20052146 Ver 2_USACE Correspondence_20070920

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' DEPARTMENT OF THE ARMY ~Q-d ~ 1J _7
• ~~~~~~ WILMINGTON DISTRICT, CORPS OF ENGINEERS
\\\\ PO BOX 1890
WILMINGTON NC 28402-1890
September 17, 2007
Regulatory Division
Action ID No. SAW-2005-777
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Mr. Mark A. Saunders
Seawatch at Sunset Harbor, Inc.
411 Bradley Creek Point Road
Wilmington, North Carolina 28403
Dear Mr. Saunders:
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Please reference the April 6, 2006 Department of the Army (DA) verification to utilize
Nationwide Permits (NWP) 14 (Action ID: SAW-2005-777) for permanent impacts to
jurisdictional waters and wetlands abutting and adjacent to Mercer Mill Creek for the Planned-
Unit Development Seawatch at Sunset Harbor, Holden Beach, Brunswick County, North
Carolina. Specifically, the Corps had authorized a permanent discharge of fill material into
0.464 acres of waters and wetlands for the purpose of constructing or widening seven road
crossings. Please also note Special Conditions 1, 2 and 3 of the subject verification. A copy of
the verification notice, Special Conditions, the NWP General and Regional Conditions, Wetland
Creation Plan, Conservation Declaration document and map are included for your reference.
After reviewing our records, Mr. Thomas Farrell, formerly of this office, believed the permit
to be non-compliant and sent an electronic message to your agent, Mr. Scott Kennedy of Cape
Fear Engineering, Inc on May 3, 2007. On May 4, 2007, Mr. Kennedy responded electronically
stating that they were working on the monitoring reports and Ms. Noelle Winstead, also of Cape
Fear Engineering, Inc., would be coordinating the declaration of covenants and "overseeing the
compliance issues" (see attached). On September 6, 2007, Ms. Winstead met with Ms. Kimberly
Garvey, of this office, and Ms. Joanne Steenhuis, of the N.C. Department of Water Quality, to
discuss the compliance issues. In response to the meeting of September 6, 2007 and subsequent
file review, Ms. Garvey has determined that you are non-compliant with the terms and
conditions of the subject DA authorization and in violation of Section 404 of the Clean Water
Act (33 USC 1344). The specific violations are as follows:
1) Discharge of fill material has exceeded the authorized amount at installed crossings as
required through verification and Special Condition 1;
2) Failure to implement the on-site wetland creation as required by Special Condition 2 A. and
described in the Restoration Plan;

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3) Failure to implement the on-site preservation as required by Special Condition 2 B.;
4) Violated the Terms and Conditions of Section 401 Water Quality General Certification 3402
(NWP General Condition 9);
In an effort to resolve this matter, we request that you submit to us, in writing within two
weeks of receipt of this correspondence, the following:
1) The request for modification to the permit as discussed during the September 6, 2007
meeting with Ms. Winstead, Ms. Steenhuis and Ms. Garvey;
2) As builds' for the installed crossings and an explanation of why the authorized amount
of fill was exceeded at those locations;
3) An explanation for the above-cited violations and how you propose to prevent further
non-compliance; and
4) A proposal to mitigate for the temporal loss of the aquatic functions (biological,
chemical and physical) of your exceeded impacts and on-site preservation areas.
Your compliance with this directive does not foreclose the Department of the Army's option
to initiate additional appropriate legal action including pursuing administrative fines or referral
to the United States Attorney with a recommendation for civil action.
Thank you for your time and cooperation. Should you have questions, please contact
Ms. Kimberly Garvey, of the Wilmington Regulatory Field Office, at [phone].
Sincerely,
Keith A. Harris, Chief
Wilmington Regulatory Field Office
Enclosures

Copies Furnished (with enclosures):
Noelle Winstead
Cape Fear Engineering, Inc.
151 Pool Road, Suite 100
Belville, North Carolina 28451
Copies Furnished (without enclosures):
United States Attorney
Eastern District of North Carolina
310 New Bern Avenue
Suite 800, Federal Building
Raleigh, North Carolina 27611
Mr. Pete Benjamin, Field Supervisor
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
Mr. Mike Wylie
Wetlands Section-Region IV
Water Management Division
U.S. Environmental Protection Agency
61 Forsyth Street, SW
Atlanta, Georgia 30303
Mr. Robb Mairs
Division of Coastal Management
N.C. Department of Environment
and Natural Resources
127 Cardinal Drive Extension
Wilmington, North Carolina 28405
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Ms. Joanne Steenhuis
Division of Water Quality
N.C. Department of Environment
and Natural Resources
127 Cardinal Drive Extension
Wilmington, North Carolina 28405
Mr. Danny Smith
Division of Water Quality
N.C. Department of Environment
and Natural Resources
1617 Mail Service Center
Raleigh, North Carolina 27699-1617
n McMillan
.C. Department of Environment
and Natural Resources
Division of Water Quality
2321 Crabtree Boulevard, Suite 250
Raleigh, North Carolina 27604-1621
Tracy Hobgood
Brunswick County Planning
Post Office Box 249
Bolivia, North Carolina 28422