North Carolina register, July 1998 - present

              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
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EXECUTIVE ORDERS
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EXECUTIVE ORDERS
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EXECUTIVE ORDERS
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EXECUTIVE ORDERS
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EXECUTIVE ORDERS
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EXECUTIVE ORDERS
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EXECUTIVE ORDERS
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EXECUTIVE ORDERS
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EXECUTIVE ORDERS
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EXECUTIVE ORDERS
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EXECUTIVE ORDERS
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EXECUTIVE ORDERS
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IN ADDITION
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IN ADDITION
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IN ADDITION
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IN ADDITION
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PROPOSED RULES
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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
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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
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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.
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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.
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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
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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.
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(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.
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(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
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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:
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(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)
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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,
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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
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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
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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,
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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
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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.
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(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;
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(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
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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.
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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.
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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