19910242 Ver 1_COMPLETE FILE_19940908

State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
James B. Hunt, Jr., Governor
Jonathan B. Howes, Secretary
A. Preston Howard, Jr., P.E., Director
. September 9, 1994
Mr. George Thomas Davis, Jr.
Davis and Davis
P.O. Box 277
Swan Quarter, N.C. 27885
Dear Mr. Davis:
Subject: Certification Pursuant to Section 401 of the Federal
Clean Water Act,
Proposed agricultural land clearing
Project # 91239, COE # 19910764
Hyde County
FILE COPY
Attached hereto is a copy of Certification No. 2915 issued to George and Calvin Davis
dated 9 September 1994.
If we can be of further assistance, do not hesitate to cor0act us.
Sincerely,
eston Howard, Jr .E.
Attachments
wgc2915
cc: Wilmington District Corps of Engineers
Corps of Engineers Washington Field Office
Washington DEM Regional Office
Mr. John Dorney
Mr. Steve Benton, Division of Coastal Management
Central Files
Steve Tedder
Kathryn Cooper; Attorney General's Office
Greg Thorpe
AlF.WMA
ED EHNF-i
P.O. Box 29535, Raleigh, North Carolina 27626-0535 Telephone [phone] FAX [phone]
An Equal Opportunity Affirmative Action Employer 50% recycled/ 10% post-consumer paper
w
NORTH CAROLINA
Hyde County
CERTIFICATION
THIS CERTIFICATION is issued in conformity with the requirements of Section 401 Public
Laws 92-500 and 95-217 of the United States and subject to the North Carolina Division of
Environmental Management Regulations in 15 NCAC 2H, Section .0500 to George and Calvin Davis
resulting in about 70 acres of wetland impact in Hyde County pursuant to the revised application filed
on the 28th day of July of 1994 to create new agricultural fields and leave a 150 foot wide water
quality and wildlife corridor.
The Application provides adequate assurance that the discharge of fill material into the waters
of canals which are tributary to Lake Mattamuskeet in conjunction with the proposed development in
Hyde County will not result in a violation of applicable Water Quality Standards and discharge
guidelines. Therefore, the State of North Carolina certifies that this activity will not violate Sections
301,302,303,306,307 of PL 92-500 and PL 95-217 if conducted in accordance with the application and
conditions hereinafter set forth.
Condition(s) of Certification:
1. That the activity be conducted in such a manner as to prevent significant
increase in turbidity outside the area of construction or construction
related discharge (increases such that the turbidity in the stream is 25 NTU's
or less are not considered significant).
2. A 150 foot wide water quality/wildlife corridor shall be established connecting
the two boundary canals as shown on the map attached to your 28 July 1994
letter. Field ditches in the new agricultural fields shall not directly connect to
the boundary canals but rather shall end at the edge of the 150 foot wetland
corridor.
Violations of any condition herein set forth shall result in revocation of this Certification. This
Certification shall become null and void unless the above conditions are made conditions of the
Federal 404 and/or Coastal Area Management Act Permit.
If this Certification is unacceptable to you, you have the right to an adjudicatory hearing upon
written request within thirty (30) days following receipt of this Certification. This request must be in
the form of a written petition conforming to Chapter 150B of the North Carolina General Statutes and
filed with the Office of Administrative Hearings, P.O. Box 27447, Raleigh, N.C. 27611-7447. Unless
such demands are made, this Certification shall be final and binding.
This the 9th day of September, 1994.
DIVISION OF ENVIRONMENTAL MANAGEMENT
res= ward . P.E.
WQC#2915
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oL
A
State of North Carolina
MICHAEL F. EASLEY Department of Justice REPLY TO: Kathryn Jones Cooper
ATTORNEY GENERAL P. 0. BOX 629 Water and Land Section
RALEIGH Environmental Division
2 7 602-062 9 [phone]
[phone]-Fax
September 7, 1994
I
17
Mr. N. F. Willis
Vice President
Becker Minerals, Inc.
8 1994
P. O. Drawer 848
Cheraw, South Carolina 29520 - q
'
C{
3
WETL??1 C ?
WATER jTY S>E l Ml'......,.
RE: Freedom of Information Request
Dear Mr. Willis:
You have requested "a copy of the opinion prepared by the Attorney Gen-
eral's Office for the Environmental Management Commission ("EMC" or "Commis-
sion") on whether or not the EPA has given the State of North Carolina the
authority to use the 404(b)(1) guidelines in their proposed 401 Water Quality
Certification program". No such opinion by our office exists.
However, our office represented the Department of Environment, Health
and Natural Resources ("DEHNR" or "Department") in a recent contested case
proceeding in which the EMC affirmed the determination of the Division of
Environmental Management ("DEM") to deny a 401 Water Quality Certification for
the proposed conversion of 91 acres of freshwater wetlands in Hyde County,
North Carolina, to agricultural use on the basis that the conversion would
remove existing uses in violation of the State's antidegradation policy, and on the
basis that a practicable alternative exists. See Davis v. NCDEHNR, DEM, 91
EHR 794, decided May 12, 1994 by the EMC; a copy of which is attached
hereto.
In Conclusion of Law Number 3 (FAD pp. 13-14) of the Final Agency
Decision, the EMC concluded:
Commission rule 15A NCAC 213.0109 allows the use of the practicable
alternative test set forth in 40 CFR, Part 230, subparts A through F, in
the agency's determination of whether the proposed coversion of freshwater
wetlands would be considered as removing an existing use in violation of
the anti-degradation water quality standard.
An Equal Opportunity / Affirmative Action Employer ???
J
Mr. N. F. Willis
Freedom of Information Request
September 7, 1994
Page 2
If you have any further questions, particularly about the EMC's proposed
wetlands rules, please contact Ron Ferrell or John Dorney, with DEM's Wetlands
Group, at [phone].
Sincerely,
fryn Jones Cooper
Special Deputy Attorney General
Attachment
cc: Ron Ferrell
John Dorney
KJC/sam
ep:willisltr.kc
NV`RlH CP?1i?L3ix815
Becker Minerals, Inc. DEFT. OF Aj,fORNEY GENERAL
RECEIVED
J P.O. Drawer 848, Cheraw, South Carolina 29520
Telephone [phone], Fax [phone] MAR 9 1994
March 7, 1994
__......:.
....... ........
Attorney General's Office
?? i 1994 u?
State of North Carolina
Department of Justice N1. C ATTURI*9'1.Y-GENERAL
P. O. Box 629
Raleigh, North Carolina 27602-0629 E^V?ror,2^`.31 DlVISIUfl
Re: Freedom of Information Request
Dear Sir:
Becker Minerals requests, through the Freedom of Information
Act, a copy of the opinion prepared by the Attorney General's
Office for the Environmental Management Commission on whether or
not the EPA has given the State of North Carolina the authority to
use the 404 (b)(1) guideline in their proposed 401 Water Quality
Certification program.
We understand this opinion has been recently issued but are
unsure of its full title and scope.
We understand there may be a standard charge for this
information and we agree to pay that charge.
Should you have any questions, do not hesitate to contact the
writer.
Yours sincerely,
BECK MIN RALS, INC.
N. Wills
Vice President
NFW:dmb
Alfred MIAlpine
n/iuends Division
STATE OF NORTH CAROLINA
COUNTY OF HYDE
CALVIN BLYTHE DAVIS AND
GEORGE THOMAS DAVIS,
PETITIONERS,
v.
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT, HEALTH AND NATURAL
RESOURCES, DIVISION OF
ENVIRONMENTAL MANAGEMENT,
BEFORE THE ENVIRONMENTAL
MANAGEMENT COMMISSION
91 EHR 794
FINAL AGENCY DECISION
AhBBBD
JUN 6 1994
RESPONDENT.
ENVIRONMENTAL MANAGEMENT
COMMISSION
THIS MATTER came before the Environmental Management Commis-
sion pursuant to G.S. 150B-36 for final agency decision at its
regularly scheduled meeting in Raleigh, North Carolina on May 12,
1.094 .
An administrative hearing was conducted before Fred. G.
Morrison, Administrative Law Judge, on September 27, 1993 in.
Raleigh, North Carolina. Lars P. Simonsen, Esquire and David J.
Irvine, Jr., Esquire appeared for Calvin and George Davis. Spe-
cial Deputy Attorney General Kathryn J. Cooper appeared for the
Division of Environmental Management. The Recommended Decision
was filed December 2, 1993 and the Official Record was received
on February 14, 1994. The parties were provided an opportunity
to submit exceptions and objections to the Recommended Decision
and were notified the contested case would be considered by the
Commission during its May 12, 1994 meeting.
The Environmental Management Commission considered the Offi-
cial Record, transcript of hearing, Recommended Decision and
-3-
of Environmental Management erred in denying their
application for a 401 Water_ Quality Certification.
2. Petitioners own an undeveloped tract of land a.ppro,xi-
mately 91 acres in size, located on the' North side of
U.S. Highway 264, one mile West of N.C. Highway 94, siv
and one-half miles East of Swan Quarter near Lake
Ma.ttamuskeet in Hyde County, North Carolina (hereinaf-
ter "the property").
3. L?evelopmen.t of the property commenced in July of 1982.
4. In 1987 the Hyde County Agricultural Stabilization,
Conservation Service issued a Commenced. Conversion
Determination on the Petitioners' 91 acre tract. In.
1989 the Petitioners filled a ten foot wide and five
foot deep ditch which bisected the property and which
was constructed on or before 1964, in order to make
preparation for the final ditches on the property and
to facilitate windrow maintenance.
5. In 1990 the first ditch was dug on the property-
6. iin. March 12, 1991, a. notice was posted on the property
by the U.S. Department of the Army Corps of Engineers
(hereinafter "the Corps"), stating that without a 404
permit, clearing the property was in violation of Fed-
eral Law.
-4-
7. In response to this notice Petitioners plugged the
ditch constructed in 1990, pursuant to instructions
from the Corps' representative Ralph Thompson.
8. On May 7, 1991, the Petitioners applied to the Corps
for a dredge and fill permit, under Section 404 of the
Clean Water Act, to allow the conversion of the prop-
erty to agricultural use.
9. On. June 13, 1991, the Corps issued a public notice of
Petitioners' application for a 404 Permit. The public
notice is also considered Petitioners' application for
State Water Quality Certification from the Respondent
Division of Environmental Management (hereinafter
"DEM"), pursuant to Section 401 of the Clean water Act.
10. On June 18, 1991, the Corps public notice was received
by the Water Quality Planning Branch of the DEM.
11. On June 21, 1991, John Dorney and Ron Ferrell, repre-

sentatives of the DEM's Water Quality Planning Branch,
Wetlands and Technical Group, inspected the property
and conducted site evaluations of the uses provided by
the wetlands on the property.
12. On July 1, 1991, John Dorney sent a. letter to Peti-
tioner, George Thomas Davis, which advised Mr. Davis of
the DEM's preliminary determination and requested addi-
tional information.
-5-
13. On July 12, 1991, the U.S. Fish & wildlife Service,
through its Raleigh Field office, submitted comments to
the Corps concerning their opposition to the Petition-
ers' proposed project.
14. On July 19, 1991, Deborah Sawyer, a DEM representative
in the Washington Reaional office, inspected the prop-
erty and conducted a site evaluation of the property.
15. By letter dated August 13, 1991, the Respondent denied.
Petitioners' application for a 401 Water Quality Certi-
fication because of the potential violation of State
Water Quality Standards. The Division contended that
the proposed project would remove significant uses,
including wildlife habitat, water storaae, water qual-
ity protection, which would violate the
anti-degradation policy.
16. In denying Petitioners' application for a 401 Water_
Quality Certification., Respondent considered whether_
Practicable alternatives to Petitioners' project
existed.
17. Respondents' finding of a practicable alternative to
petitioners' project formed a basis for the denial of
Petitioners' application for a 401 Water Quality
Certification.
18. The State of North Carolina is not authorized to issue
permits for the discharge of dredged or filled material_
-6-
into navigable waters, pursuant to Section 404 of the
Clean Water Act.
19. The U.S. Army Corps of Engineers has determined that
there are approximately 91 acres of wetlands on the
property.
20. The overall purpose of Petitioners' project for which
they seek a 401 Water Quality Certification and a 404
permit is to convert the property to agricultural use.
21. Lake Mattamuskeet and the ditches connecting property
to Lake Mattamuskeet have been classified as "SC"
Waters.
22. The Corps denied Petitioners' 404 Permit because of
Respondent's denial of their 401 water Quality
Certification.
FINDINGS OF FACT
23. Calvin Davis and George Davis are brothers and together_
own the land in Hyde County, North Carolina for which
they seek a permit from the Army Corps of Engineers to
construct ditches and place fill in wetlands for the
purpose of cultivating agricultural row crops.
24. The soil on the site is ponzer muck, a. hydric soil, and
the predominant vegetation consists of wetland plants,
including myrtle bushes, foxtails, honeysuckle, and
scattered cypress trees.
-7-
25. The site was logged of merchantable timber_ in 1977 and.
1978. The Davises reserved the cypress trees for their_
own use and logged these trees in 1990.
26. In the 1980's the Davises began developing the property
to put the land to agricultural use- Beginning from
the highest elevation in the center, they put in drain-
age ditches and windrowed the land.
27. The ninety-one acre site was determined to have a com-
menced conversion status by the Hyde County ASCS Office
in 1987.
28. Approximately 98.8% of Hyde County was originally a.
wetland or water, and 1.2% is uplands or was origi-
nally. The uplands now in existence are either origi-
nal or are converted croplands. The Davises do not own
any uplands or any prior converted land which is not in
cultivation. Few pieces of property in Hyde County
have a commenced conversion status.
29. A 404 permit is required to convert wetlands to agri-
cultural use because it is not exempt from the permit-
ting requirement as an existing on-going agricultural
use.
30. According to the May 1991, 404 permit application
(dredge and fill), the Davises propose to dig lateral
ditches over 215 feet apart and excavate four ditches,
each six feet wide at the top and four feet deep. The
-8-
spoil material from the ditches would be placed on the
edge of the ditches and spread over the remaining land
raising the elevation by six inches on average.
31. The overall purpose of the project on the ninety-one
acre site is to create more farm land for cultivating
row crops such as corn, soybeans, and winter wheat to
be marketed for profit.
32. A 401 water Quality Certification that the proposed
discharge under section 404 of the Clean Water Act will
not violate State water quality standards is required
before the Corps of Engineers will issue the 404 permit
to dredge and fill the wetlands proposed by the
Da.vises .
33. Commission rules 15A NCAC 2B.0100 and .0200, State
water quality standards, are applied in making determi-
nations of 401 certification applications. The
anti-degradation policy in 15A NCAC 2B.0201 provides
that existing uses and water quality to protect these
uses shall be protected by sufficient and appropriate
classifications and standards .
34. As provided in 15A NCAC 2B.0202(17), existing uses
means uses actually attained in the water body, in a.
significant and not incidental manner, on or after
November 28, 1975, whether or not they are included in
-9-
the water quality standards, which either have been
actually available or are uses deemed attainable.
35. Three significant uses are present in the ninety-one
acre wetland which the Davises seek to convert to cul-
tivation of agricultural row crops. The uses provided
by the wetlands are wildlife habitat, water storage and
water quality protection through pollutant removal.
36. Water storage is the ability of wetlands to hold back
rainwater or over-bank flooding and reduce downstream
flooding and siltation. When the waters of Lake
Ma.ttamuskeet rise, the waters also rise in the drai_n.a.ae
ditches present in the ninety-one acre wetland- The
rising water flows over the land in places; and at the
lowest point, it stands on the property- Conversion to
cultivation of row crops requires the lowering of the
water table for the ninety-one acre site and the loss
of water storage capacity.
37. water quality protection includes the trapping and
removal of pollutants from the ecosystem and providing
shade for aquatic life. Conversion of the ninety-one
acres of wetland to cultivation of row crops would
remove the use of pollution trapping and removal and.
would introduce fertilizers, chemicals and sediments to
the surface waters on the site. Impacts from sediments
and nutrients include smothering aquatic life and
-10-
interfering with fish by clogging their gills. Nutri-
ents generate algae blooms, which sink to the bottom
and decompose, and subsequently deprive the water col-
umn of oxygen.
38. Wildlife and their culture or habitat is a use to be
protected by the classification of the State's waters
and the applicable water quality standards, G.S-
143-214.1. The function of wildlife habitat is to pro-
vide food, shelter, places to nest and places to hide.
The conversion of the ninety-one acre wetland to culti-
vation of agricultural row crops would remove wildlife
uses being supported by the wetland.
39. By letter dated. July 8, 1991, George Davis stated. "the
only economically feasible alternative to planting row
crops is to plant this property in monoculture pine
trees." Respondent Exhibit 8.
40. Conversion of the ninety one acres of freshwater wet
lands to pone forest is a. practicable alternative to
conversion of the site to agricultural row crops. Use
of the property for forestry purposes will continue the
uses of wildlife habitat, water storage and water qual-
ity protection. Although there will be an impact upon
these uses, the conversion to pine forest will not
remove these uses as is the case of conversion to agri-
cultural row crops.
-11-
41. Best management practices for silviculture could
include ditching, bedding with disc plows, application
of herbicides and the use of fertilizer. Use of these
best management practices in converting a wet land to
forestry use will have temporary impacts on the uses of
water storage, water quality protection and wildlife
habitat; once trees are established., the wetland
remains intact for harvest life of the forest-
42. The ninety one acre site will continue to be a juris-
dictional wetland in converted to silviculture.
43. The wetland restoration potential for this site is
high. It could be restored by filling the ditches to
retain. the water and possibly planting in scattered
locations.
44. The impact on the present wetland uses from conversion.
to silviculture would be less severe than from conver-
sion to agricultural row crops. The wildlife use would
not be as severely impacted. In-kind wildlife habitat
for nesting, food and cover will remain. water storage
will be less impacted because the trees will intercept
the rainfall, the soil is more intact than it is in an
agricultural field and the water level remains higher
for longer periods of time. A pine forest in compari-
son to an agricultural field will store nutrients
rather than be a. source of pollutants. Once
-12-
established, a pone forest remains undisturbed for the
harvest cycle where as agricultural lands are tilled.
and disturbed several times each year. Water runoff-
from a forested site will have much lower levels of
nutrients and pollutants as the land remains undis-
turbed for thirty or forty years until harvested.
45. Commission rule 15A NCAC 2B .0109 allows alteration
projects that affect freshwater wetlands if the alter-
ation project protects all existing and designated uses
of all. waters-of the State. Such projects will not be
considered as r_emovina existina uses of the wetland in
violation of the anti-degradation policy (15A. NCAC 2B
.0201(b)).
46. 40 CFR Part 230, Subparts A through F, may be used as
guidance in determining whether the proposed alteration
of the wetlands would remove existing uses in violation
of the anti-degradation policy.
47. The guidance provided in 40 CFR Part 230.1(d), that
"[f)rom a national perspective, the degradation or
destruction of special aquatic sites such as filling
operations in wetlands, is considered to be among the
most severe environmental impacts covered by these
guidelines. The guiding principle should be that d.ea-
radation of special sites may represent an irreversible
loss of valuable aquatic resources.
-13-
4n. The conversion of the ninety one acres of freshwater
wetlands to silviculture rather than agricultural row
crops will have less adverse impact on the aquatic eco-
system because there will not be the loss of wildlife
habitat or the loss of the capacity of the wetland to
assimilate nutrients and purify water.
49. Conversion of the wetland site to silviculture is eco-
nomical and technologically feasible and is a. practica-
ble alternative to conversion of the wetland to agri-
cultural row crops.
Based upon the foregoing Findings of Fact, the Environmental
Management Commission makes the following:
CONCLUSIONS OF LAW
1. The Environmental management Commission has jurisdic-
tion over the subject matter and the parties in this matter.
2. The burden of proof is upon the Davises to show that
the proposed filling of the approximately ninety one acres
of freshwater wetlands would not violate the
anti-degradation policy stated in 15A NCAC 2B .0201(b) and
the State's water quality standards.
3. Commission rule 15A NCAC 2B .0109 allows the use of the
practicable alternatives test set forth in 40 CFR, Part 230,
Subparts A through F, in the agency's determination whether
the proposed conversion of freshwater wetlands would be
-14-
considered as removing an existing use in violation of the
anti-degradation water quality standard.
4. The substantial evidence in the record before the Com-
mission supports the determination that the proposed conver-
sion of ninety one acres of freshwater wetlands would remove
wildlife habitat, water storage capacity and water quality
protection uses in violation of the anti-degradation stan-
dard. found. in 15A NCAC 2B . 0201(b)-
5. The conversion of the ninety one acres of freshwater
wetlands would have significantly adverse effects on the
ecosystem diversity, productivity and stability by the
removal of wildlife habitat and the loss of the capacity of
the wetlands to assimilate nutrients, filter a.n.d purify
water.
6. The conversion of the ninety one acres of freshwater
wetlands to silviculture would continue the existing uses of
the wetlands, continue to be jurisdictional wetlands, and is
a practicable alternative having less adverse impact on the
wetlands and aquatic ecosystem than conversion to agricul-
tural row crops.
7. The proposed conversion of the ninety one acres of
freshwater wetlands to agricultural row crops will violate
the State's water quality standards by removing existing
uses and there exists a practicable alternative in
-15-
conversion to silviculture, therefore the requested. 401
Water Quality Certification should not issue.
FINAL AGENCY DECISION
Having considered the whole Official Record and the argu-
ments of the parties, the Environmental Management Commission
finds and concludes that the application for issuance of the 401
Water Quality Certification should be denied for the reason that
the proposed conversion of the ninety one acres of freshwater
wetlands in Hyde County would result in the removal of existing
uses in violation of the State's water quality standards and a.
practicable alternative exists in conversion to silviculture.
THEREFORE, IT IS ORDERED that the application of Calvin
Davis and George Davis for the 401 Water Quality Certification is
DENIED.
REASON WHY RECOMMENDED DECISION NOT ADOPTED
The Commission has adopted water quality standards that rec-
ognize the uses that have been made, are being made, or may in
the future be made of the waters of the State as authorized by
General Statute 5 143-214.1 and §303 of the Federal Water Pollu-
tion Control Act. The Commission shall consider the uses and.
value of fish and wildlife and their culture in adopting water
giiality standards. The Commission exercised its statutory
authority and adopted rules regarding water quality

-16-
certification, classification of waters and water quality stan-
dards in. 15A NCAC 2B .0100 and. .0200, et seq., and. 15A NCAC 2H
.0500. The credibility of the witnesses and the probative value
of particular testimony are for the agency to determine and it
may accept or reject in whole or in part the testimony of a wit-
ness. State ex rel. Commission of Insurance v. North Carolina.
Rate Bureau, 300 NC 381, 269 SE 2d 565 (1980)- The Commission
weighed the credibility and the testimony of each witness for the
petitioners and respondent and determined that the substantial
evidence supported the finding and conclusion that conversion of
the wetlands to agricultural row crops would remove the uses that
had been made and are being made of the wetlands and such removal
of ii.ses would violate the anti-degradation policy in the Commis-
sion's rules.
This the Z day of June, 1994.
D id . Moreau, Chairman
Environmental Management Commission
4 ?
-17-
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing FINAL AGENCY
DECISION was served on the parties and their attorneys by depos-
iting a copy in the United States Mail, first class, postage pre-
paid, or as otherwise indicated below and addressed as follows:
GEO. Thomas Davis, Jr. CERTIFIED MAIL
Davis & Davis RETURN RECEIPT REQUESTED
P.O. Bo,-,, 277
Swan. Quarter, North Carolina. 27885
Calvin B. Davis
Swan Quarter
North Carolina 27885
Lars P. Simonsen
Pritchett, Cooke & Burch
P.O. Drawer 100
Windsor, North Carolina 27983
US MAIL
Kathrine J. Cooper HAND DELIVERY
Special Deputy Attorney Genaerl
P.O. Box 629
Raleigh, North Carolina
Fred G. Morrison US MAIL
Administrative Law Judge
P.O. Drawer 27447
Raleigh, North Carolina 27611-7447
This the 6th day of June, 1994.
MICHAEL F. EASLEY
Attorney General
WJ kj?
r_ancis W. Crawley
Special Deputy Attorney General_
Post Office Box 620,
Raleigh, NC 27602-0629
[phone]
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
:b
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W.L. COOKE
STEPHEN R. BURCH
WILLIAM W. PRITCHETT, JR.
LLOYD C. SMITH, JR.
DAVID J. IRVINE, JR.-
STEPHANIE B. IRVINE*
LARS P. SIMONSEN
MELISSA L. SKINNER
*MEMBERS OF NC
AND VA BAR
PRITCHETT, COOKE & BURCH
ATTORNEYS AT LAW
203 DUNDEE STREET • POST OFFICE DRAWER 100
WINDSOR. NORTH CAROLINA 27983
TEL. ( 919) 794-3161
FAX. ( 919) 794-2392
July 29, 1994
Ms. Mary Brooke Lamson
Assistant District Counsel
Department of the Army
Wilmington District Corps of Engineers
P. 0. Box 1890
Wilmington, N. C. 28402-1890
FAX [phone]
Re: George T. Davis and Calvin B. Davis
Our File Number: 91-S-692
Dear Brooke:

?-
AUG i 1994.

