20110238 Ver 2_Corps of Engineer Correspondence_20170426

Regulatory Division
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
151 PATTON AVENUE
ROOM 208
ASHEVILLE, NORTH CAROLINA 28801-5006
Action ID: SAW -2011-00247
Mr. James Randy Miller
3001 Miller Road
Yadkinville, North Carolina 27055
Dear Mr. Miller:
April 21, 2017
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NC Department of
Environmental Quality.
Received
APR 2 6 2017
Winston-Salem ;
Regional Office
Reference your January 10, 2017, application for Department of the Army (DA)
authorization for the construction of two poultry houses, which would result in the permanent
impact to 220 linear feet of stream channel, associated with the expansion of the existing Miller
Chicken House operation located in Yadkinville, Yadkin County, North Carolina. The existing
Miller Chicken House operation received after -the -fact DA authorization for permanent impacts
to 3001f of stream channel via Nationwide Permit (NWP) 39 Commercial and Institution
Developments verification on April 5, 2011.
The purpose of this letter is to provide comments from resource agencies and the general
public for rebuttal purposes as a part of the individual permit review. After review of your
proposal, we have received comments from the North Carolina Department of Environmental
Quality (NCDEQ), Division of Water Resources (DWR) (dated February 10, 2017), North
Carolina Wildlife Resources Commission (dated February 15, 2017), U.S. Fish and Wildlife
Service (dated March 9, 2017) and the State Historic Preservation Office (dated March 24,
2017). Additionally we received anonymous comments on February 21 and 22, 2017. A copy of
the comments are enclosed. Our administrative process provides you the opportunity to propose
a resolution and/or rebut any and all objections before a final decision is made. In this regard,
please review the enclosed comments, address as appropriate and copy this office on all of your
comments/responses for our review.
Additionally, on February 6, 1990, the DA and the U.S. Environmental Protection Agency
(EPA) signed a memorandum of agreement (MOA) establishing procedures to determine 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 reduce impacts on waters and wetlands; and finally, compensating for any remaining
unavoidable impacts to the extent appropriate and practical. To enable us to process your
application in full compliance with this MOA, we request that you provide the following
additional information:

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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. You should
include information regarding any other alternatives, including upland alternatives, for
which you have evaluated and provide justification that your selected plan is the least
damaging to water or wetland areas. The alternative analysis should include other on-site
locations for the proposed chicken houses to include locations that would avoid impacts .
to waters of the United States. Your application indicates that due to the location of the
existing chicken houses/infrastructure and setback requirements, siting options for the
two additional houses is limited. Some of these siting options are listed as distances from
residential dwellings, property lines, and orientation preferences for the layout of the
chicken houses themselves. Please provide additional information on these siting options,
such as distance requirements from dwellings and property lines and a map that shows
the different alternatives overlain with waters of the US and features identified in the
siting criteria as well as off -set buffers to such features. You should also provide
information on what entity/agency sets those siting criteria, whether this criteria is
required or preferred and what flexibility -or variances can be applied to the criteria.
b. Your application indicates that the preferred alternative was determined to be the "most
practicable in order to utilize existing infrastructure that was installed with the current
two houses to include site access, existing wells with capacity for four total houses and
electrical wiring." Please indicate how constructing new infrastructure at other on-site or
off-site alternatives would not be practicable.
c. Additionally, you should include in the alternative analysis, alternatives located on land
owned by your brother, Mr. Jarrod (Kevin) Miller. Based on discussion between you,
your authorized agent and Mr. Andy Williams of the Corps of Engineers during a May
16, 2016, onsite meeting, you indicated that you would purchase some land from Mr.
Jarrod Miller to accommodate your preferred alternative. The application provides the
deed for this transaction. Further, Mr. Jarrod Miller was included as a permitee on the
original permit for the existing two chicken houses so it is reasonable to expect that
property he owns, in particular the three parcels to the north and west of your property,
and property you share with Mr. Jarrod Miller to the east, are viable locations to site the
two proposed chicken houses. Additionally, your alternative analysis should include off-
site properties you or your family own within Yadkinville and surrounding areas as well
as other appropriate property for sell in this area that could accommodate the chicken
houses.
d. It is necessary for you to have taken all appropriate and practical steps to reduce losses to
Waters of the United States (WoUS). The January 10, 2017, permit application indicates
that impacts to WoUS cannot be avoided because the stream bisects the property. The
application also states that the proposed project will impact the "minimum length of
stream channel needed" in order to construct the two new chicken houses adjacent to the
existing houses. An after -the -fact Nationwide Permit 39 (NWP 39) for Commercial and
Institutional Developments was issued on April 5, 2011, for the exiting chicken houses.

