20050732 Ver 01_Emails_20061010

Briar Chapel
Subject: Briar Chapel
From: "Levitas, Steve" <[e-mail]>
Date: Tue, 10 Oct 2006 13:57:07 -0400
To: <[e-mail]>
CC: <[e-mail]>, <[e-mail]>, "Bachl,
Carolyn" <[e-mail]>
John - As we discussed on Friday, we need your help to address a very problematic situation at Briar Chapel.
The 404 permitting process for this project has been one of the longest of my experience, with a large portion of
the delay due to the Corps simply being too busy to get to our permit. In addition, the length of the 401 process,
including the hearing, was a contributing factor. I think we were very cooperative and patient during that
process, so I hope you will be sympathetic to our dilemma. We have had road crossing construction on hold for
months during the prime construction season and are now really in a jam. We now finally have the 404 permit
and the only thing preventing us from getting to work is the 401 requirement that we have an approved
monitoring plan in place before beginning work. You have approved our plan in almost every respect, but
directed Briar Chapel to submit a revised plan for our approval that corrected a few deficiencies. The required
corrections were these:
(1) Adding upgradient groundwater monitoring. V"`
(2) Clarifying that monitoring would be done on "perennial and intermittent" streams rather than "perennial and
ephemeral" streams. This really just amount to correcting a typo.
(3) Adding macrobenthos sampling before construction and making clear that subsequent macrobenthic
sampling will be done at the same time of year as the pre-construction sampling.
(4) Stating that we will use DWQ rather than EPA procedures.
As we discussed, Newland has no problem with items (2) through (4). While we are happy to get you a revised ~--
plan as requested that incorporates these changes, we hope you will agree that my representation to you that
the plan has been modified to incorporate those minor changes is sufficient to allow us to proceed with
construction.
With respect to item (1), for several reasons, we don't think upgradient groundwater monitoring is necessary
(and it will add significant expense to an already very expensive monitoring program with no commensurate
benefit).
1. The approved non-discharge permit for Briar Chapel does not require any groundwater monitoring as the
water will be treated to North Carolina reclaimed water standards with additional nitrate removal.
2. The locations of the monitoring wells in the Environmental Monitoring Plan for Briar Chapel were chosen
to be down-gradient of those sprayfields for which groundwater from those fields will likely move off the
Briar Chapel property. These directions are the result of the comprehensive hydrogeologic study that
was completed as part of the non-discharge permit submittal requirements/Q/APS reviewed and
approved that study, which included athree-dimensional groundwater flow model.
3. The reclaimed water will be applied to over 250 diffuse areas within the development, including medians
ballparks, and landscape areas, as well as dedicated sprayfield areas.
4. In the event of an exceedence of the NC 2l_ standards in any monitoring well at the down-gradient Briar
Chapel property boundary, DWQ/APS regulations for investigation of the cause of the exceedence and
the need for any remedy will apply. The presence of up-gradient monitoring wells will not aid in this
situation will not materially aid in this process because if the exceedence did not arise from the
sprayfields, it would necessarily have to have originated from some other place in the development and
would still have to be addressed.
5. Upgradient wells are not necessary to support the certification, required by Section 401, that the project
will not result in violations of water quality standards.
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Briar Chapel
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Under the circumstances, we hope you will agree that the upgradient well requirement is not
necessary. Thanks very much for your help. We look forward to hearing from you.
Steve
KTLPATRICK
- STOCKTdN LLP
Attarncys at Latin
Steven J. Levitas
Kilpatrick Stockton LLP
Suite 400
3737 Glenwood Avenue
Raleigh, NC 27612
t 919 420 1707
f 919 510 6145
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