Subject 391-3-7 EROSION AND SEDIMENTATION CONTROL
The following definitions shall apply in the interpretation
and enforcement of these rules and regulations unless otherwise specifically
stated.
| (a) |
"Best Management
Practices" means a collection of structural measures and vegetative practices
which, when properly designed, installed and maintained, will provide effective
erosion and sedimentation control and are designed in accordance with the
design specifications contained in the "Manual for Erosion and Sediment Control
in Georgia." Best Management Practices also include, but are not limited to,
design specifications from the most recent publications of the Georgia
Stormwater Management Manual and Coastal Stormwater Supplement to the Georgia
Stormwater Management Manual. |
| (b) |
"Certification" means an action by the Division that states in writing that a
local issuing authority has met the criteria established in these rules and
regulations. |
| (c) |
"Certified
Personnel" means any person who meets or exceeds the education and training
requirements of Code Section
12-7-19. |
| (d) |
"Coastal Marshlands" shall have the same
meaning as in Code Section
12-5-282. |
| (e) |
"Complaint Investigation Process" means a
process followed by a local issuing authority or the Division when dealing with
inquiries, complaints or concerns about land disturbing activities. |
| (f) |
"Decertification" means an action by the
Division that states in writing that a local issuing authority has failed to
meet the criteria established in these rules and regulations. |
| (g) |
"Department" means the Department of
Natural Resources of the State of Georgia. |
| (h) |
"Director" means the Director of the
Environmental Protection Division. |
| (i) |
"District" means the appropriate local
Soil and Water Conservation District. |
| (j) |
"Division" means the Environmental
Protection Division of the Department of Natural Resources. |
| (k) |
"Erosion" means the process by which land
surface is worn away by the action of wind, water, ice, or gravity. |
| (l) |
"Erosion, Sedimentation and Pollution
Control Plan" or "Plan" means a plan for the control of soil erosion and
sediment resulting from a land disturbing activity. |
| (m) |
"Infrastructure Project" means
construction activities that are not part of a common development that include
the construction, installation and maintenance of roadway and railway projects
and conduits, pipes, pipelines, substations, cables, wires, trenches, vaults,
manholes, and similar or related structures or devices for the conveyance of
natural gas (or other types of gas), liquid petroleum products, electricity,
telecommunications (telephone, data television, etc.), water or
sewage. |
| (n) |
"Land Disturbing
Activity" means any activity which may result in soil erosion and the movement
of sediments into State waters or onto lands within the State, including but
not limited to clearing, dredging, grading, excavating, transporting, and
filling of land, but not including those practices to the extent described in
O.C.G.A.
12-7-17. |
| (o) |
"Local Issuing Authority" means the
governing authority of any county, municipality, water authority, or water and
sewer authority that is certified pursuant to these rules and regulations and
pursuant to the requirements of O.C.G.A.
12-7-8(a). |
| (p) |
"Maintenance" means actions necessary or
appropriate for retaining or restoring a currently serviceable improvement to
the specified operable condition to achieve its maximum useful life.
Maintenance includes emergency reconstruction of recently damaged parts of a
currently serviceable structure so long as it occurs within a reasonable period
of time after damage occurs. Maintenance does not include any modification that
changes the character, scope or size of the original design. |
| (q) |
"Major Buffer Impact" means any impact
that does not meet the definition of "Minor Buffer Impact." |
| (r) |
"Minor Buffer Impact" means an impact
that upon completion yields no additional above ground, man-made materials or
structures within the buffer, maintains the original grade, and results in less
than 5,000 square feet of buffer impacts per stream crossing and/or less than
5,000 square feet of buffer impacts per individual area of encroachment for
each project. |
| (s) |
"Permit" means
the authorization necessary to conduct a land disturbing activity under the
provisions of these rules and regulations. |
| (t) |
"Person" means any individual,
partnership, firm, association, joint venture, public or private corporation,
trust, estate, commission, board, public or private institution, utility,
cooperative, State agency, municipality or other political subdivision or the
State, any interstate body or any other legal entity. |
| (u) |
"Project" means the entire area of the
proposed development site, regardless of the size of the area to be
disturbed. |
| (v) |
"Sediment" means
solid material, both organic and inorganic, that is in suspension, is being
transported, or has been moved from its site of origin by wind, water, ice, or
gravity as a product of erosion. |
| (w) |
"Sedimentation" means the action or
process of forming or depositing sediment. |
| (x) |
"Serviceable" means usable in its current
state or with minor maintenance but not so degraded as to essentially require
reconstruction. |
| (y) |
"Soil and Water
Conservation District Approved Plan" means an erosion, sedimentation and
pollution control plan approved in writing by the Soil and Water Conservation
District in which the proposed land disturbing activity will take
place. |
| (z) |
"Stabilization" means
the process of establishing an enduring soil cover of vegetation and/or mulch
or other ground cover and/or installing temporary or permanent structures for
the purpose of reducing to a minimum the erosion process and the resultant
transport of sediment by wind, water, ice or gravity. |
| (aa) |
"State Waters" means any and all rivers,
streams, creeks, branches, lakes, reservoirs, ponds, drainage systems, springs,
wells, and other bodies of surface or subsurface water, natural and artificial,
lying within or forming a part of the boundaries of the State which are not
entirely confined and retained completely upon the property of a single
individual, partnership, or corporation, except as may be defined in O.C.G.A.
12-7-17(7). |
| (bb) |
"Stream Bank" means the confining cut of
a stream channel and is usually identified as the point where the normal stream
flow has wrested the vegetation. For nontrout waters, the normal stream flow is
any stream flow that consists solely of base flow or consists of both base flow
and direct runoff during any period of the year. Base flow results from
groundwater that enters the stream channel through the soil. This includes
spring flows into streams. Direct runoff is the water entering stream channels
promptly after rainfalls or snow melts. |
| (cc) |
"Trout Streams" means all streams or
portions of streams within the watershed as designated by the Division under
the provisions of the Georgia Water Quality Control Act, O.C.G.A.
12-5-20 et
seq. Streams designated as primary trout waters are defined as water supporting
a self-sustaining population of rainbow, brown or brook trout. Streams
designated as secondary trout waters are those in which there is no evidence of
natural trout reproduction, but are capable of supporting trout throughout the
year. First order trout waters are streams into which no other streams flow
except springs. |
| (dd) |
"Water
authority" or "water and sewer authority" means a "local government authority",
as that term is defined in O.C.G.A. § 36-80-16,
that has been properly formed in accordance with applicable Georgia law and
that provides water services or water and sewer services to the
public. |
| (ee) |
"Watercourse" means
any natural or artificial waterway, stream, river, creek, channel, ditch,
canal, conduit, culvert, drain, gully, ravine, or wash in which water flows
either continuously or intermittently, having a definite channel, bed and bank,
and includes any area adjacent thereto which is subject to inundation by reason
of overflow or floodwater. |
| (ff) |
"Water Quality" means the chemical, physical, and biological characteristics of
the State's water resources. |
| (1) |
Buffers on state waters are valuable in
protecting and conserving land and water resources; therefore, buffers should
be protected. The buffer variance process will apply to all projects legally
eligible for variances and to all state waters having vegetation wrested from
the channel by normal stream flow, provided that adequate erosion control
measures are incorporated in the project plans and specifications and are
implemented. Rule 391-3-7-.05 does not apply to coastal marshlands. The
following activities do not require application to or approval from the
Division:
| (a) |
stream crossings for water lines
or stream crossing for sewer lines that occur at an angle, as measured from the
point of crossing, within 25 degrees of perpendicular to the stream and cause a
width of disturbance of not more than 50 feet within the buffer; or |
| (b) |
where drainage structures must be
constructed within the twenty-five (25) foot buffer area of any state water not
classified as a trout stream; or |
| (c) |
where roadway drainage structures must be
constructed within the twenty-five (25) foot buffer area of any state waters or
the fifty (50) foot buffer of any trout stream; or |
| (d) |
construction of bulkheads or sea walls on
Lake Oconee and Lake Sinclair where required to prevent erosion at the
shoreline; or |
| (e) |
construction of
public water system reservoirs. |
|
| (2) |
Variance applications will be reviewed by
the Director only where the applicant provides reasonable evidence that impacts
to the buffer have been avoided or minimized to the fullest extent practicable
and only in the following cases:
| (a) |
The
project involves the construction or repair of an existing infrastructure
project or a structure that, by its nature, must be located within the buffer.
