20170635 Ver 2_Corps Waives Trout Moratorium Requirement_20211014

Strickland, Bev
From: Brown, David W CIV USARMY CESAW (USA) <[e-mail]>
Sent: Thursday, October 14, 2021 8:15 AM
To: bclarke
Cc: Mitchell, Robert K; Clement Riddle; [e-mail];
[e-mail]
Subject: [External] Corps Waives Trout Moratorium Requirement for William Scherer Work -
Action ID SAW-2017-00423
Attachments: SAW-2017-00423 William Scherer Tracts Black Beaver Road NWP 27 and 29.pdf
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Billy Clarke,
Reference is made to your letter of September 28 responding to DWR's issued NOV (NOV-2021-PC-0460). In the letter it
states Mr. Scherer missed the permit deadline of September 1, 2021, for removing 40 linear feet of culvert and restoring
the piped steam reach due to the backlog of work at Cantrell Construction. Further it states, due to the October 15 start
of the trout mortarium of the issued permit, Mr. Scherer will not be able to conduct this work until after April 15, 2022.
The Corps is waiving the trout moratorium under regional condition 1.2 of the issued NWP 27 verification. The work
noted above, which is required under DWR's and the Corps' permit, can be conducted between October 15 and April 15.
This will provide Mr. Scherer the opportunity to eagerly correct his mistake of missing another deadline in resolving the
matters with DWR and Corps that originated in early 2017. Cantrell Construction has equipment on Mr. Scherer's
property and without too much difficulty will be able to accomplish the work as authorized.
The activities for removing 40 linear feet of culvert from UT Steel Creek with restoration of the stream channel and
banks is to be completed by December 31, 2021. The planting of the stream buffer is to completed by March 31, 2022. A
temporary vegetative and mulch cover is to be established and maintained after the stream channel and banks are
restored. Restoration of the stream reach and stream buffer is to conducted per the submitted plans/drawings.
During the last 53 months, the agencies have been more than charitable and tolerant of the many missed deadlines. If
Mr. Scherer is unable to make the December 31 deadline noted above, then the Corps may initiate actions to encumber
is his property holdings in Transylvania County. If you have any questions, please contact me.
Sincerely,
David Brown, PG
Regulatory Specialist/Geologist
USACE Wilmington District -Asheville Regulatory Field Office
151 Patton Avenue, Room 208
Asheville, NC 28801-5006
828-271-7980, ext. 4232
[e-mail]
i

U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT

Action ID. 2017-00423 County: Transylvania U.S.G.S. Quad: Brevard

GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION

Permittee: William Scherer
Address: 584 Scherer Drive
Brevard, NC 28712
Telephone Number: 828-210-1080
Email: [e-mail]

Size (acres): 20.9 Nearest Town: Brevard
Nearest Waterway: UT Steel Creek Coordinates: 35.16190 N, 82.69133 W
River Basin/HUC: Upper French Broad (06010105)

Location description: The project site is located on a tract of land (PINs 8593-64-2665-000 and 8593-74-0366-000) on Black
Beaver Road, south of the intersection of Black Beaver Road and Spring Brook Lane, in Brevard, Transylvania County, North
Carolina.

Description of projects area and activity: This after-the-fact NWP 29 verification authorizes 0.013 acres of permanent wetland
impacts and 40 linear feet of permanent stream impacts to an unnamed tributary (UT) of Steel Creek associated with
installation of culverts. The NWP 27 verification authorizes 40 linear feet of permanent stream impacts to a UT Steel Creek
associated with culvert removal and stream restoration activities.

Special Condition(s):
1) Activities for removal of 40 linear feet of culvert from UT Steel Creek with restoration of the stream reach and stream
buffer, per the submitted plans/drawings, is to be completed by September 1, 2021.
2) Visual monitoring of the above noted restored stream reach and stream buffer will be conducted at a minimum of
quarterly for 12 months after completion of the restoration activities to ensure the reach is stable and revegetation of
the buffer is successful. During the monitoring period any failures of stream restoration structures and/or stream
buffer vegetation will be replaced/repaired by the Permittee upon identification by the Permittee, his authorized
agent, or the Corps.
3) In order to compensate for impacts associated with this permit, mitigation shall be provided in accordance with the
provisions outlined on the most recent version of the attached Compensatory Mitigation Responsibility Transfer
Form. The requirements of this form, including any special conditions listed on this form, are hereby incorporated as
special conditions of this permit authorization.

Note(s): Some of impacts authorized under these permit verifications were previously authorized under a permit verification
dated June 8, 2017, action ID SAW-2017-00423. The Permittee failed to meet the conditions of the June 2017 permit
verification. Therefore, the previous authorized impacts to UT of Steel Creek were administratively suspended.

