20190289 Ver 2_Major Variance Approval_20190809

REPLY To:
STATE OF NORTH CAROLINA PHILLIP T. REYNOLDS
JOSH STEIN DEPARTMENT OF JUSTICE ENVIRONMENTAL DIVISION
ATTORNEY GENERAL prevnolds(cDncdoi.aov
[phone]
August 9, 2019
Michael C. Thelen, Esq.
Womble Bond Dickinson (US) LLP Certified Mail/Return ReceiptReauested
555 Fayetteville Street, Suite 1100 Receipt #: 7002 3150 00001312 7192
Raleigh, NC 27601
Re: Final Decision Granting Variance with Conditions
Dear Mr. Thelen:
At its July 10, 2019 meeting, the Water Quality Committee of the Environmental
Management Commission granted Public Super Market Inc.'s request for a variance with
conditions. As counsel for Publix Super Markets Inc. for this matter, I am serving you, by
agreement, with the Commission's Final Agency Decision (enclosed). According to North
Carolina General Statutes § 15013-45, judicial review of the Committee's decision may be sought
in Superior Court of Guilford County by filing a petition within 30 days of receipt of the written
copy of the Final Agency Decision. A copy of the judicial review petition must also 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.
Sincerely,
Phillip T. Reynolds
Special Deputy Attorney General and
Counsel for the Environmental Management Commission
W W W.NCDOJ.GOV 114 W. EDENTON STREET, RALEIGH, NC 27603 919.716.6600
P. O. Box 629, RALEIGH, NC 27602

EMC Final Agency Decision
re: Publix Super Markets Inc.
August 9, 2019
Page 2
cc: Dr. A. Stanley Meiburg, Chair, EMC (electronically)
Marion Deerhake, Chair, WQC (electronically)
Linda Culpepper, Director, DWR (electronically)
Lois Thomas -Spence, Recording Clerk, EMC (electronically)
Karen Higgins, DWR (electronically)
Sue Homewood, DWR (electronically)
WWW.NCDOJ.GOV 114 W. EDENTON STREET, RALEIGH, NC 27603 919.716.6600
P. O. Box 629, RALEIGH, NC 27602

STATE OF NORTH CAROLINA BEFORE THE
ENVIRONMENTAL MANAGEMENT
COUNTY OF WAKE COMMISSION
IN THE MATTER OF: )
}
PETITION FOR VARIANCE FROM } DECISION GRANTING MAJOR
15A NCAC 0213 .0267 ) VARIANCE WITH CONDITIONS
JORDAN LAKE RIPARIAN AREA )
PROTECTION RULES BY )
PUBLIX SUPER MARKETS INC. )
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 10, 2019 in Raleigh, North Carolina upon the application of
Publix Super Markets Inc. (the Applicant) requesting approval of a major variance from the Jordan
Lake Riparian Area Protection Rule pursuant to 15A NCAC 02B .0267. The variance request
seeks to allow for the establishment and construction of a corporate campus and grocery store
distribution center within Zone 1 and Zone 2 of the buffer at 311 Birch Creek Road in
McLeansville, North Carolina (the Site). The proposed project will impact 54,019 square feet of
buffer Zone 1 and 39,616 square feet of buffer Zone 2. The Applicant has agreed to provide
mitigation for the proposed impacts by purchasing 221,481 buffer credits from the Wildlands
Holdings UT to Pine Hill Branch Nutrient Offset & Buffer Mitigation Bank and the Wildlands
Holdings South Fork Nutrient Offset & Buffer Mitigation Bank.
Guildford County has been delegated authority to administer the Jordan Lake Riparian
Area Protection Rules. Pursuant to 15A NCAC 02B .0267(12) and Guilford County Development

