20090157 Ver 1_CAMA Application_20090218

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S?G?
Southern Environmental Group, Inc.
5315 South College Road, Suite E
Wilmington, North Carolina 28412
910.452.2711 (office) • 910.452.2899 (fax)
Date: 17 February 2009
To: Mr. Ian McMillan
Of: DWQ
Attached you will find:*
? Proposal ? Sketch(es)
? JD Package ? Report(s)

FEB 18 2009
DENR - WATER OUAUn*
WETLANDS AND STORMWATER BRANCH
® Permit App. ? Signed Wetland Map ? Photo(s)
? Plans ? Information Request ? Other
Copies Dated Description
1 01/22/09 Individual Permit Application for the Expansion of the 421 Truck Stop
1 $240 filing fee

These are being delivered:
*If noted items are NOT attached, please contact our office.
® For your Review/Comment ? For your Records ? Returned for Correction(s)
? Corrected and Returned ? For your Signature ? As Requested
? Other:
By: ? Hand Delivery ? Fed-Ex ? UPS © Regular Mail ? Other
Notes:
Ian:
Attached is an Individual Permit application, and supplemental documentation, requesting to expand an existing truck stop facility located
at 1610 US Highway 421 North in New Hanover County. Please review the attached documentation, and feel free to contact my office with
any questions or concerns at 910.452.2711. Thank you, in advance, for your time and consideration with regard to this project.
Signature and (Typed) Name: 1 ?
Amanda L. Kolb
oGk -015-1
SEG Project #: 04202,01
Client Name: William H. Smith
USACCE Action ID#: 20041149-065
Transmittal Letter
Date: 02.17.09
i
5outkern Environmental Group, Inc.
5315 South College }load, Suite r - Wilmington, North Carolina 28412
910--+52-2711 • rax: 910.452.2899 - office@segi-us
www.segi.us
22 January 2009
Hand Delivery
Ms. Emily Burton Hughes
Wilmington Regulatory Field Office
US Army Corps of Engineers
69 Darlington Ave.
Wilmington, NC 28403
Re: US 421 Truck Stop [SEGi Project #04-202.01 ]
1610 US Highway 421 N
Wilmington, New Hanover County
Individual Permit Application
Action ID #: SAW-2004-1149-065
Dear Ms. Hughes:
Our firm has been retained by Mr. William Smith to pursue an Individual Permit to impact
approximately 0.72 acre (31,165 square feet) of jurisdictional wetlands for the expansion of an
existing truck stop on the western side of US 421, at the terminus of the Isabelle S. Holmes
Bridge (NC 133 and NC 117) in Wilmington, New Hanover County, North Carolina. The
proposed impact includes the installation of a concrete retaining wall and the discharge of clean
fill material, which will accommodate the proposed truck stop expansion.
A truck stop already exists on the subject parcel and has been in use for approximately 18 years.
The truck stop is owned by Mr. William H. Smith and managed by the Worsley Company (the
Worsley Company is now owned by an affiliate of Sun Capital Partners, Inc., a private
investment firm, and the name "Worsley Company" was retained during that sale). The truck
stop comes complete with a diesel canopy and a fuel canopy, both with their own set of pumps, a
convenience store, an asphalt parking area, and attendant features one would expect at a truck
stop. Currently, the undeveloped portion of the property is comprised of 0.91 acres (39,865
square feet) of freshwater marsh wetlands, with a 0.115 acre existing stormwater retention
feature found near the eastern property boundary. This information was verified by Ms. Jennifer
Frye, who held a site visit at the subject parcel on 31 August 2004 (AID#: 2004-1149-065).
Previous Action ID numbers associated with this site are 198700517 and 199103305, and are
further described in the "Existing Conditions and Project History" section of the supplemental
documentation.

SE-6i
Mitigation is offered through a combination of payment to the North Carolina Ecosystem
Enhancement Program (NC EEP) and the preservation of all remaining on-site wetlands. NC
EEP is offered at an approximately 2.08:1 ratio for riparian wetland impacts (see Attachment 13).
In addition to payment to NC EEP, the Applicant will also be preserving the remaining on-site
freshwater marsh wetlands, totaling 0.20 acre (8,881 square feet).
Preservation is a necessity in this location, as the completion of the Isabelle Holmes bridge has
increased the traffic flow along that stretch of US-421, which has made this area more attractive
to business owners. Recent urban impacts within, and adjacent to, the conservation area increase
the need for preserving wetland functions. The preservation ratio was determined, and limited
by, the amount of wetlands remaining on the subject parcel. The mitigation offer is discussed
further in the "Mitigation" section of the supplemental documentation.
According to the Natural Heritage Program (NHP), there are no records of rare species,
significant natural communities, significant heritage areas, or conservation/managed areas at the
site. Per advice from the NHP, SEGi reviewed their database for listings of rare plants and
animals and significant natural communities in the County. SEGi also researched information on
element occurrences and significant natural heritage areas. SEGi's review of these databases
indicate that there are no rare plants and animals, significant natural communities, element
occurrences or significant natural heritage areas in the vicinity of the project.
Please note, we are currently waiting for EEP to return the revised acceptance letter (Attachment
13). Once SEGi is in receipt of the document, it will be forwarded to all appropriate agencies.
At this time we are requesting your review of the attached permit application, supplemental
documentation, and attachments, and issue a Public Notice. If you have any questions or
concerns regarding this project, please feel free to contact our office at 910.452.2711. Thank you
in advance for your time and consideration.
Sincerely,

Amanda Kolb
Environmental Consultant
Southern Environmental Group, Inc.
W
S F G ?
Attachments
1. Individual Permit Application
2. Supplemental Documentation
3. Impact Map
4. Cross-sectional Drawings
5. Aerial Photograph
6. Exhibit Map
7. Jurisdictional Tear Sheet and Signed Wetland Boundary Survey
8. Revised Wetland Boundary Survey (prepared by Paul Talbot)
9. Property Owner Tax Information
10. Vicinity Map for Subject Parcel
11. Soils Map for Subject Parcel
12. Draft Copy of Model Declaration of Restrictions
13. NC EEP Acceptance Letter
14. Agent Authorization Letter
15. Vicinity Map for Truck Stop in Delco, North Carolina
16. Additional Properties in Wilmington Owned by Mr. Smith
17. New Hanover County Traffic Counts (Existing and Projected - provided by Mr. Roger
Hawkins, Division Traffic Engineer for DOT)
18. NC DOT Traffic Volume Map for Wilmington NC, for the year 2007
19. Previously Issued 404 Permit (issued to Worsley Companies, Inc., on 10/17/91)
20. Page I of Previously Issued Stormwater Permit (issued to Worsley Companies, 09/02/03)
21. National Pollutant Discharge Elimination System Permit # N00065307 (issued to
Worsley Operating Corporation, 04/04/2008)
22. "Plaintiffs Memorandum Supporting Its Motion for Summary Judgment" (Draft Copy)
23. "Objection to Plaintiffs Motion for Summary Judgment"
24. Affidavit of Don Quinn
25. Affidavit of Robert Moul
26. "CONSENT Order and Judgment" (Draft Copy)
27. Copy of Worsley Truck Stop "Wetland Restoration and Mitigation Plan"
28. Tax Information for Worsley Mitigation Site
29. Natural Heritage Program Letter
A kQCSnw)e+-,?-
U° -DDS-1
Application for Department of the army Permit OMB APPROVAL NO. 0710-0003
(33 CFR 325) Expires December 31, 2004
The Public burden for this collection of information is estimated to average 10 hours per response, although the majority of applications should require 5 hours or less. This includes the 1
time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments
regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Department of Defense, Washington Headquarters
Service Directorate of Information Operations and Reports, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 222024302; and the Office of Management and Budget, Paperwork
Reduction Project (0710-0003), Washington, DC 20503. Respondents should be aware that notwithstanding any other provision of law, no person shall be subject to any penalty for failing to
comply with a collection of information if it does not display a current valid OMB control number. Please DO NOT RETURN your forms to either of those addresses. Completed
applications must be submitted to the District Engineer having jurisdiction over the location of the proposed activity.
PRIVACY ACT STATEMENT
Authorities: Rivers and Harbors Act, Section 10, 33 USC 403; Clean Water Act, Section 404, 33 USC 1344; Marine Protection, Research and Sanctuaries Act, 33 USC 1413, Section 103.
Principal Purpose: Information provided on this form will be used in evaluating the application for a permit. Routine Uses: This information may be shared with the Department of Justice
and other federal, state, and local government agencies. Submission of requested information is voluntary, however, if information is not provided the permit application cannot be
evaluated nor can a permit be issued.
One set of original drawings or good reproducible copies which show the location and character of the proposed activity must be attached to this application (see sample drawings and
instructions) and be submitted to the District Engineer having jurisdiction over the location of the proposed activity. An application that is not complete in full will be returned.
(ITEMS 1 THRU 4 SHOULD BE FILLED BY THE CORPS)
1. APPLICATION NO. 2. FIELD OFFICE CODE 3. DATE RECEIVED 4. DATE APPLICATION COMPLETED
(ITEMS BELOW TO BE FILLED BY APPLICANT)
5. APPLICANTS NAME 8. AUTHORIZED AGENT'S NAME AND TITLE (an agent is not required)
William H. Smith Southern Environmental Group, Inc.
6. APPLICANTS ADDRESS 9. AGENT'S ADDRESS
115 Linden Drive Danville, VA 24551 5315 South College Road, Suite E, Wilmington, NC 28412
7. APPLICANT'S PHONE NOS. W/AREA CODE 10. AGENT'S PHONE NOS. W/AREA CODE
a. Residence 34.793.9037 a. Residence
b. Business 434.791.2133 b. Business 910.452.2711
11. Statement of Authorization
I hereby authorize, Southern Environmental Group Inc. - Amanda Kolb to act in my behalf as my agent in the processing of this application and to furnish, upon
request, supplemental information in support of this permit application. P A I
See Attached Letter of Agency
APPLICANTS SIGNATURE DATE
NAME, LOCATION AND DESCRIPTION OF PROJECT OR ACTIVITY
12. PROJECT NAME OR TITLE (if applicable)
Scotchman Truck Plaza Expansion Project SEGi Project #: 04-202.01
13. NAME OF WATERBODY, IF KNOWN (if applicable) 14. PROJECT STREET ADDRESS (if applicable) o
NE Cape Fear River (tributary to Cape Fear River) 1610 US Highway 421 North
Applicant has no intention of directly impacting NE Cape
F
Ri Wilmington, NC 28401
ear
ver.
15
LOCATION OF PROJECT
. G
P
New Hanover NC
COUNTY STATE
16. OTHER LOCATION DESCRIPTION, IF KNOWN (see instructions)
34.2530°N / 77.9565°W; Cape Fear Township; Legal Description: 102 TRU 108 Pocomoke Adj. (3.15 ac) TRUCK STOP
17. DIRECTIONS TO THE SITE: Heading west, cross over the Isabelle S. Holmes Bridge (Hwys. 133 & 117) out of Wilmington. Take a
right at the first stoplight (US Highway 421 North). Site is immediately on your right (existing truck stop).
ENG FORM 4345, JUL 97 EDITION OF F Proponent: CECW-OR
OBSOLETE
18. Nature of the Activity: (Description of Project, include all features)
The Applicant proposes to discharge clean fill material into 0.72 acre (31,165 square feet) of jurisdictional waters (i.e.
wetlands) to expand his existing truck stop. See supplemental documentation for specifications.
19. Project Purpose: (Describe the reason or purpose of the project, see instructions)
The Applicant suggests that the purpose for this project is to accommodate and service the influx of traffic associated
with the completion of the Isabelle S. Holmes bridge. See supplemental documentation for specifications.
USE BLOCKS 20-22 IF DREDGED AND/OR FILL MATERIAL IS TO BE DISCHARGED
20. Reason(s) for Discharge
The Applicant is requesting fill in order to expand his existing truck stop and accommodate: the increase in traffic
volume; the increase in amount and movement of freight to and from the Wilmington Ports; and, the increase in people
relocating to Brunswick and New Hanover Counties. See supplemental documentation for specifications.
21. Type(s) of Material Being Discharged and the Amount of Each Type in Cubic Yards
Only clean fill material will be used. Approximately 439 cubic yards of fill material will be needed to complete this
project.
22. Surface Area in Acres of Wetlands or Other Waters Filled: (see instructions)
0.72 acre (31,165 square feet) of fill into jurisdictional 404 wetlands. See supplemental documentation for specifications.
23. Is Any Portion of the Work Already Complete? Yes No X IF YES, DESCRIBE THE COMPLETED WORK
There is an existing, functioning truck stop on-site, which was constructed in 1990.
No work associated with the proposed expansion has been completed at this time. The Applicant intends to secure all
necessary permits prior to construction. Once all authorizations have been obtained, the Applicant will begin preparing
the site for construction, which will allow for the discharge of clean fill material into wetlands and provide for
connections to appropriate storm water structures.
24. Addresses of Adjoining Property Owners, Leases, Etc., Whose Property Adjoins the Water body (if more than can be entered here, please attach
a supplemental list
The subject parcel does not adjoin a waterbody. The adjacent property is owned by:
Eagle Island LTD 3330 River Road Wilmington NC 28412 (property directly abuts NE Cape Fear River & site).
25. List of Other Certifications or Approvals/Denials Received from other Federal, State or Local Agencies for Work Described in this Application.
A Division of Water Quality 401 Certification is being requested concurrently with this application. A Stormwater
Permit was issued for the site, but will have to be modified to accommodate the additional impervious surface areas
associated with the expansion project. The modification to the Stormwater Permit is in the process of being applied for
by Coastal Site Design. Coastal Site Design is also in the process of applying for the Sedimentation and Erosion Control
Permit. A Wastewater National Pollutant Discharge Elimination System Permit was issued for the site on 04 April 2008,
Permit # N00065307.
26. Application is hereby made for a permit or permits to authorize the work described in this application. I certify that the information in this
application is complete an accurate. I further certify that I possess the authority to undertake the work described herein or am acting as the duly
authorized agent of the applicant. ?m
Z.Z. '
Signature of Applicant Date Signature of Agent Date
The application must be signed by the person who desires to undertake the proposed activity (applicant) or it may be signed by a duly authorized agent
if the statement in block 11 has filled out and signed.
18 U.S.C. Section 1001 provides that: Whoever, in any manner within the jurisdiction of any department or agency of the United States knowingly
and willfully falsifies, conceals, or covers up any trick, scheme, or disguises a material fact or make any false fictitious or fraudulent statements or
representations or makes or uses any false writing or document knowing same to contain any false, fictitious or fraudulent statements or entry, shall be
fined not more than $10,000 or imprisoned no more than five years or both.
AAkaC1\1Meht I

