20020089 Ver 1_Complete File_20100723

WATER & LAND SECTION Fax:[phone]
r 1%
1 tC )Y COOP0 i
xIr*rCjftNEY (I .N!_:.i tAL

Oct 2 '03 16:56 P.01
State of North Carolina
Department of AlstiCe
P 0. BOX 629
RALEIGH
276024-)629
Reply to;
MARY PENNY THOMPSON
ASSISTANT ATTDRNEY GaKERAT.
Direct; [phone]
mthomp(jncdoixom
FAX. TR-ANSMISSION
ENVIRONMENTAL DIVISION
[phone]
Fax: [phone]
To: Mike Moran, 401 Unit Date: October 2, 2003
Sergei Chemikov, N PI)ES Unit
Lin Xu, Development Unit
Fax #: 401 Unit: 733-6893
NPDES Unit: 733-0719
Devel. Unit: 715-3637
Pages: 3, including this cover sheet.
From: Mary Penny Thompson
Subject: ARE v. DE1NR, Wake County, 02 EHR 0483
List 1
COMMFNTS:
Mr. Hashemi has sent a letter requesting additional documents and contact information. As the
point person for your unit, please look over this new list and let me know if you have M-ly of the
documents or can provide any of the contact information.. I am late in forwarding this list to you,
so a quick response is appreciated. Please feel free to send me an e-mail at mthomp @ncdoj.co;nn
or a voice mail at 716-6966 tomorrow (Oct 3rd) or Monday (Oct 6th).
WATER & LAND SECTION Fax:[phone] Oct 2 '03 1656 P.02

ARH International Co..
?.. ARH.
P.Q. Rot 97772, Raleigh, NC 27624 [phone] Fax: (919) 846 $866 Email: arhind@),uc.rrx0
6R EID
Mary Fenny Tltompsan
Assistant Attorney General
N. C. Department of Justice
Environmental Division
Post Office Box 629
Raleigh, NC 27602-0629
[phone]
[phone] - Fain
4. 2:003
N. C. A'l"r'OFiNEY GE"N RAL
BVITORMental Division
September 2043
Re: The Public Record related to the issues in the Case 42 EHR 483 For DWQ 401-section
UST 1.
Dear Ms- Thompson;
Documents of interest:
1. All the files kept in regard to the PROPERTY, subject ofthis proceeding(heari.ng).
2. Ali internal guidance and policy manuals in effect at the time of issuance of the state
rating, if not in writing and only verbal, Z life to have it in writing.
3. The technical documents which justified the rule.
4. Reports of the point source establishment (Municipality of Cary), if DWQ receives such
info or such info was a basis for estimation of nutrient added to the neus-e river, or ether
municipality.
5. State's operating manual and audit system, for such reports given to stake as to their point
source pollution, that would determine the accuracy of the information,
6. A copy of the studies done by the state showing the impact of overflow of this point
source systems and their impact on.. the fish life down the stream.
Name and contact information for the people involved (the lead persons)-
7. Name of the persons who was coordinator or who was responsible for writing the riparian.
rule.
s. Name of the persons who assisted in preparing each individual guidance manuals.
9. Name of the persons who were directly involved in writing the report which brought about
this rule.
10. Name of the persons who are responsible for point source verifis-Ration and curalrol.
This concludes "LIST I ".

