Short story; I bought a building lot in Alamance County in a developed neighborhood. The neighborhood was built by DR Horton a few years ago, but a few lots were never built and I bought one. We used the listing agent as a dual agent for the purchase, and she provided us with a property survey. The survey showed a 20' drainage easement towards the rear of the lot. With that easement, and the other side and front setbacks the building area was pretty tight. We purchased the lot in cash, and now we are going through the HOA approval process to begin construction. The neighbor to our lot, who is also on the HOA board, is adamant that the "drainage easement" is actually a perennial stream as designated by NCDENR and requires a much larger buffer. He says he was told by DR Horton when he built that his construction could come no closer than 30' to the stream centerline. If that is true, the lot is un-buildable. So I have a few initial questions;

1) How do I find out for sure? I have the survey and I have also contacted the County inspections and planning department and they are apparently "digging". I'm a little bit hesitant to just go calling random people at NCDENR since I don't know where that might lead.

2) Assuming the 20' drainage easement on the survey is correct, am I safe to build? My main concern is if NCDENR does decide to classify the stream either during or after construction, and my home is in violation...what would I have to do? Would I be safe since the classification happened after my construction began? I'm mainly concerned about this because there are several houses that border the "stream", although none are as close to it as ours. If they were all told they had to stay 30' away, and they see us building 10-15' away, maybe they get pissed or worried and get NCDENR on-site to check our construction?

3) Assuming the neighbor is correct and I end up verifying the "stream" requires a large buffer...who do I go after? The real estate agent who sold me the property and had it listed as a "building lot" and provided me with a survey showing the allowable building area? The surveyor who prepared a drawing that didn't include accurate information? Where to begin?

11/25/2015 7:40:31 AM

What does the stream look like? Does it look streamy with year-round flow? Or is it a rip-rap line ditch?

That won't necessarily give you an answer because stream designation can be pretty controversial. That being said the NCLeg passed a bill this year that, I believe, allows destruction of a certain number of linear feet of buffer before permitting (and mitigation) is required. I'll see if I can find that bill for more info.

I'm not sure if residential is significantly different but the state often does allow development of buffer so long as the construction goes through the permitting process (FYI I believe it the division of water resources that is responsible for buffers and stream designations)

Also check out the Alamance County online GIS tool. Navigate to your parcel and turn the hydrology layer on. If it shows up as a stream then I'd say there is a pretty damn good chance it would be designated as a stream. If it's not on the map, well, there is still a chance it could be designated.

[Edited on November 25, 2015 at 8:32 AM. Reason : GIS]

11/25/2015 8:28:04 AM

It doesn't look like much. It's not rip-rap lined or anything, but it is very small. I doubt it has a continuous flow throughout the entire year. When we were in the buying process we were in the middle of 2-weeks straight of rain and I went out a few time to look at it. There was a decent amount of water in it then, but nothing major. The channel itself probably averages about 1-2' in width...you can easily step over it almost everywhere.

I have looked online at Alamance County GIS and it shows a blue line which appears to indicate a stream, however, they don't have any information there as to what type of stream and any buffer requirements. The NCDENR website doesn't show a blue line at all, which would seem to indicate that they have not designated it.

11/25/2015 9:02:12 AM

1) You have to see if the stream appears on either a USGS or USDA soil survey map. If it does, it's subject to the JOrdan Buffer Rules. And the buffer would be 50' from the edge of the bank of the stream. Google "Jordan Buffer Rule" for the actual rule, and you can find other information on DEQ websites. If it does appear on one of these maps, but you don't think it's an intermittent or perrenial stream, you'd have to get somebody who's taken a NC stream class to come and look at it and make a determination. I think someone from the county should do it, or somebody from NCDEQ (they're no longer NCDENR as of a few months ago). You'd want to do this before you did any construction, or there is the possibility that you could hit with a hefty fine.

11/25/2015 11:28:18 AM

I got the following response from the Alamance County planning department when asking pretty much the exact same questions as in the OP;

"I have looked into the records that we have for ******** and I believe that there are no stream buffer requirements on your property. The plat for the ******** subdivision shows a drain, or drainage ditch, running through eight lots, including yours, six of which have already been built on. The drain is not marked as a stream with buffers. The NC Surface Water Classification map, created by the (former) NC Department of Environment and Natural Resources, also shows no stream. Our GIS map does show an intermittent stream in the location of the drain, however, the plat and state agency information have legal authority in this situation. Our GIS map is for information purposes and is not legally binding. The county, as the enforcing agency for Swepsonville's subdivision ordinance, has no ability to enforce private drainage easements. The regulations in force at the time of the permit will apply. Most of the time any new regulation will not affect existing conditions."

Sounds like I'm pretty safe, right? Should I do additional digging before moving forward?

11/25/2015 11:45:33 AM

The USGS map and USDA soil survey maps are the ones that matter. see section 4c i & ii of this rule:

http://ncrules.state.nc.us/ncac/title%2015a%20-%20environmental%20quality/chapter%2002%20-%20environmental%20management/subchapter%20b/15a%20ncac%2002b%20.0267.pdf.

I'm not sure why he's referencing the NC Surface Water Classification map, unless they used the USGS and USDA maps to create that map and it was approved by the appropriate Commissions (see section iii). If it isn't on those two maps, you're golden.

11/25/2015 1:41:04 PM

PM sent. From what I can tell, I'm seeing a blue line on the USGS map, but nothing on the USDA...if I'm looking in all the right places.

11/25/2015 3:00:58 PM

This is something you may want to get an ATTNY for before spending a significant amount of money.

11/25/2015 3:31:24 PM