20060973 Ver 4_More Info Received_20100319

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Joyner eery, PLLC
Planning & Land Surveying
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March 16, 2010
Ms. Cyndi Karoly
Supervisor 401 Oversight/Express Review Permitting Unit
North Carolina Department of Environment & Natural Resources !AR I 2C?0
Division of Water Quality
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1650 Mail Service Center 4,?7' rDEW-W.4TER,)UALITy
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Raleigh, North Carolina 27699-1650
RE: Birchwood Subdivision (JK Project #020386)
Nashville, NC
DWQ Project #06-0973
Dear Ms. Karoly:
I am writing this letter to summarize the history as it relates to the current status of the outstanding 401
Certification for the above referenced project from your office. Following the settlement between our
client, Maevco Development, LLC and The State of North Carolina, we have prepared five full
submittals and several other intermittent requests for additional information. Throughout this process,
many of the requests for additional information have not built upon one another, but have required that
we address new items on each occasion. It is my understanding and previous experience with other 401
Certifications through your office, that the review and commenting process should be a concise and
cumulative process that builds upon previous submittals. It is our feeling that this project's permitting
process has not progressed in that manner, as many subsequent comments are unrelated to previous
comments with each submittal requiring new information. Following is a summary of our submittals
and subsequent comments from your office.
The initial submittal of this project was made on January 13, 2009 by Keller Environmental to your
office, as well as, the Army Corps of Engineers (ACoE). This submittal included a completed PCN
form, wetland impact maps, site plans and Dry Extended Detention Basin supplement forms, checklist &
signed/notarized O&M. I clearly indicated on the Dry Basin forms that it was designed to meet
detention requirements for the Town of Nashville only, not as a water quality basin to DWQ standards.
On February 12, 2009, we received first comments from your office to provide detailed information on
the drainage areas for the project, including specific breakdowns of impervious surfaces within each
drainage area.
Joyner Keeny, PLLC
Post Office Box 7533 • 1051 N. Winstead Avenue • Rocky Mount • North Carolina • 27804
252.977.3124 (office) • www.joynerkeeny com • 252.985.6026 (fax)
North Carolina Firm Number P-0551
Birchwood Subdivision
DWQ Project 406-0973
On February 20, 2009, our environmental consultant, Keller Environmental (Jay Keller), responded to
this request in writing by referencing areas previously defined on the PCN form in the original
submittal.
On March 6, 2009 we received a second request for detailed information on the drainage areas, as the
information supplied on the original PCN form was not adequate. Subsequently, we prepared a detailed
breakdown of the project drainage areas, including on-site impervious area percentages. This
information was supplied to your office on March 18, 2009 and showed that none of the project's
drainage areas (including future development) exceeded 24% imperviousness. It was my understanding
that the purpose of this review was determine whether a Stormwater Management Plan, including
BMP's, would be required to complete our permit application.
On April 3, 2009 we revised and resubmitted our wetland impact map per ACoE comments, to lower the
impacted areas to less than 0.25 acres. This was accomplished by reducing the amount of impact on Lot
6.
On April 24, 2009 we received a third request for additional information from your office, consisting of
four new items to address: provide documentation that the ACoE will allow the dry detention basin fill
within a wetland, reconfigure Lot 6 to avoid impacts and two comments regarding future development
beyond Phase 1. In this request, there was no mention of our Dry Basin or anything regarding the
additional information provided previously about project drainage areas or overall site imperviousness.
It was our assumption that your concerns were alleviated regarding the Basin at this point, four months
and three submittals into the permitting process.
On June 4, 2009 we made our third full submittal addressing your comments from April 24th. Ian
McMillan in your office had been in contact with Thomas Brown with ACoE, and had received
acknowledgment that the ACoE would allow our impacts as shown. Also, an acceptance letter from the
NCEEP, dated April 29, 2009, was included with this submittal, acknowledging acceptance of our 0.243
acres of impact. Keller Environmental provided information of future development questions on the
PCN form per your comments. Subsequently, I had a couple of conversations with Ian about the
impacts to Lot 6 and responded with exhibit drawings to him on June 12th and 15th. My understanding
from Ian was that we had satisfied his concerns with Lot 6.
