20061682 Ver 1_Buffer Determination Request_20070409

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I~ICDENR
Correspondence Tracking System

00303200701609
Summary
, Petition for a Contested Case Hearing: J.K. Williams Properties, LLC v. DENR, DWQ ,
Received 03/26/2007 via Letter
Legal issue for Mary Penny Thompson
Issued 03/22/2007 by I. Clark Wright of Ward & Davis, LLP
To:
Date: ~i~i~
Respond By:
Please: prepare a reply for my signature and return to me.
~ y
,,..,-"7
~~ f
Note and return to me. ~ ~ ~ ~ ~~~ Q
Note and see me about this. APR 9 ~pQ 7
Vnnr enmmPntc anri/nr rPnnmmPnrlatinnc
Reply, noting the letter was referred to you by me.
Prepare a reply for the Governor's signature and return to me.
Reply, noting the letter was referred to you by the Governor.
For your information.
Take appropriate action
Note and file
`Copy to Secretary's Office
~T'lAND3 AND STOR~I+ATEA
Remarks _ __ _ _ __ __
http://ibeam.enr.state.nc.us/os/dts/print.do?dispatch=crsdProfile&id=1609 3/26/2007
* * For Recipient Use Only

ALI'ItL3D D. WAKD (1')21-20113) •109 POLLOCK S'IltGii l'
AISRGD UGCATUR WARD, JR., 1'LLC ig$~ ' ~ I'O DIi:UDI•:R 1129
ff~~~~ fl a .~ r w ~J Y
JOFIN A.J. WARD, PLLC Nli\O RGRN, NC ^.'t563
MICHAL'L SCOTT DAVIS ~~~~ 252-G33-IIOt t:AX .'~52-GSt-3091
L CLARK WRIGIIT, JR. ~ i~w(~x:nNau+Wxvi~.com
arc 22, 2007
NIs. Kim Hansen, Clerk
Office of Administrative Hearings
424 North Blount Street
Raleigh, NC 27601
RE: Filing of Petition For Contested Case Hearing
J.K. Williams Properties, LLC v. DWQ/DENR
Dear Ms. Hansen:
Enclosed for filing is the original and two copies of Petitioner's Petition For Contested Case
Hearing. This document was filed via facsimile transmission earlier today. I would be most
appreciative if you would file the same and return astamp-filed copy to me in the enclosed self-
addressed, postage-prepaid envelope, and see that a ne~v contested case file number is assigned.
Please do not hesitate to give me a call should you have any questions or need additional
information.
Very truly yours,
-~ ~
I. Clark Wright, Jr.
ICW:icw
Enclosures
cc: Client (via e-mail, partial encl.)
Mary Penny Thompson, Esq. (via e-mail, partial encl. and U.S. Mail, all encl)

Pi F-\tii~ P12IiV'l' ('1 F',\12I 1' OI2'I'YPI;
S'tA'I'G OP NOR'tIt CAROLINA
IN '1'III? OI'P1CIi OP
ADMIN[S'tltA'I'IVE IIEr\RINGS
COUNTY OP (I) CR`A'VEN
(2) JK Williams Properties, LLC )
_ )
(your name) PETITIONER, )
PIrT ITIO[V
v. ) FOR A
CONTI;S'tED CASH IIEAI2ING
(~) Division of Water Quality, within the Department )
of Environment and Natural Resources )
RESPONDENT. )
(The State agency or board about which you are complaining) )
I hereby ask for a contested case hearing as provided for by North Carolina General Statute ~ IbOB-23 because the Respondent has:
(Briet7y state facts showing how you believe you have been harmed by the State agency of board.)
See Attached Addendum to Petition.
(If more space is needed, attach additional pages.)
(~) Because of these facts, the State agency or board has: (check at least one from each column)
:~ deprived me of property; / exceeded its authority or jurisdiction;.
ordered me to pay a fine or civil penalty; or / acted erroneously;
/ otherwise substantially prejudiced my rights; AND / failed to use proper procedure;
/ acted arbitrarily or capriciously; or
/ failed to act as required by taw or rule.
(5) Date: March 21, 2007
(b) Your phone number: [phone]
(7) Print your full address: Ward and Davis, LLP, 409 Pollock Street, New Bern, NC 2360
s e res p.o. ox - _ cn sae zip)
(3) Print your name: I. C
(9) Your signature:
You must mail or deliver a COPY f this Petition to the Stat ae gency or board named on line (3) of this form. You should contact the agencv or
board to determine the name of the person to be served.
CERTIFICATE OF SERVICE
I certify that this Petition has been served on the State agency or board named below by depositing a copy of it with the United States Postal Service
with sufficient postage affixed OI2 by delivering it to the named agency or board:
(la) Mary Penny Thompson, DENR General Counsel (11) DENR/DWQ
(name of person served) (State agency or board listed on line 3)
(12) _1601 Nlail Service Center Raleigh NC 27699-1601
(street address/p.o. box) (city) (state) (zip code)
(13) T
(14)
When you have completed this form, you MUST mail or deliver the ORIGINAL AND ONI; COPY to the Office of Administrative Elearings, 6714
Mail Service Ccntcr, Raleigh, NC 27699-671x.

