supply watersheds; (c) Sub-Item (3)(a) of 15A NCAC 02B .0214 through .0216 addressing waste discharge limitations; and (d) Sub-Items (3)(c) through (3)(h) of 15A NCAC 02B .0214 through .0216 addressing aesthetic and human health standards. (7) APPLICABILITY. Types of parties responsible for implementing rules within the Jordan nutrient strategy and, as applicable, their geographic scope of responsibility, are identified in each rule. The specific local governments responsible for implementing Rules .0265, .0266, .0267, .0268, and .0273 shall be as follows: (a) Rules .0265, .0266, .0267, .0268, and .0273 shall be implemented by all incorporated municipalities, as identified by the Office of the Secretary of State, with planning jurisdiction within or partially within the Jordan watershed. Those municipalities currently are: (i) Alamance; (ii) Apex; (iii) Burlington; (iv) Carrboro; (v) Cary; (vi) Chapel Hill; (vii) Durham; (viii) Elon; (ix) Gibsonville; (x) Graham; (xi) Green Level; (xii) Greensboro; (xiii) Haw River; (xiv) Kernersville; (xv) Mebane; (xvi) Morrisville; (xvii) Oak Ridge; (xviii) Ossipee; (xix) Pittsboro; (xx) Pleasant Garden; (xxi) Reidsville; (xxii) Sedalia; (xxiii) Stokesdale; (xxiv) Summerfield; and (xxv) Whitsett. (b) Rules .0265, .0266, .0267, .0268, and .0273 shall be implemented by the following counties for the portions of the counties where the municipalities listed in Sub-Item (7)(a) do not have an implementation requirement: (i) Alamance; (ii) Caswell; (iii) Chatham; (iv) Durham; (v) Guilford; (vi) Orange; (vii) Rockingham; and (viii) Wake. (c) A unit of government may arrange through interlocal agreement or other instrument of mutual agreement for another unit of government to implement portions or the entirety of a program required or allowed under any of the rules listed in Item (3) of this Rule to the extent that such an arrangement is otherwise allowed by statute. The governments involved shall submit documentation of any such agreement to the Division. No such agreement shall relieve a unit of government from its responsibilities under these Rules. (8) ADAPTIVE MANAGEMENT. The Division shall evaluate the effectiveness of the Jordan nutrient strategy after at least ten years following the effective date and periodically thereafter as part of the review of the Cape Fear River Basinwide Water Quality Plan. The Division shall base its evaluation on, at a minimum, trend analyses as described in the monitoring section of the B. Everett Jordan Reservoir, North Carolina Nutrient APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 586 Management Strategy and Total Maximum Daily Load, and lake use support assessments. The Division may also develop additional watershed modeling or other source characterization work. Any nutrient response modeling and monitoring on which any recommendation for adjustment to strategy goals may be based shall meet the criteria set forth in G.S. 143-215.1(c5), also known as the Clean Water Responsibility Act, and meet or exceed criteria used by the Division for the monitoring and modeling used to establish the goals in Item (5) of this Rule. Any modification to these rules as a result of such evaluations would require additional rulemaking. (9) LIMITATION. The Jordan nutrient strategy may not fully address significant nutrient sources in the Jordan watershed in that the rules do not directly address atmospheric sources of nitrogen to the watershed from sources located both within and outside of the watershed. As better information becomes available from ongoing research on atmospheric nitrogen loading to the watershed from these sources, and on measures to control this loading, the Commission may undertake separate rule making to require such measures it deems necessary from these sources to support the goals of the Jordan nutrient strategy. (10) ENFORCEMENT. Failure to meet requirements of Rules .0262, .0264, .0265, .0266, .0267, .0268, .0269, .0270, .0271, .0272 and .0273 of this Section may result in imposition of enforcement measures as authorized by G.S. 143-215.6A (civil penalties), G.S. 143-215.6B (criminal penalties), and G.S. 143-215.6C (injunctive relief). History Note: Authority G.S. 143-214.1; 143-214.5; 143- 214.7; 143-215.1; 143-215.3(a)(1); 143-215.6A; 143-215.6A; 143-215.6B; 143 215.6C; 143-215.8B; 143B-282(c); 143B- 282(d); S.L. 2005-190; S.L. 2006-259; Eff. August 11, 2009; Amended Eff. September 1, 2011. 