WATER & LAND SECTION Fax:[phone]
E look forward to meeting you this morning.
Sincerely,
t
A.1 Hashemi
CC". OAH
Page -2-
Oct 2 '03 16:57 P.03
O?O? W AT F9QG
r
Mr. Terry Warren
Stormwater Engineering Manager
316 North Academy St.
Cary, NC 27511
Dear Mr. Warren:
Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Alan W. Klimek, P. E. Director
Division of Water Quality
Coleen H. Sullins, Deputy Director
Division of Water Quality
January 30, 2004
WETLANDS 1401 cipot iP
FEB 0 4 2004
WATER QUALITY SEC i 101v
I am writing this letter in regard to the application of the developer, ARH
International Co. and owner Al Hashemi for issuance of a variance from the Town of Cary on the
property located on 707 & 801 N.E. Maynard Road. Please be advised with respect to the subject
property that the Division of Water Quality has issued a minor variance to Mr. Al Hashemi. The
DWQ issued this variance because the terms of the variance adequately protect water quality, and
no additional buffer is needed to protect water quality, given the variance conditions including
the remaining buffer and the on-site stormwater BMPs.
The minor variance was issued on April 17, 2002 and revised on May 2, 2002. The variance
reduced the mandated Rule 15A NCAC 213 .0233 riparian buffer from 50 foot to 30 foot along
785 linear feet of one side of the stream crossing Mr. Al Hashemi's property, subject to various
conditions and terms set forth in the variance. Copies of the variance, together with the revised
approval and a May 24, 2002 letter by me relating thereto, are attached. In issuing the variance,
DWQ made the necessary findings of fact, in accordance with 15A NCAC 2B .0233(9), that
there are practical difficulties or unnecessary hardships that prevent compliance with the strict
letter of the riparian buffer protection requirements.
ARH International Co. contested in the Office of Administrative Hearings the determination by
DWQ that the stream on Mr. Hashemi's property is at least intermittent and subject to the buffer
rules. This contested case was resolved with entry of a Settlement Conference Consent Order, a
copy of which is also attached.
Si erely,
p
Domt
( \?
Supervisor, 401-Section Unit
CC. Al Hashemi
Mr. William B. Coleman, Town Manager, Town of Cary
318 North Academy Street
Cary, NC 27513
'h
MEM
N. C. Division of Water Quality 1617 Mail Service Center Raleigh, North Carolina 27699-1617 [phone] Customer Service
1-877-623-6748
\ 7r c,gQG
Q ,
Michael F. Easley
Governor
William G. Ross, Jr., Secretary
Department of Environment and Natural Resources
Gregory J. Thorpe, Ph.D., Acting Director
Division of Water Quality
Pagel of 2
April 17. 2002
DWQ Project No. 02-0019
Wake County
ARH Intonational Co.
c/o: M- r. Al Hasherrn, president
P.O. Box 97772
Raleigh. NC 27624
Subject Property: North%vood Center I, II & III, 707/101 \ iv[aynard Rd., Cary. INC 27513
Parcel Nurnber 0764170452, 14.63 acres
"Black Creek", tributary stream_to Crabtree Lake [03-04-02; 27-33-5; C NSW]
APPROVAL of Neuse River Riparian Buffer Protection Rules MINOR VARIANCE [15A NCAC 2B.0233(9)(b)]
Nvith ADDITIONAL CONDITIONS
Dear Nfr. Hashemi:
You have our approval. in accordance with the conditions listed below, to impact approximately 26,660 ft' (1,333
linear feet) of Zone 2 of the protec:ed riparian buffers to construct the proposed Northwood Center I, II & III commercial
development on the subject property as described within your Minor Variance Request dated March 6, 2002 including
revisions provided within your April 7, 2002 letter. This letter shall act as your Minor Variance approval as described
within 15A NCAC 2B .0233(9)(bs_ In addition, you should get any other required federal. state or local permits before
you proceed with your project including (but not limited to) stormwater and Erosion and Sediment Control permits.
This approval is only valid for the purpose and design that you described in your Minor Variance Request dated
March 6. 2002 including revisions provided within your April 7. 2002 letter. If you change your project,,you must notify
us and ,you may be required to send us a new request for approval. If the property is sold. the new owner must be given a
copy of this approval and is thereby responsible for complying with all conditions. For this approval to be valid, you must
follow the conditions listed below.
Conditions:
A Final, written stormwater management plan shall be approved in writing by the Division of Water
Quality (DWQ). V. etlands/401 Unit before the impacts specified in this `Iinor Variance .' pproval occur.
The stormu ater management plan must include extended detention wetlands to remove nitrogen as
- ---indicated-?vithi risnet- request. unlz?orcre?se-appro?erl ttrc D«'Q. Thes facilitiesrrrtr
designed at a minimum to treat the runoff from the entire project and 501,'a of the off-site run-off from
"Culvert no. __" (as indicated within the variance request). unless otherwise explicitly approved by the
DWQ. ,also. before any permanent building is occupied at the subject site. the facilities (as approved by
the Wetlands/1.0 1 '.;nit) shall be constructed and operational. and the stormwater manage, gent plan (as
approved by the Wetlands/401 Unit) shall be implemented. The structural storm\,vater practices as
approved by the Wetlands/401 Unit as well as drainage patterns must be maintained in peg ,etuity. No
changes co the structural stormwater practices shall be made without %\ritten authorization from the
Division of Water Quality. The extended detention wetlands may he located within Zone 1 of the buffers
as indicated within the variance request. but their impacts to Zone l must be minimized (as determined by
the DWQ and they shall not be closer than fifteen (15) feet to the stream bank.
r
North Carolina Divisicr, of Water Quality. 401 Wetlands Ceriricatior. Unit. 1650 t.tail S, rvice Canter. RaleiGn..VC 27-399-16-:50
919-733-1763 !phcne;, 919-733-6893 (fax), http://h2o.znr;;a:e.nc.us;nc:ce!!ancs/
A Page 2 of 2
No impacts shall occur to Zane 1 of the protected riparian buffers except for impacts associated with the
stormwater management plan approved by the DWQ and "exempt" uses as identified within 15A NCAC
2B .0233.
You are required to provide buffer mitigation for the proposed- mpacts. The required amount of buffer
mitigation shall be equal toeither; (a) 39,990 ft- if you only provide stormwater treatment (as approved
by the DWQ within your smrmyvater management plan) for the entire project and 50% of the runoff from
"culvert no. 2" (as indicated within the variance request); or (b) 26,660 ft' if you provide stormwater
treatment for the entire project and 100% of the runoff from "culvert no. 2". No buffer mitigation will be
required if you provide stormwater treatment for the entire project and all off-site runoff that enters the
property from -culvert no. 1" and "culvert no. 2". You are required to submit in writing a mitigation
plan detailing: how you intend to satisfy this buffer mitigation prior to the submittal of your stormwater
management plan.
We understand that you wish to make a payment into the Riparian Buffer Restoration Fund administered
by the NC Wetlands Restoration Program (WR-P) to meet this mitigation requirement. This has been
determined by the DWQ to be a suitable method to meet the mitigation requirement. In accordance with
15A NCAC 2B .0242(7), this contribution will satisfy our compensatory mitigation requirements under
15A NCAC 2B .0233(9)(0. The DWQ will provide you with the procedure for making this payment
once your mitigation plan as described above is received.
4. The outside buffer boundary and along the construction corridor within these boundaries approved under
this approval shall be clearly marked by orange fabric fencing for the areas that have been approved to
infringe within the buffer prior to any land disturbing activities to ensure compliance with 15A NCAC 2B
.0233 and this approval.
If you do not accept any of the conditions of this approval, you may ask for and adjudicatory hearing. You must
act within 60 days of the date that you receive this letter. To asi; for a hearing. send a written petition which conforms to
Chapter 150B of the North Carolina General Statutes to the Office of Administrative Hearings. 6714 Mail Service Center.
Raleigh, NC 27699-6714. This approval and its conditions are final and binding unless you ask for a hearing.
This letter completes the review of ¢he Division of lNater Quality under the Neuse River Riparian Buffer
Protection Rules (15A NCAC 2B .0233(9)(b)j. Please call -1i. Bob Zarzec'i at 919-733-9726 if you have any questions
or require copies of our rules or procedural materials.
Sincerely.
i ;.Rdry J. Thorpe. Ph.
/-acting Director
Cc: Stevc ",IiLchell. DWQ Raleigh Regional Office.?;?.
Rob Ferrell. Wetlands Restoration Program
File Copy
Central File
DWQ 020059
F WATER
?O? QG
7
r? r
Michael F. Easley
Governor
William G. Ross, Jr., Secretary
Department of Environment and Natural Resources
Gregory J. Thorpe, Ph.D., Acting Director
Division of Water Quality
Page 1 of 2
May 2, 2002
a ??- --. .i (Replaces the approval issued on April 17. 2002)
J -r ; DWQ Project No. 02-0089
Wake County
ARH International Co.
c/o: Mr. Al Hashemi, President
P.O. Box 97772
Raleigh, NC 27624
-?
Subject Property: Northwood Center I, II & III, 707/801 NE Maynard Rd., Cary, NC 27513
Parcel Number 0764870452, 14.63 acres
"Black Creek", tributary stream to Crabtree Lake [03-04-02; 27-33-5; C NSW]
APPROVAL of Neuse River Riparian Buffer. Protection Rules MINOR VARIANCE (15A NCAC 2B .0233(9)(b)]
with ADDITIONAL CONDITIONS
. Dear Mr. Hashemi:
You have our approval, in accordance with the conditions listed below, to impact approximately 26,660 ft' (1,333
linear feet) of Zone 2 of the protected riparian buffers to construct the proposed Northwood Center I, H & III commercial
development on the subject property as described within your Minor Variance Request dated March 6, 2002 including
revisions provided within your April 7, 2002 letter. This letter shall act as your Minor Variance approval as described
within 15A NCAC 2B .0233(9)(b). This approval replaces the one issued on April 17, 2002. In addition, you should get
any other requited federal, state or local permits before you proceed with your project including (but not limited to)
stormwater and Erosion and Sediment Control permits.
This approval is only valid for the purpose and design that you described in your Minor Variance Request dated
March 6, 2002 including revisions provided within your April 7, 2002 letter. If you change your project, you must notify
us and you will be required to send us a new request for approval if the footprint of the project goes beyond the area of
impact approved under this variance. If the property is sold. the new owner must be given a copy of this approval and is
thereby responsible for complying with all conditions. For this approval to be valid, you must follow the conditions listed
below.
Conditions:
1. A final, written stormwater management plan shall be approved in writing by the Division of Water
Quality (DWQ), Wetlands/401 Unit before the impacts specified in this Minor Variance Approval occur.
The stormwater management plan must include extended detention wetlands to remove nitrogen as
indicated within the variance request and per the DWQ Stormwater Best Management Practices manual
dated April 1999, unless otherwise approved the DWQ. These facilities must be designed at a minimum
to treat the runoff from the entire project, unless otherwise explicitly approved by the DWQ. Also, before
any permanent building is occupied at the subject site, the facilities (as approved by the Wetlands/40 t
Unit) shall be constructed and operational, and the stormwater management plan (as approved by the
Wetlands/401 Unit) shall be implemented. The structural stormwater practices as approved by the
Wetlands/401 Unit as well as drainage patterns must be maintained in perpetuity. No changes to the
structural stormwater practices shall be made without written authorization from the Division of Water
Quality. The extended detention wetlands may be located within Zone 1 of the buffers as indicated within
J y..
North Carolina Division of Water Quality, 401 Wetlands Certification Unit, 1650 Mail Service Center, Raleigh, NC 27699-1650
919-733-1786 (phone), 919-733-6893 (fax), http://h2o.enr.state.nc.uslncwetlands/