On July 6, 2009, we received a letter from your office returning our application, stating we had failed to
adequately respond to your requests for additional information regarding future development beyond
Phase 1. It was our understanding from the settlement, that this permit would be for Phase 1 only, and
future development would require an amendment to the permit. Subsequently, specific language was
added to the PCN to address this stipulation.
On August 19, 2009, we received the ACoE 404 Permit (NW #18 & 29) for our impacts. It was our
understanding from previous conversations with Ian, that we had addressed all of his concerns about the
specifics of impacts on lots, that the ACoE would allow our impacts for the Dry Basin and future
impacts were not part of this permit.
Joyner Keeny, PLLC
Post Office Box 7533 • 1051 N. Winstead Avenue • Rocky Mount • North Carolina • 27804
252.977.3124 (office) • www.joynerkeeny.com • 252.985.6026 (fax)
North Carolina Firm Nnmher P-0551
Birchwood Subdivision
DWQ Project 406-0973
On August 25, 2009, we made our fourth full submittal having fully addressed all previous comments
and with a 404 Permit from the ACoE in hand. Subsequently on September 23, 2009 we received the
fourth request for additional information from your office. This round of comments contained all new
comments, requesting information never previously mentioned in the nine months of previous
correspondence. We were now requested to provide soil testing to determine the Seasonal High Water
Table, it's relation to the invert of the Dry Basin and analysis of the receiving channel from the Basin.
This is the first mention of anything regarding the Basin since your initial round of comments in
February.
On November 11, 2009, we made our fifth submittal to your office. Included in this submittal was a
letter from a soil scientist (Dan Bliley, LSS) evaluating the water table characteristics on the site. A
response letter was prepared to specifically address each new comment.
On December 17, 2009 we received a fifth request for additional information from your office,
indicating that we had failed to adequately address the questions regarding the Seasonal High Water
Table and it's relation to the invert of the Dry Basin.
Finally, on January 27, 2010, we received a return of application letter from your office indicating that
we would have to resubmit a new application addressing your new comments.
After receiving the fifth request for additional information in December of last year, I spoke with
Annette Lucas in your office, whom I believe provided the new comments regarding the Dry Basin in
September. The premise of our conversation surrounded the invert of the Dry Basin and her concern for
it draining the adjacent wetlands. We felt this scenario was adequately addressed in the letter by Dan
Bliley, as well as, our response letter.
Due to the poor hydraulic conductivity of the soils on this site (predominately Rains soils with high clay
content), there is likely no definitive answer to the exact elevation of the Seasonal High Water Table, as
water becomes perched within various layers of this poorly draining soil. Further complicating this
situation was the reestablishment of proper drainage of the existing ditch along the southern property
line. As part of this project at the very beginning, the existing ditch along the southern property line was
re-graded and cleaned out to its original design characteristics. Prior to re-grading the existing ditch, the
invert of the ditch was lower (± one foot) than the wetlands in question, however the wetlands remained
undrained, providing another indication of how poor the hydraulic conductivity of the soils are on this
site. Due to lack of maintenance, this ditch had become impeded by debris and was not properly
draining both on- and off-site areas. We performed an existing topographic survey in January of 2003
and determined that previous maintenance activity on this ditch had exacerbated the drainage situation
on this site, as excavated material from the ditch was simply piled adjacent to it, preventing surface
runoff from properly entering the ditch. The wetland area in question, which is an old man-made
drainage ditch located approximately 25' east of the Dry Basin, was cut off from draining to the existing
ditch along the southern property line and retained water. The reestablishment of proper drainage in the
southern property line ditch was imperative to insure that runoff from this site will be properly
conveyed. With proper site drainage reestablished by repairing the existing ditch, this will also have an
effect on the Seasonal High Water Table.
