20190289 Ver 1_Approval Letter_20191217

ROY COOPER
Governor
MICHAEL S. REGAN
Secretary
LINDA CULPEPPER
Director
Publix Super Markets Inc
Attn: Randy Barber
501 North Galloway Rd
Lakeland, FL 33815
NORTH CAROLINA
Environmental Quality
December 17, 2019
D W R # 20190289
Guilford County
Subject: Approval of Individual 401 Water Quality Certification with Additional Conditions
Publix Distribution Center
USACE Action ID. No. SAW-2018-00240
Dear Mr. Barber:
Attached hereto is a copy of Certification No. WQC004211 issued to Randy Barber and Publix Super
Markets Inc, dated December 17, 2019. Please note that you should get any other federal, state or local
permits before proceeding with the subject project, including those required by (but not limited to)
Sediment and Erosion Control, Non -Discharge, and Water Supply Watershed regulations.
This approval and its conditions are final and binding unless contested. This Certification can be
contested as provided in Articles 3 and 4 of General Statute 150B by filing a written petition for an
administrative hearing to the Office of Administrative Hearings (hereby known as OAH) within sixty (60)
calendar days.
A petition form may be obtained from the OAH at http://www.ncoah.com/ or by calling the OAH Clerk's
Office at [phone] for information. A petition is considered filed when the original and one (1)
copy along with any applicable OAH filing fee is received in the OAH during normal office hours (Monday
through Friday between 8:00am and 5:00pm, excluding official state holidays).
The petition may be faxed to the OAH at [phone], provided the original and one copy of the
petition along with any applicable OAH filing fee is received by the OAH within five (5) business days
following the faxed transmission.
Mailing address for the OAH:
North Carolina Department of Environmental Quality I Division of Water Resources
512 North Salisbury Street 1 1617 Mail Service Center I Raleigh, North Carolina 27699-1617
919.707.9000

Publix Distribution Center
DWR Project #20190289
Individual Certification #WQC004211
Page 2 of 9
If sending via US Postal Service: If sending via delivery service (UPS, FedEx, etc):
Office of Administrative Hearings Office of Administrative Hearings
6714 Mail Service Center 1711 New Hope Church Road
Raleigh, NC 27699-6714 Raleigh, NC 27609-6285
One (1) copy of the petition must also be served to DEQ:
William F. Lane, General Counsel
Department of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601
Unless such a petition is filed, this Certification shall be final and binding.
This certification completes the review of the Division under section 401 of the Clean Water Act and 15A
NCAC 02H .0500. Contact Sue Homewood at 336-776-9693 or [e-mail] if you have
any questions or concerns.
Sincerely,
S�
...
12
Mac Haupt, ting Supervisor
401 & Buffer Permitting Branch
Enclosures: Final Decision Granting Variance with Conditions (DWR Project #20190289 v2)
cc: Brian Breissinger, Timmons Group (via email)
David Bailey, USACE Raleigh Regulatory Field Office (via email)
Olivia Munzer, NCWRC (via email)
Todd Bowers, EPA, (via email)
DWR WSRO 401 file
DWR 401 & Buffer Permitting Branch file
Filename: 20190289Publix(G u i Ifo rd)_401_IC.docx