Page 2 of 2
the variance request, but their impacts to Zone 1 must be minimized (as determined by the DWQ) and
they shall not be closer than fifteen (15) feet to the stream bank.
2. No impacts shall occur to Zone 1 of the protected riparian buffers except for impacts associated with the
stormwater management plan approved by the DWQ and `:exempt" uses as identified within 15A NCAC
2B .0233.
r?
3. You are required to provide buffer mitigation for the proposed impacts. The required area of mitigation
indicated below may be less if thi' arriount`of impervious surface within Zone 2 is reduced. This will
require that a revised siteTlan be submitted to and approved by the DWQ. The required amount of buffer
mitigation shall be,equal to 39,990 ft2 if you only provide stormwater treatment (as approved by the DWQ
within your stormwater management plan) for the entire project. If you provide stormwater treatment for
all off-site runoff that enters the property from "culvert no. 1" and "culvert no. 2" per the DWQ
Stormwater Best Management Practices manual dated April 1999 and a US Army Corps of Engineers 404
Permit is approved for the in-stream diversion structure, then no buffer mitigation will be required. You
are required to submit in writing a miiigation plan detailing how you intend to satisfy this buffer
mitigation prior to the submittal of your stormwater management plan.
We understand that you wish to make a payment into the Riparian Buffer Restoration Fund administered
by the NC Wetlands Restoration Program (WRP) to meet this mitigation requirement. This has been
determined by the DWQ to be a suitable method to meet the mitigation requirement. In accordance with
15A NCAC 2B .0242(7), this contribution will satisfy our compensatory mitigation requirements under
15A NCAC 2B .0233(9)(C). The DWQ will provide you with the procedure for making this payment
once your mitigation plan as described above is received.
4. The outside buffer boundary and along the construction corridor within these boundaries approved under
this approval shall be clearly marked by orange fabric fencing for the areas that have been approved to
infringe within the buffer prior to any land disturbing activities to ensure compliance with 15A NCAC 2B
.0233 and this approval.
If you do not accept any of the conditions of this approval, you may ask for and adjudicatory hearing. You must
act within 60 days of the date that you receive this letter. To ask for a hearing, send a written petition which conforms to
Chapter 150B of the North Carolina General Statutes to the Office of Administrative Hearings, 6714 Mail Service Center,
Raleigh, NC 27699-6714. This approval and its conditions are final and binding unless you ask for a hearing.
This letter completes the review of the Division of Water Quality under the Neuse River Riparian Buffer
Protection Rules [ 15A NCAC 2B .0233(9)(b)]. Please call Mr. Bob Zarzecki at 919-733-9726 if you have any questions
or require copies of our rules or procedural materials.
Sincerely,
Cc: Steve Mitchell, DWQ Raleigh Regional Office
Ron Ferrell, Wetlands Restoration Program
File Copy
Central Files
I)RAFT?-
Gregory J. Thorpe, Ph.D.,
Acting Director
DWQ 020089
May 2, 2002
s -zvr `A? A rFR
?O? QG
> -t
Michael F. Easley
Governor
William G. Ross, Jr., Secretary
Department of Environment and Natural Resources
Gregory J. Thorpe, Ph.D., Acting Director
Division of Water Quality
Page 1 of 2
May 24, 2002
DWQ Project No. 02-0089
Wake County
ARH International Co.
c/o: Mr. Al Hashemi; President
P.O. Box 97772
Raleigh, NC 27624
Subject Property: Northwood Center I, 11 & 111
707/801 NE Maynard Rd., Cary, NC 27513
Parcel Number 0764870452, 14.63 acres
"Black Creek", tributary stream to Crabtree Lake (03-04-02; 27-33-5; C NSW]
Dear Mr. Hashemi:
This office received your letter dated May 20, 2002 requesting clarification of issues related to your Minor
Variance approval from the Neuse River Basin: Nutrient Sensitive Waters Management Strategy: Protection and
Maintenance of Existing Riparian Buffers (Neuse Buffer Rule; 15A NCAC 28.0233) issued on May 2, 2002. The DWQ
has provided clarifications as requested below.
• Question of why the variance is given? I tried to reach Bob, he was out for the next two days. Would it be possible/
get a formal response why this variance is given to us. It has been my presumption that we have met the tests and
conditions set by 15A NCAC 02B.0232 (9)(a) and (9)(b) which are quite elaborate.
For all variances from the Neuse Buffer Rule the Division must make a finding of fact as to whether the requirements
within 15A NCAC 26 .0233 (9)(a) have been met. ,The Division made this finding of fact and determined that your
request for a variance met the requirements and, therefore, issued your variance approval on May 2, 2002.
• Use of sheet flow through the riparian buffer to get a 30% Nitrogen reduction. In our last meeting I recall that we
would be able to get reduction when we move the storm water in a sheet flow through the riparian buffer, please
confirm if we could take a 30% Nitrogen deduction if we have this sheet flow.
Your variance approval issued on May 2, 2002 requires that you submit to and have approved by the DWQ a final,
written stormwater management plan. Along with other requirements, the plan is required to include extended
detention wetlands to remove nitrogen as indicated within the variance request and per the DWQ Stormwater Best
Management Practices manual dated April 1999, unless otherwise approved the DWQ. These facilities must be
designed at a minimum to treat the runoff from the entire project, unless otherwise explicitly approved by the DWQ.
The final approval may allow for additional impacts to the riparian buffers associated with the extended detention
wetlands and direct discharge from the extended detention wetlands to the stream after treatment.
The stormwater management plan is a condition of the variance approval and is not a requirement under the Neuse
River Basin - Nutrient Sensitive Waters Management Strategy: Basinwide Stormwater Requirements (Neuse
Stormwater Rule: 15A NCAC 26 .0235). The Neuse Stormwater Rule requires that fifteen (15) local governments
(including the Town of Cary) provide additional stormwater treatment to control nitrogen. Please contact the Town of
Cary regarding compliance with their Neuse Stormwater Rule associated ordinance. Compliance with their ordinance
may require additional stormwater treatment beyond what is required under your Minor Variance approval.
Please note that if the project does not propose any impacts to the protected riparian buffers and if you provide diffuse
flow of all stormwater prior to entering the buffers, then no variance or approval from this office will be required.
However, you would still need to comply with the Neuse Stormwater Rule with respect to diffuse flow of stormwater as
well as the associated Town of Cary ordinance.
North Carolina Division of Water Quality, 401 Wetlands Certification Unit, 1650 Mail Service Center, Raleigh, NC 27699-1650
919-733-1786 (phone), 919-733-6893 (fax), http://h2c.enr.state.nc.uslncwetlands/

• We have provided Town of Cary with a copy of the Variance issued to us. They are asking that there is more than
just this variance, should we have had anything more than this variance or am I missing something?
No other DWQ approvals, other than the Minor Variance Approval with conditions issued on May 2, 2002, are
required from this office for the impacts to the riparian buffers proposed within your minor variance request. If you
propose any additional impacts to streams, wetlands or buffers you may be required to submit new applications to and
receive approvals from this office for a.401 Water Quality Certification. Also, your project will need to comply with all
other required local, state and federal regulations, including (but not limited to) Erosion and Sediment Control and
Neuse Stormwater Rule and the associated Town of Cary ordinance.
• City of Cary is reading that the BMPs to be installed are mitigation for the variance, whereas BMPs are installed as
part of storm water plan for this site. Actual mitigation for using the buffer in our case will be payment to the fund.
The stormwater management plan (including the extended detention wetlands / BMPs) and the payment into the
Riparian Buffer Restoration Fund are conditions of the Minor Variance Approval issued May 2, 2002. Your project will
need to comply with all other required local, state and federal regulations, including (but not limited to) Erosion and
Sediment Control and Neuse Stormwater Rule and associated ordinances. The extended detention wetlands / BMPs
required under the stormwater management plan condition of the Minor Variance may be included within your
compliance with the Neuse Stormwater Rule and associated Town of Cary ordinance, but may not completely satisfy
their ordinance requirements. Please contact the Town of Cary regarding compliance with their Neuse Stormwater
Rule associated ordinance. .
Please.call me at [phone] if you have any additional questions or require copies of our rules or procedural
materials.
Sincerelv.
hn L4/?? etlands / 401 Unit Q
Cc: Steve Mitchell, DWQ Raleigh Regional Office u
Tom Horstman, Engineering Dept., Town of Cary, PO Box 8005, Cary, NC 27512-8005
File Copy
Central Files
DWQ 020089
May 24, 2002
e . 6
STATE OF NORTH CAROLINA- ! , E D
COUNTY OF WAKE
ZOO] NOV I u P 12= 32-
Al Hashemi & ARH International
OFFICE OF
)
ADMIMSTRATIVD
HEAR1`:,r,S )
Petitioners,
V. )
NC DENR )
Division of Water Quality )
Respondents. )
IN THE OFFICE OF
ADMINISTRATIVE HEARING
02 EHR 0483
SETTLEMENT CONFERENCE
CONSENT ORDER
Based on a Settlement Conference conducted by Administrative Law Judge , Honorable James
Conner, II on November 13, 2003 in accordance with rule .0107 of the Rules of the Office of
Administrative Hearings, the parties enter into this Consent Order in accordance with N.C. Gen.
Stat. § 150B-31(b).
1. The office of Administrative Hearing has proper jurisdiction over the parties and the
subject matter of this contested case and there is no question as to misjoinder or
inonjoinder.
2. The parties agree that a neutral, third party "expert" who is a well-educated scientist or
engineer familiar with geology, soil and hydrology of the Piedmont of North Carolina
with at least six years experiencd will make by measurement and evaluation in accordance
with acceptable engineering and scientific practice, which would include relevant ASTM
standards but should not include the DWQ.stream classification checklist, to determine
whether the stream on the property of Al Hashemi is ephemeral, intermittent, or perennial
and to mark the ephemeral portion, if any. The findings of this third party are binding on
1
4.
the two parties.
The cost of this determination will be paid half by each party.
The selection of the Expert will be made as follows:
a. Al Hashemi will choose three to five persons who meet the above requirements
(none of whom derive any significant portion of their income from contracts with
Hashemi, or are in the business of determining stream classifications without
having the above scientific or technical training).
b. The State will choose three to five persons who meet the above requirements (none
of whom are former DWQ staff, derive any significant portion of their income
from contracts with D WQ, or are in the business of determining stream
classifications without having the above scientific or technical training).
C. If any name appears on both lists, that person is thereby selected to perform the
work.
d. If no name appears on both lists, then Mr. Hashemi and the State shall each select
one person from their respective lists. Those two persons shall be asked to talk
with each other and select a person to do the work whom they are both satisfied is
qualified (per above) and neutral.
5. Upon completion of selection in accordance to paragraph 4 above, the selected expert will
upon his own acceptable schedule arrange for the necessary determination of the stream
types.
6. The selected expert's determination as to the stream type shall be binding on all parties.
7. The rule that the expert will be using as his guide is 15A NCAC 0213.0233.
8. The definitions that the expert will use are those given in title 15A some of which are
given as follows:
15A NCAC 02B .0233 (2) defines the following types of streams:
(c) "Ditch or canal" means a man-made channel other than a modified natural
stream constructed for drainage purposes that is typically dug through inter-stream
divide areas. A ditch or canal may have flows that are perennial, intermittent, or
2
J
r
ephemeral and may exhibit hydrological and biological characteristics similar to
perennial or intermittent streams.
(d) `Ephemeral (stormwater) stream' means a feature that carries only
stormwater in direct response to precipitation with water flowing only during and
shortly after large precipitation events. An ephemeral stream may or may not have
a well-defined channel, the aquatic bed is always above the water table, and
stormwater runoff is the primary source of water. An ephemeral stream typically
lacks the biological, hydrological, and physical characteristics commonly
associated with the continuous or intermittent conveyance of water.
(g) `Intermittent stream' means a well-defined channel that contains
water for only part of the year, typically during winter and spring when the aquatic
bed is below the water table. The flow may be heavily supplemented by
stormwater runoff. An intermittent stream often lack the biological and
hydrological characteristics commonly associated with the conveyance of water.
(h) "Modified natural stream" means an on-site channelization or
relocation of a stream channel and subsequent relocation of the intermittent or.
perennial flow as evidenced by topographic alterations in the immediate
watershed. A modified natural stream must have the typical biological,
hydrological, and physical characteristics commonly associated with the
continuous conveyance of water.
0) `Perennial stream' means a well-defined channel that contains water
year round during a year of normal rainfall with the aquatic bed located below the
water table for most of the year. Groundwater is the primary source of water for a
perennial stream, but it also carries stormwater runoff. A perennial stream exhibits
the typical biological, hydrological, and physical characteristics commonly
-? J

