20170332 Ver 1_Buffer Determination Appeal Request_20170215

Strickland, Bev
From: Joe Starr <[e-mail]>
Sent: Wednesday, February 15, 2017 8:52 AM
To: Higgins, Karen
Cc: Tomas Will
Subject: Buffer Determination Appeal Request - 1259 Innovation Ave, Cary, NC - NBRRO#
17-011
Attachments: PNS -001 - Buffer Determination Appeal Request.pdf
Good morning Karen.
Attached please find our request for the DWR to reconsider the buffer determination associated with a manmade
stormwater pond located at 1259 Innovation Avenue in Cary, NC. As you will see in this brief letter, the Corps has
confirmed that the pond is not jurisdictional and we request the DWR to find that the stormwater pond is Not Subject to
the Neuse River Buffer Rules.
I realize that you and your staff are very busy, so I want to thank you in advance for anything you can do to make a
prompt decision regarding this appeal. Your help is truly appreciated.
Please do not hesitate to contact me if you have any questions.
Best regards,
Joe
Joseph E. Starr, PE Senior Consultant
Hart & Hickman, PC 3334 Hillsborough St. Raleigh, NC 27607
Direct 919-723-2511 Mobile [phone] Main 919-847-4241
www.harthickman.com
hart hickman
SMARTER ENVIROHMCNTAa SOLUTIONS
1

hart
hi ckman
SMARTER ENVIRONMENTAL SOLUTIONS
February 15, 2017
NC Department of Environmental Quality
Division of Water Resources
401 & Buffer Permitting Unit
1628 Mail Service Center
Raleigh, North Carolina 27699
Attn: Ms. Karen Higgins
Re: Buffer Determination Appeal Request
19.47± -Acre Property
Wake Co. Parcel # 0757208836
1259 Innovation Avenue
Cary, Wake County, North Carolina
NBRRO #17-011
H&H Job No. PNS -001
Dear Karen:
This letter provides supplemental information associated with the Buffer Determination Request
sent on January 6, 2018 and the Buffer Determination Letter (NBRRO #17-011), dated January
27, 2017, for the above referenced project site. On behalf of our client, Princess Nail Supply, we
are requesting that the Division of Water Resources (DWR) please reconsider the buffer
determination associated with the manmade stormwater pond located on the project site. It is our
opinion that the pond is Not Subject to the Neuse River Buffer Rules.
According to the Buffer Determination Letter, the following water bodies require a 50' buffer:
the stream in the southeast of the property (identified as Stream A), the Crabtree Creek Flood
Retaining Structure (identified as Stirrup Iron Creek), the stream below the manmade stormwater
pond (identified as Stream B), and the manmade stormwater pond (identified as Pond).
2923 South Tryon Street, Suite 100 3334 Hillsborough Street
Charlotte, NC 28203 Raleigh, NC 27607 www_harthickman_com
704.586.0007 main 919.847.4241 main

Ms. Karen Higgins
February 15, 2017
Page 2
While we agree with the buffer determination for Stream A, Stirrup Iron Creek, and Stream B;
we request that you reconsider the buffer applicability on the manmade stormwater pond. Please
consider the following information when reconsidering the buffer determination:
Site History
The manmade stormwater pond was constructed sometime between 1999 and 2002. The Crabtree
Creek W/S structure, located west of the property, appears to have been constructed between
1981 and 1984.
1970 USDA Soil Survey (see attached)
The 1970 USDA Soil Survey depicts an intermittent stream on the western portion of the
property with an origin approximately 800 feet north of the northern property boundary. Using
georeferencing tools, we georeferenced the 1970 soil survey to 2016 orthoimagery and traced the
outline of the stormwater pond so that we can see approximately where it is relative to the
features depicted on the soil survey (see attached 1970 USDA Soil Survey). As noted in the Buffer
Determination Letter, the pond is not present on the Soil Survey.
USGS Topo Maps (historical maps are not attached but can be provided)
After submitting the Buffer Determination Request, H&H reviewed additional USGS
topographic maps, including the 2016 map, which is the most recent version. As shown on the
attached figure, the stormwater pond is not shown on the most recent version of the topo map.
Here is a brief synopsis of our observations for additional topo maps:
• 2016 (attached): stream or stormwater pond not shown on the property, Crabtree Creek
W/S Structure shown to the west of the property.
• 2013: stream or stormwater pond not shown on the property, Crabtree Creek W/S
Structure shown to the west of the property.
• 2002: stormwater pond shown on the property, no stream shown on the property, Crabtree
Creek W/S Structure shown to the west of the property.
• 1993: stream or stormwater pond not shown on the property, Crabtree Creek W/S
Structure shown to the west of the property.
hart "-%hickman
SMARTER ENVIRONMENTAL SOLUTIONS
S:\AAA-Master Projects\Princess Nail Supply\PNS-001 - 1259 Innovation Ave\Buffer Determination\Response to DEQ on pond
buffer\PNS-001 -Buffer Determination Appeal Request.doc

