Ver _COMPLETE FILE_19950309

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PRITCHETT & BURCH, PLLC
ATTORNEYS AT LAW
203 DUNDEE STREET - POST OFFICE DRAWER 100 - WINDSOR, NC 27983
Telephone [phone]- Facsimile [phone]
e-mail D&[e-mail]

LLOYD C. SMITH, JR. * +
LARS P. SIMONSEN*
MELISSA L. SKINNER
JONATHAN E. HUDDLESTON
A. TRAVIS ELLIS
MARIA MISSE'c.>1

J.A. PRITCHETT (1897-1986)
WILLIAM W. PRITCHETT, JR. (1944-2001)

*Certified Mediator
+Certified Family Financial Mediator
cMlso Licensed to Practice in New Jersey and Pennsylvania

April 28, 2003

Mr. Jim Mulligan
WQ Regional Supervisor
N. C. Dept. of Environment and Natural Resources
N. C. Division of Water Quality
943 Washington Square Mall
Washington, North Carolina 27889

WETLANDS 1401 GROUP

MAY (; 4 2003
WATER QUALITY SECTION

Re: Bertie County/International Paper
P&B File No.: 02-MS-585

Dear Jim:

In your letter dated April 4, 2003, you requested a response from Bertie County
within twenty (20) days. We are not yet in a position to tell you what the County's
plans are with respect to the proposed school site, due to the fact that we remain in
negotiations with International Paper. The County does intend to employ one of the
two options set out in your letter to restore the wetlands.

The case against International Paper will be in Court on May lih for motions
hearings. We will be in a better position to know after that what alternative the County
will be employing with respect to the wetlands on this property. I hope that you will
give us additional time to provide you with a restoration plan.

..

If you have any questions please feel free to call me.

Sincerely,

Lars P. Simonsen

LPSjjah

cc: Mr. Danny Smith
N. C. Dept. of Environment and Natural Resources
N. C. Division of Water Quality
1617 Mail Service Center
Raleigh, North Carolina 27699-1617

Mr. Zee Lamb
Bertie County Manager
Post Office Box 530
Windsor, North Carolina 27983

Dr. John F. Smith, Sr.
Bertie County Schools
Post Office Box 10
Windsor, North Carolina 27983

Chairman J. Jasper Bazemore
2226 Governors Rd.
Windsor, NC 27849

Vice-Chairman Rick Harrell
1144 San Souci Rd.
Windsor, NC 27983

Norman M. Cherry, Sr.
333 Piney Woods Rd.
PO Box 516
Lewiston Woodville, NC 27849

,.

Lewis C. Hoggard, III
304 Sterlingworth St.
Windsor, NC 27983

J. Wallace Perry
2329 Wakelon Rd.
Colerain, NC 27924

LPS/ 03 Letters/ MulliganJim-BertieCo-Wetlands3 02-MS-585

r.

PRITCHETf & BURCH, PLLC
AlTORNEYS AT LAW
203 DUNDEE STREET - POST OFFICE DRAWER 100 - WINDSOR, NC 27983
Telephone [phone]- Facsimile [phone]
e-mail D&b(cuwindsorlaw.com

LLOYD C. SMITH, JR. * +
LARS P. SIMONSEN*
MELISSA L. SKINNER
JONATHAN E. HUDDLESTON
A. TRAVIS ELLIS
MARIA MISSE'c.i!

J.A. PRITCHETT (1897-1986)
WILLIAM W. PRITCHETT, JR. (1944-2001)

*Certified Mediator
+Certified Family Financial Mediator
c.1Also Licensed to Practice in New Jersey and Pennsylvania

June 3, 2003

Mr. Jim Mulligan
WQ Regional Supervisor
N. C. Dept. of Environment and Natural Resources
N. C. Division of Water Quality
943 Washington Square Mall
Washington, North Carolina 27889

,VETLt'!NDS/401 GROUP
,IUi\I,.
.. , ,1 ~ ~ 2U03

Mr. Danny Smith
401 Wetlands Unit Central Office
2321 Crabtree Blvd.
Parkview Building
Raleigh, North Carolina 27604-2260

/VAIEFl GUill/TV P"'CTIQ
. 0C 1/, 1\1

Mr. William Westcott
United States Army Corps of Engineers
Washington Regulatory Field Office
P. O. Box 1000
Washington, North Carolina 27889-1000

Re: Bertie County School Site
P&B File No.: 02-MS-585

Dear Jim, Danny and William:

I am writing to update you on the status of the County's and Bertie County
School Board's plans with respect to the School Site. We have retained the services of
Jim Spangler of Spangler Environmental to help with the complex issues related to this
site. We are still in negotiations with International Paper regarding the property, and
the County is investigating the options regarding the use of the uplands portions of the
property. The County remains committed to restoring, in an appropriate manner

consistent with all applicable legal requirements, the wetlands on this property that
were disturbed by the land clearing activities. However, the nature of that restoration
depends upon whether the County ultimately purchases the property from International
Paper, or whether an agreement with International Paper is reached whereby they will
reacquire title to the property. Our hope at this time is that we will be able to reach an
agreement whereby the County will pay International Paper the purchase price for the
property, and the County will then have total control over the restoration plan, and any'
future development of the uplands of the property. Because the suit between Bertie
County and International Paper is ongoing, and because the decision as to how to use
this and the adjacent property for a school or recreational facility is one that is
incredibly complex, we have not gotten to a point yet where we can make any
decisions with respect to the restoration plan. Our goal is to have a development plan
in place, along with a restoration plan in the near future, but of course there are issues
that need to be resolved with International Paper before we can get to that point.

