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  "name": "NANCY HENSLEY, DIANE KENT, and CLEAN WATER FOR NORTH CAROLINA, INC., Petitioners-Appellants v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF LAND RESOURCES, Respondent-Appellee, and MOUNTAIN AIR DEVELOPMENT CORPORATION, Respondent-Intervenor",
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      "NANCY HENSLEY, DIANE KENT, and CLEAN WATER FOR NORTH CAROLINA, INC., Petitioners-Appellants v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF LAND RESOURCES, Respondent-Appellee, and MOUNTAIN AIR DEVELOPMENT CORPORATION, Respondent-Intervenor"
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        "text": "McGEE, Judge.\nMountain Air Development Corporation (Mountain Air) owns Mountain Air Country Club in Yancey County. At the time the dispute in this case arose, Mountain Air Country Club included a lodge, an eighteen-hole golf course, residences, and a private airstrip. Mountain Air sought approval in 2003 to construct a nine-hole golf course along and over Banks Creek, certified trout waters (trout waters), as defined by 15A N.CA.C. 2B.0304(a)(l). Mountain Air sought approval of a variance from the Sedimentation Control Commission (the Commission) of the Division of Land Resources, a division of the Department of Environment and Natural Resources ((DENR), and along with Mountain Air, (Respondents)). The variance was required to conduct land-disturbing activities during periods of construction within the mandatory buffer zone provided for in N.C. Gen. Stat. \u00a7 113A-57(1) of Article 4, Chapter 113A of the North Carolina General Statutes: the \u201cPollution Control and Environment Sedimentation Pollution Control Act of 1973\u201d (the Act).\nTrout waters, such as Banks Creek, are \u201c[s]uitable for natural trout propagation and maintenance of stocked trout[,]\u201d 15A N.C.A.C. 2B.0301(c), and constitute \u201cfreshwaters protected for natural trout propagation and survival of stocked trout.\u201d 15A N.C.A.C. 2B.0101(e)(l). Banks Creek is also \u201cprotected for secondary recreation, fishing, aquatic life including propagation and survival, and wildlife.\u201d 15A N.C.A.C. 2B.0101(c)(l).\nThe Commission granted Mountain Air\u2019s request for a variance from the buffer requirements mandated in N.C. Gen. Stat. \u00a7 113A-57(1). Mountain Air then proceeded to remove trees and tree canopy'along 2,763 feet of Banks Creek, and to clear all buffer vegetation along 160 feet of Banks Creek. Mountain Air also temporarily diverted the course of a section of Banks Creek through pipes eighteen inches in diameter in order to install 1,868 feet of underground pipes, some as small as 36 inches in diameter. Finally, Mountain Air redirected that section of Banks Creek into the underground pipe system, and began construction of a fairway over a section of the piped trout waters.\nClean Water for North Carolina, Inc. (Clean Water) is a public interest group that provides support to local community efforts on issues related to water-quality, and has members who live on or near Banks Creek, including Nancy Hensley and Diane Kent (together with Clean Water, \u201cPetitioners\u201d).\nPetitioners filed a petition for a contested case hearing in the Office of Administrative Hearings on 12 November 2003, challenging the variance granted by the Commission to Mountain Air. Petitioners allege that Mountain Air\u2019s actions violate relevant statutes, will have a negative impact on Banks Creek, and will \u201csignificantly adversely impact [their] ability to use and enjoy their property.\u201d Mountain Air moved to intervene, and its motion was granted on 7 January 2004.\nPetitioners and Respondents filed cross-motions for summary judgment, which were heard on 4 August 2004. By order filed 12 January 2006, Administrative Law Judge James L. Conner, II (the ALJ), granted both Petitioners\u2019 and Respondents\u2019 motions in part and denied both in part, ruling that genuine issues of material fact existed with respect to certain issues included in the motions for summary judgment. Relevant to this appeal, the AU ruled that N.C. Gen. Stat. \u00a7 113-57(1) prohibited the actions undertaken by Mountain Air, stating after lengthy analysis:\n[T]he straightforward interpretation of N.C. Gen. Stat. \u00a7 113-57(1) that I have set out above not only gives the terms of the statute their most natural and direct meaning, it also carries forward the intent of the statute. Development is prohibited in the buffer zones except in exceptional circumstances: truly temporary and minimal incursions that are approved by the Commission (such as travel across the buffer by heavy equipment for staging purposes, with appropriate protections to assure that the sedimentation is minimal); facilities located on, over, or under a watercourse, which cannot logically have a buffer (such as docks and bridges); and land-disturbing activity in connection with the latter (such as roads leading to bridges).\nRespondents filed a \u201cMotion for Reconsideration of Order and for Certification to N.C. Sedimentation Control Commission\u201d on 12 April 2006. Petitioners and Respondents joined in a consent order on 27 September 2006, which certified the matter to the Commission for a final agency decision. The Commission entered its final decision on 19 January 2007, in which it overruled the ALJ on the issue of whether Mountain Air\u2019s actions within the buffer zone were temporary and minimal, and entered summary judgment in favor of Respondents on that issue. Petitioners appealed the final agency decision to the Superior Court of Wake County. The trial court affirmed the final agency decision by order filed 2 July 2008, entering \u201csummary judgment ... in favor of [Respondents] on all matters raised in the Petition for Judicial Review.\u201d Petitioners appeal.\nWe note that the Additional Factual and Procedural Background provided by the dissent may show that Mountain Air obtained the appropriate certifications and permits from other agencies before commencing construction of the project. These additional facts may also show that Mountain Air made considerable efforts to minimize the potential for sedimentation runoff during the main construction phase of the project, and that the Commission subjected Mountain Air to stringent requirements in an effort to minimize sediment runoff. Further, whether or not waters certified as trout waters actually currently contain trout is beyond the scope of this appeal. We are. confined to making a determination based upon the classification of the waters made by the State of North Carolina, and are without authority to question that determination in this appeal. Certifications and permits issued by other agencies are not relevant to our determination of whether the variance granted by the Commission was proper. Nor may stringent conditions placed upon an improperly granted variance transform it into a properly granted variance. We do not find the additional facts included in the dissent\u2019s argument relevant to this appeal.\nI.\n\u201cSection 150B-51(c) dictates the standard of judicial review in cases in which the agency does not adopt the AU\u2019s decision. N.C.G.S. \u00a7 150B-51(c).\u201d Cape Med. Transp., Inc. v. N.C. HHS, 162 N.C. App. 14, 21, 590 S.E.2d 8, 13 (2004).\nAs provided in section 150B-51(c), in its de novo review of an agency decision declining to adopt the AU\u2019s decision, the trial court \u201cshall make findings of fact and conclusions of law . . . and shall not be bound by the findings'of fact... in the agency\u2019s final decision.\u201d N.C.G.S. \u00a7 150B-51(c) (emphasis added). The plain language of the section permits the trial court to review the official record and make its own findings of fact and conclusions of law, without giving deference to any prior agency or ALJ decision. \u201cDe novo review requires a court to consider the question anew, as if the agency has not addressed it.\u201d \u201cPresumably, [section 150B-51(c)] makes clear that unlike the de novo review of questions of law under the traditional standard of review, in which the court might in some cases give \u2018some deference\u2019 even to questions of law, such deference is not to be given to any aspect of any prior decision in the case.\u201d\nThe legislative intent behind section 150B-51(c) is to increase the judicial scope of review in cases in which an agency rejects the AU\u2019s decision. Before the enactment of section 150B-51(c), \u201cthe standard of review for findings of fact [in the final agency decision] was very deferential [to the agency].\u201d\nWe acknowledge our Courts have previously held that an agency\u2019s findings of fact if not objected to constituted the whole record and were binding on appeal. However, these cases were decided before section 150B-51(c) came into effect and are thus not applicable here. Therefore, consistent with section 150B-51(c), the trial court is permitted to make its own findings of fact, even though neither party objected to those findings.\nId. at 21-22, 590 S.E.2d at 13-14 (internal citations omitted); see also Rainey v. N.C. Dep\u2019t of Pub. Instruction, 361 N.C. 679, 680, 652 S.E.2d 251, 252 (2007). When our Court reviews\na superior court order regarding an agency decision, \u201cthe appellate court examines the trial court\u2019s order for error of law. The process has been described as a twofold task: (1) determining whether the trial court exercised the appropriate scope of review and, if appropriate, (2) deciding whether the court did so properly.\u201d\nMann Media, Inc. v. Randolph County Planning Bd., 356 N.C. 1, 14, 565 S.E.2d 9, 18 (2002) (citations omitted); see also McHugh v. North Carolina Dep\u2019t of Envtl., Health & Natural Resources, 126 N.C. App. 469, 474, 485 S.E.2d 861, 864 (1997). \u201cThe standard of review on a summary judgment motion is whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law.\u201d Cornett v. Watauga Surgical Group, P.A., \u2014 N.C. App.-,-, 669 S.E.2d 805, 811 (2008).\nThe case before us involves interpretation of N.C. Gen. Stat. \u00a7 113A-57(1).\nWhen construing statutes, [the appellate] Court first determines whether the statutory language is clear and unambiguous. If the statute is clear and unambiguous, we will apply the plain meaning of the words, with no need to resort to judicial construction. \u201cHowever, when the language of a statute is ambiguous, this Court will determine the purpose of the statute and the intent of the legislature in its enactment.\u201d []\u201cThe best indicia of [legislative] intent are the language of the statute or ordinance, the spirit of the act and what the act seeks to accomplish.\u201d\nWiggs v. Edgecombe County, 361 N.C. 318, 322, 643 S.E.2d 904, 907 (2007) (internal citations omitted); see also Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 518, 597 S.E.2d 717, 722 (2004) (\u201cIf the language is ambiguous or unclear, the reviewing court must construe the statute in an attempt not to \u2018defeat or impair the object of the statute ... if that can reasonably be done without doing violence to the legislative language.\u2019 \u201d) (citation omitted). We review de novo issues of statutory interpretation. R.J. Reynolds Tobacco Co. v. N.C. Dep\u2019t of Env\u2019t & Natural Res., 148 N.C. App. 610, 616, 560 S.E.2d 163, 167 (2002); see also In re Proposed Assessments of Additional Sales & Use Tax v. Jefferson-Pilot Ins. Co., 161 N.C. App. 558, 559, 589 S.E.2d 179, 180 (2003).\nII.\nPetitioners argue on appeal that the trial court erred in concluding that the land-disturbing activities in this case were \u201ctemporary\u201d and \u201cminimal\u201d and thus authorized by N.C. Gen. Stat. \u00a7 113A-57(1). We agree.