Applicable Law: Section 404 (Clean Water Act, 33 USC 1344)
Section 10 (Rivers and Harbors Act, 33 USC 403)
Authorization: Regional General Permit Number or Nationwide Permit Number: NWPs 27 and 29 SEE ATTACHED RGP or NWP GENERAL, REGIONAL AND SPECIAL CONDITIONS

Your work is authorized by the above referenced permit provided it is accomplished in strict accordance with the attached
conditions, above noted special conditions, and your submitted application and attached information dated November 16, 2020,
revised March 3, 2021. Any violation of the attached conditions or deviation from your submitted plans may subject the
permittee to a stop work order, a restoration order, a Class I administrative penalty, and/or appropriate legal action.

This verification will remain valid until the expiration date identified below unless the nationwide/regional authorization is modified,
suspended or revoked. If, prior to the expiration date identified below, the nationwide/regional permit authorization is reissued and/or
modified, this verification will remain valid until the expiration date identified below, provided it complies with all requirements of the
modified nationwide/regional permit. If the nationwide/regional permit authorization expires or is suspended, revoked, or is modified,
such that the activity would no longer comply with the terms and conditions of the nationwide/regional permit, activities which have
commenced (i.e., are under construction) or are under contract to commence in reliance upon the nationwide/regional permit, will remain
authorized provided the activity is completed within twelve months of the date of the nationwide/regional permit’s expiration,
CESAW-RG-A 2017-00423

modification or revocation, unless discretionary authority has been exercised on a case-by-case basis to modify, suspend or revoke the
authorization.

Activities subject to Section 404 (as indicated above) may also require an individual Section 401 Water Quality Certification. You
should contact the NC Division of Water Resources (telephone [phone]) to determine Section 401 requirements.

For activities occurring within the twenty coastal counties subject to regulation under the Coastal Area Management Act (CAMA), prior
to beginning work you must contact the N.C. Division of Coastal Management.

This Department of the Army verification does not relieve the permittee of the responsibility to obtain any other required Federal, State
or local approvals/permits.

If there are any questions regarding this verification, any of the conditions of the Permit, or the Corps of Engineers regulatory program,
please contact David Brown at 828-271-7980, ext. 4232 or [e-mail].

Corps Regulatory Official: Date: March 10, 2021 David Brown

Expiration Date of Verification: March 18, 2022

The Wilmington District is committed to providing the highest level of support to the public. To help us ensure we continue to do so,
please complete our Customer Satisfaction Survey, located online at http://corpsmapu.usace.army.mil/cm_apex/f?p=136:4:0.

Copy furnished (by email):
ClearWater Environmental Consultants, Inc., Tyson Kurtz, [e-mail]

Roberts & Stevens Attorneys at Law, Billy Clarke, [e-mail]

CESAW-RG-A 2017-00423

Action ID Number: 2017-00423 County: Transylvania

Permittee: William Scherer

Project Name: William Scherer Tracts Black Beaver Road

Date Verification Issued: March 10, 2021

Project Manager: David Brown

Upon completion of the activity authorized by this permit and any mitigation required by the permit, sign this
certification and return it to the following address:

US ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
Attn.: David Brown
151 Patton Avenue, Room 208
Asheville, North Carolina 28801-5006

Please note that your permitted activity is subject to a compliance inspection by a U. S. Army Corps of
Engineers representative. Failure to comply with any terms or conditions of this authorization may result in the
Corps suspending, modifying or revoking the authorization and/or issuing a Class I administrative penalty, or
initiating other appropriate legal action.

I hereby certify that the work authorized by the above referenced permit has been completed in accordance with
the terms and condition of the said permit, and required mitigation was completed in accordance with the permit
conditions.

_______________________________________ ______________________
Signature of Permittee Date

U.S. ARMY CORPS OF ENGINEERS
Wilmington District
Page 1 of 2 Form Updated 12 September, 2014
Compensatory Mitigation Responsibility Transfer Form

Permittee: William Scherer Action ID: SAW-2017-00423
Project Name: William Scherer Tracts Black Beaver Road County: Transylvania

Instructions to Permittee: The Permittee must provide a copy of this form to the Mitigation Sponsor, either an approved
Mitigation Bank or the North Carolina Division of Mitigation Services (NCDMS), who will then sign the form to verify the
transfer of the mitigation responsibility. Once the Sponsor has signed this form, it is the Permittee’s responsibility to
ensure that to the U.S. Army Corps of Engineers (USACE) Project Manager identified on page two is in receipt of a signed
copy of this form before conducting authorized impacts, unless otherwise specified below. If more than one mitigation
Sponsor will be used to provide the mitigation associated with the permit, or if the impacts and/or the mitigation will occur
in more than one 8-digit Hydrologic Unit Code (HUC), multiple forms will be attached to the permit, and the separate forms
for each Sponsor and/or HUC must be provided to the appropriate mitigation Sponsors.

Instructions to Sponsor: The Sponsor must verify that the mitigation requirements (credits) shown below are available at
the identified site. By signing below, the Sponsor is accepting full responsibility for the identified mitigation, regardless of
whether or not they have received payment from the Permittee. Once the form is signed, the Sponsor must update the
bank ledger and provide a copy of the signed form and the updated bank ledger to the Permittee, the USACE Project
Manager, and the Wilmington District Mitigation Office (see contact information on page 2). The Sponsor must also comply
with all reporting requirements established in their authorizing instrument.

