20180307 Ver 4_Decision Granting Variance w Conditions_20200324

REPLY TO:
JOSH STEIN STATE OF NORTH CAROLINA PHILLIP T. REYNOLDS
ATTORNEY GENERAL DEPARTMENT OF JUSTICE ENVIRONMENTAL DIVISION
PREYNOLDS(ODNCDOJ.GOV
[phone]
March 24, 2020
Mr. Jeffrey McClanahan Certified Mail/Return Receipt Requested
5100 Brookshire Boulevard Receipt No: 7002 3150 0000 1313 5722;
Charlotte, NC 28216-3371 and Email: Jeffrey, mcclanahangci.charlotte. nc.us
Re: Final Decision Granting Variance with Conditions
Dear Mr. McClanahan:
At its March 5, 2020 meeting, the Water Quality Committee of the Environmental
Management Commission granted your request for a variance. Attached is a copy of the Final
Agency Decision. If for some reason you do not agree with the terms 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 the county in which you reside within thirty days after receiving the order
pursuant to the procedure set forth in the North Carolina General Statutes § 150B-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 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. If you have any
questions, please feel free to contact me.
Sincerely,
P- hi ip T. Reyno" lds
Special Deputy Attorney General and
Counsel for the Environmental Management Commission
WWW.NCDOJ.GOV 114 W. EDENTON STREET, RALEIGH, NC 27603 919.716.6600
P. 0. Box 629, RALEIGH, NC 27602-0629

EMC Final Agency Decision
re: Jeffrey McClanahan
March 24, 2020
Page 2
cc: w/ encl.: Dr. A. Stanley Meiburg, Chair, EMC (electronically)
Marion Deerhake, Chair, WQC (electronically)
Linda Culpepper, Director, DWR (electronically)
Mac Haupt, Acting Supervisor, DWR (electronically
Lois Thomas -Spence, Recording Clerk, EMC (electronically)
WWW.NCDOJ.GOV 114 W. EDENTON STREET, RALEIGH, NC 27603 919.716.6600
P. 0. Box 629, RALEIGH, NC 27602-
0629

STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE MATTER O F :
PETITION FOR VARIANCE FROM
15A NCAC 02B .0605-.0607
GOOSE CREEK WATERSHED
RIPARIAN AREA
PROTECTION RULES BY
CITY OF CHARLOTTE -
CHARLOTTE WATER
BEFORE THE
ENVIRONMENTAL MANAGEMENT
COMMISSION
DECISION GRANTING 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 came before the Water Quality
Committee at its meeting on March 11, 2020 in Raleigh, North Carolina upon the City of Charlotte
— Charlotte Water (the Applicant's) request for approval of a major variance from the Goose Creek
Riparian Area Protection Rules pursuant to 15A NCAC 02B .0606 for the construction of 4,935
linear feet of sanitary sewer within the buffer along a tributary to Stevens Creek west of I-485 in
Mint Hill, NC (the Site). The proposed project would temporarily impact 192,070 square feet and
permanently impact 49,450 square feet of protected buffer. The Applicant has agreed to provide
mitigation for the proposed impacts through payment into the North Carolina Division of
Mitigation Services In -lieu free program.
Based on the information provided, the Division of Water Resources (DWR) supported the
request for a variance. Paul Wojoski, Supervisor of the 401 & Buffer Permitting Branch of DWR
presented the request for the 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 does not own the property which is located along a tributary to
Stevens Creek west of I-485 in Mint Hill, North Carolina, but has obtained easements for the
construction and maintenance of the sewer line.
B. The Site is subject to the Goose Creek Riparian Area Protection Rule 15A NCAC
02B .0605-.0607.
C. The Applicant has requested approval of a variance from the Goose Creek Watershed
Riparian Area Protection Rules pursuant to 15A NCAC 02B .0605-.0607 to allow for the
construction of 4,935 linear feet of sanitary sewer on the Site. This proposed sewer will connect
with Phase 1 of the sewer line, which together will allow for the decommissioning of two existing
pump stations in the Stevens Creek Watershed resulting in an overall improvement to the
watershed.
D. Requiring the Applicant to construct the sewer outside of the buffer zone would require
an increase in the depth of installation, which would be cost prohibitive because of the shoring and
rock removal requirements; therefore, the Applicant cannot reasonably complete the project
without impacting the riparian buffer.
E. The proposed construction would temporarily impact 192,070 square feet and
permanently impact 49,450 square feet of protected buffer.
F. The Applicant's plan for mitigation includes payment to the North Carolina
Division of Mitigation Service In -lieu fee program per 15A NCAC 02B .0295 and the use of

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leakage-tested, PVC, AWWA C900, Pressure Class 165 psi, DR25 as an equivalent to ductile iron
pipe.
G. The Site will undergo leakage testing. In the specification for leakage tests, the
allowable leakage is 0 gallons for both pipe and manholes. In addition to passing the air test, there
shall be no visible leakage or moving water observed in the pipe and invert. Infiltration testing or
additional air testing and repairs will be required if these situations occur.
H. The project will comply with the ductile iron pipe requirements set forth in 15A NCAC
02T .0305
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,
CONCLUSIONS OF LAW
A. Project properties are subject to the Goose Creek Riparian Area Protection Rule,
15A NCAC 02B .0605-.0607
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 02B .0606(1) upon a finding that:
(a) There are practical difficulties or unnecessary hardships;
(b) The variance is in harmony with the general purpose and intent of
the buffer protection and preserves its spirit; and
(c) In granting the variance, the public safety and welfare have been
assured, water quality has been protected, and substantial justice
has been done.
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.

