19910317 Ver 1_Complete File_19910101

State of North Carolina
Department of Environment, Health, and Natural Resources
Division of Environmental Management
512 North Salisbury Street • Raleigh, North Carolina 27611
James G. Mardn, Govemor
William W. Cobey, Jr., Secretary
March 4, 1991
Ronnie Stewart
Route 1, Box 187
Robbinsville, N.C. 28771
Dear Mr. Stewart:
George I Everett, Ph.D.
Director
Subject: Certification Pursuant to Section 401 of the Federal
Clean Water Act,
Proposed retention of dam and raceways
Graham County
Attached hereto are two (2) copies of Certification No. 2575
issued to Ronnie Stewart dated March 4, 1991.
If we can be of further assistance, do not hesitate to
contact us.
Sincerely,

George T. Everett
Director
Attachments
cc: Wilmington District Corps of Engineers
Corps of Engineers Asheville Regional Office
Asheville Regional Office
/Mr. John Dorney
Mr. John Parker
Central Files
Pollution Prevention Pays
P.O. Box 27687, Raleigh, North Carolina 27611-7687 Telephone [phone]
An Fni ul Onr.-wh mity Affirmative Action Ernolover
I ,'d,.
NORTH CAROLINA
Graham 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 Ronnie Stewart pursuant to an application filed on the 29th
day of November, 1990 to retain and complete a dam and fish
raceways.
The Application provides adequate assurance that the
discharge of fill material into the waters of West Buffalo Creek
and wetlands in conjunction with the proposed dam and raceways in
Graham 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 all disturbed areas should be stabilized to
prevent erosion and siltation to the creek. All
creek crossings with equipment should avoid
turbidity increases and siltation.
3. A NPDES discharge permit may be required. Mr.
Stewart is required to fill out the permit
application form.
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 4th day of March, 1991.
DIVISION OF ENVIRONMENTAL MANAGEMENT
0-44"?' George T. Everett, Director
WQC# 2575
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET, N.E.
ATLANTA, GEORGIA "A^" r-? j
FE B 13 1991
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
REF: 4WD/WQMB/AI
Chuck yakild, Chief /
Wate uality Section
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?,,?ti1S ? •kk%" J ? 1991 'DUTY
IION
North Carolina Department of Natural Resources
& Community Development
Division of Environmental Management
P.O. Box 27687
Raleigh, NC 27611
SUBJECT: Notice of Proposed Administrative Penalty Assessment
Docket No. 404-91-103
Dear Mr. Wak'
Enclosed is a copy of an Administrative Complaint and Notice of
Proposed Penalty Assessment which Region IV of the U.S. Environmental
Protection Agency ("EPA") proposes to issue to Mr. Blaine Stewart and
Mr. Ronnie Stewart pursuant to Section 309(g) of the Clean Water Act
("CWA"), 33 U.S.C. S 1319(g). EPA proposes to issue the Complaint to
begin the process of assessing administratively a Class I civil
penalty of $15,000.00 against the Stewarts for alleged violations of
the CWA. Because the alleged violation has occurred in North
Carolina, EPA is offering you the opportunity to confer with us
regarding the proposed assessment.
You may request a conference with Tom Welborn (404/347-2126) within
fourteen days of receipt of this letter. The conference may be in
person or by telephone and may cover any matters relevant to the
proposed assessment. A copy of the EPA procedures governing the
assessment of Class I administrative penalities under the CWA is
enclosed for your reference.
Sincerely yours,
W. Ray unningham, Director
Water Management Division
Enclosures(2)
cc: Regional Hearing Clerk
COE Wilmington
Printed on Recycled Paper
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
?. REGION IV
IN THE MATTER OF: ) Docket No. 404-91-103
MR. ELAINE STEWART ) Proceedings To Assess Class I
MR. BONNIE STEWART ) Administrative Penalty Under
Section 309(8) of the Clean
Water Act, 33 U.S.C. S 1319(g)
ADMINISTRATIVE COMPLAINT,
FINDINGS OF VIOLATION,
NOTICE OF PROPOSED ASSESSMENT OF
A CIVIL PENALTY, AND NOTICE OF OPPORTUNITY
TO REQUEST A HEARING THEREON
I. Statutory Authority
The following Findings are made, and Notices given, under the
authority vested in the Administrator of the U.S. Environmental.,
Protection Agency ("EPA") by Section 309(g) of the Clean Water Act
("CWA"), 33 U.S.C. S 1319(g). The Administrator has delegated this
authority to the Regional Administrator of EPA, Region IV, who has in
turn delegated this authority to the Director of the Water Management
Division, who hereby issues this Complaint and Notice.
II. Findinas of Violation
1. Mr. Blaine Stewart and Mr. Ronnie Stewart ("Respondents")
own or control real property located adjacent to West Buffalo Creek
along State Road 1123 near Robbinsville, Graham County, North
Carolina. Said property is more particularly described in Exhibit A
attached hereto.
2. Respondents are persons within the meaning set forth in
Section 502(5) of the CWA, 33 U.S.C. S 1362(5). Respondents are
therefore subject to the provisions of the CWA, 33 U.S.C. S 1251
et seg., including Section 309(g) of the CWA, 33 U.S.C. S 1319(g).
3. Beginning in September 1990, Respondents and/or those acting
on behalf of Respondents, using various equipment, discharged concrete
into West Buffalo Creek and its adjacent wetlands, creating a
76-foot-longby 1-foot wide by 4-foot high dam and a 17-foot long by
4-foot wida.1,cohcrete intake structure. In addition, approximately 5000
square feebf`wetlands adjacent to West Buffalo Creek were filled to
construct an acdesss road and to backfill portions of a wooded raceway
for trout rearing purposes.
4. The various equipment constitute point sources within the
meaning set forth in Section 502(14) of the CWA, 33 U.S.C. S 1362 (14).
5. The discharged material constitutes a pollutant within the
meaning set forth in Section 502(6) of the CWA, 33 U.S.C. S 1362(6).
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6. The placement of the material into water of the United
States and the adjacent wetlands constitutes a discharge of a
pollutant within the meaning set forth in Section 502(12) of the CWA,
33 U.S.C. S 1362(12).
7. Prior to Respondents' activity, the wetlands were waters
of the United States as defined in Section 502(7) of the CWA, 33
U.S.C. S 1362(7), and 40 C.F.R. S 122.2.
8. The wetlands are adjacent to Buffalo Creek, which is
itself a navigable water, i.e. a water of the United States, within
the definition set forth in Section 502(7) of the CWA, 33 U.S.C.
S 1362(7), and in 40 C.F.R. S 122.2.
9. The discharge of a pollutant from a point source to a
water of the United States was conducted without the permit required
pursuant to Section 404 of the CWA, 33 U.S.C. S 1344, and therefore,
said discharge constitutes a violation of Section 301 of the CWA, 33
U.S.C. S 1311.
10. Each day the material remains in the wetlands without the
required permit issued pursuant to Section 404 of the CWA, 33 U.S.C.
S 1344, constitutes an additional day of violation of Section 301..of
the CWA, 33 U.S.C. S 1311.
11. Pursuant to Section 309(g) of the CWA, 33 U.S.C.
S 1319(8), EPA has consulted with the the State of North Carolina '
regarding the assessment of this administrative penalty.
III. Notice of Projosed Order Assessing a Civil Penalty
Based on the foregoing Findings of Violation, and pursuant to
the authority of Section 309(g) of the CWA, 33 U.S.C. S 1319(g), EPA
Region IV hereby proposes to issue a Final Order Assessing
Administrative Penalties to Respondent, imposing a penalty in the
amount of $15,000.00.
The proposed penalty amount was determined by EPA after taking
into account, the nature, circumstances, extent and gravity of the
violation, nvironmental damage to the wetlands, Respondents' prior
compliance history, degree of culpability for the cited violations,
any economic benefit or savings accruing to Respondents by virtue of
the violations,, and Respondents' ability to pay the proposed penalty,
all factors' "identified at Section 309(g)(3) of the CWA, 33 U.S.C.
S 1319(8)(3)'. EPA may issue the Final Order Assessing Administrative
Penalties thirty days (30) after Respondents' receipt of this,
Complaint, unless Respondents, within that time, request a hearing on
this Notice pursuant to the following section.
Q41
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IV. Notice of Opportunity to Request a Hearing
1. Respondents may, pursuant to Section 309(g) of the CWA, 33
U.S.C. S 1319(8), request within thirty (30) days of receipt of this
Notice a hearing on the proposed administrative penalty assessment,
and at the hearing may contest any material fact contained in the
Findings of Violation in Section II herein, and the appropriateness
of any penalty amount. The request for a hearing must specify the
factual and legal issues which are in dispute and the specific
factual and legal grounds for Respondents' defense. Any and all
specific allegations to which Respondents have not responded shall be
deemed admitted. The procedures for the hearing, if one is
requested, are set out in "Guidance on Class I Clean Water Act
Administrative Penalty Procedures", a copy of which is attached.
2. If Respondents desire a hearing, Respondents must send a
written request for a hearing to:
Regional Hearing Clerk
U.S. Environmental Protection Agency
Region IV
345 Courtland Street N.E.
Atlanta, Georgia 30365
3. Be aware that should Respondents request a hearing on this
proposed penalty assessment, members of the public, to whom EPA is
obligated to give notice of this proposed action, will have a right
under Section 309(g)(4)(B) of the CWA, 33 U.S.C. S 1319(g)(4)(B), to
be heard and to present evidence on the appropriateness of the
penalty assessment. Should Respondents not request a hearing, EPA
will issue a Final Order Assessing Administrative Penalties, and only
members of the public who submit timely comment on this proposal will
have an additional thirty (30) days to petition EPA to set aside the
Final Order Assessing Administrative Penalties and to hold a hearing
thereon. EPA will grant the petition and will hold a hearing only if
the petitioner's evidence is material and was not considered by EPA
in the issuance of the Final Order Assessing Administrative
Penalties.
4. Neither assessment nor payment of an administrative civil
penalty pursuant to this section of the CWA shall affect Respondents'
continuing obligation to comply with the CWA, any other federal or
state laws•r and with any separate Compliance Order issued under
Section 309`(x) of the CWA, 33 U.S.C. S 1319(a), for the violations
alleged herein.
FEB 13 1991
Date:
W. Ray Cunningham, Director
Water Management Division
U.S. Environmental Protection
Agency, Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
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!} UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
EPA will use the procedures set forth in the guidance which
follows to issue Class I administrative penalty orders under
Section 309(g) of the Clean Water Act (CWA). This guidance is
set forth in the form of regulatory amendments with the expecta-
tion that EPA will later notice them for proposed rulemaking.
Add Part 126 as follows:
Subpart A - Prccedures for EPA Assessment of Class I
Administrative Penalties under Section
309(g) of the Clean Water Act
Sec.
126.101 Purpose
126.102 Initiation of Action, Public Notice and
Opportunity to Comment
126.103 Presiding Officer
126.104 Opportunity for Hearing
126.105 Administrative Record
126.106 Counsel
126.107 Location of Hearings
k

