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ENVIRONMENTAL MANAGEMENT COMMISSIONWATER QUALITY COMMITTEE MEETING MINUTESJuly 10, 2019MEETING BRIEFDuring their July 10, 2019 meeting, the Water Quality Committee (WQC) of the Environmental Management Commission (EMC):Approved unanimously the draft minutes for May 9, 2019 WQC meeting.Approved technical revisions to Water Supply Watershed Protection Program Rules 15A NCAC 02B .0621 and .0624.Voted to recommend the Environmental Management Commission (EMC) proceed to Public Notice on Proposed Reclassification of the Sandy Bottom Wetlands in Buncombe County (French Broad River Basin) to Class Unique Wetland (UWL).Approved a Major Variance from the Jordan Lake Riparian Area Protection Rule by Publix Super Markets Inc for the Publix Distribution Center at 311 Birch Creek Rd, McLeansville, NC.Approved a Major Variance from the Neuse River Riparian Area Protection Rule by Mrs. Heather Gates for the construction of a Screened Porch attached to an Existing Single-Family Residence at 1109 Ashford Lane, Cary, NC. WQC MEMBERS IN ATTENDANCEMs. Marion Deerhake, WQC Vice ChairmanMr. Steve KeenMs. Donna DavisMr. John McAdamsMs. Patricia HarrisMs. Maggie MonastMr. Mitch GillespieMr. Stan Meiburg, EMC ChairmanOTHER MEMBERS IN ATTENDANCEMs. Suzanne LazorickMr. Phillip Reynolds, EMC CounselI. Preliminary MattersCall to Order State Government Ethics Act - G.S. 163A-159(e). Conflicts of Interest, Review of May 8, 2019 WQC Meeting Minutes, and Other Preliminary Matters. Vice Chairman Deerhake called the July 10, 2019 Water Quality Committee meeting to order.She inquired, per General Statue 163A-159(e), as to whether any committee member knew of any conflict or appearance of conflict with respect to matters on the agenda for the meeting. Commissioner McAdams recused himself from agenda item 4. Review of May 8, 2019 WQC Meeting Minutes. Vice Chairman Deerhake asked for a motion to approve the May 9, 2019 WQC meeting minutes. EMC Chairman Meiburg moved to approve the minutes, and Commissioner Gillespie seconded the motion. Vice Chairman Deerhake called for discussion, there was none, and the minutes were approved unanimously. Other Preliminary Matters. The Vice Chairman announced that she, Commissioners Gillespie and Keen, and EMC Chairman Meiburg would be the WQC members at the table voting on action items on the July 10, 2019 WQC agenda. New members Davis, Harris, McAdams, and Monast will begin voting at the next WQC meeting.II. Agenda ItemsItems 1 & 2 below were annual reports which did not require WQC votes. Vice Chairman Deerhake sought WQC feedback on treating the two agenda items as a consensus agenda. No WQC members requested discussion or presentations by staff, so both reports were deemed accepted by consensus. 1. Annual Report on Water Supply Watershed Ordinance Approvals, Universal Stormwater Management Program Approvals, and Phase II Program – Paul Clark, Water Supply Watershed Protection Program, Division of Energy, Mineral and Land Resources2. 2019 Annual Report on Minor Modifications to Approved Major Variances –Karen Higgins, 401 & Buffer Permitting Branch, Division of Water Resources)3. Request Approval of Technical Revisions to Water Supply Watershed Protection Program Rules 15A NCAC 02B .0621 and .0624 DescriptionPaul Clark (DEMLR Water Supply Watershed Protection Program) presented recently discovered technical changes required for Water Supply Protection Program rules 15A NCAC 02B .0621 and .0624 (rules review package adopted by the EMC on January 10, 2019). Several terms in the 15A NCAC 02B .0621 currently cross-reference other rules’ definitions. Those rules will be amended, so the definitions must be added to .0621. In addition, one cross-reference in 15A NCAC 02B .0624 requires amendment due to organizational changes in the rules. Mr. Clark asked the WQC to recommend the EMC approve the technical changes and consider a 30-day waiver due to the time-sensitive circumstances.DiscussionThere was none.MotionEMC Chairman Meiburg moved that the WQC recommend the EMC approve the amendments, along with a 30-day waiver. The motion was seconded by Commissioner Gillespie. Vice Chairman Deerhake called for discussion, there was none, and the motion carried unanimously. 