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C. E. BROOKS & ASSOCIATES, P.C. <br />Timothy Flanagan <br />August 14, 2012 <br />Page 2 <br />The land owned by Mr. Orr is one of the areas that was historically dry but is now flooded <br />and contains wetland vegetation. Contrary to the statement in your letter, Mr. Orr's property was <br />not always marshy. An aerial photo dated January 2004 clearly shows dry land and live trees on the <br />northwest part of the property. Then a photo dated June 2009 shows about 2.50 acres of the property <br />covered in water or wetland vegetation. A more recent Google Earth aerial photo from 2011 shows <br />substantial areas of standing water throughout the land at issue, as well as a number of large dead <br />trees in the northwest section. Further, the data from a monitoring well just west of Mr. Orr's <br />property shows that in 2004 the ground water was 7.50 feet below the surface. After the installation <br />of the slurry wall in 2005, the water was only 18.6 inches below the surface. By 2006, the water was <br />three inches above the ground's surface. Mr. Orr's property is now saturated and flooded, making <br />it unusable. <br />Environmental, Inc. also concluded that the slurry wall is causing the changes to the ground <br />water table and flooding after it investigated the matter for Mr. Orr in March of 2011. Aggregate <br />Industries even admitted that this was happening as early as June 2005, soon after the slurry wall was <br />installed. In one of Aggregate Industries' monitoring reports it noted a "substantial amount of water <br />in relocated ditch due to slurry wall." Then on April 27, 2012, Aggregate Industries' engineering <br />consultant, Tetra Tech, concluded in its technical revision request that the excess water was likely <br />caused by the combination of the "mounded ground water on the upgradient side of the slurry wall <br />and discharges into the Bull Seep from the Fulton Ditch." <br />Not only did the slurry wall constructed by Aggregate Industries cause the changes to the <br />ground water table and the flooding, but Aggregate Industries has been acting outside of its mining <br />permit. Aggregate Industries has failed to minimize the disturbances to the quality and quantity of <br />water in surface and ground water systems during mining ( §34- 32.5- 116(4)(h)) and failed to protect <br />areas outside of the mining area from slides or damages ( §34- 32.5- 116(4)(I)). The DRMS therefore <br />directed Aggregate Industries to restore the property to the pre -slurry wall condition and return the <br />ground water table to its historic elevations as a technical revision to its mining permit. <br />The findings in the DRMS report that Aggregate Industries is the cause of the flooding on <br />Mr. Orr's property also supports a finding of liability. Mr. Orr is entitled to recover for any losses <br />he has suffered and also entitled to rental payments as long as his land is occupied by the water. <br />Slovek, 723 P.2d at 1317 -18 (The loss of the use of property is normally expressed in terms of a loss <br />of the owner's ability to receive rent.). The rental value of the Mr. Orr's land if it were not a <br />wetlands would be $7,500 a month and this rental should run from January of 2010, for a total of <br />$232,500 in back rent. Monthly payments of $7,500 should be made thereafter until the property is <br />restored by Aggregate Industries through its installation and implementation of the pump station. <br />