I will keep you posted as this matter develops. I appreciate your patience with
the County and the Bertie County Board of Education up to this point. I do hope that
you understand the complexity of this situation and the difficulty we face in terms of
making any promises to you on the specifics of a restoration plan. This is not intended
to reflect any attempt on the part of the County or the School Board to avoid restoring
the wetlands. Rather, we are fully committed to restoring those wetlands. It is just
uncertain at this point what form that restoration will take.

If you have any questions or concerns, please feel free to call me.

Sincerely,

Lars P. Simonsen

LPSjjah

cc: Mr. Jim Spangler
Spangler Environmental, Inc.
224 Fayetteville Street Mall
Suite 400
Raleigh, NC 27601

Mr. Zee Lamb
Bertie County Manager
Post Office Box 530
Windsor, North Carolina 27983

LPS/ 03 Letters/ MulJiganJim-BertieCo-Wetlands4 02-MS-585

DATE
NAME
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APR-15-2003 TUE 20:32
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Failure to comply with this directive may result in referral to the United States Attorney with a
recommendation for appropriate action.

Thank you for your time and cooperation. Questions regarding this matter may be
addressed to Mr. Wescott at the Washington Regulatory Field Office, telephone [phone]
extension 25.

Copies Furnished:

Unitcd States Attorney
Eastern District of North Carolina
310 New Bern Avenue
Suite 300, Federal Building
Raleigh, North Carolina 276 J 1

Mr. Ronald J. Mikulak, Chief
Wetlands Rcgulatory Section
Water Management Div.
U.S. Environmental Protection Agency
6J. Forsyth Street. SW
Atlanta, GA 30303

Mr. Garland B. Pardue
U.S. Fish and Wildlife Service
Fish and Wildlife Enhancement
Post Office Box 33726
Raleigh. North Carolina 27636-3726

Sincerely,
FILENAME: Bertie County C&D.do
CESAW.RG.WlWcscott/ i
CESA W-RG-WIL on/s
Ma.
David M. Lckson, P.W.S. -He!
Chief, Washington Regulatory Field Office

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Mr. Ron Sechler
National Mnrine Fisheries Servicc
Habitat Conscrvation Division
Pivers Island
Beaufort, North Carolina 28516

Mr. John Dorney
North Carolina Department of Environment
and Natural Resources
Division of Water Qualitytwetlands Unit
1650 Mail Service Center
Raleigh, North Carolina 27699-1650

Regional Director
National Marine Fisheries
Service, NOAA
9721 Executive Center Drive N.
Saint Petersburg, Florida 33702-2449

Mr. Terry Moore
Division of Coastal Management
North Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889

Mr. Floyd Williams
Division of Land Resources
North Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889

Mr. Tom Steffens
Division of Water Quality
North Carolina Department of Environment
:md Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889

APR.15'20J3 08:01 2529751399

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Blind Copies Furnished:

JollylRG
Lamson/OC
McCorcle/OC

USACE l'1"A5H

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Michael F. Easley. Govenor
WilIiam G. Ross. Jr. Secretary
North Carolina Department of Environment and Natural Resources

Alan W. Klimek, P.E. Director
Divison of Water Quality

CERTIFIED MAIL
RETURN RECEIPT REQUESTED
7002 0860 0004 3075 2471

April 4, 2003

WETLANDS /
401 GROUp
APR
lJ 'J"
WAn . <UUJ
"ER OUALiTy
SECTION

Mr. James Russell Boyd
13017 NC 32 Hwy North
Washington, North Carolina 27889

Subject: Notice of Violation
Tar - Pamlico River Basin Riparian Buffer Rules
Beaufort County

Dear Mr. Boyd:

On March 31,2003, staff from this office investigated a violation of North Carolina
Administrative Code 02B .0259: Tar - Pamlico River Basin: Nutrient Sensitive Waters
Management Strategy: Protection and Maintenance of Existing Riparian Buffers. The
violation was determined along Bath Creek along your property on Tankard Drive. The
Division of Water Quality staffhas determined that approximately 150 linear feet of
streamside buffer of this tributary has been disturbed. Vegetation and approximately thirty
trees have been removed in Zone 1.

The impacts to the riparian zones referenced above are a violation of the Tar-Pamlico River
Basin Nutrient Waters Management Strategy Protection and Maintenance of Riparian
Buffers, North Carolina Administrative Code 15A: 02B .0259, which states the following:

This Rule shall apply to 50-foot buffers directly adjacent to surface waters in the Tar-Pamlico
River Basin (intermittent streams, perennial streams, lakes, ponds, and estuaries) excluding
wetlands. "

943 Washington Square Mall, Washington, North Carolina 27889 Telephone [phone] FAX [phone]UAn Eoual OpPOrtnnlty Affirmative Action EmDlover

Page Three
Mr. James Russell Boyd
April 4, 2003

If you have any question or comments, please contact Robert Tankard with this office at
[phone].

Sincerely,

Jim Mulligan
Water Quality Supervisor

cc:

Bob Zarzecki; Buffers, Wetlands/401 Unit
v1>anny Smith; Compliance and Enforcement, Wetlands/401 Unit
WaRD Files
David Moye, WaRO CAMA

943 W..hlngton Square Mall, Washington, North Carolina 27889 Telephone [phone] FAX [phone]

An Equal ODDOrtUDitv Affirmatln Action EmDlover

4

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Michael F Easle\ Governor
William G, Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources

Alan W, Klimek, P.E, Director
Division of Water Quality

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April 4. 2003

Certified Mail
Return Receipt Requested
70028060000430752495

WETLANDS /
401 GROUp
APR
WATER ,If )iJ(13
QUALITY Sp
~CTlON

John F. Smith Sr.
Supervisor Bertie County School
222 County Farm Road.
Windsor, NC 27983

Subject:

Notice of Violation
Notice of Enforcement Recommendation
Bertie County High School Site
Bertie County

Dear Mr. Smith:

On December 2,2002, Tom Steffens from the Washington Regional Office and Danny Smith and Bob
Zarzecki from the Central Office of the Division of Water Quality (DWQ), inspected a proposed schools site,
located on Highway 13 near Windsor NC.

