20061245 Ver 3_Public Notice_20080319

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DEPARTMENT OF THE ARMY
Wilmington District, Corps of Engineers DENR-WAi<x, a.+h.. rr
Post Office Box 1890 WM ANDS AND STCk7MVs ER WA MM
Wilmington, North Carolina 28402-1890
Action ID No. 200703775 March 7, 2008
PUBLIC NOTICE
INTERESTED PARTIES: The District Engineer, Wilmington District, proposes
to issue an order assessing a Class I Administrative Penalty against the Riversound
Development for a violation of permits granted under Section 404 of the Clean Water
Act.
PERMITS INVOLVED AND ALLEGED VIOLATION: The Department of
the Army issued Nationwide Permit No. 14 (Action ID 200632436) on September 11,
2006, and Programmatic Regional General Permit No. 198000291 (Action ID
200640764) on October 11, 2006. These permits authorized the development of a
residential subdivision, including the construction of access roads and a boatramp, on
property at the Riversound Development, located off the north side of State Road 1100,
approximately 1.2 miles east of NC Highway 32, adjacent to the Yeopim River and
Middleton Creek, near Edenton, in Chowan County, North Carolina.
Permit Nos. 200632436 and 200640764 were violated as follows:
Riversound Development failed to comply with special condition 2. of the subject
permits, which state that, "No excavated or fill material shall be placed at any time in any
vegetated wetlands or surrounding waters outside of the alignment of the fill areas
indicated on the attached work plan drawings (File number 06-015, dated 7-27-06, titled
Waterfront Group Riversound Project)."
The subject permits also state that "Your work is authorized by the above
referenced permit provided it is accomplished in strict accordance with the
attached conditions and your submitted plans (File number 06-015, dated 7-27-06,
titled Waterfront Group Riversound Project)."
The permit also states that "The permittee shall preserve and maintain 133.64 acres of
Department of the Army jurisdictional wetlands as surveyed on the attached plat titled
Wetland Boundary Survey Plat on Phase 1 of Riversound. The permittee is prohibited
from performing any of the following activities on the property: Filling; grading;
excavating; earth movement of any kind; construction of roads, walkways, buildings,
signs; or any other structure; any activity that may alter the drainage patterns on the
property; the destruction, mowing, or other alteration of vegetation on the property;
disposal or storage of any garbage, trash, or other waste material; or any other activity
which would result in the wetlands being adversely impacted or destroyed."
Riversound Development constructed additional access roads on the property
outside of the alignment of the authorized roadways without complying with these permit
conditions. The violations were also within the preservation area required by the permit.
The roadways remained in place for approximately 29 days before the project site was
restored.
AUTHORITY FOR PROCEEDING: This Administrative Penalty proceeding
is initiated under the authority of 33 U.S.C. 1319(g) and 33 CFR Part 326.6. The
procedure for assessing civil penalties in cases such as this is set out in the statute and the
regulation. Following the discovery and investigation of a violation of a permit, notice is
given to the permittee, the appropriate state agency, and the public. The permittee, the
state, or any member of the public may file comments within 30 days. If requested by the
permittee, a hearing will be held before a Presiding Officer who will submit a report and
recommend a decision to the District Engineer. The District Engineer will issue a Final
Order on the case to the permittee. Public participation in the hearing is permitted if a
hearing is held.
PENALTY PROPOSED: The amount of the penalty proposed in this case is
$27,500. This proposal is subject to revision in the interest of justice after all evidence
and comments have been received and reviewed. The amount of the penalty that the
District Engineer is authorized to assess as a Class I Penalty is $11,000 per violation and
not more than $27,500 total. In a case involving multiple violators, each violator is
subject to a separate, not joint, penalty.
REQUEST FOR HEARING: The permittee has 30 days following receipt of
this formal notice of proposed penalty to request a hearing. Written request, by the
permittee, for a hearing should be directed to the District Engineer within this designated
comment period and must state the specific reasons for requesting a public hearing. The
request should specify, in summary form, the factual and legal issues in dispute and the
specific grounds for defense. The permittee has a right to present evidence at the hearing;
however, he may not challenge the permit condition or limitation, which is the subject
matter of this order.
