20110211 Ver 1_Buffer Determination Request_20110303

HUNTON 2 0 1 1 0 2 1 1 HUNTON & WILLIAMS LLP
POST OFFICE BOX 109
WHE"s RALEIGH, NORTH CAROLINA 27602
March 3, 2011
Via Hand Delivery
Director, Division of Water Quality
Attn: Ian McMillan
DWQ Wetlands/401 Unit
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Dear Mr. McMillan:
TEL 919.899 •3000
FAX 919 •833 •6352
CRAIG A. BROMBY
DIRECT DIAL: 919 •899 •3032
EMAIL: [e-mail]
FILE NO: 9.502
DOC NO: 34674102
?pR 3 2011
.
DENR ° GVATER QU/4L
Wetlena & Skrrrw..,,Z_ o___
Bayshore Estates LLC ("Bayshore") hereby requests a determination with respect to
on-site jurisdictional stream determinations on a project referred to as Marsh Oaks, located in
New Hanover County. The determination was performed by Chad Coburn, Senior
Environmental Specialist in the Wilmington Regional Office of the Division of Water
Quality, and communicated to Dana Lutheran of Southern Environmental Group, Inc. by
letter of January 4, 20111 (Attachment 1). Bayshore respectfully disputes Mr. Coburn's rating
and conclusion, and asserts that the features in question are ditches constructed in high ground
which do not meet the criteria for a jurisdictional stream.
This request is filed protectively in order to preserve Bayshore's rights in this matter.
Mr. Coburn today sent to Ms. Lutheran an email (Attachment 2) attaching an unsigned and
substantively identical on-site jurisdictional stream determination (Attachment 3), that bears a
March 3, 2011 date. Because it is unstated whether the March 3 determination supersedes the
January 4 determination, Bayshore has to assume that the January 4 determination is effective
and thus files this request prior to the sixtieth day following the January 4 letter.
It is my understanding that this request is timely and that the 60-day time period
provided at N.C. Gen. Stat. § 15013-23(f) within which to request a contested case in the
Office of Administrative Hearings will not commence pending notification to my client of a
final determination by the Director. If the March 3 letter, assuming it has issued, has
superseded or otherwise modified the January 4 letter, please consider this letter a request for
I Please note that Mr. Coburn's correspondence was addressed to Dana Lutheran of
Southern Environmental Group, Inc. Ms. Lutheran was acting as agent for a prospective
purchaser. The owner of the property is Bayshore.
ATLANTA AUSTIN BANGKOK BEIJING BRUSSELS CHARLOTTE DALLAS HOUSTON LONDON LOS ANGELES
McLEAN MIAMI NEW YORK NORFOLK RALEIGH RICHMOND SAN FRANCISCO WASHINGTON
www.hunton.com
HUNTON
WHIJAMS
Mr. Ian McMillan
March 3, 2011
Page 2
determination of the on-site jurisdictional stream determination contained in the March 3
letter.
Please notify me of the procedure for this request for determination. Bayshore would
like to present evidence showing that the on-site jurisdictional determination was reached in
error, including, but not limited to:
• an NC DWQ Stream Identification Form Version 4.11 completed by staff of
the U.S. Army Corps of Engineers;
• NC DWQ Stream Identification Forms completed by Mr. Coburn;
• statements or documents prepared by staff of the Division of Water Quality
who observed the site, and
• testimony or affidavits from third-party consultants.
If possible, we would like the opportunity to make a presentation in person, and to
have an opportunity to question DWQ personnel who have observed the site.
Sincerely yours,
Craig A. Bromby
Enclosures
c: Mary Penny Thompson, Esq.
Rick Shiver, WiRO
Dana Lutheran, SEGI
David Syster, SEGI
99900.07899 EMF_US 34674102v4