Such structures include, but are not limited to, dams, public water supply
intake structures, detention/retention ponds, waste water discharges, docks
including access ways, boat launches including access ways, and stabilization
of areas of public access to water; or |
| (b) |
The project will result in the
restoration or enhancement to improve water quality and/or aquatic habitat
quality; or |
| (c) |
Buffer intrusion is
necessary to provide reasonable access to a property or properties;
or |
| (d) |
The intrusion is for water
and sewer lines that cannot reasonably be placed outside the buffer, and stream
crossings and vegetative disturbance are minimized; or |
| (e) |
Crossing for utility lines, including but
not limited to gas, liquid, power, telephone, and other pipelines, provided
that the number of crossings and the amount of vegetative disturbance are
minimized; or |
| (f) |
Recreational foot
trails and viewing areas, providing that impacts to the buffer are minimal;
or |
| (g) |
The project involves
construction of one (1) single family home for residential use by the owner of
the subject property and, at the time of adoption of this rule, there is no
opportunity to develop the home under any reasonable design configuration
unless a buffer variance is granted. Variances will be considered for such
single family homes only if construction is initiated or local government
approval is obtained prior to January 10, 2005; or |
| (h) |
For non-trout waters, the proposed land
disturbing activity within the buffer will require a permit from the United
States Army Corps of Engineers under Section 404 of the federal Water Pollution
Control Act Amendment of 1972,
33 U.S.C. Section
1344, and the Corps of Engineers has approved
a mitigation plan to be implemented as a condition of such a permit;
or |
| (i) |
For non-trout waters, a plan
is provided for buffer intrusion that shows that, even with the proposed land
disturbing activity within the buffer, the completed project will result in
maintained or improved water quality downstream of the project; or |
| (j) |
For non-trout waters, the project with a
proposed land disturbing activity within the buffer is located in, or upstream
and within ten linear miles of, a stream segment listed as impaired under
Section 303(d) of the federal Water Pollution Control Act Amendment of 1972,
33 U.S.C. Section
1313(d) and a plan is
provided that shows that the completed project will result in maintained or
improved water quality in such listed stream segment and that the project has
no adverse impact relative to the pollutants of concern in such stream segment;
or |
| (k) |
The proposed land disturbing
activity within the buffer is not eligible for a permit from the United States
Army Corps of Engineers under Section 404 of the federal Water Pollution
Control Act Amendment of 1972,
33 U.S.C. Section
1344, but includes required mitigation in
accordance with current EPD "Stream Buffer Variance Mitigation Guidance"
document, and involves:
| 1. |
piping, filling, or
re-routing of non-trout waters that are not jurisdictional Waters of the U.S.;
or |
| 2. |
stream buffer impacts due to
new infrastructure projects adjacent to state waters (jurisdictional and
non-jurisdictional Waters of the U.S.). This criterion shall not apply to
maintenance and/or modification to existing infrastructure, which are covered
under 391-3-7-.05(2)(a). |
|
|
| (3) |
If the buffer impact will be minor, the
buffer variance request shall include the following information at a minimum:
| (a) |
Site map that includes locations of all
state waters, wetlands, floodplain boundaries and other natural features, as
determined by field survey. |
| (b) |
Description of the shape, size, topography, slope, soils, vegetation and other
physical characteristics of the property. |
| (c) |
Dated and numbered detailed site plan
that shows the locations of all structures, impervious surfaces, and the
boundaries of the area of soil disturbance, both inside and outside of the
buffer. The exact area of the buffer to be impacted shall be accurately and
clearly indicated. |
| (d) |
Description
of the project, with details of the buffer disturbance, including estimated
length of time for the disturbance and justification for why the disturbance is
necessary. |
| (e) |
Calculation of the
total area and length of the buffer disturbance. |
| (f) |
Letter from the issuing authority (if
other than the Division and as applicable) stating that the issuing authority
has visited the site and determined the presence of state waters that require a
buffer and that a stream buffer variance is required as per the local erosion
and sedimentation control ordinance. |
| (g) |
Erosion, sedimentation and pollution
control plan. |
| (h) |
Re-vegetation
plan as described in the most recent publication of the Division's guidance
book, "Streambank and Shoreline Stabilization" and/or a plan for permanent
vegetation as per the "Manual for Erosion and Sedimentation Control in
Georgia." |
| (i) |
For projects within
the buffer of or upstream and within one linear mile of impaired stream
segments on Georgia's "305(b)/303(d) List Documents (Final)," documentation
that the project will have no adverse impacts relative to the pollutants of
concern and if applicable, documentation that the project will be in compliance
with the TMDL Implementation Plan(s). |
| (j) |
Any other reasonable information related
to the project that the Division deems necessary to effectively evaluate the
variance request. |
| (k) |
Applications
must be on the most current forms provided by the Division. |
|
| (4) |
If the buffer impact will be
major, the buffer variance request shall include all of the information in
Sections (3)(a) thru (k) above, with the exception of (3)(h). A buffer variance
request for major buffer impacts shall also include the following additional
information:
| (a) |
For variance requests made
under Section (2)(h):
| 1. |
Joint Public Notice
(JPN), if it is an individual permit; |
| 2. |
Pre-Construction Notification (PCN), if it
is a Nationwide Permit; |
| 3. |
Mitigation calculations; and |
| 4. |
Permit approval from the United States Army Corps of Engineers. |
|
| (b) |
Buffer mitigation plan
addressing impacts to critical buffer functions, including water quality and
floodplain, watershed and ecological functions based on an evaluation of
existing buffer conditions and predicted post construction buffer conditions
pursuant to Section (7)(c) herein. |
| (c) |
Plan for stormwater control once site
stabilization is achieved, when required by a local stormwater
ordinance. |
| (d) |
For variance
requests made under Sections (2)(i) and (2)(j), the application shall include
the following water quality information:
| 1. |
Documentation that post-development stormwater management systems to conform to
the minimum standards for water quality, channel protection, overbank flood
protection and extreme flood protection as established in the Georgia
Stormwater Management Manual or the equivalent and if applicable, the Coastal
Stormwater Supplement to the Georgia Stormwater Management Manual. |
| 2. |
Documentation that existing water quality
will be maintained or improved based on predicted pollutant loading under pre-
and post-development conditions as estimated by models accepted by the
Division. |
|
| (e) |
For
variance requests made under Section (2)(j), if the proposed project is in, or
upstream and within ten linear miles of impaired stream segments on Georgia's
"305(b)/303(d) List Documents (Final)," documentation that the project will
have no adverse impacts relative to the pollutants of concern and if
applicable, documentation that the project will be in compliance with the TMDL
Implementation Plan(s). |
| (f) |
For
variance requests made under Section (2)(k)1., the application shall include
documentation from the United States Army Corps of Engineers verifying the
water bodies identified in the application are non-jurisdictional waters of the
United States under Section 404 of the Clean Water Act. |
|
| (5) |
Upon receipt of a completed application
in accordance with Sections 391-3-7-.05(3) or 391-3-7-.05(4), the Division
shall consider the completed application and the following factors in
determining whether to issue a variance:
| (a) |
Locations of state waters, wetlands, floodplain boundaries and other natural
features as determined by field surveys. |
| (b) |
Shape, size, topography, slope, soils,
vegetation and other physical characteristics of the property. |
| (c) |
Location and extent of buffer