Attachment to Petition
.T.I{. Williaryas Properties, LLC v. DWQ/DCNAt
Craven County
March 21, 2007
l: On February 26, 2007, Respondent Division of Water Quality (DWQ) corresponded with
counsel for Petitioner by means of a letter captioned "On-site Determination for
Applicability to the Neuse River Riparian Area Protection Rules (15A NCAC 28.0233)."
A copy of this letter is attached as Exhibit "A" and incorporated by reference.
2. This DWQ determination letter appears to have been sent to sent in response to a January
4, 20071etter to Respondent from Petitioner's counsel entitled "William's property -
DWQ Project No. 2006-1682; Stream Determination Exemption Request -DWQ
Director Referral." A copy of this letter, with all attachments, is attached as Exhibit "B"
and incorporated by reference. -
3. The purpose of Petitioner's counsel's January 4, 2007 letter was to make (as stated in the
letter) "a stream exemption referral request to DWQ Director Alan Klimek, governed by
the terms of 15A NCAC 02B.0233(3)(a), which require that disputes over on-site stream
determinations made by DWQ staff be referred to the Director in writing."
4. Pursuant to the express terms of 15A NCAC 02B.0233(3)(a), "any disputes over on-site
determinations shall be referred to the Director in writing." That was the express purpose
of the January 4, 2007 submittal by Petitioner's counsel [See Exhibit "B"] and thus,
despite the failure by Respondent DWQ to label its February 26, 20071etter as a final
agency decision, with rights of appeal, Petitioner is relying on Respondent's February 26,
20071etter determination [see Exhibit "A"] as a final agency decision, subject to appeal
pursuant to Article 3 of Chapter 150 B, as expressly allowed by the next sentence of 15A
NCAC 02B.0233(3)(a), which states that "A determination by the Director as to the
accuracy or application of the maps is subject to review as provided in Articles 3 and 4 of
G.S. 150B."
5. The February 26, 2007 determination letter issued by Respondent is arbitrary and
capricious on its face, for it discloses the absolute failure by Respondent to make any
independent consideration of the materials submitted by Petitioner to Respondent (see
Exhibit "B") in a good faith effort by Petitioner to avail itself of the express internal
agency appeal process to the DWQ Director as specifically set forth in 15A-NCAC
02B.0233(3)(a). In fact, Respondent's February 26, 20071etter is written by the very
same DWQ staff official who wrote the prior on-site determination denial letters at the
DWQ staff level, thereby confirming the absence of any good faith review by the DWQ
Director of Petitioner's fact-specific materials regarding the stream determination
exemption issue. Not only is this arbitrary and capricious conduct by Respondent, but it
also constitutes failure to act as required by law, and action based on unlawful procedure.
6. Upon information and belief, Respondent's February 26, 20071etter is little more than a
boilerplate reply; with little or no consideration of the individual circumstances of this
case as set forth in Petitioner's submittal (see Exhibit "B") and no recognition whatsoever
of the fact that Exhibit "B" contains the conclusions of three different, independent
experts, which conclusions are directly contrary to that earlier reached by DWQ staff on
the stream determination exemption issue.

7. If the DWQ Director appeal process set forth in 15A NCAC 02B.0233(3)(a) is to have
any meaning, Respondent must conduct an independent review of DWQ staffs prior
determinations at the DWQ Director level. This clearly did not take place in the matter at
hand, and for that reason alone Respondent's action in denying Petitioner's exemption
appeal request to the DWQ Director is arbitrary, capricious, unlawful and not in accord
with lawful procedure.
8. Petitioner expressly relies on the expert analyses and conclusions contained in Exhibit
"B" to further support this Petition and the conclusion that Respondent's actions in
issuing its February 26, 2007,1etter determination have substantially prejudiced
Petitioner's rights, essentially deprived Petitioner of valuable property interests in the
land at issue, and that action constitutes arbitrary and capricious agency action, unlawful
agency action, agency action that failed to use proper procedure, erroneous agency
action, agency action that far exceeded the authority of the DWQ staff official who
signed the February 26, 2007 letter, and agency action that failed to comply with required
law and rule.
9. Petitioner owns the land to which Respondent's letter determination applies, and
therefore Petitioner clearly is a person aggrieved, and a person who has been deprived of
property and otherwise substantially prejudiced within the meaning of those terms in
Article 3 of Chapter 150B of the N.C. General Statutes.
10. Upon information and belief, the actions of Respondent constitute an unconstitutional
taking of Petitioner's property under the relevant provisions of the North Carolina and
United States constitutions.
11. Respondent's actions and inactions described above constitute erroneous agency action,
arbitrary and capricious agency action, agency action without proper procedure, agency
action in excess of authority or jurisdiction, and/or failures to act as required bylaw or
rule.
12. Upon information and belief, Respondent has not fairly, uniformly or justly applied its
DWQ Director exemption appeal authority in violation of the procedural and substantive
due process and equal protection requirements of the U.S. Constitution and the North
Carolina Constitution.
2

.. 1C~ ~~. ~j~j(i ~i ~ ~ William G. Ross Jr., Sccreuiry
~ r North Ca~rolinu Department of L•nvinmment and Natural Resowces
~ ~ ~ .
p Y Alan W. Klimek, P.G. Director
Division of Wntcr Quuliry
h'ebruary 26, 2007
DWQ Project # 2006-1682
Craven County
Page 1 of 2
CERTIFIED MAIL-RETURN RECEIPT REQUESTED
Ward and Davis, LLP, Attorneys at Law
Attn: Mr. I. Clark Wright, Jr.
409 Pollock Street
PO Drawer 1428
New Bern, NC 28563
Subject Property: William's Property
Craven County, NC
On-Site Determination for Applicability to the Neuse River Riparian Area Protection Rules
(15A NCAC 2B .0233)
Dear Mr. Wright, Jr.:
On January 5, 2007, the Division of Water Quality (DWQ) received your documentation for
consideration to review subjectivity to the Neuse Buffer Rules (15A NCAC 2B .0233) of feature
"A" in the previous correspondence issued by DWQ on December 1, 200b. Upon review of the
documentation you provided, the attached LIDAR map from DWQ and the appeal done by
DWQ on November 28, 2006, DWQ has determined the stream feature is still subject to the
Neuse Buffer Rules (15A NCAC 2B .0233).
The LIDAR data shows the feature lies within a defined valley, which is indicative of a stream.
In response to the soil data you provided, it is important to note that upland soils shown on the
soil survey maps are not altivays accurately depicted. Soil survey map data cannot be used alone
to determine whether a stream feature is a stream.
This letter only addresses the applicability to the buffer rules and does not approve any activity
within the buffers. Nor does this letter approve any activity within Waters of the United States
Ore
NorthCarolina
~Natura~l~
401 OversighUExpress Review Permitting Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650- -
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone [phone] Fax [phone]
Internet: hito•/Ih2o ear state nc.uslncwetlands
An Equal OpportunitylAfnrmatlve Actlon Employer - 50% Recycled110% Post Consumer Paper

