19880024 Ver 1_COMPLETE FILE_19880422

State of North Carolina
Department of Natural Resources and Community Development
Division of Coastal Management
512 North Salisbury Street • Raleigh, North Carolina 27611
James G. Martin, Governor David W. Owens
S. Thomas Rhodes, Secretary Director
June 29, 1988
Colonel Paul W. Woodbury
District Engineer
Wilmington District
U.S. Army Corps of Engineers
P.O. Box 1890
Wilmington, NC 28402-1890
Dear Colonel Woodbury:
The State has completed its review of the Corps Public Notice
No. SAWC088-N-028-0249 concerning a proposal by Buxton Woods
Partnership to place fill material in freshwater wetlands to
construct an access road into Buxton Woods, Dare County, North
Carolina.
During the course of our review, we have received an objection
to the proposed project from the Division of Parks and
Recreation and substantive comments from several state
agencies and members of the public including the NC Wildlife
Resources Commission, NC Division of Land Resources, NC
Division of health Services, and the NC Division of Archives &
History. The Division of Parks & Recreation, Natural Heritage
Program (NHP) is concerned that the four wetland fills and
associated construction will change the existing character of
freshwater we?and "sedges" located in what the division
considers the ecologically most significant section of Buxton
Woods-- a "nationally significant" maritime forest system.
According to NHP, these wetlands are unique variants of their
community type, occurring nowhere else in North Carolina or
other nearby states. They recommend that mitigation be
factored into the project as developed.
The NC Wildlife Resources Commission recommends avoiding the
loss of wetland habitat by constructing elevated bridges for
the proposed access road over all wetlands. It is our
understanding that bridges can be constructed in a manner
which is not subject to the Corps' jurisdiction, an
alternative that was described in a letter to the applicant
from Charles Hollis dated June 10, 1988. The NC Division of
Health Services recommends that if filling occurs, that
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adequate drainage and water flows bQ: maintained through the
proposed culvert systems. The NC Division of Archives and
History advises that there is a high probability that both the
areas to be filled, and the areas from which fill is to be
obtained, contain potentially significant archaeological
resources.
The NC Division of Coastal Management is concerned with the
potential loss of unique freshwater wetlands in an area that
the NC Coastal Resources Commission (CRC) found eligible for
Area of Environmental Concern (AEC) designation status as a
"coastal complex natural area." Although AEC designation was
tabled following the Dare County's adoption of a special
environmental zoning district for Buxton Woods, the CRC
continues to monitor development activities and their impact
on the maritime forest and Cape Hatteras Well Field AEC.
Dare County has classified the project area as a "limited
conservation" area in its proposed land use plan update.
According to the plan, "Existing natural wetlands, ponds, and
swales within the lands included in the Limited Conservation
Class shall not be dredged, filled, or otherwise altered."
This land use plan update has been approved by the Dare County
Planning Board and will be sent to a public hearing in August,
1988. After the public hearing, the plan will be brought
before the NC Coastal Resources Commission for approval and
then submitted to the U.S. Department of Commerce for
incorporation into the approved North Carolina Coastal
Management Program. However, there is some potentially
conflicting language in the "Special Environmental District"
zoning guidelines developed recently by the County for the
Buxton Woods area which will need to be clarified prior to
final land use plan approval.
It is our understanding that the applicant has agreed to make
the proposed access available to adjacent property owners
which will help reduce the Dotal number of accessways
involving wetland crossings in the general area. We also
understand that the applicant is currently negotiating
potential mitigation with the corps for other project
proposals in the area.
Based upon our review, we cannot disagree with the applicant's
determination that the proposed project is consistent with the
North Carolina Coastal Management Program provided that the
following conditions are met by the applicant:
1. The developer or contractor notify the Department of
Cultural Resources prior to ground disturbance so that
representatives of the Historic Preservation Office may have
an opportunity to monitor construction activities.

DEPARTMENT OF THE ARMY
?I WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
August 1, 1988
IN REPLY REFER TO
Regulatory Branch
SUBJECT: File No. SAWCO88-N-028-0249
Mr. William Mills
Water Quality Section
Division of Environmental Management
North Carolina Department of Natural
Resources and Community Development
Post Office Box 27687
Raleigh, North Carolina 27611-7687
Dear Mr. Mills:
R C
This is in response to the application by Buxton Woods Partnership to
construct an access road in wetlands, in the Buxton Woods, Buxton, Dare
County, North Carolina.
The applicant has proposed to mitigate for the proposed wetland losses
through creation of new wetlands as explained in submittals dated June 24
and July 25, 1988 (copies enclosed). Please provide any comments on the
proposed mitigation by August 12, 1988.
If you have any questions or comments, contact Ms. Alison Arnold at
[phone].
Sincerely,
a e W. H 1 's
' tU
Chie Regula ry Branch
Enclosures

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Junne 24, 1988 JUN 2 7 1988
Ms. Allison Arnold REGULATORY BRANCH
Us Army Corp of Engineers
Regulatory Branch
PO Box 1890
Wilmington, NCB, 28402 ?
RE: Application for Wetland Crossing in Hatteras Pines Project.
Dear Ms. Arnold,
In this letter I would like to restate some of the topics
discussed with you June 23, 1988 at the site of the Hatteras Pines
Project in Buxton, NC. The Buxton Woods Partnership requests that
the Corps consider a proposal to create or enhance a wetland area.
As you can see from the drawing which we have enclosed, there
is an existing borrow pit. We propose to place the brush from our
road clearing activities into the borrow pit, then fill on top of
the brush with soil so as to leave unfinished elevation near that.
of the water table. This finished elevation would create a suitable
setting for a productive wetland. The area of water that would be
converted into a marsh would be 100' by 1501. The existing grassy
area adjacent to the borrow pit is of a high enough elevation that
it would need to be lowered to an elevation nearer that of the
water table in order to be a productive wetland. We propose to
lower a 140' by 150' portion of this grassy area. The total area
we propose to enhance to provide a productive wetland is 36,000
square feet.
The area on the enclosed drawing outlined in red is the area
we have under contract to purchase from the current owner. If the
Corps of Engineers finds this proposal acceptable we will close on
the property and take possession within 7 days of being notified
and will start work immediately.
Sincerely,
R. Stewart Couch
Partner
Buxton Woods Partnership
RSC/ibm
Enclosure
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,1111 2S 1988
REGULATORY URAN,?H
Ms. Allison Arnold
Army Corps of Engineers
PO Box 1890
Wilmington, NC 28402
Dear Ms. Arnold,
PO Box 175
Avon, NC 27915
I have enclosed a revised mitigation plan for the Hatteras
Pines project. Since the submission of the original plan, we have
purchased the property from the Wilson's. The only change we have
made is keeping the two 20' wide fingers of high land. The
fingers will be used in conjunction with bridges to access the
adjoining property in the event that the adjoining property
owner wishes to gain access to his high land at some future date.
I have sent a copy of this plan to Rich Shaw for his comments
If you have any questions please do not hesitate to call.
Sincerely,
R. Stewart Couch
Buxton Woods Partnership
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Southern Environmental Law Center
137 EAST FRANKLIN STREET SUITE 30 CHAPEL HILL, NC 27514 [phone] or [phone]
j l ?? `. ?G ? Regional Office
•" /G 201 West Main Street, Suite 14
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Charlottesville, VA 22901-5033
?? a L [phone]
August 11, 1988
P111-
k Charles W. Hollis, Jr. AUG 1'71988
Mr. c?
Chief, Regulatory Branch?g_?
II.Efry1RrIENTALMAEMft
Wilmington District
Corps of Engineers Raleigh, NC
Department of the Army 2 9 k
P. 0. Box 1890 AUG 22 1988
Wilmington, NC 28402-1890 'IlA TCL '
WATER QUALITY
RE: Buxton Woods Partnership, File No. SAWC088-N-028-0249 SECTION
Dear Mr. Hollis:
By letter dated August 1, 1988, you informed me that the appli-
cant for the above-referenced permit has offered to mitigate
proposed wetland losses through creation of new wetlands. While
I appreciate your allowing me the opportunity to comment on this
proposal on behalf of Friends of Hatteras Island (FOHI), I submit
the discussion of mitigation is wholly unnecessary and inappro-
priate here insofar as proper application of the Section
404(b)(1) guidelines mandates a denial of the permit application.
More specifically, a practicable alt6rnative to the proposed
fills, i.e., construction of bridges, exists which would result
in less adverse impact to the wetlands. Thus, as I shall explain
below, the permit cannot lawfully be granted. Before proceeding
further with discussion of any mitigation, I strongly encourage
the Corps to review carefully its legal obligation to consider
practicable alternatives and deny the permit application.
I should note that the practicable alternatives issue was raised
in Section II of FOHI's comments to the Corps dated June 17,
1988. At that time, as now, FOHI took the position that the
Corps should consider the total project, i.e., the federal action
of permitting the fills and its direct and indirect effects
including the inducement of upland development, and the practica-
ble alternatives to the total project. While FOHI maintains this
position, I am also aware that the Corps is intent on focusing
more narrowly only on the wetland fills. Accordingly, I will
herein discuss the application of the practicable alternatives
regulation in relation to the proposed fills. The legal and
practical result should be the same regardless of the focus of
the alternatives analysis. The permit should be denied.

Al
L. Construction of a means of access to an upland site is not
a "water dependent" activity.
By regulation, activities are "not water dependent" when they do
"not require access or proximity to or siting within the special
aquatic site in question to fulfill their basic purpose." 40
C.F.R. 201.10(a)(3). Conversely, "water dependent" activities do
require such access, proximity or siting. commonly recognized
examples of water dependent activities are docks, piers, and
marinas. By their very nature, and to fulfill their basic
purpose, these activities must be in an aquatic site. By
contrast, the means of access to the upland site in question here
does not require such siting to achieve its purpose. Unlike a
pier, dock, or marina, siting the road access in the wetlands is
not inherently necessary to achieve its purpose. Thus, the
access way is not a water dependent activity.
2. Practicable alternatives to non-water dependent activities
are presumed to be available and, furthermore, are presumed
to have less adverse impact on the aquatic ecosystem.
Applicable regulations provide a legal presumption that for non-
water dependent activities practicable alternatives which do not
involve special aquatic sites such as wetlands are available.
Id. Significantly, an additional presumption that the alterna-
tive has less adverse impact also applies. Id. Therefore, in
this case the Corps must presume that a means of accessing the
upland area not requiring fills to wetland is available and would
be less harmful to the wetlands.
Both presumptions are.rebuttable, but only when "clearly demon-
strated otherwise." This high standard for rebuttal makes the
presumptions powerful ones. A clear demonstration that a
practicable alternative does not exist would necessarily require
competent, verifiable evidence to that effect on the record.
Demonstrating that a practicable alternative does not exist is
particularly difficult in light of the expansive definition of
"practicable," which is simply "available and capable of being
done." 40 C.F.R. 230.10(a)(2).
I have spoken with Corps personnel on several occasions, includ-
ing earlier this week, about the bridging alternative and have
been given no indication that there is any evidence, on the
record or not, that the bridging alternative is not practicable
and capable of being done. Thus, I assume we agree that the
alternative exists.
Corps personnel have, however, suggested to me that the bridging
alternative may involve greater adverse impacts on the aquatic
ecosystem than the proposed fills. I must consider this notion
speculative at best since I am aware of no evidence in the record
2.

to support this and to demonstrate clearly that the above-
mentioned presumption of lesser impact is rebutted. After all,
fills of.the wetlands involves total destruction of them. Any
impacts on the wetlands from the bridge, such as potential
vegetative disturbance or shading, cannot be considered more
adverse or even significant to the wetlands when compared to
total destruction by filling.
3. No discharge of dredged or fill material shall be permitted
where there is a practicable alternative which would have
less adverse impact on the wetlands. 40 C.F.R. 230.10(a).
In view of the existence of the bridging alternative and its
lesser impact on the wetlands, granting a permit here would
directly violate applicable regulations.
4. The proposed mitigation cannot justify or legally excuse a
violation of the regulatory prohibition on permitting fills
where a practicable alternative exists.
My conversations with Corps personnel lead me to believe that the
Corps may view the applicant's offer to mitigate the proposed
wetland losses as an adequate justification or excuse for its
failure to pursue the alternative of bridging. Because the
applicant has offered to try to create new wetlands, it need not
use available alternatives to avoid destroying existing natural
wetlands, or so the reasoning appears. No such circumvention of
the practicable alternatives regulation is lawful. While mitiga-
tion is appropriately considered in the Corps' "public interest"
review, it is not properly considered in connection with the
practicable alternatives analysis.
In conclusion, this application warrants the Corps' most careful
review. The area of the proposed development - the Buxton Woods
- is a nationally significant area with extensive wetlands and is
in need of all protections available under the Clean Water Act.
Furthermore, the concerned public has an independent interest in
seeing the Corps fairly enforce applicable regulations. Accord-
ingly, I strongly encourage you to review the practicable
alternatives issue before proceeding with mitigation discussions.
I thank you in advance for your careful consideration of these
comments.
Sincerely,

Lark Hayes
Director, North Carolina office
3.

cc: Mr. David Owens, N.C. Division of Coastal Management
VMr. Paul Wilms, N.C. Division of Environmental Management
Mr. Charles Roe., N.C. Natural Heritage Program
Mr. Dan Besse, Chair, Coastal Resources Commission
Ms. L.K. (Mike) Gantt, U.S. Fish and Wildlife Service
Mr. Randy Cheek, National Marine Fisheries Service
Mr. Lee Pelej, EPA, Region IV
Mr. Robert V. Owens, Jr., Chair, Dare County Commissioners
Mr. Thomas B. Gray, Dare County Commissioners
Mr. Elmer R. Midgett, Chair, Dare County Planning Board
Mr. Ray Sturza, Dare County Planning Director
Ms. Carol Anderson, Friends of Hatteras Island
4

a SEAT( u
State of North Carolina
Department of Natural Resources and Community Development
Division of Environmental Management
512 North Salisbury Street • Raleigh, North Carolina 27611
James G. Martin, Governor R. Paul Wilms
S. Thomas Rhodes, Secretary Director
June 24, 1988
Mr. R. Stewart Couch
Buxton Woods Partnership
P.O. Box 175
Avon, k 27915
Subject: Certification Pursuant to Section
401 of the Federal Clean Water Act,
Proposed Access Roadway
Buxton Woods Partnership
Buxton Woods
Dare County
Dear Mr. Couch:
Attached hereto are two (2) copies of Certification No. 2246
issued to Buxton Woods Partnership dated June 24, 1988.

