20031166 Ver 1_COMPLETE FILE_20060101

i
Ecowstem g
PROGRAM
November 28, 2006
Michael Babuin
Town of Cary Engineering Department
PO Box 8005
Cary, NC 27512
fly- t?_U 1.0
Project: Yates Store Road Extension County: Wake
This letter replaces a previous acceptance letter dated May 16, 2006. The purpose of this letter is to notify you that the
North Carolina Ecosystem Enhancement Program (NCEEP) is willing to accept payment for impacts associated with the
above referenced project. Please note that this decision does not assure that the payment will be approved by the permit
issuing agencies as mitigation for project impacts. It is the responsibility of the applicant to contact these agencies to
determine if payment to the NCEEP will be approved.
This acceptance is valid for six months from the date of this letter. If we have not received a copy of the issued 404
Permit/401 Certification within this time frame, this acceptance will expire. It is the applicant's responsibility to send
copies of the 404/401/CAMA permits to NCEEP. Once NCEEP receives a copy of the 404 Permit and/or the 401
Certification an invoice will be issued and payment must be made.
Based on the information supplied by you the impacts that may require compensatory mitigation are summarized in the
followine table.
River Basin Stream Impacts (feet) Wetlands Impacts (acres) Buffer I Buffer II
CU (Sq. Ft.) (Sq. Ft.)
Cold Cool Warm Riparian Non-Riparian Coastal Marsh
Cape Fear 0 0 175 0 0 0 0 0
03030002
Upon receipt of payment, EEP will take responsibility for providing the compensatory mitigation for the permitted impacts
up to a 2:1 mitigation-to-impact ratio, (buffers, Zone 1 at a 3:1 ratio and Zone 2 at a 1.5:1 ratio). The type and amount of the
compensatory mitigation will be as specified in the Section 404 Permit and/or 401 Water Quality Certification, and/or
CAMA Permit. The mitigation will be performed in accordance with the Memorandum of Understanding between the N. C.
Department of Environment and Natural Resources and the U. S. Army Corps of Engineers dated November 4, 1998.
If you have any questions or need additional information, please contact Kelly Williams at [phone].
Sincerely,
W tam. D. Gilmore, PE
Director
cc: CYndi KarolY, Wetlands/401 Unit so Monte Matthews, USACE-Raleigh
Eric Kulz, DWQ-Raleigh F1 7- C % 2005
Sean Clark, agent (fax)
File
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1 u29... .. Protectu29 Dur Stag m ?TL;,:, _ ,: Fcub?
North Carolina Ecosystem Enhancement Program, 1652 Mail Service Center, Raleigh, NC 27699-1652 / 919-715-0476 / www.nceep.net
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17 '?
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Town of Cary Engineering Department
Attn: Mike Babuin
Post Office Box 8005
Cary, NC 27512
Subject Property: Yates Store Road Thoroughfare Improvement Project
Panther Creek, Nancy Creek and Morris Branch
[030605, 16-41-1-17-3-(0.1, & 2), WSIV, NSW]
NOTICE OF WITHDRAWAL
Dear Mr. Baubin:
Alan W. Klimek, P.E. Director
Division of Water Quality
July 12, 2006
DWQ # 03-1166, Ver. 2
Wake County
On January 10, 2006, you requested a 401 Water.Quality Certification from the Division of Water Quality
(DWQ) for your project. We wrote to you on January 31, 2006 discussing concerns that we have regarding the
design of the project and stating that it would be placed on hold for three weeks giving you time to address
DWQ's concerns. As of today, DWQ has not received a response to this request. Therefore, your file is hereby
considered withdrawn and will not be reviewed until DWQ's earlier concerns are addressed. Once you have
collected sufficient information to have a complete application (please see our January 31, 2006 letter for the
missing information), you will need to reapply for DWQ approval. This includes submitting a complete
application package with the appropriate fee.
Please be aware that you have no authorization under Section 401 of the Clear Water Act for this activity and
any work done within waters of the state would be a violation of North Carolina General Statuses and
Administrative Code. Please call Mr. Ian McMillan at 919-715-4631 if you have any questions or concerns.
Si a ly,
Cyndi Karoly, Supervisor
401 Oversight/Express Review Permitting Unit
cc: Eric Kulz, Raleigh DWQ Regional ffice
Raleigh Corps of Engineers
Central Files
File Copy
Donald Sever, Chas. H. Sells, Inc., 15401 Weston Parkway, Suite 100, Cary NC 27513
Filename: S:\2006 Correspondence\03-1166 ver 2 - Yates Road Store (Wake) NOW.doc
401 Oversight/Express Review Permitting Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone: [phone] / FAX [phone] / Internet: hhtW://h2o.enr.state.nc.us/ncwetlands
Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
tVat Carolina
urally
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
Michael Babuin
Town of Cary Engineering Department
POB 8005
Cary, NC 27512
Project: Yates Store Road Extension
County: Wake
(QUA ZGG 3 I ! C, (-0
@gv91
MAY 3 ? 2006
N ?j 5T EC AR BRANCH
WETUNDS
The purpose of this letter is to notify you that the North Carolina Ecosystem Enhancement Program (NC EEP) is willing to
accept payment for impacts associated with the above referenced project. Please note that this decision does not assure that
the payment will be approved by the permit issuing agencies as mitigation for project impacts. It is the responsibility of the
applicant to contact these agencies to determine if payment to the NC EEP will be approved.
This acceptance is valid for six months from the date of this letter. If we have not received a copy of the issued 404
Permit/401 Certification within this time frame, this acceptance will expire. It is the applicant's responsibility to send
copies of the 404/401/CAMA permits to NC EEP. Once NC EEP receives a copy of the 404 Permit and/or the 401
Certification an invoice will be issued and payment must be made.
Based on the information supplied by you the impacts that may require compensatory mitigation are summarized in the
following table.
River Basin Wetlands Stream Buffer Buffer
Cataloging (Acres) (Linear Feet) Zone 1 Zone 2
Unit
(Sq. Ft.)
(Sq. Ft.)
Riparian Non-Riparian Coastal Marsh Cold Cool Warm
Cape Fear 0 0 0 0 0 175 0 0
03030002
Upon receipt of payment, EEP will take responsibility for providing the compensatory mitigation for the permitted impacts
up to a 2:1 ratio, (buffers, Zone 1 at a 3:1 ratio and Zone 2 at a 1.5:1 ratio). The type and amount of the compensatory
mitigation will be as specified in the Section 404 Permit and/or 401 Water Quality Certification, and/or CAMA Permit. The
mitigation will be performed in accordance with the Memorandum of Understanding between the N. C. Department of
Environment and Natural Resources and the U. S. Army Corps of Engineers dated November 4, 1998.
If you have any questions or need additional information, please contact Chris Mankoff at [phone]
cc: Cyndi Karoly, Wetlands/401 Unit
Todd Tugwell, USACE - Raleigh
Eric Kulz, DWQ Regional Office - Raleigh
File
Sincerely,
9. mil
"a-OR
Uliam. D. Gilmore, PE
Director
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RP.StDYGK?...
" ... PYDt9 oar .rt&e, NCDENR
North Carolina Ecosystem Enhancement Program, 1652 Mail Service Center, Raleigh, NC 27699-1652 / 919-715-0476 / www.nceep.net
f
Ecomtem
PROGRAM
May 16, 2006

WArFR
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
January 31, 2006
CERTIFIED MAIL: RETURN RECEIPT REQUESTED
Mr. Mike Babuin
Town of Cary Engineering Department
P.O. Box 8005
Cary, NC 27512
DWQ Project # 03-1166, Ver. 2
Wake County
Subject Property: Yates Store Road Thoroughfare Improvement Project
Panther Creek, Nancy Creek and Morris Branch [030605, 16-41-1-17-3-(0.1 &
2), WSIV, NSW]
REQUEST FOR MORE INFORMATION
Dear Mr. Babuin:
On January 10, 2006, the Division of Water Quality (DWQ) received your application dated January 6,
2006, for MODIFICATION to an existing 401 Water Quality Certification, which was issued to you on
November 2,0, 2003. The modification request was due to proposed additional impacts of 175 feet of
streams listed at new impact 7A to construct a road crossing. The DWQ has determined that your
application was incomplete and/or provided inaccurate information as discussed below. The DWQ will
require additional information in order to process your application to impact protected wetlands and/or
streams on the subject property. Therefore, unless we receive the additional information requested below,
we will have to move toward denial of your application as required by 15A NCAC 2H.0506. Please
provide the following information so that we may continue to review your project.
