20100586 Ver 2_Court Case Correspondence_20110511 (15)

STATE OF NORTH CAROLINA
COUNTY OF WAKE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
11 EHR 1254
M A ALEXANDER III )
Petitioner, )
PETITIONER'S FIRST SET OF
v ) REQUESTS FOR ADAUSSION,
WRITTEN INTERROGATORIES, and
NORTH CAROLINA DEPARTMENT OF REQUESTS FOR PRODUCTION OF
ENVIRONMENT AND NATURAL ) DOCUMENTS
RESOURCES, DIVISION OF WATER )
QUALITY, )
Respondent )
To N C D E N R , Division of Water through its attorney of record,
Brenda Menard
PLEASE TAKE NOTICE that pursuant to N C R Civ P 26 33, 34, and 36, and 26
N C Admm Code 3 0101 (General) and 3 0112 (Discovery) ( Rule 0101 ' and Rule 0112 ),
Petitioner requests that Respondent admit the truth of the matters set forth in the following
request for admissions, answer the following interrogatories, provide such information as is
available to the Respondent in writing and under oath and produce the documents hereinafter
requested Pursuant to Rule 0112, Respondent must within fifteen (15) days of receipt of these
discovery requests (1) move for relief from the requests (2) provide the requested information,
or (3) offer a schedule for reasonable compliance with the requests Petitioner specifically
requests pursuant to N C R Civ P 26(e)(3) that Respondent supplement its responses to these
discovery requests to include information acquired after service of the responses up to the time
of hearing
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DEFINITIONS
1 As utilized herein the Division DWQ or DENR shall refer to the Division
of Water Quality of the North Carolina Department of Environment and Natural Resources its
officials employees, agents and representatives
2 As utilized herein Petitioner shall refer to M A Alexander III, and his present
and former employees agents and representatives
3 As utilized herein, Mitchell Environmental Consulting shall refer to Steve
Mitchell Environmental Consulting and its present and former employees agents and
representatives
4 As utilized herein `Property" shall refer to the property on Yeargan Road, Wake
County GIS PIN 1711 05 2372 that is located in the Town of Garner in Wake County, North
Carolina, and that is the subject of this contested case
5 As utilized herein, Feature A" shall refer to the channel on the Property that is
the subject of this contested case, the channel being labeled as A on the map accompanying the
determination letter dated August 23, 2010 from the Director of DWQ
6 As utilized herein "Buffer Rule shall refer to the Neuse River Basin Buffer
Rule, codified at 15A N C Admin. Code 2B 0233
7 As utilized herein, document shall mean all items subject to discovery under
N C R Civ P 34 including, but not limited to any written or recorded material of any kind
including the originals and all non - identical copies whether different from the originals by
reason of any notation made on such copies or otherwise, notations of any sort of conversations,
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telephone calls, meetings or other communications all graphic or oral records or representations
of any kind, and mechanical or electronic records or representations of any kind including tapes
cassettes disks or records
8 As utilized herein person or persons shall mean any individual sole
propnetorslup partnership, foundations trust corporation division firm, business entity ,point
venture, federal state, county or city government federal state county or city agency, or any
other entity, agency committee or commission, incorporated or unincorporated association
organization or group
9 As utilized herein you or your mean the Division of Water Quality of the
North Carolina Department of Environment and Natural Resources and its present and former
employees, agents and representatives
10 As utilized herein identify" or its conjugates, when used in reference to a person
means to provide the person's full name, present residence and business address, telephone
numbers .job title and description, and present employer
11 As utilized herein identify' or its conjugates when used in reference to a
document means to provide the title of the document a summary of its contents identify the
author identify anyone who made a notation on the document or who signed or initialed the
document, identify the addressee and all other persons receiving copies of the document, give the
date of the document or, if it has no date the date the document was prepared, provide the
location of the original of the document and all copies and the name present address and
position of the person or persons having present custody, provide whether it has been destroyed,
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and if so with regard to such destruction provide the date of destruction the reason for
destruction and the identity of the person who destroyed the document
12 As utilized herein identify or its conjugates when used in reference to an oral
communication means to state the form of the communication e g remark statement
