20050736 Ver 1_Other Agency Comments_20050401

Regulatory Division
Action ID. 200520456
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
PO BOX 1890
WILMINGTON NC 28402-1890
March 28, 2005
Mr. Mark Miller
K. Hovnanian Homes of North Carolina, Inc.
3500 Regency Parkway, Suite F
Cary, North Carolina 27511
Dear Mr. Miller:
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Please reference your permit application of February 14, 2005, for Department of the Army
(DA) permit authorization for impacts associated with the extension of Louis Stephens Drive within
Heritage Pines Subdivision, located east of Carpenter Upchurch Road, and south of Morrisville
Parkway, in Cary, Wake County, North Carolina. The site is adjacent to an unnamed tributary of
Crabtree Creek in the Neuse River Basin. Your application requested authorization for impacts to
256 linear feet of perennial stream channel and 0.484 acres of wetland.
On February 22, 2005, Mr. Todd Tugwell with the Raleigh Regulatory Field Office
attended a meeting on the site with Mr. Todd Preuninger with Soil & Environmental Consultants,
Inc. to review the proposed work. Prior to the meeting, Mr. Tugwell determined that nationwide
permit authorization had previously 'ded to the former developer of the subdivision, Mr. J.
Michael Edwards, for impacts totali g 0.913 re of waters of the U.S. associated with Phase 1 of
the subdivision. During the meeting, T wvell discovered that you have already constructed
several additional phases of the development, or are currently in progress. Based on maps obtained
from Soil & Environmental Consultants, Inc., it appears that the construction of roads, lot fill, and
sewer lines required for the additional phases of the development have resulted in the loss of 0.956
acre of waters of the U.S. and approximately 180 linear feet of perennial stream channel, and
temporary impacts to 0.1 acre of wetlands. These activities, conducted in waters of the United
States without authorization by a DA permit, are a violation of Section 301 of the Clean Water Act
(33 U.S.C. 1311).
We also received a letter dated March 18, 2005, submitted on your behalf by Mr. Bob
Zarzecki with Soil & Environmental Consultants, Inc., which states that it is your intention to cease
all on-going work in areas containing waters of the U.S. within unfinished portions of Phase 5 of the
development. The letter stated that Soil & Environmental Consultants, Inc. is currently preparing
an after-the-fact individual permit application for the unauthorized activities. Please note that our
acceptance of an after-the-fact permit application does not imply, by the Corps of Engineers or other
agencies, either a favorable or an unfavorable opinion of the work performed. Please note that
CERTIFIED !MAIL
RETURN RECEIPT REQUESTED
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while you pursue after-the-fact permit authorization for impacts associated with the development,
we will suspend further enforcement actions pending the outcome of your permit request.
Also, please be aware that your individual DA permit application will be evaluated in
accordance with procedures established in a Memorandum of Agreement (MOA) between the
DA and the US Environmental Protection Agency (EPA), signed on February 6, 1990. The
MOA clarifies the type and level of mitigation necessary to comply with the Clean Water Act
Section 404(b)(1) Guidelines. This MOA provides for first, avoiding impacts to waters and
wetlands through the selection of the least damaging, practical alternative; second, taking
appropriate and practical steps to minimize impacts on waters and wetlands; and finally,
compensating for any remaining unavoidable impacts to the extent appropriate and practical. To
comply with this MOA, you are required to provide the following information in support of your
after-the-fact permit application:
a. Permits for work within wetlands or other special aquatic sites are available only if the
proposed work is the least environmentally damaging, practicable alternative. Your application
must contain information regarding any other alternatives, both on and off site, to the work for
which you have applied, and demonstrate that your selected plan is the least damaging to aquatic
resources.
b. It is necessary for you to have taken all appropriate and practical steps to minimize losses to
waters of the U.S. Documentation submitted in support of your permit application must indicate
all that you have done; especially regarding the modification of plans and proposed construction
techniques, to minimize adverse impacts (i.e., to reduce the discharge of fill material into waters
of the United States as much as practicable). Your response should address alternate site designs,
which may result in reduced impacts to the aquatic environment.
c. The MOA requires that appropriate and practical mitigation (e.g., restoration, enhancement,
and/or preservation of wetlands and stream channels) will be required for all unavoidable adverse
impacts remaining after all appropriate and practical minimization has been employed. Please
note that mitigation may be required for all direct and indirect impacts that result in a degradation
of the aquatic resources on site.
Please submit your completed after-the-fact permit application to the Raleigh Regulatory
Field Office no later than April 27, 2005. If additional time is required for restoration of the site
or to prepare your permit application, you should contact my staff with a request for an extension
of time, providing justification(s) for the delay. Please be reminded that no further work within
wetlands or waters can occur on your property until this matter is resolved. Such work, without
authorization by a DA permit, will be considered a willful and intentional violation of the Clean
Water Act, and may result in referral of this matter to the U.S. Attorneys Office for appropriate
action.
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With regard to the proposed construction of Louis Stephens Drive, we have determined
that the proposed road is a separate thoroughfare. Therefore, we consider it as a separate project
for the purposes of DA permit requirements. Since the road's construction will benefit the
surrounding community and the Town of Cary will take over maintenance following its
construction, it is necessary that the Town of Cary apply for these impacts separately.
Accordingly, the Town of Cary can submit an application for the road before we resolve the
violation at the subdivision. We are forwarding a copy of this letter to the Town of Cary so that
they may take appropriate action in this matter.
Please contact Mr. Tug-well, at telephone [phone], Extension 26, if you have any
questions or comments.
Sincerely,
1
S. Kenneth Jolly
Chief, Regulatory Division
Copy Furnished
Mr. Bob Zarzecki
Soil & Environmental Consultants, Inc.
11010 Raven Ridge Road
Raleigh, NC 27614
U.S. Attorney
Eastern District of North Carolina
310 New Bern Avenue
Federal Building, Suite 800
Raleigh, North Carolina 27601-1461
Mr. Ron Mikulak, Chief
Wetlands Regulatory Section
U.S. Environmental Protection Agency
61 Forsyth Street
Atlanta, Georgia 30303
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Ms. Cyndi Karoly
North Carolina Department of Environment
and Natural Resources
Division of Water Quality
Wetland/401 Unit
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Mr. Tim Bailey
Town of Cary
Engineering Department
Post Office Box 8005
Cary, NC 27512-8005
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