Publix Distribution Center
DWR Project #20190289
Individual Certification #WQC004211
Page 3 of 9
NORTH CAROLINA 401 WATER QUALITY CERTIFICATION
CERTIFICATION #WQC004211 is issued in conformity with the requirements of Section 401, Public Laws
92-500 and 95-217 of the United States and subject to North Carolina's Regulations in 15 NCAC 02H .0500,
to Randy Barber and Publix Super Markets Inc, who have authorization for the impacts listed below, as
described within your application received by the N.C. Division of Water Resources (Division) on March 5,
2019 and subsequent information on May 5, 2019, August 16, 2019, October 7, 2019, December 9, 2019
and December 12, 2019, and by Public Notice issued by the U. S. Army Corps of Engineers and received by
the Division on February 28, 2019.
The State of North Carolina certifies that this activity will not violate the applicable portions of Sections
301, 302, 303, 306, 307 of the Public Laws 92-500 and PL 95-217 if conducted in accordance with the
application, the supporting documentation, and conditions hereinafter set forth.
This approval requires you to follow the conditions listed in the certification below.
Conditions of Certification:
1. The following impacts are hereby approved. No other impacts are approved, including incidental
impacts. [15A NCAC 02H .0506(b) and/or (c))
Type of Impact
Amount Approved (units)
Permanent
Amount Approved (units)
Temporary
Stream
S1-A*
290 (linear feet)
0 (linear feet)
SI-B
687 (linear feet)
0 (linear feet)
Si-C
28 (linear feet)
0 (linear feet)
S2
318 (linear feet)
0 (linear feet)
S3*
204 (linear feet)
0 (linear feet)
53.2*
163 (linear feet)
0 (linear feet)
S4
283 (linear feet)
0 (linear feet)
SS
56 (linear feet)
0 (linear feet)
S6
373 (linear feet)
0 (linear feet)
S7-A*
1479 (linear feet)
0 (linear feet)
S7-B
708 (linear feet)
0 (linear feet)
S7-C
54 (linear feet)
0 (linear feet)
510.2
89 (linear feet)
0 (linear feet)
404/401 Wetlands
W1
142 (square feet)
0 (square feet)
W2
743 (square feet)
0 (square feet)
W2.2
21(square feet)
0 (square feet)
W3-A 1
87 (square feet)
0 (square feet)
W3-B
5035 (square feet) 1
0 (square feet)
W3-C
1297 (square feet) 1
0 (square feet)

Publix Distribution Center
DWR Project #20190289
Individual Certification #WQC004211
Page 4 of 9
W4
1468 (square feet)
0 (square feet)
WS-B
4169 (square feet)
0 (square feet)
W6-A
911 (square feet)
0 (square feet)
W6-B
1370 (square feet)
0 (square feet)
W8
255 (square feet)
0 (square feet)
W9
976 (square feet)
0 (square feet)
W10
285 (square feet)
0 (square feet)
W10.2
85 (square feet)
0 (square feet)
Wll
519 (square feet)
0 (square feet)
W12-A
608 (square feet)
0 (square feet)
W12-B
340 (square feet)
0 (square feet)
W13
5895 (square feet)
0 (square feet)
W14
7167 (square feet)
0 (square feet)
W15
132 (square feet)
0 (square feet)
W16
67 (square feet)
0 (square feet)
W17
87 (square feet)
0 (square feet)
W18-A
280 (square feet)
0 (square feet)
W18-B
203 (square feet)
0 (square feet)
W18-C
164 (square feet)
0 (square feet)
W18-D
822 (square feet)
0 (square feet)
W18-E
1308 (square feet)
0 (square feet)
W19
4935 (square feet)
0 (square feet)
W19.2
3461 (square feet)
0 (square feet)
W19.3
5113 (square feet)
0 (square feet)
Open Waters
W5-A
62719 (square feet)
0 (square feet)
W7 1
142 (square feet)
0 (square feet)
* indicates perennial stream requiring mitigation
2. This approval is for the purpose and design described in your application and as described in the Public
Notice. The plans and specifications for this project are incorporated by reference and are an
enforceable part of the Certification. Any modifications to the project require notification to DWR and
may require an application submittal to DWR with the appropriate fee. [15A NCAC 02H .0501 and
.0502]
Mitigation must be provided for the proposed impacts as specified in the table below. The Division
has received an acceptance letter from the NC Division of Mitigation Services (DMS) to meet this
mitigation requirement. Until the DMS receives and clears your payment, and proof of payment has
been provided to this Office, no impacts specified in this Authorization Certificate shall occur. For
accounting purposes, this Authorization Certificate authorizes payment to the DMS to meet the
following compensatory mitigation requirement [15A NCAC 02H .0506 (b)(6)]:

