20051673 Ver 1_Other Agency Comments_20051121

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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Atlanta, Georgia 30303 - 8960
November 17, 2005
Colonel John E. Pulliam, Jr.
District Engineer
ATTN: Ms. Lillette Grande
U.S. Army Corps of Engineers
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Wilmington, NC 28402-1890
SUBJ: Bruce M. Wheeler Public Notice
Buckhead Subdivision
Action ID: 200500471
Dear Colonel Pulliam:
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This letter is in reference to the application by Bruce Wheeler described in the above
referenced Public Notice (PN) dated September 23, 2005. The applicant is applying for an
after-the-fact permit to retain unauthorized fill that was placed on his residential building lot for
the development of a backyard. The Wheeler lot is located in Buckhead Subdivision in
Fayetteville, Cumberland County, North Carolina. The subdivision developer (Dohn Broadwell)
received a Nationwide Permit 26 on December 31, 1997, to discharge authorized fill into 0.9
acres of wetlands for the construction of single family residences. The 401 Water Quality
Certification required the developer to place a deed notification on certain lots in the subdivision
to prevent future impacts to the remaining wetlands in the development. Of the 0.9 acres of fill
originally permitted, 0.13 acres was designated for the lot in question to provide upland area for
the construction of a single dwelling. This lot was subsequently divided into two lots by the
builder (Tim Jackson). These lots are designated as lots 205 and 206 with Lot 206 being
purchased by the applicant. Lot 206 received an additiona10.054 acres of unauthorized fill
which was used to provide a backyard for the residence. The lot owner would like to keep the
unauthorized fill and has offered to mitigate for this impact, although no mitigation plan was
provided with the PN. The Environmental Protection Agency (EPA), Region 4, has reviewed the
project information contained in the PN and have the following concerns with the proposed
project.
Although the EPA is sympathetic with the applicant's position since they were evidently
not responsible for the unauthorized fill, we have strong concerns about the granting of an after-
the-fact permit to allow the fill for the backyard to remain in place for several reasons. The
initial nationwide permit for the development was issued with the Division of Water Quality 401
Water Quality Certification condition that the remaining wetlands in the development be placed
under a deed restriction to protect future impacts to these wetland areas. The Water Quality
Certification was issued with the understanding that the remaining wetlands would be protected.
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The EPA has reviewed a copy of the property deed and it clearly states the 401 condition that the
remaining wetlands on the lot are protected. We are strongly opposed to overturning the
conditions of the original certification by granting a permit to allow the protected wetlands to be
removed from jurisdiction by allowing the unauthorized fill to remain in place. Furthermore, we
do not believe that the removal of the fill would satisfy the avoidance and minimization
requirement of Section 404 of the Clean Water Act.
We are also concerned about the potential for increased flooding that will likely occur
due to fill placed in the riparian wetlands in the floodway along Buckhead Creek. Wetlands
function to attenuate flooding and removal of any remaining wetlands in the floodway will only
exacerb,:te the flooding problerri which aircady exisis aiong i3uckhead Creek
In summary, we recommend the after-the-fact permit not be issued and the unauthorized
fill be removed. We hope the applicant will be able to pursue and receive legal compensation for
the loss of property value from whoever placed the unauthorized fill on their building lot. EPA
appreciates the opportunity to comment on this project. If you have any questions regarding
these comments, please contact Becky Fox at [phone] or fox.rebecca@ epa.gov.
Sincerely,
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Ronald J. Mikulak, Chief
Wetlands Regulatory Section
cc: USFWS, Raleigh
NCDWQ, Raleigh
NCDWQ, Wilmington