Sou- ern Lnvironmcntal 6roup, Inc.
5315 South College Koad, Suite E, • Wilmington, North Carolina 28-+12
910.+52-2711 • Fax: [phone]
www.5egl.us
Supplemental Documentation to the
Individual Permit Application
for the
Truck Stop Expansion
January 22, 2009
Applicant
Mr. William H. Smith
115 Linden Drive
Danville, VA 24551
Agent
Southern Environmental Group, Inc.
5315 South College Road, Suite E
Wilmington, North Carolina 28412
910.452.2711 (Office)
910.452.2899 (Facsimile)
4 1
421 TruCL Stop IF [2/21
sr-6,
Section Page
Location 3
Existing Conditions and Project History 4
Wetland Systems 7
Project Description 8
Sequence of Events 10
Purpose and Need 10
i
Alternatives
12
No Action 12
Other Project Designs 12
Other Project Locations 12
Minimization 12
Proposed Compensatory Mitigation 13
Payment to NC EEP 13
Preservation of Remaining On-site Wetlands 16
Adjacent Property Owners 20
Other Authorizations 20
Figures 21
42 1 TrucL Stop IF [5/2 1
Location
5r_ G?
The proposed project is located at 1610 US Highway 421 North in Wilmington, New Hanover
County, North Carolina (34.2530°N, -77.9565°W). To access the site, cross over the Isabelle S.
Holmes Bridge (Hwys. 133 & 117) out of Wilmington. Take a right at the first stoplight (US 421
N). Take an immediate right into the parking lot of the subject parcel, the Scotchman #303 Dixie
Boy Truck Stop.
The subject parcel is comprised of approximately 3.15 acres. The wetlands on the subject
property are considered contiguous with the Northeast Cape Fear River, though the site itself
does not abut the waterbody. The eastern property boundary is approximately 520 feet from the
nearest branch of the Northeast Cape Fear River. Ms. Jennifer Frye (former USACE Field
Representative for New Hanover County) visited the site, and verified the wetland line on 31
August 2004 (Action ID Number: SAW-2004-1149-064). The original wetland boundary
survey, provided to the Corps, showed 1.025 acres of wetlands on the property (see Attachment
7). A topographic survey was needed, as the wetland boundary survey provided to the engineer
did not have any topographic shots for the existing site. When the new surveyor created his
topographic survey, he also recalculated the on-site wetlands and determined there were actually
0.91 acre of riparian wetland on the subject parcel (see Attachment 8). It appears that the first
survey referred to an existing 0.115 acre unused stormwater retention feature as wetlands, when
421 Truck jtop IF [+/2 1
5EGi
it should not have been accounted for as such. Therefore, the total acreage of jurisdictional
wetlands on the subject parcel was determined to be 0.91 acre (39,856 square feet).
The property to the north and east is owned by Eagle Island LTD. The parcel to the south is
owned by Holmesbridge LLC, and the property to the west of the subject parcel is owned by Mr.
Robert L. Bryden and Ann Stapleton.
Existing Conditions and Project History
A truck stop already exists on the subject parcel and has been in use for approximately 18 years.
The truck stop is owned by Mr. William H. Smith and managed by the Worsley Company (the
Worsley Company is now owned by an affiliate of Sun Capital Partners, Inc., a private
investment firm, and the name "Worsley Company" was retained during that sale). The truck
stop comes complete with a diesel canopy and a fuel canopy, both with their own set of pumps, a
convenience store, an asphalt parking area, truck scales, and attendant features one would expect
at a truck stop. Currently, the undeveloped portion of the property is comprised of 0.91 acres
(39,856 square feet) of freshwater marsh wetlands, with a 0.115 acre existing stormwater
retention feature found near the eastern property boundary.
Figure 2: Existing conditions at subject parcel. Unused storm water retention
visible along the northeastern property boundary.
421 Truck Stop IF [5/21)
SF-61
This site has a somewhat convoluted past. This parcel was once used for the purpose of an old
automobile junkyard, which included old rusting automobiles, old batteries, old tires, etc. The
Worsley Company cleaned up the debris and constructed the existing truck stop on the upland
portion of the property in 1990. According to old court records (see Attachment 20), on 7 April
1987, Mr. Hugh Heine, the USACE New Hanover County Regulator at the time, made a site visit
and discovered 0.13 acre of unauthorized fill material in two areas of the "standing water
swamp" complex. At Mr. Heine's request, the Worsley Company removed the unauthorized fill
material from the wetlands (on or around 28 May 1987).
On 25 August 1987, a 404 permit application was submitted on behalf of the Worsley Company,
by Catlin & Associates of Wilmington, North Carolina. The project was given an Action ID
number of 198700517. The application requested permission to fill 0.21 acre of wetlands on-
site, to allow for an access ramp. The application was retired on 30 November 1987, at the
request of the Worsley Company, due to an insufficient compensatory mitigation offer.
Sometime before 22 September 1988, the Worsley Company retained the services of Mr. Rob
Moul and Land Management Group, to assist in performing a wetland delineation. Mr. Moul
performed the delineation, which was verified by Mr. Heine sometime around 19 January 1989.
Mr. Heine also verified the wetland boundary survey, performed by Brunswick Surveying, Inc.
On 10 September 1991, a mitigation proposal was submitted on behalf of the Worsley Company,
by Mr. Moul. As compensatory mitigation was the single lacking factor in the original
application submittal, the inclusion of this document re-opened the file for the original
application (requesting 0.21 acre of fill). The Corps issued the Worsley Company a 404 permit
on 17 October 1991, to allow for the filling of 0.21 acre of wetlands (see Attachment 19).
Mr. Michael Smith, the Corps' then-enforcement officer, performed a compliance inspection on
04 December 1991, in response to several telephone calls which reported wetland fill at the
subject parcel. Mr. Smith's site visit showed the Worsley Company had filled approximately one
acre of wetlands, well beyond the limits of the approved 0.21 acre.request. The Worsley
Company was given a cease and desist letter that day, requiring them to refrain from any work in
waters or wetlands, until the matter got resolved.
A site visit on 1 September 1992 showed that truck scales had been constructed and installed at
the site, and that the unauthorized fill area had been paved. Both of those actions were in direct
violation of the cease and desist order. At that time, the Corps decided to seek legal recourse.
The case was presented to the United States District Court for the Eastern District of North
Carolina Wilmington Division (Case No. 93-15-CIV-7-F). The facts of the case were presented,
and a Consent Order and Judgment was subsequently issued (see Attachment 26).
The Consent Order and Judgment required the Worsley Company to restore 0.11 acre of the
impacted wetlands on the subject parcel. Please note, the Order does allow for future permitting
of the previously impacted area. The Order states: "Nothing herein shall be construed to
421 Truck `jtop IP [6/21 ] sr-6i
prohibit the corporate defendant from applying for a Department of the Army permit to discharge
dredged or fill material into the area after it has completed the restoration work..., or from
discharging dredged or fill material into the area in strict compliance with any subsequently
issued Department of the Army permit. In the event the corporate defendant applies for a
Department of the Army permit to fill the area to be restored, in its review of such permit
application, the Corps shall consider the value of the restored area to be its value prior to the
performance of the work which was the subject of this action" (see Attachment 26).
In addition to the restoration required on the subject parcel, the Worsely Company was required
to establish 0.44 acre of wetlands on another property that exuded similar habitat and wetland
features. After several property inspections, the ideal location was found. The mitigation
property is located approximately %2-mile south of Jackey's Creek, along NC 133 in Brunswick
County (see photograph below). The tract measures approximately 2.1 acres in size. While the
property does not have a physical address, it has a Parcel Identification Number of 05900007.
The property is now, and has been since 1994, owned by the Worsley Company (see Attachment
28).
The final component of the Consent Order and Judgment was the assessment of a civil penalty to
the Worsley Company. The Worsley Company was required to pay $25,000 (twenty-five
thousand dollars) to the US Treasury.
421 Truck Stop IP 0121 ]
5EG
Previous Corps' Action Identification Numbers associated with this site include 198700517 and
199103305 (see Attachment 19). The previously issued Stormwater Permit number is SW8-
900421 (see Attachment 20).
Research indicates that the requirements associated with the Consent Order and Judgment were
satisfied. As is evident in all of the attached documentation pertaining to the court case, the main
defendant in this trial was the Worsley Company (the lessee), not Mr. Smith (the property owner,
and subsequent Applicant for this individual permit). Mr. Smith did not have any prior
knowledge that the Worsley Company would partake in the unauthorized filling of jurisdictional
wetlands.
Wetland Systems
The wetland type within the project area may have once been classified as freshwater marsh.
Currently, the entire wetland complex is comprised of a monotypic stand of Phragmites
australis, an invasive species that appears to have taken over the entire wetland complex. The
wetland area lacks a canopy and shrub layer.
Freshwater marshes develop in sounds at the mouths of large rivers. These
marshes are semi-permanently to permanently inundated or flooded - these
wetlands develop where standing water is generally present throughout the year,
so that trees cannot become established. Freshwater marshes are common in the
outer coastal plain, and are valuable for storing water and protecting water
quality. Their plants retain and filter sediments, thereby reducing pollutants.
Freshwater marshes stabilize shorelines and prevent bank erosion and siltation.
Freshwater marshes are not generally known for their rare species, though they
do provide habitat for a number of common species.'
Two soil types were mapped within the Soil Survey of New Hanover County North Carolina
(see Attachment 11). According to the mapped survey, the two types of soil are classified as
Dorovan soils and Urban land:
Dorovan soils are nearly level, poorly drained soils that are found in bays and long, broad
areas of tidal and stream floodplains. These soils are frequently flooded for very long
periods of time. The soils is known to subside if drained and tilled.'
Urban land is classified as areas where the original soil has been cut, filled graded or
paved so that most of the soil properties have been altered to the extent that the soil series
is not recognized. Areas that fall within the mapped areas of Urban land are primarily
used as shopping centers, factories, buildings, apartments, etc. The soil is covered by
pavement.'
1 A Field Guide to North Carolina Wetlands Department of Environment, Health and Natural Resources Division of
Environmental Management, January 1996.
2 Soil Survey of New Hanover County North Carolina United States Department of Agriculture, April 1977.
421 Truck Stop IF [8/2 1 ] 5E-6i
Mammals that would utilize this area for foraging habitat may include the raccoon and opossum.
The water moccasin may frequent this area, as well as water snakes (Nerodia spp.), and yellow
bellied sliders (Trachemys scripta). Snapping turtles may also be common. Avian species which
may utilize this area include prothonotary warbler (Protonotaria citrea), pileated wood pecker
(Dryocopus pileatus), and barred owl (Strix varia), among other waterfowl.
Project Description
Due to the influx of traffic associated with the widening and refurbishment of the Isabelle S.
Holmes Bridge, the continued work on the Wilmington by-pass, the lack of truck stops in the
vicinity of the project site and the increasing activity at the State Ports facility, truck traffic has
increased steadily along Highway 421 and in New Hanover County. Continued growth in New
Hanover and Brunswick Counties, and the expansion of the State Port, will fuel the increase in
traffic now and in the future. Due to the increase in traffic volume, increase in amount and
movement of freight to and from the Wilmington Ports, and the number of people relocating to
Brunswick and New Hanover Counties, an expansion of this truck stop is necessary and cannot
be completed without impacting wetlands. The Applicant owns the subject property, and there
are no other properties in the immediate vicinity which can be developed with less impacts to
jurisdictional waters.
In addition to enlarging the parking area, the Applicant's current expansion request calls for an
additional fuel canopy and accompanying pumps. The location of the proposed fuel canopy was
chosen so that positive traffic flow within the truck stop parking area would not be inhibited.
This location also ensures that tractor trailers utilizing the new parking area will not have their
turning radii impeded by the new fuel pump's location. The proposed expanded parking area will
replace those parking spots lost in the inclusion of the new fuel pumps and canopy. The
proposed additional fuel pumps and canopy will be located in an upland portion of the subject
property. They have been situated in their proposed location in an effort to protect the wetlands
from possible detrimental environmental effects, such as spills or leaks (see Attachment 3 and 4).
Parking creates a safe haven for cargo, while providing truck drivers with a safe place to rest.
The Federal Motor Carrier Safety Administration has estimated that "driver fatigue is a primary
factor in 4.5 percent of truck-involved fatal crashes and is a secondary factor in an additional
10.5 percent of such crashes."' With the regulations set forth pertaining to the length of time a
truck driver is allowed to be on the road, and the fact that the nearest truck stop to the subject
parcel is located 17.5 miles away in Delco, North Carolina, the expansion of the Scotchman #303
is a necessity. It is imperative that the Applicant be allowed to expand the existing truck stop, to
accommodate the influx of traffic, as well as make the road safer for all drivers. The figure on
the following page shows the distance between the Scotchman #303, and the next closest truck
stop located in Declo.
3 Study of Adequacy of Commercial Truck Parking Facilities Technical Report. Fleger, Stephen A. ETAL. McLean, Virginia.
March 2002. http://www.tfbrc.gov/safety/pubs/01158
421 TrLAStopIF (6121] 5r-Gi
prohibit the corporate defendant from applying for a Department of the Army permit to discharge
dredged or fill material into the area after it has completed the restoration work..., or from
discharging dredged or fill material into the area in strict compliance with any subsequently
issued Department of the Army permit. In the event the corporate defendant applies for a
Department of the Army permit to fill the area to be restored, in its review of such permit
application, the Corps shall consider the value of the restored area to be its value prior to the
performance of the work which was the subject of this action" (see Attachment 26).
In addition to the restoration required on the subject parcel, the Worsely Company was required
to establish 0.44 acre of wetlands on another property that exuded similar habitat and wetland
features. After several property inspections, the ideal location was found. The mitigation
property is located approximately V2-mile south of Jackey's Creek, along NC 133 in Brunswick
County (see photograph below). The tract measures approximately 2.1 acres in size. While the
property does not have a physical address, it has a Parcel Identification Number of 05900007.
The property is now, and has been since 1994, owned by the Worsley Company (see Attachment
28).
The final component of the Consent Order and Judgment was the assessment of a civil penalty to
the Worsley Company. The Worsley Company was required to pay $25,000 (twenty-five
thousand dollars) to the US Treasury.
421 Truck jtop IF [ 1012 1 ] SE-6i
In addition to the aforementioned items, the Applicant is proposing to regrade a portion of the
existing site, to eliminate the existing sand filters on-site, and install two larger sand filters,
which will address the increase in impervious surface area on the subject parcel. According to
the engineer, State Stormwater requires vegetative filters, to serve as an off-line bypass, so when
the storage pipes are full, there is an outlet for the water to discharge. The discharged water must
be conveyed through a vegetative filter to assist in pollutant removal. The vegetative filters aide
in removing pollutants from water that is not being conveyed through the sand filters. The
vegetative filters will be raised one to two feet above the existing wetlands and the raised filters
will be planted with grass, to assist in pollutant removal. All proposed impacts associated with
the vegetative filters have been accounted for in this permit request. Overall, 439 cubic yards of
fill material will be required for the parking area expansion.
Due to the increase in traffic volume, increase in amount and movement of freight to and from
the Wilmington Ports, and the number of people relocating to Brunswick and New Hanover
Counties, an expansion of this truck stop is necessary and cannot be completed without
impacting wetlands.
Sequence of events
The proposed schedule for this project is dependent on the issuance of the appropriate
authorizations. Once the permits have been issued, the Applicant would like to begin work
immediately, starting with the installation of sedimentation and erosion control structures. Next,
the Applicant would have the stormwater system installed, followed by the concrete retaining
wall, then discharge the clean earthen fill material, and finally, surface the area with asphalt to
construct the proposed parking and rest areas. Once the parking area has been paved over, the
Applicant will have the additional fuel pumps and canopy installed, and the expansion will be
complete.
Purpose and Need
The Applicant is proposing to fill 0.72 acre of jurisdictional wetlands, to facilitate the expansion
of the existing truck stop. Traffic has increased significantly since the completion of the Isabelle
S. Holmes Bridge. This bridge is one of two river crossings connecting the city of Wilmington
with NC Highway 133, US Highway 421 and the US Highway 17 corridor. This roadway
supports the general north/south and east/west flow of traffic through the region. According to
statistics obtained from Mr. Roger Hawkins, with the North Carolina Department of
Transportation, traffic counts prior to the completion of the bridge are as stated on the table on
the following page:
421 TrucL jtop IF [ 1 112 1
SEGO
Date # of Vehicles Counted Highway of Reference
April 2003 15365 US Hwy 421 N
April 2003 19820 NC Hwy 133 EAV
May 2003 22476 US Hwy 421 S/ NC Hwy 133E
T3ee Attachment i i to the Supplemental Documentation portion of the application.
Again, according to information received from Mr. Hawkins in 2004, the future projections of
traffic patterns for the year 2020 are as follows:
Date # of Vehicles Counted Highway of Reference
2020 23700 US Hwy 421 N/S
2020 34400 NC Hwy 133 E/W
Toee Attachment 16 to the,3upplemental Documentation portion of-the application.
According to NC DOT's website, which provided traffic statistics for the year 2007, traffic
counts adjacent to the existing truck stop had an Annual Average Daily Traffic (AADT) of
24,000 vehicles.' This AADT has already exceeded the estimate procured by Mr. Hawkins in
2004 (see Attachment 17). The expansion of this facility will allow the Applicant to serve the
increased number of vehicles traversing the corridor daily.
Two important factors that contribute to the demand for truck parking are: the need to comply
with Federal "hours of service" rules; and, the need for drivers to perform non-driving activities,
such as eating or fueling. "Under current hours of service rules, truck drivers ... are generally
permitted to drive up to 10 hours, after 8 consecutive hours off-duty ."3 "These regulations
induce a demand for parking spaces so that drivers who must drive more than 10 hours between
their origin and destination can obtain the required 8 hours of long-term rest."' The regulations
placed on truck drivers by the Interstate Commerce Commission are strict regarding the amount
of time a driver can drive, and therefore, drivers must be offered flexibility in parking.
The availability of truck parking is becoming a problem with potential safety implications. A
major safety issue, according to truckers, is a "lack of safe, available commercial vehicle parking
on or near Interstates."3 The subject truck stop is adjacent to US Highway 421, NC Highway
133 and the US Highway 17 corridor. This area is a prime location for truck drivers, due to its
close proximity to arterial highway corridors. "An inadequate supply of truck parking spaces can
result in two negative consequences: tired truck drivers may continue to drive because they have
difficulty finding a place to park for rest; and, truck drivers may choose to park at unsafe
locations, such as the shoulder of the road and exit ramps, if they are unable to find available
parking. Both of these consequences generate a safety hazard for the truck driver and for other
drivers using the national highway system." 3 Due to the influx of traffic in the project vicinity
and the need to service these vehicles, the Applicant proposes to expand his facility.
The proposed impact to jurisdictional waters associated with the proposed expansion of the truck
4 NC DOT Traffic Maps. http://www.ncdot.org/it/img/DataDistribution/TrafficSurveyMaps/
421 Truck Stop IF (1217- 11 sr-Gi
stop is the placement of 0.72 acre of clean fill material within 404 wetlands (see Attachment 3).
No coastal wetlands are to be impacted by this project, and, according to a site visit held 15
November 2005 with Mr. Robb Mairs (former New Hanover County Division of Coastal
Management Field Representative), the project is located outside of all Areas of Environmental
Concern (AECs). The Applicant does not anticipate any fish species being impacted due to the
expansion of his truck stop. The fill material will be stabilized via a retaining wall, and the new
area created will be used to incorporate additional parking spaces. The Applicant has proposed
to utilize this area of the project specifically for parking, rather than incorporate the additional
fuel cells in this location. The placement of a fuel canopy and cells adjacent to wetlands has the
potential for detrimental effects on the environment, should a spill or leak ever occur. In
addition, the proposed project design calls for the clustering of the proposed fuel canopy with the
existing fuel canopy, which will provide a general area to pump gasoline, versus a sprawling
layout with fuel canopies scattered throughout the property. Finally, the location of the proposed
fuel canopy was chosen so that positive traffic flow within the truck stop parking area would not
be inhibited. This location also ensures that tractor trailers utilizing the new parking area will not
have their turning radii impeded by the new fuel pump's location.
Alternatives
The Applicant investigated other potential means of expanding the existing truck stop, and has
been unable to find a practicable alternative that would achieve his goal and meet his stated
purpose.
• No action:
The no action alternative is that alternative which does not require filling of 404
jurisdictional wetlands. There is no practicable manner in which this project could be
completed on this site without a permit to discharge fill material into wetlands. On a site
where the remainder of undeveloped land is jurisdictional, the only way a project might
be constructed without DA authorization is to be pile supported. Unfortunately, the
Applicant cannot construct additional parking for tractor-trailers on a pile supported
structure that would not act as a form of fill. According to Section 323.3 Discharges
Requiring Permits, found within the Code of Federal Regulations:
Placement of pilings in waters of the United States constitutes a discharge
of fill material and requires a Section 404 permit when such placement
has or would have the effect of a discharge of fill material. Examples of
such activities that have the effect of a discharge of fill material include,
but are not limited to, the following: Projects where the pilings are so
closely spaced that sedimentation rates would be increased; projects in
which the pilings themselves effectively would replace the bottom of a
waterbody; projects involving the placement of pilings that would reduce
the reach or impair the flow or circulation of waters of the United States;
and projects involving the placement of pilings which would result in the
adverse alteration or elimination of aquatic functions.
421 TrucL Stop IF [ 1 5/21
SF-6I
Other project designs:
The only alternate design for this project on-site would be to relocate the new fuel pumps
to the wetland area and move the truck parking area closer the main building. This would
result in pumps being sprawled about the property, instead of being clustering together.
Spreading the fuel pumps and canopy about on the site could potentially be extremely
environmentally damaging, as the ability to locate and contain a spill or leak may be
reduced.
Other project locations:
The proposed project calls for the expansion of an existing facility, thus, construction on
an alternate site would not meet the Applicant's stated purpose and need. In addition,
there are no available properties which could be considered suitable, located within
approximately 2 miles of the subject property, where a fueling facility of this magnitude
could be constructed with less impact to jurisdictional features.
• Minimization:
Minimization was demonstrated in that the Applicant is proposing to utilize a concrete
retaining wall when constructing the parking lot, versus requesting a larger impact to
accommodate fill slope. In addition, the Applicant has designed the proposed expansion
project so that the new fuel pumps are situated within the existing fill pad. This will
assist in reducing the potential that spills or leaks would impact the neighboring wetlands,
should the new pumps have been placed in their alternate location. In an effort to reduce
impacts to jurisdictional features, the majority of the fill requested by the Applicant, 0.70
acre, is necessary to create a safe haven for the trucking fleet, and is the minimum amount
of fill necessary to accommodate parking for tractor-trailers. The Applicant is proposing
to create 80 foot parking spaces, as the overall average length of an eighteen wheeler is
between 70 and 80 feet.' Information obtained from the Truckers Report, concerning the
turning radius of tractor-trailers compared to the minimum road width, can be found on
the table below:'
Maximum Angle Minimum Road Width
30° 16'6"
60° 24'6"
90° 27'0"
120° 27'0"
150° 35'0"
180° 33'0"
Table]: www.thetruckersreport.com/turnin.e radius for eighteen wheelers shtml
5 The Truckers Report. Watts, Kevin R. Big Sandy, Tennessee. 2006. www.thetruckersreport.com
421 Tru& Stop IF (14/2 11
sr-6i
The remaining 0.02 acre of requested wetland impact is necessary to create vegetative
filters, as required by State Stormwater standards, and also to incorporate a dumpster pad.
Proposed Compensatory Mitigation
Due to the lack of a mitigation bank within New Hanover County, the immediate vicinity of the
project, or the same drainage basin, compensatory mitigation for wetland impacts associated with
the expansion of the Scotchman #303 is being sought through a combination of mitigation
mechanisms. The Applicant is proposing a combination of payment to the North Carolina
Ecosystem Enhancement Program (NC EEP), and the strict preservation of the remaining on-site
wetlands, as mitigation for the proposed impacts.
• Payment to NC EEP:
Pursuant to the Army Corps of Engineer's new rules regarding Compensatory Mitigation
for Losses of Aquatic Functions, baseline information regarding the impact sites, as well
as the determination of credits, will be the only two of the twelve components of
mitigation discussed with regard to NC EEP:
Baseline Information: The wetlands on-site can be classified as freshwater
marsh wetlands. The wetlands are vegetated with a monotypic stand of
Phragmites australis. Freshwater marshes are semi-permanently to permanently
inundated or flooded, and develop where standing water is generally present
throughout the year, so that trees cannot become established. They are common
in the outer coastal plain, and are valuable for storing water and protecting water
quality. Their plants retain and filter sediments, thereby reducing pollutants.
Freshwater marshes stabilize shorelines and prevent bank erosion and siltation.
Freshwater marshes are not generally known for their rare species, though they do
provide habitat for a number of common species.'
Indicators of hydrology include inundation, and a prevalence of species with an
indicator status that was wetter than facultative. Saturated soil was found at 12
inches below the surface.
Two soil types were mapped within the Soil Survey of New Hanover County,
North Carolina (see Attachment 11). According to the mapped survey, the two
types of soil are classified as Dorovan soils and Urban land:
Dorovan soils are nearly level, poorly drained soils that are found in bays and
long, broad areas of tidal and stream floodplains. These soils are frequently
flooded for very long periods of time. The soils is known to subside if
1 A Field Guide to North Carolina Wetlands. Department of Environment, Health and Natural Resources Division of
Environmental Management, January 1996.
421 TrucL Stop IF (15/21)
drained and tilled.z
SEGO
Urban land is classified as areas where the original soil has been cut, filled
graded or paved so that most of the soil properties have been altered to the
extent that the soil series is not recognized. Areas that fall within the mapped
areas of Urban land are primarily used as shopping centers, factories,
buildings, apartments, etc. The soil is covered by pavement.2
Determination of Credits: Payment to NC EEP is offered at a 2.08:1 ratio, for
riparian wetland impacts (see Attachment 13). This ratio was chosen because the
Corps' guidelines state there should be no net loss of wetlands, and the Applicant
feels that providing a ratio of 2.08:1 will ensure that the "no net loss" guideline is
met. The proposed the ratio should also off-set the temporal losses which may
occur, due to any time lag between NC EEP agreeing to perform the mitigation,
and the mitigation efforts actually being undertaken. The stormwater
management facilities proposed for the site will filter out pollutants from runoff
and rehydrate the wetlands, thereby off-setting the proposed impacts.
According to NC EEP's website, "EEP facilitates responsible economic development
across North Carolina by offsetting unavoidable damage to the environment. EEP
manages the restoration and enhancement of streams and wetlands statewide in [the] In-
Lieu Fee program. Through which the state contracts with private-sector companies to
perform the needed off-sets." Payment to NC EEP, in an amount sufficient to off-set the
proposed impacts, will assist the Applicant in achieving the "no net loss" of wetlands
policy set forth by the Corps. The freshwater marsh wetland functionality, flood storage
and pollutant removal, will be off-set by the stormwater management facilities. The
Applicant's stormwater plan calls for sand filters and vegetated filters, which will filter
out pollutants from runoff and rehydrate the wetlands. Freshwater marsh wetlands are
not generally known for their rare species, though some common wildlife, such as deer,
fox, raccoon, waterfowl and amphibea have been known to utilize this wetland type. Due
to the fact that this freshwater marsh wetland complex is located adjacent to a highly
traveled roadway, SEGi does not anticipate a significant impact to the habitat value of the
wetland.
Pursuant to the Memorandum of Understanding between NC EEP (a division of NC
DENR) and the USACE, once payment is made to the NC EEP, they are then responsible
for the compensatory mitigation specified within the issued USACE permit, in this case,
compensation to adequately off-set the loss of 0.72 acre riparian wetlands. The Applicant
will be purchasing 1.5 acres of riparian mitigation credit, at a cost of approximately
$89,400 (Eighty Nine Thousand Four Hundred Dollars).
2 Soil Survey of New Hanover County, North Carolina United States Department of Agriculture, April 1977.
421 Truck Stop IF [ 1 612 11 SE-6i
• Preservation of Remaining On-site Wetlands:
In accordance with the Corps' new Compensatory Mitigation rules, the twelve
components of mitigation will be discussed, with regard to the proposed preservation
area:
Objectives: The Applicant will be preserving the remaining on-site freshwater
marsh wetlands, totaling 0.20 acre (8,881 square feet).
Preservation is a mechanism utilized by the Corps, which protects remaining on-
site wetlands in perpetuity by using appropriate restrictions or covenants. These
restrictions prohibit harmful activities that might otherwise jeopardize the purpose
and function of remaining wetlands. These restrictions include: no filling; no
grading; no construction of walkways, roads, etc.; no activities which may alter
on-site drainage patterns; and, no alteration of vegetation on the property.
Preservation is a necessity in this area, as recent urban impacts within, and
adjacent to, the conservation site increase the need for preserving wetland
functions. The completion of the Isabelle S. Holmes bridge has increased the
traffic flow along that length of US-421, which has in turn made the area more
attractive to business owners. Preservation of this land will provide a significant
vital resource protection in the Cape Fear River basin. The preservation easement
will be designed to ensure perpetual protection of the wetlands and will be
binding to the property (see Attachment 12).
Site Selection: As stated in the previous section, recent urban impacts within and
adjacent to the conservation site, as well as the increase in traffic associated with
the completion of the Isabelle Holmes bridge, augment the need for preserving
wetland functions. The preservation area will be located on the subject parcel,
which is adjacent to the Northeast Cape Fear River. Though the site does not abut
the river, it is located extremely close to the waterbody. Any wetland
preservation proposed in close proximity to the river will be advantageous to the
feature because the preserved wetlands will serve a multitude of beneficial
purposes: filtration of pollutants from run-off; fish and wildlife habitats; natural
water quality improvements; flood storage; shoreline erosion protection; and,
reducing potential for flood damage, among other functions.
Site Protection Instrument: Preservation will be accomplished by utilizing the
Model Declaration of Restrictions, found on the Army Corps of Engineer's
website, and recording the document and associated exhibit map with the New
Hanover County Register of Deeds (see Attachments 6 and 12). The Model
Declarations are enforceable by the United States Army Corps of Engineers. The
site protection instrument will run with the subject property and be binding on all
421 Truckjtop IF [ 17/2 1 l
sr-6I
parties that have, or shall have, any right, title, or interest in the property.
Baseline Information: The wetlands on-site can be classified as freshwater
marsh wetlands. The wetlands are vegetated with a monotypic stand of
Phragmites australis. Freshwater marshes are semi-permanently to permanently
inundated or flooded, and develop where standing water is generally present
throughout the year, so that trees cannot become established. They are common
in the outer coastal plain, and are valuable for storing water and protecting water
quality. Their plants retain and filter sediments, thereby reducing pollutants.
Freshwater marshes stabilize shorelines and prevent bank erosion and siltation.
Freshwater marshes are not generally known for their rare species, though they do
provide habitat for a number of common species.'
Indicators of hydrology include inundation, and a prevalence of species with an
indicator status that was wetter than facultative. Saturated soil was found at 12
inches below the surface.
Two soil types were mapped within the Soil Survey of New Hanover County
North Carolina (see Attachment 11). According to the mapped survey, the two
types of soil are classified as Dorovan soils and Urban land:
Dorovan soils are nearly level, poorly drained soils that are found in bays and
long, broad areas of tidal and stream floodplains. These soils are frequently
flooded for very long periods of time. The soils is known to subside if
drained and tilled.'
Urban land is classified as areas where the original soil has been cut, filled
graded or paved so that most of the soil properties have been altered to the
extent that the soil series is not recognized. Areas that fall within the mapped
areas of Urban land are primarily used as shopping centers, factories,
buildings, apartments, etc. The soil is covered by pavement.'
Determination of Credits: The ratio of preservation is limited by the amount of
wetlands available for preservation on the subject parcel. Overall, 0.20 acre of
wetlands will be placed into preservation.
The Applicant owns two additional properties in New Hanover County, located at
7111 and 7113 Wrightsville Avenue. These properties already contain a gas
station and convenience store, and have no visible wetlands to offer as additional
preservation (see Attachment 16).
1 A Field Guide to North Carolina Wetlands Department of Environment, Health and Natural Resources Division of
Environmental Management, January 1996.
2 Soil Survey of New Hanover County North Carolina United States Department of Agriculture, April 1977.
+21 Truck `jtop IF [ 1 8/21 ]
SEGO
Therefore, the preservation ratio was determined, and limited, by the amount of
remaining wetlands on-site. The overall preservation ratio proposed for this
project is approximately 0.28:1.
Mitigation Work Plan: The boundaries of the preservation area were
determined by contracting a surveyor to obtain the metes and bounds of the
wetlands to be preserved. As the Applicant is offering preservation, not
restoration, enhancement or establishment, the remaining information requested
in this section is not applicable to the mitigation offer proposed for this project.
Maintenance Plan: A maintenance plan should not be required for preservation,
as the restrictive covenants and associated exhibit map, to be recorded in the New
Hanover County Register of Deeds, should be specific enough with regard to
permissible and prohibited actions within preservation areas, and should ensure
the wetlands remain in their natural condition (see Attachment 12).
Performance Standards: The performance standards have been included in the
model declaration of restrictions. Adherence to the restrictions, covenants and
conditions within the model declaration of restrictions will ensure the
compensatory mitigation area is achieving its objectives.
Monitoring Requirements: Visual inspection of the preservation area should be
sufficient to determine if the components of the restrictive covenants are being
adhered to. The restrictive covenants, to be recorded, allow for the "Corps, its
employees and agents and its successors and assigns, [to] have the right, with
reasonable notice, to enter the Property at reasonable times for the purpose of
inspecting the Property to determine whether the Declarant, Declarant's
representatives, or assigns are complying with the terms, conditions and
restrictions of this Conservation Declaration." The Corps retains the right to
inspect the preservation area, thus, if the restrictions within the preservation
document are not being adhered to, the United States of America has the right to
seek legal ramifications.
Long-term Management Plan: The recordation of the restrictive covenants will
serve as the long-term management plan. According to the restrictions, "This
Declaration is intended to ensure continued compliance with the mitigation
conditions of authorizations issued by the United States of America, US Army
Corps of Engineers, Wilmington District, and therefore may be enforced by the
United States of America. This covenant is to run with the land and shall be
binding on all parties and persons claiming under the Declarant." Once recorded,
the document is binding on all parties claiming under it, thus, deviation from the
restrictions could result in prosecution by the United States of America.
421 Truck jtop IF ( 1 9/2 1)
SEGO
Adaptive Management Plan: An adaptive management plan should not be
necessary for the proposed preservation area. The Applicant anticipates the
preservation area will succeed, as the methods of protection put into place,
namely, recordation of the restrictions, will ensure perpetual preservation of the
remaining on-site wetlands. If the District Engineer determines that a deficiency
has arisen in the preservation area, then steps will be taken to remediate the
situation, either restoration of the resource or payment to the NC EEP in an
amount sufficient to off-set the deficient preservation area. Remediation, on
behalf of the Applicant, will occur only in the event that man-made activities,
taking place within the property boundaries, cause the decline in function of the
systems being preserved.
Financial Assurances: Financial assurances should not be necessary for the
proposed preservation area. The preservation mechanism, recorded with the New
Hanover County Register of Deeds, should provide a high level of confidence that
the mitigation area will be preserved in perpetuity.
421 Truck Stop J I [7-0/21)
Adjacent Property Owners
5E-Gi
The subject parcel does not adjoin a waterbody. The property to the north and east is owned by
Eagle Island LTD. The parcel to the south is owned by Holmesbridge LLC, and the property to
the west of the subject parcel is owned by Mr. Robert L. Bryden and Ann Stapleton.
Eagle Island LTD
3330 River Road
Wilmington, NC 28412
Holmesbridge LLC
2019 Fairview Road
Raleigh, NC 27608
Robert L. Bryden &
Ann Stapleton
515 North 5"' Street
Wilmington, NC 28401
Other Authorizations
The proposed project will require other permits, as shown below:
Other Authorizations
Type Agency Date Issues (I) or Applied For (A)
401 Water Quality Certification NC Division of Water Quality Applying for concurrently with IP
State Stormwater Permit NC Division of Water Quality Modification being applied for by Coastal Site
Design
County Stormwater Permit New Hanover County Modification being applied for by Coastal Site