telephone conversation face to face conversation person to person conversation etc the date
of the communication the identity of the parties to the communication the substance of the
communication and the identity of the persons in whose presence the communication was made
or who otherwise overheard the communication
13 As utilized herein identify' or its conjugates, when used in reference to an act or
acts means to state the date of the act the time of day at which it occurred, the location of the act
what was said and done, and by whom and all persons present when the act occurred
14 As utilized herein describe or explain or their conjugates mean to provide a
narrative statement of the matter in question identify sources of information relating to the
matter, identify persons involved or who have knowledge of the matter, state the substance of
each person's knowledge summarize the actions of each person who participated in the matter
and identify documents
15 With respect to words used in these discovery requests that are not specifically
defined above, please note that words have been chosen for their common meaning Please
resolve any doubt you may have about the meaning of a word in favor of an interpretation that
gives reasonable meaning to the discovery request
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GENERAL INSTRUCTIONS
If you cannot fully answer any interrogatory or part thereof you should answer to
the extent possible and state the reason for your inability to provide a complete answer If you
cannot provide the exact information requested provide your best approximation of the
information requested
2 If information is being withheld in response to an interrogatory on a claun of
privilege, please identify the circumstances that you contend support such a claim
3 If a document requested is being withheld on the basis of a claim of privilege or
attorney work product, please identify the document that is being withheld and describe the
circumstances that you contend support such a claim
4 You may produce a document for inspection and copying pursuant to Rule 33(c)
of the North Carolina Rules of Civil Procedure in lieu of describing the document in the manner
described above in Definitions If you elect to produce documents, mark each document that you
produce with the number of the interrogatory or production request to which the document
corresponds
5 Whenever documents are requested, the request includes all documents in the
possession custody or control of your present and former trustees, directors, officers, employees
agents representatives, officials and unless privileged, your attorneys
6 If a document that would have been responsive to this request has been destroyed
or discarded, please provide the date of the document or if it has no date the date the document
was prepared a description of the form of the document (e g , letter, memorandum, etc ) and the
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number of pages in the document the document s title if any, a general description of the
document s contents the identity of the document s author the identities of the addressee and
all other persons receiving copies of the document the identity of the document s last known
custodian, the document s last known location and the date the document was destroyed or
discarded and the reason the document was destroyed or discarded
7 Produce each document in its entirety, without abbreviation or expurgation
8 Produce the documents in the form in which they are kept in the usual course of
your business
9 Mark each document that you produce with the number of the interrogatory or
request for production to which the document corresponds
10 The interrogatories are continuing in nature until the date of the hearing and you
are required to serve supplemental answers as additional information becomes available to you
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REQUESTS FOR ADMISSION
1 Admit that Lauren Witherspoon did not complete a Stream Identification Form in
conjunction with her on -site visit on our around February 20, 2008
RESPONSE
2 Admit that Lauren Witherspoon did not consider any information (including, but
not limited to, maps, aerial photographs personal testimony) regarding the history of the
construction, alteration and or maintenance of Feature A prior to the determination, dated
February 22, 2008 regarding Feature A
RESPONSE
3 Admit that Lauren Witherspoon did not conduct a site investigation of the
adjacent property north (upslope) of Feature A, prior to the determination, dated February 22,
2008 regarding Feature A
RESPONSE
4 Admit that Lauren Witherspoon did not conduct a site investigation of the
adjacent property south of Feature A (downslope), prior to the determination, dated February 22,
2008 regarding Feature A
RESPONSE
5 Admit that on or around August 18, 2010, in its evaluation of Feature A, as
evidenced on the Stream Identification form completed by Amy Chapman DWQ determined
that evidence of an active /relic flood plain was Absent
RESPONSE