During the site visit, the investigators took photographs and made observations ofthe respective
wetlands impacts. Specifically, the inspection revealed clearing and grading associated with construction of a
proposed school. This activity resulted in impacts from unauthorized fill/grading! excavation in approximately
33 acres of wetlands.

Accordingly, on February 27,2003 the WaRO issued a Notice of Violation regarding the following
violations: ]) failure to properly secure a 40] Water Quality Certification and 2) Wetland standard violations,
A written response to this letter dated March 18, 2003, was received by this office.

After review, it is the position of this office that two options are available to resolve/abate the violation
for this tract. ]). The owner of the tract must restore the wetlands through a DWQ approved restoration plan, or
2), The original use (forestry) and respective compliance with Section 404 (f) of the Clean Water Act, must be
satisfactorily achieved. Please provide a response, within 20 days of receipt of this letter, that clearly indicates
which of the below mentioned approaches you choose to purse. You should clearly indicate your intention and
provide a schedule with dates indicating when the below mentioned components will be achieved.

Option 1:

A Restoration Plan for the wetland restoration impacts must be submitted to both the Washington
Regional Office and to Mr. Danny Smith of the 401/Wetlands Unit - Central Office (2321 Crabtree
Blvd" Parh..view Building, Raleigh, NC 27604-2260) for our review. This plan must include the
following:

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a.) Wetland Restoration Plan: All ditches located within or adjacent to wetlands must be back filled
(NOT STREAMS) and any fill placed in wetlands must be removed and the landscape returned to
natural grade. Please provide a schedule of dates (for Regional Office written approval) when this
work is to be implemented.
b.) It is required that a planting plan be developed such that, at least two native wetland tree species be
planted at a density sufficient to provide 320 trees per acre at maturity. This density can be achieved
by planting approximately 436 (1 Ox 10 feet spacing) to 681 (8x8 feet spacing) trees per acre. Also,
re-vegetation of these areas with a wetland herbaceous seed mix is required.
c.) This restoration effort must also be addressed in a manner that is in full compliance with the
Division of Land Resources and the US Army Corps of Engineers. Therefore, prior to any DWQ
approval of onsite work to resolve wetland violations, you must contact the US Army Corps of
Engineers and the Division of Land Resources to determine whether additional permits are required.
d.) Wetland Monitoring of the restoration efforts will be required for a period of five years, after the
completion of the restoration. A written report, with photographs, and a site map that depicts sample
locations are required. A written report that provides an account of the restoration status of the site
must be provided to the Washington Regional Office by June] of each year. A clear account of who
owns the tract must also be provided.
f) Note: Please include in your response a schedule with dates indicating when the above mentioned
components will be completed,

Option 2:

Provide a Restoration Plan for the tract and the wetlands therein which returns the site to compliance
with forestry uses (pursuant to Section 404 (f) ofCLW). This plan must be submitted to both the
Washington Regional Office and to Mr. Danny Smith of the 401/Wetlands Unit - Central Office (2321
Crabtree Blvd., Parkview Building, Raleigh, NC 27604-2260) for our review. This plan must include
the following:

a) The restoration must include a Forest Management Plan (that captures at least one full rotation).
This plan must be developed by a registered forester.
b) The plan must include site preparation, thinning, fertilization, rotation, and a detailed account of how
the wetlands on the site will be restored through this land use. .
c) The Forest Management Plan needs to detail how this site will maintain compliance with Forestry
Best Management Practices.
d) Your response and your Forestry Management Plan should include a schedule with dates indicating
when the wetlands will be restored, when site will be prepared for tree planting, when the site will be
planted and at what density trees will be planted.
e) You should also indicate who will own the tract and indicate their intentions with respect to
managing the tract for timber production.
f) This restoration effort must also be addressed in a manner that is in full compliance with the
Division of Land Resources and the US Army Corps of Engineers, Therefore, prior to any DWQ
approval of on site work to resolve wetland violations you must contact and secure any necessary
approvals from the US Army Corps of Engineers and the Division of Land Resources.

This Office requires that violations, as detailed above, be abated immediately. Also please note, these
violations noted in the February 27,2003 Notice of Violation and any future violations are subject to civil
penalty assessment of up to $25,000.00 per day for each violation. This Office requests that you respond to this
letter, in writing, within 20 days of receipt of this Notice.

,.

Thank you for your attention to this matter. This Office is considering sending a recommendation for
enforcement to the Director of the Division of Water Quality regarding these issues and any future/continued
violations that may be encountered. Your response to this correspondence and the respective implementation to
the above mentioned approaches will be considered in this process. It is the intention of this office to resolve
the violations noted above, Accordingly, if you choose to not respond or choose not to resolve the violation,
this office will immediately go forward with enforcement action development Should you have any questions
regarding these matters, please contact Danny Smith at [phone] or Tom Steffens at [phone].

