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Hensley v. North Carolina Dep't of Env't & Natural Resources

ELR Citation: 39 ELR 20265
Nos. No. 08-1307, (N.C. Ct. App., 11/17/2009)

A North Carolina appellate court held that the North Carolina Sedimentation Control Commission erred in issuing a country club a variance from state buffer requirements allowing it to build a nine-hole golf course along and over Banks Creek, certified trout waters. The applicable state statute requires, at the very least, an undisturbed 25-foot buffer zone between classified trout waters and land disturbing activity. This mandatory buffer zone may only be violated by "temporary and minimal" land disturbing activity when specifically authorized by the Commission. Here, the country club's land disturbing activities are not minimal. The club completely removed 160 feet of the mandatory undisturbed buffer zone of Banks Creek by clearing all vegetation, removing trees and tree canopy within the buffer zone along 2,763 feet of Banks Creek, and re-routing a portion of the trout waters through 1,868 feet of underground piping. Nor is the club's activity temporary. The club will continue to conduct activity that may cause or contribute to sedimentation in the buffer zone after completion of all construction. The lower court, therefore, erred in upholding the variance based on its conclusion that the land-disturbing activities in this case were "temporary" and "minimal" in accordance with the statute.