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Corps Investigates Ditching in Hofmann

WILMINGTON — The Army Corps of Engineers’ is investigating possible illegal ditching of wetlands in the Hofmann Forest in Onslow and Jones counties.

The Corps started the investigation after the N.C. Coastal Federation asked for information about more than 5,500 acres in the forest that may have been cleared, possibly for agricultural uses.  Mickey Sugg, a regulator with the Corps’ Wilmington District, said the investigation is in its early stages, but that “it appears” that some ditches in the forest owned by a N.C. State University foundation “don’t meet the criteria for our exemption.”

“We haven’t made a final decision – we’re really a long way from that and we’re still gathering information and coordinating with the (U.S.) EPA (Environmental Protection Agency) – but that is what we’re looking at so far,” Sugg said.

The Corps regulates the ditching or filling of most wetlands under the federal Clean Water Act.

“The forest is a critically important tract of land for the health of the Trent, White Oak and New rivers,” noted Todd Miller, the federation’s executive director. “So we’re happy to learn that the Corps is taking our concerns seriously that wetlands are being protected in the Hofmann.”

Back when this picture of the Hofmann Forest was taken in 1954, there were no federal regulations about ditching wetlands. Now a permit is required in most instances. Photo: NCSU

The investigation of possible wetlands violations is the latest chapter in the ongoing Hofmann Forest saga, which started last year when the university’s Endowment Fund announced plans to sell the 79,000-acre forest. The proposed $150-million sale to an Illinois-based agricultural company elicited protests from school faculty and students, spawned a lawsuit and raised fears among environmentalists. The forest makes up a large percentage of the watershed for three key rivers and is part of a much larger and increasingly rare woodlands ecosystem, linking the Croatan National Forest in Carteret and Craven counties to forests at Camp Lejeune and Holly Shelter in Pender County.

Those fears were heightened by an “investors’ prospectus” that surfaced late last year. It raised numerous questions about what the new owners, Hofmann Forest LLC, will do with the land. The document outlines agricultural, commercial and residential development on much of the forest, calling into question assurances by the prospective new owner that it would maintain most of the forest for research and not convert it to agricultural, commercial and residential uses.

A section of the prospectus drew Miller’s attention and triggered his request to the Corps in November under the federal Freedom of Information Act. The prospectus notes that 5,502 acres in the forest have been clear cut or “prepped” for reforestation as of Feb. 2013. “These areas could easily be converted to agricultural uses without having to go through the Corps of Engineers,” the document states.

In his letter, Miller asked the Corps to provide any permits, documents, notes, records of phone conversations or any other information that would indicate that the ditching was done under Corps’ rules.

M. Brooke Lamson, the Corps’ district counsel, responded to the federation’s request on Jan. 24. In the letter, she noted that the Corps did not “generate or participate” in the creation of the prospectus, “nor does it concur with all of its contents. However, based on the information submitted, we have contacted Hofmann Forest to inquire about those activities referenced in your letter, and as a result, have conducted a site visit. We are… currently in the process of gathering information. Once this process is complete, the Wilmington District Regulatory Division will take action as appropriate.”

The Corps’ answer includes some heavily redacted field notes from a Jan. 7 site visit by Corps’ staff and others, but doesn’t include memos, letters and emails among Corps’ officials or between the Corps and other agencies.

Todd Miller

“The release of these documents could discourage open, frank discussions on matters of policy between subordinates and superiors, disclose proposed actions or policies before they are actually decided upon or adopted, and potentially contribute to public confusion concerning reasons and rationales that may or may not be the grounds for a future agency decision,” Lamson wrote

Sugg, who was a part of the site visit, said that the key issue appears to be the property owner’s interpretation of forestry practices that are exempt from Corps’ regulations on draining wetlands. The Corps allows minor ditching without a permit to promote and enhance tree growth or to allow trees to be cut for sale.

But if ditching appears to be of sufficient magnitude to “draw down the water table to where it could allow the planting and harvesting of crops,” Sugg said, “that would not qualify for an exemption.”

Those kinds of ditches would require a Corps’ permit before they could be dug.

Some of the areas where ditches have been dug, Sugg said, “appear to have been really wet.” It’s possible that those ditches have helped drain off enough water that the wetlands could be converted to drier uses, he said.

That’s where the EPA would come in, Sugg said. It oversees those kinds of issues as they relate to the Clean Water Act, he said.

Sugg said he doesn’t know long it will take for the Corps to determine if the law was violated. “It could be months or longer,” he noted.

If the Corps determines after the land has been sold that a violation occurred, who will be penalized, the university or the new owner?  “There are many variables that affect the answer to that question,” Sugg said. “The parties against whom a potential enforcement action is taken depends on the particular circumstances of each case.”

The Corps’ lawyers make those decisions, he said.  Generally speaking, though, a new landowner’s liability increases with his knowledge of the activity that broke the law, Sugg said.

“The buyer’s potential for exposure to such remedies may increase if they had knowledge or close association with the party that did the unauthorized activity,” he said. “To the extent possible, the person who did the unauthorized work will be subject to enforcement action and be held accountable for any measures that we may require.”

Miller said he is hoping for a speedy resolution. “Considering the importance of the land and the controversial nature of the sale, we hope the Corps puts this on the front burner and makes a determination before the sale is finalized,” he said. “That’s what we’ll ask them to do.”

Meanwhile, there is no word yet on any imminent conclusion to the ongoing legal maneuvering surrounding the sale. Wake County Superior Court in December dismissed a lawsuit by opponents to require the state to do an environmental assessment before the sale can take place. Opponents have appealed the ruling, but no court date has been set. The university has until June 30 to finalize the sale. 

About the Author

Brad Rich

Brad Rich is a reporter for the Carteret County News-Times in Morehead City. He has written about fishery and environmental issues along the central North Carolina coast for 35 years. He lives in Hubert with his wife, Gwen.