intrusion. |
| (d) |
Whether reasonable
alternative project designs, such as the use of retaining walls, are possible
which do not require buffer intrusion or which require less buffer
intrusion. |
| (e) |
Whether issuance of
the variance, with the required mitigation plan, re-vegetation plan and/or plan
for permanent vegetation, is at least as protective of natural resources and
the environment (including wildlife habitat). |
| (f) |
The current condition of the existing
buffer, to be determined by:
| 1. |
The extent to
which existing buffer vegetation is disturbed; |
| 2. |
The hydrologic function of the buffer;
and |
| 3. |
Stream characteristics such
as bank vegetative cover, bank stability, prior channel alteration or sediment
deposition. |
|
| (g) |
The
extent to which the encroachment into the buffer may reasonably impair buffer
functions. |
| (h) |
The value of
mitigation activities conducted pursuant to this rule, particularly Subsections
391-3-7-.05(7)(c) and 391-3-7-.05(7)(d) herein, and shall take regional
differences into consideration on-site or downstream, to be determined by
development techniques or other measures that will contribute to the
maintenance or improvement of water quality, including the use of low impact
designs and integrated best management practices, and reduction in effective
impervious surface area. |
| (i) |
The
long-term water quality impacts of the proposed variance, as well as the
construction impacts. And for applications made under Subsections
391-3-7-.05(2)(i) and 391-3-7-.05(2)(j), the following criteria, which reflect
regional differences in the state, shall be used by the Director to assist in
determining whether the project seeking a variance will, when completed and
with approved mitigation, result in maintained or improved water quality
downstream of the project and minimal net impact to the buffer:
| 1. |
Division will assume that the existing
water quality conditions are commensurate with an undeveloped forested
watershed unless the applicant provides documentation to the contrary. If the
applicant chooses to provide baseline documentation, site and/or stream reach
specific water quality, habitat, and/or biological data would be needed to
document existing conditions. If additional data are needed to document
existing conditions, the applicant may need to submit a monitoring plan and
have it approved by the Division prior to collecting any monitoring data.
Existing local data may be used, if available and of acceptable quality to the
Division. |
| 2. |
The results of the
predicted pollutant loading under pre- and post-development conditions as
estimated by models accepted by the Division indicate that existing water
quality conditions will be maintained or improved. |
|
| (j) |
For applications made under Section
391-3-7-.05(2)(j), for which a land disturbing activity is proposed within the
buffer of a 303(d) listed stream, or upstream and within 10 linear miles of a
303(d) listed stream, the results of the model demonstrate that the project has
no adverse impact relative to the pollutants of concern in such stream
segment. |
|
| (6) |
Within 60
days of receipt of a complete buffer variance application, the Division will
either provide written comments to the applicant or propose to issue a
variance.
| (a) |
When the Division proposes to
issue a variance, it will issue a public notice. The public notice shall
describe the proposed buffer encroachment, the location of the project, where
the public can review site plans, and where comments should be sent. The public
shall have 30 days from the date of publication of the public notice to comment
on the proposed buffer variance. |
| (b) |
If after the public comment period for a
proposed buffer variance has closed or a buffer variance has been issued the
applicant proposes to change the project as described in the variance
application, the applicant must notify the Division in writing of those
proposed changes.
| 1. |
If the proposed changes
include a change in the location of the buffer impacts, an increase in buffer
impact, or change in project concept or design such that there may be a change
to the applicable variance criteria described in Section 391-3-7-.05(2) and the
Division approves such changes, the Division shall issue public notice in
accordance with Section 391-3-7-.05(6)(a). |
| 2. |
If the proposed changes do not include
changes described in 391-3-7-.05(6)(b)(1), the Division may approve those
changes in writing or may elect to issue public notice in accordance with
Section 391-3-7-.05(6)(a). |
|
| (c) |
If after the public comment period for a
proposed buffer variance has closed or a buffer variance has been issued a
person or entity other than the applicant wishes to carry out the work
described in the proposed variance or variance, the new person or entity must
submit an application for that variance and all other requirements and
procedures described in this Section 391-3-7-.05 shall apply. A new application
shall not be required where the applicant is merely changing its name or
corporate structure, but the applicant must notify the Division in writing of
that name or corporate structure change. |
|
| (7) |
In all cases in which a buffer variance
is issued, the following conditions shall apply:
| (a) |
The variance shall be the minimum
reduction in buffer width necessary to provide relief. Streams shall not be
piped if a buffer width reduction is sufficient to provide relief. |
| (b) |
Disturbance of existing buffer vegetation
shall be minimized. |
| (c) |
Mitigation
is required for all major buffer impacts and shall offset the buffer
encroachment and any loss of buffer functions. Where lost functions cannot be
replaced, mitigation shall provide other buffer functions that are beneficial.
Buffer functions include, but are not limited to:
| 1. |
temperature control (shading); |
| 2. |
streambank stabilization; |
| 3. |
trapping of sediments, if any; |
| 4. |
removal of nutrients, heavy metals,
pesticides and other pollutants; |
| 5. |
aquatic habitat and food chain; |
| 6. |
terrestrial habitat, food chain and migration corridor; and |
| 7. |
buffering of flood flows. |
|
| (d) |
Mitigation should be on-site
when possible. Depending on site conditions, acceptable forms of mitigation may
include but are not limited to:
| 1. |
Restoration
of the buffer to a naturally vegetated state to the extent practicable, or to
current existing conditions; |
| 2. |
Bioengineering of channels to reduce bank erosion and improve
habitat; |
| 3. |
Creation or restoration
of wetlands; |
| 4. |
Stormwater
management systems to better maintain the pre-development flow regime (with
consideration given to downstream effects) that exceeds the requirements of
applicable ordinances at the time of application; |
| 5. |
Reduction in pollution sources, such as
on-site water quality treatment or improving the level of treatment of septic
systems; |
| 6. |
Other forms of
mitigation that protect or improve water quality and/or aquatic wildlife
habitat; |
| 7. |
An increase in buffer
width elsewhere on the property; |
| 8. |
Mitigation as required under a Clean Water Act Section 404 or Nationwide permit
issued by the U.S. Army Corps of Engineers; |
| 9. |
Stormwater management systems described in
the most recent publication of the Georgia Stormwater Management Manual and the
Coastal Stormwater Supplement to the Georgia Stormwater Management
Manual; |
| 10. |
Mitigation as described
in the most recent publication of the Division's guidance document, Stream
Buffer Mitigation Guidance. |
|
| (e) |
Forms of mitigation that are not
acceptable include:
| 1. |
Activities that are
already required by the Georgia Erosion and Sedimentation Act, such as the
minimal use of best management practices; |
| 2. |
Activities that are already required by
other federal, state and local laws, except as described in 391-3-7-.05(7)(d)
above. U.S. Army Corps of Engineers mitigation is acceptable. |
|
| (f) |
The Division will not place a
condition on a variance that requires a landowner to deed property or the
development rights of property to the state or to any other entity. The
landowner may voluntarily preserve property or the development rights of
property as a mitigation option with the agreement of the Division. |
|
| (8) |
If the approved buffer impacts
are not completed within five years of the date issued, buffer variances issued
on or after the effective date of this rule will become null and void, unless
an extension is granted by the Division as specifically provided herein.
