20161217 Ver 2_USA Unauthorized Activity_20180227

U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
ORM ID. SAW-2016-02000
County: Bertie
NOTIFICATION OF UNAUTHORIZED ACTIVITY
PERMIT NONCOMPLIANCE
Responsible Party: Mr. Tom McNav
Duke Enerav Renewables NC Solar, LLC.
Address: 550 South Tyron Street
Charlotte, North Carolina 28202
Telephone Number: [phone]
Size and location of property (include waterbody, road name/number, town, etc.): The project
area is a developed solar farm located off of Cooper Hill Road (NC 308) outside of the town
of Windsor in Bertie County, North Carolina on properties identified as Parcel
#6811735215 and #6811912894 with Bertie County tax records. The properties are
adjacent to the Cashie River, a Section 10 Navigable Water.
Description of Unauthorized Activity/Permit Noncompliance: On February 16, 2017, Mr.
Kyle Barnes of my staff met with you and representatives from the North Carolina Division
of Water Resources (NCDWR) and the North Carolina Division of Energy, Mineral and
Land Resources (DEMLR) to review development activities that had occurred to construct
the Windsor Solar Site. During this meeting Mr. Barnes observed the development of two
functioning solar installations with access roads. Within the installation identified as
Windsor Solar Tract B (Parcel # 6811912894) it was determined that unauthorized fill had
been placed in multiple jurisdictional wetland areas regulated by the U.S. Army Corps of
Engineers (USACE).
Following the site investigation, the USACE reauested that a wetland delineation be
performed on the site to quantify the amount of fill placed within jurisdictional areas.
Your consultant, Carolina Ecosystems, LLC, identified three wetland areas where
unauthorized fill was placed and those wetlands were confirmed by the USACE to be 0.9
acres in size, (identified on the attached map).
Indicate which of the following apply:
X Unauthorized Activity _ Rivers and Harbors Act, Section 10 (33 USC 403)
_ Permit Noncompliance X Clean Water Act, Section 301 (33 USC 1311)
Unless you have a valid Department of the Army permit for the above described activity, it is
a violation of federal law as specified above. You have agreed to do no further work in waters or
wetlands without the required Department of the Army permit. Any further unauthorized work
in waters or wetlands will be considered an intentional violation of federal law.
If you do no further work in waters or wetlands and perform the remedial action requested
below, the Corps of Engineers will take no further action in this matter. If you continue to work

in waters and wetlands without the required authorization, and/or fail to perform the requested
remedial action, the Corps will take further administrative action and may request the U.S.
Attorney to file suit against you.
If you have any questions regarding this action or would like further information on the Corps
of Engineers Regulatory Program, please contact Kyle Barnes at [phone].
Remedial Action Requested: On October 11, 2017, you met with Mr. Barnes and Mr.
Anthony Scarbraugh from the NCDWR to discuss remedial actions to address the
unauthorized fill placed in jurisdictional wetlands on the Windsor Solar Site. During this
meeting it was agreed that 0.39 acres of the unauthorized fill could be permitted under
Nationwide Permit (NWP) #39 and the remaining unauthorized fill areas would be
restored. The resolution of this action would require the submittal of a PCN application
for utilization of NWP #39 and a restoration plan to address removal of the remaining
unauthorized fill and solar panel equipment placed in jurisdictional wetlands.
On January 22, 2018, your PCN application and restoration plan entitled, Winsor Solar
Tract B, Wetland Restoration Plan (Plan), dated December 2017, was received by the
USACE Washington Field Office and deemed to be complete. Accordingly, you are to
undertake the remedial actions set forth in the subject Plan. This work must be completed
within 30 days of your receipt of this Notification of Unauthorized Activity. Should
additional time be needed to complete the restoration work, please contact Mr. Barnes at
(910-251-4584).
Regarding the 0.39 acre area of wetland fill that will be allowed to remain in place,
your work is authorized by NWP #39 provided it is accomplished in strict
accordance with the attached conditions and your submitted application, including
the following Special Condition 1:
The Permittee shall mitigate for 0.39 acre of Section 404 wetlands associated with this
project by payment to The Great Dismal Swamp Restoration Bank, LLC.-Timberlake
(GDSRB) in an amount determined by the GDSRB sufficient to perform 0.78 acre of
non -riparian wetland restoration mitigation in the 03010205 HUC. This permit is valid
only after the Permittee has made full payment to the GDSRB, and the GDSRB has
made written confirmation to the District Engineer, that it has received payment and
agrees to accept responsibilityfor the mitigation work required.

Any violation of the attached conditions or deviation from your submitted plans may
subject the permittee to a stop work order, a restoration order, a Class I administrative
Penalty, and/or appropriate legal action.
If, prior to the expiration date, the nationwide permit authorization is reissued and/or
modified, this verification will remain valid until March 18, 2022, provided it complies with
all requirements of the modified nationwide permit. If the nationwide permit authorization
expires or is suspended, revoked, or is modified, such that the activity would no longer
comply with the terms and conditions of the nationwide permit, activities which have
commenced (i.e., are under construction) or are under contract to commence in reliance
_upon the nationwide permit, will remain authorized provided the activity is completed within
twelve months of the date of the nationwide permit's expiration, modification or revocation,
unless discretionary authority has been exercised on a case -by -ease basis to modify, suspend
or revoke the authorization.
Your signature acknowledges receipt of this notification.
Property Owner/ Responsible Party
Corps Regulatory Official
Date
Sincerely,
For the District Engineer
Robert J. Clark
Colonel, U.S. Army
District Commander

BCF:
CESAW-RG/Bames
CESAW-RG/Wicker
CESAW-OC/Pruitt

Scarbraugh, Anthony
From:
Scarbraugh, Anthony
Sent:
Tuesday, February 27, 2018 9:15 AM
To:
'Johnston, Charlie'
Cc:
Kyle Barnes
Subject:
Windsor Solar
Charlie,
After review of the information provided in the PCN application, I didn't see a figure that depicts the extent of filled
area. I have a figure from our July 2017 that will need to be updated. I will this prior to issuance of the 401.
Thanks,
Anthony Scarbraugh
Environmental Senior Specialist
Division of Water Resources — Water Quality Regional Operations
Department of Environmental Quality
252 948 3924 office
[e-mail]
943 Washington Square Mall
Washington, NC 27889
Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties.