20061658 Ver 1_Other Agency Comments_20080613

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P. O. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
IN REPLY REFER TO
Regulatory Division
Action ID No. SAW 2005-01182
June 9, 2008
Ms. Cyndi Karoly
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Dear Ms. Karoly:
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In a letter dated July 20, 2007, the U.S. Army Corps of Engineers Wilmington District,
notified Bill Clark Homes of Wilmington, LLC of alleged violations of permit conditions or
limitations associated with the Carrington Woods residential development, located south of
Murrayville Road, in wetlands adjacent to and including Smith Creek, in Wilmington, New
Hanover County, North Carolina. Our District Engineer proposes to assess a Class I
Administrative Penalty under the authority of 33 U.S.C. § 1319(g) and 33 CFR Part 326.6. We
are required to furnish you a copy of the Proposed Order and the information contained in the
enclosed Public Notice.
You may provide written comments on the Proposed Penalty Order at anytime within
30 calendar days after receipt of this notice. Your comments should be addressed to the District
Engineer, care of Mr. Justin McCorcle, Office of Counsel, Wilmington District, U.S. Army
Corps of Engineers, P.O. Box 1890, Wilmington, North Carolina 28402.
The violator may also provide written comments and/or request a hearing on the Proposed
Penalty Order at anytime within 30 calendar days after receipt of this notice. A request for a
hearing must be in writing, specifying in summary form the factual and legal issues that are in
dispute and the specific factual and legal grounds for the defense.
If the violator does not request a hearing, the District Engineer will withdraw, issue, or
modify and issue the enclosed Proposed Order as a Final Order. The decision will be based on
the administrative record, including any comments and/or evidence submitted by the violator and
members of the public. All evidence will be considered, and the decision will be based on a
preponderance of the evidence, that is, on the greater weight of evidence that is credible and
convincing to the mind.
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Please direct any questions regarding this matter to Mr. McCorcle at the address provided
above, or by telephone at [phone].
Sincerely,
S. Kenneth Jolly
Chief, Regulatory Division
Enclosures
Permit: USACE Permit No. 2005-01182
PROPOSED ADMINISTRATIVE PENALTY ORDER
Under the authority granted by 33 U.S.C. § 1319(g) and 33 CFR Part 326.6, I,
Colonel John E. Pulliam, Jr., District Commander, Wilmington District, propose to issue this
order assessing a Class I Administrative Penalty for violation of the above-referenced permits.
Name/Address of Permittee:
Mr. Heath Clark
Bill Clark Homes of Wilmington, LLC
430 Eastwood Road, Suite 100
Wilmington, North Carolina 28403
Permitted Activity:
Temporary impacts to 0.11 acres of Department of Army (DA) jurisdictional (Section 404)
wetlands adjacent to Smith Creek and 30 linear feet of stream channel (Smith Creek), for the
purpose of installing a gravity sewer line associated with the Carrington Woods residential
development, located south of Murrayville Road, in Wilmington, New Hanover County, North
Carolina, consistent with the application and plans for USACE Nationwide Permit No. 12.
Condition(s) or Limitation(s) of Permit Reportedly Violated:
Bill Clark Homes of Wilmington, LLC failed to comply with the terms and conditions of
the Nationwide Permit 18. Specifically, they failed to comply with General Conditions 2,
3, 9.b, and 24 and Regional Condition 3.b of the subject authorization.
Description of the Nature of the Violation(s):
1) Failure to properly maintain any fill activity, to include maintenance to ensure public safety
(NAP General Condition 2);
2) Failure to maintain appropriate soil erosion and sediment control measures (NWT General
Condition 3 and Regional Condition 3.b);
3) Failure to provide and maintain water quality management measures, associated with the
authorized activity, to ensure no more than minimal adverse effects on water quality (NWP
General Condition 9.b);
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4) Failure to remove all temporary fills and return the affected area to its preexisting condition
(NVWP General Condition 24).
I propose to assess a Class I Administrative Penalty against the permittee in this case for $7,500;
however, this proposal is subject to revision in the interest of justice after all evidence and
comments have been received and reviewed. The amount that may be assessed as a Class I
Administrative Penalty may not exceed $11,000 per individual violation or a maximum amount
of $27,500.
Issued this 9th day of June 2008.
C? • /?
r, John E. Pulliam, Jr.
Colonel, U.S. Army
District Commander
DEPARTMENT OF THE ARMY
Wilmington District, Corps of Engineers
Post Office Box 1890
Wilmington, North Carolina 28402-1890
Action ID No. SAW 2005-01182 June 9, 2008
PUBLIC NOTICE
INTERESTED PARTIES: The District Engineer, Wilmington District, proposes to
issue an order assessing a Class I Administrative Penalty against Bill Clark Homes of
Wilmington, LLC for violations of a permit granted under Section 404 of the Clean Water Act.
PERMITS INVOLVED AND ALLEGED VIOLATION: The Department of the
Army issued authorization to Bill Clark Homes of Wilmington, LLC to utilize Wilmington
District Nationwide Permit No. 12 on November 9, 2006 for temporary impacts to 0.11 acres of
Department of Army (DA) jurisdictional (Section 404) wetlands adjacent to Smith Creek and 30
linear feet of stream channel (Smith Creek), for the purpose of installing a gravity sewer line
associated with the Carrington Woods residential development, located south of Murrayville
Road, in Wilmington, New Hanover County, North Carolina.
Nationwide Permit No. 12 was violated as follows:
1) Failure to properly maintain any fill activity, to include maintenance to ensure public safety
(NWP General Condition 2);
2) Failure to maintain appropriate soil erosion and sediment control measures (NWP General
Condition 3 and Regional Condition 3.b);
3) Failure to provide and maintain water quality management measures, associated with the
authorized activity, to ensure no more than minimal adverse effects on water quality (NWP
General Condition 9.b);
4) Failure to remove all temporary fills and return the affected area to its preexisting condition
(NWP General Condition 24).
AUTHORITY FOR PROCEEDING: This Administrative Penalty proceeding is
initiated under the authority of 33 U.S.C. 1319(g) and 33 CFR Part 326.6. The procedure for
assessing civil penalties in cases such as this is set out in the statute and the regulation.
Following the discovery and investigation of a violation of a permit, notice is given to the
permittee, the appropriate state agency, and the public. The permittee, the state, or any member
of the public may file comments within 30 days. If requested by the permittee, a hearing will be
held before a Presiding Officer who will submit a report and recommend a decision to the
District Engineer. The District Engineer will issue a Final Order on the case to the permittee.
Public participation in the hearing is permitted if a hearing is held.
PENALTY PROPOSED: The amount of the penalty proposed in this case is $7,500.
This proposal is subject to revision in the interest of justice after all evidence and comments have
been received and reviewed. The amount of the penalty that the District Engineer is authorized
to assess as a Class I Penalty is $11,000 per violation and not more than $27,500 total. In a case
involving multiple violators, each violator is subject to a separate, not joint, penalty.
REQUEST FOR HEARING: The permittee has 30 days following receipt of this
formal notice of proposed penalty to request a hearing. Written request, by the permittee, for a
hearing should be directed to the District Engineer within this designated comment period and
must state the specific reasons for requesting a public hearing. The request should specify, in
summary form, the factual and legal issues in dispute and the specific grounds for defense. The
permittee has a right to present evidence at the hearing; however, he may not challenge the
permit condition or limitation, which is the subject matter of this order.
COMMENTS/ADMINISTRATIVE RECORD: During the 30 day comment period,
any person may submit written comments on the proposed Penalty Order. These comments
should be sent to the District Engineer by 4:30 p.m., July 8, 2008. Any submitted comments will
be included in the administrative record relating to the Proposed Order. All information
submitted by the permittee and persons commenting on the Proposed Order will be placed in the
administrative record, which will be available for inspection during regular business hours at the
U.S. Army Corps of Engineers, Wilmington District, 69 Darlington Avenue, Wilmington, North
Carolina. (The administrative record is subject to the provisions of law restricting the disclosure
of confidential information.) Comments should be directed to:
U.S. Army Corps of Engineers
ATTN: Justin McCorcle (CESAW-OC)
PO Box 1890
Wilmington, North Carolina 28402
PUBLIC HEARING: The permittee and all persons who file comments will be given
notice of any hearing held on this case. The permittee and all commenters will have a reasonable
opportunity to be heard and to present evidence at such hearing, if a hearing is held.
FINAL DECISION: If the permittee does not request a hearing, the District Engineer
may issue the Final Order on this violation on or after 30 days following receipt of this formal
notice by the permittee.
POST DECISION HEARING/APPEAL: Any Final Order issued under these
procedures shall become effective 30 calendar days following its issuance unless (1) a petition to
set aside the order and to hold a hearing is filed by any person who commented on the Proposed
Order and the petition is granted, or (2) an appeal to the United States District Court is taken
under 33 U.S.C. 1319(g)(8).
2
DEPARTMENT OF.THE.ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P. O. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
IN REPLY REFER TO
Regulatory Division
Action ID No. SAW 2005-01182
Mr. Heath Clark
June 9
2008
,