If we can be of further assistance, do not hesitate to contact us.
Sincerely,
. Paul Wilms
cc: Wilmington District Corps of Engineers
Washington Regional Office
Mr. William Mills
Mr. David Owens
Pollutior. Prevention Pays
P.O. Box 27687, Raleigh, Nor[h Carolina 27611-7687 Telephone [phone]

NORTH CAROLINA
Dare County
CERTIFICATION
THIS CERTIFICATION is issued in conformity with the requirements of
Section 401 Public Laws 92-500 and 95-217 of the United States and
subject to the North Carolina Division of Environmental Management
Regulations in 15 NCAC 2H, Section .0500 to Buxton Woods Partnership
pursuant to an application filed on the 5th day of April, 1988 to
construct an access roadway across wetland areas at Buxton Woods.
The Application provides adequate assurance that the discharge of
fill material into a wetlands area adjacent to the waters of the
Atlantic Ocean in conjunction with the proposed roadway in Dare County
will not result in a violation of applicable Water Quality Standards and
discharge guidelines. Therefore, the State of North Carolina certifies
that this activity will not violate Sections 301, 302, 303, 306, 307 of
PL 92-500 and PL 95-217 if conducted in accordance with the application
and conditions hereinafter set forth.
Condition(s) of Certification:
1. That the activity be conducted in such a manner
as to prevent significant increase in turbidity
outside the area of construction or construction
related discharge (increases such that the
turbidity in the Stream is 25 NTU's or less
are not considered significant).
2. That appropriate sedimentation and erosion control
measures should be employed to minimize turbidity
and siltation impacts.
Violations of any condition herein set forth shall result in
revocation of this Certification.
This Certification shall become null and void unless the above
conditions are made conditions of the Federal Permit.
This the 24th day of June, 1988.
DIVISION OF ENVIRONMENTAL MANAGEMENT
/-R. Paul Wilms, Director
WQC# 2246

STAIZ
State of North Carolina
Department of Natural Resources and Community Development
Division of Environmental Management
512 North Salisbury Street • Raleigh, North Carolina 27611
James G. Martin, Governor R. Paul Wilms
S. Thomas Rhodes, Secretary June 24, 1988 Director
Mr. R. Stewart Couch
Buxton Woods Partnership
P.O. Box 175
Avon, NC 27915
Dear Mr. Couch:
Subject: Certification Pursuant to Section
401 of the Federal Clean Water Act,
Proposed Access Roadway
Buxton Woods Partnership
Buxton Woods
Dare County
Attached hereto are.two (2) copies of Certification No. 2246
issued to Buxton Woods Partnership dated June 24, 1988.
If we can be of further assistance, do not hesitate to contact us.
Sincerely,
Paul Wilms
cc: Wilmington District Corps of Engineers
Washington Regional Office
Mr. William Mills
Mr. David Owens
Pollution Prevention Pavs
P.O. Box 27687, Raleigh, North Carolina 27611-7687 Telephone [phone]
W
NORTH CAROLINA
Dare County
CERTIFICATION
THIS CERTIFICATION is issued in conformity with the requirements of
Section 401 Public Laws 92-500 and 95-217 of the United States and
subject to the North Carolina Division of Environmental Management
Regulations in 15 NCAC 2H, Section .0500 to Buxton Woods Partnership
pursuant to an application filed on the 5th day of April, 1988 to
construct an access roadway across wetland areas at Buxton Woods.
The Application provides adequate assurance that the discharge of
fill material into a wetlands area adjacent to the waters of the
Atlantic Ocean in conjunction with the proposed roadway in Dare County
will not result in a violation of applicable Water Quality Standards and
discharge guidelines. Therefore, the State of North Carolina certifies
that this activity will not violate Sections 301, 302, 303, 306, 307 of
PL 92-500 and PL 95-217 if conducted in accordance with the application
and conditions hereinafter set forth.
Condition(s) of Certification:
1. That the activity be conducted in such a manner
as to prevent significant increase in turbidity
outside the area of construction or construction
related discharge (increases such that the
turbidity in the Stream is 25 NTU's or less
are not considered significant).
2. That appropriate sedimentation and erosion control
measures should be employed to minimize turbidity
and siltation impacts.
Violations of any condition herein set forth shall result in
revocation of this Certification.
This Certification shall become null and void unless the above
conditions are made conditions of the Federal Permit.
This the 24th day of June, 1988.
DIVISION OF ENVIRONMENTAL MANAGEMENT
A/R. Paul Wilms, Director
WQC# 2246
Ile
0 9
SAWC088-N-028-0249
DEPARTMENT OF THE ARMY
Wilmington District, Corps of Engineers ?^ap?'
Post Office Box 1890 R C [r
Wilmington, North Carolina 28402-1890
APR r) 5
U 1,;
March 31, 198k k(Jt'i_fi ;? }
0 /A in_
PUBLIC NOTICE
BUXTON WOODS PARTNERSHIP, represented by MR. R. STEWART COUCH, Post Office
Box 175, Avon, North Carolina 27915, has applied for a Department of the Army
permit TO PLACE FILL MATERIAL IN WETLANDS ADJACENT THE ATLANTIC OCEAN
ASSOCIATED WITH CONSTRUCTION OF AN ACCESS ROAD, BUXTON WOODS, Dare County,
North Carolina.
The following description of the work is taken from data provided by the
applicant and from observations made during onsite visits by representatives
of the Corps of Engineers. Plans submitted with the application show the
proposed placement of approximately 1,500 cubic yards of fill material (sand),
obtained from an upland source, in a total of approximately 10,500 square feet
(0.24 acre) of wetlands to construct an access road spanning 4 wetlands of 150
feet, 50 feet, 40 feet and 60 feet. Through the 4 crossings, the width of the
roadway is to be 35 feet. The purpose of the work is to provide practical
access to a large number of high ground properties along the ridge systems
that parallel the Atlantic Ocean while causing only minimal environmental
damage. Any need for other wetland crossings in the vicinity of the work site
should be eliminated. The Dare County Planning Board has reviewed and
endorses this proposed plan for access to the high ground, ridge properties.
Plans showing the proposal are included with this public notice.
The applicant has determined that the proposed work is consistent with the
North Carolina Coastal Zone Management Plan and has submitted this
determination to the North Carolina Division of Coastal Management for their
review and concurrence. This proposal shall be reviewed for the applicability
of other actions by North Carolina agencies such as:
a. The issuance of a Water Quality Certification under Section 401 of the
Clean Water Act by the North Carolina Division of Environmental Management.
b. The issuance of a permit to dredge and/or fill under North Carolina
General Statute 113-229 by the North Carolina Division of Coastal Management.
c. The issuance of a permit under the North Carolina Coastal Area
Management Act (CAMA) by the North Carolina Division of Coastal Management or
their delegates.

-2-
d. The issuance of an easement to fill or otherwise occupy State-owned
submerged land under North Carolina General Statute 143-341(4), 146-6, 146-11,
and 146-12 by the North Carolina Department of Administration and the North
Carolina Council of State.
e. The approval of an Erosion and Sedimentation Control Plan by the Land
Quality Section, North Carolina Division of Land Resources, pursuant to the
State Sedimentation Pollution Control Act of 1973 (NC G.S. 113 A-50-66).
The application for Department of the Army authorization will be denied if
any required State or local authorization and/or certification is denied. No
Department of the Army permit will be issued until a State coordinated
viewpoint is received-and reviewed by this agency. Recipients of this notice
are encouraged to furnish comments on factors of concern represented by the
above agencies directly to the respective agency, with a copy furnished to the
Corps of Engineers.
This application is being considered pursuant to Section 404(b) of the
Clean Water Act (33 U.S.C. 1344). Any person may request, in writing within
the comment period specified in the notice, that a public hearing be held to
consider this application. Requests for public hearing shall state, with
particularity, the reasons for holding a public hearing.
The District Engineer has consulted the latest published version of the
National Register of Historic Places for the presence or absence of registered
properties, or properties listed as being eligible for inclusion therein, and
this worksite is not registered-property or property listed as being eligible
for inclusion in the Register. Consultation of the National Register
constitutes the extent of cultural resource investigations by the District
Engineer, and he is otherwise unaware of the presence of such resources.
Presently, unknown archeological, scientific, prehistorical, or historical
data may be lost or destroyed by work under the requested permit.
The District Engineer has determined, based on a review of data furnished
by the applicant and onsite observations, that the activity will not affect
species, or their critical habitat, designated as endangered or threatened
pursuant to the Endangered Species Act of 1973.
The decision whether to issue a permit will be based on an evaluation of
the probable impacts, including cumulative impacts, of the proposed activity
and its intended use on the public interest. Evaluation of the probable
impacts which the proposed activity may have on the public interest requires a
careful weighing of all those factors which become relevant in each particular
case. The benefits which reasonably may be expected to accrue from the
proposal must be balanced against its reasonably foreseeable detriments. The
decision whether to authorize a proposal, and if so the conditions under which
it will be allowed to occur, are therefore determined by the outcome of the

-3-
general balancing process. That decision should reflect the national concern
for both protection and utilization of important resources. All factors which
may be relevant'to the proposal must be considered including the cumulative
effects thereof. Among those are conservation, economics, aesthetics, general
environmental concerns, wetlands, cultural values, fish and wildlife values,
flood hazards, flood plain values, land use, navigation, shore erosion and
accretion, recreation, water supply and conservation, water quality, energy
needs, safety, food and fiber production, mineral needs, considerations of
property ownership, and, in general, the needs and welfare of the people. For
activities involving the placement of dredged or fill materials in waters of
the United States, a permit will be denied if the discharge that would be
authorized by such permit would not comply with the Environmental Protection
Agencies" 404(b)(1) guidelines. Subject to the preceding sentence and any
other applicable guidelines or criteria, a permit will be granted unless the
District Engineer determines that it would be contrary to the public interest.
Generally, the decision whether to issue this Department of the Army
permit will not be made until the North Carolina Division of Environmental
Management (DEM) issues, denies, or waives State certification required by
Section 401 of the Clean Water Act. The DEM considers whether or not the
proposed activity will comply with Sections 301, 302, 306, and 307 of the
Clean Water Act. The application and this public notice for the Department of
the Army permit serve as application to the DEM for certification.
Additional information regarding the Clean Water Act certification may be
reviewed at the offices of the Environmental Operations Section, North
Carolina Division of Environmental Management, Salisbury Street,' Archdale
Building, Raleigh, North Carolina. Copies of such materials will be furnished
to any person requesting copies upon payment of reproduction costs.
The North Carolina Division of Environmental Management plans to take
final action in the issuance of the Clean Water Act certification on or after
April 22, 1988.
All persons desiring to make comments regarding the application for Clean
Water Act certification should do so in writing delivered to the North
Carolina Division of Environmental Management, Post Office Box 27687, Raleigh,
North Carolina 27611-7687, on or before April 18, 1988, Attention:
Mr. William Mills.
Written comments pertinent to the proposed work, as outlined above, will
be received in this office, Attention: Ms. Alison Arnold, until 4:15 p.m.,
April 25, 1988, or telephone [phone].
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IN REPLY REFER TO
Regulatory Branch
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
April 5, 1988
SUBJECT: File No. SAWC088-N-028-0249
Mr. William Mills
Water Quality Section
Division of Environmental Management
North'Carolina Department of Natural
Resources and Community Development
Post Office Box 27687
Raleigh, North Carolina 27611-7687
Dear Mr. Mills:

APR (1
AP
OPERATIONS
Enclosed is the application of the Buxton Woods Partnership,
represented by Mr. R. Stewart Couch, for Department of the Army
authorization and a State Water Quality Certification to place
fill material in wetlands adjacent the Atlantic Ocean associated
with construction of an access road, Buxton Woods, Dare County,
North Carolina. Your receipt of this letter verifies your
acceptance of a valid request for certification in accordance with
Section 325.2(b)(ii) of our administrative regulations.
We are considering authorizing the proposed activity pursuant
to Section 404 of the Clean Water Act, and we have determined that
a water quality certification may be required under the provisions
of Section 401 of the same law. A Department of the Army permit
will not be granted until the certification has been obtained or
waived.
In accordance with our administrative regulations, 60 days
after receipt of a request for certification is a reasonable time
for State action. Therefore, if you have not acted on the request
by June 5, 1988, the District Engineer will deem that waiver has
occurred.
Questions or comments may be addressed to Ms. Alison Arnold,
telephone [phone].
Sincerely,
Cha s 4W.H lis
hie , Regulatory Branch
Enclosure
4
?'^
t
.r .., •.

v
-2-
Copies Furnished (without enclosure):
Mr. John Parker
Division of Coastal Management
North Carolina Department of
Natural Resources and
Community Development
Post Office Box 27687
Raleigh, North Carolina 27611-7687
Mr. David Griffin
Elizabeth City Regional Office
North Carolina Division of
Coastal Management
108 South Water Street
Elizabeth City, North Carolina 27909
T + '
CESAW-CO-EE
23MAR88
MEMORANDUM FOR FILE

SUBJECT: Community Access-for Flowers Ridge Road, Buxton, Dare County.
:.Attached is a DA Permit Application for a community access road for Buxton
Woods Partnership, PO Box 175, Avon, NC 27915.
2. After many months of discussions with Mr. Dave Lang, he has come up with
an application that has the potential for serving many, many lots along
Flowers Ridge Road. You will note that the proposal will serve a 110 lot
residential subdivision (Hatteras Pines) as well as providing access to tracts
owned by Midgette, Quidley, Brady, Casey, Dailey, and Cowal.
3. Initially, I had cited Messrs. Stonestreet and Quidley for stacking NWPs in
obtaining access to the subdivision. These gentlemen removed two (2)
unauthorized crossings (completely restoring them) and were proposing to
bridge the two areas when they got into financial difficulty and sold the
property. In addition, Alison is presently processing an A-T-F application
for Mike Cowal and has received several other proposals in the immediate
vicinity.
4. It is important to note that this proposal eliminates previously existing
devils strips at the terminus of three cul-de-sacs within the subdivision
proper. With this elimination, the road system will follow three (3) ridges
and in the process, service many lots that will otherwise result in violations
or applications.
5. Note that Mr. Ray Sturza, Planning Director for Dare County, views this
project in a favorable light. Also note that Mr. Lang has worked out access
with the adjacent landowners as well as additional owners along the
ridges/wetlands system.
6. The four needed crossings are: 150'x35' - 50'x 35' - 40'x35' - 60'x35'
These four crossings have a total length of 300' .
7. Personally, the undersigned feels that this type communal access is in the
public interest and will result in reduced paperwork/time. Under the present
guidelines, individual access is out of the question. Therefore, we are being
afforded the opportunity to solve one of the major problems in the Buxton area
that has been a thorn in our side for several years.
8. Contact me for additional info.
SMITH
, s
AA4rfl
sB- 04

Po Box 175 MAR ? 3 1988
Avon, NC 27915
REGULATORY BRANCH
March 22, 1988
Michael Smith
Department of the Army
Corp of Army Engineers
PO Box 1890
Wilmington, NC 28402-1890
RE: Corp Permit for Community Access to Buxton Woods.
Dear Mike,
Enclosed please find the application I had discussed
with you concerning community access for the Buxton Woods
area. We are anticipating starting work as soon as this
permit is processed.
During our most recent conversation at the site you
mentioned that sometimes this type of permit can be put on
the "Fast Tract". I did send out notification to the
adjoining property owners on March 8, 1988 so the thirty day
period is up in the first week of April. I have included in
the application package a letter from the Dare County
Planner, Ray Sturza, who looks favorably on the community
access. If I can be of further assistance please do get in
touch with me at 919-995-5037.
Sincerely,
Dave Lang
DSL/rsc
Enclosure

Please type or print. Carefully describe all an- d. Describe the planned use of the project.'
ticipated development activities, including construe- 77F 0/1 of Fc cJ / 4 L S gA vr- 4 AlA w 11D
tion, excavation, filling, paving, land clearing, and LOS- su,0al ?/r/o/? ANA ALS'0 S41QI/E AS
ston'nwater rontrol. If the requested information is c o r? ?^ u,? i T Y /Ic c r t1" F02 M A N I/ G!1 u0
not relevant to your project, write N/A (not ap- n +i AJ eas
plicable). Items 1-4 and 8-9 must be completed, for.,;
? ?? rG0 4 LAND AND WATER
?
=
.
-
all projects. : , .,.
CHARACTERISTICS
3 1988
..1 APPLICANT ,
` Size of entire tract 14s- A c /Les _
AN(
tGULAT RY
JC?
tk
? BR
fi Size of individual lot(s) o, 00 0 " A ? 6 .
T?
i
/
a. Name
`_ N /
- c. Elevation of tract above mean sea level or Na-
Address Po . ,e3 or QS tional Geodetic Vertical Datum 4 'To 4 /
City /4 V o ti State ALC
" d. Soil S,1 AJa
type(s) and to tur of tract
Zip X79 I S
Day phone ? JD`4 / S WA L E
Landowner or
Authorized agent e. Vegetation on tract ya - ?n ?sT? 0
b. Project name (if any). #A r - RAs P1 " F-s
J
ON E
f. Man-made features now on
tract A
c. If the applicant is not the landowner, also give
the owner's name and address.
- g. What is the CAMA Land Use Plan Classifica-
U" b r is c .-. a-r ;: Ac -
""D 1.5
n tion of the site? (Consult the local land use
t1UaCT?? WO o As /??{liT/lJF/Ls ifiP 1-111-L lan
)
•' ?' r c' ? ?+ r?z M k/tc A4 1-7
19y? p
.
+ Conservation Transitional

loped
e
t
?Hfo
2 LOCATION Of PROPOSED l
hers" A
RRurra
SSE fiTA
_Y
N6ATS
PROJECT S
h. How is the tract zgned by local govemmentl
-
S-1 / 7
,# /S- LJS,,c +U P i?h'l D,
a. Street address or secondary road number i. - How are adjacent waters classified?
S- FA, I a3 a j. Has a professional archaeological survey been

b. City, town, community, or landmark carried out for the tract? ^J o
if so, by whom?
0
c. County A /2r
d. Is proposed work within city limits or planning 5 UPLAND DEVELOPMENT
jurisdiction? YF s
e. Name of body of water nearest project Complete this section if the project includes any
2 AA Fltot-• Ari_AAvrl< rcc- a&J
d
upland
evelopment.
T
d
b
f
a.
ype an
num
er o
buildings, facilities, or
3 DESCRIPTION AND PLANNED structures proposed 110 Y o us f_ s 4Prcox.
USE. OF PROPOSED PROJECT
b
. Number of lots or parcels /+ P A a X. a
I /
a. Describe all development activities you propose c. Density (Give the number of residential units
(for example, building a home, motel, marina, and the units per acre.) 1 f O- i-F a u s' E s nAJ
bulkhead, or pier). 14s- AcmR s
_ 110 L-Ur kE--S i v X_N-r q L v v o 1 v 1 s 1,9 J NhN
LASS -
d
Si
f
b
d
d