associated with the continuous conveyance of water.
The terms "water table" and "saturated zone" are defined at 15A NCAC 02L.0102:
(27) "Water table" means the surface of the saturated zone below which all
interconnected voids are filled with water and at which the pressure is atmospheric.
(22) "Saturated zone" means that part of the subsurface below the water table in
which all the interconnected voids are filled with water under pressure at or
greater than atmospheric. It does not include the capillary fringe.
The term "seasonal high water table" is defined at 15A NCAC 2H .1002:
(15) "Seasonal High Water Table" means the highest level that the groundwater,
at atmospheric pressure, reaches in the soil in most years. The seasonal high water
fable is usually detected by the mottling of the soil that results from mineral
leaching.
The term "perched water table" is defined at 15A NCAC 18A.1935:
(35) "Perched water table" means a saturated zone,. generally above the natural
water table, as identified by drainage mottles caused by a restrictive horizon.
9. Regardless of the classification of the stream, Mr. John Dorney agrees that he will appear
upon request of Al Hashemi before the Town Council of Cary (assuming the. Council
allows it) and/or Town of Cary staff and explain why DWQ issued a minor variance to
Mr. Hashemi, how the required on-site stormwater measures and remaining buffer will
protect water quality, and that no additional buffer is necessary to protect water quality.
10. DWQ will recommend to EMC that it authorize a letter being sent in its name to the Town
4
J

of Cary with the following wording:
"The Water Quality Committee approval of the Town of Cary storm water management
plan did not grant to the Town of Cary any powers to establish riparian buffers greater
than those established by the Environmental Management Commission. In particular, the
EMC did not delegate a Neuse River riparian buffer program authority to the Town of
Cary under N.C. Gen. Stat. 143-214.23 or 15A NCAC 2B .0241. The Town of Cary may
or may-not have authority to establish 100 foot buffers, but any such authority did not
come from the EMC stormwater management plan approval." If this recommendation is
accepted by EMC, Al Hashemi will drop his Federal Case against the State.
11. In addition, DWQ will write a letter to the Town of Cary stating as follows: "The
Division of Water Quality has issued a minor variance to Mr. Al Hashemi. The DWQ
issued this variance -because the terms of the variance adequately protect water quality,
and no additional buffer is needed to protect water quality, given the variance conditions
including the remaining buffer and the on-site stormwater BMPs.
12. Mr. Hashemi agrees to accept all of the provisions of the variance previously issued by
DWQ.
13. Entry of this agreement serves as Petitioner's withdrawal of its petition for Contested Case
Hearing With Prejudice in these matters. The parties agree this matter is concluded and
that no further proceedings are needed or required to resolve the contested case.
This the 13`h day of November, 2003.
PETITIONERS
Al Hashemi individually and as President
• of ARH International Co.
SPONDENTS
John
5
r
Supervisor of the Wetlands /401 Unit
ROY COOPER
Attorney General
Mary P my Fv on
As ' tant Att ener al
N. ' C. Department of Justice
Environmental Division
Post Office Box 629
Raleigh, NC 27602-0629
OFFICE OF ADMINISTRATIVE HEARING
dames Conner, II
Administrative Law
6
J
k WATER & LAND SECTION Fax:[phone] Sep 23 '03 12:22 P.01
the desk
etic of
C Q ?/ t T E R BFrom
evy Coats
Program Assistuit
Drpa=Cnt of JUSOCe
P. O. Box 629
Raleigh NC 27602
S H E E T : [phone] FAX
Fax: [phone]
u"LeQne4-c m
To, JohiP10'rney Mike Horan Bob Zaryecki
Fax#: [phone] 733-6893
Subject: Al Hasbemi
Date: September 23, 2003
Pages: 3(including cover sheet)
COMMENTS:
FYI, Order Continuing Hearing.
WATER & LAND SECTION Fax:[phone]
09/13/2003 15:42 9197333407
OAH