Page ? of 2
February 26, 2007
or Waters of the State. If you have any additional questions or require additional information
please call Amy Chapman at [phone].
Sincerely,
1
~~~
~~
Cyndi Karo),y, Supervisor
401 Oversight/Express Review Permitting Unit
Enclosure: LIDAR Map
CB K/asc
cc: Kenneth Williams; 3313 Hwy 70 East; New Bern; NC 28560
Chris Pullinger, DWQ Washington Regional Office
Roberto Scheller, DWQ Washington Regional Office
I. Clark Wright, Jr., Ward and Davis, LLP, 409 Pollock St, New Bern, NC, 28560
File Copy
Central Files
File name: 061682Wi11iamsProperty(Craven)Appeal_DET_MoreinfoReview
o-

Legend
- dotsecrds
ncriverSPFeet
elevation
Value
High : 134
Low : -41

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ALPRGD D. WARD (192J - 2VOJ)
ALPRGD DECATUR WARll, JR., I'LLC 1'.O. DIiA WGIi 1J29
MICI{AEL SCOTT DAVIS NGW llCILN, NC 2SSti3
252-6JJ-1101 FAR 252-6]J-JV9J
L CLARK WRIGHT, JR.
AfARK SPENCE HANTMAN ic.r (~a w~arJan JJ aru.com
January 4, 2007
VIA OVERNIGHT MAIL
~~ (D
Ms. Cyndi Karoly, Supervisor
401 Oversight/Express Review Permitting Unit
N.C. Division of Water Quality
2321 Crabtree Boulevard, Suite 250
Raleigh, NC 27604 ~ -
RE: William's Property -DWQ Project No. 2006-1682
Stream Determination Exemption Request -DWQ Director Referral
Dear Ms. Karoly:
Thank you for your letter of December 19, 2006, addressed to our client's engineer, NIr. John
Thomas. The purpose of this letter is to provide DWQ Director Alan Klimek with our client's
documentation and expert opinion letters supporting the conclusion that the drainage feature at
issue in this matter is exempt, pursuant to relevant provisions of the Neuse Buffer Rule, as set
forth at 15A NCAC 02B.0233.
At the outset, I would like to state for the record that this matter is a stream exemption referral
request to DWQ Director Alan Klimek, governed by the terms of 15A NCAC 02B.0233(3)(a),
which require that disputes over on-site stream determinations made by DWQ staff be referred to
the Director in writing. On October 24; 2006, our client's engineer, NIr. John G. Thomas, P.E.
formally made the required written referral request for this case. Therefore, according to the
applicable rule, the final agency determination in this matter is to be made by the DWQ Director
after cansideration of information provided by both DWQ staff and our client, the referring
landowner. We respectfully request that you forward this letter and the enclosed documents to
DWQ Director Alan Klimek for his review and final agency decision.
In support of our conclusion that the drainage feature at issue is exempt, please fmd enclosed:
December 22, 2006 Memorandum to John Thomas From Lauren Cobb of Environmental
Services, Inc. concluding that "the drainage feature in question is a man-made ditch that
is not a naturalized intermittent or perennial stream" and containing an attached stream
determination form with a score of 18.5;
December 18, 2006 letter to Kenneth Williams from Shawn P. Carroll concluding that
"the geomorphology, hydrology, and other evidence strongly support classifying the
conveyance as a man-made ditch," questioning DWQ's stream determination ratings on
bed and bank, sinuosity and other criterion, and rating the feature as an ephemeral stream;
..\

i .
/l'
~%
Ms. Cyndi Karoly, Supervisor
January 4, 2007
Page Two
January 3, 20071etter to Clark Wright from Gary Mitchell of The Clark Group
concluding that "it is my opinion that the system that exists on this parcel of land is an
old man-made feature that does not qualify as a modified natural stream;" and
January 4, 20071etter to Clark Wright from Brent Manning of the Land Management
Group concluding that the drainage feature did not meet intermittent or perennial stream
requirements as defined by DWQ's stream scoring system.
Also enclosed please find a copy of the USGS 7.5 Minute Topographic Map showing that this
entire area is devoid of any intermittent or perennial stream classification, any wetlands or any
other "blue-water" features. It is our opinion that the presence of an intermittent.stream feature
in this area on the Craven County Soils Map is due to the fact that this feature was dug as an
agricultural drainage ditch system many years ago; thus the fact that the soils map shows this
feature should not be considered credible evidence of the existence of an intermittent stream
within the meaning of the Neuse buffer rule. As additional support, we also are enclosing a copy
of a 1949 aerial photograph that, by pure luck, I found in my own personal Gables Run
subdivision files. This aerial photo was contained in a Phase One Environmental Assessment
prepared for the 237 Acre Gables Road parcel that I and two other investors purchased from
Weyerhaueser Real Estate Development Company several years ago. The Gables Road parcel is
located just west of Highway 70 in this same area, and the various maps of that parcel also
include some or all of the parcel at issue here at their eastern edges. As you can see on the
easternmost edge of this 1949 map, at that time there were extensive, cleared agricultural fields
in the area of our client's property, thus indirectly supporting the conclusion universally reached
by our experts that the drainage features at issue here are man-made.
We also respectfully request that the DWQ Director take into account the anomalous result that a
large subdivision recently was constructed immediately across from the very location where
DWQ staff indicate they performed their stream analysis resulting in stream scores in the mid to
upper 20s. If those determinations are indeed correct, then this subdivision was constructed with
significant, unpermitted vegetation and surface soils clearing activities in both buffer zones one
and two. That would lead to the appearance (and reality) that DWQ would be treating our client
differently from his immediately adjacent "upstream neighbor."
In addition, the presence of this new subdivision has resulted in large quantities of new
stormwater that now are dumped onto our client's property during all rainfall events, such as the
above-average rainfalls experienced over the past several months in this area. With regard to any
conclusions reached by DWQ staff regarding non-growing season groundwater table levels, or
amounts of water perceived in this ditch system during site visits, we respectfullycontend that
such levels are not normal circumstances for this site, and thus do not represent appropriate
stream scoring factors.
Also enclosed is a survey map of our client's property showing the potential impact on the
property of application of the 50-foot Neuse buffers. As can be seen from a review of this map,

/ '
IVfs. Cyndi Karoly, Supervisor
January 4, 2007
Page Three
our client's property is long and narrow, with the ditch feature at issue here bisecting diagonally
across the property such that application of the 50-foot buffer rule along this ditch feature
essentially eviscerates a large portion of the property, and blocks access to the back portions
entirely. In this regard, it is noteworthy that the current configuration of this parcel has remained
unchanged since well before the date of enactment of the Neuse buffer rules. While our client's
purchase took place after enactment of the buffer rules, I believe that our client reasonably relied
on the fact that the upstream subdivision development clearly was taking place within the 50-foot
buffer areas, the lack of any enforcement actions against that developer, the fact that our client's
own experienced engineer did not believe the buffer rules applied to this ditch, and the fact that
our client's own personal observations indicated to him that the ditch n~nning through the land
he was acquiring was aman-made drainage system.
Based on the enclosed documents and expert opinion letters, it is our position that the drainage
feature at issue here clearly is of man-made origin, and does not contain "the typical biological,
hydrological, and physical characteristics commonly associated with the cantinuous conveyance
of water" (emphasis added) as expressly required by 15A NCAC 02B.0233(2)(h) [incorporated
in the exemption referral requirements of 15A NCAC 02B.0233(3)(a)(i)]. It also is our position
that the enclosed documents and opinions indicate that the stream determinations performed by
various DWQ. staff do not recognize or accept the obvious man-made character of this drainage
ditch, are not consistent internally, were not performed during normal rainfall or growing season
circumstances, and are not consistent with the determinations made by our outside experts.
We respectfully request that the DWQ Director conclude that the initial stream determinations
made by DWQ staff aze not consistent and supportable, and that the drainage feature at issue is a
man-made feature that does not meet the "modified natural stream" requirements of the rule.
Thank you for your consideration of our materials and analysis. If you need additional
information or clarification of any of the documents or analysis we are providing, please do not
hesitate to give me a call. Please address all future correspondence regarding this matter to my
attention, with a copy to Mr. Ken Williams.
Sincerely,
~~~
I. Clark Wright, r.
ICW:icw
Enclosures
cc: Mr. Kenneth Williams
Mary Penny Thompson, Esq. (via e-mail, w/o encl.)