Additional Information Requested:
1. In your modification request dated January 6, 2006, proposed impacts at crossing 7A are listed as
175 feet. However, the plans do not indicate any inlet and outlet protection structures. Please
clearly indicate the linear footage of stream impact that will occur beyond footprint of the culvert.
You must include all channel excavation, relocation, or streambed stabilization.
2. Effective January 1, 1999, the DWQ fee to accompany an application proposing to impact 150
feet or greater of stream is $475.00. Please make your check for $475.00 payable to "N.C.
Division of Water Quality". Please reference DWQ # noted above on all correspondence.
3. On August 8, 2005, DWQ conducted a site and compliance check of the Yates Store Road
Thoroughfare Project DWQ#03-1166. This was a follow-up site visit from the DWQ Notice of
Violation dated August 27, 2004 and from the meetings with the Developers, Consultants, DWQ,
and the Town of Cary on January 7, 2005 and on July 17, 2005.
Accordingly, the DWQ August 8, 2005 site visit revealed that the impacts at crossing 5 / 6 (one
location) are beyond what was authorized. Specifically, DWQ measurements and file review
NQthCazolina
401 Oversight/Express Review Permitting Unit Q!llCQ?lj?
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone: [phone] / FAX [phone] / Internet: httn://h2o.enr.state.nc.us/ncwetlands
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/ 10% Post Consumer Paper
Town of Cary
January 31, 2006
revealed that 352 feet of impact has occurred. The linear footage of stream beyond that
authorized in the 401 Certification is approximately 120 feet. As such, 120 linear feet of stream
for crossing 5 / 6 must by either restored and/or permitted. If you choose to restore it you must
provide a complete restoration plan, implementation schedule, and monitoring plan. Conversely,
if you plan to permit this impact you must provide the appropriate mitigation.
4. The August 8, 2005, DWQ site inspection for impact no. 3confumed approximately 6 inches to 8
inches of sediment to -75 ft. downstream of the outlet. Please confirm whether stream segment
has been restored (sediment removed and stabilized) and detail the current status of this stream
segment.
5. Finally, a DWQ file review of crossing (impact 2) revealed that DWQ authorized 576 linear feet
of impact. However, information provided to DWQ revealed that approximately 475 feet of
impact has occurred. The 101 feet of unimpacted stream segment at Impact 2 or any restoration
at impact 2 cannot mitigate for other impacted locations.
Please send the above information to: Cyndi Karoly
401 Oversight/Express Permitting Unit
2321 Crabtree Blvd Ste 250
Raleigh, NC 27604
And to: Shelton Sullivan
DWQ NPS Assistance and Compliance Oversight Unit
1617 Mail Service Center
Raleigh, NC 27699
Please contact the DWQ within three weeks of the date of this letter to verify that you have received this
letter and that you remain interested in continuing to pursue permitting of your project and will be
providing the DWQ the requested information at a later date. Please contact me in writing and Eric Kulz
of the DWQ Raleigh Regional Office. If we do not hear from you within three weeks, we will assume
that you no longer want to pursue this project and we will consider the project as withdrawn.
This letter only addresses the application review and does not authorize any impacts to wetlands, waters
or protected buffers. Please be aware that any impacts requested within your application are not
authorized (at this time) by the DWQ. Please call Ms. Cyndi Karoly or Mr. Ian McMillan at 919-733-
1786 if you have any questions regarding or would like to set up a meeting to discuss this matter.
Sind
v
Cynd1 Karoly, Sup 'sor
401 Oversight/Express Review Permitting Unit
CBK/Um
cc: Donald Sever, Chas. H. Sells, Inc., 15401 Weston Pkwy, Suite 100, Cary, NC 27513
Eric Kulz, DWQ Raleigh Regional Office
USACE Raleigh Regulatory Field Office
File Copy
Danny Smith - DWQ NPS Assistance and Compliance Oversight Unit
Central Files
Filename: 031166Ver2YatesRdStoreThoroughfarelmprovePro j(Wake)On_Hold
Eriiiling:'townstream at 5and6, Downstream at 5and6 riprap and silt...
Subject: Emailing: Downstream at 5and6, Downstream at 5and6 riprap and silt fence across channel,
Sediment down from 3 8-5-05, Outlet at 3 8-5-05, Upstream of 5and6 8-5-05, Wingwall Erosion at 3
8-5-05
From: Shelton Sullivan <[e-mail]>
Date: Mon, 30 Jan 2006 19:19:49 -0500
To: Cyndi Karoly <[e-mail]>, Ian McMillan <[e-mail]>
CC: Danny Smith <[e-mail]>
Cyndi and Ian,
Sorry for the delay. Not sure if a fee or a full PCN is required. Here is a draft
onhold letter for the Amberly Project. DWQ03-1166. Also are attached photos from the
8-5-05 site visit. Note in the photos: silt fence across the channel, rip-rap,
sediment, erosion around the wing walls. Let me know if there are any questions. On
1/31/06 Danny and I will be in Southern Pines but we will have a cell phone with us
[phone].
Thanks
Shelton Sullivan
NPS Assistance and Compliance Oversight Unit
Division of Water Quality
[phone] ext. 544
[e-mail]

1 of 5
1/31/2006 10:28 AM
Emailing: Downstream at 5and6, Downstream at 5and6 riprap and silt...
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1/31/2006 10:28 AN
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1/31/2006 10:28 AM
CHAS H SELLS INC PRINCIPALS STEVEN W. , PE.
I
USAN K ASN
ACHT P.E.
S
. . ' . MOSE D. BUONOCORE, P.E.
THOMAS NOVELLINO, C.P., P.P.S.
, SENIOR ASSOCIATES
C. ROSS MASSEY, P.E.
DAVID K. BRUBAKER, P.L.S.
DAN E. BREWER, P.E.
January 6, 2006
Ms. Cyndi Karoly p Q?
DWQ 401Wetlands Certification Unit ? ...? D
1650 Mail Service Center
Raleigh, NC 27699-1650 JAN 1 0 2006
SUBJECT: Town of Cary Engineering Department DENR- WATEk QUAUm
DWQ 401 Permit Cary, North Carolina WETLANDS MD STOWWATER BMNCH
DWQ No. 03-1166 f
CHS PROJECT NO. 02436.003
Dear Ms. Karoly:
On behalf of the owners, Town of Cary, we are requesting a permit modification for the
permit that has been authorized on November 20, 2003. The majority of the permitted
impacts have been performed, but construction of the roadway at the northern end
(Impact #7) is not to begin until mid 2006. During the construction of the roadway
project, there has been some additional minor impacts that we propose to update with
this letter.
A new impact is south of impact #7. The original proposal for constructing a bottomless
culvert at this location has been changed since there has been concern by NCDOT and
the Corps of Engineers that a bottomless culvert will actually degrade the stream more
than if a culvert was constructed.
While working on the Individual for the Sandler at Amberly, LLC, which surrounds this
roadway, it was discussed with the Corps of Engineers that a 1:1 mitigation for stream
impacts at this new location would be required. Further, it was agreed that a new
conservation easement would be acceptable as a form of mitigation. Therefore, the new
impact will have 175' of stream impact and we propose as mitigation a total of 1.91
acres of conservation easement for this impact. A copy of the proposed conservation
easement draft and mitigation area was forwarded to you via the 404 permit
modification.
At DWQ's request, we evaluated the stream impacts to the 7 impacts identified in the
DWQ permit #03-1166. A summary of each impact follows:
Impact #1 identifies 201' of channel impact, and is the amount that was disturbed.
Impact #2 identifies 576' of impact. There is presently only 475' of impact made and is
all that is anticipated. We also antipate that approximately 100' of the disturbed stream
will be restored when construction is completed and slopes have stabilized.
15401 Weston Parkway - Suite 100 - Cary, NC 27513 - Tel: [phone] • Fax: [phone] - mm.chashsells. coin
AN EQUAL OPPORTUNITY EMPLOYER, M/F
January 6, 2006
Ms. Cyndi Karoly
DWQ 401 Wetlands Unit
Page 2of3
Impact #213 shows 37' of impact, and is the amount that was disturbed.
Impact #3 shows 84' of intermittent stream channel, which was the extent of the pipe.
This impact increased to 93', an increase of 9'.
Impact #4A shows 38' of stream impact which was the extent of the impact.
Impact #4 shows 123' of stream impact, the impact increased to 135', an increase of
12'.
Impact #5 shows 125' of stream impact, and Impact #6 shows 107' of stream impact.
The construction of the triple 72" pipes was complicated due to poor soil conditions.
First, the town of Cary required a temporary stream channel constructed for 300' to
handle the 10 year storm event as a stream bypass. The meandering of the stream at
the upstream side caused an additional 60' of stream impact to facilitate construction.