J.A. PRITCHETT
(1897-1986)
I am in receipt of and appreciate your letter of July
28, 1994. Pursuant to our discussions as confirmed in your
letter, I have enclosed a copy of the proposal that my clients
have made to the North Carolina Department of Environment, Health
and Natural Resources regarding revisions to the proposed
conversion of their property in Hyde County to agricultural use.
You will note that this revised proposal reduces the
amount of land which will be put into cultivation from the full
91 acres down to roughly 70 acres. Approximately 20 acres will
remain undisturbed to preserve various uses on the property.
This undisturbed property will serve as a sediment and pollutant
filter, as well as a wildlife corridor and wildlife habitat.
Additionally, this roughly 20 acre "buffer" is located in what is
undisputedly the wettest portion of the property. Although I
know your client disputes the accuracy of the data compiled by my
clients regarding the hydrology of the property, I would
nevertheless point out that the property we are proposing to
convert to agricultural use is located primarily in what we
contend to be the uplands portions of the property.
I have enclosed a copy of the map which was contained
in the hydrology report prepared by Bud Needham, showing what we
contend to be the non-wetlands portions of the property. You
will note that the buffer zone will cut diagonally across the
property through what is undisputed to be wetlands. If I

correctly interpreted Colonel Tullock's June 8, 1993 letter, it
is my understanding that the Corps of Engineers agrees with our
determination that the portions of the property along Highway 264
are, in fact, uplands. If my interpretation is correct, then it
would appear that this revision to the project substantially
reduces the number of acres of wetlands that would be impacted by
the project. While we may have some disagreement as to the
number of acres impacted, I don't think that there can be any
dispute that these revisions substantially lessen the impact on
any of the wetlands that may be located on the property.
If there is any additional information that you or your
clients need with regards to this matter, feel free to call me.
It is my desire to have as full a consideration by your clients,
as well as the other objecting agencies, as possible so that we
can make the best effort possible to come up with a project that
is workable and acceptable. To the extent possible, I would like
to keep an open dialogue between the various agencies and my
clients so that we can appropriately and quickly respond to any
suggestions that are raised. If there is anything that I can do
to assist in this, please contact me. Lipshultz and I have
agreed to a 90 day stay of the pending lawsuit in order to
attempt to come up with a project that satisfies the State and
Federal Agencies such that the likelihood of obtaining a permit
is maximized. If it appears that we are making progress in this
regard, but additional time is necessary, I do not think there
will be any problem with extending the stay as necessary to
continue any good faith efforts towards a resolution of this
matter. I appreciate the Corps cooperation and your cooperation
in this matter.
If you have any questions or concerns about this
matter, feel free to call me.
Sincerely,
PRITCHETT, COOKE & BURCH
1? ' I
Lars P. Simonsen
LPS/jah
Enclosure
cc: Mr. Calvin B. Davis
Mr. George T. Davis
P. 0. Box 277
Swan Quarter, N. C. 27885
Mr. John R. Dorney
State of North Carolina
Department of Environment, Health and Natural Resources
P. 0. Box 29535
Raleigh, North Carolina 27626-0535

Davis & Davis
Attornevs at Law
GEORGE T. DAVIS (1908-1979)
GEO. THOMAS DAVIS, JR.
July 28, 1994
Mr. John R. Dorney
State of North Carolina
Department of Environment, Health
and Natural Resources
P. O. Box 29535
Raleigh, North Carolina 27626-0535
Re: §401 Water Quality Certification Conditions
Hyde County Project
DEM #91239, COE #19910764
Dear Mr. Dorney:
TELEPHONE [phone]
FACSIMILE [phone]
I
0 2 9 1994
My brother and I would offer you an alternate proposal concerning our §401
water quality certification. We propose to leave a block of land, averaging at least 150 feet
wide, running diagonally across the undeveloped portion of the land, running approximately
from the southeast corner of the undeveloped part to the northwest corner thereof. This
constitutes the lowest portion of our property. We would use ditches and dikes to border this
block on the northeast and southwest boundaries. We would run ditches into these "boundary
ditches" and direct the water flow to the northwest end of this block. We would breach the
dike near the northwest end and run the water flowing off of what is now the undeveloped land
through these breaches. We would provide one or more outlets at the southeast end of the
block into the ditch that runs along the east end of our land. This block would serve as a
filter through which the water running off of the presently undeveloped land would run prior
to exiting the property.
This offers several advantages for your office, not present in your proposal.
First, it would preserve the wettest of any wetland on the place; second, it will serve as a
wildlife corridor across the whole width of our place; third, it would be a much more effective
filter, because of the great length; and, fourth, it preserves some of the scattered cypress trees
on the place.
Enclosed is a sketch of our proposal.
Of course, this proposal is contingent on our getting the necessary state and
federal certificates, permits, etc. to clear and farm the rest of the property, as well as any such
certificates, permits, etc. as may be necessary to carry out the actions described above.
Sincerely,
Geo. Thomas Davis, Jr.
POST OFFICE BOX 277
SWAN QUARTER, NORTH CAROLINA 27885
cc: Mr. Calvin B. Davis
Mr. Lars Simonson

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DATE:
SUBJECT:?S
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From:
?? t a STATE a'
.1? North Carolina Department of Environment,
Health, and Natural Resources
Printed on Recycled Paper
E __ , I
August 3, 1994
Office of Counsel
Mr. Lars P. Simonsen
Pritchett, Cooke & Burch
Attorneys at Law
203 Dundee Street
Post Office Drawer 100
Windsor. North Carolina 27883
Re: Action ID 199101764
Mr. George T. Davis and Mr.
Your Office File: 91-S-692
Dear Mr. Simonsen:
Calvin B. Davis
Thank you for your letter of July 29, 1994. As you, Mr. David Irvine,
and I discussed in our telephone conversation of August 1, 1994, Mr. Raleigh
Bland will attempt to arrange a site inspection or inspections to the property
with your client, Mr. Calvin Davis.
One purpose of the visit will be to make a preliminary assessment,
if possible, of the impact to the wetlands caused by the new ditch legally
constructed in the prior converted (PC) area of the Davis property. You have
indicated that your clients may have some well monitoring data which the
Corps has not yet reviewed; if that is indeed the case, that information would
be helpful to Mr. Bland. Mr. Bland may be accompanied on this visit by
Mr. Mickey Sugg, who is now the Corp's area coordinator for Hyde County.
In addition, we discussed the area in the southwestern portion of the
property, adjacent to U.S. Highway 264. The Wilmington District acknowledges,
as it has in the past, that there is some high ground in this vicinity.
Neither the Corps nor your clients' consultant has ever made a determination
of the exact location or extent of that high ground. You should also be aware
that the only final wetland determination in effect on the site was the
District Engineer's determination that the area in the immediate vicinity of
the violation, consisting of the unauthorized ditch and adjacent spoil piles,
was a wetland prior to being disturbed. Since that determination, your client
has restored that area, and legally constructed another, larger, drainage
ditch in the PC area, which may be impacting the hydrology of the site.
Messrs. Bland and Sugg will inspect the site for the purpose of determining
the best means and time frame for delineating the wetlands on the site.
Mr. Tom Davis has advised the District that his brother is out of town
for the remainder of the week, and will contact Mr. Bland on his return to
schedule the site inspection. The District would prefer to have at least one
of the property owners present during that inspection.
r, ?r
,2,
Once Mr. Bland has had an opportunity to gather information on the
physical condition of the property in light of the drainage ditch constructed
in the PC area, the District will be in a better position to provide comments
on the proposal your client submitted to Mr. John Dorney by letter dated July
28, 1994. The District can, however, offer the following preliminary
comments prior to Mr. Bland's site inspection.
As explained in the District Engineer's letter of April 24, 1991, the
Corps and the U.S. Environmental Protection Agency (EPA) entered into a
memorandum of agreement (MOA) concerning the type and level of mitigation
necessary to comply with the 404(b)(1) guidelines. Pursuant to that MOA, your
clients will have to submit information on the avoidance and minimization of
wetland impacts, and on any proposed compensatory mitigation for wetland
losses that cannot be avoided. A review of the file indicates that the
Davises did submit some information with regard to the purpose of their
project; any additional information provided in your dealings with the State
would be helpful. I can find no proposals for compensatory mitigation in our
file on this matter. If you need additional information, please let me know.
In addition, a preliminary review of the plan showing the proposed 150
foot wide corridor running diagonally through the property, raises the
question of how your clients propose to ensure that the corridor does not
drain as a result of the proposed ditches. We seriously question that a dike
will be sufficient to prevent such drainage.
Finally, you are of course aware that no permit can be issued without
the issuance of a 401 Water Quality and a consistency determination from the
State of North Carolina. Your clients are in the process of attempting to
obtain a 401 certification; however, I am not sure of the status of the
consistency determination. That issue will have to be addressed prior to
issuance of a Department of the Army permit.
I do not expect an answer to these concerns at this time; I suspect it
will be more productive to allow your clients and Messrs. Bland and Sugg to
discuss these matters once they have had a chance to assess the site in light
of the drainage ditch constructed in the PC area. I did, however, want to
alert you to these issues as soon-as possible.
The District has committed to providing your proposed plan to the
objecting agencies in this action. Again, I propose to postpone that action
until after Messrs. Bland and Sugg have inspected the site, so that we can
provide that additional information to the agencies when requesting their
comments. If you have any objections to that procedure, please let me know.
If you wish to discuss this matter, please contact me at [phone].
Sincerely,
Mary Brooke Lamson
Assistant District Counsel
t'
-3-
Copy Furnished:
Mr. Jon Lipschultz
U.S. Department of Justice
Environmental Defense Section
Post Office Box 23986
Washington, D.C. 20026-3986
Mr. John Dorney
Division of Environmental Management
North Carolina Department of Environment,
Health and Natural Resources
Post Office Box 27687
Raleigh, North Carolina 27611-7687
DaLVIS & Ravi S
Afforner aai Law
OCOIQOt T. DAVIS (1008-1976P)
a EO. THOMAS DAVIS, JA,
July 8, 1994
POST OFFICE BOX 277
BW.AN QUARTER, NORTH CAROLINA 27866
TELE'r-HONE 19191 828.3781
FACSIMILE (019) 926.34$1
Mr. John R. Dorney
State of. North Carolina
Department of Environment,
Health and Natural Resources
P. 0. Box 29535
Raleigh, North Carolina 27626-0535
Re: 401 Water Quality Certification Conditions
Hyde County Project
DEM #91239, COE # 19910764
Dear Mr. Dorney:
I got your letter of June.30, 1994, in the mail this
morning. Obviously I cannot repl.y:by July 7th. My brother has
been busy in the field since your June 10, 1994 letter.
We plan to continue to pursue this project and will
try to have you a more-detailed response shortly.
Sincerely,
cam-,,-,,./}'--?,
Geo. Thomas Davis, Jr.
GTDj r : kk
e ? 9+TE
.rp?n
JUL 1 9 1994
WETLANDS C00
State of North Carolina
MICHAEL F. EASLEY Department of Justice
ATTORNEY GENERAL P. O. BOX 629 REPLY TO: Kathryn Jones Cooper
RALEIGH Water and Land Section
2 7 602-062 9 Environmental Division
[phone]
[phone]-Fax
MEMORANDUM
TO: John Dorney
Wetlands Group
Division of Environmental Management
FROM: Kathryn Jones Cooper 101>
Special Deputy Attorney General
Water and Land Section
DATE: July 18, 1994
RE: George Thomas Davis and Calvin Blythe Davis, Petitioners v. North
Carolina Department of Environment, Health and Natural Resources,
Respondent, 91 EHR 0794, Hyde County
Attached is a copy of the following documents:
1. 6/23/94 cover letter from Lars Simonsen and attached Petition for
Judicial Review- in the above-referenced case;
2. Certified Copy of Record of Proceedings cover sheet which was
filed in Hyde County on July 8, 1994;
3. 7/14/94 letter from Lars Simonsen regarding briefing schedule and
his clients' intent to make a counter-offer to your settlement offer.
It looks like they may try to settle after all, and just filed the petition
to protect their rights. Let me know when you hear from them again.
If you have any questions, please call me at [phone].
KJC/klj
Attachments
ep:dorney2.kc
An Equal Opportunity / Affirmative'ACtion Employer ??
;r
PRITCHETT, COOKE & BURCH
ATTORNEYS AT LAW
203 DUNDEE STREET . POST OFFICE DRAWER 100
WINDSOR, NORTH CAROLINA 27983
TEL. [phone]
FAX. ( 919) 794-2392
W.L. COOKE
STEPHEN R. BURCH
WILLIAM W. PRITCHETT. JR.
LLOYD C. SMITH, JR.
DAVID J. JRVINE, JR.-
STEPHANIE B. IRVINE'
LARS P. SIMONSEN
MELISSA L. SKINNER
*MEMBERS OF NC
AND VA BAR
June 23, 1994
Ms. Lenora R. Bright
Clerk Superior Court of Hyde County
Hyde County Courthouse
P. 0. Box 337
Swan Quarter, N. C. 27885
J.A. PRITCHETT
(1897-1986)
RECEIVED
d?! 2 71994
N.C. ATTORNEY GENERAL
Environmental Mvkinn
Re: Davis and Davis vs. Department of Environment, Health
and Natural Resources, Division of Environmental
Management
Our File Number: 91-S-692
Dear Ms. Bright:
I have enclosed original and one copy of a Petition for
judicial review in the above case, pursuant to N.C.G.S. 150B-43.
I would appreciate your filing the same and returning the
conformed copy to me via the enclosed, self-addressed, stamped
envelope. By copy of this letter, I am serving the same upon the
other parties to this action via certified mail, return receipt
requested.
I appreciate your attention to this matter.
Sincerely,
PRITC ETT, COO & BURCH
_ l
Lars P. Simonsen
LPS/jah
Enclosures
r`
cc: Mr. George Thomas Davis
Mr. Calvin Blythe Davis
P. 0. Box 277
Swan Quarter, N. C. 27885
Ms. Francis W. Crawley
Special Deputy Attorney General
N. C. Department of Justice
P. 0. Box 629
Raleigh, N. C. 27602-0629
(by certified mail)
Ms. Katheryn Jones Cooper
Special Deputy Attorney General
N. C. Department of Justice
P. 0. Box 629
Raleigh, N. C. 27602-0629
(by certified mail)
: f
STATE OF NORTH-CAROLINA
COUNTY OF HYDE
CALVIN BLYTHE DAVIS and
GEORGE THOMAS DAVIS,
Petitioners,
V.
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION;-: _
- 94 CVS _ lZC p
NORTH CAROLINA DEPARTMENT
OF ENVIRONMENT, HEALTH AND
NATURAL RESOURCES,
DIVISION OF ENVIRONMENTAL
MANAGEMENT,
Respondent.
CERTIFIED COPY OF
RECORD OF PROCEEDINGS
RECEIVED
'JUL 1 3 1994
N.C. ATTORNEY GENERAL
Environmental Division
NOW COMES the respondent-agency, Environmental Management
Commission, pursuant to G.S. 150B-47 and G-.S. 143-215.5, and
transmits to the court the certified copy of the record of
proceedings before the agency.
This the V day of July, 1994.
MICHAEL F. EASLEY
Attorney General
! - L..v,
rancis W. Crawley
Special Deputy Attorney General
N. C. Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
[phone]
]PRITCHETT, COOKE & BURCH
ATTORNEYS AT LAW
203 DUNDEE STREET - POST OFFICE DRAWER 100
WINDSOR, NORTH CAROLINA 27983
TEL. [phone]
FAX. [phone]
W.L. COOKE J.A. PRITCHETT
STEPHEN R.BURCH (1897-.1986)
WILLIAM W. PRITCHETT, JR.
LLOYD C. SMITH, JR.
DAVID J. IRVINE, JR.-
STEPHANIE B. IRVINE`
LARS P. SIMONSEN
MELISSA L. SKINNER I
"MEMBERS OF NC
AND VA BAR
July 14, 1994 JUL 15 1994
N.C. xr LOONEY GENERA
Frw;ro,i neTltal Divi0con
Ms. Kathryn J. Cooper
Department of Justice
P. 0. Box 629
Raleigh, NC 27602-0629
Re: Davis and Davis vs. NCDEHNR
Our File Number: 91-S-692
Dear Kathryn:
I have enclosed your certified copy of the record of
proceedings which was filed in the above case. I greatly
appreciate your making this available to me for copying.
As to a briefing schedule, I would like to suggest that
we hold off on preparing and filing any briefs pending some
efforts at settling the disputes between the parties. As you may
know, John Dorney has made an offer of settlement to my clients
and my,clients are considering the same and are looking to make a
reasonable counter-offer, which we hope will be satisfactory to
all concerned. Unless I am mistaken, the next session of Civil
Superior Court in Hyde County will be in December. As such, it
does not seem that there is any great necessity for expediting
the filing of briefs by both parties. I would suggest that we
allow a reasonable amount of time for settlement discussions, and
if it appears that we will be unable to reach settlement, that we
once again discuss a briefing schedule for the appeal. Please
let me know your thoughts with regards to this matter.
Additionally, if it appears that we are unable to settle the case
we may want to consider requesting the Court to hold a special
session for the hearing of this case so that we do not have to
wait until December for a hearing.
I appreciate your providing me with a. copy of the
record in the above case for copying. I look forward to hearing
from you with regards to your thoughts on the briefing schedule.
Sincerely.
PRITC ETT, COOKE & BURCH
Lars P. Simonsen
LPS/jah
Enclosures
cc: Mr. George T. Davis
Mr. Calvin B. Davis
P. 0. Box 277
Swan Quarter, NC 27885

. t

STATE OF NORTH CAROLINA
COUNTY OF HYDE
Calvin Blythe Davis and
George Thomas Davis,
Petitioners
File #
Film #
IN THE GENERAL COURT OF 'USTICE
SUPERIOR COURT DIVISION
VS. PETITION FOR JUDICIAL REVIEW
North Carolina Department of En,ironment,
Health and Natural Resources, Division of
Environmental Management,
Respondent
NOW COME the Petitioners pursuant to North Carolina General
Statute 150B-43, and petition the Court for judicial review of
the final decision of the Environmental Management Commission and
the Respondent, and in support of said Petition show unto the
Court as follows:
1. On May 7, 1991, the Petitioners, who are citizens and
residents of Hyde County, North Carolina, applied to the
Department of Army, Corps of Engineers for a Dredge and Fill
Permit under Section 404 of the Clean Water Act to allow the
conversion of property owned by Petitioners in Hyde County to
agricultural use.
2. Pursuant to this application for a 404 Permit, and as a
prerequisite to a 404 Permit, Petitioners also sought a Water
Quality Certification from the State of North Carolina pursuant
to Section 401 of the Clean Water Act. The Respondent Division
of Environmental Management is the agency responsible for making
1
Water Quality certifications pursuant to Section 401 of the Clean
Water Act.
3. By letter, dated August 13, 1991, the Respondent denied
Petitioners' application for 401-Water Quality Certification.
4. On August 21, 1991, the Petitioners filed a petition for
a contested case challenging the Respondent's denial of the
Petitioners' application for a 401 Certification.
5. The contested case herein came on for hearing before the
Honorable Fred J. Morrison, Jr., Administrative Law Judge, on
September 27, 1993. After having considered the evidence and
having heard arguments of counsel, Judge Morrison entered a
decision recommending that the Petitioners' application for 401
Certification was erroneously denied and that the same should be
granted.
6. On May 12, 1994, the Administrative Law Judge's
Recommended Decision was presented to the Environmental
Management Commission for its final decision. The Environmental
Management Commission reversed Judge Morrison's decision, thereby
affirming Respondent's denial of Petitioners' application for 401
Certification. A final written decision was signed by the
Chairman of the Environmental Management Commission on June 2,
1994.
7. Petitioners are aggrieved by the final decision in this
contested case and have exhausted all administrative remedies
made available to them by Statute or Agency Rule and are
therefore entitled to judicial review by Article 4 of Chapter
150B of the North Carolina General Statutes.
2

8. Petitioners except to the findings of fact numbered 35,
36, 37, 38, 40, 41, 43, 44, 48 and 49 contained in the Final
Decision. Petitioners except to conclusions of law numbered 2,
3, 4, 5, 6, and 7 in the Final Decision.
Petitioners specifically except to the Final Decision on the
grounds that Respondent:
(a) Exceeded its authority or jurisdiction by
considering' whether "practicable alternatives" to the
Petitioners' project existed in deciding whether to grant or deny
Petitioners' application for 401 Certification;
(b) Acted erroneously by considering "practicable
alternatives" in deciding whether to grant or deny 401
Certification;
(c) Failed to use proper procedure by considering
"practicable alternatives" in determining whether to grant or
deny 401 Certification;
(d) Acted arbitrarily or capriciously by applying the
"practicable alternatives analysis" in considering whether to
grant or deny 401 Certification;
(e) Failed to act as required by law or rule by
applying the "practicable alternatives test" in considering_____
whether to grant or deny Petitioners' application for 401
Certification;
(f) Acted erroneously, failed to use proper procedure,
and failed to act as required by law or rule by evaluating the
existing uses of the property by rating the property in the
3

condition it was presumed to be in on November 25, 1975, rather
than evaluating existing uses;
(g) Failed to act as required by law or ruled by
rating the property in the _"undisturbed condition it was
presumed to be in on November 25, 1975, rather than rating the
existing uses of the property in its present condition;
(h) Acted arbitrarily and/or capriciously by basing
its determination, concerning the effect the proposed conversion
of the property to agricultural use would have on the existing
uses of the property, upon presumptions not supported by
substantial evidence;
(i) Employed rules adopted in violation of the North
Carolina Administrative Procedure Act by adopting and employing
the Wetlands Rating System and the "Practicable Alternatives
analysis" without providing public notice and comment periods as
l_._riequired by N.C.G.S. 150B-21.2;
(j) Otherwise exceeded its authority and jurisdiction,
acted erronerously, failed to use proper procedure, acted
arbitrarily or capriciously, and failed to act as required by law
or rule;
(k) Failed to base its determination upon substantial
evidence on the record as a whole; and
(1) Rendered a decision which was affected by other
error of law.
(m) In the alternative, if Court finds that the North
Carolina General Statutes authorize the actions of the Respondent
??
CIO-,

in this case, the statutes violate the North Carolina
Constitution Article I section 6 and Article II section 1.
(n) In the alte-rnative, if the Court finds that the
North Carolina General Statutes__ authorize the actions of the
Respondent in this case, Respondent erred in its finding that
"practicable alternatives" to Petitioners' project existed.
(o) In the alternative, if the Court finds that the
Wetlands Rating System adopted and employed by Respondents does
not violate the North Carolina Administrative Procedure Act,
Respondent's application of said Rating System was not based upon
substantial evidence.
WHEREFORE Petitioners respectfully pray the Court to:
1. Reverse the decision of the Environmental Management
Commission and the Respondent.
2.. Order the Environmental Management Commission and
Respondent to issue a 401 Certification to Petitioners.
3. Assess attorneys fees and costs against Respondent
pursuant to N.C.G.S. 6-19.1.
4. Grant such other and further relief as the Court deems
just and proper.
5
-Jul. 3 '94 4:48 0000 THOMAS DAUIS ATTORNEY TEL [phone] P. 1/ 1
Davis &. Davis
Attorne s ai Law
OCOFtOC T. DAVIS 11608-19791
dPO. THOMAS DAVIS, Jf4.
July 8, 1994
Mr. John R. Dorney
State of North Carolina
Department of Environment,
Health and Natural Resources
P. O. Box 29535
Raleigh, North Carolina 27626-0535
POST OFFICE BOX 477
5W,AN OLARTER, NORTH CAROLINA 87996
TELE'?FiONE (0191 926-3791
FACSIMILE 10191 986.3451
Re: 401 Water Quality Certification Conditions
Hyde County Project
DEM #91239, COP # 19910764
Dear Mr. Dorney:
I got your letter of June 30, 1994, in the mail this
morning. Obviously I cannot reply by July 7th. My brother has
been busy in the field since your June 10, 1994 letter.
We plan to continue to pursue this project and will
try to have you a more detailed response shortly.
Sincerely,
Geo. Thomas Davis, Jr.
GTD j r : kk
C 'n
doa STAT[o ? .
d
1 9 1994
State of North Carolina
MICHAEL F. EASLEY Department of Justice
ATTORNEY GENERAL P. O. BOX 629 REPLY TO: Kathryn Jones Cooper
RALEIGH Water and Land Section
2 7 602-062 9 Environmental Divisi.: n
[phone]
[phone]-Fax
MEMORANDUM
TO: John Dorney
Wetlands Group
Division of Environmental Management
FROM: Kathryn Jones Cooper 161-c-
Special Deputy Attorney General
Water and Land Section
DATE: July 18, 1994
RE: George Thomas Davis and Calvin Blythe Davis, Petitioners v. North
_Carolina Department of Environment, Health and Natural Resources,
Respondent, 91 EHR 0794, Hyde County
Attached is a copy of the following documents:
1. 6/23194 cover letter from Lars Simonsen and attached Petition for
Judicial Review in the above-referenced case;
2. Certified Copy of Record of Proceedings cover sheet which was
filed in Hyde County on July 8, 1994;
3. 7/14/94 letter from Lars Simonsen regarding briefing schedule and
his clients' intent to make a counter-offer to your settlement offer.
It looks like they may try to settle after all, and just filed the petition
to protect their rights. Let me know when you hear from them again.
If you have any questions, please call me at [phone].
KJC/klj
Attachments
ep:dorney2.kc
An Equal Opportunity / Affirmative Action Employer ??

PRITCHETT, COOKE & BURCH
ATTORNEYS AT LAW
203 DUNDEE STREET • POST OFFICE DRAWER 100
WINDSOR, NORTH CAROLINA 27983
TEL. [phone]
FAX. ( 919) 794-2392
W.L. COOKE
STEPHEN R. BURCH
WILLIAM W. PRITCHETT, JR.
LLOYD C. SMITH, JR.
DAVID J. IRVINE, JR.-
STEPHANIE S. IRVINE*
LARS P. SIMONSEN
MELISSA L. SKINNER
*MEMBERS OF NO
AND VA BAR
June 23, 1994
Ms. Lenora R. Bright
Clerk Superior Court of Hyde County
Hyde County Courthouse
P. 0. Box 337
Swan Quarter, N. C. 27885
J.A. PRITCHETT
(1897-1986)
RECEIVED
JON 2 71994
N.C. ATTORNEY GENERAL
Environmental IliviOnn
Re: Davis and Davis vs. Department of Environment, Health
and Natural Resources, Division of Environmental
Management
Our File Number: 91-S-692
Dear Ms. Bright:
I have enclosed original and one copy of a Petition for
judicial review in the above case, pursuant to N.C.G.S. 150B-43.
I would appreciate your filing the same and returning the
conformed copy to me via the enclosed, self-addressed, stamped
envelope. By copy of this letter, I am serving the same upon the
other parties to this action via certified mail, return receipt
requested.
I appreciate your attention to this matter.
Sincerely,
PRITC ETT, COO & BURCH
Lt
Lars P. Simonsen
LPS/jah
\"-Z6A-
Enclosures
r
cc: Mr. George Thomas Davis
Mr. Calvin Blythe Davis
P. O. Box 277
Swan Quarter, N. C. 27885
Ms. Francis W. Crawley
Special Deputy Attorney General
N. C. Department of Justice
P. O. Box 629
Raleigh, N. C. 27602-0629
(by certified mail)
Ms. Katheryn Jones Cooper
Special Deputy Attorney General
N. C. Department of Justice
P. O. Box 629
Raleigh, N. C. 27602-0629
(by certified mail)

STATE OF NORTH CAROLINA
COUNTY OF HYDE
CALVIN BLYTHE DAVIS and
GEORGE THOMAS DAVIS,
Petitioners,
v.
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
94 CVS _ 410
NORTH CAROLINA DEPARTMENT
OF ENVIRONMENT, HEALTH AND
NATURAL RESOURCES,
DIVISION OF ENVIRONMENTAL
MANAGEMENT,
Respondent.
CERTIFIED COPY OF
RECORD OF PROCEEDINGS
RECEM'"D
i
i
JUL 1 t 1994
N.C. ATTORNEY GENERAL
Environmental Division
NOW COMES the respondent-agency, Environmental Management
Commission, pursuant to G.S. 150B-47 and G.S. 143-215.5, and
transmits to the court the certified copy of the record of
proceedings before the agency.
This the 7!? day of July, 1994.
MICHAEL F. EASLEY
Attorney General
rancis W. Crawley
Special Deputy Attorney General
N. C. Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
(919) 733--7247

W.L. COOKE
STEPHEN R. BURCH
WILLIAM W. PRITCHETT, JR.
LLOYD C. SMITH, JR.
DAVID J. IRVINE, JR.-
STEPHANIE B. IRVINE*
LARS P. SIMONSEN
MELISSA L. SKINNER
'MEMBERS OF NC
AND VA BAR
PRITCHETT, COOKE & BURCH
ATTORNEYS AT LAW
203 DUNDEE STREET • POST OFFICE DRAWER 100
WINDSOR, NORTH CAROLINA 27983
TEL. [phone]
FAX. ( 919) 794-2392
July 14, 1994
Ms. Kathryn J. Cooper
Department of Justice
P. 0. Box 629
Raleigh, NC 27602-0629
Re: Davis and Davis vs. NCDEHNR
Our File Number: 91-S-692
Dear Kathryn:
J.A. PRITCHETT
(1897-1986)
E C E I V
J U L 1 5 1994
N.C. xi i'O NEY GENERAL
Fr,rro9me,,r}a; Oi,t;cinn
I have enclosed your certified copy of the record of
proceedings which was filed in the above case. I greatly
appreciate your making this available to me for copying.
As to a briefing schedule, I would like to suggest that
we hold off on preparing and filing any briefs pending some
efforts at settling the disputes between the parties. As you may
know, John Dorney has made an offer of settlement to my clients
and my clients are considering the same and are looking to make a
reasonable counter-offer, which we hope will be satisfactory to
all concerned. Unless I am mistaken, the next session of Civil
Superior Court in Hyde County will be in December. As such, it
does not seem that there is any great necessity for expediting
the filing of briefs by both parties. I would suggest that we
allow a reasonable amount of time for settlement discussions, and
if it appears that we will be unable to reach settlement, that we
once again discuss a briefing schedule for the appeal. Please
let me know your thoughts with regards to this matter.
Additionally, if it appears that we are unable to settle the case
we may want to consider requesting the Court to hold a special
session for the hearing of this case so that we do not have to
wait until December for a hearing.
• A
A
w Y
I appreciate your providing me with a copy of the
record in the above case for copying. I look forward to hearing
from you with regards to your thoughts on the briefing schedule.
Sincerely,
PRITC ETT, COOKE & BURCH
Lars P. Simonsen
LPS/jah
Enclosures
cc: Mr. George T. Davis
Mr. Calvin B. Davis
P. 0. Box 277
Swan Quarter, NC 27885

r
STATE OF NORTH CAROLINA
COUNTY OF HYDE
Calvin Blythe Davis and
George Thomas Davis,
Petitioners
vs.
File #
Film #
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
PETITION FOR JUDICIAL REVIEW
North Carolina Department of Environment,
Health and Natural Resources, Division of
Environmental Management,
Respondent