T
.
ze o
area to
e gra
e
or disturbed
iQ,VII CUMMUNI"rL
/ Acc t:.>S TO 357, OF THF- TOTAL t-ANo Akf* To t3P DgTax,14
LA +u 40 S /) OJo 1 .V J ill 6 If
h
d
e.
t
e propose
project will disturb more than
f l
d
h
one acre o
an
, t
e Division of Land
If you plan to build a marina, also complete Resources must receive an erosion and sedimen-
tation control plan at least 30 days before land
b. Is the proposed activity maintenance of an ex- disturbing activity begins. If applicable, has a
isting project, new work, or both? sedimentation and erosion control plan been
1, E. to k'' o R t, b
d
h
su
mitte
to t
e Division of Land Resources?
c. Will the project be for community, private, or f/zosrou 4 s1o/,H1.J--vr-,u ,c)LAU ifAS 3tLU APPRovty
commercial use? f. Give the percentage of the tract within 75 feet
AuQ P/z i v'+ rc f
h
o
mean
igh water to be covered by im-
bl
f
permea
e sur
aces, such as pavement,
buildings, or rooftops. 00 N E

g. List. the materials, such as marl, paver stone, b.
asphalt, or concrete, to be used for paved
surfaces.. 1-a Asm g LT- c.
' d.
h. If applicable, has a stormwater management
plan been submitted to the Division of En- e.
vironmental Management? /J o
!'.
i. Describe proposed sewage disposal and/or waste g.
water treatment facilities. IuolVIDUAL
S4,67-IC SyYTfMS h.
j. Have these facilities received state or local
approvall U F-5
k. Describe existing treatment facilities. i.
#JONF --

1. Describe location and type of discharges to 1•
waters of the state (for example,, surface runoff, k.
sanitary wastewater, industriallcommercial
effluent, or "wash down"). t,,J a) J E 1.
hti N.
CAPt VWX/L
m. Water supply source na r??o ?iAvgL. S
n. If the project is oceanfront development,
describe the stej.rs that will be taken to main-
tain established public beach accessways or pro-
vide new access. P J /A
o. If the project is on the oceanfront, what will
be the elevation above mean sea level of the
first habitable floor?
6 EXCAVATION AND FILL
INFORMA'T'ION
a. Describe below the put-pose of proposed excava-
tion or fill activities (excluding bulkheads,
which are covered in `section 7).
Length Width Depth
Access channel
(MLW) or (NWL)
Boat basin
Other (break-
water, pier,
boat ramp,
rock jetty)
Fill placed in
wetland or below
MHW
3C,O, 13s,
Upland fill
areas
M.
n.
o.
P.
q•
Amount of material to be excavated from `
below water level in cubic yards 14W `
Type of material SA N D
Does the area to be excavated include marsh-
land, swamps, or other wetlands? V0.5
High ground excavation, in cubic yards o
Dimensions of spoil disposal area 3ac?' X 3 r
Location of spoil disposal area
f/A•r7fX,l, pfmf5 ROAD w-AV
Do you claim title to the disposal area? vN a?
cc mr,tAc r
If not, attach a letter granting permission from
the owner.
Will a disposal area be available for future
maintenance? 1, N/A
If so, where? Q/A -
Does the disposal area include any marshland,
swamp4and,'or water areas? v4s
Will the fill material be plac de below mean
high water? 00
Amount of fill in cubic yards Nor
Type of fill material SAS J 0
Source of fill material POM0 o N Si r-A
Will fill material be placed on marsh or other
wetlands? ?z "- s
Dimensions of the wetland to be filled -oo ? x 3s'
How will excavated or fill material be kept on
site and erosion controlled? 422crAll Cto rH
?a ), vs?a . AQs<ri -ro 0 e rj'A ogee
w?7-0 S-4.bii 6oSNOVC.0AAr,
r. What type of construction equipment will be
used (for example, dragline, backhoe, or
hydraulic dredge)? 6 /LA6 ?_/AI . 0
LOADER ` 7ALVC/c.)
s. Will wetlands be crossed in transporting eggip-
ment to the project site? L l) If yes, explain
the steps that will be taken to lessen en-
vironmental impacts.
7 SHORELINE STABILIZATION
a. Length of bulkhead or riprap t-114-
b. Average distance waterward of mean high water
or normal water level A)11 W
c. Shoreline erosion during preceding 12 months,
in feet
d. Type of bulkhead material
e. Amount of fill, in cubic yards, to be placed
below mean high water 1
f. Type of fill material ???

8aADDITIONAL INFORMATION
In addition to the completed application form, the
following items must be submitted:
A copy of the deed (with state application only) or
other instrument under which the applicant claims
title to the affected property. If the applicant is not
claiming to be the owner of said property, then for-
ward a copy of the deed or other instrument under
which the owner claims title, plus written permis-
sion from the owner to carry out the project.
An accurate work plat (including plan view and
cross sectional drawings) drawn to scale in black
ink on 8 ?i x 11 white paper. (Refer to Coastal
Resources Commission Rule 7].0203 for a detailed
description.)
Please note that original drawings are preferred and
only high quality copies will be accepted. Blue-line
prints or other larger plats are acceptable only if 16
high quality copies are provided by the applicant.
(Contact the U.S. Army >?orps of Engineers regard-
ing that agency's use of larger drawings.) A site or
location map is a part of plat requirements and it
must be sufficiently detailed to guide agency per-
sonnel unfamiliar with the area to the site. Include
county road (SR) numbers, landmarks, and the like.
A stormwater management plan, if applicable, that
may have been developed in consultation with the
Division of Environmental Management.
A list of the names and complete addresses of the
adjacent waterfront (riparian) landowners. These
individuals have 30 days in which to submit com-
ments on the proposed project to the Division of
Coastal Management. The applicant must advise
the adjacent landowners of this opportunity by sen-
ding a copy of the permit application to them by
registered or certified mail. This notification is re-
quired by G.S. 113-229(d).
Name 71"M4 M. 6'18Qs
Address 41oa G, •+? o? 364/D .

Name
o o.? if.
L6
Frl,e.eo
Address ?° . o • % o -? 7
1114 TT,EAA; Al C d. -7 9 '13
Name J A C k S. w I L_soN
Address /' . o . 13 oX 3 06
0CIZAG0 K? _:7'1GO
A list of previous state or federal permits issued
for work on the project tract. Include permit
numbers, permittee, and issuing dates.
A check for $100 made payable to the Depart-
ment of Natural Resources and Community
Development to cover the costs of processing the
application.
A signed AEC haz=ard notice for projects in ocean-
front and inlet areas.
A statement on the use of public funds. If the
project involves the expenditure of public funds, at-
tach a statement documenting compliance with the
North Carolina Environmental Policy Act
(N.C.G.S. 113A-1 to 10).
9 CERTIFICATION AND PERMIS
SION TO ENTER ON LAND'
.`'
Any permit issued in response to this application
will allow only the development described in the
application. The project will be subject to condi-
tions and restrictions contained in the permit.
I certify that to the best of my knowledge, the pro-
posed activity complies with the State of North
Carolina's approved Coastal Management Program
and will be conducted in a manner consistent with
such program.
I further certify that 1 am authorized to grant, and
do in fact, grant permission to representatives cd.
state and federal review agencies to enter on the
aforementioned lands in connection with
evaluating information related to this permit ap-
plication and follow-up monitoring of project.
This is the J? day of /a
19-Reff . ,, a
177-
Landowner or Authorized agent
Send the completed application materials to the
Division of Coastal Management Crffice nearest you
and the U.S. Army Corps of Engineers. See the
map on the inside front cover for the appropriate
DCM office and addresses and phone number.
1 ()
Y or:
W'.\7 March 21, 1988
PI ANNING F'( I AF-()
Mr. Charles W. Hollis
Regulatory Branch
U. S. Army Corps of Engineers
P. O. Box 1890
Wilmington, NC 28402-1890
Dear Charley:

Within the near future your office will be receiving an application for
authorization to cross -a regulated area from an organization known as
Buxton Woods Partnersnip. I have been asked by this organization
to review the application and comment for the local government.
As you will recall from some of our earlier conversations, this particular
aspect of the wetlands regulatory program; forces staff personnel to exercise
a level of discretion that seldom renders satisfaction. And since it was
the U.S. Congress that authored these rule;, it is, we feel, the responsibility
of the federal staff personnel to interpret and implement them. That
federal responsibility includes dealing with the unsatisfactory conclusions
that these rules usually prompt. I hope that through channels, letters
like these will get the message through the Bureaucracy that the Section 404
Program needs revisions.
In the same aspect, we do indeed appreciate the efforts of you and your
staff to coordinate this process with local government to best reflect
local concerns, particularly as it pertains to community access across
regulated areas. It is unfortunate that, like most regulatory programs
we too have a lot of needs and insufficient staff to address them. So
we handle issues like wetland access on a case-by-case basis. Having
reviewed the plan submitted by the Buxton Woods Partnership, I can
say it comes as close as any to addressing an areawide access to the
remote ridges, and it is an access plan: that certainly appears to have
community-wide benefits. The terrain of the area in Buxton Woods and.
the very complicated assortment of geological conditions there make any
assessment difficult at best. I can, -however, support this application
as one that attempts to provide the most acceptable strategy for access
to this locale.
Charley, I hope you find this letter helpful. I appreciate the cooperative
attitude we have seen from you and most of your staff, and if you need
any additional clarification or information, please advise.
Sinc ly yours,
Ray onurza, II
Planning Director
RS/jw
cc: David Lang

-2-
community of property owners as a whole, local, Dare County, or
State govenments remains to be seen. However, as to your
tentative proposal, we would favorably consider any proposal that
would establish one community access for the entire community or
to limit additional proposals to an absolute minimum. Based upon
the information obtained by Mr. Smith, I understand that your
proposals may address this issue. We look forward to receiving
additional information from you.
If there are questions concerning this matter, please contact
Mr. Smith at telephone [phone] or Ms. Alison Arnold, permit
coordinator for Dare County, at telephone [phone].
Sincerely,
?c
Charles W. Hollis
Chief, Regulatory Branch
Copies Furnished:
Mr. David Griffin, District Manager
Division of Coastal Management
North Carolina Department of Natural
Resources and Community Development
108 South Water Street
Elizabeth City, North Carolina 27909
Mr. John Parker
Division of Coastal Management
North Carolina Department of Natural
Resources and Community Development
Post Office Box 27687
Raleigh, North Carolina 27611-7687
J1144E CZ C11-PrY Z,4AV
The purpose of the Limited Conservation class is to
provide for the management and long-term viability
of essentially undisturbed land that is computable
with only a limited range of uses only under a
specified set of guidelines. The Limited Conservation
class should be applied to lands that contain unique
geological or topographic features and/or plant and
animal life that necessitates such guidelines in order
to insure that such features are not destroyed or
altered to the point where their natural, cultural,
economic or scientific values are lost. Land placed
in the Limited Conservation class may include, but
is not limited to, mziritime, forests, inland dunes
heavily wooded areas, and other land determined
by the Board of Commissioners as suitable for the
guidelines associated with the Limited Conservation
Classification.
Development and land clearing activities in the
Limited Conservation class of land use should be
managed through the creation of a special use
district and permit process, to be established by
the Board of Commissioners, and should, at a
minimum, conform to the following guidelines:
1. Primary Use - the primary permitted use of
land in the Limited Conservation Classifi-
cation should be detached single-family
residential structures and a limited range
of service-oriented commercial uses. Multi-
family residential development and non-service
oriented commercial uses should be subject to
conditional use permit authorization after
Planning Board review and Board of
Commissioners approval.
2. Dwelling Density - Residential and commercial
structures should be permitted at a dwelling
or use density equivalent to one dwelling unit
per 40,000 square feet of land area. If an
equivalent lot size strategy is used for
subdivision plat submission, the minimum lot
size for individual lots should not be less
than 20,000 square feet.
3. ' Lot Coverage - The alteration of any land in
the Limited Conservation Classification should
not result in a total lot coverage of impervious
material greater than 35% of the tottil surface
area of the site being improved or altered.
LIMITED CONSERVATION
CLASSIFICATION

4.. Terrain Alteration and Vegetation Removal -
beveldpment or land clearing activity in the
Limited Conservation Classification should not
alter existing grades or remove existing
vegetation any more than shall be necessary
to facilitate:
a. The foundation of any proposed
structure or ,improvement, and
b. Access to the site where the
structure or improvement is to
located,, and
c.. The installation of any underground
utility improvements associated with
the structure or improvement.
In each case, construction techniques and
materials should be of the best available
technology to mitigate any potential adverse
impacts to the existing vegetation, terrain,
or water quality of the land and waters of
any Limited Conservation District.
LIMITED CONSERVATION
CLASSIFICATION
(CONTINUED)
s
1
i
0 SENDER: Complete Items 1 and 2 when additional services are desired, and complete items 3 and 4.
Put your address in the "RETURN TO" space on the reverse side. Failure to do this will prevent this
card from being returned to you. The return receipt fee will
rovide ou the name of the arson
1
delivered to and the date of deliver,. oradditional •ea t e o ow ng aerv cea are available. Consult
f
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postmaster or
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or additional service(s) requested.
1. ? Show to whom delivered, date, and addressee's address. 2. ? Restricted Delivery.
3. rtlcle Addressed to:

?fy) C ibb? 4. Article Number ?
/

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0f
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Always obtain signature of addressee or
agent and DATE DELIVERED.
5. Signature - Addressee
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requesfed and fee paid)
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7. Date of Delivery,
ra rorm jai j, rcu. iyao DOMESTIC RETURN RECEIPT
• SENDER: Complete Items 1 and 2 when additional services are desired, and complete items 3 and 4.
Put your address In the "RETURN 70" space on the reverse side. Failure to do this will prevent this
card from being returned to you. The return reeei t fee will rovide you the name of the arson
de iv re n he date of IIve-F'or t one ees the following services are eve a e. Consult
postmaster or ees an check ox es) fer additional service(s) requested.
1. ? Show to whom delivered, date, and addressee's address. , 2. ? Restricted Delivery.
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J? 1 Sin
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3 /17/ 5-71
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agent and DATE DELIVERED.
5. SI ture - Addressee 8. Addressee's Address (ONL Y if
x requested and fee paid)
6. S re - Agent
x
7. Date of Delivery
ra rvrm 001 r, rco. xyoo DOMESTIC RETURN RECEIPT
le SENDER: Complete Items 1 and 2 when additional services are desired, and complete Items 3 and 4.
Put your address In the "RETURN TO" space on the reverse side. Failure to do this will prevent this
card from being returned to you. The return recei t fee will rovide you the name of the arson
delivered to and the date of delive or a t one ees the following services are eve a e. Consult
postmaster or fees an check box es) for additional service(s) requested.
1. ? Show to whom delivered, date, and addressee's address. 2. ? Restricted Delivery.
3. Article Addressed to: 4. Article Number
?1a Ndb-1 L ey ? Ml fo Nc ro, TYPe of Service:
v ` 1 V" Registered Insured
pO ?? ?. l/ Certified H COD
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agent and Q4TE DELIVERED.
5. Signs re - Addre ee 8. Addressee's Address (ONLY if
X requested and fee paid)
6. Signaare -Agent
)ate of Delivery

o>

March 8, 1988
Jack S. Wilson
Ruth J. Wilson
PO Box 306
Ocracoke, NC 27960
RE: CAMA and Army Corps of Engineers Permits for Wetland
Crossings.
Dear Jack and Ruth,
As per CAMA and the Army Corps of Engineers regulations
this letter is to notify adjoining property owners of an
application made to the above mentioned regulatory agencies.
The purpose of the permit is to culvert and fill a total of
approximately 300 linear feet of wetlands to construct a road
to gain access to the interior ridges. Details of the project
may be found in the enclosed copy of the application.
If you have any questions please contact me at the
address below.
Sincerely,
R. Stewart Couch
Buxton Woods Partnership
PO Box 175
Avon, NC 27915
919-995-4477
RSC/ibm
a

March 8, 1988
Emma M. Gibbs
400 Great Bridge Blvd.
Cheaspeake, VA 23320
RE: CAMA and Army Corps of Engineers Permits for Wetland
Crossings.
Dear Mrs. Gibbs,
As per CAMA and the Army Corps of Engineers regulations
this letter is to notify adjoining property owners of an
application made to the above mentioned regulatory agencies.
The purpose of the permit is to culvert and fill a total of
approximately 300 linear feet of wetlands to construct a road
to gain access to the interior ridges. Details of the project
may be found in the enclosed copy of the application.
If you have any questions please contact me at the
address below.
Sincerely,
R. Stewart Couch
Buxton Woods Partnership
PO Box 175
Avon, NC 27915
919-995-4477
RSC/ibm
•
March 8, 1988
Major Everton Farrow Heirs
C/O Eldon H. Farrow
PO Box 97
Hatteras, NC 27943
RE: CAMA and Army Corps of Engineers Permits for Wetland
Crossings.
Dear Mr. Farrow,
As per CAMA and the Army Corps of Engineers regulations
this letter is to notify adjoining property owners of an
application made to the above mentioned regulatory agencies.
The purpose of the permit is to culvert and fill a total of
approximately 300 linear feet of wetlands to construct a road
to gain access to the interior ridges. Details of the project
may be found in the enclosed copy of the application.
If you have any questions please contact me at the
address below.
Sincerely,
R. Stewart Couch
Buxton Woods Partnership
PO Box 175
Avon, NC 27915
919-995-4477
RSC/ibm
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Southern Environmental Law Center
137 EAST FRANKLIN STREET SUITE 30 CHAPEL HILL, NC 27514 [phone] or [phone]