Sincerely,

Mulligan
Regional Supervisor

cc: WaRO Files
Central Files
WaRO- Division of Land Resources
lJ.S Army Corps of Engineers- Washington Field Office - William Wescott
~entraI40l/Wetlands Unit - Danny Smith
Eric Braun- Womble Carlyle Sandridge & Rice PLLC
P.O Box 83]
Raleigh, NC 27602

State Board of Education- Jane Worsham, Executive Director
Education Building
301 N. Wilmington Street
Raleigh NC 27601-2825

Lars P. Simonsen, Pritchett & Burch, PLLC, 203 Dundee Street, P.o. Drawer 100,
Windsor, NC 27983

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Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources

Alan W. Klimek, P.E. Director
Division of Water Quality

February 27, 2003

Certified Mail
Return Receiot Reauested

Subject: Notice of Violation
Notice of Enforcement Recommendation
Bertie County High School Site
Bertie County

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John F. Smith Sr.
Supervisor Bertie County School
222 County Farm Road.
Windsor, NC 27983

Dear Mr. Crisp:

On December 2, 2002, Tom Steffens from the Washington Regional Office and Danny Smith and Bob
Zarzecki from the Central Office of the Division of Water Quality (DWQ), inspected a proposed schools site,
located on Highway 13 North, Windsor NC. Also represented at the site meeting were Todd Ball and Steve
O'Brian of S&ME, Mr, Lars Simonsen, Counsel for Bertie Co., and William Wescott of the US Army Corps of
Engineers.

During the site visit, the investigators took photographs and made observations of the respective
wetlands impacts. Specifically, the inspection revealed that clearing and grading associated with construction of
a proposed school. This activity resulted in impacts from unauthorized fill/grading! excavation in
approximately 33 acres of wetlands.

A DWQ file review confirms that impacts to the wetlands occurred prior to the submission of a Pre-
Construction Notification or any authorization, permit or 401 Water Quality Certification from the Division of
Water Quality. As a result of the site inspection and file review the following below listed violations are noted:
1.) Failure to properly secure a 401 Water Quality Certification and 2.) Wetland standard violations.

Item 1. 40] Water Ouality Certification

A DWQ site visit and file review confirmed that approximately 33 acres of wetland fill and grading occurred
prior to the proper securing of a Nationwide Permit from the US Army Corps of Engineers. A file review
indicates that the U.S. Army Corps of Engineers (CaE) has not authorized use the ofa Nation Wide Permit for
this activity or has notification been provided by the Corps of Engineers for this activity. On 2Dec 02, the
COE issued a cease and desist letter for the above mentioned activities. Accordingly, the review confirmed that
no Pre-construction Notification has been received by the Division of Water Quality for this project. No 401
Water Quality Certification has been issued, nor is the activity covered by a General 40] Water Quality
Certification. A 401 Water Quality Certification is required for the above-mentioned impacts pursuant to 15A
NCAC 2H .0500.

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,.

Item 2. Wetland Standard Violation

Wetland disturbance corresponding to mechanized fill and grading associated with site construction
represents a wetland standard violation. This work had been done without the appropriate COE permit or DWQ
401 Water Quality Certification. Lacking prior authorization, the above-described activity represents violations
of the following North Carolina wetland standard:

15A NCAC 2B .0231(b)(1):
"Liquids, fill, or other solids or dissolved gases may not be present in amounts which may cause adverse
impacts on existing wetland uses;"

This Office requires that violations, as detailed above, be abated immediately. Also please note, these
violations and any future violations are subject to civil penalty assessment of up to $25,000.00 per day for each
violation. This Office requests that you respond to this letter, in writing, within 20 days of receipt of this
Notice. Your response should address the following items:

Please explain why no authorization was sought for these impacts.

Please provide a map that exactly details the number of wetlands on the tract and wetlands that were
impacted.

It is the understanding of staff that the above mentioned impacts occurred after a Soil Scientist (Mike Acre
of Alan and Alan) explained to the County that there were no wetlands on the site. Further, it is the
understanding of staff that this determination was made remotely, without a site visit. Please specifically
address how the County determined that there were no wetlands on the site. Please include the name of the
consultant and the company name and any supporting documentation that was provided.

Please explain how the County typically determines, that for a project with public money, that no EA or
FONS! was required for this project.

Also please explain the current status and whether a State Erosion and Sediment Control Plan and whether a
coastal stormwater plan was secured for the site. Also, please explain if the site is in full compliance with
the General Stormwater Permit for construction sites (NCG 010000).

It is requested that the County conduct a review of county projects to determine whether other county
projects have failed to comply with Wetland regulations. Please provide a written account of these effOlts
and include these results in your response. This review should determine whether impacts including fill or
grading has occurred in wetlands and/or stream. (Note: This office and 401/ Wetland Unit in the Central
Office is in the process of conducting a review, an in house file review, and review of past complaints in
order to further investigate these concerns.)

A Restoration Plan for the wetland restoration plan should be submitted to both the Washington Regional
Office and to Mr. Danny Smith of the 401/Wetlands Unit - Central Office (2321 Crabtree Blvd., Parkview
Building, Raleigh, NC 27604-2260) for our review. This plan should include the following:

a. ) Wetland Restoration Plan: All ditches located within or adjacent to wetlands must be backfilled
(NOT STREAMS) and any fill placed in wetlands must be removed. Please provide a schedule of
dates (for Regional Office written approval) when this work is to be implemented.

~

,

b.) It is required that a planting plan be developed such that, at least two native wetland tree species be
planted at a density sufficient to provide 320 trees per acre at maturity. This density can be achieved
by planting approximately 436 (lOxl0 feet spacing) to 681 (8x8 feet spacing) trees per acre. Also,
re-vegetation of these areas with a wetland herbaceous seed mix is required. Please indicate in your
response a schedule with dates detailing when this will be accomplished.
c.) Fill material must be removed from the wetlands and placed on high ground.
d.) This restoration effort must also be addressed in a manner that is in full compliance with the
Division of Land Resources and the US Army Corps of Engineers.
e. ) Wetland Monitoring of the restoration efforts will be required for a period of three years, after the
completion of the restoration. A written report, with photographs, and a site map that depicts sample
locations are required. A written report that provides an account of the restoration status of the site
must be provided to the Washington Regional Office by June 1 of each year.
f.) Prior to any onsite work to resolve wetland violations you must contact the US Army Corps of
Engineers and the Division of Land Resources to determine whether additional permits are required.

