Environmental Matters

N.C. General Assembly Is Actively Revisiting Riparian Buffer Rules

What are Riparian Buffers?
Riparian buffers are vegetated areas next to water resources that protect water quality, bank stabilization from erosion, and aquatic and wildlife habitat.  The USDA Forest Service defines a riparian buffer as follows: “The aquatic ecosystem and the portions of the adjacent territorial ecosystem that directly affect or are affected by the aquatic environment.  This includes streams, rivers, lakes, and bays and their adjacent side channels, floodplain, and wetlands.  In specific cases, the riparian buffer may also include a portion of the hillslope that directly serves as streamside habitats for wildlife.”

Riparian buffer rules are part of the fabric of regulatory efforts to protect waterways from surrounding land uses, which would in turn reduce nutrients — nitrogen, phosphorous, and other pollutants by vegetated filtration, prevent bankside erosion, and shade waters from heat.  Waterside vegetated buffer filters nonpoint source pollutants from incoming runoff and provides habitat for a balanced, integrated, and adaptive community of riparian and aquatic organisms.

What are Riparian Buffers in North Carolina?
In North Carolina, in the late 1990s early 2000s, riparian buffer rules were established creating fifty (50) foot wide buffer along waterways in the Neuse River Basin (15A NCAC 02B.0233), the Jordan Lake Watershed (15A NCAC 02B.0267), the Tar-Pamlico River Basin (15A NCAC 02B.0259), the Goose Creek Watershed (15A NCAC 02B.0607), the Catawba River Basin (15A NCAC 02B.0243), and Randleman Lake (15A NCAC 02B.0250). Buffers include all areas within fifty (50) feet of “intermittent streams, perennial streams, lakes, ponds, estuaries and modified natural streams that are depicted on most recent published version of the soil survey map prepared by the Natural Resources Conservation Service or the 1:24,000 scale quadrangle topographic map prepared by the U.S. Geologic Survey”.  As to that fifty (50) foot buffer, it is generally applied as follows in these basins and watershed: Zone One, the inner thirty (30) feet), is to remain undisturbed, with the exception of certain activities, while Zone Two, the outer twenty (20) feet, must remain vegetated with the exception of certain activities.  In practical terms, this means that the inside thirty (30) feet to these basins and watersheds must remain undisturbed while the outer twenty (20) feet may be graded but must be replanted.

The fifty (50) foot buffer is a minimum requirement; some basins and watersheds, like the Goose Creek Watershed, have stronger requirements.   Moreover, some local governments are delegated to implement the State riparian buffer protection programs.

Most buffer rules include a table of uses, which specify certain activities that are exempt, allowable, allowable with mitigation, or prohibited.  Exempt activities require no prior approval.

Why are we talking about Riparian Buffers in North Carolina?
House Bill 44, which is currently in the General Assembly and passed the Senate, would eliminate the State ban on removing vegetation to allow development on land within fifty (50) feet of the above-identified water bodies on most private property in the Tar-Pamlico River Basin and Neuse River Basin.

In section 13 of House Bill 44, the Senate proposes to shrink the riparian buffer required in the Neuse River Buffer Rules from a minimum total of fifty (50) feet to a minimum total of thirty (30) feet and to allow disturbance within that inner thirty (30) feet; in other words, Zone One is eliminated and Zone Two becomes the “inner zone”.

The House and the Senate do not agree on the method for measuring buffers on coastal wetlands.  The Senate version of House Bill 44 (which passed the Senate, but not the House) requires all coastal wetlands to be considered part of the riparian buffer, which would probably allow clear-cutting right up to the water’s edge of a flooded coastal wetland.  The House version (which passed the House, went to the Senate, and saw Senate changes that the House did not accept), on the other hand, is more conservative.  This disagreement means that a conference committee will decide whether to send House Bill 44 to the Governor.

We think our wise friend at the Smith Environment Blog summarizes the current status best:  “Legislative conferees can sometimes color outside the lines, but as things now stand the choice seems to be between: (1) maintaining existing 50-foot riparian buffer requirements, but exempting a large number of properties from the rules entirely (the House proposal in House Bill 760), or (2) reducing the riparian buffer from 50 feet to 30 feet on nutrient sensitive waters and allowing grading, clearing and revegetation in the entire buffer.”

We will see how this ends.

“My underwater driveway flooded again.”

Mike Thelen practices in Womble Carlyle’s Real Estate Practice Group out of the Firm’s Raleigh office. He regularly represents a wide variety of clients, from local governments to businesses, in land use and real estate development litigations and transactions in state and federal venues throughout North Carolina.

Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw here and on Instagram at NCLandUseLaw here.

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