20090883 Ver 1_More Info Letter_20100302

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NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue
Governor
Coleen H. Sullins
Director
Dee Freeman
Secretary
March 2, 2010
Shackelford Farms, Inc.
c/o Mr. Dwain Shackelford
Post Office Box 247
Hookerton, North Carolina 28538
Dear Mr. Shackelford,
On February 25, 2010, a meeting was held in the DENR Washington Regional Office for
the purpose of resolving permit issues relating to the Shackelford Farm Pond located in Lenoir
County. The NC Division of Water Quality (NCDWQ) was represented by Chris Pullinger and
Al Hodge and the US Army Corps of Engineers (USACE) was represented by David Lekson and
Emily Jernigan. These two agencies have the responsibility of permitting the pond along with the
Division of Land Resources (DLR). DLR has no issues with the project as it was originally
proposed to USACE, but would be consulted if the project changes. Dwain and Jonathan
Shackelford were present to represent the property owner, Jerry Shackelford (Mr. Shackelford) as
well as Carl Dunn, the engineer for the original pond design.
During 2008, NCDWQ conducted a site visit to the proposed pond location and identified a
portion of the stream to be perennial and a portion to be intermittent. The USACE has also
conducted site visits of the proposed pond location and concur with NCDWQ's stream
determination. In 2009, Mr. Shackelford submitted the permit application that is under review by
the USACE to build a proposed dam which would be located in the perennial portion of the
stream.
The USACE has notified Mr. Shackelford that the dam may be placed on the proposed stream
without having to go through an individual permit process as long as the dam is built entirely
within the intermittent portion of the stream. An individual permit from the USACE will be
required if any portion of the dam is to be constructed on the stream defined as perennial.
NCDWQ will also require an application for a 401 certification if any portion of the dam is to be
constructed on the perennial portion of the stream, but the project would only require a riparian
buffer authorization if the dam is built entirely within the intermittent portion of the stream.
Mr. Shackelford received from the USACE instructions on how to continue the permitting
process if he chooses to locate the dam in the perennial section of the stream. The USACE
explained that the first step in the permitting process is to show that all alternatives have been
exhausted in an effort to avoid and minimize impacts to the perennial waters. Mr. Shackelford
has stated that the volume of water required for his farming operations would not be met if the
North Carolina Division of Water Quality Internet: www.newatergualiiy.org
943 Washington Square Mall Phone: [phone]
Washington, NC 27889 FAX [phone]
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dam was located only in the intermittent section of the stream. He needs to show that no other
option for creating the dam and obtaining the desired water volume can be done without utilizing
the perennial stream section. An option discussed at the meeting for obtaining the desired water
volume using only the intermittent stream section included excavation within the adjacent upland.
The engineer will evaluate this design to determine if the desired water volume can be met by
excavation as well as determine the amount of excavation that would be required. Mr.
Shackelford will determine the economic feasibility of excavation if it is determined by the
engineer that excavation is a realistic option for obtaining the desired water volume.
The USACE has stated that mitigation will be required if no options exist for avoiding impacts to
the perennial section of the stream. Such mitigation can include permanent conservation
easements located along perennial sections of streams on property owned by Mr. Shackelford.
The size and location of such easements will only be determined by the USACE once all other
efforts to locate the dam out of the perennial stream section have been exhausted. Once Mr.
Shackelford has satisfied the USACE permitting requirements, NCDWQ will be able to proceed
with the 401 certification and stream buffer requirements.
Mr. Shackelford referenced a 1995 DWQ 401 certification letter regarding pond construction.
However, all the authorizations referenced in the letter have since expired with NCDWQ as well
as USACE. The letter never gave complete authority to construct the pond as USACE never
received a complete permit package. The 1995 letter no longer has any validity to this project.
Also, at present, you do not have an active application for your project on file with DWQ. In
order to re-activate your application for the 401 certification process, there is a $240 application
fee that must be included with your revised application materials.
I hope this letter provides an adequate summary of the permitting process involving your project.
If you have any additional questions or require additional information please call Chris Pullinger
at [phone], or myself at [phone].
Sincerely,
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Regional Supervisor
Division of Water Quality
Surface Water Protection
Washington Regional Office
cc: DWQ 401 Oversight/Express Unit
WaRO File Copy
Division of Land Resources, WaRO
David Lekson, USACE - Washington Field Office
Emily Jernigan, USACE - Washington Field Office
Carl Dunn, Soil &Water - WaRO
David Knight, Assistant Secretary for Natural Resources, 1601 Mail Service Center,
Raleigh, NC 27699-1601