Regional Office
201 West Main Street, Suite 14
Charlottesville, VA 22901-5033
[phone]
June 17, 1988
Mr. Charles W. Hollis, Jr.
Chief, Regulatory Branch
Wilmington District
Corps of Engineers
Department of the Army
P. 0. Box 1890
Wilmington, NC 28402-1890
? D
JUN 20 iyt3
DIV. OF ENVIRONMENTAL MANAGEMENT
Raleigh, NC
RE: Buxton Woods Partnership, File No. SAWC088-N-028-0249
Dear Mr. Hollis:
The Southern Environmental Law Center submits the following
comments on the above-referenced application on behalf of the
Friends of Hatteras Island (FOHI). I have also received your
June 9, 1988 letter to me and will take this opportunity to
respond to several points raised in it.
As you know, FOHI is a citizen organization with more than
250 members who are dedicated to the preservation of the natural
resources of Hatteras Island, including the Buxton Woods.
Protection of Buxton Woods has been a priority of FOHI because
the area is uniquely valuable as the largest maritime forest in
North Carolina and because the fresh water aquifer which under-
lies it is the sole source of drinking water for residents of the
Island.
As defined by the Buxton Woods Partnership (BWP) in its
permit application of March 8, 1988, the "development activities"
of the "proposed project" are a 11110 lot residential subdivision
and community access to lands adjoining." Application, Section
3a. Some 110 houses are planned on 145 acres with an average lot
size of 50,000 square feet. Application Sections 5c and 4b. The
tract is currently "forested" and undeveloped ("Man-made features
now on the tract - none.") Application Sections 4e and 4f.-
Individual septic tanks are planned and water will be obtained
from the Cape Hatteras Water Association or individual wells.
Application Sections 5i and 5m. The dimensions of the wetland
fills are 300' x 35' and will involve some 1405 cubic yards of
fill. Application Sections 6p and 61.
As stated by the applicant, this project also encompasses a
proposal for a road system for community access to the entire
Flowers Ridge Road/Buxton Woods area and is being considered as
such by the Army Corps of Engineers (Corps). In correspondence
subsequent to the application, BWP expressly refers to a "Corps
Permit for Community Access to Buxton Woods." See letter from
Dave Lang (a principal of the applicant) to Michael Smith of the
Corps, March 22, 1988. See also Memorandum for File from
(Michael) Smith, March 23, 1988 which states that "(a)fter many
months of discussions with Mr. Dave Lang, he has come up with an
application that has the potential for serving many, many lots
along Flowers Ridge Road" and that "this type communal access" is
"one of the major problems in the Buxton area." Not only will
the road system serve the BWP subdivision and other existing lots
in the area, the Corps is well aware that another developer is
already proposing to extend the BWP's three ridge top cul-de-sacs
to serve properties to the south and north. See letter from
Charles W. Hollis to Dave Lang, January 26, 1988. Whatever the
advantages or disadvantages of the proposed system may be,
clearly the project involves the establishment of a community
access road system for the extended area.
Briefly stated, FOHI strongly asserts that because the BWP
project (with its 110 houses and commitment to a community road
system) will significantly affect the human environment an
Environmental Impact Statement (EIS) must be prepared. In
preparing both the Environmental Assessment (EA) and the EIS
proper identification and consideration of the extent of the
direct and indirect effects of the project is critically import-
ant and legally required. Furthermore, FOHI submits that because
the applicant has failed to clearly demonstrate that there are no
practicable alternatives to siting this project in a wetland area
like the Buxton Woods, a permit cannot be issued. Several
factors, including the lack of any mitigation, are also set forth
below for consideration in the public interest review. And,
finally, FOHI is dissatisfied with your denial of their request
for a public hearing and requests that you reconsider that
decision.
Regarding your view of the role of Dare County in this
matter as set forth in your June 9, 1988 letter, FOHI agrees that
the Corps should defer action on BWP's application until the
County has taken formal action to approve or disapprove the
subdivision including its road access proposal. As you correctly
point out, the property is within the County's Special Environ-
mental District. Therefore, the County Planning Board will be
considering a number of factors related to environmental impacts
and I'm sure much will be learned from their deliberations. And,
of course, BWP cannot proceed with its project until the County
takes final action, so awaiting decision on the subdivision
proposal will not cause unnecessary delay.
FOHI cannot, however, agree wit
your letter that the County has a
overall impacts of this project than
of FOHI's request for public hearing
forum for addressing these concerns
reflects an unwarranted minimizatio
h the proposition implicit in
greater role in assessing the
does the Corps. Your denial
with the suggestion that the
is the County Planning Board
n of the Corps' legal respon-
2
sibilities here. Your statement at page two of your recent
letter that the scope of the federal review is limited to three
issues (existence of less environmentally damaging means of
access, violation of water quality standards, and significant
degradation of water quality affecting water supplies, fish and
wildlife, and reasonable minimization) is a serious misstatement
of the law, as the comments will show. The purpose of these
comments is to set forth the nature and extent of the Corps'
responsibilities and to direct your attention to some important
issues and concerns which must be addressed during the Corps'
permit application process.
I. PROPER CONSIDERATION OF THE DIRECT AND INDIRECT EFFECTS
OF THE PROPOSED PROJECT, AS REQUIRED UNDER THE NATIONAL
ENVIRONMENTAL POLICY ACT, WILL SHOW THAT THE PROJECT WILL
SIGNIFICANTLY AFFECT THE HUMAN ENVIRONMENT, THUS REQUIRING
PREPARATION OF AN ENVIRONMENTAL IMPACT STATEMENT.
A regulatory decision on this permit application is a
"federal action" and is subject to environmental review under the
National Environmental Policy Act, 42 U.S.C. 4321 et seg. See 40
C.F.R. 1508.18(b)(4). The Council on Environmental Quality (CEQ)
has the primary responsibility for implementing NEPA and its
regulations, 40 C.F.R. pts. 1500-1508, are binding on all federal
agencies including the Corps. Andrus v. Sierra Club, 442 U.S.
347, 356-358 (1979). The Corps also has its own NEPA-implement-
ing regulations.
A. NEPA and the CEQ requlations require the Corps to consider
the numerous direct and indirect effects of the project.
An EIS is required prior to granting a Corps permit when it
appears that the project's effects may have a significant impact
on the environment. 42 U.S.C. 4332(2)(c). NEPA requires that
an agency consider the direct and indirect or "secondary" effects
of a project requiring a federal permit to determine whether an
EIS must be prepared. 40 C.F.R. 1508.8 ("indirect" and
"secondary" are used interchangeably herein).
The CEQ regulations use the terms "effects" and "impacts"
synonymously and define the term "effects" to include all direct
and indirect effects of a proposal. Id. Whereas direct effects
are those caused by the proposed action which occur at the same
time and place, indirect effects are those caused by the action
which are "later in time or farther removed in distance, but are
still reasonably foreseeable." 40 C.F.R. 1508.8(b).
Insofar as BWP has defined the "proposed project" in its
permit application to include the entire subdivision and the road
access to adjoining lands, virtually all of the effects discussed
below could be considered direct effects of the project.
However, for purposes of these comments the effects in the upland
areas more physically removed from the fill areas will be
3
discussed below as indirect effects. This appears consistent
with applicable regulations and case law although denominating an
effect as direct or indirect is of no legal consequence. Both
must be considered.
In any event, the direct effects of the proposed project
certainly include the obliteration of the wetlands where fill
material will be discharged. The direct effects also include the
destruction of plant and animal life which depend for habitat on
the areas proposed to be filled. Further direct effects include
alteration of the hydrology of nearby wetlands through reducing
the normal flow, circulation, or reach of waters. These changes
may be most pronounced during periods of heavy precipitation
(when ponding or flooding may occur) or during droughts when
normal flow is also critical. All these hydrological changes
will also harm the aquatic life in these additional areas.
Adjacent wetlands will also be threatened with pollutants
carried in the stormwater runoff from the road surfaces.
Ironically, the wetland loss will diminish the pollutant-filter-
ing capacity of the wetlands and allow these pollutants to move
further into the environment. Infiltration of polluted runoff to
groundwater is a possibility. The changes in hydrology at the
surface or near-surface level may also cause changes in the
groundwater hydrology as well.
In addition to these direct effects, the indirect effects of
this project are also numerous. With regard to indirect effects
the CEQ regulations provide that:
Indirect effects may include growth inducing effects
and other effects related to induced changes in the
pattern of land use, population density or growth rate,
and related effects on air and water and other natural
systems, including ecosystems.
Id.
Among the indirect effects of this project are some of the
"growth inducing effects" specifically referred to in 40 C.F.R.
1508.8. These include radical changes in land use and population
density from uninhabited, undeveloped land to an intensely
developed area with literally hundreds of residents. All of the
environmental effects of such a wholesale land use conversion
must be considered. For example, major clearing of vegetation
and removal of both the understory and the canopy of the maritime
forests will occur. The impacts on plant and animal life in the
fragile ecosystem will be dramatic and irreversible.
Furthermore, the multiple individual septic systems for the
houses raise serious concerns. Human wastes and household
hazardous wastes disposed of in these systems may reach ground-
water. (Surface application of pesticides, herbicides and
fertilizers pose similar hazards to groundwater, especially on
4
barrier islands.) If the septic fields are located on ridges
near low-lying wetlands, infiltration and discharge to these
surface waters is possible. Surface runoff from improperly
functioning systems may also occur. Any such impairments of
water quality must be taken seriously because the aquifer
underlying the Buxton Woods is the sole source of drinking water
for the area.
B. The courts have consistently held that NEPA requires con-
sideration of indirect effects in determining whether
environmental impacts will be significant.
The courts have been particularly forceful in requiring
consideration of the growth inducing effects of projects which,
like the BWP project, provide access to relatively undeveloped
areas. This is true even where the induced growth is private and
does not require federal involvement. The courts have required
preparation of an EIS where the indirect environmental impacts of
the increased development induced by the improved access have
been significant, even if the direct environmental impacts have
not been significant.
In the case of Sierra Club v. Marsh, 769 F.2d 868 (1st Cir.
1985), the court reviewed a Corps decision not to prepare an EIS
prior to issuing a permit for the construction of a causeway and
port for Sears Island, an undeveloped island off the coast of
Maine. The Corps had limited its NEPA review to direct impacts
and made a finding that the impacts of the project were not
significant. 769 F.2d at 877-78. The court ruled against the
government, stressing that federal agencies must consider
indirect impacts of the causeway and port, particularly growth
inducing impacts, and scorned the government's failure to
consider the future development of the island which would result
from construction of the causeway. Id.
In City of Davis v. Coleman, 521 F.2d 661 (9th Cir. 1975),
the Ninth Circuit made clear that the fact that some development
may occur without the federal action does not excuse the agency
from considering the development induced by the improved access.
The defendants argued that the development around a proposed
interstate highway interchange would occur without the inter-
change and that it was being built merely to accommodate the
development. The court held that the interchange would induce
development and that, in fact, this was the purpose, or "raison
d'etre" of the interchange. Id. at 675.
Here in North Carolina a federal district court held that an
EIS was required in order to consider the indirect growth
accelerating effects of a marina. Conservation Council of North
Carolina v. Costanzo, 398 F.Supp. 653 (E.D.N.C. 1975). In that
case, the developer applied to the Corps for a permit to con-
struct a marina on Bald Head Island, a barrier island off the
coast of North Carolina. Prior to applying for the marina
permit, the developer had sought to provide access to the island
5
through renovation of an old pier. The Corps denied the pier
renovation permit, so the developer used barges and a floating
dock to deliver construction equipment and materials to the
island. Using these means, the developer built an inn, a golf
course, road beds and several homes. Despite the development
occurring without the marina, the court concluded that it was
inescapable that the marina permit would accelerate upland
development and the acceleration would have a significant effect
on the environment. 398 F.Supp. at 672.
The proposed fills for construction of the wetland crossings
for the community access road system in Buxton Woods will cause
similar growth inducing indirect effects that, according to the
CEQ regulations and the courts in Marsh, Coleman, and Costanzo,
must be considered in evaluating environmental effects. Develop-
ment activity in Buxton Woods, including construction of the BWP
subdivision, will be induced and greatly accelerated by this
construction. As in Coleman, the growth-inducing effects of the
crossing for the road system are their "raison d'etre". Your
assertion in your June 9 letter that "the federal permit for the
access road crossing the wetlands would not cause nor prevent the
development of the upland areas" cannot be squared with the
courts' treatment of other projects involving new or improved
access to undeveloped areas.
C. The Corps' regulations concerning scope of analysis
do not and cannot relieve the Corps of its duty under
NEPA to consider indirect effects such as those dis-
cussed above.
The Corps has recently finalized new regulations that define
the required scope of analysis for NEPA purposes. In conversa-
tions with me you have raised the question of whether these
regulations (and the court decisions on which they were based)
remove BWP's upland development from consideration under NEPA.
The answer to that question, as these comments will show, is that
the new regulations do not and cannot lawfully relieve the Corps
of its duty to consider the upland development as an indirect
effect.
The amended regulations attempt to define and limit the
scope of the action for which NEPA-review must be conducted.
Under the new regulations the Corps must address "the impacts of
the specific activity requiring a . permit and those portions
of the entire project over which the (Corps) has sufficient
control and responsibility to warrant Federal review." 52 Fed.
Reg. 3135 (February 3, 1988). This issue is known informally as
the "small federal handle issue." For purposes of these comments
one can assume that the federal action here involves the activity
for which the permit is sought, i.e. the wetland fills for the
road system crossings. These comments do not advocate expanding
the scope of the federal action itself, but merely seek to assure
that all the direct and indirect effects of that action are
considered.
6
The Corps' regulatory amendments do not address nor purport
to limit the extent to which the effects of the action must be
considered nor could they eliminate the regulatory and case law
requirement that indirect effects such as accelerated upland
development be considered. In participating in the regulatory
amendment process CEQ also drew this distinction:
The scope of analysis issue addresses the extent to
which the proposed action is identified as a federal
action for purposes of compliance with NEPA. Modifi-
cation of the regulation addressing scope of analysis
Once a scope of analysis is
must then assess the direct
effects of the proposed fed
1502.16, 1508.7 and 1508.8.
termined. t
rect
See 40 C.F.R.
52 Fed. Reg. 22523. (emphasis added)
A brief review of the major cases on which the Corps relied
in proposing its regulatory changes, 52 Fed. Reg. 22519 (June 12,
1987), also shows that they involved the scope of the federal
action issue and do not change the requirement to consider
indirect effects. In Winnebago Tribe v. Ray, 621 F. 2d 269 (8th
Cir.). cert. denied, 449 U.S. 836 (1980), the court concluded
that when a federal permit was required for a 1.25 mile river
crossing segment of a 67 mile power line, the Corps needed only
to consider the impacts of the river crossing because the Corps
had no control over the remainder of the project. While the
court affirmed the rule that secondary or indirect effects must
be considered, it rejected the argument that the completion of
the remainder of the power line was an effect of the federally
permitted portion of the line. 621 F. 2d at 273. In doing so
the court emphasized that the power line was a "single project,"
the inference being that completion of the non-federal portion
was neither caused by nor an indirect effect of the federally
permitted portion. Id. The Corps describes this type of project
in its amended regulations and states that, where the federally
regulated activity "comprise(s) merely a link in a transportation
or utility transmission project, the scope of analysis should
address the federal action ... 53 Fed. Reg. 3135 (February 3,
1988.) By contrast, the upland development which will result
from the BWP road access is not such a "mere link" in a single
project but is an indirect, growth induced effect of the federal
action.
Similarly, in Save the Bay, Inc. v. United States Corps of
Engineers, 610 F. 2d 322 (5th Cir.) cert. denied, 449 U.S. 900
(1980), the court did not reach the indirect impacts issue, only
the scope of the project permitted. The court held that the
granting of a construction permit for a chemical plant's outfall
pipeline, the discharge from which had already been permitted
under the NPDES program, did not constitute a major federal
7
I
.
action. 610 F. 2d at 327. There again, the outfall pipeline
over which the Corps had permitting authority did not cause the
plant to be constructed. Thus, the facts are not analogous to
the indirect effects situation presented here.
D. When the project's direct and indirect effects are appro-
priately considered, the Corps must find that the impacts
on the human environment are significant and must require
an EIS.
The CEQ regulations provide criteria that define when a
potential impact is significant. 40 C.F.R. 1508.27(b). A review
of these criteria confirms that the effects of the project
including its wetland fills and community access road system, and
all the growth it induces (including 110 houses with septic
tanks) are significant.
1. The development may adversely affect the aquifer which is the
sole drinking water source for this portion of the Outer Banks
and thus "affects public health or safety." 40 C.F.R.
1508.27(b)(2).
Drinking water supplies in the area in question depend on
the preservation of the aquifer underlying the Buxton Woods.
Threats to the aquifer from this project include infiltration of
contaminants as well as salt water intrusion resulting from
increased water usage and excessive draw down of the fresh water
in the aquifer.
FOHI points out that the proposed development is near the
Public Water Supply Area of Environmental Concern (AEC) expanded
by the North Carolina Coastal Resources Commission in 1987 and is
near the planned well field expansion area. Among the potential
effects which should be assessed is the potential for the
development to contribute contaminants to the aquifer which could
ultimately reach the drinking water supplies. These contami-
nants include sewage, household hazardous wastes and stormwater
runoff from roads. Significantly, some 32 septic fields are
proposed to serve the development. The Corps should determine
the general location of these fields and assess the likely waste
load from them. The increased demand for fresh water and the
potential effects on the aquifer must be addressed, as well.
2. The proposed development will adversely affect the "(u)nique
characteristics of the geographic area" which include wetlands
and ecologically critical areas and are in proximity to national
park lands. 40 C.F.R. 1508.27(b)(3).
It is indisputable that the Buxton Woods have many unique
characteristics and indeed that the area is of regional and even
national significance as a natural resource. Considerable
information regarding the natural heritage of this area was
developed in connection with its recent nomination as a Coastal
8
V
Complex AEC in proceedings before the Coastal Resources Commis-
sion. That information includes a November 1987 compilation of
ecological data by Alan S. Weakley and Michael P. Schafale of the
North Carolina Natural Heritage Program entitled "Buxton Woods
Natural Area," a copy of which is enclosed. This report and
other readily available scientific sources cited therein describe
the ecologically critical areas within the Woods, including
wetlands. Of course, the Woods and the BWP tract are near
national park lands and development on that tract has potential
to affect the park lands.
The proposed development will adversely affect the unique
ecological characteristics of the Woods. The authors of the
above mentioned report conclude at page 4 that the "most signifi-
cant threat" to the Woods is development and that "(b)uilding of
roads and houses disrupts the continuity and natural integrity of
the natural communities and is likely to result in the loss of
much of the biological diversity." Furthermore, they.say,"(p)ro
tection of the Buxton Woods natural area will help insure the
quality of future water supplies."
3. The proposed development's "effects on the quality on the
human environment are likely to be highly controversial." 40
C.F.R. 1508.27(b)(4).
The Corps must take administrative notice of the high level
of public controversy which has surrounded development issues in
the Woods, especially during the past two years. The level of
public interest in the AEC nomination is indicative. The last
public hearing on the nomination, held in Buxton in December
1987, drew dozens of speakers and hundreds of interested persons.
Similar intense public interest has surrounded local land use
planning. Considerable controversy has already developed over
the BWP project in particular.
4. The action on this permit "may establish a precedent for
future actions with significant effects or may represent a
decision in principle about a future consideration." 40 C.F.R.
1508(b)(6).
Granting or denying this permit will establish a precedent
with regard to wetland destruction for road crossings to access
currently undeveloped areas in the remainder of the Buxton Woods
and in other areas on the barrier islands. Proper consideration
of indirect effects, including growth inducing effects, is
therefore especially important.
5. The proposed development "may cause loss or destruction of
significant scientific .. resources." 40 C.F.R. 1508(b)(8).
The Buxton Woods are a unique ecological system and as such offer
irreplaceable opportunities for scientific study. The importance
of these resources of the Woods was widely recognized during
9.
r
Y
the AEC nomination process and should be considered by the Corps.
The development will significantly afffect these resources.
6. The development may effect an endangered species listed
pursuant to the Endangered Species Act of 1973. 40 C.F.R.
1508(b)(9). The U.S. Fish and Wildlife Service has already
notified you by letter dated April 12, 1988 that the endangered
bald eagle and the threatened Arctic peregrine falcon may occur
within the area in question.
II. THIS PERMIT APPLICATION IS FOR A PROJECT WHICH IS NOT
WATER-DEPENDENT AND CANNOT BE GRANTED ABSENT A CLEAR
DEMONSTRATION BY THE APPLICANT THAT NO PRACTICABLE
ALTERNATIVES EXIST.
The Environmental Protection Agency's Section 404(b)(1)
guidelines, which must be followed by the Corps, contain a
fundamental precept that fill should not be discharged to
wetlands unless it can be demonstrated that the discharge will
not have an unacceptable adverse impact. 40 C.F.R. 230.1(c). In
making this determination, practicable alternatives to the
proposed discharge must be examined. 40 C.F.R. 230.5(c).
Where the activity associated with a discharge which
is proposed for a special aquatic site does not require
access or proximity to or siting within the special
aquatic site in question to fulfill its basic purpose
(i.e., is not 'water-dependent'), practicable alterna-
tives ... are presumed to be available unless clearly
demonstrated otherwise.
40 C.F.R. 230.10(a)(3). The BWP subdivision project is not
"water dependent," thus practicable alternatives must be presumed
available. Accordingly, a permit cannot issue unless the
applicant demonstrates otherwise.
The Corps has taken the verbal position that the "activity
associated with the discharge," 40 C.F.R. 230.10(a)(3), does not
include the upland development but is limited to the crossings.
First, the terms "associated with" suggest that consideration of
activity broadly defined was contemplated. Secondly, there is no
reason to define the scope of the "practicable alternatives"
inquiry less broadly than the NEPA evaluation, which as shown
above includes the upland development. Thirdly, the applicant
itself has described the "proposed project" and "development
activities" to include the subdivision and the road access
system. Application Section 3a. And, finally, in applying the
"practicable alternatives" requirement in the "Sweden's Swamp"
controversy EPA and the reviewing court looked at the applicant's
overall purpose, i.e. to build a shopping mall on an 82-acre
site, not merely at the reasons for filling that sub-portion of
10
w
the tract which involved wetlands. Bersani v. EPA, 26 ERC 1679,
1680.
III. IN ITS "PUBLIC INTEREST REVIEW" THE CORPS MUST CONSIDER
THE REASONABLY FORESEEABLE DETRIMENTS CAUSED BY THE
PROJECT AS WELL AS THE FAILURE OF THE APPLICANT TO PRO-
POSE ANY MITIGATION.
The public interest review involves a balancing of the
foreseeable benefits of the project against the foreseeable
detriments of the project. A permit cannot be granted if it
would be against the public interest. Many of the detriments to
be considered in the public interest review have already been
mentioned above as significant adverse impacts. They include the
effect on wetlands, fish and wildlife,. water quality, and water
supply and conservation. 51 Fed. Reg. 41223-26. Those concerns
will not be reviewed again here.
Furthermore, "(m)itigation is an important aspect of the
review and balancing process ..." 41 Fed. Reg. 41227. Nonethe-
less, the applicant has failed to propose any mitigation to
reduce or compensate for the resource losses which will occur
under his proposal.
Other commenters, including government agencies, have raised
the issue of mitigation and FOHI agrees that this factor must be
considered in the public interest review. The U.S. Fish and
Wildlife Service comments of April 12, 1988 state that the
project site is classified as a Resource Category 2 habitat in
accordance with its Mitigation Policy. These habitats are "of
high value" and "are scarce or becoming scarce on a national
basis or in the ecoregion." The Service goes on to outline how
compliance with its policies could be achieved.
Similarly, Charles Roe of the N.C. Natural Heritage Program
has raised the issue of mitigation in a memo to Steve Benton of
the Division of Coastal Management dated April 14, 1988, a copy
of which is enclosed. Mr. Roe appears to be focusing on that
aspect of mitigation which involves avoiding losses to the extent
practicable, as well as on compensation for unavoidable losses.
Accordingly, he recommends that "no construction or alteration of
natural terrain be permitted on the ridgecrest and slopes into
Jeannette Sedge on the south side of the existing Flowers Ridge
Road," as well as acquisition of conservation easements or fee-
simple title by the State for the inter-ridge wetland swales.
These suggestions could provide a useful starting point for
any mitigation proposal from the applicant. Furthermore, the
State's willingness to accept donations or to purchase lands in
the Buxton Woods provides the applicant another excellent avenue
to explore as a means of mitigation. However, as it currently
11
stands, BWP has proposed no mitigation and this must be weighed
heavily in the public interest review.
IV. THE CORPS HAS IMPROPERLY DENIED THE FOHI REQUEST FORA
PUBLIC HEARING.
By letter of June 9, you denied the request for a public
hearing which I filed on behalf of FOHI. Reading the letter as a
whole, I surmise that you believe FOHI's interest in a hearing to
address the project's "overall impacts" would not be "satisfied"
because of your position that the County and not the Corps will
consider the upland development. I request that you review and
reconsider this decision, especially in light of Section I of
these comments regarding the Corps' responsibility to consider
indirect, growth inducing effects.
Furthermore, I point out that the purpose of the hearing is
not only to address the upland development but also to receive
comments on such relevant issues as the direct effects of the
wetland fills, the community access question and the lack of any
mitigation for the resource losses. Requests for public hearing
may only be denied when the issues raised are insubstantial or no
valid interest would be served. 51 Fed. Reg. 41249. I submit
that that is not the case here.
FOHI appreciates the opportunity to submit these comments on
this important permit application and requests that you consider
them carefully. If you have any questions about these comments,
I trust you will contact me to discuss them further. I will also
appreciate your sending me a copy of the Environmental Assessment
as soon as it is prepared.
Sincerely,
Lark Hayes
Director, North Carolina Office
cc: Mr. David Owens, N.C. Division of Coastal Management
V Mr. Paul Wilms, N.C. Division of Environmental Management
Mr. Charles Roe., N.C. Natural Heritage Program
Mr. Dan Besse, Chair, Coastal Resources Commission
Ms. L.K. (Mike) Gantt, U.S. Fish and Wildlife Service
Mr. Randy Cheek, National Marine Fisheries Service
Ms. Beverly Etheridge, EPA, Region IV
Mr. Robert V. Owens, Jr., Chair, Dare County Commissioners
Mr. Thomas B. Gray, Dare County Commissioners
Mr. Elmer R. Midgett, Chair, Dare County Planning Board
Mr. Ray Sturza, Dare County Planning Director
Ms. Carol Anderson, Friends of Hatteras Island
12
'PTI
4.w.u
M4Y
DIV. 0,=&NU140?,t -U47AL MANAGEMENT
Raleigh, NC
Mr. Charles Hollis
Department of the Army
Wilmington District Corps of Engineers
P. 0. ?x 1890
Wilmington, NC 28402
Dear Mr. Hollis:
This refers to Buxton Woods permit # SAW CO 88-N-028-0249
I wish that you would deny this permit as not in the public interest.
The proposed developer would destroy and pollut?the wetlands which are
valuable wildlife habitats and sole recharge areas for the aquifer that
is a public water supply. Development would hinder, if not prevent use =:._
of the area as a park, which is the only use consistent with preservation
of this unique woodland. Please require an Environmental Impact statement
before any permits are issued.
Sincerely,
I
Arthur R. Hall
1439 Valley St.
Harrisonburg, VA 22801
cc:Mr. Paul Wilms, Director, Division of Environmental Management
NC Dent. of Natural Resources and Community
Development

