HomeMy WebLinkAbout20070168 Ver 1_Court Case Correspondence_20090424()?'_ (4
JOHN S. STEVENS
JAMES W. WILLIAMS
JOHN W. MASON
MARC RUDOW
SHERYL H. WILLIAMS
WILLIAM CLARKE
VINCENT D. CHILDRESS, JR.
MARJORIE ROWE MANN*
GREGORY D. HUTCHINS
JACKSON D. HAMILTON
WYATT S. STEVENS
MARK C. KURDYS*
JACQUELINE D. GRANT
CHRISTOPHER Z. CAMPBELL
PATSY BRISON*
*DRC CERTIFIED MEDIATOR
ROBERTS
STEVENS
ATTORNaya AT LAW
B®6T BUILDING
ONE WEST PACK SQUARE,. STE. 1100 28001
POST OFFICE BOX 7647
ASHEVILL.E, NORTH CAROLINA 28802
TELEPHONE 10881 868.6600
FACSIMILE ISaS1 866-6965
www.robeft-stevene.com
DAVID L. ENGLIGH
CYNTHIA S, GRADY
F. LACHICOTTE "LA CH" ZEMP, JR,
KENNETH R. HUNT
DENNIS L. MARTIN, JR.
KEVIN P. KOPP
M. FRANCES OURDBN
PETER G. Mc WUIRE
REBECCA JOHNSTON REINHARDT
K. DEAN SHATLEY, 11
ANN-PATTON NELSON
CHAD RAY DONNAHOO
LANDON ROSERTS
Writer's Direct I'hnne Ncr.. 828/2/0-6844 t'9 '-aOD9t
Writer's Direct Facsimile: 8181210-6526
Writer's E-mail. shayslen@roherts-stevenr,cant
April 22, 2009
Office of Administrative Hearings
Clerk's Office
6714 Mail Service Center
Raleigh, NC 27699-6714
APR 2 4 2009
DENR • WATER QUALITY
VVWWDSTORMWATERMWII
.fie: Petition for Contested Case, Fall Creek land Company, .Inc. v. NC DENn,
Division of Water Quality; OAH Case # 09 EHR
Dear Sir or Madam:
Enclosed please find an original and two copies of Petition for Contested Case for the
above referenced matter. Please file stamp all and return one of the file-stamped copies to me in
the enclosed self addressed stamped envelope.
Please do not hesitate to contact me if you have any questions or concerns.
Sincerely,
ROBERTS & STEVENS, PA
/sh
Enclosures
cc: Ms. Mary Penny Thompson (w/ enclosure)
Ms. Colleen Sullins (w/ enclosure)
Mr. Todd Black (w/ enclosure)
Sarah C. Hayden
Legal Assistant to William Clarke
I
R&S 674948-1
STATE OF NORTH CAROLINA
COUNTY OF BUNCOMBE
FALL CREEK LAND COMPANY, INC.
PETITIONER,
V.
IN THE OFFICE OF ADMINISTRATIVE
HEARINGS
09-EHR-
PETITION FOR CONTESTED CASE
NC DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES,
DIVISION OF WATER QUALITY
RESPONDENT.
NOW COMES the Petitioner, Fall Creek Land Company Inc. ("FCLC") by and through
counsel, pursuant to North Carolina General Statutes 15013-23, and files this Petition for
Contested Case Hearing. In support of this Petition, FCLC alleges and says as follows:
FCLC is a corporation organized under the laws of the state of North Carolina.
2. FCLC owns approximately 1830 acres of land in southeastern McDowell County,
North Carolina.
FCLC is in the process of developing the property as a residential subdivision known as
Grandview Peaks.
4. FCLC has obtained required subdivision approvals, recorded plat maps and sold lots in
Grandview Peaks.
5. As a part of the Grandview Peaks development, FCLC proposed to construct three
lakes on unnamed tributaries of South Muddy Creek and Hopper's Creek. The lakes were to be
used for fire suppression, irrigation, recreation and aesthetics.
6. FCLC submitted a joint application for a permit under Section 404 of the Federal Clean
Water Act to the United States Army Corps of Engineers ("USAGE") and for a water quality
certification to North Carolina Division of Water Quality ("DWQ") under section 401 of the
Federal Clean Water Act.
7. The permit application was submitted to USACE and DWQ in January, 2007. A copy of
the application is attached hereto as Exhibit A.
8. USACE and DWQ responded to the permit application with multiple requests for
additional information.
R&S 674401-1
9. FCLC, through its consultant and agent, MACTEC Engineering and Consulting, Inc.
("MACTEC"), responded to the requests for additional information and participated in multiple
meetings with DWQ and USACE. Some of the meetings took place on the FCLC property.
Copies of correspondence to and from FCLC, USACE and DWQ are attached hereto and
incorporated herein as Exhibits B and C.
10. In March, 2008, some 14 months after FCLC had applied for the 401 Water Quality
Certification, DWQ issued a sampling protocol for proposed impoundments which required
applicants to demonstrate that a proposed impoundment would meet water quality standards by
sampling other "reference impoundments." The sampling protocol has not been formally
adopted as a rule by DWQ.
11. DWQ, in response to FCLC's application for 401 Water Quality Certification, asked that
FCLC sample reference impoundments in relation to FCLC's proposed impoundments to
demonstrate that the proposed impoundments would not violate water quality standards.