NOW COME the Petitioners pursuant to North Carolina General
Statute 150B-43, and petition the Court for judicial review of
the final decision of the Environmental Management Commission and
the Respondent, and in support of said Petition show unto the
Court as follows:
1. On May 7, 1991, the Petitioners, who are citizens and
residents of Hyde County, North Carolina, applied to the
Department of Army, Corps of Engineers for a Dredge and Fill
Permit under Section 404 of the Clean Water Act to allow the
conversion of property owned by Petitioners in Hyde County to
agricultural use.
2. Pursuant to this application for a 404 Permit, and as a
prerequisite to a 404 Permit, Petitioners also sought a Water
Quality Certification from the State of North Carolina pursuant
to Section 401 of the Clean Water Act. The Respondent Division
of Environmental Management is the agency responsible for making
1
x
Water Quality Certifications pursuant to Section 401 of the Clean
Water Act.
3. By letter, dated August 13, 1991, the Respondent denied
Petitioners' application for 401 Water Quality Certification.
4. On August 21, 1991, the Petitioners filed a petition for
a contested case challenging the Respondent's denial of the
Petitioners' application for a 401 Certification.
5. The contested case herein came on for hearing before the
Honorable Fred J. Morrison, Jr., Administrative Law Judge, on
September 27, 1993. After having considered the evidence and
having heard arguments of counsel, Judge Morrison entered a
decision recommending that the Petitioners' application for 401
Certification was erroneously denied and that the same should be
granted.
6. On May 12, 1994, the Administrative Law Judge's
Recommended Decision was presented to the Environmental
Management Commission for its final decision. The Environmental
Management Commission reversed Judge Morrison's decision, thereby
affirming Respondent's denial of Petitioners' application for 401
Certification. A final written decision was signed by the
Chairman of the Environmental Management Commission on June 2,
1994.
7. Petitioners are aggrieved by the final decision in this
contested case and have exhausted all administrative remedies
made available to them by Statute or Agency Rule and are
therefore entitled to judicial review by Article 4 of Chapter
150B of the North Carolina General Statutes.
2
8. Petitioners except to the findings of fact numbered 35,
36, 37, 38, 40, 41, 43, 44, 48 and 49 contained in the Final
Decision. Petitioners except to conclusions of law numbered 2,
3, 4, 5, 6, and 7 in the Final Decision.
Petitioners specifically except to the Final Decision on the
grounds that Respondent:
(a) Exceeded its authority or jurisdiction by
considering whether "practicable alternatives" to the
Petitioners' project existed in deciding whether to grant or deny
Petitioners' application for 401 Certification;
(b) Acted erroneously by considering "practicable
alternatives" in deciding whether to grant or deny 401
Certification;
(c) Failed to use proper procedure by considering
"practicable alternatives" in determining whether to grant or
deny 401 Certification;
(d) Acted arbitrarily or capriciously by applying the
"practicable alternatives analysis" in considering whether to
grant or deny 401 Certification;
(e) Failed to act as required by law or rule by
applying the "practicable alternatives test" in considering
whether to grant or deny Petitioners' application for 401
Certification;
(f) Acted erroneously, failed to use proper procedure,
and failed to act as required by law or rule by evaluating the
existing uses of the property by rating the property in the
3
condition it was presumed to be in on November 25, 1975, rather
than evaluating existing uses;
(g) Failed to act as required by law or ruled by
rating the property in the "undisturbed" condition it was
presumed to be in on November 25, 1975, rather than rating the
existing uses of the property in its present condition;
(h) Acted arbitrarily and/or capriciously by basing
its determination, concerning the effect the proposed conversion
of the property to agricultural use would have on the existing
uses of the property, upon presumptions not supported by
substantial evidence;
(i) Employed rules adopted in violation of the North
Carolina Administrative Procedure Act by adopting and employing
the Wetlands Rating System and the "Practicable Alternatives
analysis" without providing public notice and comment periods as
required by N.C.G.S. 150B-21.2;
(j) Otherwise exceeded its authority and jurisdiction,
acted erronerously, failed to use proper procedure, acted
arbitrarily or capriciously, and failed to act as required by law
or rule;
(k) Failed to base its determination upon substantial
evidence on the record as a whole; and
(1) Rendered a decision which was affected by other
error of law.
(m) In the alternative, if Court finds that the North
Carolina General Statutes authorize the actions of the Respondent
4
in this case, the statutes violate the North Carolina
Constitution Article I section 6 and Article II section 1.
(n) In the alternative, if the Court finds that the
North Carolina General Statutes authorize the actions of the
Respondent in this case, Respondent erred in its finding that
"practicable alternatives" to Petitioners' project existed.
(o) In the alternative, if the Court finds that the
Wetlands Rating System adopted and employed by Respondents does
not violate the North Carolina Administrative Procedure Act,
Respondent's application of said Rating System was not based upon
substantial evidence.
WHEREFORE Petitioners respectfully pray the Court to:
1. Reverse the decision of the Environmental Management
Commission and the Respondent.
2. Order the Environmental Management Commission and
Respondent to issue a 401 Certification to Petitioners.
3. Assess attorneys fees and costs against Respondent
pursuant to N.C.G.S. 6-19.1.
4. Grant such other and further relief as the Court deems
just and proper.
5

PRITCHETT, COOKE & BURCH
ATTORNEYS AT LAW
203 DUNDEE STREET • POST OFFICE DRAWER 100
WINDSOR, NORTH CAROLINA 27983
TEL. [phone]
FAX. ( 919) 794-2392
W.L. COOKE
STEPHEN R. BURCH
WILLIAM W. PRITCHETT, JR.
LLOYD C. SMITH, JR.
DAVID J. IRVINE, JR.-
STEPHANIE B. IRVINE*
LARS P. SIMONSEN
MELISSA L. SKINNER
*MEMBERS OF NC
AND VA BAR
June 23, 1994
Ms. Lenora R. Bright
Clerk Superior Court of Hyde County
Hyde County Courthouse
P. 0. Box 337
Swan Quarter, N. C. 27885-
J.A. PRITCHETT
( 1897-19e6)
RECEIVED
JON 2 TIM
N.C. ATTORNEY GENERAL
Environmental nivionn
Re: Davis and Davis vs. Department of Environment, Health
and Natural Resources, Division of Environmental
Management
Our File Number: 91-S-692
Dear Ms. Bright:
I have enclosed original and one copy of a Petition for
judicial review in the above case, pursuant to N.C.G.S. 150B-43.
I would appreciate your filing the same and returning the
conformed copy to me via the enclosed, self-addressed, stamped
envelope. By copy of this letter, I am serving the same upon the
other parties to this action via certified mail, return receipt
requested.
I appreciate your attention to this matter.
Sincerely,
PRITC ETT, COO & BURCH
l
Lars P. Simonsen
LPS/jah
Enclosures
.a... . W
cc: Mr. George Thomas Davis
Mr. Calvin Blythe Davis
P. 0. Box 277
Swan Quarter, N. C. 27885
Ms. Francis W. Crawley
Special Deputy Attorney General
N. C. Department of Justice
P. 0. Box 629
Raleigh, N. C. 27602-0629
(by certified mail)
Ms. Katheryn Jones Cooper
Special Deputy Attorney General
N. C. Department of Justice
P. 0. Box 629
Raleigh, N. C. 27602-0629
(by certified mail)
r
STATE OF NORTH CAROLINA
COUNTY OF HYDE
File #
Film #
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
Calvin Blythe Davis and
George Thomas Davis,
Petitioners
VS.
PETITION FOR JUDICIAL REVIEW
North Carolina Department of Environment,
Health and Natural Resources, Division of
Environmental Management,
Respondent

NOW COME the Petitioners pursuant to North Carolina General
Statute 150B-43, and petition the Court for judicial review of
the final decision of the Environmental Management Commission and
the Respondent, and in support of said Petition show unto the
Court as follows:
1. On May 7, 1991, the Petitioners, who are citizens and
residents of Hyde County, North Carolina, applied to the
Department of Army, Corps of Engineers for a Dredge and Fill
Permit under Section 404 of the Clean Water Act to allow the
conversion of property owned by Petitioners in Hyde County to
agricultural use.
2. Pursuant to this application for a 404 Permit, and as a
prerequisite to a 404 Permit, Petitioners also sought a Water
Quality Certification from the State of North Carolina pursuant
to Section 401 of the Clean Water Act. The Respondent Division
of Environmental Management is the agency responsible for making
1
Y
Water Quality Certifications pursuant to Section 401 of the Clean
Water Act.
3. By letter, dated August 13, 1991, the Respondent denied
Petitioners' application for 401 Water Quality Certification.
4. On August 21, 1991, the Petitioners filed a petition for
a contested case challenging the Respondent's denial of the
Petitioners' application for a 401 Certification.
5. The contested case herein came on for hearing before the
Honorable Fred J. Morrison, Jr., Administrative Law Judge, on
September 27, 1993. After having considered the evidence and
having heard arguments of counsel, Judge Morrison entered a
decision recommending that the Petitioners' application for 401
Certification was erroneously denied and that the same should be
granted.
6. On May 12, 1994, the Administrative Law Judge's
Recommended Decision was presented to the Environmental
Management Commission for its final decision. The Environmental
Management Commission reversed Judge Morrison's decision, thereby
affirming Respondent's denial of Petitioners' application for 401
Certification. A final written decision was signed by the
Chairman of the Environmental Management Commission on June 2,
1994.
7. Petitioners are aggrieved by the final decision in this
contested case and have exhausted all administrative remedies
made available to them by Statute or Agency Rule and are
therefore entitled to judicial review by Article 4 of Chapter
150B of the North Carolina General Statutes.
2

8. Petitioners except to the findings of fact numbered 35,
36, 37, 38, 40, 41, 43, 44, 48 and 49 contained in the Final
Decision. Petitioners except to conclusions of law numbered 2,
3, 4, 5, 6, and 7 in the Final Decision.
Petitioners specifically except to the Final Decision on the
grounds that Respondent:
(a) Exceeded its authority or jurisdiction by
considering whether "practicable alternatives" to the
Petitioners' project existed in deciding whether to grant or deny
Petitioners' application for 401 Certification;
(b) Acted erroneously by considering "practicable
alternatives" in deciding whether to grant or deny 401
Certification;
(c) Failed to use proper procedure by considering
"practicable alternatives" in determining whether to grant or
deny 401 Certification;
(d) Acted arbitrarily or capriciously by applying the
"practicable alternatives analysis" in considering whether to
grant or deny 401 Certification;
(e) Failed to act as required by law or rule by
applying the "practicable alternatives test" in considering
whether to grant or deny Petitioners' application for 401
Certification;
(f) Acted erroneously, failed to use proper procedure,
and failed to act as required by law or rule by evaluating the
existing uses of the property by rating the property in the
3
r
condition it was presumed to be in on November 25, 1975, rather
than evaluating existing uses;
(g) Failed to act as required by law or ruled by
rating the property in the "undisturbed" condition it was
presumed to be in on November 25, 1975, rather than rating the
existing uses of the property in its present condition;
(h) Acted arbitrarily and/or capriciously by basing
its determination, concerning the effect the proposed conversion
of the property to agricultural use would have on the existing
uses of the property, upon presumptions not supported by
substantial evidence;
(i) Employed rules adopted in violation of the North
Carolina Administrative Procedure Act by adopting and employing
the Wetlands Rating System and the "Practicable Alternatives
analysis" without providing public notice and comment periods as
required by N.C.G.S. 150B-21.2;
(j) Otherwise exceeded its authority and jurisdiction,
acted erronerously, failed to use proper procedure, acted
arbitrarily or capriciously, and failed to act as required by law
or rule;
(k) Failed to base its determination upon substantial
evidence on the record as a whole; and
(1) Rendered a decision which was affected by other
error of law.
(m) In the alternative, if Court finds that the North
Carolina General Statutes authorize the actions of the Respondent
4
• r
in this case, the statutes violate the North Carolina
Constitution Article I section 6 and Article II section 1.
(n) In the alternative, if the Court finds that the
North Carolina General Statutes authorize the actions of the
Respondent in this case, Respondent erred in its finding that
"practicable alternatives" to Petitioners' project existed.
(o) In the alternative, if the Court finds that the
Wetlands Rating System adopted and employed by Respondents does
not violate the North Carolina Administrative Procedure Act,
Respondent's application of said Rating System was not based upon
substantial evidence.
WHEREFORE Petitioners respectfully pray the Court to:
1. Reverse the decision of the Environmental Management
Commission and the Respondent.
2. Order the Environmental Management Commission and
Respondent to issue a 401 Certification to Petitioners.
3. Assess attorneys fees and costs against Respondent
pursuant to N.C.G.S. 6-19.1.
4. Grant such other and further relief as the Court deems
just and proper.
5

This the 23 J
day of June, 1994.
PRITC TT, C FE BURCH
BY:
Lars P. Simonsen
State Bar No. 11455
S
David J. r ine, Jr.
State Bar o. 15907
Attorney for Petitioners
Post Office Drawer 100
Windsor, N. C. 27983
Telephone: [phone]
/usr/lps/suits/Davis,PJR/jah/91-S-692

State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
James B. Hunt, Jr., Governor
Jonathan B. Howes, Secretary
A. Preston Howard, Jr., P.E„ Director
June 10, 1994
Mr. Calvin and George Davis
P. 0. Box 277
Swan Quarter, N.C. 27885
Dear Mr. Davis:
A&i
a r r _. _
? R V
l
tl 7-j r
F I ^E VuPY
RE: 401 Water Quality Certification conditions
Permit application for wetland conversion to
agricultural land
Hyde County
DEM # 91239, COE # 199101764

Thank you for meeting Deborah Sawyer and myself at your
property on 31 May 1994 to try to determine the extent and design
of your project which could be permitted under our 401
Certification rules. The following approaches are presented for
your review and comment. We believe that a certain amount of
wetland fill can be allowed on this site without violation of
water quality standards but that the present plan (clearing of
approximately 91 acres of wetlands) needs to be modified. As we
discussed in the field, DEM's basic emphasis and responsibility
is water quality. The following suggestions for modifications of
your site plan are made in this light. The attached sketch maps
may help explain the options.
Option A: Create a 300 foot wide buffer adjacent to the
canal along the eastern side of the property. This buffer would
occupy about 15 acres of land (existing wetlands and existing
cropland) and serve to filter groundwater flow which would likely
carry soluble pollutants (such as nitrate and some pesticides) to
the canal and thereby to Lake Mattamuskeet. The existing ditches
which enter into the canal would be filled within 300 feet of the
canal and a new ditch would be dug parallel to the canal. This
ditch would allow excess water to be pumped into the canal near
US 264 from a sump or small pond. The remaining wetlands on the
site (about 84 acres) could then be converted to agricultural
land. The buffer would act as a water quality filter to protect
water quality. The buffer would have to be planted with hardwood
tree species such as cypress, black gum, willow and water oaks to
enhance and restore wetlands on the site to ensure adequate
functioning of the buffer.

P.O. Box 29535, Raleigh, North Carolina 27626-0535 Telephone [phone] FAX [phone]
An Equal Opportunity Affirmative Action Employer 50% recycled/ 10% post-consumer paper
Calvin and George Davis
Page 2
June 10, 1994
Option B. The existing and planned field ditches would be
plugged and a 300 foot wide buffer planted as above. Instead of
pumping the excess water, an area of wetlands would left in the
southeastern corner of the property adjacent to the canal. As I
recall, this is the lowest portion of the property and the entire
site "drains" toward this point. If the area can handle this
influx of water without pumping, then this design may be
sufficient. However if the SCS hydrologist believes that
drainage is needed, one small drain parallel to US 264 which
enters the canal would be approvable. However this ditch could
no't connect directly with the planned field ditches in the
cropland (newly developed or existing). Based on DEM's
understanding of the filtering abilities of pocosin-type
wetlands, we believe that this wetland filter should be about 20
acres in size to adequately treat the agricultural "runoff" and
goundwater flow from the agricultural land. This filter area
(and the canal buffer area) would result in about 168 acres of
cropland (existing and new) on this site. This would be an
increase from the 105 acres in cropland now.
As you can see, we are interested in reaching some agreement
with you which allows the conversion of the majority of the 91
acres of wetlands to agricultural land but still protects water
quality. Please review these design alternatives and inform us
as to their acceptability with respect to practicality. In
addition any suggestions as to other alternatives would be
welcomed. We look forward to working with you to a solution to
this problem.
Sincerely yours,
J hn R. Dorn y
Wetlands and clinical
davismod.ltr
Review Group
cc: Deborah Sawyer, DEM Washington Regional Office
Central Files
Kathryn Cooper, Attorney General's Office
Raleigh Bland, COE Washington Field Office
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State of North Carolina
Department of Environment, Health and Natural Resources
Division of Environmental Management
P.O. Box 29535
Raleigh, North Carolina 27626-0535
Training and Certification Unit
Wetlands and Technical Review Group
FAX # [phone]
I
TELECOPY TO:
FAX NUMBED
-? 32
FROM: PHONE:
NUMBER OF PAGES, INCLUDING THE COVER SHEET: J
Q
"W \ (zLj

QQ' - yxz

TRANSMISSION REPORT

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PRITCHETT, COOKE & BURCH
ATTORNEYS AT LAW
203 DUNDEE STREET • POST OFFICE DRAWER 100
WINDSOR, NORTH CAROLINA 27983
TEL. [phone]
FAX. ( 919) 794-2392
W.L. COOKE
STEPHEN R. BURCH
WILLIAM W. PRITCHETT, JR.
LLOYD C. SMITH, JR.
DAVID J. IRVINE, JR.-
STEPHANIE B. IRVINE`
LARS P. SIMONSEN
MELISSA L. SKINNER
'MEMBERS OF NO
AND VA BAR
June 23, 1994
AN 2 717!4
N.C. ATTORNEY GENERAL
Environmental nivi0tln
I appreciate your attention to this matter.
Sincerely,
PRITC ETT, COO & BURCH
l
Lars P. Simonsen
Ms. Lenora R. Bright
Clerk Superior Court of Hyde County
Hyde County Courthouse
P. 0. Box 337
Swan Quarter, N. C. 27885
Re: Davis and Davis vs. Department of Environment, Health
and Natural Resources, Division of Environmental
Management
Our File Number: 91-S-692
Dear Ms. Bright:
I have enclosed original, and one copy of a Petition for
judicial review in the above case, pursuant to N.C.G.S. 150B-43.
I would appreciate your filing the same and returning the
conformed copy to me via the enclosed, self-addressed, stamped
envelope. By copy of this letter, I am serving the same upon the
other parties to this action via certified mail, return receipt
requested.
LPS/jah
I...N
JUL 1 41994
is -
J.A. PRITCHETT
(1897-1986)
RECEIVED

Enclosures
Mr. George Thomas Davis
Mr. Calvin Blythe Davis
P. O. Box 277
Swan Quarter, N. C. 27885
Ms. Francis W. Crawley
Special Deputy Attorney General
N. C. Department of Justice
P. O. Box 629
Raleigh, N. C. 27602-0629
(by certified mail)
Ms. Katheryn Jones Cooper
Special Deputy Attorney General
N. C. Department of Justice
P. O. Box 629
Raleigh, N. C. 27602-0629
(by certified mail)
00,
STATE OF NORTH CAROLINA
COUNTY OF HYDE
Calvin Blythe Davis and
George Thomas Davis,
Petitioners
File #
Film #
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
vs. PETITION FOR JUDICIAL REVIEW
North Carolina Department of Environment,
Health and Natural Resources, Division of
Environmental Management,
Respondent

NOW COME the Petitioners pursuant to North Carolina General
Statute 150B-43, and petition the Court for judicial review of
the final decision of the Environmental Management Commission and
the Respondent, and in support of said Petition show unto the
Court as follows:
1. On May 7, 1991, the Petitioners, who are citizens and
residents of Hyde County, North Carolina, applied to the
Department of Army, Corps of Engineers for a Dredge and Fill
Permit under Section 404 of the Clean Water Act to allow the
conversion of property owned by Petitioners in Hyde County to
agricultural use.
2. Pursuant to this application for a 404 Permit, and as a
prerequisite to a 404 Permit, Petitioners also sought a Water
Quality Certification from the State of North Carolina pursuant
to Section 401 of the Clean Water Act. The Respondent Division
of Environmental Management is the agency responsible for making
1

Water Quality Certifications pursuant to Section 401 of the Clean
Water Act.
3. By letter, dated August 13, 1991, the Respondent denied
Petitioners' application for 401 Water Quality Certification.
4. On August 21, 1991, the Petitioners filed a petition for
a contested case challenging the Respondent's denial of the
Petitioners' application for a 401 Certification.
5. The contested case herein came on for hearing before the
Honorable Fred J. Morrison, Jr., Administrative Law Judge, on
September 27, 1993. After having considered the evidence and
having heard arguments of counsel, Judge Morrison entered a
decision recommending that the Petitioners' application for 401
Certification was erroneously denied and that the same should be
granted.
6. On May 12, 1994, the Administrative Law Judge's
Recommended Decision was presented to the Environmental
Management Commission for its final decision. The Environmental
Management Commission reversed Judge Morrison's decision, thereby
affirming Respondent's denial of Petitioners' application for 401
Certification. A final written decision was signed by the
Chairman of the Environmental Management Commission on June 2,
1994.
7. Petitioners are aggrieved by the final decision in this
contested case and have exhausted all administrative remedies
made available to them by Statute or Agency Rule and are
therefore entitled to judicial review by Article 4 of Chapter
150B of the North Carolina General Statutes.
2
. r-
8. Petitioners except to the findings of fact numbered 35,
36, 37, 38, 40, 41, 43, 44, 48 and 49 contained in the Final
Decision. Petitioners except to conclusions of law numbered 2,
3, 4, 5, 6, and 7 in the Final Decision.
Petitioners specifically except to the Final Decision on the
grounds that Respondent:
(a) Exceeded its authority or jurisdiction by
considering whether "practicable alternatives" to the
Petitioners' project existed in deciding whether to grant or deny
Petitioners' application for 401 Certification;
(b) Acted erroneously by considering "practicable
alternatives" in deciding whether to grant or deny 401
Certification;
(c) Failed to use proper procedure by considering
"practicable alternatives" in determining whether to grant or
deny 401 Certification;
(d) Acted arbitrarily or capriciously by applying the
"practicable alternatives analysis" in considering whether to
grant or deny 401 Certification;
(e) Failed to act as required by law or rule by
applying the "practicable alternatives test" in considering
whether to grant or deny Petitioners' application for 401
Certification;
(f) Acted erroneously, failed to use proper procedure,
and failed to act as required by law or rule by evaluating the
existing uses of the property by rating the property in the
3
t
condition it was presumed to be in on November 25, 1975, rather
than evaluating existing uses;
(g) Failed to act as required by law or ruled by
rating the property in the "undisturbed" condition it was
presumed to be in on November 25, 1975, rather than rating the
existing uses of the property in its present condition;
(h) Acted arbitrarily and/or capriciously by basing
its determination, concerning the effect the proposed conversion
of the property to agricultural use would have on the existing
uses of the property, upon presumptions not supported by
substantial evidence;
(i) Employed rules adopted in violation of the North
Carolina Administrative Procedure Act by adopting and employing
the Wetlands Rating System and the "Practicable Alternatives
analysis" without providing public notice and comment periods as
required by N.C.G.S. 150B-21.2;
(j) Otherwise exceeded its authority and jurisdiction,
acted erronerously, failed to use proper procedure, acted
arbitrarily or capriciously, and failed to act as required by law
or rule;
(k) Failed to base its determination upon substantial
evidence on the record as a whole; and
(1) Rendered a decision which was affected by other
error of law.
(m) In the alternative, if Court finds that the North
Carolina General Statutes authorize the actions of the Respondent
4
in this case, the statutes violate the North Carolina
Constitution Article I section 6 and Article II section 1.
(n) In the alternative, if the Court finds that the
North Carolina General Statutes authorize the actions of the
Respondent in this case, Respondent erred in its finding that
"practicable alternatives" to Petitioners' project existed.
(o) In the alternative, if the Court finds that the
Wetlands Rating System adopted and employed by Respondents does
not violate the North Carolina Administrative Procedure Act,
Respondent's application of said Rating System was not based upon
substantial evidence.
WHEREFORE Petitioners respectfully pray the Court to:
1. Reverse the decision of the Environmental Management
Commission and the Respondent.
2. Order the Environmental Management Commission and
Respondent to issue a 401 Certification to Petitioners.
3. Assess attorneys fees and costs against Respondent
pursuant to N.C.G.S. 6-19.1.
4. Grant such other and further relief as the Court deems
just and proper.
5
t
J This the 2 day of June, 1994.
PRITC TT, C E BURCH
BY:
Lars P. Simonsen
State Bar No. 11455
David J. r ine, Jr.
State Bar o. 15907
Attorney for Petitioners
Post Office Drawer 100
Windsor, N. C. 27983
Telephone: [phone]
/usr/lps/suits/Davis,PJR/jah/91-S-692
6

Davis. & Davis
Attorneys at Law
GEORGE T. DAVIS (1908-1979)
GEO. THOMAS DAVIS, JR.
July 8, 1994
L't l? LS?U U I4 ,I
1994
POST OFFICE BOX 277
1pJ d,EiU` 011 CSWAN QUARTER, NORTH CAROLINA 27885
?,,..?... IEL'a TELEPHONE [phone]
FACSIMILE [phone]
Mr. John R. Dorney
State of North Carolina
Department of Environment,
Health and Natural Resources
P. 0. Box 29535
Raleigh, North Carolina 27626-0535
Re: 401 Water Quality Certification Conditions
Hyde County Project
DEM #91239, COE # 19910764
Dear Mr. Dorney:
I got your letter of June 30, 1994, in the mail this
morning. Obviously I cannot reply by July 7th. My brother has
been busy in the field since your June 10, 1994 letter.
We plan to continue to pursue this project and will
try to have you a more detailed response shortly.
Sincerely,
Geo. Thomas Davis, Jr.
GTDj r : kk
State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Environmental Management
James B. Hunt, Jr., Governor
Jonathan B. Howes, Secretary
A. Preston Howard, Jr., P.E., Director
June 30, 1994
Mr. Calvin and George Davis
P.O. Box 277
Swan Quater, N.C. 27885
Dear Mr. Davis:
A INX.AA
710?'A
4V
?EHNR
RE: 401 Water Quality Certification conditions
Hyde County project
DEM #91239, COE #199101764
On 10 June 1994, I wrote you concerning possible 401
Certification conditions for your plans to convert 91 acres of
wetlands to agricultural land (copy attached). To date I have
not received a reply to my letter. Please advise me by July 7th
whether you still plan to pursue this project or whether you plan
to withdraw your plans for this land conversion.
I can be reached at 919-733-1786.
Thank You
Sincerely,
JoPn R. Dorney
cc: Deborah Sawyer, DEM WaRO
Central Files
Kathryn Cooper, Attorney General's Office
Raleigh Bland, COE Washington Field Office
P.O. Box 29535, Raleigh, North Carolina 27626-0535 Telephone [phone] FAX [phone]
An Equal Opportunity Affirmative Action Employer 50% recycled/ 10% post-consumer paper
State of North Carolina
Department of Environment,
Health and Natural Resources 1 1*7
Division of Environmental Management
James B. Hunt, Jr., Governorry Jonathan B, Howes, Secreta 1:3 FE NJ F1
A, Preston Howard, Jr., P.E., Director
June 10, 1994
Mr. Calvin and George Davis. FILE
P. O. Box 277
Swan Quarter, N.C. 27885
Dear Mr. Davis:
RE: 401 Water Quality Certification conditions
Permit application for wetland conversion to
agricultural land
Hyde County
DEM # 91239, COE # 199101764
Thank you for meeting Deborah Sawyer and myself at your
property on 31 May 1994 to try to determine the extent and design
of your project which could be permitted under our 401
Certification rules. The following approaches are presented for
your review and comment. We believe that a certain amount of
wetland fill can be allowed on this site without violation of
water quality standards but that the present plan (clearing of
approximately 91 acres of wetlands) needs to be modified. As we
discussed in the field, DEM's basic emphasis and responsibility
is water quality. The following suggestions for modifications of
your site plan are made in this light. The attached sketch maps
may help explain the options.
Option A: Create a 300 foot wide buffer adjacent to the
canal along the eastern side of the property. This buffer would
occupy about 15 acres of land (existing wetlands and existing
cropland) and serve to filter groundwater flow which would likely
carry soluble pollutants (such as nitrate and some pesticides) to
the canal and thereby to Lake Mattamuskeet. The existing ditches
which enter into the canal would be filled within 300 feet of the
canal and a new ditch would be dug parallel to the canal. This
ditch would allow excess water to be pumped into the canal near
US 264 from a sump or small pond. The remaining wetlands on the
site (about 84 acres) could then be converted to agricultural
land. The buffer would act as a water quality filter to protect
water quality. The buffer would have to be planted with hardwood
tree species such as cypress, black gum, willow and water oaks to
enhance and restore wetlands on the site to ensure adequate
functioning of the buffer.
P.O. Box 29535, Raleigh, North Carolina 27626-0535 Telephone [phone] FAX [phone]
An Equal Opportunity Affirmative Action Employer 50% recycled/ l 0% post-consumer paper

