Current through Register Vol. 39, No. 6, September 16, 2024
(a) If approved by
the Council of State, donations or dedications of interests in real property
for the purposes of restoration, enhancement, or preservation may be accepted
by the Secretary or the Secretary's designee if the property is consistent with
the Basinwide Restoration Plan for the appropriate river basin subject to the
factors listed in Paragraphs (b) and (c) of this Rule, or if the property
interest is being donated to satisfy a condition of a certification issued by
the Department pursuant to 33 U.S.C. Section 1341.
(b) The factors that shall be considered by
the Secretary or the Secretary's designee in determining whether to accept
donations or dedications of interests in real property for the purposes of
wetland or riparian area restoration or enhancement include the following:
(1) whether the property is:
(A) adjacent to, or will become a part of, a
Department compensatory mitigation project;
(B) adjacent to or includes a sensitive
natural resource, as identified in the Basinwide Restoration Plan;
(C) adjacent to or includes property on which
rare aquatic species, as identified by the North Carolina Natural Heritage
Program in the "Natural Heritage Program List of Rare Animal Species of North
Carolina" or the "Natural Heritage Program List of the Rare Plant Species of
North Carolina," is known to have been found; or
(D) is adjacent to or includes a Significant
Natural Heritage Area as identified by the North Carolina Natural Heritage
Program at
https://ncnhde.natureserve.org.
These documents are hereby incorporated by reference, including subsequent
amendments and editions. Copies of these documents may be obtained from the
Department of Natural and Cultural Resources Division of Land and Water
Stewardship at
http://www.ncnhp.org/references/
publications/rare-animal-list and
http://www.ncnhp.org/references/publications/rare-plant-list;
(2) whether the size of the
property is at least five contiguous acres;
(3) the likelihood that the site can be
successfully restored or enhanced, based on hydrology, soils, and
vegetation;
(4) the intensity of
activities required to successfully restore or enhance the site. Sites
requiring extreme measures for successful restoration, such as removal of
structures or infrastructure, shall not be accepted;
(5) the absence of cultural and historic
resources;
(6) the prior, current,
and future land use of the donated property and adjacent properties;
(7) the existence of federally or
state-listed sensitive, endangered, or threatened species, or their critical
habitat;
(8) the potential for
enhancement of natural resource values of public lands;
(9) the absence of hazardous substance and
solid waste;
(10) whether the
property is adjacent to non-supporting, partially supporting, or
support-threatened waters as designated by the Division of Water Resources
pursuant to 40 CFR
131.10(a) through (g). This
material is available from the Department of Environmental Quality, Division of
Water Resources, at
https://deq.nc.gov/about/divisions/water-resources/planning/classification-standards/surface-water-standards;
(11) the absence of encumbrances and
conditions on the transfer of the property interests; and
(12) whether provisions have been made by the
landowner for the long-term maintenance and management of the
property.
(c) The
factors that shall be considered by the Secretary or the Secretary's designee
in determining whether to accept donations or dedications of interests in real
property for the purpose of preservation of existing wetland and riparian areas
include the following:
(1) whether the
property has clearly identifiable unique wetland or riparian area functions or
values, such as federally or state-listed sensitive, endangered, or threatened
species, or their critical habitat;
(2) the potential for enhancement of natural
resource values of public lands;
(3) whether the property is:
(A) adjacent to, or will become a part of, a
Department-approved restoration or preservation project;
(B) adjacent to or includes a sensitive
natural resource, as identified in the Basinwide Restoration Plan;
(C) adjacent to or includes property on which
rare aquatic species, as identified by the North Carolina Natural Heritage
Program in the "Natural Heritage Program List of Rare Animal Species of North
Carolina" or the "Natural Heritage Program List of the Rare Plant Species of
North Carolina," is known to have been found; or
(D) is adjacent to or includes a Significant
Natural Heritage Area as identified by the North Carolina Natural Heritage
Program at
https://ncnhde.natureserve.org/.
These documents are hereby incorporated by reference, including subsequent
amendments and editions. Copies of these documents may be obtained from the
Department of Natural and Cultural Resources Division of Land and Water
Stewardship at 1651 Mail Service Center Raleigh, NC 27603 or at
http://www.ncnhp.org/references/publications/rare-animal-list and
http://www.ncnhp.org/
references/publications/rare-plant-list;
(4) whether the size of the property is at
least five contiguous acres;
(5)
whether the property is under imminent threat of degradation;
(6) the prior, current, and future land use
of the donated property and adjacent properties;
(7) the absence of extensive structures and
infrastructure;
(8) the absence of
hazardous substance and solid waste;
(9) the absence of cultural and historic
resources;
(10) whether the
property is adjacent to non-supporting, partially supporting, or
support-threatened waters as designated by the Division of Water Resources
pursuant to 40 CFR
131.10(a) through
(g);
(11) the absence of encumbrances and
conditions on the transfer of the property interests; and
(12) whether provisions have been made by the
landowner for the long-term maintenance and management of the
property.
(d) At the
expense of the applicant or donor, the following information shall be submitted
with any proposal for donations or dedications of interest in real property:
(1) documentation that the property meets the
criteria in Paragraph (b) and (c) of this Rule;
(2) US Geologic Survey 1:24,000 (7.5 minute)
scale topographic map, county tax map, USDA Natural Resource Conservation
Service County Soil Survey Map, and county road map showing the location of the
property to be donated along with information on existing site conditions,
vegetation types, and the presence of existing structures and
easements;
(3) a current property
survey performed in accordance with the requirements of the North Carolina
Department of Administration, State Property Office as identified by the North
Carolina Board of Examiners for Engineers and Surveyors in "Standards of
Practice for Land Surveying in North Carolina," incorporated by reference
including subsequent amendments and editions. Copies may be obtained at no
charge from the North Carolina State Board of Examiners for Engineers and
Surveyors,
www.ncbels.org;
(4) a current appraisal of the value of the
property performed in accordance with the requirements of the North Carolina
Department of Administration, State Property Office as identified by the
Appraisal Board in the "Uniform Standards of Professional Appraisal Practice,"
incorporated by reference including subsequent amendments and editions. Copies
may be obtained at no cost from the Appraisal Foundation,
http://www.appraisalfoundation.org;
(5) a title certificate; and
(6) a Phase 1 Environmental Site Assessment
documenting that the property does not contain structures that present health
or safety problems to the general public. If wells, septic systems, water
treatment systems, or water or sewer connections exist, they shall be filled,
remediated, or closed at owner's expense and in accordance with State and local
health and safety regulations.
(e) In addition to the factors outlined in
Paragraphs (b) through (d) of this Rule, the Secretary or the Secretary's
designee shall consider the following factors when determining whether to
accept a donation of interest in real property to satisfy compensatory
mitigation requirements:
(1) whether
restoration of the property will offset the adverse impacts of the permitted
project; and
(2) whether the
adverse impacts of the permitted project are within the same 8-digit cataloging
unit as the property proposed for donation.
(f) Donations of interests in real property
for the purpose of satisfying compensatory mitigation requirements shall only
be considered for acceptance if the proposed donation offsets an impact for
which an application has already been made to the United States Army Corps of
Engineers under 33 U.S.C.
Section 1344 or to the Department under
33 U.S.C. Section
1341.
(g) For the purposes of satisfying
compensatory mitigation requirements through the donation of interests in real
property requiring restoration, enhancement, or preservation, the size of
property to be donated shall equal or exceed the acreage of wetland required to
be mitigated under the approved permit, and every parcel shall be a minimum of
five contiguous acres in size.
(h)
Donation of real property interests to satisfy compensatory mitigation
requirements shall be accepted only if such property meets the requirements of
Paragraphs (a) through (i) of this Rule and
15A NCAC
02H .0506(h) and if it
satisfies the compensatory mitigation requirements of the approved
permit.
(i) The donation of
conservation easements to satisfy compensatory mitigation requirements shall be
accepted only if:
(1) the conservation
easement is granted in perpetuity and the property to be encumbered meets the
requirements of Paragraphs (a) through (j) of this Rule; or
(2) if the property interest is being donated
to satisfy a condition of a certification issued by the Department pursuant to
33 U.S.C. Section
1341.
(j) Donation of interests in real property
may contribute to or fulfill compensatory mitigation requirements that may be
satisfied through payment of a fee according to the Rate Schedule in Rule
.0402(c) of this Section. The value of the property interest shall be
determined by an appraisal performed in accordance with Subparagraph (d)(4) of
this Rule. The required fee as calculated in accordance with Rule .0402(c) of
this Section shall be satisfied if the appraised value of the donated property
interest is equal to or greater than the fee. If the appraised value of the
donated property interest is less than the designated fee requirement as
calculated in accordance with Rule .0402(c) of this Section, the applicant
shall pay the difference between the calculated fee and the appraised value of
the property interest.
Authority
G.S.
143-214.11;
143-214.12;
143-215.3;
Eff.
August 1, 1998;
Readopted Eff. March 1,
2018.
