MEMORANDUM OF AGREEMENT
A MEMORANDUM OF AGREEMENT AMONG JOSEPH A. TROILO, JR., THE
VIRGINIA STATE HISTORIC PRESERVATION OFFICE, AND THE NORFOLK
DISTRICT, CORPS OF ENGINEERS RELATIVE TO THE TROILO POND AND.
FLEETWOOD HEIGHTS EASEMENT PROPERTY, CULPEPER COUNTY,
VIRGINIA
WHEREAS, Joseph A. Troilo, Jr. (Permittee) conducted earthmoving activities by bulldozer
in and adjacent to approximately 666 linear feet of a perennial stream known as Flat Run in
order to construct a private pond on his approximately 60-acre property (Tax Map 33,
Parcels 81 and 81A) off Route 685 near Brandy Station in Culpeper County, Virginia; and
WHEREAS, Flat Run is a perennial tributary to Rappahannock River and is a water of the
United States regulated pursuant to Section 404 of the Clean Water Act; and
WHEREAS, the US Army Corps of Engineers (Corps) was not notified of this work prior to
commencement; and
WHEREAS, on or before May 10, 2011, Clark Hall reported the earthmoving activities to a
local, non-profit organization who then reported to the Corps who then coordinated a joint
site meeting with Clark Hall on the adjoining Brandy Station Foundation property to inspect.
the activities; and
WHEREAS, the unauthorized discharge of fill material in Flat Run may be in direct
violation of Section 404 of the Clean Water Act (33 U.S.C. 1344), which requires a
Department of the Army permit prior to initiating work in waters of the United States; and
WHEREAS, pursuant to 36 CFR Part 800, regulations implementing Section 106 of the
National Historic Preservation Act of 1966 (NHPA), as amended, 16 U.S.C. 470f, and 33
CFR Part 325, Appendix C, Processing of Department of the Army Permits: Procedures for
Protection of Historic Places, the US Ammy Corps of Engineers (Corps) is required to take
into account the effects of federally permitted undertakings on properties included in or
eligible for inclusion in the National Register of Historic Places (NRHP) prior to the
issuance of permits for the undertaking and to consult with the Virginia State Historic
Preservation Office (SHPO): and
WHEREAS, the disturbance on the Troilo property is located within the boundaries of the
Brandy Station Battlefield Historic District (DHR ID# 023-0053), which is considered
eligible for listing in the NRHP: and
WHEREAS, in accordance with Corps regulations 33 CFR 320-330, no work can be
authorized in waters of the United States which may affect historic properties listed, or
eligible for listing in the NRHP unless and until the Norfolk thas complied with
the provisions of 33 CFR 325, Appendix C; and
Page 1 of 8WHEREAS, following issuance of a cease and desist letter, and pursuant to Section
110{K) of the NHPA, the Corps investigated the circumstances surrounding the
unauthorized activity and found no evidence of deliberate intent to circumvent the Section
106 process: and
WHEREAS, the Corps required the Permittee to conduct a Disturbance Assessment of
the affected area; and
WHEREAS. a Disturbance Assessment Prepared by the James River Institute for
Archaeology, Inc. (JRIA) on June 20, 201 1, determined that the pond construction likely had
an adverse effect on prehistoric Native American and Civil War era archaeological resources:
and
WHEREAS. the Corps has required the Permittee to submit a Stream Banks Restoration
Plan to mitigate the effects of the disturbance [Exhibit A], and the associated restoration
activities will be authorized under Nationwide Permit 27 (Aquatic Habitat Restoration,
Establishment, and Enhancement Activities); and
WHEREAS, the Corps will authorize the activities associated with the Stream Banks
Restoration Plan; and
WHEREAS. the pond construction also resulted in the deposition of excavated fill soil
Within two locations with a combined surface area of approximately 13,175 square feet or
0.3024 aere on the adjoining 18.9-aere Fleetwood Heights property (Tax Map 33, Parcel
81F) belonging to the Brandy Station Foundation, Inc. (Foundation); and
WHEREAS, the Virginia Board of Historic Resources (Board) holds a historie preservation
and open space easement over the 18.9-acre Foundation property granted by deed of gift of
easement dated May 2, 2007, and recorded in the County of Culpeper; and
WHEREAS, the easement specifically state that material changes to the easement property
‘must be subject to the prior review and written approval of the Board, acting through the
SHPO: and
WHEREAS, the deposition of fill occurred without review ot approval of the Board, and
therefore may constitute a violation of the terms of the easement; and
WHEREAS, the Foundation property is located within the boundaries of the Brandy Station
Battlefield Historie District (DHR ID# 023-0053), which has been determined eligible for
listing in the NRHP; and
WHEREAS, the Disturbance Assessment prepared by JRIA on June 20, 201 1, determined
that only the deposition of fill materials had occurred on the 18.9-acre Foundation property;
and
WHEREAS, the Corps has invited the participation of the Advisory Council on Historie
Preservation (ACHP) in this consultation, and the ACHP has declined to participate: andWHEREAS. the Corps has invited the Foundation to part
this
participate: an
ate in this consultation and
ereement as an invited signatory, and the Foundation has elected to
WHEREAS, the Corps has invited Joseph A. Troilo, Jr to participate inthis consultation
and to sign this Agreement as an invited signatory and Mr. Troilo has elected to
participate; and
WHEREAS. the Corps has invited Culpeper County to participate in this consultation and
{o sign this Agreement as a concurring party. and the Culpeper County has declined to
participate: and
NOW THEREFORE, in order to satisfy the Corps’ Section 106 responsibilities to take
into account the effects of the undertaking requiring Corps permits on historic properties,
4s well as to mitigate the effects of the disturbance to the adjoining Fleetwood Heights
casement property. the Corps and the SHPO agree that the Corps may issue a permit to the
Permittee for the Project an such permit will require compliance with this Agreement as
& permit condition: thereby effectively incorporating all terms. provisions and stipulations
of this Agreement as conditions to the permit such that if any provision or stipulation
herein is not fulfilled. such failure will constitute noncompliance with the permit, and the
Corps may pursue enforcement and may seek all available remedies,
STIPULATIONS
1. STREAM BANKS RESTORATION PROJECT
a. The stream banks restoration project will be conducted in accordance with the
attached Stream Banks Restoration Plan, as approved by the Corps. On the
Foundation property restoration shall consist of reseeding the existing fill with
‘no additional earth-moving,
b. The Permittee shall ensure that an archaeologist who meets, at a minimum, the
Secretary of the Interior's Professional Qualifications Standards (48 FR. 44738-
9. September 29, 1983) standards shall be present on site during the course of the
ill dirt reclamation process associated with the stream banks restoration project
to observe the mechanical operation to ensure that the original grass root mat in
the reclamation area remains undisturbed.
Within fifteen (15) days of completion of the reclamation, the archcologist shall prepare a
brief report on the dirt reclamation process and submit it to the Corps and the SHPO. The
report shall include photographs and other documentation recording the lack of
disturbance to the original grass mat and information on any artifacts recovered during
reclamation. Any disturbance to the original grass root mat during reclamation, and the
measures taken to address the disturbance, shall also be included in the report.
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