Why is There a Riparian Area Rule for the Neuse River?

In 1995, water quality in the Neuse River left much to be desired. Record rainfalls during Summer 1995 delivered a tremendous load of nitrogen into the Neuse River. Millions of menhaden, flounder, croaker and rock fish were killed as a result. These problems have happened before. Because of the high rainfall this year, it is possible that these problems will happen again this summer and fall.


Diagram of how nitrogen causes fish kills

The General Assembly made a strong response: House Bill 1339. This bill establishes a 30% reduction goal for nitrogen to be achieved within five years.

The proposed Nutrient Sensitive Waters Management Strategy for the Neuse River is designed to achieve the 30% reduction goal set by the Legislature. This strategy equitably distributes the nitrogen reduction goal between wastewater dischargers, developers, farmers and fertilizer applicators.

The Riparian Area Rule plays a key role in the overall nitrogen reduction strategy: it ensures that we don't backslide as we work to meet the nitrogen reduction goal.

Many scientific studies have shown that riparian areas are highly effective at removing nitrogen before it reaches streams, rivers, ponds, lakes and estuaries. Researchers have shown that forested riparian areas remove between 50 and 80% of nitrogen before it reaches the water.

Large trees next to waters play a crucial role in "denitrification," which is a process by which harmful nitrogen in groundwater is converted to harmless nitrogen gas. If large trees are taken out of the riparian area, it is less effective in removing nitrogen from water.

Currently, about 70% of the Neuse River basin has riparian areas with forest vegetation. According to our estimates, if half of these existing riparian areas were lost, it would cause the amount of nitrogen reaching the Neuse River to increase by 17%, or 1.5 million pounds.

If we don't protect our riparian areas, who is going to make up for the nitrogen increases resulting from their loss?

The Environmental Management Commission thinks that this part of the Neuse strategy is crucial to controlling nitrogen. In fact, riparian area protection is the only part of the strategy that the Commission put into effect as a temporary rule during Summer 1997.

What Does the Neuse River Riparian Area Rule Say?

A "Riparian Area" is simply land adjacent to water. "Forest vegetation" means trees, saplings, shrubs and vines that grow together or separately. Forest vegetation does not include public or private lawns.

The proposed Neuse River Riparian Area Rule (15A NCAC 2B .0233) applies to all perennial and intermittent streams, lakes, ponds and estuaries in the Neuse River basin. It does not apply to agricultural, forestry or stormwater drainage ditches.

This rule protects forest vegetation in the first 30 feet of land directly adjacent to any water (Zone 1). The rule allows removing diseased trees and trees in danger of damaging dwellings or the streambank. A limited amount of harvesting is allowed in the outer 20 feet of Zone 1. The first 10 feet of Zone 1 must remain essentially undisturbed.

DWQ is currently meeting with forestry interests and others to reach a compromise on the requirements for selective timber harvesting in Zone 1.

Zone 2 is an additional 20 feet on either side of the stream. Zone 2 must have a dense plant cover. For both zones, the landowner or caretaker is required to keep the land undisturbed and refrain from using fertilizer. New development is not allowed in either zone.

The rule allows certain activities within the riparian area provided that they are approved by the Division of Water Quality:

How Does this Rule Affect Our Economy?

The riparian area rule allows landowners to have practical use and reasonable value of their property. There are exemptions for necessary activities, including:

The Courts have determined that regulations to protect the public's environmental resources do not take private property if they do not destroy its practical use and reasonable value. The Courts make this determination after looking at the entire property.

People who bought timber or received certain development approvals before the rule went into effect can make a case for vested rights. If the Division of Water Quality believes that an affected party has a strong case for vested rights, DWQ will allow him to carry out his planned activity without following the rule.

Landowners with lots platted and recorded before July 1997 who would suffer severe hardship from the rule can request a variance from the Environmental Management Commission.

Riparian areas provide a number of economic benefits because they:

Developers and homeowners can actually reap financial rewards from following this rule. Numerous studies have shown that homes next to protected natural areas are worth more than comparable homes located elsewhere.

Our problems with nitrogen and fish kills are hurting our economy -- tourism, the seafood/ fisheries industries, ports, property values and our state's public image are all suffering adverse economic impacts. The combined economic impacts are impossible to fully quantify. The impacts will continue unless we take action to improve water quality in the Neuse River.

Can we afford not to protect riparian areas?

How is the Riparian Area Rule Being Implemented?

DWQ has been implementing the riparian area temporary rule since it first became effective in July 1997. Since this rule affects so many different types of land owners in the Neuse basin, there have been many different questions about it.

DWQ has compiled the questions and answers into a Riparian Area Guidance Manual. In addition to answering questions, the manual tells landowners how to obtain an exemption, demonstrate vested rights and apply for variances.

One of the most common questions has been how to tell the difference between streams (which are covered by the rule) and ditches (not covered by the rule). To answer that question, DWQ has developed a checklist that can be easily applied in the field. Some of the factors that help to indicate the presence of a stream include aquatic life and the type of stream bottom.

Some affected parties think that flow would be a better tool than the field checklist to tell the difference between a stream and a drainage ditch. Basing stream determinations on flow would require a hydrologic model of the entire watershed. Even though models require a lot of effort and expertise to develop, they are not very accurate at predicting the presence of a stream. In fact, hydrologic models could determine that there is a stream where one is not present.

DWQ held two training sessions on the riparian area rule for 200 staff members of local governments and agencies in April. DWQ will be offering the same training to consultants, foresters and other interested parties in mid-May. About 400 people are planning to attend these sessions.

The people that attend our April and May Riparian Area Training Sessions will be qualified to determine the presence of a stream without obtaining the approval of DWQ.

Some of the agencies that DWQ has been coordinating with to implement this rule include:

Numerous issues have been coordinated as a result of these meetings. For example, DWQ and the Division of Land Resources (DLR) agreed that cutting trees to maintain dam safety is allowed as long as DLR's maintenance guidelines are followed (these are listed in the Riparian Area Guidance Manual).

Staff have made numerous presentations on the rule at the request of local governments. Many local governments in the basin see this rule as an opportunity to increase their amenities such as greenways, protect their streams and reduce the need for flood control projects. Local governments are interested in seeing how they can work with the state to implement this rule if it becomes effective as a permanent rule.