19961054 Ver 2_Court Case Correspondence_20110908

WESSELL & RANEY, L.L.P.
ATTORNEys AT LAW
POST OFFICE BOX 1049
WILMINGTON, NORTH CAROLINA 28402-1049
JOHN C. WESSELL, III
[e-mail]
3STREEM ADDRESS:
107-B NORTH 2"D 6TREwr
WnmwGToN, NC 28401
WILLIAM A. RANEY, JR.
[e-mail]
September 7, 2011
VIA FAX [phone] AND U.S. MAIL
Ms. Kim Hausen
Chief Hearings Clerk
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
TELwHoNE: 910-782-7475
FAcsndnz: 910-782-7557
Re: Bennett Brothers Yachts, Inc. v. NCDENR, DWQ
Petition for a Contested Case Hearing
Dear Ms. Hausen:
Enclosed is an original and two copies of a Petition for a
Contested Case Hearing in the above-referenced matter.
Please file the Petition and return a stamped copy to me in
the enclosed envelope. Also enclosed is our trust account check in
the amount of $125.00 which I understand is the filing fee for this
Petition.
Thank you for your attention to this matter.
Sincerely,
WESSELL & RANEY, L.L.P.
W. A. Raney, Jr.
WAR: dc
Enclosures
CC: Mary Penny Thompson
?ICaren Higgins
1@@9UWLR09
SEP 0 8 2011
DENR • WATER WkUTY
nn.ANDSAND SMRMWATER BRANCH
I/
CERTIFICATE OF SERVICE
I certify that this Petition has been served on the State agency or board named below by depositing a copy of it with the United States Postal Service
with sufficient postage affixed OR by delivering it to the named agency or board:
(11) Mary Penny Thompson (12) DENR
(name of person served) (State agency or board listed on line 3)
(13) 1601 Mail Service Center, Raleigh, NC 27699-1 60 1
(street address/p.o. box) (city) (state) (zip code)
(14) This the 7 day of Sep ber, 2011.
(15) t? . Q
PLEASE PRINT CLEARLY OR TYPE
STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
BENNET BROTHERS YACHTS, INC. )
PETITIONER, )
PETITION
V. ) FOR A
CONTESTED CASE HEARING
N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL )
RESOURCES, DIVISION OF WATER QUALITY )
RESPONDENT. )
(The State agency or board about which you are complaining) )
I hereby ask for a contested case hearing as provided for by North Carolina General Statute § 15OB-23 because the Respondent has:
(Briefly state facts showing how you believe you have been harmed by the State agency or board.)
issued a 401 Water Quality Certification to Petition that contains provisions and conditions that exceed the Respondent's authority or jurisdiction, are
arbitrary or capricious, are erroneous, and are contrary to proper procedure as fully set out in Attachment A.
(4) Amount in controversy $ 462.500.00 (if applicable)
(6) Date: //4 (7) Your phone number: (910 ) 762-7475
(If more space is needed, attach additional pages.)
(5) Because of these facts, the State agency or board has: (check at least one from each column)
deprived me of property; --X _exceeded its authority or jurisdiction;
ordered me to pay a fine or civil penalty; or X acted erroneously;
-X -otherwise substantially prejudiced my rights; AND X failed to use proper procedure;
X acted arbitrarily or capriciously; or
X failed to act as required by law or rule.
(8) Print your full address: PO Box 1049, Wilmington, NC 28402-1049
(street address/p.o. box) (city) (state) (zip)
(9) Print your name: William A. Raney, Jr. , I
(10) Your signature: w r 0,
You must mail or deliver a COPY of this Petition to the' StAte agency or board named on line (3) of this form. You should contact the agency or
board to determine the name of the person to be served.
(your signature)
When you have completed this form, you MUST mail or deliver the ORIGINAL AND ONE COPY to the Office of Administrative Hearings, 6714
Mail Service Center, Raleigh, NC 27699-6714.
H-06 (05/10)
I'M box
Amount Paid $
Cash - receipt number
Indigent (must complete form HOI )
Mandated federal cause of action
Money Order Certifted Check Attorney Trust Account
I Received by:
Check number
H-06 Instructions (05110)
ATTACHMENT A
TO PETITION FOR A CONTESTED CASE HEARING BY
BENNETT BROTHERS YACHTS, INC.
1. Water Quality Certification No. 3131 dated July 11, 2011, DWQ Project #19961054, Ver. 2 is a
modification and replacement of the water quality certification issued to Bennett Brothers Yachts on
February 7, 1997 (Certification).
2. The Certification purports to be issued in conformity with the requirements of §401, Public
Laws, 92-500 and 95-217 of the United States.
3. The above-referenced federal laws require an applicant for a federal permit for an activity that
results in a discharge to navigable waters to provide a Certification from the state water pollution
control agency that "such a discharge will comply with the applicable provisions" of various sections
of the Federal Water Pollution Control Act.
4. The activity proposed by the Petitioner does not involve a "discharge" or, if a discharge does
result, the discharge would comply with the applicable statutory provisions.
5. The conditions imposed in the Certification all relate to the dredging or excavation of
submerged land and not to any alleged discharge, thus the Respondent agency exceeded its authority or
jurisdiction; acted erroneously; failed to use proper procedure; acted arbitrarily or capriciously; and
failed to act as required by law or rule.
6. Even if the Respondent's legal authority is not limited to the consideration of the impacts of the
discharge on water quality, the Certification is still deficient in that it imposes mitigation requirements
that are unknown and impossible to determine at this time.
7. A condition in the Certification requires the Petitioner to post a performance bond or other
financial assurance in the amount of $462,5000.00 to assure implementation of the unknown
mitigation plan and states that the amount may be changed by the Respondent.
8. The requirement to comply with an unknown mitigation plan and a large performance bond that
is subject to change for the unknown plan are not final agency actions, yet the Respondent asserts that
unless a petition for a contested case is filed within 60 days of the Certification, the "Certification shall
be binding and final."
W AR\environ\R 10-013-006