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RESEARCH -INSTiTUTE
W6TER RESOURCES
OF THE UNIVERSITY OF NORTH CAROLINA
Number 246 ,-
CONTENTS
w ???
OPINION: Improved Management of Outer Banks Groundwater Supplie ?'?
Judge Issues Ruling in Lake Gaston/Virginia Beach Pipeline Contc `?% ? ""?' Z SLD O
WR.R._ -Sponsored Research Recommends Continuing Use of ,?
North Carolina Group Is National Leader in Aquatic Toxicology. ,
Michigan Moves to Ban TBT . . - - • • - - • • • ' ' • '
Environmental Management Commissioners Appointed, Barber Declinf U
Alternative Methods of Disinfection of Wastewater Discussed in [
Study Makes Recommendations for Water Management in Dan River BF
Public Hearings Set for Neuse River Nutrient-Sensitive Classific
Graphics Capability Available at the Water. Resources Research Ir
Medina & Moreau Assume Leadership Positions in UCOWR . . . - .
N.C. AWRA Calls for Papers on Coastal' Water Resources forSympo:
Workshops to be Held for Coastal 'Small Producers of Hazardous Wi
Workshops Focus on Hazardous Waste Regulations for Small Generators . . . . . . . . . ,
Water Resources Conditions in North Carolina for July . . . • • • • • • • • . . . . . . . . 7
New Publications Received by the Institute . . . . . . . . . . . . . . . . .
PINION: Ralph C. Heath in an effort to
protect the largest
IMPROVED MANAGEMENT OF stand of maritime
OUTER BANKS GROUNDWATER forest left on the
SUPPLIES NEEDED Outer Banks and the
Cape Hatteras
Aquifer, which provides water to most of the residents
between Hatteras Inlet and Avon, the N.C. Division of
Coastal Management has proposed designating the Buxton
floods area on Hatteras Island as an Area of Environmental
Concern (AEC). The AEC designation would restrict
development in Buxton Woods, and the proposal has created
a great deal of controversy.
In an effort to reach a decision, the Coastal Resources
Commission (CRC) has heard testimony from a number of,
hydrologists regarding the Cape Hatteras Aquifer. The
hydrologists, however, haven't agreed.
On behalf of the Friends of Hatteras Island, I addressed
the Implementation and Standards Committee of the CRC in
July about the hydrology of the aquifer, and I feel the
situation I described to the committee should be widely
publicized so that officials will be encouraged to take
early constructive action,.
It is important to know that-in the Outer Banks hydrologic
area, the fresh-water zone is subject to saltwater
encroachment both from above (lateral encroachment) and
below (upconing). The part of the Cape Hatteras Aquifer
that contains freshwater occupies an area of about five
and a half square miles. The recharge of the aquifer
averages about one million gallons per day per square
mile. It is this recharge of five and a half million
gallons per :ay that formed the freshwater lens in the
,s,,? ._t,« as .n(I'ti"r i•,,i a,hich, tir,ler nurnal conditions,
maintains the natural discharge ww t-h flushes out the
saltwater that tides bring in and thereby prevents lateral
saltwater encroachment.
Under natural conditions freshwater discharge from the
aquifer equals the rate of recharge, and the size of the
lens is protected. However, withdrawals from the well
field reduce the natural discharge, which allows 4,A c.
freshwater/saltwater contact to migrate towards the points
of withdrawal, and, in so doing, reduces the size of the
freshwater lens. -
A'question of critical importance to the Cape Hatteras
Water Authority and to the residents of Hatteras Island is
how much water can be withdrawn from the aquifer without
causing the freshwater lens to contract to the point where
saltwater reaches the wells.
Withdrawals from the Cape Hatteras Aquifer in 1987 have
averaged about half a nillion gallons per day with peak
summer demand of nearly a million gallons per day. The
Water Authority is currently expanding its well field to
meet the expected needs in 1988 of two million gallons per
day. It projects needs of four and a half million. gallons
per day by the year 2000.
My opinion is ,that between three and four million gallons
per day can be withdrawn from the aquifer if the Cape
Hatteras Water Authority institutes a comprehensive
management plan that involves well locations, pumping
rates, and development restrictions. Therefore, I think
it is critical that officials should take immediate steps
to develop a water-management plan to address both water-
level and water-quality concerns.
JUDGE ISSUES RULING In July Federal
IN LAKE GASTON/ Judge W. Earl Britt
VIRGINIA BEACH PIPELINE ruled that the
Corps of Engineers
CONTROVERSY 1111ct restudv two
issues related to the Lake Gastoni'7irginia Beacn u!i flue
project for which the Corps issued 404 construction
10
r
+TELEPHONS 717-2915
,..Gr.- ?"" 27645-
7912
FFICE: 225 PAGE HALL',. N- C STATE UNIVERSITY'. BOX 7912 ; RALEIGH.

