20050222 Ver 1_Public Notice_20070830

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DEPARTMENT OF THE ARMY
Wilmington District, Corps of Engineers
Post Office Box 1890
Wilmington, North Carolina 28402-1890
Action ID No. SAW 2007-01209-121
PUBLIC NOTICE
August 17, 2007
INTERESTED PARTIES: The District Engineer, Wilmington District, proposes
to issue an order assessing a Class I Administrative Penalty against The Refuge at
Drummond's Point Development, for a violation of permits granted under Section 404 of
the Clean Water Act.
PERMITS INVOLVED AND ALLEGED VIOLATION: The Department of
the Army issued Nationwide Permit No. 200510019 to The Refuge at Drummond's Point
Development on November 24, 2004. This permit authorized the discharge of earthen fill
material within 0.44 acre of Department of the Army (DA) jurisdictional wetlands to
facilitate the construction of a road to provide access to a residential development, on
property identified as the Refuge at Drummond's Point Development, located off State
Road 1100, adjacent to the Albemarle Sound and the Yeopim River, in Chowan County,
North Carolina.
Permit No. 200510019 was violated as follows:
The Refuge at Drummond's Point Development failed to comply with special
condition b. of the subject permit, which states that, "The Permittee shall make payment
to the North Carolina Ecosystem Enhancement Program (NCEEP) in the amount
determined by the NC EEP, sufficient to perform the restoration of 0.75 acres of riparian
and 0.51 acres ofnon-riparian wetlands in the Pasquotank River Basin, Cataloging Unit
03010205."
"Construction within jurisdictional areas on the property shall begin only after the
permittee has made full payment to the NCEEP and provided a copy of the
payment documentation to the Corps, and the NCEEP 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."
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The Refuge at Drummond's Point Development began construction of the access
road without complying with this permit condition. The Refuge at Drummond's Point
Development constructed the access road prior to making payment to the NCEEP.
AUTHORITY FOR PROCEEDING: This Administrative Penalty proceeding
is initiated under the authority of 33 U.S.C. 1319(g) and 33 CFR Part 326.6. The
procedure for assessing civil penalties in cases such as this is set out in the statute and the
regulation. Following the discovery and investigation of a violation of a permit, notice is
given to the permittee, the appropriate state agency, and the public. The permittee, the
state, or any member of the public may file comments within 30 days. If requested by the
permittee, a hearing will be held before a Presiding Officer who will submit a report and
recommend a decision to the District Engineer. The District Engineer will issue a Final
Order on the case to the permittee. Public participation in the hearing is permitted if a
hearing is held.
PENALTY PROPOSED: The amount of the penalty proposed in this case is
$8,000. This proposal is subject to revision in the interest of justice after all evidence and
comments have been received and reviewed. The amount of the penalty that the District
Engineer is authorized to assess as a Class I Penalty is $11,000 per violation and not
more than $27,500 total. In a case involving multiple violators, each violator is subject to
a separate, not joint, penalty.
REQUEST FOR HEARING: The permittee has 30 days following receipt of
this formal notice of proposed penalty to request a hearing. Written request, by the
permittee, for a hearing should be directed to the District Engineer within this designated
comment period and must state the specific reasons for requesting a public hearing. The
request should specify, in summary form, the factual and legal issues in dispute and the
specific grounds for defense. The permittee has a right to present evidence at the hearing;
however, he may not challenge the permit condition or limitation, which is the subject
matter of this order.
COMMENTS/ADMINISTRATIVE RECORD: During the 30 day comment
period, any person may submit written comments on the proposed Penalty Order. These
comments should be sent to the District Engineer by 4:30 p.m., September 26, 2007. Any
submitted comments will be included in the administrative record relating to the
Proposed Order. All information submitted by the permittee and persons commenting on
the Proposed Order will be placed in the administrative record, which will be available
for inspection during regular business hours at the U.S. Army Corps of Engineers,
Wilmington District, 69 Darlington Avenue, Wilmington, North Carolina. (The
administrative record is subject to the provisions of law restricting the disclosure of
confidential information.) Comments should be directed to:
U.S. Army Corps of Engineers
ATTN: Justin McCorcle (CESAW-OC)
PO Box 1894
Wilmington, North Carolina 28402

PUBLIC HEARING: The permittee and all persons who file comments will be
given notice of any hearing held on this case. The permittee and all commenters will
have a reasonable opportunity to be heard and to present evidence at such hearing, if a
hearing is held.
FINAL DECISION: If the permittee does not request a hearing, the District
Engineer may issue the Final Order on this violation on or after 30 days following receipt
of this formal notice by the permittee.
POST DECISION HEARING/APPEAL: Any Final Order issued under these
procedures shall become effective 30 calendar days following its issuance unless (1) a
petition to set aside the order and to hold a hearing is filed by any person who
commented on the Proposed Order and the petition is granted, or (2) an appeal to the
United States District Court is taken under 33 U.S.C. 1319(g)(8).