12. FCLC, in response, submitted a proposal to sample water quality in the existing
tributaries and streams to be impounded and proposing best management practices ("BMP's")for
the management and operation of the lakes to ensure the protection of water quality standards.
13. On February 4, 2009, DWQ sent an additional information request letter to FCLC.
14. In early 2009, USACE and DWQ expressed additional concerns about the proposed
impoundments. Representatives of FCLC, MACTEC, USACE and DWQ met in February,
2009, in Asheville to discuss the project and address concerns. DWQ requested that FCLC
consult with the North Carolina Forest Service regarding the use of the proposed lakes for fire
suppression.
15. On February 23, 2009, MACTEC, acting on behalf of FCLC, sent an e-mail requesting
additional time, through March 23, 2009, to respond to the additional information request. DWQ
granted the request.
16. Following the meeting with DWQ and USACE, FCLC obtained additional information
about fire suppression at the request of DWQ and prepared a response to DWQ.
17. On behalf of FCLC, MACTEC sent a letter dated March 23, 2009, to DWQ with the
additional information requested. The additional information indicated that the lakes would be
useful for fire suppression.
18. On March 27, 2009, MACTEC received a letter dated March 24, 2009 from DWQ. The
letter, a copy of which is attached hereto and incorporated herein by references as Exhibit D,
indicates that DWQ received the requested additional information from MacTec, for FCLC, on
March 24, 2009. The letter notes that because the additional information had not been received
by March 23, 2009, the application was being returned, and the applicant will need to "reapply
for DWQ approval."
R&S 674401-1
19. Also, on March 27, FCLC received a letter from DWQ. This letter, also dated March 24,
2009, indicates that the requested additional information had not been received so FCLC's
application was being "returned," and that FCLC would need to reapply. A copy of this letter is
attached hereto and incorporated herein by reference as Exhibit E.
20. FCLC believes and therefore alleges that DWQ's "return" of the permit application,
including the requested additional information, based on timeliness, is an effort by DWQ to
"deny" the application for 401 Water Quality Certification without going through the formal
denial process under which FCLC would be entitled to a Contested Case hearing. DWQ had the
401 application for more than two years when it returned the permit because the requested
additional information was one day late. The requested additional information was actually in
the DWQ office on March 24, 2009, the day DWQ sent out its "rejection" letters.
21. FCLC believes DWQ acted erroneously, arbitrarily and capriciously and in violation of
due process in "returning" the 401 application based on timeliness. FCLC believes and therefore
alleges DWQ acted arbitrarily and capriciously, erroneously and exceeded its authority under the
law because its return of the application based on timeliness was really a denial of the 401. Due
process requires that DWQ state clearly the reasons upon which the denial of the 401 was based
and notify FCLC of its right to file a Petition for Contested Case seeking review of the denial.
22. DWQ acted arbitrarily and capriciously and erroneously and exceeded its authority under
the law by requiring FCLC to satisfy the requirements of a sampling protocol which was
developed and promulgated by DWQ some fifteen months after FCLC applied for a 401. The
sampling protocol has never been adopted as a rule, and there are questions as to its usefulness in
predicting the actual water quality of impoundments.
23. DWQ acted arbitrarily and capriciously, erroneously and exceeded its authority under the
law in refusing to accept and consider additional information tending to show that the proposed
lakes would be of great benefit for use in fire suppression in the area.
WHEREFORE, Petitioner requests the Office of Administrative Hearings as follows:
1. That the Office of Administrative Hearings hold a hearing in this matter on the
allegations in the Petition;
2. That the Office of Administrative Hearings find that DWQ acted arbitrarily and
capriciously and erroneously and exceeded its authority under the law in returning the permit
application;
3. That the Office of Administrative Hearings Order DWQ to reinstate the application for
401 Water Quality Certification, consider the information provided regarding fire suppression
and issue the 401 Water Quality Certification;
4. In the Alternative, that the Office of Administrative Hearings find that the return of
Petitioner's application for 401 Water Quality Certification be deemed a denial of the 401, that
OAH find that DWQ acted arbitrarily and capriciously, erroneously, in violation of due process
R&S 674401-1
and exceeded its authority under the law in so denying the permit, and that DWQ be ordered to
issue the 401 Water Quality Certification;
5. For such other and further relief as to the Office of Administrative Hearings may seem
just and proper.
Respectfully submitted this ZZ day of April, 2009.
ROBERTS & STEVENS, P.A.
'Ia. - - d-?
WILLIAM CLARKE
Attorney for Petitioner
P.O. Box 7647
Asheville, NC 28802
(828) 252-6600
NC State Bar No. 10278
R&S 674401-1
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true copy of the foregoing Petition for Contested
Case was served upon the Respondents and/or persons indicated below in this contested case by
placing a copy thereof in the United States Mail, postage prepaid, addressed as follows:
Ms. Mary Penny Thompson
Division of Water Quality
NC DENR
1601 Mail Service Center
Raleigh, NC 27699
Ms. Colleen H. Sullins, Director
Division of Water Quality
NCDENR
1650 Mail Service Center
Raleigh, NC 27699-1650
THIS the-Z2c.Q day of April, 2009.
/' /., - 6 ? ?(-- ;_" /
Wi liam Clarke
Attorney for Petitioner
R&S 674401-1