20200119 Ver 1_Email_20200205

Moore, Andrew W
From: Moore, Andrew W
Sent: Wednesday, February 5, 2020 10:38 AM
To: Ken Fisher; [e-mail]
Cc: Duke Woodson
Subject: RE: [External] Fwd: Cheshire Swimming Hole Restoration potential thresholds under
General Permit 4132 of a section 401 of the Clean Water Act
Mr. Fisher,
Thank you for your email. Please note my email to Mr. Curren from February 3, 2020, which can be found down the
email chain below, and which indicates the project as proposed, appears to require written approval from the Division
for a Water Quality Certification. Mr. Curren is listed as the primary contact on the Pre -Construction Notification (i.e.
application).
A link to the Pre -Construction Notification submitted to the Division may be found
here https://edocs.deg.nc.gov/WaterResources/Browse.aspx?id=1073999&dbid=0&repo=WaterResources.
I am available to discuss further, if needed, at your convenience.
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.
From: Ken Fisher [mailto:[e-mail]]
Sent: Tuesday, February 4, 2020 1:24 PM
To: Moore, Andrew W <[e-mail]>; [e-mail]
Cc: Duke Woodson <[e-mail]>
Subject: [External] Fwd: 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 and Mr. Jones

I am the president of the Cheshire Hoa and I want to make sure that you understand that Mr Curren is not been
authorized to work on any waterway project for the HOA, our contact will be either Chas Fitzgerald or One of
the members of his committee.
Thank you,
Please feel free to contact me directly.
Sent from my iPad
Ken Fisher
36 Wordsworth
Black Mountain, NC 28711
Begin forwarded message:
From: Duke Woodson <duke.woodson828 @ gmail.com>
Date: February 4, 2020 at 12:50:01 PM EST
To: Ken Fisher <[e-mail]>
Cc: Jack Hammack <[e-mail]>
Subject: Fwd: Cheshire Swimming Hole Restoration potential thresholds under General
Permit 4132 of a section 401 of the Clean Water Act
Saw that you were not copied on this. Suggest you make it clear that Curren is not acting on
behalf of the HOA.
Begin forwarded message:
From: Ken Curren <[e-mail]>
Subject: Cheshire Swimming Hole Restoration potential thresholds
under General Permit 4132 of a section 401 of the Clean Water Act
Date: February 4, 2020 at 12:06:34 PM EST
To: "Moore, Andrew W" <[e-mail]>
Cc: [e-mail]. mi1, Chas Fitzgerald
<[e-mail]>, Bridget Gilchrist <[e-mail]>,
Duke Woodson <[e-mail]>, Edward Huggins
<[e-mail]>, Richard Parks
<[e-mail]>, Johanna Cressy <[e-mail]>, Cindy
Hile <[e-mail]>, Robert Singletey
<[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
<andrew.w.moore0ncdenr.gov> 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>