BUXTON WOODS NATURAL AREA
ections. Buxton Woods is located on Hatteras
Location and Dir________'
Island in Dare County, due south of the village of Buxton, due
east of the village of Frisco, and north and northwest Flowers
Hatteras Point (Cape Hatteras). Access
runningdsouth from HC
private
' Ridge Road, and a variety, of
Highway 12 (see map)..
Site _ Description: Buxton Woods is the largest remaining maritime
forest n North Carolina. Depending on how one defines the area,
Buxton Woods includes 2500 to 3000 acres. The1NatuacresreaOther
defined in this report contains approximately
maritime 900aacres),tandHBald
large tracts of
Woods (ca. 180
Head Island (ca. 800 acres).
Buxton Woods consists of several Natural Communities, a ity,
recognized in Schafele & Wea198s)MaritimerForest. The
in terms of acreage and appearance,
Maritime Forest occurs on the ridges and slopes of the relict
_ dune field, now stabilized by the forest. In the shallower
swales between dunes occurs a unique variant of Maritime Swamp
Forest dominated by various shrubs and vines. Deepereand wetter
swales, such as Jennette Sedge, are vegetated by sh This
marsh community, dominated by various grasses and sedges.
community is classified in the Interdune Pond type, but it is a
unique variant. In a few spots, fhe swales are deep and wet
enough to preclude all but aquatic plants, and hence are more
typical Interdune Ponds. On the fringes of the forestaritime
particularly on the southern, oceanward edge,-occu
Shrub, essentially a stunted and depauperate form of Maritime
Forest.
The Maritime Forest community is dominated by loblolly pine
(Pinus t_ae_d_a), laurel oak (euercus laurifolia), and, less
frequently, live oak (Quercus?v_irginiana). The predominance of
pine in the canopy of portions of the natural area is related to
natural disturbance as well as a mosaic of disturbancesconsists
man's use of the island. A subcanopy of shorter trees
of such species as ironwood (Carpinus c_ar_o_lin_ian_a), floweeringy
dogwood (Cornus florida), American holly (Ilex opeca),
(Persea bor_bonia), and wild olive'(Osma_nthu_s_ americanus). Shrubs
include dwarf palmetto (Sabal minor), yaupon,(Ilex v_omitoria),
and wax myrtle (MXrica cerifera). Herbs are very sparse. This
---------------------
Primary data gathered from
sSchafale,TNiC.
endvMichaeloP.
compi.l.ation by Alan S. Weakley
Natural Heritage Program, Division of Parks andRVecreation,PN.C.
Department of Natural Resources and Community Development,
Box 27687, Raleigh, NC 27611. November 1987.
1
? '41
forest is typical of.Maritime Forest communities of broad barrier
islands, where they are sheltered from most salt spray.
Maritime Shrub consists primarily of stunted and shrubby
individuals of live oak, red cedar (JuniperuE vir_giniena),
yaupon, and wax myrtle. The composition and structure of this
community results from exposure-to salt spray.
The Maritime Swamp Forest is dominated by swamp dogwood
(Corpus foemina sap. foemina), wax myrtle, and red bay, with
abundant vines, including catbriers (Smilax auriculata and S.
------ ---------- --
laurifolia), poison ivy (Rhus redicans), Virginia creeper
(Parthenocissus guinguefolia), supplejack (Berchemia _s_can_den_s),
peppervine (AmPeloesis arbor__ea), and climbing hydrangea (Decu-
maria berbara). Herb species include marsh fern (The'lypteris
• palustris), royal fern (Osmunda regalis_), and netted chain fern
(Woodwardia areoleta), while openings contain sawgrass (Cladium
amaicense), beakrush (Rhynchospora miliacea), wild rice (Zizania
aguatica), and water pimpernel (Samolus Larv-iflorus). This
shrubby variant of the Maritime Swamp Forest contrasts with the
typical kind, which is dominated by wetland trees. The differ-
ence may be caused by greater depth of the awales and'wetter
conditions here than in other maritime areas. The species compo-
aition and vegetation structure of the swamp here appear to be
unique in the state.
The areas of freshwater marsh, traditionally known as
"sedges", are dominated primarily by wild rice, sawgrass, and
cattail (Typha latifolia), with. less,common herbs including bur
marigold (Bidens leevis), and lanceleaf arrowhead (Sagittaria
lancifolia sap. media). They are generally semipermanently
flooded. These extensive freshwater marshes in the broad swales
are unique in North Carolina. In scattered places the sedges
grade into the typical open water Interdune Pond communities.
The largest and best known of the "sedges" is Jennette
Sedge, which extends along the southeastern edge of the Natural
Area, covering about 400 acres. Smaller and narrower sedges are
present to the north and west. "Water Association Sedge" is
approximately 30 acres. Another relatively large sedge, in the
northeastern part of the woods, is about 40 acres. An additional
large sedge in the northeastern part of the woods has been
disturbed by a large drainage ditch.
Evidence of Disturbance: The primary historic disturbances to
-------- -- -----------
Buxton Woods have been logging, grazing, and human-caused fires
(Bretton and Davison 1987). Heavy free-range grazing ended in
1937. Fires were common until the 1950'x, but were generally
small and had little effect. All recent natural fires have been
extinguished by rain.. Widespread selective cutting of pines and
hardwoods occurred from 1907 to 1911. This logging removed trees
greater the 8-10 inches in diameter. The forest in most of
Buxton Woods has recovered from this timbering.
I( V
The primary recent disturbances in the Buxton Woods have
,been housing development, digging of ponds, development of the
well field, and clearcutting of one tract. A number of new
houses and, 'subdivisions have been built recently on the edge of
the woods. Several swale areas have been dug out to create
artificial ponds. These areas have been excluded from the
primary and secondary boundaries of the natural area. Construc-
tion of the well field involved building roads and some filling
of a sedge area for well pads. The Foreman-Blades tract was
clearcut about 15 years ago and is now covered with scrubby,
young pines and oaks. The well field and part of the cutover
area are included within the secondary boundary of the natural
area.

Surrounding Land Use: Along the north and west sides of
Buxton Woods are the villages of Buxton and Frisco, largely
developed, primarily providing tourist and resort services.
Northern portions of the forest are under strong development
pressure. Land to the south is part of Cape Hatteras National
Seashore and is used for public recreation. Land protected as
National Seashore has provided the primary recreational
attraction for the development of the tourist and resort economy
of the region.
S_u_mma_r_Y of E_c_o_lo_gical S_ignificance_: Buxton Woods is the largest
remaining maritime forest complex in hiorth.Carolina: Despite
some past disturbance, it retains its integrity as an intact
natural area. The Maritime Forest community here is typical of
this natural community type, of which very few intact examples
remain. In contrast to Buxton Woods, the Nags Head Woods
preserve contains unique communities but little or none of the
typical Maritime Forest community type. Other protected maritime
complexes contain only smaller and more fragmentary pieces of
forest.
The swamp forests and freshwater marshes
of their community types, occurring nowhere e
Comparable maritime wetlands are not known in
states. The small protected areas of typical
Forest and Interdune Pond are quite different
Buxton Woods.
are unique variants
lee in the state.
other nearby
Maritime Swamp
from those at
Because of its size and the diversity of habitats present,
Buxton Woods is second among maritime forest complexes only to
Nags Head Woods (which is much closer to the mainland) in
diversity of reptiles and amphibians (Braswell, pers. comm. ). Its
fauna of other vertebrate animal groups is also diverse (Webster,
pers. comm. ; Cooper, pers. comm. ) . Two rare animals use Buxton
Woods: Marsh Killifish occurs in the Interdune Pond natural
community and the Peregrine Falcon (Falco'peregrinus), a
federally Endangered Species, makes frequent use of the woods and
adjacent openings during fall migration. Eight rare plant
species monitored by the North Carolina Natural Heritage Program
have been reported from the area, the greatest concentration of
rare plant species on the Outer Banks of North Carolina (Nags
Head Woods has two monitored rare plant species, Bald Head Island
has four Y. Most of the eight are associated with the wetlands in
the Natural Area (see Table 1).
_Other _Valu_es_ and _Significance: Buxton Woods is the recharge area
for the shallow ground water aquifer that is the source of
drinking water for the towns of the island. The economy of the
area is dependent on this economic and high quality water source.
The Hatteras Island Water Association well field is located
within the secondary boundary of the natural area. An area
planned for future expansion of the well field is also included
in the area. Protection of the Buxton Woods natural area will
help insure the quality of future water supplies.
_Threats a
nd Needs Summary: The most significant threat to Buxton
--- ----- ----
Woods Natural Area is development, which is already occurring in
other parts of the woods. Building of roads and houses disrupts.
the continuity and natural integrity of the natural communities
and is likely. to result in the loss of much of the biological
diversity. High density development, golf courses, and filling or
excavation of wetlands are likely to totally destroy these
communities. Such activities also pose the threat of overuse of
groundwater supplies and of pollution of groundwater through
septic tanks.
Ecological Boundaries Explanation:
Primary: The primary boundary (Maps 1 and 2) shows the area
deemed most critically important to protecting the unique natural
features of Buxton Woods. Area within the primary boundary is
approximately 1400 acres, of which nearly 800 acres is in
National Seashore ownership. The integrity of Buxton Woods as a
natural area has so far been largely maintained by the general
absence of development of the private tracts. The portions of
Buxton Woods owned by the National Seashore are only a small
portion of the natural area, and are not sufficiently large to
serve as a viable natural system if adjoining private tracts are
developed.
The primary boundary includes Jennette Sedge, a smaller
sedge, several swamp forest swales, and the highest quality
Maritime Forest communities. The northern boundary is drawn to
follow the base of a dune ridge in the western part and the crest
of a dune ridge in the eastern part. The southern boundary
follows the edge of the forest, excluding the National Park
Service campground and maintenance area. The southern portion of
the primary area is protected under National Park Service
ownership and is designated on the North Carolina Registry of
Natural Heritage Areas. Preservation of the rest of the primary
area is necessary to encompass greater variation in communities,
4
w i d:9N' .' it

to protect the rest of Jennette Sedge, and to provide adequate
contiguous area to ensure the viability of the communities and
species. The hydrologic system is especially important; the
dredging pr filling of one portion of a sedge or swamp forest
swale would result in degradation of the hydrologic quality of
the remainder.
Secondary: The secondary boundary encompasses about 400 acres of
land adjacent to the primary area, for which protection is
desired as a buffer to provide additional security for the
primary area. It consists of areas that are somewhat less
significant because of disturbance or lack of contiguity with the
highest quality areas. It contains the well field and part of
the cutover tract, as well as a portion of an additional sedge,
the northernmost, which has a ditch in it. ^
Tertiary: The tertiary area (not mapped) is not considered a
portion of the Natural Area; natural tracts in this area are
already somewhat fragmented by development. It consists of
additional lands included within the proposed Area of Environ-
mental Concern, generally extending from the secondary boundary
to 500-1000 feet from Highway 12 and SR 1232. Large scale or
poorly planned development in this area could have impacts on the
integrity of the Natural Area as well as on the island's water
supply.
Protection Strate9Z+ S_um_ma_r_Y: The highest priority for protection
is the portion of the primary area;not already owned by the
National Park Service. These areas should be permanently protec-
ted in their natural state. No development should occur in them.
The area within the secondary boundary also should be protected
and disturbance of the communities avoided. Future expansion of
the well field along the same line as the existing field should
be done with safeguards to minimize disturbance to wetlands and
forest areas.
Excessive use of ground water, causing the water table to drop
significantly, would be detrimental to the natural area as well
as to the municipal water supply.' Removal or blocking of the
large ditch that runs through the northeast part of the woods, in
order to eliminate this disruption of the area's hydrology,
should be strongly considered. The tertiary area is not a
priority for acquisition. Development in these areas should be
done with care to avoid damage to the environment of the natural
area, as well as the island as a whole. Development of these
areas in accordance with guidelines set forth in the AEC proposal
should cause little harm to the natural area, and will help
maintain the features which attract many people to the area.
5

Sources Cited:
Braswell, Alvin, North Carolina Museum of Natural Science. Pers.
comTp. (1987) .
Bratton, S. P. and K. Davison. 1987. Disturbance and Succession
in Buxton Woods, Cape Hatteras, North Carolina. Castanea
52: 166-179.
Cooper, Samuel, University of North Carolina-Wilmington. Pers.
comm. (1987).
Schafale, M. P. and A. S. Weakley. 1985. Classification of the
Natural Communities of North Carolina. Second
Approximation. Natural Heritage Program, Ralei.gh, NC.
Webster, William D, University of North Carolina-Wilmington.
Pers. comm. (1987).
E.
}
E

TABLE 1. SUMMARY OF NATURAL COMMUNITIES AND RARE SPECIES:
Element Name

' state
status federal
status
G rank
S rank
PLANTS
Cyperus tetragonus SR -- Si G3G5
Four-angled flatsedge
Eleocharis cellulose SR -- S1 G?
Gulfcoast spikerush
Lilaeopsis carolinensis T C2 S2 G3
Carolina lilaeopsis
Listera australis SR -- S2 G4
Southern twayblade
Ludwigia elate, SR -- S2? G?
Winged seedbox
Ludwigia lanceolate SR -- SIS14 G?
Lanceleaf seedbox
Ludwigia microcarpa SR -- S2 G3G4
Tiny-fruited seedbox
Malaxis spicata SR -- S1 G3G5
Florida adder's mouth r
ANIMALS:
Falco peregrinus E LE S2 G3
Peregrine Falcon
Fundulus confluentus SC -- S2? G4?
Marsh Killifish
COMMUNITIES:
Interdune Pond--freshwater marsh -- -- S2T1 G3T1
Interdune Pond--open water -- -- S2 G3
Maritime Forest -- -- S1 G3
Maritime Shrub -- -- S3 G4
Maritime Swamp Forest -- -- S1 G1

Z From Sutter. R.D., L. Mansberg, and J.H. Moore.
Endangered, threatened. and rare plant species of North
revised list. ASB Bulletin 30:153-163, and updated lists
peritage and Plant Conservation Programs.
E = Endangered
T = Threatened
SC = Special Concern
PP = Primary Proposed
SR = Si nificantl Par
1983.
Carolina: a
of the Natural
g y e ,
E.T.and SC species are protected by state law (the Plant Protection and
Conservation Act. 1979); the other two categories indicate rarity and
the need for population monitoring, as determined by the Plant Conserva-
tion and Natural Heritage Programs.
2 From Federal Register. December 15. 1980, Part IV; Federal
Register. July 27. 1983; Federal Register. November 28.,;1983. Part II.
Department of Interior. Established by the Endangered Species Act of
1973. as amended.
E = Taxa currently listed as Endangered
T = Taxa currently listed as Threatened
PE = Taxa currently proposed for listing as Endangered
PT = Taxa currently proposed for listing as Threatened
Tana under review for possible listing ("candidate species"):
Cl = Taxa with sufficient information to support listing
C2 = Taxa without sufficient information to support listing
3
From the Nature Conservancy. 1985. Global element rank:
worldwide status. Unpublished listing.
'GI = Critically imperiled globally because of extreme rarity or
otherwise very vulnerable top'exinction throughout its range.
G2 = Imperiled globally because of rarity or otherwise vulnerable
to extinction throughout its range'.
G3 = Either very rare and local throughout its range, or found
locally in a restricted area.
G4 = A -Rrently secure globally. though it may be quite rare in
., s of its range (especially at the periphery).
G5 = Demonstrably secure globally. though it may be quite rare in
parts of its range (especially at the periphery).
GU = Possibly in peril but status uncertain; need more information.
GX = Believed to be extinct throughout range.
Q = a suffix attached to the Global Rank indicating questionable
taxonomic status.
.T_ = an additional status for the subspecies or variety; the G rank
then refers only to the species as a whole.
From Cooper, J.E., S.S. Robinson, and J.B. Funderburg (Eds.).
1977. Endangered and Threatened Plants and Animals of North Carolina.
N.C. Museum of Natural History, Raleigh. NC. 444 pages + i-xvi, and
updated lists of the Natural Heritage Program.
E = Endan-e__a
T = Threatened
SC = Special Concern
UD = Undetermined
_ . Y
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A RESOLUTION IN SUPPORT OF PUBLIC ACQUISITION
OF KEY TRACTS OF THE BUXTON WOODS FOREST FOR THE PURPOSE
OF PRESERVATION
Whereas, the Dare County Board of Commissioners is responsible for
protecting the health and welfare of the residents and visitors
in the County of Dare, and
Whereas, the fresh water aquifer that lies beneath the Buxton. Woods
Forest currently serves as the principal supply of drinking
water for the residents of Hatteras Island, and
Whereas, there is evidence to indicate that there is a relationship between
the presence of this fresh water aquifer and the presence of
certain vegetative and geological conditions in the Buxton
Woods Forest that could be altered in a fashion detremental
to public health and welfare should the Buxton Woods Forest
be developed unwisely, and
Whereas, the public acquisition of key tracts of the Buxton Woods
Forest for the purpose of preservation has been identified as
the most effective and acceptable way to insure that the Buxton
Woods Forest is not altered in a manner that could endanger
the long term viability of its, subterranean fresh water supply,
Now, therefore be it resolved that 'tbe Dare County Board of Commissioners
supports the acquisition, at fair market value, of key parcels of the 'Buxton
Woods Forest, by the State of North Carolina and its agencies, for the
purpose of preserving these tracts of land in their natural' state.'
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MAY 2a i988
DIV OFENVIRORNali.°?tV7l?L:?1{AP ACEMENT
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140A,a, , NC, -79
cc. '. ec, P Us 1rVA s

