20081342 Ver 1_More Info Received_20081102

IAO.Ia.lL.CL O S
Soil & Environmental Consultants, PA
11010 Raven Ridge Road • Raleigh, North Carolina 27614 • Phone: [phone] • Fax: [phone]
www.SandEC.com
October 30, 2009
S&EC Project # 5931.W4
DWQ No. # 08-1342
Action ID SAW-2008-0259
Division of Water Quality 0 t? 10
Attn: Ian McMillan
2321 Crabtree Boulevard NOV 2 20C9
Suite 250
Raleigh, NC 27604 WETLANDS AN STORE ? ? EACH
Re: Division of Water Quality's December 15, 2008 Franklin County Pond Water Quality
Certification No. 3773
Franklin County, North Carolina
Dear Mr. McMillan:
This letter is in response to the NC DWQ Water Quality Certification (WQC) No. 3773 for the
Franklin County Pond.
On January 21, 2009 we requested that DWQ staff work with us to clarify and/or revise several of
the conditions of WQC No. 3773 including the approved impacts listed and Condition Nos. 9-13,
15 and 17-19. Based on your discussion with Kevin Martin at the project site on 1/14/09, it is our
understanding that you expected a need for these revisions and are willing to work with us to
accomplish this revision. However, we agreed that this could wait until the details of the Corps
permit were worked out so DWQ would only have to make one final revision to the 401 rather
than potentially have to make 2 or more.
On June 22, 2009, the USACE issued the final 404 Approval for the Franklin County Pond (see
attached AID SAW-2008-02958). We are requesting a revision to the approved impacts listed
within the December 15, 2008 Water Quality Certification (WQC) No. 3773 because they were
not referenced correctly as they were listed within the original Individual Permit application
submittal, in addition to a revision/clarification of Condition Nos. 9-13, 15 and 17-19.
The original Individual Permit request submitted on August 29, 2008, sought approval for 0.322
acres of wetland impact (0.012 acres of wetland fill and 0.310 acres of wetland inundation); the
DWQ WQC No. 3773 incorrectly references 0.3122 acres of wetland impact on page 2 in the
narrative and again on page 3 in the impact table. The DWQ WQC No. 3773 also does not list
the 20 linear feet of stream impact associated with the farm road crossing which we requested
approval of in the initial application; this discrepancy appears on page 2 and page 3 of the DWQ
WQC No. 3773. Additionally, on December 12, 2008, DWQ staff requested (via telephone) a
detailed accounting of the Tar-Pamlico Buffers that would be impacted due to the flooding
necessary for the pond; S&EC staff replied (via email; see attached) that there would be an
anticipated 129,900 square feet of Zone 1 and 86,600 square feet of Zone 2 impact due to
Charlotte Office:
236 LePhillip Court, Suite C
Concord, NC 28025
Phone: [phone]
Fax: [phone]
Greensboro Office:
3817-E Lawndale Drive
Greensboro, NC 27455
Phone: [phone]
Fax: [phone]
Franklin County Pond
S&EC Project No. 5931
Page 2 of 5
October 30, 2009
flooding. The DWQ WQC No. 3773 incorrectly lists the buffer impacts as 262,949 square feet of
Zone 1 and 175,300 square feet of Zone 2, both on page 2 and also on page 3 in the impact table.
There will be approximately 7,680 square feet of impact to Zone 1 and 5,120 square feet of
impact to Zone 2 of the Tar-Pamlico Buffers associated with the construction of the pond dam as
well as 1,200 square feet of impact to Zone 1 and 800 square feet of impact to Zone 2 in
association with the 20-foot wide farm road crossing. Neither of these riparian buffer impacts are
listed on pages 2 or 3 (impact table) of WQC No. 3773. Therefore, total Tar-Pamlico Riparian
Buffer impacts associated with the Franklin County Pond project total 234,300 square feet of
impact (138,780 square feet in Zone 1 and 95,520 square feet in Zone 2) or approximately 5.38
acres.
Condition No. 9 of WQC No. 3773 states "Native wetland species and shrubs should be planted
along the aquatic shelf in areas where practicable to help promote diversity among species that
may naturally propagate. "
We are unsure of the reasoning for the inclusion of this condition within the WQC No. 3773. The
approved project was to create a private, recreation pond and not for the creation of on-site
wetlands. No aquatic shelf was proposed in the original application.
Condition No. 10 of WQC No. 3773 states "The minimum water release for the proposed dam
must be approved in writing by this Office before the approved impacts may occur. The plan
must include a written explanation of the specific discharge rate and mechanism to provide for
each required release.... The plan shall also include monitoring that ensures compliance. "
It has always been the intent of the applicant to submit to both the USACE and the NC DWQ the
"low flow" design options for approval prior to commencement of the impacts. We are unsure,
however, of what form of monitoring the DWQ is referring to. The applicant is proposing to
design the minimum release to mimic the natural situation prior to building the pond. Soil types
and watershed will be considered for the low flow orifice size. Low flow release from the
impoundment will be determined and designed as specified in SECTION .0500 - MINIMUM
STREAM FLOWS TO MAINTAIN AQUATIC HABITAT of the North Carolina
Administrative Code - Title 15A Department of Environment and Natural Resources of
Subchapter 2K - Dam Safety. The low flow discharge will be calculated based on watershed
characteristics and the quality of the existing aquatic habitat as defined in this section of the
Administrative Code. The applicant intends to monitor the "low flow" conditions by monitoring
and maintaining the low flow orifice to be sure it remains functional as designed.
Condition No. 11 of WQC No. 3773 states "The impoundment discharge should be monitored to
ensure thermal impacts to waters will not exceed the temperature standard for piedmont
streams. "
The applicant is aware that the temperature of the pond shall not exceed 32 degrees C (89.6
degrees F); however, this condition also mentions routine monitoring of the discharge water and
comparison to the inflow water for compliance with 15A NCAC 0213.0211 (3) 0). The applicant
is proposing design criteria for the pond that includes a bottom draw down to regulate water
temperature n the receiving streams. Since the temperature at the bottom of ponds that exceed 8
feet in depth remains relatively constant and near the same temperature of groundwater (59
degrees F) the only monitoring required will be to ensure that the bottom draw down outlet
remains functional as designed. After construction the owner will make one measurement on a
summer day that exceeds 90 degrees F to verify that the temperature requirement is met prior to
discharge to the stream.
Franklin County Pond
S&EC Project No. 5931
Page 3 of 5
October 30, 2009
Condition No. 12 of WQC No. 3773 states that "The discharge should be aerated to enhance
dissolved oxygen levels. "
The applicant intends to provide for aeration of the discharge water from the pond by a turbulent
fall of water down the principal spillway and discharge over a rip rap dissipater prior to entering
the creek. After construction the owner will make one measurement on a summer day that
exceeds 90 degrees F to confirm that dissolved oxygen requirements are met.
