HomeMy WebLinkAbout20220276 Ver 1_USACE Correspondence_202203171
Anderson, Mitchell L
From:Moore, Andrew W
Sent:Thursday, March 17, 2022 1:31 PM
To:Anderson, Mitchell L
Subject:FW: [External] Use of NWP 29 for After-the-Fact Authorization of Impacts to WoUS - Obst Property
Baler Drive
From: Brown, David W CIV USARMY CESAW (USA) <David.W.Brown@usace.army.mil>
Sent: Thursday, March 17, 2022 12:03 PM
To: thomas mcsweeney <tjmcs5840@gmail.com>
Cc: Moore, Andrew W <andrew.w.moore@ncdenr.gov>
Subject: [External] Use of NWP 29 for After‐the‐Fact Authorization of Impacts to WoUS ‐ Obst Property Baler Drive
CAUTION: External email. Do not click links or open attachments unless you verify. Send all suspicious email as an attachment to
Report Spam.
Tom McSweeney
Reference is made to your email of March 16 requesting the Corps to respond to Mr. Obst’s comments pertaining the
Corps’ decision to utilize Nationwide Permit (NWP) 29 instead of NWP 3 for after‐the‐fact authorization of impacts to an
unnamed tributary (UT) of Boylston Creek. After Storm Fred, Mr. Obst removed debris from the UT and made repairs to
an existing piped reach of the stream in the north portion of his residential property off Baler Drive.
The activities to remove debris from the stream channel and make repairs to the existing culvert that was within the
stream prior to the storm did need require a permit from the Corps. Installation of 120 liner feet of new pipe beyond the
footprint of the existing piped stream reach did required authorization from the Department of Army prior to Mr. Obst
conducting this work. As you know, the Corps issued a notification of unauthorized activity in December 2021 for the
installation of this new pipe.
Installing 120 linear feet of new pipe in a reach of stream that was not piped previously is not considered a maintenance
activity which can be authorized under NWP 3. This was not repair, rehabilitation, or replacement of a previously
authorized, currently serviceable structure or fill, or of a currently serviceable structure or fill authorized by 33 CFR 330.
Also, NWP 3 does not authorize new stream channelization or stream relocation projects. Under NWP 3 any stream
channel modification is limited to the minimum necessary for the repair, rehabilitation, or replacement of the existing
structure or fill. Adding 120 linear feet of new pipe is a significant channelization of the UT and is well beyond the
footprint of the original 20‐30 feet of piped stream at this location.
The work conducted to pipe the new reach of stream did not restore the stream and/or stabilize stream banks or
channel to conditions within the stream prior to the storm. Piping the stream and the grading of the of the property
after piping the stream did provide an expansion of graded ground at the residential property. The work does fit under
NWP 29 which can authorize the construction of building foundations and building pads and attendant features that
are necessary for the use of the residence or residential development.
If a project proponent requests authorization by a specific NWP, the Corps should issue the NWP verification for that
activity if it meets the terms and conditions of that NWP. However, the Corps has the authority to determine if an
activity can satisfy the terms and conditions of the specific requested NWP or determine if the activity can be authorized
under a different NWP.
2
As noted above, the work to pipe 120 linear feet of stream does not meet the terms and conditions of NWP 3. The work
conducted to pipe the new length of stream does meet the conditions of NWP 29 and Corps is prepared to authorize the
impacts to the stream utilizing NWP 29. This will provide Mr. Obst the opportunity to clearly meet the requested
remedial actions of the notification of unauthorized activity.
If Mr. Obst chooses to withdraw the request to obtain after‐the‐fact authorization for impacts to the stream utilizing
NWP 29, then he can request the Corps to withdraw the permit application. Do note, if the application is withdrawn, the
requested remedial action of the notification have not been meet and the Corps may initiate actions to encumber the
property. 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
david.w.brown@usace.army.mil