20200119 Ver 1_Curren Email_20200204

Moore, Andrew W
From: Ken Curren <[e-mail]>
Sent: Tuesday, February 4, 2020 12:07 PM
To: Moore, Andrew W
Cc: [e-mail]; Chas Fitzgerald; Bridget Gilchrist; Duke Woodson; Edward
Huggins; Richard Parks; Johanna Cressy; Cindy Hile; Robert Singletey
Subject: [External] Cheshire Swimming Hole Restoration potential thresholds under General
Permit 4132 of a section 401 of the Clean Water Act
External email. Do not click links or open attachments unless you verify. Send all suspicious email as an attachment to
[e-mail]
Mr. Moore,
I am in receipt of your Feb 3rd e-mail (below) that included a copy of the relevant existing General Permit 4132 under
Section 401 of the federal Clean Water Act. Your comments were generated due to your receipt of a courtesy copy of
the PCN which I submitted in accordance with Section 404 of the federal Clean Water Act. The agency that Congress
tasked with authority over the Clean Water Act is the US Army Corps of Engineers. The USACE has delegated its
responsibilities under Section 401 to NC - with specific conditions.
General Permit 4132 allows any property owner to perform work without any notification, fee or other permission
unless the proposed scope of work exceeds certain thresholds specifically written into General Permit 4132. Your
cursory review of the proposed scope of work described in my Clean Water Act Section 404 PCN under Nationwide 3
resulted in your initial conclusion that the proposed project's scope of work could possibly exceed thresholds "c and d"
and therefore might require a resubmission and the payment of a $500+ fee for review and written approval.
I contend that the proposed scope of work for the proposed future project does not exceed either threshold. I content
that written approval by the NCDEQ is not required nor appropriate.
I thank you for the professional courtesy of identifying the thresholds and not simply demanding the $500+ fee as the
NCDEQ has done in the recent past. Let me provide an relevant example. Less than one year ago this same permittee
submitted a PCN to the USACE requesting a verification in accordance with a Section 404 Nationwide 13. The PCN was
not required in the Nationwide 13/because the scope of work did not exceed 500 linear feet of stream and there was
less than 150 linear feet of rip -rap in the proposed scope of work. The PCN was voluntarily submitted in accordance
with the provisions of Nationwide 3 so that the USACE would provide a written verification that could be used as proof
to "concerned citizens" and local bureaucrats. Unfortunately, this wholly voluntary PCN triggered the NCDEQ to
perform Regulatory Panhandling in which it demanded a fee with no basis, authority or validity. Even worse, after this
same permittee unwittingly paid the extortion, the NCDEQ used this "application" as a basis to demand additional
information so that a proper "review" could be performed. This improper, unauthorized review caused an unnecessary
scope creep that resulted in vastly increased costs that forced the permittee, a HOA, to assess its members an additional
$20,000 in addition to the budgeted $10,000 to finance the bloated scope of work. This permittee has no urge to allow
history to repeat itself. We are grateful for the opportunity to explain how the thresholds are not exceeded in this
proposed project.
Even in the event that the NCDEQ determines that the proposed scope of work does indeed exceed one or more of the
thresholds of the Section 401 General Permit 4132, the NCDEQ has the authority, under the provisions of its delegation
from the USACE, to waive any requirements including fees, certification or written approval. I ask that a written waiver
be provided in the unlikely event that after properly reviewing the scope of work that the NCDEQ determines a
threshold is somehow exceeded. I request, as part of your review and consideration of my waiver request, that your

agency coordinate its analysis with Mr. Scott Jones, Chief of the western North Carolina USACE office in Asheville at
828.271.7980 extension 4222. Chief Jones is fully aware of the project scope and has visited the site with me. In my
telephone call with him on January 24th he agreed that there is validity to my claim that no thresholds will be exceeded
- though it is not in his authority to make the final determination.
I present the following additional information to explain why thresholds "c and d" are not exceeded:
Threshold "c" in the General Permit states in whole, "Total temporary and permanent impacts to wetlands or open
waters equal to or greater than one -tenth (1/10) of an acre." The site of this proposed project has an existing total
combined open water and wetlands less than one -twentieth (1/20) acre. The expected impact on the wetlands will be a
net positive, with an estimated 20% increase in riparian wetlands. The threshold will not be remotely approached.
Threshold "d" in the General Permit states in full, "Complete dewatering and drawdowns to a sediment layer related to
pond/dam maintenance or removal". The subject dredging does not require drawdown to expose the sediment layer.
The sediment layer is currently higher than the spillway elevation. There is virtually no open water - just a narrow ditch.
The dewatering that is proposed is needed only to lower the groundwater so that the sediment may be excavated
without leaking out of the dump trucks that will haul away the sediment. The existing pipe that will facilitate dewatering
is buried under six feet of alluvial sediment. That sediment will act as a very effective filter ensuring that all discharged
groundwater will have acceptable turbidity. The proposed dewatering is a sediment and erosion control feature that
should not be considered as contributing to any threshold. If it is, then the proposed scope of work will be changed to
remove the draining of groundwater and we will just have to deal with the soupy mess with less effective sediment and
erosion control methods.
Please discuss thresholds "c and d" and my alternate request for a waiver with Chief Jones. He is fully versed in the
rationale, intent and purpose of the Clean Water Act and its General Permits under both Section 404 and Section
401. He is also fully aware of the usefulness of the existing underground concrete diversion sluice that will all work to be
done with virtually zero chance of any negative environmental impact whatsoever. I am confident that he can
administer this project simply and effectively through the 404 process and that he will be eager to accommodate any
suggestions of the NCDEQ that would otherwise be addressed under its authority delegated under Section 401.
I thank you once again for your very professional, courteous and informative notification concerning Section 401
General Permit 4132 and the potential threshold triggers that could potentially require written confirmation by the
NCDEQ. I thank you for your consideration of a waiver, if required.
Sincerely,
Ken Curren, Member Cheshire HOA
51 Cheshire Drive
Black Mountain, NC 28711
[phone]
P.S. Please notice in full transparency that I have copied this public email correspondence to our Board of Directors and
to Mr. Scott Jones of the USACE.
On Feb 3, 2020, at 12:45 PM, Moore, Andrew W <[e-mail]> wrote:

Mr. Curren,
The Division of Water Resources received the courtesy copy of the Pre -Construction Notification for the
subject project. I have attached to this email 401 General Water Quality Certification (WQC) 4132,
which corresponds the US Army Corps of Engineers' Nationwide Permit 3 (Maintenance). The second
page of the attached document lists a number of thresholds or circumstances under which a proposed
project would require written approval from the Division for a 401 WQC. Based on the information
provided, it appears the project will exceed both thresholds c and d of GC4132, and will therefore
require written approval from the Division.
In order to begin the review process, you will need to re -submit the application with the appropriate
fee. Alternatively, our Central Office staff could send you an email with instructions for payment and we
could use your previously submitted courtesy copy as your application. Please let me know how you
would like to proceed.
Feel free to give me a call if you would like to discuss this further.
Andrew W. Moore, PG
Environmental Specialist — Asheville Regional Office
Water Quality Regional Operations Section
NCDEQ — Division of Water Resources
828 296 4684 office
email: [e-mail]
2090 U.S. Hwy. 70
Swannanoa, N.C. 28778
Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.
<GC 4132.pdf>