Thank you for your attention to this matter. This Office is considering sending a recommendation for
enforcement to the Director of the Division of Water Quality regarding these issues and any future/continued
violations that may be encountered. Also, your above-mentioned response to this correspondence will be
considered in this process. Should you have any questions regarding these matters, please contact Danny Smith
at [phone] or Tom Steffens at [phone].

Sincerely,
f-r:- (C 7 ~
Joy Jim Mulligan
WQ Regional Supervisor

cc: WaRO files
Central Files
WaRO- Division of Land Resources
US Army Corps of Engineers- Washington Field Office
Central401lWetlands Unit - Danny Smith..,/"
State Board of Education- Jane Worsham, Executive Director
Education Building
301 N. Wilmington Street
Raleigh NC 27601-2825

, .

PRITCHETT & BURCH, PLLC
ATTORNEYS AT LAW
203 DUNDEE STREET - POST OFFICE DRAWER 100 - WINDSOR, NC 27983
Telephone [phone]- Facsimile [phone]
e-mail D&b(oJwindsorlaw.com

LLOYD C. SMITH, JR. * +
LARS P SIMONSEN*
MELISSA L SKINNER
JONATHAN E. HUDDLESTON
A, TRAVIS ELLIS
MARIA MISSE'(.,J

J.A. PRITCHETT (1897-1986)
WILLIAM W, PRITCHETT, JR. (1944-2001)

-
*Certified Mediator
+Certified Family Financial Mediator
(Mlso Licensed to Practice in New Jersey and Pennsylvania

March 18, 2003

WETLANDS 1401 GROUP
MAR 2 1 2003
WATER QUALITY SECTION

Mr. Jim Mulligan
WQ Regional Supervisor
N. C. Dept. of Environment and Natural Resources
N. C. Division of Water Quality
943 Washington Square Mall
Washington, North Carolina 27889
VIA FACSIMILE [phone]

Re: Bertie County High School Site, Bertie County, North Carolina
P&B File No.: 02-MS-585

Dear Jim:

I am writing on behalf of Bertie County and the Bertie County Board of
Education regarding the Notice of Violation dated February 27, 2003. This letter is to
respond to that Notice of Violation and set out the County's and the School Board's
position with regards to these alleged violations.

First, the property in question, if wetlands at all, at best qualifies as marginal
wetlands. I think there is truly an issue as to whether or not this property would have
met all three of the criteria for a wetlands determination had a delineation been done
prior to the clearing activities. While the soils are undeniably hydric soils, there is a
genuine issue as to whether the other two wetlands criteria, hydrology and the
predominance of hydric vegetation, are met.

The fact that this property only marginally, if at all, meets the wetlands criteria is
supported by the fact that the Department of Environment and Natural Resources
approved the Board of Education's Erosion and Sedimentation Control Plan by letter
dated August 12, 2002, with no mention of any wetlands impacts or issues. In
addition, the Division of Water Quality commented on an application for a stormwater
permit filed by the Board of Education, and those comments included no mention of

wetlands. Rather, the Division of Water Quality merely requested, among other minor
items, more information on design calculations for one of the retention ponds, and
requested a specific modification of the design for the second such pond. Apparently
the Division of Water Quality and Department of Environment and Natural Resources
representatives visited the site early in the process, and they recognized no wetlands
issues that were brought to the attention of the Board of Education, Bertie County, or
its agents.

A formal wetlands delineation of the property was done by the Board of
Education's consultant, S&ME, only after the property had been cleared. The result was
that S&ME did not have the benefit of the natural vegetation that had predominated the
tract when it did the delineation. Additionally, the removal of the trees significantly
altered the hydrology of the tract. Had the tract been delineated prior to the clearing,
which obviously would have been the better practice and is the practice that the County
and the School Board will certainly employ in future acquisitions, we feel that the
outcome of the delineation would have been very different.

According to Allen-Allen & Associates, the Board of Education's contractor, Mike
Eaker, an independent consultant, looked at the boring logs which were performed by
Titan Atlantic Group. Mike's review of these logs was performed only after the Corp of
Engineers made the initial visit to the adjacent site and determined that there may be
wetlands located on the Board of Education's property. Mike Eaker apparently reported
to Allen that the trace organisms found in the soil borings did not automatically mean
wetlands existed on the site. The Board of Education relied on its engineers and
consultants to take care of all of the permitting requirements for the construction of the
school. It is important to note that he Corps of Engineers representative, Mr. William
Westcott, was asked by the county to come look at the adjacent property that the
county was considering for a recreation center. As such, this alleged violation was self-
reported.

Another difficulty that the County and the School Board encountered with respect
to this parcel of land is that it is a parcel that was not previously owned by the County
or the School Board. Rather, it was owned by International Paper Company, who is
not willing to voluntarily sell the property to the County. As such, the County had to file
a condemnation action pursuant to N.C.G.5. 153-158.1 and N.C.G.S. Chapter 40A.
While the County does have a statutory right to enter property prior to condemnation,
this is a very hotly contested contamination, and International Paper Company has not
been terribly cooperative or friendly in the process. This contentiousness limited the
County's ability to access the site prior to initiating the condemnation for any purpose,
including wetlands delineations. .