Publix Distribution Center
DWR Project #20190289
Individual Certification #WQC004211
Page 5 of 9
Compensatory Mitigation Required
River and Sub -basin Number
Stream
2,136 (feet)
Cape Fear (03030002)
Wetland
1.10 (acres)
Cape Fear (03030002)
4. The Permittee shall secure an approved Stormwater Management Plan (SMP) from Guilford County
before any impacts authorized in this certification occur. If the approved SMP, or any future
modification of the SMP, causes the outlet structures of Stormwater Pond A and Stormwater Pond D
to be different from what was submitted to the Division on December 9, 2019 then the modified
SMP shall also be submitted to the Division prior to the commencement of the modifications [15A
NCAC 02B..0506(b)(5)]
5. The Permittee shall implement the Stream Hydrology Monitoring Plan prepared by Timmons Group
and dated November 27, 2019 with the following modification: The Permittee shall collect data
continuously for a minimum period of three (3) years which will begin when the erosion control
permit is formally closed by the appropriate local or state agency which will indicate that the site is
considered stable and in a "post -construction" stormwater condition. The Permittee will notify the
Division within 30 days of start of continuous monitoring.
6. Full Compliance with Final Decision Granting Variance with Conditions (DWR Project #20190289 v2),
issued by the Environmental Management Commission on August 9, 2019 is required. [15A NCAC 02H
.0506(b)(3)]
7. All wetlands, streams, surface waters, and riparian buffers located within 50 feet of the construction
area on the project site shall be clearly marked (example- orange fabric fencing) prior to any land
disturbing activities and must be maintained on the property until the project phase is completed.
[15A NCAC 02H .0506 (b)(2) and (c)(2) and 15A NCAC 02H .0507 (c)]
8. Any final construction plans for this project must include or reference the application and plans
approved by the Division under this authorization letter and certification. The applicant will also be
required to evaluate all acquired permits to assure that they are consistent and all relative impacts
are accounted for and shown on the construction plans. [15A NCAC 02H .0502 (b) and 15A NCAC 02H
.0506 (4)]
9. The proposed project must comply with the Guilford County local water supply ordinance approved
by the N.C. Environmental Management Commission (EMC) as required under the Jordan Lake Water
Supply Watershed: Protection and Maintenance of Riparian Areas (Jordan Buffer Rule) [15A NCAC 02B
.0267]
10. No waste, spoil, solids, or fill of any kind shall occur in wetlands or waters beyond the footprint of the
impacts (including temporary impacts) as authorized under this Certification. [15A NCAC 02H .0501
and .0502]
No removal of vegetation or other impacts of any kind shall occur to state regulated riparian buffers
beyond the footprint of impacts approved in a Buffer Authorization or Variance or as listed as an
exempt activity in the applicable riparian buffer rules. [15A NCAC 02B .0200]

