STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF WAKE 05 EHR 2009

Raymond S. Carpenter )

Petitioner, )

)

v. )

) DECISION

N.C. Dept. of Environment and )

Natural Resources, )

Respondent. )

This matter came before temporary Administrative Law Judge Robert A. Bryan, Jr. on April 27, 2006, in Raleigh, North Carolina. The case arose out of an on-site stream determination performed by Respondent pursuant to 15A NCAC 02B .0233(3)(a) on property owned by Petitioner. Petitioner filed a Petition for a Contested Case Hearing under N.C. Gen. Stat. 150B-23, alleging that Respondent had substantially prejudiced his rights and had failed to act as required by rule or law by finding a stream to exist on Petitioner’s property that was subject to the Neuse River Riparian Buffer Rules pursuant to 15A NCAC 2B .0233(3), because said stream appeared on the 1970 Wake County Soil Survey map prepared by the NRCS.

APPEARANCES

For Petitioner: For Respondent:

Petitioner appeared pro se Nancy Reed Dunn

in this matter Assistant Attorney General

N. C. Department of Justice

9001 Mail Service Center

Raleigh, NC 27699-9001

ISSUES

1. Whether Petitioner can show that Respondent has failed to act as required by rule or law in determining that a stream exists on Petitioner’s property that is subject to the Neuse River Riparian Buffer Rules.

2. Whether Respondent correctly used the 1970 Wake County Soil Survey map prepared by the Natural Resources Conservation Service of the United States Department of Agriculture to determine that a stream exists on Petitioner’s property, pursuant to 15A NCAC 02B .0233(3).

STATUTORY SECTIONS AND RULES IN QUESTION

N.C. Gen. Stat. §§ 143B-279.1 through 143B-344.33

N.C. Gen. Stat. § 143-214.1,

N.C. Gen. Stat. § 143-214.7

N.C. Gen. Stat. § 143-215.3(a)(1)

15A NCAC 02B .0232, et seq.

15A NCAC 02B .0233(3)

EXHIBITS RECEIVED INTO EVIDENCE

Petitioner:

Petitioner’s 1. Definition of soil survey

Petitioner’s 2. NRCS Soil Survey Handbook

Petitioner’s 3. Copy of CFRs

Petitioner’s 4. Description of soils in Wake County

Petitioner’s 5. NRCS document

Petitioner’s 6. Advanced Copy, Subject to Change, 1970 Soil Survey on 1993 Color Infrared Photography

Petitioner’s 7. Tabular data

Petitioner’s 8. Memorandum of Understanding

Petitioner’s 15A. Calendar with handwritten notes

Petitioner’s 22. Letter from Combs to Dorney

Respondent:

Respondent’s 1. North Carolina Division of Water Quality - Stream Identification Form; Version 3.1

Respondent’s 2. United States Department of Agriculture Natural Resources Conservation Service Soil Survey of Wake County, North Carolina

Respondent’s 4. Use of Soil Survey Maps for Buffer Rules - a Clarification NC Division of Water Quality, January 3, 2006

Respondent’s 5. Documents provided to Eric Kulz of DWQ by Petitioner

Respondent’s 7. Resume of Mike Horan of DWQ

Respondent’s 8. Resume of Eric Kulz of DWQ

Respondent’s 9. Resume of John Dorney of DWQ

Respondent’s 10. Affidavit of Roy Vick of the NRCS

Based upon careful consideration of the testimony, evidence, and legal briefs received during the contested case hearing as well as the entire record of this proceeding, the undersigned makes the following:

FINDINGS OF FACT

1. Petitioner resides in and does business in the state of North Carolina.

2. Respondent is a State agency established pursuant to N.C. Gen. Stat. §§ 143B-279.1 through 143B-344.33 and vested with the statutory authority to enforce the State’s environmental pollution laws, including laws enacted to regulate sedimentation pollution.