| (a) |
The applicant may request a time
extension of that buffer variance only if the approved buffer impacts will not
be completed prior to the buffer variance expiration date. The buffer variance
time extension, if granted, can be for a period of up to five years. If the
applicant can demonstrate that a time extension for a period of greater than
five years is reasonable, the Director may grant a buffer variance time
extension for a reasonable period of greater than five years. A buffer variance
time extension may be issued only once. |
| (b) |
The buffer variance time extension must
be requested in writing at least 90 calendar days prior to the buffer variance
expiration date with justifiable cause demonstrated. Once an approved buffer
variance expires, it is no longer eligible for a time extension. |
| (c) |
Time extension requests will be reviewed
by the Division. The Division will either provide written comments to the
applicant or propose to issue a buffer variance time extension within 60 days
of receipt of a time extension request. If there are any other changes to the
original buffer variance application, the Division shall issue a public notice
in accordance with Section 391-3-7-.05(6)(a). |
| (d) |
If a variance issued by the Director is
acceptable to the issuing authority, the variance shall be included as a
condition of permitting and therefore becomes a part of the permit for the
proposed land disturbing activity project. If a stream buffer variance is not
acceptable to the issuing authority, the issuing authority may issue a land
disturbing permit without allowing encroachment into the buffer. |
|
| (9) |
A general variance is provided
for piping of trout streams with an average annual flow of 25 gpm or
less. |
| (10) |
To obtain this general
variance in Section 391-3-7-.05(9) for encroaching on the buffer of a trout
stream, the applicant must submit information to the issuing authority or EPD
if there is no issuing authority demonstrating that the average annual flow in
the stream is 25 gpm or less. There are two acceptable methods for making this
determination.
| (a) |
The USGS unit area runoff
map may be used to determine the threshold acreage that will produce an average
annual flow of 25 gpm or less. |
| (b) |
The applicant may submit a hydrologic analysis certified by a Registered
Professional Engineer or Geologist that presents information sufficient to
estimate that the average annual flow of each stream to be piped is 25 gpm or
less with a high level of certainty. |
|
| (11) |
Any stream piping performed in
accordance with this general variance in Section 391-3-7-.05(9) shall be
subject to the following terms:
| (a) |
The total
length of stream that is piped in any one property shall not exceed 200
feet. |
| (b) |
Any project that involves
more than 200 ft of piping will require an individual variance for the entire
project. The general variance may not be applied to a portion of a project;
e.g., it is not permissible to pipe 200 ft of a stream under the general
variance and seek an individual variance for an additional length of
pipe. |
| (c) |
The downstream end of the
pipe shall terminate at least 25 ft before the property boundary. |
| (d) |
The applicant for a Land Disturbing
Activity Permit shall notify the appropriate issuing authority of the precise
location and extent of all streams piping as part of the land disturbing
activity permit application. The issuing authority (if other than the Division)
shall compile this information and convey it to the Division
annually. |
| (e) |
Where piping of a
stream increases the velocity of stream flow at the downstream end of the pipe,
appropriate controls shall be employed to reduce flow velocity to the
predevelopment level. Plans for such controls must be submitted as part of the
land disturbing activity permit. |
|
Turbidity of stormwater runoff discharges shall be controlled
to the extent that the limits established in O.C.G.A.
12-7-6
shall not be exceeded.
| (1) |
The Division may periodically inspect the
site of any land disturbing activity for which a permit has been issued to
determine if such activity is being conducted in accordance with the permit and
to evaluate the effectiveness of the erosion and sediment control measures
employed. |
| (2) |
The Division shall
have the authority to conduct such investigations as it may reasonable deem
necessary to carry out its duties as prescribed by O.C.G.A.
12-7-1et
seq., and these rules and regulations and for this purpose to enter at
reasonable times upon any property, public or private, for the purpose of
investigating and inspecting the sites of land disturbing activities. The
Division shall make its best efforts to contact a local issuing authority prior
to any site inspection of a project within that local issuing authority's
jurisdiction, provided however, that the Division shall, if contact was not
prior made, contact the local issuing authority not more than five (5) business
days after the site visit. |
| (3) |
No
person shall refuse entry or access to any authorized representative of the
Division who requests entry for purposed of inspection and who presents
appropriate credentials, nor shall any person obstruct, hamper or interfere
with any such representative while in the process of carrying out assigned
official duties. |
| (1) |
The
administration and enforcement of these rules and regulations shall be in
accordance with the Erosion and Sedimentation act of 1975, O.C.G.A.
12-7-1et
seq.; the Executive Reorganization Act of 1972, O.C.G.A.
12-2-1et
seq., and the Georgia Administrative Procedure Act, O.C.G.A.
50-13-1et
seq., all as amended, but also includes the authority to require
corrective action and/or remediation of conditions creating adverse water
quality impacts, or otherwise in violation of these rules, regulations and
authorizing statutes. |
| (2) |
When the
Division seeks to enforce the requirements of these rules or the requirements
of O.C.G.A.
12-7-1 et.
seq., as amended, in a jurisdiction covered by a certified local issuing
authority, the Division should coordinate enforcement with the local issuing
authority. However, coordination with a local issuing authority is not a
prerequisite for enforcement by the Division. |
| (1) |
Criteria for Certification of
Municipalities or Counties as Local Issuing Authorities.
| (A) |
Municipality or county has adopted an
ordinance which demonstrates compliance with the provisions in Title 12,
Chapter 7 of the Official Code of Georgia and related regulation. |
| (B) |
Municipality or county has inspection
personnel, who are or will be qualified personnel (within 6 months of date of
hire) in erosion and sediment control. |
| (C) |
Required Documentation. A municipality or
county shall provide all of the following documentation to the Division:
| 1. |
A letter from the municipality or county
requesting certification as a Local Issuing Authority. |
| 2. |
A listing of the number of inspectors
employed by the municipality or county that will be responsible for land
disturbance activity inspections and documentation of the training for each
inspector. |
| 3. |
Documentation of the
geographic size of the jurisdiction. |
| 4. |
Documentation of the estimated workload
and inspection frequency schedule for the inspectors. |
| 5. |
A copy of the ordinance which demonstrates
compliance with the provisions in Title 12, Chapter 7 of the Official Code of
Georgia. |
|
| (D) |
The Division
shall provide written notification to the municipality or county of the
Director's decision no later than 60 days after receipt of request for
certification. In the case of a denial of local issuing authority
certification, the Division shall explain the deficiencies causing the denial.
