19910289 All Versions_Complete File_19900709

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Post Office Box 33604
Raleigh, North Carolina 27636
Phone [phone]
Fax [phone]
WETLAND CONSULTANTS
Dr. Lee Pelej
U. S. EPA
Region IV
345 Courtland St., NE
Atlanta, GA 30365
Dear Lee,
July 3, 1990
D
Jut '9 1990
44
Attached is an abbreviated mitigation plan for the Tyrrell
county mitigation site associated with the Kitty Hawk Woods
development. The risks of developing a functional wetland
hardwood forest on this site are reasonable given the opportunity
to reconnect this agricultural field with a functional cypress-
tupelo swamp.
The soils are well suited for establishing a mixture of
palustrine forested species, inclusive of obligates such as
cypress and tupelo. The highest portions of this mitigation
site will be converted to a mixed bottomland hardwood forest of
high quality hard and soft mast species. Excellent reference
forest ecosystems are available near the mitigation site which
will be necessary for project monitoring and establishing
performance expectations.
We believe that we can design and implement a project which
will be successful and be an amenity to the Kitty Hawk Woods
project.
Sincerely,
CT -
c/ ht,Ix YY Qr?;Ct/1't,01? l? @?'U_'UA?Q/?, c1`7LG
Douglas J. Frederick, Ph.D Russ Lea, Ph.D
cc: Quentin Bell
Starkey Sharp
Coast Office 275 Redfox Trail Hampstead, North Carolina 28443 Phone [phone]
Post Office Box 33604
Raleigh, North Carolina 27636
Phone [phone]
Fax [phone]
WETLAND CONSULTANTS
Mitigation Design
Kitty Hawk Woods Project
Tyrrell County Site
The proposed mitigation site consists of approximately 22.8
acres of agricultural fields which will be converted to forested
wetlands by modifying the existing hydrology and planting a variety
of bottomland hardwood species and cypress. Species proposed for
planting include: tupelo gum and cypress on the lowest elevation
portions of the site and a mixture of water, willow and swamp
chestnut oak, green ash and sweetgum on the higher areas (Sde map).
Currently this site is effectively ditched to permit
agriculture. We plan to partially block this drainage system to
restore the natural hydrology and also connect this site to an
adjacent tupelo gum swamp to enhance natural hydrological
functioning and the introduction of indigenous wetland biota into
the restored mitigation site. over time, the project site should
function as an integral part of the natural forested wetland river
corridor in the area.
Very little earth moving will be required for this project
since the natural topography and the soils are relatively
unmodified. The risks for restoring native forest tree species and
connecting the planted area with adjacent natural uplands and
wetland forests are relatively low. In addition, our proposed
planting design using the natural topography of the site will result
in high species diversity and extensive edge habitat. By promoting
a mixture of species for planting on specific sites, natural stand
development will occur resulting in good vertical stratification.
Species will be hand planted on a 6' X 8' spacing to facilitate
rapid crown closure and site protection. Trees will be planted in
random mixtures by group, eg., tupelo and cypress on the wettest
areas and water, willow, swamp chestnut oak, green ash and sweetgum
on the better-drained sites. Planting will be in sinuous rows to
minimize a plantation look using 1-year-old (1-0) planting stock.
Mechanical and chemical weed control may be used where required to
assure high seedling survival and rapid growth.
We will use the MiST site type classification system currently
under development at N.C. State with funding from EPA. The MiST
system assesses vegetation, soil and hydrological properties of the
site and proposes monitoring criteria based on the departure from an
undisturbed Reference Forest Ecosystem (RFE).
Coast Office 275 Redfox Trail Hampstead, North Carolina 28443 Phone [phone]
Mist Classification
Vegetation: No native vegetation currently exists on the site since
it has been in agriculture for many years. Since more than 50% of
the tree canopy or species composition AND/OR undergrowth cover or
species compostion have been lost, the vegetation would be
classified as V2.
Soils: The soil will remain undisturbed except for minor
trafficking. Past agriculture has disturbed at least the top 12
inches. Soil would be classified as S1.
Hydrology: The hydrology of the site will become slightly wetter
than current conditions because of the ditch blocking and slowing
surface water runoff. Therefore, hydrology will become more natural
in frequency and duration. Hydrology would be classified as HO.
Thus, theMiST classification of the site would be:
Vegetation: V2
Soils: S1
Hydrology: HO
A reference forest ecosystem (RFE) will be located near the site to
use for comparison and evaluating performance criteria. According
to MiST, a RFE is considered to be the minimum target for
restoration goals.
Details of MIST
MiST is composed of three parts. Part I (Table 1) classifies
the mitigation site with respect to the condition of the site
attributes that ultimately control the development of the forested
wetland ecosystem and its functions, via., vegetation, soils and
hydrology. The condition of these attributes is distributed within
MiST "classes" with higher classes (as represented by increasing
numbers) corresponding to greater degrees of disturbance to the
attribute.
Part II of MiST (Table 2) defines the performance standards for
each of the three attributes including the performance standards of
habitat and water quality. The purpose of Part II is to set uniform
goals for forested wetland mitigation projects.
Part III of MiST (Tables 3 to 7) sets the parameters to be
measured and the monitoring schedules upon which the release of all
forested wetland mitigation projects will depend. These schedules
include both the number of variables to be monitored along with the
period of time and, in some cases, the periodicity of data
collection for vegetation, soils, hydrology, habitat and water
quality. -MiST is based on the assumption that the site-specific
risk of project failure is related to the condition of the site and
that monitoring intensity should increase as the risk grows. The
monitoring schedules are MiST class dependent: in general, greater
severity of mitigation site disturbance corresponds to greater
intensity of required monitoring to ensure that the mitigation
project is returning to a normally functioning ecosystem.
The performance of a given mitigation project is assessed by
comparing monitored data on its ecological condition relative to
others in the region, or relative to a described (and perhaps
assumed) "ideal" or "potentially attainable" Reference Forest
Ecosystem or RFE. The RFE is the kind of ecosystem selected for
creation or restoration as it is represented locally in terms of
species composition and physiognomy. Ideally, the proposed impact
site would act as the RFE where community-level biological data is
collected and compiled prior to activities. In fact, development
activities that utilize "up-front" mitigation may be able to exploit
this approach. However, because mitigation project monitoring time
frames normally exceed the time frame for acquiring permits and
filling wetlands, the RFE normally would be a separate ecosystem to
that being filled. Since many impact areas currently support
degraded forested wetlands, the characterization of the RFE need not
attempt to duplicate such degraded conditions, but rather strive to
produce higher value wetlands. The RFE, therefore, is an attempt to
identify the best-attainable mitigation conditions, and these could
be defined in regard to "best" for a particular resource. More
typically, an ideal condition is assumed to be the condition
represented by wetlands that are least disturbed by humans.
Superficial characteristics of relatively unimpaired forested
wetlands might include the following:
X- Wetland arose naturally and at a considerable
time in the past, rather than a recently
constructed one;
X- Surrounding watershed is largely undeveloped;
X- Hydrology has been unaltered and is allowed to
fluctuate naturally;
X- Human uses have not altered the water quality and
quantity.
Some added benefit of the RFE approach is that it can
incorporate cumulative effects into the procedure if care is used in
the RFE's selection. Also, it can assess spatial and temporal
variability in the community-level data, within and among other
reference wetlands.

Table 1. The Forested Wetland Mitigation Site Type (MiST)
Classification System: Part I. Component Class Definitions
------------------------------------------------------------------------
COMPONENT/CLASS DEFINITION
VEGETATION
0 Site has an overstory and understory.species composition and
physiognomy similar to the Reference Forest Ecosystem (RFE),
1 Loss, relative to the RF3, of up to 50% of the:
a) tree canopy or species composition AND/OR
b) undergrowth cover or species composition.
2. Loss,.relative to the RFE, of more than 50%' of the
a) tree canopy or species composition AND/OR
b) undergrowth cover or species composition
3 Originally not sufficiently populated with hydrophytic
vegetation to be delineated as a wetland or an original
forested wetland was removed prior to surface-mining.
SOIL
0 Site is undisturbed by other than natural means.
1 Disturbance limited to the top 12 inches of the soil and/or
loss of up to 50'/o' of. the top 12 inches of the existing soil.
2 1) Disturbance within the top 12 inches of"the soil with
loss of greater than 50% of the top 12 inches of the ex-
isting soil, AND/OR,
2) Compaction that affects the rooting zone at a degree
greater than the reference soil. The significance of the
size of the affected area should be determined on an on-
site basis.
3 Reconstructed soil: soil horizon replacement.
1)Loss-of soil profile to a depth greater than 12 inches,
OR,
2) Loss of the original subsoil structure, OR,
3) New soils developed from materials other than original
forested wetland.soil.
HYDROLOGY
0 Undisturbed hydrology based on comparison with hydrologic
conditions in the RFE.
1 A deviation in the frequency and duration of not greater
than 25% from Class 0 without deviation in the dominant
season and source of inundation.
2 A deviation in the frequency and duration of not greater
than 50% from Class 0 without deviation in the dominant
season and source of inundation.
3 A deviation in the frequency and duration of greater than
50% from-Class 0 without deviations in the dominant season
and source of inundation.
4 A deviation in the frequency and duration of greater than
50% from Class 0 with deviation in the dominant season and
source of inundation.

Table 2. The Forested Wetland Mitigation Site Type (MiST) Classifica-
tion System: Part II. Performance Standards for Sites Un-
dergoing Mitigation
------------------------------------------------------------------------
ATTRIBUTE PERFORMANCE STANDARDS
VEGETATION
Performance standards are attained when the mitigated forested wet-
land project sites contain:
1) An agency approved composition of canopy and undergrowth
species typical of the RFE and represented by self-
sustaining species populations.
2) An agency approved tree abundance in terms of overall den-
sity and spatial distribution throughout the project site.
3) Well'established trees. A well established tree is one that
has been rooted at the mitigation site long enough to sur-
vive the range of environmental conditions present on the
site.
HYDROLOGY
At a minimum, mitigation sites (both in-kind and out-of-kind)
should:
1) Obtain the RFE hydrologic conditions dictated in Class 0
which emphasize the establishment of proper seasonality and
source and/or;
2) If the vegetative, soil, and water quality conditions perfor-
mance standards are satisfied within Class I hydrology
criteria, hydrologic conditions will be considered success-
ful.
SOILS
A soil will be considered restored if it has the physical and
chemical properties that are necessary for the successful re-
establishment of the desired reference forest ecosystem. At a minimum,
the soil has to be classified as a hydric soil as defined in the Federal
Wetland Delineation Manual (1989).
WATER QUALITY
The performance criteria I r acceptable levels.of water quality
characteristics following mitigation activities is the same for all MiST
Classes (vegetation, soils, and hydrology).
1. Water quality success will be achieved when the individual
frequency of monitored parameter values for the
constructed/restored site overlaps an agency approved per-
centage of the frequency distribution of the reference site
when graphically represented. Methodology to determine this
should be agency approved.
2. Minimally, measured levels of parameters should not violate
State standards; it is recognized that applicable, State-
established variances for certain wetlands and classes of
naturally-deviating surface waters exist.

Table 2 (continued).
------------------------------------------------------------------------
ATTRIBUTE PERFORMANCE STANDARDS
HABITAT
Successful implementation of the specific mitigation measures for
replacing vegetation, soils, and hydrology should provide reasonable and
acceptable assurance within the monitoring time frames associated with
most regulatory permits that a forested wetland similar to the RFE will
occur given sufficient time. When this happens, the wildlife species
that reside in or use the new forested wetland should correspond, assum-
ing that the forest is not isolated from the surrounding landscape or
other unrecognized limiting actors do not exist.
r If
Table 3. The Forested Wetland Mitigation Site Type (MIST) Classifica-
tion System: Part III. Measurements required for MIST Sue-
cess Parameters: VEGETATION)
PARAMFT RS
Overstory Criteria:
1) 400 TPA2 overall >> 6 feet tall
2) 400 TPA on every acre
A@@2royd s2ec1es or°sent at >- LO: TPA
Class 1.Deter;4ne if all criteria we:a me*_ at end of the second
pear.
Class 2:a) assess potential for natural recovery. .If inadequate,
prepare and implement clan for tree oianting.
b) If applicable, assess survival of planted trees
following first growing season.
c) Assess tree species density and height _ollowizg
subsequent growing seasons.
Class 3:a) Prepare and implement plan for tree planting.
b) Assess survival-of ^lanted trees following first
growing season.
c) Assess tree species density and neig-t following
subsequent growing seasons.
Understory/Herbs Criteria:
z
4) 100 of RPE- understorp/herbs represented
<10% nuisance s^e^_es cover rresent
Class 1: Determine if understory/herbs and nuisance species
criteria were met after 2 year period.
Class 2: Prepare annual lists of all preferred and nuisance
understorp/herbs species on a per acre basis.
Class 3: Prepare annual lists of all preferred and nuisance
understory/herbs species on a per acre basis. Deter-
mine cover for each category.
lit is recommended that a report be prepared and submitted to the permit-
ting agency at each assessment. In addition, assessment methods should
be agreed upon prior to mitigation activities.
2TPA - Trees per acre. Criterion #1 accounts for variation in produc-
tovate across the site; Criterion #2 refers to the distribution of stems
across the site.
3RFE Reference forest ecosystem.
Table 4. The Forested Wetland Mitigation Site Type (MIST) Classifica-
tion System: Part III. Measurements required for MiST Suc-
cess Parameters: SOIL.
CLASS
1 2 3 4
REFERENCE FOREST ABC1 1,4
ECOSYSTEM
INITIAL SITE
CHARACTERIZATION2 ABC ABC ABC ABC
RESTORATION[ <----------------- A as need >
RECLAMATION <------- B C ------> <----A C--->
(min. 2 years) (min. 5 years)
1For the reference forest ecosystem (Class 0): A factors measured in
rooting zone; B and C factors measured at 0-9 inch depth.
2Factor A to be measured in the rooting zone as def ined in the RFE. Fac-
tors B and C to be measured at:
Class 1, 2 0 - 9 inch depth
Class 3 by horizon
Class 4 by horizons or depth as determined by backfill
placement techniques.
3All factors (as defined in footnote 2 above) measured on an annual
basis.
4Code for chemical and physical factors to be measured on the reference
and mitigation sites: /I
r
A Physical: Saturated hydraulic conductivity, texture, (to
assess the ability to establish hydric soil con-
ditions)
B Chemical: Potential phytotoxic/micronutrient conditions:
pH, pyritic sulphur, neutralization potential,
Al Cu, Zn, B, tin, base saturation, conductivity,
redox potential
C Chemical: Macronutrients: N, P, K, organic C
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Table 5. The Forested Wetland Mitigation Site Type (MiST) Classifica-
tion System: Part III. Measurements required for MiST Suc-
cess Parameters- HYDROLOGY.
PARAMETERS
Class 0 No monitoring is required.
Class 1 Frequency and Duration
1) Semi-annual visual observation of site during
dormant and early part of growing season.
2) Follow-up visits to determine duration plus
visual observation of drift lines, sediment on
leaves, silt lines on trees, etc.
Class 2 Frequency and Duration
Quarterly monitoring visits coupled with a con-
tinuous recording device (combination
piezometer/crest gage) with a frequency of
recording not greater than seven days; couple
recorded data with visual observations.
Class 3 Frequency and Duration
Monthly monitoring visits coupled with a con-
tinuous recording device.
Class 4 Frequency, Duration Seasonality and Source.
Same as Class 3
Seasonality and Source
Same as Class 3.
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Table 6. The Forested Wetland Mitigation Site Type (MiST) Classifica-
tion System: Part III. Measurements required for MiST Suc-
cess Parameters: WATER
PARAMETERS
Surface Ground
Analysesl,2 water water
Field3:
Temperature x
pH x x
Conductivity x x
Dissolved 02 x
Redox potential (Eh) x4
Lab:
Alkalinity x x
Suspended solids x
TOC\
TOC/TON x
TON/
1See Hem (1985) for more detailed descriptions. EPA quality assurance
is implied. Minimum required analyses; additional analyses may be added
for special cases such as sites formerly occupied by mines, industry, or
other intensive land use.
2The ecosystem parameters listed in this table are to be monitored for
all MiST Classes.. In the unique situation where a MiST Soils Classifica-
tion 3 is determined, additional parameters judged appropriate may be.
added to this list of mandatory characteristics for ground water and sur-
face water monitoring.
3Mitigation site and RFE should be treated as a paired wattershed com-
parison. paired sites should b.apmeasured at nearly the same time of day
because of anticipated diel fluctuations.
4Precautions should be taken to assure that in situ values are not al-
tered in the process of measurement.
Table 7. The Forested Wetland Mitigation Site Type (MiST) Classifica-
tion System: Part III. Measurements required for MiST Suc-
cess Parameters: HABITAT
PARAMETERS
PHASE I - Reference Forest Ecosystem Analysis
A. Determine if endangered/threatened species are present.
B. Develop species lists.,
C. Select evaluation species based on perceived importance, indicator
status, etc.
D. Evaluate habitat quality for selected species.
E. Determine relationship of reference site to surrounding landscape
(interspersion among other habitat types, total area of reference
type, etc.)
PHASE II - Monitoring during Permit Regulatory Period
A. Use MiST soils, hydrologic, and vegetation monitoring criteria as
acceptable long-term habitat mitigation success; assumes accept-
able habitat values for most indicator species will be 'net.
B. For MiST Class 2 Vegetation or Class 3 or 4 Hydrology, calculate
habitat suitability index values (Schamberger et. al. 1982) for
selected evaluation species and community characteristics known to
be important to wildlife (e.g., size of area, interspersion fac-
tors) during the following periods:
1) One year after mitigation plan is implemented.
2) Midway through regulatory period.
3) Immediately prior to bond release.
C. For MiST Class 2 Vegetation or Class 3 or 4 Hydrology, ensure that
short term habitat improvement practices were implemented (means
will vary according to practices employed.
PHASE III - Long-term Monitoring (Optional)
A. Follow-up study by management entity (to be identified in mitiga-
tion plan) to compare baseline values with post mitigation values
with goal of replacement of habitat type(s) and associated values.
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• APPLICANT/PROJECT NAME :
Kitty Hawk Woods Shopping Center
• DEM #: WQC#: MAP #:
91289 2420 29
• COUNTY:
Tyrrell (mitigation site) Dare (project site)
• LOCATION OF MITIGATION SITE (LAT. AND LONG.)
• DIRECTIONS TO MITIGATION SITE:
Hwy 64 East to Columbia. Take a right on Hwy 94. Take the first left out of the city
limits. Don't get confused with NCSU work.
• ACERAGE AND TYPE OF WETLAND IMPACTED:
swamp, upland hardwood
• ACERAGE AND TYPE OF WETLAND MITIGATED:
26 acres-hardwood wetlands
• DESCRIPTION OF MI TIGATION(IN FILE):
Restore high water table and reforest. Remove artificial drainge and plant by hand-
randomly (6'x 8')
• DESCRIPTION OF VEGETATION(IN FILE):
cypress, tupelo gum, water oak, willow oak, swamp chestnut oak
• SUCCESS CRITERIA STATED(if any):
NONE
• WHAT IS THE PROJECT STATIS?(mark one):
RESTORATION, ENHANCEMENT, CREATION, PRESERVATION
• MONITORING PLAN:
NONE
• WHICH REGULATORY AGENCIES ARE INVOLVED?:
COE, DEM, NCCF, DCM, NCWRC
• TYPE OF DEVELOPMENT(mark the ones that apply):
RIdRAL, URBAN, PUBLIC, PRIVATE,COMMERCIAL

.WETLAND MITIGATION SITE SUCCESS FORM
• WHAT IS THE PROJECT STATIS?(creation, preservatio ,rest ro ation enhancement):
• PROJECT NAME AN?rD DEM #
Ir 2- -e zo
• LOCATION (LAT. AND LONG.)
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• DIRECTIONS TO SITE: G ??'G '?' ?•l ?,'? 77•'/lam
• DESCRIPTION OF MITIGATION,(FOUNLD IN FILE) / _r/'1
TIe
• TYPE OF DEVELOPMENr?URAL, BAN, PUBLI, PRTVA ETC):
• ARE GOALS STATED IN FILE?:(TYPE OF WETLAND, ACREAGE, SPECIFIC
FUNCTIONS..):
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• TOTAL MITIGATION ACREAGE: Z (?7L? -a,,, / ,
2
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• W?H)ICH REGULATORY /?/AGENCIES ARE INVOLVED?: `C.]. ? ?' w' ? i.r w,,y ?, f??• -/
/(/ G ??/ l C ? UU ?' C 17L ?J/ " / ? glr*n ?1'?i ? ` c7sA
• DESCRIPTION OF VEGETATION(]N FILE):
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• SUCCESS CRITERIA
a) Are success criteria stated?
/Vv
b) Have they been met?
• HAVE MITIGATION REQUIREMENTS BEEN MET?:
• DESCRIPTION OF VEGETATION(AT SITE):
• SURFACE WATER LEVEL OBSERVATIONS:
• SURFACE AND GROUNDWATER RELATIONSHIPS:
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--------------
SHARP, M(CHAE[,. OUTTEN AND GRAHAM
ATTORNEYS AT LAW
4e20 NOR7H GROATAN Hla HWAY
KITTY HAWK,NORTH CAROLINA 27949
TELE0"HONE. 49191 2111-2120
STARKEY SHARK
STEVEN o, MICHAEL
ROOERT L. OUTTEN
JOHN C. GRAHAM, III
October 31, 1990
Dr. G. Wayne Wright
'Regulatory Branch Chief
U.S. Army-.Go,rps of Engineers
Post Office Box 1890
Wilmington, y% 28"102-1290
MAILING ADDRESS:
POST OPPIcE DRAWER 1027
KITTY HAWK, NC 27049
FACSIMILE: 19191 201.1160
Re: File No. CESAW-CO89-N-028-0495, Kitty Hawk Woods
Dear Dr. Wright:
I am replying to your letter of October 24, 1990. You have
provided us with a plan of the shopping center portion of the
permit application. This latest plan contains certain revisions
proposed by the Corps. If we can resolve the concerns that have
been addressed in these revisions to your satisfaction and if we
can properly address the other subjects contained in your letter of
October 24th, you have indicated that the Corps is inclined to
proceed in the direction of approval of the permit application as
modified.
I will reply to the paragraphs in your letter of October 24th
in the same order.
a. You have proposed a change that is based upon the parking
requirements for the shopping center. We have asked the shopping
center developer to respond on this point. Because the developer
has the dirdct rel^tionship with the proposed tenants, it vculd be
more appropriate at this time for them to present to you any
problems they might have with the parking reduction. If their
answer is not satisfactory to you, I reserve the right to
separately discuss this issue with the Corps.
b. You proposed to connect the two wetland swales by cutting
through the ridge system that divides those swales. We do not
object to your propoaal. We assume that the permit would contain
the authority to use appropriate earth moving equipment in order to
accomplish these cuts. You should also be aware that some areas
along the ridge system can only be reached by cutting a new roadway
or path along the ridge.