Condition No. 13 of WQC No. 3773 states that "Forested areas, buffer and littoral shelves
should be preserved as undisturbed (to the extent practicable) and protected as restricted use
conservation areas ...It is out understanding that a minimum 30 foot vegetated buffer is required
pursuant to water supply regulations and that these buffers will be enhanced with an additional
20 foot vegetated buffer. "
Per earlier discussions with the USACE and NC DWQ, the proposed pond will have a 30-foot
undisturbed buffer except at the two lake access points (noted on the "Buffer Planting Map"
supplied to DWQ via electronic mail on December 11, 2008), the proposed pond dam and at the
existing farm road. Additionally, the applicant agrees to replant any areas of Zone 1 of the Tar-
Pamlico Buffer around the proposed pond that are not currently forested. And finally, it was
agreed that Zone 2 of the Tar-Pamlico Buffer surrounding the pond would remain as grassed
vegetation.
Condition No. 15 of WQC No. 3773 states that "Littoral shelves and native vegetation should be
provided along the shoreline for stability, safety, shading and habitat.. "
As discussed above, the applicant stated in the December 11, 2008 correspondence that disturbed
areas immediately adjacent to the pond (i.e. Zone 1 of the protected Tar-Pamlico buffer) that are
currently pastureland will be replanted as forested land (after construction of the impoundment).
The exceptions to this proposal will be the two lake access points, the pond dam and the existing
farm road.
Condition No. 17 of WQC No. 3773 states that `An impoundment sampling schedule and
methodology as agreed to by your agent must be finalized before the proposed impacts may
occur. This Office recommends utilizing the attached guidance document Predictability Study
Protocol for Sampling Re erence Impoundments (NCDWQ. March 12. 2008)
During site visits with the USACE, DWQ and S&EC staff in 2008 and again in early 2009, there
were discussions of utilizing store bought test kits to sample for temperature and dissolved
oxygen (downstream of the bottom draw down outlet) as part of a "pilot" study and trial data
gathering. We did not agree to the above condition. Furthermore, the above mentioned
document has not been formally adopted as final policy with respect to impoundments. This
"draft" policy includes monitoring of water quality indicators such as temperature, pH, specific
conductance, dissolved oxygen saturation and concentration, temperature, Secchi depth
transparency, total suspended residue, turbidity, total phosphorous, total Kjeldahl nitrogen,
ammonia, nitrates and nitrites, chlorophyll-a and fecal coliforms. We discussed with DWQ in
earlier correspondence that the .0211 (3) (a) rules regarding Chlorophyll a are not applicable on
ponds smaller than 10 acres in surface area. Additionally, other water quality indicators such as
dissolved oxygen, total dissolved gases, fecal coliforms, pH and temperature were addressed in
the October 23, 2008 response letter to DWQ. Specifically, the applicant is proposing outlet
structures designed to re-aerate the pond water before it enters the receiving stream, introduction
Franklin County Pond
S&EC Project No. 5931
Page 4 of 5
October 30, 2009
of hybrid grass carp to impair nuisance vegetation and design criteria for the pond that includes
draw down from the bottom to regulate water temperature in the receiving streams. This pond
will actually remove the fecal coliforms that are currently entering the system as well as reducing
the turbidity of the downstream reaches due to the livestock which is allowed to freely access the
wetlands, streams and associated riparian areas. And finally, all the pH data found to date
indicates that ponds typically fall within the 6.0 to 9.0 range and we are unaware of any data
supporting the suggestion that the pH criteria would be violated. We understand that this
condition will apply if the policy is ever formally adopted and would agree to a 3-year monitoring
period. Conversely, we would expect this condition to be removed if this policy was ever
rescinded after adoption.
Condition No. 18 of WQC No. 3773 states that "Final design details for the dam and
impoundment shall be submitted to DWQ for approval in writing before the proposed impacts
may occur. The final plan shall include a discussion of how water quality standards will be
monitored and maintained within the impoundment. "
The applicant stated in previous correspondence that the final dam design drawings and details
would be submitted to both the USACE and NCDWQ for review and approval prior to
construction. However, we believe clarification needs to be made as to which water quality
standards DWQ has concerns over. It has been repeatedly suggested by the NC DWQ that pond
creation can result in a violation of NC Water Quality Standards, specifically with respect to 15A
NCAC 02B .0200 rules. Previous DWQ information requests, however, did not specify which
standards they are most concerned with. We discussed with DWQ in our October 23, 2008
response letter that the..0211 (3) (a) rules regarding Chlorophyll a are not applicable on ponds
smaller than 10 acres in surface area. Further, the applicant is proposing outlet structures
designed to re-aerate the pond water before it enters the receiving stream and introduction of
hybrid grass carp to impair nuisance vegetation in order to address any dissolved oxygen and total
dissolved gas concerns. Design criteria for the pond includes draw down from the bottom to
regulate water temperature in the receiving streams. This pond will actually remove the fecal
coliforms that are currently entering the system as well as reducing the turbidity of the
downstream reaches due to the livestock which is allowed to freely access the wetlands, streams
and associated riparian areas. And finally, all the pH data found to date indicates that ponds
typically fall within the 6.0 to 9.0 range and we are unaware of any data supporting the
suggestion that the pH criteria would be violated. We are interested in sitting down with DWQ
staff to discuss this condition and NC Water Quality Standard violation concerns.
Condition No. 19 of WQC No. 3773 discusses Deed Restrictions to be placed around the riparian
buffer areas. It should be noted that the final mitigation plan approved by the USACE for the
Franklin County Pond project included no less than 30-foot and in most cases 50-foot
Conservation Declaration Areas pursuant to the USACE Restrictive Covenants Guidance
document. These areas will be permanently fenced to keep the cattle from freely roaming in the
riparian buffer areas. It is also important to note that there are significant, contiguous tracts of
wetlands that are also included in this Conservation Declaration Area (see attached Final
Mitigation Map dated May 12, 2009).
We are requesting some revisions to the language of Condition No. 19, specifically sub-section c.
which prohibits the "construction or placement of any roads, trails, walkways, buildings, mobile
homes, signs, utility poles or towers, or any other permanent or temporary structure." We are
asking that this be clarified to exclude the farm road crossing, future road crossings, future utility
line crossings and the two, 8-foot wide pond access trails you previously deemed permissible. It
Franklin County Pond
S&EC Project No. 5931
Page 5 of 5
October 30, 2009
is also important to note the presence of an existing Franklin County Sewer line easement on the
subject property (see attached map) that was previously permitted by the USACE and NC DWQ
and will be installed by Franklin County.