The denial of certification by the Division shall not preclude a municipality
or county from making any subsequent application for certification. |
|
| (2) |
Criteria for Certification of
Water Authorities or Water and Sewer Authorities as Local Issuing Authorities.
| (A) |
Each municipality or county that is
served by that water authority or water and sewer authority must be a certified
Local Issuing Authority. |
| (B) |
The
ordinances adopted by each municipality or county that is served by that water
authority or water and sewer authority must be in compliance with the
provisions of Title 12, Chapter 7 of the Official Code of Georgia and related
regulations as of the date of the application by the water authority or water
and sewer authority for certification as a Local Issuing Authority or,
following application, the water authority or water and sewer authority must
provide documentation to the Division of the same before such water authority
or water and sewer authority may be certified as a Local Issuing
Authority. |
| (C) |
Each municipality or
county that is served by that water authority or water and sewer authority must
have adopted ordinances or other such local law that allows the water authority
or water and sewer authority the ability to enforce directly all ordinances
described in Rule 391-3-7-.09(2)(B). |
| (D) |
The water authority or water and sewer
authority has inspection personnel, who are or will be qualified personnel
(within 6 months of date of hire) in erosion and sediment control. |
| (E) |
Required Documentation. A water authority
or water and sewer authority shall provide all of the following documentation
to the Division:
| 1. |
A letter from the water
authority or water and sewer authority requesting certification as a Local
Issuing Authority, identifying each municipality or county that is served by
that water authority or water and sewer authority, and verifying that each
municipality or county that is served by that water authority or water and
sewer authority has granted the same legal authority to the water authority or
water and sewer authority to carry out the requirements of the provisions of
Title 12, Chapter 7 of the Official Code of Georgia and related
regulation. |
| 2. |
A letter from each
municipality or county that is served by that water authority or water and
sewer authority including all of the following:
| A. |
A statement confirming that such
municipality or county has been certified as a Local Issuing
Authority. |
| B. |
A statement
confirming that such municipality or county intends to allow the water
authority or water and sewer authority to operate solely as the Local Issuing
Authority within that municipality's or county's jurisdictional
boundaries. |
| C. |
A statement that
such municipality or county has adopted ordinances or other local laws that
grant to the water authority or water and sewer authority the ability to
enforce directly all ordinances required to implement the provisions of Title
12, Chapter 7 of the Official Code of Georgia and related regulation. |
|
| 3. |
A listing of the number of
inspectors employed by the water authority or water and sewer authority that
will be responsible for land disturbance activity inspections and documentation
of the training for each inspector. |
| 4. |
Documentation of the estimated workload
and inspection frequency schedule for the inspectors. |
| 5. |
A detailed boundary map for all areas in
which the water authority or water and sewer authority intends to operate as a
Local Issuing Authority, including but not limited to labeled street names.
Such boundary map shall be provided in an electronic format that is compatible
with the Division's GIS software. |
| 6. |
A copy of the ordinance from each
municipality or county that is served by the water authority or water and sewer
authority that demonstrates compliance with the provisions in Title 12, Chapter
7 of the Official Code of Georgia and related regulation. |
| 7. |
A copy of the ordinance or other local law
from each municipality or county that is served by the water authority or water
and sewer authority that grant to the water authority or water and sewer
authority the ability to enforce directly all ordinances required to implement
the provisions of Title 12, Chapter 7 of the Official Code of Georgia and
related regulation. |
| 8. |
A copy of
the intergovernmental agreement(s) with the governing authority of each
municipality or county that is served by the water authority or water and sewer
authority. Such intergovernmental agreement shall:
| A. |
Be executed by duly authorized
representative(s) for each party; and |
| B. |
Specify how the municipality or county and
water authority or water and sewer authority will notify one another regarding
any updates to ordinances or local laws relevant to the enforcement by the
water authority or water and sewer authority of ordinances required to
implement the provisions of Title 12, Chapter 7 of the Official Code of Georgia
and related regulation; and |
| C. |
Specify how changes to the service area of such water authority or water and
sewer authority will affect which entity will act as Local Issuing Authority in
the affected areas and describe a process by which any necessary updates to or
amendments of relevant ordinances or local laws will be conducted;
and |
| D. |
Describe in detail, with
reference to and incorporation of boundary maps and customer lists as
appropriate, in which areas the municipality or county will act as Local
Issuing Authority and in which areas the water authority or water and sewer
authority will act as Local Issuing Authority. |
|
|
| (F) |
The Division shall provide written
notification to the water authority, or water and sewer authority of the
Director's decision no later than 60 days after receipt of request for
certification. In the case of a denial of local issuing authority
certification, the Division shall explain the deficiencies causing the denial.
The denial of certification by the Division shall not preclude water authority
or water and sewer authority from making any subsequent application for
certification. |
|
| (3) |
Responsibilities of Certified Local Issuing Authorities.
| (A) |
Municipality, county, water authority, or
water and sewer authority demonstrates adequate program administration, record
keeping and enforcement as evidenced by:
| 1. |
Processing land disturbing activity applications, issuing permits and
compliance with stream buffer variance requirements; and |
| 2. |
Maintaining a list of open land
disturbance permits; and |
| 3. |
Conducting inspections and maintaining reports of inspections including
violations; and |
| 4. |
Enforcing the
ordinance and keeping record of written notification of violations, stop-work
orders, court actions, etc. |
|
| (B) |
Municipality, county, water authority, or
water and sewer authority must follow a Complaint Investigation Process which:
| 1. |
Includes an investigation of the complaint
by the local issuing authority within 5 business days; and |
| 2. |
Includes a mechanism for referral of
unresolved complaints to the Division; and |
| 3. |
Includes a monthly log of complaints and
inquiries, including actions taken. |
|
| (C) |
Municipality, county, water authority, or
water and sewer authority with a Memorandum of Agreement (MOA) with the
appropriate local Soil and Water Conservation District to review and approve an
Erosion and Sedimentation Control Plan shall approve or disapprove a revised
Plan submittal within 35 days of receipt. Failure of the municipality, county,
water authority, or water and sewer authority to act within 35 days shall be
considered an approval of the revised Plan submittal. |
| (D) |
In the event that a water authority or
water and sewer authority that has been certified as a Local Issuing Authority
alters the area the water authority or water and sewer authority is acting as a
Local Issuing Authority from that described in the application and related
boundary maps included in its application for certification, within thirty (30)
days from that alteration the water authority or water and sewer authority must
send to the Division an updated boundary map and, if any new or different
municipalities or counties have been added, a letter like that described in
Rule 391-3-7-.09(2)(E)(2) from each municipality or county and a copy of the
intergovernmental agreement described in Rule 391-3-7-.09(2)(E)(8). |
|
| (4) |
De-certification of a Local
Issuing Authority.
| (A) |
Recommendation for
De-certification Investigation. The Division shall begin an investigation for
de-certification upon request with adequate documentation by the local Soil and
Water Conservation District or Georgia Soil and Water Conservation Commission
or on its own initiative if any of the following occurs:
| 1. |
Municipality, county, water authority, or
water and sewer authority no longer has an ordinance which demonstrates
compliance with the provisions in Title 12, Chapter 7 of the Official Code of
Georgia; or |
| 2. |
Municipality,
county, water authority, or water and sewer authority no longer has inspection
personnel who are or will be qualified personnel (within 6 months of date of
hire) in erosion and sediment control; or |
| 3. |
Municipality, county, water authority, or
water and sewer authority does not utilize their Complaint Investigation
Process pursuant to 391-3-7-.09(3)(B); or |
| 4. |
Municipality, county, water authority, or
water and sewer authority no longer has adequate program administration, record
keeping and enforcement pursuant to 391-3-7-.09(3)(A). |
|
| (B) |
De-certification Investigation. Within 60
days of receipt of the de-certification request, the Division shall initiate an
investigation by providing written notice of the recommendation for
de-certification to the local issuing authority and detailing the perceived
deficiencies enumerated in the recommendation. Prior to any de-certification of
a local issuing authority, the Division must perform an on-site evaluation of
the program.