\nN.C. Gen. Stat. \u00a7 113A-57, \u201cMandatory Standards for Land-Disturbing Activity,\u201d states in relevant part:\nNo land-disturbing activity subject to this Article shall be undertaken except in accordance with the following mandatory requirements:\n(1) No land-disturbing activity during periods of construction or improvement to land shall be permitted in proximity to a lake or natural watercourse unless a buffer zone is provided along the margin of the watercourse of sufficient width to confine visible siltation within the twenty-five percent (25%) of the buffer zone nearest the land-disturbing activity. Waters that have been classified as trout waters by the Environmental Management Commission shall have an undisturbed buffer zone 25 feet wide or of sufficient width to confine visible siltation within the twenty-five percent (25%) of the buffer zone nearest the land-disturbing activity, whichever is greater. Provided, however, that the Sedimentation Control Commission may approve plans which include land-disturbing activity along trout waters when the duration of said disturbance would be temporary and the extent of said disturbance would be minimal. This subdivision shall not apply to a land-disturbing activity in connection with the construction of facilities to be located on, over, or under a lake or natural watercourse.\nN.C. Gen. Stat. \u00a7 113A-57(1) (2007). Land-disturbing activity is defined in relevant part as: \u201cany use of the land by any person in . . . commercial development. . . that results in a change in the natural cover or topography and that may cause or contribute to sedimentation.\u201d N.C. Gen. Stat. \u00a7 113A-52(6) (2007).\nWe hold that the completed actions of Mountain Air: removing or reducing ground cover in buffer zones, replacing forested land with fairways, re-routing portions of Banks Creek, and re-diverting the creek through underground piping, constituted \u201cland-disturbing activity.\u201d These actions clearly changed the natural ground cover and topography, and undoubtedly had the potential to \u201ccause or contribute to sedimentation.\" In its \u201cOverview of Pipe Installation Strategy,\u201d Mountain Air stated that it had \u201cdetermined that by creating work teams the chance of sediment leaving the site will be reduced.\u201d (Emphasis added). This is an admission that though they believed their strategy would reduce the chance of sediment leaving the site \u2014 which was in the trout waters buffer zone \u2014 the chance of sediment leaving the site of the land-disturbing activities was still a real possibility.\nThe trial court found that \u201cMountain Air [would] only be conducting a \u2018land-disturbing activity\u2019 (i.e., an activity that \u2018may cause or contribute to sedimentation\u2019) while doing construction in the trout buffer.\u201d The trial court also found \u201cno evidence in the record that there [would] be the potential for or actual sedimentation after the work in the trout buffer [was] completed and stabilized.\u201d However, these findings are not supported by competent evidence in the record.\nThe evidence in the record shows that Mountain Air will continue to conduct activity in the trout waters buffer zone after completion of all construction. Specifically, Mountain Air will have to periodically remove trees and tree canopy in order to maintain the functionality of the golf course, and maintenance and repair of culverts and piping will also be required. We hold, as a matter of law, that this ongoing activity \u201cmay cause or contribute to sedimentation\u201d (emphasis added), and thus constitutes ongoing \u201cland-disturbing activity.\u201d\nN.C. Gen. Stat. \u00a7 113A-57(1) clearly and unambiguously mandates two different standards for land-disturbing activity, depending on whether the fresh waters involved have been classified as \u201ctrout waters.\u201d The statute is also clear on its face that the buffer zone required for classified trout waters is more stringent than that mandated for other fresh waters. Respondents admitted that \u201c[m]ore stringent buffer requirements apply to watercourses classified as trout waters\u201d in their \u201cMotion for Reconsideration of Order and for Certification to N.C. Sedimentation Control Commission.\u201d Respondents also admit in their brief that the trout waters provision of N.C. Gen. Stat. \u00a7 113A-57(1) is a more stringent regulation.\nThe requirement for fresh waters in general is a buffer zone \u201cof sufficient width to confine visible siltation within the twenty-five percent (25%) of the buffer zone nearest the land-disturbing activity.\u201d N.C. Gen. Stat. \u00a7 113A-57(1). However, the statute further mandates that classified trout waters \u201cshall have an undisturbed buffer zone 25 feet wide or of sufficient width to confine visible siltation within the twenty-five percent (25%) of the buffer zone nearest the land-disturbing activity, whichever is greater.\u201d\nThe dissent states that there \u201cis no authority in the General Stat\u00fates, or in the regulations for\u201d the proposition that buffer zones along trout streams \u201cbe maintained in a natural, pristine state in perpetuity.\u201d The dissent seems troubled by the idea that the mandatory language of N.C. Gen. Stat. \u00a7 113A-57(1), requiring an undisturbed buffer zone, would leave this buffer zone in place \u201cin perpetuity.\u201d We would suggest the language of N.C. Gen. Stat. \u00a7 113A-57(1) cited directly above is a clear pronouncement by the General Assembly that, subject to certain limited exceptions, mandatory trout waters buffer zones shall remain \u201cundisturbed\u201d in perpetuity, or until such time as the General Assembly decides to enact legislation to the contrary. Were we to ignore the plain language of the statute, we would be intruding into the province of the General Assembly, which, as the dissent correctly points out, is counter to the authority of this Court. We find nothing unusual about this restriction being placed in a statute dealing with sedimentation control through the regulation of land-disturbing activities, as the General Assembly has determined that such activities, and the sediment they may produce, constitute one of the primary threats to trout waters, and fresh waters in general. N.C. Gen. Stat. \u00a7 113A-51 (2007).\nThe plain language of N.C. Gen. Stat. \u00a7 113A-57(1) requires an undisturbed twenty-five foot buffer zone, or, if twenty-five feet is insufficient, a larger undisturbed buffer zone, between classified trout waters and land-disturbing activity. This mandatory buffer zone may only be violated by \u201ctemporary and minimal\u201d land-disturbing activity when specifically authorized by the Commission. The exclusionary clause reads: \u201cProvided, however, that the Sedimentation Control Commission may approve plans which include land-disturbing activity along trout waters when the duration of said disturbance would be temporary and the extent of said disturbance would be minimal.\u201d \u201cSaid disturbance\u201d can only refer to \u201cland-disturbing activity,\u201d which is the only \u201cdisturbance\u201d mentioned in the exclusionary clause, and indeed, in the whole of N.C. Gen. Stat. \u00a7 113A-57(1). N.C. Gen. Stat. \u00a7 H3A-57(1) requires that, even with approval from the Commission, land-disturbing activity within the mandatory undisturbed buffer zone, whether it be twenty-five feet or larger, must be both temporary and minimal.\nThere is nothing in the plain language of N.C. Gen. Stat. \u00a7 113A-57(1) that contemplates disturbance in the mandatory buffer zone protecting classified trout waters beyond the \u201ctemporary and minimal\u201d exception. Clearly, land-disturbing activity that permanently removes the mandatory undisturbed buffer zone for trout waters from portions of trout waters far exceeds the authority granted in N.C. Gen. Stat. \u00a7 113A-57(1) for temporary and minimal land-disturbing activities within the buffer zone.\nMountain Air conducted land-disturbing activity as defined by N.C. Gen. Stat. \u00a7 113A-52(6) within the mandatory buffer zone on 4,791 feet of Banks Creek. Mountain Air completely removed 160 feet of the mandatory undisturbed buffer zone of Banks Creek by clearing all vegetation. Mountain Air further removed trees and tree canopy within the buffer zone along 2,763 feet of Banks Creek. Mountain Air also re-routed a portion of the trout waters and installed 1,868 feet of underground piping, finally re-directing the stream through the permanent piping. This land-disturbing activity cannot be deemed \u201cminimal\u201d by any reasonable definition of that word. 15A N.C.A.C. 4B.0125(c) provides specific guidance on what may be considered \u201cminimal\u201d disturbance within a trout water buffer zone:\nWhere a temporary and minimal disturbance is permitted as an exception by G.S. 113A-57(1), land-disturbing activities in the buffer zone adjacent to designated trout waters shall be limited to a maximum of ten percent of the total length of the buffer zone within the tract to be distributed such that there is not more than 100 linear feet of disturbance in each 1000 linear feet of buffer zone. Larger areas may be disturbed with the written approval of the Director [of the Division of Land. Resources of the Department of Environment, Health, and Natural Resources. 15A N.C.A.C. 4A.0105(26)].\n15A N.C.A.C. 4B.0125(c). By Mountain Air\u2019s own calculations, the total trout water length within the tract disturbed is 21,526 linear feet. Mountain Air has conducted land-disturbing activities \u2014 removal of all natural ground cover from the buffer zone, tree and tree canopy removal in buffer zone, and re-routing Banks Creek to enable pipe placement \u2014 that affect 4,791 linear feet of the trout waters on the property. That constitutes land-disturbing activity on over twenty-two percent of the trout waters buffer zone within the tract to be disturbed. There is nothing in the record to show that Mountain Air received written approval of the Director to exceed the limits mandated by 15A N.C.A.C. 4B.0125(c).\nWe cannot agree with the dissent\u2019s argument that, because respondent issued a variance pursuant to 15A N.C.A.C. 4B.0125(c), this variance automatically constituted \u201cwritten approval of the Director.\u201d 15A N.C.A.C. 4B.0125(c) unambiguously requires \u201cwritten approval\u201d for any variance exceeding the \u201ctemporary and minimal\u201d standard set forth in N.C. Gen. Stat. \u00a7 113A-57(1). There is nothing in the language of 15A N.C.A.C. 4B.0125(c) to suggest approval may be implied. Contrary to the assertion of the dissent, the variance issued by Respondent does not indicate that Mountain Air made any request to exceed the ten percent maximum, nor that Respondent ever considered the fact that Mountain Air would be exceeding that maximum. Respondent did not address any exception to the ten percent maximum in the variance it granted, and therefore did not give Mountain Air written permission in that variance to exceed the ten percent maximum mandated by 15A N.C.A.C. 4B.0125(c). Mountain Air needed to request approval from the Director, and the Director was required to grant specific approval, in writing. Therefore, pursuant to N.C. Gen. Stat. \u00a7 113A-57(1) and 15A N.C.A.C. 4A.0105(26), the land-disturbing activities conducted by Mountain Air during construction of the project were not \u201cminimal,\u201d and no variance should have been granted by the Commission.\nFurthermore, the evidence shows that this land-disturbing activity was meant to be permanent, or to continue for at least as long as the projected nine-hole golf course remained in use. Respondents do not argue that the changes they have made, or will make, to the mandatory undisturbed buffer zone are in any manner \u201ctemporary.