Sep 23 '03 12:22
STATE OF NORTH CAROLINA
OFFICE OF A?,iDWMSTRATIVE HEA NGS
FAX COVER SHEET
TO; AI Hashcrai [phone]
Marv Penny'Thornpwn [phone]
WROM. Christie Ford
Office of Adniitisixative Hearings
DATE; September 1.9, 2003 TIME: 3:39 PM
SUBJECT; ?4.RHlnternational Co. x NC DENR, 02 EI1R 0483
N UMBER OF PACES (ineluding this page): 2
P. 02
PAGE 01
COMMENTS:
Order Continuing Hearing
Aamiaistral-lor, AtImMistravve Law Judges, Civil Rights Clerk's Office Rules
9191733-2691 9195733-2698 919733.0431 91917330936 910334473
FRI; 9191733347E Fa., 9191733J407 Faw: 01917334866 Fag: 9191733.3478 Fsz: 9191733.3462
46714 1Mazi Svw'YAcO cvmtcr • Balssigh, Morth Carolfits 27699-6714
Capehart-Cirocker House • 42,4 North Blomme Street. >7aleigh, North Caxolina 27601-2817
An Equal Eallploymeut Opportunity Employer
f LATER & LRND SECTION Fax:[phone]
09/19/2003 15,42 9197333467 OAH
Sep 23 '03 12:23 P.03
rAL-A-1 ax
MUM
OMCS aF
ADMIAISMILTWX HEARI,VGS
Sep 27 9 DO AM 7003
STATE OF WORTH CAROLINA
COUNTY 01r WAKE
IN THE OFFICE OF
ADMINISTRATIVE HEA&INGS
02EHR0483
ARH International Co... represented by )
Al Hashcmn President of the Company )
Petitioner )
vs. ) ORDER CONTINUING
REA,RLNG
Division of Water Quality of N. C. )
Department of Environment and )
Natural Resources )
Respondent )
Upon Motion by the Petitioner and agreement of the parties, the bearing in this niattsr is
continued to November 26, 2003 at 9;30 a.m. in the Office of Administrative Hearings, Lce
Housc, 424 N.131ouat Stred, P dei&14 Not& Carolina-
This the 22nd day of September, 2003.
Beryl E. 'Wade
Administrative Law Judge
F WA TF Michael F. Easley, Governor
William G. Ross Jr., Secretary
?? QG North Carolina Department of Environment and Natural Resources
f/) r Alan W. Klimek, P.E., Director
Division of Water Quality
December 30, 2002
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Mr. Al Hashemi
ARH International, Company
Post Office Box 97772
Raleigh, NC 27624
RE: ARH International site
Wake County
4DWQ# 2-0089
Dear Mr. ash
I am in receipt of your fax of November 26, 2002 with attachments of your letters of November 5,
2002 to John Cooke and November 27, 2002 to Alan Klimek. In your fax, you requested a meeting to
discuss your "...variance documents with our plans and calculations." As you know, DWQ staff have
met with you on numerous occasions to discuss your site, variance request, stormwater management
plans and various site plans. As stated in our last letter of November 20, 2002, your next step with
respect to any permitting by DWQ would be to submit at 401 Water Quality Certification application.
DWQ staff will be glad to meet with you to discuss the application (upon your request) after you have
submitted a formal complete application with the required 401 Water Quality Certification fee. Until
that application and fee are submitted, I do not believe that a meeting would be useful.
Please call me at 733-9646 if you have any questions. I understand that DENR legal staff will
shortly address the legal questions you have raised in your November 27, 2002 letter to Alan Klimek.
7
rpervisor, Unit
Cc: B ob Zarzecki
Todd St. John
Steve Mitchell, Raleigh Regional Office
File Copy
Dan Oakley, DENR Administration
*
_U . 1151
N. C. Division of Water Quality, 401 Wetlands Certification Unit,
1650 Mail Service Center, Raleigh, NC 27699-1650 (Mailing Address)
2321 Crabtree Blvd., Raleigh, NC 27604-2260 (Location)
[phone] (phone), 919-733-6893 (fax), (http://h2o.enr.state.nc.us/ncwetiands
W A T ?9?G
r7
December 2 2002
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Mr. Al Hashemi
ARH International, Company
Post Office Box 97772
Raleigh, NC 27624
RE: ARH International site
Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Alan W. Klimek, P.E., Director
Division of Water Quality
Wake County
DWQ# 02-0089
Dear Mr. Hashemi:
I am in receipt of your fax of November 26, 2002 with attachments of your letters of November 5,
2002 to John Cooke and November 27, 2002 to Alan Klimek. In your fax, you requested a meeting to
discuss your "...variance documents with our plans and calculations." As you know, DWQ staff have
met with you on numerous occasions to discuss your site, variance request, stormwater management
plans and various site plans. As stated in our last letter of November 20, 2002, your next step with
respect to any permitting by DWQ would be to submit at 401 Water Quality Certification application.
DWQ staff will be glad to meet with you to discuss the application (upon your request) after you have
submitted a formal complete application with the required 401 Water Quality Certification fee. Until
that application and fee are submitted, I do not believe that a meeting would be useful.
Please call me at 733-9646 if you have any questions. I understand that DENR legal staff will
shortly address the legal questions you have raised in your November 27, 2002 letter to Alan Klimek.
lit
Cc: Bob Zarzecki
Todd St. John
Steve Mitchell, Raleigh Regional Office
File Copy , oc-
D&Y\

NCUEN qF
N. C. Division of Water Quality, 401 Wetlands Certification Unit,
1650 Mail Service Center, Raleigh, NC 27699-1650 (Mailing Address)
2321 Crabtree Blvd., Raleigh, NC 27604-2260 (Location)
[phone] (phone), 919-733-6893 (fax), (http://h2o.enr.state.nc.us/ncwetlands
Sincerely,
OF W A T
r-,?? pG
[..?Irlllc?....1
December 20, 2002
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Mr. Al Ishemi
ARH International, Company
Post Office Box 97772
Raleigh, NC 27624
Dear Mr. Hashemi:
I am in receipt of your fax of November 26, 2002 with attachme is of your letters of November 5,
2002 to John Cooke and November 27, 2002 to Alan Klimek. In ur fax, you requested a meeting to
discuss your "...variance documents with our plans and calculat' ns." As you know, DWQ staff have
met with you on numerous occasions to discuss your site, vari ce request, stormwater management
plans and various site plans. As stated in our last letter of , 2002 your next step with v
respect to any permitting by DWQ would be to submit at 401 Water Quality Certification application.
DWQ staff will be glad to meet with you to discuss the application (upon your request) after you have
submitted a formal complete application with the required 401 Water Quality Certification fee. Until
that application and fee are submitted, I do not believe that a meeting would be useful.
Please call me at 733-9646 if you have any questions. I understand that DENR legal staff will
shortly address the legal questions you have raised in your November 27, 2002 letter to Alan Klimek.
Sincerely,
John R. Dorney
Supervisor, Wetlands Unit
Cc: Bob Zarzecki
Todd St. John
Steve Mitchell, Raleigh Regional Office
File Copy
Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Alan W. Klimek, P.E., Director
Division of Water Quality
_ =AN
?'iC.: 4
N. C. Division of Water Quality, 401 Wetlands Certification Unit,
1650 Mail Service Center, Raleigh, NC 27699-1650 (Mailing Address)
2321 Crabtree Blvd., Raleigh, NC 27604-2260 (Location)
[phone] (phone), 919-733-6893 (fax), (http://h2o.enr.state.nc.us/ncwetlands

?--.