The municipality, county, water authority, or water and sewer
authority shall have 30 days in which to respond in writing to the Division
and:
| 1. |
Acknowledge the noted
deficiencies and agree to comply; or |
| 2. |
Offer explanation of why deficiency or
omission has occurred and establish a target deadline to comply; or |
| 3. |
Disagree with some or all of the noted
deficiencies and recommendations for improvement and request mediation between
the municipality, county, water authority, or water and sewer authority and the
Division. |
|
| (C) |
Review
Local Issuing Authority Response. The Director or his/her designee will review
any response received from the local issuing authority. The Director may then
uphold, modify, suspend or dismiss the de-certification recommendation. The
determination of the Director shall be made within 30 days from receipt of the
response from the local issuing authority. |
| (D) |
Final Decision and Appeal. A
determination made by the Director to uphold, modify, suspend or dismiss the
de-certification is a final action of the Director and may be appealed in
accordance with subsection (c) of Code Section
12-2-2. |
|
| (5) |
Continuing Certification.
A local issuing authority shall submit documentation showing
continued compliance with the criteria for certification established at
391-3-7-.09(1)(A) and (B) to the Division whenever an event requiring the
Division to evaluate a local issuing authority for continuing compliance with
the certification requirements occurs.
|
| (1) |
All applications shall contain a
certification stating that the plan preparer or his or her designee has visited
the site prior to creation of the plan. |
| (2) |
Plans submitted shall contain the
following certification:
"I certify under penalty of law that this Plan was prepared
after a site visit to the locations described herein by myself or my authorized
agent, under my direct supervision."
|
| (1) |
Buffers on
state waters are valuable in protecting and conserving land and water
resources. Therefore, there is established a 25 foot buffer along coastal
marshlands, as measured horizontally from the coastal marshland-upland
interface, except:
| (a) |
Where the Director
determines to allow a variance that is at least as protective of natural
resources and the environment under the variance criteria in 391-3-7-.11(2)
through (7) or under the variance by rule criteria in 391-3-7-.11(9);
or |
| (b) |
Where otherwise allowed by
the Director pursuant to O.C.G.A § 12-2-8;
or |
| (c) |
Where an alteration within
the buffer area has been authorized pursuant to O.C.G.A. § 12-5-286;
or |
| (d) |
For maintenance of any
currently serviceable structure, landscaping, or hardscaping, including
bridges, roads, parking lots, golf courses, golf cart paths, retaining walls,
bulkheads, and patios; provided, however, that if such maintenance requires any
land-disturbing activity, adequate erosion control measures are incorporated
into the project plans and specifications and such measures are fully
implemented; or |
| (e) |
Where a
drainage structure or roadway drainage structure is constructed or maintained;
provided, however, that adequate erosion control measures are incorporated into
the project plans and specifications and such measures are fully implemented;
or |
| (f) |
On the landward side of any
currently serviceable shoreline stabilization structure; or |
| (g) |
For the maintenance of any manmade
storm-water detention basin, golf course pond, or impoundment that is located
entirely within the property of a single individual, partnership, or
corporation; provided, however, that adequate erosion control measures are
incorporated into the project plans and specifications and such measures are
fully implemented; or |
| (h) |
Crossings
for utility lines that cause a width of disturbance of not more than 50 feet
within the buffer; provided, however, that adequate erosion control measures
are incorporated into the project plans and specifications and such measures
are fully implemented; or |
| (i) |
Any
land-disturbing activity conducted pursuant to and in compliance with a valid
and effective land-disturbing permit issued subsequent to April 22, 2014, and
prior to December 31, 2015; provided, however, that adequate erosion control
measures are incorporated into the project plans and specifications and such
measures are fully implemented; or |
| (j) |
Any lot for which the preliminary plat
has been approved prior to December 31, 2015 if roadways, bridges, or water and
sewer lines have been extended to such lot prior to the effective date of this
Act and if the requirement to maintain a 25 foot buffer would consume at least
18 percent of the high ground of the platted lot otherwise available for
development; provided, however, that adequate erosion control measures are
incorporated into the project plans and specifications and such measures are
fully implemented. |
|
| (2) |
The buffer variance process will apply to all projects legally eligible for
variances, provided that adequate erosion control measures are incorporated in
the project plans and specifications and are implemented. Variance applications
will be reviewed by the Director only in the following cases:
| (a) |
The project involves the construction or
repair of an existing infrastructure project or a structure that, by its
nature, must be located within the buffer. Such structures include, but are not
limited to, dams, public water supply intake structures, detention/retention
ponds, waste water discharges, docks including access ways, boat launches
including access ways and stabilization of areas of public access to water;
or |
| (b) |
The project will result in
the restoration or enhancement to improve water quality and/or aquatic habitat
quality; or |
| (c) |
Buffer intrusion is
necessary to provide reasonable access to a property or properties;
or |
| (d) |
The intrusion is for utility
lines within or adjacent to existing utility or transportation right of ways or
that cannot reasonably be placed outside the buffer, and crossings and
vegetative disturbance are minimized; or |
| (e) |
Crossing for utility lines, including but
not limited to gas, liquid, power, telephone, and other pipelines, provided
that the number of crossings and the amount of vegetative disturbance are
minimized; or |
| (f) |
Recreational foot
trails and viewing areas, providing that impacts to the buffer are minimal;
or |
| (g) |
The project involves
construction of one (1) single family home for residential use by the owner of
the subject property and, at the time of adoption of this rule, there is no
opportunity to develop the home under any reasonable design configuration
unless a buffer variance is granted. Variances will be considered for such
single family homes only if construction is initiated or local government
approval is obtained prior to January 10, 2005; or |
| (h) |
The proposed land disturbing activity
within the buffer will require a permit from the United States Army Corps of
Engineers under Section 404 of the federal Water Pollution Control Act
Amendment of 1972,
33 U.S.C. Section
1344, and the Corps of Engineers has approved
a mitigation plan to be implemented as a condition of such a permit;
or |
| (i) |
A plan is provided for
buffer intrusion that shows that, even with the proposed land disturbing
activity within the buffer, the completed project will result in maintained or
improved water quality; or |
| (j) |
The
proposed land disturbing activity includes an alteration within the buffer that
has been authorized pursuant to a permit issued by the United States Army Corps
of Engineers under Section 404 of the Federal Water Pollution Control Act of
1972, as amended, or Section 10 of the Rivers and Harbors Act of 1899;
or |
| (k) |
The proposed land disturbing
activity within the buffer is not eligible for a permit from the United States
Army Corps of Engineers under Section 404 of the federal Water Pollution
Control Act Amendment of 1972,
33 U.S.C. Section
1344, and involves:
| 1. |
Piping, filling, or re-routing of waters
that are not jurisdictional Waters of the U.S.; or |
| 2. |
Buffer impacts due to new infrastructure
projects adjacent to state waters (jurisdictional and non-jurisdictional Waters
of the U.S.). This criterion shall not apply to maintenance and/or modification
to existing infrastructure. |
|
|
| (3) |
Except as provided in 391-3-7-.11(9), if
the buffer impact will be minor, the buffer variance request shall include the
following information at a minimum:
| (a) |
Site
map that includes locations of all state waters, wetlands, floodplain
boundaries and other natural features, as determined by field survey. |
| (b) |
Description of the shape, size,
topography, slope, soils, vegetation and other physical characteristics of the
property. |
| (c) |
Dated and numbered
detailed site plan that shows the locations of all structures, impervious
surfaces, and the boundaries of the area of soil disturbance, both inside and
outside of the buffer. The exact area of the buffer to be impacted shall be
accurately and clearly indicated. |
| (d) |
Description of the project, with details
of the buffer disturbance, including estimated length of time for the