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In its assessment of whether the Applicant had made a showing of "practical difficulties
or unnecessary hardships," the Commission considered the following factors.
i. If the applicant complies with the provisions of the buffer requirements,
he/she 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.
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, and
is unique to the applicant's property, such as its size, shape, or topography,
such that compliance with provisions of the 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 the effective date of this
Rule, and then requesting an appeal.
15A NCAC 02B .0606(1)(a)(i) through (v).
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
protection
i. Charlotte Water is proposing PVC, AWWA C900, Pressure Class 165 psi, DR25 as an
equivalent to ductile ii-on pipe for areas not within 10 feet of streams or 50 feet of
wetlands. The pipe will pass a zero leakage test to ensure a watertight system. The
proposed project is a minimal deviation from the terms of the Rule.

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ii. The hardship results from application of this Rule. The project will comply with the ductile
iron pipe requirements set forth in 15A NCAC 02T .0305.
iii. The hardship is due to the physical nature of the property and is unique. There are steep
slopes and hills along the tributary to Stevens Creek. Moving the project out of the buffer
would increase the depth of installation, which is cost prohibitive due to the shoring and
rock removal requirements.
iv. Charlotte Water has not violated the buffer requirements and did not cause the hardship at
issue.
V. Charlotte Water does not own the property but has obtained easements for the construction
and maintenance of the sewer line. Easements were acquired after the effective date of the
buffer rule.
Second Factor: The variance is in harmony with the general purpose and intent of the State Is
riparian buffer protection requirements and preserves its spirit.
The Commission affirmatively concludes that the Applicant has demonstrated they meet
the second factor required under 15A NCAC 02B .0606(1)(b) Specifically, the purpose of the
riparian buffer rules is to protect existing riparian buffer areas as part of a management strategy
for the maintenance and recovery of the water quality conditions required to sustain and recover
the federally endangered Carolina heelsplitter species in the Goose Creek watershed. The sewer
line is proposed to provide sewer service in the Stevens Creek watershed (which is part of the
larger Goose Creek watershed) that will ultimately allow for the decommissioning of an existing
package plant, providing the capability to replace aging septic and replacing/reducing existing
pump stations by constructing a regional pump station to send sewer outside the Goose Creek

watershed. 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 rule and preserves its 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 they meet
the third factor required under 15A NCAC 02B .0606(1)(c) Specifically, in granting the variance
subject to the conditions that the Applicant (1) make payment to the Division of Mitigation
Services in compliance with 15A NCAC 02B .0295; (2) conduct leakage testing according with
the following specifications below, public safety and welfare have been assured, water quality has
been protected and substantial justice has been done.

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ORDER
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 02B .0606(1)
as a variance to the Site Specific Water Quality Management Plan for the Goose Creek Watershed
with the following conditions:
1. Mitigation. The Applicant shall provide mitigation for the proposed
impacts by providing to the Division of Mitigation Services an in -lieu fee
payment to compensate for 49,450 square feet of permanent riparian buffer
impact pursuant to 15A NCAC 02B .0295.
2. Leakage Testing. In the specifications for leakage tests, the allowable
leakage is 0 gallons for both pipe and manholes. In addition to passing the
air test, there shall be no visible leakage or moving water observed in the
pipe and invert. Infiltration testing or additional air testing and repairs will
be required if these situations occur.
This is the 24th day of March, 2020.
ENVIRONMENTAL MANAGEMENT COMMISSION
Dr. A. Stanley Meiburg, Chairman

3
[GYM Y1 On. WOK11=10013A1400
This is to certify that I have this day served the foregoing Decision Granting Variance
upon the Applicant and the Division of Water Resources in the manner described below as
follows:
Mr. Jeffrey McClanahan
5100 Brookshire Boulevard
Charlotte, NC 28216-3371
Paul Wojoski, Supervisor
401 & Buffer Permitting Unit
Division of Water Resources
1617 Mail Service Center
Raleigh NC 27699-1617
This is the 241h day of March, 2020.
Certified MaillReturn Receipt Requested
and Jeffrey, mcclanahangci. charlotte. nc. us
E-mail: Paul.Woioskina,ncdenr.pov
JOSH STEIN
Attorney General
0-1
Phiff1p T. Reyrfolds
Special Deputy Attorney General
P. O. Box 629
Raleigh, N. C. 27602