Publix Distribution Center
DWR Project #20190289
Individual Certification #WQC004211
Page 6 of 9
11. All construction activities shall be performed and maintained in full compliance with G.S. Chapter
113A Article 4 (Sediment and Pollution Control Act of 1973).
12. Sediment and erosion control measures shall not be placed in wetlands or waters except within the
footprint of temporary or permanent impacts authorized under this Certification. [15A NCAC 02H
.0501 and .0502]
13. Erosion control matting that incorporates plastic mesh and/or plastic twine shall not be used along
streambanks or within wetlands. [15A NCAC 02B .0201]
14. An NPDES Construction Stormwater Permit (NCGO10000) is required for construction projects that
disturb one (1) or more acres of land. The NCG010000 Permit allows stormwater to be discharged
during land disturbing construction activities as stipulated in the conditions of the permit. If the
project is covered by this permit, full compliance with permit conditions including the erosion &
sedimentation control plan, inspections and maintenance, self -monitoring, record keeping and
reporting requirements is required. [15A NCAC 02H .0506(b)(5) and (c)(5)]
15. All work in or adjacent to streams shall be conducted so that the flowing stream does not come in
contact with the disturbed area. Approved best management practices from the most current version
of the NCSediment and Erosion Control Manual, or the NC DOT Construction and Maintenance
Activities Manual, such as sandbags, rock berms, cofferdams, and other diversion structures shall be
used to minimize excavation in flowing water. [15A NCAC 02H .0506(b)(3) and (c)(3)]
16. Application of fertilizer to establish planted/seeded vegetation within disturbed riparian areas and/or
wetlands shall be conducted at agronomic rates and shall comply with all other Federal, State and
Local regulations. Fertilizer application shall be accomplished in a manner that minimizes the risk of
contact between the fertilizer and surface waters. [15A NCAC 02B .0200 and 15A NCAC 02B .0231]
17. If concrete is used during construction, then all necessary measures shall be taken to prevent direct
contact between uncured or curing concrete and waters of the state. Water that inadvertently
contacts uncured concrete shall not be discharged to waters of the state. [15A NCAC 02B .0200]
18. No temporary impacts are allowed beyond those included in this Certification. All temporary fill and
culverts shall be removed and the impacted area shall be returned to natural conditions within 60
calendar days after the temporary impact is no longer necessary. The impacted areas shall be
restored to original grade, including each stream's original cross sectional dimensions, planform
pattern, and longitudinal bed profile. All temporarily impacted sites shall be restored and stabilized
with native vegetation. [15A NCAC 02H .0506(b)(2) and (c)(2)]
19. All proposed and approved temporary pipes/culverts/rip-rap pads etc. in streams shall be installed as
outlined in the most recent edition of the North Carolina Sediment and Erosion Control Planning and
Design Manual or the North Carolina Surface Mining Manual or the North Carolina Department of
Transportation Best Management Practices for Construction and Maintenance Activities so as not to
restrict stream flow or cause dis-equilibrium during use of this Certification. [15A NCAC 02H
.0506(b)(2) and (c)(2)]

Publix Distribution Center
DWR Project #20190289
Individual Certification #WQC004211
Page 7 of 9
20. Any riprap required for proper culvert placement, stream stabilization, or restoration of temporarily
disturbed areas shall be restricted to the area directly impacted by the approved construction activity.
All riprap shall be buried and/or "keyed in" such that the original stream elevation and streambank
contours are restored and maintained. Placement of riprap or other approved materials shall not
result in de -stabilization of the stream bed or banks upstream or downstream of the area. [15A NCAC
02H .0506(b)(2)]
21. Any rip -rap used for stream or shoreline stabilization shall be of a size and density to prevent
movement by wave, current action, or stream flows and shall consist of clean rock or masonry
material free of debris or toxic pollutants. Rip -rap shall not be installed in the streambed except in
specific areas required for velocity control and to ensure structural integrity of bank stabilization
measures. [15A NCAC 02H .0506(b)(2)]
22. This Certification does not relieve the applicant of the responsibility to obtain all other required
Federal, State, or Local approvals before proceeding with the project, including those required by, but
not limited to Sediment and Erosion Control, Non -Discharge, Water Supply Watershed, and Trout
Buffer regulations.
23. All mechanized equipment operated near surface waters shall be inspected and maintained regularly
to prevent contamination of surface waters from fuels, lubricants, hydraulic fluids, or other toxic
materials. Construction shall be staged in order to minimize the exposure of equipment to surface
waters to the maximum extent practicable. Fueling, lubrication and general equipment maintenance
shall not take place within 50 feet of a waterbody or wetlands to prevent contamination by fuels and
oils. [15A NCAC 02H .0506(b)(3) and (c)(3) and 15A NCAC 026 .0211(12)]
24. Heavy equipment working in wetlands shall be placed on mats or other measures shall be taken to
minimize soil disturbance. [15A NCAC 02H .0506(b)(3) and (c)(3)]
25. In accordance with 143-215.85(b), the permittee shall report to the Winston Salem Regional Office at
[phone] (after hours and on weekends call 800-858-0368) any petroleum spill of 25 gallons or
more; any spill regardless of amount that causes a sheen on surface waters; any petroleum spill
regardless of amount occurring within 100 feet of surface waters; and any petroleum spill less than
25 gallons that cannot be cleaned up within 24 hours.
26. Randy Barber and Publix Super Markets Inc shall conduct construction activities in a manner
consistent with State water quality standards (including any requirements resulting from compliance
with section 303(d) of the Clean Water Act) and any other appropriate requirements of State and
Federal law. [15A NCAC 02B .0200] If the Division determines that such standards or laws are not
being met (including the failure to sustain a designated or achieved use) or that State or federal law is
being violated, or that further conditions are necessary to assure compliance, the Division may
reevaluate and modify this Certification. Before modifying the Certification, the Division shall notify
Randy Barber and Publix Super Markets Inc and the U.S. Army Corps of Engineers, provide public
notice in accordance with 15A NCAC 02H .0503 and provide opportunity for public hearing in
accordance with 15A NCAC 02H .0504. Any new or revised conditions shall be provided to Randy
Barber and Publix Super Markets Inc in writing, shall be provided to the U.S. Army Corps of Engineers