4. Request to Proceed to the Environmental Management Commission (EMC) for Public Notice on Proposed Reclassification of the Sandy Bottom Wetlands in Buncombe County (French Broad River Basin) to Class Unique Wetland (UWL) Description Adriene Weaver (DWR Classification, Standards and Rules Review Branch) reminded WQC members that on November 20, 2018, DWR received a petition for rulemaking from Mountain True, Defenders of Wildlife, and the North Carolina Wildlife Federation. The petitioners requested “the reclassification of the Sandy Bottom Wetlands in the French Broad River Basin from Class WL to Class WL UWL, in recognition of its status as a Unique Wetland (“UWL”).” Wetlands delineated by Mountain to Sea in August and October 2018 at Sandy Bottom qualify for the supplemental UWL classification because it supports natural wetland communities that provide habitat for rare and special concern animal or plant species. The Sandy Bottom properties where the wetlands are located are owned by the Board of Trustees for the Environmental Fund of the University of North Carolina at Asheville (UNCA), Long Branch Environmental Education Center. Inc (LBEEC), and a private citizen. North Carolina defines Unique Wetlands as “wetlands of exceptional state or national ecological significance, which require special protection to maintain existing rules. These wetlands may include wetlands that have been documented to the satisfaction of the Commission as habitat essential for the conservation of state or federally listed threatened or endangered species.” At their March 14, 2019 meeting, the EMC granted the rulemaking petition and, therefore, must initiate the rulemaking as required by N.C.G.S. 150B-20(c). Ms. Weaver requested the WQC consider recommending the EMC proceed to public notice with a proposed rule to reclassify the Sandy Bottom Wetlands as UWL. DiscussionCommissioner McAdams asked if permits are needed for NC Department of Transportation (NCDOT) projects in UWLs. Ms. Karen Higgins (DWR’s 401 Permitting Branch) replied that if an NCDOT project could potentially impact unique wetlands, it must first demonstrate a public need for the project and obtain a Clean Water Act Section 401 permit. For impacts other than UWL, NCDOT would have to seek a variance from the EMC rules. Commissioner Gillespie asked if the full Commission has heard from NCDOT on this proposal. EMC Chairman Meiburg replied that it has not. Commissioner Keen encouraged DWR staff to invite stakeholders to participate in the public hearing. There was discussion led by WQC Vice Chairman Deerhake about the option of not holding a public hearing on a proposed UWL reclassification. EMC Counsel Phillip Reynolds agreed to review and advise the EMC whether a public hearing would be required. MotionCommissioner Gillespie moved that the WQC recommend the EMC proceed to public notice with a proposed rule amendment to 15A NCAC 02B .0304 (French Broad River Basin) reclassifying the Sandy Bottom wetlands from Class WL to Class WL UWL. Commissioner Keene seconded motion. Vice Chair Deerhake called for discussion, there was none, and the motion carried unanimously. 5. Request for a Major Variance from the Jordan Lake Riparian Area Protection Rule by Publix Super Markets Inc for the Publix Distribution Center at 311 Birch Creek Rd, McLeansville NC DescriptionMs. Sue Homewood (DWR’s 401 and Buffer Permitting Branch) presented a request submitted by Publix Super Markets, Inc., for a major variance from the Jordan Lake Riparian Area Protection Rule for the construction of its proposed Publix Distribution Center within Zone 1 and Zone 2 of the buffer at the 311 Birch Creek Rd in McLeansville, Guilford County, NC. Guilford County has EMC-designated authority to administer the Jordan Lake Riparian Area Protection Rule. To mitigate the buffer impacts, Publix proposed to purchase buffer credits from the South Fork Nutrient offset and Buffer Mitigation Bank and the unnamed tributary to Pine Hill Branch Nutrient Offset and Buffer Mitigation Bank. Guilford County and the DWR staff reviewed the request and support granting a major variance because all the requirements in Section 7-1.12 of the Guilford County Development Ordinance have been met. DiscussionEMC Counsel Phillip Reynolds confirmed that the EMC has delegated its decision-making authority to the WQC. He provided instructions on some of the matters such as conflict of interest and impermissible