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126.108 Hearing Procedures
126.109 Record of Hearing
126.110 Recommended Decision of Presiding Officer
126.111 Final Order of the Administrator
126.112 Petitions to Set Aside an Order
126.113 Effective Date of Order
126.114 Payment of Penalties Assessed
5126.101 Purpose
This subpart sets forth procedures for initiation and
administration of Class I administrative penalty orders under
Section 309(8) of the Clean Water Act (CWA), 33 U.S.C. 1319(g).
5126.102 Initiation of Action
to Comment
i
tuni
(a) If the Administrator finds that respondent has violated
Section 301, 302, 306, 307, 308, 318 or 405 of the Clean Water
Act, or has violated any permit condition or limitation implement-
ing any of such sections in a permit issued under Section 402 of
the Clean Water Act by the Administrator or by a State, or in a
permit issued under Section 404 by a State, the Administrator
may issue a proposed administrative penalty order assessing
respondent a civil penalty in accordance with these procedures.
The proposed order shall specify the amount of the penalty which
the Administrator proposes to assess and shall state with reasonable
specificity the nature of the violation. Pursuant to Section
309(a), the Administrator may at the same time, or at a different
time, and at his option, separately issue an administrative order
(1) which shall require the recipient to comply with CWA require-
ments, (2) which shall not be a proposed order subject to these
procedures and (3) which shall be immediately effective. Nothing
in this Part shall stay the effectiveness of administrative orders
issued by the Administrator pursuant to Section 309(a) of the CWA.
(b) The Administrator shall give public notice of the pro-
posed administrative penalty order, and an opportunity to comment
on the proposed order, in the form and manner set forth below.
(1) Such public notice shall allow 30 days for public
comment prior to issuance of a final order.

C
(2) The Administratorl;shall give public notice by'
mailing a copy of the proposed administrative penalty order to:

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(A) the respondent;
(8) any person who requests notice; and
(C) the most appropriate State agency having
authority under'State law with respect to the matters which are
the subject of the proposed order. The Administrator shall also
have consulted with the applicable State authority is conformance
with Section 309(g)(1)(A) before or at the time public notice is
given of the proposed administrative penalty order.
(D) the Administrator may also, at his sole option,
provide additional notice to persons on a mailing list which
includes names and addresses developed from some or all of the
following sources: those who request in writing to be on the
list, soliciting persons for "area lists' from participants in
past similar proceedings in that area, including evidentiary
hearings or other actions related to NPDES permit issuance, and
notifying the public of the opportunity to be put on the mailing
list through periodic publication in the public press and in
such publications as Regional and State-funded newsletters,
environmental bulletins, or State law journals. The Administrator
may update the mailing list from time to time by requesting
written indication of continued interest from those listed. The
Administrator may delete from the list the name of any person who
fails to respond to such a request. The Administrator may, at
his sole option, publish notice of the proposed administrative
penalty order in a newspaper of general circulation in the area
in which respondent resides or i3 domiciled or conducts the
activity which the proposed penalty addresses. In any event, the
Administrator shall take such steps as are necessary to fulfill
the public notice requirements of Section 309(g)(4). These
notice provisions do not apply to separate administrative orders
issued under Section 309(a), which are immediately effective
except for orders issued for violations of Section 308, which
orders shall take effect after the person to whom they are issued
has had an opportunity to confer with the Administrator.
(3) All public notices issued under S5126.102(b)(2)•(A)-
(C), and (D) when applicable, shall be sent by first class mail.
All public notices issued under this subpart shall contain the
following minimum information:
(A) Name and address of the EPA office proposing
to assess the administrative penalty for which notice is being
given;
(8) Name and address of the respondent, and the
person, facility or activity against which the proposed penalty
is assessed;
(C) A brief description of the business or activity
conducted by the person or facility or the operation described in
the order, including where applicable, the NPDES permit number or
permit number for the discharge of dredged or fill material, and
issuance date;
81-
40

