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Home My WebLink About20010404 Ver 3_Other Agency Comments_20070820DEPARTMENT OF THE ARMY WILMINGTON DISTRICT, CORPS OF ENGINEERS P.O. BOX 1890 WILMINGTON. NORTH CAROLINA 28402-1890 REPLY TO OF: August 13, 2007 Regulatory Division 406,9 0 ?o 0J NOS qh?S? FR?? oR?w'9'?Rep "dry Action ID 1993-005709 US 1 Improvements, Moore/Lee Counties, North Carolina, State Project Number 8.T560302, TIP No. R-210A. Dr. Gregory J. Thorpe, PhD, Manager Project Development and Environmental Analysis Branch North Carolina Department of Transportation 1548 Mail Service Center Raleigh, North Carolina 27699-1548 Dear Dr. Thorpe: This is in response to your letter dated July 20, 2007, concerning the non-compliance of Department of Army (DA) permit conditions for the mitigation site at R-210C sites 4&5, centerline station 28+75 through 31+50. In my letter dated 3 July 2007, I identified three corrective actions in which to bring the project into compliance with the issued DA permit. I have listed the corrective actions below for your convenience. A scope of work for the removal of the unauthorized structures and complete restoration of the mitigation site shall be submitted to this office within 30 days of receipt of this letter. The scope of work shall include a plan indicating the methods to be used to remove the rip-rap portions of the structure and restoration of pre- disturbed contours. The scope of work shall include a plan for controlling sediment and erosion within the work area so that there is not an appreciable release of sediment to the down gradient receiving waters and that any discharge of dredged material will meet the State of North Carolina's effluent standards. The scope of work shall include the restoration of vegetation that was present before the unauthorized construction and a work schedule for completion of each phase of the work. The work schedule shall also include the timing for the removal of all erosion and sediment control measure and a five year monitoring plan to commence upon completion of the restoration project. The scope of work shall also include an as-built plan of the restoration, including wetlands and buffer. The stream channel survey should match the as-built channel survey plan for the original mitigation site as required by Special Condition 2.b.ii. No work shall be undertaken until the Corps of Engineers has approved the restoration scope of work and schedule. 2. All sediment and erosion control measures placed in the mitigation site shall be removed, and natural grades in those areas shall be restored prior to project completion. MW -2- 3. Mitigation for 100 linear feet of disturbed stream channel and 0.03 acres of disturbed wetlands that have occurred as a result of the unauthorized activity shall be provided by payment to the North Carolina Ecosystem Enhancement Program (NCEEP) in an amount determined by the NCEEP sufficient to perform 200 linear feet of warm water stream and 0.06 acres of riparian wetlands mitigation in the Cape Fear River Basin. The NCDOT shall, within 30 days of the issue date of this letter, certify that sufficient funds have been provided to EEP to complete the required mitigation. It was further requested that you indicate your intentions and willingness to implement the corrective actions mentioned above and bring the project back into compliance. Your letter of July 20, 2007, only partially addresses what was requested. Since no member of my staff or I attended the field meeting held on June 29, 2007, I can neither comment on nor accept any concession that may have been agreed upon at that meeting. I recognize that soil instability will be an issue with the restoration of this mitigation site. However, I will reiterate that a complete restoration is required and you must implement what ever measures necessary to control sedimentation and erosion, including but not necessarily limited to diverting stream flow around the restoration work and working in the dry. Until the restoration work has been completed and the project deemed in compliance with permit conditions, the consideration of any proposed work or structures that would be located within the mitigation site would be inappropriate. Further, any proposed work or structures located outside the mitigation site and outside any jurisdictional areas would not require Department of the Army authorization or approval. For, clarification, the mitigation boundaries on this site would be from the toe of the fill slope to the edge of the right-of-way and from centerline station 28+75 to 31+50. As you know, the Wilmington District has accepted on-site mitigation at a one to one mitigation ratio and without imposing conservation easements because of the implied commitment by NCDOT to protect the mitigation sites within the highway right-of-way in perpetuity. The failure to diligently fullfill this commitment by NCDOT may jeopardize the way the Wilmington District will evaluate these on-site proposals in the future. Your prompt attention and response to the issues identified in this letter is required and we again request that you confirm your intentions and willingness to implement the corrective actions mentioned above within 10 days after receiving this letter. If you fail to act on the matters as prescribed above to resolve the non-compliance issue, I will consider seeking immediate legal action. Additionally, as you may recall from my July 3, 2007 letter, administrative penalties are also being considered against you for your failure to comply with the conditions of the issued Department of the Army permit. -3- Should you have any questions or wish to discuss this matter further, please contact Richard K. Spencer at the Wilmington Field Office, Regulatory Division, at telephone (910) 251- 4172. Sincerely, I)i-14 #?- S. Kenneth Jolly Chief, Regulatory Division Copies furnished: W. F. Rosser, PE State Highway Administrator North Carolina Department of Transportation 1536 Mail Service Center Raleigh, North Carolina 27699-1536 Mr. John Hennessy North Carolina Dept. of Environment & Natural Resources Div. of Water Quality Mail Service Center 1650 Raleigh, North Carolina 27699-1650 Brian Wrenn North Carolina Dept. of Environment & Natural Resources Div. of Water Quality Mail Service Center 1650 Raleigh, North Carolina 27699-1650 Mr. Ken Averette North Carolina Dept. of Environment & Natural Resources Div. of Water Quality 225 Green Street, Suite 714 Fayetteville NC 28115 Mr. Art King Division Environmental Officer North Carolina Department of Transportation, Division 8 P.O. Box 1067 Aberdeen, North Carolina 28315-1067 -4- Mr. Tim Johnson, PE Division Engineer North Carolina Department of Transportation, Division 8 P.O. Box 1067 Aberdeen, North Carolina 28315-1067