1
_ n ??L1?
sa
----------------- - -- -
hg

From: Ad Hasheml To, John Domey Date: 11/2812002 The: 5:58:52 PM Page 1 of 4
A R H International Co,
? ARFi
P.O. Box 977?2, Raleigh, NC 21624 [phone] Fix: [phone] Email: arhinflC nc.rr.com
Subject:
Sent: 11126/2002 at 5:58:48 PM Pages: 4 (including cover)
MESSAGE:
John Dorney:
Thank you for your letter that was faxed to me today. I like to respond to this matter as follows:
1. You have made cross reference to Mr. Cooke's letter which is inherently wrong, Mr. Cooke has not even bothered
reading the Town's riparian buffer rule before writing that letter, something that he is fully responsible as per Civil
procedure rules. We have a saying in Persian that translates to "when you go to judge you do not go ex part". If Mr.
Cooke had followed proper professional ethic, he would have made a note that you are also receiving the letter so that I
would have also responded accordingly and sent you my reply. I have taken this opportunity and am sending the reply
to Mr. Cooke's letter. My best suggestion to you is Mr. Dorney you should read my complaint. If you do so, you will
get a good hange of what has gone on.
2. Now I know why a professional like you can forget his promise and understanding after the fact.
3. You have a tendency to make decsion without due process, and that is apparent here.
4. You are asking me to provide 401 now, you are well aware that we provide you with 401 when we have construction
drawings approved by the municipality in the last leg of the works that need to be done. You did not require 401 for the
major and minor valiance. As you know you have conditioned them upon 401 before any impact. Now my request to
you is to allow me to come to you again like varinace documents with our plans and calculations. You make
your prelimianry
findings and we go
from there.
Sincerely ; U
Al Hashemi k 5 ',f-D
Eli'
To: John Dorney
Fax #: [phone]
Company: DWQ
III= layd
From: AI Hashemi
Fax #: [phone]
Tel * 919-846-8846
From: Al Haeheml To: John Dorney bate: 11126/2002 Tlme: 5:58:52 PM Page 2 of 4
ARH International Co.
ARH
N P.O. Box 97772, Raleigh, NC 27624 [phone] Fax: [phone] Email: arhintl;a}nc,rr.Com
November 5, 2002
John Cook
Attorney at Law
150 Fayetteville Street Mall, Suite 2100
Raleigh, NC 27601
T: 755-2100
F: 755-6083
Re: ARH v. Town of Cary, et. al
Dear Mr. Cook;
Thank you for your fax of today. This is my response:
Your I.A. Mr. Cooke, your background information is inaccurate and do not reflect 15A NCAC
2b.0233, and Cary's 14.6.8. I think you are mistaking variance for the Riparian buffer for a
variance from your zoning ordinance. A good understanding ofthe riparian buffer law where the
town has piggy backed its 14.6.3 and 14.6.8 is of absolute must. If the intention of the Council
was to proceed with unlawful taking of people's property (nonsensical Zone 3) to be handled in a
manner similar to other variances, they did not have to be specific as to the procedure.
Your I.B. The variance application we have filed meets and exceeds all necessary information at a
preliminary level to establish a riparian buffer requirement of the 14.6.8. The requirement for the
other zoning ordinances is a matter of final site plan drawing and permitting, which the town has all
the chances in the world to see engineered sealed drawing. This variance request has nothing to do
with the final permit and site plan drawings. All the technical matters regarding the Nitrogen and
other matter reflect lack of knowledge of the standards by which these matters are decided upon,
therefore I have striken them all.
Your II.A. Not acceptable
Your H.B. We obviously agree that, as originally given to you, we will place an stay on the
proceedings including demand for damages, during which we will proceed with the following:
From: Al Haeheml To: John Dorney Date: 11126/2002 Time, 5,58:52 PM Page 3 of 4
1. The Riparian rule was specifically designed for control of Nitrogen, so you and someone
technical, who has a relative knowledge of these matters in Cary, Ms. Betsy Pearce, can sit
and like reasonable adults figure out what we need to establish this Nitrogen effect based on
14.6.3 and 14.6.8 and we go from there. I do not accept any engineering fees for
calculation as it is rudumentary and absolutely unnecessary at this time, as it will be
approved by the same body who has established the standards (EMC), and the staff needs to
come out of its amnesia. It is only necessary at the final site plan approval as per town
ordinance and we have put that very clearly as the condition of the variance. I strongly urge
you to read the technical documentation I have sent you. ( I also strongly urge you to read
the transcripts from the preliminary hearings with the Town Council, as the mayer himself
had specified that we do not want staff have anything to do with these riparian variances.)
2. The town will look at these documents we submit to you, they will figure out if they have
any arguments, we will respond accordingly and if all is ok, we will receive a general
understanding letter from you that the town will do give the variance upon obtaining the
EMC and in line with that variance. And subject to conditions that we have already given in
our proposal before. ?
3. After Obtaining th MC's variance the town will schedule us on the first hearing date
and approve thereof.
Your II.C. I think, I have answered that above, now I do understand that the Council has to
decide in a public hearing, if Council receives a favorable report from the Staff and refuses to issue
the variance, then our legal matter will be reduced between us and the town of Cary, therefore, the
staff will be removed from our complaint's list of defendants.
In the closing Mr. Cooke, obviously due to your lack of technical knowledge, you are making
statements that are not correct or irrelevant, including your C.3(a) bold faced. We wish to make
settlement, but if there is no standard of reasonableness, lets just proceed with the litigation.
I also like to add that the Dec 2, 2002 hearing was not scheduled due to overflow and is set for Dec
16, 2002. Please let me know if that is ok with you. I f you do not have any further claim against
our complaint and no need for judgment on complaint, then please let me know in writing.
I would like for you to know that I intend to bring a separate class action lawsuit against the town, I
am trying to establish a consensus with the property owners for payment of the legal fees, so we can
hire a top lawyer to basically either force the town to pay for their nonsensical Zone 3 or to scrap
their rule all together, unfortunately as soon as they hear my name and they know I am from middle
east they lose their appetite, therefore I am trying to get others involved to remove the same
prejudice that has enclaved my case with town of Cary as well. This will be effected through Fifth
Amendment Org. I am not adding this for additional lubrication of my case, as the merits of my
case, is beyond a shadow of any reasonable man's doubt, very clear and
overwhelming.
I look forward to hearing from you,
From! AI Hasheml To: John Domey Date: 11!2 M02 Time: 5:58:52 PM Page 4 of 4
Sincerely
I?A LL,-
Al Hashemi
ARH International
P.S. Please note that the due date of your response to our Complaint is coming to a close.
CC. Mr. Charles Henderson
From: AI Hasheml To: John Dorney Data: 1112712002 Time: 2:11:50 AM Page 1 of 7
A R H International C o,
ARH
P.O.Box 971?2, Raleigh, NC 2;624 [phone] Fix: [phone] Email: [e-mail],com
Subject:
Sent: 11/27/2002 at 2:11:06 AM Pages: 7 (including cover)
MESSAGE:
Please find attached our notice and request for hearing.