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(D) A summary of violations alleged for which
the administrative civil penalty is being proposed, including
the amount which the Administrator proposes to assess for the
violations alleged;
(E) Name, address and telephone number of an
Agency representative from whom interested persons may obtain
further information, including copies of the proposed order;
(F) A statement of the opportunity to submit
written comments on the proposed order, the deadline for submission
of such comments which is thirty days after issuance of the notice,
and the name and address of the Hearing Clerk to whom comments
should be sent;
(G) A statement of the opportunity for the respondent
to recuest a hearing and the procedures by which the respondent may
request a hearing;
(H) A brief description of the procedures through
which the public may comment on or participate in proceedings to
reach a final decision on the order;
(I) The location of the administrative record
referenced in 5126.105, the times at which the file will be open
for public inspection, and a statement that all information
submitted by the respondent is available as part of the administra-
tive record, subject to provisions of law restricting the public
disclosure of confidential information.
P
(4) On the same date that the public notice is issued
or earlier, the Administrator shall send to the respondent written
notice by certified mail, return receipt requested, of the proposal
to issue the administrative penalty order, and a copy of the
proposed order. These materials should include the following
information:
(A) The alleged violations, identification of the
facility in violation, and a reference to the applicable law and
regulations;
(B) The legal basis for EPA's authority to initiate
this proceeding (e.g., violation of an NPDES permit, etc.)
(C) The general nature of the procedure for
issuing administrative penalty orders and assessing civil
penalties, including opportunities for public participation;
(D) The amount of penalty which the Administrator
proposes to assess for the violations alleged;
fh
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(E) The fact that the respondent must request a
hearing within 30 days of receipt of the notice provided under
this subparagraph and must comply with $126.104(a) in order for
respondent to be entitled to receive a hearing;
•(F) The name and address of the Hearing Clerk-to
whom respondent'may send a request for hearing;
(G) The fact that the Administrator may issue the
final order after 30 days following receipt of the notice provided
under these rules, if respondent does not request a hearing; and
(H) The fact that any order issued under this
subp -t shall become effective 30 days following its issuance
unle_s a petition for review is filed by an eligible commenter
or an appeal is taken under Section 309(g) of the CWA.
(c) During the public comment period provided under
subpart (b) above, any interested person may submit written
comments to the Agency official designated. The Administrator
shall include all written comments in the administrative record.
(d) Computation of time. In computing any period of time
allowed in these rules, the day of the event from which the
designated period begins to run shall not be included. Saturdays,
Sundays and Federal legal holidays shall be included. When a stated
time expires on a Saturday, Sunday or Federal legal holiday, the
stated time period shall be extended to include the next business
day. Any time periods not specified by these rtIes shall be set
by the Presiding Officer. Service on respondent of the initial
proposed order and other information required by 5126.102(b)(4)
is complete when the return receipt is signed. Service of all
other pleadings and documents is complete upon mailing. With the
exception for respondent for service of the initial proposed
order and notice required by 5126.102(b)(4), five days shall be
added to the time allowed by these rules for the filing of a
responsive pleading or document where a pleading or document is
served by mail. Filing of a pleading or document occurs on'the
date it is received by the Hearing Clerk.
(e) Service of documents. A certificate of service shall
accompany each document filed or served by the Administrator or
respondent. Agency counsel and the respondent shall serve copies
of all filed pleadings upon each other, upon all commenters to
the proceeding and upon the Hearing Clerk. The Hearing Clerk
shall serve, with a certificate of service, copies of all statements
or pleadings received from commenters, and service shall be made
by the Hearing Clerk on Agency counsel, the respondent and any
1
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other commenters. The Hearing Clerk shall also serve on all
commenters the initial complaint and any request for hearing
received from respondent. The Hearing Clerk shall serve, with a
certificate of service, all orders, notices or other documents
issued by the Presiding Officer or the Administrator on Agency
Counsel to the proceeding, the respondent and any commenters to
the proceeding.
126.103 Presiding Officer
(a) The Administrator shall act as Presiding Officer. No
person shall serve as a Presiding Officer where he has any prior
connection with the case including, without limitation, the
performance of investigative or prosecuting functions. The
Presiding Officer shall conduct hearings as specified by these
rules and make a recommended decision to the Administrator. His
recommended decision shall address both questions of fact and
law. The Presiding Officer shall be assigned by the Administrator
to the proceeding within thirty days after a hearing request is
received by the Hearing Clerk identified by the Administrator
for the proceeding. The Hearing Clerk shall notify the
Administrator expeditiously of receipt of a hearing request.
The Hearing Clerk shall be identified in the initial notices
sent to respondent and potential commencers.
(b) The Presiding officer shall consider each case on the
basis of the evidence presented. The Presiding Officer is solely
responsible for preparing and transmitting the recommended decision
and order in each case to the .administrator, unless such decision
and order are agreed upon by the parties. In such latter case,
the agreed upon decision and order shall be reviewed and issued
as appropriate by the Administrator, and no Presiding Officer
shall be appointed or, if appointed, he shall have no further
authority in the proceeding.
(c) The Presiding Officer is authorized to administer
oaths and issue subpoenas necessary to the conduct of a hearing.
The Presiding officer is authorized to do all other acts and
take all measures necessary for the maintenance of order and,
for the efficient, fair and impartial adjudication of issues
arising in proceedings governed by these rules.
(d) Ex Par_ Communications.
(1) 'Ex Part* communication' means any communication,
written or oral, rela g to the merits of the proceeding, between
the Presiding Officer and either an interested person outside the
Agency or the interested Agency staff, which was not originally
filed or stated in the administrative record or in the hearing.
Such communication is not an 'ex Part* communication' if all'
parties have received prior written notice of the proposed commun-
ication and have been given the opportunity to be present and
participate therein.
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7 -
(2) "Interested person outside the Agency" includes the
respondent* any person who filed written comments on the proposed
penalty order, and any attorney of record for those persons.
(3T_ "Interested Agency staff" means those Agency
employees, whether temporary or permanent, who may investigate,
litigate, or present evidence, arguments, or the position of the
Agency in the hearing before the Presiding Officer or who partici-
pated in the preparation, investigation or deliberations concerning
the proposed penalty order, including any EPA employee, contractor,
or consultant who may be called as a witness.
(4) No interested person outside the Agency or member
of the interested Agency staff shall make, or knowingly cause to
be made, to the Presiding Officer an ex arts communication on
the merits of the proceeding.
(5) The Presiding Officer shall not make, or knowingly
cause to be made, to any interested person outside the Agency or
to any member of the interested Agency staff an ex ap rte comMuni-
cation on the proceeding.
(6) The Administrator may replace the Presiding Officer
in any proceeding in which it is demonstrated to the Administrator's
satisfaction that the Presiding Officer has engaged in prohibited
ex parte communications to the prejudice of any participant.
(7) Whenever an ex arte communication in violation of
this subpart is received by the Presiding Officer or made known
to the Presiding Officer, the Presiding Officer shall immediately
notify all parties or commenters in the hearing of the circum-
stances and substance of the communication and may require the
party or commenter who made the communication or caused it to be
made, or the party or commenter whose representative made the
communication or caused it to be made, to the extent consistent
with justice and the policies of the CWA, to show cause why that
party's or commenter's claim or interest in the proceedings
should not be dismissed, denied, disregarded, or otherwise
adversely affected on account of such violation.
(8) The prohibitions of this paragraph apply upon
designation of the Presiding Officer and terminate on the date of
final Agency action.
5126.104 Opportunity for Hearing
(a) Within 30 days after receipt of the notice set forth
in 5126.102(b), the respondent may request a hearing and may
provide written comments on the proposed administrative penalty
order. Respondent must request a hearing in writing. The request
must specify the factual and legal issues which are in dispute
and the specific factual and legal grounds for the respondent's

