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Home My WebLink About20061841 Ver 1_Other Agency Comments_20090918 Oto-I~LfI .. DEPARTMENT OF THE ARMY WILMINGTON DISTRICT, CORPS OF ENGINEERS 69 DARLINGTON AVENUE WILMINGTON, NORTH CAROLINA 28403-1343 REPLY TO ATTENTION OF: September 18, 2009 ~1j@IjDWIi~ SEP 28 ,009 Regulatory Division Action ID No. 2005-00207 (200600207- Paper File) [)lNR . WAf*HQ!J~ff J>DAtoIl'JoI ~NIf)$T~~ Mr. Tony McNeill 523 Old Church Road Swansboro, North Carolina 28584 Dear Mr. McNeill: Please reference your July 10,2006 and subsequent September 1,2006 after-the-fact (ATF) Department of the Army (DA) authorization request to keep an 135-ft long by 35-ft wide earthen dam in approximately 0.1 acre of jurisdictional wetlands and waters, impounding over 2.0 acres of wetlands and over 500 linear feet of stream on your property located at 523 Old Church Road, west side of SR 1104 (Old Church Road), within an unnamed tributary to Hadnot Creek, near Stella, Carteret County, North Carolina. Also, please reference our February 27,2006 and June 22, 2006 letters regarding onsite restoration; our December 19, 2006 letter concerning compliance with the Clean Water Act Section 404(b)(I) Guideline requirements; and our January 26,2007 letter providing you copies of the public notice comments. During the permit process, our office received comments from the U.S. Fish and Wildlife Service recommending denial of your authorization request, and from the N.C. Wildlife Resource Commission discouraging such proposals due to habitat loss. These expressed concerns were forwarded to you in the January 26,2007. Additionally a N.C. Division of Water Quality (NC DWQ) 401 Certification and a N.C. Division of Coastal Management (NC DCM) Consistency Determination, that is required prior to our authorization, has not been issued for your proposal. At this time, it is our understanding that you have not made application to NC DCM for the Consistency Determination, and your NC DWQ 401 request has been withdrawn due to insufficient information. Upon assessing the information presented to us, we have determined that you have failed to substantiate the need for the proposed pond or provide a less damaging onsite alternative that is associated with your stated purpose of the project. Moreover, our office has determined that there are several onsite, less environmental damaging practicable alternatives to provide adequate irrigation to your pastureland and for the creation of waterfowl habitat. We have concluded that the use of the existing ponds, the expansion of the existing ponds, and/or the construction of an upland pond(s) are less environmentally damaging practicable alternatives. It is our position that you have not adequately addressed our correspondence regarding compliance with the Clean Water Act Section 404(b)(I) Guidelines discussing avoidance, minimization, and mitigation of " -2- impacts to wetlands. Based on the presence of several less damaging alternatives, aquatic resource impacts associated with the unauthorized impoundment, and comments received during the permit review, we are denying your ATF permit request to retain the approximate 135-foot long by 35-foot wide earthen dam and to impound over 2.0 acres of wetlands and over 500 linear feet of stream subject to our regulatory authority. With the failure to receive DA authorization from our office, you have a choice of two options to pursue: 1) You may choose to immediately comply with our restoration order detailed in the enclosed September 18, 2009 restoration plan, or 2) you may initiate our administrative appeals process by filling out the enclosed "Notification of Administrative Options and Process and Request for Appeal" and mailing it to the South Atlantic Division address on that form within 60 days of the receipt of this letter. If you opt for (1), all restoration must be completed within 30 days of the receipt of this letter; and proper erosion control measures, such as ground cover, straw, riprap, and silt fence, must be installed immediately to prevent sediment from entering adjacent waters and wetlands. If, at any time, sediment reenters wetlands and/or waters, the material must be removed immediately and restored back to original elevations. Once the dam has been removed, our office will determine whether any additional measures need to be taken in order to stabilize the disturbed stream channel. Please be aware that failure to initiate either site restoration or the appeals process in a timely manner may result in the immediate referral of the matter to the U.S. Attorney with a recommendation for civil prosecution. If you have any questions or comments, please do not hesitate to contact Mr. S. Kenneth Jolly, Chief of my Regulatory Division, at (910) 251-4630. Sincerely, fernonJk- olonel, U.S. Army District Commander Enclosures Copies Furnished: Mr. George E.B. Holding United States Attorney Eastern District of North Carolina 310 New Bern Avenue, Suite 800 Raleigh, North Carolina 27611 Mr. Wallace R. Sherron, Director State Property Section N.C. Department of Administration 116 West Jones Street. Raleigh, North Carolina 27603 Ms. Joanne Steenhuis Division of Water Quality N.C. Department of Environment and Natural Resources 128 Cardinal Drive Extension Wilmington, North Carolina 28405 Mr. John Hennessey Division of Water Quality N.C. Department of Environment and Natural Resources 2321 Crabtree Boulevard la igh, North Carolina 27604-2260 s. Cyndi Karoly Division of Water Quality N.C. Department of Environment and Natural Resources 2321 Crabtree Boulevard, Suite 250 Raleigh, North Carolina 27604-2260 Mr. Paul Worthington Division of Land Quality N.C. Department of Environment and Natural Resources 128 Cardinal Drive Extension Wilmington, North Carolina 28405 Mr. Mike Wylie U.S. Environmental Protection Agency Wetlands Section-Region IV Water Management Division 61 Forsyth Street, SW Atlanta, Georgia 30303 -3-