Ordinance Sections 7-1.9 and -1.12, the Guildford County Board of Commissioners prepared
preliminary findings on this major variance request on April 30, 2019.
Based on the information provided by the Applicant and by Guilford County, the Division
of Water Resources (DWR) supported the request for a major variance. Sue Homewood, 401 &
Buffer Permitting Branch of DWR, presented the request for a major variance to the Water Quality
Committee.
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
1. The Applicant owns the Site at 311 Birch Creek Road in McLeansville, NC 27301,
Tax Parcel Number 117416, which consists of approximately 338.69 acres.
2. The Applicant intends to construct a corporate campus and distribution center,
along with associated facilities and parking for associates and employees.
3. The matter was first heard by the Guildford County Planning Board at its meeting
on April 10, 2019, which unanimously voted to recommend that the variance be granted. Based on
the Planning Board's recommendation, the matter was then presented to the Guilford County
Board of Commissioners at its April 30, 2019 meeting. After considering the matter, the Guilford
County Board of Commissioner also voted to recommend that the variance be granted.
4. Among its findings, Guilford County determined that the proposed use of the Site
requires significant area to house the various facilities and parking pad. (Finding of Fact 13,
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Guilford County Findings for Recommendation to Grant Major Stormwater Buffer Variance, page
6 of 12).
5. Guilford County further determined that the proposed use required the project to be
well-designed and well-managed, and that, due to safety requirements, the design necessitated the
separation of the associate parking areas and associate pedestrian access area from all commercial
vehicle traffic movement. (Finding of Fact 14, Guilford County Findings for Recommendation to
Grant Major Stormwater Buffer Variance, pages 6-7 of 12).
6. Guilford County also found that the evidence presented demonstrated that the
proposed use is compliant with the buffer rules in all but one area of the Site. The area impacted
by the proposed project is a limited section of stream "S 1," on the western edge of the Site, which
was found to be necessary. (Finding of Fact 15, Guilford County Findings for Recommendation
to Grant Major Stormwater Buffer Variance, page 7 of 12).
7. The proposed project will impact 54,019 square feet of buffer Zone 1 and 39,616
square feet of buffer Zone 2.
8. The Applicant has agreed to provide mitigation for the impacts by purchasing
221,481 buffer credits from the Wildlands Holdings UT to Pine Hill Branch Nutrient Offset &
Buffer Mitigation Bank and the Wildlands Holdings South Fork Nutrient Offset & Buffer
Mitigation Bank.
Based upon the foregoing Findings of Fact and the record before it, the Environmental
Management Commission makes the following:
3

CONCLUSIONS OF LAW
1. The Site owned by Publix Super Markets Inc. is subject to the Jordan Lake Riparian
Area Protection Rule, 15A NCAC 2B .0267.
2. The purpose of Rule 15A NCAC 2B .0267 is to protect and preserve existing
riparian buffers and to maintain their nutrient removal functions in the entire Jordan Lake
watershed.
3. 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 .0267 upon finding that:
(1) There are practical difficulties or unnecessary hardships;
(2) The variance is in harmony with the general purpose and intent of
the buffer protection requirements and preserves its spirit; and
(3) In granting the variance, the public safety and welfare have been assured, water
quality has been protected and substantial justice has been done.
15A NCAC 2B.0267(12).
4. The Commission determines the following:
First Factor: There are practical difficulties or unnecessary hardships that prevent compliance
with the riparian buffer protection requirements.
In its assessment of whether the Applicant made a showing of "practical difficulties or
unnecessary hardships," the Commission considered the following factors.
(i) 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
4

the variance would permit a greater profit from the property shall not be considered
adequate justification for a variance. Moreover, the local government 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;
(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, such that compliance with provisions of this rule would not
allow reasonable use of the property;
(iv) The applicant did not cause the hardship by knowingly or unknowingly violating
this Rule;
(v) The applicant did not purchase the property after August 11, 2009, the effective
date of this Rule, and then request a variance; and
(vi) The hardship is rare or unique to the applicant's property.
15A NCAC 2B.0267 (12)(a).
The Commission concludes that the Applicant has made the required showing that there
are "practical difficulties or unnecessary hardships" preventing compliance with the riparian buffer
protection requirements. Specifically,
A. The Applicant cannot make reasonable use of the property without impacting the
buffer, given that there are multiple streams with buffers located on the property. The
specific requirements applicable to the design of the proposed project necessitate the
impact.
5