CNVIRONNIENTAL SERVICCS, INC.
52d South New Hope Road
Raleigh, North Carolina 27610
919-212-1760 /Facsimile 919-212-1707
www.environmentalscrvicesinccom
~I~'~,O~IND Ul~I
TO: John Thomas
FROM: Laure^ Cobb
DATE: 22 December 2006
RE: King/Williams Tracf
ESI conducted a stream classification determination for one drainage feature depicted on the Soil Survey
of Craven County, North Carolina on the King/Williams Tract on December 21, 2006. This evaluation
included determining whether this drainage feature was ephemeral, intermittent, or perennial.
ESI utilized the Soil Survey of Craven County, North Carolina, the USGS Topographic Quadrangle
(Thurman, NC), the N.C. Division of Water Quality (DWQ) Identification ~Llethods for the Origins of
Intermittent and Perennial Streams (Version 3.1), a hand auger, and a dip net.
ESI completed a DWQ Stream Identification Form (Version 3.1) for the drainage feature in question and
it scored an 18.5. According to DWQ identification methods, a score <19 is neither an intermittent nor
perennial stream. The DWQ stream form is included with this memo.
The drainage feature in question appeared to be a man-made ditch with remnants of a spoil pile adjacent
to the east side of the ditch. ESI evaluated the drainage feature based on geomorphology, hydrology, and
biology. This drainage feature is approximately 5 feet wide and 6 feet deep. On the day of the site visit
the channel had approximately 6 inches to 1.5 feet of stagnant water. Rooted plants with a facultative
status occupied portions of the channel segment investigated. The channel demonstrated either weak or
absent geomorphological characteristics. Biological attributes were not only visually observed but also
collected with a dip net and identified in the field. Fingernail clams, Physid snails, mosquito fish, and
scuds were found in the channel. All of these species commonly occur in man-made ditches with
stagnant water. Physid snails live above the water line, have lungs and are therefore air-breathing
opposed to other gill bearing snails that would rely on perennial waters to live. Mosquito fish have been
observed occurring in man-made ditches with fluctuating water levels such as the drainage feature in
question.
It is ESI's opinion that the drainage feature in question is a man-made ditch that is not a naturalized
intermittent or perennial stream.
If you'need any additional information or questions please do not hesitate to contact me.