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defense. Any and all specific allegation3 not responded to by the
respondent or a commenter shall be deemed admitted.
(b) The respondent shall be deemed to have waived the riaht
to a hearing if the respondent does not submit the request to the
Hearing Clerk designated. Respondent's request must be in writing
and received by the Hearing Clerk no later than 30 days after
respondent receives the proposed order. For good cause shown, the
Presiding Officer may grant a hearing if the respondent submits
a late request.
(c) Except as provided in 5126.104(f), the Presiding Officer
shall promptly schedule all hearings and provide reasonable notice
of the schedule to all parties and commenters. The Presiding
Officer may grant any delays or continuances necessary or desirable
to resolve the case fairly for good cause shown.
(d) Upon a finding of good cause by the Presiding Officer,
a respondent who has requested a hearing may amend the specifica-
tion of the issues in dispute and the grounds for defense not
later than 20 days before the scheduled date of the hearing.
(e) The Presidinq Officer shall give written notice of any
hearing to be held under these rules to any person who commented
on the proposed administrative penalty order under 5126.102(c).
This notice shall specify a reasonable time prior to the hearing
within which the commenter may request an opportunity to-be heard
and to present evidence or to make comments in any such hearing.
The notice shall recuire that any such request specify the facts
or issues which the commenter wishes to address.
(f) Summary determinations.
(1) Any party in a hearing to be held under these
rules may move, with or without supporting affidavits and
briefs, for a summary determination upon any of the issues being
adjudicated, on the basis that there is no genuine issue of
material fact for determination. The motion shall be served upon
each other participant and filed with the Presiding Officer at
least 20 days before the date set for the hearing, except that
upon leave granted for good cause shown, the motion may be filed
at any time before the close of the hearing.
(2) Any other party may file and serve a response to
the motion or a countermotion for summary determination, within
thirty days of service unless a different schedule is set by the
Presiding Officer. When a motion for summary determination is
made and supported, a party opposing the motion may not rest upon
mere allegations or denials but must show, by affidavit or by

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other materials subject to consideration by the Presiding
Officer, that there is a genuine issue of material fact for
determination at'.the hearing.
(3) Affidavits shall be made on personal knowledge,
setting forth facts and showing that the affiant is competent to
testify to the matters stated therein.
(4) No oral argument shall be had on the motions filed
under this subpart unless the Presiding Officer so elects.
The Presiding Officer shall rule on the motion promptly after
responses to the motion are filed under this subpart.
(5) If all issues are decided by summary determination,
no hearing shall be held and the Presiding Officer shall prepare
a recommended decision under 5126.110. If summary determination
is denied or if partial summary determination is granted, the
Presiding officer shall issue a statement of findings and reasons
available to the public at the time of issuance by the Presiding
officer, and the hearing shall proceed on the remaining issues.
(6) After receipt of all pleadings, the Presiding
officer may grant or deny any motion, order a continuance to
allow additional affidavits or other information to be obtained,
or make such other order as is just and proper.
(g) Default. Once the Presiding Officer has been assigned
pursuant to 5126.103(a), the Presiding Officer may recommend a
party be found in default after motion for failure to file a
timely response or for failure to appear at a hearing without
good cause being shown. Any motion for a default order shall
include a proposed default order, and the alleged defaulting
party shall have thirty days from service to reply to the motion.
The Presiding Officer shall issue his recommended default decision
solely to the Administrator subject to 5126.110 of these rules.
If the Administrator determines that a default has not occurred,
the administrative penalty action shall be returned to the,
Presiding Officer for further proceedings pursuant to these
rules. If the Administrator finds a default has occurred, he
shall issue a default order with penalty assessment, if applicable,
against the defaulting party, which order shall constitute final
agency action for purposes of judicial review. If the Administrator
determines that a default has occurred, any commenter who filed
comments in a timely manner under 5126.102(b) may, within 30 days
after the Administrator has issued the default order, petition
the Administrator to set aside the default order and 5126.112
shall apply to the Administrator's action on the petition.
U

- 10 -
5126.105 Administrative Record
(a) At any time after public notice of a proposed penalty
order is given under S126.102, the Administrator shall make
available the. adiinistrative record at reasonable times for
inspection and copying by any interested person, subject to
provisions of law restricting the public disclosure of confidential
information. The requester may be required by the Administrator
to pay reasonable charges for copies. Th.o administrative record
shall be kept and maintained by the Hearing Clerk and shall
include the following:
(1) Documentation (field notes, inspection reports,
photographs, etc.) relied on by EPA to support the violations
alleged in the proposed penalty order with a summary of violations,
if a summary has been prepared;
(2) A record or summary of EPA's consultation with the
State in which the violations occurred;
(3) Subpoenas issued, if any, and all responses to those
subpoenas;
(4) Proposed penalty assessment notice;
(5) Public notice of the proposed order with evidence
of notice to respondent and to the public;
(6) Comments by respondent and/or the eublic on the
proposed penalty order, including any requests for a hearing;
(7) All orders or notices of the Presiding Officer;
1
(8) Any motions, submittals or responses of any parties
or commenters to the proceeding, including prefiled testimony or
exhibits, if any;
(9) A complete and accurate record (sound or videotape)
or transcription of the hearing;
(10) The final decision and/or order of the Administrator
and the recommended decision of the Presiding Officer; and
(11) Any other documents which the Presiding Officer
finds are related to the administrative proceeding. Copies of
all pleadings and documents filed in the proceeding shall be
served on the Hearing Clerk.

- 11 -
(b) The Presiding Officer may establish a deadline or
deadlines for the submission of factual or legal documents which
may be considered as part of the administrative record.
5126.106 Counsel
(a) A respondent or commenter may be represented at all
stages of the proceeding by counsel. After receiving notification
that a respondent or any commenter is represented by counsel, the
Presiding Officer, the Administrator, the respondent and all
other commenters shall direct all further communications to that
counsel. Respondent and/or commenters shall bear all costs of
counsel.
5126.107 Location of Hearings
(a) The hearing shall be held at the appropriate EPA office,
except as provided in subparagraph (b).
(b) The respondent or EPA may request in writing that the
hearing be held at a location other than that specified in
subparagraph (a). Action on the request is at the discretion of
the Presiding Officer.
5126.108 Hearing Procedures
(a) The Presiding Officer shall conduct a fair and impartial
proceeding in which the parties or commenters are given a reason-
able opportunity to be heard and present evidence. Materials in
the administrative record under 5126.105(a) shall be made available,
if requested, to the parties and commenters prior to the hearing.
For good cause shown by either party or a commenter, materials
in the administrative record under 5126.105(a) may be supplemented
at or after the hearing.
(b) At the hearing, the Administrator shall be represented
by counsel.
(c) The Presiding Officer may subpoena witnesses and issue
subpoenas ducts tecum and ad testificandum pursuant to the
provisions the CWA.
(d) The respondent may not challenge in an administrative
proceeding, under t;iese procedures, any final Agency action,
including any final permit, for which judicial review was
available under Section 509(b) of the Clean Water Act.
(e) During the hearing, an authorized representative of the
Administrator may summarize the basis for the proposed administra-
tive order and shall be the first party to make a presentation at
the hearing. The administrative record shall be admitted into
evidence. The respondent has the right to examine; and to respond
'), I
- 12 -
to the administrative record. The respondent may offer into
evidenc* the response to the administrative record and any facts,
statements, explanations, documents, testimony, or other exculpa-
tory items which bear on any appropriate issues. The Presiding
officer may require the authentication of any written exhibit or
statement.
tf) All direct and rebuttal testimony shall be submitted
in written form, unless upon motion and good cause shown, the
Presiding Officer determines that oral presentation of the
testimony on any particular fact will materially assist in the
efficient identification or clarification of the issues. The
respondent and the Administrator shall be afforded a right of
cross-examination after introduction by a witness of his written
testimony. Cross-examination will be allowed both on the written
statement of a witness and his oral testimony. The Presiding
Officer may limit the scope or extent of cross-examination and
the number of witnesses in the interests of justice and conduct-
ing a reasonably expeditious proceeding. No cross-examination
shall be allowed on questions of law or regarding matters that
are not introduced into evidence nor otherwise subject to challenge
in a hearing under this subpart. No Agency witnesses shall be
required to testify or be made available for cross-examination
on the matters described in the prior sentence.
(g) At the close of the respondent's presentation of
evidence, the Presiding Offi,-er may allow the introduction
of rebuttal evidence. The Presiding Officer may allow the
respondent to respond to any such rebuttal evidence submitted.
(h) Commenters who commented within the timeframe of
5126.102(b), and who filed a request to participate under
5126.104(e) on the facts or issues specified in the request to
participate, shall have a right to be heard and to present
witnesses at the hearing held under these rules. However,
commenters shall not have the right of cross examination, nor
shall commenters be allowed to intervene as parties to the
proceeding.
(i) In receiving evidence, the Presiding Officer is not
bound by strict rules of evidence. The Presiding Officer shall
admit all evidence which is not irrelevant, immaterial, unduly
repetitious or of little probative value, except that evidence
relating to settlement which would be excluded in the Federal
courts under Rule 408 of the Federal Rules of Evidence is not
admissible. In drafting the recommended decision, the Presiding
Officer shall determine the weight to be accorded the evidence.
(j) The Presiding Officer may take official notice of
matters judicially noticed in the Federal courts, of other
facts within the specialized knowledge and experience of the
Agency, and of matters that are not reasonably in dispute and are
commonly known in the community or are ascertainable from readily
available sources of known accuracy. Prior to taking notice of a