15A NCAC 02B .0267 JORDAN WATER SUPPLY NUTRIENT STRATEGEY: PROTECTION OF EXISTING RIPARIAN BUFFERS (See S.L. 2009-216 and S.L. 2009-484) Protection of the nutrient removal and other water quality benefits provided by riparian buffers throughout the watershed is an important element of the overall Jordan water supply nutrient strategy. The following is the strategy for riparian buffer protection and maintenance in the Jordan watershed, as prefaced in 15A NCAC 02B .0262: (1) PURPOSE. The purposes of this Rule shall be to protect and preserve existing riparian buffers throughout the Jordan watershed as generally described in 15A NCAC 02B .0262, in order to maintain their nutrient removal and stream protection functions. Additionally this Rule will help protect the water supply uses of Jordan Reservoir and of designated water supplies throughout the Jordan watershed. Local governments shall establish programs to meet or exceed the minimum requirements of this Rule. The requirements of this Rule shall supersede all locally implemented buffer requirements stated in 15A NCAC 02B .0214 through .0216 as applied to WS-II, WS-III, and WS-IV waters in the Jordan watershed. Local governments subject to this Rule may choose to implement more stringent requirements, including requiring additional buffer width. (2) DEFINITIONS. For the purpose of this Rule, these terms shall be defined as follows: (a) 'Access Trails' means pedestrian trails constructed of pervious or impervious surfaces and related structures to access a surface water, including boardwalks, steps, rails, and signage. (b) 'Airport Facilities' means all properties, facilities, buildings, structures, and activities that satisfy or otherwise fall within the scope of one or more of the definitions or uses of the words or phrases 'air navigation facility', 'airport', or 'airport protection privileges' under G.S. 63-1; the definition of 'aeronautical facilities' in G.S. 63-79(1); the phrase 'airport facilities' as used in G.S. 159- 48(b)(1); the phrase 'aeronautical facilities' as defined in G.S. 159-81 and G.S. 159-97; and the phrase 'airport facilities and improvements' as used in Article V, Section 13, of the North Carolina Constitution, which shall include, without limitation, any and all of the following: airports, airport maintenance facilities, clear zones, drainage ditches, fields, hangars, landing lighting, airport and airport-related offices, parking facilities, related navigational and signal systems, runways, stormwater outfalls, terminals, terminal shops, and all appurtenant areas used or suitable for airport buildings or other airport facilities, and all appurtenant rights-of-way; restricted landing areas; any structures, mechanisms, APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 587 lights, beacons, marks, communicating systems, or other instrumentalities or devices used or useful as an aid, or constituting an advantage or convenience to the safe taking off, navigation, and landing of aircraft, or the safe and efficient operation or maintenance of an airport or restricted landing area; easements through, or interests in, air space over land or water, interests in airport hazards outside the boundaries of airports or restricted landing areas, and other protection privileges, the acquisition or control of which is necessary to ensure safe approaches to the landing areas of airports and restricted landing areas, and the safe and efficient operation thereof and any combination of any or all of such facilities. Notwithstanding the foregoing, the following shall not be included in the definition of 'airport facilities': (i) Satellite parking facilities; (ii) Retail and commercial development outside of the terminal area, such as rental car facilities; and (iii) Other secondary development, such as hotels, industrial facilities, free-standing offices and other similar buildings, so long as these facilities are not directly associated with the operation of the airport, and are not operated by a unit of government or special governmental entity such as an airport authority, in which case they are included in the definition of 'airport facilities'. (c) 'Forest management plan' means as defined in Chapter 160A-458.5(4). (d) 'Forest plantation' means an area of planted trees that may be conifers (pines) or hardwoods. On a plantation, the intended crop trees are planted rather than naturally regenerated from seed on the site, coppice (sprouting), or seed that is blown or carried into the site. (e) 'Greenway / Hiking Trails' means pedestrian trails constructed of pervious or impervious surfaces and related structures including but not limited to boardwalks, steps, rails, and signage, and that generally run parallel to the shoreline. (f) 'High Value Tree' means a tree that meets or exceeds the following standards: for pine species, 14-inch DBH or greater or 18-inch or greater stump diameter; or for hardwoods and wetland species, 16-inch DBH or greater or 24-inch or greater stump diameter. (g) 'Shoreline stabilization' is the in-place stabilization of an eroding shoreline. Stabilization techniques which include "soft" methods or natural materials (such as root wads, or rock vanes) may be considered as part of a restoration design. However, stabilization techniques that consist primarily of "hard" engineering, such as concrete lined channels, riprap, or gabions, while providing bank stabilization, shall not be considered stream restoration. (h) 'Stream restoration' is defined as the process of converting an unstable, altered or degraded stream corridor, including adjacent riparian zone and flood-prone areas to its natural or referenced, stable conditions considering recent and future watershed conditions. This process also includes restoring the geomorphic dimension, pattern, and profile as well as biological and chemical integrity, including transport of water and sediment produced by the stream's watershed in order to achieve dynamic equilibrium. 