B. The hardship results from the application of this Rule rather than from other factors
such as deed restrictions.
C. The hardship is due to the physical nature of the property, including the presence of
multiple streams on the property and the size and nature of the proposed project and its
design requirements, such that compliance with the provisions of the rule would not
allow for the reasonable use of the property.
D. The hardship is not the result of the actions of the Applicant.
E. Although the property was purchased after the effective date of the rule, the variance
request is not intended to maximize the use of the property but, rather, to meet design
requirements of the proposed project and to minimize impacts. The design of the
proposed project minimizes and avoids impacts to second order perennial streams.
Shifting the facility's design to avoid the buffer impact will result in additional impacts
to streams, buffers and wetlands located in other areas of the Site. The proposed project
will keep in place significant, undisturbed vegetative buffers along the west, south and
east sides of the Site. The proposed design is intended to reduce the volume of nutrients
and other chemicals from entering the water supply, and includes stormwater
management controls and treatment designed to meet or exceed applicable standards.
F. The hardship is unique to the Applicant's property.
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 concludes that the Applicant has demonstrated that it meets the second
factor required under 15A NCAC 02B .0267(12)(b). Specifically, the purpose of the riparian
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buffer rules is to protect existing riparian buffer areas. The purpose of the Rule and the Guilford
County Ordinance is to protect existing riparian buffer areas; however, the Applicant cannot make
reasonable use of the property without impacting the protected riparian buffers. The Applicant is
proposing to purchase 221,481 buffer credits from the Wildlands Holdings UT to Pine Hill Branch
Nutrient Offset & Buffer Mitigation Bank and the Wildlands Holdings South Fork Nutrient Offset
& Buffer Mitigation Bank, which would protect other riparian buffers in exchange for disturbing
the buffers at the Site. Allowing the proposed development by granting the request for a major
variance while requiring purchase of 221,481 buffer mitigation credits would afford protection to
other riparian buffer areas and, thus, be in harmony with the general purpose and intent of the
riparian buffer protection rules and preserve their spirit.
Third Factor: The variance would assure the public welfare, protect water quality, and
ensure substantial justice has been done.
The Commission concludes that the Applicant has demonstrated it meets the third factor
required under 15A NCAC 02B .0267. Specifically, the Applicant is proposing to purchase
221,481 buffer credits to offset the impacts created by the proposed project. Given the unique
nature of the project and the fact that its design is intended to minimize the unavoidable impacts,
the Commission concludes that allowing the Applicant's variance assures public safety and public
welfare, protects water quality, and ensures substantial justice.
VA

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 with the following conditions:
1. Mitigation. The Applicant shall provide mitigation for the impacts to the
buffer by purchasing 221,481 buffer credits from the Wildlands Holdings UT to
Pine Hill Branch Nutrient Offset & Buffer Mitigation Bank and the Wildlands
Holdings South Fork Nutrient Offset & Buffer Mitigation Bank
This is the 9th day of August, 2019.
Dr. A. Stanley Meiburg, Chairman
Environmental Management Commission
D

CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing Decision Granting Major
Variance upon counsel for the Applicant and the Division of Water Resources in the manner
described below as follows:
Michael C. Thelen, Esq.
Womble Bond Dickinson (US) LLP
555 Fayetteville Street, Suite 1100
Raleigh, NC 27601
Sue Homewood
401 & Buffer Permitting Unit
Winston-Salem Regional Office
Division of Water Resources
Karen Higgins, Supervisor
401 & Buffer Permitting Unit
Division of Water Resources
1617 Mail Service Center
Raleigh NC 27699-1617
This is the 9th day of August, 2019.
Certified Mail/ Return Receipt Requested
Receipt #: 7002 3150 0000 1312 7192
and [e-mail]
E-mail: sue.homewood(a)ncdenr.gov
E-mail: Karen.higgins(2ncdenr.gov
JOSH STEIN
Attorney General
Phi lip T. Reynolds
Special Deputy Attorney General
P. O. Box 629
Raleigh, N. C. 27602