\u201d Respondents base their argument on their contention that the \u201cminimal and temporary\u201d language in N.C. Gen. Stat. \u00a7 113A-57(1) refers to the effects of sedimentation runoff, not land-disturbing activity within the buffer zone. We have already rejected this argument based upon the plain meaning of the statute.\nFurther, there is no authority in the statutes or the administrative code authorizing relocation of a trout water in this case. 15A N.C.A.C. 4B.0112 states:\nLand disturbing activity in connection with construction in, on, over, or under a lake or natural watercourse shall minimize the extent and duration of disruption of the stream channel. Where relocation of a stream forms an essential part of the proposed activity, the relocation shall minimize unnecessary changes in the stream flow characteristics.\n15A N.C.A.C. 4B.0112 (emphasis added). This provision is limited to that part of N.C. Gen. Stat. \u00a7 113A-57(1) concerning land-disturbing activities \u201con, over, or under a lake or natural watercourse\u201d (\u201cThis subdivision shall not apply to a land-disturbing activity in connection with the construction of facilities to be located on, over, or under a lake or natural watercourse.\u201d N.C. Gen. Stat. \u00a7 113A-57(1).). Therefore, 15A N.C.A.C. 4B.0112 only applies to those activities which are specifically exempted from the \u201ctemporary and minimal\u201d requirements of N.C. Gen. Stat. \u00a7 113A-57(1). Respondents made no argument to the trial court, and no argument is made on appeal, that this section of N.C. Gen. Stat. \u00a7 113A-57(1) applies in this case.\nNeither the statutes nor the administrative code contain any similar authorization for the re-routing of fresh waters for land-disturbing activities not covered by the \u201con, over, or under\u201d exemption of N.C. Gen. Stat. \u00a7 113A-57(1). Therefore, the re-routing of a portion of Banks Creek in itself constituted a violation of the provisions of the Act, and the Commission was without authority to approve a variance which contained this kind of land-disturbing activity within the mandatory trout buffer zone. The trial court erred in granting summary judgment in Respondents favor.\nThe dissent seems to imply that we are addressing an argument Petitioners abandoned at the trial level by considering the \u201con, over, or under\u201d exemption of N.C. Gen. Stat. \u00a7 113A-57(1). However, we make no holding in this opinion on the argument Petitioners abandoned before the trial court. In fact, Petitioners stated \u201cissue to be resolved\u201d in their prehearing statement concerning this issue is: \u201cG.S. 113A-57(1) states there can be no \u2018land-disturbing activity in connection with the construction of facilities to be located on, over, or under a lake or natural watercourse.\u2019 \u201d Although this issue is not before us on appeal, our analysis of this section in support of our reading of the contested portion of N.C. Gen. Stat. \u00a7 113A-57(1) clearly rejects Petitioner\u2019s arguments before DENR on this point.\nWe conduct de novo review of matters of statutory construction. It is entirely appropriate to look to other related statutory provisions when making our intent based analysis of N.C. Gen. Stat. \u00a7 113A-57(1), which we do below. We find particularly confusing the dissent\u2019s subsequent use of this portion of N.C. Gen. Stat. \u00a7 113A-57(.l) to support its belief that \u201cconstruction of a golf-course \u2018over\u2019 the stream falls within this specific exception.\u201d\nWe find the dissent\u2019s conclusion that the General Assembly intended to include golf courses within the \u201con, over, or under\u201d exemption of N.C. Gen. Stat. \u00a7 113A-57(1) renders the protections provided by N.C. Gen. Stat. \u00a7 113A-57(1) virtually meaningless. As the AU reasonably interpreted this portion of the statute, the \u201con, over, or under\u201d exemption logically refers to bridges, docks, [or conduits for sewage, water or electrical lines and other structures] that must necessarily \u201ccross\u201d or rest upon waters of North Carolina. Pursuant to the dissent\u2019s interpretation, constructing any structure within the mandatory buffer zones would always be permitted so long as the waterway was diverted to run beneath the structure, and any such land-disturbing activity would be permitted without any regard to the effects of sedimentation caused by that construction. Furthermore, as the dissent itself argues, whether this section might provide specific grounds for the issuance or refusal of the variance is an issue not before us. Its only relevance is in assisting in the interpreting of those portions of N.C. Gen. Stat. \u00a7 113A-57(1) that are actually before us on appeal.\nWe hold that the trial court\u2019s finding that \u201cMountain Air [would] \u2022 only be conducting a \u2018land-disturbing activity\u2019 (i.e., an activity that \u2018may cause or contribute to sedimentation\u2019) while doing construction in the trout buffer\u201d is not supported by substantial evidence. The trial court\u2019s finding that there is \u201cno evidence in the record that there [would] be the potential for or actual sedimentation after the work in the trout buffer [was] completed and stabilized\u201d was in error for the same reason. The substantial evidence in the record shows that Mountain Air will continue to conduct activity in the trout water buffer zone after completion of initial construction of the project. Specifically, Mountain Air will have to periodically remove trees and tree canopy in order to maintain the functionality of the golf course, and maintenance and repair of culverts and piping will also be required. \u201c \u2018Completion of Construction or Development\u2019 means that no further land-disturbing activity is required on a phase of a project except that which is necessary for establishing a permanent ground cover.\u201d 15A N.C.A.C. 4A.0105(23) (emphasis added). Mountain Air\u2019s ongoing activities within the trout waters buffer zone will serve to reduce the effectiveness of the buffer zone in preventing sedimentation, and cannot be interpreted as actions \u201cnecessary for establishing\n3. Assuming arguendo the dissent\u2019s construction of the definition of \u201cland-disturbing activities\u201d is correct in its second footnote, our analysis is unchanged. Our use of the word \u201cmaintenance\u201d was not meant to invoke N.C. Gen. Stat. \u00a7 113A-52(6). Our abridged citation to the definition of \u201cland-disturbing activities\u201d above, does not include the word \u201cmaintenance,\u201d because we do not find it relevant to the definition on these facts. We hold that the activities Mountain Air will continue to perform constitute \u201cland-disturbing activities\u201d because they are a \u201cuse of the land by [a] person in .. . commercial development... that results in a change in the natural cover or topography and that may cause or contribute to sedimentation.\u201d N.C. Gen. Stat. \u00a7 113A-52(6). a permanent ground cover.\u201d We hold, as a matter of law, that this ongoing activity \u201cmay cause or contribute to sedimentation\u201d (emphasis added), and thus constitutes \u201cland-disturbing activity.\u201d N.C. Gen. Stat. \u00a7 113A-52(6). We further hold that by definition, this continuing land-disturbing activity means the \u201cconstruction or development\u201d will not be \u201ccompleted\u201d unless and until the nine-hole golf course ceases operation, because Mountain Air (or any successor) will continue land-disturbing activities within the buffer zone in order to keep the golf course functional. 15A N.C.A.C. 4A.0105(23).\nWe reiterate that violations of the provisions N.C. Gen. Stat. \u00a7 113A-57(1) cannot be ignored even if great care is taken when violating the statute. The dissent argues that extraordinary measures will be taken in an attempt to minimize negative impact in the buffer zone area. However, removal of tree canopy may result in more rain reaching the ground in the buffer zone unimpeded, and thus with increased force. This may lead to erosion and sedimentation of the trout waters. Removal of trees obviously may lead to the same result. Tree stumps and root mass eventually rot, and thus no longer serve to either check the flow of water over the buffer zone, nor serve to bind the soil. This may lead to sedimentation of the trout waters. Repair or maintenance of piping may require the removal of damaged or deteriorating piping and replacement with new piping. Both the digging and the removal would likely require heavy machinery. However done, this process certainly may lead to sediment entering the trout waters. These constitute land-disturbing activities, N.C. Gen. Stat. \u00a7 113A-52(6), and, as they will be ongoing, by definition the construction phase of the project will continue as long as these land-disturbing activities are ongoing. 15A N.C.A.C. 4A.0105(23) (\u201c \u2018Completion of Construction or Development\u2019 means that no further land-disturbing activity is required on a phase of a project except that which is necessary for establishing a permanent ground cover.\u201d).\nThe dissent argues that the above analysis constitutes inappropriate \u201cfact-finding\u201d by this Court. However, we are not required to determine whether Mountain Air\u2019s activities have or will contribute to sedimentation, and we do not do so. What is clear to us, however, is that Mountain Air cannot prove that its activities could never contribute to sediment entering the trout waters. In light of this, we are compelled to hold that Mountain Air\u2019s activities may contribute to sediment entering the trout waters.\nThe fact that Mountain Air has enclosed 1,868 feet of the trout waters in underground pipes does not save it from the plain language of the statute. Even assuming arguendo that piping 1,868 feet of the trout water is an effective means of preventing sedimentation from entering the stream, the statute regulates \u201cland-disturbing activity.\u201d We have already held that the land-disturbing activities utilized to place the pipe, including the re-routing of portions of Banks Creek, violated N.C. Gen. Stat. \u00a7 113A-57(1). Further, there has been no argument made, nor is it logical to conclude, that burying the stream and routing it through piping alters the classification of the stream from trout waters to another kind of watercourse.\nTrout waters \u201cshall have an undisturbed buffer zone 25 feet wide or of sufficient width to confine visible siltation within the twenty-five percent (25%) of the buffer zone nearest the land-disturbing activity, whichever is greater.\u201d N.C. Gen. Stat. \u00a7 113A-57(1) (emphasis added). The statute makes no exception for trout waters that have been buried. The use of the piping itself could cause or contribute to sedimentation of Banks Creek. For example, a storm could lead to blockage of a pipe causing backup, and flooding across and over the piped portion of the creek, which could accumulate sediment that would then be deposited into the downstream portion of the creek where the piping ends. In the alternative, heavy rains causing flooding may be forced through unblocked piping with increased velocity due to the force exerted by the accumulating water on the upstream end of the piping. This would result in water exiting the piping downstream at increased velocity, which certainly presents the possibility of heightened erosion and sedimentation that would not occur absent the piping. We cannot say that the use of piping presents no hazzard of increased sedimentation. Therefore, we must find that the use of piping may cause increased sedimentation in the trout waters.\nThe dissent considers the above analysis speculative \u201cconcerning the possibility\u201d that the piping may contribute to sedimentation, and argues that \u201c[t]his speculation is beyond the scope of the permit before this Court.