We are also requesting a clarification/revision to sub-section f. which prohibits "graz(ing) or
water(ing) animals, or use for any agricultural or horticultural purpose." We are asking that this
be clarified to exclude the previously identified cattle crossings/fjords that are currently in
existence and any pasture that is in existence and outside the mitigation plan areas. It should be
noted that these cattle crossings were not included in the final mitigation area as approved by the
USACE. Additionally, water may be removed from the pond to provide water for the cattle while
keeping them excluded from the streams.
We look forward to working through the clarification/revision of the above-mentioned conditions
of WQC No. 3773 to reach a mutually amenable conclusion for this project. Please let us know if
you believe an office meeting would be beneficial. We would be happy to schedule one at your
earliest convenience.
Sincerely,
r
Nicole J. Thomson
Regulatory Specialist
Cc: Mr. James Lastinger, USACE, Raleigh Field Office
Mr. Carlton Midyette
0? W A r?9pG
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o -c
Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Coleen H. Sullins, Director
Division of Water Quality
December 15, 2008
Carlton Midyette
8310 Bandford Way
Raleigh, NC 27615
Re: Franklin County Pond, Franklin County
DWQ #20081342; USACE Action ID. No. 200802598
Ut to Cedar Creek [030301, 28-29-(2), C, NSW]
APPROVAL of 401 Water Quality Certification with Additional Conditions
Dear Mr. Midyette:
Attached hereto is a copy of Certification No. 3773 issued to Mr. Carlton Midyette, dated
December 15, 2008. In addition, you should get any other federal, state or local permits before
you go ahead with your project including (but not limited to) Solid Waste, Sediment and Erosion
Control, Stormwater, Dam Safety, Non-discharge and Water Supply Watershed regulations.
This letter shall also act as your approved Authorization Certificate for impacts to the protected
riparian buffers per 15A NCAC 2B .0259.
If we can be of further assistance, do not hesitate to contact us.
;S1 n r ly
oleen H. Sullins
CHS/cbk/ijm
Attachments: Certificate of Completion
Predictability Study Protocol for Sampling Reference Impoundments
cc: Becky Fox, EPA Region 4,1307 Firefly Road, Whittier, NC 28789
U.S. Army Corps of Engineers, Raleigh Regulatory Field Office, Wilmington District
Lauren Witherspoon, DWQ Raleigh Regional Office
DLR Raleigh Regional Office
File Copy
Matt Matthews, DWQ Wetlands and Stormwater Branch
Kevin Martin, S&EC, P.A., 11010 Raven Ridge Road, Raleigh, NC 27614
401 OversightlExpress Review Permits Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone: [phone] / FAX [phone] / Internet: http://h2o.enr.state.nc.us/ncwetlands
Filename: 081342FranklinCountyPond(Franklin)401 IC
W?ftbCarohna
Natura!!y
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
Mr. Carlton Midyette
Page 2 of 2
December 15, 2008
NORTH CAROLINA 401 WATER QUALITY 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 Water
Quality (DWQ) Regulations in 15 NCAC 2H, Section.0500 to Mr. Carlton Midyette to fill or
otherwise impact 0.3122 acres of 404/wetland (0.012 acres for dam fill and 0.310 flooding), 2,165
linear feet of perennial stream (128 linear feet perennial stream fill for dam, and 2,017 linear feet
perennial stream flooding), flood 262,949 square feet of Zone 1 Tar-Pamlico River basin protected
riparian buffers and 175,300 square feet of Zone 2 Tar-Pamlico River basin protected riparian
buffers in the Tar-Pamlico River Basin, and impact 480 square feet of Zone 1 Tar-Pamlico River
basin protected riparian buffers and 320 square feet of Zone 2 Tar-Pamlico River basin protected
riparian buffers in the Tar-Pamlico River Basin post impoundment construction to install two pond
8-foot wide pond access trails, to construct a recreational impoundment at the site. The site is
located between Gooseberry Lane and N. Pastures Trail, off Cedar Creek Road, near Franklinton,
Franklin County, North Carolina, pursuant to an undated and unsigned application (received by the
DWQ on September 2, 2008, and Public Notice issued by the U.S. Army Corps of Engineers on .
September 17, 2008 (received by the DWQ on September 17, 2008), and by additional information
received on September 18, 2008, and October 23, 2008.
The application and supporting documentation provides adequate assurance that the proposed
work 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 the
applicable portions of Sections 301, 302, 303, 306, 307 of PL 92-500 and PL 95-217 if
conducted in accordance with the application, the supporting documentation, and conditions
hereinafter set forth.
This approval is only valid for the purpose and design submitted in the application materials and
as described in the Public Notice. If the project is changed, prior to notification a new
application for a new Certification is required. If the property is sold, the new owner must be
given a copy of the Certification and approval letter and is thereby responsible for complying
with all conditions of this Certification. Any new owner must notify the Division and request the
Certification be issued in their name. Should wetland or stream fill be requested in the future,
additional compensatory mitigation may be required as described in 15A NCAC 2H.0506 (h) (6)
and (7). If any plan revisions from the approved site plan result in a change in stream or wetland
impact or an increase in impervious surfaces, the DWQ shall be notified in writing and a new
application for 401 Certification may be required. For this approval to be valid, compliance with
the conditions listed below is required: This letter shall also act as your approved Authorization
Certificate for impacts to the protected riparian buffers per 15A NCAC 2B .0259.
Conditions of Certification:
1. Impacts Approved
The following impacts are hereby approved as long as all of the other specific and
general conditions of this Certification (or Isolated Wetland Permit) are met. No other
impacts are approved including incidental impacts:
Mr. Carlton Midyette
Page 3 of 3
December 15, 2008
Type of Impact Amount Approved nits Plan Location or Reference
404/Wetland 0.3122 [(acres) 0.012 acres for dam fill and 0.310 Application materials and
flooding) USACE Public Notice
Stream - perennial 2,165 [(linear feet) 128 linear feet perennial stream Application materials and
fill for dam, and 2,017 linear feet perennial stream USACE Public Notice
flooding]
Buffers Zone 1- Pre- 262,949 (square ft.) Application materials and
Impoundment USACE Public Notice
Buffers Zone 2 - Pre- 175,300 (square ft.) Application materials and
Impoundment USACE Public Notice
Buffers Zone 1 - 480 (square ft.) Application materials and
Post-Impoundment USACE Public Notice
Buffers Zone 2 - 320 (square ft.) Application materials and
Post-Impoundment USACE Public Notice
Sediment and Erosion Control:
2. Erosion and sediment control practices must be in full compliance with all specifications
governing the proper design, installation and operation and maintenance of such Best
Management Practices in order to protect surface waters standards:
a. The erosion and sediment control measures for the project must be. designed,
installed, operated, and maintained in accordance with the most recent version of the
North Carolina Sediment and Erosion Control Planning and Design Manual.
b. The design, installation, operation, and maintenance of the sediment and erosion
control measures must be such that they equal, or exceed, the requirements specified
in the most recent version of the North Carolina Sediment and Erosion Control
Manual. The devices shall be maintained on all construction sites, borrow sites, and
waste pile (spoil) projects, including contractor-owned or leased borrow pits
associated with the project.
c. Sufficient materials required for stabilization and/or repair of erosion control
measures and stormwater routing and treatment shall be on site at all times.