Michael Halminski
Rt. 12
April 11 ;1987982
Mr. William Mills'
P.O. Box 27687
Raleigh, N.C. 27611-7687 of
Dear Mr. Mills:
Recently, Dare County zoned the area of Buxton Woods a
special environmental district, (SED-1). The general intent
of this designation is to protect public health and welfare,
by preserving the unique and irreplaceable natural resource
assets of the land, vegetation, surface waters and under-
ground waters of this district.
I have just reviewed a Corps of Engineers public notice in
which Buxton Woods Partnership has applied for a permit to
place 1,500 cubic yards of fill spanning 4 wetland areas. This
is associated with construction of an access road in Buxton
Woods. Currently, the Buxton Woods area is under heavy develop-
mental pressure. Most areas considered for development need
access over wetlands to get to building sites. If access
through these areas is granted, it must be done with minimul
damage to the environment. Placing fill in wetlands constitutes
great environmental damage, especially on a cumulative scale,
that is being done in Buxton Woods. Such actions should be given
careful deliberation in the permit process.
If permits are constantly granted to fill these important
wetland areas, the cumulative effects would be contrary to the
public interest, that is, the national concern for protection
and utilization of important resources.
I strongly urge you to carefully consider the cumulative
effects of filling wetlands in the Buxton Woods Special Envir-
onmental District. Permits to fill wetlands should be denied
unless absolutely necessary, and no other alternatives are
available. Would it not be feasible and much more environment-
ally sound to construct wooden bridges in these fragile areas?
I appreciate and thank you for your attention in this
matter.
Sinc rely,
Michael Halmi.nski
cc: Alison Arnold, Corps of Engineers
Wilmington District

- _ .1
N. C. Division of Environmental Management
P.O. Box 27687
Raleigh, North Carolina 27611-7687
RE: SAWC088-N-028-0249 March 31, 1988
Buxton Woods Partnership
P.O. Box 158
Frisco, N. C. 27936
April 9, 1988

APR 2 /I i J '•J
Dear Mr. Mills:
In reference to the above permit application in Buxton Woods, I would like to
request that this permit be denied. Nay reason for this request is that the
granting of this permit to fill wetlands in Buxton Woods is not in the public
interest at this time.
The attached copy of my letter to the Corps of Engineers states my position
from a land acquisition viewpoint.
Another reason for concern over this type of permit is the effect this will
have on the acquifer and the recharge area. This particular developement will
not be on Cape Hatteras Water Association water so each lot will be drilling
it's own well. This could be over 100 wells. What will be the cummulative
effect on the over-all system? Does anyone really know the answer to that
question? Should permits to fill wetlands for any purpose be granted before
answers are obtained on a variety of questions concerning that maritime forest
aquifer and recharge area: I would hope not.
Ralph Heath is currently doing a water study for CHWA as a result of all the
unanswered questions that came out of the CRC hearings on Buxton Woods last
year. Is he aware of this latest developement and should he be consulted?
I'm sure you can see my concern regarding this permit. We're talking about
the water I drink and that every person in four communities on Hatteras Island
drink. This is not a property right issue but a public interest issue. I
would appreciate your comments on this COE permit request. Thank you.
Sincerely yours,
s
Roy T. Johnson
coPti

Department of the Army
Wilmington District, Corps of Engineers
P.O. Box 1890
Wilmington,. North Carolina 28402-1890
RE: SAWC088-N-028-0249 March 31, 1988
Buxton Woods Partnership
Dear Ms. Arnold:
P.O. Box 158
Frisco, N. C. 27936
April 9, 1988
In reference to the above permit application in Buxton Woods, I would like to
request that this permit be denied. My reason for this request is that the
granting of this permit to fill wetlands in Buxton Woods is not in the public
interest at this time.
As I'm sure you're aware, Buxton Woods has been the subject of intense State,
County and public scrutiny over the past eighteen months. As a result of all
those hearings, intensive scientific participation and strong public input, the
following has been accomplished:
1. The Coastal Resources Commission has agreed that Buxton Woods qualifies
as a "Coastal Complex Natural Area" as defined under CAMA.
2. Dare County has enacted a "Special Environmental District-SED-1" for
Buxton Woods.
3. The CRC has tabled their AFC designation, for the present, and "
permitted the county SED-1 to have primary responsibility for the
protection of Buxton Woods, with State review.
All parties agreed that a partnership should be created in the area of land
acquisition, which is the ultimate protection for a fragile, unique area such
as Buxton Woods and it's underlying aquifer.
To that end, the Division of Coastal Management is actively negotiating with
landowners in Buxton Woods and in fact, has purchased the Blades-Forman tract
earlier this year.
Dare County has gone on record supporting the land acquisition initiative in
Buxton Woods. They are also looking into ways to provide funding for this
project.
Congressman Walter B. Jones has already provided Federal funding for this initia-
tive and is currently trying to acquire additional funding thru Congress.

page 2 - Corps of Engineers
The public is also getting involved with such local groups as the "Friends of
Hatteras Island" gearing up to solicit the private and business communities
for funds. State and National organizations such as the "Nature Conservancy"
and the "National Wildlife Federation" also may include Buxton Woods in their
funding plans;
What does all of this mean to the Corps of Engineers and it's permits to fill
wetlands?
It means that it would be totally counter-productive to grant permits to fill
wetlands in Buxton Woods, for any purpose, wbile other Federal, State and County
entities are proceeding with land acquisition plans in the same area.
The main reason for these permit requests is to provide access to or increase
the capability of developable land. If that occurs, the value of that land
increases drastically and land acquisition chances are diminished drastically.
That is why the granting of such permits at this time, in Buxton Woods, is
not in the public interest.
I would hope that the Corps of Engineers would join in this partnership created
to protect Buxton Woods and it's acquifer. Let's give the land acquisition
initiative a chance to succeed by denying this referenced permit request and
any other similiar requests in Buxton Woods, at least for a reasdnable length
of time.
The public interest will be better served by,that course of action.
Sincerely yours,

Roy T. Johnson
cc: David Owens DCM
William Mills MN u"'
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I a

BUXTON WOODS AEC NOMINATION
Experts Comments Received
(as of 7/9/87)
Dr. Vincent Bellis
Professor of Biology
East Carolina University
Dr. Bruce Bortz
Planning & Development Dept.
Town of Nags Head, NC
Dr. Susan'P. Bratton
• Institute of Ecology
University of Georgia
Mr. David Brower
Center for Urban & Regional Studies
University of North Carolina
Dr. Joan G. Ehrenfeld
Center for Coastal & Env. Studies
Rutgers University
Dr. L.L. Gaddy
Consulting Biologist
Walhalla, SC
Ms. L.K. (Mike) Gantt, Field Supr.
Division of Ecological Services
U.S. Fish & Wildlife Services
Mr. Thomas Hartman
Superintendent
Cape Hatteras National Seashore
Mr. Ralph C. Heath
Hydrologist .
U.S. Geological Survey
Mr. Harry E. LeGrande, Jr.
Zoologist
Natural Heritage Program, NC-DNRCD
Dr.. Albert E. Radford
Department of Biology
University of North Carolina
Dr. Ernest Seneca
Department of Botany
N.C. State University
ry
Ms. Julie Moore
Botanist -
Natural Heritage Program, NC-DNRCD
Dr. William Oliver
Division of Archives & History
NC Dept. of Cultural Resources
Ms. Deborah S. Paul
Nongame Section Manager
Division of Wildlife Management
Dr..David S. Phelps
Dept. of Sociology & Anthropology
East Carolina University
Dr. Maurice C. Powers
Professor of Geology
Elizabeth City State University
Mr. David H. Rackley
Division of Ecological Services
U.S. Fish & Wildlife Services
Mr. Chuck Roe .
Coordinator
Natural Heritage Program, NC-DNRCD
Mr. Steven J. Steinbeck
Division of Health Services
NC Dept. of Human Resources
Dr. Richard Stephenson
Dept. of Geography & Planning
East Carolina University
Mr. Kent Turner
Resources Management Specialist
Cape Hatteras National Seashore
Mr. M.D. Winner, Jr.
Coastal Hydrologist
U.S. Geological Survey
Mr. Charles Hollis
Regulatory Functions Branch
U.S. Army Corps of Engineers
.
6J_ /l ?? ? (9?Z? J l ? ll d'd
s '
4 10 UZI
/? JUN 9 78
MAY 23 19P3
WATER ,QUALITY DIV. OF ENVIRONMENTAL MANAGEMENT
- S i O N: Raleigh, NC
s ?
100

P.O. Box 430
Hatteras, N.C. 279+3
May 16, 1988
? D
Mr. Paul Wilms, Director MAY 17 1988
Div. of Environmental Management
Dept of Natural Resources and Community Development ply OF ENVIRONMENTAL MANAGEMENT
P.O. Box 27687 Raleigh, NC
Raleigh, N.C. 27611
Dear Sir:
We would like to register our opposition to permit # SAW C088-
N-028-0249 for a development in Buxton Woods.
k
We think there should be an Environmental Impact Statement and
Study before the permits are granted to determine the effects
the development and necessary roads will have on our public water
supply. We are concerned that important recharge areas will be
eliminated, also the sinking of wells and the addition of 110
septic tanks will surely effect the only water supply we have.
Various governmental agencies are considering the purchase of
land in Buxton Woods to preserve this area for the benefit of
present and future generations. The approval of this permit
would take away this chance to preserve Buxton Woods.
Please plan a public hearing to allow interested residents to
express their feelings.
Cordially, p f'?
Bernice S. Peterson
_ y ?1Cj
oberf A. Peterson, Sr.

BBB
MAY 25 1988
DIV. OFENVIRONMENTAL

i
11/7 A ?, ./ /,/A I

1
-151,11 , ????
__-_ -_
?'?

Cg 4,4j derSd A)
?._OA 3OZ
Al ? a7QZ4
_??• ___ ./8 ?._.__ _._ .___ _._ _ ?kAY 23 1988
DIV. OFENVIRONMENLgL MANAGEMENT
Raleigh, NC
r
11,

10
DIVISION OF ENVIRONMENTAL MANAGEMENT
June 14, 1988 n
MEMORANDUM

TO: William C. Mills t -'
Operations Branch
FROM: William J. Moore, Environmental Technician 17 7--A--
Water Quality Section, WaRO
SUBJECT: Corps Public Notices
Dare County
The following projects have been reviewed for impacts on water quality.
It is not anticipated that this Division would object to the proposed
activities.
(1) Curtis Gray - Buxton Woods
(2) Michael Cowal - Buxton Woods
(3) Leon Scarborough - Buxton Woods
(4) Buxton Woods Partnership Buxton Woods
(5) Jack White - Kitty Hawk
(6) William Lamb - Winfall
If you have any questions, please advise.
WJM/cm
DIVISION OF ENVIRONMENTAL MANAGEMENT
June 14, 1988
MEMORANDUM

TO: William C. Mills ; ... r. 4.
Operations Branch
FROM: William J. Moore, Environmental Technician ?jf7
Water Quality Section., WaRO _
SUBJECT: Corps Public Notices
Dare County
The following projects have been reviewed for impacts on water quality.
It is not anticipated that this Division would object to the proposed
activities.
(1) Curtis Gray - Buxton Woods
(2) Michael Cowal - Buxton Woods
(3) Leon Scarborough - Buxton Woods
(4) Buxton Woods Partnership Buxton Woods
(5) Jack White - Kitty Hawk
(6) William Lamb - Winfall
If you have any questions, please advise.
WJM/cm
DEPARTMENT OF THE ARMY
Wilmington District, Corps of Engineers
Post Office Box 1890
Wilmington, North Carolina 28402-1890
SAWC088-N-028-0249 April 28, 1988
PUBLIC NOTICE AMENDMENT
Notice is hereby given of amendments to the March 31, 1988 public notice
for the following project: BUXTON WOODS PARTNERSHIP, application for a
Department of the Army permit TO PLACE FILL MATERIAL IN WETLANDS ADJACENT THE
ATLANTIC OCEAN ASSOCIATED WITH CONSTRUCTION OF AN ACCESS ROAD, BUXTON WOODS,
Dare County, North Carolina.
The subject public notice inaccurately stated that the Dare County
Planning Board has reviewed and has endorsed this proposed plan for access to
highground, ridge properties. PLEASE BE ADVISED THAT THE COUNTY PLANNING
BOARD HAS NOT REVIEWED OR ENDORSED THE PROJECT.
In addition, THE COMMENT PERIOD FOR THIS PROJECT HAS BEEN EXTENDED BY 30
DAYS. Written comments pertinent to the proposed work will be received in
this office, Attention: Ms. Alison Arnold, until 4:15 p.m., May 25, 1988, or
telephone [phone].

Regulatory Branch
SUBJECT: File,No...SAWC088-N-02.8-0249
DEPARTMENT aF THE ARMY
WILMINGTON DISTRICT CORPS OF ENGINEERS tib n ! -
P.O. BOX 1890 " - ±
WILMINGTON, NORTH CAROLINA 28402.1890
April 15, 1988'x.
IN REPLY REFER TO
Ms. Carol W. Anderson, President
Friends of Hatteras Island
Post Office Box 692
Buxton, North Carolina 27920
Dear Ms. Anderson:

Thank you for your letter of April 8, 1988, commenting on the
application of Buxton Woods Partnership for Department of the Army
authorization to place fill waterial in wetlands for access road
construction, Buxton Woods, Dar, County, North Carolina.
We appreciate your interest and concern. Please rest assured
that your comments, as well as the comments, policies and
guidelines of County, State and Federal agencies, will be given
full consideration.
If you have additional comments or questions, please do not
hesitate to contact Ms. Alison Arnold, telephone [phone].
Sincerely,
Charles W. Hollis
Chief, Regulatory Branch
Copy Furnished:
Mr. William Mills
Water Quality Section
Division of Environmental Management
North Carolina Department of
Natural Resources and
Community Development
Post Office Box 27687
Raleigh, North Carolina 27611-7687
NT OF THE ARMY
ICT, CORPS OF ENGINEERS
. BOX 1890
3TH CAROLINA 28402-1890
19, 1988
3-0249
'r
30
i t..:
514
ril 14, 1988, whereby you
ands of Hatteras Island, an
:o submit concerns and/or comments
Eton Woods Partnership for
ation to place fill material in
action, Buxton Woods, Dare County,
r request, we hereby extend the
1988 public notice from April a5
aagrding this application may be
Regulatory Branch.
Sincerely,
Charles W. Hollis
Chief, Regulatory Branch
t
I
01
:r LL'
CL -j Z
I
#i. ,?;_,
:.::-???
?`a -'`°
?'