\u201d That the piping will at some point in time deteriorate and require maintenance if it is to continue functioning is not speculation, since it will not last forever. We must apply the law before us. If Mountain Air continues to operate the golf course for a long enough period of time, it will eventually need to repair or replace the existing piping. This certainly may lead to sediment entering the trout waters. If Mountain Air ceases to operate the golf course, maintenance will fall to its successors in interest. Pipe maintenance will constitute future land-disturbing activity that has been guaranteed by the issuance of the permit before us.\nThe dissent next focuses on the benefits of piping during heavy rains, as those portions of the trout waters enclosed within the piping will not suffer erosion (assuming no cracks or other problems with the piping). The point of our analysis is focused on the terminal end of the piping, and that portion of the trout waters into which the piped water will be deposited, not the banks of the trout waters that no longer exist because of the piping. Our holding does not mean that \u201ca stream could never be piped because the possible risk of increased water velocity might cause erosion.\u201d It does mean that the massive piping conducted in the case before us for the construction of a golf course violates the mandate of N.C. Gen. Stat. \u00a7 113A-57(1). It would defeat the purpose of N.C. Gen. Stat. \u00a7 113A-57(1) to assume the General Assembly intended for the \u201con, over or under\u201d exemption to allow unfettered development over North Carolina\u2019s trout waters so long as those waters are piped. Utilization of the \u201con, over or under\u201d exemption to N.C. Gen. Stat. \u00a7 113A-57(1) for the piping necessary to construct a roadway over a trout water, for example, would be more consistent with the stated purpose of the Act.\nContrary to the dissent\u2019s assertion, the express intent of the General Assembly as set forth in N.C. Gen. Stat. \u00a7 113A-51 is not to allow the protections it specifically enacted for trout waters to be as easily circumvented as they were in the case before us. The intent of the General Assembly as stated in N.C. Gen. Stat. \u00a7 113A-51 is much different than the single line from the five sentence preamble to which the dissent refers. When one reads N.C. Gen. Stat. \u00a7 113A-51 in its entirety, it is clear that the intent of the General Assembly was protection of our waters from the effects of sedimentation caused by unchecked development. The sentence the dissent quotes from the preamble merely states the reasonable desire of the General Assembly to allow development along our waters so long as that development complies with the restrictions enacted to protect those waters.\nWe hold that the plain language of N.C. Gen. Stat. \u00a7 113A-57(1) prohibits the kind of land-disturbing activity conducted by Mountain Air. The trial court erred in determining Mountain Air\u2019s activities conformed with the provisions of N.C. Gen. Stat. \u00a7 113A-57(1), and in entering summary judgment in favor of Respondents.\nIII.\nAssuming arguendo that the language of N.C. Gen. Stat. \u00a7 113A-57(1) is in some manner ambiguous, we hold that Mountain Air\u2019s activities still violate the mandate of N.C. Gen. Stat. \u00a7 113A-57(1). As stated supra, \u201cthe Sedimentation Control Commission may approve plans which include land-disturbing activity along trout waters when the duration of said disturbance would be temporary and the extent of said disturbance would be minimal.\u201d N.C. Gen. Stat. \u00a7 113A-57(1).\nWhen the plain language of a statute proves unrevealing, a court may look to other indicia of legislative will, including: \u201cthe purposes appearing from the statute taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied, the remedy, the end to be accomplished, statutes in pari materia, the preamble, the title, and other like means[.]\u201d The intent of the General Assembly may also be gleaned from legislative history. Likewise, \u201clater statutory amendments provide useful evidence of the legislative intent guiding the prior version of the statute.\u201d Statutory provisions must be read in context: \u201cParts of the same statute dealing with the same subject matter must be considered and interpreted'as a whole.\u201d \u201cStatutes dealing with the same subject matter must be construed in pari materia, as together constituting one law, and harmonized to give effect to each.\u201d\nJefferson-Pilot, 161 N.C. \u00c1pp. at 560, 589 S.E.2d at 181. \u201c[T]he reviewing court must construe the statute in an attempt not to \u2018defeat or impair the object of the statute ... if that can reasonably be done without doing violence to the legislative language.\u2019 \u201d Carolina Power & Light, 358 N.C. at 518, 597 S.E.2d at 722. We hold that Respondents\u2019 interpretation of N.C. Gen. Stat. \u00a7 113A-57(1) cannot be adopted without defeating or impairing \u201cthe object of the statute,\u201d and \u201cwithout doing violence to the legislative language [of that statute].\u201d\nPetitioners and Respondents take opposing views on the legislative intent behind N.C. Gen. Stat. \u00a7 113A-57(1). Petitioners argue that N.C. Gen. Stat. \u00a7 113A-57(1) is intended to regulate \u201cland-disturbing activities,\u201d relying on the language of the statute. Respondents argue that N.C. Gen. Stat. \u00a7 113A-57(1) is intended to regulate \u201csedimentation,\u201d relying on the title of Article 4 of Chapter 113A of the North Carolina General Statutes, in which N.C. Gen. Stat. \u00a7 113A-57(1) is found. Article 4 is entitled: \u201cPollution Control and Environment Sedimentation Pollution Control Act of 1973[.]\u201d While the titles of statutes and acts may be consulted in order to assist in determining legislative intent when the language of the statute is ambiguous, Jefferson-Pilot, 161 N.C. App. at 560, 589 S.E.2d at 181, titles are not given the deference in interpretation that we give the actual language of the statute itself. Wiggs v. Edgecombe County, 361 N.C. at 322, 643 S.E.2d at 907; Carolina Power & Light, 358 N.C. at 518, 597 S.E.2d at 722.\nThe trial court concluded in its order, and Respondents argue in their brief: \u201cThe expressly stated intent of the General Assembly in the Sedimentation Act is to \u2018permit development of this State to continue with the least detrimental effects from pollution by sedimentation.\u2019 N.C. Gen. Stat. \u00a7 113A-51.\u201d This direct quote from N.C. Gen. Stat. \u00a7 113A-51 represents a small portion of the preamble of the Act, and could give the false impression that the main focus of the Act is the promotion of development in North Carolina.\nThe preamble of the Act states in relevant part:\nThe sedimentation of streams, lakes and other waters of this State constitutes a major pollution problem. Sedimentation occurs from the erosion or depositing of soil and other materials into the waters, principally from construction sites and road maintenance. The continued development of this State will result in an intensification of pollution through sedimentation unless timely and appropriate action is taken. Control of erosion and sedimentation is deemed vital to the public interest and necessary to the public health and welfare, and expenditures of funds for erosion and sedimentation control programs shall be deemed for a public purpose. It is the purpose of this Article to provide for the creation, administration, and enforcement of a program and for the adoption of minimal mandatory standards which will permit development of this State to continue with the least detrimental effects from pollution by sedimentation.\nN.C. Gen. Stat. \u00a7 113A-51 (2007) (emphasis added). Though it is clear the General Assembly intended to balance the benefits of development against the negative impact development has on the environment of North Carolina, the preamble makes clear that the General Assembly views unregulated development around the fresh waters of North Carolina as an environmental hazard, and that the Act was enacted to control and reduce sediment in the fresh waters of North Carolina through the regulation of development near those waters. This is a pollution control act, not a development promotion act, as Respondents seem to contend. This Court has stated that the \u201clegislative intent behind the enactment of the SPCA ... is to protect against the sedimentation of our waterways. See N.C. Gen. Stat. \u00a7 113A-51.\u201d McHugh v. North Carolina Dep\u2019t of Envtl., Health & Natural Resources, 126 N.C. App. at 476, 485 S.E.2d at 866. Our Court in McHugh also stated \u201cG.S. 113A-57(1) deals with land-disturbing activity near a lake or natural watercourse.\u201d Id. at 475, 485 S.E.2d at 865. The logical conclusion, supported by the language of the Act in general, and N.C. Gen. Stat. \u00a7 113A-57(1) in particular, is that the General Assembly intended, through N.C. Gen. Stat. \u00a7 113A-57(1), to control sedimentation through the regulation of land-disturbing activities. N.C. Gen. Stat. \u00a7 113A-57(1) is, therefore, specifically a land-disturbing activity regulation statute, aimed at controlling or preventing the flow of sediment into the fresh waters of North Carolina.\nFurther, the Commission is a division of the Land Quality Section of the Division of Land Resources, and shares offices with the Land Quality Section of the Division of Land Resources. 15A N.C.A.C. 4A.0101. Though the object of the Act is prevention or reduction of sediment reaching the fresh waters of North Carolina, this object is achieved through the regulation of land-based activities, which is conducted by agencies responsible for land-use regulation.\nRespondents further argue that \u201cNorth Carolina courts have consistently determined that the purpose of the Sedimentation Act is the control of sedimentation caused by development and construction activities, not the control of development and construction activities themselves.\u201d A review of the appellate opinions of North Carolina does not support Respondents\u2019 sweeping assertion. Respondents primarily rely on our Court\u2019s opinion in State ex rel. Lee v. PenlandBailey Co., 50 N.C. App. 498, 274 S.E.2d 348 (1981). Respondents argue that Penland-Bailey stands for the proposition that the sole purpose of the Act is to control sedimentation and erosion, not land-disturbing activities. However, our Court in Penland-Bailey stated: \u201cThe legislative history of the act is consistent with the conclusion that it was for the purpose of controlling erosion and sedimentation, rather than only land-disturbing activities.\u201d Id. at 501-02, 274 S.E.2d at 351 (emphasis added). In Cox v. State, 81 N.C. App. 612, 344 S.E.2d 808 (1986), our Court decided whether the Act applied to land-disturbing activity that pre-dated the effective date of the Act. Our Court stated: \u201cTo accomplish the purpose of the Act, the Act and the regulations enacted pursuant to it may be applied to land-disturbing activities which occurred before the Act and regulations became effective.\u201d Id. at 615, 344 S.E.2d at 810. This is another clear statement from our Court that the Act regulates land-disturbing activities to control sediment and prevent it from entering the fresh waters of North Carolina. None of the other opinions cited by Respondents conflict with our holding that though the Act was passed for the purpose of controlling sedimentation and erosion, the purpose of N.C. Gen. Stat. \u00a7 113A-57(1) is to achieve these goals through the means of regulating development and land-disturbing activities along North Carolina\u2019s fresh waters.\nFurther, it is clear that the Act is, at its core, an environmental pollution control act. It is contained within Chapter 113A, which is titled: \u201cPollution Control and Environment.