20200146 Ver 1_Appeal Decision_20200811

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ROY COOPER
Governor
MICHAEL S. REGAN
Secretary
S. DANIEL SMITH
Director
Jason Hartshorn, PWS
Kimley Horn
421 Fayetteville St, Suite 600
Raleigh, NC 27601.
NORTH CAROLINA
Environmental Quality
August 11, 2020
DWR Project # 20200146
Orange County
Subject: On -Site Appeal Determination for Applicability to the Jordan Lake Riparian Area
Protection Rules Title 15A North Carolina Administrative Code (NCAC) 02B .0267
Location: 1800 Martin Luther King, Jr. Blvd., Chapel Hill, Harris Teeter 223/Chapel Hill
North Site, Orange County, NC
Dear Sir:
On January 24, 2020, the Division of Water Resources (DWR) received a request from you,
to appeal an on -site determination made by the Town of Chapel Hill as provided in Title 15A
NCAC 02B .0267 (4)(d) of the Jordan Lake Riparian Buffer Rules. On June 10, 2020, Shelton
Sullivan of DWR, conducted an on -site determination to review the features on the property
for applicability to the Jordan Lake Riparian Buffer Rules 15A NCAC 02B .0267.
The results of the on -site determination and file review are listed and summarized below.
According to Title 15A NCAC 02B .0267 (6), DWR has determined that Feature A includes the
installed stormwater pond and riprap-lined outfall, which is a present and ongoing use and
therefore exempt from the buffer rules. The stormwater pond and outfall were issued as a
part of 401 Water Quality Certification 1995-0085 prior to the effective date of the Jordan
Buffer Rules, which per rule, makes it an existing use. Based on DWR's June 10, 2020 field
evaluation, staff determined that Feature A becomes subject to the Jordan Buffer Rules just
beyond the riprap-lined outfall. Feature A is an unnamed tributary to Old Field Creek, Stream
Index 16-41-1-7, classified as Water Supply V, Nutrient Sensitive Waters, within the Cape
Fear River Basin. See the attached photograph.
Feature B is a stormwater outfall channel for the adjacent bioretention area and not subject
to the Jordan Buffer Rules. Feature C has been piped and filled from previous construction
and determined not to be present during the site visit.
D EQ
�, - North Carolina Department of Environmental Quality Division of Water Resources
v�J/� 512 North Salisbury Street 11611 Mail Service Center I Raleigh, North Carolina 27699-1611
DOP--t of E. � .tai Q_hty 919.707.9000

DocuSign Envelope ID: A91 A573C-91 C7-4801-8748-92A697BD9DCF
DWR Project 20200146
Orange County
Page 2 of 6
Subject
Depicted
Feature ID
Feature
*E/I/P/ Other
to Buffer
Start @
Stop @
on
Depicted on
Type
Rules
Soil Survey
USGS Topo
Below the riprap
downstream
Continues
A
Stream
Perennial
Yes
from the
Yes
Yes
downstream
stormwater pond
(picture)
Stormwater
B
outlet from
Stormwater
No
N/A
N/A
No
No
bioretention
outlet channel
area
No channel
present, piped
C
Stream
& filled from
No
N/A
N/A
Yes
No
previous
construction
This determination for features A, B, and C replaces the determination originally performed
by the Town of Chapel Hill as documented in their attached letter dated October 5, 2018. This
determination shall expire five years from the date of this letter.
This determination can be contested as provided in 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 8:00 am and 5:00 pm, 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:
If sending via U.S. 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 DENR:
William F. Lane, General Counsel
Department of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601
This letter only addresses the applicability to the buffer rules on the subject property and does not
approve any activity within any riparian buffers. Nor does this letter approve any activity within

DocuSign Envelope ID: A91 A573C-91 C7-4801-8748-92A697BD9DCF
DWR Project 20200146
Orange County
Page 3 of 6
waters of the of the State or waters of the United States, which include wetlands. Any activities along
these features may require 404/401 permits and certifications. Any inquiries regarding applicability
to Section 404 of the Clean Water Act should be directed to the US Army Corps of Engineers Raleigh
Regulatory Field Office at (919)-554-4884. If you have any additional questions or require additional
information, please call Shelton Sullivan with DWR at [phone]
Sincerely,
DOCUSigned by:
W10
949D91BA53EF4EO...
Paul Wojoski, Supervisor
401 & Buffer Permitting Branch
Attachments: Photograph; NRCS Soil Survey; USGS Topo; DWR Stream ID Form; Copy of Letter
from the Town of Chapel Hill
cc: 401 & Buffer Permitting Branch files
Jason Hartshorn, PWS, [e-mail]
Allison Weakley, Town of Chapel Hill, [e-mail]
Filename: 20200124_HT223Chape1HillNorth_AppealDecision.docx
Feature A Picture: Start of Buffered Channel DWR 6/10/2020

DocuSign Envelope ID: A91A573C-91C7-4801-8748-92A697BD9DCF
DWR Project 20200146
Orange County
Page 4 of 6
Orange County Soil Survey

DocuSign Envelope ID: A91 A573C-91 C7-4801-8748-92A697BD9DCF
DWR Project 20200146
Orange County
Page 5 of 6
USGS Map

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DWR Project 20200146
Orange County
Page 6 of 6
Stream Form Feature A
NC DWQ Stream Identification) Form Version 4.11
Date: �� ProjectlSite: ��al Latitude.
Evaluator: J� -� vp�„ County: lr�, .o Longitude:
Total Points; `^�`��
Stream is at leastintermittent Stream Determination (circle one) Other
if? fg orperennial if? 30` ni� l� Ephemeral Intermittent Perennial e.g. Quad Name:
A. Geomorphology Subtotal =tt
Absent14t
Strong
19. Continuity of channel bed and bank
0
3
2. Sinuosity of channel along thalweg
0
3
3. In -channel structure: ex. riffle -pool, step-pool,0
ri le- ool se uence4.
3
Particle size of stream substrate
0
3
5. Active/relict floodplain
0
1
m
3
6. Depositional bars or benches
0
®
2
3
7. Recent alluvial deposits
0
1
«
3
8. Headcuts
0
1
2
3
9. Grade control
0
1
1.5
10. Natural valley
0
1
1.5
11. Second or greater order channel
a - _.
-
Yes = 3
R HwIrnlnnir ta­hr thi - t� ....�.. a
12. Presence of Baseflow
0
1
2
13. Iron oxidizing bacteria
0
1
2
Ca_::)14.
Leaf litter
1
0.5
0
15. Sediment on plants or debris
0
1
1.5
16. Organic debris lines or piles
0
0.5
1.5
17. Soil -based evidence of high water table?
No = 0
s =
18. Fibrous roots in streambed
2
1
0
19. Rooted upland plants in streambed
3
2
_1
_0
20. Macrobenthos (note diversity and abundance)
'0 -
-2
-3
21. Aquatic Mollusks
1
2
3
22. Fish
0
0.5
1.5
23. Crayfish
0.5
1
1.5
24. Amphibians
0
0.5
1 5
25. Algae
0.5
1
1.5
26. Wetland plants in streambed
FACW = 0.75; OBL = 1.5 Other = 0
'perennial streams may also be identified using other methods. See p. 35 of manual.
Notes:
Sketc - k
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6 a s.
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DocuSign Envelope ID: A91 A573C-91 C7-4801-8748-92A697BD9DCF