,.ti1 Carolina Division of Water Quality -Stream Identification Form; Version 3.1
Oate: 12/21/2006 Project: King~llimas Property Latitude:
~/ Evaluator: ESI Site: Longitude:
,' Total points:
Slrvams arv at least intermittent if COUnty: CfaVen Other: Thurman, NC
>=19 or perennial if >=90. ~ 8' `~
A. Geomorpholo subtotal = 5.5 Absent Weak Moderate Stron
1". Continuous bed and bank [] 0 ^ 1 ^ 2 ^ 3
2. Sinuosity ^ 0 ~] 1 ®2 ^ 3
3. In-channel structure: riffle pool sequence ^ 0 ~ 1 ®2 ® 3
4. Soil texture or stream substrate sorting ®0 ~ 1 ®2 [~ 3
5. Active/relic floodplain ~ [] 0 ^ 1 ^ 2 ^ 3
6. Depositional bars or benches ®0 ~ 1 ^ Z ® 3
7. Braided channel ~ 0 ^ 1 ®2 ~ 3
8. Recent alluvial deposits ®0 ~ 1 ~] 2 ^ 3
9". Natural levees [~ 0 [] 1 ®2 ^ 3
10. Headcuts t] 0 ^ 1 ^ 2 (] 3
11. Grade controls Q 0 ^ 0.5 ^ 1 ~] 1.5
12. Natural valley and drainageway ^ 0 ~ 0.5 ®1 ^ 1.5
13. Second or greater order channel on existing USGS or NRCS
map or other documented evidence.
~ No = 0
®Yes = 3
'Man{nade ditches are not fated; see disais5ions m manual
R U.. rl~nlnna enF~tnt~l = R
14. Groundwater flow/discharge ^ 0 ^ 1 ^ 2 ® 3
15. Water fn channel and >48 hrs since rain, or Water fn channel
-dry or growing season -
^ 0
=] 1
®2
^ 3
16. Leaflitter ^ 1.5 Q 1 ®0.5 ^ 0
17. Sediment on plants ^ 0 ~ 0.5 ^ 1 ^ 1.5
18. Organic debris lines or piles (wrack lines) ~ 0 ^ 0.5 ®1 ^ 1.5
19. Hydric soils (redoxomorphic features) present? ^ No = 0 ~ Yes = 1.5
r Rii.hn.r a~htntol = 7
20". Fibrous roots in channel ^ 3 ^ 2 ~ 1 ^ 0
21'. Rooted plants in channel ^ 3 ~ Z ^ 1 [] 0
22.Crafish QO X0.5 ®1 ®1.5
23. Bivalves [] 0 Q 1 ^ 2 ^ 3
24. Fish ^0 []0.5 ^1 ^1.5
25. Amphibians ®0 j~ 0.5 ^ 1 ®1.5
26. Macrobenthos (note diversi and abundance) ^ 0 [~ 0.5 ^ 1 ~,] 1.5
27. Filamentous al ae; periph ton ~ 0 Q 1 ^ 2 ^ 3
28. Iron oxidizin bacteria/fun us ^ 0 [] 0.5 ^ 1 ^ 1.5
29'. Wetland plants in streambed ~ FAC ^ FACW ®OBL ®SAV ®Other
'Itoms 2041 focus on the presence of upland ptann, item 29 focuses on the presence of aquatic or wetland plants
Jotes: scuds
fingernail clams
physid snails ~ _
mosquito fish

, Lauren Cobb -Senior Scientist -Project IVlanagcr
Ms. Cobb is a Senior Scientist for Environmental Services, Inc., (ESf). Ms. Cobb has a B.S. in
Natural Resources from N.C. State University and has over six years of experience delineating
complex stream systems throughout North Carolina.
As a Senior Scientist with ESI, Ms. Cobb is responsible for project management on natural resource
investigations. NIs. Cobb has been trained to identify benthos to aid in the classification of ephemeral,
intermittent, and perennial stream channels. Ms. Cobb has completed the following stream related
classes:
• DWQ Stream and Surface Water Identification for Riparian Buffer Rule Applications -
Piedmont and Coastal Plain
• DWQ Intermittent and Perennial Stream Identification for Riparian Buffer Rule Applications
• DWQ Aquatic Insect Collection Protocols for Stream Mitigation and Restoration Projects
• NCSU Introduction to Taxonomy and Ecology of EPT
• NCSU Introduction to the Taxonomy and Pollution Ecology of Aquatic Insects
Ms. Cobb is responsible for various tasks such as wetland and stream delineation, threatened and
endangered species -habitat evaluations and surveys, wetland mitigation monitoring, report
preparation, and water quality monitoring including benthic macroinvertebrate sampling and
identification. She is the Project Manager for various projects including the on-call stream assessment
projects for the Durham County Engineering Department and the DWQ Headwater Stream IVlapping
Project.

w. ~. v~ v i .. v. ~.+r+

December 18, 2006
JK Williams Properties, IZC
Attention: lvlr. J. Kenneth Williams
3313 Highway 70 East
New Bern, North Carolina 28560
Re: Stormwater Conveyance Evaluation
U[11Led IV~1711 StOrabe l:aC111Ly
xwy 7o west
Craven County, North Carolina
Mfr. Willi3;ns:
r~
At your request, I am pro~7ding information regarding an evaluation of a stormavater conveyance
at the referenced site.
I have attached my professional resume to verify my credentials for conducting this evaluation_ I
believe my 16 years working as a field biologist/geolagist, as well as completing the North
Carolina State University Wetlands Delineation program, and tu'o years of field experienc:
delineating wetland are of particular relevance to this project
The field investigation was conducted on December 17, 2006. The weather at the time of the
investigation was sunny and approximately 65 degrees F. There had been no recorded rainfall at
least ~8 hours prior to the site visit. As indicated in the Identrfrcation 1Llethods,for tfre origins of
Intermittent and Perersnial Streams (DW Q Version 3.1, Effective February 28,'2005), seve,-aI
hundzed feet of the conveyance was walked prior to the evaluation in both the upstream and
downstream directions. The sampling point for the evaluation was conducted within the area of
disturbance.
Although biology is present to indicate the po#ential for the channel to be classified as at least an
ephemeral stream, the geomorphology, hydrology, and other evidence strongly support
classifying the conveyance as a man-made ditch:
1) A sail boring was instilled in the channel bed, immediately adjacent to the bed and
approximately mid-way down the length of the disturbance. Soils in the boring were
observed to be fine to medium grained silty sand. There was no mottling, gleying or
other redoxirnorphic features noted to indicate the presence of hydric soils. Although a
Mansell Color Chart was no#erl used in the field the esZirnaied chroma of the soils
observed in the test boring, based on previous field experience, was at least a 2.5, again.
indicating that soils at the site are not hydric.

