20100586 Ver 2_Court Case Correspondence_20110316

STATE OF NORTH CAROLINA
COUNTY OF WAKE
M A Alexander III
Petitioner, >
v
N C Department of Envtronm at and
Natural Resources Division of Water
Quality 401 Wetlands Group
Respondent
Pursuant to 26 NCAC 3 0104 my present positron follows
Issues
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
11 EHR 1254
IUi10 :1:0 3 h91
• NCDENR DWQ Depnved me of property Acted erroneously Acted arbitrardy and capnewusly
• NCDENR -DWQ has placed a riparian buffer along a drainage feature on my property that is not a stream The
dramage feature is a ditch and as such should not be subject to ripan mL huffier rules_
• This buffer effectively removes one fourth of the property from development resulting in severe financial loss
Facts
Ditches are not subject to the baDer rules-
NCAC 02b 0233 Item (3) (a)
Surface waters that appear on the maps shall not be subject to this Rule tf an on site determination
shows that they fall into one of thefollowing categones
(i) Ditches and manmade conveyances other than modified natural streams unless constnieted for
navigation or boat access
However DWQ has classified the feature as a stream because they believe it satisfies the rule established in 15A
NCAC 02b 0233 Item (3)
For the purpose of this Rule a surface water shall be present if thefeature is approximately shown on
either the most recent- version of the soil survey map prepared by the Natural Resources Conservation
Service of the United States Department of Agriculture or the mart recent version of the 124 000 scale
(7 S minute) quadrangle topographic maps prepared by the United States Geologic Survey (USGS)
While, the 1970 NCRS Sod Map and the 1998 USGS Map do show a stream feature on our property later
versions of both maps (the 2007 NCRS Soil Map and the 2002 USGS Map) show the origin of the stream feature
to be a considerable distance downslope (south) from our property Furthermore a LOAR based map of the area
in question from the NC Floodplarn Mapping Program also places the origin of the stream. feature downslope
from our property very close to the location depicted on the 2002 USGS map
In duect contradiction to the above, DWQ personnel have published papers and conducted seminars promoting
the notion that these maps are inaccurate and should not be used for regulatory purposes
Topographic and soil maps are often used to determine the location of headwater stream corridors for
federal and state planning and regulatory purposes Yet these maps are often inaccurate raising
serious questions about their use in regulatory applications And NCRS maps usually overestimate
the presence of small streams
— Tonomwluc and Soil Maps Do Not Accurately Depict Headwater Stream Networks,
National Wetlands Newsletter vol 30 no 3 Copyright 2008 Environmental Law Institute

Differentiating between Ditches and Modified Natural Streams
The Noi tl> Carolina Division of Water Oualdv- MethodolWy for Id ne ttficathon of
Intermittent and Perennial Streams and Their Ongins, Version 4 11 indicates one method of differentiating
between a modified natural stream and a ditch
The topographic lines depicted on a USGS topographic map may indicate a natural valley in which a
natural stream could be present Parallel topographic contour crenulatrons (V shaped contour lines)
with angles of 90o or less can be indicative of the presence of a stream. Features located outsrde of a
natural crenulation (i a moving across a slope rather than perpendicular to it) may not be natural or
alternatively may be a relocated stream
Topographic Evidence
A topographic map of the parcel and the surrocmdrng area rndicate that the feature m question is located
outside of a natural crenulation moving across a slope rather than perpendicular to it
Aerial Photograph Evidence
I have aerial photographs beginning in 1938 Although the resolution of these photographs is sufficient to see
stream features (as evidenced by streams in locations near the location in question) no stream feature is
visible on any of these. photographs at the location in question
In stepping through a series of aerial photographs of the area, the following characteristics are visible
• On the 1959 aerial photograph, the ditch on our property is clearly visible but diem is no indication
of any permanent water feature upslope from our property
• On the 1981 aerial photograph, the area upslope of our property is clearly visible inside a maintained
power line easement, but there is no visible water feature
• Beginning with the 1988 aerial photograph, a ditch appears in the power line easement upslope from
our property This feature is plainly visible on subsequent photos. from 1999 and 2005
Physical, Onsite Evidence
• Spoil Piles running the full length of the ditch, evidence of the excavation.
• Traces of the surface flow patterns where the ditch overflow ran from the termination point of the
onguial ditch, over the adjacent forest floor to the low lymg area to the south
Histoncal Evidence
I grew up on the property spending most of my adolescent days playing in the woods that bordered the ditch.
Arguably I know the property s history better than any living person In my lifetime (62 years) it was always a
ditch, not a stream
Initially the feature consisted of a ditch that ran approximately 100 feet into the property then abruptly stopped
The primary source of water into this ditch was rainwater runoff from Loop Road (now Yeargan Road) It was a
dry bed most of the year
A light ram might fill the ditch, where the water would then stand until it evaporated Heavier downpours could
cause the ditch to overflow onto the lower areas of the property to the south
The natural slope of the land is from the northeast along Loop Road toward the southwest at US70 Since the path
of the ditch cut across the natural slope there was no natural path for the excess water to follow It overflowed,
across the surface of the surrounding forest floor slowly seeping into the low lying areas There it sat until it was
absorbed by the soil or until it eventually found its way into the ephemeral stream farther south on the property
I do not know who originally dug this ditch onto the property It could have been dug by the farmer who owned
the property to help dram some portion of the land However I suspect that it was dug somewhere along the way
by NCDOT as part of an improvement on the dirt road
Whenever it happened, the ditch s excess runoff was a constant irritation to my father who mhented the lot when
my grandfather died in 1959 Too many tunes to count, when we were driving past that ditch on our way home
he d voice his frustration, Blasted countyl Dug that ditch Into my property dumping the water in there, turning
it alto a swamp