legal basis that the WQC should consider when making variance decisions. EMC Chairman Meiburg inquired about the site’s existing land use. Ms. Homewood replied that the land is partially forested and partially a closed golf course. The site was selected because of its highway accessibility. She said that highway access was also a criterion used in the selection of an alternative site. Chairman Meiburg asked if wetland impacts have been considered in the alternative analysis process. She said that wetlands have been addressed in the application for Sections 401 and 404 permitting as part of the alternative analysis. Commissioner Keen asked if the site is the best alternative for the distribution center considering the size (300 plus acres) and its proximity to the highway. Commissioner Keen asked if there are any known future variance requests for the site. Ms. Homewood said that the site is the best alternative. Counsel Reynolds said that he did not see anything in the record that was presented to the EMC about future variance requests or future projects. Vice Chairman Deerhake asked if the site’s pond was simply a golf course pond. Ms. Homewood said yes. She asked Ms. Homewood to elaborate on the conditions for purchasing private mitigation credits and where the mitigation must be located. Commissioner Keen asked if Guilford County has a comprehensive land use plan and, if so, does it incorporate the site’s 300 plus acres. Ms. Homewood said that this site was approved through the county’s Watershed Development Plan. Ms. Theresa Andrews, Stormwater Administrator for Guilford County, said that the county has various planning and land use plans but that she was not sure about this specific site. She added that she was not certain whether the site is on a comprehensive land use strategy map but that it was approved by the county. Counsel Reynolds informed the WQC that the record confirms the County did approve the variance request. EMC Chairman Meiburg asked what activities surround the parcel. Counsel Reynolds said the record reflects that there is golf course on the property and the property is partially forested. EMC Chairman Meiburg also asked whether the project is the entire parcel. Ms. Homewood said yes. She went onto to say that there is a road in the center of the site, and NCDOT does have a project to work traffic around the site. Vice Chairman Ms. Deerhake asked Ms. Homewood if she attended any of the Guilford County meetings during their deliberations, if there are complete records of all the county’s meetings, and, if DWR monitors counties’ delegated authority. Ms. Homewood said that she did not attend the County’s meetings, that there are complete records of all their meetings, and DWR does audit their process – the number of variances issued and approved projects. Counsel Reynolds said that all the findings and conclusions of the Board were attached to the WQC’s agenda package, and based on his understanding of the record, the decision was derived through consideration of sworn testimony, as well documentary evidence related to those findings. Vice Chairman Deerhake asked the WQC if there were additional questions. There were none. MotionCommissioner Keen moved to grant the variance as presented by DWR staff and supported by Guilford County. Commissioner Gillespie seconded the motion. Vice Chairman Deerhake called for discussion, there was none, and the motion carried unanimously. 6. Request for a Major Variance from the Neuse River Riparian Area Protection Rule by Mrs. Heather Gates for the construction of a Screened Porch attached to an Existing Single-Family Residence at 1109 Ashford Lane, Cary NC DescriptionMr. Paul Wojoski (DWR’s 401 and Buffer Permitting Branch) presented the WQC a request for a major variance from the Neuse Riparian Area Protection Rules. Petitioner Heather Gates wishes to construction of a screened porch (attached to an existing single-family residence) within Zone 1 of the buffer area at 1109 Ashford Lane, Cary, NC. To mitigate the buffer impacts, Ms. Gates proposed to purchase buffer credits from Resource Environmental Solutions, a private mitigation bank. She also proposed to construct a rain garden to provide treatment for the stormwater runoff created by the proposed project. Mr. Wojoski reported that DWR staff reviewed the request, determined that request