At the downstream side, the town required riprap to be installed at all locations where
the stream was disturbed. Therefore an additional 60' of stream was required to
riprapped as per the town's direction. The impact to #5 increased to 185', and the
impact to #6 increased to 167'. Although the stream impact has increased, the stream
has been stabilized and there is a much larger wetted perimeter than existed previously.
The stream now has a large ponded area downstream of the pipes, and water depth is
at least 18" deep. There is also water ponding in all three barrels of the pipes allowing
for easy aquatic transfer. The storm sewer systems will be outfalling into a level
spreader outside of a new 100' riparian buffer on both sides of the culvert. We also
anticipate that there will be "volunteer' trees around the disturbed area within the next
few years, which will begin to shade the water and allow the area to reestablish itself
within five years. In the interim, we have placed sycamore seedlings at a spacing of 6'
in the area outside of the stream. In summary, we feel that every effort has been made
to restore the stream to an original state, and have tried to offset the additional and
original stream impacts as much as possible.
Impact #7 has not been made as of this time
Impact
Number Permitted
Impact Actual
Impact Difference
Before
Restoration Proposed
Restoration Difference
After
Restoration Comments
1 201'(P) 201' 0 0' 0 0
2 576' (1) 475' -101' 100' 7201 Anticipated
stream restoration
2B 37' I 37' 0 0' 0'
3 84' I 93' 9' 0' 9'
4A/4B 38' (1) /
123' P 38'/
135' 0/
12' 0' 01/
12'
5/6 125'/ 185'/ +120' 120' 0' Stream outside of
January 6, 2006
Ms. Cyndi Karoly
DWQ 401 Wetlands Unit
Page 3 of 3
107' (P) 167' 230' pipe has
been restored,
pipe has over 18"
of water at all
times
7 226' (P) TBD - - = Not constructed
et
New 175' (P) 175' 0 1.9 acres 0 Proposed new
Impact conserv. culvert
7A easement i
1692' 1732' 40' 220' -251'
P- Perrenial I - Intermittent
This completes our findings at this time. The project has increased the total impact by
69'+175' or 244', and has restored approximately 100' of stream, with the potential for
restoring an additional 120' of impacted stream.
Please call to discuss any questions you may have on the above matter.
i
Sincerely,
Ponal H. Sells, Inc.
d A. Sever, P.E.
Project Manager
Attachments:
Exhibits C3.4 and C3.4A
cc: Todd Tugwell, COE
Bob Jones, GS Carolina
Mike Babuin, Town of Cary
Ross Massey, Chas H Sells
Sean Clark, S&EC
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RE: Yates Store Thoroughfaire DWQ 03-1166
Subject: RE: Yates Store Thoroughfaire DWQ 03-1166
From: Laurie Dennison <[e-mail]>
Date: Tue, 17 Jan 2006 14:20:12 -0500
To: "sullivan >> Shelton Sullivan" <[e-mail]>
CC: Cyndi Karoly <[e-mail]>
Shelton:
I was away last week working in New Orleans & the above "subject" project (permit
modification) came in on the 10th.
My thoughts are --
1. Cyndi needs to see this
2. Wondering if I need $$ since it's a modification of an already issued permit
I'll pop this in Cyndi's box along with the email you sent me for here review.
Laurie
l of 1 1/17/2006 2:20 PM
PRINCIPALS
STEVEN W. , P.E.
CHAS. 14. SELLS INC. SUSAN K. FASNSMITHACT P.E.
9 MOSE D. BUONOCORE, P.E.
1 1 1 1' 1 1/ THOMAS NOVELLINO, C.P., P.P.S.
SENIOR ASSOCIATES
C. ROSS MASSEY, P.E.
DAVID K BRUBAKER, P.L.S.
DAN E. BREWER, P.E.
January 6, 2006
Mr. Todd Tugwell
US Army Corps of Engineers
6508 Falls of Neuse Road, Suite 120
Raleigh, NC 27615
SUBJECT: Town of Cary Engineering Department
Nationwide Permit Cary, North Carolina
ID No. 200321367/74/75/76/77/78/79
CHS PROJECT NO. 02436.003
Dear Mr. Tugwell:
D
JAN I 0 2006
-DENR - wArEfi
SAND STORQUALBRgNCN
On behalf of the owners, Town of Cary, we are requesting a time extension and permit
modification for the permit that has been authorized on December 23, 2003. The
majority of the permitted impacts have been performed, but construction of the roadway
at the northern end (Impact #7) is not to begin until mid 2006. During the construction of
the roadway project, there has been some additional minor impacts that we propose to
update with this letter.
A new impact is south of impact #7. The original proposal for constructing a bottomless
culvert at this location has been changed since there has been concern by NCDOT and
your office that a bottomless culvert will actually degrade the stream more than if a
culvert was constructed.
While working on the Individual for the Sandler at Amberly, LLC, which surrounds this
roadway, it was discussed with your office that a 1:1 mitigation for stream impacts at this
new location would be required. Further, it was agreed that a new conservation
easement would be acceptable as a form of mitigation. Therefore, the new impact will
have 175' of stream impact and we propose as mitigation a total of 1.91 acres of
conservation easement for this impact. A copy of the proposed conservation easement
draft and mitigation area is attached.
At DWQ's request, we evaluated the stream impacts to the 7 impacts identified in the
DWQ permit #03-1166. We are also modifying the DWQ permit to agree with this
information under separate cover. A summary of each impact follows:
Impact #1 identifies 201' of channel impact, and is the amount that was disturbed.
Impact #2 identifies 576' of impact. There is presently only 475' of impact made and is
all that is anticipated. We also antipate that approximately 100' of the disturbed stream
will be restored when construction is completed and slopes have stabilized.
15401 Weston Parkway • Suite 100 • Cary, NC 27513 ' Tel: [phone] ' Fax:,919.678.0206 ' www.chashsells.com
AN EQUAL OPPORTUNITY EMPLOYER, MIF
January 6, 2006
Mr. Todd Tugwell
US Army Corps of Engineers
Page 2 of 3
Impact #26 shows 37' of impact, and is the amount that was disturbed.
Impact #3 shows 84' of intermittent stream channel, which was the extent of the pipe.
This impact increased to 93', an increase of 9'.
Impact #4A shows 38' of stream impact which was the extent of the impact.
Impact #4 shows 123' of stream impact, the impact increased to 135', an increase of
12'.
Impact #5 shows 125' of stream impact, and Impact #6 shows 107' of stream impact.
The construction of the triple 72" pipes was complicated due to poor soil conditions.
First, the town of Cary required a temporary stream channel constructed for 300' to
handle the 10 year storm event as a stream bypass. The meandering of the stream at
the upstream side caused an additional 60' of stream impact to facilitate construction.
At the downstream side, the town required riprap to be installed at all locations where
the stream was disturbed. Therefore an additional 60' of stream was required to
riprapped as per the town's direction. The impact to #5 increased to 185', and the
impact to #6 increased to 167'. Although the stream impact has increased, the stream
has been stabilized and there is a much larger wetted perimeter than existed previously.
The stream now has a large ponded area downstream of the pipes, and water depth is
at least 18" deep. There is also water ponding in all three barrels of the pipes allowing
for easy aquatic transfer. The storm sewer systems will be outfalling into a level
spreader outside of a new 100' riparian buffer on both sides of the culvert. We also
anticipate that there will be "volunteer' trees around the disturbed area within the next
few years, which will begin to shade the water and allow the area to reestablish itself
within five years. In the interim, we have placed sycamore seedlings at a spacing of 6'
in the area outside of the stream. In summary, we feel that every effort has been made
to restore the stream to an original state, and have tried to offset the additional and
original stream impacts as much as possible.
Impact #7 has not been made as of this time
Impact
Number Permitted
Impact Actual
Impact Difference
Before
Restoration Proposed
Restoratio Difference
After
Restoration Comments
1 201'(P) 201' 0 0' 0 0
2 576' (1) 475' -101' 100' -201 Anticipated
stream restoration
2B 37' I 37' 0 0' 0'
3 84' I 93' 9' 0' 9'
4A / 4B 38' (1) /
123'(P) 38'/
135' 0 /
12' 0' 01/
12'
5/6 125'/ 185'/ +120' 120' 0' ! Stream outside of
January 6, 2006
Mr. Todd Tugwell
US Army Corps of Engineers
Page 3 of 3
107' (P) 167' 230' pipe has
been restored,
pipe has over 18"
of water at all
times
7 226'(P) TBD - - - Not constructed
et
New 175' (P) 175' 0 1.9 acres 0 Proposed new
Impact conserv. culvert
7A easement 1
1692' 1732' 40' 220' '-251'
P- Perrenial 1- Intermittent
This completes our findings at this time. The project has increased the total impact by
69'+175' or 244', and has restored approximately 100' of stream, with the potential for
restoring an additional 120' of impacted stream.