Deccrnber 18, 200
Face Two
2) The Soil Conservation Service (SCS) Soils Ivfap for the area indicates that site soils ara
Leon fine sand (Le). Based on previous experience and knowledge obtained during the
Wetlands Delineation course, Leon fine sands are a transitional soil and are included on a
listing as a hydric soil_ However, it was stressed in the wetlands course that despite the
general classification as a hydric soil, Leon Erne sands are o$en determined as non-hydric
in the field. bIy field observations did not indicate the Leon soils in the target area to be
hydric.
3) Groundwater was observed to collect in the boring at a depth of appro:~imately 3=10
inches below the bed of the channel. This indicates that groundwater is not seeping into
the channel. This is of particular note since the water table is typically higher at this time
of year (past the growing sea.`on).
4) The conveyance up-stream of the azea of disturbance is e:;rremely linear and consistent in
width and depth. The presence of eroded tailings was observed along the banlCS of the
ditch. Rooted .plants of sigrrif~cant size were noted in the channe! both upstream anti
within the azea of disturbance. All of these factors support the fact that the conveyance is
a man-made drainage structure.
5) There is significant recent residential development to the east of the subject property.
This development has occurred over the last two years and has resulted in sigm&carit
impervious area. The final stormwater conveyance for this residential developmen_ ties
into the target conveyance irnrnediately up-stzearn of the subject property. The target
conveyance had little to no wafer up-stream of the tie-in with the off-site stonnRater
conveyance. Based on this evidenrx it appears that the existing water ,flow in the
disturbed area is largely due to stormwater form the recent development. This is
substantiated from your report that the conveyance has historically remained dry with the
excc;ption of times immediately after a rain event.
b) The ditch is not recognized as a blue line on the existing US GS Topographic Quadrangle
for the azca.
7) If ties is indeed aman-made ditch, it is my understanding from the DWQ Stxeam
Identification Form and related guidance documentation that the Continuous Bed and
Bank criterioa is not to be rated in the evaluation. Previous evaluations by DWQ rated
this criterion as a "Strong" which results in 3 points on your evaluation.
S) Previous evaluations by DWQ also indicate a Strong to Moderate rating on the Sinuosity
criterion. My observations did not indicate such a rating as the conveyance is relatively
linear. '

~ 4p p.4
December 18, ?006
Page Three
I would recommend that the following tasks be completed:
It appears that my evaluation of the hydrology at the site differs significantly from the
findings reported during the recent evaluation conducted by Division of Water Quality
(DWQ) personnel. The methodology used to determine the presence of groundwater and
hydric soils by the DWQ representative should be further clarified. The determination of
hydric soils involves a specific process detsiled by soil scientists and by the U_S_ Army
Corps of Engineers (USAGE), and details of this process should be provided by Dt~rQ.
I understand that you have or will have the site evaluated by another fu-m. It is
recommended that the soils at the site be evaluated by a licensed soil scientist, using
proper field techniques accepted by the IJSACE (Wetlands Determinatioa form with
14funsell Chart evaluation) to determine the presence/absence of hydric sclils. In addition,
a piezometes should be installed to determine tha depth to groundurater in relation to the
water in the channel.
+ Since the sinuosity rating on the DWQ evaluations is higher than I would have expeckd,
I would also request that DWQ provide the basis for calculating the sinuosity raEio as
indicated in their guidance dncumenratioiL I also noted roa#ed planrs in the channel.
which the DWQ evaluations did not confirm.
The copy of the Stream Identification form completed during the December 17, 20Qb site visit is
attached. Based on the evidence presented the conveyance appears to me-~.t sale of the criteria
for an ephemeral stre3211. However, it is my opinion that the conveyance .has bean Strongly
impacted in the past two years by ,the adjacent development and associated stotm~va#er.
although I cart not verify, from information you have provided it appears that the ditch has
historically remaine3 dry except fur times after a rainfall event. Based on these two f~tors the
presence of the small amount of waxer in the conveyance i~ most likely recent and due to
Ia addition, the co.aveyance takes on the appearance of a natural stze~tm down-gradieIlt Of the
area of disttubance (and off the subject property). All these factors strongly support the
conclusion that the conveyaac~, in the affected area is man-made.
I hope that this provides you with the information you require £or your project. If you have aav
questions ox require any additional information, do not hesitate to contact me at (910) b86-4010.
Sincerely,
Shawn P. Carroll

• ,ai2~~i la:aa yi~au~.~yia irt~~h~~KU~ rant u~ia~
LARK l.IROUP
~~
Geo-Envirpnmenrnl S~rv1~s
Land/Hydrograp~G Surveys
~. ~,.b~, (Z,CW~vardanddsvis.caoa) A.ND HAND ABLIVERX
3anuary 3,2007
Ward and LLavls
Attn: lyLr. 1. Clark Wright
409 Pollock St.
New Fern, NC 28563
Dear l~ir. Wright: _
phis cornesponden~ !s concerning DWQ project # 2006-1b82 Craven County, the ro~~lb lrnvgithin Ltie,Meuse
property locatAd west of s»ccondarY road 1 113, east of US Hwy 70, north of secondary of Craven, State of
River Basin watershed far$rend Dana The Wxl~i. ens Property m th$ Neuse River Basin, County .
North Carolina- Hotrto re
P.ased upon an onsiu inspection which took place on or about Septeml;er 26, 2006 and iztvohrcd af.Qroximatety one
hour and ZO minutes of onsitc evaluation and bon thtsn arty o Lind isian old m~ made drsouta~ feature ~ des
site, it is my opinion that the system that axtst3 p featur has been allowed to head cut due to 'cevelopmant
not qualify as a modified natural streazn• ~~ ~i~ le m dccs not indicsm a bltx
infrastruettue and road systems adjacent to this parcel. The 7.5' New Barn Quadrang aP
witiun the area in question and the landsrapc position does not show it to be a naturally occurrinS stun
line stream on. At the time of my in.5peccion I did not note significant ~aquaiic sf;QCies,
fesnue based upon tnY onsita inspecti
htbtans. It should be noted that the adjac~t subdivision ittat is south and east of this pare:
including finftslt a' amp ~ for our use the documents in the farm of historical
was not regvlatxd as containing a stream festiure. I am attaching Y
aerials with the dates on the reverse side so that you cart see the progression of this feature's history.
Sinaereiy,
Gary A. Mituhcll
gegulatory Wetlands Biologist
Senior Vita Prosidetrt, Wetlands Division
Attaci-mants (aerial photographs and resume)
Corporate Office: 5000131ue Clad Rd. Castle Hayn,e, NC 28429 • p,O, lax 1013b Wilrrvrigton. NC 28~
[phone] Office • (91.0) 602-3975 Facsimile • www.c3arkgroup.ue