Publix Distribution Center
DWR Project #20190289
Individual Certification #WQ0004211
Page 8 of 9
for reference in any Permit issued pursuant to Section 404 of the Clean Water Act, and shall also
become conditions of the 404 Permit for the project.
27. Upon completion of all permitted impacts included within the approval and any subsequent
modifications, the applicant shall be required to return a certificate of completion (available on the
DWR website https://edocs.deu.nc.gov/Forms/Certificate-of-Completion). [35A NCAC 02H .0502(f)]
28. If the property or project is sold or transferred, the new Permittee shall be given a copy of this
Certification (and written authorization if applicable) and is responsible for complying with all
conditions. [15A NCAC 02H .0501 and .0502]
29. This Certification neither grants nor affirms any property right, license, or privilege in any waters, or
any right of use in any waters. This Certification does not authorize any person to interfere with the
riparian rights, littoral rights, or water use rights of any other person and this Certification does not
create any prescriptive right or any right of priority regarding any usage of water. This Certification
shall not be interposed as a defense in any action respecting the determination of riparian or littoral
rights or other rights to water use. No consumptive user is deemed by virtue of this Certification to
possess any prescriptive or other right of priority with respect to any other consumptive user
regardless of the quantity of the withdrawal or the date on which the withdrawal was initiated or
expanded.
30. This certification grants permission to the director, an authorized representative of the Director, or
DENR staff, upon the presentation of proper credentials, to enter the property during normal business
hours. [15A NCAC 02H .0502(e)]
31. Non-compliance with or violation of the conditions herein set forth by a specific project may result in
revocation of this General Certification for the project and may also result in criminal and/or civil
penalties.
32. The permittee shall report to the Winston Salem Regional Office at [phone] any noncompliance
with this certification, any violation of stream or wetland standards [15A NCAC 02B .0200] including
but not limited to sediment impacts, and any violation of state regulated riparian buffer rules [15A
NCAC 02B .0200]. Information shall be provided orally within 24 hours (or the next business day if a
weekend or holiday) from the time the applicant became aware of the circumstances. A written
submission shall also be provided within 5 business days of the time the applicant becomes aware of
the circumstances. The written submission shall contain a description of the noncompliance, and its
causes; the period of noncompliance, including exact dates and times, if the noncompliance has not
been corrected, the anticipated time compliance is expected to continue; and steps taken or planned
to reduce, eliminate, and prevent reoccurrence of the noncompliance. The Division may waive the
written submission requirement on a case -by -case basis.

Publix Distribution Center
DWR Project #20190289
Individual Certification #WQC004211
Page 9 of 9
This approval to proceed with your proposed impacts or to conduct impacts to waters as depicted in
your application shall expire upon expiration of the 404 Permit. The conditions in effect on the date of
issuance shall remain in effect for the life of the project, regardless of the expiration date of this
Certification. [15A NCAC 02H .0507(d)(2) and 15A NCAC 02H .0506j
This the 171^ day of December 2019
Mac Haupt, Acting Supervisor
401 & Buffer Permitting Branch
SLH
WQC004211