Please call to discuss any questions you may have on the above matter.
Sincerely,
Ponald H. Sells, Inc.
A. Sever, P.E.
Project Manager
Attachments:
Conservation Easement
Exhibits C3.4 and C3.4A
cc: Cyndi Karoly, DWQ
Bob Jones, GS Carolina
Mike Babuin, Town of Cary
Ross Massey, Chas H Sells
Sean Clark, S&EC
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PERMANENT CONSERVATION EASEMENT
i
THIS CONSERVATION EASEMENT ("Conservation Easement") made this
day of , 200_ by and between SANDLER AT AMBERLY,
LLC. ("Grantor") and TOWN OF CARY (Grantee).
The designation Grantor and Grantee as used herein shall include said parties,
their heirs, successors and assigns, and shall include singular, plural, masculine, feminine
or neuter as required by context.
RECITALS
WHEREAS, Grantor owns in fee simple certain real property situated, lying and
being in WAKE AND CHATHAM County, North Carolina, more particularly described
in Exhibit A attached hereto and incorporated herein ("Property");
i
The Amberly P.D.D. parcels including MF-1, MF-2, SF-1, SF-2, and SF-3, Town Center, and
VC-1 and VC-2 as shown on Amberly PDD Document.
It being the same land conveyed to the Grantor by deed recorded in Book 9012 at Page 786 in the
Office of the Register of Deeds for Wake County, and Book 882 at Page 962 in the Office of the
Register of Deeds for Chatham County (hereafter "Property"); and
WHEREAS, Grantee is a public body of this state, and is qualified to be the
Grantee of a conservation easement pursuant to N.C. Gen. Stat. § 121-35;
WHEREAS, Grantor and Grantee recognize the conservation, scenic, natural, or
aesthetic value of the property in its natural state, which includes the following natural
communities: The perennial streams that are to be impacted are poor to good quality.
Riparian buffers are proposed upstream of the impacts to minimize future degradation of
the stream. The purpose of this Conservation Easement is to maintain wetland and/or
riparian resources and other natural values of the Property, and prevent the use or
development of the Property for any purpose or in any manner that would conflict with
the maintenance of the Property in its natural condition.
WHEREAS, the preservation of the Property is a condition of Department of the
Army permit Action ID issued by the Wilmington District Corps of
Engineers, required to mitigate for unavoidable stream and/or wetland impacts authorized
by that permit. Grantor and Grantee agree that third-party rights of enforcement shall be
held by the U.S. Army Corps of Engineers, Wilmington District
(Corps, to include any successor agencies), and that these rights are in addition to, and do
not limit, the rights of enforcement under said permit.
NOW, THEREFORE, for and in consideration of the covenants and
representations contained herein and for other good and valuable consideration, the
receipt and legal sufficiency of which is hereby acknowledged, Grantor hereby
unconditionally and irrevocably grants and conveys unto Grantee, its heirs, successors
and assigns, forever and in perpetuity a Conservation Easement of the nature and
character and to the extent hereinafter set forth, over the Property described on Exhibit A,
together with the right to preserve and protect the conservation values thereof, as follows:
ARTICLE 1.
DURATION OF EASEMENT
This Conservation Easement shall be perpetual. This conservation Easement is an
easement in gross, runs with the land and is enforceable by Grantee against Grantor,
Grantor's personal representatives, heirs, successors and assigns, lessees, agents and
licensees.
ARTICLE II.
PROHIBITED AND RESTRICTED ACTIVITIES
Any activity on, or use of, the Property inconsistent with the purpose of this
Conservation Easement is prohibited. The Property shall be preserved in its natural
condition and restricted from any development that would impair or interfere with the
conservation values of the Property.
Without limiting the generality of the foregoing, the following activities and uses
are expressly prohibited, restricted or reserved as indicated hereunder:
A. Disturbance of Natural Features. Any change disturbance, alteration or
impairment of the natural features of the Property or any introduction of non-native
plants and/or animal species is prohibited.
B. Construction. There shall be no constructing or placing of any building, mobile
home, asphalt or concrete pavement, billboard or other advertising display, antenna,
utility pole, tower, conduit, line, pier, landing, dock or any other temporary or permanent
structure or facility on or above the Property.
C. Industrial, Commercial and Residential Use Industrial, residential and/or
commercial activities, including any right of passage for such purposes are prohibited.
D. Agricultural, Grazing and Horticultural Use Agricultural, grazing, animal
husbandry, and horticultural use of the Property are prohibited.
E. Vegetation. There shall be no removal, burning, destruction, harming, cutting
or mowing of trees, shrubs, or other vegetation on the Property.
F. Roads and Trails. There shall be no construction of roads, trails or walkways
on the property; nor enlargement or modification to existing roads, trails or walkways.
G. SiMage. No signs shall be permitted on or over the Property, except the
posting of no trespassing signs, signs identifying the conservation values of the Property,
signs giving directions or proscribing rules and regulations for the use of the Property
and/or signs identifying the Grantor as owner of the property.
H. Dumping or Storage. Dumping or storage of soil, trash, ashes, garbage, waste,
abandoned vehicles, appliances, machinery or hazardous substances, or toxic or
hazardous waste, or any placement of underground or aboveground storage tanks or other
materials on the Property is prohibited.
I. Excavation, Dredging or Mineral Use. There shall be no grading, filling,
excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat,
minerals or other materials, and no change in the topography of the land in any manner
on the Property, except to restore natural topography or drainage patterns.
J. Water Quality and Drainage Pattern. There shall be no diking, draining,
dredging, channeling, filling, leveling, pumping, impounding or related activities, or
altering or tampering with water control structures or devices, or disruption or alteration
of the restored, enhanced, or created drainage patterns. In addition, diverting or causing
or permitting the diversion of surface or underground water into, within or out of the
easement area by any means, removal of wetlands, polluting or discharging into waters,
springs, seeps, or wetlands, or use of pesticide or biocides is prohibited.
K. Development Rights. No development rights that have been encumbered or
extinguished by this Conservation Easement shall be transferred pursuant to a
transferable development rights scheme or cluster development arrangement or
otherwise.
L. Vehicles. The operation of mechanized vehicles, including, but not limited to,
motorcycles, dirt bikes, all-terrain vehicles, cars and trucks is prohibited.
M. Other Prohibitions. Any other use of, or activity on, the Property which is or
may become inconsistent with the purposes of this grant, the preservation of the Property
substantially in its natural condition, or the protection of its environmental systems, is
prohibited.
ARTICLE III
GRANTOR'S RESEVERED RIGHTS
The Grantor expressly reserves for himself, his personal representatives, heirs,
successors or assigns, the right to continue the use of the property for all purposes not
inconsistent with this Conservation Easement, including, but not limited to, the right to
quiet enjoyment of the Property, the rights of ingress and egress, the right to hunt, fish,
and hike on the Property, the right to sell, transfer, gift or otherwise convey the Property,
in whole or in part, provided such sale, transfer or gift conveyance is subject to the terms
of, and shall specifically reference, this Conservation Easement.
Notwithstanding the foregoing Restrictions, Grantor reserves for Grantor, its
successors and assigns, the right to construct stream mitigation on the Property; in
accordance with the Amberly PDD Permanent Conservation Easement recorded on in
the Deed Book Volume Page - detailed Mitigation plan approved in accordance with the
Mitigation Banking Instrument for the Amberly PDD Mitigation Bank.
ARTICLE IV.
GRANTEE'S RIGHTS
The Grantee or its authorized representatives, successors and assigns, and the
Corps, shall have the right to enter the Property at all reasonable times for the purpose of
inspecting said property to determine if the Grantor, or his personal representatives, heirs,
successors, or assigns, is complying with the terms, conditions, restrictions, and purposes
of this Conservation Easement. The Grantee shall also have the right to enter and go upon
the Property for purposes of making scientific or educational observations and studies,
and taking samples. The easement rights granted herein do not include public access
rights.
ARTICLE V
ENFORCEMENT AND REMEDIES
A. To accomplish the purposes of this Easement, Grantee is allowed to prevent
any activity on or use of the Property that is inconsistent with the purposes of this
Easement and to require the restoration of such areas or features of the Property that may
be damaged by such activity or use. Upon any breach of the terms of this Conservation
Easement by Grantor that comes to the attention of the Grantee, the Grantee shall notify
the Grantor in writing of such breach. The Grantor shall have 30 days after receipt of
such notice to correct the conditions constituting such breach. If the breach remains
uncured after 30 days, the Grantee may enforce this Conservation Easement by
appropriate legal proceedings including damages, injunctive and other relief.