-Gary A. 1'o'Iitclaell
hZegulatory 'Wetlands Consultant
P.®. ~o~c 5~
~vanlaoe, N.C.
EDUCATION
Wayne Community College
A.A.S., Forestry 1974
University of North Carolina at Wilmington
Wetland Ecology, Graduate Study, 1987
Wetland Training Institute
Poolesville, Maryland 1989
Use of the Federal Manual for Identification of Wetlands
U.S. Army Corps of Engineers
Training Center for Professional Development
Hydric Soils, Regional
Huntsville, Alabama 1991
U.S. Army Corps of Engineers
Training Center for Professional Development
Regulatory IV, Wetland Identification, and Delineation
Huntsville, Alabama 1992
U.S. Army Corps of Engineers
Waterways Experiment Station
Hydric Soils, Regional
Mobile, Alabama 1992
E~YPER~ENCE
THE CLARK GROUP
Senior Vice President Wetlands Division
2005-Present
FUNSTON LAND & TIMBER
Environmental Director/Project Manager
Winnabow, NC

Iv1ITCHELL AND ASSOCIATES; INC.
Environmental Consultants
Greenville, North Carolina
Chairman
1998- 2002
MITCHELL AND ASSOCIATES, INC.
Environmental Consultants
Greenville, North Carolina
President
1993-1998
U.S. Army Corps of Engineers
Wilmington District, Regulatory Branch
Wilmington ,North Carolina
GS-11 Regulatory Biologist, Wetland Permitting, Identification, and Enforcement
John R. Adams Co., Inc.
Engineering, Surveying, Planning
Durham, North Carolina
Environmental Specialist, Project lLlanager, Surveyor
1986-1990
Bass, Nixon, and Kennedy
Surveyors, Engineers, Planners
Cary, North Carolina
Surveying Crew Leader
1981-1985
Thomas Speight & Associates
Surveyors
Tarboro, North Carolina
Surveying Crew Leader
1978-1980
Texas Gulf, Inc.
Aurora, North Carolina
Surveyor
1974-1977
EXPERT WITNESS AND SOLICITED TESTIMONY
Consultant
Ward & Smith P.A., Attorneys at Law
Opinion Letter Regarding Regulatory Permitability and Development Potential

ln~els v. Whittington
New Hanover County
David Sneeden, Attorney at Law
United States Senate
Testimony, United States Senate
Committee on Environment and Public Works
Subcommittee on Clean Air, Wetlands, Private property and Nuclear Safety
July 19, 1995
Robert Boyd v. Jackies Creek Development
Binding Arbitration
Brunswick County, North Carolina
Expert Testimony Regarding Feasibility
DOT v. John Lena~el
File 72L0514(A)
Craven County, North Carolina
I.Clark Wright, Jr.
Ward & Smith, P.A., Attorneys at Law
State of North Carolina v. J & H Milling Co.. Inc. and Richard S te~hen Holloman. Jr.
Greene County, North Carolina '
Testimony
R. Gene Braswell
Barnes, Braswell and Haithcock, P.A., Attorneys at Law
Marshall Cox v. NCDENR
Wayne County
Enforcement Resolution
American Canoe Association Inc and The United States of America v. Mumhv Farms.
Inc dlb/a Murphy Family Farms and D.M. Fares of Rose Hill, L.L.C.
u.s.District
Sunset Beach Development LLC v AMEC Inc AMEC Earth and Environmental, Inc.,
of North Carolina, Michael T Ball Robert L Be1lamYand Associates, Inc. GGSH
Associates, Jerry L. Sellers, Julian Dale Gore Franklin Dale Gore and Richard P.
Herdman.

Mr. Clark Wright
Ward and Davis, LLP
409 Pollock Street
New Bern, N.C. 28562
January 4, 2007
141r. Wright
On behalf of Williams Properties, LLC, Land Management Group, Inc. (LMG} was contracted to
conduct a stream assessment on a parcel located adjacent to Thurman Road. This investigation was
conducted in response to a notice of violation (NOV) issued by the Division of Water Quality on August
28, 2006. The NOV was written in response to the removal of riparian vegetation in Zone 1 for
approximately 400 feet within the property. The stream evaluation conducted by DWQ staff scored a
26, sufficient to define the feature as an intermittent stream which is subject to current Neuse Buffer
laws.
LMG conducted an on-site investigation of the property on January 3, 2006. This evaluation took place
approximately 48 hours after a 0.35 inch rain (New Bern Airpod, KENN) event on January 1, 2006.
Rainfall for the preceding two weeks totaled 5.05 inches, well above average for non-growing season
conditions. The stream evaluation conducted generated a score of 18.25, a total that is below the 19
point threshold which DWQ defines as an intermittent stream.
The investigation was conducted approximately 50' east of the existing culvert (see attachment).
Conditions at this point are consistent with historic channelization as the feature lacks appropriate
sinuousity and exhibits little to no natural drainage pattern in the surrounding topography. Furthermore,
the feature lacks a continuous bed and bank system, typical of a natural stream channel.
Development of biological and physical indicators in this area may have been accelerated due to the
increased inflows from the DOT run-off as well as stormwater from the newly constructed residential
subdivision directly adjacent to the Williams' parcel. Stormwater outlets empty directly into the feature
without any pretreatment to reduce velocity or volume. Perennial flow does not appear to exist until
further down gradient. As a resuft, surrounding {and use (i.e. impervious coverage, stormwater inflows)
appear to contribute significantly to the water budget of this system.
www.lmgroup.net • [e-mail] • Phone: [phone] • Fax: [phone]
3805 Wrightsville Ave., Suite 15, Wilmington, NC 28403 • P.O. Box 2522, Wilmington,
NC 28402

Please feel free to contact me at 910-452-0001 or bmanninq(c~lmgroup.net if you have further
questions or comments regarding this project. Thank you far your Ume.
Sincerely,
W ENV vm«i w u,.m M+~n
D~~.~~M~nO.I,DS.
Brent D + l.mt Mxn,ywnwl.noun. DU
En.,.o ~+ ~a«~aa
R.xaan 1 am i~~ eut0ar tl Ou.
Manning D«. :0070101 t50007.05V0
6rent Manning
Environmental Scientist
Enc: NC DWQ Stream Evaluation Form
www.lmgroup.net • [e-mail] • Phone: [phone] • Fax: [phone]
3805 Wrightsville Ave., Suite 15, Wilmington, NC 23403 • P.O. Box 2522, Wilmington,
NC 28402