Dr. G. Wayne Wright
October 31. 1990
Page 2
c. You have referred to a reduction in filled wetlands in
the residential areas of the app_ication in an amount approximately
equal to four acres. This subject originated when we were prepared
to make a presentation to Colonel Suermann after being-notified
that tht Wilmington District int4ld0d to Yedommend denial of the
permit. In that presentation, it was our understanding that the
concerns of the Crops focused upon the shopping center site and
that discussions of reductions in other areas of the project would
not be appropriate and would not be necessary.
You are now asking that we accomplish the same reductions
that we offered, even though they were not discussed in detail or
specifics: The applicant is willing to perform these reductions,
so long as the Corps understands the nature of the reductions and
in particular, the effect of this permit on future use of these
properties.
The first area of reduction that we proposed at that time
was the elimination of a project identified as Prot X in the
original application. This portion of the project called for
filling the right of way of a road known as Radcliff Court, along
with certain driveway or access filling. We would now remove this
item from our application.
The second area of reduction involved the wetland pockets
contained within the multifamily site. You are aware that the
multifamily project is owned by a different developer and that it
is included within the application because it was originally owned
by the Kitty Hawk Woods partnership. The Kitty Hawk woods
parCnership is obligated to provide a method of crossing the
central swale and we do not propose to eliminate the crossing from
our application. However, the developer of the multifamily site
has indicated that it would like to'be free to approach the Corps
separately about any other wetland impacts in its project. This
allows us to withdraw those impacts; from our permit application.
Primarily, we are discussing the various impacts on the wetland
pockets through the multifamily site which had been a part of our
original application. Elimination of these pockets, as well as the
elimination of the project mentioned' above, approximately equals a
four acre reduction.
The multifamily developer would be free to approach the
Corps with a permit application connected to its future development
of that property. No applications would be considered by the Corps
for additional crossings through the central swale. The Corps
would consider the applications on' their merits for any other
wetland impacts invoLving the various pockets.
In addition, under this paragraph you have addressed the
mechanism to be employed to insure that no other wetlands on the
?r. G °r«e wrlght
n--sober- 31, 1990
Page 3
property would be filled or adversely modified. As *_o this aspect
of our application, we have identified several areas throughout the
project where conservation easements would be implemented. h'e have
provided copies of the proposed conservation easements.'
d. You have referred to the 455 acre maritime forest
donation which was a part of the mitigation package concainpd in
our original application. As we have discussed in a number of
prior meetings, the concept that supported the donation of the
maritime forest was based upon approval of the permit in its
original 'form. In particular, approval of the permit with
reference to the shopping center portion of the project would have
resulted _in a sale of Most of t'he commercial property at a
favorable price. This price would have allowed the applicant to
obtain the release of the 455 acre donation site from the
applicable mortgages.
The Corps indicated than, while protection of the
maritime forest is a meritorious objective, it would not
+.'' and could not be used as a basis fora justify
in the commercial shopping center site, roval of the proposed fill
Even assuming that the permits will be forthcoming on
some version of the present site.
plan under discussion, the
applicant does not have a contractual obligation for the sale of
the property. Nevertheless, the shopping center developer has
advised the applicant of the priceit is willing to pay for the
purchase of the shopping center site.. As we indicated to you in
our last meeting, the revised price ;is substantially reduced from
the original price that had been agreed to for the entire shopping
center site. As a result, no funds a're available from the proceeds
of that proposed sale with which to pay for a release from the
appropriate mortgages as they. apply to the 455 acre donation site.
Nevertheless, the applicant remains firm in its intention
to accomplish the protection of the Kitty Hawk Woods maritime
forest. The ultimate intention of the applicant would be to place
the maritime forest into public ownership. If that conveyance were
to occur under the present financial posture of the applicant, it
would have to occur without a release from the appropriate
mortgages.
This means that the applicant will need to work toward
the same objective as an end result of the development and sale of
the residential properties and that it will not be something that
can be accomplished at the initiation of the project. In order to
provide the same protection, the app-lic:ant would prnpose to place
conservation easements on the bulk of the 7-4ritime forest area. A
sigr.ifieant portion of the forest area may be released as a result
of separate salea and allow for a nucleus or beginnln? point for

Dr. G. Wayne Wright
October 31, 1990
Page 4
public ownership of the entire parcel. The remaining Sections of I
the maritime forest a r Q a would bd subject to the conservation
easement, which could be terminated in the event of a foreclosure.
Sections would be released from the mortgage and thereby
protected from such a possible termination through the sale of some
of the road front parcels oa the west side of the Kitty Hawk Woods
Road or Main Road, as it is sometimies called. ,n effect, a sale
would occur of a 200 foot wide strip that carried from the Kitty
Hawk Wood s, Road Ch rough the maritime forest araa to the power line.
All of the entire strip, which would be released from the
mortgages, would be subjected to the conservation easement, with
the exception of that portion fronting the road and constituting
approximately two acres.
Even through this approach. is somewhat fragmented or
piecemeal, it would accomplish the saine purpose for practical
reasons as the initial donation. Effective development of the
maritime forest under any other plan: would be extremely limited if
not totally prevented by the incerruipting strips of land that have
been released from the mortgage and:.sub3ected to the conservation
easement. If the property is not already unsuitable for any other
purpose, these intervening easements would accomplish the same
purpose and would effectively require a foreclosure purchaser to
submit the property to the same conservation purposes.
In the meantime, should any funds become available from
public entities for the outright purchase of such property, the
means would still be available for the paymant of a release fee to
tha mortgage holder. The applicant does not expect or intend to
receive any funds from the sale or development of such property or
from its sale for conservation purposes.
If you understand the conceptual approach that I have
outlined in these paragraphs, we would expect that any permit that
might be granted would contain a requirement that we follow some
type of conceptual approach as outlined in this letter to the
dedication of the 455 acre maritime forest for conservation
purposes and the ultimate objective of public ownership. we would
also ask that you allow us to deal separately with the State of
North Carolina with reference to its`401 Certification, . I have
explained our approach to the state' and feel confident that the
concept we are describing will be acceptable to the state in the
context of its certification.
The Tyrrell County site would still be addressed in the
same manner as it is presently described in our permit application.
We would also e:;pect to receive full credit for the mitigation
described in paragraph b above which appears to be the creatiolt Of
wetland areas.
Dr- G. Wayne Wright
October 31, 1990
g
ing the t fi. onpaenreaitne.
Page S rus
asked for doc i4eI t concern
developer are
e.ainyou nave a shopp_n, the lenders
under which a ation that osiSned in
racei.v ns centers . d - the
constr conf irm
ts t want to re have asked
Spec:.fically, yo Covide fi:?ancing Loians°ppAigaand other
ve
not willing to ? altern3ti P ondence
?
our other rre5
to prov_de co this contention.
°rt the
oper will suPP e
the form of Y devel hich
shopping center W fete, s rserve
from their lenders e or income oint.
documents be inade4uaa to you on this P
Should their TePl}' response
to Provide sdditiOnal the North Carolina
tight ' participation ofess as evidenced by
about the revieW pros copieS of
Z am'..curious in the permit Who are p
Coastal rovided
Federation the list of tha$e
nC-iusion
.their on this matter.
Correspondence in ours,
Sincerely
-j.
g a, 5ha
Wildlife service
Fish and protection
SS/Joe +1Milce" Gantt, vice
::s. 1-icGhee? U. S. Environmen t s
cc: F. e Fisheries Ser- souroes
14r . Robert Nat44-onal Mar". nt of Liatural R
Mr, Larry Hardy' De?arttae
Ms• Edith McKimneCapital Centre DeveloPment
Nr. Rob Moseley}

------------------
K United States Department of the Interior ?-
FIS11 AND W11_DLIFC SERVICE
?5 SPRING STPrET, S.?'?. ?r
..+ ATLANTA, GEORGIA
10.103
May 15, 1991
'I
Lieutenant Colonel Thomas C. suermann
District Engineer
Wilmington District
U.S. Army Corps of Engineers
P.O. Box 189Q
Wilmington, North Carolina 28402-1890
Dear Colonel suermannt
This responds to your April 30, 1991, Notice of intent to Issue a permit to
y,itty Hawk Woods Partnership (Action ID. 198900495) for-the placement of fill
material in wetlands for the construction of a shopping center, residential sing and pa roads anddrit?meyforesdt inlKittyiHawkouDare CountyrkNorthing
tract of mar
The Service continues to believe that the proposed work does not comply with
the Environmental Protection Agency's 404(b)(1) Guidelines. The Service
believes that the basic project purpose has been defined too narrowly to
had w
for adequate consideration of alternative sites. If the project purpose
not been constrained by size limitations and project configurations, the
alternatives analysis could have identified alternative locations for the
shopping center and/or ways to further reduce and minimize unnecessary
wetlands losses for this nonwater dependent project. The Service continues to
believe that the national significance and ecological value of the Kitty Hawk
Woods wetlands deserves further consideration by the Corps. Althowehbelieve
acknowledge that the original mitigation package is "attractive,
that its consideration is premature because the 404(b)(1) Guidelines have not
been met, and we questioh whether the compensatory mitigation should playtsuc
an overriding role in the decisionmaking process. Furthermore,
that the applicant's original mitigation offer to donate 455 acres of maritime
forest was recently changed to include only conservation easements and
restrictive covenants on the former "donation area." We believrt that t ly the
Division's coordination with the regulatory review agencies, pa
Service, has been inadequate because these major changes were-ma e without
interagency coordination. Such action is unfortunate, p
nationally significant wetlands are involved.
Although we remain strongly opposed to the issuance of this permit, we will
not elevate this issue under the 1985 Memorandum of Agreement in the event
that the Corps decides to issue above our objections.
Sincerely y:ursr
I
Harold W. Benson
Acting Regional Director
MAY 23 1991
WJ 0x ",
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
WIUAINGTON. N( FiTH CAFOUNA 28402-1890
Tune 20, 1991
-" N PEP! Y AEFEA TO
Regulatory Branch
Action ID. 198900495
Kitty Hawk Woods Partnership
Post Office Box 749
Kitty Hawk, North Carolina 27949
Gentlemen:
In accordance with your written request of September 8, 1989, and the
enguing administrative record, enclosed is a permit to place fill material in
wetland swales to effect construction of a shopping center, residential roads
and driveways, multi-family housing, and parking on 1,400 acres of maritime
forest in Kitty Hawk, Dare County, North Carolina.
If any change in the authorized work is required because of unforeseen or
altered conditions or for any other reason, the plans revised to show the
change must be sent promptly to this office. Such action is necessary, as
revised plans must be reviewed and the permit modified.
Carefully read your permit. The general and special conditions are
important. Your failure to comply with these conditions could result in a
violation of Federal law. Certain significant general conditions require
that:
a. You must complete construction before December 31, 1994.
b. You must notify this office in advance as to when you intend to
commence and complete work.
c. You must allow representatives from this office to make periodic
visits to your worksite as deemed necessary to assure compliance with permit
plans and conditions. .
The enclosed Notice of Auchorization, ENG Form 4336, must be conspicuously
displayed at your worksite.
Sincerely,
T'0.)mas C. Suermann
Lie,.ltenant Colonel,
Coles of Engineers
District Engineer
Enclosures
'JUN 24 1991
:L STAR o
State of North Carolina
Department of Environment, Health, and Natural Resources
Division of Environmental Management
512 North Salisbury Street • Raleigh, North Carolina 27611
James G- Martin, Govemor
WiIliam W. Cobey. Jr., Secretary February 14, 1991
Mr. Jerry Wright, Jr.
Managing Partner
Kitty Hawk Woods Partnership
Post Office Box 749
Kitty Hawk, North Carolina 27949
Dear Mr. Wright:
Subject: Certification Pursuant to Section 401
Clean Water Act,
Proposed Kitty Hawk Woods Development
Kitty Hawk Woods Partnership
Currituck Sound
Dare County
George T. Everett. Ph.D.
Director
of the Federal
Attached hereto are two (2) copies of Amended Certification
No. 2420 issued to Kitty Hawk Woods Partnership dated A ril
1990. This amendment replaces Condition No. 2 in Certification #
2420. All other conditions are still applicable.
If we can be of further assistance, do not hesitate to
contact us.
Sincer;4L'e?? l
X??
rge T. Everett
Geo
Director
Attachments
cc: Wilmington District Corps of Engineers
Washington Regional Office
LMT John Dorney
Mr. John Parker
Central Files
Pouudon Pretiendon Pays
P.O. Box 27687. Raleigh. North C vohrkt 27611-7687 Telephone [phone]
NORTH CAROLINA
Dare County
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 Envi-
ronmental Management Regulations in 15A NCAC 2H, Section .0500 to
Kitty Hawk Woods Partnership pursuant to an application filed on
the 11th day of Febbruarv .19 91 to place fill material in wetlands
in conjunction with construction of the Kitty Hawk Woods Develop-
ment.
The Application provides adequate assurance that the dis-
charge of fill material into wetland areas that are not connected
to the surface water system and into wetland areas adjacent to
waters of tributaries to Currituck Sound in conjunction with the
proposed development in Dare County will not result in a viola-
tion Iof applicable Water Quality Standards and discharge guide-
lines. Therefore, the State of North Carolina certifies that this
activity will not violate Sections 301, 302, 303, 306, 307 of PL
92-500 and PL 95-217 if conducted in accordance with the Certifi-
cation # 2420 and this condition which replaces condition No. 2
in that Certification:
Condition(s) of Certification:
2. No sale of land or construction activities shall
occur under the Army Corps of Engineers Permit on
the 455 acre tract of maritime forest in the center
of Kitty Hawk Woods discussed in the negotiations
between the developer and State agencies and
referred to in the memorandum dated February 11,
1991, as shown on the composite 404 permit applica-
tion map as the 135 acre donation tract and the 320
acre proposed sale tract until such time as a con-
servation easement has been conveyed to the State
of North Carolina, a development plan for the prop-
erty has been approved by the Resolution Trust Cor-
poration (RTC) or the individual lots have been
released by the RTC, and the State of North Caro-
lina has approved the deeds and restrictive cove-
nants for the lots to ensure that the conservation
easement is enforceable.
Violations of any condition herein set forth shall result in
revocation of this Certification.
This Certification shall become null and void unless the
above conditions are made conditions of the Federal Permit.
This the 14th day of February, 1991.
DIVISION OF ENVIRON ENTAIL MANAGEMENT
/"` George T. Everett, Director
-3 1 1
004
CONUTIONS
a. The activity will be accomplished in strict accordance wit:1 the
permittee's revised proposal dated October 22, 1990. The total acreage of
wetlands filled, adjacent and isolated, will not exceed 10,49 acres.
b. Pursuant to the permittee's revised proposal of October 22, 1990, the
ridge separating the two, major non-isolated wetlands within the commercial
tract will be excavated at two locations to provide connections and improved
circulation to wetlands. Each connection will be a minimum of 100 feet wide
and will be excavated to the elevation of 2 feet below the elevation of
adjoining, existing wetlands. Construction access to the areas to be
excavated will.be accomplished so as to minimize impacts to the maritime
forest and wetlands.
C. At this time, the 96.6 acre multi-family housing area, Project II, is
eliminated from the overall project. Any future placement of fill material in
wetlands within this area will require an individual Department of the Army
permit and separate review by the State of North Carolina to determine
consistency with North Carolina's Coastal Management Program. The wetland
crossing of this area is authorized by this permit.
d. The permittee will comply with all conditions of the Section 401 Watar
Quality Certification issued by the North Carolina Division of Environmental
Management on April 9, 1990, as amended February 14, 1991. These conditions
are incorporated herein by reference. The permittee will provide copies of
all conservation easements to the Corps of Engineers for review prior to
execution.
e. As compensatory mitigation, the 26 acre farm near Columbia in Tyrrell
County, North Carolina, will be restored to'a forest wetland area through the
removal of all artificial drainage on the site and the reestablishment of
forest species. This work will be conducted under guidance of the U.S. Fish
and Wildlife Service (USFWS) and/or-the North Carolina Wildlife Resources
Commission (NCWRC). Removal of artificial drainage and the required plantings
will be accomplished immediately after crops are harvested and seasonal
conditions become favorable, within one year from the date of issuance of this
permit.
f. The fill material will be clean and free of any pollutants except in
trace quantities. Metal products, organic materials, or unsightly debris will
not be used.
g. Under applicable law, the permittee will incorporate this permit as
part of the documents reflecting title to or interest in the real property
affected.
> r a
SEA1Z
l '
a Orr ??
State of North Carolina
Department of Environment, Health, and Natural Resources
Divi,Jnn of Fnvironmental Management
.11 :?V1111 Jall?uur? _..??t • Kalr?o.?, (V?...: ?-arulina _..:;?
is r,n . or-T April 9 , 1990 George T. Everett, Ph.D.
ra Director
r
vii
'ec, == '? '' 'i Q = ursuant ...to Sequ on :'401. of the Federal
a sk7.-? ?Z` tit ra -
Ina
v us.Y _.... ?, s,3 s>r artne sbig=
Sound
a - Comity
1. -
Attached`.hereto.are two (2) copies of Certification No. 2420
issued to.''Kitty Hawk Woods Partnership dated April 9, 1990.
If we..can be of further assistance, do not hesitate to
contact us.
Sincerely;
Original Signed By
George T. Everett
George T. Everett
Director
Attachments
cc: Wilmington District Corps of Engineers
Wa ngton Regional Office
r. William Mills
Mr. Stephen Benton
PO [i )x 27(,87, PilciLji, North Carohna 27611.7687 Tclcphunc 919733.7015
4
NORTH CAROLINA
Dare Countv
CERTIFICATION

,car.
's or less are not
2. The'--' 5.,' s e ¢ractof+' _me forest in the
cente.r`.a -`Hawk scussed in
3.
THIS CERTIFICATION is issued in conformity with the
requirements of. Section 401 Public Laws 92-500 and. 95-217 of the
?1,-:=.tcd States a subject to the North C'.:r<-l i na Divi s i ?a of
Environmental Management Reg,--ations in -D NCAC 2H, S(--cion .050:,
_We a
to Kiittt awk= gods,:vPartnershi pursuant to an application
?i`a'oeY`9d4dL?::the loth
i tea.!
10
_:r peg o ' loger. and State
emorandum from
= ec'J ?aiiiiary 22, 1990,
°an a h? cp 04 permit
applea;? n ap?as tie?a`re=;donation tract and
th?,,,3Qrop.:sa act, must be donated
in fee s iri e' .to the'State;:of North Carolina before
anVsale and or construction activities occur
in the 'area 'covered by the Army Corps of Engineers
permit.
Conservation easements sufficient to protect in
perpetuity all wetlands'locat6d within the
residential portions of the 1,400 acre tract and
those uplands located within Section II of the
project as designated in the permit- apn1](,atin^-
Certification (cont.)
April 9, 1990
including in total approximately 90 acres, must be
donated to the State of North Carolina before any
sale of land or construction activities occur in
the area co,-erea by the Army Corps o- Enginc.-?s
permit.

George T. Everett, Director
.n
WQC4.;-2420

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
PO. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
IN REPLY REFER TO February 12, 1992
Regulatory Branch
Action ID. 198900495
Mr. John D. Fife, President
Capital Centre Development, Ltd.
4020 West Chase Boulevard
Suite 400
Raleigh, North Carolina 27607
Dear Mr. Fife:
Thank you for your letter of February 4, 1992, with the enclosed copy of
the Bottomland Hardwood Forest Mitigation Specifications for Compensatory
Mitigation associated with the above-referenced permit (Specifications). You
have asked whether the work specified in the agreement will fulfill Condition
e of the permit.
Condition a requires the restoration of a 26-acre farm in Tyrrell County,
North Carolina to a forest wetland area "through the removal of all artificial
drainage on the site and the reestablishment of forest species. This work
will be conducted under guidance of the U.S. Fish and Wildlife Service (USFWS)
and/or the North Carolina Wildlife Resources Commission (NCWRC). Removal of
artificial drainage and the required plantings will be accomplished
immediately after crops are harvested and seasonal conditions become
favorable, within 1 year from the date of issuance of this permit."
Provided either the USFWS or the NCWRC approves the plan, the Wilmington
District concurs that the work specified in the contract you have provided us
would generally comply with condition e, with the following reservations:
a. Paragraph 0203.02; the Wilmington District and the NCWRC must approve
any substitution of species.
b. Paragraph 0204.02: trees will be replaced regardless of cause of
mortality. We realize that this paragraph is intended to address only whether
the Owner or the Contractor will pay for replanted trees; however, regardless
of who pays for it, all trees which do not survive must be replaced,
regardless of the cause of mortality.
C. Paragraph 0203.04 does not indicate whether container stock or
bareroot stock will be planted. We are concerned about the planting of
bareroot stock at the time of year when it appears the planting will have to
be performed. This question needs to be clarified, and if you believe you
will need an extension of time on the permit condition, in order to
accommodate seasonal conditions most favorable for planting, the terms and
conditions of such an extension must be resolved.
FEB 18 1992
-2-

d• There is virtually no discussion in the contract of how
Specifics site
that , and the relative the hydrology
issue must be permanence of those alterations.
provided.
e• There is no indication of the ultimate disposition of the
During early discussions on this issue, there was some indication that
property would be donated to either a conservation the
State University. Please let us know your intentionsoinrthatto North Carolina
Until these qu regard.
estions are resolved, the Wilmington District is not
prepared to agree that the work described in the Specifications will satisf
condition e.
Y
It appears that the specifications are to be executed-by
PartnRrship, Inc. as owner. The permit has been issued to Kitt
Partnershi Kitty Hawk Woods
p, which we understand is a different entit y Hawk Woods
y. us what entity is actually going to build the shopping a Please let r know nter, be transferred to that entity. The transferee must execute the
permit must
indicate its assumption of all of the liabilities associated as the the tes
and conditions of the permit to
permit. Permit, prior to performing any work authorized byrthe
Questions or comments may be addressed to me, telephone [phone]
Ms. Brooke Lamson [phone].
r
Sincerely,
G. Wayne Wright
Chief, Regulatory Branch
Enclosures
Copies Furnished (with enclosures):
CESAD-CO-OR
Mr. Dennis L. Stewart, Manager
Habitat Conservation Program
N.C. Wildlife Resources Commission
312 N. Salisbury Street
Raleigh, North Carolina 27611
Ms. L. K. (Mike) Gantt
VU.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
Mr. Starkey Sharp
Sharp, Outten & Graham
Attorneys at Law
Post Office Drawer 1027
Kitty Hawk, North Carolina 27949
United States Department -of the Interior
FISH AND WILDLIFE SERVICE
Raleigh Field Office
Post Office Box 33726
Raleigh, North Carolina 27636-3726
January 29, 1992
Colonel Walter S. Tulloch
District Engineer
U.S. Army Corps of Engineers
Post Office Box 1890
Wilmington, North Carolina 28402-1890
Attention: Regulatory Branch
Dear Colonel Tulloch:
TAKE ?? J
MUDE IN

