20170799 Ver 1_WQC Decision_20171108

Burdette, Jennifer a
From: Shaw, Denise <[e-mail]>
Sent: Friday, December 08, 2017 3:41 PM
To: [e-mail]; [e-mail]; Burdette, Jennifer a;
Higgins, Karen; [e-mail]; [e-mail]; Zimmerman, Jay; Thomas,
Lois; Weaver, Adriene
Cc: Lucasse, Mary; Shaw, Denise
Subject: [External] EMC Final Decision Granting Variance with Conditions for the City of
Durham
Attachments: 2017-12-08_Ltr_EMC Major Variance w Conditions for City of Durham.pdf;
2017-12-08_EMC Decision Major Variance w Conditions for City of Durham.pdf
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Attached is an electronic copy of the Cover Letter and EMC Decision granting Major Variance with Conditions which our
office forwarded by US Mail today. Please let Mary Lucasse know if you have any difficulty opening the
attachments. Thank you.

STATE OF NORTH CAROLINA REPLY TO:
JOSH STEIN DEPARTMENT OF JUSTICE ENNI
ENVIRONMENTAL
DAUBER
ATTORNEY GENERAL PO BOX 629 E
ENNTALTAL DIVISION
RALEIGH, NORTH CAROLINA 27602 JHA(919)7 N -6944 OV
(919}716-6944
December 8, 2017
Donald Greeley, Director Certified Mail/Return Receipt Requested
City of Durham — Dep't of Water and Don. greeley_gdurhamne.gov
Management
101 City Hall Plaza
Durham, NC 27701
Re: Final Decision Granting Variance with Conditions
Dear Mr. Greeley:
At its November 8, 2017 meeting, the Water Quality Committee of the Environmental
Management Commission granted the City of Durham's request for a variance with conditions.
Attached is a copy of the Final Agency Decision. If for some reason you do not agree with the
teens of the variance as issued, you have the right to appeal the Commission's decision by filing
a petition for judicial review in the superior court of Durham County within thirty days after
receiving the order pursuant to the procedure set forth in the North Carolina General Statutes §
15013-45. A copy of the judicial review petition must be served on the Commission's agent for
service of process at the following address:
William F. Lane, General Counsel
Dept. of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601
If you choose to file a petition far judicial review, I request that you also serve a copy of
the petition for judicial review on me at the address listed in the letterhead. If you have any
questions, please feel free to contact me.
Sincerely,
?J=nnieWilhelm Hauser
Special Deputy Attorney General and
Counsel for the Environmental Management Commission

City of Durham
Page 2
cc: w/ encl.: Todd Preuninger, electronically
J.D. Solomon, Chair of the Commission, electronically
Dr. Albert Rubin, Chair of the WQC, electronically
Jay Zimmerman, Director, DWR electronically
Jennifer Burdette, Senior Environmental Specialist electronically
Karen Higgins, Supervisor, electronically
Lois Thomas, recording secretary for Commission, electronically
Adriene Weaver, Environmental Specialist, electronically
WWW.NCDOJ.GOV 114 W. EDENTON STREET, RALEIGH, NC 27603 919.716.6600
P. O. Box 629, RALEIGH, NC 27602-0629

STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE MATTER OF:
PETITION FOR VARIANCE
FROM
15A NCAC 213.0233
NEUSE RIVER RIPARIAN
AREA
PROTECTION RULES BY
CITY OF DURHAM
BEFORE THE
ENVIRONMENTAL MANAGEMENT
COMMISSION
DECISION GRANTING MAJOR
VARIANCE WITH CONDITIONS
On May 11, 2000 the North Carolina Environmental Management Commission
(Commission) delegated to the Commission's Water Quality Committee all decisions relating to
requests for variances from the riparian buffer. This matter carne before the Water Quality
Committee at its meeting on November 8, 2017 in Raleigh, North Carolina upon the City of
Durham's (the Applicant's) request for approval of a major variance from the Neuse River
Riparian Area Protection Rules pursuant to 15A NCAC 02B .0233 to allow the expansion of its
Mist Lake Facility located at 1600 Mist Lake Drive in Durham, NC (the Site). The proposed
development would impact 13,083 square feet of Zone 1 of the riparian buffer and 11,852 feet of
Zone 2. The Applicant has agreed to provide mitigation for the proposed impacts and to treat
stormwater runoff from the Site.
Based on the information provided, the Division of Water Resources (DWR) supported the
request for a major variance. Jennifer Burdette, 401 /Buffer Coordinator in the 401 & Buffer
Permitting Branch of DWR presented the request for a major variance to the Water Quality
Committee.