3. No waste, spoil, solids, or fill of any kind shall occur in wetlands, waters, or riparian areas
beyond the footprint of the impacts depicted in the 404/401 Permit Application. All
construction activities, including the design, installation, operation, and maintenance of
sediment and erosion control Best Management Practices, shall be'performed so that no
violations of state water quality standards, statutes, or rules occur;
4. Sediment and erosion control measures shall not be placed in wetlands or waters without
prior approval from the Division. If placement of sediment and erosion control devices in
wetlands and waters is unavoidable, design and placement of temporary erosion control
measures shall not be conducted in a manner that may result in dis-equilibrium of wetlands
or stream beds or banks, adjacent to or upstream and down stream of the above structures.
All sediment and erosion control devices shall be removed and the natural grade restored
within two (2) months of the date that the Division of Land Resources or locally delegated
program has released the project;
Mr. Carlton Midyette
Page 4 of 4
December 15, 2008
5. Protective Fencing - The outside buffer, wetland or water boundary and along the
construction corridor within these boundaries approved under this authorization shall be
clearly marked with orange warning fencing (or similar high visibility material) for the
areas that have been approved to infringe within the buffer, wetland or water prior to any
land disturbing activities to ensure compliance with 15A NCAC 2B .0259;
Continuing Compliance:
6. Mr. Carlton Midyette shall conduct construction activities in a manner consistent with
State water quality standards (including any requirements resulting from compliance with
section 303(d) of the Clean Water Act) and any other appropriate requirements of State
law and federal law. If the Division determines that such. standards or laws are not being
met (including the failure to sustain a designated or achieved use) or that State or federal
law is being violated, or that further conditions are necessary to assure compliance, the
Division may reevaluate and modify this Certification to include conditions appropriate
to assure compliance with such standards and requirements in accordance with 15A
NCAC 2H.0507(d). Before modifying the Certification, the Division shall notify Mr.
Carlton Midyette and the US Army Corps of Engineers, provide public notice in
accordance with 15A NCAC 211.0503 and provide opportunity for public hearing in
accordance with 15A NCAC 211.0504. Any new or revised conditions shall be provided
to Mr. Carlton Midyette in writing, shall be provided to the United States Army Corps of
Engineers for reference in any Permit issued pursuant to Section 404 of the Clean Water
Act, and shall also become conditions of the 404 Permit for the project;
Deed Notifications:
7. Deed notifications or similar mechanisms shall be placed on all lots with remaining
jurisdictional wetlands and waters or areas within 50 feet of all streams and ponds. These
mechanisms shall be put in place within 30 days of the date of issuance of the '
401 Certification letter or the issuance of the 404 Permit (whichever is later). A sample
deed notification format can be downloaded from the 401/Wetlands Unit web site at
http://h2o.enr.state.nc.us/ncwetlands DWQ shall be sent copies of all deed restrictions
applied to these lots;
8. Construction Stormwater Permit NCGO10000
Upon the approval of an Erosion and Sedimentation Control Plan issued by the Division
of Land Resources (DLR) or a DLR delegated local erosion and sedimentation control
program, an NPDES General stormwater permit (NCGO10000) administered by DWQ is
automatically issued to the project. This General Permit allows stormwater to be
discharged during land disturbing construction activities as stipulated by conditions in the
permit. If your project is covered by this permit [applicable to construction projects that
disturb one (1) or more acres], full compliance with permit conditions including the
sedimentation control plan, self-monitoring, record keeping and reporting requirements
are required. A copy of this permit and monitoring report forms may be found at
http. //h2o. enr. state. nc. us/su/Forms Documents. htm. ; '
Mr. Carlton Midyette
Page 5 of 5
December 15, 2008
Native wetland species and shrubs should be planted along the aquatic shelf in areas
where practicable to help promote diversity among species that may naturally propagate.
10. The minimum water release plan for the proposed dam must be approved in writing by
this Office before the approved impacts may occur. The plan must include a written
explanation of the specific discharge rate and mechanism to provide for each required
release. The plan must also include any design specifications, details and calculations to
show that the release shall be achieved in the given conditions. The plan shall also
include monitoring that ensures compliance. The plan and any associated facilities, once
approved, must be in place and implemented upon the completion of the dam.
11. The impoundment discharge should be monitored to ensure thermal impacts to
waters will not exceed the temperature standard for piedmont streams. Unless
otherwise stipulated by the Division of Water Quality, discharge water temperatures
should be routinely monitored and compared to inflow water temperatures to ensure
compliance.
12. The discharge should be aerated to enhance dissolved oxygen levels.
13. Forested areas, buffers and littoral shelves should be preserved as undisturbed (to the
extent practicable) and protected as restricted use conservation areas. Maximum
available forested buffers should be provided and protected. It is our understanding
that a minimum 30-foot vegetated buffer is required pursuant to water supply
regulations and that these buffers will be enhanced with an additional 20-foot
vegetated exterior buffer.
14. Buffer Replanting
Replanting of vegetation within disturbed areas located within 30 feet of the
impoundment shoreline must be done in an "in kind" manner immediately following
construction. (Example: Disturbed areas with pre-existing grassed lawns must be
replanted with grass. Disturbed areas with pre-existing trees or woody vegetation must
be replanted with trees and woody vegetation. Disturbed areas with pre-existing forest
vegetation must be replanted with forest vegetation including at least two different native
hardwood tree species at a density sufficient to provide 320 trees per acre at maturity.
This density can usually be achieved by planting approximately 436 (10 x 10 spacing) to
681 (8 x 8 spacing) trees per acre.) We understand based on materials submitted on
December 11,2008, that 14,480 square feet of new Zone 1 buffer around the
impoundment that is currently pastureland will be replanted as forested land.
15. Littoral shelves and native vegetation should be provided along the shoreline for
stability, safety, shading and habitat.
16. The use of motorized equipment as well as fertilizers and other chemicals in the
lake and around the shoreline and buffer zones should be strictly controlled so as not to
cause direct or ancillary pollutant issues downstream.
Mr. Carlton Midyette
Page 6 of 6
December 15, 2008
17. An impoundment sampling schedule and methodology as agreed to by your agent must
be finalized before the proposed impacts may occur. This Office recommends utilizing
the attached guidance document Predictability Study Protocol for Sampling Reference
Impoundments (NCDWQ, March 12, 2008).
18. Final design details for the dam and impoundment shall be submitted to DWQ for
approval in writing before the proposed impacts may occur. The final plan shall include
a discussion of how water quality standards will be monitored and maintained within the
impoundment. The final plan shall also include the structural design drawings and details
for the dam, including the plan and profile views illustrating the height, toe, materials,
spillway, as well as the operation and maintenance plan.