Ms. Karen Higgins
February 15, 2017
Page 3
• 1990: stream or stormwater pond not shown on the property, Crabtree Creek W/S
Structure shown to the west of the property.
• 1984: stream or stormwater pond not shown on the property.
• 1973: stream or stormwater pond not shown on the property.
• 1954: stream or stormwater pond not shown on the property.
• 1953: stream or stormwater pond not shown on the property.
• 1943: stream or stormwater pond not shown on the property.
Water Quality Pond Plans
Approved plans for the stormwater pond were obtained from the Town of Morrisville. The plans,
dated 6/18/1999, identify the pond as a "NCDEM Water Quality Pond". The plans do not depict
surface water features that discharge into the pond. Two culverts appear to convey stormwater
from Innovation Ave. and the northern adjacent parking lot, and are depicted above the pond.
Army Corps of Engineers
On February 8, 2016, Ms. Tasha Alexander with the US Army Corps of Engineers made a visit to
the property to make a jurisdictional determination for Waters of the United States. Subsequent
to the site visit, Ms. Alexander was provided with plans for the stormwater pond via email. Upon
review of the plans, Ms. Alexander concluded that the pond is not jurisdictional. Ms. Alexander
communicated in the field that a Preliminary Jurisdictional Determination would be issued in the
coming weeks. A copy of the email exchange is attached.
Discussion
In the field, the stormwater pond was observed to discharge into Stream B via a culvert. Stream
B discharges into the Crabtree Creek W/S structure located on the western adjoining property.
The origin point for Stream B was observed to be the culvert below the dam. The stormwater
pond receives runoff from Innovation Avenue and the northern adjacent property. There were no
stream features observed above the stormwater pond which discharge into the stormwater pond.
Bart "-%hickman
SMARTER ENVIRONMENTAL SOLUTIONS
S:\AAA-Master Projects\Princess Nail Supply\PNS-001 - 1259 Innovation Ave\Buffer Determination\Response to DEQ on pond
buffer\PNS-001 -Buffer Determination Appeal Request.doc

Ms. Karen Higgins
February 15, 2017
Page 4
The 1970 USDA Soil Survey depicts an intermittent stream on the western portion of the
property. The present location of the stormwater pond is not depicted on the 1970 Soil Survey.
The entire history of USGS topo maps do not show any portion of stream depicted on the 1970
USDA Soil Survey as being on the property.
Only one USGS topographic map (2002) shows the stormwater pond, all other USGS
topographic maps do not depict the stormwater pond, including the most recent version of the
map.
Approved plans for the pond identify the feature as a "NCDEM Water Quality Pond". The plans
do not depict surface waters above the pond.
The Army Corps of Engineers has determined that the pond is not jurisdictional.
Conclusion
If the stream depicted on the western portion of the property on the 1970 USDA Soil Survey was
mapped correctly, it was filled in during the adjacent construction and was replaced by the
stormwater pond. The current stormwater pond is providing a benefit to water quality, which is
the purpose of the buffer rules. If the stream shown on the Soil Survey had been filled without
the addition of the pond, there would be no buffer required and no resulting water quality benefit.
Since the pond is present, it provides the water quality benefit that is intended by the buffer rules.
In addition, since the pond is not shown on the 1970 Soil Survey or on the most recent version of
the USGS 7.5 minute topographic map, then the pond is Not Subject to the Neuse River buffer
rules. Therefore, we request that the DWR reconsider the determination in light of this new
information, and not apply riparian buffers to the manmade pond.
We greatly appreciate your assistance and cooperation as we try to navigate this matter. We hope
the information presented herein is helpful in reaching a mutual understanding of the somewhat
hart ` hickman
SMARTER ENVIRONMENTAL SOLUTIONS
S:\AAA-Master Projects\Princess Nail Supply\PNS-001 - 1259 Innovation Ave\Buffer Determination\Response to DEQ on pond
buffer\PNS-001 -Buffer Determination Appeal Request.doc

