HomeMy WebLinkAbout20110343 Ver 1_Application Returned_20110608 ????
NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Dee Freeman
Governor Director
Secretary
June 8, 2011
CERTIFIED MAIL: RETURN RECEIPT REQUESTED
7011 01 10 0000 9947 6848
Thomas W. Kalb
PO Box 145
Greensburg IN 47240
DWQ Project # 11-0343
Pamlico County
Subject Property: lot 77, Whittaker Point Road
Whittaker Creek [NEU10 27-130; SA, HQW, NSW]
Dear Mr. Kalb:
On April 11, 2011, the Division of Water Quality (DWQ) received your General Major
Variance application for impacts to protected Neuse River riparian buffers on the
subject property.
By guidance from the Attorney General's Office on the interpretation of the Neuse
Buffer Rule, you must meet the hardships outlined in 15A NCAC 02B. 0233(9) (a) in order
to qualify for a variance from the Neuse River Buffer Rules. You have not met the
hardship described in 15A NCAC 02B. 0233(9) (a) (i) (A) in that your lot is developable
without buffer impacts, merely proving that the variance would permit a greater profit
from the property shall not be considered adequate justification for a variance. You
have not met the hardship described in 15A NCAC 02B. 0233(9) (a) (i) (C) in that there is
nothing about the physical nature of the property (size, shape or topography) which is
different from that of neighboring properties. And you have not met the hardship
described in 15A NCAC 02B. 0233(9) (a) (i) (F) in that the conditions of this site are
widespread throughout the subdivision and both adjoining properties and new
construction located within the neighborhood have built in compliance with the Neuse
River Buffer Rules and therefore granting a variance would be a special privilege
denied to others, and would not promote equal justice.
You have not met the hardships described in 15A NCAC 02B. 0233(9) (a) (i), therefore we
are returning your application.
You can contest this decision as provided in Articles 3 and 4 of G.S. 150B. To contest the
DWQ's decision you must file a petition for an administrative hearing. You may obtain
the petition form from the office of Administrative hearings. You must file the petition
with the office of Administrative Hearings within sixty (60) days of receipt of this notice.
A petition is considered filed when it is received in the office of Administrative Hearings
during normal office hours. The Office of Administrative Hearings accepts filings
North Carolina Division of Water Quality Internet: www.newaterguality.oro
943 Washington Square Mall Phone: 252-946-6481
Washington, NC 27889 FAX 252-946-9215 One
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Aaturially
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Monday through Friday between the hours of 8:00am and 5:00pm, except for official
state holidays. The original and one (1) copy of the petition must be filed with the
Office of Administrative Hearings.
The petition may be faxed-provided the original and one copy of the document is
received by the Office of Administrative Hearings within five (5) business days following
the faxed transmission.
The mailing address for the Office of Administrative Hearings is:
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone: (919)-733-2698, Facsimile: (919)-733-3478
A copy of the petition must also be served on DENR as follows:
Ms. Mary Penny Thompson, General Counsel
Department of Environment and Natural Resources
1601 Mail Service Center
Raleigh, NC 27699-1601
Please be advised, DWQ is pursuing new Consolidated Buffer Rules. DWQ is working on
incorporating new and different options in the Consolidated Buffer Rules to allow for
more flexibility for lots platted prior to the buffer rules. DWQ will conduct public hearings
throughout the state during 2011 and anticipates the rules will become effective in
2012. These Rules, if adopted, may provide options not currently available to you under
NCAC 2B .0233, Neuse River Buffer Rules.
In addition, during a site visit performed on June 7, 2011, it was documented that there
were unauthorized impacts to the riparian buffer from the removal of understory
vegetation. Zone 1 of the riparian buffer must remain undisturbed, while Zone 2 may be
managed vegetation or lawn grasses. The only vegetation maintenance activities
allowed in Zone 1 are hand pruning of vegetation. You may utilize this pruning
allowance to help provide a view of the water. Also, the stand of Phragmities
(Common Reed) located on landward edge of the coastal marsh are considered
invasive and may be cut or treated (information enclosed). Likewise, you are allowed
by Division of Coastal Management to mow or cut coastal wetlands under the 15A
NCAC 07H.0205 guidelines (enclosed). However, any further cutting of the vegetation
in Zone 1 will result in a violation from DWQ.
Please be aware that you have no variance or authorization under the Neuse Buffer
Rules for this activity and any work done within waters or buffer of the state would be a
violation of North Carolina General Statutes and Administrative Code. Please be
advised, these violations and any future violations are subject to a civil penalty
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assessment of up to $25,000.00 per day for each violation. Please call Amy Adams at
252-948-3917 or Amy Chapman at 919-807-6400 if you have any questions or concerns.
Sincerely,
I Hodge, Regional Supervisor
601?.rface Water Protection Section
Division of Water Quality
Washington Regional Office
Enclosures: General Major Variance FAQ Sheet
Pruning Clarification Memo
DCM Coastal Wetland Guidelines
Phragmite information
Cc(w/o t enclosures):
my Chapman, WBSCP Unit Archdale Office
WaRO File Copy
Skip Lee, Pamlico County Planning Dept.
DCM, Roy Brownlow, Acting District Manager, Morehead City Office
Filename:11-0343GMV_Kalb_ReturnApp/aa