Permitted Impacts and Compensatory Mitigation Requirements:
Permitted Impacts Requiring Mitigation* 8-digit HUC and Basin: 06010105, French Broad River Basin
Stream Impacts (linear feet) Wetland Impacts (acres)
Warm Cool Cold Riparian Riverine Riparian Non-Riverine Non-Riparian Coastal
0.013
*If more than one mitigation sponsor will be used for the permit, only include impacts to be mitigated by this sponsor.

Compensatory Mitigation Requirements: 8-digit HUC and Basin: 06010105, French Broad River Basin
Stream Mitigation (credits) Wetland Mitigation (credits)
Warm Cool Cold Riparian Riverine Riparian Non-Riverine Non-Riparian Coastal
0.013

Mitigation Site Debited: NCDMS
(List the name of the bank to be debited. For umbrella banks, also list the specific site. For NCDMS, list NCDMS. If the
NCDMS acceptance letter identifies a specific site, also list the specific site to be debited).

Section to be completed by the Mitigation Sponsor

Statement of Mitigation Liability Acceptance: I, the undersigned, verify that I am authorized to approve mitigation
transactions for the Mitigation Sponsor shown below, and I certify that the Sponsor agrees to accept full responsibility for
providing the mitigation identified in this document (see the table above), associated with the USACE Permittee and Action
ID number shown. I also verify that released credits (and/or advance credits for NCDMS), as approved by the USACE, are
currently available at the mitigation site identified above. Further, I understand that if the Sponsor fails to provide the
required compensatory mitigation, the USACE Wilmington District Engineer may pursue measures against the Sponsor to
ensure compliance associated with the mitigation requirements.

Mitigation Sponsor Name:

Name of Sponsor’s Authorized Representative:

Signature of Sponsor’s Authorized Representative Date of Signature
USACE Wilmington District
Compensatory Mitigation Responsibility Transfer Form, Page 2

Page 2 of 2

The Wilmington District is committed to providing the highest level of support to the public. To help us ensure we continue to do so, please complete the
Customer Satisfaction Survey located at our website at http://regulatory.usacesurvey.com/ to complete the survey online.

Conditions for Transfer of Compensatory Mitigation Credit:
• Once this document has been signed by the Mitigation Sponsor and the USACE is in receipt of the signed form, the
Permittee is no longer responsible for providing the mitigation identified in this form, though the Permittee remains
responsible for any other mitigation requirements stated in the permit conditions.
• Construction within jurisdictional areas authorized by the permit identified on page one of this form can begin only
after the USACE is in receipt of a copy of this document signed by the Sponsor, confirming that the Sponsor has
accepted responsibility for providing the mitigation requirements listed herein. For authorized impacts conducted by
the North Carolina Department of Transportation (NCDOT), construction within jurisdictional areas may proceed upon
permit issuance; however, a copy of this form signed by the Sponsor must be provided to the USACE within 30 days of
permit issuance. NCDOT remains fully responsible for the mitigation until the USACE has received this form, confirming
that the Sponsor has accepted responsibility for providing the mitigation requirements listed herein.
• Signed copies of this document must be retained by the Permittee, Mitigation Sponsor, and in the USACE
administrative records for both the permit and the Bank/ILF Instrument. It is the Permittee’s responsibility to ensure
that the USACE Project Manager (address below) is provided with a signed copy of this form.
• If changes are proposed to the type, amount, or location of mitigation after this form has been signed and returned to
the USACE, the Sponsor must obtain case-by-case approval from the USACE Project Manager and/or North Carolina
Interagency Review Team (NCIRT). If approved, higher mitigation ratios may be applied, as per current District
guidance and a new version of this form must be completed and included in the USACE administrative records for both
the permit and the Bank/ILF Instrument.

Comments/Additional Conditions:
None

This form is not valid unless signed below by the USACE Project Manager and by the Mitigation Sponsor on Page 1. Once
signed, the Sponsor should provide copies of this form along with an updated bank ledger to: 1) the Permittee, 2) the
USACE Project Manager at the address below, and 3) the Wilmington District Mitigation Office, Attn: Todd Tugwell, 3331
Heritage Trade Drive, Suite 105, Wake Forest, NC 27587 (email: [e-mail]). Questions regarding this
form or any of the permit conditions may be directed to the USACE Project Manager below.

USACE Project Manager: David Brown
USACE Field Office: Asheville Regulatory Field Office
US Army Corps of Engineers
151 Patton Avenue, Room 208
Asheville, North Carolina 28801-5006
Email: [e-mail]

March 10, 2021
USACE Project Manager Signature Date of Signature

Current Wilmington District mitigation guidance, including information on mitigation ratios, functional assessments, and
mitigation bank location and availability, and credit classifications (including stream temperature and wetland groupings) is
available at http://ribits.usace.army.mil.