- 13 -
matter, the Presiding Officer shall give the Administrator and
the respondent an opportunity to show why notice should not be
taken. In any case in which notice is taken and his recommended
decision is based in part upon this notice, the Presiding Officer
shall place a written statement of the matters as to which notice
was taken in the record.
(k) After all evidence has been presented, the Presiding
officer may allow any participant to present argument on any
relevant issue specified in the request for hearing or in comments
submitted prior to the hearing. Any participant may submit a
written statement for consideration by the Presiding Officer.
The Presiding Officer shall specify a deadline for submission of
the statement. If the statement is not received within the time
prescribed, the Presiding Officer may render a recommended
decision in accordance with 5126.110, without considering that
statement. The Presiding Officer may also require the Administrator
and the respondent to submit proposed findings of fact and
conclusions of law and may specify a deadline for submission of
these materials.
5126.109 Record of Hearing
The Presiding officer shall cause a tape recording, written
transcript or other permanent, verbatim record of the hearing to
be made, which shall be included in the administrative record,
and shall, upon written request, be made available, for inspection
or copying, to the respondent or any interested person, subject
to provisions of law restricting the public disclosure of confi-
dential information. Any party or commenter making a request
shall be required to pay reasonable charges for copies unless the
party or commenter can show the cost is unduly burdensome.
5126.110 Recommended Decision of Presiding Officer
(a) within a reasonable time following the close of the
hearing and receipt of any statements following the hearing,.-the
Presiding Officer shall forward a recommended decision which
shall include a written statement of reasons for the decision
and any penalty assessment to the Administrator. The decision
shall reco=Bend that the Administrator withdraw, issue, or modify
and issue the proposed penalty order. The recommended decision
shall be based on a preponderance of the evidence in the adminis-
trative record and shall take into account the penalty assessment
factors specified in Section 309(g)(3) of the CWA. The Presiding
Officer also shall make available to the Administrator for review
the complete administrative record.

- 14 -
(b)_ The Presiding Officer provides a recommended decision
solely to the Administrator. The Presiding Officer shall include
the recommended decision in the administrative record and shall
make it available to the parties to the proceeding at the time
the Administrator's decision is released pursuant to $126.111.
The Presiding Officer's recommended decision (1) shall not become
part of the administrative record until the Administrator's final
decision is released and (2) shall not be made previously available
except to the Administrator.
(c) Ex ante Communications. The rules applicable to
Presiding Officers under 5126.103(d) regarding ex arte communi-
cations are also applicable to the Administrator and to any
other person who advises the Administrator on the decision or
the order. Communications between the Administrator and the
Presiding Officer do not constitute *x arte communications.
5126.111 Final Order of the Administrator
(a) Within a reasonable time following receipt of the
Presiding Officer's recommended decision, the Administrator shall
withdraw, issue, or modify and issue the proposed order. The
Administrator's decision shall be based on a preponderence of the
evidence in the administrative record, shall take into account
the penalty factors set out in Section 309(g)(3) of the Clean
Water Act, shall be in writing, shall include a clear and concise
statement of reasons, and shall include any final order. The
Administrator's decision shall constitute final agency action for
purposes of judicial review.
(b) The Administrator shall provide written notice of the
issuance, modification and issuance, or withdrawal of the proposed
order to the respondent and every person who submitted written
comments on the proposed order.
(c) The decision shall include a statement of the right to
judicial review and of the procedures and deadlines for obtaining
judicial review.
(d) For appeal purposes, if a hearing is held under these
rules, the date of issuance or withdrawal of an order by the
Administrator shall occur on the date of mailing of the
Administrator's order, referenced in 5126.111(b), to respondent.
The notice shall be sent to respondent by certified mail, return
e •
- is -
receipt requested. The Administrator shall provide notice of the
decision to all persons who submitted comments.
(e) If.no-hearing is requested or held under $126.108, the
Administrator shall consider the entire record, including any
comments received, and shall issue an order, if appropriate, by
sending the order to the respondent by certified mail, return
receipt requested. The Administrator shall provide notice of the
decision to all persons who submitted comments. The date of
mailing of the order shall constitute final Agency action for
purposes of judicial review. The order shall also note the right
of a prior commenter to petition for a hearing pursuant to 5126.112
if no hearing was previously held and that such petition shall be
filed with the Hearing Clerk for transmittal to the Administrator.
Prior to issuance of the order when no hearing is held, the
Administrator or his delegatee may request additional information
on specified issues from the participants in whatever form the
Administrator designates, giving all participants a fair
opportunity to respond. The Administrator shall include this
additional information in the administrative record.
5126.112 Petitions to Set Aside an Order
if no hearing is held before issuance of an order, any
commenter who filed comments in a timely manner under 5126.102(b)
may, within 30 days after the Administrator has issued an order
under 5126.111(e), petition the Administrator to set aside the
order and to provide a hearing on the penalty. The Administrator
shall set aside the order and provide a hearing in accordance
with these rules if the evidence presented by the commenter/
petitioner is material and was not considered when the assessment
order was issued. If the Administrator denies a hearing, he
shall provide notice to the commenter/petitioner and to the
respondent and shall publish notice of the hearing denial in the
Federal Resister, together with his reasons for the denial.
5126.113 Effective Date of Order
Any order issued under this subpart shall become effective
30 days following its issuance unless an appeal is taken pursuant
to Section 309(g)(8) of the CWA, or a timely petition for hearing
is filed by a prior commenter.before the Administrator. If the
Administrator denies such a petition for a hearing, the order
becomes final 30 days after the denial.
5126.114 Payment of Penalties Assessed
Payment of civil penalties finally assessed by the
Administrator shall be made by forwarding a cashier's or certified
check, payable to the United States of America, in the amount

- 16 -
assessed, and noting the case title and docket number to the
following address: EPA Hearing Clerk, P.O. Box 360277M,
Pittsburgh. Pennsylvania 15251 or to such other address designated
in the final order. Notice of payment must be sent by respondent
to the Rearing Clerk for inclusion as part of the administrative
record for the proceeding in which the civil penalty was assessed.
so

