20120054 Ver 2_General Correspondence_20120509

Flamingo Development, LLC
Mayor Variance Request
1113 Chelsea Road
New Bern
Amy Chapman
May 9, 2012

Findings
• Property was purchased on December 17,
2010
• Applicant purchased in good faith based on
being provided an incorrect soils map
• Applicant minimizes buffer impacts
PA

Craven County GIS Map
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and should be used ONLY for tax assessme t Purposes
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Proposed Impacts
• 694 square feet Zone 1
• 2,650 square feet Zone 2

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Conditions of Variance
• Required Mitigation
— 2,082 square feet of Zone 1
— 3,975 square feet of Zone 2
— Applicant will plant trees to meet mitigation
• Deed restrictions
• Approval of stormwater plan from DWQ
• Submit report documenting tree plantings
• Provide annual report documenting tree survival
for 5 years
ELI

Recommendation
The Division supports this mayor variance
request

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Frank
Crawley Frank [fcrawley @ncdoj gov]
Wednesday May 02 2012 9 55 AM
Chapman Amy
Soil Map Interpretation
Soil Sunrev Map Interpretive Rulings pdf
F-
t finished struggling through Clark Wright s legal mumbo gumbo and thought you may want a copy of
retive ruling which is attached The weak point here is that the statements interpreting a rule are
zed by the definition of rule in the APA as nonbinding This issue probably should be cleared up by
efinition to 2B or adding a clarification in each of the rules that use the soil maps I look forward to
Ved
Francis W Crawley
Special D puty Attorney General
P 0 Box 29
Raleigh C 27602
[phone] talk
[phone] fax
IMPORT NT This a mad message is intended solely for the individual or individuals to whom it is addressed It may
contain c nfidential attorney client privileged information and attorney work product If the reader of this message is not
the inten ed recipient you are requested not to read copy or distribute it or any of the information it contains Any
informati n not protected by attorney client privilege may be subject to North Carolina Public Records Act requests (N C
Gen Sta § 132 1 et sep ) Please delete the message immediately and notify the Attorney Generals Office by return e
mail or b telephone [phone]

to
STATE OF NORTH CAROLINA
COUNW OF WAKE
BEFORE THE
FNVIRONMENTAL MANAGFMENT
CO�r� MISSTOK,
INTERPRETIVE RULING ON THE MEANING )
OF THE MOST RhCENT VERSION OF NRCS )
SOILS SURVEY MAP REFERENCED IN I HE } INTERPRETIVE 1,�1:,J�,dNG
NEUSE AND TAR PAMLICO RIPARIAN )
BUFFER PROTFCTION RUT ES )
This matter came before the North Carolina Environmental Management Commission
(Commission) on 12 July 2006 for an interpretative ruling identifying which map is the `most recent
version ofthe soil survey map prepared by the Natural Resources Conservation Service ofthe United
States Department of Agriculture" that is to be used to identify existing surface waters that are
subject to the Neuse and Tar- Pamhco riparian buffer protection rules, 15A NCAC 2B 0233 and
0259, respectively
The issue before the Commission is which of the several map forms produced over time by
the Natural Resources Conservation Service (NRCS) did the Comnssion intend to be used to
identify the surface waters approximately shown on the most recent ofthe soil survey map prepared
by the NRCS for purposes of implementing riparian buffer protection in the Neuse River and Tar-
Pamlico Raver Basins
In consideration of the issue, the Commission finds the following
The Neuse and Tar- Pamhco Riparian Buffer Protection Rules 15A NCAC 2B 0233
and 0259 respectively protect 50 foot wide buffers along intermittent and perennial streams lakes
ponds and estuaries in these river basins These surface waters are identified as being present "if the
feature is proximately shown on either the most recent version of the soil survey map prepared by
the Natural Resources Conservation Service of the United States Department of Agriculture or the