Sedimentation & Erosion Control

Wastewater NPDES Permit
NC DENR Division of Land
Resources
NC DENR Surface Water Design
Modification being applied for by Coastal Site
Design
Issued: 04 April 2008
NCO065307 Protection
421 Truck Stop IF [21/21
Figures
Figure 1. Data obtained from Google Maps
Figure 2. Data obtained from maps.live.com
Figure 3. Data obtained from Brunswick County GIS
Figure 4. Data obtained from Google Maps
SEG
Table 1: www.thetruckersrei)ort.com/turning radius for eighteen wheelers.shtml
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This site has a somewhat convoluted past. This parcel was once used for the purpose of an old
automobile junkyard, which included old rusting automobiles, old batteries, old tires, etc. The
Worsley Company cleaned up the debris and constructed the existing truck stop on the upland
portion of the property in 1990. According to old court records (see Attachment 20), on 7 April
1987, Mr. Hugh Heine, the USACE New Hanover County Regulator at the time, made a site visit
and discovered 0.13 acre of unauthorized fill material in two areas of the "standing water
swamp" complex. At Mr. Heine's request, the Worsley Company removed the unauthorized fill
material from the wetlands (on or around 28 May 1987).
On 25 August 1987, a 404 permit application was submitted on behalf of the Worsley Company,
by Catlin & Associates of Wilmington, North Carolina. The project was given an Action ID
number of 198700517. The application requested permission to fill 0.21 acre of wetlands on-
site, to allow for an access ramp. The application was retired on 30 November 1987, at the
request of the Worsley Company, due to an insufficient compensatory mitigation offer.
Sometime before 22 September 1988, the Worsley Company retained the services of Mr. Rob
Moul and Land Management Group, to assist in performing a wetland delineation. Mr. Moul
performed the delineation, which was verified by Mr. Heine sometime around 19 January 1989.
Mr. Heine also verified the wetland boundary survey, performed by Brunswick Surveying, Inc.
On 10 September 1991, a mitigation proposal was submitted on behalf of the Worsley Company,
by Mr. Moul. As compensatory mitigation was the single lacking factor in the original
application submittal, the inclusion of this document re-opened the file for the original
application (requesting 0.21 acre of fill). The Corps issued the Worsley Company a 404 permit
on 17 October 1991, to allow for the filling of 0.21 acre of wetlands (see Attachment 19).
Mr. Michael Smith, the Corps' then-enforcement officer, performed a compliance inspection on
04 December 1991, in response to several telephone calls which reported wetland fill at the
subject parcel. Mr. Smith's site visit showed the Worsley Company had filled approximately one
acre of wetlands, well beyond the limits of the approved 0.21 acre request. The Worsley
Company was given a cease and desist letter that day, requiring them to refrain from any work in
waters or wetlands, until the matter got resolved.
A site visit on 1 September 1992 showed that truck scales had been constructed and installed at
the site, and that the unauthorized fill area had been paved. Both of those actions were in direct
violation of the cease and desist order. At that time, the Corps decided to seek legal recourse.
The case was presented to the United States District Court for the Eastern District of North
Carolina Wilmington Division (Case No. 93-15-CIV-7-F). The facts of the case were presented,
and a Consent Order and Judgment was subsequently issued (see Attachment 26).
The Consent Order and Judgment required the Worsley Company to restore 0.11 acre of the
impacted wetlands on the subject parcel. Please note, the Order does allow for future permitting
of the previously impacted area. The Order states: "Nothing herein shall be construed to
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U.S. ARMY CORPS OF ENGINEEkS
WILMINGTON DISTRICT
Action Id. SAW-2004-1149-065 County: New Hanover U.S.G.S. Quad: Castle Hayne
NOTIFICATION OF JURISDICTIONAL DETERMINATION
Property Owner/Agent: William H. Smith
Address: 115 Linden Drive
Danville, VA 24541
O L
0
Telephone No.: 434-793-9037
D
D
Property description:
Size (acres) 3.15 Nearest Town Wilmington
Nearest Waterway Cape Fear River River Basin Cape Fear
USGS HUC 03030005 Coordinates N 34.2530 W 77.9565
Location description The parcel is located at 1610 Highway 421 North in wetlands adjacent to the Cape Fear River
in Wilmington, NC.
Indicate Which of the Following Apply:
A. Preliminary Determination
Based on preliminary information, there may be wetlands on the above described property. We strongly suggest you have
this property inspected to determine the extent of Department of the Army (DA) jurisdiction. To be considered final, a
jurisdictional determination must be verified by the Corps. This preliminary determination is not an appealable action
under the Regulatory Program Administrative Appeal Process ( Reference 33 CFR Part 331).
B. Approved Determination
X There are Navigable Waters of the United States within the above described property subject to the permit requirements of
Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act. Unless there is a change in the law or
our published regulations, this determination may be relied upon for a period not to exceed five years from the date of this
notification.
X There are wetlands on the above described property subject to the permit requirements of Section 404 of the Clean Water
Act (CWA)(33 USC § 1344). Unless there is a change in the law or our published regulations, this determination may be
relied upon for a period not to exceed five years from the date of this notification.
_ We strongly suggest you have the wetlands on your property delineated. Due to the size of your property and/or our
present workload, the Corps may not be able to accomplish this wetland delineation in a timely manner. For a more timely
delineation, you may wish to obtain a consultant. To be considered final, any delineation must be verified by the Corps.
_ The wetland on your property have been delineated and the delineation has been verified by the Corps. We strongly
suggest you have this delineation surveyed. Upon completion, this survey should be reviewed and verified by the Corps.
Once verified, this survey will provide an accurate depiction of all areas subject to CWA jurisdiction on your property
which, provided there is no change in the law or our published regulations, may be relied upon for a period not to exceed
five years.
X The wetlands have been delineated and surveyed and are accurately depicted on the plat signed by the Corps
Regulatory Official identified below on 3/26/2007. Unless there is a change in the law or our published regulations, this
determination may be relied upon for a period not to exceed five years from the date of this notification.
_ There are no waters of the U.S., to include wetlands, present on the above described property which are subject to the
permit requirements of Section 404 of the Clean Water Act (33 USC 1344). Unless there is a change in the law or our
published regulations, this determination may be relied upon for a period not to exceed five years from the date of this
notification.
X The property is located in one of the 20 Coastal Counties subject to regulation under the Coastal Area Management Act
(CAMA). You should contact the Division of Coastal Management in Wilmington, NC, at [phone] to determine
their requirements.
Page 1 of 2
Action ID: •)Iy-i .ot,S-
Placement of dredged or fill material within waters of the US and/or wetlands without a Department of the Army permit may
constitute a violation of Section 301 of the Clean Water Act (33 USC § 1311). If you have any questions regarding this
determination and/or the Corps regulatory program, please contact Jennifer Frve at 910-251-4923.
C. Basis For Determination
This site exhibits wetland criteria as described in the 1987 Corps Wetland Delineation Manual and is continuous with
the Cape Fear River, a Navigable Water of the United States. This determination is based on a site visit by Jennifer
Frye on 8/31/2004 and information submitted by SEGi on 8/24/2006
D. Remarks
E. Appeals Information (This information applies only to approved jurisdictional determinations as indicated in
B. above)
This correspondence constitutes an approved jurisdictional determination for the above described site. If you object to this
determination, you may request an administrative appeal under Corps regulations at 33 CFR part 331. Enclosed you will find a
Notification of Appeal Process (NAP) fact sheet and request for appeal (RFA) form. If you request to appeal this
determination you must submit a completed RFA form to the South Atlantic Division, Division Office at the Following
address:
Mr. Michael F. Bell, Administrative Appeal Review Officer
CESAD-ET-CO-R
U.S. Army Corps of Engineers, South Atlantic Division
60 Forsyth Street, Room 9M 15
Atlanta, Georgia 30303-8801
In order for an RFA to be accepted by the Corps, the Corps must determine that it is complete, that it meets the criteria for
appeal under 33 CFR part 331.5, and that it has been received by the Division Office within 60 days of the date of the NAP.
Should you decide to submit an RFA form, it must be received at the above address by 5/26/2007.
**It is not necessary to submit an RFA form to the Division Office if you do not object to the determination in this
correspondence.
Corps Regulatory Official:
Date 03/26/2007 xpiration Date 03/26/2012
The Wilmington District is committed to providing the highest level of support to the public. To help us ensure we continue to
do so, please complete the attached customer Satisfaction Survey or visit
http://www.saw.usace.army.mil/WETLANDS/index.htini to complete the survey online.
Copy furnished:
?R?;+?Inp?S?*i?S+tiS'+ntttlt?Cls????'?R?ad??Sttit?-E??+ilrii'4tigton?14+284?I=3
Noelle Lutheran, DENR-DWQ, WiRO, 127 Cardinal Drive Ext., Wilmington, NC 28405
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New Hanover County http://etax.nhcgov.com/Forms/PrintDatalet.aspx?pin=R04700-002-00...
PARID:R04700-002-001-000
SMITH WILLIAM H 1610 421 HWY N
Parcel
Alt ID 311815.54.3847.000
Address 1610 N 421 HWY
Unit
City WILMINGTON
Zip Code -
Neighborhood 6290
Class IND-Industrial
Land Use Code 547-CONVENIENCE GROCERY
Living Units
Acres 3.4643
Zoning 1-2-INDUATRIAL DISTRICT
Legal
Legal Description 102 TRU 108 POCOMOKE ADJ (3.15
ACRES) TRUCK STOP
Tax District FD
Owners
Owner SMITH WILLIAM H
City DANVILLE
State VA
Country
Zip 24541
The data is from 2008
Sales
Sale Date Sale
Price Grantee Grantor Book Page Kale
y
04-MAR-91 $887,500 SMITH WILLIAM WORSLEY 1532 0452 95203
H COMPANIES
INC
01-NOV-86 $17,280 WORSLEY LEWIS WILLIAM 1350 1371 95202
COMPANIES J
INC
01-JUL-61 $0 LEWIS WILLIAM * NOT IN 0690 0062 95201
J SYSTEM *
Sale Details 1 of 3
Sale Date 04-MAR-91
Sale Key 95203
Sale Price $887,500.00
Grantee SMITH WILLIAM H
Grantor WORSLEY COMPANIES INC
Sale Source D-Deed Stamps (Unverified)
Book 1532
Page 0452
Sale Validity U-Unqualified
Sale Type IMPROVED
Sale Flag
STEB
of3 '7inninnn0 In.11 nil
New Hanover County
http://etax.nhcgov.com/Forms/PrintDatalet.aspx?pin=R047(70DO2-00
P
Instrument #
Instrument Type Warranty Deed
Adj. Reason
Adj. Price
Adj. Amount
Commercial
Card 1
Building Number 1
Structure Code/Description CFM-CFM
Improvment Name CONVENIENCE STORE W/GAS PUMPS
Units 1
Year Built 1990
Effective Year Built
Grade C+
Class I-IND
Other Improvements
Other Imp Value
Total Under Roof 4504
Building Factor 1
Percent Complete %
Percent Good 81%
Notes
Other Feature Details
Card 1
Int/Ext Line 1
Area
Measurement 1 1
Measurement 2 295
Identical Units 1
Summary of Interior/Exterior Data
Card Line Number Section From Floor To Floor Area
1 1 1 01 01 2,252
1 2 1 01 01 2,252
Interior/Exterior Details
1 of 2
Card 1
Line Number 1
Section 1
From Floor 01
To Floor 01
Area 2,252
Use Group CFM
Class
Physical Condition A
Construction 1-1
Wall Height 12
Interior Wall 2-2
Air 1-1
Plumbing 0-0
Units
Functional Depr.
Economic Depr.
Summary of All Other Features
of 3 7/29/2008 12:13 PM
New Han®ver County http://eta.x.nhcgov.cora/Forms/PrintDatalet.aspx?pin=R04700-002-00..,
1
Card Int/Ext Line Area
1 1
The data is from 2008
Misc. Improvements
Card Desc Year Built Grade Width Length Area
1 TS-TS 1992 C 1 1 1
1 CPS-CPS 1991 C 72 20 1,440
1 PC-PC 1991 C 0 0 2,550
1 PA-PA 1991 C 0 0 60,000
1 CPS-CPS 1991 C 42 20 840
The data is from 2008
Values
Year 2008
Total Land $229,376
Total Buildings $357,961
Appraised Total $587,337
Market value shown - exemptions to be reflected in Aug bills
The data is from 2008
)f 3
7/29/2008 12:13 PM