The County typically relies on its hired consultants to advise it on the necessity
for an environmental assessment or a finding of no significant impact. In the present
case, the School Board relied on Allen-Allen & Associates for this purpose and a finding

of no significant impact was, in fact, issued. Neither the County, nor the School Board,
being from a poor county, have conducted many projects of this nature.

A State Erosion and Sedimentation Control Plan was developed and a permit was
issued by the Department of Environment and Natural Resources and it is our
understanding that the site is currently in compliance with that Plan. A stormwater
permit application was also submitted and approved, and only two comments were
received as noted above. When the issue of the wetlands was raised, the pursuit of
that permit was put on hold.

The County has conducted a review of county projects to determine whether
those county projects have failed to comply with wetlands regulations. In the last
decade, the County has been involved in no more than two projects that would have
involved any land disturbing activities. There were no wetlands impacts from any of
these activities. The only other project was the construction of a communications
tower. That communications tower was constructed on existing farm land and there
were no wetlands impacts.

As to a Restoration Plan, the County is limited in what it can do by the North
Carolina Statutes and the North Carolina Constitution. The County is in the process of
acquiring the land by condemnation. It has filed a condemnation proceeding against
International Paper Company in the Bertie County Superior Court and that lawsuit is still
pending. As noted above, International Paper Company has hotly contested that case.
International Paper Company does not want the school constructed on this site as it
believes that the presence of the school and school children will interfere with its timber
management activities on the surrounding land. Under Chapter 40A of the North
Carolina General Statutes, a County has only limited rights of condemnation. The
County's condemnation authority is set out in N.C.G.5. 40A-3(b)(1). The wetlands
Restoration Plan set out in your letter is not one of the permissible purposes allowing
condemnation under N.C.G.5. 40A-3. The North Carolina Statute requires that property
that is condemned by a county must be used for a "public purpose." This language has
been interpreted by the courts in many North Carolina cases, and based upon prior case
law, it would be unconstitutional for the County to condemn this land for the purpose of
planting the vegetation that you suggest to let it sit into perpetuity. At this point, it
appears that the County's only legal option is to take a dismissal of the pending
condemnation action and return the property to International Paper Company for them
to place the property back into silviculture. I would point out that under the wetlands
laws and regulations, if International Paper Company had conducted the exact same
type of activity as that conducted by the Bertie County Board of Education, but for the
purposes of silviculture, there would have been no violation of the wetlands regulations.
However, because those activities were conducted with the intent of placing a school on
the property, it is this intent that makes the activities a violation of the State's wetlands
regulations. In fact, International Paper has conducted almost identical land clearing on
the adjacent parcel, and has mowed and bedded the land for tree cultivation. To my
knowledge, International Paper has not been cited for this activity.

I can assure you that neither the County, nor the School Board, had any intent to
violate any State or Federal laws, rules or regulations. The intent of the County and the
School Board was to attempt to construct a school at an appropriate location for the
purposes of educating the future generations of Bertie County children. Both the
County and School Board intended for this project to comply with all applicable laws,
rules and regulations. This has been a very difficult and complex issue for the County
to address and this wetlands issue has been a major setback for the County and the
School Board. Even without the assessment of a fine or penalty in this case, this
situation has already cost the County and the School Board dearly and lessons have
been learned which will not soon be forgotten.

We hope that you will understand the County's and the School Board's unique
situation. The County and School Board are constrained not only by their very limited
financial resources (Bertie County is one of the poorest counties in the State), but also
by the statutory authority that they each have. Given the limited statutory authority in
regards to the acquisition of property, they are also limited in terms of the restoration
that can be conducted.

I appreciate your attention to this matter. Feel free to call me with any
questions. Pursuant to your request, I have enclosed a copy of the wetlands
delineation.

Sincerely,

Lars P. Simonsen

LPSjjwb

Enclosure

cc: Mr. Danny Smith
N. C. Dept. of Environment and Natural Resources
N. C. Division of Water Quality
1617 Mail Service Center
Raleigh, North Carolina 27699-1617

State Board of Education

Jane Worsham, Executive Director
Education Building
301 N. Wilmington Street
Raleigh, North Carolina 27601-2825

Mr. Zee Lamb
Bertie County Manager
Post Office Box 530
Windsor, North Carolina 27983

Mrs. Patricia Ferguson
Chair
Bertie County Commissioner
116 Luther Brown Road
Colerain, North Carolina 27924

Mr. John Jasper Bazemore
Bertie County Commissioner
2226 Governors Road
Windsor, North Carolina 27983

Mr. Rick Harrell
Bertie County Commissioner
1144 Sans Souci Road
Windsor, North Carolina 27983

Mr. Norman M. Cherry, Sr.
Bertie County Commissioner
Post Office Box 516
333 Piney Woods Road
Lewiston Woodville, North Carolina 27849

Mr. Lewis C. Hoggard, III
Bertie County Commissioner
304 Sterlingworth Street
Windsor, North Carolina 27983

Mr. Wallace Perry
2329 Wakelon Road
Colerain, North Carolina 27924

Mr. Lloyd Thomas Perry, P.E.
Bertie County Schools
Post Office Box 10
Windsor, North Carolina 27983

Dr. John F. Smith, Sr.
Bertie County Schools
Post Office Box 10
Windsor, North Carolina 27983

Mr. Rod Malone
Tharrington Smith, L.L.P.
Attorneys at Law
Post Office Box 1151
Raleigh, North Carolina 27602-1151

Honorable Representative Howard Hunter
Post Office Box 628
Ahoskie, North Carolina 27910

Honorable Representative Howard Hunter
613 Legislative Office Building
Raleigh, North Carolina 27603-5925

LPS/ 03 Letters/ MulliganJim-BertieCo-Wetlands 02,MS-585 Uwb)

Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources

Alan W. Klimek, P.E. Director
Division of Water Quality

February 27,2003

Certified Mail
Return ReceiDt Reauested

Subject: Notice of Violation
Notice of Enforcement Recommendation
Bertie County High School Site
Bertie County

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John F. Smith Sr.
Supervisor Bertie County School
222 County Farm Road.
Windsor, NC 27983

Dear Mr. Crisp:

On December 2,2002, Tom Steffens from the Washington Regional Office and Danny Smith and Bob
Zarzecki from the Central Office of the Division of Water Quality (DWQ), inspected a proposed schools site,
located on Highway 13 North, Windsor NC. Also represented at the site meeting were Todd BaIl and Steve
O'Brian ofS&ME, Mr. Lars Simonsen, Counsel for Bertie Co., and William Wescott of the US Army Corps of
Engineers.

