20051673 Ver 1_More Info Received_20070801

C
WILLIAMS MULLEN
MAUPIN TAYLOR
~e~
RECEIVED
JUl~ 1 9 2007
Direct Dial: 919.981.4084
[e-mail]
June 18, 2007
Ms. Kim Hausen
Chief Hearing Clerk
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
N.C. ATTORNEY GENERAL
Environmental Division
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tiUG ~ 2007
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Re: Bruce Wheeler and Tammy Wheeler v. Division of Water Quality, ND DENR
06 EHR 6065 Cumberland County
Terry McKnight and Katherine McKnight v. NC DLNR, Divisie~n of Water Qzcaliry
06 EHR 006b Cumberland County
Our File No. 18122.002
Dear Ms. Hausen:
F,nclosed please find an original and tyvo copies of Petitioners' Stataas Report in the above
entitled matter. Please file the original, keep one copy for the C;aurt files, and return one copy in
the SASK.
Thank you. Please feel free to give me a call if you have any questions.
Very truly~yo ,
Kurt J. Olson
Attorneys for Petitio>ers
Enclosures
cc: Mary Penny Thompson, Esq.
Stormie Forte, Esq.
Mr. anal Mrs. Terry McKnight
Mr. and Mrs. Bruce Wheeler
A Profertiorsa! Corporation
NORTH CAROLINA • VIRGINIA ® WASHINGTON, D.C. a LONDON
3200 Beechleaf Courr, Suitc 500 (27604} P.O. Box 19764 Ralcigh, NC 27619-9764 Tel: [phone] Fax: [phone]
www.williaaumullcn.com

STATE OF NORTH CAROLINA
CUMBERLAND COUNTY
BRUCE WHEELER and TAMMY WHEELER,
Petitioners,
v.
N. C. DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, DIVISION OF
WATER QUALITY,
Respondent.
TERRY MciCNiGHT and KATHERINE
McKNIGHT,
Petitioners,
v.
N. C. DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, DMSiON OF
WATER QUALITY,
Respondent.
STATUS REPORT
06 EHR 0065
06 EHR 0066
Pursuant to the April 17, 2007 Order in the above referenced consolidated cases,
Petitioners hereby file this status report. As previously reported, Petitioners and Respondent
have reached a tentative settlement of the matter in dispute which arises from the alleged
unauthorized fill of jurisdictional wetlands. The settlement contemplates removal of 8-10 feet of
fill along the border of the Petitioners' properties. The area presently is filled with riprap and
forms the transitional area between the upland fill (grass area) and the adjacent wetland.
Removing this fill would reduce the area in dispute by one-third and restore roughly 1256 square
feet (0.03 acres} of wetlands along the boundary of the properties. A retaining wall would be
placed between the new end line for the fill and the restored area. The recovered area would be
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
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re-vegetated with compatible wetland vegetation. By removing a portion of the fill, the
Petitioners would minimize to the fullest practicable extent the amount of fill at issue while at the
same time retaining some utility of the functions created by the fill.I
In addition to reducing the amount of fill, Petitioners propose to purchase additional acres
immediately adjacent to and behind their properties. Over the years, portions of this area have
become filled with sediment and debris from adjacent and upstream developments. Test holes
indicate that there is hydric soil beneath this deposited material. Existing jurisdictional waters
will be delineated on the property and up to 2665 square feet (0.06 acres) of fill material will be
removed from degraded areas in order to restore the area to its original contours and hydrology.
Native vegetation such as bald cypress (Taxodium distichum), willow {Salix sp.) and titi (Cyrilla
racemiflora) would be planted throughout the restored areas. The property will then be
permanently protected usvag a conservation instrument. Removal of fill material and restoration
of this area will allow better utilization of the adjacent floodplain, thereby reducing downstream
flooding and further degradation (incision) of the stream channel.
The proposed mitigation ratios under the plan would be as follows:
Restoration: 1:1 ratio = 2665 square feet {0.06 acres)
Preservation: approximately 13:1 ratio - 0.82 acre of existing wetlands and
streams on mitigation site
Enhancement: clear brush, logs, debris and other obstructions within the
wetlands on the mitigation property
The Petitioners' proposal has been approved conceptually by Respondent contingent upon
review and approval of the final plans and concurrent approval of the proposed work by the U.S.
Army Corps of Engineers ("Corps"). The Corps has reviewed the proposal and requested Petitioners
to collect certain hydrographic information and other data to support the Petitioners' contention that
the environmental impact of the remaining fill will be negligible. The Corps also has requested
Petitioners to submit scaled drawings and other calibrated diagrams of the project. Petitioners have
collected the required data and are preparing it for submission to the Corps. The report should be
~ The utility of the 511 the Petitioners propose to retain is to provide a buffer against flooding (although potentially
this could be accornplished by other means) and to retain a feature of the Petitioners' residences that is expected by
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available and presented to the Corps within the next 30 days. Thereafter, Petitioners expect to
receive the Corps' approval of the project.
This the 18~' day of June, 2007.
WII,LIAMS MULLEN MAU~,~N TAYLOR, P.A.
By: .~-
Kurt J. Olson
State Bar No. 2657
Attorneys for Petitioners
3200 Beechleaf Court, Suite 500
P.O. Drawer 19764
Raleigh, N.C. 27619-9764
Telephone: {919) 981-4000
Facsimile: 919.981.4300
Email: [e-mail]
standards and the market
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CERTIFICATE OF SERVICE
I, Kurt J. Olson, do hereby certify that the foregoing or attached Petitioners'
Status Report was served upon all parties of record by mailing a copy thereof to their counsel of
record at the addresses indicated below with the proper postage attached and deposited in an
official depository under the exclusive care and custody of the United States Postal Service in
Raleigh, North Carolina, on the 18th day of June, 2007.
WILLIAMS MULLEN MAUPIN TAYLOR, P.A.
By:
Kurt J. Olson
Attorneys far Petitioners
State Bar No. 22657
3200 Beechleaf Ct.
P.O. Drawer 19764
Raleigh, NC 27619-9764
Telephone: [phone]
Facsimile: 919.981.4300
Email: [e-mail]
SERVED:
Mary Penny Thompson, Esq.
General Counsel
Department of Environment & Natural Resources
1601 Mail Service Center
Raleigh, NC 27699-1601
Stormie Forte, Esq.
Attorney General's Office
Environmental Division
9001 Mail Service Center
Raleigh, NC 27699-9001
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