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6 Admit that on or around August 18 2010 in its evaluation of Feature A as
evidenced on the Stream Identification form completed by Amy Chapman DWQ determined
that evidence of Soil Texture or Stream Substrate Sorting was Weak
RESPONSE
7 Admit that on or around August 18 2010 in its evaluation of Feature A as
evidenced on the Stream Identification form completed by Amy Chapman, DWQ determined
that evidence relating to In channel Structure Riffle -pool Sequence was Weak'
RESPONSE
8 Admit that on or around August 18, 2010 m its evaluation of Feature A as
evidenced on the Stream Identification form completed by Amy Chapman, DWQ determined
that evidence relating to Depositional Bars or Benches pool Sequence was `Moderate
RESPONSE
9 Admit that on or around August 18, 2010 m its evaluation of Feature A as
evidenced on the Stream Identification form completed by Amy Chapman, DWQ determined
that there was NO Second or greater order channel on existm USGS or NRCS map or other
document evidence'
RESPONSE
10 Admit that Amy Chapman did not consider any information (including, but not
limited to, maps aerial photographs personal testimony) regarding the history of the
construction, alteration and or maintenance of Feature A, prior to the determination, dated
August 23 2010 regarding Feature A
RESPONSE
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11 Admit that Amy Chapman did not conduct a site investigation of the adjacent
property north (upslope) of Feature A prior to the determination dated August 23 2010
regarding Feature A
RESPONSE
C- S'N
12 Admit that Amy Chapman did not conduct a site investigation of the adjacent
property south of Feature A (downslope) pnor to the determination dated August 23, 2010
regarding Feature A
RESPONSE
13 Admit that on or around August 18, 2010, in its evaluation of Feature A, as
evidenced on the Stream Identification form completed by Amy Chapman, DWQ determined
that evidence of a' continuous bed and bank' was Strong
RESPONSE
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14 Admit that evidence of a continuous bed and bank can be indicative of an
artificial or man -made ditch
RESPONSE
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15 Admit that along the northern portion of Feature A, the channel appears to have
been excavated as much as 6 8 feet below the natural grade of the land surrounding Feature A
RESPONSE
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16 Admit that excavation of a channel 6 8 feet below the natural grade of the
surrounding land would increase the likelihood of groundwater flow or discharge into Feature A
A
RESPONSE
17 Admit that there is substantial evidence of spoil piles along the banks of Feature
RESPONSE
18 Admit that evidence of spoil piles along a bank can be indicative of an artificial or
man -made ditch
RESPONSE
19 Admit that Feature A is an artificial or man made ditch
RESPONSE
20 Admit that Feature B has been determined by DWQ to NOT be subject to the
Neuse Buffer Rules, per its letter of August 23, 2010
RESPONSE
21 Admit that no site investigation of the adjacent property north (upslope) of
Feature A was conducted by DWQ prior to the determination, dated February 15, 2011
regarding Feature A
RESPONSE
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22 Admit that Feature A receives some water from a pipe that runs from the adjacent
property north (upslope) of Feature A, under Yeargan Road, and discharges into Feature A
RESPONSE
23 Admit that Feature A receives water from storm run off along Yeargan Road
RESPONSE
24 Admit that Feature A intersects with Feature B, near the southern edge of the
property
RESPONSE
25 Admit that no site investigation of the adjacent property south (downslope) of
Feature A was conducted by DWQ, prior to the determination, dated February 15 2011
regarding Feature A
RESPONSE
26 Admit that any water from Feature A and Feature B runs into a pipe that runs
from the subject property, under Highway 70, toward adjacent property south (downslope) of
Feature A
RESPONSE
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27 Admit that the DWQ s determination that Feature A was subject to the Neuse
Buffer Rules as evidenced in its letter dated February 15, 2011 was based upon the evidence
enclosed with that letter
RESPONSE
28 Admit that enclosed in DWQ s determination letter dated February 15 2011 was
a Wake County Soil Survey map on which had been written IJM 2/11/2011 and the letter A
had been circled
RESPONSE
29 Admit that IJM' on the soil map, enclosed in the letter dated February 15 2011,
stands for DWQ staff member Ian McMillan
RESPONSE
30 Admit that the area indicated by A on the soil map enclosed in the letter dated
February 15 2011 is located south of the intersection of US 70 West and Yeargan Road
RESPONSE
31 Admit that the area indicated by A" on the soil map enclosed in the letter dated
February 15, 2011 is not located on the Property
RESPONSE
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32 Admit that on the 2002 Lake Wheeler NC 7 5 USGS quadrangle map a blue line
