20231100 Ver 1_Public Notice Comments_20230905

Michael Michael Best & Friedrich LLP
Best Attorneys at Law
Jack D. Wiggen
T 910.218.3958
E [e-mail]
September 5, 2023
North Carolina Division of Water Resources
ATTN: Andrew Pitner, Water Quality Supervisor
andrew.pitner&deq. nc.gov
610 East Center Ave., Ste. 301
Mooresville, NC 28115
Re: Individual Water Quality Certification — Mayes Meadow
Dear Mr. Pitner,
Our firm represents Water & Land Solutions, LLC ("WLS"), a mitigation provider and both owner
and sponsor of the Upper Rocky Stream and Wetland Mitigation Bank (the "Bank"), partially located on
the proposed Mayes Meadows development parcel. The Bank was approved by the U.S. Army Corps of
Engineers ("USACE") and North Carolina Division of Water Resources ("NCDWR") on November 27,
2020, and the conservation easement deed on the Mayes parcel was closed on May 26, 2020. This
conservation easement deed was reviewed and approved by USACE counsel before closing. The Bank is
protected by a permanent conservation easement (the "PCE") held in perpetuity by a non-profit long-term
steward, Unique Places to Save ("UP2S"), and recorded on June 25, 2020, with the Mecklenburg County
Register of Deeds. The PCE permanently protects 43.743 acres across four parcels, including 16.681 acres
on the Mayes Meadows parcel. The PCE boundary is marked throughout with yellow signs affixed to T-
posts and trees. The proposed residential development project depicted in the public notice document has
several encroachments into the PCE. These encroachments are not authorized or approved by WLS or the
USACE. WLS and UP2S are legally obligated to defend the easement. The encroachments depicted include
sewer crossing, greenway crossing, and residential lots. None of these uses are allowable under the terms
of the PCE. There are approximately 0.89 acres of unauthorized encroachment, including multiple stream
and wetland impacts. Avoidance measures for the encroachments to the PCE require modifying the
proposed design and/or modifying the PCE limits. Bayard Group has proposed amending the PCE by
adding 1.54 additional acres to compensate for the encroachments. However, any amendment must be
approved by the USACE and the easement holder, UP2S. Neither USACE nor UP2S have approved any
such amendment.
Further, the Mayes Meadows stream and wetland delineation was completed prior to ecological
restoration work within the PCE, resulting in inaccurate stream channel locations and likely inaccurate
wetland boundaries. WLS obtained a Preliminary Jurisdictional Determination (PJD) for the subject area
on October 10, 2019, prior to restoration work, and completed all restoration activities by March 2022.
Stream and wetland locations within the PCE should reflect the Baseline Monitoring Report (As -Built),
approved by the USACE on July 5, 2022.
5815 Oleander Dr, Suite 300 Wilmington, NC 28403 T 984.220.8750 1 F 877.398.5240
michaelbest.com

1 Michael
Best
September 5, 2023
Page 2
In summary, there is an existing PCE and mitigation bank on a portion of the proposed Mayes
Meadows subdivision footprint, and there are currently no approved amendments to this PCE or
authorization for any construction activities in the PCE. Unauthorized development activities within the
PCE may result in legal action to restore the PCE to its original condition and prevent future encroachments.
Sincerely,
MICHAEL BEST & FRIEDRICH LLP
Jack riggen
cc: Doug Perez, USACE PM, via email: dougj.perezgusace.army.mil
Ken Holbrooks, Bayard Development, via email: kengbavarddevelopment.com
Daniel Ingram, Water & Land Solutions, L.L.C.
Cara Conder, Water & Land Solutions, L.L.C.
M BF\213635-0029\35674969.v3