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a
MODEL DECLARATION OF RESTRICTIONS
August, 2003
STATE OF NORTH CAROLINA
New Hanover COUNTY
CONSERVATION DECLARATION
This DECLARATION of CONSERVATION COVENANTS, CONDITIONS, and
RESTRICTIONS (" ") is made on this day of , 200_, by
Mr. Wflliam H. Smith, 115 Linden Drive, Danville, VA 24551, "Declarant").
RECITALS & CONSERVATION PURPOSES
A. Declarant is the sole owner in fee simple of the certain Conservation Property (Property)
being approximately 0.20 acres, more particularly described in Exhibit A attached hereto and by
this reference incorporated herein [reference to a recorded map showing a survey of the preserved
area may be required]; and
B. The purpose of this Conservation Declaration is to maintain wetland and/or riparian resources
and other natural values of the Property, and prevent the use or development of the Property for
any purpose or in any manner that would conflict with the maintenance of the Property in its
natural condition. The preservation of the Property in its natural condition is a condition of
Department of the Army permit Action ID pending issued by the Wilmington District Corps of
Engineers (Corps), required to mitigate for unavoidable impacts to waters of the United States
authorized by that permit, and this Conservation Declaration may therefore be enforced by the
United States of America.
NOW, THEREFORE the Declarant hereby unconditionally and irrevocably declares that the
Property shall be held and subject to the following restrictions, covenants and conditions as set
out herein, to run with the subject real property and be binding on all parties that have or shall
have any right, title, or interest in said property.
ARTICLE I. PROHIBITED AND RESTRICTED ACTIVITIES
Any activity on, or use of, the Property inconsistent with the purposes of this Conservation
Declaration is prohibited. The Property shall be maintained in its natural, scenic, and open
condition and restricted from any development or use that would impair or interfere with the
conservation purposes of this Conservation Declaration set forth above.
Without limiting the generality of the foregoing, the following activities and uses are expressly
prohibited or restricted.
5r-6i
A. Disturbance of Natural Features. Any change disturbance, alteration or impairment of the
natural features of the Property or any introduction of non-native plants and/or animal species is
prohibited.
B. Construction. There shall be no constructing or placing of any building, mobile home, asphalt
or concrete pavement, billboard or other advertising display, antenna, utility pole, tower, conduit,
line, pier, landing, dock or any other temporary or permanent structure or facility on or above the
Property.
C. Industrial, Commercial and Residential Use. Industrial, residential and/or commercial
activities, including any right of passage for such purposes are prohibited.
D. Agricultural, Grazing and Horticultural Use. Agricultural, grazing, animal husbandry, and
horticultural use of the Property are prohibited.
E. Vegetation. There shall be no removal, burning, destruction, harming, cutting or mowing of
trees, shrubs, or other vegetation on the Property.
F. Roads and Trails. There shall be no construction of roads, trails or walkways on the property.
G. Signage. No signs shall be permitted on or over the Property, except the posting of no
trespassing signs, signs identifying the conservation values of the Property, signs giving
directions or proscribing rules and regulations for the use of the Property and/or signs identifying
the Grantor as owner of the property.
H. Dumping or Storage. Dumping or storage of soil, trash, ashes, garbage, waste, abandoned
vehicles, appliances, machinery or hazardous substances, or toxic or hazardous waste, or any
placement of underground or aboveground storage tanks or other materials on the Property is
prohibited.
1. Excavation, Dredging or Mineral Use. There shall be no grading, filling, excavation, dredging,
mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other materials,
and no change in the topography of the land in any manner on the Property, except to restore
natural topography or drainage patterns.
J. Water Quality and Drainage Pattern. There shall be no diking, draining, dredging, channeling,
filling, leveling, pumping, impounding or related activities, or altering or tampering with water
control structures or devices, or disruption or alteration of the restored, enhanced, or created
drainage patterns. In addition, diverting or causing or permitting the diversion of surface or
underground water into, within or out of the easement area by any means, removal of wetlands,
polluting or discharging into waters, springs, seeps, or wetlands, or use of pesticide or biocides is
prohibited.
SEGO
K. Development Rights. No development rights that have been encumbered or extinguished by
this Conservation Declaration shall be transferred pursuant to a transferable development rights
scheme or cluster development arrangement or otherwise.
L. Vehicles. The operation of mechanized vehicles, including, but not limited to, motorcycles,
dirt bikes, all-terrain vehicles, cars and trucks is prohibited.
M. Other Prohibitions. Any other use of, or activity on, the Property which is or may become
inconsistent with the purposes of this grant, the preservation of the Property substantially in its
natural condition, or the protection of its environmental systems, is prohibited.
ARTICLE II. ENFORCEMENT & REMEDIES
A. This Declaration is intended to ensure continued compliance with the mitigation condition of
authorizations issued by the United States of America, U.S. Army Corps of Engineers,
Wilmington District, and therefore may be enforced by the United States of America. This
covenant is to run with the land and shall be binding on all parties and all persons claiming under
the Declarant.
B. Corps, its employees and agents and its successors and assigns, have the right, with reasonable
notice, to enter the Property at reasonable times for the purpose of inspecting the Property to
determine whether the Declarant, Declarant's representatives, or assigns are complying with the
terms, conditions and restrictions of this Conservation Declaration.
C. Nothing contained in this Conservation Declaration shall be construed to entitle Corps to
bring any action against Declarant for any injury or change in the Conservation Property caused
by third parties, resulting from causes beyond the Declarant's control, including, without
limitation, fire, flood, storm, and earth movement, or from any prudent action taken in good faith
by the Declarant under emergency conditions to prevent, abate, or mitigate significant injury to
life, damage to Property or harm to the Property resulting from such causes.
ARTICLE III. PUBLIC ACCESS
A. This Conservation Declaration does not convey to the public the right to enter the Property for
any purpose whatsoever.
sr-6I
ARTICLE IV. DOCUMENTATION AND TITLE
A. Conservation Property Condition. The Declarant represents and acknowledges that the
Property is currently undeveloped land, with no improvements other than any existing utility
lines, Declarations and rights of way.
B. Title. The Declarant covenants and represents that the Declarant is the sole owner and is
seized of the Property in fee simple and has good right to make the herein Declaration; that there
is legal access to the Property, that the Property is free and clear of any and all encumbrances,
except Declarations of record.
ARTICLE V. MISCELLANEOUS
A. Conservation Purpose.
(1) Declarant, for itself, its successors and assigns, agrees that this Conservation Property shall be
held exclusively for conservation purposes.
B. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to
the Conservation Declaration and supersedes all prior discussions, negotiations, understandings
or agreements relating to the Conservation Declaration. If any provision is found to be invalid,
the remainder of the provisions of this Conservation Declaration, and the application of such
provision to persons or circumstances other than those as to which it is found to be invalid, shall
not be affected thereby.
C. Recording. Declarant shall record this instrument and any amendment hereto in timely fashion
in the official records of County, North Carolina, and may re-record it at any time
as may be required to preserve its rights.
D. Environmental Condition of Conservation Property. The Declarant warrants and represents
that to the best of its knowledge after appropriate inquiry and investigation: (a) the Property
described herein is and at all times hereafter will continue to be in full compliance with all
federal, state and local environmental laws and regulations, and (b) as of the date hereof there are
no hazardous materials, substances, wastes, or environmentally regulated substances (including,
without limitation, any materials containing asbestos) located on, in or under the Property or used
in connection therewith, and that there is no environmental condition existing on the Property
that may prohibit or impede use of the Property for the purposes set forth in the Recitals.
IN WITNESS WHEREOF, Declarant has hereunto set his hand and seal, the day and year first
above written.
[Signature of Declarant in proper form]
AA-V ac-Vi 3
oSvstem
'' ar U1a111elit
PROGRAM
February 4, 2009
William H. Smith
115 Linden Dr.
Danville, VA 24551 Expiration of Acceptance: November 4, 2009
Project: 421 Truck Stop County: New Hanover
The purpose of this letter is to notify you that the North Carolina Ecosystem Enhancement Program (NCEEP) is willing to accept
payment for impacts associated with the above referenced project. Please note that this decision does not assure that the payment will
be approved by the permit issuing agencies as mitigation for project impacts. It is the responsibility of the applicant to contact these
agencies to determine if payment to the NCEEP will be approved.. You itiust alsn:cQ ply wtsh all other state federal of local
This acceptance is valid for nine months from the date of this letter and is not transferable. If we have not received a copy of the
issued 404 Permit/401 Certification/CAMA permit within this time frame, this acceptance will expire. It is the applicant's
responsibility to send copies of the permits to NCEEP. Once NCEEP receives a copy of the permit(s) an invoice will be issued based
on the required mitigation in that permit and payment must be made prior to conducting the authorized work. The amount of the In
Lieu Fee to be paid to NCEEP by an applicant is calculated based upon the Fee Schedule and policies listed at www.nceep.net.
Based on the information supplied by you the impacts that may require compensatory mitigation are summarized in the following
table.
River
Basin CU
Location Stream (feet) Wetlands (acres) Buffer I
(Sq. Ft.) Buffer II
(Sq. Ft.)

Im
act
Ca
e F
0303000 Cold Cool Warm Riparian Non-Riparian Coastal Marsh
p p
ear 7 0 0 0 0.72 0 0 0 0
Credits Cape Fear 03030007 0 0 0 1.44 0 0 0 0
Upon receipt of payment, EEP will take responsibility for providing the compensatory mitigation. If the regulatory agencies require
mitigation credits greater than indicated above, and the applicant wants NCEEP to be responsible for the additional mitigation, the
applicant will need to submit a mitigation request to NCEEP for approval prior to permit issuance. The mitigation will be performed
in accordance with the Memorandum of Understanding between the N.C. Department of Environment and Natural Resources and the
U.S. Army Corps of Engineers dated November 4, 1998.
If you have any questions or need additional information, please contact Valerie Mitchener at [phone].
Sincerely,
Sqjj
Willia Gilmore, PE
Director
cc: Cyndi Karoly, NCDWQ Wetlands/401 Unit
Kim Garvey, USACE-Wilmington
Chad Coburn, NCDWQ-Wilmington
Amanda Kolb, agent
File
1?P.StDYGK?... ... Prot" our ft&el
RC-6ENR
North Carolina Ecosystem Enhancement Program, 1652 Mail Service Center, Raleigh, NC 27699-1652 / 919-715-0476 / www.nceep.net
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5EG,
Southern Environmental 6rour, Inc.
Environmental, Development and Conservation Advisors
www.acgi.us
Letter of Agency
l QaQl hereby grant
jouthem Environmental Group, Inc., (5ECji) the right to represent
in matters regardingenvironmental consulting
scrvicez annd real property owned 6y `/)U
in Plt? Count!A/Countics, t6rou 6 the
beat.) B
date of S200-.
Land Qwner/ AS--t
9-f•
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STATE of NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY DIVISION OF MGHWAYS; LYNDO TIPPETT
Gov woA SE.CUTARY
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STATE OF NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
MICHAEL F. EASLEY DIVISION OF HIGHWAYS LYNDO TIPPETT
GOVERNOR SECr..>~TARY
' ,i
ROdER D. HAWKIN5
DIVISION TRAFFIC ENGINEER
DIVISION OF HIGHWAYS
NORTH CAROLINA
DEPARTMENT OF TRANSPORTATION
124 DIVISION DRIVE OFFICE 910-251-2693
WILMINGTON, NC 26401 FAX [phone]

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LF i;wGTOf?' DISTRICT, CORPS OF ; NG;NEE -:S
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'r!L!,'INGTON, NO=,TH CAROLINA 28-.02.1890
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Regulatory Branch
October 17, 1991
Action ID. Nos. 198700517 and 199103305
Worsley Companies, Incorporated
Post Office Box 3227
Wilmington, North Carolina 28406
Gentlemen:
EXHIBIT
ALL-STATE LEGAL SUPPLY CO.
In accordance with your written request of August 27, 1991, and
the ensuing administrative record, enclosed is a permit to place fill material
within wetlands adjacent to the Northeast Cape Fear River associated with
expansion of a truck stop at the junction of U.S. Highways 117 and 421, New
Hanover County, North Carolina.
If any change in the authorized work is required because of unforeseen or
altered conditions or for any other reason, the plans revised to show the
change must be sent promptly to this office. Such action is necessary, as
revised plans must be reviewed and the permit modified.
carefully read your permit. The general and special conditions are
important. Your failure to comply with these conditions could result in a
violation of Federal law. Certain significant general conditions require
that:
a. You must complete construction before December 31, 1994.
b. You must notify this office in advance as to when you intend to
commence and complete work.
c. You must allow representatives from this office to make periodic
visits to your worksite as deemed necessary to assure compliance with permit
plans and conditions.
The enclosed Notice of Authorization, ENG Form 4336, must be conspicuously
displayed at your worksite.
Sincerely,
1
Walter S. Tulloch
Colonel, Corps of Engineers
District Engineer
Enclosures
iriL r. F, iJ?I
WILMINGTON DISTRIC T, CORPS OF ENGINEERS
DO. BOX 18-00
MLNINGTON, NORTH CAROLINA 28402.1850 F. E October 17,
=_8 TG
Regulatory Branch
Action ID. Nos. 198700517 and 199103305
Worsley Companies, Incorporated
Post Office Box 3227
Wilmington, North Carolina 28406
Gentlemen:
In accordance with your written request of August 27, 1987, and the
ensuing administrative record, enclosed is a permit to place fill material
within wetlands adjacent to the Northeast Cape Fear River associated with
expansion of a truck stop at the junction of U.S. Highways 117 and 421, New
Hanover County, North Carolina.
You should acknowledge that you accept the terms and conditions of the
enclosed permit by signing and dating each copy in the spaces provided
("Permittee" on page 3). All pages of both copies of the signed permit with
drawings should then be returned to this office for final authorization. A
self-addressed envelope is enclosed for your convenience.
Title 33, Part 325.1(f), of the Code of Federal Regulations reads, in
part, that, "A $10 fee will be charged for permit applications when the work
is noncommercial in nature and provides personal benefits that have no
connection with a commercial enterprise...", and "A fee of $100 will be
charged for permit applications when the planned or ultimate purpose of the
project is commercial or industrial in nature and is in support of operations
that charge for the production, distribution, or sale of goods or services."
As your application fits the latter category, you are requested to remit your
check for $100.00, made payable to the Finance and Accounting Officer, USAED,
Wilmington. The check should accompany the signed and dated copies of your
permit.
After the permit is authorized in this office, the original copy will be
returned to you; the duplicate copy will be permanently retained in this
office. Should you have questions, contact Mr. Steve Chapin, Wilmington Field
Office, Regulatory Branch, telephone [phone].
Sincerely, r;
1
1
Tames H. Bradley
Chief, Construction-Operations
Division
Enclosures
DEPARTMENT OF THE ARMY PERMIT
; orsle_: Cor.panies, _ncorpor_z.ac
Dost 0==ice Box 3227 ?0'
'
?e mict,_ _itn .. :Ior' carciina -0
:Crl'LT^RY CU
Permit No. :_Ction ID. INos 198700517 and 199103305
Issuing Office CESAW-CO-E
NOTE: The term "you" and its derivatives, as used in this permit, means the permittee or any future transferee. The term
"this office" refers to the appropriate district or division office of the Corps of Engineers having jurisdiction over the permitted
activity or the appropriate official of that office acting under the authority of the commanding officer.
You are authorized to perform work in accordance with the terms and conditions specified below.
Project Description:
To place fill material within wetlands adjacent to the Northeast Cape Fear River
associated with expansion of a truck stop at the junction of U.S. Highways 117 and
'421.
Project Location:
New Hanover County, North Carolina.
Permit Conditions:
General Conditions:
1. The time limit for completing the work authorized ends on December 31, 1994
more time to complete the authorized activity, submit your request for a time extension to this officef foryou find that need
considerat ono at least
one month before the above date is reached.
2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and condi.
tions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make
a good faith transfer to a third party in compliance with General Condition 4 below. Should you wish to cease to maintain
the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification of
this permit from this office, which may require restoration of the area.
3. If you discover any previously unknown historic or archeological remains while accomplishing the activity authorized by
this permit, you must immediately notify this office of what you have found. We will initiate the Federal and state coordina-
tion required to determine if the remains warrant a recovery effort or if the site is eligible for listing in the National Register
of Historic Places.
ENG FORM 1721, Nov 86 EDITION OF SEP 82 IS OBSOLETE.
(33 CFR 325 (Appendix A))
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e. Da,-age claims associated with any future modification, suspension, or revocation of this permit.
Reliance on Applicant's Data: The determination of this office that issuance of this permit is not contrary to the public
ir.t.erer: made in re; once on the information vol: nrevided.
5. Reevaluation of Permit Decision. This office may reevaluate its decision on this permit at any time the circumstances
warrant. Circumstances that could require a reevaluation include, but are not limited to, the following:
a. You fail to comply with the terms and conditions of this permit.
b. The information provided by you in support of your permit application proves to have been false, incomplete, or
inaccurate (See 4 above).
C. Significant new information surfaces which this office did not consider in reaching the original public interest decision.
Such a reevaluation may result in a determination that it is appropriate to use the suspension, modification, and revocation
procedures contained in 33 CFR 325.7 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. The
referenced enforcement procedures provide for the issuance of an administrative order requiring you to comply with the terms
and conditions of your permit and for the initiation of legal action where appropriate. You will be required to pay for any
corrective measures ordered by this office, and if you fail to comply with such directive, this office may in certain situations
(such as those specified in 33 CFR 209.170) accomplish the corrective measures by contract or otherwise and bill you for the
cost.
6. Extensions. General condition 1 establishes a time limit for the completion of the activity authorized by this permit. Unless
there are circumstances requiring either a prompt completion of the authorized activity or a reevaluation of the public interest
decision, the Corps will normally give favorable consideration to a request for an extension of this time limit.
,nature
Your sigbelow, as permittee, indicates that you accept and agree to comply with the terms and conditions of this permit.
rY D"TANIET , NCORPORATED
(PERMITTEE)
(DATE)
T a permit becomes effective whe the Feder official, designated to act for the Secretary of the Army, has signed below.
!J ez -mot-
e WALTER S. TULLOCH, COLONEL /Q //7 /
(DISTRICT ENGINEER) (DATE)
When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and
conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit
and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below.
(TRANSFEREE)
(DATE)
3
o U.S. GOVERNMENT PRINTING OFFICE: 19M - 7 t 7125
SPECIAL CONDITIONS
a. Compensatory Mitigation will be provided in strict accordance with t^e
mitigation plan, dated September, 1991, prepared for the permittee by Land
Management Group, Incorporated.
b. All fill materials will be obtained from a high ground source and
placed and confined in strict accordance with permit plans.
c. The fill material will be clean and free of any pollutants except in
trace quantities. Metal products, organic materials, or unsightly debris will
not be used.
d. The activity will be conducted in such a manner as to prevent a
significant increase in turbidity outside the area of construction or
construction-related discharge. Increases such that the turbidity in the
waterbody is 25 NTU's or less are not considered significant.
e. Appropriate sedimentation and erosion control measures will be
employed.
f. In accordance with the NPDES permit which has been issued for this
project, final plans and specifications for the wastewater treatment
facilities must be submitted and approved before construction of the treatment
facilities may commence.

Copy Furnished with enclosures:
Director, Atlantic Marine Center
National Ocean Service
ATTN: MOA 232X1
439 West York Street
Norfolk, Virginia 23510
Copies Furnished with special conditions and plans:
Ms. L. K. (Mike) Gantt
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
Mr. Larry Hardy
National Marine Fisheries Service
Habitat Conservation Service
Pivers Island
Beaufort, North Carolina 28516
U.S. Environmental Protection
Agency - Region IV
Wetlands Regulatory Unit
345 Courtland Street, N.E.
Atlanta, Georgia 30365
Mr. John Parker
Division of Coastal Management
North Carolina Department of
--Environment, Health and
Natural Resources
Post Office Box 27687
Raleigh, North Carolina 27611-7687
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?oF W AT figQ Michael F. Easley, Governor
4illiarn G. Ross Jr. Secretary
North Carolina Department of Environment and Natural kesources
CID (&(F
> r
p Alan c W. Klimek P,l=.,Director
Division of `lAa Quality
Coleen H. Sullins, Deputy Director
Division of Water Quality
September 2, 2003
Mr. William A. Ambrose, Ex. Vice President
Worsley Companies
PO Box 3227
Wilmington, NC 28406
Subject: Stormwater Permit No. SW8 900421 Mod.
Scotchman Store #303
High Density Project
• New Hanover County
Dear Mr. Ambrose:
The Wilmington Regional Office received.a complete, modified Stormwater
Management Permit Application for Scotchmam Store 4303 on August 29, 2003, Staff
review of the plans and specifications has determined that the protect, as Proposed,
comply with the Stormwater Regulations set forth in Title 15A NCAC 2H.1000. We eill
forwarding Permit No. SW8 900421 dated September 2, 2003, for the construction of
the subject project.
This permit shall be effective from the date of issuance ,until September 2, 2013, and
shall be subject to the conditions and limitations as specified therein. Please pay
special attention to the Monitoring requirements,.and the Operation and Maintenance
requirements in this permit. Failure to establish an adequate system for monitoring,
operation and maintenance of the stormwater management system will result in future
compliance problems.
If any parts, requirements, or limitations contained in this permit are unacceptable ou
have the right to request an adjudicatory hearing upon written request
days following receipt of this Permit. q within thirty,( 30)
petition, conforming to Chapter 1506 ofithe Norrth C rolina GeneralrStatutewritten
d
with the Office of Administrative Hearings, P.O. Drawer 27447, Raleigh, NC 2761 filed
7447. Unless such demands are made this permit shall be final and binding.
If you have any questions, or need additional information conceming this matter, please
contact Linda Lewis, or me at [phone].
Sincerely,
Rick Shiver
RSS/ari: S:%WQSISTORMWAnPBRMIT1900W421 Qp03 Regional Supervisor
cc: Richard Collier, P.E., McKim and Creed
Tony Roberts, New Hanover County Building Inspections
Beth E. Wetheriil, New Hanover County Engineering
Division of Coastal Management
Linda Lewis
Wilmington Regional Office
Central Files
N. C. Division of Water ouality 127 Cardinal Drive Extension (910) 385-39po
Wllmington Regional oMce Wilmington. NC 28405 Customer 623 Service
(910) 3SQ•2pOq Fax I Boo 823-774

