20052188 Ver 1_USACE Correspondence_20090318

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
PO BOX 1890
WILMINGTON NC 28402-1890
March 18, 2009
Regulatory Division © N51` o c-l
Action ID No. SAW-2005-00704
Mr. John Clarke, Regional Vice President of Real Estate Design
Wal-Mart Stores, Inc.
2001 Southeast 10th Street
Bentonville, Arkansas 72716-0550
Dear Mr. Clarke:
Please reference the August 18, 2006 Department of the Army (DA) authorization issued to
you for impacts to Section 404 jurisdictional wetlands and waters of the United States for the
development of commercial development known as Freedom Village, located on Yopp Road 0.7
miles west of the intersection of Highway 258 and Highway 17 just north of Jacksonville
adjacent to Brick Kiln Branch, Onslow County, North Carolina. Specifically, the U. S. Army
Corps of Engineers, Regulatory Division (Corps) verified the use of Nationwide Permit (NWP)
39 for the discharge of fill material into 0.50 acres of waters which included on-site
compensatory mitigation in the form of intermittent stream channel relocation and preservation.
Please also reference our June 20, 2008 Notice of Noncompliance issued to you for failure to
implement appropriate a preservation mechanism for the on-site mitigation, as well as
subsequent meetings with Mr. Brad Shaver and Ms. Jennifer Frye of the Corps; Mr. Justin
McCorcle of the Corps Office of Counsel; Mr. John Byrum of Troutman Sanders LLP, counsel
for Wal-Mart Stores, Inc.; Mr. Mark McElroy of Malcolm Pirnie; Mr. David Syster and Mr.
James Taylor of Southern Environmental Group, Inc.; Ms. Joanne Steenhuis of the N.C. Division
of Water Quality; and Mr. Chris Bailey, property owner of Freedom Village parcels, including
area of on-site mitigation.
The Corps recognizes Wal-mart Stores, Inc. attempts to implement the preservation as
required and the Corps also acknowledges Mr. Bailey's concerns regarding the limitations
inherent to preservation. As Wal-Mart Stores, Inc. is now unable to record the preservation
documents, Mr, Byrum submitted an alternative mitigation proposal to the Corps on January 16,
2009. Specifically, Wal-Mart Stores, Inc. is now proposing to make payment to the North
Carolina Ecosystem Enhancement Program (NC EEP) for riparian wetland restoration in lieu of
on-site mitigation. The Corps believe this to be an acceptable form of alternative mitigation. As
such, you are now required to complete the following within 30 days mvv:tf',t s

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• In order to compensate for completed impacts to 0.50 acres of waters of the U.S., the
permittee shall make payment to the North Carolina Ecosystem Enhancement Program
(NC EEP) in the amount determined by the NC EEP, sufficient to perform the restoration
of 0.50 acres of riparian wetlands in the White Oak River Basin, Cataloging Unit
03030001. Once you have made full payment to the NC EEP and provided a copy of the
payment documentation to the Corps, you must ensure that the NC EEP has provided
written confirmation to the Corps that it agrees to accept responsibility for the mitigation
work required, in compliance with the MOU between the North Carolina Department of
Environment and Natural Resources and the United States Army Corps of Engineers,
Wilmington District, dated November 4, 1998.
If Wal-Mart Stores, Inc. fails to satisfy this alternative mitigation as stated above, the Corps
will propose a Class I Administrative Penalty under the authority of 33 U.S.C. § 1319(g) and 33
CFR Part 326.6.
Finally, please be aware that while the Corps no longer considers the preservation of the
relocated channel as a component of your compensatory mitigation, this tributary is subject to
the permitting requirements of Section 404 of the Clean Water Act (CWA)(33 USC § 1344). As
such, any discharge of fill material below the plane of the Ordinary High Water Mark of this
tributary requires prior Department of Army authorization.
If you have any questions regarding this matter, please contact Mr. Brad Shaver or
Ms. Jennifer Frye at the Wilmington Regulatory Field Office, telephone [phone] or (910)
251-4923.
Sincerely,
Jefferson M. Ryscavage
Colonel, U. S. Army
District Commander
Copies Furnished:
Mr. John K. Byrum, Jr.
Troutman Sanders LLP
Post Office Box 1122
Richmond, Virginia 23218-1122
Mr. George E.B. Holding
United States Attorney
Eastern District of North Carolina
310 New Bern Avenue, Suite 800
Raleigh, North Carolina 27611
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Ms. Molly Davis, Chief,
Wetlands Enforcement Section
Water Protection Division
Clean Water Enforcement Branch
U.S. Environmental Protection Agency
61 Forsyth Street, SW
Atlanta, Georgia 30303-8960
Ms. Joanne Steenhuis
Division of Water Quality
4/' N. C. Department of Environment
and Natural Resources
127 Cardinal Drive Extension
Wilmington, North Carolina 28405
Mr. John Hennessy
Division of Water Quality
N.C. Department of Environment
and Natural Resources
1617 Mail Service Center
Raleigh, North Carolina 27699-1617
Mr. Mark McElroy
Malcolm Pimie
701 Town Center Drive, Suite 600
Newport News, Virginia 23606
Mr. Chris Bailey
Bailey and Associates
405 Western Boulevard
Jacksonville, North Carolina 28546
Mr. James Taylor
Southern Environmental Group Inc.
5315 College Road, Suite E
Wilmington, North Carolina 28412
Ms. Jeanette Hall
City of Jacksonville
815 New Bridge Street
Jacksonville, North Carolina 28541