19. Deed Restrictions
Mr. Carlton Midyette shall execute and cause to be recorded in the Franklin County
Register of Deeds restrictive covenants acceptable to the Division of Water Quality for
the purpose of maintaining the riparian buffers, as shown on the recorded plat ("Franklin
County Pond" located at Gooseberry Lane and N. Pastures Trail, off Cedar Creek Road,
near Franklinton, Franklin County), in their natural state in perpetuity, prior to the sale of
the subject property.
No person or entity shall perform any of the following activities on such buffer
conservation area:
a. fill, grade, excavate or perform any other land disturbing activities
b. cut, mow, burn, remove, or harm any vegetation
c. construct or place any roads, trails, walkways, buildings, mobile homes, signs,
utility poles or towers, or any other permanent or temporary structures
d. drain or otherwise disrupt or alter the hydrology or drainage ways of the
conservation area
e. dump or store soil, trash, or other waste
f. graze or water animals, or use for any agricultural or horticultural purpose
This covenant is intended to ensure continued compliance with the Neuse Buffer
Rules (15A NCAC 2B.0259) of the Division of Water Quality and therefore may be
enforced by the Division of Water Quality. This covenant is to run with the land, and
shall be binding on the Owner, and all parties claiming under it."
The permittee shall enforce the terms of the restrictive covenants and., prior to sale of the
subject property, shall take no action on the subject site described in the covenants
inconsistent with the terms thereof. This requirement excludes riparian areas authorized
for impacts in accordance with this minor variance approval. The permittee shall provide
a copy of the recorded restrictive covenants to the Division of Water Quality within 15
days of recording.
20. Certificate of Completion
Upon completion of all work approved within the 401 Water Quality Certification or
applicable Buffer Rules, and any subsequent modifications, the applicant is required to
Mr. Carlton Midyette
Page 7 of 7
December 15, 2008
return the attached certificate of completion to the 401 Oversight/Express Review
Permitting Unit, North Carolina Division of Water Quality, 1650 Mail Service Center,
Raleigh, NC, 27699-1650.
Also, this approval to proceed with your proposed impacts or to conduct impacts to waters
as depicted in your application shall expire upon expiration of the 404 Permit.
If this Certification is unacceptable to you, you have the right to an adjudicatory hearing upon
written request within sixty (60) days following receipt of this Certification. This request must be
in the form of a written petition conforming to Chapter 150B of the North Carolina General
Statutes and filed with the Office of Administrative Hearings, 6714 Mail Service Center,
Raleigh, N.C. 27699-6714. If modifications are made to an original Certification, you have the
right to an adjudicatory hearing on the modifications upon written request within sixty (60) days
following receipt of the Certification. Unless such demands are made, this Certification shall be
final and binding.
This the 15th day of D c ber 2008
DIVISION OF T UALITY
Coleen H. Sullins
CHS/cbk/Yrn
3773
Page 1 of 2
Nikki Thomson
From: Nikki Thomson
Sent: Friday, December 12, 2008 10:34 AM
To: 'Ian McMillan'
Cc: Kevin Martin
Subject: RE: Franklin Co. Pond; Buffer amounts
My apologies...
I've realized that if anyone goes back and looks at this email in a year, they will have absolutely no idea
what I am referencing below.
Per our phone call this morning, I have enumerated the riparian buffer impacts, broken out into Zone 1 and
Zone 2, for the stream channel that will be flooded and otherwise impacted for the dam and road crossing
as a result of the proposed pond.
I hope this clarifies things a little bit more...
Thanks!
Nik
From: Nikki Thomson
Sent: Friday, December 12, 2008 10:18 AM
To: Ian McMillan
Cc: Kevin Martin
Subject: Franklin Co. Pond; Buffer amounts
Hey Ian -
I left you a voice mail, but thought I'd email you the numbers as well (I realize my voice is less than ideal today)
Zone 1 = 129,900 sq.ft.
Zone 2 = 86,600 sq. ft.
Total: 216,500 sq. ft. or 4.97 ac.
Hope this helps.
Nik
Nicole Thomson
Regulatory specialist
soil 4, Environmental Consultants, ?A
110101Zaven Ridge Road
Raleigh, NC 27614
E-Mail: NThomson@SandEC•com
Phone: [phone]oo
Fax: [phone]
Mobile: (919) 723-oo83
www.sandEGcom
10/26/2009
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
REPLY
TO
ATTENTION OF' - -.'. ..
June 22, 2009
Regulatory Division
Action ID No. SAW-2008-02598
Mr. Carlton Midyette
8310 Bandford Way
Raleigh, North Carolina 27615
Dear Mr. Midyette:
In accordance with the written request of August 29, 2008, submitted on your behalf by
Ms. Nicole Thomson of Soil and Environmental Consultants, PA, and the ensuing administrative
record, enclosed are two copies of a Department of the Army Individual permit to authorize the
permanent placement of fill material into 128 linear feet of stream channel fill for the dam (105
linear feet for dam fill, and 23 linear feet for the rip rap dissipater pad) and 20 linear feet for the
farm road, and 2,017 linear feet of stream channel flooding for the lake and includes 0.012 acre
of wetland fill for the dam and 0.310 acre of wetland flooding. A total of 2,165 linear feet of
jurisdictional stream channel and 0.322 acre of jurisdictional wetlands would be impacted in
conjunction with the proposed project. The project site is located on an existing 400 acre private
cattle farm, located between Gooseberry Lane and N. Pastures Trail, off Cedar Creek Rd., near
Franklinton, Franklin County, North Carolina. Coordinates, in decimal degrees, for the project
site are 36.0586°N, -78.4291'W. The project site contains several wetlands and unnamed
stream channels which drain to Cedar Creek in the Tar-Pamlico River Basin (8-Digit Cataloging
Unit of 03020101).
You should acknowledge that you accept the terms and conditions of the enclosed permit
by signing and dating each copy in the spaces provided ("Permittee" on page 3). Your signature,
as permittee, indicates that, as consideration for the issuance of this permit, you voluntarily
accept and agree to comply with all of the terms and conditions of this permit. All pages of both
copies of the signed permit with drawings and exhibits should then be returned to this office for
final authorization. A self-addressed envelope is enclosed for your convenience.
Title 33, Part 325.1(f), of the Code of Federal Regulations reads, in part, that, "A $10 fee
will be charged for permit applications when the work is noncommercial in nature and provides
personal benefits that have no connection with a commercial enterprise...", and "A fee of $100
will be charged for permit applications when the planned or ultimate purpose of the project is
commercial or industrial in nature and is in support of operations that charge for the production,
distribution, or sale of goods or services." As your application fits the first category, you are
requested to remit your check for $10, made payable to the Finance and Accounting Officer,
USAED, Wilmington. The check should accompany the signed and dated copies of your permit.