State of North Carolina
Department of Environment, Health, and Natural Resources
512 North Salisbury Street • Raleigh, North Carolina 27611
James G. Martin, Governor
March 11, 1991
Dr. G. Wayne Wright
Corps of Engineers
P. 0. Box 1890
Wilmington, NC 28402
Dear Dr. Wright:
William W. Cobey, Jr., Secretary
In keeping with your request, this office has circulated to interested
state review agencies U. S. Army Corps of Engineers Public Notice .... 0230
dated November 29, 1990 which describes project activity carried out by Ronnie
M. Stewart of Robbinsville. Some additional work is proposed and an
after-the-fact permit is requested. The project, involving dam construction
and other diversion facilities for trout farming, is located on West Buffalo
Creek, near Robbinsville, in Graham County.
During the course of the review, two key agencies, i.e., the Wildlife
Resources Commission and the Division of Water Resources submitted objections
to the issuance of the after-the-fact permit. Circumstantial evidence would
indicate the reported fish kill at the site last fall was a direct result of
concrete from the dam construction. This and other comments from the record
indicate a willful violation of law resulting in significant adverse impact to
the acquatic resources of Buffalo Creek.
This viewpoint position supports the position of the agencies mentioned
above and recommends no after-the-fact permit be issued.
For the record, the Division of Environmental Management issued Water
Quality Certification No. 2575 for this project on March 4, 1991.
Very sincerely,
JPar zer, Jr.
Inland '404 Coordinator
JRP:jr/aw
cc: Wildlife Resources Commission
Division of Water Resources
Division of Environmental Management;
P.O. Box 27687, Raleigh, North Carolina 27611-7687 Telephone [phone]
An Eaual Oooortunity Affirmative Action Emolover

QWMN??
L
?4 L ? y
State of North Carolina
Department of Environment, Health, and Natural Resources Asheville Regional Office
James G. Martin, Governor Ann B. Orr
William W. Cobey, Jr., Secretary Regional Manager
DIVISION OF ENVIRONMENTAL MANAGEMENT
WATER QUALITY SECTION
February 22, 1991
MEMORANDUM
TO: John Dorney
Program Planning Unit
Through: Roy M. Davis, Regional Superv%s.icir
Division of Environmental Managemen''
Forrest R. West.al.l
Water Quality R?-?g:ional Supervi.tSor
From: Paul White, P. E . Rv
Environmental Engineer
SUBJECT: Comments and Recommendation
401 Certification to U.S. Army Corp of Engineers (COE)
Ronnie Stewart Trout Farm partially situated in, wetlands.
West Buffalo Creek
Graham County
The applicant's construction consist-..s of a. concrete dam and water
intake in West Buffalo Creek; a series of wooden fish raceways,
backfill, and an access drive: adjacent to the creek. Fill dirt was
excavated and hauled across the creek by way of an unimproved crossing.
The project is reached as follows: Proceed north from Robbinsville on
HWY 129 for about 0.8 miles and turn left. Proceed around the south
side of Santeetlah bake past the Ranger Station and Snowbird Creek
toward Joyce Kilmer' Memorial: Forrest,. Jus., priprior to the bridge across
the West Buffalo arm of Santeetlah, turn left onto SR 1148. Proceed 1.2
miles and turn left on.to'SR 1123. cross creek and proceed 2.2 miles to
end of pavement and :road j uia.ct i on . Turn, right and proceed 1.0 miles
down to creek and along south bank of croe>k to SR 1123 bridge across
creek. Remaining on south ;.id.e of creek, };proceed 0.6 miles on
unimproved track to low watz:- bri.d.ge and cross creek. Continue for 0.3
miles to Ronnie Stewart Trou- Farm and cabin between track and creek.
Interchange Building, 59 Woodfln Place, Asheville, N.C. 28801 • Telephone [phone]
An Equal Opportunity Affirmative Action Employer
Bill Mills
Memorandum
February 22, 1991
Page Two
Riverbend Trout Farm and Glenwood Trout Farm are located 0.5 and 0.8
miles further upstream, respectively.
Comments made in this memorandum are based on a site visit and
conversation with Ronnie Stewart on January 31, 1991.
Although it appears that the construction described is partially
situated in wetlands, it appears to have been completed with minimal
damage to the site, including stream bank vegetation. The site is less
than one acre and the wetland area is a small part of the site.
Although some protective measures could have been suggested had the
applicant pursued the proper channels prior to construction, denial of
this project and reclamation of the wetland area would be of minor
benefit overall. It is doubtful that significant improvements could
have been made in wetland preservation without reducing the scale of the
project, given the small sire of the site. Of greater concern, however,
is the borrow area across the creek and possible siltation occurring as
a result of further equipment activity in the creek.
In view of the above discussion, it is recommended that this Agency'
issue a 401 Certification in support of a COE Permit for this project
and that such certification include advisement of the possibility of a
turbidity violation in the creek from further construction activity, and
the provisions for enforcement action should this occur. Specifically,
it is recommended that the following conditions be made:
1. Section 15A NCAC 273 .0211 of the Administrative Code addresses
standards for fresh surface waters, including turbidity. All
activities in and around surface waters should be carried out
in such a manner to prevent turbidity violations. All
disturbed areas should be stabilized to prevent erosion and
resulting siltation in the creek. Additionally, crossings with
equipment should be made in such a manner to avoid turbidity
increases and siltation.
2. In order to comply with t
Act, administered by the
Environmental Management,
A permit application form
applicant should fill out
lie Federal Water Pollution Control
]'North Carolina Division of
a discharge permit may be required.
will be forthcoming, which the
and. return as soon as possible.
Enclosure
MEMO
DATE:
TO:
aka. ? ?? I ?
21 as?q 1 9,e#v?
SUBJECT:

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From:
?a STATE ct
North Carolina Department of Environment,
Health, and Natural Resources Printed on Recycled Paper
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00,u

' DEPARTMENT OF THE ARMY `Wilmington District, Corps of Engines,
Post Office Box 1890
Wilmington, North Carolina 28402-1890
Action ID. 199100230 vemb??r,?9? 1.990
PUBLIC NOTICE
MR. RONNIE M. STEWART, Route 1, Box 187, Robbinsville, North Carolina
28771 has applied for a Department of the Army (DA) after-the-fact permit TO
RETAIN AND COMPLETE A CONCRETE DAM AND WATER INTAKE IN WEST BUFFALO CREEK;
RETAIN WOODEN FISH RACEWAYS WITH BACKFILL AND AN ACCESS ROAD IN WETLANDS
ADJACENT TO THE CREEK; AND TO FACILITATE THE ESTABLISHMENT OF A_TROUT GROWING
BUSINESS NEAR ROBBINSVILLE, Graham County, North Carolina.
This public notice does not imply, on the parts of the Corps of Engineers
or other Agencies, either favorable or unfavorable opinion of the work
performed; but it is issued to solicit comments on the factors listed above on'
which a final decision will be based. Legal action has been suspended pending
the outcome of this consideration.
The following description of the work is taken from data provided by the
applicant and from observations made during an onsite visit by representatives
of the Corps of Engineers. Plans submitted with the application show a
76-foot long, 4-foot-high, and 1-foot-wide concrete dam. The dam includes an
approximately 4-foot-wide and 17-foot-long spillway with an intake designed 'to
gravity feed water to fish raceways. Water is to be carried to the raceways
through a plastic pipe approximately 118 feet in length. The remaining flow
of the creek will be diverted over a proposed concrete or wooden fish ladder'
to be constructed in accordance with Federal and State fish and wildlife
agencies' guidelines. Approximately 18 cubic yards of concrete were used in
constructing the dam and spillway. Twelve hemlock fish raceways 8 foot wide
and between 43 and 69 feet in length are currently in place and are serviced
by the described intake. A 56-foot-long and 10-foot-wide waste/sediment
settling box and concrete return water spillway have been constructed at the
lower end of the fish raceways. Five of the lower most raceways with
backfill, the lower earthen and gravel access service road, and the above
described settling box and spillway are partially situated in wetlands
adjacent to West Buffalo Creek. Material used to backfill the raceways and
construct the service road was borrowed from the applicant's high ground
property across the creek. The material was excavated by front-end loader or
similar equipment and hauled across the creek by way of an unimproved
crossing. In addition to the above, a 10-foot-wide and 80-foot-long raceway
has been constructed further downstream of the primary trout growing facility.
Approximately the lower quarter of the structure is situated in wetlands
adjacent to the creek. The applicant plans to supply water to this raceway by
installing a 105 foot long pipe from the upper raceways, and will build a
return water discharge similar.to that found upstream. Following
construction, the raceway is to be backfilled and a service road installed.
The purpose of the project is to establish a commercial trout growing
facility. Plans showing the work are included with this public notice. The
project is estimated to be approximately 90 percent complete.
Alt . `..
-2-
The State of North Carolina will review this public notice to determine
the need for the applicant to obtain any required State authorization. No DA
permit will be issued until the coordinated State viewpoint on the proposal
has been received and reviewed by this agency, nor will a DA permit be issued
until the North Carolina Division of Environmental Management (DEM) has
determined the applicability of a Water Quality Certificate as required by PL
92-500.
Should the permit be issued, the Tennessee Valley Authority (TVA) will
require the permittee to employ best management practices to control erosion
and sedimentation, as necessary, to prevent adverse aquatic impacts.
This application is being considered pursuant to Section 404 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, based on available information, is not aware that
the proposed activity will 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
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 and flood plain values (in accordance with Executive Order
11988), land use, navigation, shore erosion and accretion, recreation, water