'Referenced' or 'referenced reach' means a stable stream that is in dynamic equilibrium with its valley and contributing watershed. A reference reach can be used to develop natural channel design criteria for stream restoration projects. (i) 'Stump diameter' means the diameter of a tree measured at six inches above the ground surface level. (j) 'Temporary road' means a road constructed temporarily for equipment access to build or replace hydraulic conveyance structures such as bridges, culverts, pipes or water dependent structures, or to maintain public traffic during construction. (3) APPLICABILITY. This Rule applies to all landowners and other persons conducting activities in the Jordan watershed, including APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 588 state and federal entities, and to all local governments in the Jordan watershed, as described in 15A NCAC 02B .0262. Local governments shall develop riparian buffer protection programs for approval by the Commission, incorporating the minimum standards set out throughout this Rule and shall apply the requirements of this Rule throughout their jurisdictions within the Jordan watershed except where The Division shall exercise jurisdiction. For the following types of buffer activities in the Jordan watershed, wherever local governments are referenced in this Rule, the Division shall implement applicable requirements to the exclusion of local governments: (a) Activities conducted under the authority of the State. (b) Activities conducted under the authority of the United States. (c) Activities conducted under the authority of multiple jurisdictions. (d) Activities conducted under the authority of local units of government. (e) Forest harvesting activities described in Item (14) of this Rule. (f) Agricultural activities. (g) Activities conducted in a location where there is no local government program implementing NPDES stormwater requirements, Water Supply Watershed requirements, or a voluntary local stormwater or buffer initiative at the time of the activity. (4) BUFFERS PROTECTED. The following minimum criteria shall be used for identifying regulated buffers: (a) This Rule shall apply to activities conducted within, or outside of with impacts upon, 50-foot wide riparian buffers directly adjacent to surface waters in the Jordan watershed (intermittent streams, perennial streams, lakes, reservoirs and ponds), excluding wetlands. (b) 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 15A NCAC 02H .0506. (c) A surface water shall be subject to this Rule if the feature is approximately shown on any of the following references, and shall not be subject if it does not appear on any of these references: (i) The most recent version of the soil survey map prepared by the Natural Resources Conservation Service of the United States Department of Agriculture. (ii) The most recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic maps prepared by the United States Geologic Survey (USGS). (iii) The maps approved by the Commission as more accurate than those identified in Sub-Item (4)(c)(i) and (4)(c)(ii) of this Rule. (d) Where the specific origination point of a stream regulated under this Item is in question, upon request of the Division or another party, the local government shall make an on-site determination. A local government representative who has successfully completed the Division's Surface Water Identification Training Certification course, its successor, or other equivalent training curriculum approved by the Division, shall establish that point using the latest version of the Division publication, Identification Methods for the Origins of Intermittent and Perennial Streams, available at http://h2o.enr.state.nc.us/ncwetlands/ documents/NC_Stream_ID_Manual.p df or from the Division of Water Quality, 401/Wetlands Unit, 1650 Mail Service Center, Raleigh, NC, 27699-1650. A local government 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 Sub-Item shall be referred to the Director in writing. The Director's determination is subject to review as provided in Articles 3 and 4 of G.S. 150B. (e) Riparian buffers protected by this Rule shall be measured pursuant to Item (7) of this Rule. (f) Parties subject to this rule shall abide by all State rules and laws regarding waters of the state including but not limited to 15A NCAC 02H .0500, 15A NCAC 02H .1300, and Sections 401 and 404 of the Federal Water Pollution Control Act. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 589 (g) A riparian buffer may be exempt from this Rule as described in Item (5) or (6) of this Rule. (h) No new clearing, grading, or development shall take place nor shall any new building permits be issued in violation of this Rule. (5) 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 appropriate local government. Upon request, a local government representative who has successfully completed the Division's Surface Water Identification Training Certification course, its successor, or other equivalent training curriculum approved by the Division, shall make an on-site determination. Local governments 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 in writing. A determination of the Director as to the accuracy or application of the maps is subject to review as provided in Articles 3 and 4 of G.S. 150B. Surface waters that appear on the maps shall not be subject to this Rule if a site evaluation reveals any of the following cases: (a) Man-made ponds and lakes that are not part of a natural drainage way that is classified in accordance with 15A NCAC 02B .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. (b) Ephemeral streams. (c) The absence on the ground of a corresponding intermittent or perennial stream, lake, reservoir, or pond. (d) Ditches or other man-made water conveyances, other than modified natural streams. (6) EXEMPTION WHEN EXISTING USES ARE PRESENT AND ONGOING. This Rule shall not apply to uses that are existing and ongoing; however, this Rule 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: (a) It was present within the riparian buffer as of the effective date of a local program enforcing this Rule and has continued to exist since that time. For any Division-administered activities listed in Item (3) of this Rule, a use shall be considered existing and ongoing if it was present within the riparian buffer as of the effective date of this 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 Rule. 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 the effective date of a local program enforcing this Rule, or for Division-administered activities listed in Item (3) of this Rule as of the effective date of this Rule, 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. (b) Projects or proposed development that are determined by the local government to meet at least one of the following criteria: (i) Project requires a 401 Certification/404 Permit and these were issued prior to the effective date of the local program enforcing this Rule, and prior to the effective date of this Rule for Division-administered activities listed in Item (3) of this Rule; APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 590 (ii) 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 the local program implementing this Rule, and prior to the effective date of this Rule for Division-administered activities listed in Item (3) of this Rule; (iii) 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 the local program enforcing this Rule, and prior to the effective date of this Rule for state and federal entities; or (iv) 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 the local government prior to the effective date of the local program enforcing this Rule, or the written approval of the Division prior to the effective date of this Rule for state and federal entities. (7) ZONES OF THE RIPARIAN BUFFER. The protected riparian buffer shall have two zones as follows: (a) Zone One shall consist of a vegetated area that is undisturbed except for uses provided for in Item (9) of this Rule. The location of Zone One shall be as follows: (i) For intermittent and perennial streams, Zone One shall begin at the top of the bank and extend landward a distance of 30 feet on all sides of the surface water, measured horizontally on a line perpendicular to a vertical line marking the top of the bank. (ii) For ponds, lakes and reservoirs located within a natural drainage way, Zone One shall begin at the normal water level and extend landward a distance of 30 feet, measured horizontally on a line perpendicular to a vertical line marking the normal water level. (b) Zone Two shall consist of a stable, vegetated area that is undisturbed except for uses provided for in Item (9) of this Rule. 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. (8) DIFFUSE FLOW REQUIREMENT. 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: (a) Concentrated runoff from new ditches or manmade conveyances shall be converted to diffuse flow at non-erosive velocities before the runoff enters Zone Two of the riparian buffer; (b) Periodic corrective action to restore diffuse flow shall be taken as necessary and shall be designed to APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 591 impede the formation of erosion gullies; and (c) As set out in Items (7) and (9) of this Rule, no new stormwater conveyances are allowed through the buffers except for those specified in Item (9) of this Rule addressing stormwater management ponds, drainage ditches, roadside ditches, and stormwater conveyances. (9) 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 Item (12) of this Rule. The requirements for each category are given in Item (10) of this Rule. Use Exempt* Allowable * 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 defined in this Rule 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 defined in this Rule or impervious surface is added to the riparian buffer X X Airport facilities: • Airport facilities that impact