Ms. Karen Higgins
February 15, 2017
Page 5
complex situation. As our client is operating on a limited timeline to make decisions concerning
the development of the property, we would greatly appreciate your prompt review of the buffer
determination.
Please contact us at your earliest convenience to discuss this matter.
Sincerely,
Hart & Hickman, PC
Joseph E. Starr, PE
Senior Consultant
Tomas Will
Assistant Project Environmental Scientist
Attachments
Delineation Map
1970 USDA Soil Survey with Georeferenced Location of Present Day Stormwater Pond
2016 USGS Topographic Map
Plans for Water Quality Pond
E-mail Correspondence with Tasha Alexander
Buffer Determination Letter (NBRRO #17-011)
cc: Scott Jones, Princess Nail Supply (Via Email)
Joe Whitehouse, Creative Urban Environments, Inc. (Via Email)
Bart ► hickman
SMARTER ENVIRONMENTAL SOLUTIONS
S:\AAA-Master Projects\Princess Nail Supply\PNS-001 - 1259 Innovation Ave\Buffer Determination\Response to DEQ on pond
buffer\PNS-001 -Buffer Determination Appeal Request.doc

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From:
Danielle Birmingham
To:
Tomas Will; Joe Starr
Subject:
FW: 1259 Innovation Ave #2007-03744
Date:
Friday, February 10, 2017 7:53:48 AM
FYI below.
From: Alexander, Tasha L CIV USARMY CESAW (US) [mailto:[e-mail]]
Sent: Thursday, February 09, 2017 5:43 PM
To: Danielle Birmingham <[e-mail]>
Subject: RE: 1259 Innovation Ave #2007-03744
Danielle,
It was nice meeting you too! I really appreciate the additional information. The plans are really
helpful. It appears the pond may have been constructed in a jurisdictional water of the U.S.
however, it was likely authorized under NWP 26 in 1999. This information along with the
plans indicating the pond was constructed as a BMP is enough information to confirm the
pond is not jurisdictional. Can you send me copies of the 1999 and 2005 aerials that we
reviewed in the field?
Thank you,
Tasha Alexander
Regulatory Specialist
Raleigh Regulatory Field Office
U.S. Army Corps of Engineers -Wilmington District
3331 Heritage Trade Drive, Suite 105
Wake Forest, North Carolina 27587
Phone: [phone], extension 35
email: tasha.l.alexander&usace.army.mil
The Wilmington District is committed to providing the highest level of support to the public.
To help us ensure we continue to do so, please complete the Customer Satisfaction Survey
located at our website at
htip://www.saw.usace.anny.mil/missions/RegulatoryPermitProgram.asi2x to complete the
survey online.
-----Original Message -----
From: Danielle Birmingham [mailto:dbirmingham&harthickman.com]
Sent: Wednesday, February 08, 2017 5:26 PM
To: Alexander, Tasha L CIV USARMY CESAW (US)
<Tasha.L.Alexander(ausace. army.mil>
Cc: Joe Starr <starr&harthickman.com>; Tomas Will <twillUharthickman.com>
Subject: [EXTERNAL] 1259 Innovation Ave #2007-03744
Hi Tasha,

It was nice to meet you today! After some digging, we were able to find the attached as-builts
of the stormwater management pond. The as-builts refer to the stormwater BMP as a NC
Division of Environmental Management Water Quality Pond and have been approved. Is this
sufficient information to consider the stormwater BMP as non jurisdictional and not a Water
of the U.S.? Please let me know at your earliest convenience!
Thank you!
Danielle
Danielle Birmingham, Assistant Project Environmental Scientist
Hart & Hickman, PC 12923 South Tryon Street, Suite 100 1 Charlotte, NC 28203
Direct 704-526-2048 1 Mobile [phone] Main 704-586-0007
Blockedwww.harthickman.com <Blockedhttp://www.harthickman.com/>
P Please consider the environment before printing this e-mail
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To: Remove this sender from my allow list
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Princess Nail Supply Warehouse
Wake County
January 27, 2017
Page 2 oft
This on-site determination shall expire five (S) years from the date of this letter. Landowners or affected
parties that dispute a determination made by the D1'VR may request a determination by the Director. Am
appeal request must be made within sixty (60) days of date of this letter. A request for a determination by the
Director shall be referred to the Director in writing. If sending via US Postal Service. c/o Karen Higgins;
D WR — 401 & Buffer Permitting Unit; 1617 Marl Service Center, Raleigh, NC 27699-1617. If sending via
delivery service (UPS, FedEx, etc.): Karen Higgins; DWR — 401 & Buffer Permitting Unit, 51,E N. Salisbury
Street, Raleigh, NC 27604.
This determination is final and binding unless, as detailed above, unless an appeal is requested within sixty
(60) days.
This project may require a Section 4041401 Permit for the proposed activity. Any inquiries should be
directed to the US Army Carp of Engineers (Raleigh Regulatory Field Office) at (919)-554-4884.
If v ve questions regarding this determinati , please feel free to contact Stephanie Goss at [phone].
incerely,
Danny Smith
Supervisor, Water Quality regional Operations Center
cc: RRO DWR File Copy
Matt Bramblett, Hart & Hickman, PC, 2923 South Tryon Street, Suite 100, Charlotte, NC 28243