disturbance and justification for why the disturbance is necessary. |
| (e) |
Calculation of the total area and length
of the buffer disturbance. |
| (f) |
Letter from the issuing authority (if other than the Division and as
applicable) stating that the issuing authority has visited the site and
determined the presence of coastal marshlands that require a buffer and that a
buffer variance is required. |
| (g) |
Erosion, sedimentation and pollution control plan. |
| (h) |
Re-vegetation plan as described in the
most recent publication of the Division's guidance book, "Streambank and
Shoreline Stabilization", or the "Hydromodification Best Management Practice
Manual for Coastal Georgia," and/or a plan for permanent vegetation as per the
"Manual for Erosion and Sedimentation Control in Georgia." |
| (i) |
For projects within the buffer of or
upstream and within one linear mile of an impaired water body on Georgia's
"305(b)/303(d) List Documents (Final)," documentation that the project will
have no adverse impacts relative to the pollutants of concern and if
applicable, documentation that the project will be in compliance with the TMDL
Implementation Plan(s). |
| (j) |
Applications must be on the most current forms provided by the
Division. |
|
| (4) |
If the
buffer impact will be major, the buffer variance request shall include all of
the information in 391-3-7-.11(3)(a) through (j) above, with the exception of
391-3-7-.11(3)(h). A buffer variance request for major buffer impacts shall
also include the following additional information:
| (a) |
For variance requests made under
391-3-7-.11(2)(h) or (j):
| 1. |
Joint Public
Notice (JPN), if it is an individual permit; |
| 2. |
Pre-Construction Notification (PCN), if it
is a Nationwide Permit; |
| 3. |
Mitigation calculations; and |
| 4. |
Permit approval from the United States Army Corps of Engineers. |
|
| (b) |
Buffer mitigation plan
addressing impacts to critical buffer functions, including water quality and
floodplain, watershed and ecological functions based on an evaluation of
existing buffer conditions and predicted post construction buffer conditions
pursuant to 391-3-7-.11(7)(c) herein. |
| (c) |
Plan for stormwater control once site
stabilization is achieved, when required by a local stormwater
ordinance. |
| (d) |
For variance
requests made under 391-3-7-.11(2)(i), the application shall include the
following water quality information:
| 1. |
Documentation that post-development stormwater management systems to conform to
the minimum standards for water quality, channel protection, overbank flood
protection and extreme flood protection as established in the Georgia
Stormwater Management Manual or the equivalent and if applicable, the Coastal
Stormwater Supplement to the Georgia Stormwater Management Manual. |
| 2. |
Documentation that existing water quality
will be maintained or improved based on predicted pollutant loading under pre-
and post-development conditions as estimated by models accepted by the
Division. |
|
| (e) |
For
variance requests made under 391-3-7-.11(2)(k)1., the application shall include
documentation from the United States Army Corps of Engineers verifying the
water bodies identified in the application are non-jurisdictional waters of the
United States under Section 404 of the Clean Water Act. |
|
| (5) |
Upon receipt of a complete application,
the Division shall consider the complete application and the following factors
in determining whether to issue a variance:
| (a) |
Locations of state waters, wetlands,
coastal marshlands, floodplain boundaries and other natural features as
determined by field surveys. |
| (b) |
Shape, size, topography, slope, soils, vegetation and other physical
characteristics of the property. |
| (c) |
Location and extent of buffer
intrusion. |
| (d) |
Whether reasonable
alternative project designs, such as the use of retaining walls are possible
which do not require buffer intrusion or which require less buffer
intrusion. |
| (e) |
Whether issuance of
the variance, with the required mitigation plan, re-vegetation plan and/or plan
for permanent vegetation, is at least as protective of natural resources and
the environment. |
| (f) |
The current
condition of the existing buffer, to be determined by:
| 1. |
The extent to which existing buffer
vegetation is disturbed; |
| 2. |
The
hydrologic function of the buffer; and |
| 3. |
Hydrologic functional characteristics such
as bank vegetative cover, bank stability, or prior channel
alteration. |
|
| (g) |
The
extent to which the encroachment into the buffer may reasonably impair buffer
functions. |
| (h) |
The value of
mitigation activities conducted pursuant to this rule, particularly
391-3-7-.11(7)(c) and (d) herein, development techniques or other measures that
will contribute to the maintenance or improvement of water quality, including
the use of low impact designs and integrated best management practices, and
reduction in effective impervious surface area. |
| (i) |
The long-term water quality impacts of
the proposed variance, as well as the construction impacts. And for
applications made under 391-3-7-.11(2)(i), the following criteria shall be used
by the Director to assist in determining whether the project seeking a variance
will, when completed and with approved mitigation, result in maintained or
improved water quality downstream of the project and minimal net impact to the
buffer:
| 1. |
The Division will assume that the
existing water quality conditions are commensurate with an undeveloped maritime
forested watershed unless the applicant provides documentation to the contrary.
If the applicant chooses to provide baseline documentation, site specific water
quality, habitat, and /or biological data would be needed to document existing
conditions. If additional data are needed to document existing conditions, the
applicant may need to submit a monitoring plan and have it approved by the
Division prior to collecting any monitoring data. Existing local data may be
used, if available and of acceptable quality to the Division. |
| 2. |
The results of the predicted pollutant
loading under pre- and post-development conditions as estimated by models
accepted by the Division indicate that existing water quality conditions will
be maintained or improved. |
|
| (j) |
For applications made under
391-3-7-.11(2)(i), for which a land disturbing activity is proposed within the
buffer of a 303(d) listed water body, or upstream and within one linear mile of
a 303(d) listed water body, the results of the model demonstrate that the
project has no adverse impact relative to the pollutants of concern. |
|
| (6) |
Within 60 days of receipt of a
complete buffer variance application, the Division will either provide written
comments to the applicant or propose to issue a variance.
| (a) |
When the Division proposes to issue a
variance, it will issue a public notice. The public notice shall describe the
proposed buffer encroachment, the location of the project, where the public can
review site plans, and where comments should be sent. The public shall have 30
days from the date of publication of the public notice to comment on the
proposed buffer variance. |
| (b) |
If
after the public comment period for a proposed buffer variance has closed or a
buffer variance has been issued the applicant proposes to change the project as
described in the variance application, the applicant must notify the Division
in writing of those proposed changes.
| 1. |
If
the proposed changes include a change in the location of the buffer impacts, an
increase in buffer impact, or change in project concept or design such that
there may be a change to the applicable variance criteria described in Section
391-3-7-.11(2) and the Division approves such changes, the Division shall issue
public notice in accordance with Section 391-3-7-.11(6)(a). |
| 2. |
If the proposed changes do not include
changes described in 391-3-7-.11(6)(b)(1), the Division may approve those
changes in writing or may elect to issue public notice in accordance with
Section 391-3-7-.11(6)(a). |
|
| (c) |
If after the public comment period for a
proposed buffer variance has closed or a buffer variance has been issued a
person or entity other than the applicant wishes to carry out the work
described in the proposed variance or variance, the new person or entity must
submit an application for that variance and all other requirements and
procedures described in this Section 391-3-7-.11 shall apply. A new application
shall not be required where the applicant is merely changing its name or
corporate structure, but the applicant must notify the Division in writing of
that name or corporate structure change. |
|
| (7) |
In all cases in which a buffer variance
is issued, the following conditions shall apply:
| (a) |
The variance shall be the minimum
reduction in buffer width necessary to provide relief. |
| (b) |
Disturbance of existing buffer vegetation
shall be minimized. |
| (c) |
Mitigation
is required for all major buffer impacts and shall offset the buffer
encroachment and any loss of buffer functions. Where lost functions cannot be
replaced, mitigation shall provide other buffer functions that are beneficial.
