20180307 Ver 2_EMC Decision_Major Variance_20180904

JOSH STEkN
ATTORNEY GENERAL
Nicole Bartlett, Project Manager
Charlotte Water
5 100 Brookshire Boulevard
Charlotte, NC 28216
Certified Maill Return Receipt Requeste
And nbartlell Lmci. charlotte. nc. us
Request No, 7005 2570 0002 0986 6553
Re: Final Decision Granting Variance with conditions
Dear Ms. Bartlett:
At its July 11, 2018 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 § 15013-45. 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,
Pdhillp T. Reynolds
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
REPLY TO:
STATE OF NORTH CAROLINA
PHILLIP T. REYNOLDS
DEPARTMENT OF JUSTICE
ENVIRONMENTAL DivfslCN
PREYNOLDS(a)NCDOJ.GOV
[phone]
September 4, 2018
Certified Maill Return Receipt Requeste
And nbartlell Lmci. charlotte. nc. us
Request No, 7005 2570 0002 0986 6553
Re: Final Decision Granting Variance with conditions
Dear Ms. Bartlett:
At its July 11, 2018 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 § 15013-45. 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,
Pdhillp T. Reynolds
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

Charlotte Water
September 4, 2018
Page 2
cc: w/ encl.: J.D. Solomon, Chair of the Commission, electronically
Dr. Robert Rubin, Chair of the WQC, electronically
Karen Higgins, Supervisor, DWR, electronically
Lois Thomas, recording secretary for Commission, electronically
WWW.NCDOJ.GOV 114W. EDENTON STREET, RALEIGH, NC 27603 919.716.6600
P. O. Box 629, RALEIGH, NC 27602-0629

STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
IN THE MATTER OF:
PETITION FOR VARIANCE
FROM
15A NCAC 2B .0605-
.0607
GOOSE CREEK WATERSHED
RIPARIAN AREA
PROTECTION RULES BY
CITY OF CHARLOTTE —
CHARLOTTE WATER
BEFORE THE
ENVIRONMENTAL MANAGEMENT
COMMISSION
DECISION GRANTING MAJOR
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 July 11, 2018 in Raleigh, North Carolina upon the City of Charlotte
— Charlotte Water's (the Applicant's) request for approval of a major variance from the Goose
Creek Watershed Riparian Area Protection Rules pursuant to 15A NCAC 02B .0605-,0607 to
allow for the construction of 9,902 feet of sanitary sewer within the buffer along Stevens Creek
and a tributary to Stevens Creek west of I-485 in Mint Hill, North Carolina (the Site). The
proposed project would temporarily impact 323,068 square feet and permanently impact 121,546
square feet of protected buffer.
Based on the information provided, the Division of Water Resources (DWR) supported the
request for a major variance. Karen Higgins, Supervisor of the 401 & Buffer Permitting Branch of
DWR presented the request for a major 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 Stevens Creek
and a tributary of Stevens Creek west of 1-485 in Mint Hill, North Carolina, but has obtained
easements for the construction and maintenance of the proposed sewer line.
B. The Applicant has requested approval of a major variance from the Goose Creek
Watershed Riparian Area Protection Rules pursuant to 15A NCAC 02B .0605-.0607 to allow the
construction of 9,902 feet of sanitary sewer on the Site. 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 protected riparian buffer.
C. The proposed construction would temporarily impact 323,068 square feet and
permanently impact 121,546 square feet of the protected riparian buffer
D. The Applicant's plan for mitigation includes decommissioning an existing waste
water treatment plant ( also referred to as a "package plant") currently used within the service area,
replacing existing pump stations with a regional pump station, and completing a stream restoration
project taking place on the same stream features that will be impacted by the proposed project. The
construction of the proposed sanitary sewer line will also provide additional sanitary service to the
area and limiting the use of septic systems.
E. The site will also undergo 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,

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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.
Based upon the foregoing Findings of Fact, the Environmental Management Commission
makes the following,
CONCLUSIONS OF LAW
A. The Site for the proposed project is subject to the Goose Creek Watershed Riparian
Area Protection Rules, 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 2B .0606 upon a finding that:
(1) Practical difficulties or unnecessary hardships are present;
(2) The variance is in harmony with the general purpose and intent of
the buffer protection and preserves its spirit; and
(3) In granting the variance, the public safety and welfare have been
assured 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.
In its assessment of whether the Applicant had made a showing of "practical difficulties
or unnecessary hardships," the Commission considered the following factors.
N If the applicant complies with the provisions of this Rule, he/she can secure
no reasonable return from, nor make reasonable use of, hislher 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.