depicting an intermittent stream indicates a beginning point south of the mtersection of US 70
West and Yeargan Road
RESPONSE
33 Admit that the 2002 Lake Wheeler NC 7 5 USGS quadrangle map there is no
indication of a blue line intermittent stream on the Property
RESPONSE
34 Admit that the North Carolina Floodplain Mapping Information System does not
indicate a stream on the Property
RESPONSE
35 Admit that the North Carolina Floodplam Mapping Information System does not
indicate a floodplam on the Property
RESPONSE
36 Admit that DWQ officials and staff members have published findings indicating
that the USGS 1 24 000 scale topographic maps and Natural Resources Conservation Service
(MRCS) county soil survey maps are unreliable sources for determining small first , second and
sometimes third -order streams
RESPONSE
37 Admit that DWQ officials and staff members have stated that' extensive stream
mapping errors on USGS topographic maps and NRCS soils maps raise serious questions about
use of these maps in regulatory applications for which they were not intended
RESPONSE
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INTERROGATORIES
I Identify the person or persons answering or assisting with answering these
discovery requests and identify the request that each person answered or assisted in answering
2 If you cannot answer any of the requested admissions then as to each such
requested admission set forth in detail the reasons why you cannot truthfully admit or deny the
matter (identifyrmg facts, persons and documents as required by the Definitions and Instructions
preceding this request)
3 For each request for admission that you have denied in whole or in part state the
following
(a) The basis for your denial
Pr
(b) All facts supporting your denial
(c) The identity of all persons known to have knowledge of such facts, and
(d) The identity of all documents that contain information pertaining to such
facts
2 Identify each person who has knowledge of this case that you or your attorneys
expect to call as a witness at the contested case hearing As to each person, describe
(a) the substance of the expected testimony of the witness,
(b) the person s relation to, or employment by Respondent,
(c) a summary of the witness qualifications that make him or her competent
to testify on the matters outlined in subpart (a) above
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3 With respect to each person you or your attorneys expect to call as an expert
witness at the hearing to be held on this matter, please provide the following information
(a) Identify each such person,
(b) For each person identified describe the subject matter about which the expert is
expected to testify
(c) For each person identified describe the substance of the facts and opinions about
which the expert is expected to testify,
(d) For each person identified, describe the grounds for each opinion identified in
response to subsection (c) of this interrogatory
(e) Identify any and all documents that contain information pertaining to such expert
testimony
4 Please describe all information (including, but not limited to, maps, aerial
photographs, personal testimony) regarding the history of the construction, alteration and or
maintenance of Feature A, reviewed or considered PRIOR to the determination made by DWQ
on 2/20/2008 that Feature A was subject to the Neuse Buffer Rules
5 Please state whether PRIOR to 2/20/2008, DWQ made a formal determination
that Feature A was not a ditch
a) Yes or No
b) If the response is Yes please describe who made the determination and
all information that was relied upon in making such determination and the
basis for such determination
6 Please describe all additional information (including but not limited to maps
aerial photographs, personal testimony) regarding the history of the construction alteration and
or maintenance of Feature A, not detailed above in response to Interrogatory 5, reviewed or
considered PRIOR to the determination made by DWQ on 8/23/2010 that Feature A was subject
to the Neuse Buffer Rules
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7 Please state whether PRIOR to 8/23/2010 DWQ made a formal determination
that Feature A was not a ditch
a) Yes or No
b) If the response is Yes please describe who made the determination and
all information that was relied upon in making such determination and the
basis for such determination
8 Please describe all additional information (including, but not limited to, maps,
aerial photographs, personal testimony) regarding the history of the construction, alteration and
or maintenance of Feature A, reviewed or considered PRIOR to the determination made by
DWQ on 2/15/2011 that Feature A was subject to the Neuse Buffer Rules
9 Please state whether PRIOR to 2/15/2011 DWQ made a formal determination
that Feature A was not a ditch
a) Yes or No
b) If the response is "Yes' please describe who made the determination and
all information that was relied upon in making such determination and the
basis for such determination