Buffer functions include, but are not limited to:
| 1. |
temperature control (shading); |
| 3. |
trapping of sediments, if any; |
| 4. |
removal of nutrients, heavy metals,
pesticides and other pollutants; |
| 5. |
aquatic habitat and food chain; |
| 6. |
terrestrial habitat, food chain and migration corridor; |
| 7. |
buffering of flood flows; and |
| 8. |
maintenance of salinity through buffering
of freshwater flows. |
|
| (d) |
Mitigation should be on-site when possible. Depending on site conditions,
acceptable forms of mitigation may include, but are not limited to:
| 1. |
Restoration of the buffer to a naturally
vegetated state to the extent practicable, or to current existing conditions.
Information on natural vegetation in coastal Georgia is available from the
University of Georgia Marine Extension Service's website (visit
https://gacoast.uga.edu/ and
search the terms "Ecoscapes" or "Native Plant Search Engine"); |
| 2. |
Bioengineering of channels to reduce bank
erosion and improve habitat; |
| 3. |
Creation or restoration of wetlands; |
| 4. |
Stormwater management systems to better
maintain the pre-development flow regime (with consideration given to
downstream effects) that exceeds the requirements of applicable ordinances at
the time of application; |
| 5. |
Reduction in pollution sources, such as on-site water quality treatment or
improving the level of treatment of septic systems; |
| 6. |
Other forms of mitigation that protect or
improve water quality and/or aquatic wildlife habitat; |
| 7. |
An increase in buffer width elsewhere on
the property; |
| 8. |
Mitigation as
required under a Clean Water Act Section 404 or Nationwide permit issued by the
U.S. Army Corps of Engineers; or |
| 9. |
Stormwater management systems described in the most recent publication of the
Georgia Stormwater Management Manual and the Coastal Stormwater Supplement to
the Georgia Stormwater Management Manual. |
|
| (e) |
Forms of mitigation that are not
acceptable include:
| 1. |
Activities that are
already required by the Georgia Erosion and Sedimentation Act, such as the
minimal use of best management practices; |
| 2. |
Activities that are already required by
other federal, state and local laws, except as described in 391-3-7-.11(7)(d)
above. U.S. Army Corps of Engineers mitigation is acceptable. |
|
| (f) |
The Division will not place a
condition on a variance that requires a landowner to deed property or the
development rights of property to the state or to any other entity. The
landowner may voluntarily preserve property or the development rights of
property as a mitigation option with the agreement of the Division. |
| (g) |
If a variance issued by the Director is
acceptable to the issuing authority, the variance shall be included as a
condition of permitting and therefore becomes a part of the permit for the
proposed land disturbing activity project. If a buffer variance is not
acceptable to the issuing authority, the issuing authority may issue a land
disturbing permit without allowing encroachment into the buffer. |
|
| (8) |
A buffer variance will expire
five years after the effective date, unless an extension is granted by the
Division as specifically provided herein.
| (a) |
The applicant may request a time extension of that buffer variance only if the
approved buffer impacts will not be completed prior to the buffer variance
expiration date. The buffer variance time extension, if granted, can be for a
period of up to five years. If the applicant can demonstrate that a time
extension for a period of greater than five years is reasonable, the Director
may grant a buffer variance time extension for a reasonable period of greater
than five years. A buffer variance time extension may be issued only
once. |
| (b) |
The buffer variance time
extension must be requested in writing at least 90 calendar days prior to the
buffer variance expiration date with justifiable cause demonstrated. Once an
approved buffer variance expires, it is no longer eligible for a time
extension. |
| (c) |
Time extension
requests will be reviewed by the Division. The Division will either provide
written comments to the applicant or propose to issue a buffer variance time
extension within 60 days of receipt of a time extension request. If there are
any significant changes to the original buffer variance application, the
Division shall issue a public notice in accordance with
391-3-7-.11(6)(a). |
|
| (9) |
Variance By Rule
| (a) |
Notwithstanding any other
provision of these Rules, the following activities have minimal impact on the
water quality or aquatic habitat of the adjacent coastal marshland and
therefore are deemed to have an approved buffer variance.
| 1. |
Activities where the area within the
buffer is not more than 500 square feet. |
| 2. |
Activities that have a "Minor Buffer
Impact" as defined in
391-3-7-.01(r),
provided that the total area of buffer impacts is less than 5,000 square feet.
A proposed development site may not be subdivided into smaller projects or
phases to circumvent the 5,000 square feet limitation. |
|
| (b) |
Bank and shoreline stabilization
structures are not eligible for coverage under the variance by rule. |
| (c) |
Notification shall be made at least 14
days prior to the commencement of land-disturbing activities to provide the
Division an opportunity to review the activity to ensure it meets the
applicable criteria. Unless notified by the Division to the contrary, an
applicant who submits a notification in accordance with 391-3-7-.11(9) is
authorized to encroach into the buffer 14 days after the notification form is
received by the Division. A buffer variance by rule expires if the buffer
impacts are not completed within two years after the notification form is
received by the Division. The Director may deny coverage under this variance by
rule and require submittal of an application for an individual variance based
on the review of the documentation submitted or other information. Persons
failing to notify the Director of such activities shall be deemed to be
operating without a variance. |
| (d) |
Notification for a variance by rule is to be submitted by return receipt
certified mail (or similar service that provides confirmation of receipt) to
both the Division and to the Local Issuing Authority in jurisdictions
authorized to issue Land Disturbance Permits. |
| (e) |
An individual variance will be required
for any activity that does not qualify for a variance by rule. |
| (f) |
Any notification for a variance by rule
shall include the following:
| 1. |
Description
of the activity, with details of the buffer disturbance, including area and
length of the buffer to be impacted and estimated length of time for the
disturbance. |
| 2. |
Photographs of the
area that will be affected by the proposed activity. |
| 3. |
Notice of a land-disturbing activity to be
covered by a variance by rule must be on the most current forms provided by the
Division. |
|
| (g) |
Any
variance by rule shall be subject to the following requirements:
| 1. |
The following information shall be
maintained onsite until final stabilization of the site is complete:
| i. |
Site plan that shows the locations of all
structures, impervious surfaces, and the boundaries of the area of soil
disturbance, both inside and outside of the buffer. The exact area and length
of the buffer to be impacted shall be accurately and clearly
indicated. |
| ii. |
Documentation that
adequate erosion control measures are incorporated into the project plans and
specifications. |
|
| 2. |
Disturbance of existing buffer vegetation shall be minimized. |
| 3. |
Final stabilization of the site must
include a re-vegetation plan as described in the most recent publication of the
Division's guidance book, "Streambank and Shoreline Stabilization." It is
recommended that vegetation be native riparian vegetation. |
| 4. |
Temporary vegetative measures must be
implemented within 14 calendar days following the completion of any soil
disturbance and the site shall be stabilized at the end of every day until
project completion. |
| 5. |
Proper and
full implementation of the erosion control measures in 391-3-7-.11(9)(g)1.
ii. |
| 6. |
Post construction stormwater
management practices should be considered. Best management practices can be
found in the latest edition of the Georgia Stormwater Management Manual or the
Coastal Supplement to the Georgia Stormwater Management Manual. |
| 7. |
All other applicable federal, state, and
local laws, rules and ordinances, including erosion and sedimentation control
must be fully complied with prior to commencement of project
construction. |
| 8. |
For a variance by
rule under 391-3-7-.11(9)(a)1., cumulative impacts shall not exceed 500 square
feet within a 5 year period. |
| 9. |
Any
activity that does not meet the requirements of 391-3-7-.11(9)(g) is in
violation of the variance by rule. |
|
|