met all the requirements in 15A NCAC 02B .0233, and recommended that the WQC grant the major variance. DiscussionCommissioner Lazorick asked how much the buffer credit cost. Mr. Wojoski said that he wasn’t familiar with the exact current rate for buffer mitigation credit; however, it was on the order of one dollar per square foot. She asked why the applicant would have to buy mitigation credits when she is doing other improvements. Mr. Wojoski said it is important that diffuse flow and impervious flow is treated through stormwater management and, in addition, is provided for the direct impacts to the functionality of the buffer from the impervious surface separately required. In this scenario, Ms. Gates originally had proposed planting native woody riparian vegetation on the property but because there is an existing platted sewer easement that runs adjacent to the stream and covers property, the proposed planting would have been in the Town of Cary’s right of way and was not eligible. Vice Chairman Deerhake commented that in the future, the EMC may want to consider requiring a disclosure statement for variances (including variance conditions) when home ownership is transferred. MotionEMC Chairman Meiburg moved that the WQC grant the major variance, and Commissioner Gillespie seconded the motion. Vice Chairman Deerhake called for discussion, there was none, and the motion carried unanimously.7. Update on 319 Non-Point Source Program Annual ReportDescriptionMr. Rishi Bastakoti (DWR’s Nonpoint Source (NPS) Branch) presented a brief overview of North Carolina’s Clean Water Act Section 319 NPS Program (Program) which included information on Clean Water Act Section 319(h) funding for the State’s NPS management activities. The funding is designated for pass-through grants to government and nonprofit entities to conduct watershed restoration initiatives, as well as DWR NPS management staffing and programmatic activities. Mr. Bastakoti also presented the 319 grant accomplishments for 2018. DiscussionEMC Chairman Meiburg remarked that balancing between restoration projects and DWR NPS program funds is a significant effort. He stated that success stories are very important to document the outcome of project funding. He added that sometimes staff are needed to catalyze and help find ways to mobilize support from other sectors. Chairman Meiburg asked Mr. Bastakoti to describe how North Carolina benefits from direct project funding vs. supporting staffing. Mr. Bastakoti explained that as of 2014, EPA mandated that at least 50% of the 319 award to any state be used for on-the-ground implementation of a restoration project as opposed to just planning a restoration project or anything else related to NPS. He added that the exception to this mandate is a state’s choice to match the entire federal award with its own funding of restoration projects located in watersheds with approved 9-element plans. He said North Carolina is the only state in the country that has been able take advantage of that opportunity. Mr. Bastakoti agreed that staffing is important but overall, funding currently appears adequate to support the Program. A WQC member asked if the 40% match must be cash or if in-kind matches are allowed. Mr. Bastakoti explained that EPA allows cash and in-kind matching.The Vice Chairman asked staff in future 319 Program annual report presentations to include an historic compilation of the 319 projects across our state, amount funded, and whether the projects have ultimately achieved or supported restoration. III. Closing Comments – WQC Vice Chairman, Marion DeerhakeThe Vice Chairman asked the new or existing Commission members if they would like to make any remarks. The EMC Chairman invited the existing Commission members to attend the EMC Orientation meeting. The draft September 11, 2019 WQC meeting minutes were prepared by Paul Clark, Adriene Weaver, Sue Homewood, Paul Wojoski, Rishi Bastakoti, and Marion missioner Davis commented that the date directly above should be changed to July 10, 2019. The WQC Chairman (formerly known as the WQC Vice Chairman) asked for a motion on this matter. Commissioner Davis moved that the September 11, 2019 be changed to July 10, 2019, Vice Chairman Harris seconded the motion, and the motion carried unanimously. ................
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