During the site visit, the investigators took photographs and made observations of the respective
wetlands impacts. Specifically, the inspection revealed that clearing and grading associated with construction of
a proposed school. This activity resulted in impacts from unauthorized fill/grading/ excavation in
approximately 33 acres of wetlands.

A DWQ file review confirms that impacts to the wetlands occurred prior to the submission of a Pre-
Construction Notification or any authorization, permit or 401 Water Quality Certification from the Division of
Water Quality. As a result of the site inspection and file review the following below listed violations are noted:
1.) Failure to properly secure a 401 Water Quality Certification and 2.) Wetland standard violations.

Item 1. 401 Water Ouality Certification

A DWQ site visit and file review confirmed that approximately 33 acres of wetland fill and grading occurred
prior to the proper securing of a Nationwide Permit from the US Army Corps of Engineers. A file review
indicates that the U.S. Army Corps of Engineers (COE) has not authorized use the ofa Nation Wide Permit for
this activity or has notification been provided by the Corps of Engineers for this activity. On 2Dec 02, the
COE issued a cease and desist letter for the above mentioned activities. Accordingly, the review confirmed that
no Pre-construction Notification has been received by the Division of Water Quality for this project. No 401
Water Quality Certification has been issued, nor is the activity covered by a General 401 Water Quality
Certification. A 401 Water Quality Certification is required for the above-mentioned impacts pursuant to 15A
NCAC 2H .0500.

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Item 2. Wetland Standard Violation

Wetland disturbance corresponding to mechanized fill and grading associated with site construction
represents a wetland standard violation. This work had been done without the appropriate COE permit or DWQ
401 Water Quality Certification. Lacking prior authorization, the above-described activity represents violations
of the following North Carolina wetland standard:

15A NCAC 2B .0231(b)(1): '
"Liquids, fill, or other solids or dissolved gases may not be present in amounts which may cause adverse
impacts on existing wetland uses;"

This Office requires thatvi6lations, as detailed above, be abated immediately. Also please note, these
violations and any future violations are subject to civil penalty assessment of up to $25,000.00 per day for each
violation. This Office requests that you respond to this letter, in writing, within 20 days of receipt ofthis
Notice. Your response should address the following items:

Please explain why no authorization was sought for these impacts.

Please provide a map that exactly details the number of wetlands on the tract and wetlands that were
impacted.

It is the understanding of staff that the above mentioned impacts occurred after a Soil Scientist (Mike Acre
of Alan and Alan) explained to the County that there were no wetlands on the site. Further, it is the
understanding of staff that this determination was made remotely, without a site visit. Please specifically
address how the County determined that there were no wetlands on the site. Please include the name of the
consultant and the company name and any supporting documentation that was provided,

Please explain how the County typically determines, that for a project with public money, that no EA or
FONSI was required for this project.

Also please explain the current status and whether a State Erosion and Sediment Control Plan and whether a
coastal stormwater plan was secured for the site. Also, please explain if the site is in full compliance with
the General Stormwater Permit for construction sites (NCG 010000).

It is requested that the County conduct a review of county projects to determine whether other county
projects have failed to comply with Wetland regulations. Please provide a written account ofthese eff011s
and include these results in your response. This review should determine whether impacts including fill or
grading has occurred in wetlands and/or stream. (Note: This office and 401/ Wetland Unit in the Central
Office is in the process of conducting a review, an in house file review, and review of past complaints in
order to further investigate these concerns.)

A Restoration Plan for the wetland restoration plan should be submitted to both the Washington Regional
Office and to Mr. Danny Smith of the 401/Wetlands Unit - Central Office (2321 Crabtree Blvd., Parkview
Building, Raleigh, NC 27604-2260) for our review. This plan should include the following:

a. ) Wetland Restoration Plan: All ditches located within or adjacent to wetlands must be backfilled
(NOT STREAMS) and any fill placed in wetlands must be removed. Please provide a schedule of
dates (for Regional Office written approval) when this work is to be implemented.

b.) It is required that a planting plan be developed such that, at least two native wetland tree species be
planted at a density sufficient to provide 320 trees per acre at maturity. This density can be achieved
by planting approximately 436 (lOx10 feet spacing) to 681 (8x8 feet spacing) trees per acre. Also,
re-vegetation of these areas with a wetland herbaceous seed mix is required. Please indicate in your
response a schedule with dates detailing when this will be accomplished.
c.) Fill material must be removed from the wetlands and placed on high ground.
d.) This restoration effort must also be addressed in a manner that is in full compliance with the
Division of Land Resources and the US Army Corps of Engineers.
e.) Wetland Monitoring of the restoration efforts will be required for a period of three years, after the
completion of the restoration. A written report, with photographs, and a site map that depicts sample
locations are required. A written report that provides an account of the restoration status of the site
must be provided to the Washington Regional Office by June 1 of each year.
f.) Prior to any onsite work to resolve wetland violations you must contact the US Army Corps of
Engineers and the Division of Land Resources to determine whether additional permits are required.

