20051672 Ver 1_More Info Received_20060411

ATTORNEYS AT LAW
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RALEIGH OFFICE
3200 BEECHLEAF COURT
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RALEIGH, NC 27604-1064
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REPLY TO RALEIGH OFFICE
KURT J. OLSON
[e-mail]
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G~ ey-r w2~ ~ 1 - ~ ~,
c' ~' y S April 10, 2006
Keith Harris, Chief
Wilmington Regulatory Field Office
Department of the Army
Wilmington District, Corps of Engineers
P. O. Box 1890
Wilmington, NC 28402-1890
Re: Action ID No.: 200500470 and 200500471
Dear Mr. Harris:
RTP OFFICE
480 BETA BUILDING
HEADQUARTERS PARK
2222 CHAPEL HILL-NELSON HWY.
DURHAM, NC 27713
TELEPHONE [phone]
TELEFAX 919.361.2262
MAILING ADDRESS
POST OFFICE BOX 13646
RESEARCH TRIANGLE PARK, NC
27709-3646
WILMINGTON OFFICE
LANDFALL PARK NORTH
1985 EASTWOOD ROAD
SUITE 200
WILMINGTON, NC 28403
TELEPHONE [phone]
I have received your March 10, 2006 letter on the above referenced action items and the
after-the-fact ("ATF") permits sought by the "McKnights" and "Wheelers" (the "applicants") for
fill on Lots 205 and 206 in the Buckhead Subdivision, Fayetteville, North Carolina. In your
letter, you request that the applicants provide you a written response on or before April 10, 2006
addressing concerns raised during the public comment period on the ATF permits. You also
state that before any ATF permits can be issued, the applicants must show that the projects
comply with the Section 404(b)(1) Guidelines by demonstrating that no practicable alternatives
exist. This letter provides a response to these issues, addressing practicable alternatives and
mitigation first and then the issues raised during the public comment period.
RALEGGI-1\490366_ 1

Keith Hams, Chief
April 10, 2006
Page 2
1. The ATF permits comply with the Section 404(b)(1) Guidelines. In your
March 10th, letter you state that because the activity covered by the ATF permits is not water-
dependent, the applicants must overcome the presumption that practicable alternatives exist.
While we agree that normally this presumption applies, the Corps and the U.S. EPA have
recognized an exception to the practicable alternatives test in the case of small landowners and
single-family housing with attendant features. See Regulatory Guidance Letter 95-01, Guidance
on Individual Permit Flexibility for Small Landowners ("RGL 95-01 ").1 For "discharges of
dredged or fill material affecting up to two acres [ofJ jurisdictional wetlands for ...the
construction or expansion of asingle-family home and attendant features ... it is presumed that
alternatives located on property not currently owned by the applicant are not practicable under
the Section 404(b)(1) Guidelines." Id. at 1. The exception applies to individual permits with up
to two acres of fill and concedes that for single-family homes and the attendant features,
"practicable alternatives are limited to [the] property owned by the permit applicant." Id. at 2.
The policy stated in RGL 95-01 also underlies Nationwide Permit 29. NWP 29
authorizes the fill of up to a 0.25-acre of non-tidal wetlands for asingle-family home used as a
personal residence. In adopting NWP 29, the Corps specifically responded to arguments that
single-family housing was not a water dependent activity and therefore alternative locations must
be presumed. The Corps emphasized that the alternatives test did not apply to NWP 29 and more
importantly that the Corps and EPA had adopted an exception to the alternatives test for single-
family housing and related features. Id. That exception, as described above, recognizes that for
single-family homes and attendant features, alternatives are limited to the property owned by the
applicant; property not currently owned is not practicable under the Section 404(b)(1)
Guidelines.
The AFTs sought by the McKnights and Wheelers are for components of single-family
residences. In accordance with RGL 95-01, it is presumed that off-site practicable alternatives
do not exist and the properties the McKnights and Wheelers own (Lots 205 and 206) are the only
I Although Regulatory Guidance Letter 95-01 expired on December 31, 2000, the Corps confirmed and extended the
policies in that letter in Regulatory Guidance Letter No. OS-06 (Dec. 7, 2005) (stating that RGL 95-01 continues to
have general applicability to the Corps' regulatory program).
RALEIGI-1\490366_ 1

Keith Harris, Chief
April 10, 2006
Page 3
practicable locations available.2 Consequently the practicable alternatives test and the 404(b)(1)
Guidelines have been met and the fill requested in the ATF permits is considered unavoidable.
See RGL 95-01(stating that the practicable alternatives test implements the avoidance step of the
three-step sequence for mitigating impacts).
You also state in your March 10th letter, however, that in addition to overcoming the
presumption that practicable alternatives exist, the applicants also must address the no-action
alternative. In this regard, it is important that practicable alternatives are to be viewed "in light
of [the applicant's] overall project purposes." See 40 C.F.R. 230.10(a)(2). The Corps has a duty
to take those project purposes into account. See e.g., Louisiana Wildlife Federation v. York, 761
F.2d 1044, 1048 (5th Cir. 1994)(Corps must take into account the applicant's overall project
purposes). While the Corps is not limited to a project definition that is designed to eliminate
alternatives, if the applicant's purposes are otherwise legitimate, the Corps is not entitled to
reject those purposes and substitute others it deems more appropriate. See Alliance for Legal
Action v. U.S. Army Corps, 314 F. Supp. 2d 534, 549 (M.D.N.C. 2004).
Here, in each case, the overall project purpose is single-family housing with features that
are commensurate with the size, style and value of the residences and in conformity with
community standards. The backyards are not merely incidental to the project purpose. They are
integral components of the project as a whole. Indeed, the importance of this project feature is
highlighted by the fact that all single-family homes in the McKnights' and Wheelers' community
have backyards. In most cases, the backyards are significantly larger than the McKnights' or
Wheelers'. Further, people acquiring housing in this size, style and price range expect functional
backyards typically including patios and decks. Neither applicant would have purchased their
respective residence absent a backyard and without a backyard, the market value of the
residences will plummet. Thus, the backyards are integral components of the projects. They
compliment the size and style of the housing, are expected (if not demanded) by the market and
are consistent with community standards. The no-action alternative would thwart the applicants'
z In fact, alternatives do not exist. The fill covered by the ATFs is for backyards to the McKnights and Wheelers
residences. The backyards are an integral component of the residences. Obviously, the backyard of a residence
cannot be placed at some off-site location and as such, off-site practicable alternatives clearly do not exist.
RALEIGIi~490366_ 1

