20010404 Ver 3_General Correspondence_20091119 (4)

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
REPLY TO
ATTENTION OF
November 17, 2009
Regulatory Division
ORM ID 199300570, TIP R-210, US 1 Relocation
Gregory J. Thorpe, Ph.D.
Environmental Management Director, PDEA
N.C. Department of Transportation
1548 Mail Service Center
Raleigh, NC 27699-1548
Dear Dr. Thorpe:
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We were recently made aware by your staff that activities undertaken by the
current owner of the Sandhills Area Land Trust property (Property) may have
compromised the terms and conditions of the Conservation Easement (1998 Easement)
that was granted to the NC Department of Transportation (NC DOT) by the Sandhills
Area Land Trust (SALT) on July 13, 1998. By way of background, the property is
approximately 327 acres and is adjacent to the Little River, near Lobelia, Moore County,
North Carolina. NC DOT funded its acquisition by SALT order to compensate for
impacts to streams and wetlands caused by the improvements to US Route I (TIP R-210),
authorized by Department of the Army Permit 199300570.
On September 1, 2009 I made a site visit to the property for the purposes of
determining whether the terms and conditions of 1998 Easement had been violated. Also
present at this meeting were Ms. LeiLani Paugh and Mr. Randy Griffin of NC DOT and
Mr. Brian Wrenn of the NC Division of Water Quality. The site inspection revealed that
approximately 0.5 miles of the existing logging road has been improved with a mixture of
clay and gravel. Although it is difficult to tell the extent of road-grade modification,
there is no doubt that these actions have improved the road to the extent that vehicular
traffic can easily access the entire Property. In addition, these actions, coupled with the
installation of several new cross pipes 6- to 12-inches in diameter, may have facilitated
the removal of water from the site. Finally, it was apparent that mowing and cutting of
vegetation was occurring on various portions of the property, including the removal of a
6"DBH cypress tree on the existing trail to the Little River. According to information
provided by Mr. Griffin and Ms. Paugh, as much as 150 loads of material may have been
brought on to the Property, some of which may have been discharged in to wetlands.
These actions are clearly inconsistent with the use of the site as compensatory mitigation;
to the extent that fill has been placed into wetlands or waters, they also represent
violations of the Clean Water Act.
It appears that several conditions of the 1998 Easement have been violated. Specifically, I
note that the following conditions appear to have been violated:
Condition 3 (c) prohibits "any alteration of the surface of the land including,
without limitation, the excavation or removal of soil...." The activities conducted on the
road, including the installation of new pipes, violate this condition.
Condition 3 (e) prohibits the "draining, filling, dredging, or diking of the wetland
areas...." The installation of pipes under the road has contributed to the draining of
wetlands in the mitigation area.
Condition 3 (g) prohibits "the pruning, cutting down, or other destruction of live
trees except as necessary... to prevent [substantial] hazard disease, or fire...." Vegetation
has been cut in violation of this condition.
Condition 4 (d) allows the construction of a trail specifically for horses and a
wagon, but only if such trail does not jeopardize the mitigation, and only with the
approval of the USACE and the DWQ. If the activity on the Property noted above
intended to create such a trail, it fails to meet both requirements; neither agency was
contacted to obtain its approval, and the road, as constructed, does indeed jeopardize the
mitigation.
The situation on the Property appears to have been worsened by the granting of
another Conservation Easement over the property between Guyencourt, LLC, and SALT,
executed on September 17, 2003 (the 2003 Easement). Several of the provisions in this
new conservation easement appear to either directly or indirectly conflict with the 1998
Easement. Specifically, the conditions relating to canoe access, pedestrian trails, horse
trail, and prohibited uses improperly modify the conditions in the underlying 1998
Easement. It is our understanding that, since the 1998 Easement was recorded first, the
conditions of the 1998 Easement would supersede any conflicting language in the 2003
Easement.
In addition, these activities are in direct violation of condition 5.f of the permit
(Action ID 199300570) that was issued to NC DOT for the construction of R-210.
Specifically this condition states that:
No improvements shall be initiated on the logging road that bisects the site. This
includes changing the existing grade, maintenance grading, widening and/or paving.
Stabilization of the road embankments to prevent erosion shall be accomplished by re-
vegetation measures only. No structural armoring shall be initiated.

We realize that these activities have been undertaken without your consent or
knowledge, but they do represent a violation of the 1998 Easement, and some of these
activities are also violations of the Clean Water Act. Condition 5 (k) of your permit
requires that you enforce the terms of the 1998 Easement. In order to remain in
compliance with your permit, we ask that you take the following actions within 90 days
of your receipt of this letter:
1. Insure that any material that has been placed in wetlands, specifically on or
adjacent to the road, is removed. If any material is to remain on the road (in or out of
wetlands), it must be specifically approved by USACE and DWQ.
2. Insure that all cross pipes under the road are removed.
3. Insure that no further cutting of trees occurs on the property, other than that done
in compliance with the 1998 easement.
4. Inspect the property to determine whether other easement conditions have been
violated, and take action to remedy any other violation.
5. Take appropriate legal action to amend or invalidate any portion of the 2003
Easement that is in conflict with the terms of the 1998 Easement.
We appreciate your cooperation in this matter, and will work with you to help
bring it to a satisfactory resolution. Questions or comments regarding this correspondence
may be directed to the undersigned at [phone].
Regulatory Division
Copies furnished:
Mr. Brian Wrenn
Water Quality Sec on
North Carolina Division of Environment
and Natural Resources
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Mr. J. J. Barnes, Jr
115 Drake Street
Post Office Box 1741
Fayetteville, North Carolina 28302
Assistant Chief