Thank you for your attention to this matter. This Office is considering sending a recommendation for
enforcement to the Director of the Division of Water Quality regarding these issues and any future/continued
violations that may be encountered. Also, your above-mentioned response to this correspondence will be
considered in this process. Should you have any questions regarding these matters, please contact Danny Smith
at [phone] or Tom Steffens at [phone].

Sincerely,
~ (('. 7"
(v- Jim Mulliga~
WQ Regional Supervisor

cc: WaRO files
Central Files
WaRO- Division of Land Resources
US Army Corps of Engineers- Washington Field Office
Central40l/Wetlands Unit - Danny Smith,/"
State Board of Education- Jane Worsham, Executive Director
Education Building
301 N. Wilmington Street
Raleigh NC 27601-2825

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
Washington Regul:Jtory Field Office
P.O. Box 1000
Washington, North Carolina 27889-1000

IN REPLY REFER TO

May 3,2004

Regulatory Division

WETLANDS /401 GROUP

MAY f) .1-
o ,b) IJ 1}tJ
WATER au
r.4LITY SECTION

Action 10. 200211065

Mr. Lars Simonsen
Pritchett & Burch, PLLC
Post Office Drawer 100
Windsor, North Carolina

27983

Dear Mr. Simonsen:

This correspondence confim1s our receipt of your lettcr datcd March 30, 2004, regarding the
wetland status of the 46.5 acrc propcrty owned by Bertie County, locatcd across N.C. Highway
13 from thc cxisting Bertie County High School, adjacent to thc Cashic Rivcr, north of Windsor,
in Bertic County, North Carolina. This propeliy is also the subject of an active Departmcnt of
thc Army (DA) enforcement action.

Attached to your letter, you provided a document entitled, Report 0/ PreliminCll)l L')'ubswface
Investigation, New Bertie County High School Windsor, North Carolina, Prepared/or M.B.
Kahn Construction Company, dated September 4, 1998. You allege that the site is not a wetland
based on the findings of this rcport. However, review ofthc report reveal cd that it was prepared
for the purpose of addressing the engineering propeliies of the sitc soils and its potential effects
on construction, not for the purpose of wetlands detennination. Additionally, the investigation

\\'a~ undertakc11 i~~ hltc sunln1~r '.vhen gro~nd'.vater levels :ire expeC'ted to be 1C',~.rer. ""~..s adrnitt::-d

by the authors of the repmi, TerraTech Engineers, Inc., "Because the tcst borings represent a very
small statistical sampling of subsurface conditions, it is possible that conditions may be
encountered during further investigation at the site that are substantially different from those
indicated by the test borings." They also noted that, "... groundwater levels will fluctuate
depending on seasonal variations of precipitation and othcr factors, and may occur at higher
elevations at some time in the future."

Please be advised that the U.S. Army Corps of Engineers utilizes the document entitled,
Corps o.lEngineers Wetlands Delineation Manual, Technical Repmi Y -87 -1, dated January
1987, in its detem1inations ofDA wetlands regulatory jurisdiction. Inspection of the site
pursuant to this manual revealed that the three parameters necessary to excrt DA wetlands
regulatory jurisdiction do exist on the subjcct property. Further investigation revealed that Bertie
County is responsiblc for the unauthorizcd mechanized land clearing and filling of wetlands on
this site. This activity, undeliaken without the prior approval of this office in thc fonn of a

-2-

Department of the Army permit, constitutes a violation of Section 301 of the Clean Water Act
(33 USC 1311). Please be assured that my staff will continue to work with Bertie County to
resolve this enforcement action, as well as assist with the analysis of suitable building sites for
construction of the new Beliie County High School.

Thank you for your time and cooperation. If you have any questions, please contact Mrs.
Tracey Wheeler of my staff at the Washington Regulatory Field Office, telephone (252) 975-
1616 extension 24.

Sincerely,

~~ 'Vl L

David M. Lekson, P.W.S.
Chief, Washington Regulatory Field Office

Copies Furnished:

Mr. Zee Lamb
Bertie County Manager
Post Office Box 530
Windsor, NOlih Carolina 27983

United States Attorney
Eastern District of North Carolina
310 New Bern Avenue
Suite 300, Federal Building
Raleigh, North Carolina 27611

Mr. Ronald J. Mikulak, Chief
Wetlands Regulatory Section
Water Management Div.
U.S. Environmental Protection Agency
61 Forsyth Street, SW
Atlanta, GA 30303

).

Mr. Garland B. Pardue
U.S. Fish and Wildlife Service
Fish and Wildlife Enhanccment
Post Office Box 33726
Raleigh, North Carolina 27636-3726

Mr. Ron Sechler
National Marine Fisheries Service
Habitat Conservation Division
Pivers Island
Beauf01i, North Carolina 28516

Mr. John Domey
North Carolina Department of Environment
and Natural Resources
Division of Water Quality/Wetlands Unit
1650 Mail Service Center
Raleigh, North Carolina 27699- 1650

Mr. Danny Smith
North Carolina Department of Environment
and Natural Resources
Division of Water Quality/Wetlands Unit
1650 Mail Service Center
Raleigh, N0l1h Carolina 27699-1650

Mr. Terry Moore
Division of Coastal Management
North Carol ina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889

Mr. Pat McLain
Division of Land Resources
NOlih Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889

-3-

Mr. Jim Mulligan
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
943 \Vashington Square Mall
Washington, North Carolina 27889

Mr. Tom Steffens
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
943 Washington Square Mall
Washington, North Carolina 27889

(

-4-