20051672 Ver 1_Staff Comments_20051116

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November 16, 2005
MEMO
TO: Alan Klimek
THROUGH: Tom Reeder
FROM: Cyndi Karoly
Belinda Henson
Ken Averitte
RE: Proposed 401 Certification denial
Dr. Bruce Wheeler, residential fill
Lot 206 Buckhead Subdivision
4431 Ferncreek Drive, Fayetteville
DWQ # OS-1673
-and-
Terry and Katherine McKnight
lot 205 Buckhead Subdivision
4427 Ferncreek Drive
DWQ# OS-1672
Cumberland County
Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Alan W. Klimek, P.E., Director
Division of Water Quality
Enclosed for your review are the copies from the 401 file for this project, as well as copies of pertinent
information regarding the history of permitting within the Buckhead subdivision.
The Central Office and Fayetteville Regional Office recommend that this project be denied due to the removal of
wetland uses as well as lack of a demonstrated need for this fill (although proof of "purpose and need" fall under the
review of the US Army Corps of Engineers in this IP situation.) Although these are admittedly very small impacts, they
lie within a subdivision that has received prior authorization for wetland fill. As a condition of the 401 Certification for
the previous fill activities, the developer, Broadwell Land Company, placed restrictive covenants on remaining lots that
contained wetlands. These two lots were specifically identified by lot number in the restrictive covenants. Also, the stream
involved at the rear of these lots (Buckhead Creek) already has a minimal flood plain. The entire watershed for this stream
is an intensely developed commercial area, estimated at probably > 75-80 percent impervious surface. Neighborhood
residents are already experiencing flooding in parts of this and adjacent developments. Although dry weather flows are
minimal, reports have indicated that even a half inch rainfall event will create a torrential stream flow in this area.
Also, in 2001, a similar situation took place within this development, about one block from these lots. The
landowner in that case, Dr. Ed Schulz, was advised by regional office staff that the FRO would recommend denial of any
404 permit or 401 certification for his activity (a stream relocation and wetland fill). He was required to restore a section
of Buckhead Creek behind his house to conditions that existed prior to his disturbance. After considerable discussion, he
completed this effort. (He was advised that any FRO approval of his project might set a precedent and spawn additional
fill requests on an already compromised stream and floodplain.) Those concerns still exist, as well as the issue of arbitrary
enforcement of the rules.
Dr. Wheeler and Mr. and Mrs. McKnight apparently purchased these homes as they currently exist. The builder,
Mr. Tim Jackson, contends that he placed no fill on the lots. Unfortunately, no concrete evidence has been gathered to
No°e hCarolina
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North Carolina Division of Water Quality 225 Green Street -Suite 714 Fayetteville, NC 28301-5043 Phone [phone] Customer Service
Internet: h2o.enr.state.nc.us FAX [phone]
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disprove this, although an adjoining property owner contends that Mr. Jackson did in fact place the fill prior to
construction of the houses. Also, a fairly large black gum tree was observed, alive, on the McKnight lot in the fall of 2004,
within the fill area. This tree has since died, as would be expected when fill is placed around the roots. Placement of even
12 to 18 inches of fill will usually kill or stress such trees within a matter of weeks. Resolution of this matter lies between
the homeowner and the builder.
If additional information or clarification is required, please advise.
Cc Ken Averitte, FRO
Rick Shiver
File copy