20052132 Ver 1_USACE Correspondence_20090316

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IN REPLY REFER TO
Regulatory Division
ORM ID: SAW 2009-00425
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DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
Washington Regulatory Field Office
Post Office Box 1000
Washington, North Carolina 27889-1000
March 13, 2009
Mr. Sam Young, President
The Fund for Sandy Point North Carolina, LLC
723 McMullen Avenue, # 305
Edenton, North Carolina 27932
Dear Mr. Young:
LIAR 1 6 200.9
DE - WATER QUALITY
VVETLANDS AND STORMINATE BRANCH
This correspondence confirms your March 5, 2009, meeting with Mr. Raleigh Bland and Ms.
Emily Jernigan of my staff regarding your project located on the east and west sides of N.C.
Highway 32, approximately eight miles southeast of Edenton, adjacent to the north shore of the
Albemarle Sound, in Chowan County, North Carolina. The purpose of this meeting was to
address non-compliance with the Department of the Army (DA) permit issued to The Fund for
Sandy Point North Carolina, LLC, for work undertaken within DA regulatory jurisdiction on the
project site (Action ID SAW 2006-10042).
Special Condition 28. of the subject permit states that, "The Permittee (and any successors
and assigns) shall cause to be recorded in the Register of Deeds for Chowan County the
"Restrictive Covenants for Shoreline Preservation, " the draft form of which is attached as
Exhibit E, and the "Restrictive Covenants for Wetlands Preservation, " the draft form of which is
attached as Exhibit F ("Restrictive Covenants') for the purpose of preserving and protecting
certain riparian areas and wetlands located on the project site in perpetuity. The Restrictive
Covenants shall be recorded at least thirty (30) days before the Permittee commences dredging
the first of the three proposed channels in Albemarle Sound as authorized by this Permit;
provided, however, that no lot within the project shall be sold or conveyed without any
restrictive covenants applicable to such lot having first been recorded. The Permittee shall
enforce the terms of the restrictions set forth in the Restrictive Covenants, and, prior to
conveyance of the property, shall take no action on the property described in the Restrictive
Covenants inconsistent with the terms thereof. Conveyance of any portion of the property prior
to the recordation of the aforementioned covenants will require written approval of the
USA CE. "
Based on my staff's investigation, we have determined that you commenced dredging
activities without first recording the Restrictive Covenants for Shoreline Preservation as required
by your permit. Noncompliance with the special conditions of the subject permit constitutes
violations of Section 404 of the Clean Water Act (33 USC 1344) and Section 10 of the Rivers
and Harbors Act of 1899 (33 USC 403). As discussed with Mr. Bland and Ms. Jernigan, you
subsequently accomplished the required actions necessary to bring your project into compliance
with the issued permit. As discussed, we are also considering administrative penalties against
you for this work. Accordingly, you will be contacted by Wilmington District's Office of
Counsel regarding this matter.
Failure to comply with this request may result in referral to the United States Attorney with a
recommendation for civil prosecution and or civil penalty for a violation of permit conditions
pursuant to 33 USCA Section 1319(g)(1)(b).
Thank you for your time and cooperation. The Wilmington District is committed to providing
the highest level of support to the public. To help ensure we continue to do so, please complete
the Customer Satisfaction Survey located on our website at http://regulatory.usacesurvey.com/.
latory.usacesurvey.com/.
If you have any questions, please contact Mr. Bland at the Washington Regulatory Field Office,
Post Office Box 1000, Washington, North Carolina 27889-1000, telephone [phone],
extension 23.
Sincerely,
David M. Lekson, P.W.S.
Chief, Washington Regulatory Field Office
Copies Furnished:
United States Attorney
Eastern District of North Carolina
310 New Bern Avenue
Suite 800, Federal Building
Raleigh, North Carolina 27601
Mr. Ronald J. Mikulak, Chief
Wetlands Regulatory Section
Water Management Division
United States Environmental Protection Agency
61 Forsyth Street, SW
Atlanta, Georgia 30303
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Mr. Pete Benjamin
United States Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh, North Carolina 27636-3726
Mr. Ron Sechler
National Marine Fisheries, NOAA
Habitat Conservation Division
101 Pivers Island Road
Beaufort, North Carolina 28516
Ms. Cyndi Karoly
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
1650 Mail Service Center
Raleigh, North Carolina 27699-1650
Mr. Doug Huggett
Division of Coastal Management
North Carolina Department of Environment
and Natural Resources
400 Commerce Avenue
Morehead City, North Carolina 28557
Mr. Frank Jennings
Division of Coastal Management
North Carolina Department of Environment
and Natural Resources
1367 US 17 South
Elizabeth City, North Carolina 27909
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