20051673 Ver 1_Denial Letter_20051122

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November 22, 2005
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
DWQ#: OS-1673
Cumberland County
CERTIFIED MAIL -RETURN RECEII'T REQUESTED
Dr. Bruce M. Wheeler
4431 Ferncreek Drive
Fayetteville, North Carolina 28314
Subject: Denial of Request for 401 Water Quality Certification
Residential Fill at 4431 Ferncreek Drive, lot 206 Buckhead Subdivision
Cumberland County
Dear Dr. Wheeler:
Your application for a Water Quality Certification under Section 401 of the Federal Clean Water Act was
received on September 27, 2005. The activity for which the Certification is requested is to allow
residential fill to remain in 0.036 acre of wetlands behind your home located at 4431 Ferncreek Drive in
Cumberland County. A Water Quality Certification represents a determination by the Division that the
activity, for which the federal permit or license is being required, is not expected to result in a violation
of state water quality standards for Waters of the State.
After a thorough site inspection of your property and review of your submittals, our staff has determined
that significant existing uses are present in the wetlands as described in 15A NCAC 2B .0220. As
provided by 15A NCAC 2H .0506, our review must determine whether a proposed project will remove or
degrade the existing uses of a wetland. In accordance with these rules, the Division has determined that
the existing fill has degraded or totally removed existing wetland uses and is therefore not an approvable
project under 15A NCAC 2H .0506. This conclusion is based on our determination that you have failed
to demonstrate sufficient purpose and need for this fill, as well as on our review of the permit history for
this development. Specifically, the developer for this subdivision, Broadwell Land Company, was
required to place restrictive covenants on certain lots within the development as a condition of a 401
Certification issued April 23, 1998. Lot 206 is specifically mentioned in the recorded Restrictive
Covenants which state in part "...A portion of this Zot has been determined to meet the requirements for
designation as a regulatory wetland. Any subsequent fill or alteration of this wetland shall conform to the
requirements of the state wetland rules adopted by the State of North Carolina in force at the time of the
proposed alteration. The intent of this provision is to prevent additional wetland fill, so the property
owner should not assume that a future application for fill would be approved...This covenant is intended
to ensure continued compliance with wetland rules adopted by the State of North Carolina and therefore
benefits may be enforced by the State of North Carolina. This. covenant is to run with the land and shall
be binding on all parties and all persons claiming under them."
N~°e Carolina
~tura!!y
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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Dr. Wheeler
Page 2 of 2
November 22, 2005
Furthermore, the contract for this property contains the following wetlands stipulations: "Buyer accepts
full knowledge of the existence of WETLANDS on the rear of lots 20S and 206. Buyer takes full
responsibility of having proper survey made to determine WETLANDS location, so as not to disturb such
area and adhere to stipulations as quoted on Page Three of this contract." Therefore, I am hereby
notifying you that this project, in the state that it currently exists, is in violation of 15A NCAC 2H.0506,
and in accordance with 15A NCAC 2H .0507(e), your application fora 401 Water Quality Certification
is hereby denied.
If you wish to appeal this decision, you have the right to an adjudicatory hearing upon written request
within sixty (60) days of your receipt of this denial. To ask for a hearing, send a written petition, which
conforms to Chapter 150B of the North Carolina General Statutes to the Office of Administrative
Hearings, P.O. Box 27447, Raleigh, N.C. 27611-7447. This denial is final and binding unless you ask for
a hearing.
Should you have information that you believe may alter our decision, we are available to discuss this
matter further. Please direct such information, or questions regarding this denial, to Mr. Ian McMillan at
919-715-4631, Ms. Cyndi Karoly at 919-733-9721, or Ken Averitte at our Fayetteville Regional Office at
910-486-1541.
Sincerely,

Alan W. Klimek, P.E.
AWK/ka
cc: Ken Averitte, DWQ, FRO
Lillette Granade, US Army Corps of Engineers, Wilmington Field Office
Ken Jolly, US Army Corps of Engineers, Wilmington District Office
File copy
Central files
Dr. J.H. Carter III
Rebecca Fox, US Environmental Protection Agency -Region IV