20061416 Ver 1_Emails_20070912

Westfall Letter Chatham county
Subject: Westfall Letter Chatham county
From: "Kevin Martin" <[e-mail]>
Date: Wed, 12 Sep 2007 11:28:00 -0400
To: <[e-mail]>, <[e-mail]>, <[e-mail]>
CC: <[e-mail]>, <[e-mail]>
As mentioned in the voicemails I left John and Tom, I was surprised to receive this letter. Last I heard there was
to be no letter written unless needed by us to resolve any questions raised by the county. In addition I had
previously pointed out ways to clarify the letter (including exhibits) and some factual errors in the previous drafts.
I understand that you had gotten requests from Allison Weakly regarding John's original site visit that occurred
without my client's knowledge and then the follow up visit I had with John and the Corps. I wish after all the
history of this project you would have had the courtesy to let me know the letter was going out so you could be
sure the facts were correct. I have discussed this with the client and at this time they are waiting to decide what
if anything to do based on the reaction they get from the County after Ms. Weakley (in this case I am not sure if
she is acting as an agent of the county or an adjacent property owner since her involment predates her
appointment to the county ERB, when she requested the letter; who did she say she represented?) presents the
letter to them. The owner has gone above and beyond the requirements to comply with regulations on this site
and has endured harassment like I have never seen before.
I do want to take to take the opportunity to point out the major mistakes in the letter just to make the point of why
I should have been consulted before its release (or at least my previous comments given due consideration)
(1)The letter states that it is important to note Monte Matthews of the Corps had the same conclusion as to the
origin of Feature A. In reality, Mr. Matthews stated that a section beginning at the origin point DWQ identified
and extending about 60' down slope was questionable and he wanted to bring his supervisor (Jean Manuele) to
the site to review it with him. After that review the Corps concluded that it was not a jurisdictional water of the US
based on the pre Rapanos criteria they have historically used including Regulatory Guidance letter 05-05. The
Corps then signed the wetland delineation that we had performed and that was reviewed by the Corps in the
field prior to the Corps being told not to sign any delineations as a result of Rapanos. The client signed a
statement that they wanted the site evaluated under pre Rapanos criteria so the determination that this was not
a Water of the US had nothing to do with the Rapanos decision. Secondly the Corps did not determine that the
reason for the feature being non jurisdictional was that it was isolated, rather it was just not jurisdictional
because their criteria for jurisdiction were not met.
(2) Next the letter states that DWQ staff determined that the feature is isolated in the context of their isolated
wetland rules.DWQ is not authorized to make such a determination, According to the Isolated wetland rules the
state does not determine what is an isolated water the Corps does:
15A NCAC 02H .1301 SCOPE AND PURPOSE
(b) This Section outlines the application and review procedures for permitting of discharges into isolated
wetlands and isolated classified surface waters which have been listed in 15A NCAC 02B .0300. I f the LJS
Anny Corps of Engineers or its designee determines that a particular water or wetland is isolated and not
regulated under Section 404 of the Clean Water Act, then discharges to that water or wetland shall be
covered by this Section (15A NCAC 02H .'1301 - .1305).
(3)You state that the Corps has determined that impacts to this "stream" do not require further permitting. This is
misleading since the Corps does not agree that this is a regulated stream and because an email from the previous DWQ
director Alan Klimek on 5/23/07 stated " we won't second guess a Corps call and/or try to claim
jurisdiction over state waters that are not waters of the U.S. (we will
maintain that we have broad authority in our statutes, as you and I have
discussed)". The reality of the matter is that the Corps (and based on Mr. Klimek's email that has not been rescinded by the
new director to my knowledge)) and the state have concluded that this is not a regulated feature so of course no permitting
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