20200119 Ver 1_Curren Email_20200207

Moore, Andrew W
From: Ken Curren <[e-mail]>
Sent: Friday, February 7, 2020 12:39 PM
To: Moore, Andrew W
Cc: [e-mail]; Chas Fitzgerald
Subject: [External] Re: 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,
Thank you for taking the time this morning to discuss the 401 General Permit thresholds of our proposed Fall 2021
swimming hole restoration project. In our discussions you agreed that if the total disturbed area is limited to less than
0.1 acres of the slightly less than 0 .15 acre area of the full footprint of the historical pond, then threshold "c" would not
be triggered. I explained that there is no intention to exceed the 0.1 acre threshold if for no other reason than the lack
of funds to do so. Our scope is just to restore the much smaller small swimming hole portion that existed in 1995 when
our development began.
In regard to threshold "d" which is the only other possible threshold related to the project, you determined that even
without lowering the phreatic (groundwater) surface by the use of the currently inoperable valve in the dam, the
dewatering threshold would still be triggered. Your determination is that the use of the existing concrete underground
sluice to bypass 100% of the flow around the dam is by definition dewatering. As an engineer I believe that dewatering
requires, by definition, the removal of water - which the sluice is incapable of doing. You stated that it is the intent of
the General Permit for it to be impossible to perform any dredging of any impoundment without triggering this
threshold. I contend if that was indeed the intention, it would be simply stated as such. I respectfully disagree with your
determination that sluice bypass of the live stream is dewatering by definition. The sluice has historically been used to
bypass flow to allow the impounded water to warm up to allow swimming. Your interpretation implies that each use of
this decades -old sluice is an environmental violation without the payment of a $500+ review fee. I believe that is
absurd. I want to appeal that absurdity.
I request that you provide a letter written on official letterhead detailing your unilateral determination regarding the
sluice being a dewatering device - and that you include the appeal process.
In addition to the affirmative determination on the two thresholds, would you please explain the email attached below
from the NCDWR concerning some unknown application that I have supposedly submitted about some permit request
that I supposedly made. The NCDWR is demanding a fee in addition to the fee that you are demanding. How many
more fee demands should I expect from NC that are supposedly justified under its 401 authority delegated by the
USACE?
Let's be clear. I have not requested any permits from NC or the USACE. I have not applied for anything. I have simply
submitted a PCN to the USACE requesting a Verification of a Nationwide 3. The 404 General Permit already
exists. Similarly, the 401 General Permit already exists. No permit requests are required because they already exist. No
application for a permit is required. The only question is whether thresholds specified in one those two existing General
Permits are exceeded in any proposed scope of work. Only if a threshold is to be exceeded is any action required by NC
to either certify the General Permit or to require an Individual Permit.

This Permittee fully intends to modify the scope of work as required so that no thresholds are exceeded. If the project
cannot be modified so that it can be performed in strict compliance with all terms of the existing General Permits, the
project simply will not be pursued. Unfortunately, you have unilaterally determined that it is impossible to avoid
exceeding threshold "d" regarding dewatering. Your unilateral determination of an impossibility is what I intend to
appeal. If the full appeal(s) procedure fails, I will then formally seek a waiver in in full compliance with the 401
certification regulations.
In the case of the attached notification received today from the NCDWR there was no statement of the basis or
authority for demanding a fee.
I thank you for the professional courtesy that you extended in your initial notice where you not only included a copy of
the relevant General Permit, but also delineated the thresholds that require the submission of an application. I only wish
that other NC agencies would extend the same professionalism. Unfortunately, having two different NC environmental
agencies simultaneously demanding fees for the same non existent permit application sure looks like regulatory
extortion.
In summary, I look forward to your formal letter, on official letterhead, specifying the thresholds that you have
unilaterally determined would be unavoidably exceeded. Please include a link to, or a detailed description of, the appeal
process that I must follow.
Best regards,
Ken Curren, P.E.
51 Cheshire Drive
BMT 28711
[phone]

10454 AM Fri Feb
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To: Ken Cc: [e-mail]
fee request
The Forth Carolina Division ofWater Resources h
number for that project is 20200119, Version 1.
Your permit request will not be reviewed until the I
is $240.00.
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On Feb 4, 2020, at 12:06 PM, Ken Curren <[e-mail]> wrote:
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: Andrew.W.Moore(a)ncdenr.gov
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>