FACSIMILE COVER PAGE
To: John Dorney From: Al Hashemi
Fax #: [phone] Fax #: [phone]
Company: DWQ Tel #: [phone]
From: X Hasheml To: John Domay Date: 11/27/2002 Tlme: 2:11:50 AM Page 2 of 7
1
ARH International Co.
? /HRH
P.O. Box 97772, Raleigh, 11C 27624 [phone] Fax: [phone] Email: arhintl;u nc.rr,cam
Director Alan W. Klimek
Environmental Management Commission
Water Quality Commission
512 North Salisbury Street
Raleigh, NC 27604
Phone: [phone]
Fax: [phone]
URGENT
November 27, 2002
Re; Whether the Commission has erred by approving the Riparian Buffer Ordinance of the Town of
Cary by Implication as a Result of the Approval of Their Stormwater Management Plan.
Mr. Director Klimek;
I am writing this praying for being heard by the water quality comitte on their first meeting in 2003.
Although this letter is coming to you via fax, and US mail, I have also sent you by separate email
additional exhibits and the current lawsuit against the Town of Cary to augment and make it more
clear as to dichotomy that EMC has caused by creating the necessary ingridient for a renegade Town
to abuse my and another thousand or more small landowners like me under the color of the
ordinance by Town of Cary and under the color of state law by EMC violating my constitutional
and civil rights under USC § 42.1983 and many others. It is of outmost necessity that we hear back
from you within 10 days from the date of this letter to head-off any lawsuit.
Conclusion
Part 6 to Chapter 14 of the Cary Unified Development Ordinance appears likely to be adjudged to
be invalid because the authority of local governments to adopt riparian buffer schemes under N.C.
Gen. Stat. § 143-214.7 has evidently been preempted by the adoption of riparian buffer protection
program legislation that expressly provides for delegation to local governments of state-promulgated
riparian buffer protection provisions of N.C. Gen. Stat. § 143-214.23 Riparian Buffer Protection
Program
The insistence of the Town of Cary that it can deny a variance to zone 3 when a variance has been
granted by the EMC to activity in zone 2 will be difficult to justify based on the language of the
ordinance itself. The Town risks invalidation of the entire riparian buffer scheme by its
failure to grant a variance in keeping with the variance granted by the Environmental Management
From: Al Hasheml To! John Dorney Date: 11127/2002 Tlme: 2:11!50 AM Page 3 of 7
Commission (EMC).
ARH v. EMC 2 of 6
EMC has erred by approving the part of the Storm water Management Plan ofthe Town of Cary
which violates North Carolina Statutes at minimum, and many Federal Statues and US
Constitutional Articles and Amendments.
EMC has erred in setting the variance mitigation requirements of 15A NCAC 2b.0233 through
15ANCAC 02B. 0242 (3)(b) (i,ii) and Id. sections 0242(6), 0242(7), and (8). Which is nothing
but double japaerdy and unfair taxation scheme.
Relief Sought
1. EMC Should recall the Stormwater Management Plan of the Town of Cary and make
sure that EMC authorizes such plan based on the mandates provided by the N.C, Gen. Stat. § 143-
214.23.
2. EMC has erred in setting the variance mitigation requirements and should properly
adjust its administrative code to make it constitutional and based on mandate provided by N.C. Gen.
Stat. § 143-214.20.
Background
The Town of Cary adopted a new Part 6 to Chapter 14 of the Unified Development Ordinance
("UDO") entitled "Stormwater Management Plan." Section 14.6.3 of the UDO imposes a 100 foot
riparian buffer along all permanent and intermittent streams as indicated in U.S.G. S. topographical
maps and a 50 foot buffer for other surface waters indicated in the Soil Survey of Wake County.
The 100 foot buffer adds a third zone to the already existing zones 1 and 2 imposed by the Neuse
River Basin Riparian Buffer rules of the N.C. Environmental Management Commission ("EMC"),
15A NCAC 2B.0233.
ARH owns a piece of property along Maynard Road NE in Cary. There is a drainageway identified
on the most recent version of the "1:24,000 quadrangle" of the U. S.G.S. topographic map for this
area. ARH has sought and received a variance from the Neuse River Basin Riparian Buffer
requirement pursuant to 15A NCAC 2B .0233(9), so that it could develop within the 20 foot-wide
zone 2 prescribed by the rule. The Town of Cary now asserts that the buffers specified by its
Stormwater Management Plan apply notwithstanding the EMC variance.
Section 14.6.3 ofthe UDO establishes a 100 foot riparian buffer composed of three zones extending
landward from the streambank: a 30 foot zone 1, a 20 foot zone 2 (measured from the landward
edge of zone 1) and a 50 foot zone 3 (measured from the landward edge of zone 2). Section
14.6.3(c) describes allowable activities in zones 1 and 2 strictly in terms ofthe EMC rule at 15A
NCAC 2B.0233. Allowable activities in zone 3 are designated as those allowed in zones 1 and 2.
Section 14.6.8 ofthe UDO provides for a variance to the riparian buffer requirement. Variance
from zones 1 and 2 may only be granted by the EMC. Variance from zone 3 may only be granted
by the Cary Town Council. The To-.Am Council may grant a variance "based on documentation of
practical difficulties or unnecessary hardships caused by the implementation of Zone 3 as related to.
.. (1) the relationship of existing topography to site layout, (2) the size and configuration of the site
h
o'Nwa,,
Va &N-e--
From: AI Hasheml To: John Carney Date: 11127/2002 Time: 2:11:50 AM Page 4 of 7
ARH v. EMC 3 of 6
[and] (3) natural barriers." UDO Sec. 14.6.8(a).
A variance has been requested from the Town of Cary and has been denied-
Discussion
Issues:
L Whether EMC has erroneously and capriciously approved the City of Cary's Storm
Water Plan, without adequate consideration for the law?
1. Part 6 to Chapter 14 of the Cary Unified Development Ordinance appears likely to be
adjudged to be invalid because the authority of local governments to adopt riparian buffer schemes
under N.C. Gen. Stat. § 143-214.7 has evidently been preempted by the adoption of riparian buffer
protection program legislation that expressly provides for delegation to local governments of state-
promulgated riparian buffer protection provisions of N.C. Gen. Stat. § 143-214.23 Riparian Buffer
Protection Program
2. Municipalities can exercise only the power conferred on them by the General Assembly.
Bowers v. City ofHigh Point, 339 N.C. 413, 415 S.E. 2d 284 (1994). The authority of a
municipality has been described as (1) powers granted in express terms; (2) powers necessary or
fairly implied in or incident to the powers expressly granted; and (3) powers essential to the
accomplishment of the declared objects of the municipal corporation. For the latter category, the
powers asserted must be indispensable to the task and not merely convenient. Id.
3. The North Carolina General Assembly has identified stormwater management programs
designed to protect water quality by controlling the level of pollutants in, and the quantity and flow
of, stormwater and structural and natural stormwater and drainage systems of all types, as a public
enterprise. N.C. Gen. Stat. § 160A-31 1(10. Cities have full authority to protect and regulate any
public enterprise system belonging to or operated by it by adequate and reasonable rules,
N.C. Gen, Stat. § 160A-312(b).
4. The best determinant of whether the To-Am acted arbitrarily and capriciously would be an
examination of the information presented to the Town of Cary at the time of and preceding the
adoption of Part 6 of Chapter 14 the UDO, Which shows that the town did not even bother to do a
technical study of any sort to establish the benefits to the public versus the damages to the
landowners, and our further studies shows that such benefits, for the purpose of the water quality, is
minute and unimportant at best. It can be argued that the water quality protection provided by 50
additional feet of buffer to 50 feet already existing is neither necessary, fairly
implied, given the already-existing EMC buffers, nor incident to the stormwater management
program authority.
5. In addition to an examination of authority, there is a possibility that the Town's authority to
impose riparian buffers is preempted by state law. Preemption of municipal authority may occur
when the General Assembly makes an express declaration of its intent to preempt municipal
to
? ? (wJ-
From: Al Hasheml To: John Domey Date: 11/27/2002 Time: 2:11:50 AM Page 5 of 7
ARH v. EMC 4 of 6
authority by the exclusion delegation of comparable authority to an agency of the state or it may
impliedly preempt municipal authority by created of a complete and integrated regulatory scheme
such that local regulation is precluded. Greene v. City of Winston-Salem, 287 N.C. 66, 213 S.E.2d
231 (1975). A recent case invalidated an ordinance by Chatham County purporting to establish,
among other things, a permitting scheme for swine farms, and setback distances and buffer zones for
spray field associated with the waste management practices of the swine farms. The N. C. Court of
Appeals held that state statutes regulating the waste management practices of concentrated animal
production facilities [N.C. Gen. Stat. §§ 143-215. l0A .10F], and the Swine Farm Siting Act [N.C.
Gen. Stat. §§ 106-800 through 106-805], when read together, "compel[led] the conclusion that the
General Assembly has provided a `complete and integrated regulatory scheme' of swine farm
regulations," and thus preempted Chatham County from regulating Craig v. County of Chatham,
143 N .C. App. 30,545 S.E.2d 455 (2001).
6. To the extent that the General Statutes establish a complete and integrated regulatory
scheme such that local regulation is precluded, an argument exists that the Town of Cary attempted
exercise of authority has been preempted. There is express recognition in N.C. Gen. Stat. § 143-
214.7 of authority far local adoption of "ordinances and regulations necessary to establish and
enforce stormwater control programs." However, riparian buffer protection is expressly addressed in
N.C. Gen. Stat. §§ 143-214.20-.23. In fact, N.C. Gen. Stat. § 143-214.23 expressly provides for
G? s
?5
delegation of "responsibility for the implementation and enforcement of the State's riparian buffer )-
protection requirements" to local governments under the supervision of the EMC. This provision,
which does not suggest that local governments can or should adopt more stringent programs,
provides a strong argument that the authority of local governments to create additional or redundant
riparian buffer protection zones is preempted. EMC has not delegated authority to the Town of Cary
pursuant to N.C. Gen. Stat. § 143-214.23.
7. EMC Notwithstanding complete and integrated regulatory scheme that has been granted
to her by N.C. Gen. Stat. § 143-214.23, has unlawfully approved the town's Stormwater plan which
includes a section 14.6.3 - 8 which totally changed the riparian regulation, which the town has no
authority to do so, as such authority is limited by legislation and only protection of riparian buffer
scheme can be delegated by EMC and none else.
8. It could be argued that the Town could have taken a buffer, but not a riparian buffer
which is a well addressed scheme and under the control of the State Agency only.
II ANIether EMC has failed to consider the effect of issuing of a variance by EMC when it is
Rreempted by the Town of Cara. this by itself indicates inadequacy of consideration of due
process and law by EMC in conferring the Town of Cary's Storm Water Plan?
1. Assuming for the moment that the Town of Cary has authority to adopt an ordinance
establishing riparian buffer protection zones more extensive than those required by the EMC, it is
arguable that the Town may be able to insist on imposition of zone 3. The language of the
ordinance seems to provide for this possibility. Section 14.6.3(b) established three zones ostensibly
under its own authority (quaere whether this is consistent with the delegation provisions of N.C.
Gen. Stat. § 143-214.23) and then provides that variance authority for the third zone lies exclusively
with the Town Council. It also provides, incongruously, that variance authority for zones 1 and 2
lies exclusively with the EMC. Thus the ordinance in-artfully recognizes the potential for variance
?l