FIL . t UPI
This is in reference to the permit issued to Kitty Hawk Woods Partnership
(Action ID. 198900495), dated June 20, 1991. The U.S. Fish and Wildlife
Service (Service) is concerned that the recent, ongoing legal actions
surrounding the project may affect the mitigation required as conditions in
the issued Section 404 Clean Water Act permit. The Service, therefore,
requests that the Corps investigate the current status of mitigation
implementation including: (1) Condition (b) regarding the need to provide
improved circulation between two non-isolated wetlands on the shopping
center site; (2) Condition (e) which requires compensatory mitigation by
restoration of a 26- acre wetland tract near Columbia, in Tyrrell County,
within one year- from date of permit issuance; and (3) Condition (d) which
requires ee o comp y wi fi-ahl o the conditions of the Section
401 Water Quality Certification issued by the State Division of
Environmental Management. Should your investigations reveal uncertainties
regarding the likelihood of the mitigation being completed, then we
recommend the permit be revoked.
Furthermore, we request a copy of the Conservation Easement document which
covers the permittee's originally-proposed 455-acre maritime forest donation
area. Despite requests to the Corps, EPA and the permit applicant, the
Service has not been able to obtain a copy of the final Conservation
Easement language at the time plans changed the 455 acres of maritime forest
from a donation to the State to a Conservation Easement. Thus, it is
difficult to assess how it is being implemented.
The Service appreciates your attention to this matter, and we look forward
to your reply.
Sincerely yours,
L. K. Mike Gantt
Field Supervisor
T= 7
?EuuL?liuKY .K;il'?%H
CCD
CVrM CUM DUROPN ENT, LTD.
?T February 4, 1992
FEDERAL EXPRESS 2ND DAY DELIVERY
Brooke Lamsden LA1L;i7; LKAftc;i
Department of the Army
Wilmington District Corps of Engineers
69 Darlington Avenue
Wilmington, NC 28403
RE: Corps of Engineers Permit for Kitty Hawk Woods Partnership
dated May 28, 1991
Action ID. 198900495
Dear Brooke:
Enclosed please find a copy of the Bottomland Hardwood Forest
Mitigation Specifications for Compensatory Mitigation Associated
with Kitty Hawk Woods Partnership Section 404 CWS Permit
198900495 prepared by Triangle Wetland Consultants, Inc.
Please review this agreement and advise if the work specified in
this contract will fulfill Subsection e of the conditions
attached to the aforereferenced permit.
I would appreciate a response from you by February 19 as that is
the deadline for all of the documentation for our construction
loan closing for this project.
Thank you for your assistance.
V tr ly yo s,
Johan D. Fife,- ?
Pres dent
JDFjr/dkt
Enclosure
cc: Starkey Sharp, Esquire w/copy
4020 Nest Chase Boulevard, Suite 400 Ralei-h. North Carolina 27607 - [phone] • Fax No. [phone]
Ldj oul")
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
PQ. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
June 20, 1991
IN REPLY REFER TO
Regulatory Branch
Action ID. 198900495
k
Kitty Hawk Woods Partnership
Post Office Box 749
Kitty Hawk, North Carolina 27949
Gentlemen:
In accordance with your written request of September 8, 1989, and the
ensuing administrative record, enclosed is a permit to place fill material in
wetland swales to effect construction of a shopping center, residential roads
and driveways, multi-family housing, and parking on 1,400 acres of maritime
forest in Kitty Hawk, Dare County, North Carolina.
If any change in the authorized work is required because of unforeseen or
altered conditions or for any other reason, the plans revised to show the
change must be sent promptly to this office. Such action is necessary, as
revised plans must be reviewed and the permit modified,
Carefully read your permit. The general and special conditions are
important. Your failure to comply with these conditions could result in a
violation of Federal law. Certain significant general conditions require
that:
a. You must complete construction before December 31, 1994.
b. You must notify this office in advance as to when you intend to
commence and complete work.
c. You must allow representatives from this office to make periodic
visits to your works.ite as deemed necessary to assure compliance with permit
plans and conditions.
The enclosed Notice of Authorization, ENG Form 4336, must be conspicuously
displayed at your worksite.
sincerely,
Toomas C. Suermann
Lie%itenant Colonel,
Corps of Engineers
District Engineer
Enclosures
'JUN 24 1991
1 %'" i t" ? 1 1 c; ' b
CONDIIIQNS
a- The activity will be accomplished in strict accord
ance wittythe
permittee's revised proposal dated October 22, 1990. The total acreage of
wetlands filled, adjacent and isolated, will not exceed 10.49 acres.
b. Pursuant to the permittee's revised proposal o 0 b
ridge separating the two, major non-isolatedwetlands within the2commerc0ialhe
tract will be excavated at two locations to provide connections and improved
circulation to wetlands. Each connection will be a minimum of 100 feet wide
and will be excavated to the elevation of 2 feet below the elevation of
adjoining, e-kisting wetlands. Construction access to the areas to be
excavated will be accomplished so as to minimize impacts to the maritime
forest and wetlands.
C, At this time, the 96.6 acre multi-family housing area, Project II, is
eliminated from the overall project. Any future placement of fill material in
wetlands within this area will require an individual Department of the Army
permit and separate review by the State of North Carolina to determine
consistency with North Carolina's Coastal Management Program. The wetland
crossing of this area is authorized by this permit.
d. The permittee will comply with all conditions of the Section 401 Water
Quality Certification issued by the North Carolina Division of Environmental
Management on April 9, 1990, as amended February 14, 1991. These conditions
are incorporated herein by reference. The permittee will provide copies of
all conservation easements to the Corps of Engineers for review prior to
execution.
e. As compensatory mitigation, the 26 acre farm near Columbia in Tyrrell
County, North Carolina, will be'restored to' a forest wetland area through the
removal of all artificial drainage on the site and the reestablishment of
forest species. This work will be conducted under guidance of the U.S, Fish
and Wildlife Service (USEWS) and/or•the"North Carolina Wildlife Resources
Commission (NCWRC). Removal of artificial drainage and the required plantings
will be accomplished immediately after crops are harvested and seasonal
conditions become favorable, within one year from the date of issuance of this
permit.
E. The fill material will be clean and free of any pollutants except in
trace quantities. Metal products, organic materials, or unsightly debris will
not be used.
QJ 004
g. Under applicable law, the permittee will incorporate this permit as
part of the documents reflecting title to or interest in the real property
affected.
-4 ?-r
SLATE
y ?n?o
W
i
State of North Carolina
Department of Environment, Health, and Natural Resources
Division of Environmental Management
512 North Salisbury Street • Raleigh, North Carolina 27611
James G. Martin, Governor - George T. Everett, Ph.D.
WHIam W. Cobey, Jr., Secretary February 14, 1991 Director
Mr. Jerry Wright, Jr.
Managing Partner
Kitty Hawk Woods Partnership
Post Office Box 749
Kitty Hawk, North Carolina 27949
Dear Mr. Wright:
Subject: Certification Pursuant to Section 401 of the Federal
Clean Water Act,
Proposed Kitty Hawk Woods Development
Kitty Hawk Woods Partnership
Currituck Sound
Dare County
Attached hereto are two (2) copies of Amended Certification
No. 2420 issued to Kitty Hawk Woods Partnership dated April 9
1990. This amendment replaces Condition No. 2 in Certification #
2420. All other conditions are still applicable.
If we can be of further assistance, do not hesitate to
contact us.
Sincerely,
ZGtlcr?.
George T. Everett
Director
Attachments
cc: Wilmington District Corps of Engineers
Washington Regional Office
L,l . John Dorney
Mr. John Parker
Central Files
Pollution Prevention Pays
P.O. Box 27687, Raleigh, North Carolina 27611-7687 Telephone [phone]
NORTH CAROLINA
Dare County
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 Envi-
ronmental Management Regulations in 15A NCAC 2H, Section .0500 to
Kitty Hawk Woods Partnership pursuant to an application filed on
the 11th day of February, 1991 to place fill material in wetlands
in conjunction with construction of the Kitty Hawk Woods Develop-
ment.
The Applicatitpn provides adequate assurance that the dis-
charge of fill material into wetland areas that are not connected
to the surface water system and into wetland areas adjacent to
waters of tributaries to Currituck Sound in conjunction with the
proposed development in Dare County will not result in a viola-
tion?of applicable Water Quality Standards and discharge guide-
lines. Therefore, the State of North Carolina certifies that this
activity will not violate Sections 301, 302, 303, 306, 307 of PL
92-500 and PL 95-217 if conducted in accordance with the Certifi-
cation # 2420 and this condition which replaces condition No. 2
in that Certification:
Condition(s) of Certification:
2. No sale of land or construction activities shall
occur under the Army Corps of Engineers Permit on
the 455 acre tract of maritime forest in the center
of Kitty Hawk Woods discussed in the negotiations
between the developer and State agencies and
referred to in the memorandum dated February 11,
1991, as shown on the composite 404 permit applica-
tion map as the 135 acre donation tract and the 320
acre proposed sale tract until such time as a con-
servation easement has been conveyed to the State
of North Carolina, a development plan for the prop-
erty has been approved by the Resolution Trust Cor-
poration (RTC) or the individual lots have been
released by the RTC, and the State of North Caro-
lina has approved the deeds and restrictive cove-
nants for the lots to ensure that the conservation
easement is enforceable.
Violations of any condition herein set forth shall result in
revocation of this Certification.
This Certification shall become null and void unless the
above conditions are made conditions of the Federal Permit.
This the 14th day of February,, 1991.
DIVISION OF
ENVIRON NTAL
Gam..
George T.
MANAGEMENT
Everett, Director
? ?swE4
State of North Carolina
Department of Environment, Health, and Natural Resources
Division of Environmental Management
51< _ .urth Salisbury North ',.arolina 27611
James G. Martin, Governor April 9, 1990 George T. Everett, Ph.D.
William W. Cobey, Jr., Secretary Director
Mr. Merry Wright, Jr.
Managing Partner
Kitty Hawk Woods Partnership
Post Office Box 749
Kitty Hawk, North Carolina 27949
Dear Mr. Wright:
Subject: Certification Pursuant to Section 401 of the Federal
Clean Water Act, , el
Proposed Kitty Hawk Woods Development
Kitty Hawk Woods Partnership
Currituck Sound
Dare County
Attached hereto are two (2) copies of Certification No. 2420
issued to Kitty Hawk Woods Partnership dated April 9, 1990.
If we can be of further assistance, do not hesitate to
contact us.
Sincerely,
Original Signed By
George I Everett
George T. Everett
Director
Attachments
cc: Wilmington District Corps of Engineers
Washington Regional Office
Mr. William Mills
Mr. Stephen Benton
Polbytion Prevention Pavs
P.O. Box 27687, Raleigh, North Carolina 27611-7687 Telephone [phone]
An Equal Opportunity Affirmative Action Employer
r
NORTH CAROLINA
Dare County
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
Lnvironmen,.al Management Regulations in 15 NCAC 2H, Section .0500
to Kitty Hawk Woods Partnership pursuant to an application
filed on tlhe:16th day of October, 1989 and amended on . the 16th
day_°.of November, ;1989 to place fill material in wetland in
conjunct o` h construction o€ the Kitty Hawk Woods
The`App,? cation provides adequate assurance that the
discharge oil'1 material into wetland ateas that are not
connected b Ehe.surface waters stem`and xnto',wetlands areas
adz acentr t the waters of tribut ies , to- Cu`r' rituck° Sound in
e' `prop
con hT3are Coun
nt ty will not
.._? 01
x?
01,704i 3 `
result ration of ,:applicable Water ";Quality Standards and
discharge "guidelines. Therefore, 'the State of North Carolina
certifies that°:this activity ;will not violate Sections. 301, 302,
303, 3U6, 307 of PL 92`-500 and PL 95-217 if conducted in
accordance with the application and conditions hereinafter set
forth.
Condition(s) of Certification:
1. That the activity be conducted in such a manner as
to prevent significant increase in turbidity
outside the area of construction or"construction
related discharge (increases such-that the
turbidity in the Stream is 25 NTU's or less are not
considered significant).
2. The 455 acre tract of maritime forest in the
center of Kitty Hawk woods discussed.in
negotiations between the developer and State
agencies and referred to in the.memorandum from
Sharp, Michael and Outten dated 'January 22, 1990,
and as shown on the composite 404 permit
application map as the 135 acre donation tract and
the 320 acre proposed sale tract, must be donated
in fee simple to the State of North Carolina before
any `sale of land or construction activities occur
in the area covered by the Army Corps of Engineers
permit
3. Conservation easements sufficient to protect in
perpetuity all wetlands located within the
residential portions of the 1,400 acre tract and
those uplands located within Section II of the
project as designated in the permit application,

i ?
Certification (cant.)
April 9, 1990
including in total approximately-90 acres, must be
donated to the State of North Carolina before any
sale of land or construction activities occur in
one area cov--ed by t:.e Army Carps of Engineers
permit.
4. The wetland restoration near Columbia in-Tyrrell
County, NO, described in .the Mitigation Prospectus
for` Kitty. HawkI;-Woods circulated .as File No.
CESAW-C089 N-028-0495 dated February 12, 1990, must
be carried out-to successful completion..-
Violations of any condition herein set forth shall result in
revocation `of this Certification.
This Certification shall become null and vaid unless the
above conditions are made 11 conditions of the Federal Permit.
This the 9th day of April, 1990.
DIVISION OF ENVIRONMENTAL MANAGEMENT
Original Signed By:
George T. Everest
George T. Everett, Director
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Deal not ideal, but good enough
.Idealists in the environmental
r' anks would like to say a proud and
Principled "No!" to developers who
want to fill 16 acres of Kitty Hawk
wetlands near where U.S.158 meets
the beach to put up a Wal-Mart and
a grocery store. And if the state had
the kind of stiff controls it ought to
have :over coastal development,
then that "No!" would indeed be
the only right answer.
But in the real world, the carrot
and stick the developers hold out
are too powerful to resist. In return
for getting to build on the 16 acres
of wetlands, they would donate to
the state or a conservation agency
a precious 455 acres of maritime
forest on the Dare Banks next to
their projected shopping center and
upscale residential development.
That's in addition to restoring 23
acres in Tyrrell County to wetlands
status to meet the federal "no net
Joss of wetlands" rule.
The U.S. Army Corps of Engi-
neers is trying to decide whether to
grant a permit for the swap. From
the state's point of view, the thing
to keep in mind is the developers'
claim that unless the whole pack-
age wins approval, including the
lucrative shopping area, the land
won't generate enough revenue to
pay the mortgages. In that case,
they say, they'd have to hack their
way into the woodland to build still
more pricey summer homes.
The tract is the largest among
North Carolina's 12,000 remaining
acres of maritime forest. Like the
rest,. its tangle of.trees and brush is
invaluable in catching and holding
fresh water and preventing erosion.
It also shelters plant and animal
species that otherwise couldn't live
on the windy, salty banks.
The N.C. Coastal Federation op-
poses the package as undermining
existing wetlands regulations. Yet
the state has no money to buy that
455 acres of irreplaceable forest,
and no prospect of getting money
soon enough to save it from the
bulldozers. The land-use regula-
tions that should, and could, pre-
vent the savaging of the forest don't
yet exist.
Principle is a noble thing and this
kind of deal is far from--ideal. But
sometimes pragmatism must take
precedence. When the choice boils
down to saving 16 acres of wetlands
vs. saving 455 acres of maritime
forest, the latter course. seems the
reasonable one.

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the same thing =that there's no could look at-AW enviromnental
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next time
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cloudmg?t e picture with the gift confine the--benefits to wetlands cedar
dime or.some Atlantic v hite
of the land" gain vs.; wetlands .loss'' - but forest that s more in jeopardy
Dr Everett of Coastal Manage- consider; the, environmental- gain than some of the wetland ypes.
went says the project could be vs. the -environmental doss,"' Or.
aid ``Z don't think we're going-to get
at leapt not
y' ;o'ther way
them a
allowed if the Xorps can show
some flexibility.- He hope's the .
Everett.s
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n
right now .he said. "And at the
a tine _ find that there is no ,
Everett says it could be°_a good ra`£?rdevelopment- is going,.if we
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cce t" site for` the cne:, be anything left
wait, there won't
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State of North Carolina COASTAL RE,3QUP,
Department of Environment, Health, and Natural-Resources Vas ConlIn4.
Division of Parks and Recreation
512 North Salisbury Street * Raleigh, North Carolina 27611
James G. Martin, Governor
William W. Cobey, Jr., Secretary
November 22, 1989
Mr. Charles Hollis, Chief
Regulatory Branch
U.S. Army Corps of Engineers, Wilmington District
P.O. Box 1890
Wilmington, N.C. 28402
Dr. William W Davis
Director
Subject: Review comments for 404 permit application; Kitty Hawk
Woods Partnership; CESAW-C089-N-028-0492.
Dear Mr. Hollis:
We recommend in favor of acceptance of the Kitty Hawk Woods
Partnership's revised mitigation plan, which is offered in return for
issuance of permits to place fill material in wetland swales sites for
development in Kitty Hawk, North Carolina. The applicant for the 404
wetlands fill permit, now under public review, requests to place fill
material in up to 16.42 acres of wetlands (filling 9.62 acres for 1
commercial development and 6.8 acres of wetlands for residential
development and roads). The Kitty Hawk Woods Partnership proposes
commercial and residential development in its 1,400-acre property. The
applicant proposes a mitigation plan which would donate 455 acres in the
center of the Kitty Hawk Woods maritime forest for protection as a
nature preserve, to donate a fee-simple interest or conservation
easement for an additional 124 acres of the same natural system, and to
donate conservation easements for the other wetlands located within the
residential portions of the proposed development. The applicant also
proposes off-site mitigation to recreate a 26-acre forested wetland
habitat on a location in Tyrrell County.
The North Carolina Nature Preserves Act (N.C.G.S. 113A-164.1) assigns
responsibility to this Division's Natural Heritage Program to identify
those natural areas critical to the survival of the state's natural
diversity and requires preparation of a biennial Natural Heritage
Protection Plan. The Natural Heritage Program has surveyed and assessed
the ecological resources of the Kitty Hawk Woods maritime forest and
ranks the portion of the woods proposed for preservation in the
mitigation plan as a "nationally significant" natural area. The Kitty
Hawk Woods maritime forest is one of only about two dozen maritime
forest communities of over 20 acres in size remaining on the North
Carolina coastal barrier islands. The Natural Heritage Program
considers Kitty Hawk Woods' ecological resources among the five highest
quality remnants of maritime forests left in North Carolina.
P.O. Box 27687, Raleigh, North Carolina 27611-7687 Telephone 9:9-73 3 111 8 1

Kitty Hawk Woods
November 22, 1989
Page Three
On the basis of these assessments, the N.C. Natural Heritage Program has
rated Kitty Hawk Woods in the state's Natural Heritage Protection Plan
as an ecological area of national significance, and one of the highest
priority natural areas in North Carolina. The upland and wetlands
systems of Kitty'Hawk Woods are of exceptional natural value. By far
the largest Maritime Swamp Forest on the Atlantic Coast of North
America, the wetland swales of Kitty Hawk Woods are especially
important. The Natural Heritage Program considers the protection of
Kitty Hawk Woods to merit highest attention.
Natural Heritage Program biologists have visited and assessed much of
the 16.42 acres of wetlands proposed by the permit applicants for
filling. Based on that onsite evaluation, the Natural Heritage Program
notes that a portion of the proposed wetland fill consists of minor road
crossings and would be permittable with or without this proposal through
the nationwide exemption. Moreover, onsite evaluation of the wetlands
proposed to be filled for development revealed significant degradation
of the wetlands in the area of the proposed shopping center, due to
proximity to already developed lands, pollution from existing roads and
development, and excess influx of nutrients from those sources. In
contrast, the tracts of land proposed for donation and conservation
easements contain wetlands of uniformly high quality, which are
substantially removed from offsite impacts. The upland areas contained
in those tracts are also of similarly high quality and are very
significant ecological resources.
This Division recommends that the Corps of Engineers, the N.C. Division
of Environmental Management, and the N.C. Division of Coastal Management
approve the permit applications for wetlands fill as proposed for this
project, on condition that the applicant's mitigation plan as outlined
above is required and that the donations of land and easements be made
to the State of North Carolina or the N.C. Nature Conservancy. This
mitigation plan offers the best conceivable opportunity for the
protection of the greatest acreage of this highest quality maritime
forest ecosystem without substantial acquisition costs incurred by
public conservation agencies. Denial of the permit could instead result
in the piecemeal development of Kitty Hawk Woods, substantial clearance
and timbering of the wetlands and uplands natural forest communities,
and degrading impacts on the natural areas byroad and residential
construction on the upland ridges. Although much of these tracts is
jurisdictional wetland, the ridge and swale topography allows
along-ridge access to nearly all upland portions of the tracts, which
would enable current or future owners to develop these areas with
minimal regulatory influence.
The proposed mitigation donation (of fee-simple title and conservation
easements) to the State of North Carolina or the N.C. Nature Conservancy
for preservation purposes represents an exceptional opportunity to
protect this unique and nationally important natural area.
Kitty Hawk Woods
November 22, 1989
Page Four
Sincerely,
original Signed By
Director
Philip K. McKnelly
Director
/ Director A+6- Steve $e o,n
cc:v George Everett,
N.C. Division of Coastal Management
L.K. Gantt, Supervisor
Raleigh Field office
U.S. Fish and Wildlife S.tryice
Lee Pelej
Wetlands Branch
U.S. Environmental Protection Agency
^anni= Stewart
N.O. Wildlife Resources Com:T"ssion
Paul Wilms, Director
N.C. Division of Environmental Management
PKM/FEB/CER

G'
Qci - j
Lam -Tiw+ -?
4+T.T Or CO4
UNITED STATES DEPARTMENT OF COMMERCE
. .
National Oceanic and Atmospheric Administration
=tea NATIONAL MARINE FISHERIES SERVICE
`''*tsO'? Southeast Reaional Office
9450 Koger Boulevard
St. Petersburg, FL 33702
October 19, 1989 F/SER111/RSS
919/728-5090
Lt. Colonel Thomas
District Engineer,
Department of the
P. O. Box 1890
C. Suermann
Wilmington District
Army, Corps of Engineers
Wilmington, NC 28402-1890
Attention James Poteat
Dear Colonel Suermann:
The National Marine Fisheries Service (NMFS) has reviewed Public
Notice 89-N-028-0495 dated September 28, 1989, whereby Kitty Hawk
Woods Partnership proposes to place fill material in wetland swales
to facilitate construction of a shopping center, residential roads
and driveways, multifamily housing, and parking lots in Kitty Hawk,
Dare County, North Carolina.
Based on the enclosed report and our knowledge of the project area,
we have determined that the loss of 4.44 acres of adjacent wooded
wetlands would be detrimental to fishery resources. These wetlands
are hydrologically connected with Currituck Sound and provide
nutrients and water quality maintenance functions that are
important for continued fishery production. We also believ6 that
the proposed filling of wooded wetlands connected with Currituck
Sound is inconsistent with Section 404(b)(1) guidelines since this
work is non-water dependent and less environmentally damaging
alternatives exist (i.e., using uplands for shopping center and
parking lot construction).
We understand that the public notice outlines a total plan of
development and addresses mitigation for wetland losses. While
this effort is commendable, we feel that since this work is non-
water dependent and less damaging alternatives exist, consideration
for mitigation efforts are not warranted. Therefore, we recommend
that this project, as presently proposed, not be permitted.
We appreciate the opportunity to provide these comments.
Since y o s,
(
And eas ZMager r.
Assistant Regional Director
Habitat Conservation Division
Enclosure

t d,
-.
1989
OCl 31
AL RE30tj'"S COMM.