Calvin and George Davis
Page 2
June 10, 1994
Option B. The existing and planned field ditches would be
plugged and a 300 foot wide buffer planted as above. Instead of
pumping the excess water, an area of wetlands would left in the
southeastern corner of the property adjacent to the canal. As I
recall, this is the lowest portion of the property and the entire
site "drains" toward this point. If the area can handle this
influx of water without pumping, then this design may be
sufficient. However if the SCS hydrologist believes that
drainage is needed, one small drain parallel to US 264 which
enters the canal would be approvable. However this ditch could
not connect directly with the planned field ditches in the
cropland (newly developed or existing). Based on DEM's
understanding of the filtering abilities of pocosin-type
wetlands, we believe that this wetland filter should be about 20
acres in size to adequately treat the agricultural "runoff" and
goundwater flow from the agricultural land. This filter area
(and the canal buffer area) would result in about 168 acres of
cropland (existing and new) on this site. This would be an
increase from the 105 acres in cropland now.
As you can see, we are interested in reaching some agreement
with you which allows the conversion of the majority of the 91
acres of wetlands to agricultural land but still protects water
quality. Please review these design alternatives and inform us
as to their acceptability with respect to practicality. In
addition any suggestions as to other alternatives would be
welcomed. We look forward to working with you to a solution to
this problem.
Sincerely yours,
J hn R. Dortny
Wetlands anclinical
davismod.ltr
Review Group
cc: Deborah Sawyer, DEM Washington Regional Office
Central Files
Kathryn Cooper, Attorney General's Office
Raleigh Bland, COE Washington Field Office
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State of North Carolina
Department of Environment, Health and Natural Resources
Division of Environmental Management
P.O. Box 29535
Raleigh, North Carolina 27626-0535
Training and Certification Unit
Wetlands and Technical Review Group
TELECOPY TO:
FAX NUMBER:-
FROM:-
FAX FAX # [phone]

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PHONE:
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NUMBER OF PAGES, INCLUDING THE COVER SHEET:

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Note for John Dorney
From: Greg Thorpe on Tue, May 31, 1994 11:31 AM
Subject: RE: Davis 401 Denial Case
To: John Dorney
Cc: Boyd DeVane
The message that I've gotten from both SWT & Preston is that we
are to find a way to come up with an APPROVABLE (acceptable) 401
for the Davis project. If you want to attempt the compromise
avenue first, that's fine. I'll double check with Tedder, but
in the meantime, the message (& it was fairly loud & clear) was
that we were to find a soluiton. I quote, "NO ONE wants to go
to court on this one" (SWT).
From: Boyd DeVane on Tue, May 31, 1994 9:12 AM
Subject: RE: Davis 401 Denial Case
To: John Dorney
Cc: Greg Thorpe
I was looking over my E mail for an old message and found this
message that I had never read. Sorry, I don't know how that
happened. I think that everyone agrees with your assessment. If
you think I need to let tedder know, I will ask Greg to run it
by him. I got the impression that Tedder was expecting you to
take the lead on contacting these people.
From: John Dorney on Fri, May 13, 1994 8:09 AM
Subject: Davis 401 Denial Case
To: Boyd DeVane
Subtitled: Now that we've won, let's surrender!
Ron and I agree that DEM (we and Washington Regional Office
staff) should approach the Davis' and try to negotiate a
compromise solution to allow them to develop some of their
property into cropland with BMPs and leave the remainder in
wetlands. We believe that we've proven our points (legal and
technical) before the EMC but the next round (appeal to
Circuit[?] Court) is not worth the staff time or risk relative
to the proposed rules. It is possible (of course) that the
Davis' will refuse to compromise. In that case, we can reassess
the need to go to court. If you and Greg agree, please send this
message to Steve and Preston to get their views. If this
approach is approved, I'll call Mr. Davis next week. I'd prefer
to work directly with Mr. Davis rather than his lawyer or
cousultants.
Page: 1
-----------------------------------------------------------------
Note for John Dorney
From: Greg Thorpe on Fri, May 13, 1994 12:44 PM
Subject: Davis project
To: John Dorney
Cc: Boyd DeVane; Ron Ferrell
SWT, Preston, Dan Oakley & some EMC members have all sent
messages (one way or another) that staff (you & Ron) need to get
in touch with the Davises and figure out how to come up with a
conditioned 401 that is approvable. NO ONE wants this case to
go to court. Please handle & keep us posted. Thanks! Any
comments? Words of wisdom?
Page: 1
State of North Carolina
Department of Environment, Health and Natural Resources
Division of Environmental Management
P.O. Box 29535
Raleigh, North Carolina 27626-0535
Training and Certification Unit
Wetlands and Technical Review Group
FAX # [phone]
TELECOPY TO: U4-w o f
FAX NUMBER:
PHONE: q f q --)33 - I ?b?
V I
NUMBER OF PAGES, INCLUDING THE COVER SHEET:
r
June 6, 1994
Mr. Calvin and George Davis
P. 0. Box 277
Swan Quarter, N.C. 27885
Dear Mr. Davis:
RE: 401 Water Quality Certification conditions
Permit application for wetland conversion to
agricultural land
Hyde County
DEM # 91239, COE # 199101764
Thank you for meeting Deborah Sawyer and myself at your
property on 31 May 1994 to try to determine the extent and design
of your project which could be permitted under our 401
Certification rules. The following approaches are presented for
your review and comment. We believe that a certain amount of
wetland fill can be allowed on this site without violation of
water quality standards but that the present plan (clearing of
approximately 91 acres of wetlands) needs to be modified. As we
discussed in the field, DEM's basic emphasis and responsibility
is water quality. The following suggestions for modifications of
your site plan are made in this light. The attached sketch maps
may help explain the options.
Option A: Create a 300 foot wide buffer adjacent to the
canal along the eastern side of the property. This buffer would
occupy about 15 acres of land (existing wetlands and existing
cropland) and serve to filter groundwater flow which would likely
carry soluble pollutants (such as nitrate and some pesticides) to
the canal and thereby to Lake Mattamuskeet. The existing ditches
which enter into the canal would be filled within 300 feet of the
canal and a new ditch would be dug parallel to the canal. This
ditch would allow excess water to be pumped into the canal near
US 264 from a sump or small pond. The remaining wetlands on the
site (about 84 acres) could then be converted to agricultural
land. The buffer would act as a water quality filter to protect
water quality. The buffer would have to be planted with hardwood
tree species such as cypress, black gum, willow and water oaks to
enhance and restore wetlands on the site to ensure adequate
functioning of the buffer.
Option B. The existing and planned field ditches would be
plugged and a 300 foot wide buffer planted as above. Instead of
pumping the excess water, an area of wetlands (size to be
determined) would left in the southeastern corner of the property
adjacent to the canal. As I recall, this is the lowest portion
of the property and the entire site "drains" toward this point.
If the area can handle this influx of water without pumping, then
this design may be sufficient. However if the SCS hydrologist
believes that drainage is needed, one small drain parallel to US
264 which enters the canal would be approvable. However this
ditch could not connect directly with the planned field ditches
in the newly developed cropland. Based on our understanding of
the filtering abilities of pocosin-type wetlands, we believe
that this wetland filter should be about 20 acres in size to
adequately treat the "runoff" and goundwater flow from the
agricultural land. This would leave about 161 (181-20 acres)
acres of cropland on this site.
As you can see, we are interested in reaching some agreement
with you which allows the conversion of the majority of the 91
acres of wetlands to agricultural land but still protects water
quality. Please review these design alternatives and inform us
as to their acceptability with respect to practicality. In
addition any suggestions as to other alternatives would be
welcomed. We look forward to working with you to a solution to
this problem.
Sincerely yours,
John R. Dorney
Wetlands and Technical Review Group
davismod.ltr
cc: Deborah Sawyer, WaRO
Central Files
Kathryn Cooper, Attorney General's Office
Raleigh Bland, COE Washington Field Office
Y
DEPARTMENT OF THE ARMY 1a1?200
Wilmington District, Corps of Engine
Post Office Box 1890
Wilmington, North Carolina 28402 90 VN?991 ?;J14
A ? - Eo N
Action ID No. 199101764 ` Qgk? 1991
Q?er?;?o99 O??
PUBLIC NOTICE
MR. GEORGE THOMAS DAVIS, JR. and MR. CALVIN BLYTHE DAVIS, Post
Office Box 277, Swan Quarter, North Carolina 27885, have applied for an
after-the-fact Department of the Army (DA) permit TO PLACE EXCAVATED
MATERIALS IN PREVIOUSLY LOGGED WETLANDS, HAVING A COMMENCED CONVERSION
STATUS, ADJACENT TO LAKE MATTAMUSKEET, NEAR SWAN QUARTER, Hyde County, North
Carolina.
This public notice does not imply, on the parts of the Corps of
Engineers or other agencies, either favorable or unfavorable opinion of the
work performed; but it is issued to solicit comments on the factors listed
above on which a final decision will be based. Legal action has been
suspended pending the outcome of this consideration.
The following description of the work is taken from data provided by
the applicant and from information obtained during site visits by a
representative of the Corps of-Engineers. The affected property is located
on the north side of U.S. Highway 264, approximately one mile west of N.C.
Highway 94 and 6.5 miles east of Swan Quarter, in Hyde County, North
Carolina. The existing, unauthorized work consists of the discharge of
material generated through excavation of an approximate 4,000-foot-long,
6-foot top width, 1-1/2-foot bottom width, 4-foot-deep ditch. The excavated
material has been discharged over an approximate 15-foot-wide wetland area
on both sides of the ditch. The area excavated is approximately 0.55 acre
and the area filled is approximately 2.75 acres. Additional, proposed work
involves the discharge of excavated material associated with excavation of
three new ditches of similar depth having lengths of 4,000 feet, 3,900 feet
and 2,500 feet. Excavated material is to be discharges over an approximate
15-foot-wide wetland area on both sides of the proposed ditches.
Approximately 1.43 acres would be excavated and about 7.16 acres would be
filled. A total of 91 acres is proposed to be converted to agricultural
land.
In the 1920's, a 20-foot-wide, 6-foot-deep ditch was excavated along
the western property boundary. This ditch, which empties into Lake
Mattamuskeet on the north and intersects a 30-foot-wide ditch along the
southern boundary of U.S. Highway 264, was maintained in 1964. At the same
time, a short drainage ditch was excavated on the north boundary line
to intersect the Mattamuskeet Refuge fire lane. Also, a 10-foot-wide,
5-foot-deep lateral ditch was excavated intersecting the western ditch,
which drained a slough running parallel to the highway for the length of the
•
-2-
property. Subsequent to logging activities, this ditch became
unserviceable. The property was logged in approximately 1977, and
information obtained from the U.S. Department of Agriculture (USDA)
indicates that the 91-acre parcel is part of an area which contains 102
acres of prior-converted wetlands, as shown on the plans attached to this
notice. The 91-acre wetland area has been designated as "commenced
conversion" by the USDA Soil Conservation Service; however, discharges of
fill material in "commenced conversion" wetlands remain subject to
regulation under Section 404 of the Clean Water Act.
Approximately 8,100 cubic yards of material is to be excavated with a
backhoe. A 3-foot-wide vegetative buffer to control erosion is proposed
between the ditches and excavated material. Soils within the 91-acre
wetland area are mapped as Ballahack fine sandy loam near Lake Mattamuskeet,
Wysoc . t loam in the central areas, Johnson fine sandy loam near the
northwest property and Ponzer Muck near U.S. Highway 264. All
mapped soils are listed as by r the site was ponded/saturated to the
surface during an April 1, 1991, onsite insp T ical vegetation
includes spike rush, needle rush, scattered bald cypress, nel, wool
grass, bushy bluestem, and wax myrtle. The existing, unauthorized di
been plugged to minimize site drainage while this application is being
considered. Plans showing the work are included with this public notice.
'cant has determined that the proposed work is consistent with
the North Carolina Zone Management Plan and has submitted this
determination to the North Caro ision of Coastal Management (NCDCM)
for their review and concurrence. This propo 11 be reviewed for the
applicability of other actions by North Carolina agencies a include:
a. The issuance of a Water Quality Certification under Section 401 of
the Clean Water Act by the North Carolina Division of Environmental
Management (DEM).
b. The issuance of a permit to dredge and/or fill under North Carolina
General Statute 113-229 by the NCDCM.
c. The issuance of a permit under the North Carolina Coastal Area
Management Act (CAMA) by the NCDCM or their delegates.
d. The issuance of an easement to fill or otherwise occupy State-owned
submerged land under North Carolina General Statute 143-341(4), 146-6, 146-
11, and 146-12 by the North Carolina Department of Administration and the
North Carolina Council of State.
e. The approval of an Erosion and Sedimentation Control Plan by the
Land Quality Section, North Carolina Division of Land Resources, pursuant to
the State Sedimentation Pollution Control Act of 1973 (NC C-.S. 113 A-50-66).
-3-
The requested DA Army permit will be denied if any required State or
local authorization and/or certification is denied. No DA permit will be
issued until a State coordinated viewpoint is received and reviewed by this
agency. Recipients of this notice are encouraged to furnish comments on
factors of concern represented by the above agencies directly to the
respective agency, with a copy furnished to the Corps of Engineers.
This application is being considered pursuant to Section 404 of the
Clean Water Act (33 U.S.C. 1344). Any person may request, in writing within
the comment period specified in this notice, that a public hearing be held to
consider this application. Requests for public hearing shall state, with
particularity, the reasons for holding a public hearing.
The District Engineer has consulted the latest published version of the
National Register of Historic Places for the presence or absence of
registered properties, or properties listed as being eligible for inclusion
therein, and this worksite is not registered property or property listed as
being eligible for inclusion in the Register. Consultation of the National
Register constitutes the extent of cultural resource investigations by the
District Engineer, and he is otherwise unaware of the presence of such
resources. Presently, unknown archaeological, scientific, prehistorical, or
historical data may be lost or destroyed by work under the requested permit.
The District Engineer has determined, based on a review of data
furnished by the applicant, that the activity will not affect species, or
their critical habitat, designated as endangered or threatened pursuant to
the Endangered Species Act of 1973.
The decision whether to issue a permit will be based on an evaluation of
the probable impacts, including cumulative impacts, of the existing/proposed
activity and its intended use on the public interest. Evaluation of the
probable impacts which the proposed activity may have on the public interest
requires a careful weighing of all those factors which become relevant in
each particular case. The benefits which reasonably may be expected to
accrue from the proposal must be balanced against its reasonably foreseeable
detriments. The decision whether to authorize a proposal, and if so the
conditions under which it will be allowed to occur, are therefore determined
by the outcome of the general balancing process. That decision should
reflect the national concern for both protection and utilization of important
resources. All factors which may be relevant to the proposal must be
considered including the cumulative effects thereof. Among those are
conservation, economics, aesthetics, general environmental concerns,
wetlands, cultural values, fish and wildlife values, flood hazards, flood
plain values, land use, navigation, shore erosion and accretion, recreation,
water supply and conservation, water quality, energy needs, safety, food and
fiber production, mineral needs, considerations of property ownership, and,

-4-
in general, the needs and welfare of the people. For activities involving
the placement of dredged or fill materials in waters of the United States, a
permit will be denied if the discharge that would be authorized by such
permit would not comply with the Environmental Protection Agencies' 404(b)(1)
guidelines. Subject to the preceding sentence and any other applicable
guidelines or criteria, a permit will be granted unless the District Engineer
determines that it would be contrary to the public interest.
The Corps of Engineers is soliciting comments from the public; Federal,
State and local agencies and officials; Indian Tribes and other interested
parties in order to consider and evaluate the impacts of this proposed
activity. Any comments received will be considered by the Corps of Engineers
to determine whether to issue, modify, condition or deny a permit for this
proposal. To make this decision, comments are used to assess impacts on
species, historic properties, water quality, general environmental
effects and t e . interest factors listed above. Comments are
used in the preparation of an Enviro gssment and/or an
Environmental Impact Statement pursuant to the Nations tal Policy
Act. Comments are also used to determine the need for a public hearing a
to determine the overall public interest of the proposed activity.
Generally, the decision whether to issue this DA permit will not be made
until the North Carolina Division of Environmental Management (DEM) issues,
waives State certification required by Section 401 of the Clean
Water Act. The whether or not the proposed activity will
comply with Sections 301, 302, 30 , an a Clean Water Act. The
application and this public notice for the DA permit se 'cation to
the DEM for certification.
Additional information regarding the Clean Water Act certification may
be reviewed at the offices of the Environmental Operations Section, North
Carolina Division of Environmental Management, Salisbury Street, Archdale
Building, Raleigh, North Carolina. Copies of such materials will be
furnished to any person requesting copies upon payment of reproduction costs.
The DEM plans to take final action in the issuance of the Clean Water
Act certification on or after August 2, 1991.
All persons desiring to make comments regarding the application for
Clean Water Act certification should do so in writing delivered to the North
Carolina Division of Environmental Management, Post Office Box 27687,
Raleigh, North Carolina 27611-7687, on or before July 29, 1991, Attention:
Mr. John Dorney.
Written comments pertinent to the proposed work, as outlined above, will
be received in this office, Attention: Mr. David Lekson, until 4:15 p.m.,
July 15, 1991, or telephone [phone].
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09/22/93 10:21 V919 794 2392
State of North Carolina
Department of Environment,
Health and Natural Resources
Division of Forest Resources
James B, Hunt, Jr., Governor
Jonathan B. Howes, Secretary
PC&B ATrYS
LW!? FA
D HR
P.O. Box 127
Fairfield, N.C. 27826
June 22, 1993
Mr. Blythe Davis
P.O. Box 277
Swan Quarter, North Carolina 27885
Dear Mr. -Davis:
The County Ranger Mack Carawan and I have examined your tract in
Hyde County. I am pleased to hear that you intend to reforest it.
The following management plan has been prepared to meet your
objectives. A map of the tract is enclosed with the plan. Please
note that the acreage figures and boundary lines are derived from
aerial photographs and are approximate.
0 013
Due to the constantly evolving wetland regulations, we recommend
that you contact the Corps of Engineers to verify if a permit will
be needed to clear any ditches or - to establish fire lines or
logging roads. Also check with the ASCS and SCS offices before
conducting any site prep. or harvest work.
Thank you for your interest in forest development and for giving
the North Carolina Forest Service the opportunity to assist you.
Should you need any further assistance please contact Mack Carawan
or myself.
Sincerely,
Matthew B. Vincett
Field Forester
cc: Mack Carawan
encls
Ro. Box 27687, Raleigh, North Carolina 27611-7687 Telephone [phone] FAX [phone]
An Equal opportunity Affirmative Action Employer 50`10 recycled/ 10% post-consumer paper
09/22/93 10:22 r&919 794 2392 PUB ATTYS

Reforestation Plan
Blythe Davis Property
Hyde Co., N.C.
Genexal Descri tion
The Davis tract is 101 acres in size.
The merchantable timber was harvested off of the tract.
The tract is covered with scattered residuals and has
regenerated into a dense cover of unmerchantable veneration.
There is no significant desirable natural reg
on the tract.
The primary soil types on the tract are Wysocking and
Belhaven. The Wysocking is a poorly drained silt loam soil.
The Belhaven is a very poorly drained muck soil.
The site index base 50 for loblolly pine of the tract is
78.
bbjeotives_
Mr. Davis' objective
for future harvest income.
pine.
for the tract is to reforest it
He would prefer using loblolly
Recommendations
1) I recommend that you K-G and pile the unmerchantable
residuals and undesirable regeneration into windrows. I
recommend that you minimize the windrow width to,12 feet to
avoid non-productive voids in the stand. Note: The site
preparation work must be done in accordance with Best
Management Practices (BMPs) to protect site and water
quality.
2) to the poor drainage of the tract, I recommend that
yo bed prior to planting. This will give the seedlings a
10
chance to become established.
3) I recommend that you establish a firebreaktalonitthe
adjacent forestland and this tract, to help p from
fire danger originating in the adjacent lands. (This
firebreak can be maintained on a 3 year mowing rotation).
4) I recommend that you plant 2nd. generation loblolly
pine seedlings. These are fast growingbend produce good 10
trees. I recommend that the seedlings planted
ft. x 10 ft. to maintain an open forest and minimize early
thinning needs.
Q 014
09/22/93 10:23 ^V 919 794 2392 PUB ATrYS Q015
r ?
anyensian
5) I recommend nd a that you agricultural
service analyze
fertilization needs for the tract.
6) 1 recommend that you re-establish the old drainage
ditch that ran eastward through the- tract. ---The adjacent
andnthedamming wouldChelpatoinq
roads and ditches have
theresulted
water to back up in
alleviate this problem.
Best Mana ement Practices (BMPs)
The following (BMPs) must be followed during the site
preparation operation. Failure to adhere to these
guidelines will jeopardize cost-share certification.
1) Keep soil out of the windrows.
2) Keep rutting and soil compaction to a minimum; do
not push in wet weather.
3) Keep windrows tight, free of standing live trees,
with a 20' opening every 600' in length.
4) Avoid uprooting stumps. with a
5) Use a minimum 100 H.P. tractor equipped
sharp KG blade.
Cost Estimations
The approximate before cost-share reforestation costs
are as follows:
K-G and pile 155.00 ($ / acre).
Bedding 50.00 ($ / acre).
Planting + 75.00 ($ / acre).
280.00 = Total Cost/ acre
Note: prices are subject to change.
09/22/93 10:23 e&919 794 2392 PUB ATFYS 9 016

Cost-Share Assistance
You are eligible for cost-share assistance through
several state and federal programs. Please see enclosed
literature on some of these programs.
. 09/22/93 10:24 x`919 794 2392 PUB ATTYS 017
4203-3
r 1
w?
Old Ditch
------ Boundary Location
unimproved Road
?.,.,...? Improved Road
Ditch/Canal
rr Building
Davis Tract
OWNER Blythe Davis
Cemetery _
COUNTY Hyde
MAPPING METHOD DRAWN BY M.B. vincett
DATE 6-22-93
REDDI-MAPPER? COMPASS AND CHAIN? AERIAL. PHOTO NO. 96-10
AERIAL PHOTON FREEHAND SKETCH O SCALE 1: 15840
ACREA4E DATA AND BOUNDARIES ARE APPROXIMATE. GRID COORD. e82 916 p 5
N.C. DIVISION OF FOREST RESOURCES
09/22/93 10:24 ^919 794 2392
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PRITCHETT, COOKE & BURCH
ATTORNEYS AT LAW
203 DUNDEE STREET • POST OFFICE DRAWER 100
WINDSOR, NORTH CAROLINA 27983
TEL: [phone]
FAX. [phone]
W.L. COOKE
STEPHEN R. BURCH
WILLIAM W. PRITCHETT. JR.
LLOYD C. SMITH, JR.
DAVID J. IRVINE, JR,-
STEPHANIE B. IRVINE`
LARS P. SIMONSEN
"MEMBERS OF NC
AND VA BAR
June 22, 1993
The Honorable Dean Farrar
Chief Hearings Clerk
Office of Administrative Hearings
P. 0. Drawer 27447
Raleigh, NC 27611
Re: Case 91-EHR-0794
Our File Number 91-S-692
Davis and Davis v. EHNR
Dear Mr. Farrar:
J.A. PR 1 TCHETT
( 1897-1986)
UN ? 3
1j. C, CiENERAL
(`n,• i?il?s? r,1.?:E...i.'LiUii JCC;T?i?,il
I have enclosed one original and one copy of a
prehearing statement for the above case. I would appreciate your
filing the same. By copy of this letter, I am serving the same
on counsel for the respondent. I appreciate your attention to
this matter.
Sincerely yours,
PRITCHETT, COOKE & BURCH
Lars P. Simonsen
cc: Kathryn J. Cooper
George T. Davis
J
STATE OF NORTH CAROLINA
COUNTY OF HYDE
Calvin Blythe Davis and
George Thomas Davis,
Petitioners
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
91-EHR-0794.
vs.
PREHEARING STATEMENT
North Carolina Department of Environment,
Health and Natural Resources, Division of
Environmental Management,
Respondent