A aclnm?n-- 21
Permit N00065307
STATE OF NORTH CAROLINA
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
DIVISION OF WATER QUALITY
PERMIT
TO DISCHARGE WASTEWATER UNDER THE
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
In compliance with the provision of North Carolina General Statute 143-215.1, other lawful standards and regulations
promulgated and adopted by the North Carolina Environmental Management Commission, and the Federal Water pollution
Control Act, as amended, the
Worsley Operating Corporation
are hereby authorized to discharge wastewater from a facility located at the
Scotchman #303
1610 U.S. Highway 421
west of Wilmington
New Hanover County
to receiving waters designated as the Northeast Cape Fear River in the Cape Fear River Basin in
accordance with effluent limitations, monitoring requirements, and other conditions set forth in Parts I, II,
III and IV hereof.
This permit shall become effective April 4, 2008.
This permit and authorization to discharge shall expire at midnight on December 31, 2011.
Signed this day April 4, 2008.
-Eor Coleen H. Sullins, Director
Division of Water Quality
By Authority of the Environmental Management Commission
Permit N00065307
SUPPLEMENT TO PERMIT COVER SHEET
All previous NPDES permits issued to this facility, whether for operation or discharge are
hereby revoked. As of this permit issuance, any previously issued permit bearing this
number is no longer effective. Therefore, the exclusive authority to operate and discharge
from this facility arises under the permit conditions, requirements, terms, and provisions
included herein.
The Worsley Companies, Inc. are hereby authorized to:
1. Continue to operate an existing 0.004 MGD wastewater treatment facility with the
following components:
? Grease trap
? Influent pump station
? Aeration basin
? Clarifier
? Chlorine disinfection
? berated sludge holding tank
? Flow recorder
? Effluent pump station
This facility is located west of Wilmington on U.S. Highway 421 at the Scotchman
#303 WWTP in New Hanover County.
2. Discharge from said wastewater treatment facility via outfall 001 at the location
specified on the attached map into the Northeast Cape Fear River, classified SC-Swamp
waters in the Cape Fear River Basin.
P?'r'rachw?? 12.
'RCV BY,'Wilmington District ; 7-26-94 ; 15 31 ;
919 856 4821 USAGE-Reg, Branch;# 2
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WILMINGTON DIVISION
No. 93-15-CIV-7-F
UNITED STATES OF AMERICA,
Plaintiff, )
V. ) PLAINTIFF'S MEMORANDUM
SUPPORTING ITS MOTION
FOR SUMMARY JUDGMENT
WORSLEY COMPANY, INC.,
WILLIAM H. SMITH, and. )
wife, Cp.ROLYNE W. SMITH, )
)
Defendants. )
Pursuant to Fed. R. Civ. P. 56, defendant, United States of
America, has moved for summary judgment against defendant Worsley
Company, Inc. ("Worsley"), This memorandum, together with
accompanying affidavits, supports that motion.
P ARY S
The United States seeks four forms of relief: (1) a finding
that Worsley unlawfully discharged fill materials into waters and
wetlands of the United States in violation of SS 301 and 404 of the
Clean water Act ("CWA"), 33 U.S.C. SS 1311 & 1344; (2) an order
directing Worsley to restore the Unlawfully filled wetlands;
civil penalty as required by 33 U.S.C. S 1319(d), and (4) an
injunction against further unauthorized pollution of its waters
wetlands. and
In support of this motion, the United States shows (1) that it
has cWA jurisdiction over the
wetlands an the subject property
("the site"), (2) that Worsley knew those wetlands were subject
CWA Jurisdiction when it illegally placed fill on those wetlands,
RCS' ay:W,4 mington District 7-26-04 15:31 X19 @56 4B2i-+ USACE-Rea, '
Br2ncn,«
and (3) that Worsley knew of its absolute statutory obligation to
obtain a CWA permit prior to filling those wetlands, but
intentionally filled beyond the limit of the issued permit,
Indeed, Worsley applied for and was issued a CWA permit to fili a
very specific and discrete area of wetlands on the site. After
receiving that permit, Worsley then proceeded to fill wetlands well
beyond the bounds authorized by the permit.
After it learned of Worsley's unauthorized filling activity,
the corps of Engineers, Wilmington District ("Corps"), directed
Worsley to,cease and desist from further work in the subject
wetlands. Not only has Worsley refused to remove the illegal fill,
but it has also, even after it received the cease and desist order,
constructed truck scales on, and proceeded to pave over, the
illegally filled wetlands. Because of these circumstances and the
environmental impact of Worsley's unauthorized filling, the United
States believes complete restoration of all unauthorized wetlands
fill is appropriate. Also, because of Wor sley ' s apparent bad faith
and the palpable willfulness of its misconduct, both the civil
penalty and an injunction are warranted.
sT of
A. tuts and gecl$toz^?+ Fram
Congress enacted the CWA to restore and maintain the
"chemical, physical, and biological integrity of the nation's
waters." 33 U.S.C, 5 1253(a). The CWA strictly prohibits the
discharge of pollutants, including sand, rock, and solid waste,
into tQnavigable waters" of the United States, except when done in
2
RCb' Cl'?usiiw?ingtcn District 7-26-94 15.32 919 856 4821-1 USfiCV6-Reg, Branch.I a
strict compliance with permits issued by the Corps, 33 t.s.C. SS
1311 & 1362. The Secretary of the Army, acting through the corps,
is the permitting authority for discharges of dredged or fill
material into "navigable waters." 33 U.S_r__ C 11AA
The CWA defines 11ravigab1e haters" as "waters of the United
States." 33 U.S.C, § 1362(7). The Fourth Circuit and other courts
have consistently held that, in light of the CWAas purpose as an
all-encompassing program of water pollution regulation, Congress
intended to extend the CWTA's coverage to the maximum extent
possible under the Commerce Clause. Uni
.---t?1- t es -Tull, 769
F.2d 1821 184 (4th Cir. 1955) ( ; Ana S.Conf.Rep. No. 1236, 92d
.Gong., 2d Sess., re inted in, 1972 U. S. Code Cong. & Ad. News
3668,3776,3882), rev'd an =h
r roue , 481 U.S. 412, 427 (1987)?
Unite States V. Te as Pi Co., 611 F.2d 345, 347 (10th Cir.
1980).
To that end, Corps regulations define "waters of the United
States" as those which are navigable in the traditional sense of
being usable in interstate or foreign commerce, as well as all
waters which are subject to the ebb and flow of the tide, their
tributaries, and all adjacent wetlands. 33 C.F.R. S3 328.3.1 The
Supreme Court approved this definition in t7
_e_g. states v,
RivorSide Bayview K?me?
R ,_Inc , 474 U. S. 121 (1985) .
The same regulations define "wetlands" as
those areas that are inundated or saturated by surface or
1 For the Court's convenience, the regulations cited in this
memorandum are reproduced and attached in numerical order as
Exhibit A.
3
RCV BY :?'ilmington District : 7-26-94 ; i5 32 919 656 4621-4 USAGE-Reg. Br
ground water at a frequency and duration sufficient to
support, and that under normal circumstances do support,
a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally include
swamps, marshes, bogs, and similar areas.
33 G.F.R. S 328.3(b).
Corps regulations also recognize that "[most wetlands
constitute a productive and valuable public resource, the
unnecessary alteration or destruction of which should be
discouraged as contrary to the public interest." 33 C.F.R. 5
320.4(b). Important wetland functions recognized by the Corps
include water quality purification, fish and wildlife habitat and
breeding areas, and as storage areas for storm and flood waters as
needed. Id.
The CWA specifically permits the filling of wetlands under
closely monitored circumstances and the Corps issues permits to
that end.2 33 U.S.C. 5 1344. Permit applications must
specifically identify (1) precisely where the fill is to be placed,
(2) the composition of the fill, (3) what is to be constructed on
the fill, and (4) the purpose of and need for the proposed fill.
33 C.F.R. S 325.1(d). In evaluating fill applications, the Corps
must determine whether the proposed project is the least damaging
practicable alternative available to the applicant. 33 U.S.C. S
1344(b)(1); 40 C.F.R. S 230.10(a).
Before a fill permit car. be issued, the applicant must
demonstrate that the proposed project avoids and minimizes impact
2 Fill permits are frequently referred to as 11404 permits',
because they are authorized by Mh S 404, 33 U.S.C. S 1344.
4
RCV BY :u'ilrington District ; 7-26-94 ; 15 33 ; 919 856 4621, USACE-Reg, Branch; 6
40 waters and wetlands to the maximum extent practicable. Once the
applicant satisfactorily demonstrates avoidance and minimisation,
in most cases, the applicant, must also then provide compensatory
mitigation for the unavoidable impacts to waters and wetlands the
proposed project will impose on the environment. Compensatory
mitigation is compensation for wetland functions and values the
environment can expect to lose as a result of the proposed project,
usually in the form of creation, restoration, or enhancement of
other wetlands. 33 C.F.R. 5 320.4(r).
B. Statement erfa Not
to
The history of the dealings between Worsley and the corps
relating to Worsley's wishes to fill protected wetlands for the
construction of a truckstop date from 1987. There are two distinct
phases.
1• Mq 987-199y phaQ?
The individual defendants, William Y.. Smith and his wife,
Carolyne W. Smith, own a parcel of property, the site, located at
the intersection of U.S. Highways 421 and 117 in New Hanover
County, North Carolina. Mr. and Mrs. Smith leased the site to the
corporate defendant, Worsley, for a term not to exceed thirty
years. Worsley constructed a truck stop on the site in 1990.
a. X11 i4 tland Cho aQtQ of The Stif-a
A portion of the site is a wetland area adjacent to the
Northeast Cape Fear River, a navigable water of the United States,
subject to the ebb and flow of the tide. Complaint and Answer at
is 61 8-10.
5
RCV SY:Rli;mington Cictrict 7-26-94 ; 15:33 0,19 656 4621- USAGE-Reg, Branc,
Between April 7, 1987, and 3anuary, 1989, Mr. Hugh E. ?seine,
then the Corps' permit coordinator for New Hanover County and who
is a biologist with extensive training and field experience in
identifying and delineating wetlands, inspected the site on several
occasions. Mr. Heine characterized the wetlands on the site as a
standing water swamp. The predominant vegetation is red maple,
lizard's tail, black gum, and cattail, all of which are species
commonly found in swamp wetlands in eastern North Carolina, and all
of which are adapted for life in saturated soil conditions. At
each of Mr. Heine's several visits to the property, there was water
standing on the surface of the wetlands area, indicating both
wetland hydrology and saturated soils. The United States Soil
Conservation Service's soil survey of New Hanover County shows that
the soil in the general area of the site is Dorovan, a hydric soil.
Affidavit of Hugh E. Heine, 11 7-81 12-14 & 17.3
In addition Mr. Michael D. Smith, then a Corps enforcement
coordinator who is also a biologist with extensive experience with
eastern North Carolina wetlands, inspected the site after Worsley
filled the wetlands. Although he did not have the opportunity to
inspect the site before the Worsley fill, he has inspected the area
immediately adjacent to and north of the filled area. Mr. Smith
found a predominance of wetland vegetation; hydric soils with a 4
to 6 inch organic layer on top of a septic sandy material, with a
3 There are six affidavits i.bn support of this motion. Each
has several exhibits. For the Court's convenience, the have been
reproduced, placed under separate cover, and filed with this
memorandum as Exhibit B.
6
RCV BY:WilmingIon CieIr;c, 15:33 815 866 4321-+ USAC_-Reg, ;ranch;- 3
septic odor throughout, and saturation to the surface or standing
water on the site. Affidavit of Michael D. Smith §T 18 & 19. In
other words, he found it was a standing water swamp.
b. e F t v
On April 7, 1987, Mr. Heine visited the site and discovered
that two areas of swamp wetlands, totalling approximately 0.13
acres, had been filled without the mandatory 404 permit. Mr. Heins
advised Worsley'a representatives at the site that the area was
wetlands and that a 404 permit was required before any fall could
be placed in such areas. By May 28, 1987, and at Mr. Heine's
request, Worsley removed the unauthorized fill material from the
wetlands. Heine Affidavit at 11 8 4 9.
On August 25, 1987, Worsley applied to the Corps for a 404
permit. The application sought permission to fill 0.21 acres of
wetlands at a specified location on the site. The application
package did not include a plan for compensatory mitigation. See
Part B.2.1 l .a at 9. On October 25, 1987, the United States Fish
and Wildlife Service filed a formal objection to Worsley's
application to fill wetlands at the site. On November 30, 1987, at
Worsleyfs request, the Corps retired that application without
prejudice. complaint and Answer at 1 11; Affidavit of Dr. G. Wayne
Wright4 at 1 4 and Exhibits A and B.
Sometime before September 22, 1988, Woxsley retained a
wetlands consultant, Mr. Robert L. Moul, to assist ,- 4-
4 Dr. Wright, who holds a Ph.D, in chemist
Corps' Regulatory Branch in Wilmington. rY, is chief of the
7
RCV BY:Wilmington District 7-26-IR4 ; 15'34 519 856 4821-- USAGE-Reg, 5
delineating the wetlands on the site it had leased from the Smiths.
As is customary in such situations, Mr. Moui marked his estivate of
the delineation between the wetlands and the upland areas of the
site with a series of flags. Mr. Heine visited the site on four
occasions between September 22, 1988, and January 19, 1989, and
confirmed the validity of the jurisdictional line (11404 Line")
marked by Mr. Moul's flags. worsley apparently retained Brunswick
surveying, Inc., to survey and map the 404 Line "staked" by Mr.
Moul, and this was marked on a Brunswick survey dated January 6,
1989. Wayne Affidavit, Exhibit A. During his inspection visits in
January, 1989, Mr. Heine verified that the 404 Line on the
Brunswick survey was accurate., a fact he confirmed to Worsley in a
January 30, 1989 letter. Thus, the line marked as "U.S. Army Corps
of Engineers Jurisdiction Line, (11404 Line") Octobar, 19884' was
confirmed. Heine Affidavit at 11 14-16; Complaint and Answer at q
12.
2. The 1991 'Po Date Phase
On September 10, 1991, Worsley submitted a plan to provide
compensatory mitigation for the loss of the wetland values that
would result from the proposed project, and the Corps reopened the
1987 permit application. On October 17, 1991, the Corps issued a
404 permit to Worsley. Complaint and Answer at 11 11, 13 & 14;
Wright Affidavit at 11 7 & 8, Exhibits D & E.
The 404 permit, as issued, included plans showing the work
authorized. The plans attac-hed to the permit were the original
plans submitted by Worsley as part of its permit application, and
8
.R CV EY Wiirrrgt0n District ; 7-255-94 15 34 919 856 :1521 UB,?.rE-sg Brarchfi0
show 0.21 acres of wetlands to be filled at a specific location on
the western half of the site. Wright Affidavit, E?,?hibits A & E'.
Neither the application nor the permit contain any reference to
filling any wetlands other than the originally contemplated 0.21
acre. Ibid.
Sometime before December 4, 1991, the Corps, office in
wil7nington received several telephone calls reporting that wetlands
at the site were being filled. Mr. Smith inspected the site on
December 4, 1991, and found that an area of standing water swamp
wetlands had been filled. working from the plans attached to the
issued 404 permit -- the original 0.21 acre ---, and making rough
Ieasurements by pacing, Mr. Smith determined that approximately an
acre of wetlands had been filled, substantially more than the
authorized 0.21 acre. The newly filled wetlands extended from the
site's western boundary to within a few feet of its eastern
boundary. Although Mr. Smith's measurements were very rough, it
was clear to him that Worsley had filled an area well in excess of
the authorized 0.21 acre area on the western half of the property.
Smith Affidavit at 15 6 & 71 Exhibit A.
A survey prepared for korsleY by Sherwin Cribb, dated August
26, 1991, and revised December 11, 1991, shows the extent of the
fill material by a line labelled w i
tae of slope." This survey is -7
consistent with Mr. Smith's findings of the extent of fill material
on the site. Exhibit B.
r
V I n
RCV 5Y:WiI?ringtcn District ; 7-26-94 ; 16:,05 ; 919 856 4821.4 U5F,CE-Reg, B,
On December 4, 1991,5 Mr. Smith hand-delivered a cease and
desist letter to Mr. Donald Quinn, a Wort-ley employee urho had
signed h1orsley+s 404 permit application. As required by Corps
regulations, that letter directed Worsley to "cease and desist from
all work located in waters and wetlands of the United States until
this natter is resolved." 33 C.F.R. 5 326.3(c); Smith Affidavit at
11 10 & 11, Exhibit C.
When Mr. Smith delivered the cease and desist order to Mr.
Quinn, the latter stated that Woraley had intended that its
September 10, 1991, mitigation plan would amend its 404 permit
application which had remained unchanged since 1987. See svnra at /
8. According to Worsley+$ view, the anticipated amendment
G ?,? t e
the fill area from the original 0.21 acre to - an X
a 0.3 acre shown on a page in the September 10, 1991,
mitigation plan which was marked 11.3 ACRE FILL," Smith Affidavit
at 1 12; Wright Affidavit, Exhibit D. As a subsequent survey amply
demonstrates, the actual fill significantly exceeds both the 0.21
acre from the criginal application and the 404 permit itself as
well as the 0.3 acre in Worsley+s mitigation plan. Affidavit of
Greg A. Wayne, Exhibit S; see infra at 12.
Neither Mr. Smith nor Mr. Jeffrey Richter, a Corps employee
who also worked on the matter, was able to resolve the violation,
although Worsley did remove some of the unauthorized fill material
from the wetlands during the spring of 1992. Affidavit of Jeffrey
5 This letter is erroneously dated December 6, 1991. Smith
Affidavit at 1 10.
10
•RCV itringtor, District 7-26-eL
5.35 Big E56 4621- USACE-Reg, Rrerch,912
V
H. Richter at 15 3 & 4; Smith Affidavit at 5 15; Complaint and
Answer at 1 16.
Despite the December 5, 19911 cease and desist order, when Mr.
Richter visited the site on september 1, 1992, he observed that
truck scales had been constructed and installed at the site.
Moreover, when Mr. Richter visited the site on February 25, 1993
he observed that the ills all ,
g y filled area had been paved, a
further patent violation of the the December 5
, 1991, cease and
desist order. Richter Affidavit at 11 5 & 6, Exhibits A & B; Smith
Affidavit at 5 15.
The corps employed Greg A. Wayne to survey the site, and this
was done July 3-6, 1993. As Completed, the Wayne survey shows the
jurisdictional line approved by the Corps in 19s9, (line L1 though
L13) as also shown on the 1989 Brunswick survey. In additiozi, the
Wayne, survey shows the present location of the extent of the fill
material, running from point L14 through point L31, labelled on the
Wayne map as "toe of fill.,{ Using a copy of the plans attached to
the issued permit, Mr. Wayne also located on the plat the 0.2acres 04 wetlands actually authorized to be 1
filled by the 404
permit actually issued to Worsley. Finally, the Wayne map shows
the 0.30 acre fill area from the September 10, 1991, mitigation
plan. Affidavit of Greg A. Wayne, Exhibits A, S, and C.
Worsley actually filled more wetlands than those shown on the
1993 Wayne 4urvey• Exhibit B. Worsiey,s own Cribb survey, see
su ra at 10, is an "as built" survey of the site. The December
revision shows the extent of the filled area as the ''toe of sloe."
F
11
RCV BY:Wilmington Distriot , 7-26-94 ; 15:35 919 856 48211 US.ACE-Rs g,
The filled area shown on this map exceeds the filled area shown on
the Wayne survey by approximately 0.21 acres. Exhibit B.
3. The Fsffect Of The II etas Fill
Prior to filling, the site's wetlands could, and did, perform
important water quality maintenance functions by filtering out
sediment and associated pollutants and assimilating nutrients from
surface runoff and flood waters. Located in the flood plains of
both the Cape Fear River and the Northeast Cape Fear River, they
served to provide storage areas for flood and storm waters. They
also provided important wildlife habitat. for various species.
Wetlands such as these provide valuable nesting, roosting and
foraging habitat to resident and migratory waterfowl, wading birds,
songbirds, and hawks and owls. Affidavit of David A. Dell at 1 8.
Moreover, such mammals as white-tailed door, opossum, marsh rabbit,
and raccoon inhabit these wetlands and find food and shelter there.
Finally numerous species of reptiles and amphibians depend on these
wetlands for "foraging, egg laying, and habitat for larval life
stages." 1=.
These functions will be permanently lost to the United States
unless the affected area is restored by removal of all fill
material to the original wetland elevation. Worsley's unauthorized
filling has resulted in the permanent, but not unratrievable,
destruction of •all wetland functions lying beneath the fill
material. Smith Affidavit at if 20 -22; Deli Affidavit at 15 7-11.
UINT
AR
A. Summary Judgment Against Wors1ey
On 1?1 rs_@s Is A=roeriate
12
-RCV BY k, 0,1
District 7-26-94 15 36 519 866 4821-+ USAGE-Reg,
Brencr,M.4
Under Fed. R. CJv. P. 56 summary judgment "shall be rendered
forthwith'° if the "pleadings, together with the affidavits"
demonstrate that "there is no genuine issue as to any material fact
and that the moving party is entitled to Judgment as a matter of
law." The Supreme Court teaches that, "there is no issue for trial
unless there is sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that
party." A nd r on v.
L ert Lorj 477 U.S 2420 249 (1996). To defeat summary
Judgment, the nonmoving party must present more than merely
colorable evidence, Dombrowaki v. Eas
., 387 U.S. 821. 87
(1967;(per curiam), or insignificantly probative evidence. F_ it "
s
Nationa? ank of or?a v. Cities S ;
- - -$..r 391 U. S. 253, 290
(1968). "[U]nsupported speculation" is insufficient. ,s v.
i7 fted parcel S? virgf 800 F.2d 409, 411-12 (4th Cir. 1986). Mere
allegations in the pleadings do not create an issue that can defeat
a motion for summary judgment supported by affidavits. Fed. R.
Civ. P. 56(a),
The Fourth circuit recognizes the Supreme Court's "affirmative
obligation" rule and applies these standards to dispose of
"factually unsupported claims and defenses."
ZtLty v. Grp
s_gg. 818 F.2d 11261 3128 (4th Cir. 1987), Q,o Ana
?l.otex Cor '
?- v.t, 477 U. S. 317 (1987). Summary ud
judgment is
not a "disfavored procedural shortcut, but rather
• an
integral part of the Federal Rules . .
designed to ,secure the
just, speedy and inexpensive determination of every action. + E?
at 327.
13
RCV 5Y:u'i1min3ton District 7-25-94 15,36 619 B;56 4921 54.??-Reg, 5,
1• eV' L bii ty Is Clear
District courts should grant summary judgment in CWA
enforcement actions when the United states demonstrates (1) that it
has iurisdicticn over the area, in dispute, (2) that defendant
filled the area, and (3) that defendant filled either without a
permit or beyond the limits prescribed by the permit. ed
States v. Zange , 757 F. Supp. 1030 (N.D. Cal. 1991). The evidence
here clearly establishes each of these points. Accordingly, the
Court should grant summary judgment and find that Worsley
unlawfully filled waters and wetlands of the United states in
violation of C%7A SS 301 and 404, 33 U.S.C. 55 1311 & 1344.
2. The United States Is Entitled
To All The Relief t seeks
Worsley's illegal filling these wetlands has adversely
affected their ability to function as wetlands as contemplated by
the statute and regulations. See supra at 13. Several forms of
relief are appropriate.
a. RmtoratL
The only viable way to restore these wetlands to their former
functions is to remove all fill material and replant with suitable
wetland vegetation, pursuant to a plan conforming to accepted
standards for this sort of wetland. Accordingly, the Court should
order Worsley to restore all wetlands it filled beyond the limits
in the 404 permit.
b.tion
Because Worsley has a demonstrated capacity for ignoring the
Ch'A and such administrative niceties as the terms of 404 permits
14
RCV BY-4;'i lirnington Cistrict : 7-26-94 i :37 ; °19 '55 :821-?
USACc-=eg, Bran,-h:,"16
issued according to CWA and reTalation, WorsleY must be snJOined
from any further unauthorized pollution of the waters of the United
States.
C.Moneta?cv?,_g tv
Because Worsley knew or should have known that its filling
these wetlands violated the CWA, and because Worsley constructed
truck scales and continued paving operations after the cease and
desist order, its conduct can only be deemed willful. Willful and
intentional disregard of statutes and lawful orders is contumaceous
and the Court should impose a substantial civil penalty for this
intentional pollution.
B. Worsleyes Discharging Fill Material into
ands V n??t s The C oan Water t
Worsley admits that a portion of the site constitutes wetlands
adjacent to the Northeast Cape Fear River, a navigable water of the
United States, subject to the CWA's provisions. Answer at It 8°10.
The illegally filled area was a standing water swamp with
appropriate vegetation and saturated soil. See sutara at 6-7.
Heine Affidavit at %1 81 13, 14, & 17; Smith Affidavit at
15 13 &
19; Dell Affidavit at 11 7-10.
Before Worsley's illegal filling, the site was a wetlands
within the meaning of 33 C.F.R. § 328.3(b), suO
at 4-5, and,
thus, was subject to CWA jurisdiction. 33 G.F.R. § 328.3(x)(7);
i erside avvie Kom 474 U.S. at 121.
A 404 permit is an absolute statutory prerequisite
to placing
fill on any wetlands. 33 U.S.C. gg 1311 & 1344.. Filling such a
wetland beyond the area delimited in the permit is as imperzissable
15
RCV SY:k+ilmington District ; 7-26°94 ; 15:87 ; 519 856 4821-4 USA CE-Reg, B,
as filling with no permit at all. jhLd.
In 1988 Worsley's consultant, Mr. Moul, flagged the precise
location of these wetlands, and Mr. Heine ratified Mr. Moul's line.
See supra at 8-9. Prior to this, in 1987, Worsley had applied for
a 404 permit to fill a specifically delineated 0.21 acre wetland
area at the site, but this was withdrawn. See supra at 8. In
1991, the 1987 application was reinstated, along with a
compensatory mitigation plan, and Worsley was granted a 404 permit
to fill a quite specific 0+.21 acre area. Both the application and
the issued 404 permit define a precise and discrete area of 0.21
acres located on the western half of the site. See sutra at g-10.
Any wetlands fill beyond the area specified in the 404 permit is
illegal and violates the CWA. 33 U.S.C. § 1311. Worsley admits it
filled unauthorized wetlands. Complaint and Answer at 1 15.
Moreover, the Wayne survey clearly shows that the fill material
existing on the property in July, 1993 exceeds the permit
authorization. Wayne Affidavit, Exhibit B.
C. Wor 0.30 &cre ArMent s ritless
Worsley alleges that at all times it was "acting in compliance
with and reliance upon the aforementioned permit until such time as
requested to cease and desist by the district on or about December
6, 1991." Answer at 1 5. Worsley now appears to claim to believe
that its September 10, 1591, mitigation plan somehow authorized
wetlands filling beyond the limits set by the issued 404 permit.
Compensatory mitigation is a condition of most 404 permits.
The hope is that such mitigation will offset the wetlands
?6
RCV SY 4iirargtor Distract -cc-94 `5:37 919 856 482 -4 USRCF-Reg, Branch:w18
destruction resulting from the authorized project. Compensatory
mitigation. may be creatic.n, enhancement, restoration, or donation
of wetlands. Compensatory mitigation emphatically does rot
contemplate the destruction of additional wetlands beyond the
authorized projects bounds. $eg 9uora at 4-5.
Worsley's September 10, 2991, mitigation plan offered to
reclaim wetlands on Eagle island in Brunswick County, North
Carolina, according to accepted standards. This compensatory
mitigation was required by Special Condition a. Of the issued 404
permit. Wright Affidavit, Exhibit E.
Included with the mitigation plan is a page with a map
entitled "site Plan of Fill Area." This map shows the site with a
different area of wetlands, 0.30 acre, to be filled. Wayne
Affidavit, Exhibit D. This differs substantially from the 0.21
acre shown either on Worsleyls permit application or on the issued
404 permit. This map shows a 0.30 acre fill area at a specific
location, bounded on the south by what is labelled the 404 wetland
boundary. The 404 wetland boundary shown on the map coincides with
the jurisdictional line shown on the approved, 1989 survey. The
narrative body of the mitigation plan does not refer to this map
and it is not mentioned anywhere in the compensatory mitigation
offered by Worsley. Plainly, neither this map nor any mention of
0.30 acre appear anywhere in the issued 404 permit.
Worsley's position appears to be that, because of this
otherwise unmentioned map, the permit authorized filling not only
the 0.21 acre area described in the 404 permit application and the
17
;?ingtan District 7-26_8a
1538 ^°.
819 856 4821- USADE-Reg, Srar,
issued 404 permit itself, bait also the
in an otherwise 0.30 acres of wetlands shown
unmentioned attachment to mitigation plan, T
position has no merit; the this
permit authorized the filling of only
those wetlands shown in the 404 permit.
However, even if one could accept Worsley's
Wayne survey clear3 position, the
• Y shows that Worsley has filled beyond the
?ombina of the fill authorized b
in the miti do y the permit and the fill shown
9an plan attachment. The Wayne survey Cle
(1) the 0.21 acre fill line arly shows
(2) the 0.30 acre fill line
the actual fill which extends ,, and (3)
V011 beyond both the 0.21 acre and
the 0.30 acre. Clearly, Worsley did not even com
thaw contends the P1Y With what it
permit, as modified by the mitigation plan
authorized. ,
At a minimum, the United States is entitled to a
Worsley filled Wetlands finding that
standard one permit, by whichever
judges beyond its 404 its limits. While there may be a dis
whether the limit is the 0.21 acre pate
in the permit itself, the 0.30
sore in the otherwise unmentioned attachment to the mitigation
Plan, or Some combination of all, it Is absolutely uncontrovertab
that le
Y filled beyond them 411.6 Su
mmary judgment is
RCV SY:Wilmington District ; 7-26-94 ; i5 38 ; Y
• °19 956 4621-4 USAn..,.F-Reg. Srar;ch;g2p
appropriate.
D.lable ?Zemed; ea undo the M
Congress clearly viers CWA violations very seriously. The CWA
provides both criminal penalties and civil remedies. 33 U.s.C. 5
1319. Of those available, the United States here seeks restoration
of the affected wetlands, a permanent injunction, and a civil
monetary penalty.
1 • ?i.?able Remea; ?Q
Under the CWA, the district courts may fashion equitable
remedies, including restoration orders. Se?g., lznite.d Stat
Y_--Tull, 615 F. Supp. 610 (E.D.Va. 1983), aff r 769 F.2d 184 (4th
Cir. 1985), rev?d on other ar9und91 481 U.S. 412, 417 (1987);
Uxiited States V Oweng, No. 83-28-Civ-2 (E. D.N.C. August 30, 1985),
amended February 11, 1986. Exhibit F.
In -i'eir?ba!raer v Romero Rar.,a'1
456 U. S. 305, 320 (1982), the
Court recognized that the CWA allows district courts to exercise
their full equity powers "in accordance with their traditional
practices, as conditioned by the necessities of the public interest
which Congress has sought to protect." Zd. at 320
, 99g±jag Hecht
Co. P. Bo,wieQj 321 V.S. 322, 330 (1944). Congress sought to
protect the public interest with the CWA "to restore and maintain
the chemical, physical and biological integrity of the Nation's
waters.'$ 33 U.S.C. S 1251(a). The Court has recognized that in
fashioning equitable remedies the district courts must weigh the
public interest very heavily. Romera-1a=j
456 U.S. at 320.
Before, the illegal filling, the site wetlands performed
19
BY:t?i
??? ' ;mirg4cn District ? 7-25-94 15:39 518 ?5& IIE21? ?SACE-?°g. Br
important functions and provided important environmental values,
see su ra at 4, 13-14, which have been recognized by Congriss and
all federal courts that have addressed similar violations.
QYe??es Snc ts?'ne2i?a Lea Up- iwc. v. XLZ_sh, 715 P'.2d 897, 915 (5th
Cir. 1983) (quoting remarks of Sen. Muskae during Senate debate on
S. 1952, August 4, 1977) ; C_t ti ed stat v. 1'?
19 Env t. Ren.
Cas. 1068, 1081-84 (D.S.C. 1983). In determining the environmental
effects of the illegal fill and the benefits of the requested
restoration, the cumulative effects of such work should be
considered. Unite States v. Cater, 18 Env't. Rep. Cas. 1810,
1813 (D.S.C. 1982). Raztoration generally restores many of the
wetland values lost through the unauthorized filling. Smith
Affidavit 11 22 & 23; Dell Affidavit at 1 11. Ree also,
ate..
States V. Weisnat, 489 F. Stipp. 1331 (M.D. Fla. 1980), 632
F.2d 891 (5th Cir. 1980),
Restoratic s equitable, and has been ordered by other courts
in analagouej situations. ", Un ted States v cslm?erl Fa,
826 F.2d 1151 (1st Cir. 1987), aert?.z nied 108 S.Ct. 1016 (1988)
(restoration and civil penalty); United State v van Leggon, 816
F. Supp. 1171 (S.D. Tx. 1993) (restoration and/or civil penalty);
T 1, 615 F. Stipp. 6101 (restoration and civil penalty) ; wens, copy
attached; Tested States v Bradshaw, 541 F. Supp. 884 (D. Md.
1982) ; United States y. Board of Trustses of Florida Keyc c` mlriitC Ie , 531 F. Supp. 267 (S.D. Fla. 1981). Because of the value
of the wetland destroyed, and the likelihood that rev-oval of the
fill would result in the restoration of many of those values, the
20
RC`s' B''rJi?rA` tan DistriCt 15:39 519 E56 4821y USAGE-n2 g, Branch;#22
Potential cost of the requested restoration is not inequitable.
2. P 1 Re .a 7 ?v
in addition, the United states urges that a civil penalty is
appropriate in this action. Kny person who violates 33 U.S.c. 55
1311 or 1344 is subject to a civil penalty up to $10,000 per day.
33 U.S.C. 5 1319(d). The Fourth Circuit has held that every day
unauthorized fill remains in a wetland is an additional violation.
Acx-- a, 990 F.2d 127 (4th Cir. 1993). Worsley filled these
wetlands shortly before the cease and desist order on December 4
1'91. Smith Affidavit at 11 6 & 7, r
Although some unauthorized
fill was removed during the spring of 1992, Richter Affidavit at 1
4, unauthorized fill remains there today. Complaint and Answer at
4 16; Wayne Affidavit.
The CWA establishes guidelines for the courts to consider in
fixing the amount of a civil penalty; (1) the seriousness of the
violation, (2) the economic benefit resulting from the violation,
(3) a history of such violations, (4) any good-faith efforts to
comply with the applicable requirements, (5) the economic impact of
the penalty on the violator, and (6) such other matters as justice
requires. 33 U.S.C. S 1319(d). worsley meets all these factors.
Although the violation is relatively small, it does involve
wetlands which are an important part of the Cape Fear
River/Northeast Cape Fear River system. Sga _g_ nra at 41 1314.
All filling beyond the 404 permit was willful and intentional. All
work done on the site after the cease and desist order was willful
21
RCV RY:Wiimington District ; 7-2c-94 ; 15:39 ; 919 356 -'r21- U5AGE-Reg, e
and intentional.
Worsley has benefitted economically from the violation. The
unauthorized fill material is a parking lot, heavily used by
tractor-trailer drivers e>ho patronize the truck stop. Smith
Affidavit, Exhibits B & D; Richter Affidavit, Exhibits A & B.
Comparing the average monthly truckstop revenues during the ten
full months the truck stop operated without the additional parking
area, and. the monthly average of revenues received after the
additional parking was created (up to June 30, 1993) is very
instructive. The figures indicate that average monthly gross
profits from restaurant operations increased by $4,740.33, and
/
average monthly gross profits from diesel fuel sales have increased
$7,024.86. Exhibits D & E. Although these figures may not be .? ,
attributable entirely to the increased parking, they do bear out
the generally accepted principal that parking increases retail