® North Carolina Wildlife Resources Commission K2
512 N. Salisbury Street, Raleigh, Forth Carolina 27611, 919-733-3391
Charles R. Fullwood, Executive Director
MEMORANDUM
TO: Steve Benton, Consistency Coordinator
Dris" n f Coastal Management, DEHNR
FROM: [`e-Richard B. Hamilton
Assistant Director
DATE: October 30, 1989
SUBJECT: Consistency Determination for Corps of Engineers Public
Notice 89-0492: Kitty Hawk Woods Partnership, Kitty
Hawk, Dare County, North Carolina
The Wildlife Resources Commission has reviewed the subject
Public Notice (PN) and professional biologists on our staff are
familiar with habitat values of the project area. We have met
with the applicant as well as other State and Federal agencies
and have been onsite on two occasions during the summer of 1989.
Our comments are provided in accordance with provisions of the
Fish and Wildlife Coordination Act (48 Stat. 401, as amended; 16
U.S.C. 661 et seq.).
The applicant, Kitty Hawk Woods Partnership, is proposing
residential and commercial development on a 1,400 acre tract of,
maritime forest in Kitty Hawk. As proposed the development would
result in filling of approximately 16 acres of forested wetlands,
with an additional 2.5 acres being impacted by excavation,
bridging, or construction on pilings. Of these acreages, about
9.62 acres would be filled and 0.63 acres would be excavated for
construction of a shopping center, parking lots, and stormwater
retention basin. Remaining acreages would be affected as a
result of residential development.
The applicant proposes to mitigate wetlands losses through a
fee simple, interest and lien free donation of approximately 135
acres of dune-swale maritime forest to the Nature Conservancy. In
addition and, provided that the bank holding deeds of trust will
agree, a 124 acre tract of the same system will be placed under a
conservation easement and a fee simple interest may be conveyed
to the Nature Conservancy. Also, a 320 acre tract adjacent to
the 135 acre donation tract will be offered to the Natural
Heritage Trust Fund for purchasing at a cost of the balance on
Memo Page 2 October 30, 1989
the lien, with no profit realized by the applicant as a result of
the sale. Conservation easements will be placed on all wetlands
located within the residential portions of the project as well as
a few selected uplands in Section II. To satisfy a goal of no
net wetland losses, the applicant has proposed reclamation of a
.26 acre tract of land currently in agricultural use to forested
wetlands and donating that land to a public agency for research
purposes.
Forested wetlands and non-wetlands within the project area
constitute some of the highest quality wildlife habitat observed
anywhere in North Carolina. Forested wetlands consist of a good
mixture of primarily cypress and gum with a diverse age
structure. Non-wetland habitat has developed on relic dunes and
consists of a good mixture of high quality hardwoods and some
loblolly pine. The area provides exceptional habitat for a broad
spectrum of wildlife species as well as critical water quality
buffering functions. A recent report by the Division of Coastal
Management (Lopazanski, Evans, and Shaw. 1988. Assessment of
Maritime Forest Resources on the North Carolina Coast) attests to
the very high values of the Kitty Hawk Woods system.
We recognize the effort put forth by the applicant to
satisfy agency concerns and develop an acceptable mitigation
plan. We also understand that at least a portion of the property
can be developed without permits or with the Nationwide Permit 26
for minor road crossings and there would be no requirement for
mitigating adverse impacts. Unfortunately, the greatest area of
impact on wildlife resources will occur as a result of tthe
proposed development in non-wetland habitat. Human encroachment
into the area will degrade habitat for some species wherein they
will be extirpated while other species may continue to inhabit at
lower numbers. With a shift in plant communities as a result of
clearing for road and residential construction, an accompanying
shift in fauna can be expected. Domestic animals will further
displace or limit certain wildlife species currently found in the
area.
The mitigation plan will assure that a majority of the
project area wetland resources will receive quantitative (not
qualitative) protection with a significantly lesser degree of
protection for non--wetland habitat. Basically, we find the
mitigation plan to be incomplete because of the lack of
information regarding the bank's willingness to release deeds of
trust, the inability of the Natural Heritage Trust Fund to
provide sufficient funding for the acquisition, and a lack of
information regarding Conservation Easement format and content.
At the present time, we have little choice but to find the
proposal inconsistent with our policies and guidelines for
wetlands and aquatic habitat conservation and recommend that a
permit not be issued. Our reasons for this recommendation are as
follows:
Memo Page 3 October 30, 1989
(1) Filling of wetlands for the purpose of creating
highground upon which commercial or residential
development, including roads is to occur does not
constitute a water dependent activity.
(2) Although it appears that the applicant has
attempted" to avoid wetland impacts as much as
possible without compromising the development
proposal, we believe that wetland impacts can be
minimized even further. It is important to
understand that from a wildlife resources
perspective, removal of trees and other wetland
vegetation constitutes habitat degradation even
though filling may not occur.
(3) The project will have significant impacts on non-
wetland wildlife habitat. Degradation in habitat
quality for fisheries resources is also expected.
(4) Some project features on the plat sheets need
further clarification or modification. For
example, it is not clear as to why paddle boat
launching areas are located at the end of
boardwalks in wetlands. Based upon information
provided by the applicant and our knowledge of
wetlands, these areas undergo periodic drydowns
which would render paddle boats or canoes
relatively worthless.
(5) The mitigation plan as described in the PN does
not contain sufficient commitment regarding
conveyance deeds of trust, nor is there sufficient
information regarding Conservation Easements. The
application should contain a letter of commitment
from the bank holding the deeds of trust and
copies of Conservation Easements.
We appreciate the pre-application coordination meetings
conducted by the applicant and wish that an additional meeting
had been held prior to submitting the application. Thank you for
the opportunity to review and comment on this PN. If we can
provide further assistance, please call on us.
RBH/lp
cc: Honorable Russell M. Hull, Jr.
Mrs. Linda K. (Mike) Gantt, USFWS
Mr. Pete Kornegay
Mr. David Rowe
Mr. Dennis Stewart
01
IkECri-i'l'VtD-
OCT 510ka
State of North Carolina
Department of Natural Resources and Community Development
Division of Coastal Management
512 North Salisbury Street * Raleigh, North Carolina 27611
James G. Martin, Governor
William W. Cobey, Jr., Secretary
10/03/89
George T. Everett
Director
Mr. Charles Fullwood Jr. Director
Wildlife Resources Commission
NC DEH&NR
P.O. Box 27687
Raleigh, NC 27611

REFERENCE: CESAW-89-0492
Applicant/Sponsor: Kitty Hawk Woods Partnership (?
Fill Wetland Swales for Shopping Center and Residentia /'"Dev.
Dear Mr. Fullwood:
The attached U.S. Army Corps of Engineers Public Notice, dated
09/28/89 describing a federal project or permit is being circulated
to interested State agencies for comments concerning the proposal's
consistency with the North Carolina Coastal Management Program.
Please indicate your viewpoint on the proposal and return this
form to me before 10/24/89.
Si re y,
Steen B. Benton
Consistency Coordinator
REPLY This office objects to the project as proposed.
Comments on this project are attached.
This office supports the project proposal.
No Comment.
Signed ? ?
Date 1,4 - 3
Agency we ?,/,/ ?C
P.O. Box 27687, Raleigh, North Carolina 27611-7687 Telephone [phone]
An Equal Opportunity Affirmative Action Employer
NKDATA DF/CAMA/40i REV DATE 01/04/88
ACTION > - FILE ? DFCAMA40i PSWD > FORMAT > SIC;DFCAMA NEXT RCD - > 04
ACTION = ADD ENTER THE DAT TO B S1QR?EwD FF' DATA
PRQ?E?: ()072.5 IR l : /?_.7 16?cte.sl t vs h? , COUNTY: REGION : o7
ASSIGNED TQ :`AJOINT ??IQTICE :40
TYPE CERTIFICATION RECOMMEND DATES YYMMDD
404 Phi : Y 401 REG : Y ISSUE- RECEIVED : 8 q/a? 6
CAMA ONLY: GC: DENY: ? INITIAL REPORT:
DF/CAMA: SECT=' : SW!'R' O : HOLD: FINAL REPORT- 8'71/!)/'
RECEIVING STREAM : 011v CLASS: BASIN: COMMENTS:
CQ1=?IEES : / )
K .- 1 ? k-
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va" I

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NO V 193,
G?r
n
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vw 0i:-F(CF
OCT C 198
DEPARTMENT OF THE ARMY E P,4
Wilmington District, Corps of Engineers
Post Office Box 1890
Wilmington, North Carolina 28402-1890
CESAW-C089-N-028-0492 September 28, 1986
PUBLIC NOTICE
KITTY HAWK WOODS PARTNERSHIP, Post Office Box 749, Kitty Hawk, North
Carolina 27949, has applied for a Department of the Army (DOA) permit TO
PLACE FILL MATERIAL IN WETLAND SWALES TO EFFECT CONSTRUCTION OF A SHOPPING
CENTER, RESIDENTIAL ROADS AND DRIVEWAYS, MULTIFAMILY HOUSING AND PARKING ON
1,400 ACRES OF MARITIME FOREST IN KITTY HAWK, Dare County, North Carolina.
The following description of the work is taken from data provided by the
applicant and from observations made during an onsite visit by a
representative of the Corps of Engineers, the U.S. Fish and Wildlife Service,
the Nature Conservancy, the North Carolina Wildlife Resources Commission, the
North Carolina Natural Heritage Program, the North Carolina Division of
Coastal Management (NCDCM), the North Carolina Division of Environmental
Management (NCDEM) and the Town of Kitty Hawk. Plans submitted _with the
application show the proposed construction of a shopping center (Project I),
portions of which would fill 4.15 acres of wetlands secondarily connected to
Kitty Hawk Bay, and 4.46 acres of wetlands which are hydrologically separated
from adjacent wetlands. The fill is to be used for parking, access roads and
building foundations. An additional 0.63 acre of adjacent and separate
wetlands is to be excavated to provide runoff retention basins. Accompaning
Project I (sheet 2) is a commercial out parcel that would fill 1.01 acres of
separate wetlands.
In addition to the proposed commercial development two types of
residential development are planned. The first, a multifamily community
positioned on a 97-acre parcel (Project II) would fill 0.29 acre of adjacent
wetlands and 3.98 acres of separate wetlands; 1.53 acres of wetlands would be
excavated. The second, a low density residential development, would be spread
over 300 acres of mixed maritime forest (Projects IV, VII, IX, & X). A total
of 119 lots would require 1.65 acres of adjacent wetlands and 0.88 acre of
separate wetlands to be filled to provide access roads and driveways for lot
owners. No wetlands in these parcels are to excavated.
If completed as proposed, 4.44 acres of adjacent wetlands (swales) and
11.54 acres of separate wetlands (swales separated from adjacent system by
relic dunes) would be filled. An additional 1.7 acres of adjacent wetlands
and 0.84 acres of separate wetlands would be altered, either through
excavation, bridging or structures on pilings.

U"
-2-
No wetlands located within Projects III, V & VI, would be filled.
No development is planned for Project V .which is set aside for purchase by the
State or an environmental organization interested in preserving the natural
integrity of the site.
This permit application reflects. the development of all areas (wetlands &
uplands) owned or controlled by the Kitty Hawk Woods Partnership. This
proposed development also contains a mitigation plan, which proposes to
compensate for the wetlands lost to development. The owners plan to convey to
the Nature Conservancy 135 acres of the dune-swale maritime forest (see 11135
acre donation").- This donation is to be in fee simple, interest free and
clear of any liens. An additional 124 acres of the same system is to be
placed under conservation easements and conveyed to the Nature Conservancy (a
fee simple interest can be conveyed if the parcels are released from the bank
deeds of trust). A 320-acre tract of maritime forest (section V) located
adjacent the 135-acre donation, is to be offered to the Natural Heritage Trust
Funds for purchase. This parcel is to be sold for the balance on the Lein; no
profit is to be made from the sale.. Additionally, conservation easements are
to be placed on all wetlands located within the residential portions of the
1,400-acre tract and a few selected uplands located within Section II. These
areas are also to be restricted through the Town of Kitty Hawk's land use
plan. Finally, a 26-acre farm tract near Columbia, Tyrrel County, is to be
reclaimed as a wetland. After filling the-artificial drainage system and
restoring the hydrology, the site is to be planted with wetland trees (cypress
and black gum at the lowest contours, overcup and swamp chestnut oak at higher
elevations). It is proposed that the reclamation area can be conveyed to a
public agency for study.
Plans showing the work are included with this public notice.
The applicant has determined that the proposed work is consistent with the
North Carolina Coastal Zone Management Plan and has submitted this
determination to the NCDCM for their review and concurrence. This proposal
shall be reviewed for the applicability of other actions by North Carolina
agencies such as:
a. The issuance of a Water Quality Certification under Section 401 of the
Clean Water Act by the NCDEM.
b. The issuance of a permit under the North Carolina Coastal Area
Management Act (LAMA) by the North Carolina Division of Coastal Management or
their delegates.
c. The approval of an Erosion and Sedimentation Control Plan by the Land
Quality Section, North Carolina Division of Land Resources, pursuant to the
State Sedimentation Pollution Control Act of 1973 (NC G.S. 113 A-50-66).
The requested DOA permit will be denied if any required State or local
authorization and/or certification is denied. No DOA permit will be issued

-3-
until a State coordinated viewpoint is received and reviewed by this agency.
Recipients of this notice are encouraged to furnish comments on factors of
concern represented by the above agencies directly to the respective agency,
with a copy furnished to the Corps of Engineers.
The District Engineer has consulted the latest published version of the
National Register of Historic Places for the presence or absence of registered
properties, or properties listed as being eligible for inclusion therein, and
this worksite is not registered property or property listed as being eligible
for-inclusion in the Register. Consultation of the National Register
constitutes the extent of cultural resource investigations by the District
Engineer, and he is otherwise unaware of the presence of such resources.
Presently, unknown archaeological, scientific, prehistorical, or historical
data may be lost or destroyed by work under the requested permit.
The District Engineer, based on available information, is not aware that
the proposed activity will affect species, or their critical habitat,
designated as endangered or threatened pursuant to the Endangered Species Act
of 1973.
The decision whether to issue a permit will be based on an evaluation of
the probable impacts, including cumulative impacts, of the proposed activity
and its intended use on the public interest. Evaluation of the probable
impacts which the proposed activity may have on the public interest requires a
careful weighing of all those factors which become relevant in each particular
case. The benefits which reasonably may be expected to accrue from the
proposal must be balanced against its reasonably foreseeable detriments. The
decision whether to authorize a proposal, and if so the conditions under which
it will be allowed to occur, are therefore determined by the outcome of the
general balancing process. That decision should reflect the national concern
for both protection and utilization of important resources. All factors which
may be relevant to the proposal must be considered including the cumulative
effects thereof. Among those are conservation, economics, aesthetics, general
environmental concerns, wetlands, cultural values, fish and wildlife values,
flood hazards and flood plain values (in accordance with Executive Order
11988), land use, navigation, shore erosion and accretion, recreation, water
supply and conservation, water quality, energy needs, safety, food and fiber
production, mineral needs, considerations of property ownership, and, in
general, the needs and welfare of the people. For activities involving the
placement of dredged or fill materials in waters of the United States, a
permit will be denied if the discharge that would be authorized by such permit
would not comply with the Environmental Protection Agencies' 404(b)(1)
guidelines. Subject to the preceding sentence and any other applicable
guidelines or criteria, a permit will be granted unless the District Engineer
determines that it would be contrary to the public interest.
This application is being considered pursuant to Section 404(b) of the
Clean Water Act (33 U.S.C. 1344). Any person may request, in writing within
the comment period specified in the notice, that a public hearing be held to
i
-4-
consider this application. Requests for public hearing shall state, with
particularity, the reasons for holding a public hearing.
Generally, the decision whether to issue this Department of the Army
permit will not be made until the NCDEM issues, denies, or waives State
certification required by Section 401 of the Clean Water Act. The DEM
considers whether or not the proposed activity will comply with Sections 301,
302, 306, and 307 of the Clean Water Act. The application and this public
notice for the DOA permit serve as application to the DEM for certification.
Additional information regarding the Clean Water Act certification may be
reviewed at the offices of the Environmental Operations Section, North
Carolina Division of Environmental Management, Salisbury Street, Archdale
Building, Raleigh, North Carolina. Copies of such materials will be furnished
to any person requesting copies upon payment of reproduction costs.
The NCDEM plans to take final action in the issuance of the Clean Water
Act certification on or after October 20, 1989.
All persons desiring to make comments regarding the application for Clean
Water Act certification should do so in writing delivered to the North
Carolina Division of Environmental Management, Post Office Box 27687, Raleigh,
North Carolina 27611-7687, on or before October 16, 1989, Attention:
Mr. William Mills.
Written comments pertinent to the proposed work, as outlined above, will
be received in this office, Attention: Mr. James Poteat, until 3:45 p.m.,
October 16, 1989, or telephone [phone].
C
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-fy f' i,/ li f riR Mr 'Re ct ?Cw.,x E ESS'
O•....... M...f, P•••w H / IANOfN4 KIT7r OUN(f( Dr'Cr"
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Iflen.l S110RtSIZI
INDEX
PROJECT NO. TITLE SHEET NO.
COMPOSITE MAP .. I
..................
TOTAL WETLANDS SITE DATA CHART... 2
I......... SHORES/DE SHOPPING CENTRE........ 3
I• • ........ .
RESIDUAL COMMERCIAL TRACT........ 14
II• ........
Iv MULTI-FAMILY TRACT.
.
.
.
.
.
.
.
.
.
.
.
.
.
.
SECT 5 .._,:•.
;•
?'
... .....
VI//....... ION /O........ .
.
.
.
.
.
.
.
.
.
.
.
.
.
SECTION 8..
6 :
?
P•
:
c. CAE ?S
IX........ COVERED BRIDGE ROAD .. . . . . . . . . , 8
IX........
X PHASE 5 .............• i
'
p
'r
......... RADCL IFF COURT .. .. . . . . /O 2
?
,3
= 7
STREET 6 DRIVEWAY SECTIONS........ //
O 0
EEC
O.

r.• r.f.. r1r :C:: r... . j
9"11,11 I .i ' I 1 t tr(I
/
.COMPOSITE MAP --
K/TTY HAWK WOODS
,rinr ?A.AI.A ArtANrrc mI.NS.ti oJA'C cor/A•rr Av cA.tOt /NA
OWACf-'A'/rrr //AWA• Pmaos PANrNCnsN/P ars,11A•!'p
.IDrlnfss. P.D. jea, l./
Avrrr NAfrf. we
lrll? rl,,Ar,N,
??rIV•'If/ (f/f? rF/ -7111 CNft>fa Ifs
' Srl(OUD ENGINEERING, P.A. A/•t'C'/rr

ScAt C+
swer / PC U
B
`' WETLANDS SITE DATA CART
DESCRIPTION CONNECT ED NON-CONNECTED
TOTAL AREA OF 404 WETLANDS
a) Shoresi.de Shopping Centre 5.72±- AC 6.7(>« AC
b) Residual Commercial/Sewage.D.isposal 6.51± AC 2.87± AC
C) Multi-Family/Sewage Disposal 35.85± AC 9.56± AC
.d) Section 10 45.5' AC 21.2± AC .
e) Section 8. 1.5.71± AC 13.73± AC
f) Covered Bridge Road
g) Phase 5 51.81 AC 6.91 AC
h) Radcliff Court 1.391 AC -0-
WETLANDS AREA TO BE FILLED
a) Shoreside Shopping Centre
b) Residual Commercial/Sewage Disposal
C) Multi-Family/Sewage Disposal
d) Section 1.0
e) Section 8
f) Covered Bridge Road
g) Phase 5
h) Radcliff Court
4 -151 AC
-0-
0.291- AC
-0-
-0-
1.42i AC
0.231- AC
4.46*-- AC
1.01_ AC
3.98± AC
0. 111_ AC
0.08± AC
0.621- AC
0.071 AC
-0-
WETLANDS VOLUME OF FILL
a) Shoreside Shopping Centre
b) Residual Commercial/Sewage Disposal
C) Multi-Family/Sewage Disposal
d) Section 1.0
e) Section 8
f) Covered Bridge Road
g) Phase 5
h) Radcliff Court
WETLANDS IMPACTED
a) Shoreside Shopping Centre
b) Residual Commercial/Sewage Disposal
C) Multifamily/Sewage Disposal
d) Section 10
e) Section 8
f) Covered Bridge Road
g) Phase 5
h) Radcliff Court
24,000± CY
-0-
14001- CY
-0-
-0-
-0-
5390 * CY
875± CY
0.25± AC
-0-
1.53 ' AC
-0-
-0-
-0-
-0-
-0-
2,5001- CY
48C-± CY
20,0001- CY
200'- CY
3801 CY
2,500' CY
170 * C Y
-0-
0.381_ AC
0.014± AC
0 .66 ± AC
-0-
-0-
-0-
-0-
-0-
TOTALS
Total Area of 404 Wetlands 162.48 * AC 60.96& AC
Wetlands To Be Filled 6.09= AC 10.331 AC
Wetlands Volume of Flll 31,6651 CY 26,230* CY.
Wetlands Impacted 1.781 AC 1.0541 AC'
%
? PE5?.79
s ? T O ? r
/' G u
LEe rr•?i ti:l :•i•
'TOTAL WETLANDS SITE OA TA CHART
_K/TTY HAWK WOODS
A,rrr NAwr ArLANric MYNSN/0 OAm COUNrr wwr, [A#otl d
DwAERznrrr NAwx NODOS P.4RrNERsH1,- prg/Gnep
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Tr • ??: ?.?'? OCT 1 6 1?8
A Q Division of
h ;
State of North Carolina Research Department of Natural Resources and Community Development
D
James G. Martin, Governor
William W Cobey, Jr., Secretary
MEMORANDUM
TO: Stephen B. Benton, Consistency Coordinator
THROUGH: Mike Street
William T Hogarth, Director
[phone]
FROM: Sara E. Winslow, Biologist Supervisor., epu
SUBJECT: CESAW-89-0492, Kitty Hawk Woods Partnership Fill
Wetlands Swales for Shopping Center and Residential
Development
DATE: 11 October 1989
The N. C. Division of Marine Fisheries is concerned with
this project as proposed due to the loss and/or impacts to
wetlands.
Project I - Proposed construction of a shopping center
portions of which would fill 4.15 acres of wetlands secondarily
connected to Kitty Hawk Bay, and 4.46 acres of wetlands which are
hydrologically separated from adjacent wetlands.
Kitty Hawk Bay functions as a nursery area for spot,
croaker, flounder, shrimp, blue crabs and other commercially
important species. Wetlands function as a water run-off and
nutrient buffer zone between upland areas and the receiving
waters. The cumlative impacts of the destruction of wetland
areas is well documented.
This agency would also point out that the LUP considers
these wetland areas as conservation. The proposal to fill these
areas is inconsistent with the LUP.
It appears that impacts to wetlands could have been avoided
in Project I. The mall area and roadways could have been moved
to an area of existing high ground. For example, (Sheet #4) in
ivision of Marine Fisheries
PO. Box 769 • Morehead City, North Carolina 28557-0769
An Equal Opportunity Affirmative Action Employer
"Mr. Benton
October 11, 1989
Page 2
Project I the "Future Commercial Development" area is existing
high ground.
Project II - Multi-family community - The same concerns
cited previously exist in this area as well. The proposed
roadway across the wetlands should be bridged rather than solid
fill placed in the wetland areas. The canal should be bridged
utilization
rather than a culvert installed.
movementuofert
may impact the flow of the canal
organisms in the area.
Projects IV,VII,IX and X - Low Density Residential From
it see Development - Same concerns
could exist.
moved outeoflthe wetlands some
of the proposed roadway
areas.
The Town of Kitty Hawk has stated that "development must
take special precautions to overcome any hazardous conditions and
maintain the lands intrinsic natural qualities".
The division would question if the mitigation plan is The
acre adequate for the loss of these wetland
be reclaimed as2a wetland also
farmland tract in Tyrrell County
raises a question. The existing wetlandsbincthe Kitty Hawk area
are quite different from thos that will Based on the reasons stated above this agency objects to the
project as proposed.