equal to or less than 150 linear feet or one-third of an acre of riparian buffer • Airport facilities that impact greater than 150 linear feet or one-third of an acre of riparian buffer • Activities necessary to comply with FAA requirements (e.g. radar uses or landing strips)1 X X X Archaeological activities X Bridges X Canoe Access provided that installation and use does not result in removal of trees as defined in this Rule and no impervious surface is added to the buffer. X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 592 Use Exempt* Allowable * Allowable with Mitigation * Dam maintenance activities: • Dam maintenance activities that do not cause additional buffer disturbance beyond the footprint of the existing dam or those covered under the U.S. 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 covered under the U.S. Army Corps of Engineers Nationwide Permit No.3 X X 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 the need to alter the conveyance and are managed to minimize the sediment, nutrients and other pollution that convey to waterbodies. • Realignment of existing roadside drainage ditches retaining the design dimensions, provided that no additional travel lanes are added and the minimum required roadway typical section is used based on traffic and safety considerations. • New or altered drainage ditches, roadside ditches and stormwater outfalls provided that a stormwater management facility is installed to control nutrients 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 management facility due to topography constraints provided that other practicable BMPs are employed. X X X X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 593 Use Exempt* Allowable * Allowable with Mitigation * Drainage of a pond in a natural drainage way provided that a new riparian buffer that meets the requirements of Items (7) and (8) of this Rule is established adjacent to the new channel X Driveway crossings of streams and other surface waters subject to this Rule: • Driveway crossings on single family residential lots that disturb equal to or less than 25 linear feet or 2,500 square feet of riparian buffer • Driveway crossings on single family residential lots that disturb 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 linear feet or one-third of an acre of riparian buffer • In a subdivision that cumulatively disturb greater than 150 linear feet or one-third of an acre of riparian buffer X X X X Driveway impacts other than crossing of a stream or other surface waters subject to this Rule X Fences: • Fences provided that disturbance is minimized and installation does not result in removal of trees as defined in this Rule • Fences provided that disturbance is minimized and installation results in removal of trees as defined in this Rule X X Forest harvesting - see Item (14) of this Rule 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 disturbed areas are stabilized until they are revegetated. X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 594 Use Exempt* Allowable * Allowable with Mitigation * Greenway/hiking trails designed, constructed and maintained to maximize nutrient removal and erosion protection, minimize adverse effects on aquatic life and habitat, and protect water quality to the maximum extent practical. X 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 that needed for equipment access and operation. The travel way shall be located to maximize stream shading. X Mining activities: • Mining activities that are covered by the Mining Act provided that new riparian buffers that meet the requirements of Items (7) and (8) of this Rule are established adjacent to the relocated channels • Mining activities that are not covered by the Mining Act OR where new riparian buffers that meet the requirements or Items (7) and (8) of this Rule are not established adjacent to the relocated channels • Wastewater or mining dewatering wells with approved NPDES permit X X X Playground equipment: • Playground equipment on single family lots provided that installation and use does not result in removal of vegetation • Playground equipment installed on lands other than single-family lots or that requires removal of vegetation X X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 595 Use Exempt* Allowable * Allowable with Mitigation * Ponds created by impounding streams and not used as stormwater BMPs: • New ponds provided that a riparian buffer that meets the requirements of Items (7) and (8) of this Rule is established adjacent to the pond • New ponds where a riparian buffer that meets the requirements of Items (7) and (8) of this Rule is NOT established adjacent to the pond X X Protection of existing structures, facilities and stream banks when this requires additional disturbance of the riparian buffer or the stream channel X Railroad impacts other than crossings of streams and other surface waters subject to this Rule. X Railroad crossings of streams and other surface waters subject to this Rule: • Railroad crossings that impact equal to or less than 40 linear feet of riparian buffer • Railroad