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Upon consideration of the record documents, the request and the staff recommendation,
and based upon the approval of the Water Quality Committee, the Commission hereby makes the
following:
FINDING OF FACTS
A. The Applicant owns the Site at 1600 Mist Lake Drive in Durham NC.
B. Some of the property was purchased prior to implementation of the Neuse River
Riparian Area Protection Rules.
C. The purpose of the project is to consolidate the five divisions of the City of
Durham's Department of Water Management (DWM) by constructing an administration building
and a warehouse, shops, and laydown area to store equipment when not in use or undergoing repair.
There is also need for emergency vehicles to have access to the Site. To provide for these buildings
and to provide adequate space for access and for parking and facilities to accommodate the entire
DWM, a minimum of 21 acres of buildable land is necessary.
D. The southwestern portion of the site is relatively narrow and constrained by
setbacks along the Interstate and wetlands to the north. An unnamed tributary to Goose Creek and
its associated buffer bisect the property in this area and cannot be avoided.
E. If the City cannot impact the buffer and use the existing property to consolidate the
five divisions then the initial investment on the purchase of the property will be lost, additional
property will need to be purchased to relieve the additional space requirements needed at the
remote facilities, and the property cannot be used to consolidate the multiple in one location.
F. The proposed development would impact 13,083 square feet of Zone 1 of the
riparian buffer and 11,852 feet of Zone 2.

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F. The Applicant's plan for mitigation includes purchasing 57,027 square feet of
buffer credits, and the Applicant submitted a Statement of Buffer Mitigation Credit Availability
from the North Fork Little River Nutrient Offset and Buffer Bank dated July 27, 2017, indicating
that it has available to the Applicant the requisite amount of buffer credits.
G. The Applicant has proposed to implement a stormwater management pian to treat
stormwater runoff from the facility using four underground sand filters in conjunction with two
underground detention systems. Stormwater will be released at non-erosive flows in the buffer
and adjacent wetlands.
H. Within 30 days of the approval letter date and before any impacts to the Site occur,
the Applicant shall submit a copy of the stormwater management pian, with proof of the City of
Durham's approval, to the DWR 401& Buffer Permitting Branch.
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,
CONCLUSIONS OF LAW
A. The Site owned by the Applicant is subject to the Neuse River Riparian Area
Protection Rule, 15A NCAC 2B .0233.
B. The Environmental Management Commission is authorized to issue a final decision
granting the variance including riparian buffer mitigation conditions pursuant to a request under
15A NCAC 2B .0233 upon a finding that:
(1) There are practical difficulties or unnecessary hardships;
(2) The variance is in harmony with the general purpose and intent of
the buffer protection and preserves its spirit; and
(3) In granting the variance, the public safety and welfare have been
assured and substantial justice has been done.

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C. The Commission affirmatively concludes that the Applicant has demonstrated the
following:
First Factor: There are practical difficulties or unnecessary hardships that prevent
compliance with the strict letter of the riparian buffer protection requirements.
In its assessment of whether the Applicant had made a showing of "practical difficulties
or unnecessary hardships," the Commission considered the following factors.
A. If the applicant complies with the provisions of this Rule, helshe can secure
no reasonable return from, nor make reasonable use of, his/her property.
Merely proving that the variance would permit a greater profit from the
property shall not be considered adequate justification for a variance.
Moreover, the Division or delegated local authority shall consider whether
the variance is the minimum possible deviation from the terms of this Rule
that shall make reasonable use of the property possible.
B. The hardship results from application of this Rule to the property rather
than from other factors such as deed restrictions or other hardship.
C. The hardship is due to the physical nature of the applicant's property, such
as its size, shape, or topography, which is different from that of neighboring
property.
D. The applicant did not cause the hardship by knowingly or unknowingly
violating this Rule.
E. The applicant did not purchase the property after the effective date of this
Rule, and then requesting an appeal.
F. The hardship is unique to the applicant's property, rather than the result of
conditions that are widespread. If other properties are equally subject to
the hardship created in the restriction, then granting a variance would be a
special privilege denied to others, and would not promote equal justice;
15A NCAC 02B.0233 (9)(a)(i)(A) through (F).
The Commission affirmatively concludes that the Applicant has made the required showing
that there are practical difficulties preventing compliance with the strict letter of the riparian buffer