COASTAL
State of North Carolina
Department of Natural Resources and Community Development
. Division of Coastal Management
512 North Salisbury Street • Raleigh, North Carolina 27611
James G. Martin, Governor 10/03/89 George T. Everett
William W. Cobey, Jr., Secretary Director
Ms. Sara Winslow
NC DEH&NR
Division of Marine
Route 6, Box 203
Elizabeth City, NC
Fisheries
27909
REFERENCE: CESAW-89-0492
Applicant/Sponsor: Kitty Hawk Woods Partnership
Fill Wetland Swales for Shopping Center and Residential Dev.
Dear Ms. Winslow:
The attached U.S. Army Corps of Engineers Public Notice, dated
09/28/89 describing a federal project or permit is being circulated
to interested State agencies for comments concerning the proposal's
consistency with the North Carolina Coastal Management Program.
Please indicate your viewpoint on the proposal and return this
form to me before 10/24/89.
4 Si re y, ZI
Ste en B. Benton
Consistency Coordinator
REPLY V This office objects to the project as proposed.
Comments on this project are attached.
This office supports the project proposal.
No Comment.
Signe
Date rU ?-
Agency
P.O. Box 27687, Raleigh, North Carolina 27611-7687 Telephone [phone]

ie
November 16, 19 89
Dr. G. Wayne Wright
Regulatory Branch Chief
US Armv Corns of Engineers
P.O. Box 1890
Wilmington, '.North Carolina 28402-1889
RE: Kitty Hawk Woods, Public Notice C089-N-028-0492
Dear Dr. Wright:
Kitty Hawk Woods Partnership is the applicant s(- eking permits
to fill 16.42 acres and excavate 2.16 acmes of forested wetlands
on 1,400 acre ownership. As a result of t.be 11/8/89 Raleigh
::.r? j.-okilev. agencies, we %7aG'!'• de.C1(lr'.i? }.O Y,1(?(Z _fy tr- s
ari:li.ce.t.Rn ;;l.ic_ht:ly. The proposed c•haziges are s:?n*nar??ed ic;riof1v
as follow.
(-i.) N:_ ject 'T Ce;mnietcial: 7:?r.e c;:crixial 1?pp.11cati0l: st:i.i1. s4- 4vs
i:'•_1.71!a 4,15 acres of adjacent and 5,47 -+.cr s c, separated
tie 5_,.nds for roads, parking and foond.ations Eor i:he shopps_n• c.•er,cc,r..
f?v''?t''?7E?rr the 0.63 acre of ret enGi_or, nond e`c;`-?,.Vati on will b'-- shi ftnd
to u - ?.and locations within the project. it l.s. impor.. t:ant to ren?elnbe-u
that Tre 4.15 acre fill in the deep, wet :wales is at. th-e ^??r.t'?c,•Tt.-.
most te.rrdnul (US 1.5.8. bypass). This rema_ ring Swale sy'ste:a: will L-e
protectecA by open space requirements of the Town or by cons ervat _on
easements throughout the property
(2) Project II, . Multifamily; The.crginal application for tho
0.29 acres of fill for a road crossing it the adjacent wetlands is
vi.t:a.l ?tb this project. The request to fill 3.98 acres on separat-c:ci
swale:, for parking and townhouse footprints represented a design
conceived at the pre-permit meetings to save ridge soils and f.or.3
espec,%-a.lly the old growth canopy, trees. This o.r'ic,:ir_al. plan a.1.t
ap-plic;ation to fill or excavate 5.80 acres till stands, but th(:!
developer will see that conservation easements will be provided for
protection of ridge area as well as the deep, wetland swales runn-
ing south to Kitty Hawk Bay.
luttg M-M& ' bo&
ResidenMd Estate
POST OFFICE BOX 749 KITTY HAWK, NORTH CAROLINA 27949 919-261-2258

V
Dr. G. Wayne Wright
Kitty Hawk Woods
page 2
(3) Projects IV, VII, IX, and X, Residential: The Applica-
tion to fill 2.53 acres wetlands for the road and driveway cross-
ings is still necessary for these subdivisions. Convenants and
other deed restrictions will be prepared prohibiting future lot
buyers from making impacts on wetlands.on their respective lots.
(4) Mitigation Program: The heart of the mitigation plan is
to place significant portions of our undisturbed maritime forest
into public ownership. The shopping center transaction will pro-
vide the funds enabling the landowner+to donate the 135 acre tract
and as much of the 124 acre parcels in fee simple interest to the
Nature Conservancy or State. the 26 acre Tyrrell farm will be
restored to a forested wetlands condition under the guidance of
the USFWS and NCWRC to ensure "No Net Loss" of wetlands. In add-
ition, the proposed 320 'acre sale to the state will now be donated
probably in 60 acre increments beginning at the 135 acre tract and
continuing north until the entire 455 acres is in public ownership
over a period of 5 years. The bank liens on the 320 acre tract will
be paid off from residential income based on a 5 year absorption rate.
. I would like to address other subjects brought out in the
Raleigh meeting:
Avoidance and Minimi'z'ation- of Wetlands: Two pre-permit meet-
ings with review agency input resulted in the current plans as
presented in the application.' We feel that the.wetland impacts
are minimal for a tract of this size and are necessary to develop
the commercial, multifamily, and residential areas properly. Jim
Poteat, formerly with your staff, presided over these meetings and
will substantiate our conscientious effort to minimize wetlands
impacts.
Inconsistency With' Land Use Plan: Our attorney, Starkey
Sharp, and the town planner, Dave Monroe, had reviewed the
language in land use plan earlier and found no inconsistencies.
This problem now comes as a complete surprise, and we've asked
the Town to make an interpretation.
Kitty Hawk` %o&
Besli[erillal Estates -
N
Dr. G. Wayne Wright
Kitty Hawk Woods
page 3
Local Permits and Zoning: We feel that zoning changes,
subdivis on plans, health department permits should be hand-
led at the local level and should not be an issue with this
Federal permit.
Alternate Site: The attached letter from the shopping
center developer confirms our position that this is only
available site for a-shopping center of this size on the
Outer Banks.
Precedent: This permit issuance and mitigation plan
will not set a precedent for other developers because their
ability to donate a "precious natural resource" such as a
maritime forest is limited.. If it is a precedent, we, the
partnership feel it is a very good one.
Sinc 1 ,
Q ntin Bell, Project Manager
Kitty Hawk Woods partnership
QB/ ltta
Enc:
K1ttq Uawk`'%)0&
ResldenW Estates
- .T... ?.a 11 1A IInAn Q1A-7Fi?-225
November 14, 1989:
Mr. Quentin Bell
Kitty.Hawk Woods
P. O. Box .7,49
'Kitty-Hawk,--NC- 27949
IZE: Outer_Banks Level:Analysis
Dear Quest ti.n.
41* .
As 'a follow-up `to^our conversation today, I reviewed my files in
order to provide you with feedback on our analysis`of available
shopping center parcels on the outer Banks.
For reference'.purposes, a normal land requirement for a shopping
center the.size that'we have planned (180,000.,square feet) is
approximately`;18 acres.':Due to the open area restrictions imposed
by Nags 'Head,`"Kill Devil Hills and Kitty Hawk, the.land necessary
for such a`development is approximately,30 acres. We evaluated
every viable large tract from Nags Head north to Kitty Hawk and
found'only`one'other-;site (other than Kitty Hawk Woods) that would
provide the.required access and population density necessary for a
development.','---'The problem with the other site is that it is zoned
residential and Nags Head indicated that rezoning to commercial was
..not possible. Additionally, the property had wetlands areas on
parts of the property that would need to be mitigated in order to
design` the 'layout ,of the center.
To summarize,'we spent several months evaluating several possible
sites'on the island and.the only site that would work functionally
is the,Kitty Hawk Woods site.
.._I`'ldokIforward_to a resolution of the remaining issues and to our ,
initiating the construction of our project.
,Best p sonal.regards
Robert Mo ele r.
Vice President
RLMjr/jdm
SAM r-1.,..a f-4 A-- C..iro I(N1 • Rala;ab Nnrt1. (arnlina 77617 • M191 7R7-71'4)1 • Far Nn_ (91% 7R2-4RAR
114
SHARP, MICHAEL, OUTTEN AND GRAHAM
ATTORNEYS AT LAW MAR 1991
4820 NORTH CROATAN HIGHWAY
KITTY HAWK, NORTH CAROLINA 27949 ?tup??;i. ???? ???.,;",r •<
TELEPHONE: [phone] ?.en0
STARKEY SHARP MAILING ADDRESS:
STEVEN D. MICHAEL POST OFFICE DRAWER 1027
ROBERT L. OUTTEN KITTY HAWK, NC 27949
JOHN C. GRAHAM, III FACSIMILE: [phone]
M E M 0
TO: George Everett
FROM: Starkey Sharp
DATE: March 14, 1991
RE: Kitty Hawk Woods
I have confirmed the approval by talking directly with Jim Kelly in
Atlanta. Some other portions of the attached article are
inaccurate or misleading.
.3by ?
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DECPHA MICHAEL, OUTTEN AND GRAHAM
Q? { ?{? ATTORNEYS AT LAW
SUN[% t? 20 NORTH CROATAN HIGHWAY
AMEMM KITTY HAWK, NORTH CAROLINA 27949
TELEPHONE: [phone]
STARKEY SHARP MAILING ADDRESS:
STEVEN D. MICHAEL POST OFFICE DRAWER 1027
ROBERT L. OUTTEN KITTY HAWK, NC 27949
JOHN C. GRAHAM, III December 7, 1990 FACSIMILE: (919) 261-118A
Dr. Wayne Wright
Regulatory Branch Chief
U.S. Army Corps of Engineers
Post Office Box 1890
Wilmington, NC 28402-1890
Re: Kitty Hawk Woods
Dear Dr. Wright:
There have been a number of conversations over the past
several weeks which led up to the present position being taken by
the Wilmington District. In this letter, I would like to summarize
the communications.which have taken place by telephone so we will
have ;a written record. I would also like to repeat to you my
understanding of the position of the Corps based on the
conversation I had with Colonel SueYmann. Finally, I would like to
request certain information from the Corps.
Summary of Communication.
Several months ago, a meeting took place in the Wilmington
District office. This meeting was initiated by a call from the
governor's office. Among other things, we understood this meeting
was to determine whether any basis existed under which the Corps
would recommend approval of the application. It followed
notification to us by the Corps that the Wilmington District would
recommend denial of the original plan.
Following this meeting, the Corps proposed three alternative
designs for the commercial site and asked the applicant to respond
to these different design proposals. The applicant replied by
using one of the three proposed plans from the Corps and making
modifications to that proposal. This plan was delivered to the
Corps in connection with an additional meeting at the Wilmington
office.
. After reviewing this plan, the Corps contacted the applicant
during the month of October. In this contact, you indicated that
with. certain changes and `conditions, this last plan could be
acceptable to the Corps. You indicated that the Corps was inclined
to conditionally approve this plan subject to review and response

Dr. Wayne Wright
December 7, 1990
Page 2
on certain points. You provided us with a list of conditions along
with a newly drafted version of the plan showing a proposed change
relating to parking. As an answer to this change and the
conditions you outlined, the applicant replied and responded to
each condition.
On November 9th, the applicant provided an additional written
response following-up certain telephone conversations. In this
response, we discussed two of the conditions in detail. Those two
conditions involved the donation of the 455 acre maritime forest
and the parking change that had been proposed by the Corps. All of
the other conditions had been agreed upon.
In the week following the Thanksgiving holiday, the applicant
learned from Floyd Lupton that the Corps had decided to terminate
the discussion process by recommending denial of the permit. On
Friday, November 30th, I received a telephone call from Colonel
Suermann in which he confirmed his decision to recommend denial.
Position of the Corps.
Regarding the original application, the Corps specified that
the problems with that application focus upon the commercial site
plan for the proposed shopping center and the wetland impacts in
two wetland slews which had been proposed to be filled. These
impacts total approximately 4 acres. The stated position of the
Corps was that the Wilmington District did not feel the applicant
had met the practicable alternative test when a review of the 4
acres of impacts was considered in the context of the rest of the
application.
In the subsequent discussions leading to the last proposed
plan, no changes to the other portions of the application were
required. That is to say, all changes focused upon the commercial
site plan and revisions that were made to it as a result of
discussions taking place between the Corps and the applicant. We
have received no written response from the Corps dealing with the
last proposal made by the applicant. Since the applicant accepted
all but two of the conditions stated in the last letter received,
we must assume the position of the applicant on the remaining two
conditions results in the present recommendation for denial. These
conditions are reviewed below.
1. The Corps required as a condition of the approval of the
last proposed plan that the applicant arrange for the up front
donation of the 455 acre maritime forest. Because of changes
in the site plan, the applicant incurred substantial reduction
in the sales price for the commercial site. This reduction
resulted in a lack of funds available to pay any releases
which would be required in order to make the donation. The
applicant remains willing to make the donation but cannot
guarantee a release payment which would be necessary so the
property could be conveyed free of mortgages. The applicant
i
Dr. Wayne Wright
December 7, 1990
Page 3
proposed a method by which the donation could be accomplished,
but the donation would not be an up front donation. The
applicant also requested that the Corps allow the applicant to
deal with the State of North Carolina on this issue and
determine whether the State would be satisfied with the
approach taken by the applicant to the donation of the forest.
We are assuming that the Corps, in recommending denial,
is identifying the maritime forest donation as one of the
Corps' conditions and requirements, as opposed to a condition
or requirement that is imposed by the State of North Carolina
through the 401 Certification process. We request
clarification of this point.
2. The Corps proposed a shift in the alignment of certain
buildings in the last proposed shopping center site so
additional wetlands would not be impacted. The result of this
shift was a reduction in the available parking places for the
shopping center site. The applicant replied by citing certain
requirements of the proposed tenants of the shopping center
and the other reductions in wetland impacts that occurred
leading up to the final plan.
We are assuming the Corps takes the position that without
the shift of alignment with the results referred to above the
applicant does not meet the practicable alternative test. We
request clarification of this point. We also ask that you
acknowledge that the "offensive" 4 acres of wetland impacts
from the original shopping center design had been reduced in
this last design by half and that the additional shift of
alignment would further reduce the wetland impacts in the 4
acres of connected wetlands by 1 acre or less.
Request for Information.
We now understand the Corps is in the process of preparing
documents for transmittal to the Regulatory Branch, Operations
Division, in Atlanta. The documents will contain a recommendation
of denial of this application. We also understand the documents
will contain a set of findings which are made by the Wilmington
District.
The applicant, through this letter, is officially requesting
a copy of those findings. We also ask for a copy of any other
documents connected with this matter which we are entitled to
received.
Second, we ask that you provide us with some type of
explanation of the process for further review of this application.
We would like to know whether we are entitled to a hearing prior to
a decision being made by Atlanta.. If such a hearing is within our
rights, we hereby notify the Corps of our request for such a
hearing.
. Y
Dr. Wayne Wright
December 7, 1990
Page 4
In connection with this matter, we would like to know the time
schedule under which the review will take place and the person or
persons we should contact in connection with this review.
Sincerely yours,
Starkey Sharp
SS/jve
cc: Mrs. Edythe McKinney, N.C. Department of Natural Resources
Mr. George Everett, N.C. Dept of Natural Resources
and Community Development
Mr. Rob Moseley, Capital Centre Development, Ltd.
Mr. F. Roger Page
Ms. L. K. "Mike" Gantt, U.S. Fish and Wildlife Service
Mr. Robert F. McGhee, U.S. Environmental Protection Agency
Mr. Floyd Lupton
v...
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
IN REPLY REFER TO
Regulatory Branch
December 14, 1990 ?r*-
3 3.?
SUBJECT: File No. CESAW-C089-N-028-0495
Mr. Starkey Sharp
Attorney at Law
4820 North Croatan Highway
Kitty Hawk, North Carolina 27949
Dear Mr. Sharp:
I

Reference your letters of November 21, 1990, and December 7, 1990,
regarding the permit application of Kitty Hawk Woods Partnership to construct
a shopping center and residential development in wetlands of Kitty Hawk Woods
at Kitty Hawk, Dare County, North Carolina.
I am notifying you that I have forwarded the referenced permit matter, by
letter of this date, to the South Atlantic Division Commander for a final
decision. I am furnishing the Division Commander a draft copy of a decision
document (Environmental Assessment, Statement of Findings, Section 404(b)(1)
Analysis, and Finding of No Significant Impact), stating the District's
position on the issues in this matter. My recommendation to the Division
Commander is for denial of the permit as presently proposed. The draft
decision documents explain the reasons for my recommendation. Since this is
an internal memorandum which is not final at this time, you should contact the
Division office, if you wish to obtain a copy of the draft document.
As requested in your letter of December 7, 1990, I have also notified the
Division Commander of your request to meet with him prior to his decision on
this matter. You should contact Mr. Jim Kelly, telephone [phone], of
his staff, to discuss the arrangements for such a meeting.
I will respond to other assertions and questions in your letters. With
regard to your belief that there has been an intentional delay in reaching a
decision in this matter on the part of my staff, I would remind you that we
had made a decision in early August, 1990, and conveyed that decision to you.
Your refusal to accept this decision precipitated the request, apparently at
your urging, from the Governor for a further meeting to discuss possibilities
for a resolution of this matter to the benefit of your client. Every
additional delay which has occurred since that time has been due directly to
our attempts to reach a resolution which might be more favorable to your
clients. I, therefore, totally reject any implication that my staff or I have
imposed any "intentional" delay in this matter. This has been entirely due to
the fact that the decision which we were prepared to make 4 months ago was not
the decision which you and your clients wanted.
A
-2-
Your assertion that Dr. Wright had led you to believe that we were
prepared to accept your most recent proposal is correct only in that it was
clearly stated to you by Dr. Wright by telephone and in his subsequent letter
of October 24, 1990, that our acceptance depended upon the five conditions in
that letter being met. It was clearly stated that the five points were
necessary for favorable consideration. Of the five points, your response and
that of the shopping center developers met only two of them, and one of these
only marginally. These were your agreements to make the breaks in the ridge
separating the two major wetland areas of the site and the single letter from
Sovran Bank stating that they could not finance any of the alternatives to
your project. We had stated that written documentation that financing could
not be obtained for the alternatives would have to be furnished and the
response was a single letter from a single potential lender, minimally meeting
our requirement.
The other three points were not met, including further reduction of the
parking area in wetlands on the shopping center site, reduction of 4 acres of
wetlands in the multifamily residential development, and donation of the 455
acres of maritime forest to the State. Your client's refusal to further
reduce the parking for the shops and grocery to the minimum required was
unacceptable. We had agreed to allow Wal-mart to have the parking required by
them for their store. However, we will not allow Wal-Mart to dictate the
terms or requirements for other parking in the area when this other parking
impacts significant wetlands in the area. Wal-Mart will not dictate the terms
and conditions of a permit. Your response regarding the 4 acres of wetland in
the multifamily residential area was not satisfactory, since you were only
agreeing to drop it from your application and to leave it to the developer to
pursue permits later for this area. This in no way assures that these
wetlands are protected at this time but only delays that issue until a later
date. Finally, your proposals with regards to the donation of the 455 acres
of maritime forest in no way ensures that the donation will occur. In fact,
you stated very clearly that the entire arrangement could be nullified, if the
mortgage holder foreclosed at a later date. The entire arrangement is,
therefore, subject to the actions of the mortgage holder. The permit could be
issued and the property foreclosed upon soon after with all the agreements to
preserve the 455 acres nullified and the land entirely reverting to control by
the mortgage holder. Since the land donation was a part of the mitigation
package from the early negotiations with the Federal and State agencies and
subsequently was made a condition of the approval of the Environmental
Protection Agency and the National Marine Fisheries Service, we will not agree
to leave the details of the donation to negotiation with the State or to issue
the permit under the circumstances spelled out in your letter.
With regard to your statement of the reductions in the acreage of wetlands
in the shopping center area, the reduction in acreage of the two main wetlands
areas being affected by the shopping site between your last revision and the
-3-
prior revision was a reduction from 6.98 acres to 5.25 acres or 1.73 acres.
The further reduction required by the reduced parking condition furnished in
our letter of October 24, 1990, was approximately 0.9 acres which would have
reduced the impacts on the two major areas from 5.25 to 4.35 acres. The small
pockets of wetland scattered throughout the high ground areas of the shopping
center would continue to be adversely impacted in addition to the above
discussed two major wetland areas. These total approximately 2.7 acres in
addition to the above stated acreages.
In summary, the District's position on the permit application is that the
shopping center and residential development on this site are not water-
dependent activities and do not avoid wetlands or sufficiently minimize
impacts on wetlands to the maximum extent practicable through the utilization
of less damaging alternatives. The District does believe that alternative
designs are available which would further reduce the impacts. We acknowledge
that these designs would likely be less profitable to the applicant providing
lesser degrees of exposure and other disadvantages compared to the present
proposals. However, we believe that the significance of the wetlands in this
area requires that the impacts be reduced substantially in accordance with the
requirements of the Section 404(b)(1) guidelines, in order for a permit to be
not contrary to the public interest. We do not believe that the mitigation
offered by the applicant can be accepted in the place of or can be used to
alleviate the failure to avoid wetlands and minimize impacts upfront.
I hope that this responds to your questions as stated in your
correspondence.
Sincerely,
Thomas C. Suermann
Lieutenant Colonel,
Corps of Engineers
District Engineer