Keith Harris, Chief
April 10, 2006
Page 4
overall project purpose, thoroughly in the case of the Wheelers, and for this reason is not
practicable.
2. Mitigation. The McKnights' ATF permit (lot no. 205, Action Id, No.
200500470) would authorize 0.036 acres of fill. The Wheelers' ATF permit (lot no. 206, Action
Id, No. 200500471) would authorize 0.054 acres. The amount of fill in each case is small and
the encroachment into the floodplain of Buckhead Creek is negligible. Notably, the McKnights'
and Wheelers' property lines go further back into the wetlands and run right up to Buckhead
Creek. By design, however, the amount of fill they are requesting is limited and provides only so
much of a backyard as to be functional and consistent with asingle-family home in the
community where the McKnights' and Wheelers' homes are located. The design impacts have
been minimized.
Based on a substantial body of experience, the Corps has found that the amount of fill at
issue here predictably will not have any perceptible adverse impact on the aquatic environment,
individually or cumulatively. See 67 Fed. Reg. at 2038 (fill of up to 0.10 of an acre will have no
more than minimal adverse effects on the aquatic environment); 67 Fed. Reg. at 2046 (fill of up
to 0.25 acre for single-family housing and attendant features not likely to have any adverse
effect). See also Decision Document Nationwide Permit 29, Section 4(b)(ii). The primary
impact referred to in the record, increased incidents of flooding along Buckhead Creek, cannot
be attributed to the minute amount of fill requested in the ATF permits. To the extent there has
been any increase in the frequency or severity of flooding along Buckhead Creek, it has to be
attributed to the significant increase in development that has occurred upstream of the
McKnights' and Wheelers' residences. Upstream, the headwaters of Buckhead Creek have been
severely impacted by road construction (All-American Freeway, Cliffdale Road, Morgantown
Road and Glensford Drive) and commercial developments (e.g., Cross Creek Mall). Most of the
upland areas are developed, and significant portions have been converted to impervious surfaces.
Almost all upstream channels of Buckhead Creek have been filled, piped, culverted or otherwise
manipulated and no open stream channels or natural stream corridors remain. Consequently,
Buckhead Creek now receives large, directed flushes of stormwater during storm events. Any
RALEIGI-1\490366_ 1

Keith Harris, Chief
April 10, 2006
Page 5
increased flooding frequency or severity is due to these conditions and changes in upstream land
use, not the very small amount of fill sought by the McKnights and Wheelers.
Nevertheless, the McKnights and Wheelers recognize the important role mitigation plays
in the permitting process and propose the following:
1. The McKnights and Wheelers will acquire 1 acre of property located behind and
downstream of their properties and will dedicate that property to a perpetual conservation use.
The property is located in the floodplain between two residential areas. It is the first remaining
well-vegetated, stable area that upstream stormwater encounters. During storm events, this
property serves to slow the flow of stormwater flushed into the creek and allows for the
deposition of alluvial material from upstream. Downstream impacts are thereby reduced.
Purchase and protection of this relatively intact, undisturbed 1-acre parcel should more than
offset any impacts of the less than 1/10th acre fill on the McKnights' and Wheelers' lots.
2. The McKnights and Wheelers also will acquire a 0.25-acre of riparian wetland from
the North Carolina Ecosystem Enhancement Program. The amount acquired here will be more
than double the amount of fill and more than offsets any impact.
3. Public Comments. Two concerns were raised about the AFT permits during the
public comment period. First, there was a concern that a restrictive covenant agreed to by the
original developer of the Buckhead subdivision had been breached. Second, comments
expressed a concern the fill has an impact on flooding and wildlife habitat.
As to the first concern, we can only reiterate that the applicants did not place the fill in
question. They acquired the property with the fill already in place and without knowledge that
the fill was there. They had no reason to suspect that there had been any violations of covenants
or regulations with respect to the property they acquired. The applicants are not culpable in any
way. This fact distinguishes their case from others that may have occurred in the general area.
The second concern raised relates to perceived ecological impacts. This concern is
discussed above. It is highly unlikely that the fill is having any adverse impact on the aquatic
environment. Any change in the character of flooding along Buckhead Creek is from changes
occurring upstream of the McKnights' and Wheelers' properties.
RALEIGI-1\490366_ 1

Keith Harris, Chief
April 10, 2006
Page 6
I trust the information in this letter is responsive to your March 10, 2006 request. If you
need additional information or have questions concerning any of the above, please email me at
kolson~a~,maupintaylor.com or call me at 919.981.4084.
Very truly yours,
.~
Kurt J. son
cc: Lillette Granade, COE
Justin McCorcle, Esq. , COE
Ken Averitte, DWQ
Cyndi Karoly, DWQ
Stormie D. Forte, Esq., DOJ
Dr. Jay H. Carter, III
Mr. and Mrs. McKnight
Mr. and Mrs. Wheeler
RALEIGH~490366_ I