Joyner Keeny, PLLC
Post Office Box 7533 • 1051 N. Winstead Avenue • Rocky Mount • North Carolina • 27804
252.977.3124 (office) • www.joynerkeeny com • 252.985.6026 (fax)
North Carolina Firm Nnmher P-0551

Birchwood Subdivision
DWQ Project #06-0973
Also, I would like to point out the timeline of this project as it relates to the present condition of the
wetlands on this site. The original wetlands delineation was completed in June 2006. Site development
began in September of 2006 and grading completed in late 2006. The Dry Basin was in final operation
in the summer of 2007. Over the course of the past year, I have conducted several site visits and
observed the condition of the site's wetlands. At the present time, the wetlands as previous delineated
appear to be unchanged, other than the impacts made to date (which is not the entire amount requested
in this permit, as all but two of the lots remain undeveloped). My last site visit was on December 22,
2009 to conduct some hand auger testing in the vicinity of the wetlands and basin to determine the depth
to the water table. The wetland area in question, approximately 25' east of the Dry Basin, was still very
well defined with approximately two feet of water standing in it. This is with the Dry Basin in full
normal operation, as well as, the existing ditch on the southern property line properly graded and
functioning as designed. The basin is approximately five feet deep (Top of Berm-185.0 &
Invert-180.0), with the existing wetland area being about three feet deep (Top-184.0 & Invert-181.0).
The results of my hand auguring were extremely variable, which was anticipated based on the poor
hydraulic conductivity of the on-site soils. My first auger hole was approximately five feet east from the
top of the basin towards the wetland area. This first auger hole encountered ground water at
approximately four feet deep. I moved north approximately ten feet, remaining about five feet from the
top of the basin, and I did not encounter any groundwater, terminating at approximately five feet
(roughly the bottom of the basin). Next, I moved adjacent to the wetland area approximately 25' east
from the top of the Dry Basin. I encountered groundwater within 12" of the surface. Finally, I moved
approximately ten feet north of my third auger hole, remaining about five feet from the wetlands, and I
encountered groundwater at approximately three feet deep. Within an area less than 200 square feet
adjacent to the Dry Basin and the wetlands, the Water Table varied from one foot to greater than five
feet below grade. It would also be reasonable to assume that based on the time of year and the amount
of rainfall received on this site, we are within the wetter time of the season, therefore at or near what is
considered the Seasonal High Water Table.
Based on several site visits throughout the course of 2009 and my hand augers last December, it is my
opinion that the existing wetlands as delineated in June of 2006, remain unchanged in size despite the
maintenance of the existing ditch along the southern property line and the addition of the Dry Basin,
both fully functional over the last two plus years. This is mainly due to the poor hydraulic conductivity
of the on-site soils, which severely restricts the movement of ground water. Additionally, it is
reasonable to assume that if there are concerns over the Dry Basin draining the wetlands in question, the
existing ditch along the southern property line, which has an even lower invert than our Dry Basin
(which drains to this ditch) and is located equal distance from the wetlands (approximately 25'), would
also facilitate draining of the wetlands and pose the same risk as our Dry Basin. And with both of these
drainage features, with lower inverts than the existing wetlands and fully functional for two plus years,
the wetlands remain in their original delineated state.
We understand the concerns expressed by you and your staff, however we feel based on actual field
conditions and evaluations, there is strong evidence to indicate that the existing wetlands will not be
Joyner Keeny, PLLC
Post Office Box 7533 • 1051 N. Winstead Avenue • Rocky Mount • North Carolina • 27804
252.977.3124 (office) • www.joynerkeeny.com • 252.985.6026 (fax)
North Carolina Firm Nnmher P-0551
Birchwood Subdivision
DWQ Project #06-0973
negatively impacted by our Dry Basin. Please feel free to call me if you have any questions or require
additional information.
Sincerely,
Brent T. Niemann, PE
Joyner Keeny, PLLC
Joyner Keeny, PLLC
Post Office Box 7533 • 1051 N. Winstead Avenue • Rocky Mount • North Carolina • 27804
252.977.3124 (office) 9 www.iovnerkeeny.com • 252.985.6026 (fax)
North Carolina Firm Numher P-0551