20100586 Ver 2_Court Case Correspondence_20100721

Steve Mitchell Environmental Consulting
1613 Lancaster Drive
Garner North Carolina 27529
919 -550 9055(h)
919 -971 -6598 (c) srmdchelt5l @yahoo corn
May 19 2005
Ms Colleen Sullens
North Carolina DENR
Director Division of Water Quality
C/O Mr Ian McMillan
1650 Mail Service Center
401 Wetlands Unit
Raleigh North Carolina
27699 1650
Dear Mr McMillan
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This letter is being directed to you in an attempt to resolve the dispute of an on site determination
made by Ms Lauren Witherspoon of the Raleigh Regional Office (RRO) The property in question
is and has been owned by Mr Art Alexander and/or his family since the 1940 s I have spoken with
Ms Witherspoon and attached her E mail m support of this request
This second opinion determination is being requested as provided for in Article 3 and 4 of General
Statute 150B This states that surface waters that appear on the maps (USGS and County Soils) shall
not be subject to this Rule if an on site determination shows they fall mto one of the following
categories
(1) Ditches and man made conveyances
(n) Manmade ponds
(iii) Ephemeral streams
There are two features represented on the Wake County Soils map while one is shown on the USGS
quad It is our contention that the main feature is at best a modified channel conveying storm water
from the upstream and off site of the subject property through this manmade ditch It appears that
the other stream traverses two different soil types and does not attain the required scoring as per
the NC DWQ Stream Identification Form
Please advise me as to your earliest availability to conduct an onsite evaluation of this drainage
feature I can be reached at either [phone] or 550 9055 Thank
you in advance for your prompt consideration of this matter
Sincerely
Steve Mitchell

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From Witherspoon, Lauren ( lauren witherspoon @ncdenr gov)
To srmitchel151 @yahoo com,
Date Mon, July 12, 2010 9 12 17 PM
Cc
Subject RE Yeargan Road at Highway 70
Steve,
I would welcome a second opinion I emailed Mr Alexander the letter but
regardless I believe he has the right to appeal my call Given the fact that he
has a consultant now that will help him go throught the process, which is
important' i i
I will give you a call tomorrow or Wed
Lauren
Fromm Steve Mitchell [srmitchell5l @yahoo com]
Sent Monday, July 12, 2010 5 28 PM
To lauren witherspoon
Subject Yeargan Road at Highway 70
Hey Lauren
Been a while Hope you are doing well
Don't know if Martin talked with you about this or not
Mr Art Alexander owns the site In the family for over 70 years Several years ago, my favorite
conslutant whose initials are Jun Spangler got involved and the entire thing got up Mr
Alexander never recieved the letter from your site visit conducted on 1/20/8 1 did some digging at
Wetlands and found it NO address no wonder he did not get it Seems hMr Alexander even visited the
RRO Found that in an e mail
First question is Number 1 Is the property still subject to a second opinion since the letter was not rec d?
That being said, feature score weakly but looks like a stream to me (I did not say that)
Second question B, would you oppose my asking for a second opinion evaluation assuming he is
allowed one now that the previous environmentalist is out of the picture and I am acting on Mr
Alexander behalP
Give me a call when you get a chance Tuesday or Wednesday I will be on vaca in the mountains after
that 971 -6598
Thanks in advance Mitchell
http //us mg3 mail yahoo com/dc/launcV gx =1 & rand= aevejdggl 7/19/20 10

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Language from settlement when buffer already impacted
3 Within sixty (60) calendar days of the execution of this Agreement the Petitioner will
apply for a mayor variance for altering the riparian buffer around the stream at [address]
Wake County North Carolina Petitioner will submit a mayor variance request form
(Mayor Variance Request Form Neuse River Basin Nutrient Sensitive Waters
Management Strategy Protection and Maintenance of Riparian Areas Rule (15A NCAC
2B 0233) which is attached hereto as Exhibit A) as well as all additional information
required under 15A NCAC 2B 0233 including but not limited to sufficient information
for the Respondent to make a finding of fact pursuant to 15A NCAC 2B 0233(9)(a) and
a determination of no practical alternatives pursuant to 15A NCAC 2B 0233(8) In
order to be considered complete the mayor variance application must include a
compensatory mitigation proposal as described in Paragraph 7 below including either a
written approval from the NC Ecosystem Enhancement Program (EEP) or an acceptance
letter from an appropriate mitigation bank If the mayor variance request is granted
Petitioner agrees to comply with any conditions of said variance including but not
limited to additional compensatory mitigation beyond that described in Paragraph 7
below Petitioner will deliver its major variance application to the following address
401 /Wetlands Unit
Department of Environment and Natural Resources
1650 Mail Service Center
Raleigh NC 27699 1650
4 A copy of Petitioner s mayor variance application must also be submitted to Respondent
at the following address
Danny Smith

Department of Environment and Natural Resources
P O Box 2768
Raleigh NC 27609
5 Respondent agrees to present the information provided in Petitioner s variance
application to the Environmental Management Commission
6 [401 application terms]
7 Petitioner shall make a payment of [amount] as compensatory mitigation for the
unauthorized stream impacts at the property This payment shall be made to a fund
administered by the EEP or to an appropriate mitigation bank and shall be made no later
than sixty (60) calendar days from Respondent s decision on Petitioner s 401 Water
Quality Certification regardless of the outcome of that decision or of the EMC s decision
on Petitioner s variance request Petitioner must attach to its compensatory mitigation
payment the following information the river and sub basin number and the square feet
of stream buffer impacted Payment will be made to the Wetlands Restoration Fund
administered by the NC Ecosystem Enhancement Program (EEP) Payment should be
made by check and made payable to DENR — Ecosystem Enhancement Program
Office and delivered to the following address
Ecosystem Enhancement Program
401 Oversight/Express Review Permitting Unit
1650 Mail Service Center
Raleigh North Carolina 27699 1650
7