REPLY To:
STATE OF NORTH CAROLINA PHILLIP T. REYNOLDS
JOSH STEIN DEPARTMENT OF JUSTICE ENVIRONMENTAL DIVISION
ATTORNEY GENERAL prevnolds(cDncdoi.aov
[phone]
August 9, 2019
Michael C. Thelen, Esq.
Womble Bond Dickinson (US) LLP Certified Mail/Return ReceiptReauested
555 Fayetteville Street, Suite 1100 Receipt #: 7002 3150 00001312 7192
Raleigh, NC 27601
Re: Final Decision Granting Variance with Conditions
Dear Mr. Thelen:
At its July 10, 2019 meeting, the Water Quality Committee of the Environmental
Management Commission granted Public Super Market Inc.'s request for a variance with
conditions. As counsel for Publix Super Markets Inc. for this matter, I am serving you, by
agreement, with the Commission's Final Agency Decision (enclosed). According to North
Carolina General Statutes § 15013-45, judicial review of the Committee's decision may be sought
in Superior Court of Guilford County by filing a petition within 30 days of receipt of the written
copy of the Final Agency Decision. A copy of the judicial review petition must also 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 for 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.
Sincerely,
Phillip T. Reynolds
Special Deputy Attorney General and
Counsel for the Environmental Management Commission
W W W.NCDOJ.GOV 114 W. EDENTON STREET, RALEIGH, NC 27603 919.716.6600
P. O. Box 629, RALEIGH, NC 27602

EMC Final Agency Decision
re: Publix Super Markets Inc.
August 9, 2019
Page 2
cc: Dr. A. Stanley Meiburg, Chair, EMC (electronically)
Marion Deerhake, Chair, WQC (electronically)
Linda Culpepper, Director, DWR (electronically)
Lois Thomas -Spence, Recording Clerk, EMC (electronically)
Karen Higgins, DWR (electronically)
Sue Homewood, DWR (electronically)
WWW.NCDOJ.GOV 114 W. EDENTON STREET, RALEIGH, NC 27603 919.716.6600
P. O. Box 629, RALEIGH, NC 27602

STATE OF NORTH CAROLINA BEFORE THE
ENVIRONMENTAL MANAGEMENT
COUNTY OF WAKE COMMISSION
IN THE MATTER OF: )
}
PETITION FOR VARIANCE FROM } DECISION GRANTING MAJOR
15A NCAC 0213 .0267 ) VARIANCE WITH CONDITIONS
JORDAN LAKE RIPARIAN AREA )
PROTECTION RULES BY )
PUBLIX SUPER MARKETS INC. )
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 came before the Water Quality
Committee at its meeting on July 10, 2019 in Raleigh, North Carolina upon the application of
Publix Super Markets Inc. (the Applicant) requesting approval of a major variance from the Jordan
Lake Riparian Area Protection Rule pursuant to 15A NCAC 02B .0267. The variance request
seeks to allow for the establishment and construction of a corporate campus and grocery store
distribution center within Zone 1 and Zone 2 of the buffer at 311 Birch Creek Road in
McLeansville, North Carolina (the Site). The proposed project will impact 54,019 square feet of
buffer Zone 1 and 39,616 square feet of buffer Zone 2. The Applicant has agreed to provide
mitigation for the proposed impacts by purchasing 221,481 buffer credits from the Wildlands
Holdings UT to Pine Hill Branch Nutrient Offset & Buffer Mitigation Bank and the Wildlands
Holdings South Fork Nutrient Offset & Buffer Mitigation Bank.
Guildford County has been delegated authority to administer the Jordan Lake Riparian
Area Protection Rules. Pursuant to 15A NCAC 02B .0267(12) and Guilford County Development