-4-
Copies Furnished:
Mrs. Edythe McKinney
Assistant Secretary, Environment
North Carolina Department of Environment,
Health, and Natural Resources
Post Office Box 27687
Raleigh, North Carolina, 27611-7687
Dr. George Everett, Director
North Carolina Division of Environmental
anagement
"Post Office Box 27687
Raleigh, North Carolina, 27611-7687
Mr. Roger Schecter, Director
North Carolina Division of Coastal
Management
Post Office Box 27687
Raleigh, North Carolina, 27611-7687
Ms. L. K. Gantt
Field Supervisor
U.S. Fish and Wildlife Service
Post Office Box 33726
Raleigh, North Carolina, 27636-3726
Mr. Robert F. McGhee, Chief
U.S. Environmental Protection
Agency - Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
Mr. Larry Hardy
National Marine Fisheries Service
Habitat Conservation Division
Pivers Island
Beaufort, North Carolina 28516
- s
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
ROW, IN REPLY REFER TO December 14, 1990
(.,-',`??
Regulatory Branch
SUBJECT: File No. CESAW-C089-N-028-0495 ID g V90
E??v. aFraviUU'^t?ys;}}?. ?;u?i?
Mr. Starkey Sharp
Attorney at Law
4820 North Croatan Highway
Kitty Hawk, North Carolina 27949
Dear Mr. Sharp:
...............
r, 60--l
Reference your letters of November 21, 1990, and December 7, 1990,
regarding the permit application of Kitty Hawk Woods Partnership to construct
a shopping center and residential development in wetlands of Kitty Hawk Woods
at Kitty Hawk, Dare County, North Carolina.
I am notifying you that I have forwarded the referenced permit matter, by
letter of this date, to the South Atlantic Division Commander for a final
decision. I am furnishing the Division Commander a draft copy of a decision
document (Environmental Assessment, Statement of Findings, Section 404(b)(1)
Analysis, and Finding of No Significant Impact), stating the District's
position on the issues in this matter. My recommendation to the Division
Commander is for denial of the permit as presently proposed. The draft
decision documents explain the reasons for my recommendation. Since this is
an internal memorandum which is not final at this time, you should contact the
Division office, if you wish to obtain a copy of the draft document.
As requested in your letter of December 7, 1990, I have also notified the
Division Commander of your request to meet with him prior to his decision on
this matter. You should contact Mr. Jim Kelly, telephone [phone], of
his staff, to discuss the arrangements for such a meeting.
I will respond to other assertions and questions in your letters. With
regard to your belief that there has been an intentional delay in reaching a
decision in this matter on the part of my staff, I would remind you that we
had made a decision i-n early August, 1990, and conveyed that decision to you.
Your refusal to accept this decision precipitated the request, apparently at
your urging, from the Governor for a further meeting to discuss possibilities
for a resolution of this matter to the benefit of your client. Every
additional delay which has occurred since that time has been due directly to
our attempts-to reach a resolution which might be more favorable to your
clients. I, therefore, totally reject any implication that my staff or I have
imposed any "intentional" delay in this matter. This has been entirely due to
the fact that the decision which we were prepared to make 4 months ago was not
the decision which you and.your clients wanted.
,a
-2-
Your assertion that Dr. Wright had led you to believe that we were
prepared to accept your most recent proposal is correct only in that it was
clearly stated to you by Dr. Wright by telephone and in his subsequent letter
of October 24, 1990, that our acceptance depended upon the five conditions in
that letter being met. It was clearly stated that the five points were
necessary for favorable consideration. Of the five points, your response and
that of the shopping center developers met only two of them, and one of these
only marginally. These were your agreements to make the breaks in the ridge
separating the two major wetland areas of the site and the single letter from
Sovran Bank stating that they could not finance any of the alternatives to
your project. We had stated that written documentation that financing could
not be obtained for the alternatives would have to be furnished and the
response was a single letter from a single potential lender, minimally meeting
our requirement.
The other three points were not met, including further reduction of the
parking area in wetlands on the shopping center site, reduction of 4 acres of
wetlands in the multifamily residential development, and donation of the 455
acres of maritime forest to the State. Your client's refusal to further
reduce the parking for the shops and grocery to the minimum required was
unacceptable. We had agreed to allow Wal-mart to have the parking required by
them for their store. However, we will not allow Wal-Mart to dictate the
terms or requirements for other parking in the area when this other parking
impacts significant wetlands in the area. Wal-Mart will not dictate the terms
and conditions of a permit. Your response regarding the 4 acres of wetland in
the multifamily residential area was not satisfactory, since you were only
agreeing to drop it from your application and to leave it to the developer to
pursue permits later for this area. This in no way assures that these
wetlands are protected at this time but only delays that issue until a later
date. Finally, your proposals with regards to the donation of the 455 acres
of maritime forest in no way ensures that the donation will occur. In fact,
you stated very clearly that the entire arrangement could be nullified, if the
mortgage holder foreclosed at a later date. The entire arrangement is,
therefore, subject to the actions of the mortgage holder. The permit could be
issued and the property foreclosed upon soon after with all the agreements to
preserve the 455 acres nullified and the land entirely reverting to control by
the mortgage holder. Since the land donation was a part of the mitigation
package from the early negotiations with the Federal and State agencies and
subsequently was made a condition of the approval of the Environmental
Protection Agency and the National Marine Fisheries Service, we will not agree
to leave the details of the donation to negotiation with the State or to issue
the permit under the circumstances spelled out in your letter.
With regard to your statement of the reductions in the acreage of wetlands
in the shopping center area, the reduction in acreage of the two main wetlands
areas being affected by the shopping site between your last revision and the
-3-
prior revision was a reduction from 6.98 acres to 5.25 acres or 1.73 acres.
The further reduction required by the reduced parking condition furnished in
our letter of October 24, 1990, was approximately 0.9 acres which would have
reduced the impacts on the two major areas from 5.25 to 4.35 acres. The small
pockets of wetland scattered throughout the high ground areas of the shopping
center would continue to be adversely impacted in addition to the above
discussed two major wetland areas. These total approximately 2.7 acres in
addition to the above stated acreages.
In summary, the District's position on the permit application is that the
shopping center and residential development on this site are not water-
dependent activities and do not avoid wetlands or sufficiently minimize
impacts on wetlands to the maximum extent practicable through the utilization
of less damaging alternatives. The District does believe that alternative
designs are available which would further reduce the impacts. We acknowledge
that these designs would likely be less profitable to the applicant providing
lesser degrees of exposure and other disadvantages compared to the present
proposals. However, we believe that the significance of the wetlands in this
area requires that the impacts be reduced substantially in accordance with the
requirements of the Section 404(b)(1) guidelines, in order for a permit to be
not contrary to the public interest. We do not believe that the mitigation
offered by the applicant can be accepted in the place of or can be used to
alleviate the failure to avoid wetlands and minimize impacts upfront.
I hope that this responds to your questions as stated in your
correspondence.
Sincerely,
Thomas C. Suermann
Lieutenant Colonel,
Corps of Engineers
District Engineer
N
-4-
Copies Furnished:
Mrs. Edythe McKinney
Assistant Secretary, Environment
North Carolina Department of Environment,
Health, and Natural Resources
Post Office Box 27687
Raleigh, North Carolina, 27611-7687
Dr. George Everett, Director
North Carolina Division of Environmental
anagement
ost Office Box 27687
Raleigh, North Carolina, 27611-7687
Mr. Roger Schecter, Director
North Carolina Division of Coastal
Management
Post Office Box 27687
Raleigh, North Carolina, 27611-7687
Ms. L. K. Gantt
Field Supervisor
U.S. Fish and Wildlife Service
Post Office Box 33726
Raleigh, North Carolina, 27636-3726
Mr. Robert F. McGhee, Chief
U.S. Environmental Protection
Agency - Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
Mr. Larry Hardy
National Marine Fisheries Service
Habitat Conservation Division
Pivers Island
Beaufort, North Carolina 28516

NORTH CAROLINA COAS fA
• 3223-4 Highway 58 •
June 11,
Mr. Wayne F
U.S. Army C
P.O. Box 1E
Wilmington,
28402-1890
ERATION
COASTAL RESOURCES CO&I
Re: Kitty Hawk Woods Shopping Center Project, Dare-County
Dear Mr. Wright:
The federal requirement that wetlands must not be filled if
alternatives are available is the foundation of wetlands
protection in this country. This regulation must be stringently
adhered to or we will loose our remaining wetlands. Issuance of
a permit for Kitty Hawk Woods shopping center project would
establish a dangerous precedent that undermines the requirement
that wetlands not be filled if alternatives are available.
Evaluation of alternatives has two components: (a) is there
an alternative location for the proposed project, and (b) is
there an alternative or modified project for the site with less
wetland loss. Both of these issues must be considered if we are
to maintain our remaining wetlands. The traditional presumption,
as stated in regulation, is that there are alternatives for non-
water-dependent projects such as shopping centers. Wetland
mitigation is to be used only where there are no alternatives to
wetland loss, and not to justify avoidable wetland loss.
In the present case, it is clear that the project can be
modified by rotating the parking area to substantially reduce the
wetlands loss and still provide the same commercial area and
parking area. The developers argue (June 4, 1990 submittal) that
this alternative is not viable because the major proposed
business client for the shopping center says it will not locate
there with such a design. This argument must be rejected.
Please consider:
(1) 'Finding different business clients for a site is clearly a
reasonable alternative. If the agencies responsible for
managing wetlands accept the argument that the range of
practicable alternatives includes only those acceptable to
one particular company, then the evaluation of alternatives
is meaningless.
(2) The fact that a business refuses to locate at a site unless
it gets everything a certain way is clearly not compelling
evidence that no other alternatives are possible.
g? printed on recycled paper
Mr. Wayne Wright
June 11, 1990
Page 2.
(3) The attached article about essentially the same argument
being used for a golf course in Florida (which EPA is
strongly opposing) is an example of the endless series of
projects in wetlands for shopping centers, hotels,
subdivisions, golf courses, etc. that can occur if this
precedent is established.
With regard to the implication in the June 4 submittal that
this project has been driven by the need and requirements for a
Wal-Mart store, the attached letter from Wal-Mart in February
saying it had decided to not put a store in Kitty Hawk is
interesting. Apparently Wal-Mart has been tentative.
The requirement to consider alternative locations for the
project goals has also not been met. The option of having the
same amount of commercial area distributed in two or more
locations has not been realistically considered. Here too, the
developers' underlying assumption that they need certain
businesses located together in a certain type of layout with
certain visibility defeats the basic intent of evaluating
alternatives. If this assumption is accepted, then other
developers will have a strong incentive to invest in very large
projects in wetlands since they can argue there are no
alternative locations with the exact desired characteristics.
This sets in motion a precedent that is contrary to the intent of
the law and that will bring tremendous pressures on the
regulatory agencies. The attached Florida golf course case is an
example of this issue also.
Last week in a program on public TV, the developers of Kitty
Hawk Woods said that they would consider a golf course
development project if the shopping center permit were denied.
The threat that the developers will do something worse if they
don't get what they want on this permits is also included in the
June 4 submittal. However, this threat should not affect the
permit decision. The basic issue is that there are alternatives
with less imaa.t on wetlands. not that there may be alternatives
with more imaact.
The fear that the critical maritime forest will be ravaged
if this permit is denied is unfounded. About 740 acres of the
site (including all the proposed 455 acre donation) has strict
low density zoning that prohibits golf courses and other large
land clearing. This zoning only allows residences on lots with
at least 80,000 square feet of high ground. Since the maritime
forest is about 50 to 80 percent wetlands, there would be very
Mr. Wayne Wright
June 11, 1990
Page 3.
large lots. This zoning also requires extensive studies to
minimize and restore damage to vegetation from construction.
In addition to local authority, the Corps and State can exert
protection by requiring individual 404 permits and 401
certifications for any construction.
The "donation-"
This permit decision may be complicated by the offer to
donate 455 acres of maritime forest if agencies agree to permit.
If the developers' arguments about evaluating alternatives are
accepted in this case, then the same arguments will have to be
accepted in other cases. But, there is no legal authority to
require any kind of "donation" of natural areas for all the other
cases that will follow. The federal regulations are unambiguous
on this point -- the permit should be denied if there are viable
alternatives with less wetland loss. If the permit is issued, it
will set a precedent that could easily cause unnecessary loss of
thousands of acres of wetlands.
It is my understanding that a school is located near the
proposed mitigation site in Tyrrell County. I have talked with
personnel from several agencies about the possibility that
altering the hydrology of the field will increase the water table
and adversely affect the school, but apparently the detailed
mitigation plan has not been developed and no one has evaluated
this possibility. If the permit is not denied on other grounds,
the possible effect of hydrological modification on adjacent
areas should be evaluated before a permit decision is made. It
would be a debacle if the mitigation site turned out to be
inappropriate.
Thank you for carefully considering these comments. I am in
the process of obtaining additional documents about this
application and plan to submit additional comments.
Very Sincerely,
J ?^
Jim Kennedy
Environmental Scientist
cc: US EPA, Region IV
US Fish and Wildlife Service
US National Marine Fisheries Service
US Senator Terry Sanford
Congressman Walter B. Jones
NC Senator Marc Basnight
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WAL-NiAR`P
WAL-MART STORES, INC.
CORPORATE OFFICES
BENT0NVILLE, ARKANSAS 72716
Thomas P. Seay
Senior Vice President
Real Estate and Construction
[phone]
February 14, 1990
Mrs. Jay E. Murphy
Box 494
Kitty Hawk, NC 27949
Re: Your Letter to Mr. Glass
dated February 2, 1990
Dear Mrs. Murphy:
Thank you for the above referenced letter concerning a Wal-Mart in Kitty Hawk, NC.
We at Wal-Mart share your concern for our ecological system.
I have been to Kitty Hawk and looked at a possible Wal-Mart site; however, after
visiting your area we decided not to locate a Wal-Mart in your community. I
suspect that you have heard rumors from a trip that was made back in May of 1989.
Best of success iii preserving our natural maritime forest at Kitty Hawk.
Sincerely,
v
Thomas P. Seay
TPS:rlh
cc: Curtis Barlow
Mike Bingham
David Glass

IN REPLY REFER TO
Regulatory Branch
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
October 24, 1990
SUBJECT: File No. CESAW-CO89-N-028-0495
Mr. Starkey Sharp 11 2::') 199Sharp, Michael, Outten and Graham "?
Post Office Drawer 1027 A114,,
Kitty Hawk, North Carolina 27949 Li ; Y
ION
Dear Mr. Sharp: EC
Sfe 7,
S: vember S, - 990

O CT

Reference our telephone conversation of October 22, 1990, regarding the
revised plans for the shopping center associated with the Kitty Hawk Woods
permit application.
We are enclosing a copy of our latest suggested revision of your plan to
include the points discussed. The discussion covered five points which we
stated would be necessary for favorable consideration. These are:
a. The grocery and small shop portion of the shopping center should be
shifted toward the front of the property on the highway to reduce the parking
area in wetlands. This change should reduce the total parking spaces from
your proposed 978 to approximately 780. This should allow enough parking to
meet the approximate requirements of the anchor store itself plus enough to
meet the local requirement for the grocery and the small shops. This should
save approximately 0.9 acres of additional wetland in this area.
b. Mitigation would be required on the high ridge separating the two main
wetlands areas in the form of two or three connections through this ridge to
connect the easternmost wetland area to the westernmost area. These
connections would have to be taken down to the approximate bottom elevation of
the two adjacent wetland areas.
c. A reduction of filled wetlands in the residential areas of
approximately 4 acres which has been previously discussed with you and Quentin
Bell would have to be accomplished. We have been assured at previous meetings
that this could be done. In addition, some mechanism must be employed to
ensure that no other wetlands on the entire property will be filled or
adversely modified, other than as authorized by any permit which might be
issued pursuant to the current application.
d. The donation to a public agency or group of the approximately 455-acre
maritime forest/wetland area would have to be accomplished by some mechanism.
You indicated that you could furnish a written indication of how this could be
accomplished. In addition, the mitigation area in Tyrrell County would still
be required.
JI.
-2-
e. Written documentation must be furnished to support your claims in our
meeting on October 11, 1990, that financing cannot be obtained for any project
designed generally in accordance with the alternative plans which we furnished
you on September 28, 1990.
Please furnish your written response to these points by November 5, 1990.
A final decision on our position on the permit will be made following receipt
of your comments.
If there are questions regarding this matter, please contact me at
telephone [phone].
Sincerely,
G. Wayne Wright
Chief, Regulatory Branch
Enclosure
Copies Furnished (with enclosure):
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
U.S. Environmental Protection
Agency - Region IV
Wetlands Section - Water Quality Branch
345 Courtland Street, N.E.
Atlanta, Georgia 30365
National Marine Fisheries Service
Habitat Conservation Division
Pivers Island
Beaufort, North Carolina 28516
Mr. William Mills
Division of Environmental Management
North Carolina Department of
?j Environment, Health and
Natural Resources
Post Office Box 27687
Raleigh, North Carolina 27611-7687
Mr. Steve Benton
Division of Coastal Management
North Carolina Department of
Environment, Health and
Natural Resources
Post Office Box 27687
Raleigh, North Carolina 27611-7687
Mr. Rob Moseley
Capitol Centre Development
5400 Glenwood Avenue, Suite 300
Raleigh, North Carolina 27612
Mr. Todd Miller
North Carolina Coastal Federation
Hadnot Creek Farm
3223-4 Highway 58
Swansboro, North Carolina 28584
COMPARISON OF KITTY HAWK WOODS AND K & W LAND CO.
Kitty Hawk Woods K & W Land Co.
Location Kitty Hawk, Dare Co. Havelock, Craven Co.
Project Shopping Center, Commercial Retail
Residential Roads Center and Parking
and Driveways,
Multifamily Housing,
and Parking
Wetlands Impact 19.11 acres 20 acres
(some isolated, others (tributary to East
tributary to Croatan Prong Slocum Creek
Sound) and McCotter's
Canal)
Water Dependent
No
No
Alternatives Analysis
Wetlands Mitigation
Land Trade or
Satisfactory completed
23 acre wetlands
creation in Tyrrell
County
455 acres of Maritime
Forest donated to the
State
Did not demonstrate
that practicable
alternative
unavailable.
None proposed.
Site now owned by
Forest Service.
Applicant would
trade 1354 acres
of privately-owned
land for 514 acres
of National Forest
land.
chart/BM-D-3
SHARP, MICHAEL, OUTTEN AND GRAHAM
ATTORNEYS AT LAW AUG 27 1990
SEASCAPE PROFESSIONAL BUILDING Vil u E:V?J??t??, Y
KITTY HAWK, NORTH CAROLINA 27949 i ?f N7ALIAANAGEMENT
TELEPHONE: [phone] Ra!619h, NC
STARKEY SHARP MAILING ADDRESS:
STEVEN D. MICHAEL POST OFFICE DRAWER 1027
ROBERT L. OUTTEN KITTY HAWK, NC 27949
JOHN C. GRAHAM, III STATUS REPORT FACSIMILE: [phone]
U. S. ARMY CORPS OF ENGINEERS
PERMIT APPLICATION
KITTY HAWK WOODS PROJECT
August 23, 1990
We are providing this report to some of the persons, firms or
agencies who have been following the progress of the permit
application for the Kitty Hawk Woods property. The permit, if it
is granted, will provide the authority to fill the necessary
acreage to complete the shopping center site as well as permits for
a number of other areas within the residential portions of the
Kitty Hawk Woods project.
We have been waiting for the Corps to make its decision on the
permit. Before making the decision, the Corps had been waiting for
the Environmental Protection Agency to complete its review. Last
winter and spring, the EPA had indicated that it did not recommend
approval of the project. After extensive review, which included
meetings and documents submitted to the EPA, we had received the
indication that the EPA would change its position and withdraw its
objections to this permit application. We had expected to receive
this result in a letter from the EPA sometime in June. We finally
received the letter dated August 17th on Monday, the 20th of
August.
To summarize the position cf the permit, we have now received the
endorsement of the EPA as well as the various agencies of the State
of North Carolina (including the governor). The only official
agency that continues to recommend denial is the U.S. Fish and
Wildlife Service. Based on our knowledge of the Service, we have
not expected them to change their position. While we do not have
any direct assurances from the Corps, we are very optimistic that
we will receive notice from the Corps that they intend to issue the
permit. The Corps should make its decision and notify us of that
decision before the end of August. The Corps has acknowledged that
they are waiting for no additional outside information, having
received the EPA letter.
Should the Corps decide to issue the permit, they will provide
notice to the Fish and Wildlife Service. The Service has an

STATUS REPORT
Page 2
August 23, 1990
opportunity to delay the permit by several weeks. While we expect
some initial delaying tactics by the Fish and Wildlife Service, we
do not expect these delays to extend beyond the first few weeps
after notice from the Corps. We base this expectation on the fact
that extended delays and interagency appeals would require official
action at a higher level than the Raleigh field office of the U..
Fish and Wildlife Service. It would appear difficult to obtain
that kind of approval in the face of the various endorsements and
letters we have received favoring the permit. In any case, there
is no response that we can make at this time until the Corps takgs
the next step.
It is also important to note that, once the Corps provides notice
that they intend to issue the permit, there will be additional
meetings required in which the details of the permit are defined.
The permit in this application is very complicated and will require
a number of extensive conditions. Although we know the general
nature of all of these conditions, the details must be documented
before the actual permit is issued.