-2-
Copies Furnished:
Mr. Joh%'Parker '
Division of Coastal Management
North Carolina DeparE'ment ofd
Natural Resources and
Community Development
Post Office Box 27687
Raleigh, North Carolina 27611-7687
Mr. David Griffin
Elizabeth Regional Office
North Carolina Division
of Coastal Managment
108 South Water Street
Elizabeth City, North Carolina 27909
Mr. William Mills
Water Quality Section
Division of Environmental
Management
North Carolina Department of
J Natural Resources and
Community Development
Post Office Box 27687
Raleigh, North Carolina 27611-7687
Ms. L. K. (Mike) Gantt
U.S. Fish and Wildlife Service
Post Office Box 25039
Raleigh, North Carolina 27611-5039
Mr. Randy Cheek
National Marine Fisheries Service
Habitat Conservation Division
Pivers Island
Beaufort, North Carolina 28516
Ms. Beverly Etheridge, Chief
Wetlands Section
Marine and Estuarine Branch
Region IV
U.S. Environmental Protection Agency
345 Courtland Street
Atlanta, Georgia 30365
pART NT OF NAf?At
NOH CAR L,INA Y
F?
'ANf)'dCbl1?1' bN1'11"1 `?? EL6?Tv1EiV '
'RE Z
Date 198
To:
From:
Remarks: Z Z- ?A& C"
O
- 'AC IT
N
? Note andfile ? Note, initial and forward
? Note and return to me ? Your "comments, please
? Note and see me about this ? For your Information.
? For your approval ? Prepare reply" for my signature
??Per, our conversation ,.... ? Prepare information for me-to,reply-- -
? Per your-request ? Please answer, with copy to me
Wpm .with'-more datalli To be filed , '

?r
WILE 6- Ul , ERE'
M
Of' _ r
s
'Phone
AREA CODE NUMBER XT ENSION
71,1 ?7
y.
Signed
TELEPHONED;. :' PLEASE CALL '> ?,
CALLED,TO $EE YOU WILL.';CALL,AGAIN
-WANTS TO SEE:YOU- URGENT
' RETURNED YOUR CALL
N.- Dept-. of NaturahResources and:Community;Development

Southern Environmental
137 EAST FRANKLIN STREET ,kUIFE30--CHAPEL HILL, NC«2,,7514
April 18, 1988 5
Mr. Bill Mills WA s E
SEC 101N
Operations Branch
Division of Environmental Management
NC Department of Natural Resources and
Community Management
P. O. Box 27687
Raleigh, NC 27611
Law C?"P?f"er
[phone] or (919) 967-0? n
201 West M t;. uite 14
r C t?mp19?Li ? i A 22901-5033
t k 1 ' ( 0 4090
s.
(APR..
20
DIV. OFENViRONta9FtdT LMAIYAGNCINT
Raleigh, NC

Re: Section 401 Certification for Buxton Wooods Partnership,
SAWCO-N-028-0249
Dear Mr. Mills:
I enjoyed speaking with you by telephone last Friday and
appreciate your forwarding me the information requested on the
above-referenced request for Section 401 certification. On
behalf of the Friends of Hatteras Island (FOHI) I am hereby
requesting that a public hearing e held pursuant to 15 N.C.A.C.
2H.0503(a). I will also tak s opportunity to offer some
brief comments on the request for certification.
First, with regard to the public hearing request, I'm sure you
are aware that the Buxton Woods area is a unique ecological
resource in our State. Both the Coastal Resources Commission and
the Dare County Board of Commissioners have spent literally
hundreds of hours over the past two years considering the natural
heritage and water supply resources in the Woods as well as the
appropriate means to protect them. Governor Martin is on record
as favoring significant public acquisition of lands in the Woods.
The proposed development of 110 residences with individual septic
tanks accessed by roads constructed over filled wetlands will
have a significant impact on this resource and its water quality.
Accordingly, I r t a determination from the Division of
Environm nt that i in e pu is interest that
a public hearing for the--PuTpes-e-of-'F'eview public comment and
additional information be held prior to granting or denying
certification..." 15 N.C.A.C. 2H.0503(a).
Secondly, I will comment briefly on the substantive determination
before DEM in order to suggest to you the range of issues upon
which the FOHI and others will want to comment more fully at the
public hearing. Of course, "(a)ny applicant for a Federal
license or permit to conduct any activity... which may result in
any discharge into navigable waters" must obtain State
certication that "any such discharge will comply with the
applicable provisions" of the Clean Water Act. 33 U.S.C.
1341(a)(1).

1 ?
This certification decision must certainly include a
determination that neither the narrative or numerical standards
in the State's water quality regulations will be violated. DEM
must look at the proposed discharge to wetlands and at the
impacts from the total project which "but for" (to use your
phrase) the wetland filling could not occur.
The key narrative standard is, of course, the antidegradation
policy of 15 N.C.A.C. 2B.0201. One could argue that on its face
the antidegradation policy prohibits any filling of wetlands
insofar as the discharge of fill material to wetlands effectively
eliminates these waters of the State altogether, and certainly
eliminates an existing use in violation of the policy.
In view of the fact that Congress has authorized filling
wetlands under limited circumstances set forth in Section 404
implementing regulations, one must conclude that filling
wetlands authorized by Section 404 is not contrary to
antidegradation policy. Any filling of wetlands not
authorized remains violative of the antidegradation policy.
of
and
of
the
so
Accordingly, as DEM determines whether the proposed discharge and
wetland filling violates the State's antidegration standard, DEM
must necessarily address the question of whether the discharge is
outside the scope of the policy by virtue of being authorized by
Section 404 and implementing regulations including the Section
404(b)(1) guidelines found at 40 C.F.R. 230.1 et sec,. Reference
to these guidelines to inform the interpretation of the State's
antidegration policy and the Section 401 certification generally
is critical where the State has no substantive regulations to
guide the certification process.
In order to address the antidegradation issue in the manner I
believe is required, DEM will need to gather additional
information from the applicant. I have reviewed both the
Application and the Public Notice and neither contain the
necessary data. By way of example, I note an absolute lack of
information relating to "practicable alternatives" and potential
effects on municipal water supplies. See Subparts B and F of the
Section 404(b)(1) guidelines, respectively. DEM has authority to
obtain the relevant information from the applicant pursuant to 15
N.C.A.C. 2H.0501(c).
Furthermore, a sufficiently detailed determination with regard to
potential violations of the state's numerical water quality
standards will also be important. For example, DEM should review
the potential impact of the installation of 110 individual septic
systems in this fragile ecosystem. The potential for
infiltration of the waste through the ridges and discharge to
surface water in the lower swales with resulting violations of
2.
-? . "Ilk .
Southern
1371EAST FRANKLIN STREET
i
April 18, 1988
Environmental Law Center
SUITE 30 CHAPEL HILL, INC 27514 [phone] or [phone]
Mr. Bill Mills
Operations Branch
Division of Environmental Management
NC Department of Natural Resources and
Community Management
P. 0. Box 27687
Raleigh, NC 27611
Regional Office
201 West Main Street, Suite 14
Charlottesville, VA 22901-5033
[phone]

R
WATER !'ti('
Re: Section 401 Certification for Buxton Wooods Partnership,
SAWCO-N-028-0249
Dear Mr. Mills:
I enjoyed speaking with you by telephone last Friday and
appreciate your forwarding me the information requested on the
above-referenced request for Section 401 certification. On
behalf of the Friends of Hatteras Island (FOHI) I am hereby
requesting that a public hearing be held pursuant to 15 N.C.A.C.
2H.0503(a). I will also take this opportunity to offer some
brief comments on the request for certification.
First, with regard to the public hearing request, I'm sure you
are aware that the Buxton Woods area is a unique ecological
resource in our State. Both the Coastal Resources Commission and
the Dare County Board of Commissioners have spent literally
hundreds of hours over the past two years considering the natural
heritage and water supply resources in the Woods as well as the
appropriate means to protect them. Governor Martin is on record
as favoring significant public acquisition of lands in the Woods.
The proposed development of 110 residences with individual septic
tanks accessed by roads constructed over filled wetlands will
have a significant impact on this resource and its water quality.
Accordingly, I request a determination from the Division of
Environmental Management that "it is in the public interest that
a public hearing for the purpose of reviewing public comment and
additional information be held prior to granting or denying
certification..." 15 N.C.A.C. 2H.0503(a).
Secondly, I will comment briefly on the substantive determination
before DEM in order to suggest to you the range of issues upon
which the FOHI and others will want to comment more fully at the
public hearing. Of course, "(a)ny applicant for a Federal
license or permit to conduct any activity... which may result in
any discharge into navigable waters" must obtain State
certication that "any such discharge will comply with the
applicable provisions" of the Clean Water Act. 33 U.S.C.
1341(a)(1).
h
This certification decision must certainly include a
determination that neither the narrative or numerical standards
in the State's water quality regulations will be violated. DEM
must look at the proposed discharge to wetlands and at the
impacts from the total project which "but for" (to use your
phrase) the wetland filling could not occur.
The key narrative standard is, of course, the antidegradation
policy of 15 N.C.A.C. 2B.0201. one could argue that on its face
the antidegradation policy prohibits any filling of wetlands
insofar as the discharge of fill material to wetlands effectively
eliminates these waters of the State altogether, and certainly
eliminates an existing use in violation of the policy.
In view of the fact that Congress has authorized filling
wetlands under limited circumstances set forth in Section 404
implementing regulations, one must conclude that filling
wetlands authorized by Section 404 is not contrary to
antidegradation policy. Any filling of wetlands not
authorized remains violative of the antidegradation policy.
of
and
of
the
so
Accordingly, as DEM determines whether the proposed discharge and
wetland filling violates the State's antidegration standard, DEM
must necessarily address the question of whether the discharge is
outside the scope of the policy by virtue of being authorized by
Section 404 and implementing regulations including the Section
404(b)(1) guidelines found at 40 C.F.R. 230.1 et sec.. Reference
to these guidelines to inform the interpretation of the State's
antidegration policy and the Section 401 certification generally
is critical where the State has no substantive regulations to
guide the certification process.
In order to address the antidegradation issue in the manner I
believe is required, DEM will need to gather additional
information from the applicant. I have reviewed both the
Application and the Public Notice and neither contain the
necessary data. By way of example, I note an absolute lack of
information relating to "practicable alternatives" and potential
effects on municipal water supplies. See Subparts B and F of the
Section 404(b)(1) guidelines, respectively. DEM has authority to
obtain the relevant information from the applicant pursuant to 15
N.C.A.C. 2H.0501(c).
Furthermore, a sufficiently detailed determination with regard to
potential violations of the State's numerical water quality
standards will also be important. For example, DEM should review
the potential impact of the installation of 110 individual septic
systems in this fragile ecosystem. The potential for
infiltration of the waste through the ridges and discharge to
surface water in the lower swales with resulting violations of
2.

the sewage and fecal coliform standards must be explored. This
will require information on the location of the systems, the
topography and hydrology of the area and proximity of potential
surface water discharge points. As noted above, DEM has full
authority to require this information.
Let me thank you in advance
request for a public hearing, as
on the certification decision.
for carefully considering this
well as these initial comments
Sincerely,
1J'r
Lark Hayes
Director, North Carolina Office
cc: Carol Anderson, FOHI
Paul Wilms
George Everett
David Owens
3.

X- S,Atvco
?.
1? i?C-C ? ? _ ??.?? .-?r.??.c...? ,c_??ct.?.?_? Vl'+v?-tits. ,
?"T G a,, u- kz 6-e- ` -tc ?cc- a' L,? ?? L l ' i2 - u. c v c=`
a. -v..c ?x L"? Gw?? i_cC. tt4 lug ?L?au ems..
Pr
d? ?n Q 4-?_ L O?_t?'? L ? lrtcti ?C rAc+ ke U vv? ?.c? v?ti:,?
-"?
ivkck
ivj
RECEIVED
APR 19 ;988
IN ER QUALITY SECTION'
OPERATIONS F,?- A ,fir-s.,

pv- 1111?11J'li 14 A) 'J'
f?vironmentarLaw-ee-inif-eYrr--"""'."-'--
137,
uthern 137 EAST FRANKLIN STRW_ .51 T?_ OQ' CHAPEL HILL, NC 27514 [phone] or (919) 99y?
April 18, 1988
Mr. Bill Mills `M
Operations Branch = .i k-
Division of Environmental Management
NC Department of Natural Resources and
Community Management
P. O. Box 27687
Raleigh, NC 27611
Re nol Office
201 'es, in Street, Suite 14
r orlott le, VA 22901-5033
04) 977-4090
?? J a:? + & JJ t1
Ilk
.? J
'APR '0 t>>s.S
Dl'l.OrINVIRONI MEPJN. 0AA;A13%EAIENT
I s ,,
Re: Section 401 Certification for Buxton Wooods Partnership,
SAWCO-N-028-0249
Dear Mr. Mills:
I enjoyed speaking with you by telephone last Friday and
appreciate your forwarding me the information requested on the
above-referenced request for Section 401 certification. On
behalf of the Friends of Hatteras Island (FOHI) I am hereby
requesting that a public hearing be held pursuant to 15 N.C.A.C.
2H.0503(a). I will also take this opportunity to offer some
brief comments on the request for certification.
First, with regard to the public hearing request, I'm sure you
are aware that the Buxton Woods area is a unique ecological
resource in our State. Both the Coastal Resources Commission and
the Dare County Board of Commissioners have spent literally
hundreds of hours over the past two years considering the natural
heritage and water supply resources in the Woods as well as the
appropriate means to protect them. Governor Martin is on record
as favoring significant public acquisition of lands in the Woods.
The proposed development of 110 residences with individual septic
tanks accessed by roads constructed over filled wetlands will
have a significant impact on this resource and its water quality.
Accordingly, I request a determination from the Division of
Environmental Management that "it is in the public interest that
a public hearing for the purpose of reviewing public comment and
additional information be held prior to granting or denying
certification..." 15 N.C.A.C. 2H.0503(a).
Secondly, I will comment briefly on the substantive determination
before DEM in order to suggest to you the range of issues upon
which the FOHI and others will want to comment more fully at the
public hearing. Of course, "(a)ny applicant for a Federal
license or permit to conduct any activity... which may result in
any. discharge into navigable waters" must obtain State
certication that "any such discharge will comply with the
applicable provisions" of the Clean Water Act. 33 U.S.C.
1341(a)(1).

This certification decision must certainly include a
determination that neither the narrative or numerical standards
in the State's water quality regulations will be violated. DEM
must look at the proposed discharge to wetlands and at the
impacts from the total project which "but for" (to use your
phrase) the wetland filling could not occur.
The key narrative standard is, of course, the antidegradation
policy of 15 N.C.A.C. 2B.0201. One could argue that on its face
the antidegradation policy prohibits any filling of wetlands
insofar as the discharge of fill material to wetlands effectively
eliminates these waters of the State altogether, and certainly
eliminates an existing use in violation of the policy.
In view of the fact that Congress has authorized filling
wetlands under limited circumstances set forth in Section 404
implementing regulations, one must conclude that filling
wetlands authorized by Section 404 is not contrary to
antidegradation policy. Any filling of wetlands not
authorized remains violative of the antidegradation policy.
of
and
of
the
so
Accordingly, as DEM determines whether the proposed discharge and
wetland filling violates the State's antidegration standard, DEM
must necessarily address the question of whether the discharge is
outside the scope of the policy by virtue of being authorized by
Section 404 and implementing regulations including the Section
404(b)(1) guidelines found at 40 C.F.R. 230.1 et sec,. Reference
to these guidelines to inform the interpretation of the State's
antidegration policy and the Section 401 certification generally
is critical where the State has no substantive regulations to
guide the certification process.
In order to address the antidegradation issue in the manner I
believe is required, DEM will need to gather additional
information from the applicant. I have reviewed both the
Application and the Public Notice and neither contain the
necessary data. By way of example, I note an absolute lack of
information relating to "practicable alternatives" and potential
effects on municipal water supplies. See Subparts B and F of the
Section 404(b)(1) guidelines, respectively. DEM has authority to
obtain the relevant information from the applicant pursuant to 15
N.C.A.C. 2H.0501(c).
Furthermore, a sufficiently detailed determination with regard to
potential violations of the State's numerical water quality
standards will also be important. For example, DEM should review
the potential impact of the installation of 110 individual septic
systems in this fragile ecosystem. The potential for
infiltration of the waste through the ridges and discharge to
surface water in the lower swales with resulting violations of
2.
t
This certification decision must certainly include a
determination that neither the narrative or numerical standards
in the State's water quality regulations will be violated. DEM
must look at the proposed discharge to wetlands and at the
impacts from the total project which "but for" (to use your
phrase) the wetland filling could not occur.
The key narrative standard is, of course, the antidegradation
policy of 15 N.C.A.C. 2B.0201. One could argue that on its face
the antidegradation policy prohibits any filling of wetlands
insofar as the discharge of fill material to wetlands effectively
eliminates these waters of the State altogether, and certainly
eliminates an existing use in violation of the policy.
In view of the fact that Congress has authorized filling
wetlands under limited circumstances set forth in Section 404
implementing regulations, one must conclude that filling
wetlands authorized by Section 404 is not contrary to
antidegradation policy. Any filling of wetlands not
authorized remains violative of the antidegradation policy.
of
and
of
the
so
Accordingly, as DEM determines whether the proposed discharge and
wetland filling violates the State's antidegration standard, DEM
must necessarily address the question of whether the discharge is
outside the scope of the policy by virtue of being authorized by
Section 404 and implementing regulations including the Section
404(b)(1) guidelines found at 40 C.F.R. 230.1 et sec,. Reference
to these guidelines to inform the interpretation of the State's
antidegration policy and the Section 401 certification generally
is critical where the State has no substantive regulations to
guide the certification process.
In order to address the antidegradation issue in the manner I
believe is required, DEM will need to gather additional
information from the applicant. I have reviewed both the
Application and the Public Notice and neither contain the
necessary data. By way of example, I note an absolute lack of
information relating to "practicable alternatives" and potential
effects on municipal water supplies. See Subparts B and F of the
Section 404(b)(1) guidelines, respectively. DEM has authority to
obtain the relevant information from the applicant pursuant to 15
N.C.A.C. 2H.0501(c).
Furthermore, a sufficiently detailed determination with regard to
potential violations of the State's numerical water quality
standards will also be important. For example, DEM should review
the potential impact of the installation of 110 individual septic
systems in this fragile ecosystem. The potential for
infiltration of the waste through the ridges and discharge to
surface water in the lower swales with resulting violations of
2.

41
the sewage and fecal coliform standards must be explored. This
will require information on the location of the systems, the
topography and hydrology of the area and proximity of potential
surface water discharge points. As noted above, DEM has full
authority to require this information.
Let me thank you in advance
request for a public hearing, as
on the certification decision.
for carefully considering this
well as these initial comments
Sincerely,
-) J'r
Lark Hayes
Director, North Carolina office
cc: Carol Anderson, FOHI
\(Paul Wilms
George Everett
David Owens
3.