r
2
most recent version of the 1 24,000 scale (7 5 m nute) aua & -argle topographic preps *ed by the
United States Geologic Survey (USGS) '
2 The buffer protection rules for the Neuse and Tar Pamlico River Basins provide that
riparian buffers adjacent to surface waters that appear on either of the maps are to be protected but
riparian buffers are not protected if the adjacent surface waters do not appear on the maps
3 By making references to these maps to the rules the Commission intended to make
land development and design predictable for the agricultural, silvicultural and development
communities because the maps could be examined and an initial determination made concerning the
presence of surface waters for design purposes
4 The NRCS maps were (and are) paper bound copies in county soil survey
publications that depict soil polygons as well as surface waters in a particular county
5 Electronic versions of the soil survey maps for several counties in the Neuse and Tar
Pamlico River Basins recently have been made available for public use However these Web Soil
Survey" maps do not show surface waters that are depicted on the paper bound or published copies
of the county soil surveys The surface waters that are shown on these web maps are not intended
to depict the actual network of streams The number and length of streams shown on the electronic.
MRCS maps is significantly reduced from those depicted on the paper bound maps
6 The published paper bound NRCS maps are the best available for use in identification
of surface waters present in the Neuse and Tar Pamlico River Basins and the adjacent riparian
buffers The published papper -bound NRCS maps are available in the counties or with assistance
from DENR
Based upon the foregoing findings, the Commission issues the following

-3
IA:TERPUTT Y G DUI WIG
The `most recent version of the soil survey map prepared by the Natural Resources
Conservation Service of the United States Department ofAgriculture' referenced in 15 A NCAC 2B
0233 and 0259 means the most recent paver -bound versions of the NRCS soil survevs, or copies
thereof that were in place at the time that these maps were first referenced in the Neuse Buffer Rule
(1997) are to be used for implementing the Neuse and Tar Pamlico Buffer Protection rules and any
other Fnvironmental Management Commission rules or programs that refer to the NRCS maps for
stream or surface water location and identification purpose unless an updated version of these maps
is available that depicts at a mimmum, an equal or greater amount of linear feet of streams that was
shown on the paper bound version of the map that was in place at the time the Neuse or Tar Pamlico
Buffer Rule was ongAday inally adopted
This the of August 2007
ENVIRONMENTAL MANAGEMENT COMMISSION
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NC ENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Charles Wakild P E Dee Freeman
Governor Director Secretary
Consideration of a Request for a Major Variance from the Neuse River
Riparian Area Protection Rule
1113 Chelsea Road in New Bern NC
May 9 2012
A request has been received for the Water Quality Committee to grant a mayor variance from the Neuse
River Riparian Area Protection Requirements (15A NCAC 213 0233) for the proposed condominium
development located at 1113 Chelsea Road in New Bern NC Craven County North Carolina The
condominiums will impact 694 square feet (ft) of Zone 1 and 2 650 square feet (ft) of Zone 2 of the
protected riparian buffers
Recommendations and Preliminary Findings
1 The applicant purchased the property on December 17 2010
2 The applicant relied on what he was told to be the most recent maps
3 The applicant did not meet the following hardship 15A NCAC 02B 0233(9)(a)(i)(E) in that the
owner purchased the property after the effective date of the rule
4 Additional Conditions — The Division of Water Quality (Division) staff believe that the following
conditions should be added to the variance if approved to ensure protection of retained buffers
located at 1113 Chelsea Rd in New Bern
• The Division staff believes that a deed restriction should be placed on the restored and remaining
protected riparian buffers on this property
• The applicant must supply a report showing that all trees have been planted within a year of this
variance approval
• The applicant will be required to submit annual reports for a period of five years for all trees
planted in Zone 1 of the riparian buffers showing the trees planted have survived and
• A stormwater plan will be submitted to the Division for approval and the variance should be
conditioned upon the applicant obtaining said approval from the Division
Recommendation The Division staff supports this mayor variance request However the Division
recognizes that the applicant does not comply with the evaluation criteria 15A NCAC 02B
0233(9)(a)(1)(E) since the owner purchased the property after the effective date of the rule
1650 Mail Service Center Raleigh North Carolina 27699 1617
Location 512 N Salisbury St Raleigh North Carolina 27604 One
Phone 91H07 63001 FAX [phone] Customer Service 1877-623-6748 NorthCarolina
Internet www ncwaterquality org a �}n 1���,� /I '
An Equal Opportunity 1 Affirmat ve Action Employer v / �/[3 ` `iJ/,/