Ordinance Sections 7-1.9 and -1.12, the Guildford County Board of Commissioners prepared
preliminary findings on this major variance request on April 30, 2019.
Based on the information provided by the Applicant and by Guilford County, the Division
of Water Resources (DWR) supported the request for a major variance. Sue Homewood, 401 &
Buffer Permitting Branch of DWR, presented the request for a major variance to the Water Quality
Committee.
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
1. The Applicant owns the Site at 311 Birch Creek Road in McLeansville, NC 27301,
Tax Parcel Number 117416, which consists of approximately 338.69 acres.
2. The Applicant intends to construct a corporate campus and distribution center,
along with associated facilities and parking for associates and employees.
3. The matter was first heard by the Guildford County Planning Board at its meeting
on April 10, 2019, which unanimously voted to recommend that the variance be granted. Based on
the Planning Board's recommendation, the matter was then presented to the Guilford County
Board of Commissioners at its April 30, 2019 meeting. After considering the matter, the Guilford
County Board of Commissioner also voted to recommend that the variance be granted.
4. Among its findings, Guilford County determined that the proposed use of the Site
requires significant area to house the various facilities and parking pad. (Finding of Fact 13,
2

Guilford County Findings for Recommendation to Grant Major Stormwater Buffer Variance, page
6 of 12).
5. Guilford County further determined that the proposed use required the project to be
well-designed and well-managed, and that, due to safety requirements, the design necessitated the
separation of the associate parking areas and associate pedestrian access area from all commercial
vehicle traffic movement. (Finding of Fact 14, Guilford County Findings for Recommendation to
Grant Major Stormwater Buffer Variance, pages 6-7 of 12).
6. Guilford County also found that the evidence presented demonstrated that the
proposed use is compliant with the buffer rules in all but one area of the Site. The area impacted
by the proposed project is a limited section of stream "S 1," on the western edge of the Site, which
was found to be necessary. (Finding of Fact 15, Guilford County Findings for Recommendation
to Grant Major Stormwater Buffer Variance, page 7 of 12).
7. The proposed project will impact 54,019 square feet of buffer Zone 1 and 39,616
square feet of buffer Zone 2.
8. The Applicant has agreed to provide mitigation for the impacts by purchasing
221,481 buffer credits from the Wildlands Holdings UT to Pine Hill Branch Nutrient Offset &
Buffer Mitigation Bank and the Wildlands Holdings South Fork Nutrient Offset & Buffer
Mitigation Bank.
Based upon the foregoing Findings of Fact and the record before it, the Environmental
Management Commission makes the following:
3

CONCLUSIONS OF LAW
1. The Site owned by Publix Super Markets Inc. is subject to the Jordan Lake Riparian
Area Protection Rule, 15A NCAC 2B .0267.
2. The purpose of Rule 15A NCAC 2B .0267 is to protect and preserve existing
riparian buffers and to maintain their nutrient removal functions in the entire Jordan Lake
watershed.
3. 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 .0267 upon 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 requirements and preserves its spirit; and
(3) In granting the variance, the public safety and welfare have been assured, water
quality has been protected and substantial justice has been done.
15A NCAC 2B.0267(12).
4. The Commission determines the following:
First Factor: There are practical difficulties or unnecessary hardships that prevent compliance
with the riparian buffer protection requirements.
In its assessment of whether the Applicant made a showing of "practical difficulties or
unnecessary hardships," the Commission considered the following factors.
(i) If the applicant complies with the provisions of this Rule, he/she can secure no
reasonable return from, nor make reasonable use of, his/her property. Merely proving that
4

the variance would permit a greater profit from the property shall not be considered
adequate justification for a variance. Moreover, the local government 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;
(ii) The hardship results from application of this Rule to the property rather than from
other factors such as deed restrictions or other hardship;
(iii) The hardship is due to the physical nature of the applicant's property, such as its
size, shape, or topography, such that compliance with provisions of this rule would not
allow reasonable use of the property;
(iv) The applicant did not cause the hardship by knowingly or unknowingly violating
this Rule;
(v) The applicant did not purchase the property after August 11, 2009, the effective
date of this Rule, and then request a variance; and
(vi) The hardship is rare or unique to the applicant's property.
15A NCAC 2B.0267 (12)(a).
The Commission concludes that the Applicant has made the required showing that there
are "practical difficulties or unnecessary hardships" preventing compliance with the riparian buffer
protection requirements. Specifically,
A. The Applicant cannot make reasonable use of the property without impacting the
buffer, given that there are multiple streams with buffers located on the property. The
specific requirements applicable to the design of the proposed project necessitate the
impact.
5