From Al Haaheml To: John Dorney Date: 11127/2002 Time: 2:11:50 AM Page 6 of 7
ARH v. EMC 5 of 6
to zones 1 and 2 without compelling variance to zone 3. EMC has failed to recognize this conflict
and allowing a municipality to preempt the EMC which is the only authorized body by statue for the
riparian buffer regulation.
2. Issuance by the EMC of a variance to zone 2 argues strongly that it would be arbitrary to
deny a variance to zone 3, for a number of reasons. In Section 14.63(c), activities in zones 1 and 2,
allowable under 15A NCAC 2B.0233 are also allowed within zone 3. The variance language for
zone 2 in incorporated in 15A NCAC 2B.0233(9). Thus activity allowable in zone 2 pursuant to a
variance granted under the provisions of 15A NCAC 2B .0233(9) is activity which, by the terms of
Section 14.6.3, is allowable in zone 3. A contrary interpretation runs counter to the plain language
of the ordinance and defies common sense. It also may be used to illustrate a compelling reason why
N.C. Gen. Stat. § 143-214.23 should be read to preempt local imposition of additional buffers and
why delegation rather than independent authorization was the intent of the General Assembly. EMC
failed to interpret this and confirmed upon it.
III Whether the EMC has failed to properly deliberate what the intend of the law was to
begin with and created a variance scheme that is unconstitutional and unlawful?
1. The intend of the 15A NCAC 2B. 0233 is well given in 15A NCAC 2B. 0232(a) which,
reads as follows:
"(a) Pursuant to 1995 (Reg. Sess., 1996) N.C. Session Laws, c. 572, the Environmental
Management Commission hereby establishes the goal of reducing the average annual load of
nitrogen delivered to the N euse River Estuary from point and nonpoint sources by a minimum of 30
percent of the average annual load for the period 1991 through 1995 by the year 2001. "
It can be summed up as to reduction of Nitrogen Export into the Nuese basin. Therefore it is
reasonable to assume that Nitrogen is the standard by which Petitioner should measure the
environmental impacts.
2. Back in 1996, Department of Water Quality did a "Draft Plan" known as " Neuse River
Nutrient Sensitive Waters(NSW) Management Strategy" which goes over a semi-detailed analysis
of why they chose the 50-foot buffer and why their choice will reduce the Nitrogen loading by 30%.
But to know the actual impact of these buffers more detailed analysis is required.
3. In an study that Petitioner has presented to the Town of Cary [Exhibit 15, Why Zone 3
has no important environmental value.]. DWQ in its 1996 determined that the largest source of
Nitrogen Export into Neuse is Agricultural land (54%) followed by Point source (24%),
Forestry(13 %), ..... , and finally Urban Area (6%). That is the amount of pollution caused by
urban area is in fact the least among other sources. Then why is it that urban area is being over
regulated both by State and the municipalities. The answer is very clear.
(a) State is interested to generate income from this rule rather than helping environment or unfairly
tax those who have valuable lands. How is the State doing that?
(1) 15A NCAC 02B.0240 "Nutrition Offset Payment" has fairly priced the cost of using
a BMP to remove the Nitrogen loading in excess of pre development at a rate of $330.00/lb
as a one time payment over a limit of 3.6 lbs/acre/year. Therefore, a land owner in an urban
area has to pay this offset payment to bring down its nitrogen loading to 3.6 lbs/ acre/year.
So if the landowner brings done his nitrogen loading by another 3.61bs/acre/year he
has not caused any increase in Nitrogen loading.
(2) State does not stop here, In 15ANCAC 02B . 0242 (3)(b) (i,ii) it requires that for each sf
),-, 4V
YPI
From Al Hasheml To: John Dorney Data, 11/2712002 TIme- 2.11:50 AM Page 7 of 7
ARH v. EMC 6 of 6
of zone 1, 3 sf of mitigation and for each sf of zone 2 1.5 sf of mitigation to be provided.
Then in section 0242(6) gives options for mitigation and in section 0242(7) and (8), To
illustrate this Petitioner need to have an example:
in Petitioner's case Petitioner need to make this additional payments if state allows us to
replace the stream on Petitioner's property with a wetland. As follows;
Payments for Zone 1 = 60*950*50.96*3 = $ 165,888.00
Pavments for Zone II = 40*950*$0.96* 1.5 =$ 54,720.00
Payment for 950' of stream = $95,000.00
Total additional payment is $315,608.00 to get back 2.18 acre of land or $144,774.31 per
acre.
(3) Now the balance sheet.
State charging for mitigation Landowner total pollution
$315,608.00 3.6*14.63= 52.671bs/year
Actual cost= 52.67*330=$17.381.11
State is trying to charge the landowner $5,992.00/lb of Nitrogen whereas it has already
priced by statue Nitrogen removal rate at $330.00/lb, State is not any more interested in
environment, state is using an unfair taxation scheme to tax those people not because they
have polluted but because the occasion rises for an unfair taxation from those who have a
stream on their property compared to those who do not have. This taxation scheme of the
EMC is so much more obvious with the other options available to the landowner.
(4) In 0242(8) State is even more obvious, here the state is not interested in a land that has
equal environmental value, rather it is interested in a land that is worth, i.e. for Petitioner's
example $315,608.00. Or how much economic value it has.
I look forward to hearing from you, hoping that with the hearing we can settle this matter.
Sincerely,

Al Hashemi
ARH International
cc. Mr. Frank Crawley, Mr. John Dorney, EMC Chief, All House Members, All Senate Members
Environmental Review Commission

t* -
U.S. Army Corps of Engineers
Raleigh Regulatory Field Office
6508 Falls of the Neuse Road
suite 120
Raleigh, North Carolina 27615
Phone: [phone]
Fax: [phone]
FAX COVER SHEET
Date:
Message to: VCS
From:
Total number of pages including cover page:
If all pages are not received, please call 976-8441.%.,-30
Remarks:
al rLad
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%- OLWA4&d?

FILE COPY
U.S. ARMY CORPS OF ENGINEERS
Wilmington District
Action 11): 200320026 County: Wake
NOTIFICA'T'ION OF JURISDICTIONAL DETERMINATION
Property
Owner Al H.ashemi
Address PO Boy, 97772
Raleigh NC 27624
Telephone Number 9X9-846-8846
Size and Location of Pronerty wateirbod Highway name/number, town etc.: The property is
located in the northwest quadrant of the intersection of Maynard Road (SR 1747) and Reedy Creek Road
(SR 1650), in Cary, Wake County, North Carolina.
Basis for Determination: The site eontains stream channels with indicators of ordinary high water
marks, located adjacent to an unnamed tributary of Crabtree Creek, in the Neuse River Basin.
Indicate Which of the Following AD :
X There are waters of the U.S., to include wetlands, on the above described property which we strongly suggest
should be surveyed. The surveyed wetland lines must be verified by our staff before the Corps will make a final
jurisdictional determination on your property-
Because of the size of your property and our present workload, our identification and delineation of your wetlands
cannot be accomplished in a timely manner. You may wish to obtain a consultant to obtain a more timely
delineation of the wetlands. Oace the consultant has flagged a wetland line on the property, Corps staff will
review it and, if it is accurate, we strongly recommend that you have the line surveyed for final approval by the
Corps. The Corps will not make a final jurisdictional determination on your property without an approved survey.
X The waters of the U.S., on your lot have been delineated, and the limits of the Corps jurisdiction have been
explained to you. Unless there is a change in the law or our published regulations, this determination may be relied
upon for a period not to exceed five years from the date of this notification.
There are no waters of the U.S., to include wetlands, present on the above described property which are subject to
the permit requirements of Section 404 of the Clean Water Act (33 USC 1344). Unless there is a change in the law
or our published regulations, this determination may be relied upon for a period not to exceed five years from the
date of this notification.
Placement of dredged or fill material in wetlands on this property without a Department of the
Army Permit is in most cases a violation of Section 301 of the Clean Water Act (33 USC 1311). A
permit is not required for work on the property restricted entirely to existing high ground. If you
have any questions regarding the Corps of Engineers regulatory program, please contact
Amanda D. Jones at telephone number (919) 876 - 8441. extension 30
Project Manager Signature
Date October 7 2002
Date October. 7, 2407
SURVEY T"LkT 012 FIELD SKETCH OF THE DESCRIBED PROPERTY AND THE WETLAND
DELINEATION FORM MUST DE ATTACHED TO THE YELLOW (FILE) COPY OF THIS FORM.
EOr,/ZOO'd 6N0#
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are
INTERM-f TENT CHANNEL "'0-?6
EVALUATION FORM
ACTION ID 200320026 _ APPLICANT NAME Al t{ashemi ?A I E 10-62-02 -
PROPOSED CHANNEL WORK. (i.e., eulveR, relocation, etc.) n[c1?? t mans lands Bete iio ?? ? ?t
WA'I PAIRODWRIVER BASIN in an oeeame ry to Crabtree Cwlk C[' iCO>UNTY f Ake Cauttt a
ltf~vCIrNT WEATHER CONDI'X'tONS Rai iu in the
leternainatiow
Pereliniai Channel (Stop) Important Channel: LF PROJECT MGR- Initials
X intermittent Channel (Prowcd} Unimportant Channel: LF
Ephemeral Channel (nold) (attach map indicating lovadon of important/unimportant channel)
Ditch Through Lapland (no jd)
Eviduator's Signature;
(if other t11at1 G.Q,F. project managx)
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P-Present SP=Stongly Present NP--Not Present 11/4/98
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Important To Domestic Water Supply? Y AD
Does Channel Appear On A Quad Or Soils Map Y 1V Approx. Drainage Area: ~ Q c1taS
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