20051986 Ver 4_USACE Correspondence_20101015

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
REPLY TO October 7, 2010
ATTENTION OF'.
Regulatory Division
Action ID: 200900106
Mr. H. Brantley Powell
HBP Properties, LLC
Post Office Box 5365
Cary, North Carolina 27512
Dear Mr. Powell:
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Reference the Department of the Army (DA) permit issued to you on May 21,
2009, which authorized total permanent impacts to 376 linear feet of perennial streams
and 0.006 acre of wetlands, and temporary impacts to 38 linear feet of stream associated
with Phase III of the Legend Oaks Subdivision. The project site is located at the end of
the existing phase of the subdivision, north of Lystra Road and east of US Highway
15/501 near Chapel Hill, in Chatham County, North Carolina. The site is found at
Latitude and Longitude in Decimal Degrees of 35.8422°N and -79.0721 °W. All waters
drain to Cub Creek in the Cape Fear River Basin.
Reference is also made to your letter of July 29, 2010, requesting a modification
to the existing DA permit referenced above. Specifically, you wish to convert two
previously approved bottomless culverts to standard culverts which are identified as
driveway crossings at lots 3, 4, and 5. In addition, a temporary impact for a sediment
basin is requested as well as a temporary impact for a septic line crossing. It is important
to note that the impact from the sediment basin stated above has already been restored
and would therefore be an after-the-fact portion of the modification. The total additional
impacts requested under this modification are 60 linear feet of permanent impact and
80 linear feet of temporary impact.
Mitigation ratios have been assessed at a 2:1 ratio for 40 linear feet (perennial)
and 1:1 for 20 linear feet (intermittent). The applicant has proposed payment to NCEEP
for 60 linear feet, representing a 1:1 restoration ratio for all permanent impacts. An
acceptance letter from the NCEEP dated August 3, 2010, has been received for this
component of the mitigation plan. To offset the remaining portion of impact, the
applicant has proposed preservation of 1,217 linear feet of on-site stream channel through
restrictive covenants.
-2-
During the evaluation of this modification, all impacts within the Legend Oaks
subdivision were inspected for compliance with the existing permit. This inspection
found that one permitted road crossing was shorter than permitted by 11 linear feet.
Taking this into account, a total 49 linear feet of additional permanent impact is needed to
complete the impact assessment for the entire project. Given the amount of additional
impact requested and the questionable protection offered by bottomless culverts, we have
completed our evaluation of your request and concur with your request for a change in
impacts associated with your referenced DA permit. Construction drawings are enclosed
and will act as special permit conditions for this modification at those specific impact
locations.
The following Special Condition is applicable to the increase in impact amounts
covered under this modification. It is in addition to the original permit conditions, and
does not alter or change any of the original conditions especially those pertaining to
mitigation:
The permittee shall make payment to the North Carolina Ecosystem
Enhancement Program (NC EEP) in the amount determined by the NC
EEP, sufficient to perform the restoration of 60 linear feet of warm water
stream in the Cape Fear River Basin, Cataloging Unit 03020201.
Construction within jurisdictional areas on the property shall begin only
after the permittee has made full payment to the NC EEP and provided a
copy of the payment documentation to the Corps, and the NC EEP has
provided written confirmation to the Corps that it agrees to accept
responsibility for the mitigation work required, in compliance with the
MOU between the North Carolina Department of Environment and
Natural Resources and the United States Army Corps of Engineers,
Wilmington District, dated November 4, 1998.
"Note: Habitat type may be described as found in Schafale and Weakley,
Classification of the Natural Communities of North Carolina, Third
Approximation, 1990; or in accordance with Cowardin, et al (1979),
Classification of Wetlands and Deepwater Habitats of the of the United
States.
In addition, the email (from Jennifer Burdette, Burdette Land Consulting,
authorized agent) dated September 7, 2010, concerning the necessary
language for the restrictive covenants governing the preservation area as
-3-
required as mitigation for the proposed impacts. We (the Corps of
Engineers) agree with the language within the September 7, 2010, email
and require the following permit condition (pertaining to the restrictive
covenants):
- Permitee shall execute and cause to be recorded in the Chatham
County Register of Deeds restrictive covenants as described in your email
(from Jennifer Burdette, Burdette Land Consulting, authorized agent)
dated September 7, 2010, for the purpose of maintaining the restrictive
covenants, as shown on the recorded plat (properly recorded and showing
preservation areas), in their natural state in perpetuity, prior to the sale or
conveyance of Lots 3, 4, or 5, or by December 31, 2010, whichever comes
first. The permittee shall enforce the terms of the restrictive covenants
and, prior to conveyance of the property, shall take no action on the
property described in the covenants inconsistent with the terms thereof.
The permittee shall provide a copy of the recorded restrictive covenants to
the Corps of Engineers within 30 days of recording.
In addition, Special Permit Condition (e) as shown within DA permit 200900106
is modified as requested to extend the deadline for recording the described preservation
area. This deadline for this recordation is now "prior to conveyance of any lot within
Phase III or December 31, 2014." All other language within this Special Condition
remains unchanged. It is understood that any changes to the preservation area that might
occur prior to the recordation may change the applicability of this site for preservation
(timbering for example). Our file indicates that this has been discussed with you and that
you will not alter the natural conditions of the site.
Once again, we have completed our evaluation of your request and concur with
your request for a change in impacts associated with your referenced DA permit. It is
understood that all other conditions of the permit, including the permit expiration date,
remain applicable. Should you have questions, contact Mr. Monte Matthews, Raleigh
Regulatory Field Office at telephone [phone], Extension 30.
Sincerely,

Jean B. Gibby
Chief, Raleigh Regulatory
Field Office
Enclosures
-4-
Copy Furnished (w/attachments)
Mr. Ian McMillan
NC Division of Water Quality
401 Oversight and Express Permitting Unit
2321 Crabtree Blvd., Suite 250
Raleigh, NC 27604
Mrs. Jennifer Burdette
Burdette Consulting Inc.
10212 Creedmoor Road
Raleigh, NC 27615
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