\u201d N.C. Gen. Stat. \u00a7 113A-57(1) is intended to control land-disturbing activities during development in order to prevent sediment from such activities from polluting the fresh waters of North Carolina. The stated and logical purpose of preventing the pollution of these waters is to provide healthy, safe environments, in as pristine a state as is practicable, for recreational uses, and plant and animal preservation. 15A N.C.A.C. 2B.0101(c)(l). The General Assembly decided that the protection of trout waters required specific, more stringent legislation, and included such legislation in N.C. Gen. Stat. \u00a7 113A-57(1); see also 15A N.C.A.C. 2B.0101(e)(l). The session law promulgating the trout waters buffer zone requirement is titled in relevant part: \u201cAn Act to Authorize [the Commission] ... to Provide for a Setback for Land-Disturbing Activity Occurring Near Certain [i.e. certified] Trout Watersf.]\u201d 1989 N.C. Sess. Laws, ch. 676, \u00a7 3. This title provides further evidence that the intent of the General Assembly in enacting the trout waters provision in N.C. Gen. Stat. \u00a7 113A-57(1) was to regulate land-disturbing activities, and to do so through the imposition of a mandatory, undisturbed \u201csetback\u201d or buffer zone.\nThough the means utilized by N.C. Gen. Stat. \u00a7 113A-57(1) is control of land-disturbing activities to prevent sediment from entering trout waters, the clear intent of the General Assembly .in including the trout water provision was the protection of trout and trout habitat in North Carolina, a fact recognized by the Commission through promulgating relevant regulations in the administrative code. See 15A N.C.A.C. 2B.0101(e)(l) (\u201cfreshwaters protected for natural trout propagation and survival of stocked trout\u201d); see also 15A N.C.A.C. 2B.0101(c)(l) (which encompasses trout waters and provides for the preservation of all fresh waters \u201cfor secondary recreation, fishing, aquatic life including propagation and survival, and wildlife\u201d).\nIf we were to adopt Respondents\u2019 interpretation of N.C. Gen. Stat. \u00a7 113A-57(1), the Commission could allow variances for development along and over all the trout waters of North Carolina so long as the trout waters were diverted through piping. This would eviscerate the mandate that: \u201cWaters that have been classified as trout waters by the Environmental Management Commission shall have an undisturbed buffer zone 25 feet wide or of sufficient width to confine visible siltation within the twenty-five percent (25%) of the buffer zone nearest the land-disturbing activity, whichever is greater.\u201d (Emphasis added). This interpretation, though it might prevent sedimentation, would allow for the destruction of North Carolina\u2019s trout habitat. This the General Assembly could not have intended. Contrary to the assertion of the dissent, however, our holding does not \u201celiminate the variance provisions[,]\u201d as the variance provisions survive our holding alive and well for the purposes for which they were enacted. These purposes clearly were not to render the protections of N.C. Gen. Stat. \u00a7 113A-57(1) virtually toothless, but to allow for reasonable \u201ctemporary and minimal\u201d land-disturbing activity within the trout waters buffer zone when necessary for permanent construction activities conducted outside the trout waters buffer zone.\nWe hold that the language of N.C. Gen. Stat. \u00a7 113A-57(1) means what it clearly states: the mandated buffer zone for trout waters \u201cshall\u201d remain undisturbed, subject only to the exception that disturbance within that buffer zone may be conducted, with the proper issuance of a variance, so long as the \u201cdisturbance\u201d within the buffer zone is both temporary and minimal, or the activity constitutes \u201ca land-disturbing activity in connection with the construction of facilities to be located on, over, or under a lake or natural watercourse.\u201d To allow development within the mandatory undisturbed twenty-five foot buffer zone established by N.C. Gen. Stat. \u00a7 113A-57(1) for trout waters would be to render the following language inoperative: \u201cWaters that have been classified as trout waters . . . shall have an undisturbed buffer zone 25 feet wide [or wider].\u201d We must construe the language of a statute, if possible, to give meaning to every word and provision, and not do \u201cviolence to the legislative language.\u201d Carolina Power & Light, 358 N.C. at 518, 597 S.E.2d at 722; see also Wilkins v. N.C. State Univ., 178 N.C. App. 377, 379, 631 S.E.2d 221, 223 (2006) (citation omitted).\nFinally, when we construe the general provisions of N.C. Gen. Stat. \u00a7 113A-57(1) in pari materia with the more stringent provisions regarding trout waters, Respondents\u2019 interpretation of the statute defeats the clear purpose of the General Assembly to provide enhanced protections for trout waters by creating a mandatory buffer of at least twenty-five feet. Respondents agree that the \u201ctemporary and minimal\u201d language in N.C. Gen. Stat. \u00a7 113A-57(1) evinces the intent of the General Assembly to provide more protection for trout waters. However, Respondents\u2019 argument, if adopted, would lead to the incongruous outcome of allowing permanent development within buffer zones protecting trout waters when permanent development within the buffer zones of fresh non-trout waters is prohibited. This cannot be what the General Assembly intended.\nN.C. Gen. Stat. \u00a7 113A-57(1) allows land-disturbing activities near fresh non-trout waters to occur as close to those fresh waters as may be achieved so long as visible sediment will be contained \u201cwithin the twenty-five percent (25%) of the buffer zone nearest the land-disturbing activity.\u201d This means that for fresh non-trout waters, it is possible that land-disturbing activities and permanent development may be permitted closer than twenty-five feet to fresh non-trout waters so long as they do not violate the \u201ctwenty-five percent\u201d mandate. N.C. Gen. Stat. \u00a7 1I3A-57(1) includes no provision allowing permanent development within the seventy-five percent of the buffer zone that must remain sediment free protecting fresh non-trout waters, even if said land-disturbing activities would be temporary and minimal. We cannot hold that the General Assembly, intended the \u201ctemporary and minimal\u201d exception contained within the more stringent trout waters provision to allow development that obliterates the trout waters buffer zone entirely, when under the less stringent fresh non-trout waters provision, this type of development is prohibited. Carolina Power & Light, 358 N.C. at 518, 597 S.E.2d at 722; Jefferson-Pilot, 161 N.C. App. at 560, 589 S.E.2d at 181. While we agree that the \u201ctemporary and minimal\u201d exception in the trout waters provision was included \u201cto provide relief from the more stringent requirements [of the trout waters provision] in limited situations [,]\u201d we cannot agree with the dissent that this \u201climited situations\u201d exception was intended by the General Assembly to allow development along or over trout waters that would be prohibited along or over less restricted waters. Contrary to the argument made by the dissent, our holding sets no precedent concerning what development might be allowed \u201cin\u201d a trout stream pursuant to the \u201con, over, or under\u201d exemption. Further, development is clearly allowed \u201caround\u201d trout waters, pursuant, of course, to the restrictions mandated by N.C. Gen. Stat. \u00a7 113A-57(1). N.C. Gen. Stat. \u00a7 113A-57(1) restricts development in certain ways and in certain areas; it does not prohibit development. It seeks a balance between development and preserving our waters, but as is made clear in the preamble, N.C. Gen. Stat. \u00a7 113A-51, the General Assembly chose to increase restrictions on development in order to protect North Carolina\u2019s fresh waters.\nRegulation of land-disturbing activities to prevent sedimentation of trout waters is merely a means to protect trout populations and habitat. Therefore, when the Commission, an AU, a superior court, or an appellate court of North Carolina reviews actions that implicate the trout waters provision of N.C. Gen. Stat. \u00a7 113A-57(1), the ultimate intent of the General Assembly \u2014 protection of trout populations and habitat \u2014 must be a primary objective and concern in reaching any final resolution concerning granting of a variance allowing temporary and minimal land-disturbing activities within a trout waters buffer zone.\nWe hold that the ultimate intent of the General Assembly in enacting the trout waters provisions within N.C. Gen. Stat. \u00a7 113A-57(1) was the protection of trout populations and habitat, through sedimentation control, by means of stricter regulation of land-disturbing activities near trout waters. N.C. Gen. Stat. \u00a7 113A-57(1) prohibits, even with approval from the Commission, land-disturbing activities within the mandated buffer zone \u2014 whether it be twenty-five feet or greater \u2014 that is not both temporary and minimal. The acts of Mountain Air within the trout water buffer zone were not minimal, and will not be temporary. Further, even assuming arguendo that Mountain Air\u2019s actions could somehow be interpreted as temporary and minimal land-disturbing activities, enclosing a trout water within nearly 2,000 feet of pipe cannot comply with the ultimate legislative intent of the trout water provision included in N.C. Gen. Stat. \u00a7 113A-57(1), the protection of trout populations and habitat. See 15A N.C.A.C. 2B.0101(e)(l).\nWe reverse the order of the trial court, and remand to the trial court with instruction to enter summary judgment in favor of Petitioners on this issue. In light of our holdings in this opinion, we do not address Petitioners\u2019 additional arguments.\nReversed and remanded.\nJudge BEASLEY concurs.\nJudge STEELMAN dissents with a separate opinion.\n. Respondents agree with this determination, stating in their brief \u201cthe evidence in the record shows that there is only a potential to \u2018cause or contribute to sedimentation\u2019 during Mountain Air\u2019s construction activities.\u201d (Emphasis added). We do not find the distinction between the words \u201cpotential\u201d and \u201cmay\u201d that Respondents apparently find.\n. Because this issue is not before us, we make no determination here as to whether the Commission has the authority to override the \u201ctemporary and minimal\u201d mandate of N.C. Gen. Stat. \u00a7 113A-57(1) by granting the Director the authority to approve land-disturbing activities within the buffer zone that are not temporary or minimal through the enactment of an administrative regulation.\n. The sentence the dissent relies on is preceded by the following language: \u201cThe sedimentation of streams, lakes and other waters of this State constitutes a major pollution problem. Sedimentation occurs from the erosion or depositing of soil and other materials into the waters, principally from construction sites and road maintenance. The continued development of this State will result in an intensification of pollution through sedimentation unless timely and appropriate action is taken. Control of erosion and sedimentation is deemed vital to the public interest and necessary to the public health and welfare].]\u201d N.C. Gen. Stat. \u00a7 113A-51.\n. With the potential exception when express written permission is given by the Director of the Division of Land Resources, and with the further exception when the land-disturbing activity falls under the express exemption in N.C. Gen. Stat. \u00a7 113A-57(1) involving \u201cconstruction of facilities to be located on, over, or under a lake or natural watercourse.\u201d",
        "type": "majority",
        "author": "McGEE, Judge."