41

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Bill Clark Homes of Wilmington, LLC
430 Eastwood Road, Suite 100
Wilmington, North Carolina 28403
Dear Mr. Clark:
As a holder of a U.S. Army Corps of Engineers authorization to utilize
Nationwide Permit No. 12 for temporary impacts to Department of Army (DA)
jurisdictional (Section 404) waters of the United States, including wetlands, for the
purpose of installing a gravity sewer line for the Carrington Woods residential
development, south of Murrayville Road, in Wilmington, New Hanover County, North
Carolina, you were notified of alleged violations of permit conditions or limitations by
letter dated July 20, 2007. I propose to assess a Class I Administrative Penalty under the
authority of 33 U.S.C. § 1319(g) and 33 CFR Part 326.6. I am required to furnish to you
a copy of my Proposed Order and the information contained in the enclosed Public
Notice.
You may request a hearing and/or provide written comments on the Proposed
Penalty Order at any time within 30 calendar days after receipt of this notice. A request
for a hearing must be in writing, specifying in summary format the factual and legal
issues, which are in dispute and the specific factual and legal grounds for your defense.
Your request for a hearing and/or written comments should be addressed to the District
Engineer, Wilmington District, Corps of Engineers care of Mr. Justin McCorcle, Office
of Counsel, P.O. Box 1890, Wilmington, North Carolina 28402. Counsel may represent
you at any or all stages of the proceeding. The cost of representation is, of course, your
responsibility.
If you do not request a hearing, I will withdraw, issue, or modify and issue the
enclosed Proposed Order as a Final Order. My decision will be based on the
administrative record, including any comments and/or evidence submitted by you and
members of the public. All evidence will be considered, and my decision will be based
CERTIFIED MAIL
I1"°T2'72N RECEIPT REQUESTED
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on a preponderance of the evidence, that is, on the greater weight of evidence, which is
credible and convincing to the mind.
Sincerely,
/John E. Pulliam, Jr.
C Colonel, U.S. Army
District Commander
Enclosures