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(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, such
as its size, shape, or topography, which is differentfrom that ofneighboring
property.
(iv) The applicant did not cause the hardship by knowingly or unknowingly
violating the buffer requirements.
(v) The applicant did not purchase the property after the effective date of this
Rule, and then request a variance.
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 requirements. Specifically,
(i) Charlotte Water is proposing PLIC, AWWA C900, Pressure Class 165 psi, DR25
as an equivalent to ductile iron 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 will also
be constructed by Charlotte Water in conjunction with the Stevens Creek Stream Restoration
project in coordination with Mecklenburg County, which involves realigning and rebuilding much
of the existing stream channel. Because the stream channel will be disturbed through the
restoration project, requiring trenchless stream crossings would not provide any water quality or
buffer protection. The coordinated effort will also provide additional benefits, such as reducing the
clearing limits needed for each project and reducing the amount of time the buffer is impacted.
(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.

19
(iii) The hardship is due to the physical nature of the property and is unique. There are
steep slopes and hills along Stevens Creek and 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. The project is also unique in that it is intended to be
completed in conjunction with a stream restoration project occurring along the same stream
features. Undertaking both projects jointly allows for an overall reduction of both buffer impact
area and length of time the buffer will be impacted. The project will also have additional benefits,
including the ability to. decommission an existing package plant currently serving the area, an
increase in capacity allowing for the reduction of the use of septic systems, and the building of a
regional pump station that will convey untreated sewage to a facility outside of the basin for
treatment and discharge. The building of the regional pump stations will also allow for the
replacement of existing pump stations and/or reduce reliance on others in the watershed.
(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. The 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's riparian buffer protection requirements and preserves its spirit.
The Commission affirmatively concludes that the Applicant has demonstrated he meets 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

0
federally endangered Carolina heelsplitter species in the Goose Creek watershed. The proposed
sewer line is intended to provide sewer service in the Stevens Creek watershed, which is part of
the larger Goose Creek watershed. The completion of the proposed project will ultimately allow
for the decommissioning of an existing package plant currently servicing the area, provide the
capability to reduce the use of aging septic systems in the area, and replace and/or reduce reliance
on existing pump stations through the construction of a regional pump station to convey sewage
outside the Goose Creek watershed for treatment and discharge. Charlotte Water is also completing
a stream restoration project to reconnect the floodplain, provide a more stable channel and enhance
the buffer through invasive plant removal and native tree planting/seed mixes.
Third Factor: lit granting the variance, the public safety and wetfare have been assured,
water quality has been protected, and substantial justice has been done.
The Commission affirmatively concludes that the Applicant has demonstrated he meets the
third factor required under 15A NCAC 02B .0606(1)(c). The public safety and welfare will be
assured and additional benefits will be provided through the completion of the proposed project.
Specifically, by completing the proposed project, Charlotte Water will be decommissioning an
existing package plant, providing the capability to replace aging septic systems, replacing and
reducing existing pump stations by constructing a regional pump station to send sewer outside the
Goose Creek watershed and completing a stream restoration project along Stevens Creek and a
tributary to Stevens Creek. The benefits achieved through the proposed project will protect water
quality and substantial justice will be achieved in granting the variance.
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 2B .0606(1)

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and (2)(b) as a major variance to the Neuse River Riparian Area Protection Rule with the following
conditions:
1. Mitigation. The Applicant shall complete the decommissioning of the
existing package plant, replace existing pump stations with a regional pump station,
and complete the proposed stream restoration project.
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.
3. This major variance shall only apply if the U.S. Army Corps of Engineers
and North Carolina Department of Environmental Quality approve impacts to the
stream associated with the subject buffer for the sewer line.
This is the 4th, day of September, 2018.
ENVIRONMENTAL MANAGEMENT COMMISSION
J. D. Solomon, Chairman

In
CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing Decision Granting Major
Variance upon the Applicant and the Division of Water Resources in the manner described
below as follows:
Nicole Bartlett, Project Manager
Charlotte Water
5100 Brookshire Boulevard
Charlotte, NC 28216
Karen Higgins, Supervisor
401 & Buffer Permitting Unit
Division of Water Resources
1650 Mail Service Center
Raleigh NC 27699-1650
This is the 4th, day of September, 2018.
Certified Mail/Return Receipt Requested
and n bqrt1eLt(L',,ci. charlotte. tic. us
E-mail: Karen. Hi,(,,P-ins�(-i1,,ncdcnr.gov
JOSY1 STEIN
Attorney General
WEA,
Phiffip T. Rey6blds
Special Deputy Attorney General
P. O. Box 629
Raleigh, N. C. 27602