Notwithstanding the foregoing, the Grantee reserves the immediate right, without
notice, to obtain a temporary restraining order, injunctive or other appropriate relief if the
breach of the term of this Conservation Easement is or would irreversibly or otherwise
materially impair the benefits to be derived from this Conservation Easement. The
Grantor and Grantee acknowledge that under such circumstances damage to the Grantee
would be irreparable and remedies at law will be inadequate. The rights and remedies of
the Grantee provided hereunder shall be in addition to, and not in lieu of, all other rights
and remedies available to Grantee in connection with this Conservation Easement. The
costs of a breach, correction or restoration, including the Grantee's expenses, court costs,
and attorneys' fees, shall be paid by Grantor, provided Grantor is determined to be
responsible for the breach. The Corps shall have the same right to enforce the terms and
conditions of this easement as the Grantee.
B. No failure on the part of the Grantee to enforce any covenant or provision
hereof shall discharge or invalidate such covenant or any other covenant, condition, or
provision hereof or affect the right to Grantee to enforce the same in the event of a
subsequent breach or default.
C. Nothing contained in this Conservation Easement shall be construed to entitle
Grantee to bring any action against Grantor for any injury or change in the Property
resulting from causes beyond the Grantor's control, including, without limitation, fire,
flood, storm, war, acts of God or third parties, except Grantor's lessees or invitees; or
from any prudent action taken in good faith by Grantor under emergency conditions to
prevent, abate, or mitigate significant injury to life, damage to property or harm to the
Property resulting from such causes.
ARTICLE VI
MISCELLANEOUS
A. Warranty. Grantor warrants, covenants and represents that it owns-the Property
in fee simple, and that Grantor either owns all interests in the Property which may be
impaired by the granting of this Conservation Easement or that there are no outstanding
mortgages, tax liens, encumbrances, or other interests in the Property which have not
been expressly subordinated to this Conservation Easement. Grantor further warrants that
Grantee shall have the use of and enjoy all the benefits derived from and arising out of
this Conservation Easement, and that Grantor will warrant and defend title to the Property
against the claims of all persons.
B. Subsequent Transfers. The Grantor agrees to incorporate the terms of this
Conservation Easement in any deed or other legal instrument that transfers any interest in
all or a portion of the Property. The Grantor agrees to provide written notice of such
transfer at least thirty (30) days prior to the date of the transfer. The Grantor and Grantee
agree that the terms of this Conservation Easement shall survive any merger of the fee
and easement interests in the Property or any portion thereof and shall not be amended,
modified or terminated without the prior written consent and approval of the Corps.
C. Assignment. The parties recognize and agree that! the benefits of this
Conservation Easement are in gross and assignable provided, however that the Grantee
hereby covenants and agrees, that in the event it transfers or assigns this Conservation
Easement, the organization receiving the interest will be a qualified holder under N.C.
Gen. Stat. § 121-34 et seq. and § 170(h) of the Internal Revenue Code, and the Grantee
further covenants and agrees that the terms of the transfer or assignment will be such that
the transferee or assignee will be required to continue in perpetuity the conservation
purposes described in this document.
D. Entire Agreement and Severability. This instrument sets forth the entire
agreement of the parties with respect to the Conservation Easement and supersedes all
prior discussions, negotiations, understandings or agreements relating to the Conservation
Easement. If any provision is found to be void or unenforceable by a court of competent
jurisdiction, the remainder shall continue in full force and effect.
E. Obligations of Ownership. Grantor is responsible for any real estate taxes,
assessments, fees, or charges levied upon the Property. Grantor shall keep the Property
free of any liens or other encumbrances for obligations incurred by Grantor. Grantee shall
not be responsible for any costs or liability of any kind related to the ownership,
operation, insurance, upkeep, or maintenance of the Property, except as expressly
provided herein. Nothing herein shall relieve the Grantor of the obligation to comply with
federal, state or local laws, regulations and permits that may apply to the exercise of the
Reserved Rights.
F. Extinguishment. In the event that changed conditions render impossible the
continued use of the Property for the conservation purposes, this Conservation Easement
may only be extinguished, in whole or in part, by judicial proceeding.
G. Eminent Domain. Whenever all or part of the Property is taken in the exercise
of eminent domain so as to substantially abrogate the Restrictions imposed by this
Conservation Easement, Grantor and Grantee shall join in appropriate actions at the time
of such taking to recover the full value of the taking, and all incidental and direct
damages due to the taking.
H. Proceeds. This Conservation Easement constitutes a real property interest
immediately vested in Grantee. In the event that all or a portion of this Property is sold,
exchanged, or involuntarily converted following an extinguishment or the exercise of
eminent domain, Grantee shall be entitled to the fair market value of this Conservation
Easement. The parties stipulate that the fair market value of this Conservation Easement
shall be determined by multiplying the fair market value of the Property unencumbered
by this Conservation Easement (minus any increase in value after the date of this grant
attributable to improvements) by the ratio of the value of this easement at the time of this
grant to the value of the Property (without deduction for the value of this Conservation
Easement) at the time of this grant. The values at the time of this grant shall be the values
used, or which would have been used, to calculate a deduction for federal income tax
purposes, pursuant to Section 170(h) of the Internal Revenue Code (whether eligible or
ineligible for such a deduction). Grantee shall use its share of the proceeds in a manner
consistent with the purposes of this Conservation Easement:
1. Notification. Any notice, request for approval, or other communication required
under this Conservation Easement shall be sent by registered or certified mail, postage
prepaid, to the following addresses (or such address as may be hereafter specified by
notice pursuant to this paragraph):
To Grantor:
Sandler at Amberly, LLC
448 Viking Drive, Suite 220
Virginia Beach, VA 23452
919-832-9896
To Grantee:
Thomas L. Horstman, CPESC, CFM
Erosion Control Supervisor
Engineering Department
Town of Cary
PO Box 8005, Cary, NC 27512
919-460-4935
To the Corps:
Wilmington District
US Army Corps of Engineers
6508 Falls of Neuse Road, Suite 120
Raleigh, NC 27615
J. Failure of Grantee. If at any time Grantee is unable or fails to enforce this
Conservation Easement, or if Grantee ceases to be a qualified grantee, and if within a
reasonable period of time after the occurrence of one of these events Grantee fails to
make an assignment pursuant to this Conservation Easement, then the Grantee's interest
shall become vested in another qualified grantee in accordance with an appropriate
proceeding in a court of competent jurisdiction.
K. Amendment. This Conservation Easement maybe amended, but only in a
writing signed by all parties hereto, and provided such amendment does not affect the
qualification of this Conservation Easement or the status of the Grantee under any
applicable laws, and is consistent with the conservation purposes of this grant.
L. Present Condition of the Property. The wetlands, scenic, resource,
environmental, and other natural characteristics of the Property, and its current use and
state of improvement, are described in Section _, Appendix B of the Mitigation Plan,
dated , prepared by Grantor and acknowledged by the Grantor and
Grantee to be complete and accurate as of the date hereof. Both Grantor and Grantee have
copies of this report. It will be used by the parties to assure that any future changes in the
use of the Property will be consistent with the terms of this Conservation Easement.
However, this report is not intended to preclude the use of other evidence to establish the
present condition of the Property if there is a controversy over its use.
TO HAVE AND TO HOLD the said rights and easements perpetually unto Grantee for
the aforesaid purposes.
IN TESTIMONY WHEREOF, the Grantor has hereunto set his hand and seal, the day
and year first above written.
IN WITNESS WHEREOF, the Grantor has caused this instrument to be signed in its name by its
duly representative, the day and year first above written.
Town Of Cary Sandler at Amberly, LLC
(Grantee) a North Carolina limited liability company
(Grantor)
By: By:
By: By:_
Title: Title:
NORTH CAROLINA
WAKE COUNTY
I, the undersigned Notary Public for the aforesaid county and state, do hereby certify that
personally appeared before me this day and acknowledged
the due execution of the foregoing instrument.
Witness my hand and official seal this day of -)200-.