      },
      {
        "text": "STEELMAN,\nJudge dissenting.\nI must respectfully dissent from the majority\u2019s decision to reverse the trial court\u2019s order granting respondent\u2019s motion for summary judgment. The fundamental purpose of N.C. Gen. Stat. \u00a7 113A-57(1) is to control the effects of sedimentation resulting from land-disturbing activities. Based upon a proper application of this principal, respondent issued a variance to Mountain Air, and the trial court properly affirmed respondent.\nI. Additional Factual and Procedural Background\nBefore undertaking this project, Mountain Air obtained a Clean. Water Act \u00a7 401 Water Quality Certification from the North Carolina Department of Environment and Natural Resources Water Quality Division. It also obtained a \u00a7 404 Wetlands Permit from the United States Army Corps of Engineers. Finally, it obtained approval of an erosion control plan pursuant to Article 4 of Chapter 113A of the General Statutes. The variance obtained from the Division of Land Resources (respondent) pursuant to N.C. Gen. Stat. \u00a7 113A-57(1) and 15A N.C.A.C. 4B.0125(c) contained fifteen separate conditions to which Mountain Air was required to adhere. The permit was described by Francis M. Nevils, Jr. (Nevils), Section Chief, Land Quality Section of the Division of Land Resources, as being \u201cparticularly stringent.\u201d The original permit prohibited work instream and within trout buffer zones \u201cduring the trout spawning season from October 15 through April 15.\u201d This latter condition was modified to prohibit work from January 15 through April 15. The reason for this modification was that there were no trout in Banks Creek where the proposed project was to be located, and only rainbow trout were present downstream from the proposed construction. The original permit restricted activity based upon the spawning season for brown trout, which were determined not to be downstream. The modification restricted instream work during the spawning season for rainbow trout.\nOn 12 November 2003, petitioners filed a petition-for a contested case hearing challenging the issuance of a variance by respondent to Mountain Air, alleging six specific defects in the permit. On 12 January 2006, Administrative Law Judge James L. Conner, II granted summary judgment to petitioners based upon the holding that the activities of Mountain Air were neither temporary nor minimal. On 19 January 2007, respondent entered its final agency decision, rejecting the decision of Administrative Law Judge Conner. The Commission held that \u201c[t]he Sedimentation Act does not prohibit all development around trout waters, as the Petitioners and AU Conner conclude. Instead, the Sedimentation Act regulates the effects of sedimentation on such waters, and imposes requirements to ensure that those sedimentation effects are temporary and minimal.\u201d\nPetitioners appealed from the final agency decision, taking two specific exceptions: (1) the ruling that \u201cG.S. 113A-57(1) did not prevent activities \u2018on, over, or under\u2019 the trout stream[;]\u201d and (2) the ruling that \u201cthe impacts of the activities in the trout buffer were temporary and minimal.\u201d The trial court held that petitioners abandoned their first exception based upon the last sentence of N.C. Gen. Stat. \u00a7 113A-57(1). It further held that the buffer requirements of N.C. Gen. Stat. \u00a7 113A-57(1) only apply to land-disturbing activities during periods of construction or improvement to land and upheld respondent\u2019s final agency decision. The trial court found that respondent did not hear new evidence, nor did the trial court consider new evidence.\nOn appeal to this Court, petitioners assert twenty-nine assignments of error challenging the trial court\u2019s entry of summary judgment in favor of respondent. Unchallenged was the trial court\u2019s second conclusion of law that petitioners had abandoned their exception concerning the last sentence of N.C. Gen. Stat. \u00a7 113A-57(1).\nII. Standard of Review\nSince respondent did not adopt the decision of the administrative law judge, the trial court applied a de novo standard of review. N.C. Gen. Stat. \u00a7 150B-51(c) (2007). Since both the administrative law judge and the final agency decision resolved the case on summary judgment, the trial court was permitted to enter an order resolving the case under Rule 56 of the Rules of Civil Procedure pursuant to N.C. Gen. Stat. \u00a7 150B-51(d) (2007).\nThe order of the trial court recites that the only issue decided was: \u201c[w]hether the Commission improperly ruled that, based upon the stipulated facts in the contested case, the impacts of the project at issue in this matter were temporary and minimal under North Carolina\u2019s Sedimentation Pollution Control Act . . . .\u201d The order is structured with findings of fact and conclusions of law. However, the findings merely refer to the stipulations of the parties, the lack of evidence in the record, and that a variance with particularly stringent terms was issued. I would hold that these are not findings of fact in any traditional sense, Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982), that the manifest intent of the trial court\u2019s order was that there were no material issues of fact, and that respondent and Mountain Air were entitled to judgment as a matter of law. I would review this order as a summary judgment order, under a de novo standard of review. I therefore do not agree with the portions of the majority opinion referring to \u201cfindings of fact\u201d and analyzing whether they were supported by competent evidence in the record.\nIII. Statutory Purpose\nAt the heart of this case is the construction of the provisions of Article 4 of Chapter 113A of the General Statutes (Sedimentation Pollution Control Act of 1973). The preamble of this article clearly identifies the problem it intends to remedy: \u201c[t]he sedimentation of streams, lakes and other waters of this State . . . .\u201d N.C. Gen. Stat. \u00a7 113A-51 (2007). The mechanism employed to control sedimentation is the regulation of \u201cland-disturbing activity.\u201d This is defined in N.C. Gen. Stat. \u00a7 113A-52(6) (2007) as \u201cany use of the land by any person in residential, industrial, educational, institutional or commercial development, highway and road construction and maintenance that results in a change in the natural cover or topography and that may cause or contribute to sedimentation.\u201d\nThe purpose of this statute is to control sedimentation and to \u201cpermit development of this State to continue with the least detrimental effects from pollution by sedimentation.\u201d N.C. Gen. St\u00e1t. \u00a7 113A-51 (emphasis added). Its purpose was not to limit or restrict development. See McHugh v. N.C. Dept, of E.H.N.R., 126 N.C. App. 469, 476, 485 S.E.2d 861, 866 (1997) (\u201c[T]he stated legislative intent behind the enactment of the [Sedimentation Pollution Control Act] ... is to protect against the sedimentation of our waterways.\u201d (citing N.C. Gen. Stat. \u00a7 113A-51)); Cox v. State ex rel. Summers, 81 N.C. App. 612, 615, 344 S.E.2d 808, 810 (\u201cThe purpose of the-Act, G.S. 113A-50, et seq., is to control erosion and sedimentation, rather than only land-disturbing activities.\u201d (citation omitted)), disc, review denied, 318 N.C. 413, 349 S.E.2d 592 (1986).\nThe particular portion of Article 4 at issue is N.C. Gen. Stat. \u00a7 113A-57(1), which in its entirety reads as follows:\nNo land-disturbing activity subject to this Article shall be undertaken except in accordance with the following mandatory requirements:\n(1) No land-disturbing activity during periods of construction or improvement to land shall be permitted in proximity to a lake or natural watercourse unless a buffer zone is provided along the margin of the watercourse of sufficient width to confine visible siltation within the twenty-five percent (25%) of the buffer zone nearest the land-disturbing activity. Waters that have been classified as trout waters by the Environmental Management Commission shall have an undisturbed buffer zone 25 feet wide or of sufficient width to confine visible siltation within the twenty-five percent (25%) of the buffer zone nearest the land-disturbing activity, whichever is greater. Provided, however, that the Sedimentation Control Commission may approve plans which include land-disturbing activity along trout waters when the duration of said disturbance would be temporary and the extent of said disturbance would be minimal. This subdivision shall not apply to a land-disturbing activity in connection with the construction of facilities to be located on, over, or under a lake or natural watercourse.\nN.C. Gen. Stat. \u00a7 113A-57(1) (2007).\nThe majority\u2019s construction of the provisions of Article 4 of Chapter 113A of the General Statutes and the regulations promulgated thereunder is based upon several flawed assumptions.\nIV. No Development Concent\nThe first assumption made by the majority is that Chapter 113A requires that trout streams and trout buffer zones be maintained in a natural, pristine state in perpetuity. The majority ignores the express purpose of the Act: \u201cIt is the purpose of this Article to provide for the creation, administration, and enforcement of a program and for the adoption of minimal mandatory standards which will permit development of this State to continue with the least detrimental effects from pollution by sedimentation.\u201d N.C. Gen. Stat. \u00a7 113A-51 (emphasis added).\nThere is no authority in the General Statutes, or in the regulations for the majority\u2019s construction of these provisions, which if adopted would prohibit development in or around a trout stream. If such was the intent of the General Assembly, they certainly would have clearly so stated, and would not have chosen as the vehicle for accomplishing this goal a sedimentation control statute. Rather, the clear intent and purpose of N.C. Gen. Stat. \u00a7 113A-57(1) is to control sedimentation pollution in the waters of this State, and particularly in trout streams.\nFurther, the issue of whether N.C. Gen. Stat. \u00a7 113A-57(1) prevented activities \u201con, over, or under\u201d a trout stream was abandoned by petitioners before the trial court. This ruling by the trial court was not assigned as error to this Court, and is thus not before this Court. N.C.R. App. P. 10(a) (\u201c[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal . . . .\u201d); Atlantic Coast Mech., Inc. v. Arcadis, Geraghty & Miller ofN.C., Inc., 175 N.C. App. 339, 346, 623 S.E.2d 334, 340 (2006) (holding that because plaintiff failed to assign error to the dismissal of one its claims, that issue was not properly before this Court).