crossings that impact greater than 40 linear feet but equal to 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-third of an acre of riparian buffer X X X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 596 Use Exempt* Allowable * Allowable with Mitigation * Recreational and accessory structures in Zone Two: • Sheds and gazebos in Zone Two, provided they are not prohibited under local water supply ordinance: o Total footprint less than or equal to 150 square feet per lot. o Total footprint greater than 150 square feet per lot. • Wooden slatted decks and associated steps, provided the use meets the requirements of Items (7) and (8) of this Rule: o Deck at least eight feet in height and no vegetation removed from Zone One. o Deck less than eight feet in height or vegetation removed from Zone One. X X X X Removal of previous fill or debris provided that diffuse flow is maintained and vegetation is restored X Road impacts other than crossings of streams and other surface waters subject to this Rule X Road crossings of streams and other surface waters subject to this Rule: • Road crossings that impact equal to or less than 40 linear feet of riparian buffer • Road crossings that impact greater than 40 linear feet but equal to or 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 an acre of riparian buffer X X X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 597 Use Exempt* Allowable * Allowable with Mitigation * 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 • Greater than 2,500 square feet of buffer impact X X Stormwater BMPs: • Wet detention, bioretention, and constructed wetlands in Zone Two if diffuse flow of discharge is provided into Zone One • Wet detention, bioretention, and constructed wetlands in Zone One X 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 Item (8) of 15A NCAC 02B .0268: • Less than or equal to 2,500 square feet of buffer disturbance • Greater than 2,500 square feet of buffer disturbance • Associated with culvert installation or bridge construction or replacement. X X X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 598 Use Exempt* Allowable * Allowable with Mitigation * 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 Item (8) of Rule 15A NCAC 02B .0268: • In Zone Two provided ground cover is established within timeframes required by the Sedimentation and Erosion Control Act, vegetation in Zone One is not compromised, and runoff is released as diffuse flow in accordance with Item (8) of this Rule. • In Zones one and two to control impacts associated with uses approved by the local government or that have received a variance, 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 of the Federal Water Pollution Control Act. • In-stream temporary erosion and sediment control measures for work within a stream channel. X X X X Utility, electric, aerial, perpendicular crossings of streams and other surface waters subject to this Rule2,3,5: • Disturb equal to or less than 150 linear feet of riparian buffer • Disturb greater than 150 linear feet of riparian buffer X X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 599 Use Exempt* Allowable * Allowable with Mitigation * Utility, electric, aerial, other than perpendicular crossings5: • Impacts in Zone Two • Impacts in Zone One2,3 X X Utility, electric, underground, perpendicular crossings3,4,5: • Disturb less than or equal to 40 linear feet of riparian buffer • Disturb greater than 40 linear feet of riparian buffer X X Utility, electric, underground, other than perpendicular crossings4: • Impacts in Zone Two • Impacts in Zone One1 X X Utility, non-electric, perpendicular crossings of streams and other surface waters subject to this Rule3,5: • Disturb equal to or less than 40 linear feet of riparian buffer with a 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 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 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 in width • Disturb greater than 150 linear feet of riparian buffer X X X X X * To qualify for the designation indicated in the column header, an activity must adhere to the limitations defined for it in a given listing as well as the requirements established in Item (10) of this Rule. APPROVED RULES 26:07 NORTH CAROLINA REGISTER OCTOBER 3, 2011 600 Use Exempt* Allowable * Allowable with Mitigation * Utility, non-electric, other than perpendicular crossings4,5: • Impacts in Zone Two • Impacts in Zone One1 X X Vegetation management: • Emergency fire control measures provided that topography is restored • Mowing or harvesting of plant products in Zone Two • Planting vegetation to enhance the riparian buffer • Pruning forest vegetation provided that the health and function of the 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 endangering stability of the streambank. • Removal of individual trees which are dead, diseased or damaged. • Removal of poison ivy • Removal of invasive exotic vegetation as defined in: Smith, Cherri L. 1998. Exotic Plant Guidelines. Dept. of Environment and Natural Resources. Division of Parks and Recrea |
OCLC number | 13686205 |