' -3-
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.
The Corps of Engineers is soliciting comments from the public; Federal,
State and local agencies and officials; Indian Tribes and other interested
parties in order to consider and evaluate the impacts of this proposed
activity. Any comments received will be considered by the Corps of Engineers
to determine whether to issue, modify, condition or deny a permit for this
proposal. To make this decision, comments are used to assess impacts on
endangered species, historic properties, water quality, general environmental
effects and the other public interest factors listed above. Comments are used
in the preparation of an Environmental Assessment and/or an Environmental
Impact Statement pursuant to the National Environmental Policy Act. Comments,
are also used to determine the need for a public hearing and to determine the'
overall public interest of the proposed activity.
Generally, the decision whether to issue this DA permit will not be made
until the 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 DA permit
serves 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.
December 24, 1990.
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 December 17, 1990, Attention:
Mr. William Mills.
Written comments pertinent to the proposed work, as outlined above, will
be received in this office, Attention: Mr. Bob Johnson, until 4:15 p.m.,
December 31, 1990, or telephone [phone].
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DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
November 29, 1990
IN REPLY REFER TO
S: January 29, 1991
Regulatory Branch
SUBJECT: Action ID No. 199100230
Mr. William Mills
Water Quality Section
Division of Environmental Management
North Carolina Department of Environment,
Health and Natural Resources
Post Office Box 27687
Raleigh, North Carolina 27611-7687
Dear Mr. Mills:
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Enclosed is the application of Mr. Ronnie M. Stewart, for Department of
the Army authorization and a State Water Quality Certification to retain and
complete a concrete dam and wooden fish raceways with backfill and gravel
service road on West Buffalo Creek and/or adjacent wetlands near Robbinsville,
Graham 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 January 29, 1991, the
District Engineer will deem that waiver has occurred.
Questions or comments may be addressed to Mr. Bob Johnson, telephone
[phone].
Sincerely,
G, Vn e W r i t
Chief, Regulatory Branch
Enclosure
Copies Furnished (without enclosure):
Mr. John Parker
Division of Coastal Management
North Carolina Department of
Environment, Health and
Natural Resources
Post Office Box 27687
Raleigh, North Carolina 27611-7687
Regional Director
National Marine Fisheries
NOAA
Duval Building
9450 Koger Boulevard
Saint Petersburg, Florida
Services,
33702

TION FOR DEPARTMENT OF THE
(33 CPR 325) '
011118 APPROVAL NO. 0702.0035
Expires 30 June 1992
Public reporting burden for this collection of information is estimated to average 5..0tira per reswes for the melorily Or oases, lncruamp roar anru rw ff0VWV"1W
instructions. Searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Applications lot larger or more complex projects, or those in ecologically sensitive areas, will take longer. Send comments regarding this burden estimate or any
other aspect of this collection of information, including suggestions for reducing this burden, to Washington Headquarters Services, Directorate for Information
Operations and Reports, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202.4302; and to the Office of information and Reguialory Affairs, Office
of Management and Budget, Washington, DC 20503.
The Department of the Army permit program is authorized by Section 10 of the Rivers and Harbors Act of 1898, Section 404 of the Clean Water Act and
Section 103 of the Marine, protection, Research and Sanctuaries AOL These laws require permits authorizing activities in or affecting navigable waters of the
United States, the discharge of dredged or fill material into waters of the United Stales, and the transportation of dredged material for the purpose of dumping it
into ocean waters. Information provided on this form will be used in evaluating the application for a permil. Information in this appfication is made a matter of
public record through issuance of a public notice. Disclosure of the information requested is voluntary; however, the data requested are necessary in order to
communicate with the applicant and to evaluate the permit application. It necessary information is not provided, the permit application cannot be proposed nor
can a permit be issued.
One set of original drawings or good reproducible copies which show the location and character of the proposed activity must be attached to this application
(see sampte drawings and instructions) and be submitted to the District Engineer having jurisdiction over the location of the proposed activity. An application
that is not completed in full will be returned.
1, APPLICATION NUMBER (To be assigned by Corp$)
3. NAME. ADDRESS, AND TITLE OF AUTHORIZED AGENT
Norte I 10.
2. NAME AND ADDRESS OF APPLr-ANT
Ronnie M. Stewart
Route 1, Box 187
RobbinsvilletN. C. 28771
Telephone no, during business hours
A/C (704) d 2 Q AL9 2 0 (Residenco)
A"-(704l 479-16224 (Orflc))
4. DETAILED DESCRIPTION OF PROPOSED ACTIVITY
4s. ACTIVITY
Telephone no. during business hours
NC t > (Residence)
NC ( 1 (oflice)
S1elernont of Authorization: I hereby designate and authorize
to act in my
buhall as my agent in tho processing of this permit application end to
famish, upon request, supptemenial information in support of the appkalk"
SIGNATURE OF APPLICANT I DATE
Dirt Fills with Timber & Concrete Raceways for Fish Pond
4b. PURPOSE
Commercial Trout Pond
4C. DISCHARGE OF DREDGED OR FILL MATERIAL
Fill Material (Dirt) is placed between Raceways & Shoreline, this being
approximately 200 'Yards.
Aug $9 EDITION OF AFKT be IS t)OSOLETE