\nThe second assumption made by the majority is that in determining whether land-disturbing activities along a trout buffer zone are temporary and minimal, we must look to the scope of the entire project and not the sedimentation effects of the project. This was the critical area of dispute between Administrative Law Judge Conner and the Commission. The fundamental purpose of the Sedimentation Pollution Control Act of 1973 was to restrict the effects of sedimentation, not to restrict any type of development of real estate. In determining whether land-disturbing activities are temporary and minimal, the only standard relevant under Chapter 113A are the sedimentation effects.\nThe majority freely acknowledges that it is using a sedimentation control statute to require the maintenance of trout streams and trout stream buffers inviolate in perpetuity. No matter how laudable this goal may be, such a decision is reserved for the General Assembly, and not for the courts of this State.\nThird, the majority appears to have difficulty reconciling the more stringent protection for trout waters and the variance provisions. These provisions were added by the General Assembly in 1989 N.C. Sess. Laws ch. 676, \u00a7 3. Since the variance provisions were enacted at the same time as the increased protection for trout waters, and are limited to trout waters, it is clear that the General Assembly decided that a mechanism was needed to provide relief from the more stringent requirements in limited situations. Such provisions in statutes are not uncommon or irreconcilable.\nV. \u201cMinimal\u201d and \u201cTemporary\u201d Disturbance\nThe fundamental issue in this appeal is whether the trial court correctly concluded that respondent properly issued the variance to Mountain Air and ensured that any sedimentation that occurred during the construction of this golf course was \u201cminimal\u201d and \u201ctemporary\u201d as required by N.C. Gen. Stat. \u00a7 113A-57(1).\nA. Minimal Disturbance\nThe majority holds that Mountain Air\u2019s actions of clearing all vegetation in approximately 160 feet of the buffer zone; removing trees and tree canopy along 2,763 feet of Banks Creek; and installing and re-routing the stream through underground piping do not constitute \u201cminimal\u201d land-disturbing activities. The majority cites the fact that the totality of the land-disturbing activity impacted twenty-two percent of the trout buffer zone, which violated 15A N.C.A.C. 4B.0125(c) and that there is nothing in the record to show Mountain Air received written approval to exceed those limits.\nThe majority erroneously focuses on the entire scope of the construction project and the ultimate condition of the trout buffer zone after construction is completed rather than the sedimentation effects of these activities during construction. The variance issued by respondent stated: \u201cIn accordance with N.C. Gen. Stat. \u00a7 113A-57(1) and N.C. Admin. Code 15A 4B.0125(c), this letter will serve as written approval of the proposed encroachment into the trout water buffer zones, of tributaries to Banks Creek, as shown in the submittal dated August 6, 2003.\u201d The 6 August 2003 proposal included: a tree removal and tree canopy maintenance plan; drop inlet detail; pipe installation sequence; revised pipe sizes and velocity calculations; junction box replacement of plunge pool between holes 7 and 8; and plunge pool detail and related information. Respondent approved Mountain Air\u2019s 6 August 2003 proposal, but made it contingent on fifteen \u201cparticularly stringent\u201d conditions. Further, the administrative record contains a map of the \u201cBanks Creek Nine Holes Buffer Variance Plan\u201d which refers to the exact percentage of the trout stream that would be affected by the vegetative clearing, tree removal, and underground piping. Nevils testified in his deposition that he considered and approved Mountain Air\u2019s plan, which showed the \u201ccutting of some trees,\u201d grading, and placement of the pipes in the trout buffer zone. Based upon this evidence, respondent was aware of the exact dimensions of the construction that would occur at Banks Creek. The variance issued by respondent constituted \u201cwritten approval of the Director\u201d to exceed the limitations of 15A N.C.A.C. 4B.0125(c).\nFurther, a review of Mountain Air\u2019s 6 August 2003 variance proposal and the conditions contained in the variance issued ensured the sedimentation effects during the construction of the golf course were minimal. Mountain Air\u2019s tree removal plan included the following provisions: before removal commenced, individual trees to be removed would be flagged and respondent\u2019s representatives would be given an opportunity to inspect the flagged areas; trees would be cut above the ground leaving stumps and root mass intact; trees would be tied off and lifted directly out of the buffer where feasible or felled uphill and away from the stream bank; and sub-canopy vegetation would only be removed by hand. Likewise, Mountain Air\u2019s stormwater drainage installation plan detailed their efforts to \u201creduce the already minimal risk of sedimentation[.]\u201d Mountain Air proposed to create \u201cwork teams\u201d that would be tasked with specific work responsibilities and would be under supervision by a manager who had been certified under the state-sanctioned Clean Water Contractor program. Mountain Air also identified the order and methods to be used for each specific segment of pipe installation. The Sediment Control Crew would maintain stormwater and sediment pollution control logs. Mountain Air would also monitor the 10-day weather forecast on a daily basis and delay or stop any activity if significant rain was forecast for the following twenty-four hour period.\nIn addition, respondent conditioned the variance\u2019s approval on various \u201cstringent\u201d sedimentation pollution controls. Mountain Air had to monitor the weather forecast three days in advance of any land-disturbing activity, and the activity could not begin if within twenty-four hours there was a fifty percent chance of precipitation. All disturbed areas in the buffer zone had to be stabilized with an adequate temporary ground cover at the end of each workday. All materials excavated during any work within the buffer zone had to be deposited twenty-five feet from the top of the stream bank. A person qualified in erosion and sedimentation control was required to be present during all land-disturbing activities within the buffer zone. Tree removal could not begin until the site had been stabilized and could only be accomplished with equipment that minimized disturbance to the area. The approved erosion and sedimentation control plan for the golf course construction was required to have \u201cadequately sized measures\u201d and to include \u201cthe use of skimmer basins, skimmer traps or flocculant(s) and level spreaders or other means to create dispersed flow where appropriate to reduce sedimentation and turbidity.\u201d Mountain Air was also prohibited from working in the buffer zone during the rainbow trout spawning season as an additional measure to protect their habitat.\nBoth Mountain Air\u2019s variance proposal and respondent\u2019s \u201cparticularly stringent\u201d conditions of the variance ensured that erosion and sedimentation pollution was \u201cminimal\u201d during the period of construction along Banks Creek.\nB. Temporary Disturbance\nThe majority also holds that Mountain Air\u2019s land disturbing activities are not temporary because \u201cevidence in the record shows that Mountain Air will continue to conduct activity in the trout waters buffer zone after completion of all construction.\u201d The majority focuses on the fact that Mountain Air will have to periodically remove trees and tree canopy, and maintenance and repair the piping in order to preserve the functionality of the golf course.\nWe note that the requirements of N.C. Gen. Stat. \u00a7 113A-57(1) only apply to land-disturbing activities during periods of construction and not to activities which occur once construction has been completed. See N.C. Gen. Stat. \u00a7 113A-57(1) (providing that \u201cNo land-disturbing activity during periods of construction or improvement to land shall be permitted in proximity to a lake or natural watercourse unless a buffer zone is provided along the margin of the watercourse . . . .\u201d (emphasis added)); N.C. Gen. Stat. \u00a7 113A-51 (\u201cSedimentation occurs from the erosion or depositing of soil and other materials into the waters, principally from construction sites and road maintenance.\u201d).\nEven assuming arguendo that the requirements of N.C. Gen. Stat. \u00a7 113A-57(1) extend beyond the completion .of the construction project, no activity Mountain Air may have to conduct could be considered \u201cland-disturbing.\u201d Mountain Air\u2019s \u201cTree Canopy Maintenance Plan\u201d contained the following provisions: all trees to be removed would be flagged in the field; all trees would be cut using hand tools; all trees greater than 3\" in diameter at breast height will be cut and left in the buffer area; trees equal or less than 3\" at breast height will be removed from the buffer by hand; all trees will be cut above the ground, leaving stumps and root mass intact; and subcanopy improvement will be done using hand tools. The conditions in the variance regarding tree removal would also still be applicable to Mountain Air\u2019s conduct.\nThe majority holds as a matter of law \u201cthat this ongoing activity \u2018may cause or contribute to sedimentationf,]\u2019 \u201d citing the last clause in the definition of \u201cland-disturbing activity\u201d as found in N.C. Gen. Stat. \u00a7 113A-52(6). However, there is no evidence in the record to support this assertion. When the majority asserts that the removal of the tree canopy and the removal of the trees may lead to more rain reaching the ground causing sedimentation pollution to enter the trout stream, it is engaging in fact-finding. It is not the role of the appellate courts to engage in fact-finding. See Godfrey v. Zoning Bd. of Adjustment, 317 N.C. 51, 63, 344 S.E.2d 272, 279 (1986) (\u201cFact finding is not a function of our appellate courts.\u201d).\nWhile a \u201cland-disturbing activity\u201d includes \u201ca change in the natural cover or topography,\u201d it must also be one that \u201cmay cause or contribute to sedimentation.\u201d N.C. Gen. Stat. \u00a7 113A-52(6). When a wooded area is cleared, stumps are removed, and machinery is used to remove trees, clearly sedimentation may occur. However, when no stumps are removed, the trees over 3\" in diameter are not removed, and all cutting is to be done with hand tools, I cannot fathom how this could cause or contribute to sedimentation. The tightly regulated maintenance procedures do not constitute \u201cland-disturbing activities.