ISSUES TO BE RESOLVED
1. Did the Department of Environment, Health and Natural
Resources, Division of Environmental Management (hereinafter DEM)
erroneously deny the Petitioners' application for the State
Certification required by Section 401 of the Federal Water
Pollution- Control Act by failing to base its denial on
substantial evidence or by basing its denial on improper
considerations?
RELEVANT AUTHORITIES
Section 401 of the Federal Water Pollution Control Act
(hereinafter "Clean Water Act") states that "Any applicant for a
Federal License or Permit to conduct any activity . . which may
result in any discharge into the navigable waters, shall provide
the licensing or permitting agency a certification from the state
in which the discharge originates or will originate . . . that
any such discharge will comply with the applicable provisions of
Section 301, 302, 303; 306 and 307 of this Act". 33 U.S.C.
Section 1341(a)(1). The purpose of the certification process is
1

to ensure that there be no violation of downstream state water
quality standards in NPDES permitting. In North Carolina, this
certification process is governed by N.C.G.S. 143-215.3(c) and
N.C.G.S. 143-215. The regulations governing the water quality
certification process are contained in Title 15A of the North
Carolina Administrative Code, Chapter 2, Sub-Chapter 2B, Sections
.0500. Other regulations governing the water quality
certification process include Title 15A of the North Carolina
Administrative Code, Chapter 2, Sub--Chapter 2H, Section .0109 and
Section .0201(b). Additionally, the water quality standards
found at 15A N.C.A.C. 2B.0100 and .0200, particularly the
Antidegradation Water Quality Standard (15A N.C.A.C. 2B.0201) are
relevant authorities. Federal regulations contained in 40 CFR
230, et seq. provide guidance in applying the Antidegradation
Standard, and are relevant in that limited application.
The petitioners come before the Office of Administrative
Hearings pursuant to N.C.G.S. 150B-23(a) contending that by
denying the petitioners' application for Water Quality
--Certification, the DEM has deprived the petitioner of property
and has substantially prejudiced the petitioner's rights.
STATEMENT OF FACTS
In approximately 1983 the petitioners began the clearing of
a 200 acre tract of land located in Swan Quarter, Hyde County,
North Carolina, adjacent to the Mattamuskeet National Wildlife
Refuge. In 1987 the petitioners received a commenced conversion
determination from the Soil Conservation Service on the entire
tract, pursuant to the Federal Agricultural Conservation Act
2
(Swampbuster Act), 16 U.S.C. 3821. At that time the Soil
Conservation Service declared 104 acres of the tract to have been
prior converted wetlands as of December 1985, and gave a
commenced conversion status to the remaining acreage. It is this
remaining acreage that is the subject of this contested case.
The clearing and ditching activities on the property continued
until the beginning of March 1991. On March 12, 1991, a notice
was posted on the property stating that the clearing and ditching
activities violated Federal Law unless a Section 404 Permit was
obtained pursuant to the Federal Water Pollution Control Act
(Clean Water Act). In April of 1991 a Cease and Desist Order was
issued by the Department of the Army Corps of Engineers. The
petitioners complied with the Cease and Desist Order, and
pursuant to a directive from the Corps of Engineers, constructed
an earthen plug in the "unauthorized" ditch. In May of 1991 the
petitioners applied for an "after-the-fact" Section 404 Permit.
The first step in this permitting process was the Water Quality
Certification pursuant to section 401.
On June 21, 1991, John R. Dorney and Ron E. Ferrell,
representatives of the respondent, visited the Davis Tract.
During that visit, the site was evaluated pursuant to the North
Carolina Wetland Rating System Manual. Following that visit, the
petitioners received correspondence from EHNR dated July 1, 1991
in which EHNR requested additional information supporting the
petitioner's position that the project at issue must be
constructed on the lands at issue. Petitioners responded by
letter dated July 8, 1991, providing additional information as
3
requested. By letter dated August 13, 1991, petitioners' request
for water quality certification was denied. An internal
memorandum from Deborah Sawyer of EHNR to John Dorney indicated
that the denial was based upon the agency's opinion that the
proposed conversion of the lands at issue was not the "only
practical alternative."
As a result of the denial of the State Water Quality
Certification, the Department of the Army Corps of Engineers
denied the petitioners' application for a Section 404 permit
under the Clean Water Act.
The Petitioners commenced this contested case in order to
challenge the States denial of the 401 certification.
ARGUMENT
North Carolina Law requires that an agency determination be
based on substantial evidence. Lackey v. N.C. Department of
Human Resources, 306 N.C. 231, 293 S.E.2d 171 (1982).
"Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
-Commissioner of Insurance v. Fire Insurance Rating Bureau, 292
N.C. 70, 80, 231 S.E. 2d 882, 888 (1977). The relevant evidence
in deciding whether a determination was based on "substantial
evidence" is the evidence that was before the agency at the time
the decision was made. "Post Hoc" rationalizations are an
inadequate basis for the review of an agency decision. Citizens
to Preserve Overton Park v. Volpe 401 U.S. 353, 420 (1971).
Additionally, an agency must act in accordance with law, and
in a manner that does not exceed its statutory authority. The
4
respondent's statutory authority in the present case is provided
by N.C.G.S. 143-215, 143-215.3(c), and 33 U.S.C. 1341(a)(1).
N.C.G.S. 143-215 authorizes the agency to develop and adopt
certain standards and limitations as it determines necessary to
prohibit, abate or control water pollution. N.C.G.S. 143-
215.3(c) authorizes the agency to act in local administration of
all matters covered by existing federal statutes relating to
water quality control. The authority granted by these,statutes,
however, is limited by subsection (c)(1) of N.C.G.S. 143-215.
This subsection provides that:
[i]n adopting effluent standards and limitations and
management practices the Commission shall be guided by
the same considerations and criteria set forth, from
time to time, in federal law for the guidance of
federal agencies administering the Federal Water
Pollution Control Act. The effluent standards or
limitations and management practices adopted hereunder
shall be no more restrictive than the most nearly
applicable federal effluent standards or limitations
and management practices unless the Commission first
considers, among other things, an evaluation, prepared
by the Department in accordance with this subsection,
of the impact of the proposed effluent standards or
limitations and management practices and finds that the
environmental, public health, safety and welfare
benefits of such proposed effluent standards or
limitations and management practices justify their
costs.
N.C.G.S. 143-215(c)(1). The agency thus derives its statutory,.
authority for performing water quality certifications and
promulgating water quality standards from the State Legislature's
broad delegation of federal statutory authority directly to the
agency. In testing whether the agency is acting within its
statutory authority, one must compare the agency's regulations
and actions to the federal statutes at issue. The grant of
5

authority from the state legislature prohibits agencies from
adopting of standards, limitations or management practices which
are more restrictive than similar Federal standards, limits or
practices, unless a cost/benefit analysis is undertaken.
-Improper Use of Practicable Alternatives Analysis
The petitioners contend that the agency's denial of their
request for a section 401 water quality certification was based
upon improper considerations of whether there were "practical
alternatives" to the proposed project. Even were consideration
of practical alternatives permissible in the 401 certification
process, no alternatives exist which would be practicable after
taking into consideration cost, existing technology, and
logistics in light of the overall project purposes. To the
extent that the agency relied upon alleged removal of certain
"existing uses" of the alleged wetlands in its denial of the 401
certification, petitioners contend that there is insufficient
evidence to support such reliance.
In its denial of the petitioners' water quality
certification, the respondent has relied upon the Antidegradation
Policy set forth in 15A N.C.A.C. 2B.021. It is through the
Administrative Code provisions governing the Antidegradation
Policy that the respondent has improperly "bootstrapped" the
practicable alternatives analysis from Section 404 of the Clean
Water Act into the Section 401 analysis. The letter dated August
13, 1991 by which Petitioners' application for certification was
denied stated that the conversion would "remove significant uses
6
including wildlife habitat, water storage and water quality
protection." 15A N.C.A.C. 2B.0109 provides that "projects that
alter the reach and extent of a freshwater wetland will not be
considered as removing existing uses of the wetland in violation
of the Antidegradation policy . . . if the alteration protects
all existing and designated uses of all waters of the state."
In determining whether all existing and designated uses are
protected, the director is to be guided by 40 CFR Part 230,
Subparts A through F. Id. These referenced CFR sections govern
the federal portion of the permitting process, namely the section
404 (33 U.S.C. 1344) procedures.
These federal regulations do provide some guidance on the
various wetlands values, and thus are appropriate in that limited
sense for the 401 certification process. The danger inherent in
using these federal regulation for anything beyond guidance on
the wetlands values, however, is that the State agency will go
beyond the 401 certification procedure and will move into the
federal section 404 arena. This is precisely what has occurred
in the instant case. By considering "practicable alternatives"
pursuant to 40 CFR 230, the State exceeded its statutory
authority, acted erroneously, and has imposed a standard,
limitation or management practice which is more restrictive than
federal law.
Section 401 (33 U.S.C. 1341) of the Clean Water Act
requires that any applicant for a section 404 permit obtain a
certification from the state that "any such discharge will comply
with the applicable provisions of sections 1311, 1312, 1313, 1316
7

and 1317 of this title." 33 U.S.C. 1341. All of the referenced
sections deal with water quality standards. It is clear that the
401 water quality certification deals only with water quality.
The respondent, however, went beyond water quality considerations
when it considered practicable alternatives' to the project at
issue pursuant to 40 CFR 230.5(c). By doing a practicable
alternatives analysis, the agency stepped beyond the boundaries
of the 401 certification analysis and into the federal realm of
section 404. This is in excess of the agency's statutory
authority and constitutes an erroneous application of law.
Additionally, applying a practicable alternatives analysis in the
401 certification process imposes a limitation or standard more
restrictive than that contemplated by Federal law, and therefore
violates N.C.G.S. 143-215(c)(1) unless a cost/benefit analysis
has been performed. To the extent that the agency's denial of
the 401 certification is based upon a finding of "practical
alternatives," that denial is erroneous.
Even were the consideration of practicable alternatives
pursuant to 40 CFR 230.5(c) appropriate, a finding that such
alternatives exist is incorrect. The respondent contends that
use of the Davis tract for cultivation of monoculture pine trees
is a practicable alternative. This is a misapplication of the
practicable alternatives examination. Under the federal
regulation, "practicable" means "available and capable of being
done after taking into consideration cost, existing technology,
and logistics in light of overall project purposes." The
"overall project purposes" in the instance case are to provide
8
additional acreage for agricultural use by the petitioners.
Converting the land to use for cultivation of timber is not the
purpose of the project at issue.
In considering alternatives tracts of land, the location of
the proposed alternative tract is relevant. The petitioners have
not located prior converted farmland similarly or practically
located. Farmland located great distances from their current
farmland is not a practicable alternative when logistics are
factored into the equation. Finally, the land at issue has a
commenced conversion status under the Swampbuster Act (16 U.S.C.
3821). Given that 97.3% of Hyde County has hydric soils, (see
Original Extent, Status, and Trends of Wetlands in North
Carolina: A Report to the North Carolina Legislative Commission
on Wetlands Protection, DEHNR Report No. 91-01 (January 1991)),
the conversion of the great majority of the lands in Hyde County
would require a commenced conversion status. The limited
availability of prior converted farmland in the vicinity of the
petitioners' farmland, and the necessity for a commenced
conversion status on any other land leads to the conclusion that
the petitioners have no practicable alternative that would serve`
their overall project purposes.
Lack of Substantial Evidence Supportinq Alleged Effect on Water
Quality
While it appears that the alleged existence of "practicable
alternatives" formed the real basis for the denial of the 401
certification, the respondent also contends that the conversion
9
of the Davis Tract would result in certain water quality impacts.
The respondent lacks the substantial evidence required to support
such a claim. In its denial letter dated August 13, 1991, the
respondent claims to have found that the conversion of the
property would remove significant wetlands uses, including
wildlife habitat, water storage and water quality protection.
However, the field notes of EHNR representatives show that their
investigation of the tract revealed moderate.to low values for
these uses, even when evaluating the site in its undrained
condition.
The tract at issue is drained by one or more "authorized"
ditches. The "unauthorized" ditch was plugged at the direction
of the Corps of Engineers. As such, the only drainage of the
property at the time of John Dorney's and Ron Ferrell's June 21,
1991 site visit was through the authorized ditches. Due to this
existing drainage and the logging activities on site, the Davis
tract would at best qualify as a "partially supporting wetland,"
meaning that while the property may have retained wetlands
status, the wetlands uses of the tract have been impaired. It
appears from the field notes prepared by John Dorney and Ron
Ferrell, however, that the property was rated in its "undrained"
state. Thus, EHNR's rating of the site in its "undrained"
condition led to higher wetlands values for the tract than would
result if the tract were rated under the normal circumstances
existing at the site. In rating the tract, EHNR used the second
draft of the EHNR Wetland Rating System. The Wetland Rating
System Worksheet prepared by EHNR for the Davis Tract rates the
10
wildlife value at three (moderate), the water storage value at
three (moderate) and the pollution removal value at 2 (low). As
to the effect of the Davis tract on adjacent Lake Matamuskeet,
EHNR rated the land as having a low (score of zero) value as a
Natural Area Buffer and Sensitive Watershed. Out of a total
score of 55, the Davis Tract was given a score of 19,
demonstrating that even in an undrained state, the Tract is not
an exceptional wetland. In its normal, drained state, the
wetland would presumably score even lower.
The evidence before the agency at the time of its denial of
the 401 certification includes evidence that the Davis Tract was
drained by authorized ditches, one of which had been filled in
with the intention of reconstructing a new ditch in replacement.
It is this replacement ditch, the "unauthorized" ditch, that
resulted in the Corps of Engineers Cease and Desist order.
Additionally, the evidence showed that the Davis tract had been
logged, leaving only scattered Cypress trees for future harvest.
This selective logging resulted in the Cypress trees being
considered by EHNR as a dominant plant species. Once again,
under normal circumstances, a different finding would have
occurred. Prior to the logging, Red Maple, Sweet Gum and
Loblolly Pine dominated.
In its present clear cut (with the exception of several
Cypress trees) state, the Davis Tract can hardly be considered a
forest. Any claims that the proposed conversion will remove
wildlife uses due to the removal of woody plant structure is thus
without merit. Any wildlife uses depending upon the existence of
11
a woody plant structure would not exist on the Davis tract since
a woody plant structure, with the exception of occasional shrubs
and a handful of cypress trees, is nonexistent. Contrary to the
respondent's claims, use of the tract for cultivation of corn or
soybeans would introduce or enhance current wildlife uses by
providing additional feeding ground for waterfowl and other
wildlife.
As to the respondents claims that water storage uses would
be removed, it is significant to consider the the property is
currently drained by existing, authorized ditches. The Wetlands
Rating Worksheet indicates that the tract was rated in its
undrained state, and even then was rated as having only moderate
water storage uses. Water storage is a function of the proximity
of the wetland to other bodies of water, the elevation of the
-tract, and the permeability of the soil. None of these factors
will be altered by the proposed conversion. The tract will still
be located adjacent to Lake Matamuskeet, will still have
permeable soil, and the elevation will only be minimally altered
to the extent of any spoil material placed on the land from the
ditching activities. A report to the N.. C. Legislative
Commission on Wetlands Protection prepared by the Respondent
confirms that "agricultural conversion probably does not alter
ground water recharge significantly." Original Extent, Status
and Trends of Wetlands in North Carolina: A Report to the N. C.
Legislative Study Commission on Wetlands Protection, DEHNR Report
No. 91-01 (January, 1991), page 7. Groundwater recharge uses of
wetlands are closely associated with water storage uses.
12
The respondent's claim that the conversion will remove
pollutant removal uses of the tract are contradicted by the
agency's own rating of the tract. In its undrained condition,
this tract was given a low score for pollutant removal uses by
EHNR. Additionally, EHNR noted on the Wetland Rating Worksheet
that there was no real source of pollutants in the vicinity of
the tract. What is not noted on the Rating Worksheet is that the
land immediately adjacent to the tract at issue is agricultural
land which was in cultivation at the time of John Dorney's and
Ron Ferrell's June 21, 1991 visit to the site. This agricultural
land was not considered by EHNR at that time to be a source of
pollutants. Conversely, EHNR now considers that the conversion
of the tract at issue to agricultural use will create a source of
pollutants. What the agency originally rated as having low
pollutant removal use and no nearby source of pollutants, now,
for the purposes of this hearing, has become a significant sink
for pollutants which the respondent contends will become a
significant source for pollutants if placed into cultivation.
Respondents also contend that the conversion of the tract
will negatively impact the waters of Lake Matamuskeet, causing
violations of the turbidity water quality standard and the water
quality standard for certain pesticides. This blanket assertion
is without factual basis. Lake Matamuskeet is classified as an
SC water. The Wetlands Rating Worksheet prepared for this site
indicates that the tract at issue is not adjacent to a sensitive
watershed, and received a score of zero as a Natural Area Buffer.
The respondent's claim that potential violations of the turbidity
13
water quality standard justify denial of the 401 certification is
without basis. Title 15A N.C.A.C. 2b.0212(L) recognizes that
"[c]ompliance with this turbidity standard can be met when land
management activities employ Best Management Practices." Any
potential violations of the turbidity standard could easily be
addressed by requiring that the applicants employ Best Management
Practices in the cultivation of the tract. Similarly, Best
Management Practices can be employed to ensure that pesticide use
does not cause downstream water quality violations.
It is apparent that the respondent has failed to base its
determination on any substantial evidence. The agency's own
investigation and rating of the tract fails .to support the
agency's decision. In addition, the agency's decision was based
upon or affected by improper consideration of whether practicable
alternatives to the proposed conversion existed. The DEM should
not be permitted to severely impact the persons rights by merely
chanting magic words, which it claims support its decision.
.Failure to base the denial of that application on sufficient
-evidence and proper considerations renders the DEM's denial of
that application erroneous, not in accordance with law and
arbitrary and capricious.
PROPOSED DISCOVERY
The Petitioners request an expedited discovery. A discovery
conference should be held at the offices of the DEM wherein
counsel for the Petitioner could examine and' copy any data,
comments or studies used by the DEM to justify its denial of the
Petitioners' application. Proposed witnesses for each side could
14
be deposed if necessary, or interrogatories served, and items
identified as exhibits could be examined.
PROCEDURAL MATTERS
1. Proposed Witnesses.
(a) Mr. Calvin B. Davis
(b) Mr. George Thomas Davis
(c) Mr. Robert Needham
(d) Dr. Leon S. Jernigan, Jr.
(e) Mr. George T. Everette (adverse witness)
(f) Mr. John Dorney (adverse witness)
(g) Mr. Ron Ferrell (adverse witness)
(h) Ms. Deborah Sawyer (adverse witness)
2. Requested location of hearing: Swan Quarter, Hyde
County, North Carolina (Hyde County Courthouse).
3. Estimated length of hearing: One (1) day.
4. Petitioners and counsel will be ready for hearing in
this case by September 13, 1993.
This the day of June, 1991.
PRITCHETTT, COO jE ,t,,BURCH/?
BY:
Lars P. S'monsen
State Bar No. 11455
Attorney for.Petitioners
Post Office Drawer 100
Windsor, N. C. 27983
Telephone: [phone]
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the
foregoing Prehearing Statement on the attorney of record for the
15
Respondent by depositing the same in the United States Mail,
first class, postage prepaid, addressed as follows:
Kathryn Jones Cooper
Special Deputy Attorney General
N. C. Department of Justice
P. 0. Box X629
Raleigh, NC 27602-0629
This the day of June, 1993.
I
PRITCH TT COOIE AND BURCH
L-A
Lars P. Simonsen
State Bar No. 11455
Attorney for Petitioners
Post Office Drawer 100
Windsor, N. C. 27983
Telephone: [phone]
/usr/lps/Davis,P-H/jah
91-5-692 .
16

EVERY DAY,.
NORTH CAROLINA
WILDLIFE
FEDERATION
P.O. Box 10626
RALEIGH, NORTH CAROLINA 27605-0626
[phone]
June 18, 1991
Mr. David Lekson
Department of The Army
Corps of Engineers
P.O. Box 1890
Wilmington, NC 28402-1890
Re: Issuance of an after-the-fact permit to Mr. George Davis
and Mr. Calvin Davis for wetlands near Swan Quarter,
Hyde County, North Carolina
Dear Mr. Lekson:
These comments are provided on behalf of the North
Carolina Wildlife Federation in response to the Corps' public
r),otice and issuance of an after-the-fact permit to authorize
activities affecting wetlands on properties in Hyde County,
North Carolina (Action ID No. 199101764).
The wetlands ditching and discharging activities,
located north of U.S. Highway 264 and adjacent to Lake
Mattamuskeet on lands designated as "commenced conversion",
are in direct violation of the Clean Water Act. Therefore,- a
permit should be denied until full compliance is met pursuant
------ -- ------ ----- ---- --- - -- to Section 404 guidelines.
Under the U.S. Environmental Protection Agency's
Regulatory Guidance Letter 90-7 (RGL 90-7), if prior
converted (PC) cropland is abandoned for five successive
years, then said lands are subject to regulation under
Section 404. Activities on the land in question clearly fall
into this category, and must therefore be subject to a
thorough onsite evaluation to determine if significant
adverse impacts will result. An individual permit, including
a thorough environmental assessment, should be required
before the activities are resumed.
The environmental evaluation must consider cumulative
adverse impacts of the project on the environment. We have
reason to believe that the wide-spread practice of ditching
in this area is causing significant environmental degradation
to Lake Mattamuskeet National Wildlife Refuge and neighboring
lands and waters. Particularly, mercury loads in Lake
Mattamuskeet should be carefully analyzed and considered

f
Comments contd. - 2 - June 18, 1991
before any permit is issued. High levels of mercury, found
in resident soils, may be flowing into the Lake from ditch
run-off. In the event that mercury levels are found to be
higher then standards set by the Department of Agriculture,
this would pose significant health hazards and significant
adverse impacts on the environment.
We urge the Corps not to issue this permit on the
grounds that the project and impacts have not been fully
considered. Until such evaluation is conducted, no
activities, with the exception of actions deemed necessary by
the Corps for mitigating adverse impacts from unauthorized de
facto activities, should be permitted. This will allow
normal review procedures to take place in a timely fashion,
including resource agency consultation and public
participation, that are legally directed and critical to
wetlands projects.
Lastly, we are troubled by the precedent being set by
issuance of after-the-fact permits, and trust that the Corps
will redress this problematic situation. If landowners and
developers continue to circumvent required legal channels,
unauthorized wetlands destruction will progress unabated.
cc: John Dorney, Division of
Environmental Management

?0 I R @ ? 9 W
DEPARTMENT OF THE ARMY rjA'o 01 71992
?
ANDS GROUT'
Post Office Box 1890 WE'iL UALIT
Y SECTI+
Wilmington, North Carolina 2840OVA ER
Action ID No. 199101764 Wilmington District, Corps of Engu41
??? 1991 6 &1
PUBLIC NOTICE

MR. GEORGE THOMAS DAVIS, JR. and M.R. CALVIN BLYTHE DAVIS, Post
Office Box 277, Swan Quarter, North Carolina 27885, have applied for an
after-the-fact Department of the Army (DA) permit TO.PLACE EXCAVATED
MATERIALS IN PREVIOUSLY LOGGED WETLANDS, HAVING A COMMENCED CONVERSION
STATUS, ADJACENT TO LAKE MATTAMUSKEET, NEAR SWAN QUARTER, Hyde County, North
Carolina.
This public notice does not imply, on the parts of the Corps of
Engineers or other agencies, either favorable or unfavorable opinion of the
work performed; but it is issued to solicit comments on the factors listed
above on which a final decision will be based. Legal action has been
suspended pending the outcome of this consideration.
The following description of the work is taken from data provided by
the applicant and from information obtained during site visits by a
representative of the Corps of Engineers. The affected property is located
on the north side of U.S. Highway 264, approximately one mile west of N.C.
Highway 94 and 6.5 miles east of Swan Quarter, in Hyde County, North
Carolina. The existing, unauthorized work consists of the discharge of
material generated through excavation of an approximate 4,000-foot-long,
6-foot top width, 1-1/2-foot bottom width, 4-foot-deep ditch. The excavated
material has been discharged over an approximate 15-foot-wide wetland area
on both sides of the ditch. The-area excavated is approximately 0.55 acre
and the area filled is approximately 2.75 acres. Additional, proposed work
involves the discharge of excavated material associated with excavation of
three new ditches of similar depth having lengths of 4,000 feet, 3,900 feet
and 2,500 feet. Excavated material is to be discharges over an approximate
15-foot-wide wetland area on both sides of the proposed ditches.`
Approximately 1.43 acres would be excavated and about 7.16 acres would be
filled. A total of 91 acres is proposed to be converted to agricultural
land.
In the 1920's, a 20-foot-wide, 6-foot-deep ditch was excavated along
the western property boundary. This ditch, which empties into Lake
Mattamuskeet on the north and intersects a 30-foot-wide ditch along the
southern boundary of U.S. Highway 264, was maintained in 1964. At the same
time, a short drainage ditch was excavated on the north boundary line
to intersect the Mattamuskeet Refuge fire lane. Also, a 10-foot-wide,
5-foot-deep lateral ditch was excavated intersecting the western ditch,
which drained a slough running parallel to the highway for the length of the

-2-
property. Subsequent to logging activities, this ditch became
unserviceable. The property was logged in approximately 1977, and
information obtained from the U.S. Department of Agriculture (USDA)
indicates that the 91-acre parcel is part of an area which contains 102
acres of prior-converted wetlands, as shown on the plans attached to this
notice. The 91-acre wetland area has been designated as "commenced
conversion" by the USDA Soil Conservation Service; however, discharges of
fill material in "commenced conversion" wetlands remain subject to
regulation under Section.404 of the Clean Water Act.
Approximately 8,100 cubic yards of material is to be excavated with a
backhoe. A 3-foot-wide vegetative buffer to control erosion is proposed
between the ditches and excavated material. Soils within the 91-acre
wetland area are mapped as Ballahack fine sandy loam near Lake Mattamuskeet,
Wysocking silt loam in the central areas, Jo nson ine sandy loam near the
northwest property limits, and Ponzer Muck near U.S. Highway 264. All
mapped soils are listed as hydric, and the site was ponded/saturated to the
surface during an April 1, 1991, onsite inspection. Typical vegetation
includes spike rush, needle rush, scattered bald cypress, dog fennel, wool
grass, bushy bluestem, and wax myrtle. The existing, unauthorized ditch has
been plugged to minimize site drainage while this application is being
considered. Plans showing the work are included with this public notice.
The applicant has determined that the proposed work is consistent with
the North Carolina Coastal Zone Management Plan and has submitted this
determination to the North Carolina Division of Coastal Management (NCDCM)
for their review and concurrence. This proposal shall be reviewed for the
applicability of other actions by North Carolina agencies which may include:
a. The issuance of a Water Quality Certification under Section 401 of
the Clean Water Act by the North Carolina Division of Environmental
Management (DEM).
b. The issuance of a permit to dredge and/or fill under North Carolina
General Statute 113-229 by the NCDCM.
c. The issuance of a permit under the North Carolina Coastal Area
Management Act (CAMA) by the NCDCM or their delegates.
d. The issuance of an easement to fill or'otherwise occupy State-owned
submerged land under North Carolina General Statute 143-341(4), 146-6, 146-
11, and 146-12 by the North Carolina Department of Administration and the
North Carolina Council of State.
-e. The approval of an Erosion and Sedimentation Control Plan by the
Land Quality Section, North Carolina Division of Land Resources, pursuant to
the 'State Sedimentation Pollution Control Act of 1973 (NC O.S. 113 A-50-66).
r
-3-
The requested DA Army permit will be denied if any required State or
local authorization and/or certification is denied. No DA permit will be
issued until a State coordinated viewpoint is received and reviewed by this
agency. Recipients of this notice are encouraged to furnish comments on
factors of concern represented by the above agencies directly to the
respective agency, with a copy furnished to the Corps of Engineers.
This application is being considered pursuant to Section 404 of the
Clean Water Act (33 U.S.C. 1344). Any person may request, in writing within
the comment period specified in this notice, that a public hearing be held to
consider this application. Requests for public hearing shall state, with
particularity, the reasons for holding a public hearing.
The District Engineer has consulted the latest published version of the
National Register of Historic Places for the presence or absence of
registered properties, or properties listed as being eligible for inclusion
therein, and this worksite is not registered property or property listed as
being eligible for inclusion in the Register. Consultation of the National
Register constitutes the extent of cultural resource investigations by the
District Engineer, and he is otherwise unaware of the presence of such
resources. Presently, unknown archaeological, scientific, prehistorical, or
historical data may be lost or destroyed by work under the requested permit.
The District Engineer has determined, based on a review of data
furnished by the applicant, that the activity will not affect species, or
their critical habitat, designated as endangered or threatened pursuant to
the Endangered Species Act of 1973.
The decision whether to issue a permit will be based on an evaluation of
the probable impacts, including cumulative impacts, of the existing/proposed
activity and its intended use on the public interest. Evaluation of the
probable impacts which the proposed activity may have on the public interest
requires a careful weighing of all those factors which become relevant in
each particular case. The benefits which reasonably may be expected to
accrue from the proposal must be balanced against its reasonably foreseeable
detriments. The decision whether to authorize a proposal, and if so the
conditions under which it will be allowed to occur, are therefore determined
by the outcome of the general balancing process. That decision should
reflect the national concern for both protection and utilization of important
resources. All factors which may be relevant to the proposal must be
considered including the cumulative effects thereof. Among those are
conservation, economics, aesthetics, general environmental concerns,
wetlands, cultural values, fish and wildlife values, flood hazards, flood
plain values, land use, navigation, shore erosion and accretion, recreation,
water supply and conservation, water quality, energy needs, safety, food and
fiber production, mineral needs, considerations of property ownership, and,
-4-
in general, the needs and welfare of the people. For activities involving
the placement of dredged or fill materials in waters of the United States, a
permit will be denied if the discharge that would be authorized by such
permit would not comply with the Environmental Protection Agencies' 404(b)(1)
guidelines. Subject to the preceding sentence and any other applicable
guidelines or criteria, a permit will be granted unless the District Engineer
determines that it would be contrary to the public interest.
The Corps of Engineers is soliciting comments from the public; Federal,
State and local agencies and officials; Indian Tribes and other interested
parties in order to consider and evaluate the impacts of this proposed .
activity. Any comments received will be considered by the Corps of Engineers
to determine whether to issue, modify, condition or deny a permit for this
proposal. To make this decision, comments are used to assess impacts on
endangered species, historic properties, water quality, general environmental
effects and the other public interest factors listed above. Comments are
used in the preparation of an Environmental Assessment and/or an
Environmental Impact Statement pursuant to the National Environmental Policy
Act. Comments are also used to determine the need for a public hearing and
to determine the overall public interest of the proposed activity.
Generally, the decision whether to issue this DA permit will not be made
until the North Carolina Division of Environmental Management (DEM) issues,
denies, or waives State certification required by Section 401 of the Clean
Water Act. The DEM considers whether or not the proposed activity will
comply with Sections 301, 302, 306, and 307 of the Clean Water Act. The
application and this public notice for the DA permit serve as application to
the DEM for certification.
Additional information regarding the Clean Water Act certification may
be reviewed at the offices of the Environmental Operations Section, North
Carolina Division of Environmental Management, Salisbury Street, Archdale
Building, Raleigh, North Carolina. Copies of such materials will be
furnished to any person requesting copies upon payment of reproduction costs.
The DEM plans to take final action in the issuance of the Clean Water
Act certification on or after August 2, 1991.
All persons desiring to make comments regarding the application for
Clean Water Act certification should do so in writing delivered to the North
Carolina Division of Environmental Management, Post Office Box 27687,
Raleigh, North Carolina 27611-7687, on or before July 29, 1991, Attention:
Mr. John Dorney.
Written comments pertinent to the proposed work, as outlined above, will
be received in this office, Attention: Mr. David Lekson, until 4:15 p.m.,
July 15, 1991, or telephone [phone].
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WETLAND RATING SYSTEM WORKSHEET
Project No. or description ;j
Location
River basin and nearest permanent stream 1,..;°;? r.
Evaluator
Agency and address
Date and time evaluated
r` -
Major Wetland Type '
Approximate size of wetland system acres
Approximate extent of wetlands in area
within acres
miles
Three most dominant plant species (in order);
Soil Series (if known)
Hydrologic indicators
Direct hydrologic connection? (circle one) YES NO
Existing Conditions
Drainage
Disturbance
Restoration potential
Does,.site provide habitat for endangered or threatened
species?.? If yes, then score equals 100%. State reasons 'for
exceptional status.
Item No.
I. Location/Landscape Score (circle one)'
1 Natural area buffer 5 Q`
2 Sensitive watershed 5 1 ;
II. Ecological Values
3 Special ecological attributes 5 3
4 Dispersal corridor s stem
Y
5,
0
5 Wildlife 5 3"` 1 0
6 Aquatic life
5
3
,:,:1-''
0
7 Water storage 5 -Szz 1 0
8 Streambank stabilization
- 5 3 1 0,
,9
Removal sediment/toxicant
" 5 3 ?' 1 0
I.0
Removal/transform nutrients 5 3 1 0
.1- Groundwater recharge/discharge 5 3 1 0
III. Human Values
12 Outdoor recreation/education 5 3.` 1 0
13 Commercial value 5 1 0

