20051672 Ver 1_More Info Received_20060119

ATTORNEYS AT LAW
~ RALEIGH OFFICE
3200 BEECHLEAF COURT
SUITE 500
RALEIGH, NC 27604- 1064
TELEPHONE [phone]
TELEFAX 919.981 .4300
MAILING ADDRESS
POST OFFICE BOX 19764
RALEIGH. NC 27619-9764
WWW.MAUPINTAYLOR.COM
REPLY TO RALEIGH OFFICE
KURT J. OLSON
kolson @ma upi ntaylor. com
919.981.4084
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John E. Pulliam, Jr.
Colonel, U.S. Army
District Commander
Department of the Army
Wilmington District, Corps of Engineers
P. O. Box 1890
Wilmington, NC 28402-1890
Re: Action ID 200500470 (McKnight)
Action ID 200500471 (Wheeler)
Dear Colonel Pulliam:
RTP OFFICE
480 BETA BUILDING
HEADQUARTERS PARK
2222 CHAPEL HILL-NELSON HWY.
DURHAM, NC 27713
TELEPHONE [phone]
TELEFAX 919.361 .2262
MAILING ADDRESS
POST OFFICE BOX 13646
RESEARCH TRIANGLE PARK, NC
27709-3646
WILMINGTON OFFICE
LANDFALL PARK NORTH
1985 EASTWOOD ROAD
SUITE 200
WILMINGTON, NC 28403
TELEPHONE [phone]
TELEFAX 910.256.6451
This firm represents Terry and Katherine McKnight and Bruce and Tammy Wheeler in
the above referenced actions. I am writing to inform you that the McKnights and Wheelers have
appealed the North Carolina Division of Water Quality's decision to deny their respective
requests for a Section 401 Water Quality Certification supporting their applications for after-the-
fact permits to allow certain fill material to remain in place at their residences. As such, we
request that the Corps of Engineers temporarily stay the requirement that the McKnights and
Wheelers remove the fill material by January 20, 2006, and refrain from referring this matter to
the U. S. Attorney or U. S. Environmental Protection Agency for further action until the appeals
are resolved.
In this regard, we note that the Division of Water Quality's primary reason for denying
the 401 Certification is its conclusion that the fill was placed by someone (not the McKnights or
Wheelers) in violation of certain restrictive covenants agreed to by the original site developer. If
this were the appropriate standard, however, no after-the-fact permit would ever be issued. By
its very nature, an after-the-fact permit involves a situation where laws, rules or restrictions were
initially violated. Consequently, to say that the after-the-fact permit cannot be issued because the
original action violated a law, rule or restriction, sets up a standard that cannot be met.
RALEIGI-n481797- 1
January 18, 2006

John E. Pulliam, Jr.
January 18, 2006
Page 2
For this reason and others, we believe the McKnights and Wheelers have a substantial
likelihood of succeeding on their appeals, and we ask that the Corps await the outcome of these
proceedings before taking further action.l
Very truly yours,
~~~ " D.,~,-.
Kurt J. Ols n
cc: Mr. and Mrs. Terry McKnight
Mr. and Mrs. Bruce Wheeler
Dr. Jay H. Carter
See attached list
` We also are aware of the letter from Keith Harris, Chief, Regulatory Field Office, Wilmington District,
USACOE, advising the McKnights and Wheelers that due to comments received during the public notice period, it
was unlikely that the Corps would issue the after-the-fact permits even if the 401 Water Quality Certifications had
been issued. We intend to address the issues raised in the comments Mr. Harris refers to in a supplemental
application following the appeals.
RALEIGI~481797_ 1