20071315 Ver 1_More Info Received_20080215

Date: February 15, 2008
REA AL ESTNTYi
X`__,-'PS0CLkT S, IN
PROPERTY MANAGEMENT DE'JELCFI1ENl?1i
CCMMERCIAL PRCKERAGE / LEASING 1111
To: Cyndi Karoly, DWQ Wetlands Group
2321 Crabtree Blvd, Suite 250
Raleigh, NC 27604
From: Joe L. Jernigan
Real Estate Associates, Inc.
3633 Chapel Hill Blvd.
Durham, NC 27707
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RE: Buffer Determination Appeal for Stream Feature A,
Brightleaf Commons; Durham, Durham County, North Carolina
On August 7, 2007, Soil & Environmental Consultants (S&EC) received your appeal determination dated
August 3, 2007, of the initial on-site determination performed by the Raleigh Regional Office on April
15, 2004. After review of all the information surrounding this appeal, and after further discussion with
S&EC, we continue to disagree with the Division's determination. We feel that the stream in question
should be considered "exempt" from the Neuse Buffer Rule. We have pointed out to your staff that the
discovery of an illegal, elicit discharge from a failing sand filter system was the catalyst for the initial
appeal. S&EC met Mack Wiggins (DWQ) as well as Durham County personnel on-site to document the
extent of the discharge. It was estimated that the discharge was in excess of 3,000 gallons per day, and
occurred for untold years, probably since the 1960's. Accordingly, we believe the feature observed on
site exhibits stream-like characteristics resulting from the many years of illegal discharge, not from
intermittent or perennial flow influenced by groundwater. Additionally, the site is adjacent to Highway
70, and receives much stormwater discharge which further impacts the site. We believe this further
contributes to the strong geomorphologic characteristics observed by your staff. We feel that the
historical circumstances create extraordinary events which have contributed to the marginal nature of the
stream in question, and that we must exhaust all potential options for "exempting" this stream from the
Neuse Buffer Rule prior to proceeding with a Major Variance request through the WQC/EMC or proceed
with a request for review by the Office of Administrative Hearings (OAH).
Your letter states that if Real Estate Associates, as owner, wishes to pursue an appeal of your
determination that we are to submit a formal request to the OAH. However, I understand that the Neuse
Buffer Rule states that the "Director" shall make appeal determinations and that she has delegated this
authority on to her staff. However, because this is a delegated authority from the Director to her staff I
understand that in previous situations the Director was given the opportunity to conduct a 3rd on-site
determination of the stream prior to submitting the request to the OAH. Following this precedent, I
formally request, by copy of this letter, that the Director schedule a meeting with me and S&EC to
evaluate this stream.
'J
3633 CHiaPFL H!I ' BCULEVr FC
F.(D. Po% 52328
DUUH{-1.9. NC 277172328
PHCI:E: 919 489 21)00 F-x: 919 493 b539
A1A'N.kF ALFS,WTFP,65GC CO M
I have sent a copy of this letter to the Director and I request that you forward this letter with your
comments on to her. I have also attached copies of the original determination, appeal determination and
S&EC previous request package, completed stream forms and maps. I appreciate your assistance with
this matter and anticipate a call from the Director or yourself to schedule this meeting
Please contact me at your earliest convenience to coordinate a site meeting for re-evaluating the feature in
question. 1 can be reached at [phone].
Skncerely,
oe Jernigan
President
Enclosures:
1) USGS site vicinity map
2) Wake County Soil Survey
3) DWQ #2007-1315
'-CC: Coleen Sullins, Director, NC-DWQ
CC: Soil and Environmental Consultants
`0 pG
?0F WA9
CIO
Michael F, Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Coleen H. Sullins, Director
Division of Water Quality
August 3, 2007
Mr. Jason Payne
S&EC
DWQ Project # 2007-1315
Durham County
AUG o 7 too
11010 Raven Ridge Road
Raleigh, NC 27614 ?Y. Sad 6 FM*_1111M81 ConarflWk PA
Subject Property: Hwy 70 in Durham at the Brightleaf Subdivision in Durham, NC
APPEAL of On-Site Determination for Applicability to the Neuse River Riparian Area
Protection Rules (15A NCAC 2B.0233)
Dear Mr. Payne:
On July 30, 2007, Amy Chapman and Periann Russell conducted an appeal of an on-site
determination to review a feature located on the subject property for applicability to the Neuse
Buffer Rules (15A NCAC 2B .0233). The feature is labeled as "A" on the attached map initialed
by Amy Chapman on August 3, 2007. This feature was previously determined as "subject" to
the Neuse Buffer Rule by Debbie Edwards of the Division of Water Quality.