Notary Public
My commission expires:
[Official Seal]
DWQ031166 Modification - Amberly
Subject: DWQ031166 Modification - Amberly
From: Shelton Sullivan <[e-mail]>
Date: Wed, 28 Dec 2005 15:16:59 -0500
To: [e-mail]
CC: Cyndi Karoly <[e-mail]>, Ian McMillan <[e-mail]>, Eric
Kulz <[e-mail]>, Danny Smith <[e-mail]>
Laurie,
(Please forward accordingly)
The Wetland Unit should receive a modification request for: DWQ 031166 Yates Store
Thoroughfare Improvement Project or (DWQ 950410 Simanco Amberly Development, I
cuurently have this project file) in Chatham County. (031166 replaced 950410). The
Corps is extended and modifying their 404 permit for additional impacts. I have
talked with Todd Tugwell with the Corps. We have issues with some of the impacts on
the site vs. what was approved in 031166. DWQ sent an NOV in 2004 and some of the
issues have not been resolved. We also have issues with their restoration efforts.
Not sure if there will be a public notice period since these are modifications? Let
me know when you receive the modification request so I can comment accordingly.
Please print this email out and put it in the file as well. DWQ 031166
Thanks,
Shelton
Shelton Sullivan
NPS Assistance and Compliance Oversight Unit
Division of Water Quality
[phone] ext. 544
[e-mail]
Shelton Sullivan <[e-mail]>
Environmental Specialist
NC Department of Environment and Natural Resources
NPS Assistance & Compliance Oversight Unit - Division of Water Quality
l of 1 12/28/2005 4:17 PM
[Fwd: Delivery Status Notification]
Subject: [Fwd: Delivery Status Notification]
From: Shelton Sullivan <[e-mail]>
Date: Wed, 28 Dec 2005 15:20:03 -0500
To: laurie. j . dennison@ncmail. net
Shelton Sullivan
NPS Assistance and Compliance Oversight Unit
Division of Water Quality
[phone] ext. 544
[e-mail]
i
Subject: Delivery Status Notification
From: Mail Delivery Service <[e-mail]>
Date: Wed, 28 Dec 2005 15:17:05 -0500
To: Shelton. [e-mail]
- These recipients of your message have been processed by the mail server:
[e-mail]; Failed; 5.1.1 (bad destination mailbox address)
Remote MTA 127.0.0.1: SMTP diagnostic: 550 RCPT TO:<[e-mail]>
User unknown
Reporting-MTA: dns; scc152-its.state.nc.us
Received-from-MTA: dns; [127.0.0.1] (149.168.123.29)
Arrival-Date: Wed, 28 Dec 2005 15:17:00 -0500
Final-Recipient: rfc822; [e-mail]
Action: Failed
Status: 5.1.1 (bad destination mailbox address)
Remote-MTA: dns; 127.0.0.1
Diagnostic-Code: smtp; 550 RCPT TO:<[e-mail]> User unknown
Subject: DWQ031166 Modification - Amberly
From: Shelton Sullivan <[e-mail]>
Date: Wed, 28 Dec 2005 15:16:59 -0500
To: Lauri [e-mail]
CC: Cyndi Karoly <[e-mail]>, Ian McMillan <[e-mail]>, Eric
Kulz <[e-mail]>, Danny Smith <[e-mail]>
Laurie,
(Please forward accordingly)
The Wetland Unit should receive a modification request for: DWQ 031166 Yates Store
Thoroughfare Improvement Project or (DWQ 950410 Simanco Amberly Development, I
cuurently have this project file) in Chatham County. (031166 replaced 950410). The
of 2 12/28/2005 3:23 PM
[Fwd: Delivery Status Notification]
W k
Corps is extended and modifying their 404 permit for additional impacts. I have
talked with Todd Tugwell with the Corps. We have issues with some of the impacts on
the site vs. what was approved in 031166. DWQ sent an NOV in 2004 and some of the
issues have not been resolved. We also have issues with their restoration efforts.
Not sure if there will be a public notice period since these are modifications? Let
me know when you receive the modification request so I can comment accordingly.
Please print this email out and put it in the file as well. DWQ 031166
Thanks,
Shelton
Shelton Sullivan
NPS Assistance and Compliance Oversight Unit
Division of Water Quality
[phone] ext. 544
[e-mail]
Shelton Sullivan <shelton.sullivan(o,ncmail.net>
Environmental Specialist
NC Department of Environment and Natural Resources
NPS Assistance & Compliance Oversight Unit - Division of Water Quality
Shelton Sullivan <[e-mail]>
Environmental Specialist
NC Department of Environment and Natural Resources
I
NPS Assistance & Compliance Oversight Unit - Division of Water Quality i
Content-Type: message/r&822
Delivery Status Notification
j Content-Encoding: 7bit
i
Part 1.2.1.21 ; Content-Type: Message/Delivery-Status
of 2 12/28/2005 3:23 PM
DWQ031166 Modification - Amberly
Subject: DWQ031166
Lci ? 4 ?
From: Shelton Sullivan
Date: Wed, 28 Dec 20(
To: Laurie.Dennison@
` e
CC: Cyndi Karoly <C}
Kulz <Eric. Kulz @ ncm
Laurie,
(Please forward acc
[[e-mail]>, Eric
l.net>
The Wetland Unit s1:for: DWQ 031166 Yates Store
Thoroughfare Improv S? Lt ?'S Amberly Development, I
cuurently have this 31166 replaced 950410). The
Corps is extended a 3itional impacts. I have
talked with Todd Tu
e ? s with some of the impacts on
the site vs. what u J VOV in 2004 and some of the
issues have not been reso ve e a so ave issues w their restoration efforts.
Not sure if there will be a public notice period since these are modifications? Let
me know when you receive the modification request so I can comment accordingly.
Please print this email out and put it in the file as well
Thanks,
Shelton
Shelton Sullivan
NPS Assistance and Compliance Oversight Unit
Division of Water Quality
[phone] ext. 544
[e-mail]
Shelton Sullivan <[e-mail]>
Environmental Specialist
NC Department of Environment and Natural Resources
NPS Assistance & Compliance Oversight Unit - Division of Water Quality
DWQ 031166
LZ
L!
DEC, 0 2005
WETLANDS AND STOR MAT R RWH
1 of 1 12/28/2005 3:31 PM
mberly Roadway Permit - extension
Subject. Amberly Roadway Permit - extension
From: "Don Sever" <[e-mail]>
Date: Fri, 16 Dec 2005 12:26:55 -0500
To: "Shelton Sullivan" <[e-mail]>, "Todd.J.Tugwell"
<Todd.J.Tugwell @ saw02.usace.army.mil>
Todd, I talked with Shelton Sullivan with NCDENR yesterday about the impacts on the roadway permit
for Amberly, and he said he wanted to check the lengths of impacts that we have stated in this attached
letter. This permit expires on Dec 29, and we hope to have everything from Shelton within the next few
days for us to give you the final version of the letter.
Thanks Don
Chas. H. Sells, Inc.
15401 Weston Pkwy., Ste. 100
Cary, NC 27513
[phone]
[phone] (Fax)
[e-mail]
tugwell amberly 12 6
1 of 1 12/20/2005 2:14 PM
CHAS. H. SELLS, INC.
Rallm 11"W-1017-10
December 6, 2005
Mr. Todd Tugwell
US Army Corps of Engineers
6508 Falls of Neuse Road, Suite 120
Raleigh, NC 27615
SUBJECT: Town of Cary Engineering Department
Nationwide Permit Cary, North Carolina
ID No. 200321367/74/75/76/77178/79
CHS PROJECT NO. 02436.003
Dear Mr. Tugwell:
On behalf of the owners, Town of Cary, we are requesting a time extension for the
permit that has been authorized on December 23, 2003. The majority of the permitted
impacts have been performed, but construction of the roadway at the northern end
(Impact #7) is not to begin until mid 2006. During the construction of the roadway
project, there has been some additional minor impacts that we propose to update with
this letter.
A new impact is south of impact V. The original proposal for constructing a bottomless
culvert at this location has been changed since there has been concern by NCDOT and
your office that a bottomless culvert will actually degrade the stream more than if a
culvert was constructed.
While working on the Individual for the Sandler at Amberly, LLC, which surrounds this
roadway, it was discussed with your office that a 1:1 mitigation for stream impacts at this
new location would be required. Further, it was agreed that a new conservation
easement would be acceptable as a form of mitigation. Therefore, the new impact will
have 175' of stream impact and we propose as mitigation a total of 1.91 acres of
conservation easement for this impact.
At DWQ's request, we evaluated the stream impacts to the 7 impacts identified in the
DWQ permit #950410. A summary of each impact follows:
Impact #1 identifies 201' of channel impact, and is the amount that was disturbed.
Impact #2 identifies 576' of impact. There is presently only 475' of impact made and is
all that is anticipated. We also antipate that approximately 100' of the disturbed stream
will be restored when construction is completed and slopes have stabilized.