10 With regard to DWQ s determination that Feature A is subject to the Buffer Rule
provide the following information
a) State the legal and factual basis for your determination
b) Identify by name and address all persons known to you to have knowledge
of these facts,
C) Identify any and all documents that contain information pertaining to such
facts
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11 With regard to DWQ s determination that Feature A is subject to the Buffer Rule
does DWQ contend that the entire length of the feature is an intermittent stream9 If yes please
state the basis for that conclusion If no please describe the determination point at which the
feature constitutes an intermittent stream, and state the basis for that conclusion
12 With regard to the evaluation conducted by DWQ on February 11, 2011 please
state with particularity the evidence on which DWQ based its determination that there was
"Strong' evidence of an active /relict floodplain, and identify all documentation of that evidence
recorded on or before February 11 2011
13 With regard to the evaluation conducted by DWQ on February 11, 2011, please
state with particularity the evidence on which DWQ based its determination that there was
Strong evidence relating to Particle Size of Stream Substrate, and identify all documentation of
that evidence recorded on or before February 11, 2011
14 With regard to the evaluation conducted by DWQ on February 11, 2011, please
state with particularity the evidence on which DWQ based its determination that there was
`Moderate evidence relating to In- channel Structure, and identify all documentation of that
evidence recorded on or before February 11, 2011
15 With regard to the evaluation conducted by DWQ on February 11, 2011, please
state with particularity the evidence on which DWQ based its determination that there was
Strong evidence relating to Depositional Bars or Benches and identify all documentation of
that evidence recorded on or before February 11 2011
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16 With regard to the evaluation conducted by DWQ on February 11 2011, please
state with particularity the evidence on which DWQ based its determination that there WAS
Soil -based Evidence of High Water Table, and identify all documentation of that evidence
recorded on or before February 11, 2011
17 With regard to the evaluation conducted by DWQ on February 11 2011 please
state with particularity the reasons that the evaluation was conducted using the form entitled
Methodology of Identification Intermittent and Perennial Streams and Their Origins v 4 11,
rather than the form entitled `Stream Identification Form Version 3 1 which was the basis for
the evaluation appealed from
18 Identify all documents relied upon or consulted by you in preparing your
responses to the above interrogatories
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PRODUCTION OF DOCUMENTS
1 Produce all documents identified to the above interrogatories or consulted in
preparing your responses to the above requests for admissions and interrogatories
2 Produce the resume of each expert witness identified in your response to the
foregoing interrogatories
3 Produce any and all reports prepared by expert witnesses that you intend to use at
trial
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4 Produce all data and reports not already submitted to Petitioner relating to
whether Feature A is subject to the Buffer Rule
5 Produce any and all photographs, drawings, maps plans or other graphical
representations of the Property between January 1 2008 and today s date
6 Produce any and all data and reports prepared by your past or present staff,
consultants, engineers, or contractors relating to Feature A
7 Produce all aerial photographs of the Property in your possession custody or
control
8 Produce the 2007 version of the Wake County soil survey map prepared by the
Natural Resources Conservation Service of the United States Department of Agriculture
9 Produce the 2002 version of the Lake Wheeler 124 000 scale (7 5 minute)
quadrangle topographic map prepared by the United States Geologic Survey
10 Produce all exhibits you intend to introduce into evidence or use at hearing
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Respectfully submitted
This the / � of May 2011
LAW OFFICES OF F BRYAN BRICE, JR
By
Catherine Cralle Jones
N C State Bar #23733
F Bryan Brice, Jr
N C State Bar # 17840
5 West Hargett Street, Suite 200
Raleigh North Carolina 27601
(919) 754 -1600 telephone
(919) 573 -4252 facsimile
Attorneys for Pentionei
CERTIFICATE OF SERVICE
This is to certify the foregoing PETITIONER S FIRST SET OF REQUESTS FOR
ADMISSION, INTERROGATORIES AND REQUEST FOR PRODUCTION OF
DOCUMENTS was served on the Respondent electronic mail and by United States Mail, First
Class and addressed as follows
Brenda E Menard Esq
Assistant Attorney General
North Carolina Department of Justice
Environmental Division
Post Office Box 629
Raleigh North Carolma 27602 0629
BMenard(@ncdot gov
Attorneys for Respondent
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