FROM 1'704-259-0858 11-27-90 10:19 AM P02
eilligm Hicks :'i'.
mr an
Ben H. Chester
405 Lockland Dr.
111 West Buffalo Nashville, Tenn. 37206
Robbinsville, N. C. 28771
e. WATeRSODY AND LOCATION ON WATERSOOY WHERS ACTIVITY EXISTS OR IS PROPOSED
West Buffalo Creek, located in West Buffalo Section of Graham County,
approximately 12 miles west of Robbinsville, N. C. on Road # 1123
7, LOCATION ON LAND WHERE ACTIVITY EXISTS OR IS PROPOSW
ADDRESS: Approximately 12 Miles West of Robbinsville, N. C.
on Road # 1123•
Route 1
STREET, ROAD, ROUTE OR OTHER MSORIPTIVE LOCATION
Graham County, N.C. 28771
COUNTY STATE ZIP CODE
Graham County, Robbinsville,N. C. 28771
LOCAL GOVERNING BODY WITH JURISDICTION OVIIRSITE
S. Is any portion of the activity for which authorization is sought now complutu7 IR YES i] NO
It answer is "yes" give reasons. month and year Ilia activity was completed, Indicale tzar axisling work on tho drawings,
Work Started May 7, 1990. I did not know a permit was required.
Project is 80% complete. Raceways or Fills not complete. Drawings
attached.
S. List all approvals or certifications and denials received gram other fWOW. Intuislatu, stalu Or local atluncws for any alrucluroa, construction, dischatoes or other
activities described In this application,
ISSUING AGENCY TYPE APPROVAL IDENTIFICATION NO. DATE OF APPLiaoxnoN DATE OF APPROVAL DATE OF DENIAL
None
10. Application is hereby made for a permit or permits to authorize the activities described harain. 1 cattily that I am familiar with the information contained in the
application, and that to the best of my knowledge and ballot such Information is true, complete, and accurate. I further certify that) possess the authority to
undertake the proposed activities or f am acting as tha duly authorized agent of the applicant.
rn.. Qct. 31..1 199.0
SIGNATURE OF APPLICANT DATE SIGNATURE OF AGENT DATE
The application must be signed by the person who desires to undertakes the proposed activity (applicant) or it may be signed by a duly
authorized agent It the statement in block 3 has been tilled out and signed.
IS U.S.C. Section 1001 provides that: Wtlaever, in any manner within the jurisdiction of any department or agenoy, of The United States
knowinpfy and wilUully falsifies, cones. or covers up by any, trick, scheme, or device a material fact at makes any false, fictitious or fraudulent
statemenla or irepresenudions or makes or tales any false vinure or document•knamno Same to WAWA any false fictitious or
fraudulent statement or entry, shall be fined not more Mn $10,000 or imprisoned not (note than five years, or both.
(Rw"ae as SRO roRM 4946)
us. eovFasrtwr r+ mm ro". "No n-ar.Ww
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FROM. 1-704-259-0858

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State of North Carolina
Department of Natural Resources and Community Development
512 North Salisbury Street • Raleigh, North Carolina 27611
James G. Martin, Governor ldIl:-an W. Ccbey, Jr., Secretary
December 7, 1990
Dr. George T. Everett
Division of Environmental Management
Raleigh, North Carolina 27611
Dear Dr_. E?-erett :
The attached U. S. Army Corps of Engineers Public Notice No. 00230 dated
11/29/90 describing a project proposed by Mr. Ronnie M. Stewart
is being circulated to interested state agencies for comments on applicable
Section 404 and/or Section 10 permits.
Please indicate below your agency's position or viewpoint on the proposed
project and return this form by 12/18/90
Very sincerely,
John R. Parker, Jr.
404 Coordinator
REPLY This office objects to the project as proposed.
y Comments on thi?ss project are attached.
?This office s-- tox?s'th project proposal.
No comment.
Signed
Date ? IyI q'
Agency a J
JRP : j r/aw
P.O. Box 27687, Raleigh, North Carolina 27611-7687 Telephone [phone]
An Equal Opportunity / Affirmative Action Employer

DEPARTMENT OF THE ARMY
Wilmington District, Corps of Engineers
Post Office Box.1890
Wilmington, North Carolina 28402-1890
Action ID. 199100230 November 29, 1990
PUBLIC NOTICE
MR. RONNIE M. STEWART, Route 1, Box 187, Robbinsville, North Carolina
28771 has applied for a Department of the Army (DA) after-the-fact permit TO
RETAIN AND COMPLETE A CONCRETE DAM AND WATER INTAKE IN WEST BUFFALO CREEK;
RETAIN WOODEN FISH RACEWAYS WITH'BACKFILL AND As ACCESS ROAD IN WETLANDS
ADJACENT TO THE CREEK; AND TO FACILITATE THE ESTABLISHMENT OF A TROUT GROWING
BUSINESS NEAR ROBBINSVILLE, Graham County, North Carolina.
This public notice does not imply, on the parts of the Corps of Engineers
or other agencies, either favorable or unfavorable opinion of the work
performed; but it is issued to solicit comments on the factors listed above on
which a final decision will be based. Legal action has been suspended pending
the outcome of"this consideration.
The following description of the work is taken from data provided by the
applicant and from observations made during an onsite visit by representatives
of the Corps of Engineers. Plans submitted with the application show a
76-foot long, 4-foot-high, and 1-foot-wide concrete dam. The dam includes an
approximately 4-foot-wide and 17-foot-long spillway with an intake designed to
gravity feed water to fish raceways. Water is to be carried to the raceways
through a plastic pipe approximately 118 feet in length. The remaining flow
of the creek will be diverted over a proposed concrete or wooden fish ladder
to be constructed in accordance with Federal and State fish and wildlife
agencies' guidelines. Approximately 18 cubic yards of concrete were used in
constructing the dam and spillway. Twelve hemlock fish raceways 8 foot wide
and between 43 and 69 feet in length are currently in place and are serviced
by the described intake. A 56-foot-long and 10-foot-wide waste/sediment .
settling box and concrete return water spillway have been constructed at the
lower end of the fish raceways. Five of the lower most raceways with
backfill, the lower earthen and gravel access service road, and the above
described settling box and spillway are partially situated in wetlands
adjacent to West Buffalo Creek. Material used to backfill the raceways and
construct the service road was borrowed from the applicant's high ground
property across the creek. The material was excavated by front-end loader or
similar equipment and hauled across 'the creek by way of an unimproved
crossing. In addition to the above, a 10-foot-wide and 80-foot-long raceway
has been constructed further downstream of the primary trout growing facility.
Approximately the lower quarter of the structure is situated in wetlands
adjacent to the creek. The applicant plans to supply water to this raceway by
installing a 105 foot long pipe from the upper raceways, and will build a
return water discharge similar. to that found upstream. Following
construction, the raceway is to be backfilled and a service road installed.
The purpose of the project is to establish a commercial trout growing-
facility. Plans showing the work are included with this public notice. The
project is estimated to be approximately 90 percent complete.

-2-
The State of North Carolina will review this public notice to determine
the need for the applicant to obtain any required State authorization. No DA
permit will be issued until the coordinated State viewpoint on the proposal
has been received and reviewed by this agency, nor will a DA permit be issued
until the North Carolina Division of Environmental Management (DEM) has
determined the applicability of a Water Quality Certificate as required by PL
92-500.
Should the permit be issued, the Tennessee Valley Authority (TVA) will
require the permittee to employ best management practices to control erosion
and sedimentation, as necessary, to prevent adverse aquatic impacts.
This application is being considered pursuant to Section 404 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, based on available information, is not aware that
the proposed activity will 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
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 and flood plain values (in accordance with Executive Order
11988), land use, navigation, shore erosion and accretion, recreation, water
,
-3-
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.
The Corps of Engineers is soliciting comments from the public; Federal,
State and local agencies and officials; Indian Tribes and other interested
parties in order to consider and evaluate the impacts of this proposed
activity. Any comments received will be considered by the Corps of Engineers
to determine whether to issue, modify, condition or deny a permit for this
proposal. To make this decision, comments are used to assess impacts on
endangered species, historic properties, water quality, general environmental
effects and the other public interest factors listed above. Comments are used
in the preparation of an Environmental Assessment and/or an Environmental
Impact Statement pursuant to the National Environmental Policy Act. Comments
are also used to determine the need for a public hearing and to determine the
overall public interest of the proposed activity.
Generally, the decision whether to issue this DA permit will not be made
until the 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 DA permit
serves 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--
December 24, 1990.
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 December 17, 1990, Attention:
Mr. William Mills.
Written comments pertinent to the proposed work, as outlined above, will
be received in this office, Attention: Mr. Bob Johnson, until 4:15 p.m.,
December 31, 1990, or telephone [phone].
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