\u201d Further, the majority engages in rank speculation concerning the possibility of the removal and replacement of damaged piping. This speculation is beyond the scope of the permit before this Court. Clearly, if such activity was to take place in the future, and it involved a \u201cland-disturbing activity\u201d as defined in N.C. Gen. Stat. \u00a7 113A-52(6), then the provisions of N.C. Gen. Stat. \u00a7 113A-57 would have to be complied with. Such issues are for another court on another day.\nThe majority makes an alternative assertion that there is a possibility that heavy rains resulting in flooding would increase the water velocity in the piped portion of the creek, which in turn presents the possibility of heightened erosion and sedimentation downstream. However, the majority ignores the obvious result of the piping, that there would be no erosion in the piped area during times of flooding. Under the majority\u2019s theory, a stream could never be piped because the possible risk of increased water velocity might cause erosion. Such a holding would have devastating results for development in North Carolina, and is contrary to the express intent of the General Assembly as set forth in N.C. Gen. Stat. \u00a7 113A-51.\nThe issuance of the variance does not violate the requirements of N.C. Gen. Stat. \u00a7 113A-57(1) that the effects of any land-disturbing activity in the trout buffer zone be temporary.\nVI. Statutory Construction\nA. Development in Trout Waters\nIn conclusion, the majority purports to construe the provisions of Article 4 in para materia to reach the conclusion that the variance provisions of N.C. Gen. Stat. \u00a7 113A-57(1) cannot \u201callow development that obliterates the trout waters buffer zone entirely, when under the less stringent fresh non-trout waters provision, this type of development is prohibited.\u201d I disagree with this analysis for several reasons.\nFirst, it ignores completely the last sentence of N.C. Gen. Stat. \u00a7 113A-57(1), which specifically permits \u201cland-disturbing activity in connection with the construction of facilities to be located on, over, or under a lake or natural watercourse.\u201d N.C. Gen. Stat. \u00a7 113A-57(1). This provision applies both to trout and non-trout waters and was in the statute prior to the 1989 amendments. The construction of a golf-course \u201cover\u201d the stream falls within this specific exception.\nSecond, with a stroke of a pen, the majority purports to eliminate the variance provisions, which were enacted at the same time as the more stringent trout buffer requirements.\nFinally, as noted above, the purpose of Article 4 of Chapter 113A is not to prohibit development, but rather to regulate the effects of land-disturbing activity which leads to sedimentation in the waters of North Carolina.\nB. Deference to Agency Interpretation\nIt must be noted that respondent\u2019s interpretation of the purpose and meaning of N.C. Gen. Stat. \u00a7 113A-57(1) should traditionally be given some deference by the courts in light of the fact that respondent was the agency chosen to administer this statute. See County of Durham v. N.C. Dep\u2019t of Env\u2019t & Natural Resources, 131 N.C. App. 395, 396, 507 S.E.2d 310, 311 (1998) (\u201c[E]ven when reviewing a case de novo, courts recognize the long-standing tradition of according deference to the agency\u2019s interpretation\u201d of a statute it administers, (citations omitted)), disc, review denied, 350 N.C. 92, 528 S.E.2d 361 (1999). This proposition is still legally sound despite the General Assembly\u2019s addition of N.C. Gen. Stat. \u00a7 150B-51(c) to the North Carolina Administrative Procedure Act in 2000, which provides that \u201cin a contested case in which an administrative law judge made a decision, in accordance with G.S. 150B-34(a), and the agency does not adopt the administrative law judge\u2019s decision, the court shall review the official record, de novo, and . . . shall not give deference to any prior decision made in the case . . . .\u201d N.C. Gen. Stat. \u00a7 150B-51(c); Rainey v. N.C. Dep\u2019t of Pub. Instruction, 361 N.C. 679, 652 S.E.2d 251 (2007). In Rainey, our Supreme Court interpreted N.C. Gen. Stat. \u00a7 150B-51(c) and held that the subsection \u201crefers only to the agency\u2019s decision in the specific case before the court\u201d and that the trial court is not barred from \u201cconsidering the agency\u2019s expertise and previous interpretations of the statutes it administers, as demonstrated in rules and regulations adopted by the agency or previous decisions outside of the pending case.\u201d Id. at 681, 652 S.E.2d at 252. The rationale behind its holding was as follows:\nIf the only authority for the agency\u2019s interpretation of the law is the decision in that case, that interpretation may be viewed skeptically on judicial review. If the agency can show that the agency has consistently applied that interpretation of the law, if the agency\u2019s interpretation of the law is not simply a \u201cbecause I said so\u201d response to the contested case, then the agency\u2019s interpretation should be accorded the same deference to which the agency\u2019s construction of the law was entitled under prior law.\nId. at 681-82, 652 S.E.2d at 252-53 (quotation omitted). It is clear from the record that respondent has repeatedly determined that based upon the purpose of the Act found in the preamble to N.C. Gen. Stat. \u00a7 113A-50 et seq., and its express grant of authority to \u201capprove plans which include land-disturbing activity along trout waters when the duration of said disturbance would be temporary and the extent of said disturbance would be minimal[,]\u201d that it is authorized to grant variances when the impact from sedimentation would be temporary and minimal. Because respondent can show that the agency has consistently applied this interpretation of the law, and because its interpretation is not simply a \u201cbecause I said so\u201d response, respondent should be afforded deference. However, the trial court, applying a de novo standard of review and without giving any deference to the final agency decision, interpreted the language of the Act in the same manner as respondent.\nI would hold that because the sedimentation effects of Mountain Air\u2019s construction project were temporary and minimal, respondent properly issued the variance to Mountain Air. The trial court did not err by granting summary judgment in favor of respondent. I would affirm the trial court\u2019s order.\n. 15A N.C.A.C. 4B.0125(c) provides that \u201c[w]here a temporary and minimal disturbance is permitted as an exception by G.S. 113A-57(1), land-disturbing activities in the buffer zone ac[jacent to designated trout waters shall be limited to a maximum of ten percent of the total length of the buffer zone within the tract to be distributed such that there is not more than 100 linear feet of disturbance in each 1000 linear feet of buffer zone. Larger areas may be disturbed with the written approval of the Director.\" (Emphasis added). The \u201cDirector\u201d the regulation is referencing is the Director of the Division of Land Resources. See N.C. Gen. Stat. \u00a7 113A-54.1(c) (2007). In the instant case, the Director of the Division of Land Resources was James D. Simons. However Simons delegated this authority to Francis M. Nevils, Jr., Section Chief, Land Quality Section. Therefore, Mountain Air was required to have and received Nevils\u2019 written approval before disturbing more than ten percent of the buffer zone located at Banks Creek.\n. The definition of \u201cland-disturbing activities\u201d references the word maintenance. See N.C. Gen. Stat. \u00a7 113A-52(6) (\u201c[A]ny use of the land by any person in residential, industrial, educational, institutional or commercial development, highway and road construction and maintenance that results in a change in the natural cover or topography and that may cause or contribute to sedimentation.\u201d However, the structure of this sentence makes it clear that the maintenance it is referring to is highway and road maintenance, not maintenance in'general.\n. In Ms deposition, Nevils testified that in the two years prior to the issuance of the variance to Mountain Air, respondent had issued \u201cfour or five\u201d trout buffer variances and that there were a number under review at that time. Nevils further testified that at least one of the variances previously issued was comparable to the one issued to Mountain Air.",
        "type": "dissent",
        "author": "STEELMAN,"
      }
    ],
    "attorneys": [
      "Southern Environmental Law Center, by J. Blanding Holman, IV, Julia F. Youngman, and Geoffrey R. Gisler, for Petitioners-Appellants.",
      "Attorney General Roy Cooper, by Assistant Attorney General Edwin Lee Gavin II and Assistant Attorney General Sueanna P. Sumpter, for Respondent-Appellee.",
      "Smith Moore Leatherwood, LLP, by Ramona Cunningham OBryant; and McGuirewoods, LLP, by Benne C. Hutson, for Respondent-Intervenor."
    ],
    "corrections": "",
    "head_matter": "NANCY HENSLEY, DIANE KENT, and CLEAN WATER FOR NORTH CAROLINA, INC., Petitioners-Appellants v. NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF LAND RESOURCES, Respondent-Appellee, and MOUNTAIN AIR DEVELOPMENT CORPORATION, Respondent-Intervenor\nNo. COA08-1307\n(Filed 17 November 2009)\n1. Environmental Law\u2014 trout waters buffer zone \u2014 sedimentation \u2014 land\u2014disturbing activities \u2014 development of golf course\nThe trial court erred by concluding that Mountain Air\u2019s land-disturbing activities in the construction of a country club in a trout waters buffer zone were \u201ctemporary\u201d and \u201cminimal\u201d and thus authorized by N.C.G.S. \u00a7 113A-57(1). Mountain Air would continue to conduct activity in the trout waters buffer zone after completion of all construction.\n2. Environmental Law\u2014 land-disturbing activities \u2014 development of golf course \u2014 pollution control act\nThe General Assembly intended N.C.G.S. \u00a7 113A-57(1) to be a land-disturbing activity regulation statute and environmental pollution control act aimed at controlling or preventing the flow of sediment into the fresh waters of North Carolina. The protection of trout populations and habitat must be a primary objective and concern in reaching any final resolution when granting a variance allowing temporary and minimal land-disturbing activities within a trout waters buffer zone.\nAppeal by Petitioners from order entered 2 July 2008 by Judge Osmond Smith in Superior Court, Wake County. Heard in the Court of Appeals 6 May 2009.\nSouthern Environmental Law Center, by J. Blanding Holman, IV, Julia F. Youngman, and Geoffrey R. Gisler, for Petitioners-Appellants.\nAttorney General Roy Cooper, by Assistant Attorney General Edwin Lee Gavin II and Assistant Attorney General Sueanna P. Sumpter, for Respondent-Appellee.\nSmith Moore Leatherwood, LLP, by Ramona Cunningham OBryant; and McGuirewoods, LLP, by Benne C. Hutson, for Respondent-Intervenor."
  },
  "file_name": "0001-01",
  "first_page_order": 29,
  "last_page_order": 63
}