3. 15A NCAC 02B .0233 Neuse River Basin: Nutrient Sensitive Waters Management Strategy: Protection and Maintenance of Existing Riparian Buffers (“Neuse River Riparian Buffer Rules,”) requires that a 50 foot riparian buffer be maintained “directly adjacent to surface waters in the Neuse River Basin (intermittent streams, perennial streams, lakes, ponds, and estuaries), excluding wetlands. Except as described in Sub-Item (4)(a)(iii) of this Rule, wetlands adjacent to surface waters or within 50 feet of surface waters shall be considered as part of the riparian buffer but are regulated pursuant to 15A NCAC 2H .0506. The riparian buffers protected by this Rule shall be measured pursuant to Item (4) of this rule. For the purpose of this Rule, a surface water shall be present if the feature 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 most recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic maps prepared by the United States Geologic Survey (USGS). Riparian buffers adjacent to surface waters that do not appear on the maps shall not be subject to this Rule unless one of the following applies.” 15A NCAC 02B .0233(3)

4. 15A NCAC 02B .0233(3)(a) provides the following exemption to the rule requiring that riparian buffers be maintained around surface waters in the Neuse River Basin: “(a) EXEMPTION WHEN AN ON-SITE DETERMINATION SHOWS THAT SURFACE WATERS ARE NOT PRESENT. When a landowner or other affected party believes that the maps have inaccurately depicted surface waters, he or she shall consult the Division or the appropriate delegated local authority. Upon request, the Division or delegated local authority shall make on-site determinations. Any disputes over on-site determinations shall be referred to the Director in writing. A determination of 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. Surface waters that appear on the maps shall not be subject to this Rule if an on-site determination shows that they fall into one of the following categories. (i) Ditches and manmade conveyances other than modified natural streams unless constructed for navigation or boat access. (ii) Manmade ponds and lakes that are located outside natural drainage ways. (iii) Ephemeral (stormwater) streams.”

5. Petitioner owns property located at 6525 Dresden Lane, Raleigh, North Carolina (“the site,” or “the property”).

6. Petitioner purchased that property for purposes of residential development.

7. On September 13, 2005, Mike Horan, an environmental specialist from the Raleigh Regional Office (“Regional Office”) of the Division of Water Quality (“DWQ”) of Respondent, was contacted by Petitioner. Petitioner met with Mr. Horan, informed him of the intended residential construction, and presented Mr. Horan with plans for the intended construction which included a proposed building envelope. The plans produced by Petitioner showed a stream feature on the property, and Petitioner asked Mr. Horan if that feature appeared 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 (“Soil Survey map,” or “NRCS soil survey map”),or the most recent version of the 1:24,000 scale (7.5 minute) quadrangle topographic maps prepared by the United States Geologic Survey (USGS) (“USGS map”).

8. This stream feature is not shown on the USGS map of Petitioner’s property, however, the stream feature on Petitioner’s property appears as an intermittent stream on the 1970 Wake County Soil Survey Map.

9. The 1970 Wake County Soil Survey Map is used by NC DENR as the most recent version of the NRCS soil survey map for purposes of determining whether a stream is present under 15A NCAC 02B.0233(3).

10. Mr. Horan informed Petitioner that the stream depicted on the plans presented by Petitioner appeared on the Wake County Soil Survey map of his property, that Petitioner accordingly must maintain a 50 foot riparian buffer around that stream under 15A NCAC 02B .0233, and that the plans presented by Petitioner showed impacts to the 50 foot riparian buffer adjacent to the stream. Mr. Horan informed Petitioner that unless an on-site determination showed the stream to be subject to the exception set forth in 15A NCAC 02B .0233(3)(a), Petitioner would be required to obtain a variance in order to impact the buffer.

11. Mr. Horan, as part of his duties as an environmental technician, performs on-site determinations pursuant to 15A NCAC .0233(3)(a) (“on-site determinations”). Mr. Horan has undergone training through DWQ and has a great deal of experience at performing on-site determinations and is qualified by his training and experience to perform on-site determinations. Mr. Horan scheduled an appointment to perform an on-site determination on the property.

12. On September 21, 2005, Mr. Horan met with Petitioner at the property and

performed an on-site determination using the North Carolina Division of Water Quality Stream Identification Form; Version 3.1. (Respondent’s Exhibit 1) The Stream Identification Form classifies streams as ephemeral, intermittent, or perennial according to biology, hydrology, and geomorphology. The worksheet contains 29 criteria under these 3 categories. Points are allotted for each criteria. A stream is determined to be at least intermittent if it is allotted 19 or more points on this worksheet. A stream is determined to be perennial if it is allotted at 30 or more points on this worksheet. Using the worksheet, Mr. Horan allotted 21.5 points to the stream on Petitioner’s property, and therefore determined that the stream was at least intermittent.

13. On October 24, 2005, Petitioner met with Eric Kulz, an Environmental

Technician in the Regional Office. Petitioner presented Mr. Kulz with a digital printout of an aerial photograph from the Natural Resources Conservation Service (“NRCS”) website, which he claimed was the Wake County soil survey map for his property.