sales. The Court should consider this factor in assessing a civil --'
penalty. 33 U.S.C. S I319(d).
Worsley has a history of violation at the site. In 1986, a
corps representative discovered a fill violation on the property,
informed Worsley of the violation, and requested restoration of
that violation. This was done. See supra at 7-8; Heine Affidavit
at 1 9. The United States submits that Worsley made no effort to
comply with the CWA. It is true that Worsley applied for and
received a 404 permit, prior to initiating the work. However, o: ce
that permit was issued, Worsley clearly proceeded to fill with no
apparent concern for what the 404 permit authorized.
22
RGV 9Y Wi mingtan Distri t 15 40 919 856 4821- USAGE-Reg. Branch,'-'24
Worslay alleged that it filled wetlands in full compliance
with the issued permit. Worsley also made vacue, but unsupported
and unsupportable, allegations that the mitigation plan allowed it
to fill additional wetlands. It is true that the mitigation plan,
which was not, part of the permit application, or the issued 404
permit, showed a filled area of 0.30 acres, at a different location
than the 0.21 acres of wetlands shown on the permit application and
the issued permit. It is also true that, when served with the
cease and desist order, Mr. Quinn stated that a mistake had been
made; that Worsley wanted authorization to fill the 0.30 acres; the
plan showing 0.21 acres was the old plan. See supra at 10.
The United States concedes that had Worsley filled only the
0.30 acre area shown on the mitigation plan, the facts would be as
indicative of genuine mistake as of a lack of good faith. That is
not, however, what Worsley did. It filled more than the 0.3 acre
area shown on the mitigation plan; it filled more than the 0.21
acre area shown on the permit application and issued 404 permit;
and it filled more than any combination of these two areas. see
sum at 10-11. In addition, after the cease and desist order,
Worsley located truck scales on the filled wetlands, an addition
not shown on any plans submitted to the Corps at any time prior to
issuanoe of the permit. See supra at 11. Further, Worsley has
failed and refused to remove all of the excess fill material from
the wetlands.
Worsley's financial statements show that a significant civil
penalty is appropriate. Worsley's financial statement for the year
23
F.C:- BY:u'ilminaton District ? 7-26-54 ; iS:dC ? 519 E56 4E21? ?
JSACE-Rcg Br,
ending June 30, 1991, shows that the stockholder's equity in
Worsley and its related companies exceeded $12,0o0,o0o.30. it also -?,
shows that Worsley was able to lend over $2,000,000 to officers and
related individuals. Worsley is capable of
paying z significant
-
civil penalty in this case. ?.^

'CONCLUSION
Worsley clearly has discharged
pollutants into waters of the
United States in excess of its permit authorization in patent
violation of the CWA. The only appropriate and environmentally
sound remedy is to remove all fill material to a high ground
location. Worsley did not act in good faith as it continued to
work in wetlands after the cease and desist order. Worsley has
enjoyed substantial economic benefit from its violations
d i
, an
s
financially able to pay a significant civil penalty in this action.
The United states therefore urges summary judgment finding that
Worsley violated the CWA, ordering restoration and a significant
civil penalty, and restraining Worsley from further unauthorized
work in wetlands on the site.
Respectfully submitted at Raleigh, North Carolina, this
day of July, 1994.
JANICE McKENZIE COLE
United States Attorney
CHARLES E. HAMILTON III
Assistant United States Attorney
310 New Bern Avenue
Raleigh, NC 276011451
[phone]
24

IN THE UNITED STATES DISTRICT COURT `
FOR THE EASTERN DISTRICT OF NORTH CAROLINA:;
WILMINGTON DIVISION
UNITED STATES OF AMERICA )
V. )
WORSLEY COMPANY, INC., ET AL. )
A???h?nne?k- 23

No. 93-15-CIV-7-F
OBJECTION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND
MEMORANDUM IN SUPPORT OF DEFENDANTS' OPPOSITION TO
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
NOW COME the Defendants, by and through their attorneys, pursuant to Federal Rules
of Civil Procedure, Rule 56 and Local Rule 4.0, EDNC, and submit the following Objection to
Plaintiff's Motion for Summary Judgment and Memorandum in Support of Defendants'
Opposition to Plaintiff's Motion for Summary Judgment.
I. STATEMENT OF THE CASE
Plaintiff filed a complaint in this matter on February 1, 1993, alleging violation of the
Clean Water Act. Defendants answered on March 29, 1993, substantially denying the
allegations of Plaintiff's complaint. After fruitful settlement negotiations between the parties,
on October 22, 1993, the Honorable James C. Fox, United States District Judge, entered an
Order dismissing this action without prejudice to any party to move to reopen this action should
settlement not be consummated within 180 days. After October 22, 1993, the parties engaged
in extensive settlement negotiations, and the Plaintiff sought and obtained an extension of time
so that negotiations could continue. On February 3, 1994, Defendants filed a Motion to
Substitute Counsel, For Admission Pro Hac Vice and Entry of Appearance. This Motion was
RAL:SOl2 1
s
to substitute the law firm of McNair & Sanford for the law firm of Hatch, Little & Burn as
counsel for Defendants. On June 17, 1994, the Plaintiff filed a motion to reopen this action,
stating that the parties could not agree on one issue.
On June 23, 1994, an Order signed by the Honorable James C. Fox, United States
District Judge, was filed, ordering, for good cause shown upon the motion of the Plaintiff, that
the above-referenced case be reopened for failure of the parties to consummate the settlement
agreement. It further directed the Clerk of Court to establish and notice a new trial date and
issue another Request for Discovery Stipulation. On August 2, 1994, Plaintiff filed a Motion
for Summary Judgment. On or about August 22, 1994, the parties filed a joint Discovery Plan
with the Court proposing that discovery be closed February 15, 1995, and that all dispositive
motions be filed by March 1, 1995. This Order also reserved the rights of the parties to amend
their pleadings to and including September 30, 1994. On August 23, 1994, an Order signed by
Magistrate Judge Wallace W. Dixon was entered adopting the parties' discovery plan as its
order. Counsel for Defendants was substituted in this matter during the period in which this
case was dismissed without prejudice. Substituted counsel had no opportunity to conduct
discovery and had no participation in the filing of the answer which was filed on behalf of
Defendants on February 1, 1993. A new Discovery Scheduling Order has been entered that
allows the parties through and including February 15, 1995, to complete discovery. Defendants
have filed contemporaneously herewith a Motion to Amend Answer. This matter now comes
before the Court on Plaintiff's Motion for Summary Judgment.
RAL:5412 2