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION EY
340 COURTi,.ll ND STREET
ATi,ANTA: 41EQR$iA 30363
AUG 17 1990
RErt 4WM_D/WQMR/TjP
Lt. Colonel Thomas
District Engineer
U. S. Array Corps of
P.O. Box 1890
C. Suermann
Engs nears
Wilmington, North C aro? inn '281+07
SUBJECT t Kitty Hawk Woods Partnership
(Public Notice Number
Dear Colonel Suermann:
This is in response to the subject public notice concernii-ig the .
construction of a shopping center, multi-family housing, resi.derjLt- lai
roads and driveway's in kitty Hawk, Dare County, ?forth Carolina. As a
result of this activity, approximately 16.42 acres of wetlands will
be filled (9.62 acres for co=aercial development arxd 6.8 acres for
residential development).
To initigate for the wetland lass, the applicant is offering to doge: to
455 acres of very high quality dune-swaie maritime forest as a nature
preserve. An additional 124 acres of the same system would a14;:> hp
donated as a conservation easement. The applicant also prop_8
restore 26-acres of bottomland hardwood forest as off-site aC =.';. ?r$
in Tyrrell. County, North Carolina.
T',--t Environmental Protection Agency (EPA) has made a thorough
ev lua.tion of the subject permit application. It appears to us that
the proposed project has reasonably passed the alternatives analysis.
In addition, it is our opinion that the 16.42 acres of wetlands that
will be lost will be adequately compensated for by the re.-creation of
26 acres of bottomland hardwood wetlands. We believe thathis
wetland re-creation proposal has a. resonable euccess of developing a
functional replacement hardwood system. The donation of 455 acres of
Kitty Hawk Woods was also a positive influence in our clpc ision making
process.
Consequently, because of these factors, we have reevaluate: our.
Previous opposition to this permit application, and do not object to
the issuance of a permit for the subject project provided the
proposed mitigation is included as a condition of the permit.
Sincerely,
?2 of z"
4 l• f ? f ?Vr+f ,? ...
f
Robert F. McGhee, Chief.
Water Quality Management Branch
e,a STATE
STATE OF NORTH CAROLINA
OFFICE OF THE GOVERNOR
RALEIGH 27603-8001
JAMES G. MARTIN
GOVERNOR
August 1, 1990
Lt. Colonel.Thomas C. Suermann
U. S. Army Corps of Engineers
Wilmington District
P. O. Box 1890
Wilmington, North Carolina 28402-1890
Dear Lt. Colonel Suermann:
Thank you for your June 28 letter and the opportunity to express
my views of the application for a permit from the U. S. Army Corps of
Engineers to fill wetlands for construction of a commercial and
residential development in Kitty Hawk Woods. I understand that this
proposal has received a lot of attention due in part to the size of the
project and its potential effects on the Kitty Hawk community, as well
as the significance of the proposed donation of 455 acres of undeveloped
maritime forest to the State of North Carolina.
I support the position of my Secretary of Environment, Health, and
Natural Resources, Bill Cobey, and concur with his Department's finding
that the donation of maritime forest, conservation easements, and
restoration of wetlands in Tyrrell County would provide environmental
benefits that far outweigh the potential environmental costs resulting
from the project. I see this,-as. an opportunity to preserve a large part
of one of the finest remaining examples of maritime forest on the East
Coast. I understand that the:'project is also consistent with the Town
of Kitty Hawk's strict policies that were designed to protect Kitty Hawk
Woods.
I applaud all parties involved with modifying
project to assure that development activities will
on the maritime forest ecosystem while at_the same
preservation of this unique natural area'in Kitty
cc: /William W. Cobey, Jr.
Roger N. Schecter
Sincerely,
J es G. Martin
the design of this
have minimal impacts
time allowing for the
Hawk.

Sr v
STATE OF NORTH CAROLINA
OFFICE OF THE GOVERNOR
RALEIGH 27SM-8001
JAMES G. MARTIN
GOVERNOR
August 1, 1990
Lt. Colonel Thomas C. Suermann
U. S. Army Corps of Engineers
Wilmington District
P. O. Box 1890
Wilmington, North Carolina 28402-1890
Dear Lt. Colonel Suermann:
Thank you for your June 28 letter and the opportunity to express
my views of the application for a permit from the U. S. Army Corps of
Engineers to fill wetlands for construction of a commercial and
residential development in Kitty Hawk Woods. I understand that this
proposal has received a lot of attention due in part to the size of the
project and its potential effects on the Kitty Hawk community, as well
as the significance of the proposed donation of 455 acres of undeveloped
maritime forest to the State of North Carolina.
I support the position of my Secretary of Environment, Health, and
Natural Resources, Bill Cobey, and concur with his Department's finding
that the donation of maritime forest, conservation easements, and
restoration ofwetlands in Tyrrell County would provide environmental
benefits that far outweigh the potential environmental costs resulting
from the project. I see this as an opportunity to preserve a large part
of -one-of- the --ftnes-t -rema-i-ning examples-of -mar-i-t-ime forest -on-- the -Eases - -
Coast. I .understand that the project is also consistent with the Town
of Kitty Hawk's strict policies that were designed to protect Kitty Hawk
Woods.
I applaud all parties involved with modifying the design of this
project to assure that development activities will have minimal impacts
on the maritime forest ecosystem while at the same time allowing for the
preservation of this unique natural area in Kitty Hawk.
cc: William W. Cobey, Jr.
Roger N. Schecter
Sincerely,
J es G. Martin
l
J

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. sox 1890
WILMINGTON, NORTH CAROLINA 26402.1890
June 28, 1990
IN REPLY REFER TO
Honorable James C. Martin
Governor of North Carolina
Raleigh, North Carolina 27611
Dear Governor Martin;
the construct on of a: co a s opp ng center, a}..,?lldanz,ialcxelQpi?nz
in-as'£'l:?t'Ci Wyf-thel*ftCy H&wk"'o0i?vdl'-Wia' near 'Tt?tty Hawk, Dare County; North
Carolina: -Tti?s?p3'o ect would involve the filling of approximately 17 acres of
wetlands throughout the Kitty Hawk Woods area for the project. In mitigation
for the filling of the wetlands area,-the applicant has proposed to create --
approximately 23 acres of wetlands in a location near Columbia, Tyrrell
County, and to donate approximately 455 acres of maritime forest and wetlands
in the Kitty Hawk Woods area to a conservation entity for preservation.
For approximately a year, my staff and I have been considering the
issuance or denial of a permit under Sect,?,o ? Q ,??.?h jmAr-Ac
Having gathered all the data and information available in this case as
well as the comments of Federal, State, and local agencies and groups, as
well as the public, I am preparing to make a decision on this permit in the
immediate future. Although the North Carolina Division of Environmen
Management bas issued its Section 401 Water Quality Certification aid t:-d
North Carolina Division of Coastal Management has issued the Coastal
Management Consistency Determination, I understand that you have personally
taken an interest in this case due to the significance of the potential
donation of the maritime forest area for preservation. Prior to making my
final decision in this matter, I am inquiring as to whether you wish to
fiA nish an views on attar of the issues in t matter, but ?eciej,lV-.on-tht
Issue 0 tha gn canes o e4.onat?on a e?tMta..zha... .G GA of North Carolina.
Since I expect to make a decision soon, I would appreciate receiving any
_ax regaion of your _views_ on or before July 13 , 1990
If 1, or my staff, can be of any assistanec to your office in this or in
any other matters in the future, please do not hesitate to contact me.
Sincerely,
L'.
Thomas C. Suermann
Lieutenant Colonel,
Corps of Engineers
District Engineer

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1890
WILMINGTON, NORTH CAROLINA 28402.1890
June 28, 1990
IN REPLY REFER TO
Honorable James C, Martin
Governor of North Carolina
Raleigh, North Carolina 27611
Dear Governor Martin;
the construction of a co a shopping center} XdeAt1&1.eYlw?raet???
i wellAtYda-v-the--ittq?Nawk'4?tT?t'""ea Want 'tty Hawk, Dare County, North
Caro na. This pTS ec would involve the filling of approximately 17 acres of
wetlands throughout the Kitty Hawk Woods area for the project. In mitigation
for the filling of the wetlands area,-the applicant has proposed to create
approximately 23 acres of wetlands in a location near Columbia, Tyrrell
County, and to donate approximately 455 acres of maritime forest and wetlands
in the Kitty Hawk Woods area to a conservation entity for preservation.
For approximately a year, my staff and I have been considering the
issuance or denial of a ermit under Section le eX- Aa
Having gathered all the data and information available in this case as
well as the-comments of Federal, State, and local agencies and groups, as
well as the public, I am preparing to make a decision on this permit in the
immediate future, Although the North Carolina Division of Environmental
Management has issued its Section 401 Water Quality Certification and:_the
North Carolina Division of Coastal Management has issued the Coastal
Management Consistency Determination, I understand that you have personally
taken an interest in this case due to the significance of the potential
donation of the maritime forest area for preservation. Prior to makdng my
final decision in this matter, I am inquiring as to whether you wishto
furnish any views on any of the issues in t s tter,.but eapeci._oxL_tw
issue 'o tth'e"significance of the otiat on ed.ta, the .&t a of North Carolina.
Since I expect to make a decision soon, I would appreciate receiving any
expression of your views on or before July 13, 19901
If I, or my staff, can be of any assistance to your office in this or in
any other matters in the future, please do not hesitate to contact me.
Sincerely,
L".
Thomas C. Sue=a=
Lieutenant Colonel,
Corps of Rngineers
District Engineer.
1
'b aa r-- -F__
Lt. Colonel Thomas C. Suermann
U.S. Army Corps of Engineers
-Wilmington District
P.O. Box 1890
Wilmington, NC 28402-1890
Dear Lt. Colonel Suermann:
71q`G0
Thank you for your June 28 letter and the opportunity to express my views on
the application for a permit from the U.S. Army Corps of Engineers to fill
wetlands for construction of a commercial and residential development in Kitty
Hawk Woods. I understand that this proposal has received a lot of attention
due in part to the size of the project and its potential effects on the Kitty
Hawk community, as well as the significance of the proposed donation of 455
acres of undeveloped maritime forest to the State of North Carolina.
I support the position of my Secretary of Environment, Health and Natural
Resources, Bill Cobey, and concur with his Department's finding that the
donation of maritime forest, conservation easements, and restoration of
wetlands in Tyrrell County would provide environmental benefits that far
outweigh the potential environmental costs resulting from the project. I see
this as an opportunity to preserve a large part of one of the finest remaining
examples of maritime forest on the East Coast. I understand that the project
is also consistent with the Town of Kitty Hawk's strict policies that were
designed to protect Kitty Hawk Woods.
Lt. Colonel Suermann
Page 2
I applaud all parties involved with modifying the design of this project to
assure that development activities will have minimal impacts on the maritime
forest ecosystem while at the same time allowing for the preservation of this
unique natural area in Kitty Hawk.
Sincerely,
James G. Martin
cc: William W. Cobey, Jr.
Roger N. Schecter
JUL 25 199f;HARP, MICHAEL, OUTTEN AND GRAHAM
'{?` (?J p[ ?1[ ?j u ATTORNEYS AT LAW
AIMINISTRATIRE S? wffS SECTMN SEASCAPE PROFESSIONAL BUILDING
KITTY HAWK, NORTH CAROLINA 27949
TELEPHONE: [phone]
STARKEY SHARP MAILING ADDRESS:
STEVEN D. MICHAEL POST OFFICE DRAWER 1027
ROBERT L. OUTTEN KITTY HAWK, NC 27949
JOHN C. GRAHAM, III July 20, 1990 FACSIMILE: [phone]
Lieutenant Colonel Suermann
Regulatory Branch
U.S. Army Corps of Engineers
Wilmington District
Post Office Box 1890
Wilmington, NC 28402-1890
Dr. Wayne Wright
Regulatory Branch Chief
U.S. Army Corps of Engineers
Wilmington District
Post Office Box 1890
Wilmington, NC 28402-1890
Re: Kitty Hawk Woods, File No. CESAW-C089-N-028-0495
Gentlemen:
I would like to thank you and your staff members for attending
an on site meeting at the Kitty Hawk Woods project on July 18th.
To summarize .our meeting, we undertook a short field trip and
showed you the most critical areas of the application by taking you
through the commercial site and a portion of the donation area.
After that, we toured the remaining portions of the project by
automobile. In my office, we conducted "a general discussion of the
entire project, addressed certain issues involving the commercial
site and answered questions.
The purpose of this meeting was not to provide an in-depth
analysis of the entire project. Rather, it was our hope that the
on site meeting would provide you and your staff members with an
understanding of the project that can only be obtained by a
firsthand, personal visit.
You explained to us that the Corps is now waiting for a
written response from the Environmental Protection Agency. You
indicated that you would begin to review the Kitty Hawk Woods
project at a staff level immediately after you receive the EPA
response and that the staff would make recommendations so that an
expeditious decision would be provided from the Corps. You also
4

Lieutenant Colonel Suermann
Dr. Wayne Wright
July 20, 1990
Page2
explained the process that might develop, depending upon the
position taken by other commenting agencies.
Because of the large volume of material that has been
submitted as a part of this application, it would. not be
appropriate in this letter to attempt to summarize the application
and the position of the various participants. However, we did feel
that it would be useful to provide an outline or list of the
various documents and letters that have been submitted, as well as
a list o.f the events that have occurred while reviewing this
application. Those lists are attached to this letter.
Sincerely yours,
Starkey Sharp
SS/jve
Enclosures
cc: Mr. Robert "Mike" McGhee, U.S. Environmental Protection Agency
?Ms. L. K. "Mike" Gantt, U.S. Fish & Wildlife Service
Dr. George Everett, N.C. Department of Natural Resources and
Community Development

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9ORTH CAROLINA COASTAL FEDERATION
ladnot Creek Farm • 3223-4 Highway 58 • Swansboro, North Carolina 28584 • [phone]
June 18-, 1990 4;
Dr. Wayne Wright JUN 19 Regulatory Branch
U.S. Army Corps of Engineers COASTAL RESOURCn C0,film
P.O. Box 1890
Wilmington, North Carolina 28402-1890
Re: Kitty Hawk Woods Shopping Center Project, Dare County
(Second Comments)
Dear Dr. Wright:
This letter is a follow-up to my previous letter of June 13.
Please consider the following points:
As shown in the attached newspaper article, the State of
North Carolina has openly put pressure on federal agencies in an
attempt to get approval of this project, which the State
apparently recognizes in counter to the wetland protection
program. At a press conference announcing the deal, George
Everett, current Director of the Division of Environmental
Management, is quoted as saying:
"We want to send a message to federal agencies that there's
more here than maintaining wetlands. . . . If it weren't
for the maritime forest we'd have said 'No deal."'
These comments indicate the State considers the donation of 455
acres of maritime forest as reason to abandon the basic wetland
program. However, under the existing legal framework, if the
project involves an unnecessary loss of wetlands, then no
"donation" (whether money or natural resources) can make it
necessary.
As noted in my previous letter, the problem with the "deal"
is that it sets a precedent for abandoning the traditional
requirement that wetlands not be filled if alternatives are
available.
There is widespread agreement that it would physically be
possible to rotate the proposed shopping center to greatly reduce
the wetland filling for the shopping center. This has been
pointed out by both the U.S. Fish and Wildlife Service and the
Kitty Hawk Town Planner (see attached letter).
printed on recycled paper
Dr. Wayne Wright
June 18, 1990
Page 2.
The developers provide no tangible evidence that the
proposed shopping center cannot be rotated for economic reasons
and, in fact, admit that there is evidence that stores can be
successful with such a design. The developers admit that a Food
Lion store in the area is successful even though it is located in
a shopping center perpendicular to the highway as would occur
with the rotated design for Kitty Hawk Woods (page 4 of the June
4 submittal). In an effort to negate the damaging evidence of
the Food Lion store, the developers claim that the "local shops
have a high amount of turnover" in the shopping center with the
Food Lion. However, they provide no tangible data to back up
this speculation. Turnover is normally high for local shops in a
seasonal resort situation and the developers provide no evidence
that this shopping center has higher turnover than others in the
area. In addition, the turnover of local shops can also be taken
as evidence that the market for shopping centers is already over
built. Thus, there is no tangible evidence to over come the
presumption that alternatives exist for a non-water-dependent
project.
In addition, the developers admit there are other sites in
the area that appear to be suitable for similar stores such as K-
Mart (page 14 of the June 4 submittal), but reject these sites as
not meeting the specific conditions desired for the Wal-Mart
based shopping center.
In short, approval of this project sets an unambiguous and
unrestricted precedent that wetlands can be filled with no
tangible justification other than that the developers simply want
filling for a particular project. This allows the developers to
set such an extremely narrow definition of the purpose of a
project that evaluation of alternatives becomes meaningless. In
the present case, the developers define the project purpose as
providing within a 20 mile stretch of highway the specific large
site area and other conditions desired by Wal-Mart, even though
other stores would likely be satisfied with less environmentally
demanding conditions. The precedent set by this project appears
to be even more damaging than the controversial Old Cutler Bay
golf course project in Florida that EPA is strongly opposing.
Underlying the controversies about Kitty Hawk Woods shopping
center and Old Cutler Bay golf course is the economic issue of
whether the U5 Army Corps of Engineers and EPA are responsible
for approving a project in order to assure that a developer makes
a profit on land. I believe the answer to this issue is clear.
' i Dr. Wayne Wright
June 18, 1990
Page 3.
The Corps and EPA are not responsible for assuring that
developers make a profit, particularly when the developers pay
high prices for wetlands. The price for wetlands property should
be set by market forces consistent with the wetland protection
regulations; implementation of the regulations should not be
adjusted to fit the price paid by developers. Here too, the
wetlands management program becomes a farce if the guiding
principle is to make sure developers make a profit no matter how
much they paid for the land. If developers paid so much that
they cannot make a profit in compliance with the wetland
regulations, then that is their problem. If I make a bad
investment in the stock market, the government doesn't bail me
out. Likewise, we should not sacrifice wetlands to bail out
developers who make bad land investments.
The crisis of the savings and load bail out program shows
the absurd conclusion of unrestrained land speculation. Wetland
losses should not be added to the already enormous public cost of
excessive real estate speculation.
Thank you for considering these comments. I am still
attempting to obtain further documents relevant to this project
and plan to submit additional comments.
Very Sincerely,
Jim Kennedy
Environmental Scientist
cc: US EPA, Region IV
US Fish and Wildlife Service
US National Marine Fisheries Service
Senator Terry Sanford
Congressman Walter B. Jones
Senator Marc Basnight
SHARP, MICHAEL, OUTTEN AND GRAHAM
R. - ATT4RN EYS AT LAW
00 SEA SCAPE PROFESSIONAL BUILDING
KITTY HAWK, NORTH CAROLINA 27949
r TELEPHONE., [phone]
10" olio -
STARKEY SHARP MAILING ADDRESS.
,STEVEN D. MICHAEL POST OFFICE DRAWER 1027
ROBERT L. OUTTEN 1 KITTY HAWK, NC 27949
JOHN.C. GRAHAM, III ! FACSIMILE. [phone]
June 20, 1990
T? LAI
Dr, G;. Wayne Wright
Chief, Regulatory Branch 1990
DeP;artment of the Army ??
Wilmington District To M
Carps of Engineers
-#iilmington, NC 28402-1890
Subject: File No..CESAW-0089-N-028_
Kitty Hawk Woods
Diea•r Dr. Wright: -..\
We received
a COPY of a
Fdideration addressed to you invol?jn eat
@ }."eater from the Coastal
I:u view of the timin $ the?Xit ty Hawk Woods
review g of the letter It project.
process,, T' felt an \ xhis critical stage of the
?.mtaedi?te nonpsy e was necessa-ry.
The letter refers t
Mart indicatin a //nd provi $ that trial fi?iart will of a letter from Wai-
n lCirty Hawk. As I t be participating in the site
1)ot have a you're aware, l?e <?Pi)licant
i in this case does
dealing w diraect relit ddiship w4th Wal-Mart. ng\'centeY The applicant is
relationship developer who in turn 1183 a
however, we h e Possible'-t-n---an ta for the sho
however, w been pr vided with documentation hatngshowstthe
relationship 'th-Wa 1-Ma
Enc1o'9ed th thi
forth the etter is a copy of a document setting
term - _?hE??asic lease arrangements be
and .the shopping-erg-t-e- developer. tween document Mart
particular attention to its reG nt datNreshuld view of this document with
that have been raised by the other letterothat wassmy ai any concerns
The second You.
response to the point we would like to make will provide a gene other comments of In the case of the Coastal Federation letterl
efforts s this aPPlidation, the applicant has
comply with the request of gone to other
..participating
.participating review agencies. the Corps and other
concluding the This has involved a lengthy
inPcu application process. It has also involved major
in terms of engineering and legal costs, to say

N
Dr. G.' Wayne Wright
'June ,20, 1990
.Page 2
°nothing of the financial costs incurred as a result of the delays.
Throughout this process, the applicant has tried to cooperate with
the.. Corps and with all other agencies aad at no time has the
applicant resorted to political pressure or behind the.scenes
manoeuvering in an effort to influence these permit process.
We are now faced with a letter which has been mailed to
several respected politicians. The letter contains inaccurate
information. It is delivered at a very critical time in the review
process and at a very late date considering the fact that this
permit review has taken more than one year. The applicant was not
provided a copy of the letter by the Coastal Federation nor has the
Coastal Federation ever contacted the applican directly in an
attempt to learn more about the proposed project.
We find all of this very offensive. We lso feel that it
insults the integrity of the applicant 4 wel as the various
review agencies who have participated in thfs--uy complicated and
?,leugthy permit process. \
We have reviewed the letter dat d?Ju,V. 11th fro the Coastal
Federation. The letter misstate,%and mijinterprets the June 4th
submittal from the applicant. order;it;hat we will be sure to
'have responded to all points p`resented",-to you. We will reply
separately to the various Para grgph?a ,contained in the letter.
Please let us know if this ?f the apprEpriate action at this time.
Si 6e-rely yours,
1 ?>
SS/jve
Enclosure
cc: U.S. En ron
U.S. Fi
National
U.S. Senat"
Congressman
N.C. Senator
Starkey Sharp
Agency
te Service
eries Service
Sanford
B. Jones
Basnigh.t

Walter
Mark
i
f SHARP, M.ICHAEL,' OUTTEN AND GRAHAM
ATTORNEYS AT LAW
SEA SCAPE PROFESSIONAL BUILDING
KITTY HAWK, NORTH CAROLINA 27949
TELEPHONE: [phone]
STARKEY SHARP MAILING ADDRESS:
STEVEN D. MICHAEL POST OFFICE :DRAWER 1027.
ROBERT L. OUTTEN KITTY HAWK, NC 27949 -
JOHN C. GRAHAM, III FACSIMILE: [phone]
June 21, 1990
Dr. G. Wayne Wright
Ch1ef, Regulatory Branch
U.-S: Army Corps of Engineers ,
Post Office Bois 1890'
Wilmington, NC 28402-1890
RE: File No. CESAW-,CU89-N-028-0495
Kitty Hawk Woods
Dear Dr. Wright:
We received a copy of a letter dated June 11, 1990, from the
North Carolina Coastal Federation. The letter is addressed to the
Corps and it addresses certain matters involving the Kitty Hawk
`,foods project. The North Carolina Coastal Federation is not one of
the commenting agencies or responding agencies with whom we have
been communicating over' the past one year period involving this
permit application; however, because we feel that their letter is
inaccurate and contains a number of misstatements, we felt that it
would be appropriate to provide a point by point response.
GENERAL RESPONSE
'The letter contains a number of statements of fact which do
not accurately follow the true fact scenario as it applies to the
Kitty Hawk Woods project. In addition, the letter contains
conclusions by the Coastal Federation about the wetland regulation$
and the standards and requirements that must be met in oxde'r to
obtain a permit. In many cases, we do not agree with the Coastal
Federation's interpretation of the regulations and their.meaning.
'In other cases, we £eel.that. the slant that ha.s been placed on the
factual representations of the letter are equally misleading. Both
of these aspects are revealed in several obvious places and are
also revealed in vary subtle distinctions.
As stated in the documentation provided. in `our June 4th'
submission, we feel that the project meets the requirements of the
regulations and in most cases exceeds those requirements.

