20080386 Ver 2_More Info Received_20090216

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ROBERTS
STEVENS
ATTORNEYS AT LAW
JOHN S. STEVENS
JAMES W. WILLIAMS
JOHN W. MASON
MARC RUDOW
SHERYL H. WILLIAMS
WILLIAM CLARKE
VINCENT D. CHILDRESS, JR.
MARJORIE ROWE MANN*
GREGORY D. HUTCHINS
JACKSON D. HAMILTON
WYATT S. STEVENS
MARK C. KURDYS*
JACOUELINE D. GRANT
CHRISTOPHER Z. CAMPBELL
PATSY BRI50N
*DRC CERTIFIED MEDIATOR
BB&T BUILDING
s a!

DAVID L. ENGLISH
CYNTHIA S. GRADY
F. LACHICOTTE "LACH" ZEMP, JR.
KENNETH R. HUNT
DENNIS L. MARTIN, JR.
KEVIN P. KOPP
PETER B. Mc GUIRE
M. FRANCES DURDEN
REBECCA JOHNSTON REINHARDT
K. DEAN SHATLEY, II
ANN-PATTON NELSON
CHAD RAY DONNAHOO
ONE WEST PACK SQUARE. STE. 1100 28801
POST OFFICE BOX 7647
ASHEVILLE, NORTH CAROLINA 28802
TELEPHONE [phone]
FACSIMILE [phone]
www.roberts-stevens.com
Writer's Direct Phone No.. 8281258-6919
Writer's Direct Facsimile: 8281210-6526
Writer's E-mail: [e-mail]
February 10, 2009
Ms. Amanda Jones
Acting Field Office Chief
US Army Corps of Engineers
Asheville Regulatory Office
151 Patton Avenue
Asheville, N.C. 28801-5006
LANDON ROBERTS
(1921 _ 2007)
Ms. Cindy Karoly
Supervisor
NC Division of Water Quality
401 Oversight / Express Review Permitting Unit
1650 Mail Service Center
Raleigh, NC 27699-1650
Re. USACE: Action ID # 2008-1702; DWQ: Project 4 08-0386, Ver. 2
Dear Ms. Jones:
This firm represents Scenic View Terrace. On behalf of Scenic View, I am responding to
your letter of January 26, 2009. I apologize for some delay in responding.
Scenic View Terrace, LLC, is disappointed that USACE has determined the proposed
mitigation plan is unacceptable and does not adequately compensate for impacts to stream
channels that occurred on the site. As I am sure you are aware, David Day met on the site with
David Baker from the USACE office some eight years ago and was informed there would be no
need to obtain a permit for this site. The USACE office file on this project provides little
information. Based on those assurances, Mr. Day proceeded with his project.
Some six years later, in response to complaints from an upstream neighbor, enforcement
proceedings were initiated against the project by USACE and NCDWQ. The complaints
resulted, in some part, from an erosion control device Buncombe County required him to install
at the boundary of his property and Mr. McCoy's. While the device kept erosion out of the pipe,
it also caused water to back up onto Mr. McCoy's property.
David Day and I met with Tom Walker, Roger Edwards and Kevin Barnett from DWQ in
December, 2007. Tom Walker acknowledged that USACE file was pretty "thin," but he made
the determination that the waters were jurisdictional and asked that Scenic View apply for an
after the fact permit. In an effort to be cooperative with USACE, DWQ and the upstream
R&S 661770-1
neighbor, Scenic View hired Clearwater Environmental and applied for a permit in the spring of
2008. Comments on the application were received on January 8, 2009 from DWQ and January
26, 2009 from USACE. This letter will respond to both letters.
Please be advised that no part of the property has been sold or otherwise transferred since
the filing of the application. With respect to the letter from Tyler Howe, please be advised there
are no archeological, cultural resource and historical investigatory materials for this site. With
respect to the comment letter written on behalf of Yvonne Ross, please be advised that Scenic
View does not own property on the south side of the Leicester Highway. Mr. Day has been
working on the project since 2001, and this is the first time he has received any comment from
Ms. Ross.
Scenic View is evaluating its options for compensatory mitigation. In considering the
required mitigation in this permit, it is important to remember that Scenic View is applying for a
permit some seven years after contacting USACE and being told no permit was necessary. In an
effort to resolve a number of issues, Mr. Day proposed to do compensatory mitigation on Mr.
McCoy's (the upstream neighbor) property. If his proposed compensatory mitigation is
determined to be not adequate, and he winds up paying into the Ecosystem Enhancement
Program, the streams on Mr. McCoy's property will remain unmitigated.
Scenic View disagrees with DWQ that a stormwater management plan is necessary. As
is evident from the attached drawing, the developed impervious area is 9.5%. Even including
paved areas, it is 22%. I would propose that we meet with representatives of DWQ and USACE
to try and resolve this matter. Please let me know if you have questions.
Sincerely,
WC/sh
Enclosure
cc: Mr. Clement Riddle (w/ enclosure; via e-mail
Roger Edwards, DWQ
R BERTS & STEVENS, PA
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William Clarke
criddle(o,cwenv.com)
R&S 661770-1
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