COMMENTS/ADMINISTRATIVE RECORD: During the 30 day comment
period, any person may submit written comments on the proposed Penalty Order. These
comments should be sent to the District Engineer by 4:30 p.m., April 7, 2008. Any
submitted comments will be included in the administrative record relating to the
Proposed Order. All information submitted by the permittee and persons commenting on
the Proposed Order will be placed in the administrative record, which will be available
for inspection during regular business hours at the U.S. Army Corps of Engineers,
Wilmington District, 69 Darlington Avenue, Wilmington, North Carolina. (The
administrative record is subject to the provisions of law restricting the disclosure of
confidential information.) Comments should be directed to:
U.S. Army Corps of Engineers
ATTN: Justin McCorcle (CESAW-OC)
PO Box 1890
Wilmington, North Carolina 28402
PUBLIC HEARING: The permittee and all persons who file comments will be
given notice of any hearing held on this case. The permittee and all commenters will
have a reasonable opportunity to be heard and to present evidence at such hearing, if a
hearing is held.
FINAL DECISION: If the permittee does not request a hearing, the District
Engineer may issue the Final Order on this violation on or after 30 days following receipt
of this formal notice by the permittee.
POST DECISION HEARING/APPEAL: Any Final Order issued under these
procedures shall become effective 30 calendar days following its issuance unless (1) a
petition to set aside the order and to hold a hearing is filed by any person who
commented on the Proposed Order and the petition is granted, or (2) an appeal to the
United States District Court is taken under 33 U.S.C. 1319(g)(8).
Permit: USACE Permit Nos. 200632436 and 200640764
PROPOSED ADMINISTRATIVE PENALTY ORDER
Under the authority granted by 33 U.S.C. § 1319(g) and 33 CFR Part 326.6, I,
Colonel John E. Pulliam, Jr., District Engineer, Wilmington District, propose to issue this order
assessing a Class I Administrative Penalty for violation of the above-referenced permits.
Name/Address of Permittee:
Riversound Development
C/O Mr. Elliot Harwell
17505 West Catawba Avenue, Suite 350
Cornelius, North Carolina 28031
Permitted Activity:
The discharge of earthen fill material within Department of the Army (DA) jurisdictional
wetlands to facilitate the development of a residential subdivision, including the construction of
access roads and a boatramp, on property at the Riversound Development, located off the north
side of State Road 1100, approximately 1.2 miles east of NC Highway 32, adjacent to the
Yeopim River and Middleton Creek, near Edenton, Chowan County, North Carolina, consistent
with the application and plans for USACE Permit Nos. 200632436 and 200640764.
Condition(s) or Limitation(s) of Permit Reportedly Violated:
Riversound Development failed to comply with special condition 2. of the subject permits, which
state that, "No excavated or fill material shall be placed at any time in any vegetated wetlands or
surrounding waters outside of the alignment of the fill areas indicated on the attached work plan
drawings (File number 06-015, dated 7-27-06, titled Waterfront Group Riversound Project)."
The subject permits also state that "Your work is authorized by the above referenced
permit provided it is accomplished in strict accordance with the attached conditions and
your submitted plans (File number 06-015, dated 7-27-06, titled Waterfront Group
Riversound Project)."
The permit also states that "The permittee shall preserve and maintain 133.64 acres of
Department of the Army jurisdictional wetlands as surveyed on the attached plat titled
Wetland Boundary Survey Plat on Phase 1 of Riversound. The permittee is prohibited
from performing any of the following activities on the property: Filling; grading;
excavating; earth movement of any kind; construction of roads, walkways, buildings,
signs, or any other structure; any activity that may alter the drainage patterns on the
property; the destruction, mowing, or other alteration of vegetation on the property;
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disposal or storage of any garbage, trash, or other waste material; or any other activity
which would result in the wetlands being adversely impacted or destroyed."
Description of the Nature of the Violation(s):
On October 24, 2007, RG-W staff met onsite with the owner and their consultants to review a
jurisdictional determination on the property. During the review of the jurisdictional
determination, it was discovered that three additional road crossings had been constructed on the
property that were not in compliance with the issued permits. On October 29, 2007, RG-W staff
contacted the permittee and their consultants by telephone and informed them that they were not
in compliance with the original permits, and that they had undertaken work within areas
identified as part of their Conservation Easement.
The roadways remained in place for approximately 29 days before the project site was restored.
I propose to assess a Class I Administrative Penalty against the permittee in this case for
$27,500; however, this proposal is subject to revision in the interest of justice after all evidence
and comments have been received and reviewed. The amount that may be assessed as a Class I
Administrative Penalty may not exceed $11,000 per individual violation or a maximum amount
of $27,500.
Issued this ?&day of March 2008.
John E. Pulliam, Jr.
Colonel, U.S. Army
District Commander