He was exaggerating a bit on the swamp part, but it was true that the water overflowing the ditch into the lower
areas did have the tendency to make that lower portion wetter than it normally would have been He was
pacticLilarty inn bd ed when it carne time to pay the property tars He felt that the dmh and the water it channeled
into the property had devalued the property but that dndn t stop the taxes from going up
Finally whom L was in college (i dom t remember exactly when, but m the late. 60 s or early 70 s) I called the
county and explained the situation As a result of that call someone (county or DOT) brought a backhoe out and
dug out the ditch deeper and winder —and all the way from its source on Yeargan Road to near US70 where they
chaaneled it tow the natucat bed of tlm ephemeral stream.
The modification came as a bit of a surprise As far as I remember there was no real notification of what they
planned to do or when they were going to do it One day it wasn t there the next day we drove by and it was
done
Honestly the result was overkill in a big way Instead of the original 3 feet wide by 18 inch deep ditch running
100 or so filet into the property, we now had an 8 foot wide, 6 feet deep ditch riunning over 350 Beet through it_
We didn t complain, because it did take care of the low wet area and it didn t cost us anything We rationalized
that we would someday pipe the ditch and fill in the gash anyway So we let it go If we d only known the
problems that casual action would cause years later we d have never started it
Our family was not experienced at real estate development, but automatic rezoning by the Town of Garner to
cominercuil, status and ever rising taxes forced us to take that path to be able to pay the taxes
Proposed Witnesses
Steve Strader US Geological Survey
Teresa Furr Wake Soil & Water Conservation Distnct
Rick Garrett, Catlin Engineers & Scientists
Steve Mitchell Steve Mitchell Environmental Consulting
M A. Alexander III
Discovery will be completed by May 09 2011 as specified in Scheduling Order
Location of Hearum will be Raleigh, NC as specified m Scheduling Order
Eshmated Leneth of Heanne is 1-day
Home and Busuim Add Lw& Telephone numbers
Home
312 Homestead Drive Cary NC 27513
919.380 -0210
Business
P 0 Box 4141 Cary NC 27519 -4141
919-740-1293
Date 01/16/2011 Phone number ( 919 ) 740 1293
Address 312 Homestead Dnve/P 0 Box 4141 NC 27513
(street p o box) (city state�p)
Name M A, Alexander III
Signature

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Mary Penny Thompson General Council for NC DENR
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1601 Mail Service Center Raleu th. NC 27699 1601
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Melissa Owens Lassiter Admumstmtive Law Judge
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When you have completed this form, you MUST mail or deliver the ORIGINAL AND ONE COPY to the
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