Impact #213 shows 37' of impact, and is the amount that was disturbed.
December 16, 2005
Mr. Todd Tugwell
US Army Corps of Engineers
Page 2 of 3
Impact #3 shows 84' of intermittent stream channel, which was the extent of the pipe.
This impact increased to 93', an increase of 9'.
Impact #4A shows 38' of stream impact which was the extent of the impact.
Impact #4 shows 123' of stream impact, the impact increased to 135', an increase of
12'.
Impact #5 shows 125' of stream impact, and Impact #6 shows 107' of stream impact.
The construction of the triple 72" pipes was complicated due to poor soil conditions.
First, the town of Cary required a temporary stream channel constructed for 300' to
handle the 10 year storm event as a stream bypass. The meandering of the stream at
the upstream side caused an additional 60' of stream impact to facilitate construction.
At the downstream side, the town required riprap to be installed at all locations where
the stream was disturbed. Therefore an additional 60' of stream was required to
riprapped as per the town's direction. The impact to #5 increased to 185', and the
impact to #6 increased to 167'. Although the stream impact has increased, the stream
has been stabilized and there is a much larger wetted perimeter than existed previously.
The stream now has a large ponded area downstream of the pipes, and water depth is
at least 18" deep. There is also water ponding in all three barrels of the pipes allowing
for easy aquatic transfer. The storm sewer systems will be outfalling into a level
spreader outside of a new 100' riparian buffer on both sides of the culvert. We also
anticipate that there will be "volunteer" trees around the disturbed area within the next
few years, which will begin to shade the water and allow the area to reestablish itself
within five years. In the interim, we have placed sycamore seedlings at a spacing of 6'
in the area outside of the stream. In summary, we feel that every effort has been made
to restore the stream to an original state, and have tried to offset the additional and
original stream impacts as much as possible.
Impact #7 has not been made as of this time
Impact Permitted Actual Difference Proposed Difference Comments
Number Impact Impact Before Restoration After
Restoration Restoration
1 201' P 201' 0 0' 0 0
2 576' (1) 475' -101' 100' -201 Anticipated
stream restoration
2B 37' I 37' 0 0' 0'
3 84' I 93' 9' 0' 9'
4A/4B 38'(1)/ 38'/ 0/ 0' 01/
123' P 135' 12' 12'
5/6 125'/ 185'/ +120' 0' 01; Stream outside of
107' (P) 167' r 230' pipe has
been restored,

December 16, 2005
Mr. Todd Tugwell
US Army Corps of Engineers
Page 3 of 3
pipe has over 18"
of water at all
times
7 226' (P) TBD - - - Not constructed
et
New 175' (P) 175' 0 1.9 acres 0 Proposed new
Impact conserv. culvert
7A easement
1 1692' 1732' 40' 220' -251'
Y,
Chas. H. Sells, Inc.
v- rerrenlal i - intermittent
This completes our findings at this time. The project has,increased the total impact by
69'+175' or 244', and has restored approximately 100' of stream, with the potential for
restoring an additional 120' of impacted stream.
Please call to discuss any questions you may have on the above matter.
Sincere)
Donald A. Sever, P.E.
Project Manager
cc: Bob Jones, GS Carolina
Mike Babuin, Town of Cary
Ross Massey, Chas H Sells
Kevin Martin, S&EC
VAProjects\Sells Projects\02436 Amberly Roads- Phase 1\correspondenceVetter tugwell amberly 12 6 05.doc
Mats 09 05 11:47a Bob Jones 919-832-9896 p.2,
PRINCIPAL.
CHAS. H. SELLS, INC. STEVEN SMITH, APE.
MDSE D BUONOCORE. P.E.
THOMAS NOVELUNO, C.P
1R# "111141 / fir ell • SENIOR ASSOCIATES
PHILIPPE BOUSADER, P.E.
SCOTT w, DUNCAN. CP.
NAOMIISAACS
DAVID A. WEBBER. P.L.S.
ASSOCIATES
C. ROSS MASSEY. PT-
DAVID K BRUBAKER. P.L.S.
February 15, 2005`
Bob Jones
GS Carolina, LLC
34121/2 Hillsborough Street
Raleigh, NC 27607
SUBJECT: Amberly PUD - Phase 1 Roadways
DWQ Letter Dated August 27, 2004
Updated Stream Impacts
CHS PROJECT NO. 02436.003
Dear Mr. Jones:
At your request, we evaluated the stream impacts to the 7 impacts identified in the DWQ .
permit #950410. A summary of each impact follows:
} Impact #1 identifies 201' of channel impact. To date, only approximately 50' of impact
has been made with the construction of the sanitary sewer crossing. For the
intersection street, we anticipate a stream impact length of 80', bringing the expected
stream impact to 130', a decrease of 71'.
Impact #2 identifies 576' of impact. There is presently only 475' of impact made and is
all that is anticipated. We also antipate that approximately 100' of the disturbed stream
will be restored when construction is completed and slopes have stabilized.
Impact #213 shows 37' of impact, and is the amount that was disturbed.
Impact #3 shows 84' of intermittent stream channel, which was the extent of the pipe.
This impact increased to 93', an increase of 9'.
Impact #4A shows 38' of stream impact which was the extent of the impact.-
Impact #4 shows 123' of stream impact, the impact increased to 135', an increase of
12'.
Impact #5 shows 125' of stream impact, and Impact #6 shows 107" of stream impact.
The construction of the triple 72" pipes was complicated due to poor soil conditions.
First, the town of. Cary required a temporary stream channel constructed for 300' to
handle the 10 year storm event as a stream bypass.. The meandering of the stream at
the upstream side caused an additional 60' of stream impact to facilitate construction.
At the downstream side, the town required riprap to be installed at all locations where
the stream was disturbed. Therefore an additional 60' of stream was required to
riprapped as per the town's direction. The impact to #5 increased to 185', and the
1.53(x) Weston Parkway • Suite I(X) • Cary, NC 27513 *Tel: [phone] • Fax: 919.078A206 • ww•w.chaslisellsxom
AN EQUAL UI'11010- . 1TY EMPLOYER, M!I
Mar 09 05 11:47a Bob Jones 919-832-9896 p.3
4.
February 15, 2005
Mr. Bob Jones
----- Amberly PUD
Page 2 of 3
impact to #6 increased to 167. Although the stream impact has increased, the stream
has been stabilized and there is a much larger wetted perimeter than existed previously.
The stream now has a large ponded area downstream of the pipes, and water depth is
at least 18" deep. There is also water ponding in all three barrels of the pipes allowing
for easy aquatic transfer. The storm sewer systems will be outfalling into a level
spreader outside of a new 100' riparian buffer on both sides of the culvert. We also
anticipate that there will be "volunteer" trees around the disturbed area within the next
few years, which will begin to shade the water and allow the area to reestablish itself
within five years. In the interim, we are evaluating the feasibility of placing sycamore
seedlings at a spacing of 6' in the area outside of the stream. In summary, we feel that
every effort has been made to restore the stream to an original state, and have tried to
offset the additional and original stream impacts as much as possible.
Impact #7 has not been made as of this time but is anticipated by the end of the year.
In our effort to continue to avoid and minimize stream impacts, we are in the process of
realigning an intersection to avoid the stream/ wetland upstream of this impact.' The
existing stream crosses at a forty five degree angle in relation to the road, creating
challenges to keep the limits of this impact to remain the same. Worst case scenario
would require an additional 75' of stream impact at this location, in comparison of
impacting 0.5 acres of wetlands and 125' of stream at an upstream crossing.
Impact Permitted Actual Difference Proposed Difference Comments
Number Impact Impact " Before Restoratio After
Restoration Restoration
1 201.' (P) , 50'+ -71 0' -71' There is a
80' driveway to be
future constructed
2 576'(1) 475' -101' 100' -201 Anticipated
stream restoration
2B 37' I 37' 0 p' 0.
3 84'(1) 93' g. ` o, 91
4A / 4B 38' (1) ! 38'/ 0/ 0' 01/
123' P 135 12' 12,
5/6 125/ 185' / +120' 120' Stream outside of
107'(P) 167' 230' pipe has
been restored,
pipe has over 18"
of water at all
times
7 226' (P) TBD - - - Not constructed
et
1517' 1486' -31' 220' -251'

O?O? W A T ?RQG
r
O "C
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
Coleen H. Sullins, Deputy Director
Division of Water Quality
August 27, 2004
Certified Mail
Return Receipt Requested
Sander at Amberly, LLC
Bob Jones, General Manager
3412 t/z Hillsborough Street
Raleigh, NC 27607
WETLANDS 1401 GROUP
AUG 8 0 2004
WATER QUALITY SECTION
Subject: NOTICE OF VIOLATION AND
RECOMMENDATION FOR ENFORCEMENT
Settleable Solids Violations
General Stormwater Permit NCGO10000 Conditions Violations
Lake Amberly Roads
Wake County, NC
Dear Mr. Jones:
On, July 15, 2004 Joe Albiston of the Division of Water Quality (DWQ) Raleigh Regional Office
(RRO) and on July 29, 2004 Joe Albiston and Shelton Sullivan of the DWQ Wetlands / 401
Certification Office inspected the tract known as Lake Amberly Roads in Cary, North Carolina.
