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Request for an After -the -Fact Major Variance from the
Tar -Pamlico River Riparian Area Protection Rules
Daniel E. Whitford
748 Down Shore Drive
Blounts Creek, NC
January 13, 2016
Daniel E. Whitford has requested the Water Quality Committee (WQC) to grant an after -the -fact
Major Variance from the Tar -Pamlico Riparian Area Protection Rules (15A NCAC 02B .0259) for a
shelter and storage shed at 748 Down Shore Drive in Blounts Creek, NC. The shelter and storage
shed have impacted 164 square feet of Zone 1 and 194 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 not 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 02B .0259 (9)(a).
15A NCAC 0213 .0259 (9)(a)(i) states the following:
"There ore 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 con secure no reasonable
return from, nor make reasonable use of, his/her property. Merely proving that the
variance would permit o greater profit from the property shall not be considered
adequate justification for o variance. Moreover, the Division or delegated local authority
shall consider whether the variance is the minimum possible deviation from the terms of
this Rule thotsholl 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 os deed restrictions or other hardship.
C. The hardship is due to the physical nature of the applicant's property, such os 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.
E. The applicant did not purchase the property after the effective dote of this Rule, and then
request on appeal.
State of North Carolina I Environmental Quality I Water Resources
1611 Mail service Center I Raleigh, North Carolina 27699-1611
919 707 9000

F. The hardship is unique to the applicant's property, rather than the result of conditions
that ore widespread. If other properties ore equally subject to the hardship created in the
restriction, then granting o variance would be o special privilege denied to others, and
would not promote equal justice;"
The Division finds the following:
There are not practical difficulties that prevent compliance with the strict letter of the
riparian buffer protection requirements:
A. The applicant was unaware of the Tar -Pamlico Riparian Buffer Rule, which does not
allow shelters or storage sheds within the riparian buffer. The shelter was
constructed for family gatherings and to serve as a shaded area for parents to
monitor young children and pets for safe use of the river. The Division believes that
the applicants could make reasonable use of their property without impacting the
protected riparian buffer.
B. The hardship results from the applicant's lack of awareness of the rule rather than
application of the rule. Application of the buffer rule does not prevent the applicant
from locating the shelter and storage shed outside of the riparian buffer or utilizing a
practical alternative such as a tent or umbrella or building a shelter on the existing
dock.
C. The hardship is not due to the physical nature of the applicants' property. Although
the 50 -foot wide lot is narrower than most of the surrounding lots, the lot has
sufficient length to have located the shelter and storage shed outside of the riparian
buffer. Use of a beach umbrella next to the water for shade to monitor children
swimming would be a practical alternative to impacting the buffer with a permanent
shelter.
D. The applicant unknowingly violating this Rule. The applicant purchased the property
on June 26, 2013. In 2014, the applicant contacted the Beaufort County Building
Inspector's office for a building permit. Mr. Whitford was told that the structure did
not require a building permit and was not told that the buffer rule would not allow
siting the structure close to the water. The shelter was constructed in the summer of
2014 in time for the family's reunion. Later, a small storage shed was constructed
close to the shelter. A Notice of Violation was issued on September 9, 2015. The
applicant's attorney notified Division staff in October of 2015 that his client planned
to request a major variance.
E. The applicant first purchased the property in the name of his company on June 26,
2013 and transferred the property to himself on November 24, 2014, both of which
are after the effective date of this Rule.
F. Even though the lot is exceptionally narrow, the hardship regarding the location of
structures is not unique to the applicants' property. All of the surrounding properties
are similarly limited in their use of the protected riparian area.
15A NCAC 02B.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. Had the
applicant been aware of the buffer rule, they could have exercised several options for the shelter
such as utilizing the existing pier or a temporary tent or umbrella or locating the permanent
shelter near the proposed home. There is also room near the home to locate the storage shed.
However, the applicants are proposing to purchase 1,560 buffer mitigation credits and install a
level spreader outside the riparian buffer to treat stormwater runoff from the shelter and
storage shed. The applicant's engineer has also indicated that the level spreader has sufficient
capacity to capture runoff from the proposed home. Because buffer mitigation credits are
currently not available within the subbasin (8 -digit hydrologic unit code), a 2:1 location ratio of
credits purchased to mitigation required was applied in accordance with the Consolidated Buffer
Mitigation Rule (15A NCAC 02B .0295).
15A NCAC 02B.0259 (9)(a)(iii)
"In granting the variance, the public safety and welfare hove 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 applicants are proposing to purchase 1,560 buffer mitigation credits and install a level
spreader outside the riparian buffer to treat stormwater runoff from the shelter, storage shed
and the proposed home for the lot. Because buffer mitigation credits are currently not available
within the subbasin (8 -digit hydrologic unit code), a 2:1 location ratio of credits purchased to
mitigation required was applied in accordance with the Consolidated Buffer Mitigation Rule (15A
NCAC 02B .0295). Because there are not practical difficulties that prevent compliance with the
strict letter of the riparian buffer protection requirements, this Major Variance as proposed is
not consistent with past Major Variance approvals from the Water Quality Committee.
However, the applicant proposes to install a level spreader to treat stormwater runoff from the
proposed home in addition to runoff from the shelter and storage shed that are located within
the buffer.
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 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 02B .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) & (iii)]:
• Mitigation
The applicants shall provide mitigation for the proposed impacts by purchasing 1,560
buffer credits from NC Division of Mitigation Services.

Stormwater Management Plan
The Division approves the diffuse flow plan consisting of a level spreader and vegetated filter strip
and all associated stormwater conveyances, inlet and outlet structures, and the grading and
drainage patterns depicted on plan sheets dated October 28, 2015, which are incorporated by
reference and are enforceable by the Division. The following conditions also apply [15A NCAC
02B .0259 (5)]:
The maximum allowable drainage area for the approved level spreader and vegetated filter
strip shall be 14,375 square feet and the maximum allowable built -upon area within that
drainage area shall be 357 square feet. Any changes to these maximum areas shall
require the applicant to submit and receive approval for a revised stormwater
management plan by the Division.
The footprint of the diffuse flow device as well as an additional 10 -foot wide area on all sides of
the device shall be located in either public rights-of-way, dedicated common areas or recorded
easement areas. The final plats for the project showing all such rights-of-way, common areas and
easement areas shall be in accordance with the approved plans.
The approved diffuse flow plan shall be constructed and operational before any permanent
building or other structure is occupied at the site.
The diffuse flow plan may not be modified without prior written authorization from the Division.
A copy of the approval letter and the modified SMP shall be submitted to the DWR 401 & Buffer
Permitting Branch prior to the commencement of the modifications.
Maintenance activities for the level spreader and vegetated filter strip shall be performed in
accordance with the notarized O&M agreements signed by Daniel E. Whitford on October 29,
2015. The O&M agreement shall transfer with the sale of the land or transfer of
ownership/responsibility for the BMP facility. The Division shall be notified promptly of every
transfer.