14. Mr. Kulz did not recognize the printout produced by Petitioner. It did not contain the information shown on the 1970 Wake County soil survey map. Mr. Kulz conducted research, which included contacting the Wake County District Conservationist from the NRCS, and discovered that the NRCS was in the process of transferring soil information from the Wake County soil survey map onto more recent aerial photography. Only the soil polygons, and not the stream data from the 1970 Wake County soil survey map was being transferred, and this partial transfer of information into this new format remains ongoing and incomplete. The soil information had not been transferred onto the segment of the map depicting Petitioner’s property which had been printed out by Petitioner and was produced Petitioner during the October 24, 2005 meeting.

15. Mr. Kulz also notified John Dorney, Supervisor of the Wetland Program Development Unit of the Division of Water Quality, of his meeting with Petitioner.

16. Mr. Dorney has been employed by Respondent in various positions involving water quality since 1984. Mr. Dorney regularly administers and takes the class on stream classification and passed the written and field test on stream classification. As part of Mr. Dorney’s duties for his position, he helps develop policy for the Division of Water Quality. Mr. Dorney was staff for the Neuse Buffer Stakeholder Committee that worked on developing the Neuse River Riparian Buffer Rules. The Neuse River Riparian Buffer Rules are part of the Neuse River Basin-Nutrient Sensitive Waters Management Strategy, 15A NCAC 02B .0232 et seq. Development of these Rules was authorized by the legislature in response to problems experienced in the Neuse estuary in the early 1990s as a result of nutrients such as algae blooms, fish kills, and pfisteria entering the estuary. The Neuse River Riparian Buffer Rules are an attempt to manage nutrients entering Neuse tributary streams in order to prevent those nutrients from entering the Neuse estuary. When this Rule was being developed, in researching a method of determining what streams should be subject to the Rule, the Stakeholder Committee determined that together, two sets of maps, the NRCS soil survey maps, and the USGS 1:24,000 scale (7.5 minute) quadrangle topographic maps, captured approximately 95 percent of the stream length in the areas that were studied. In particular, the Committee found that the NRCS soil survey maps more accurately depicted the streams in the areas that were studied than did the USGS maps, and that it was therefore critical to use both maps in order to achieve as well as possible the purpose of the Rule.

17. Upon being informed by Mr. Kulz of his meeting with Petitioner, Mr. Dorney also conducted research on the digital printout presented by Petitioner. Mr. Dorney also learned of the NRCS’s ongoing project of transferring soil information form the older soil survey maps onto more recent aerial photography. Mr. Dorney learned that the majority of the stream data from those older maps would not be transferred as part of this project, and also learned that the project is incomplete, as even the soil information has not been transferred onto the maps that he has seen for Wake County. Mr. Dorney concurred with Mr. Kulz that the map produced by Petitioner was not a new version of the NRCS Wake County soil survey map for his property, but, rather, was a printout showing part of this incomplete project to transfer a subset of the data from the 1970 map. Furthermore, Mr. Dorney conducted research on the possible effect of using these partial transfers under 15A NCAC 02B .0233(3). Using a particular area in Wake County as a study area, Mr. Dorney determined that the 1970 Wake County soil survey showed approximately 32,000 feet of streams in that area, that the USGS map showed approximately 15,000 feet of streams in that area, and that the new NRCS partial transfers only showed approximately 11,000 feet of streams. Mr. Dorney therefore concluded that use of these new partial transfers would subvert the intent of the Rule by dramatically reducing the protection that this Rule was intended to provide.

18. Petitioner subsequently produced a digital printout of a map that he was given by Jennifer Treadway from the NRCS’s Wake County office. This printout is labeled on its face as “Advance Copy, Subject to Change, 1970 Wake County Soil Survey on 1993 Color Infrared Photography.” Ms. Treadway informed Petitioner that this was a transfer of the soil data from the 1970 Wake County soil survey onto more recent aerial photography, and that the stream data had not been and would not be transferred.

19. Based upon the research conducted by DWQ staff regarding the ongoing partial transferring of data from the 1970 Wake County soil survey map onto more recent aerial photography, and based on the purpose and intent of the Neuse River Riparian Buffer Rule, relevant DWQ staff determined that the partial transfers produced by Petitioner are not new versions of the NRCS soil survey map for Wake County, and that the 1970 NRCS Wake County soil survey map remains the most recent version of this map, pursuant to 15A NCAC 02B .0233(3).