Total score -
Percent score
(out of a total of 65 points)
Site description and notes:

g` J ' 12

r
DAVIS & DAVIS
A T T O R N E Y S AT L A W
NORTH CAROLINA 27885
rg i j
w
GEORGE T. DAVIS (1908.1979)
GEO. THOMAS DAVIS. JR. AUG 22 1991
Mill ffYY1177
'? u st 21, 19
91
e s1 I`a'MitdA 7"`
D"__ oIF ?rig..
Office of Administrative Hearings
P. O. Drawer 11666
Raleigh, North Carolina 27604

3 oS?'
P. O. BOX 277
T E LFPJdOAILE 2.9 2 8.3 7 81
I FACSIMILE (.919)-926- 4'S1
di
FAUG 2a 199

Re: Application for Water Quality Certification
Wetland conversion to agricultural land
near Lake Mattamuskeet, Hyde County
Gentlemen:
Enclosed please find my best efforts at a petition for
an adjudicatory hearing from a denial of an application for a
water quality certification. This petition is not very
detailed but I have tried to track the applicable requirements
of Chapter 150B of the General Statutes of North Carolina. If
your regulations provide for a more detailed petition, please
let me know and forward to me copies of applicable rules and
regulations.
It is my understanding that the discovery provisions
of the rules for civil procedure apply to proceedings before
your office.
I am currently scheduled to be in the Soviet Union
between September 7 and September 22, 1991. With the issues
involved I do not believe there is likely to be a hearing
scheduled before that time, but if I am mistaken, I wanted to
let you know about that conflict. In light of the late
unpleasantness in the Soviet Union, any potential corflict.ry
cure itself.
Respectfully yours,
Geo. Thomas Davis, Jr.
GTDJr.:alcd-
Enclosures
CC: N.C.Dept. of Environment,Health & Nataural Resources
Mr. Calvin Blythe Davis

DAVIS & DAVIS
ATTORNEYS AT L A W
SWAN QUARTER, NORTH CAROLINA 27885
P. O. BOX 277
GEORGE T. DAVIS (1908.1979) TELEPHONE [phone]
GEO. THOMAS DAVIS. JR. August 21, 1991 FACSIMILE [phone]
North Carolina Department of Environment, Health, and Natural
Resources
P. O. Box 29535
Raleigh, North Carolina 2762666-0535,
Attention of Mr.John Dorney
Water Quality Planning Branch
Re: Application for Water Quality'Certification
Wetland conversion to agricultural land
near Lake Mattamuskeet, Hyde County
Dear Mr. Dorney:
I have filed a petition for a hearing before the
Office of Administrative Hearings on the denial of our permit.
I would appreciate you forwarding me copies of the applicable
regulations for these water quality certifications. I would
also appreciate copies of any reports prepared by your office
in relation to this case and copies of any studies on which
those reports or your office's decision was based in whole or
in part.
In addition, I would appreciate you sending me copies
of any comments your office received in relation to our
application.
If you prefer, I can send a more formal discovery
request.
If you have any questions or comments, do not hesitate
to let me know. +
Sincerely yours,
Geo. Thomas Davis, Jr.
GTDJr.:alcd
Enclosures
CC: Office of Administrative Hearings
Mr. Calvin Blythe Davis

CERTIFICATION OF SERVICE
I hereby certify that I have this day served a copy of
the foregoing petition by depositing the same in an envelope
bearing sufficient postage in the United States Mail at Swan
Quarter, North CArolina, addressed to the following person at
the following address, which is the last address known to me:
North Carolina Department of Environment, Health, and
Natural Resources
Division of Environmental Management
P. 0. Box 29535
Raleigh, North Carolina 27626-0535
Attention of Mr. George T. Everett, Director
This the 2lstday of August, 1991.

Geo. Thomas Davis, Jr.
Attorney for Petitioners
P. O. Box 277
Swan Quarter, North Carolina 27885
•
DAVIS & DAVIS
ATTORNEYS AT LAW
;WAN QUARTER. N.C.
0 ? V ?/
NORTH CAROLINA
HYDE COUNTY
IN RE: APPLICATION OF GEORGE THOMAS
DAVIS, JR., AND CALVIN BLYTHE DAVIS
FOR WATER QUALITY CERTIFICATION ON PETITION
LAND NEAR LAKE MATTAMUSKEET IN
HYDE COUNTY
George Thomas Davis, Jr., and Calvin Blythe Davis
hereby petition the Office of the Administrative Hearings for
an adjudicatory hearing on the denial of the application of
your petitioners for a water quality certification which denial
is set forth in a letter to the undersigned dated August 13,
1991, a copy of which is hereto attached and incorporated
herein by reference.
The grounds for this petition include that the
Division of Environmental Management of the North Carolina
Department of Environment, Health, and Natural Resources has
deprived your petitioners of their property, has acted erron-
eously, and has acted arbitrarily and capriciously.
This the 21st day of August, 1991.
Geo. Thomas Davis, Jr.
Petitioner and Attorney for
Calvin Blythe Davis
P. O. Box 277
Swan Quarter, North Carolina 27885
Tel. No. 919/926-0521

DAVIS & DAVIS
ATTORNEYS AT LAW
SWAN QUARTER, N.C.
DAVIS & DAVIS
ATTORNEYS AT L A W
SWAN QUARTER. NORTH CAROLINA 278
GEORGE T. DAVIS (1908-1979)
GEO. THOMAS DAVIS, JR.
August 21, 199

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Health.\4, c
0. BOX 277
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North Carolina Department of Environmeh
Resources
P. O. Box 29535
Raleigh, North Carolina 2762666-0535
Attention of Mr.John Dorney
Water Quality Planning Branch
Natural
Re: Application for Water Quality Certification
Wetland conversion to agricultural land
near Lake Mattamuskeet, Hyde County
Dear Mr. Dorney:
I have filed a petition for a hearing before the
Office of Administrative Hearings on the denial of our permit.
I would appreciate you forwarding me copies of the applicable
regulations for these water quality certifications. I would
also appreciate copies of any reports prepared by your office
in relation to this case and copies of any studies on which
those reports or your office's decision was based in whole or
in part.
In addition, I would appreciate you sending me copies
of any comments your office received in relation to our
application.
If you prefer, I can send a more formal discovery
request.
If you have any questions or comments, do not hesitate
to let me know.
Sincerely ours,
Geo. Thomas Davis, Jr.
GTDJr.:alcd
Enclosures
CC: Office of Administrative Hearings
Mr. Calvin Blythe Davis

NORTH CAROLINA
HYDE COUNTY
IN RE: APPLICATION OF GEORGE THOMAS
DAVIS, JR., AND CALVIN BLYTHE DAVIS
FOR WATER QUALITY CERTIFICATION ON PETITION
LAND NEAR LAKE MATTAMUSKEET IN
HYDE COUNTY
George Thomas Davis, Jr., and Calvin Blythe Davis
hereby petition the Office of the Administrative Hearings for
an adjudicatory hearing on the denial of the application of
your petitioners for a water quality certification which denial
is set forth in a letter to the undersigned dated August 13,
1991, a copy of which is hereto attached and incorporated
herein by reference.
The grounds for this petition include that the
Division of Environmental Management of the North Carolina
Department of Environment, Health, and Natural Resources has
deprived your petitioners of their property, has acted erron-
eously, and has acted arbitrarily and capriciously.
This the 21st day of August, 1991.
Geo. Thomas Davis, Jr.
Petitioner and Attorney for
Calvin Blythe Davis
P. 0. Box 277
Swan Quarter, North Carolina 27885
Tel. No. 919/926-0521

DAVIS & DAVIS
kTTORNEYS AT LAW
WAN QUARTER, N.C.
CERTIFICATION OF SERVICE
I hereby certify that I have this day served a copy of
the foregoing petition by depositing the same in an envelope
bearing sufficient postage in the United States Mail at Swan
Quarter, North CArolina, addressed to the following person at
the following address, which is the last address known to me:
North Carolina Department of Environment, Health, and
Natural Resources
Division of Environmental Management
P. 0. Box 29535
Raleigh, North Carolina 27626-0535
Attention of Mr. George T. Everett, Director
This the 2lstday of August, 1991.

Geo. Thomas Davis, Jr.
Attorney for Petitioners
P. 0. Box 277
Swan Quarter, North Carolina 27885

DAVIS & DAVIS
1TTORNEYS AT LAW
WAN QUARTER. N.C.
DAVIS & DAVIS
1 A T T O R N E Y S AT L A W
SWAN QUARTER. NORTH CAROLINA 27885
GEORGE T. DAVIS (1908-1979)
GEO. THOMAS DAVIS. JR.
September 2, 1991
State of North Carolina
Office of Administrative Hearings
P. O. Drawer 27447
Raleigh, North Carolina 27611-7447
,---.-//

P. O. BOX 277
TELEPHONE [phone]
FAC SIMILE [phone]
RECEIVE
SEP 0 5 199
FACILITIES ASSESSMENT UNIT
Re: George Thomas Davis, Jr. and Calvin Blythe Davis
vs. N.C. Department of Environment, Health and
Natural Resources, Division of Environmental
Management
Case No. 91-EHR-0794
Gentlemen:
As requested in your Notice dated August 27, 1991,
enclosed is a verification supporting our petition in the above
referred to matter.
I am also forwarding a copy of the enclosed verification
to the N. C. Department of Environment, Health, and Natural
Resources, Division of Environmental Management.
need
If you?any further documentation, please let me know.
Sincerely yours,

Geo. Thomas Davis, Jr.
GTDJr.:alcd
Enclosures
CC: N. C. Dept. of Environment, Health, and Natural Resources
Mr. Calvin B. Davis
sip 4? '??')'

STATE OF NORTH CAROLINA
COUNTY OF HYDE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
91 EHR 0794
GEORGE THOMAS DAVIS, JR. AND )
CALVIN BLYTHE DAVIS )
Petitioner )
V. )
N. C. DEPARTMENT OF ENVIRONMENT, )
HEALTH AND NATURAL RESOURCES, DIVISION )
OF ENVIRONMENTAL MANAGEMENT )
Respondent )
VERIFICATION
I, the undersigned, first being duly sworn, say that this petition is
true to my own knowledge, except as to matters stated on information
and belief, and as to those, I believe them to be true.
SWORN TO AND SUBSCRIBED BEFORE ME
September 3, 1991 September 3, 1991
Date Date
949
of . 11 _ - ?•,a_ .i1 -car _
Signature Your Signature
Notary Public
Title of person authorized to P. O. Box 277
administer oaths Swan. Quarter, North Carolina 27?
Your Address
919.-926-3731 _
_ r_
My commission expires: 3/18/96 Your Telephone Numbe_

NORTH CAROLINA
HYDE COUNTY m
IN RE: APPLICATION OF GEORGE THOMAS
DAVIS, JR., AND CALVIN BLYTHE DAVIS
FOR WATER QUALITY CERTIFICATION' ON PETITION
LAND NEAR LAKE MATTAMUSKEET IN
HYDE COUNTY
George Thomas Davis, Jr., and Calvin Blythe Davis
hereby petition the Office of the Administrative Hearings for
an adjudicatory hearing on the denial of the" application of
your petitioners for a water quality certification which denial
is set forth in a letter to the undersigned dated August 13,
1991, a copy of which is hereto attached and incorporated
herein by reference.
The grounds for this petition include that the
Division of Environmental Management of the North Carolina
Department of Environment, Health, and Natural Resources has
deprived your petitioners of their property, has acted erron-
eously, and has acted arbitrarily and capriciously.
This the 21st_ day of August, 1991.
Geo. Thomas Davis, Jr.
Petitioner and Attorney for
Calvin Blythe Davis
P. O. Box 277
Swan Quarter, North Carolina 27885
Tel. No. 919/926-0521

.}'.:'p?ti
AUG ?53 ;90,i
OFFICE
Hi
" _.
DAVIS a DAVIS
TTORNEYS AT LAW II
VAN QUARTER. N.C. i?

CERTIFICATION OF SERVICE
I hereby certify that I have this day served a copy of
the foregoing petition by depositing the same in -an envelope
bearing sufficient postage in the United States Mail at Swan
Quarter, North CArolina, addressed to the following person at
the following address, which is the last address known to me:
North Carolina Department of Environment, Health, and
Natural Resources
Division of Environmental Management
P. 0. Box 29535
Raleigh, North Carolina 27626-0535
Attention of Mr. George T. Everett, Director
This the 2lstday of August, 1991.
Geo. Thomas Davis, Jr.
Attorney for Petitioners
P. 0. Box 277
Swan Quarter, North Carolina 27885
•
:)AVIS & DAVIS
.TTORNEYS AT LAW
MAN QUARTER. N.C.

a ••' S7„ Tf .. .
a? tr? ?? ?3
State of North Carolina
Department of Environment, Health, and Natural Resources
Division of Environmental Management
512 North Salisbury Street • Raleigh, North Carolina 27604
James G. Martin, Governor August 13, 1991 George T. Everett, Ph.D.
William W. Cobey, Jr., Secretary Director
Certified Mail
Return Receipt Requested
Mr. George Thomas Davis, Sr.
Davis and Davis
Attorneys at Law
Swan Quarter, North Carolina 27885
Dear Mr. Davis:
Subject: Application for Water Quality Certification
Wetland conversion to agricultural land
near Lake Mattamuskeet
Hyde County
Your.application for a Water Quality Certification under
Section 401 of the Federal Clean Water Act was received by the
Division on June 18, 1991. The activity for which the
Certification is sought is for an after-the-fact permit to
convert a total of 91 acres of logged wetlands to agricultural
land. The purpose of the proposed project is to convert the
wetland to agricultural uses. In order for the Division to
provide a Water Quality Certification, we must certify that the
activity will not result in a violation of State Water Quality
Standards for waters of the State.
our staff has reviewed your application and has identified
specific concerns for impact of this project on Water Quality
Standards. This conversion will remove significant uses
including wildlife habitat, water storage and water quality
protection. Because of these concerns for potential violation of
the Standards, I have determined that your application shall be
denied.
REGIONAL OFFICES
Asheville Faycucville Mooresville Raleigh Wa.hin_ton Wilmington Winsum-Salem
704/251-6208 919/486-1541 704/663-1699 919/733.2.114 919/946-6481 919/395.3900 919/896-7007
Pollution Pre%ention Pa vs
P.O. Boa 29535, Raleigh. North Carolina 27626-0535* Telephone [phone]
An Equal Opportunity Affirmative Action Employer

Mr. George Thomas Davis, Sr.
Page Two
August 13, 1991
If this denial is unacceptable to you, you have the right to
an adjudicatory hearing upon written request within thirty. (30)
days following receipt of this denial. This request must be in
the form of a written petition conforming to Chapter 150B of the
North Carolina General Statutes and filed with the office of
Administrative Hearings, P.O. Drawer 11666, Raleigh,,NC 27604.
Unless such demands are made, this denial shall be final and
binding.
If you have any questions concerning this denial, please
contact Mr. John Dorney in the Water Quality Planning Branch of
this Division at [phone].
Sin96rxly I
rge . Everett
GTE:JD/kls
cc: Washington Regional Office
U.S. Army Corps of Engineers Wilmington Office
John Parker
John Dorney
Central Files

D A V I S & D A V I S
A T T O R N E Y S AT L A W
SWAN QUARTER. NORTH CAROLINA 27885
P. O. BOX 277
GEORGE T. DAVIS (1908.1979)
TELEPHONE (919 ) 926-3781
GEO. THOMAS DAVIS, JR. August 21, 1991 FACSIMILE [phone]
North Carolina Department of Environment, Health, and Natural
Resources
P. O. Box 29535
Raleigh, North Carolina 2762666-0515-
Attention of Mr.John Dorney
Water Quality Planning Branch
Re: Application for Water Quality Certification
Wetland conversion to agricultural land
near Lake Mattamuskeet, Hyde County
Dear Mr. Dorney:
I have filed a petition for a hearing before the
Office of Administrative Hearings on the denial of our permit.
I would appreciate you forwarding me copies of the applicable
regulations for these water quality certifications. I would
also appreciate copies of any reports prepared by your office
in relation to this case and copies of any studies on which
those reports or your office's decision was based in whole or
in part.
In addition, I would appreciate you sending me copies
of any comments your office received in relation to our
application.
If you prefer, I can send a more formal discovery
request.
If you have any questions or comments, do not hesitate
to let me know.
sincerely yours,
Geo. Thomas Davis, Jr.
GTDJr.:alcd
Enclosures
CC: Office of Administrative Hearings
Mr. Calvin Blythe Davis
r ,
? t
+r
May 7, 19 91 ,
District Engineer
Wilmington District, Corps of Engineers
P. O. Box 1890
Wilmington, North Carolina 28402
Dear Sir:
Enclosed please find an application for a 404 Permit
on some land in Hyde County. We have done the best we can to
complete this application and provide the details requested.
I note the instructions indicate that we should attach
a Corps transmittal letter. I take that to be a letter to me
from Lieutenant Colonel Thomas C. Suermann dated April 24,
1991.
If you need any further information besides that
contained in this packet, please let me know.
Respectfully yours,
Geo. Thomas Davis, Jr.
GTDJr.:alcd
Enclosures
CC: Coastal Management Field Services

APPLICATION
?t ?M?` ; ? r `. FOR
PERMIT TO EXCAVATE AND/OR FILL WATFR OUALITY CERTIFICATION
EASEMENT IN LANDS COVERED BY WATER CAMA PERMIT FOR MAJOR DEVELOPMENT
Department of Administration Slue of North Carolina Department of the Army
(GS 14612) Department of Natural Resources and Community, Development Corps of Engineers, Wilmington District
(GS 113.229, 143.215.3(a)(1), 143.21S.3(c), 113A•118 (33 CFR 209.320.329)
Please type or print and fill in all blanks. If information is not applicable, so indicate by placing N/A in blank.
1. Applicant Information Davis r Jr. Ca Thamas and
Davis Calvin Blythe
A. Name
Last First Middle
B. Address P. 0. Box 277
Street, P. 0. Box or Route
Swan Quarter North Carolina 27885 919/926-3781
City or Town State Zip Code Phone
II. Location of Proposed Project:
A. County dP
B. 1. City, town, community or landmarkon north side of U.S.264 about one mile west of NC Hwy 94 an(
2. Is proposed work within city limits? Yes No XX -1/2 miles east of Swan Quarter, N. C.
C. Crock, river, sound or bay upon which project is located or nearest named body of water to project
Mattgnuskeet Lake
111. Description of Project
A. 1. Maintenance of existing project 2. New work ditching and clearing for agriculture
S. Purpose of excavation or fill
I. Access channel length width---,_depth
2: Boat basin length width depth
3. Fill area ditch bank length 4840 YdS;width 1 yds depth Average 6"
4. other Execavation of ditch Icngth 4840 Ydswidtl-ve. 3.75 aZh 4 Ft.
C. I. Bulkhead length -0- Average distance waterward of MHW (shoreline) -UTICA
. 2. Type of bulkhead construction (material) N/A
D. Excivated material (total for project)
1. Cubic yards aPPX'OX• 8100 Cu. ydS 2. Type of material dirt frcm di ht--S to he dila
E. F ill material to be piacggd below MHW (see also V I. A)
1. Cubic yards U 2. Type of material N/A
IV. Land Type, Disposal Area, and Construction Equipment:
A. Does the area to be excavated include any marshland, swamps or other wetland? Yes XX No
B. Dues the disposal irea include any marshland, swamps or other wetland? Yes XX No
C. Disposal Area See attached location map
1. Location
2. Do y u claim title to disposal area? Yes
0. Fill material source if fill is to be trucked in
E. How will excavated material be entrapped and erosion controlled? 3 foot barrier with veget-ati nn hPt ?mP_
excavation and fill location
I . I ype of equipment to be 4sed baekhoe
G. Will marshland be crossed in transporting equipment to project site? If yes, explain No
)6 F-131
tev 10/79
V. Intended Use of Project Area (Describe)
A. 1. Private AgriCUltural
2. Commercial
3. Housing Development or Industrial
4. Other
B. 1. Lot size(s)
6. 'Land Classification
A roxunately 91 acres
2. Elevation of lot(s) above mean high water Average 24 inches-,
3. Soil type and texture
4. Type of building facilities or structures None
5. Sewage disposal and/or waste water treatment A. Existing Planned
8. Describe None needed
(circle one) DEVELOPED TRANSITIONAL COMMUNITY RURAL
CONSERVATION OTHER (See CAMA Loca an se Ian Synopsis;
VI. Pertaining to Fill and Water Quality:
A. Does the proposed project involve the placement of fill materials below mean high water? Yes No _ X
8. 1. Will any runoff or discharge enter adjacent waters as a result of project activity or planned use of the
area following project completion? Yes.SS.No?..
2. Type of discharge W=+-Ar
3. Location of discharge into adjacent existing di t-nh
VII. Present rate of shoreline erosion (if known): N/A
Vill. List permit numbers and issue dates of previous
work in project area, if applicable:
of Army Corps of Engineers or State permits for
IX. Length of time required to complete project: -- estimated 36 mnni-ha
X. In. addition to the completed application form, the following items must be provided:
A. Attach a copy of the deed (with State application only) or other instrument under which applicant
claims title to the affected property. OR if applicant is not claiming to be the owner of said property,
then forward a copy of the deed or'other instrument under which the owner claims title plus written
permission from the owner to carry out the project on his land.
B. Attach an accurate work plat drawn to scale on 8% X 11" white paper (see instruction booklet for
details). Note: Original drawings preferred - only high quality copies accepted.
C. A copy of the application and plat must be served upon adjacent riparian landowners by registered or
certified mail or by publication (G.S. 113.229 (d))Enter date served
D
List names and complete addresses of the riparian landowners with property adjoining applicant's.
Such owners have 30 days in which to submit comments to agencies listed below.
Refucle, RFD NO 11 Swan tarter. >`,or+-t?ina 97RRc,
Hal. G. Swindell, RFD No. 1, Swan Quarter, North Carolina 27885
X1. Certification requirement: I certify that to the best of my knowledge, the proposed activity, -)mpliesv
with the State of North Carolinas approved coastal management program and will be conducted in a'
mvnner consistent with such ornTam,
Xil. Any permit issued pursuant to.this application will allow only the development described in this appli-
cation and plat. Applicants should therefore describe in the application and plat all anticipated devel.
opment activities, including construction, excavation, filling, and land clearing.
DATE
Date g
OAF-82
Rev. 10/78
li(
SEE REVERSE SIDE FOR MAILING INSTRUCTIONS rs Signature
,,,,........ a . 'rp,awwv

HISTORY OF DEVELOPMENT
Davis Farm
Hyde County, North Carolina
The 92 acre tract for which a 404 permit is requested
is located on the north side of U. S. Highway 264, six miles
west of Swan Quarter, North Carolina. It is bounded on the
north by 104 acres of prior converted wetland owned by Geo.
Thomas Davis, Jr. and Calvin Blythe Davis which in turn are
bounded on the north by Mattamuskeet National Wildlife Refuge,
bounded-on the east by lands of Alma Lee C. Davis, bounded on
the south by U. S. Highway 264 which in turn is bounded on the
south by farmland owned by Geo. Thomas Davis, Jr. and Calvin
Blythe Davis, and Alma Lee C. Davis, and on the west by lands
owned by Hal Swindell.
The subject property has been in the Davis family for
over 60 years during which time several ditches were dug (See
Map). In the 1920'x, the Club House Ditch, 20 feet wide and 6
feet deep, was dug along the west boundary emptying into Lake
Mattamuskeet on the north and intersecting a ditch, 30 feet
wide, which runs along the south boundary of U. S. Highway 264
approximately one-eighth of the length of the property.
In 1964 the Club House ditch was cleaned out and a
short ditch was dug on the north boundary that intersected the
Mattamuskeet Refuge fire lane to provide drainage for the
i
f
entire length of the property. Also at this time a lateral
ditch was dug intersecting the Club House Ditch approximately
one-third of the distance from U. S. Highway 264 to the
Mattamuskeet Refuge boundary and angled toward U. S. Highway
264 running about three-fourths the distance to the Swindell
property line. This ditch, ten feet wide and five feet deep,
drained the slough which runs parallel to U. S. Highway 264 the
length of the property.
In 1967, a new ditch, 20 feet wide and 5 feet deep,
was dug on the west boundary of the property from U. S. Highway
264 to Lake Mattamuskeet. On the south end the ditch inter-
sects a.highway ditch, 15 feet wide and 5 feet deep, adjacent
to U. S. Highway 264, that runs approximately one-fourth the
length of the property.
In 1977, timber on the property was sold reserving the
cypress to be cut and used by the Davis family.
Because of existing drainage ditches, the Davis family
thought a 404 permit was not required to develop the subject
land for agriculture, and purchased a bulldozer in April 1982.
Development actually commenced in July 1982. This can be
verified by Hyde County ASCS records and aerial slides.
In 1987, Calvin Blythe Davis and Geo. Thomas Davis,
Jr., went to the County ASCS Committee to request a prior
t
commencement determination that said the project was commenced
before December, 1985, the initial date for commencement in the
1985 Farm Bill. The bill also said that the property must be
planted by December, 1994. The ASCS committee gave a commenced
conversion determination on the entire property including the
104 acre tract north of the subject tract. At that time, the
Soil Conservation Service declared the 104 acres to have been
converted wetland as of December, 1985, but because of the
standing cypress did not give a converted determination on the
remaining 92 acres.
In 1989, the lateral ditch into which the slough on
the south side of the property drained, was filled to make
preparation for the final ditches and to facilitate windrow
maintenance. In 1990, after the cypress was sold to a commer-
cial logger, the first ditch was dug through the 92 acre tract.
On March 12, 1991, a notice was posted on the property
stating that without a 404 permit, clearing the property was in
violation of federal law. Soon after, the landowners met with
ACOE representative Ralph Thompson and were informed that a
permit would be required to continue development of the tract.
The landowners were told to plug the first ditch in the 92 acre
tract and not to reclaim the original ditch until a permit was
issued. The Davis, complied with the order.

