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Home My WebLink About20070321 Ver 1_USACE Correspondence_200708230..T F- DEPARTMENT OF THE ARMY WILMINGTON DISTRICT, CORPS OF ENGINEERS 151 PATTON AVENUE ROOM 208 ASHEVILLE, NORTH CAROLINA 28801-5006 xErLY ro A~-,~Nr,oN of October 3, 2007 Regulatory Division Action ID. 2007-965-314 Mr. Tom Franklin Prudential Source One 10698 Ocean Highway Pawleys Island, South Carolina 29585 Dear Mr. Franklin: OCT 0 5 "t00I ~narios~QSrort~wRr~ o ~(- O 3 a. I Please reference our August 1, 2007 letter and the subsequent information submitted by your engineer, Mr. Marion Rothrock on August 24, 2007 and by Mr. Chris Huysman of Wetland and Natural Resource Consultants, Incorporated on September 7, 2007. The information provided documents that approximately 1,2801inear feet of stream channel was filled for road crossings to construct a residential development near Richland Gap in Caldwell County in which you are now the primary owner/developer for. The information submitted also documents that this work occurred from May 2003 to January 2007 by your company and the previous owner, Saddle Creek Estates, LLC. It is our understanding that you plan to apply for after-the-fact authorization for 7101inear feet of stream channel impacts and also plan to restore 4601inear feet stream channels on the site. However, based upon the information submitted, it appears that approximately 8201inear feet will remain impacted on the site versus 7101inear feet as stated. This impact will require authorization in the form of a Department of the Army Standard Permit. Within 14 days, please complete and submit the enclosed ENG Form 4345 so that we may begin to process your after- the-fact individual permit request. Please be advised that pursuant to the 1990 Memorandum of agreement between the Corps and EPA you must first avoid and minimize impacts to the maximum extent practicable. You must then provide all appropriate and practicable compensatory mitigation for unavoidable impacts. Your submission should include documentation of all measures taken to avoid and minimize impacts. Currently, you are proposing to restore approximately 4601inear feet of stream channel on the site by removing unnecessary road culverts, make payment into the N.C. Ecosystem Enhancement Program in the amount necessary to compensate for the remaining impacted stream channels on the site (which is actually 820 linear feet versus the stated 7101inear feet) and to preserve all remaining stream channels on-site at a 10:1 ratio. Assuming the on-site restoration is completed and successful, approximately 820 linear feet of stream channel will remain impacted on the site due to the construction of road crossings for this residential development. Despite 2 your proposed restoration efforts to 460 linear feet of stream channel, these streams have been impacted and impaired since the work was conducted approximately two years ago and will continue to remain impaired until the restoration is complete and determined successful which could be an additional two years or longer that these channels will remain impacted. Therefore, your after-the-fact permit request should also include a compensatory mitigation that will account for the temporal loss to these 4601inear feet of stream channels. Finally, we are very concerned about the misrepresentation and false information provided by your engineer, Mr. Marion Rothrock. During our June 28, 2007 onsite meeting and in an August 24, 2007, submittal to the Corps, Mr. Rothrock claimed he was unaware that Department of the Army permits were needed for stream channel impacts less than 150 linear feet. However, on February 16, 2007, Mr. Rothrock submitted a nationwide permit pre-construction notification (PCN) requesting a total of 64 linear feet of impacts Additionally in the February PCN, and subsequent revisions, Mr. Rothrock failed to record the extensive prior project history as required, instead choosing to complete this section of the PCN with an inappropriate and misleading response of "N/A". By copy of this letter we are hereby notifying the North Carolina Board of Examiners for Engineers & Surveyors so that they may investigate any alleged violations of provisions of the licensure law. This office is currently considering referral of this case to the Environmental Protection Agency or United States Attorney. Please be advised that a failure to comply with the above request will likely result in immediate referral to the United States Attorney with a recommendation for injunctive relief and civil penalties. If you have any questions, please contact Ms. Amanda Jones in our Asheville Regulatory Field Office, at (828) 271-7980 extension 231. Sincerely, //~' Tom Walker Chief Asheville Regulatory Field Office Copies Furnished: Mr. Marion Rothrock Rothrock Engineering 4779 Kirby Mtn. Road Lenoir, North Carolina 28645 3 Mr. Chris Huysman Wetland and Natural Resource Consultants 3674 Pine Swamp Road Sparta, North Carolina 28675 Mr. Mark T. Calloway United States Attorney Western District of North Carolina Suite 1700, Carillon Building 227 West Trade Street Charlotte, North Carolina 28202 Mr. Ronald J. Mikulak, Chief Wetlands Section-Region IV Water Management Division U.S. Environmental Protection Agency 61 Forsyth Street, SW Atlanta, Georgia 30303 Mr. Kevin Barnett NCDENR Asheville Regional Office Division of Water Quality 2090 U.S. Highway 70 Swannanoa, North Carolina 28778 Ian J. McMillan Coordinator 401/Wetlands Permitting and Oversight Unit 2321 Crabtree Blvd. Suite 250 Raleigh, North Carolina 27604 Mr. Ron Linville NC Wildlife Resource Commission Western Piedmont Region Coordinator 3855 Idlewild Road Kernersville, North Carolina 27284-9180 Ms. Audrey Thomas NC Board of Examiners for Engineers & Surveyors 4601 Six Forks Rd., Suite 310 Raleigh, North Carolina 27609 4 Mr. Randy Feierabend Caldwell County Planning Department 1051 Harper Ave. SW Lenoir, North Carolina 28645 Mr. Tione Sujak Mickalich & Associates 1418 Underdown Avenue, SW Lenoir, North Cazolina 28645 Ms. Janet Boyer Regional Engineer NC Division of Land Resources Land Quality Section 2090 US Hwy 70 Swannanoa, North Carolina 28778-8211