The Division of Water Quality (DWQ) has determined that the surface water labeled as
"A" on the attached map is subieet to the Neuse Buffer Rule. A copy of the DWQ Stream
Identification Form completed at the site is also included with this letter. This on-site
determination shall expire five (5) years from the date of this letter.
Individuals that dispute an appeal determination by the DWQ or Delegated Local Authority that
"exempts" a surface water from the buffer rule may ask for an adjudicatory hearing. You must
act within 60 days of the date that you receive this letter. Applicants are hereby notified that the
60-day statutory appeal time does not start until the affected party (including downstream and
adjacent landowners) is notified of this decision. DWQ recommends that the applicant conduct
this notification in order to be certain that third party appeals are made in a timely manner. To
ask for a hearing, send a written petition, which conforms to Chapter 150B of the North Carolina
General Statutes to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh,
N.C. 27699-6714. This determination is final and binding unless you ask for a hearing within 60
days.
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 None Carolina
NatA0711y
401 Oversight/Express 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. hHp //h2o enr state.nc.us/ncwe Isrlds
An Equal OpportunitylAfflrrnative Action Employer - 50% Recycled/10% Post Consumer Paper
Jason Payne
Page 2 of 2
August 3, 2007
or Waters of the State. If you have any additional questions or require a irtional information
please call Amy Chapman at [phone].
Sinc
U
?Cyndi B. Karoly,
401 Oversight/Express Review Permitting Unit
CBK/asc
Enclosures: Durham County Soil Survey Map
DWQ Stream ID Form
cc: Lauren Cobb, DWQ Raleigh Regional Office
File Copy
Central Files
Filename: 07I315Hwy70atBrightleaf SD(Durham)DET
North Carolina Division of Water Quality - Stream Identification Form; Version 3.1
0'7 - 13 ,l`.5
Date: 3? - o P
rolect:
Evaluator. • Site: ,r 7 O Ltoj Longitude:
Total Points: tam
_ er
ns&wm?iset!ea t j#ermment a J County: S 0, (v_\ e.g. Quad !Name:
C
A. Georrlo of Subtotal = Absent Weak Moderate S ng
1'. Continuous bed and bank 0 1 2 3
2. Sinuosity 0 1 2 3
3. In-channel structure: riffl"ooi sequence 0 1 2
4. Soil texture or stream substrate sorting 0 1 3
5. Activehelic flood lain 0 1 2 3
6. Depositional bars or benches 0 2 3
7. Braided channel 1 2 3
8. Recent alluvial deposits -6 1 Cz 3
94 Natural levees 1 2 3
10. Headcuts 1 2 3
1 L Grade controls 0 0. 1 1.5
12. Natural valley or drainagewa 0 0.5 1.5
13. Second or greater order channel on existing
USGS or NRCS map or other documented
evidence.
No =
Yes = 3
?aar,nwv -w ww nut ruceu; sae owwsamw in manual
B. H Subtotal =
14. Groundwater flowidischa e 0 1 2 3
15. Water in channel and > 48 We since rain, QI
Water In channel - d or rowin season 0 1 2 <3
16. Leaflittar 1.5 1 0.5 0
17. Sediment on plants or debris 0 0.5 1 1.5
18.Organio debris lines or plies (Wrack lines) 0 0.5 1 1.5
19. H ric soils (redoximorphic features) present? No = 0 Y*s = 1.5
C.
20°. Fibrous roots in channel 3 1 0
plants In channel 3 1 0
0.5 1 1.5
1 2 3
O 0 5 1 1.5
ans 0.5 1 1.5
nthos (note divendty and abundance)
Fflaffientous
tous algae, periph n
28. Iron oxidizi baderiaMi us. 0.5
0 1
0 0.5 1
2
1 1.5
3
LT. Wetla nd plants in streambed FAC = 0.5; FACW = 0.75; OBL = 1.5 SAV = 2.0;
items 20 and 21 focus on the presence of upland plants, Item 29 focuses on the presence of aquatic or wetland plarrta.
f th Sketch:
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