PROJECT STATEMENT
Davis Farm
Swan Quarter, North Carolina
It is economically unreasonable to expect Hyde County
landowners to maintain all of their wetlands in an undeveloped
state. The 5,411 residents have an average individual income
of $10,012 per year which is 94th out of the 100 counties in
North Carolina 1,2 . Unemployment in Hyde is 17.5% which compares
to 5.7% in the State as a whole3.
In 1991, to finance federal and state requirements
such as transporting solid waste to an adjacent county, Hyde
County found it necessary to raise the advalorem tax rate to
94 cents per 100 dollars of value compared with more developed
neighboring Beaufort County's tax rate of 46 cents per 100
dollars of value4'S. The county tax base is severely limited by
lack of development which is directly related to the restric-
tions placed on wetlands. A Soil Conservation Service survey
determined Hyde County land was over 95% hydric soils which
means to develop any of the presently undeveloped land, a 404
permit must be granted 6. Between 2/3 and 3/4 of Hyde's total
land mass is considered undeveloped wetlands4. On an average,
by converting forest land to agriculture the tax value in-
creases by a factor of two, and by converting scrub land to
agriculture, the tax value increases by a factor of nine.

The tax base and economic activity is further limited
by federal and state governments' ownership of approximately
138,000 acres out of Hyde County's total land base of 399,501
acres, over one-third of this County. U. S. Fish and Wildlife
Service payments in lieu of advalorem taxes are dependent on
the availability of funds in that year's budget and in the past
have fallen far short of standard tax assessments4.
Agriculture would promote more economic activity than
silviculture, the only 404 exempted alternative for the subject
tract. In 1990 the 100,000 acres of cropland in Hyde County
produced gross sales of $28,695,320 while 222,600 acres of
forest land produced gross sales of only $4,554,657--less than
half the land produced six times the gross income 7. The 60,471
acres of scrub land and marsh produced very limited income from
fee hunting8.
Since North Carolina ranks in the top dozen states in
the production of poultry and pork, it requires a source of
reliable good quality feed grain to compete with the midwest
livestock industry. In 1989, North Carolina produced about 90
million bushels of corn but used 240 million bushels9. The
State's economy would benefit from increased grain production,
a need that Hyde County landowners could help meet.
Agriculture can also enhance the county's wildlife
resources and tourism opportunities. The Canada goose popu-

lation at Mattamuskeet has been in a stead
144 000 Y decline since the
count in the late 1950', to the 1990-91
81000 bird peaklo. count of an
Enclosed is Table No. 1 from the U. S. Fish
and Wildlife Service showing season peaks fo
years. For the r the last eleven
past five years, grazin
tundra g by Canada geese and
swans has been allowed on the
family ("Donnell Farm" land owned by the Davis
south of the subject tract. The birds
have used the area extensively as can be s
Wildlife Table No, een on U. S. Fish and
2 which gives the Donnell Farm count alon
with counts from two other areas leased by g
Carolina Y the State of North
as waterfowl
sanctuaries.
enrolled 620 The Davis family has
acres of the Donnell Farm in the State program fo
the first time in the 1991_ r
1992 season and plans not to hunt
geese or swan over the 404 permit area so
only as a corridor of that it may serve not
safe passage to the State
from Lake Mattamuskeet Refuge area
but so that it may also serve as a
protected grazing area. Also enclosed
U, S. are two pages from the
Fish and Wildlife
Services 1990-91 Mattamuskeet NWR
narrative which further explains the
plight of the Canada goose
Population. A field of wheat is more beneficial '
geese than a monoculture to Canada
of pine trees which is
economically feasible the only
alternative.
During the past two
years, approximate)
Of Hyde County cropland reverted back to w y 2500 acres
Lakes National etlands on Pocosin
Wildlife Refuge and 1074.5 acres of cro lan
were enrolled in the Conservation p d
Reserve Program resolving
President Bush's proclamation of no net loss of wetlands". The
3574.5 acres more than offset the 92 acres under this proposal.
In permitting this 92 acres to be developed for
agriculture, there will be no hemorrhage of applications in
Hyde County to develop wetlands.' The land owned by the State
and Federal Government which exceeds one-third of the total
land in Hyde County will always remain undeveloped. The Swamp
Buster provision in the 1985 bill causes the loss of all farm
program benefits to landowners who developed wetlands after
December 1985. Few people are willing to pay this price for
more farm land.
r'
i
1) U. S. Census Bureau; 1990 census
2) N. C. Employment Security Commission; 1988
3) N. C. Employment Security Commission; February 1991
4) Hyde County Tax Office
5) Beaufort County Tax office
6) Soil Conservation Service; 1989.
7) Hyde County Agriculture Extension Service; 1990
8) Subtracted U. S. Forest Service, 1984 figures for Hyde
County forest land from Soil Conservation Service
figures for combined forest land, scrub land, and
marsh land
9) J. Derby, grain buyer for Goldsboro Milling Co., Golds-
boro, North CArolina; 1989
10) U. S. Fish and Wildlife Service; 1991
11) Hyde County ASCS Office
Ct\wp50\MISC\CBD-GTD.COE
u a §w ns
During the past twenty-five Years the Atlantic Flyway tundra swan
population has increased 50% from 60,000 to 90,000 (Table 7)„
During the same period, that portion of the population that
wintered in North Carolina increased from about 20% to over 75%,
and the portion that wintered at Mattamuskeet NWR increased frr..,rn
2% to 50% (Figure 1). The two latter increases represent:: a
major wintering area shift from Chesapeake-Bay to the Lake
Mattamuskeet vicinity.
Although the 1990--91 North Carolina tundra swan population was
about 11,500 less than the record high set in 1989-90, the late
December refuge count of 45,000 was a refuge record. Total season
use days (2.5 million) were up significantly from 1989-90 and 0.5
million above the refuge objective. The outstanding amount of
tundra swan use directly corresponded with the outstanding amOUnt
of shallowly flooded emergent vegetation along the shore of Lak
Mattamuskeet, a grand result of the 1990 drought„ The majority
of the swans arrived in early November and departed in mid March.
In late November refuge staff conducted the annual tundra swan
productivity survey and found that birds identifiable as pairs
had an average of 1.97 young and that 10.0% of the flock was
Young of the year birds (Figure ).
This was the seventh year of the North Carolina "permit only"
'tundra swan hunt and the fifth Year that permits were honored (:,n
the refuge hunt (Section H-8).
Canada goose use (850,000 use days) hit a record low in 1990-91
Probably because the 5000-w8000 birds that normally arrive after, a
mid or late winter cold spell never got cold and stayed in the
balmy climes of the Delmarva Peninsula and Pennsylvania.The 7000
8000 birds remaining ..in the southern cohort population
arrived as usual between mid September and Thanksgiving. The
refuge goose count was 3800 in mid October, 6000 by early
November, and 8000 by early January afterwhich it held steady
until the birds' departure in mid March. The peak and use day
figures are both well below the ten Year average (13,740 and 1..2
million) and the refuge objective (20,000 and 2.0 million).
Canada geese fed regularly in soybean stubble, winter wheat,
sprouted corn, and standing corn on private and refuge property.
Use of standing or knocked down corn was less than in normal.
colder winters. The birds were particularly attracted to the
privately owned state waterfowl sanctuaries.in Fairfield and
Nebraska.
"t"hese areas totalling 1.500 acres were part of a 6,000 acre
project initiated in 1.98A by the N6WRC to provide feeding
sanctuary for Canada geese, in return for a fee, the landowners
planted corn and winter wheat f.or the birds and prohibited all
activities, including hunting, except for those required by
normal agricultural practices.
Canada goose use peaked at Mattamuskeet NWR-6u ring the 19599-6
season at 144,400 birds. Since then, the refuge goose <. hc:,s.
1:1ecreased (Figure. 1) as tie majority of the Atlantic Flyway
population winter*24 north of North Carolina. Between 198:1
and 1985 the NCWRC released over 1,300 geese in Hyde and adjacent
counties with the intent of establishing a resident flock. TI--ie
refuge did not encourage this project, and although none were
released on the refuge after 1981, the lake and impoundments have
received year-round use by about 200 of those birds for the pa-,t
three years. Several broods were seen on the refuge in June and
July. State biologists estimate that 200 goslings were raised in
Hyde County in 1990,
10 el.
Table Peak Waterfowl Populations and Use Days (Millions)
Tundra Canada Snow
Swan Peak Goose Peak Goose Peak Duck Peak
Season (Use Days) (Use Days) (Use Days) (Use Days)
1980-81 14,000 (0.9) 20,000 (1.7.) 6,000 (0.4) 40,500 (3.8)
1981-82 19,000 (1.3) 13,900 (1.3) 3,200 (0.1) 88,300 (6.3)
1982-83 25,100 (1.1) 13,500 (1.1) 3,500 (0.3) 36,500 (2.1)
1983-84 22,500 (1.0) 12,500 (1.1) 2,900 (0.2) 44,300 (2.7)
1984-85 36,800 (3.1) 16,800 (1.7) 6,000 (0.45) 53,200 (4.2)
1985-86 34,000 (2.3) 18,600 (1.1) 5,500 (0.3) 64,300 (4.2)
1986-87 38,500 (2.1) 11,700 (1.3) 4,100 (0.3) 47,600 (4.2)
1987-88 29,800 (1.9) .10,100 (1.0) 5,500 (0.3) 86,550 (7.4)
1988-89 23,000 (1.5) 17,300 (1.3) 5,000 (0.3) 122,400 (8.0)
1989-90 30,000 (2.1) 15,000 (1.4) 6,200 (0.6) 145,900 (9.9)
1990-91
- - - - 45,000
- - - - - (2.5)
- - - 8,000
- - - - - (0.85)
- - - 5,000
- - - - (0.5)
- - - 151,850
- - - - - (14.2)
- - -
10. Year
Average 33,400 (1.9) 13,800 (1.2) 4,700 (0.35) 84,100 (6.3)
Refuge 20,000 (2.0) 20,000 (2.0) No Objective 70,000\,.°(7.0)
Objectives

it

Location Observation
/24/90 Nebraska 50 Canada'Geese soybean stubble
/02/90 Nebraska 250 Canada:Geese - soybean stubbl-e
Nebraska 200 Snow.Geese - soybean stubble
/02/90 Donnell Farm 30 Canada Geese - winter wheat
/21/90 Nebraska 1500 Snow.Geese - winter wheat
Nebraska 145 Canada Geese - soybean stubble
Donnell Farm 200 Canada.Geese - winter wheat
Fairfield* 80 Canada Geese - soybean stubble
/06/90 Nebraska 450 Canada,Geese - soybean stubble
Nebraska 1200 Snow Geese - winter wheat
.Nebraska 210 Tundra Swans - winter wheat
Fairfield 40 Tundra Swans - winter wheat
Donnell Farm 140 Canada Geese - winter wheat
28/90 Nebraska 120 Canada Geese - soybean stubble
Nebraska 1350 Snow Geese - soybean stubble & winter,
wheat
Fairfield 40•Canada;Geese - soybean stubble
Fairfield •15 Tundra;Swans - winter wheat
10/91 Nebraska 325 Canada Geese - soybean stubble
Nebraska 160.Tundra Swans - winter wheat
Donnell Farm 850 Canada Geese - winter wheat
Donnell Farm 1300 Tundra Swans - winter wheat
2/91 Nebraska 30 Canada Geese - soybean stubble
Fairfield 130 Canada Geese - winter wheat
8/91 Fairfield 320 Canada Geese - loafing near shore
Donnell Farm 810 Canada Geese - winter wheat
AW
,f
Location Observation
/17/91 Nebraska 20 Canada;LGeese - soybean stubble
Nebraska 90 Tundra Swan - winter wheat
Donnell Farm 800 Canada,,Geese - winter wheat
02/15/91, Fairfield 450 Canada(,Geese:- winter wheat
Fairfield 85 Tundra ;Swan -winter wheat
..,
.,.,Nebraska., 3500 Snow,Gee.se.- winter wheat
Nebraska, 175 CanadarGeese - winter wheat
Nebraska 1800 Tundra Swan - winter wheat
.Donnell Farm
Donnell Farm
)2/19/91 Nebraska
Fairfield
.Donnell Farm
Donnell Farm
)2/21/91 Nebraska
Donnell Farm
)2/22/91 Donnell Farm
Donnell Farm
Fairfield
Fairfield
13/05/91 Fairfield
725 Canada,Geese - winter wheat
1200 Tundra.Swan - winter wheat
750. Tundra:Swan - winter wheat
650 Canada;Geese - soybean stubble
1400 Canada Geese - winter wheat
1900 Tundra Swan - winter wheat
75 Canada Geese - soybean stubble
960 Canada Geese - winter wheat
1100 Canada Geese - winter wheat
1800 Tundra Swan - winter wheat
425 Canada Geese - soybean stubble
40 Tundra Swan - winter wheat
550 Canada Geese - winter wheat
Fairfield 40 Tundra.Swan - winter wheat
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SEP-17-1993 14:27 FROM EHNR WASH REG OFFICE TO 1y1yr??l??? i-r.01
-
'T -- -- --
Post-Ir brand fax transmittal memo 7671 # Of pages ?
ITo From
j
r . A
STATE OF NORTH CAROLINA AUG t' ! Gg
COUNTY OF HYDE
F1 F,"
ADNdI';1SIF;ti:-
GEORGE THOMAS DAVIS, JR. AND
CALVIN BLYTHE DAVIS )
Petitioner )
V. )
N. C. DEPARTMENT OF ENVIRONMENT, )
HEALTH AND NATURAL RESOURCES, DIVISION )
OF ENVIRONMENTAL MANAGEMENT )
Respondent )
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
91 EHR 0794
NOTICE OF HEARING
G.S. 150B-23(b)
NOTICE IS HEREBY GIVEN that the above-captioned case will be
brought on for hearing before the undersigned administrative law
judge on September 27, 1993 to September 28, 1993 at 9:00 AM until
5:00 PM in the Lee House, 422 North Blount Street, Raleigh, North
Carolina.
1. This hearing will be conducted` in accordance with G.S. Chapter
150B and the Rules of Contested Case Hearings in the Office of
Administrative Hearings, copies of which may be obtained at cost
from Molly Masich, Director of APA Services.
2. Unless otherwise determined by the administrative law judge, the
hearing will proceed in the following sequence:
a. Call of the case;
b. Motions and other preliminary matters,
c. Stipulations, agreements, or consent orders entered into
the record;
d. Opening statements;
e. Presentation of evidence, cross-examination;- and
f. Final arguments.
3. All parties are hereby notified to bring to the hearing all
documents, records, and witnesses needed to present the party's
case.
NOTE: IF SPECIAL EQUIPMENT IS REQUIRED FOR THE PRESENTATION OF
EVIDENCE, THE PARTIES ARE RESPONSIBLE FOR MAKING ARRANGEMENTS
FOR THE EQUIPMENT.
4. Subpoenas may be available to the parties pursuant to 26 NCAC 3
.0013 to compel the attendance of witnesses or for the
production of documents.
- .A.
-2-
5. A party may represent himself or be represented by an attorney.
A party who is represented by an attorney must file a Notice of
Representation within 10 days of service of this Notice
containing the name, address, and telephone number of the
attorney, unless the attorney has already corresponded with this
office concerning this case.
TAKE NOTICE THAT A FAILURE TO APPEAR AT THE HEARING MAY RESULT IN:
1. A finding that the allegations of or the issues set out in
this Notice may be taken as true or deemed proved without
further evidence;
2. Dismissal of the case or allowance of the motion or petition;-
3. Suppression of a claim or defense;-or
4. Exclusion of evidence.
This the day of August, 1993.

V
red G. Morrison Jr.
Senior_Administrative L w Judge
NOTICE OF CANCELLATION OF HEARING
THE PARTIES MUST NOTIFY THE OFFICE OF ADMINISTRATIVE HEARINGS AT
LEAST 24 HOURS PRIOR TO THE CANCELLATION OF THE CONTESTED CASE
HEARING. FAILURE TO GIVE TIMELY NOTICE OF CANCELLATION MAY RESULT IN
A CHARGE TO THE PARTIES FOR THE COST OF THE COURT REPORTER OR HEARING
ASSISTANT. SEE 26 NCAC 3 .0022(2).

-3-
A copy of the foregoing was mailed to:
Lars P. Simonsen
Attorney at Law
P. 0. Box 9
Windsor NC 27983-
Attorney for Petitioner
Kathryn Jones Cooper
Special Deputy Attorney
General
NC Department of Justice
PO Box 629
Raleigh NC 27602-0629
Attorney for Respondent
This the day of August, 1993.
1
Office of Admi.nistrati?ae earl gs
PO Drawer 27447
Raleigh NC 27611-7447
919/733-2698
v
m I
'9'75

C 1
n
?.`[T I.en ?•`• " qtr.- ,? A _ '..
PRITCHETT, COOKE & BURCH
ATTORNEYS AT LAW
203 DUNDEE STREET • POST OFFICE DRAWER 100
WINDSOR, NORTH CAROLINA 27983
TEL. [phone]
FAX. ( 919 ) 794- 2392
W.L. COOKE
STEPHEN R. BURCH
WILLIAM W. PRITCHETT, JR.
LLOYD C. SMITH, JR.
DAVID J. IRVINE, JR.-
STEPHANIE S. IRVINE*
LARS P. SIMONSEN
*MEMBERS OF NC
AND VA BAR
July 6, 1993
Ms. Kathryn Jones Cooper
Special Deputy Attorney General
N. C. Department of Justice
P. 0. Box 629
Raleigh, North Carolina 27602-0629
Re: Davis 401 Certification Contested Case Hearing
Our File Number: 91-S-692
Dear Kathryn:

J.A. PRITCHETT
(1697-1986)
I am writing with regards to the response to
Petitioners First Set of Interrogatories and Request for
Production of Documents served in the above matter. The
responses that I received from you were not verified. Please
provide me with the verification for thee responses at your
earliest convenience. Additionally, copies of Exhibit 5 and
Exhibit 6 to those responses, namely the field notes, dated
6/21/91 and the Wetlands Rating System Worksheet, dated 6/21/91,
are barely legible. I would like to obtain better photographed
copies of these exhibits for use at the hearing. Please provide
me with such copies at your earliest convenience.
I appreciate your attention to tl'`a.is matter.
Sincerely yours,
PRITCHETT, COOKE & BURCH
6 a
Lars P. Simonsen
LPS/jah
cc: Mr. George T. Davis
Mr. Calvin B. Davis
P. 0. Box 277
Swan Quarter, N. C. 27885

4 `STATE OF NORTH CAROLINA IN T3E OFFICE OF
AdMINISTRAT VII RMRINGS
COUNTY OF HYDE JUL ? 8 5s 9 i EHR 07.9
OfriC?
GEORGE THOMAS DAVIS, JR. AND
CALVIN BLYTHE DAVIS
Petitioner
V.
N. C. DEPARTMENT OF ENVIRONMENT,
HEAL'T'H AND NATURAL RESOURCES, DIVISION
OF ENVIRONMENTAL MANAGEMENT
Respondent
ORDER OF APPOINTMENT
AND NOTICE OF
SETTLEMENT CONFERENCE
Under the provisions of 26 NCAC 3 .0007, the undersigned hereby
appoints Beecher R. Gray, Administrative Law Judge, for the purpose
of conducting a settlement conference in the above-captioned
contested case. The settlement conference will be conducted by
telephone conference call on Tuesday, July 20, 1993 at 9:00 a.m.
This the t+b day of July, 1993.
Jul'i.an Mann, III
Chief Administrative Law Judge

-2-
., A popy,. ?f t4e for.*joing was mailed. to:
Lars P. Simonsen
Attorney at Law
P. 0. Box 9
Windsor NC 27983-
Attorney for Petitioner
Kathryn Jones Cooper
Special, Deputy Attorneq x
General.-
NC Department of Justice
PO Box 629
Raleigh NC 27602-0629
Attorney for Respondent
This the _S? day of July, 1993.
Office o A istrative He rings
PO Drawe 27 7
Raleigh NC 7611-7447
919/733-2698
PRITCHETT, COOKE & BURCH
ATTORNEYS AT LAW
203 DUNDEE STREET • POST OFFICE DRAWER 100
WINDSOR, NORTH CAROLINA 27983
TEL. ( 919) 794-3161
FAX. ( 919) 794-2392
W.L. COOKE
STEPHEN R. BURCH
WILLIAM W. PRITCHETT, JR.
LLOYD C. SMITH, JR.
DAVID J. IRVINE, JR.-
STEPHANIE B. IRVINE'
LARS P. SIMONSEN
*MEMBERS OF NC
AND VA BAR
June 30, 1993
Ms. Kathryn Jones Cooper
Special Deputy Attorney General
North Carolina Department of Justice
P. 0. Box 629
Raleigh, NC 27602-0629
Re: 401 Certification
George Thomas Davis, Jr., et al vs. NCDEHNR
Our File Number: 91-S-692
Dear Kathryn:
WIA
I have enclosed Petitioners First Request for
Admissions, as well as petitioners Request for Production of
Documents in the above matter. As to the Request for Production
of Documents, there is no need for you to provide me with
additional copies of documents which were provided pursuant to
the previous discovery. All I am seeking under this Request for
Production of Documents is any additional documents which you
contend form the respondent's record of decision in the above
case.
If you have any questions or concerns about this
matter, feel free to call me.
Sincerely yours,
PRITCHETT, COOKE & BURCH
Lars P. Simonen
LPS/jah
cc: George T. Davis
Calvin B. Davis
P. 0. Box 277
Swan Quarter, N. C. 27885
. EF 4,t• Ly
#1f:.. 1 19,3
J.A. FRITCHETT
(11397-1996)
q 9W
- 71993

STATE OF NORTH CAROLINA
COUNTY OF HYDE
Calvin Blythe Davis and
George Thomas Davis,
Petitioners
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
91-EHR-0794
REQUEST FOR PRODUCTION
OF DOCUMENTS
vs.
North Carolina Department of Environment,
Health and Natural Resources, Division of
Environmental Management,
Respondent

To: The North Carolina Department of Environment, Health
and Natural Resources, Division of Environmental Management, c/o
Kathryn J. Cooper, Associate Attorney General, Department of
Justice, P. 0. Box 629, Raleigh, N. C. 27602-0629
You are hereby requested to produce the following described
documents, pursuant to Rule 34 of the North Carolina Rules of
Civil Procedure, within thirty days of the date service is made
upon you.
1. Please produce all documents which you contend form the
Respondent's record of decision supporting its denial of the
Petitioners' application for 401 Certification in the above case.
This the c/day of June, 1993.
?... '
PRITCHE''T, CW Kt & BURCH
-` 1 r i
BY:
Lars P. Simonsen
Attorney for Petitioners
Post Office Box 9
Windsor, N. C. 27983
Telephone: [phone]
1
M
CERTIFICATE OF SERVI&E
I hereby certify that on the day of June, 1993, I
served a copy of the foregoing upon counsel for all parties in:
this matter by enclosing the same in a postpaid sealed envelope
properly addressed to:
Kathryn J. Cooper
Associate Attorney General
Department of Justice
P. 0. Box 629
Raleigh NC 27602-0629
PR I TC TT , 0LE -.BURCH
By : ?.' '\
Lars P. Simonsen
Attorney for Petitioner
Post Office Drawer 100
Windsor, NC 27983
[phone]
/usr/lps/Davis,RA/jah/91-S-692
2
a _.._ _ ....A
Log - C dr C '
SEP 1 3 1993
WETLANDS?? 0up
State of North Carolina WATER UALITYSECTON
MICHAEL F. EASLEY Department of Justice
ATTORNEY GENERAL P. O. BOX 629
RALEIGH
27602-0629 REPLY TO: Kathryn Cooper
Environmental
Section
[phone]
September 10, 1993
Lars P. Simonsen
PRITCHETT, COOKE & BURCH
Post Office Drawer 100
Windsor, North Carolina 27983
RE: George Thomas Davis Jr and Calvin Blythe Davis V.
North Carolina Department of Environment Health and
Natural Resources Division of Environmental Nana e-
ment, 91 EHR 0773, Hyde County
Dear Lars:
Enclosed are Respondent's ANSWERS TO PETITIONERS' SECOND
REQUEST FOR ADMISSIONS. If you have any questions, please call
me at [phone].
Sincerely,
Ka hryn a Cooper
Special Deputy Attorney General
KJC/klj
Enclosure
cc: John Dorney
An Equal Opportunity / Affirmative Action Employer

STATE OF NORTH CAROLINA
COUNTY OF HYDE
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
91 EHR 0794
GEORGE THOMAS DAVIS, JR. AND
CALVIN BLYTHE DAVIS,
Petitioners,
V.
N.C. DEPARTMENT OF ENVIRONMENT,
HEALTH AND NATURAL RESOURCES,
DIVISION OF ENVIRONMENTAL
MANAGEMENT,
Respondent.
ANSWERS TO
PETITIONERS' SECOND
REQUEST FOR ADMISSIONS
Special Deputy Attorney General Kathryn Jones Cooper, Attor-
ney for the Respondent, North Carolina Department of Environment,
Health and Natural Resources, Division of Environmental Manage-
ment, says in answer to Petitioners' Second Request For Admis-
sions dated August 12, 1993, as follows:
1. Admit that the North Carolina General Statute, Section
143-215(c)(1) requires that prior to adopting an effluent stan-
dard, limitation or management practice more restrictive than the
-most nearly applicable federal effluent standard limitation or
management practice, the Environmental Management Commission con-
sider an evaluation of the impact of the proposed effluent stan-
dard limitation or management practice.
ANSWER: Admitted.