This correspondence contains a proffered permit for the above described site. If you object
to this decision, you may request an administrative appeal under Corps regulations at 33 CFR
Part331. Enclosed you will find a Notification of Appeal Process (NAP) fact sheet and request
for appeal (RFA) form. If you request to appeal this decision you must submit a completed RFA
form to the following address:
Ms. Jean Manuele
Chief, Raleigh Regulatory Field Office
3331 Heritage Trade Dr., Suite 105
Wake Forest, NC 27587
In order for an RFA to be accepted by the Corps, the Corps must determine that it is complete,
that it meets the criteria for appeal under 33 CFR part 331.5, and that it has been received by the
Division Office within 60 days of the date of the NAP. Should you decide to submit an RFA
form, it must be received at the above address by August 22, 2009.
**It is not necessary to submit an RFA form to the Division Office if you do not object to the
decision in contained in this correspondence.**
After the permit is authorized in this office, the original copy will be returned to you and
the duplicate copy will be permanently retained in this office. Should you have questions, please
contact Mr. James Lastinger, Raleigh Regulatory Field Office, at telephone [phone],
extension 32.
Sincerely,
ean B. Manuele
Chief, Raleigh Regulatory
Field Office
Enclosures
Copy Furnished (with enclosures):
Soil and Environmental Consultants, PA
Attn: Nicole Thomson
11010 Raven Ridge Road
Raleigh, NC 27614
2
DEPARTMENT OF THE ARMY PERMIT
Permittee: MR. CARLTON MIDYETTE
Permit No: SAW-2008-02598
Issuing Office: USAED. WILMINGTON
NOTE: The term "you" and its derivatives, as used in this permit, means the permittee or any future transferee. The
term "this office" refers to the appropriate district or division office of the Corps of Engineers having jurisdiction over
the permitted activity or the appropriate official of the office acting under the authority of the commanding officer.
You are authorized to perform work in the accordance with the terms and conditions specified below.
Project Description: This proposal is to construct a dam and road crossing on an unnamed tributary (UT) to
Cedar Creek. The design would call for some excavation within the proposed pond footprint to form the
banks of the pond and confine it within the proposed impact area. Total permanent impacts from this
proposal are 0.322 acre of jurisdictional bottomland hardwood forested wetlands, and 2,165 linear feet of
perennial stream channel. The applicant also stated in the original request a proposal to mitigate for
impacts to stream channels and wetlands through preservation on site at a 13:1 mitigation ratio for wetland
preservation and a 3:1 mitigation ratio for stream preservation by the preservation of 4.32 acres of
contiguous bottomland hardwood forested wetlands, approximately 6,200 linear feet of channel, and
approximately 20 acres of protected Tar-Pamlico riparian buffer, through the installation of fences to
permanently restrict cattle use in these areas. No other forms of mitigation have been proposed for this
project.
Project Location: The proposed project location is located on an existing 400 acre private cattle farm,
located between Gooseberry Lane and N. Pastures Trail, off Cedar Creek Rd., near Franklinton, Franklin
County, North Carolina. Coordinates, in decimal degrees, for the project site are 36.0586°N, -78.4291°
W. The project site contains several wetlands and unnamed stream channels which drain to Cedar Creek
in the Tar-Pamlico River Basin (8-Digit Cataloging Unit of 03020101).
Permit Conditions:
General Conditions:
1. The time Limit for completing the work authorized ends on December 31, 2017. If you find that you need more
time to complete the authorized activity, submit your request for a time extension to this office for consideration at least
one month before the above date is reached.
2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and
conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you
may make a good faith transfer to a third party in compliance with General Conditions 4 below. Should you wish to
cease to maintain the authorized activity or should you desire to abandon it without a good faith transfer, you must
obtain a modification of this permit from this office, which may require restoration of the area.
ENG Form 1721, Nov 86 EDITIONS OF SEP 82 IS OBSOLETE. (33 DFR 325 (Appendix A))
3. If you discover any previously unknown historic or archeological remains while accomplishing the activity
authorized by this permit, you must immediately notify this office of what you have found. We will initiate the Federal
and state coordination required to determine if the remains warrant a recovery effort or if the site eligible for listing in
the National Register of Historic Places.
4. If you sell the property associated with this permit, you must obtain the signature of the new owner in the space
provided and forward a copy of the permit to this office to validate the transfer of this authorization.
5. If a conditioned water quality certification has been issued for your project, you must comply with the conditions
specified in the certification as special conditions to this permit. For your convenience, a copy of the certification is
attached if it contains such conditions.
6. You must allow representatives from this office to inspect the authorized activity at any time deemed necessary to
ensure that it is being or has been accomplished in accordance with the terms and conditions of your permit.
Special Conditions:
*SEE ATTACHED SPECIAL CONDITIONS
Further Information:
1. Congressional Authorities: You have been authorized to undertake the activity described above pursuant to:
( ) Section 10 of the Rivers and Harbors Act of 1899 (33 U.S. C. 403).
(X) Section 404 of the clean Water Act (33 U.S.C. 1344).
( ) Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413).
2. Limits of this authorization.
a. This permit does not obviate the need to obtain other Federal, state, or local authorizations required by law.
b. This permit does not grant any property rights or exclusive privileges.
c. This permit does not authorize any injury to the property or rights of others.
d. This permit does not authorize interference with any existing or proposed Federal project.
3. Limits of Federal Liability. In issuing this permit, the Federal Government does not assume any liability for the
following:
a. Damages to the permitted project or uses thereof as a result of other permitted or unpermitted activities or from
natural causes.
b. Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on
behalf of the United states in the public interest.
c. Damages to persons, property, or to other permitted or unpermitted activities or structures caused by the activity
authorized by this permit.
d. Design or construction deficiencies associated with the permitted work.
e. Damage claims associated with any future modification, suspension, or revocation of this permit.
2 *U.S. GOVERNMENT PRINTING OFFICE: 1986-717425
4. Reliance on Applicant's Data: The determination of this office that issuance of this permit is not contrary to the public interest was mad in
reliance on the information you provided.
5. Reevaluation of Permit Decision. This office may reevaluate its decision on this permit at any time the circumstances
warrant. Circumstances that could require a reevaluation include, but are not limited to, the following:
a. You fail to comply with the terms and conditions of this permit.
b. The information provided by you in support of your permit application proves to have been false, incomplete, or
inaccurate (see 4 above).
c. Significant new information surfaces which this office did not consider in reaching the original public interest
decision.