II. STATEMENT OF THE FACTS
Defendant Worsley Company, Inc. (hereafter "Worsley Company") has a truck stop at
the junction of U.S. 421 and 117 at the Northeast Cape Fear River Bridge in Wilmington, North
Carolina. This site was originally an old automobile junkyard that included rusting automobiles,
old batteries, old tires, etc. This junkyard was removed and cleaned up by Worsley Company,
and a truck stop was constructed on the upland property (hereafter the "Project Site"). Affidavit
of Don Quinn (hereafter "Quinn Affidavit") ¶ 2. Certain portions of this property contain
wetlands adjacent to the Cape Fear River. Complaint and Answer 19. On August 27, 1987,
the Worsley Company filed an application with CAMA and the United States Army Corps of
Engineers (hereafter "Army Corps of Engineers" or "Corps") for .21 acres of fill to be put on
the Project Site. Quinn Affidavit 14; Affidavit of Robert Moul (hereafter "Moul Affidavit")
q 5. This permit was prepared by Catlin & Associates of Wilmington, North Carolina,
environmental consultants. Id. This application was put on hold with the Army Corps of
Engineers on December 1, 1987. Id.
On or about August 15, 1988, Robert Moul was contacted by the Worsley Company, Inc.
to provide environmental consulting in connection with delineation of 404 wetlands at the Project
Site. Moul Affidavit 14. Later, Mr. Moul, on behalf of Worsley Company, entered into
discussions with various persons with the Army Corps of Engineers and the Environmental
Protection Agency about constructing a parking deck on pilings at the Project Site. Id. At that
time a permit was not required for such a piling construction. Id. Worsley Company was
planning to use approximately .30 acres for the parking deck on pilings at the Project Site.
Moul Affidavit 115; Quinn Affidavit 16
During this period, Mr. Moul had also discussed
RAL:5412
3
J
with the Army Corps of Engineers a proposed 3 to 1 mitigation plan and fill of the Project Site
as an alternative to the costly construction of a parking deck on pilings and the destruction of
wetlands that would have occurred with the construction of such a structure. Moul Affidavit 1
6; Quinn Affidavit q 6. In approximately December 1990, new Army Corps of Engineers
rulings were issued precluding the use of pilings as a way to avoid 404 permit requirements.
Moul Affidavit 17.
At that time, Mr. Moul contacted Dr. Wayne Wright of the Army Corps of Engineers
to request that Worsley Company's request for a parking deck on pilings be grandfathered, since
Worsley Company and the Army Corps of Engineers had been negotiating about this matter for
some time. Moul Affidavit 17. Mr. Moul also wanted to reserve the right for the Worsley
Company to fill the .30 acres parking deck on pilings area if the mitigation plan was approved
by the Army Corps of Engineers. Id. In April 1991, Don Quinn, an employee of Worsley
Company whose duties included managing environmental affairs, and Rob Moul discussed the
deck on pilings plan with Dr. Wayne Wright. Moul Affidavit 18; Quinn Affidavit 112 and 6.
At that time, Dr. Wright indicated that he would rather support a fill-mitigation approach than
lose wetlands by shading caused by the elevated deck on pilings. Id. Mr. Moul had subsequent
discussions where Dr. Wright indicated that he would allow a substitute mitigation site for the
.30 acres parking site if the mitigation had a similar habitat and wetland feature. Moul Affidavit
19; Quinn Affidavit 17.
In response to these discussions, on September 4, 1991, Mr. Moul prepared a complete
mitigation report with particulars about the requested .30 acres of fill where the parking deck
on pilings had been proposed as discussed with Dr. Wayne Wright and others. These documents
RAL:5412 4
also included a history of the Project Site, including a history of the originally requested permit
application for .21 acres of fill for an access ramp, which had been requested on August 27,
1987. This was submitted to the Army Corps of Engineers by Worsley Company on September
6, 1991. Moul Affidavit 111; Quinn Affidavit 19.
On October 17, 1991, the Army Corps of Engineers permit was issued allowing fill on
the Project Site. Quinn Affidavit 1 10. This permit included standard boiler plate permit
language as well as plans for fill sought with the .21 acres requested in the initial permit
application and plans for fill sought with the .30 acres request submitted with the mitigation plan
pursuant to months of discussion between Dr. Wayne Wright of the Army Corps of Engineers,
and Mr. Moul, the representative of Worsley Company. Quinn Affidavit 110; Moul Affidavit
112. At all times during Mr. Moul's discussions with the Army Corps of Engineers, he sought
a permit for filling the area under the proposed parking deck, .30 acres. This was the area that
was the subject of all of his conversations with the Army Corps of Engineers and the subject of
the mitigation plan which he submitted on September 6, 1991, which resulted in issuance of a
permit by the Army Corps of Engineers on October 17, 1991. Moul Affidavit 11 11, 12 and
15. There is no indication that Worsley Company ever intended to merely reopen its August
27, 1987, .21 acres permit application. To the contrary, the testimony of Robert Moul and Don
Quinn indicates that the intent was at all times to apply for the .30 fill where the parking deck
on pilings would have been located prior to the change in regulations. Quinn Affidavit 116,
7 and 9; Moul Affidavit 116, 7, 8, 9, 11 and 15.
RAL:5412 5
I
III. ARGUMENT
A. THE COURT SHOULD NOT RULE ON PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AS DISCOVERY HAS JUST BEGUN IN THIS MATTER, AND
DEFENDANT HAS NOT HAD THE OPPORTUNITY TO AVAIL ITSELF OF THE
DISCOVERY PROCESS TO OBTAIN EVIDENCE.
The instant case has been reopened since June 23, 1994. Plaintiff filed a Motion for
Summary Judgment approximately one month after the case was reopened. During the period
in which the case was dismissed, Defendant obtained new counsel which has not had the
opportunity to conduct discovery. By order signed by Magistrate Judge Wallace W. Dixon,
entered August 23, 1994, the parties' discovery plan has been adopted; that plan provides for
a discovery period which lasts approximately 4 1/2 months, through February 15, 1995.
Defendants' new, substituted counsel has not had the opportunity to conduct any
discovery. As will be noted in the affidavits submitted by Defendants in response to Plaintiff's
Motion for Summary Judgment, Defendants will be better able to oppose Plaintiff's Motion for
Summary Judgment when given an adequate opportunity to depose certain representatives of the
United States Army Corp of Engineers who dealt with the Corporate Defendant, Worsley
Company's representatives, Mr. Don Quinn and Mr. Robert Moul.
The Fourth Circuit Court of Appeals has held that the court has discretion to deny a
motion for summary judgment if the motion is tainted with procedural unfairness. Williams v.
Howard Johnson's of Washington. Inc., 323 F.2d 102, 104-05 and 107 (4th Cir. 1963), Ih the
instant case, Defendants have opposed with sworn statements Plaintiff's Motion for Summary
Judgment indicating genuine issues of material fact which remain in dispute making summary
judgment inappropriate. However, it is reasonably anticipated that giving Defendants an
adequate opportunity to conduct discovery during the period allowed by the discovery scheduling
RAL N12 6
order and an opportunity to respond to any summary judgment motion by the March 1, 1995,
date set in that order for dispositive motions will not delay this action. Furthermore, Defendants
will then be afforded a fair and adequate opportunity to develop their case and to respond to
Plaintiff's Motion for Summary Judgment.
B. PLAINTIFF BEARS AN ONEROUS BURDEN IN SEEKING SUMMARY
JUDGMENT.
Federal Rules of Civil Procedure, Rule 56(c) requires that summary judgment be granted
only when the pleadings, depositions, answers to interrogatories and admissions on file, together
with the affidavits, if any, show "that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law." F.R. Civ. P., Rule 56(c). "The
moving party has the burden of showing the absence of a genuine issue as to any material fact,
and for these purposes, the material it lodged must be viewed in the light most favorable to the
opposing party." Adickes v. S.H. Kress & Company, 398 U.S. 144, 157, 90 S.Ct. 1598, 1608,
26 L.Ed.2d 142, 154 (1970). The Fourth Circuit Court of Appeals has stated that "the burden
is upon the party moving for summary judgment to demonstrate clearly" that no genuine issue
of fact exists. Phoenix Savings and Loan Inc v Aetna Casualty & Surety Company, 381 F.2d
245, 249 (4th Cir. 1967). "On summary judgment, the inferences to be drawn from the
underlying facts contained in the moving parties' materials must be viewed in the light most
favorable to the party opposing the motion." Adickes, 398 U.S. at 158-59, 90 S.Ct. at 1608-09,
26 L.Ed. at 155. Thus, the party seeking summary judgment bears the exacting burden of
demonstrating that there is no dispute as to any material fact in the case.
The United States Supreme Court has stated that "the evidence of respondents is to be
believed, and all justifiable inferences are to be drawn in their favor. " Eastman Kodak
RAL:5412 7
Comnanv v. Imace Technical Services Inc. U.S. , 112 S.Ct. 2072, 2077, 119
L.Ed.2d 265, 277 (1992). The court further noted that it should be mindful that the
respondents' version of any disputed issue of fact is presumed correct when viewing the factual
basis of respondents' claims. Id. An issue is material if it affects the outcome of the litigation
and is genuine if it can be established by sufficient evidence supporting the claimed factual
dispute to require a jury or judge to resolve the parties' differing versions of truth at trial. First
National Bank v. Cities Service Company Inc., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20
L.Ed.2d 569, 592 (1968). Thus, Plaintiff's burden is heavy when moving for summary
judgment; all issues in dispute must be resolved in favor of Worsley Company and all inferences
which may be drawn therefrom must be drawn in favor of Worsley Company.
C. PLAINTIFF HAS FAILED TO ESTABLISH AN ESSENTIAL ELEMENT OF ITS CLAIM
AND IS THEREFORE NOT ENTITLED TO SUMMARY JUDGMENT.
To establish a violation of the Clean Water Act, Plaintiff must show the following:
(a) that it has jurisdiction over the subject waters,
(b) that the Defendants discharged or placed fill in those waters, and
(c) that the Defendants did so without a permit from the Corps.
U.S. v. Zanger, 767 F.Supp. 1030, 1033 (N.D.Cal. 1991).
In the instant case, the parties have agreed that some of the property on the Project Site
was "wetlands" and that the Army Corps of Engineers had jurisdiction over those portions.
Complaint and Answer 19. The parties also agree that Worsley Company placed a certain
amount of fill into this area. Complaint and Answer 115. Plaintiff, however, has failed to
establish the final element of its claim. Plaintiff has not established that Worsley Company filled
the wetlands without a permit from the Army Corps of Engineers. To the contrary, a substantial
RA L:54 1 2 8
factual dispute exists over the amount of fill allowed by the permit that Worsley Company
received from the Army Corps of Engineers.
Plaintiff, in its affidavits, indicates that a permit was sought and received for the fill of
.21 acres on the Project Site, and that a permit was granted for only .21 acres of fill. However,
Worsley Company has shown through sworn affidavit testimony that there are genuine issues of
material fact as to the amount and location of fill allowed by the Army Corps of Engineers.
Worsley Company has shown a genuine and material factual dispute concerning the amount of
fill sought as well. Worsley Company has shown the following facts, which must be taken as
true when considering summary judgment:
1. A permit application was filed seeking permission to fill .21 acres on the Project
Site. Quinn Affidavit 14.
2. This application was put on hold with the Army Corps of Engineers on December
1, 1987. Quinn Affidavit 14.
3. At a time subsequent to August 15, 1988, Robert Moul, an environmental
consultant for Worsley Company, discussed with several representatives of the Army Corps of
Engineers and Environmental Protection Agency constructing a parking deck on pilings in an
area of approximately .30 acres. At that time, such structures were not subject to the
jurisdiction of either organization. Moul Affidavit 114 and 6.
4. During these discussions, the Army Corps of Engineers instituted a new regulation
which required permits for parking decks on pilings. Moul Affidavit 17.
RAUN12 9
S. In response to this change of regulation, Mr. Moul spoke with Dr. Wayne Wright
of the Army Corps of Engineers and requested that the request for a parking deck on pilings be
grandfathered since Worsley Company and the Army Corps of Engineers had been discussing
this matter for some time. Moul Affidavit 17.
6. Mr. Moul also discussed with Dr. Wright submitting a mitigation plan so that the
30 acres parking deck on pilings could be constructed with fill instead, without a resulting net
loss of wetlands. Moul Affidavit 117 and 8; Quinn Affidavit 112 and 6.
7. Dr. Wright indicated that he would support such a fill-mitigation approach so as
not to lose wetlands caused by shading which would result from grandfathering in the elevated
deck on pilings. Moul Affidavit 117 and 8; Quinn Affidavit 112 and 6.
8. Mr. Moul had subsequent discussions with Dr. Wright where Dr. Wright indicated
that he would allow a substitute mitigation site for the .30 acres for the parking deck if the
mitigation site had a similar habitat and wetland feature. Moul Affidavit 19; Quinn Affidavit
17.
9.' In response to these discussions, on September 4, 1991, Mr. Moul, prepared a
complete mitigation report with the particulars about the requested .30 acres of fill where the
parking deck on pilings had been proposed. These documents also included a complete history
of the Project Site, including a history of the originally requested permit application for .21 acres
of fill which had been filed with the Corp on August 27, 1987. Moul Affidavit 111; Quinn
Affidavit 19.
10. This report was submitted to the Corps of Engineers by Worsley Company on
September 6, 1991. Moul Affidavit ¶ 11; Quinn Affidavit 19.
RAL:5J12 10
11. In response to this submission, on October 17, 1991, the Army Corps of
Engineers permit was issued to Worsley Company allowing fill on the Project Site. Quinn
Affidavit 110.
12. This permit as issued from the Army Corps of Engineers included standard boiler
plate language which is contained in permits and had attached plans for the fill sought with the
.30 acres mitigation plan, as well as plans for the fill sought with the .21 acres initial permit
which had been filed in August 1987. Moul Affidavit 112; Quinn Affidavit 110.
In summary, Worsley Company desired, and at one time sought a permit for, permission
to fill .21 acres on the Project Site. For various reasons this permit was put on hold on
December 1, 1987. While Worsley Company continued to want this .21 acres fill, it never
pursued further this application-or spoke further with the Army Corps of Engineers about it.
Then, Worsley Company began to consider a .30 acres parking deck on pilings for which it did
not need Corps approval. Worsley Company's consultant, Robert Moul, discussed this deck
with representatives of the Corps hoping to obtain a cheaper solution for the Worsley Company
while at the same time preserving wetlands through mitigation instead of losing them through
shading which would be caused by the unregulated deck on pilings. During these discussions,
the Corps changed its rulings and asserted jurisdiction over structures on pilings. Since these
negotiations had been ongoing, Mr. Moul sought and received permission from Dr. Wayne
Wright of the Corps that the parking deck would be grandfathered in under the old regulations.
Dr. Wright, after further discussions and in order to avoid a loss of wetlands, decided to accept
an appropriate mitigation plan in exchange for .30 acres of fill on the site of the grandfathered
parking lot on pilings.
RAL:5412 11
In response to and reliance on these conversations, Mr. Moul found an appropriate
mitigation site. He also compiled an appropriate mitigation plan and submitted it to the Corps,
pursuant to his discussions. This mitigation plan included the proposed mitigation site for the
.30 acres parking deck fill as well as a history of the Project Site, including the .21 acres permit
application history. Worsley Company received a permit in response to this submission on
October 17, 1991. This permit included plans submitted in connection with the .30 acres fill
as well as the .21 acres fill.
Thus, at different times, Worsley Company had sought permission to fill two separate
sites with two different amounts of fill. The October 17, 1991, permit as received from the
Army Corps of Engineers, on its face, permitted both. Plaintiff seems to indicate that only .21
acres was sought or permitted. This is clearly contradicted by Defendants' evidence in the form
of the Moul and Quinn affidavits. Finally, Plaintiff seems to indicate that the only other
possibility is that the Corps granted .30 acres of fill. Defendants have also clearly met this
contention by the testimony of Mr. Moul and Mr. Quinn and the face of the permit indicating
that the documents received permitted both. There is clearly a genuine issue of material fact
concerning the terms of the permit granted to Worsley Company.
In the instant case, Plaintiff has failed to meet its burden of establishing that there is no
genuine issue of material fact as Plaintiff has failed to establish that Worsley Company
discharged or placed fill in wetlands without a permit from the Corps. There are conflicting
allegations with regard to what type of permit was sought and the location and amount of fill the
issued permit granted. Plaintiff of necessity must fail in its attempt to obtain summary judgment
as it has not and can not establish the amount or placement of fill allowed by the October 17,
RA1.:5412 12
1991, Army Corps of Engineers permit issued to Worsley Company. Furthermore, the court
is constrained to view the above-referenced facts in the light most favorable to Defendants and
draw every inference associated therewith in favor of Defendants. Thus, Plaintiff has failed to
establish an essential element of its claim -- that wetlands were filled without a permit from the
Corps -- and summary judgment is improper in this case.
D. PLAINTIFF HAS NOT ONLY FAILED TO MEET ITS BURDEN OF PROOF ON
SUMMARY JUDGMENT, BUT HAS EVEN FAILED TO MEET THE LESSER BURDEN IT
MUST MEET AT TRIAL.
In an enforcement action brought under the Clean Water Act, the Army Corps of
Engineers has the burden of proving the existence of all elements of its case by a preponderance
of the evidence. See Stoeco Development Ltd. v Dept of Army Corps of En ineers, 792
F.Supp. 339, 343 (D.N.J. 1992); Leslie Salt Company v United States, 660 F.Supp. 183
(N.D.Cal. 1987). In Stoeco, the court held that the Army Corps of Engineers in an enforcement
action under Section 1344 of the Clean Water Act must prove the existence of wetlands by
preponderance of the evidence. Stoeco, at 343-44. The court in Stoeco noted that the burden
of the Army Corps of Engineers is higher in an enforcement action. Id. The Court stated as
follows:
In an enforcement action, the Corps' decisions are not being questioned by a
group of citizens. Rather, it is the Corp itself that is taking the initiative. In an
enforcement action, the Corp seeks to enforce the power of the Court in order to
impose penalties and injunctive relief, including the removal of intrusive '
construction.
1d_ The Court goes on to note that to apply a different standard in such a case would turn the
normal burden of proof at trial on its head. Id.
RA L-1412 13
In the case sub judice, Plaintiff has not only failed to meet the heavy burden of prevailing
on a motion for summary judgment, completely failing to establish that there is no genuine issue
as to any material fact; but, it has also failed even to meet the lesser burden of a preponderance
of evidence, which would be necessary to prevail at trial. See Kilfovle v. Wright, 300 F.2d
626, 629 (5th Cir. 1962). Thus, Plaintiff's motion for summary judgment should be denied.
E. PLAINTIFF IS NOT ENTITLED TO SUMMARY JUDGMENT ON REMEDIES IT
SEEKS IN THIS CASE.
The Clean Water Act establishes several remedies for violation of the provisions of the
Act. 33 U.S.C. § 1319. In the instant case, the United States seeks all civil remedies available
against the Worsley Company. Assuming arguendo, that the Court determines that there has
been a violation of the Clean Water Act by the Worsley Company, summary judgment is
inappropriate on issues of the civil remedies sought. Several of the remedies which the United
States seeks are equitable in nature, injunction and restoration, and do not lend themselves to
summary judgment. Summary judgment would deprive Worsley Company of the ability to be
heard in equity. Where Plaintiff seeks summary judgment on the granting of a permanent
injunction; all errors should be made on the side of caution. Woods v. Wallace, 8 F.R.D. 140,
142 (D.C.Pa. 1948). Courts should be slow to grant summary judgment against a defendant in
a case where injunctive relief is sought. Lipson v. Interstate Home Equipment Co., 57 F.Supp.
955, 956 (D.C.Pa. 1944).
Furthermore, the Clean Water Act establishes several factors to be considered in the
assessment of civil penalties. 33 U.S.C. § 1319(d). In order for these factors to be adequately
considered, a hearing on these issues is appropriate. Even if a violation were established, it
would be technical in nature with many factual issues to be heard. Plaintiff in its brief admits
RAL N12 14
that any violation would be a small one. Summary judgment is not an appropriate tool for
factual determinations. See F.R.Civ.P., Rule 56(c). Thus, summary judgment should not be
granted on the issue of any penalty to be assessed against Worsley Company in this action.
IV. CONCLUSION
For the reasons stated and authorities cited above, Defendants respectfully assert that
Plaintiff's Motion for Summary Judgment should be denied. Furthermore, and in the
alternative, Defendants respectfully assert that Plaintiff's Motion for Summary Judgment should
not be ruled upon at this time and that Defendants should be allowed to supplement their
response to this Motion at the appropriate time as allowed by the Discovery Scheduling Order
entered in this matter.
This the 2bof September, 1994.

RAL:5412 15

IV
Attorneys for Defendants
234 Fayetteville Street Mall
Suite 100
Post Office Box 2447
Raleigh, NC 27602
[phone]
4CNAIR & SANFORD, P.A.
By: Overho
N.C. State Bar No. 16301
Madison Office Building
Suite 400
1155 15th Street N.W.
Washington, D.C. 20005
[phone]
ZIleenn SE LAW FIRM
By: l
W.
ABByvrrdd, 1350 I Street, Suite 850 /
Washington, D.C. 20005
[phone]
RAL:5412 16
McNATR R. CANVnun
CERTIFICATE OF SERVICE
The undersigned does hereby certify that a copy of the Objection to Plaintiff's Motion
for Summary Judgment and Memorandum in Support of Defendants' Opposition to Plaintiff's
Motion for Summary Judgment was duly served upon the following by depositing a copy in the
United States mail, postage prepaid, addressed to the following:
234 Fayetteville Street Mall
Suite 100
Post Office Box 2447
Raleigh, NC 27602
[phone]
Charles E. Hamilton, III
Assistant United States Attorney
310 New Bern Avenue, Suite 800
Federal Building
Raleigh, North Carolina 27601-1461 17/
This the day of September, 1994.
iA NAIR S RD
?
da B for
meys f og endants

RAL:5412 17
Nkac.v,+y ev-?k -1?

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA,
WILMINGTON DIVISION
UNITED STATES OF AMERICA )
V. )
WORSLEY COMPANY, INC., ET AL. )
AFFIDAVIT OF DON QUINN

No. 93-15-CIV-7-F
DON QUINN, being first duly sworn, deposes and says as follows:
1. I am a resident of Duplin County, North Carolina, am over 18 years of age and
am competent to testify to the matters herein upon personal knowledge except to those matters
which are stated upon information and belief, and as to those matters, I believe them to be so.
2. I have been employed by Worsley Company, Inc. (hereafter "Worsley Company")
from September 4, 1990, to the present. During that time my duties have included managing
environmental affairs, clean-up projects, water and waste water issues and aiding in permitting
for Worsley Company.
3. Worsley Company has a truck stop at the junction of U. S. 421 and 117 at the
northeast Cape Fear River bridge in Wilmington, North Carolina. This is a location which used
to hold an old automobile junkyard which included old rusting automobiles, old batteries, old
tires, etc. The junkyard was removed and cleaned up by Worsley Company and a truck stop
constructed on the upland property (hereafter the "Project Site").
4. On August 27, 1987, the Worsley Company filed an application with CAMA and
the United States Army Corps of Engineers for a permit for .21 acres of fill to be put on the
Project Site. See attached hereto as Exhibit A a copy of this application which is incorporated
as if fully set forth herein. This permit was prepared by Catlin & Associates of Wilmington,
North Carolina, environmental consultants. This application was put on hold on approximately
December 1, 1987.
5. On or about April 15, 1991, I contacted Robert Moul of Land Management
Group, Inc. of Wilmington, North Carolina to obtain a status report and to let him know that
I would be involved in the project. Prior to this date, Louis Haglund of Worsley Company, Inc.
had been handling the project. Mr. Haglund had been working with Rob Moul since April of
1990 trying to obtain a permit for the fill of an area of approximately .30 acres for a parking
area.
RAL:5183

A
6. In reading our files and in discussions with Mr. Haglund and Mr. Moul, I learned
that in 1990 there were discussions with the Environmental Protection Agency about constructing
a parking deck on pilings at the site as during that period of time a permit was not required for
such a piling construction. Also during this time, there were discussions between Rob Moul and
the Corps of Engineers regarding negotiating a 3 to 1 mitigation plan and fill of the project site
as opposed to a costly parking deck on pilings over which the Army Corps of Engineers and
Environmental Protection Agency had no control. In December of 1990, Louis Haglund was
told by Rob Moul of the new Army Corps of Engineer rulings precluding the use of pilings as
a way to avoid 404 permit requirements. After that time, Mr. Moul wrote a letter to Dr. Wayne
Wright of the Army Corps of Engineers to request a grandfathering of the parking deck proposal
and for the Worsley Company to reserve the right to fill .30 acres if the fill mitigation proposals
were approved. In April, Robert Moul and I discussed the deck plan with Mr. Wayne Wright
and Mr. Moul obtained his verbal concurrence that it would be grandfathered from the 404
permit requirements regarding new pilings. Mr. Wright also indicated that he would rather
support a fill-mitigation approach than lose wetlands by shading caused by an elevated deck.
7. On or around April 23, 1991, Rob Moul had further discussions with Wayne
Wright of the Army Corps of Engineers where Mr. Wright indicated he would allow a substitute
mitigation site for the .30 acres if the site had a similar habitat and wetland feature. He would
consider a 2 to 1 mitigation ratio.
8. From mid-May through mid-July of 1991 Mr. Moul and I examined various sites
along the northeast and Cape Fear River areas that had similar habitat values. On July 16,
1991, Mr. Moul discussed the Eagle Island mitigation area with Jimmy Wells and Wayne
Wright. By August 6, 1991, the Eagle Island mitigation area was flagged and shown to Sherwin
Cribb, R.L.S. so that he could survey it with a cross-sectional. By August 21, 1991, survey
plats at the mitigation area were completed.
9. On September 4, 1991, Robert Moul, our environmental consultant, prepared a
complete mitigation report showing a brief history of the project originally requesting .21 acres
of fill for an access ramp and now requesting .30 acres of fill where the parking deck had been
proposed. On September 6, 1991, this permit application and mitigation report was submitted.
10. On October 17, 1991, the Army Corps of Engineers permit was issued with plans
attached for both the .21 area requested in the initial permit request and the .30 acres requested
in the September 6, 1991, application. Attached hereto as Exhibit B are the documents I
received on that date which are incorporated as if fully set forth herein.
11. It was my understanding that this permit included the .21 and .30 acre areas.
RAL:S 183

Further Affiant saith not.
?? Q.0. ?---
lion Quinn
NORTH CAROLINA
NEW HANOVER COUNTY
I, _NADINE A STANT PV , a Notary Public for said County and State, do
hereby certify that Don Quinn personally came before me this day and duly executed this
Affidavit.
This the 23rd day of SEPTEMBER
1994.
Notary Public
My Commission Expires:
July 22 1995
j;2r_?;RE
PSO:tRR? pUn;.IC
NkW NAt+J`JER
Cp?31tT'i.