-2-
2. Admit that under N.C.G.S. 143-215(c)(1) effluent stan-
dards, limitations or management practices more restrictive than
the most nearly applicable federal effluent standard or limita-
tion and management practice may only be adopted if the evalua-
tion prepared by the Department of Environment, Health and Natu-
ral Resources shows that the environmental, public health, safety
and welfare benefits of such proposed effluent standards or limi-
tations and management practices justify cost.
ANSWER: Admitted.
3. Admit that the practicable alternative test is one of
the guidelines applied under Section 404(b)(1) of the Clean Water
Act and its implementing regulations.
ANSWER: Admitted.
4. Admit that prior to adopting the practicable alterna-
tives test as a guideline in the North Carolina Section 401 Water
Quality Certification Program, the North Carolina Department of
Environment, Health and Natural Resources did not prepare an
evaluation of the impact of the practicable alternatives test
pursuant to N.C.G.S. 143-215(c)(1).
ANSWER: Respondent cannot truthfully admit or deny Request No.
4 for the following reason:

-3-
Respondent's use of the practicable alternatives test
in 40 CFR Part 230, Subparts A through F, as guidance
in determining whether dredge and fill activities will
be considered removing existing uses of wetlands (see
15A NCAC 2B.0109), is derived from Respondent's statu-
tory authority to adopt water quality standards (G. S.
143-214.1), not from its statutory authority to adopt
effluent standards (G.S. 143-215).
This the ro day of September, 1993.
MICHAEL F. EASLEY
ATTORNEY GENERAL
By L- - * 7VaX"7?
KKatfiry?i J s ooper
Special Dep Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602-0629
[phone]

-4-
STATE OF NORTH CAROLINA
COUNTY OF WAKE
Personally appeared before the undersigned, an officer duly
authorized by law to administer oaths, JOHN R. DORNEY, Supervisor
of Wetlands and Technical Review Group, Water Quality Planning
Branch, Division of Environmental Management, for the Respondent
North Carolina Department of Environment, Health and Natural
Resources, who being duly sworn states under oath that the facts
set forth in the ANSWERS TO PETITIONERS' SECOND REQUEST FOR
ADMISSIONS are true and correct and that the answers are given
under oath.-
Jo R. Dorney
Sworn to and subscribed before me
this the _1*" day of September, 1993.
Notary Public
My Commission Expires:
(SEAL)

-5-
CERTIFICATE OF SERVIC
This is to certify that I have this day served a copy of the
foregoing ANSWERS TO PETITIONERS' SECOND REQUEST FOR ADMISSIONS
on the attorney for the Petitioners, by depositing the copy in
the United States Mail, first class, postage prepaid, addressed
as follows:
Lars P. Simonsen
PRITCHETT, COOKE & BURCH
Post Office Drawer 100
Windsor, North Carolina 27983
This the &f-day of September, 1993.
MICHAEL F. EASLEY
ATTORNEY GENERAL
By L---
Ka ryn J e ooper
Special Dept Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602-0629
[phone]
davis2ad.kc
Alk
PRITCHETT, COOKE & BURCH
ATTORNEYS AT LAW
203 DUNDEE STREET - POST OFFICE DRAWER 100
WINDSOR, NORTH CAROLINA 27963
TEL. ( 919 ) 794- 3161
FAX. ( 919)- 794-2392
W.L. COOKE
STEPHEN R. BURCH
WILLIAM W. PRITCHETT, JR.
LLOYD C. SMITH, JR.
DAVID J. IRVINE, JR.-
STEPHANIE B. IRVINE'
LARS P. SIMONSEN
*MEMBERS OF NC
AND VA BAR
August 11, 1993
Ms. Kathryn Jones Cooper
Office of Attorney General
Justice Building
2 E. Morgan Street
P. 0. Box 629
Raleigh, N. C. 27602-0629
Re: Davis 401 Certification Contested Case
Our File Number: 91-S-692
Dear Kathryn:
5- N
?L 13 1,93
..
J.A. PRITCHETT
(1897-1986)
E2AUG 7 (993
WFTI A0.i9]S 141t(ki j,, ..,,_...
I have enclosed Petitioner's Second Request for
Admissions in the above matter. I did not intend to serve any
additional discovery in this matter after the last request that I
sent to you. However, in response to two of the responses to the
First Request for Admissions, I saw a need to clarify some of
those requests to enable you to respond appropriately. These
requests concern the cost benefit analysis required by N.C.G.S.
Section 143-215(c)(1). If these requests are in any way unclear,
please let me know as soon as possible so that I can make efforts
to clarify them so that I can get responses from your client in
time for the September 27th hearing.
I greatly appreciate your attention to this matter.
Sincerely yours,
PRITCHETT, COOKE & BURCH
Lars . Simonsen
LPS/jah
cc: Mr. George T. Davis
Mr. Calvin B. Davis
P. 0. Box 277
Swan Quarter, N. C. 27885
w
STATE OF NORTH CAROLINA
COUNTY OF HYDE
Calvin Blythe Davis and
George Thomas Davis,
Petitioners
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
91-EHR-0794
PETITIONERS SECOND
VS. REQUEST FOR ADMISSIONS
North Carolina Department of Environment,
Health and Natural Resources, Division of
Environmental Management,
Respondent
To: The North Carolina Department of Environment, Health
and Natural Resources, Division of Environmental Management, c/o
Kathryn J. Cooper, Associate Attorney General, Department of
Justice, P. O. Box 629, Raleigh, N. C. 27602-0629
You are hereby requested to admit, for the purposes of this
action only, the truth of the following matters, pursuant to Rule
36 of the North Carolina Rules of Civil Procedure, in writing,
under oath, within thirty days of the date service of these
requests were made upon you. If you fail to admit the truth of
any matters requested herein,, plaintiffs will seek to recover
reasonable expenses, including attorney's fees, incurred in
proving the truth of said matter, pursuant to Rule 37 of the
North Carolina Rules of Civil Procedure.
1. Admit that North Carolina General Statute, Section 143-
215 (c) (1) requires that prior to adopting an effluent standard,
limitation or management practice more restrictive than the most
nearly applicable federal effluent standard limitation or
management practice, the Environmental Management Commission
consider an evaluation of the impact of the proposed effluent
standard limitation or management 1 practice. •?? ??
. y
2. Admit that under N.C.G.S. 143-215(c)(1) effluent
standards, limitations or management practices more restrictive
than the most nearly applicable federal effluent standard or
limitation and management practice may only be adopted if the
evaluation prepared by the Department of Environment, Health and
Natural Resources shows that the environmental, public health,
safety and welfare benefits of such proposed effluent standards
or limitations and management practices justify cost.

3. Admit that the practicable alternative test is one of
the guidelines applied under Section 404(b)(1) of the Clean Water
Act and its implementing regulations.
4. Admit that prior to adopting the practicable
alternatives test as a guideline in the North Carolina Section
401 Water Quality Certification Program, the North Carolina
Department of Environment, Health and Natural Resources did not
prepare an evaluation of the impact of the practicable
alternatives test pursuant to N.C.G.S. 143-215(c)(1).
2

This the day of August, 1993.
PRITCH T, TE ;&-&?
BY : Lars P Simonsen
Attorney for Petitioners
Post Office Box 9
Windsor, N. C. 27983
Telephone: [phone]
CERTIFICATE OF SERVICE
I hereby certify that on the day of August, 1993, I
t
served a copy of the foregoing upon counsel for all parties in
this matter by enclosing the same in a postpaid sealed envelope
properly addressed to:
Kathryn Jones Cooper
Associate Attorney General
Department of Justice
P. 0. Box 629
Raleigh NC 27602-0629
PRITC TT' CI!- BURCH /k ? By : ? > ki
Lars P. Si onsen
Attorney for Petitioner
Post Office Drawer 100
Windsor, NC 27983
[phone]
/usr/lps/Davis,RA2/jah/91-5-692
3
7
STATE OF NORTH CAROLINA
COUNTY OF HYDE
GEORGE THOMAS DAVIS, JR. AND
CALVIN BLYTHE DAVIS,
Petitioner,
V.
N.C. DEPARTMENT OF ENVIRONMENT,
HEALTH, AND NATURAL RESOURCES,
DIVISION OF ENVIRONMENTAL
MANAGEMENT,

IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
91 EHR 0794
RESPONSE TO PETITIONER'S
FIRST SET OF INTERROGATORIES
AND REQUEST FOR PRODUCTION
OF DOCUMENTS
Respondent.
1. Please specify all state and federal Water Quality stan-
dards, stating the titles, chapters, sections and. subsec-
tions of the relevant statutes or regulations setting those
standards, which you contend would be adversely impacted by
the conversion of the petitioners' lands to farmland and
state all facts supporting your contention that these Water
Quality Standards would be exceeded by the said conversion.
The relevant water quality certification rules are pro-
vided in 15A NCAC 2H.0500. The relevant water quality stan-
dard? are provided in 15A NCAC 2B .0100 and .0200. Specifi-
cally, the Antidegradation Water Quality Standard (15A NCAC
2B .0201) states that existing uses, and the water quality
to protect such uses, shall be protected. A project which
will affect those waters will not be permitted unless exist-
ing uses,are protected. Further guidance is provided by 15A
NCAC 2B .0109 which states that "Projects that alter the
r
-2-
reach and extent of a freshwater wetland will not be consid-
ered as removing existing uses of the wetland in violation
of the Antidegradation Policy ... if the alteration protects
all existing and designated uses of all waters of the state.
In. making this determination, the Director shall be guided
by 40 CFR Part 230, Subparts A through F." As our August
13, 1991 denial letter states, the uses which would be
removed by the agricultural conversion of this property
would be wildlife habitat, water storage and water quality
protection. The attached report "Draft For Public Review,
North Carolina Wetland Rating System Manual, North Carolina
Department of Environment, Health and Natural Resources,"
dated January 31, 1991, provides documentation of the value
of wetlands for the uses outlined above.
In the case of water quality protection, the converted
property would be a source of pollutants associated with
agricultural runoff (such as sediment, nutrients [nitrogen
and phosphorus] and pesticides) rather than a sink for these
pollutants as present. Agricultural land development for
4
corn Iand soybeans on this site would require ditching and
draining with 4 to 5 foot deep ditches and drains every 300
feet apart. These would serve as conveyances of pollutants
off site. In addition to removal of onsite wetland uses (as
listed above), this conversion has the potential to also
impact downstream waters and their uses, especially Lake
-3-
Mattamuskeet in violation of the Antidegradation water qual-
ity standard (15A NCAC 2B.0201), turbidity water quality
standard (15A NCAC 2B.0212(b)(3)(L) and water quality stan-
dards for specific pesticides as applicable (15A NCAC
2B.0212(b)(3)(M)(viii)). In the case of water storage, the
conversion of this land to agricultural uses will decrease
the water storage time and increase runoff volumes and
rates. Wildlife uses will also be removed by this wetland
conversion since the woody plant structure (trees, shrubs
and herbaceous layers) will be removed and replaced by a
monoculture of corn or soybeans. The above referenced DEM
document provides ample documentation of the value of
wetlands for water storage, water quality protection and
wildlife uses.
4
R
-4-
2. Please describe in detail all studies and investigations of
the subject property and any waters that you contend would
be impacted by the conversion which you relied upon in deny-
ing the petitioners' application for a Water Quality Certi-
fication.
The property in question was visited by John Dorney and
Ron Ferrell on June 21, 1991. Deborah Sawyer conducted a
site visit on July 19, 1991. During those visits, DEM staff
conducted site evaluations of the uses provided by those
wetlands.
4
7•

-5-
3. Please identify all waters that would be impacted by the
petitioners' conversion of the lands at issue to farmlands.
The waters to be impacted by the land conversion
include the 91 acres of wetlands themselves, the downstream
canals and ditches which connect these wetlands to Lake
Mattamuskeet and Lake Matamuskeet itself.
L
-6-
4. Please state in detail all facts supporting your contention
that the conversion of petitioners' lands would remove
existing wildlife habitat uses, and identify any studies and
investigations supporting this contention.
See the answer for Question 1 as well as the U.S. Fish
and Wildlife Service letter concerning this project dated
July 12, 1991.
a
-7-
5. Please state in detail all facts supporting your contention
that the conversion of petitioners' lands would remove sig-
nificant existing uses including water storage, and identify
all studies and investigations supporting this contention.
See the answer for Question 1 above.
L
-8-
6. Please state in detail all facts supporting your contention
that the conversion of petitioners' lands would remove sig-
nificant existing uses including water quality protection,
and identify all studies and investigations supporting this
contention.
See the answer for Question 1 above.

-9-
7. Please state all uses to which the petitioners' land can be
put if their application for 401 certification is denied.
The primary alternative use of the property would be to
utilize the property for silvicultural purposes. As stated
by Mr. Davis in his July 8, 1991 letter, conversion to pine
monoculture is an economically viable option. DEM considers
this use to be a practicable alternative for the property.

-10-
8. Please state the dates of any and all visits to the subject
property by agents or employees of respondent during which
data relied upon by the respondent in denying petitioners'
application for Water Quality Certification was gathered and
identify the agents or employees who made these visits.
See the answer to Question 2 above.

-11-
9. Please identify all evidence supporting your contention that
the lands at issue are wetlands.
DEM relies on the U.S. Army Corps of Engineers to
determine whether wetlands are present on a particular prop-
erty and the extent of any such wetlands. In this case, the
Corps of Engineers published a Public Notice on June 13,
1991 which stated that there were about 91 acres of wetlands
on the property.

-12-
10. Please state what percentage of land in Hyde County, North
Carolina would require a 401 water quality certification and
404 permit prior to legal dredging and filling of those
lands.
This question is unclear.

-13-
Please state how many applications for water quality certi-
fication have been submitted to you during the period 1987
until February 1992 for conversion of wetland in Hyde
County, North Carolina, state the number of acres involved,
the number of such applications that have been granted, and
the number of such applications that have been denied.
Prior to 1990, DEM did not collect the type of data
requested. The U.S. Army Corps of Engineers in Wilmington
may be able to supply data for other. years. From 1990 to
February 1992, DEM received 12 applications for 401 Water
Quality Certifications. The average wetland fill per
project was 0.26 acres. The maximum amount of wetland fill
approved in any one project was 1.4 acres while the minimum
amount of wetland fill for any project was 0.02 acres. The
total wetland fill over this time was 1.53 acres. DEM
approved 11 of the 12 applications and denied one.
L
-14-
12. Please specify what actions you contend could be taken to
minimize or mitigate the effects of the conversion on the
state and federal water quality standards identified in
interrogatory number 1.
The primary minimization measure would be to conduct
forestry operations on this property rather than agricul-
tural practices (BMPs). Forestry activities with proper
best management activities would not remove on-site uses and
downstream uses. These BMPs and their utility are outlined
in the Division of Forestry's publication entitled "Best
Management Practices for Forestry Activities in Wetlands"
dated 1991. The Antidegradation Water Quality. Standard
refers to removal of use rather than impact on uses. For-
estry conversion with proper BMPs would impact uses but this
would not be a violation of the Antidegradation water qual-
ity standard.

-15-
13. Please specify what actions you contend could be taken to
minimize or mitigate the effects of the conversion on the
significant existing uses identified in interrogatories num-
bered 4, 5, and 6.
See the answer to Question 12.
L
1
-16-
14. Please state what you contend would be a practicable alter-
native to the conversion of petitioners' lands, and identify
with particularity any uplands in Swan Quarter, North Caro-
lina that you contend could be used by petitioners as an
alternative to the conversion of their lands.
See answer to Question 12.
41
-17-
15. Please specify whether you consider the lands of the peti-
tioners significant or non-significant wetlands, state the
score assigned to the wetlands, and state all factors con-
sidered in making your determination.
DEM considers the wetland in question to have signifi-
cant uses - primarily water storage, wildlife habitat and
water quality protection. The wetland rating sheet is-
attached, as is the Second Draft of the EHNR Wetland Rating
System, dated July 11, 1991, which was used to make this
determination.
L
-18-
16. Please state whether you consider the petitioners lands to
be isolated or connected wetlands, and identify all facts
supporting your determination.
DEM considers the wetlands to be connected by. ditches
and canals to Lake Mattamuskeet. Therefore these are con-
nected wetlands. Mr. Davis apparently agrees since he
refers to his property draining to Lake Mattamuskeet (July
8, 1991 letter from G. Thomas Davis to John Dorney).
L t
-19-
17. Please identify all persons who provided information used in
responding to these interrogatories, state their relation-
ship to the respondent, and state their address and phone
number.
The primary person who authored these responses was
John Dorney
Supervisor of Wetlands and Technical Review Group
Water Quality Planning Branch
Division of Environmental Management
North Carolina Department of Environment, Health
and Natural Resources
Post Office Box 27687
Raleigh, North Carolina 27611
[phone].
His responses were reviewed by
Ron Ferrell
Wetlands Scientist
same address and phone number
Boyd Devane (Mr. Dorney's supervisor)
Environmental Supervisor
Program and Planning Unit
same 'addre s s
[phone]
Deborah Sawyer
Environmental Technician
Division of Environmental Management
North Carolina Department of Environment, Health
and Natural Resources
Washington Regional Office
1424 Carolina Avenue
Washington, North Carolina 27889
[phone]
-20-
REQUEST FOR PRODUCTION OF DOCUMENTS
1. Produce all documents identified in the foregoing
interrogatories.
All documents identified in the foregoing interrogatories
are attached as follows:
QUESTION DOCUMENT EXHIBIT NO.
1 15A NCAC 2H.0500 1
1 15A NCAC 2B.0100 and
15A NCAC 2B.0200 2
1 40 CFR Part 230,
Subparts A-F 3 .
1 "Draft For Public
Review, North Carolina
Wetland Rating System
Manual, NCDEHNR,"
January 31, 1991 4
2 John Dorney's 6/21/91
Inspection Notes 5
2 John Dorney's 6/21/91
Rating Sheet (see also
Question 15) 6
2 Deborah Sawyer's
8/15/91 Memo Re: her
inspection 7
4 7/12/91 USFWS letter 8
7 7/8/91 Davis letter 9
9 6/13/91 Corps Public
Notice 10
12 Forestry BMPs 11
-21-
15 Wetland Rating Sheet [See Exh. 6]
15 7/11/91 Second Draft
of EHNR Wetland Rating
System 12
4
-22-
2. Produce the Nation Wetland Inventory Map for Hyde
County North Carolina.
DEM does not have this document. This map is produced by
and should be obtained from the U.S. Geological Survey. Although
not requested, also attached as Exhibit No. 13, is a copy of a
document entitled "Original Extent, Status and Trends of Wetlands
in North Carolina, A Report to the North Carolina Legislative
Study Commission on Wetlands Protection," prepared by EHNR, dated
January 1991.
4
f
-23-
3. Produce a copy of the latest draft of the North Caro-
lina Division of Environmental Management's Environment, Health
and Natural Resources Rating System.
This document is being produced in response to Question 1.
[See Exhibit No. 12].

-24-
4. Produce a copy of the North Carolina Wildlife Resources
Commission's "Policies and Guidelines for Conservation of
Wetlands.and Aquatic Habitats."
This document is not produced by DEM. However, a copy of
the document has been obtained and is attached as Exhibit No. 14.
This the 10th day of December, 1992.
LACY H. THORNBURG
Attorney General
By vv (/(i_ • Y, v
Kat r n J oper
Special Dep ty Attorney General
N. C. Depart ent of Justice
P. O. Box 629
Raleigh, NC 27602-0629
[phone]

-25-
CERTIFICATE OF SERVICE
This is to certify that I have this da
of the foregoing.. RESPONSE TO Y served the original
TORIES AND PETITIONER'S FIRST SET
REQUEST FOR P OF INTERROGA-
RODUCTION OF DOCUMENTS on t
record for the
Petitioner he attorney of
States by depositing the
Mail, first class same in the
.1 posta United
Lars p, ge prepaid, addressed
Pritchett Simonsen as follows:
, Cooke & Burch
Post Office Drawer 100
Windsor, North Carolina 27893
This the 10th day of December, 1992.
By
Kith y Jo C ov
Special Dep per
N•C• Departm y ttorney General
Post Office Box of Justice
Raleigh, NC 629
(919) 733-72477602-0629
ep:davisre$p.kc

LACY H. THORNBURG
Attorney General

STATE OF NORTH CAROLINA
COUNTY OF HYDE
GEORGE THOMAS DAVIS, JR. AND
CALVIN BLYTHE DAVIS,
Petitioners,
V.
N.C. DEPARTMENT OF ENVIRONMENT,
HEALTH AND NATURAL RESOURCES,
DIVISION OF ENVIRONMENTAL
MANAGEMENT,
Respondent.
RESPONSE TO
PETITIONERS' REQUEST
FOR PRODUCTION OF
DOCUMENTS
Special Deputy Attorney General Kathryn Jones Cooper, Attor-
ney for the Respondent, North Carolina Department of Environment,
Health and Natural Resources, Division of Environmental Manage-
ment, responding to Petitioners Request for Production of DoCU-
ments dated June 29, 1993, says:
1. Please produce all documents which you contend form the
Respondent's record of decision supporting its denial of the
Petitioners' application for 401 Certification in the above case.
ANSWER: In addition to the documents produced on December 10,
1992, the following documents are being produced:
EXHIBIT DOCUMENT
15 Petitioner's 5/7/91 Application for
a 404 Permit
16 7/1/91 letter from John Dorney to
George Davis
17 8/13/91 Certification Denial letter
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
91 EHR 0794

-2-
18 6/30/91 Consistency letter/
8/15/91 Reply
This the day of August, 1993.
MICHAEL F. EASLEY
ATTORNEY GENERAL
By
Kathryn Jones oper U
Special Deput ttorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602-0629
[phone]

-3-
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the
foregoing RESPONSE TO PETITIONERS' REQUEST FOR PRODUCTION OF DOC-
UMENTS on the attorney for the Petitioners, by depositing the
copy in the United States Mail, first class, postage prepaid,
addressed as follows:
Lars P. Simonsen
PRITCHETT, COOKE & BURCH
Post Office Drawer 100
Windsor, North Carolina 27983
This the a day of August, 1993.
MICHAEL F. EASLEY
ATTORNEY GENERAL
By
Kathryn Jon65 ?Cgoper V
Special Deputyl/Attorney General
N.C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27602-0629
[phone]
davisphs.kc
I. A-
May 7, 1991
District Engineer
Wilmington District, Corps of Engineers
P. O. Box 1890
Wilmington, North Carolina 28402
Dear Sir:
EXHIBIT
15
Enclosed please find an application for a 404 Permit
on some land in Hyde County. We have done the best we can to
complete this application and provide the details requested.
I note the instructions indicate that we should attach
a Corps transmittal letter. I take that to be a letter to me
from Lieutenant Colonel Thomas C. Suermann dated April 24,
1991.
If you need any further information besides that
contained in this packet, please let me know.
Respectfully yours,
Geo. Thomas Davis, Jr.
GTDJr.:alcd
Enclosures
CC: Coastal Management Field Services

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APPLICATION
?\ • FOR
PERMIT TO EXCAVATE AND/OR FILL WATER QUALITY CERTIFICATION
EASEMENT IN LANDS COVERED BY WATER CAMA PERMIT FOR MAJOR DEVELOPMENT
Department of Administration state of North Carolina Department of the Army
(G5 146-12) Department of Natural Resources and Community, Development Corps of Engineers, Wilmington District
(GS 113.229, 143.215.3(a)(1), 143.215.3(c), 113A•118 (33 CFR 209.320.329)
Please type or print and fill in all blanks. If information is not applicable, so indicate by placing N/A in blank.
I, Applicant Information Davis r Jr. George Thomas and
A. Name Davis Calvin Blythe
Last First Middle
B. Address P O Box 277
Street, P. O. Box or Route
Swan Quarter North Carolina 27885 919/926-3781
City or Town State Zip Code Phone
11. Location of Proposed Project:
A. County Jydp
B. 1. City, town, community or Iandmarkon north side of U.S.264 about onP mile west of NC Hwy 124 Anr.
2. Is proposed work within city limits? Yes No XX -1/2 miles east of SwanQuarter, N. C.
C. Creek, river, sound ur bay upon which project is located or nearest named body of water to project.
Mattamuskeet Lake
111. Description of Project
A. 1. Maintenance of existing project 2. New work ditching and clearing for agriculture
B. Purpose of excavation or fill
I. Access channel length -width depth
2. boat basin Icngth width depth
3. Fill arci ditch bank length 4840 Yds.vidth 1 vds depth Averae 6"
4. OthcrExecavation of ditch Icngth 4840 Yds idtlAve.3.75 :F6h 4 Ft.
C. I. Bulkhead length -0- Average distance waterward of MHW (shoreline) -N./A
. 2. rype of bulkhead construction (material) N/A
U. Excavated material (total for project)
1. Cubic yards approx. 8100 Cu. vdS 2. Type of material t9i r - frrsn r3i t-nhP-, t-n ha rat
E. Fill material to be plat d bclnw MHW (sec also VI. A)
I. Cubic yards 2. Type of material N/A
IV. Land Type, Disposal Area, and Construction Equipment:
A. Oucs the area to be excavated include any marshland, swamps or other wetland? Yes Zx_ No
B. Dues the disposal area include any marshland, swamps or other wetland? Yes XX No
C. Disposal Area see attached location map
1. Location
2. Do y u claim title to disposal area? Yes
U. Fill material source if lill is to be trucked in N/A
E. How will excavated material be entrapped and erosion controlled? 3 foot ba_r?'ier with yeap at-ion hat-unPPn
excavation and fill location
I I vpc of equipment to be used backhoe
G. Will marshland be crossed in transporting equipment to project site? If yes, explain No
)A F.R t
/V, Intended Use of Project Area (Describe)
A. 1. Private Acrricultural
2. Commercial
3. Housing Development or Industrial
4. Other
B. I. Lot size(s) Appivximately 91 acres
2. Elevation of lot(s) above mean high water AVeraae 24 inches
3. Soil type and texture '
4. Type of building facilities or structures None
S. Sewage disposal and/or waste water treatment A. Existing Planned
B. Describe None needed
6. 'Land Classification'(circle one) DEVELOPED TRANSITIONAL COMMUNITY RURAL
CONSERVATION OTHER (See CAMA Loca an se elan Synopsis,
VI. Pertaining to Fill and Water Quality:
A. Does the proposed project involve the placement of fill materials below mean high water? Yes No _X_
B. 1. Will any runoff or discharge enter adjacent waters as a result of project activity or planned use of the
area following project completion? Yes SS No
2. Type of discharge A,-
3. Location of discharge into adjacent exist' na di t-r•h
VII. Present rate of shoreline erosion (if known): N/A
VIII. List permit numbers and issue dates of previous Department of Army Corps of Engineers or State permits for
work in project area, if applicable: N/A
IX. Length of time required to complete project: - estimated 16 rmni-hc
X. In addition to the completed application form, the following items must be provided:
A. Attach a copy of the deed (with State application only) or other instrument under which applicant
claims title to the affected property. OR if applicant is not claiming to be the owner of said property,
then forward a copy of the deed or,other instrument under which the owner claims title plus written
permission from the owner to carry out the project on his land.
B. Attach an accurate work plat drawn to scale on 8% X 11" white paper (see instruction booklet for
details). Note: Original drawings preferred - only high quality copies accepted.
C. A copy of the application and plat must be served upon adjacent riparian landowners by registered or
certified mail or by publication (G.S. 113-229 (d))Enter date served
D. List names and complete addresses of the riparian landowners with property adjoining applicant's.
Such owners have 30 days in which to submit comments to agencies listed below.
Refuge, RFD No 11 Swan iartAr. North C'arn1 i na 27RR5
Hal Swindell, RFD No. 1, Swan Quarter, North Carolina 27885
' x r r, North Carolina 27885
XI. Certification requirement: I certify that to the best of my knowledge, the proposed activity , -)mplies
with the State of North Carolinas approved coastal management program and will be conducted in a
m-Inner consistent with such Drrl Tam,
Xll. Any permit issued pursuant to.this application will allow only the development described in this appli.
cation and plat. Applicants should therefore describe in the application and plat all anticipated devel-
opment activities, including construction, excavation, filling, and land clearing.
DATE f
Date
D6 F•82
Rev. 10/74
lican TIONS 1S Signature
SEE REVERSE SIDE FOR MAILING INSTRUC
..,,,,,,.,o„. , "6'."Urc

PROJECT STATEMENT
Davis Farm
Swan Quarter, North Carolina
It is economically unreasonable to expect Hyde County
landowners to maintain all of their wetlands in an undeveloped
state. The 5,411 residents have an average individual income
of $10,012 per year which is 94th out of the 100 counties in
North Carolina 1,2.. Unemployment in Hyde is 17.5% which compares
to 5.7% in the State as a whole3.
In 1991, to finance federal and state requirements
such as transporting solid waste to an adjacent county, Hyde
County found it necessary to raise the advalorem tax rate to
94 cents per 100 dollars of value compared with more developed
neighboring Beaufort County's tax rate of 46 cents per 100
dollars of value4'5 . The county tax base is severely limited by
lack of development which is directly related to the restric-
tions placed on wetlands. A Soil Conservation Service survey
determined Hyde County land was over 95% hydric soils which
means to develop any of the presently undeveloped land, a 404
permit must be granted6. Between 2/3 and 3/4 of Hyde's total
land mass is considered undeveloped wetlands4. On an average,
by converting forest land to agriculture the tax value in-
creases by a factor of two, and by converting scrub land to
agriculture, the tax value increases by a factor of nine.

The tax base and economic activity is further limited
by federal and state governments' ownership of approximately
138,000 acres out of Hyde County's total land base of 399,501
acres, over one-third of this County. U. S. Fish and Wildlife
Service payments in lieu of advalorem taxes are dependent on
the availability of funds in that year's budget and in the past
have fallen far short of standard tax assessment s4.
Agriculture would promote more economic activity than
silviculture, the only 404 exempted alternative for the subject
tract. In 1990 the 100,000 acres of cropland in Hyde County
produced gross sales of $28,695,320 while 222,600 acres of
forest land produced gross sales of only $4,554,657--less than
half the land produced six times the gross income 7. The 60,471
acres of scrub land and marsh produced very limited income from
fee hunting 8
Since North Carolina ranks in the top dozen states in
the production of poultry and pork, it requires a source of
reliable good quality feed grain to compete with the midwest
livestock industry. In 1989, North Carolina produced about 90
million bushels of corn but used 240 million bushels9. The
State's economy would benefit from increased grain production,
a need that Hyde County landowners could help meet.
Agriculture can also enhance the county's wildlife
resources and tourism opportunities. The Canada goose popu-