NCD4VQ Stre:~ll>! C1lassific:etion F~rln
I'rojcct Namc:
Williams Propurtios, LLC
DWQ Prujcat Numlxr:
Dxte;
River Dnsin:
Nouse River
Ncnrcel Named Slrwun:
Bricus Croek
USGS QUAD: Nave Bam
County: Cravon
Latiptdc: OS.OdJt309
Lungitudc: -77.005178
Gvnluutoc Ct3M/CAP
Signnlucc;
Locntion/D ircu lions
"PL);AS C' lV~•r~: Ijevnl~ator and (nndowner aljrer that thrf mrurc is a mnn-mnde Jitch, then are ojrhis jrxm is rcot necurnry.
AG'o, ijin the list projessiunnljudgrment ojthe rva[uator, the J•nture is n man-made duck and nut a mrx(i~ed nrrturrd stream-this
rating rystem should not br used"
Primary Field Indicators (Circ/eoneNumb.rP+rLin+)
L Gcomor bolo Absent W-•tk Moderate Stron
11 Is There A Rilflc-Pool Sequencer 0 I ~ 3
Z) Is The USDA Tcrturc (n Strcambcd ~
5) Ia There An Active (Or Relic)
9) Is A Continuous Bed ,'~ Bank Present? 0 ~ 2 3
('^IOTE' l/Bed ~$Bank Carr dBy Dirchm 9nd H'I'INO U7'Si o ty Then Scor =0•~) -
10) Is A Znd Order Or Greater Channel (As Indicated ~ - -
On Totes Man And/Or In Field) Present? Yes=3 ___ _____ rVr,~) )
PRLYIARY GEOMORPHOLOGY INDICATOR PUINTS: a
II Hydroiotry Absent Weak Moderate Strom
1) Is Therz A Groundwater
F1owiDischarae Present'r 0 1 1 1 ~ 3
PRLYL4RYHYDROLOGYINDIC.4TOR POINTS: 1
Weak
PRLYIARYBIOLOGYINDICATOR POI1~rTS:
Secondary Field Indicators: (eirale one TlvmberPa Line)
Weak
3) Does Topography Indicate A
Natural Drainage Way'r 0 G 1 1.5
SECONDARY GEOMORPHOLOGY INDICATOR POINTS:1
II Hvdrolow Absent Weak Moderate Stmno
1)Is This Yeaz's (Or Last's)Leaflitter ,~
d)!s Water in ChannelAnd>48 Hrs. Since 0 ~ I~ 1•~
Last Kn wn Rain? NOTE: I Dirdr Indicated In k9 Above Ski Thu Sre And NS Bet
5) L9 There Water In Channel During Dry 0 5 1 1.5
Conditions Or In Growin Season ?
61 Arc Hvdtic Soils Present u Sides Of Channel_ (Or In Headcut ? Yes No=O
SECONDARYHYDROLOGYINDICATOR POINTS: 5
cat?
8) Arc Wetland Plants In Stroambedl SAV Mostly OOL ~fosdy FACW Mosty FAC Mostly FACU Mostly UYL
('rVOTE:ljTuwlil6senc.OjAdPtanu/nStr.amb.d Z 1 75 .S 0 0
As Nnr+d Above Skin Thls St+p UNLESS SAV Pr+,w,r').
SECONDARY BIOLOGYINDICATOR POINTS: 3.25
TOTAL. POINTS (Primary + Srcondary~918.25{IjGrearrr Than Or Cyua[ To L Paints Tkr Stream !s Al Least Intunritienr)

,~'~
Christopher Brent Manning
Land Management Group, Inc.
3805 Wrightsville Avenue, Suite 14, 28403
P.O. Box 2522
Wilmington, NC 28402
Office: (910) 452- 0001
Fax: [phone]
Email: bmanninq(~Imgroup.net
EDUCATION: '
Bachelor of Science, Natural Resources,'concentration in Marine and Coastal
Processes, Emphasis in environmental science and policy, North Carolina
State University, 2000
Master of Science, Marine Science, concentration in GIS and coral reef
systems, emphasis in coastal wetland science and policy, University of Nortf~
Carolina at Wilmington, 2003
PROFESSIONAL CERT1FiCATION:
Wetland Professional in Training, issued by the Society of Wetland Scientists (SWS)
SKILLS:
Microsoft office 2000, CorelDraw, Geographical Information Systems 1
ArcView, Quattro Pro
EMPLOYMENT:
June 2003 -Present ..
Land Management Group, lnc., Wilmington, NC
Environmental Scientist
Duties: Wetland and Stream Delineation, CAMA/COE Permitting, Mitigation Planning
& Monitoring, GIS database management
January 2003 -June 2003
New Hanover County Planning Dept. Wilming#on, North Carolina
GIS Technician for Tidal Creeks Program
Duties: Conservation planning, image analysis
August 2002 -December 2002
North Carolina Coastal Federation
GIS/Wetland Internship
Duties: Wetland survey and permit preparation. Development of GIS database.
2001- 2003
University of North Carolina at Wilmington
Graduate Researoh Assistant
Duties: Spatial Analysis Laboratory, Arcview GIS, website development

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1 ~ ~ ~ ~ ~ 077° 00' 0.00" Mt ' ~ ~ ~ ~ ~ ' 077° 00' P0.00"nnr ' ~ ~ ' U/'ti" 05' ~SU.UU"'w
Name: NEW BERN
Date: 9/14/2006
Scale: 1 inch equals 1000 feet
Location: 035° 02' 21.51" N 077° 00' 09.67" W
Caption: United Self Storage

~.~,~, ~~'~ I ~..~1-mss ~c.~ ~-~',~c l
.,. ,~ , ,

~--~,
Phase 1 Review Land Manageirnent Group, Inc.
Gables Tract Environm©ntal Consultants 1949 HlStorical SOII
Wimin ton, N.C. Conservation Service
CravenQCounty, NC 9 eri hoto
05-00-X57/maps.cdr Augustl, 2001
SITE Scale 1" = 1000'