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protection requirements. Specifically, the Applicant cannot make reasonable use of the property
for a city maintenance facility without creating an impact on Zones 1 and 2 of the riparian buffer.
A. The Applicant is not currently in violation of the Neuse River Riparian Area
Protection Rule; however, compliance with the Rule would prevent the Applicant from making
reasonable use of the property.
B. The hardship results from the application of the Rule to this lot and the location of
the stream on the property.
C. To minimize the impact to the buffer, the Applicant redesigned the layout of the
Site to avoid impacts to the forested wetlands and stream channel.
Second Factor: The variance is in harmony with the general purpose and intent of the
State's riparian buffer protection requirements and preserves its spirit.
The Commission affirmatively concludes that the Applicant has demonstrated it meets the
second factor required under 15A NCAC 02B .0233(9)(a)(ii). Specifically, the purpose of the
riparian buffer rules is to protect existing riparian buffer areas. However, the Applicant cannot
make reasonable use of the property without impacting the protected riparian buffer. The
Applicant has agreed to purchase 57,027 buffer mitigation credits to offset the buffer impact and
to treat stormwater from the Site. Granting the requested variance with the conditions specified
below will ensure the proposed development will be in harmony with the general purpose and
intent of the riparian buffer protection rules and preserve their spirit.
Third Factor: In granting the variance, the public safety and welfare have been assured,
water quality has been protected and substantial justice has been done.
The Commission affirmatively concludes that the Applicant has demonstrated it meets the
third factor required under 15A NCAC 02B .0233(9)(a)(iii). Specifically, in granting the variance

in
subject to the conditions that the Applicant (1) purchase 57,027 buffer mitigation credits and (2)
treat all stormwater from the Site by (a) using four underground sand filters in conjunction with
two underground detention systems and (b) releasing stormwater at non-erosive flows into the
buffer and adjacent wetlands, public safety, and welfare have been assured, water quality has been
protected, and substantial justice has been done.
i 1 "
Based on the Findings of Fact and Conclusions of Law set forth above, IT IS HEREBY
ORDERED that the request for the variance is GRANTED pursuant to 15A NCAC 2B .0233(9)(c)
as a major variance to the Neuse River Riparian Area Protection Rule with the following
conditions:
1. This major variance shall apply only if the US Army Corps of Engineers
and NCDEQ approve impacts to the stream associated with the subject buffer.
2. Mitigation. The Applicant shall provide mitigation for the proposed
impacts by purchasing 57,027 square feet of buffer credits from the North Fork
Little River Nutrient Offset & Buffer Bank or from an environmental mitigation
bank approved by the Division of Water Resources.
3. Stormwater Management Plan. The Applicant has proposed to implement
a stormwater management plan to treat stormwater runoff from the facility using
four underground sand filters in conjunction with two underground detention
systems. Stormwater will be released at non-erosive flows in the buffer and
adjacent wetlands.
4. Within 30 days of the approval letter date and before any impacts to the Site
occur, the Applicant shall submit a copy of the stormwater management plan
(SMP), with proof of the City of Durham's approval of the plan, to the DWR 401 &
Buffer Permitting Branch.
4. The SMP may not be modified without prior written authorization from the
Division. To request a modification, a copy of the approval letter and
plans/calculations of the modified SMP shall be submitted to the Division's

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401 &Buffer Permitting Branch for approval prior to the commencement of the
modifications.
This is the ��day of December, 2017.
ENVIRONMENTAL MANAGEMENT COMMISSION
J. D. Solomon, Chairman

0
CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing Decision Granting Major
Variance upon the Applicant and the Division of Water Resources in the manner described
below as follows:
Donald Greeley, Director Certified MaillReturn Receipt Requested
City of Durham — Dep't of Water and Doti.-reeley(a),,durhamnc.gov
Management
101 City Hall PIaza
Durham, NC 27701
Todd Preuninger Todd. preuningei a,timnlons.com
Timmons Group
Jennifer A. Burdette E-mail: Jennifer.Burdette(r�r�,nedenngov
401/Buffer Coordinator
Division of Water Resources
1617 Mail Service Center
Karen Higgins, Supervisor E-mail: Karen.HigginsaaQ,ncderubov
401 & Buffer Pennitting Unit
Division of Water Resources
1650 Mail Service Center
Raleigh NC 27699-1650
This is the day of December; 2017.
JOSH STEIN
Attorney General
Jennie Wilhelm Hauser
Special Deputy Attorney General
P. O. Box 629
Raleigh, N. C. 27602