During the site visits, the investigator(s) took photographs, measurements, and made observations of
the respective stream impacts along Morris Branch and unnamed tributaries to Morris Branch, Class
WS-IV, NSW in the Cape Fear River Basin.
The inspectors noted sediment was being conveyed to waters from short-circuiting sedimentation
erosion control measures.
Inspectors measured four of the road crossing construction impacts and compared the measurements
to the approved impacts in the 401 Water Quality Certification file DWQ # 950410. According to
DWQ files, at least three of the crossings impacts observed were greater than what was approved.
As a result of the above-mentioned inspections and a DWQ file review, additional information is
requested and the following violations are noted:
1) Settleable Solids Violations
2) Failure to comply with several conditions of the General Stormwater Permit
NCGO10000.
ENA
N. C. Division of Water Quality ' 1617 Mail Service Center Raleigh, North Carolina 27699-1617 [phone] Customer Service
1-877-623-6748
I
Item 1. Settleable Solids Violations
The deposition of sediment was observed impacting approximately 900 linear feet of stream
along Morris Branch and along tributaries to Morris Branch. The sediment amounts typically
ranged from 4 to 6 inches; however, depths up to two (2) feet were observed down stream from
three road crossings. These impacts represent a standard violation for settleable solids, 15A
NCAC 2B .0211(3)(c) which respectively states the following:
15A NCAC 2B .0211(3)(c)" Floating solids, settleable solids, sludge depositions: only such
amounts attributable to sewage, industrial waste or other waste as will not make the water
unsafe or unsuitable for aquatic life and wildlife or impair the waters for any designated
uses."
Item 2. General Stormwater Permit NCGO10000 - Conditions Violations
Upon the approval of the Sedimentation and Erosion Control Plan, issued by Town of Cary on
December 16, 2003, an NPDES General Stormwater permit, NCGO10000 (see attachment),
administered by DWQ was issued. This General Permit allowed stormwater to be discharged during
land disturbing activities as stipulated by conditions in the p ermit. S pecific p ermit condition
violations observed during the inspections were as follows:
• Part 1. Section A: Final Limitations and Controls for Stormwater Discharges
(2) Sates that the permittee shall implement the plan (Sedimentation and
Erosion Control Plan), which has been approved by the approval authority.
The approved plan is considered a requirement or conditions of this general
permit. Deviation from the approved plan, or approved amendment to the
plan shall constitute a violation of the terms and conditions of this general
permit except that deviations from the approved plan will be allowed (1) to
correct an emergency situation where sediments are being discharged off the
site or (2) when minor modifications have been made for the purpose of
improving the performance of the erosion and sedimentation control
measures and notification of the minor modification has been made to the
Division of Land Resources (or approved local program). Such a deviation
shall be noted on the approved plan maintained at the job site. During active
construction, a copy of the approved plan shall be maintained on the site."
Town of Cary Notice of Violations letters dated January 6, 2004, April 8, 2004, May 27,
2004 and June 16, 2004 inspections revealed that some of the required sediment control
devices had not been installed as per the approved erosion and sediment control plan.
Part I. Section B: Minimum Monitoring and Reporting Requirements
(1) Requires that all erosion and sediment control facilities be inspected by or
under the direction of the permittee at least once every seven calendar days, and
within 24 hours after any storm event of greater than 0.5 inches of rain per 24
hour period. A rain gauge shall also be maintained on the site and a record of
N. C. Division of Water Quality 1617 Mail Service Center Raleigh, North Carolina 27699-1617 [phone]
9 UD M
Customer Service
1-877-623-6748
the rainfall amounts and dates shall be kept by the permittee.
These records could not be produced during the inspection, and the rain gauge was not on the
site.
Part I. Section B: Minimum Monitoring and Reporting Requirements
(2) Requires that once land disturbance has begun onsite, stormwater discharges
shall be inspected by observation for stormwater discharge characteristics at a
frequency prescribed in Section B (1) of the permit. If any visible
sedimentation is leaving the disturbed limits of the site, corrective action shall
be immediately taken to control the discharge of sediments outside the
disturbed limits.
These records could not be produced during the inspection.
• Part II. Section C: Proper Operation and Maintenance -
(1) States the permittee shall at all times properly operate and maintain all facilities
and systems of treatment and control (and related appurtenances) which are
installed or used by the permittee to achieve compliance with the conditions of
this general permit.
Town of Cary Notice of Violations letters dated January 6, 2004, April 8, 2004, May 27,
2004 and June 16, 2004 inspections revealed that some of the required sediment control
devices had not been maintained as per the approved erosion and sediment control plan.
• Part II. Section E: Reporting Requirements
(3) Requires the permittee to notify the Division orally within 24 hours of first
knowledge of noncompliance which may endanger health or the environment,
and to submit a written report within 5 days of same.
This Office was not notified by phone or by mail of any non-compliance on the site.
Required Response and Corrective Action
This office requests that you provide a written response to this letter within 20 days of receipt of this
Notice. Your response should be sent to this office at the letterhead address and to Mr. Danny Smith
at the Wetlands/401 Unit, 2321 Crabtree Blvd., Raleigh, NC, 27604-2260. At a minimum, this
response should address the following:
1) Please explain when land clearing and grading began on the site
2) Please provide this Office a copy of all weekly inspections, inspections subsequent to
rain events greater than 0.5 inches, and rain gauge data.
3) Please provide inspection information that was recorded with respect to measures taken
to clean up sediment that has left the disturbed limits of the site. Failure to provide these
documents or lack of documentation will constitute additional violations.
NU)ENR
N. C. Division of Water Quality 1617 Mail Service Center Raleigh, North Carolina 27699-1617 [phone] Customer Service
1-877-623-6748

4) Please clearly discuss your efforts to abate impacts to surface waters, including how you
plan to stabilize this subject site such that these violations do not continue.
5) You should clearly discuss your efforts to remove the sediment from the streams.
6) Please provide in detail the stream and wetland impacts that have occurred and that will
occur in comparison to the approved impacts in the 401 Water Quality Certification.
Please list these impacts with stream linear feet and wetland areas with the corresponding
impact numbers that are on the approved map previously submitted for the 401 Water
Quality Certification.
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.
We ask that you give your immediate attention to this matter and that you address each item in
the above-mentioned request. This Office may send 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 will be considered in
this process. If you have questions concerning this matter, or if this office can be of assistance,
please contact Joe Albiston at [phone].
Sincerely,
Ken Schuster
WQ Regional Supervisor
Attachment: NCGO10000
cc: DWQ RRO - Joe Albiston
Town of Cary Engineering Department - Matt Flynn
DWQ - Central Files
DWQ - Wetlands / 401 Unit - Danny Smith
N. C. Division of Water Quality 1617 Mail Service Center Raleigh, North Carolina 27699-1617 [phone]
Ad
V UR
Customer Service
1-877-623-6748
Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
Print your name and address on the reverse
so that we can return the card to you.
Attach this card to the back of the mailpiece,
or on the front if space permits.
Article Addressed to:
Mr. Mike Babuin
Town of Cary Engineering Depart.
P.O. Box 8005
Cary,NC 27512
DWQ# 03-1166-Wake
A. Signature
X
} yl c / . - ,,, ? Agent
0 Addresse
B. Received by (Printed Name) C. D le of Deliver

D. Is delivery address different from Item 1? ? Yes
If YES, enter delivery address below: ? No
3. Service Type
Certified Mail ? Express Mail
? Registered Jnetum Receipt for Merchandisi
? Insured Mail ? C.O.D.
4. Restricted Delivery? (Extra Fee) ? Yes
Article Number 7005 1160 0000 9954 8911
(Transfer from service i`
?Q r..-'2Sti 1 ce?-- onne n o ....- o a ...?,
UNITED STATES POSTAL SERVICE
LISPS
Sender: Please print your name, address, and ZIP+4 in this box •
NC DENR Division of Water Quality
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2321 Crabtree Boulevard, Suite 250
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Permit No. G-10