Such a reevaluation may result in a determination that it is appropriate to use the suspension, modification, and
revocation procedures contained in 33 CFR 325.7 or enforcement procedures such as those contained in 33CFR 326.4
and 326.5. The referenced enforcement procedures provide for the issuance of an administrative order requiring you to
comply with the terms and conditions of your permit and for the initiation of legal action where appropriate. You will
be required to pay for any corrective measures ordered by this office, and if you fail to comply with such directive, this
office may in certain situations (such as those specified in 33 CFR 209.170) accomplish the corrective measure by
contract or otherwise and bill you for the cost.
6. Extensions. General condition 1 establishes a time limit for the completion of the activity authorized by this permit.
Unless there are circumstances requiring either a prompt completion of the authorized activity or a reevaluation of the
public interest decision, the Corps will normally give favorable consideration to a request for an extension of this time
limit.
Your signature below, as permittee, indicates that you accept and agree to comply with the terms and conditions of this
permit.
(PERMITTEE) MR. CARLTON MIDYETTE
(DATE)
This permit becomes effective when the Federal official, designated to act for the Secretary of the Army, has signed
below.
(DISTRICT Commander) JEFFERSON M. RYSCAVAGE
COLONEL, U.S. ARMY
DISTRICT COMMANDER
(DATE)
When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this
permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated
with compliance with its terms and conditions, have the transferee sign and date below.
(transferee)
(Date)
3 *U.S. GOVERNMENT PRINTING OFFICE: 1"6 - 717425
Special Conditions - Action ID 2008-02598; Mr. Carlton Midyette, (Franklin County
Farm
1. Work Limits
1) All work authorized by this permit must be performed in strict compliance with
the attached plans, which are a part of this permit. Any modification to these
plans must be approved by the US Army Corps of Engineers (USACE) prior to
implementation.
2) Except as authorized by this permit or any USACE approved modification to this
permit, no excavation, fill or mechanized land-clearing activities shall take place
at any time in the construction or maintenance of this project, within waters or
wetlands. This permit does not authorize temporary placement or double
handling of excavated or fill material within waters or wetlands outside the
permitted area. This prohibition applies to all borrow and fill activities connected
with this project.
3) Except as specified in the plans attached to this permit, no excavation, fill or
mechanized land-clearing activities shall take place at any time in the construction
or maintenance of this project, in such a manner as to impair normal flows and
circulation patterns within waters or wetlands or to reduce the reach of waters or
wetlands.
4) The North Carolina Division of Water Quality (DWQ) permit/certification
number 3773 was issued for this project on December 15, 2008. Special
conditions were issued associated with this water quality permit/certification and
a copy of these conditions is attached as Exhibit A. These referenced conditions
are hereby incorporated as special conditions of this permit.
5) The permittee shall schedule a preconstruction meeting between its
representatives, the contractor's representatives, and the Corps of Engineers,
Raleigh Regulatory Field Office, prior to any work within jurisdictional waters
including jurisdictional wetlands to ensure that there is a mutual understanding of
all of the terms and conditions contained within this Department of the Army
Permit. The permittee shall provide the USACE, Raleigh Regulatory Field Office,
with a copy of the final plans at least two weeks prior to the preconstruction
meeting along with a description of any changes that have been made to the
project's design, construction methodology or construction timeframe. The
permittee shall schedule the preconstruction meeting for a time when the USACE
and North Carolina Division of Water Quality (NCDWQ) Project Managers can
attend. The permittee shall invite the Corps and NCDWQ Project Managers a
minimum of thirty (30) days in advance of the scheduled meeting in order to
provide those individuals with ample opportunity to schedule and participate in
the required meeting.
Special Conditions - Action ID 2008-02598; Mr. Carlton Midyette, (Franklin County
Farm
6) The permittee shall install all culverts as follows: measures will be included in the
construction/installation that will promote the safe passage of fish and other
aquatic organisms. The dimension, pattern, and profile of the stream above and
below a pipe or culvert should not be modified by widening the stream channel or
by reducing the depth of the stream in connection with the construction activity.
The width, height, and gradient of a proposed opening should be such as to pass
the average historical low flow and spring flow without adversely altering flow
velocity. Spring flow should be determined from gage data, if available. In the
absence of such data, bankfull flow can be used as a comparable level. Culverts
greater than 48 inches in diameter will be buried at least one foot below the bed of
the stream. Culverts 48 inches in diameter or less shall be buried or placed on the
stream bed as practicable and appropriate to maintain aquatic passage, and every
effort shall be made to maintain the existing channel slope. The bottom of the
culvert must be placed at a depth below the natural stream bottom to provide for
passage during drought or low flow conditions. Destabilizing the channel and
head cutting upstream should be considered in the placement of the culvert. A
waiver from the depth specifications in this condition may be requested in
writing. The waiver will be issued if it can be demonstrated that the proposal
would result in the least impacts to the aquatic environment. Culverts placed in
wetlands do not have to be buried.
7) The permittee shall implement the stream and wetland mitigation plan entitled
"Preservation/Enhancement Plan: Carlton Midyette Pond" dated May 12, 2009.
This plan provides for compensatory mitigation requirements for the project
inundation impacts and fill impacts for the dam and road crossing to jurisdictional
waters (i.e., inundation of 2,017 linear feet of stream channel and 0.310 acre of
wetlands, 128 linear feet of stream channel fill for the dam (105 linear feet for dam
fill, and 23 linear feet for the rip rap dissipater pad), 20 linear feet of stream
channel fill for the road crossing, and 0.012 acre of wetland fill for the dam). The
pennittee shall implement the preservation and enhancement of stream channels
and wetlands onsite as described in plans submitted on May 12, 2009 prior to, or
concurrently with any impacts to waters of the United States associated with this
permit authorization. Conservation Declaration Areas shall be recorded by July 1,
2014, and fencing shall be completed by July 1, 2017, or within 1 year of completion
of the dam's construction, whichever occurs first. This plan provides for the onsite
(both upstream and downstream of proposed lake) preservation of 10,238 linear
feet of perennial stream channel, and 3,530 linear feet of intermittent stream
channel with buffers and 4.32 acres of wetlands. Mitigation ratios for perennial
and intermittent stream channels are 4.7:1 and 1.6:1, respectively, for a combined
ratio of 6.4:1; with the mitigation ratio for wetlands at 13.4:1. No development of
any type will be allowed in the preservation/enhancement areas.
2
Special Conditions - Action ID 2008-02598; Mr. Carlton Midyette, (Franklin County
Farm
"Note: Habitat type may be described as found in Schafale and Weakley,
Classification of the Natural Communities of North Carolina, Third
Approximation, 1990; or in accordance with Cowardin, et al (1979),
Classification of Wetlands and Deepwater Habitats of the of the United
States.
11. Related Laws
8. All mechanized equipment will be regularly inspected and maintained
to prevent contamination of waters and wetlands from fuels, lubricants, hydraulic
fluids, or other toxic materials. In the event of a spill of petroleum products or
any other hazardous waste, the permittee shall immediately report it to the N.C.