B. The hardship results from the application of this Rule rather than from other factors
such as deed restrictions.
C. The hardship is due to the physical nature of the property, including the presence of
multiple streams on the property and the size and nature of the proposed project and its
design requirements, such that compliance with the provisions of the rule would not
allow for the reasonable use of the property.
D. The hardship is not the result of the actions of the Applicant.
E. Although the property was purchased after the effective date of the rule, the variance
request is not intended to maximize the use of the property but, rather, to meet design
requirements of the proposed project and to minimize impacts. The design of the
proposed project minimizes and avoids impacts to second order perennial streams.
Shifting the facility's design to avoid the buffer impact will result in additional impacts
to streams, buffers and wetlands located in other areas of the Site. The proposed project
will keep in place significant, undisturbed vegetative buffers along the west, south and
east sides of the Site. The proposed design is intended to reduce the volume of nutrients
and other chemicals from entering the water supply, and includes stormwater
management controls and treatment designed to meet or exceed applicable standards.
F. The hardship is unique to the Applicant's property.
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 concludes that the Applicant has demonstrated that it meets the second
factor required under 15A NCAC 02B .0267(12)(b). Specifically, the purpose of the riparian
6

buffer rules is to protect existing riparian buffer areas. The purpose of the Rule and the Guilford
County Ordinance is to protect existing riparian buffer areas; however, the Applicant cannot make
reasonable use of the property without impacting the protected riparian buffers. The Applicant is
proposing to purchase 221,481 buffer credits from the Wildlands Holdings UT to Pine Hill Branch
Nutrient Offset & Buffer Mitigation Bank and the Wildlands Holdings South Fork Nutrient Offset
& Buffer Mitigation Bank, which would protect other riparian buffers in exchange for disturbing
the buffers at the Site. Allowing the proposed development by granting the request for a major
variance while requiring purchase of 221,481 buffer mitigation credits would afford protection to
other riparian buffer areas and, thus, be in harmony with the general purpose and intent of the
riparian buffer protection rules and preserve their spirit.
Third Factor: The variance would assure the public welfare, protect water quality, and
ensure substantial justice has been done.
The Commission concludes that the Applicant has demonstrated it meets the third factor
required under 15A NCAC 02B .0267. Specifically, the Applicant is proposing to purchase
221,481 buffer credits to offset the impacts created by the proposed project. Given the unique
nature of the project and the fact that its design is intended to minimize the unavoidable impacts,
the Commission concludes that allowing the Applicant's variance assures public safety and public
welfare, protects water quality, and ensures substantial justice.
VA

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 with the following conditions:
1. Mitigation. The Applicant shall provide mitigation for the impacts to the
buffer by purchasing 221,481 buffer credits from the Wildlands Holdings UT to
Pine Hill Branch Nutrient Offset & Buffer Mitigation Bank and the Wildlands
Holdings South Fork Nutrient Offset & Buffer Mitigation Bank
This is the 9th day of August, 2019.
Dr. A. Stanley Meiburg, Chairman
Environmental Management Commission
D

CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing Decision Granting Major
Variance upon counsel for the Applicant and the Division of Water Resources in the manner
described below as follows:
Michael C. Thelen, Esq.
Womble Bond Dickinson (US) LLP
555 Fayetteville Street, Suite 1100
Raleigh, NC 27601
Sue Homewood
401 & Buffer Permitting Unit
Winston-Salem Regional Office
Division of Water Resources
Karen Higgins, Supervisor
401 & Buffer Permitting Unit
Division of Water Resources
1617 Mail Service Center
Raleigh NC 27699-1617
This is the 9th day of August, 2019.
Certified Mail/ Return Receipt Requested
Receipt #: 7002 3150 0000 1312 7192
and [e-mail]
E-mail: sue.homewood(a)ncdenr.gov
E-mail: Karen.higgins(2ncdenr.gov
JOSH STEIN
Attorney General
Phi lip T. Reynolds
Special Deputy Attorney General
P. O. Box 629
Raleigh, N. C. 27602