R ALTS 183

CERTIFICATE OF SERVICE
The undersigned does hereby certify that a copy of the Affidavit of Don Quinn was duly
served upon the following by depositing a copy in the United States mail, postage prepaid,
addressed to the following:
Charles E. Hamilton, III
Assistant United States Attorney
310 New Bern Avenue, Suite 800
Federal Building
Raleigh, North Carolina 27601-1461
This the !? day of September, 1994.

By.
WkXda Blanche Tvqf6r'
Atto eys for Defendants
234 Fayetteville Street. Mall
Suite 100
Post Office Box 2447
Raleigh, NC 27602
[phone]

RAL:S 183
Akla?hne?n? Z?
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA ,
WILMINGTON DIVISION
UNITED STATES OF AMERICA
No. 93-15-CIV_7_F
WORSLEY COMPANY, INC., ET AL. )
AFFIDAVIT OF ROBERT MOUL
Robert Moul, being first duly sworn, deposes and says as follows:
1. I am a resident of New Hanover County, North Carolina, am over 21 years of
age and have personal knowledge of the matters stated herein except those which are stated upon
information and belief, and as to those matters, I believe them to be so.
2. I am currently employed as an environmental consultant with Land Management
Group, Inc. of Wilmington, North Carolina. As an environmental consultant, I: map soils;
delineate wetlands; prepare Environmental Assessments Levels I and II; and, submit
CAMA/Corps permits.
3. I obtained a M.E.M. degree at Duke University and have had training in the areas
of Wetland Biology and Environmental Management.
4. On or about August 15, 1988, I was contacted by the Worsley Company, Inc. to
provide environmental consulting in connection with the delineation of 404 wetlands at the
Worsley 421 truck stop (hereafter "the Project Site").
5. A 404 permit application for .21 acres at the 421 entrance to the project property
had already been filed on behalf of Worsley Company with the Army Corps of Engineers on or
about August 27, 1987 by Catlin & Associates of Wilmington, North Carolina. This application
was put on hold on December 1, 1987.
6. In 1990 I had several discussions with various persons including Hugh Heine, Dr.
Wayne Wright of the Army Corps of Engineers and Lee Plej with the Environmental Protection
Agency about constructing a parking deck on pilings at the Project Site. During this time a
permit was not required for such a structure on pilings. During this period I also had
discussions with the Army Corps of Engineers regarding a proposed 3 to 1 mitigation plan and
fill of the Project Site as an alternative to the costly construction of a parking deck on pilings,
which at that time was not subject to the jurisdiction of the Army Corps of Engineers and the
Environmental Protection Agency. Such a structure could have, in effect, destroyed the
wetlands anyway due to various factors.
RAL3181
7. In approximately December 1990, the new Army Corps of Engineer rulings were
issued precluding the use of pilings as a way to avoid 404 permit requirements. At that time
I wrote a letter to Dr. Wayne Wright of the Army Corps of Engineers to request a
grandfathering of the parking deck on pilings proposal since we had been negotiating with the
Corps and the Environmental Protection Agency, and to reserve the right for the Worsley
Company to fill that area if the fill mitigation proposals were approved.
8. In April, 1991, Don Quinn and I discussed the deck on pilings plan with Dr.
Wayne Wright and obtained his verbal concurrence that it would be grandfathered from the 404
permit requirements regarding new pilings. At that time he also indicated that he would rather
support a fill-mitigation approach than lose wetlands by shading caused by an elevated deck.
9. On or around April 23, 1991, I had further discussions with Dr. Wayne Wright
of the Army Corps of Engineers where he indicated that he would allow a substitute mitigation
site for the .30 acres for the parking site if the site had a similar habitat and wetland feature.
He would consider a 2 to 1 mitigation ratio.
10. From mid-May through mid-July of 1991, I examined several mitigation sites
along the Cape Fear River area that had similar habitat values as the Project Site. On July 16,
1991, I discussed a particular site, the Eagle Island mitigation area, with Jimmy Wells and
Wayne Wright. By August 6, 1991, the Eagle Island mitigation area was flagged and shown
to Sherwin Cribb, R.L.S., so that he could survey it. By August 21, 1991, survey plats at the
mitigation site were completed.
11. On September 4, 1991, I prepared a complete mitigation report describing the
history of the project, including the originally requested permit application for .21 acres of fill
for an access ramp and requested the .30 acres of fill where the parking deck on pilings had
been proposed. I submitted this permit application and mitigation report on September 6, 1991.
The documents I submitted at that time are attached hereto as Exhibit A and incorporated fully
herein.
12. On October 17, 1991, the Army Corps of Engineers permit was issued with plans
attached for both the .21 acre area requested in the initial permit and the .30 acres requested in
the September 6, 1991 application.
13. I did not see this permit on the date it was received and did not see it until
approximately December 17, 1991.
14. For the past two years I have been in contact with both the Army Corps of
Engineers and Don Quinn on various matters including finding an acceptable mitigation site since
the Corps rejected the Eagle Island site originally proposed.
15. At all relevant times, I was seeking to obtain a permit for filling the area under
the proposed parking deck, approximately .30 acres. This was the area that was the subject of
all my conversations with the Army Corps of Engineers.
RAL:5181
Further Affiant saith not.
Robert L. Moul . e7?
NORTH CAROLINA
COUNTY
I,
hereby certify that Rob Moul personally came before met this rdasaid y and o duty exand State, do
ecuted Affidavit. y this
s
This the ,,Z3 day of 1994.
Notary Publi
My Commission Expires:
a 9 ?
NY
?G
oQ ?OTAI?y
y '°UB00 ?,•?c VEV?
'ts.$8111166111```

RAL:S 181
CERTIFICATE OF SERVICE
The undersigned does hereby certify that a copy of the Affidavit of Robert Moul was
duly served upon the following by depositing a copy in the United States mail, postage prepaid,
addressed to the following:
Charles E. Hamilton, III
Assistant United States Attorney
310 New Bern Avenue, Suite 800
Federal Building
Raleigh, North Carolina 27601-1461
This the Zk day of September, 1
1994.
By:
MCNAIR &
Attorneys for Defendants
234 Fayetteville Street Mall
Suite 100
Post Office Box 2447
Raleigh, NC 27602
[phone]

RAL:5w

j
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
Wilmington Division
No. 93-15-CIV-7-F
United States of America,
Plaintiff,
V.
Worsley Company, Inc.
William H. Smith, and
wife, Carolyne W. Smith
Defendants.
CONSENT ORDER AND
JUDGMENT
THIS CAUSE coming on to be heard and being heard before
the undersigned United States District Judge for the Eastern
District of North Carolina upon the application of the
plaintiff and the defendant Worsley Company, Inc. (corporate
defendant) for judgment, without hearing and by consent, and it
appearing that the plaintiff and the corporate defendant to
this cause have resolved the issues heretofore before the
Court, and that the corporate defendant has agreed to submit to
the terms of this Order and Judgment;
NOW, THEREFORE, by consent, it is ORDERED, ADJUDGED AND
DECREED:
1. Within sixty days of the date of entry of this
judgment, the corporate defendant shall restore the area shown

as "Area to be restored" on the map attached hereto as Exhibit
A as follows:
a. The corporate defendant shall remove all fill
material from the area, and disposing of it in a suitable high
ground location, to the satisfaction of the United States Army
Corps of Engineers, Wilmington District (Corps).
b. The corporate defendant shall stabilize the
remaining toe of fill with filter "X" cloth and clean rock rip-
rap.
c. The corporate defendant shall take no actions
which will interfere with the natural revegetation of the area,
and shall keep the area free from trash and debris. Nothing
herein shall be construed to prohibit the corporate defendant
from applying for a Department of the Army permit to discharge
dredged or fill material into the area after it has completed
the restoration work outlined in paragraph 1 a. or b., or from
discharging dredged or fill material into the area in strict
compliance with any subsequently issued Department of the Army
permit. In the event the corporate defendant applies for a
Department of the Army permit to fill the area to be restored,
in its review of such permit application, the Corps shall
consider the value of the restored area to be its value prior
to the performance of the work which was the subject of this
action.
d. Prior to beginning the restoration work outlined
in Paragraph 1 a. & b. above, the corporate defendant shall
provide the Corps ten days written notice of the date work will
begin. The corporate defendant shall allow representatives
from the Corps access to the property at all times work is
being performed.
2. The corporate defendant shall provide mitigation for
the remaining unauthorized fill in wetlands as follows:
a. Within thirty days of the entry of this judgment,
the corporate defendant shall purchase the 2.1 acre tract
(mitigation site) shown on Exhibit B, attached hereto and
incorporated herein by reference. This tract consists of 0.83
acres of uplands, and 1.27 acres of wetlands.
b. The corporate defendant shall, within sixty days
of the entry of this judgment, excavate an area measuring 280
feet by 70 feet within the upland portion of the mitigation
site, to the elevation of the adjoining wetland. The
corporate defendant shall take elevation surveys at several
representative locations approved by the Corps within the
adjoining wetlands and the excavated area to ensure that the
proper elevation has been achieved. The locations and results
of the elevation surveys shall be immediately provided to the
Corps. All excavated material shall be removed from the site
and disposed of in a suitable upland location.
C. Prior to any clearing, grading or excavation of the
upland area, the corporate defendant shall install temporary
sediment and erosion control features acceptable to the Corps
to ensure that sediment and eroded material does not encroach

upon the existing wetland. The corporate defendant shall
inspect the area weekly after rainfall events as long as the
excavation work is ongoing, and for the first three months
after the excavation work is completed to ensure the sediment
control features are working property.
d. After the excavation of the area has been
approved by the Corps, the corporate defendant shall plant one
to two year seedlings of native and nursery stock of the
following species on eight foot centers on the excavated area:
red maple (Acer rubrum), water oak (Quercus nigra), willow oak
(Quercus phellos), and swamp chestnut oak (Quercus michauxii).
Planting may not commence prior to December 15, 1994 and must
be complete by March 1, 1995. No single species shall occupy
more than 25% of the canopy.
e. Planting techniques and material shall be
sufficient to yield at least 75% survival after three years
from the date of the initial planting.
f. Monitoring shall be done by the defendants on a
semi-annual basis until such time as a 75% survival rate is
maintained for a period of three consecutive years. Monitoring
shall include observation and reporting of species survival,
density, and height. Reports, including color photographs of
the areas observed, shall be submitted to the U.S. Army Corps
of Engineers, Wilmington District.
g. Replanting of trees to replace those that do not
survive is required until such time as a 75% survival rate is
maintained for a period of three consecutive years.
h. Defendants shall notify the U.S. Army Corps of
Engineers, Wilmington District, in writing, prior to commencing
the plantings required by this Order, and shall notify the
Corps when planting has been completed. Defendants shall allow
representatives of the U.S. Army Corps of Engineers, Wilmington
District, to enter the mitigation site during business hours,
to conduct periodic and final inspections of the mitigation
work.
i. The corporate defendant shall maintain a 30 foot
upland buffer of native plants along the right-of-way of N.C.
Highway 133. No vegetation shall be removed from this buffer
except as required to construct two temporary dirt access
roads. A schematic representation of the mitigation plan is
attached hereto as Exhibit C. The upland area described in
paragraph 2b, above, shall be excavated in such a manner that
a 3:1 slope exists between the upland buffer and the excavated
area.
j. Once the mitigation is completed, that is, after
75% of the plantings have survived for a consecutive three year
period the mitigation site shall be maintained by the corporate
defendant, and its successors and assigns, as a mitigation site
in perpetuity. That is, no landclearing, grading, excavating,
filling, or earthmoving work of any kind will be performed, and
no vegetation will be disturbed, without the written consent of
the Corps.

k. Within thirty days of acquiring title to the
mitigation site, the corporate defendant will record this
Consent Order and Judgment with the applicable land records
office, with the intention of the parties being that this
Consent Order and Judgment touches and concerns the property
which makes up the mitigation site, runs with that property,
and encumbers that property in perpetuity. At least thirty
days prior to any proposed transfer of any interest of any part
of the mitigation site, the corporate defendant will provide a
true copy'of this Consent Order and Judgment to any proposed
transferee and simultaneously will notify the Corps of any
proposed transfer. A transfer of interest in the mitigation
site will not relieve the corporate defendant of any
responsibility in this Consent Order and Judgment, unless the
Corps and the transferee agree to allow the transferee to
assume such responsibility.
3. Within thirty days of the entry of this Consent
Order and Judgment, the corporate defendant shall pay a civil
penalty in the amount of $25,000.00 to the plaintiff by
certified check made payable to the U.S. Treasury.
4. Except as in accordance with this Consent
Judgment and Order, the corporate defendant, its officers,
directors, agents, servants, employees, successors and assigns,
and those in active concert or participation with them are
permanently enjoined from discharging dredged or fill material
into waters or wetlands of the United States, or from working
Er
in any manner in navigable waters of the United States, except
as authorized by a Department of the Army permit.
5. This Consent Order and Judgment does not relieve
defendants of the responsibility to comply with any state or
local laws, regulations, rules and permits.
6. Upon approval and entry by this Court, this
Consent Order and Judgment will have the effect and force of a
final judgment. This Court will retain jurisdiction over this
action for the purposes of enforcing, interpreting, and
modifying this Consent Decree. The United States reserves all
legal and equitable remedies available to enforce the
provisions of this Consent Decree. Any stipulated modification
of this Consent Decree must be in writing, signed by the
parties, and approved by this Court.
This the day of
James C. Fox
United States District Judge
CONSENTED TO:
UNITED STATES OF AMERICA, PLAINTIFF
, 1994.

A aClnv,r,CV-J 2'4-
WORSLEY TRUCK STOP
"Wetland Restoration and Mitigation Plan"
New Hanover & Brunswick Counties, N.C.
gqCH
For
Regulatory Functions Branch
U.S. Army Corps of Engineers
P.O. Box 1890
Wilmington, N.C. 28401
Prepared by
Land Management Group, Inc.
March 8, 1994
Job #94-048
5wtq6,
got V)P11 .'B'ox 2.522
90A'dngan, ? OWA Weol'. 28402
Ye- 999-452-0009
a6c?t,? a&d .?uite 94
?au? ?? ;m ?aone? ?emlc?/c C)A. gPalX-
? ? 90d"a -J&-, . fV 1840.7
MEMORANDUM TO: Mike Smith & Brooke Lamson
FROM: Rob Moul
SUBJECT: Worsley Truck Stop
"Wetland Restoration and Mitigation Plan".
Restoration Work Summary:
As discussed last week the Worsley Company desires to comply with
your mandate to restore .11 acre of maple and cattail wetlands at
the US 421 Truck Stop and mitigate by wetland creation at the NC
133 property. Basically, the Truck Stop restoration plans include
the following steps:
(1) Remove .11 acre of parking lot fill from 404 wetlands as
is illustrated on the attached plan by diagonal lines;
(2) Stockpile and remove all asphalt, stone and soil fill
from the Truck Stop property;
(3) Stabilize the newly created shoreline with filter "X"
cloth and clean rock rip-rap; and
(4) Allow native maple and cattail seedlings to re-vegetate
the denuded area naturally from adjacent seed sources.
It is anticipated volunteer Fac-W and/or obligates will
establish within a 4-6 month period.
(5) As discussed, the restoration work will be completed
within 30 days from the Army Corps acceptance of this
plan.
The Worsley Company desires written acceptance of this plan of
action and time-table so they can line up contractors to perform
this restoration activity.
Wetland Mitigation Summary:
As you know, the site chosen for the 4:1 ratio wetland creation
work is located just .5 mile south of Jackeye's Creek along N.C.
Page 2
Highway 133. This tract measures about 2.1 acres in size and has
.83 acres of upland and 1.27 acres of existing maple/oak/gum
swampland. The Worsley Company has made contact with the owners,
Landmark Organization, Inc., to purchase the property for this
purpose.
There appears no conflict with deed restrictions, zoning, nor other
state or federal rules in order to achieve the proposed .44 acre
wetland creation activity. No other CAMA or 404 wetlands will be
disturbed nor will there be any activity greater than 1 acre in
size which would trigger a Sedimentation Control Permit or Mining
Permit. No 401 certification will be required since there will be
no disturbance of waters of the state.
Worsley Company recognizes that the most important part of the
mitigation plan is to maintain all sediment on the site. This will
be achieved in the following manner:
(1) Prior to any upland clearing/grading activity a suitable
silt fence will be installed around the entire lower
perimeter of the wetland line along a 5 ft - 10 ft.
natural upland buffer;
(2) A 1 foot deep 10' wide sediment basin/shallow pool will
be excavated landward of the silt fence and downslope of
the excavation zone;
(3) A 3:1 minimum slope shall be maintained and be re-
vegetated with a suitable grass seed mixture.
(4) The excavated spoil will be trucked off the site via two
temporary dirt access roads;
(5) A 30 ft. upland buffer of native plants shall be
maintained along the highway right-of-way;
(6) The tract will be inspected weekly after rainfall events
for the first 3 months to ensure the sediment control
features are working properly.
Once the excavation work is completed an area measuring
approximately 280' by 70' will be excavated 3'- 4' down to the
adjacent swamp grade. It will be planted by hand with facultative
or wetter plant species based on market availability and seasonal
planting success. Ideally, the 1-2 year seedlings of native and
nursery stock should be planted no later than the end of March,
however, due to the time it takes to close on the property we
anticipate it will take at least 45 days from closing the property
to complete the creation work.
Page 3
The following woody tree species will be planted at an 8 ft. by 8
ft. spacing:
Red Maple - Acer rubrum - FAC W
Water Oak - uercus ni ra - FAC
Willow Oak - uercus phellos - FAC W
Swamp Chestnut Oak - uercus michauxii - FAC W
As discussed the Army Corps will require a minimum 75% success rate
for the survival of these species based on tree stem analysis. A
typical three year monitoring program will be initiated with 6
month summary reports being given to your office along with photo
documentation. At the end of the 3 year period if stem density and
volunteer species have successfully stabilized the site in a FAC +
or FAC W majority species composition, the monitoring requirements
will end.
Attached are maps, photos and drawings depicting the properties and
the described restoration mitigation activities. Should you have
further questions or need other information, please feel free to
contact me at your convenience.
,Sincerely,
Rob Moul, M.E.M.
Registered Environmental Professional
RM/dm
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Brian Rosenthal
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.VICINITY MAP
LAID MANAGEMENT GROUP, INC:
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WORSLEY MITIGATION PLAN
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PICTURES OF MITIGATION AREA
LOOKING, SOUTH AT MITIGATION SITE ON LEFT .
PROPOSED NC 1 33 MITIGATION SITE
83 ACRE OF UPI AND
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Mitigation Overview
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Parcel Number 05900007 Plat Date
Account Number 20409310 Land Value $30,000
PIN 310619625270 Building Value $0
Owner WORSLEY COMPANIES INC Other Value $0
Owner Address 7 Deferred Value $0
Owner Address 2 O BOX 3227 Total Taxable Value $30,000
City
E4 ILMINGTON Heated Sq Ft
State NIC Year Built
zip 28406 Bedrooms
Legal Description 2.23 AC NC 133 Full Baths
Parcel Street Number Stories
Parcel Street Ext. Wall 1
Street Type Ext. Wall 2
Street Dir Neighborhood 2001
Subdivision Municipality
Deed Book 1006 Fire Tax District LELAND

Deed Page 0492 Township TOWN CREEK
Deed Date 10/31/1994 Acreage 2,23
Plat Book Sale Price $13,500
if 2
6/13/2008 2:37 PM
A?ClnWent 21
?0
NCDENR
North Carolina Department of Environment and
LEI =CE 0 IV E
Natural Resources
Michael F. Easley, Govemor William G. Ross Jr., Secretary
October 29, 2008
Ms. Amanda L. Kolb
Southern Environmental Group, Inc.
5315 South College Road, Suite E
Wilmington, NC 28412
Subject: Proposed Truck Stop Expansion - 1610 US Highway 421 North; Wilmington, New Hanover
County
Dear Ms. Kolb:
The Natural Heritage Program has no record of rare species, significant natural communities, significant
natural heritage areas, or conservation/managed areas at the site. Across US 421 to the west is the State
significant Brunswick River/Cape Fear River Marshes natural area, which is not protected, for the most
part. However, the proposed project will not impact the natural area, especially as the project site
contains a monotypic stand of Phragmites, as you mention in your letter.
You may wish to check the Natural Heritage Program database website at www.ncnhp.org for a listing of
rare plants and animals and significant natural communities in the county and on the quad map. Our
Program also has a new website that allows users to obtain information on element occurrences and
significant natural heritage areas within two miles of a given location:
<http://nhpweb.enr.state.nc.us/nhis/pLibIic/gmap75_inain.phtm1>. The user name is "public" and the
password is "heritage". You may want to click "Help" for more information.
NC OneMap now provides digital Natural Heritage data online for free. This service provides site
specific information on GIS layers with Natural Heritage Program rare species occurrences and
Significant Natural Heritage Areas. The NC OneMap website provides Element Occurrence (EO) ID
numbers (instead of species name), and the data user is then encouraged to contact the Natural Heritage
Program for detailed information. This service allows the user to quickly and efficiently get site specific
NHP data tv.t hcut ;:°.,..;4i:.- the N',JP Nvorkro "*? t
? ? ?,? or or i_?,.,?,ng for he Informatio^. Request to be answered by
NHP staff. For more information about data formats and access, visit <www.nconemap.com>, then click
on "FTP Data Download", and then "nheo.zip" [to the right of "Natural Heritage Element Occurrences"]
You may also e-mail NC OneMap at <dataq(c_)ncmail.net> for more information.
Please do not hesitate to contact me at 919-715-8697 if you have questions or need further information.
Sincerely,
Harry 1 LeGrand, Jr., oologist
Natural Heritage Program
1601 Mail Service Center, Raleigh, North Carolina 27699-1601 ne
Phone: [phone] FAX: [phone] Internet: www.enr.state.nc.us/ENR/ o Carolina
An Equal Opportunity / Affirmative Action Employer - 50 % Recycled 110 % Post Consumer Paper aturalilr?