Division of Water Quality at [phone], Ext. 526 or [phone] and
provisions of the North Carolina Oil Pollution and Hazardous Substances Control
Act will be followed.
III. Project Maintenance
9. The permittee shall advise the Corps in writing upon completion of the
work authorized by this permit.
10. Unless otherwise authorized by this permit, all fill material placed in
waters or wetlands shall be generated from an upland source and will be clean and
free of any pollutants except in trace quantities. Metal products, organic materials
(including debris from land clearing activities), or unsightly debris will not be
used.
11. The permittee shall require its contractors and/or agents to comply
with the terms and conditions of this permit in the construction and maintenance
of this project, and shall provide each of its contractors and/or agents associated
with the construction or maintenance of this project with a copy of this permit. A
copy of this permit, including all conditions, shall be available at the project site
during construction and maintenance of this project.
12. The permittee shall employ all sedimentation and erosion control
measures necessary to prevent an increase in sedimentation or turbidity within
waters and wetlands outside the permit area. This shall include, but is not limited
to, the immediate installation of silt fencing or similar appropriate devices around
all areas subject to soil disturbance or the movement of earthen fill, and the
immediate stabilization of all disturbed areas. Additionally, the project must
remain in full compliance with all aspects of the Sedimentation Pollution Control
Act of 1973 (North Carolina General Statutes Chapter 113A Article 4).
Special Conditions - Action ID 2008-02598; Mr. Carlton Midyette, (Franklin County
Farm
13. The permittee, upon receipt of a notice of revocation of this permit or
upon its expiration before completion of the work will, without expense to the
United States and in such time and manner as the Secretary of the Army or his
authorized representative may direct, restore the water or wetland to its pre-
project condition.
IV. Enforcement
14. Violations of these conditions or violations of Section 404 of the
Clean Water Act or Section 10 of the Rivers and Harbors Act must be reported in
writing to the Wilmington District U.S. Army Corps of Engineers within 24 hours
of the permittee's discovery of the violation.
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Applicant: Mr. Carlton Midyette File Number: SAW 2008- Date: June 22, 2009
02598
Attached is: See Section below
INITIAL PROFFERED PERMIT Standard Permit or Letter of permission A
X PROFFERED PERMIT Standard Permit or Letter of permission) B
PERMIT DENIAL C
APPROVED JURISDICTIONAL DETERMINATION D
PRELIMINARY JURISDICTIONAL DETERMINATION E
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A: INITIAL PROFFERED PERMIT: You may accept or object to the permit.
• ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final
authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your
signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights
to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the permit.
• OBJECT: If you object to the permit (Standard or LOP) because of certain terms and conditions therein, you may request that
the permit be modified accordingly. You must complete Section II of this form and return the form to the district engineer.
Your objections must be received by the district engineer within 60 days of the date of this notice, or you will forfeit your right
to appeal the permit in the future. Upon receipt of your letter, the district engineer will evaluate your objections and may: (a)
modify the permit to address all of your concerns, (b) modify the permit to address some of your objections, or (c) not modify
the permit having determined that the permit should be issued as previously written. After evaluating your objections, the
district engineer will send you a proffered permit for your reconsideration, as indicated in Section B below.
B: PROFFERED PERMIT: You may accept or appeal the permit
• ACCEPT: If you received a Standard Permit, you may sign the permit document and return it to the district engineer for final
authorization. If you received a Letter of Permission (LOP), you may accept the LOP and your work is authorized. Your
signature on the Standard Permit or acceptance of the LOP means that you accept the permit in its entirety, and waive all rights
to appeal the permit, including its terms and conditions, and approved jurisdictional determinations associated with the permit.
APPEAL: If you choose to decline the proffered permit (Standard or LOP) because of certain terms and conditions therein, you
may appeal the declined permit under the Corps of Engineers Administrative Appeal Process by completing Section II of this
form and sending the form to the division engineer. This form must be received by the division engineer within 60 days of the
date of this notice.
C: PERMIT DENIAL: You may appeal the denial of a permit under the Corps of Engineers Administrative Appeal Process
by completing Section II of this form and sending the form to the division engineer. This form must be received by the division
engineer within 60 days of the date of this notice.
D: APPROVED JURISDICTIONAL DETERMINATION: You may accept or appeal the approved JD or
provide new information.
• ACCEPT: You do not need to notify the Corps to accept an approved JD. Failure to notify the Corps within 60 days of the
date of this notice, means that you accept the approved JD in its entirety, and waive all rights to appeal the approved JD.
• APPEAL: If you disagree with the approved JD
you may appeal the approved JD under the Cor
s of En
ineers Admini
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ti
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s
ra
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Appeal Process by completing Section II of this form and sending the form to the division engineer. This form must be received
by the division engineer within 60 days of the date of this notice.
E: PRELIMINARY JURISDICTIONAL DETERMINATION: You do not need to respond to the Corps
regarding the preliminary JD. The Preliminary JD is not appealable. If you wish, you may request an
approved JD (which may be appealed), by contacting the Corps district for further instruction. Also you may
provide new information for further consideration by the Corps to reevaluate the JD.
;SEGT1'wON i,-;RE I)EMO't EA "or OBJECTIONS,'I?CI AN 04TIAUPROE?ERED PEI T?, „? ;;.,
REASONS FOR APPEAL OR OBJECTIONS: (Describe your reasons for appealing the decision or your objections to an
initial proffered permit in clear concise statements. You may attach additional information to this form to clarify where your reasons
or objections are addressed in the administrative record.)
ADDITIONAL INFORMATION: The appeal is limited to a review of the administrative record, the Corps memorandum for the
record of the appeal conference or meeting, and any supplemental information that the review officer has determined is needed to
clarify the administrative record. Neither the appellant nor the Corps may add new information or analyses to the record. However,
you may provide additional information to clarify the location of information that is already in the administrative record.
P0INTJ OF, Q FOR OESTIONS OR'INFORMATION{
If you have questions regarding this decision and/or the appeal If you only have questions regarding the appeal process you may
process you may contact: also contact:
James Lastinger, Regulatory Specialist Jean B. Manuele
Raleigh Regulatory Field Office Chief, Raleigh Regulatory Field Office
3331 Heritage Trade Dr., Suite 105 3331 Heritage Trade Dr., Suite 105
Wake Forest, NC 27587 Wake Forest, NC 27587
RIGHT OF ENTRY: Your signature below grants the right of entry to Corps of Engineers personnel, and any government
consultants, to conduct investigations of the project site during the course of the appeal process. You will be provided a 15 day
notice of any site investigation, and will have the opportunity to partici ate in all site investigations.
Date: Telephone number:
Signature of appellant or agent.
DIVISION ENGINEER:
Commander
U.S. Army Engineer Division, South Atlantic
60 Forsyth Street, Room 9M15
Atlanta, Georgia 30303-3490
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