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DATE: October 7, 2009
SUBJECT: Reply to US Army Corps of Engineers' letter of September 18, 2009 (non-certified mail)
regarding the dam & pond areas within the Tony McNeill Farm Tract as to 404 wetlands,
exemptions, water / land quality issues, and 404 permitting. Tract located on the west side
of Old Church Road NCSR 1104, Peletier north area, White Oak Township, Carteret
County, N.C. UTM 18 308989 E; 3849080 N; Carteret Co ID # 537701369241000
USACOE Action ID # 200500207; 200600207
DWQ Project #061841
TO: Mr. S. Kenneth Jolly, Chief Mr. Tony McNeill
Col. Jefferson M. Ryscavage, District Commander 523 Old Church Road
404 Wetlands Regulatory Division Cape Carteret
U.S. Army Corps of Engineers Swansboro, NC 28584
89 Darlington Avenue [phone] [m]
Wilmington, NC 28403 -1343
[phone]
cc: Mr. Mickey Sugg, USACOE
Mr. Mike Wylie, USEPA
Ms. Joanne Steenhuis, NCDWQ
Ms. Cyndi Karoly, NCDWQ
Mr. George E.B. Holding, U.S. Attorney
At the request and in behalf of our client Mr. Tony McNeill, we are replying to the U.S. Army Corps of
Engineers' (USACOE) letter of September 18, 2009 (sent non-certified by U.S. Postal service). This
correspondence acknowledges receipt of your letter. Your letter is a denial of the after-the-fact (ATF)
permit application for an agricultural dam and pond, and future regulatory / applicant courses of action.
This is the only formal regulatory response we have received since our last letter of response to the
USACOE on March 20, 2008 (-1.5 years ago, with no formal reply). Mr. McNeill has ceased and desist all
proposed construction and fully complied with all regulatory requests since these actions were first initiated
in late 2005, early 2006.
Your letter directs the applicant to comply with either of two actions:
(1)---immediately comply with your restoration plan within 30 days from receipt of this letter (September 24,
2009, or restoration by October 24, 2009)
(2)---initiate an administrative appeals process with South Atlantic Division.
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Complying with Option #1 within a 30 day time period or by October 24, 2009, is an impossibility to achieve
within this time period. This is an option of last choice since the dam is virtually completed and pond area
is vegetated. If ultimately this is the only course of action, the applicant would need a minimum +3 - 5
month time period to correctly complete this type of restoration, pending operable weather conditions.
The ATF permit was at the USACOE and NCDWQ's request, but at the time of permit application, the
issue of an agricultural exemption for agricultural pond construction had not been fully resolved. We have
previously sent technical correspondences, and a recent 2008 Federal Court of Appeals case "Mather etal
v. Willet Dairy" [07-3454-cv(L0, 073462-cv(CON) ] to the USACOE for their consideration, all which dealt
directly with the agricultural exemption issue. To date, we have not received a valid explanation as to why
these explicit agricultural / ranching exemptions are not allowed relative to this property and as cited within
33 CFR 323.4-a-1 & 3 & 6.
Your September 18, 2009 letter puts the applicant at a juncture and need to retain competent legal counsel
that practices directly in these types of environmental issues. Thus, we need additional time (+1 months) to
consult with an attorney and for them to have adequate time to review the information, issues, and how to
best proceed.
If possible, we respectfully request a future meeting of the pertinent parties involved to review all of the
facts and issues of the permit request, agricultural exemptions, and enforcement actions. We need
clarification and a full understanding of the regulatory agencies' reasoning, applicable rules, and proposed
course of actions. This proposed meeting would preferably be at your Wilmington U.S. Army Corps of
Engineers offices.
If a reasonable resolution cannot be derived in this matter we will proceed to Option #2, or the
administrative appeals process with South Atlantic Division, which we understand needs to be activated by
60 days of receipt of your letter or by November 23, 2009.
Please reply to the specific requests of inquiry in a timely manner, so that the applicant can collate
information, fully reply to your requests, and be properly represented. Thank you foryourtime and inputs in
this matter.
In behalf of Mr. Tony McNeill,
CA7
Larry F. Baldwin, CPSS/SC /
NCLSS #1040; ARCPACS #2183
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