Dr. G. Wayne Wright
June 21, 1990
Page 2
ALTERNATIVE DESIGNS
The- Goas.tal Federation states that "it is clear that the
project can be modified by rotating the parking area...". 'The
applicant has addressed this possible design alternative in
considerable detail in the June 4th submission. The reasons that
prohibit such a design are dismissed on three basis by the Coastal
Federation:
1. It is suggested that a different business client be
sought by the applicant rather than limiting the
application and the design to the desires of one
particular company.'
2. The Coastal Federation feels that the particular desires
of.a business client are not compelling evidence in terms
of other alternatives.
3. The Coastal Federation appears to be referring to the
"bad precedent" argument.
In response, we note that the applicant has considered a
number of other business clients in the process of developing this
particular permit application. Because a relationship exists with
a particular client, we have been obligated to disclose the nature
of that relationship and to focus on the desires of that client;
however, the presentation throughout the permit application and
specifically in the June 4th submission does not limit the focus to
the single client question. The arguments we.have presented that
prohibit the rotation of the project as an alternate design apply
to any shopping center that might be located on this property.
Regardless of the tenant or the developer, market factors have
a major effect on the design of developments. As much as we would
like to require developers to use particular locations (rather than
accepting a developer's choice of location), a project will
generally not be constructed unless the developer feels that the
marketplace provides a good opportunity for success. If the
developer's data and information indicate that highway orientation
is critical, the developer will not invest in the project unless
that orientation is available.
In the case of the Kitty Hawk Woods site, the applicant has
dealt, with several interest developers, as well as several
interested tenants or ultimate users of the proposed site. During
the process of consideration of this property, it has been reviewed
by Belk, K-Mart and Wal-211art, to name a few of the individual large
anchor possibilities. The applicant has also been approached by
several developers, including the present proposed developer. We
do not feel that it is appropriate or a requirement of :the

Dr. G. Wayne Wright
June 21, 1990
Page 3
regulations that the Corps consider the choice of developers or
business clients or, the reasons that justify the applicant's
decisions on those who have ultimately been selected.
We have tried to direct the focus of our arguments away from
A particular business client and have referred in general terms to
retail anchors and to general shopping; center standards. The
implication by the Coastal Federation that we are catering to a
particular client or that we have failed to look for other business
clients as an alternative is a misinterpretation of the facts.
This -argument also misinterprets the requirements of the
-;regulations. In response to the bad precedent that might be'established as
compared to the Florida golf course, we refer to our arguments on
,,that subject in prior submissions. In summary, we feel that-t'he
permit would not establish,a bad precedent and would indeed proseat
an excellent precedent or' standard for other developments. On this
subject, we have obtained the agreement and endorsement of the
appropriate officials of the State of North Carolina. We have also,
pointed out the. potential for bad precedent by the rejection of
this permit application. In this context, we refer to the type of
cooperation that the Memorandum of Agreement contemplates between
the reviewing agencies and the applicant when cooperation to the
degree that is evidenced by this application process results in a
complete denial. There is little precedent for other developers to
provide the same cooperation.
If it is necessary for the applicant to distinguish the Kitty
Hawk Woods site from the golf course site in Florida, plea:.te
provide us with specific information concerning. that application
and w.e will try to make, the necessary distiactions. Barring such
aii.approach, we feel that any reference to the golf course is
Florida and any comparisons to this site are inappropriate. W.
certainly do not feel that it is appropriate to snake comparisons
based upon newspaper articles.
Finally, in this section of the Coastal Federation letter
reference is made to a letter from Wal-Mart dated February 14,
19904 Enclosed with this letter, you will find a copy of a letter
from Wal-Mart dated May 17, 1990. Certain financial information
from the letter has been deleted; however, from the balance of the
letter, you can see that Wal-Mart ha,s entered an agreement with the
devoloper.
Please note the second to the last paragraph of the Wal-Mart
latter.. Because of Wal-Mart's concerns about press releases and
other publicity, we have been reluctant to openly disclose this
information; however, in view of the letter that has been
circulated by the Coastal Federation, we felt it.was necessary to
j

Dr. G. Wayne Wright
June 21, 1990
Page 4
provide a copy, of the-agreement. I would appreciate it if you
would respect the confidentiality of this material.
ALTERNATIVE LOCATIONS
The argument by the Coastal Federation on this point again
misinterprets and misquotes.the discussion of this subject in the
June 4th submission. This argument was addressed in several places
in that submission. One discussion involved the "retail shopping
e.:perience" which is described in the response to the Fish and
Wildlife Service. The Coastal Federation would interpret the
applicant's position to be the argument that, because the applicant
owns a large area of wetland, it has no alternative except to
develop within that wetland. This has never been the position of
the applicant' and we have not attempted to use that argument.
Indeed, although the application was not initiated on the
understanding. that the alternative analysis approach would be
necessary, we feel that we have met and exceeded the requirements
of the regulations on this point in our prior submission.
The -arguments of the Coastal Federation are illustrative of a
very important concept involving the permit application process and
the standards that are established by the Memorandum of Agreement
(MOA). In the case of any given application, it can be argued
that, somewhere, another alternative exists. For any development,
it can be argued that the plans can be redesigned. For.any given
u,,-:,e, it can be argued that such a use is inappropriate for the
locality or unnecessary in the particular marketplace. Obviously,
if this is the approach which is established by the .40A, there is
no point in considering any application; however, the MOA clearly
contemplates that permits will be issued and establishs standards
for considering permit applications. This means that the type of
approach that is suggested by the Coastal Federation is
unmistakably contrary to the intent of the MOA.
THREATS OF ALTERNATIVES
The Coastal Federation refers to the possibility of other
types of development as a threat that has been made .by the
applicant. First, in misquoting a .Public Television article, the
Coastal Federation states that the developer is threatening to
construct a. golf course. Second, the type of development that
would be permitted under the current zoning regulations in Kitty
Aawk.is again misquoted..
The applicant in this instance has not made'any threats of any
.kind. The applicant has been approached by developers who desire
to purchase the property located within the maritime forest for the
purpose of golf course development. As is pointed out in

Dr. G. Wayne Wright
June 21, 1990
Page 5
particular detail in the various submissions, the present zoning
does not allow for golf course type of development in the Kitty
Hawk woods.
Instead, the applicant has pointed out what type of
development would be permitted on the lands owned by the applicant
.in Kitty Hawk without a zoning change. Using the existing zoning
standards, the bulk of the maritime forest can be developed,
providing for fifty to linty residential hoinesites where there are
presently no plans under the proposed application format.
Considerable effort was made to point out the type of development
that can occur under the existing zones.and the fact that such
development would be necessary in order to pay the debt obligations
existing against the property.
This information has not been submitted as a threat. Rather,,
as required by the MOA, it is important that the reviewing agencies
consider,the cumulative effect of the shopping center project and
the effect on the locality if the permit is denied. The IROA
clearly contemplates this type of 'consideration. It is pointed out
in°the last submission that it is not necessary to consider other
types of development such as golf courses. It is sufficient to
know that under the present zoning regulations for Kitty Hawk
certain impacts would be permitted. 'We have provided examples of
those impacts in.the form. of comparison with certain other areas
within the-Kitty Hawk Woods'project that are developed or proposed
i:or development.
We also argue in all submissions that the value of saving the
maritime forest from these impacts far outweighs any loss that
might be considered to occur through granting; the permit. It would
be interesting to know whether the Coastal Federation is
conclusively endorsing development of the Kitty Hawk Woods maritime
forest with the resulting impacts on the surrounding wetlands 'and
upland habitats, along with the development of the commercially
zoned parcel 'without impacting wetlands. If tile Corps has any
doubt of the possibility of development, we suggest that the Corps
accept comments from the appropriate officials of the Town of Kitty
Hawk as to.what would be permitted under their zoning ordinance.
THE DONATION
Argument of the Coastal Federation on this point is difficult
to respond to because it is not coherent. In terms of requiring 1
donation through legal authority, the argument has no merit.
Nowhere has it been argued by the applicant that any donation is
required. Indeed, the applicant feels that the combination of all
of the areas of mitigation in this application results in far more
mitigation, under any aspect of the definition, than would be
required. It 'is. unlikely that other developers will present

SUMMATION
Dr. G. Wayne Wright
June 21, 1990
Page 6
similar offers of donation since no other areas of maritime forest
of this magnitude exist. The Coastal Federation is taking the
donation out of the context of its presentation and out of the
historical context of the development of this permit application.
We. again argue that any precedent .that is established by the
donation is a good precedent.
TYRRELL COUNTY MITIGATION SITE
The speculation. on the possible adverse effect on a local
school in Tyrrell County resulting from the proposed wetland
mitigation is totally without merit. Any legitimate concerns of
this kind or any"other kind relating to the site in Tyrrell County
will be acknowledged.. If the Corps has any concerns, please
identify them so that we will have the opportunity to prepare a
professional and factually-based response.
It is the position of the applicant that the Coastal
Federation has misinterpreted the federal regulations as they apply
to this application and it has misinterpreted the proposal by the
applicant. We feel this results in a direct misrepresentation
throughout the letter. When considering the Coastal Federation's
letter of June 11th as to its content, no raspoise would appear to
be required or merited on the part of the appilicant; however, in
consideration of the recipients of the letter and to avoid the
possibility that some or all of the contefzts of the letter would be
presented as "evidence" against the application:, we felt it was
necessary to provide the response set forth above. We refer.,
however, to our more detailed discussion of all of'these points as'
set forth in.the June 4th submission along with the multitude of
other documents and supporting data for this application..
Sincerely yours,
Starkey Sharp-
SS/jve
Enclosure
cc: U.S. Environmental Protection Agency
U.S. Fish and Wildlife Service
". National'Marine Fisheries Service

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?: .?;;;,'!•.? NORTH CAROLINA COASTAL FEDERATION
Hadnot Creek Farm • 3223-4 Highway 58 • Swainsboro, North Carolina 28584 • [phone]
June 11, 1990
Mr. Wayne Wright
U.S. Army Corps of Engineers
P.O. Box 1890
Wilmington, North Carolina 28402-1890
Re: Kitty Hawk Woods Shopping Center Project, Dare County
Dear Mr. Wright:
The federal requirement that wetlands must not be filled if
alternatives are available is-the foundation of wetlands
protection in this country. This regulation must be stringently
adhered to or we will loose our remaining wetlands. Issuance of
a permit for Kitty Hawk Woods shopping center project would
establish a dangerous precedent that undermines the requirement
that wetlands not be filled if alternatives are available.
Evaluation of alternatives has two components: (a) is there
an alternative location for the proposed project, and (b) is
there an alternative or modified project for the site with less
wetland loss. Both of these issues must be considered if we are
to maintain our remaining wetlands. The traditional presumption,
as stated in regulation, is that there are alternatives for non-
water-dependent projects such as shopping centers. Wetland
mitigation is to be used only where there are no alternatives to
wetland loss, and not to justify avoidable wetland loss.
Alternative designs for-this site
In the present case, it is clear that the project can be
modified by rotating the parking area to substantially reduce the
wetlands loss and still provide the same commercial area and
parking area. The developers argue (June 4, 1990 submittal) that
this alternative is not viable because the major proposed
business client for the shopping center says it will not locate
there with such a design.. This argument must be rejected.
Please consider:
(1) 'Finding different business clients for a site is clearly a
reasonable alternative. If the agencies responsible for
managing wetlands accept the argument that the range of
practicable alternatives includes only those acceptable to
one particular company, then the evaluation of alternatives
is meaningless. .
(2) The fact that a business refuses to locate at a site unless
it gets everything a certain way is clearly not compelling
evidence that no other alternatives are possible.
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' Mr. Wayne Wright
June 11, 1990
Page 2.
(3) The attached article about essentially the same argument
being used for a golf course in Florida (which EPA is
strongly opposing) is an example of the endless series of
projects in wetlands for shopping centers, hotels,
.subdivisions, golf courses, etc. that can occur if this
precedent is established.
With regard to the implication in the June 4 submittal that
this project has been driven by the need and requirements for a
Wal-Mart store, the attached letter from Wal-Mart in February
saying it had decided to not put a store in Kitty Hawk is
interesting. Apparently Wal-Mart has been tentative.
The requirement to consider alternative locations for the
project goals has also not been met. The option of having the
same amount of commercial area distributed in two or more
locations has not been realistically considered. Here too, the
developers' underlying assumption that they need certain
businesses located together in a certain type of layout with
certain visibility defeats the basic intent of evaluating
alternatives. If this assumption is accepted, then other
developers will have a strong incentive to invest in very large
projects in wetlands since they can argue there are no
alternative locations with the exact desired characteristics.
This sets in motion a precedent that is contrary to the intent of
the law and that will bring tremendous pressures on the
regulatory agencies. The attached Florida golf course case is an
example of this issue also.
Threats of alternatives,
Last week in a program on public TV, the developers of Kitty
Hawk Woods said that they would consider a golf course
development project if the shopping center permit were denied.
The threat that the developers will do something worse if they
don't get what they want on this permits is also included in the
June 4 submittal. However, this threat should not affect the
permit decision. The basic issue is that ther are ?ternatives
w
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The fear that the critical maritime forest will be ravaged
if this permit is denied is unfounded. About 740 acres of the
site (including all the proposed 455 acre donation) has strict
low density zoning that prohibits golf courses and other large
land clearing. This zoning only allows residences on lots with
at least 80,000 square feet of high ground. Since the maritime
forest is about 50 to 80 percent wetlands, there would be very
Mr. Wayne Wright
June 11, 1990
Page 3.
large lots. This zoning also requires extensive studies to
minimize and restore damage to vegetation from construction.
In addition to local authority, the Corps and State can exert
protection by requiring individual 404 permits and 401
certifications for any construction.
This permit decision may be complicated by the offer to
donate 455 acres of maritime forest if agencies agree to permit.
If the developers' arguments about evaluating alternatives are
accepted in this case, then the same arguments will have to be
accepted in other cases. But, there is no legal authority to
require any kind of "donation" of natural areas for all the other
cases that will follow. The federal regulations are unambiguous
on this point -- the permit should be denied if there are viable
alternatives with less wetland loss. If the permit is issued, it
will set a precedent that could easily cause unnecessary loss of
thousands of acres of wetlands.
Tyrrell County mitigation s-.te.
It is my understanding that a school is located near the
proposed mitigation site in Tyrrell County. I have talked with
personnel from several agencies about the possibility that
altering the hydrology of the field will increase the water table
and adversely affect the school, but apparently the detailed
mitigation plan has not been developed and no one has evaluated
this possibility. If the permit is not denied on other grounds,
the possible effect of hydrological modification on adjacent
areas should be evaluated before a permit decision is made. It
would be a debacle if the mitigation site turned out to be
inappropriate.
Thank you for carefully considering these comments. I am in
the process of obtaining additional documents about this
application and plan to submit additional comments.
Very Sincerely,
J
Jim Kennedy
Environmental Scientist
cc: US EPA, Region IV
US Fish and Wildlife Service
US National Marine Fisheries Service
US Senator Terry Sanford
Congressman Walter B. Jones
NC Senator Marc Basnight
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WALMART
WAL-MART STORES, INC.
CORPORATE OFFICES
BENTONVILLE, ARKANSAS 727.16
Thomas P. Seay
Senior Vice President
Real Estate and Construction
[phone]
February 14, 1990
Mrs. Jay E. Murphy
Box 494
Kitty Hawk, NC 27949
Re: Your Letter to Mr. Glass
dated February 2, 1990
Dear Mrs. Murphy:
Thank you for the above referenced letter concerning a Wal-Mart in Kitty Ilawk, NC.
We at Wal-Mart share your concern for our ecological system.
I have been to Kitty Hawk and looked at a possible Wal-Mart site; however, after
visiting your area we decided not to locate a Wal-Mart in your community. I
suspect that you have heard rumors from a trip that was made back in May of 1989.
Best of success in preserving our natural maritime forest at Kitty Hawk.
Sincerely,
Thomas P. Seay
TPS:rlh M
cc: Curtis Barlow
Mike Bingham
David Glass
14ORTH CAROLINA COASTAL FEDERATION
ladnot Creek Farm • 3223-4 Highway 58 • Swansboro, North Carolina 28584 • [phone]
March 13, 1990 ;.
Mr. William Cobey, Secretary 1-41990
DEHNR
P.O. Box 27687 DIV.DFEf??iRO???t??? file$1GE1 WT
EdD
Raleigh, North Carolina 27611
Dear Secretary Cobey,
Since we did not have time to discuss wetlands at our last
meeting, I thought it might be valuable to summarize for you our
reservations about the wetlands and maritime forest land deal for
the Kitty Hawk Woods project in Dare County. Developers propose
to donate to the State about 460 acres of prime maritime forest
if they can fill about 16 acres of wetlands for a shopping
center.
As you know, federal regulations prohibit wetland filling if
a practicable alternative is possible (40 CFR 230.10). The State
water quality standards regulations recognize that State
decisions about wetlands should be guided bv_?hese regulations,
as well as by other factors. Thus, issuance of a 401
Certification for a 404 permit means the State has determine'
that the project has no practicable alternative. U
Approval of this project will be a radical departure from
the traditional interpretation of this requirement. Projects
such as shopping centers and residential development, which are
not "water dependent," have been traditionally considered to have
practicable alternatives.
From my point of observation, it appears that DEHNR became
so engrossed with the highly desireable possibility of protecting
the maritime forest, that the requirement for no practicable
alternative was basically brushed aside. The federal agencies
are now requiring that the applicant submit justification that
there is no practicable alternative to the wetland loss. DEHNR
has apparently already committed to accept whatever rationale the
developers propose. This case is, of course, a precedent for
future projects.
In essence, I find myself in the position of waiting for the
developers to submit their documents so I can find out what the
new State policy and standards are for determining the existence
of practicable alternatives in future 401 certification
decisions.
??3 printed on recycled paper
Bill Cobey
March 13, 1990
Page 2.
For example, one argument the developers may claim is that
there is no other tract of high ground of the desired size
available in the area. If the State accepts this argument, then
there will be no basis for denying future proposals for
commercial, residential, or industrial projects in wetlands in
the area as long as the projects use at least 16 acres. Approval
of the Kitty Hawks Woods project will establish that such
projects have no practicable alternative other than in wetland
locations.
Thus, wetlands will be the foundation of future development,
with no limit on the wetland loss. Likewise, this principle will
be extended throughout the coast and provides a strong incentive
for developers to fantasize and invest in very large projects in
wetlands -- small projects will be more likely to be ruled as
having practicable alternatives.
Please think carefully about DSHNR's legal position for the
many future requests for large shopping centers, convention
centers, hotels, condominiums, and probably golf courses in
wetlands after this precedent is set. Protection of natural
resource areas such as maritime woods will not be a factor in
future proposals since there is no legal foundation or
requirement for this type of "voluntary" donation.
The tenuous nature of the "voluntary" donation is apparent
if one considers what will happen if the Kitty Hawk Woods
applicants decide to not make the donation after the 401
certification is issued. The State would have no basis for
denying the project if such a modification were requested since
issuance of the 401 Certification means the State has ruled the
project meets all legal requirements -- and there is no legal
r?
y? requirement for the voluntary donation.
1J
In summary, it appears to me that this project sets a
precedent that will inevitably result in unlimited, rapid loss of
wetlands. This is a huge step in the wrong direction from no net
loss of wetlands. It sets no precedent for private donation of
valuable natural resources since there is no legal foundation for
that aspect. The proposed interpretation of the requirement for
no practicable alternatives sets precedent for a myriad of issues
that certainly deserve more extensive discussion and evaluation.
Various concepts and details of the federal regulations and court
cases need to be considered -- for example, practicable
alternatives include utilizing several smaller commercial areas
rather than one large area. We believe an interpretation that
promotes large non-water-dependent projects in wetlands is not
consistent with the intent of the Clean Water Act or with the
Department's responsibilities for the public resources.
0
epA ( C°E
Bill Cobey
March 13, 1990
Page 3.
While we recognize the importance of protecting the maritime
forest, the precedent for wetland loss set by this case is almost
beyond comprehension. Although we recognize that the
administration is already committed to a position on this case
and is unlikely to change its position, it might be useful for
you to meet with interested environmental groups to discuss your
perspectives about the implications of this project.
This proposal also points out the lack of a legal framework
for handling situations with the potential for exceptional
mitigation. We would be happy to work with you to try to develop
a legal framework for handling future cases with the potential
for exceptional mitigation efforts.
Very Sincerely,
J ?
Jim Kennedy
Environmental Scientist
cc: governor Jim Martin
George Everett
Roger Schecter
Bill Hogarth
US EPA, Region IV
US Army Corps of Engineers
US Fish and Wildlife Service
National Marine Fisheries Service

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