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This permit verification authorized the impact to 3001f of stream resulting from the
installation of a 24 -inch pipe to facilitate the construction of the chicken houses. The
application for the two proposed chicken houses indicates that a 36 -inch pipe will be
installed and connected to the upstream invert of the existing 24 -inch pipe. Further, the
application includes a NC Stream Assessment Method (NCSAM) form which indicates
evidence of flow restrictions within the stream reach. We are concerned that the existing
24 -inch pipe is undersized and currently not passing normal or high flows. Furthermore,
there is no information provided to establish that your proposal to direct flow from a
larger, 36 -inch pipe into the existing, smaller 24 -inch pipe will not exacerbate this flow
restriction issue. NWP 39 General Condition 9. Management of Water Flows states that,
"the activity must not restrict or impede the passage of normal or high flow, unless the
primary purpose of the activity is to impound water or manage high flows." The Corps
considers an undersized pipe resulting in flow restrictions to be non-compliant with the
terms and conditions of NWP 39. Upon receipt of this correspondence, please contact me
to schedule a time to meet on-site to discuss and review your compliance status. We
would welcome any hydraulic calculations and/or engineered plans that would
demonstrate the absence of any flow restriction in this stream reach given the existing
24 -inch and the proposed 36 -inch pipes. .
e. The MOA requires that appropriate and practical mitigation will be required for all
unavoidable adverse impacts remaining after all appropriate and practical minimization
has been employed. According to your application you have proposed compensatory
mitigation to off -set proposed impacts resulting from this project in the form of payment
to the NC Division of Mitigation Services (DMS) at a 1:1 ratio for the impacts to 2201f
of stream channel. The application included a N.C. Stream Assessment Method
(NCSAM) form indicating the on-site stream was of medium quality. The previous
permit verification issued April 5, 2011, authorized the impact to 3001f and the current
proposal would result in additional impact to 2201f of the same stream channel. Based on
the quality of the stream, the cumulative impact to the stream and in consideration to the
overall plan, we have determined that a 2:1 ratio (mitigation to impacts) for the proposed
2201f of impact would be required to provide adequate compensatory mitigation for the
proposed impacts.
If you have any questions regarding this request please do not hesitate to contact me at
telephone at [phone], extension 4231.
Sincerely,
Crystal Amschler
Project Manager
Asheville Regulatory Field Office

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cc:
Wetlands and Environmental Planning Group
Ms. Amanda Jones
1070 Tunnel Road, Building 1
Suite 10, PMB 283
Asheville, North Carolina 28805
Wetlands Regulatory Section
USEPA — Region 4
Mr. Todd Bowers
Sam Nunn Atlanta Federal Center
61 Forsyth Street, SW
Atlanta, Georgia 30303-8960
Division of Water Resources
Winston Salem Regional Office
Ms. Sue Homewood
450 W. Hanes Mill Rd, Suite 300
Winston Salem, North Carolina 27105
North Carolina Wildlife Resources Commission
Ms. Olivia Munzer
1721 Mail Service Center
Raleigh, North Carolina 27699
US Fish and Wildlife Service
Asheville Ecological Services Field Office
Mr. Byron Hamstead
160 Zillicoa St., Suite B
Asheville, North Carolina, 28801