20140566 Ver 1_WQC or EMC Recommendation_20141112

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FqCDENR
North Carolina Department of Environment and Natural Resources
Pat McCrory John E. Skvarla, III
Governor Secretary
Request for a Major Variance from the
Tar - Pamlico River Riparian Area Protection Rules
Ernest Floyd Foster
70 Captain Tom's Road
Washington, NC
November 12, 2014
Ernest Floyd Foster has requested the Water Quality Committee (WQC) to grant a Major Variance
from the Tar - Pamlico Riparian Area Protection Rules (15A NCAC 02B .0259) for locating two
refrigerated, tractor trailers at 70 Captain Tom's Road in Washington, NC. Location of the trailers
would impact 566 square feet of Zone 1 and 241 square feet of Zone 2.
Accordingly, pursuant to 15A NCAC 02B .0259 (9)(c), the Division of Water Resources makes the
preliminary finding that the major variance request demonstrates the following:
• Practical difficulties or unnecessary hardships are present;
• The harmony and spirit of buffer protection requirements are met; and
• The protection of water quality and substantial justice has been achieved as required in
15A NCAC 0213 .0259 (9)(a).
15A NCAC 02B .0259 (9)(a)(i) states the followin
"There are practical difficulties or unnecessary hardships that prevent compliance with the strict
letter of the riparian buffer protection requirements. Practical difficulties or unnecessary
hardships shall be evaluated in accordance with the following:
A. 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 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.
Division of Water Resources — 401 & Buffer Permitting Unit
1617 Mail Service Center, Raleigh, North Carolina 27699 -1617
Location: 512 N. Salisbury St. Raleigh, North Carolina 27604
Phone: 919 - 807 -63001 FAX: 919 - 807 -6494
Internet: www.ncwaterquality.org
An Equal Opportunity \ Affirmative Action Employer —Made in part by recycled paper

Ernest Lloyd Foster
70 Captain Tom's Road
Major Variance Request— DWR Findings of Fact
Page 2 of 3
E. The applicant did not purchase the property after the effective date of this Rule, and then
request 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;"
The Division finds the following:
There are practical difficulties that prevent compliance with the strict letter of the riparian
buffer protection requirements:
A. The applicant cannot make reasonable use of the property without impacting the
protected riparian buffer. Operation of a blue crab business on the property requires
refrigerated trailers and decking located adjacent to the existing docks and boardwalk
to grade and store crabs and to roll pallets of crab baskets to refrigerated trucks for
shipping. The applicant would be forced to close the seafood operation if he is not
granted an after - the -fact Major Variance to impact the buffer.
B. The hardship results from the application of this rule rather than from other factors.
The buffer rule does not allow the refrigerated trailers to be placed within the buffer
where they must be located in order to operate the seafood business.
C. The hardship is due to the physical nature of the applicant's property. The existing
docks and boardwalk to which the trailers must be connected are located on Duck
Creek within Zone 1 of the buffer.
D. Although the applicant violated the Tar - Pamlico River Buffer Rule by locating the
trailers in the riparian buffer without a major variance, the hardship is cause by the
rule's conflict with operation of this type of seafood business.
E. The applicant purchased the property on June 1, 2012, which is after the effective date
of this Rule.
F. Although the hardship is not unique to the applicant's property, it is unique to
operation of this type of seafood business.
15A NCAC 0213 .0259 (9)(a)(ii)
"The variance is in harmony with the general purpose and intent of the State's riparian buffer
protection requirements and preserves its spirit,"
The Divisions finds the following:
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 is proposing to purchase 2,060 buffer mitigation credits and maintain diffuse
flow of stormwater from the trailers and the house proposed to be constructed on an existing
footprint.

Ernest Lloyd Foster
70 Captain Tom's Road
Major Variance Request— DWR Findings of Fact
Page 3 of 3
15A NCAC 0213 .0259 (9)(a)(iii)
"In granting the variance, the public safety and welfare have been assured, water quality has been
protected, and substantial justice has been done."
The Divisions finds the following:
In granting the variance, water quality has been protected and substantial justice has been done.
The applicant is proposing to purchase 2,060 buffer mitigation credits and maintain diffuse flow of
stormwater. To increase stormwater infiltration, the applicant has brought in topsoil and planted
grass to enhance areas of the riparian buffer that were denuded by truck and trailer movement.
This Major Variance as proposed is consistent with past Major Variance approvals from the Water
Quality Committee.
Division of Water Resources' Recommendation:
Based on the information submitted, the Division of Water Resources supports this request for a
Major Variance from the Tar - Pamlico Riparian Area Protection Rules because practical difficulties
or unnecessary hardships are present; the harmony and spirit of buffer protection requirements
are met; and the protection of water quality and substantial justice has been achieved as required
in 15A NCAC 0213 .0259 (9)(a) provided the below mentioned conditions or stipulations are
required. If the Water Quality Committee approves this request for a Major Variance from the
Tar - Pamlico Riparian Area Protection Rules, the Division recommends approval with the following
conditions or stipulations [pursuant to 15A NCAC 02B .0259 (9)(c)(ii)]:
• Mitigation
■ Provide mitigation for the proposed impacts by purchasing 2,060 square feet of buffer
credits from the NC Ecosystem Enhancement Program as indicated in their application
• Diffuse Flow Plan
■ Stormwater from the proposed home to be constructed on an existing footprint will be
discharged as diffuse flow outside of the riparian buffer.