20071505 Ver 3_Other Agency Comments_20090121

07- 1505 %13
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
151 PATTON AVENUE
ROOM 208
ASHEVILLE, NORTH CAROLINA 28801-5006
REPLY TO
ATTENTION OF:
Regulatory Division
Action ID Number: 2007-3367
Mr. Keith Vinson
Mountain Development Company, LLC
130 South Main Street
Hendersonville, NC 28792
Dear Mr. Vinson:
January 15, 2009
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SAN 21 2009
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084 NQSIOR" WPLIV
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Please reference the Department of the Army (DA) verification dated August 8, 2008 for the
discharge of fill material into 6,990 linear feet of stream channel, 1.48 acres of wetlands, and
0.57 acre of open water to construct the residential and golf development known as Seven Falls,
near Etowah, Henderson County, North Carolina. Also, please reference our meeting dated
January 8, 2009 to discuss on-going permit non-compliance and permit revocation in which
yourself, Mr. William Lapsley (project engineer), and Mr. Justin McCorcle (Wilmington District
Counsel) were present.
During our meeting, you informed us that approximately 2,500 linear feet of permitted
impacts had been constructed from the date the permit was issued until mid-September 2008.
These impacts were associated with the development of the 18-hole golf course and road
crossings for the residential development. You also informed us that all of the impacts occurred
prior to submittal of your required payment into the North Carolina Ecosystem Enhancement
Program (NCEEP), which was part of the mitigation conditions that you agreed to when you
accepted our Department of the Army permit. To date, you are still in violation of Section 404 of
the Clean Water Act (33 USC 1344) since you have not remitted payment to the NCEEP.
You have agreed to remit payment to the NCEEP in the amount necessary to mitigate
impacts to stream channels that have already occurred. This proposed NCEEP payment will
likely exceed the payment required by the permit, which called for payment to compensate for
1,884 linear feet of stream channel. You have agreed to immediately quantify stream channel
impacts on the site and are required to provide that information to our office in writing within 15
days from the date this letter is received. Once we receive this information and verify the length
of stream channel impact, you will be required to immediately make payment to the NCEEP for
that impact length. As part of your mitigation plan, you also agreed to preserve remaining stream
channels and associated riparian buffers on the site as referenced in condition (o), (q), and (r) of
your pen-nit (enclosed) which required that restrictive covenants be enacted prior to lot sales and
that no disturbance in these preservation areas were allowed. Based upon a recent site inspection,
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it appears that vegetation has been cleared and removed in areas proposed for preservation and
that lots have been sold. You should submit information as to the status of the recordation of the
covenants and information that locates and quantifies which preservation areas have been
disturbed and to what extent. The removal and disturbance of the riparian buffers proposed for
mitigation will affect the value of these preservation areas and we will re-evaluate whether these
areas are still acceptable for mitigation once we receive the requested information. Also, please
reference condition (x) of.your permit and provide an update to the status of the implementation
of this condition which addresses your obligations for the implementation of the signed
Memorandum of Understanding regarding the recovery of cultural resources on the site. The
requested information listed above should be submitted within 15 days from the date this letter is
received.
Your permit remains suspended, and no further work in waters or wetlands is authorized,
until you have compensated for all existing impacts, and a plan is in place to compensate for
remaining impacts on your project site.
Based on our meeting, we understand that you would like to modify the existing permit with
a phased approach since a portion of the permitted impacts will be occurring in the next 4-5
years. We will review a modified plan to phase impacts and corresponding mitigation, however,
please be aware that due to your history of permit non-compliance, any mitigation for future
impacts such as the off-site mitigation at Hollabrook Farms and Laurel Park will now be required
to be constructed prior to additional impacts occurring. A proposal to modify your existing
permit should be submitted within 30 days from the date this letter is received. If we do not
receive any of the above requested information in the timelines provided, your permit
authorization will likely be revoked and you will be required to remove all discharged fill
material and restore the impacted jurisdictional waters. Also, if the remedial action as agreed
during our January 8, 2009 is not conducted, or if any additional impacts to waters of the U.S.
occur, we will immediately refer this case to the U.S. Attorney which could result in fines of at
least $25,000 per day from the date that permit non-compliance began.
In addition, the Corps also retains the right to assess a Class I Administrative Penalty under
the authority of 33 U.S.C. § 1319(g) and 33 CFR Part 326.6, and will likely do so for your failure
to accomplish any of the required mitigation before beginning work within jurisdictional areas.
If you have any questions, you may contact me at [phone] or Mr. Justin McCorcle,
Wilmington District Office of Counsel at [phone].
Sincerely,
Amanda Jones
Acting Field Office Chief
Asheville Regulatory Field Office

Copies Furnished:
Mr. Clement Riddle
C1earWater Environmental Consultants, Inc.
718 Oakland Street
Hendersonville, NC 28791
Mr. William Lapsley
William G. Lapsley & Associates, P.A.
Two Town Square Blvd.
Suite 320 Biltmore Park
Asheville, NC 28704
Mr. Ian McMillan
North Carolina Division of Water Quality
401 Oversight & Express Review
1650 Mail Service Center
Raleigh, NC 27699-1650
Ms. Suzanne Klimek, Director of Operations
N.C. Ecosystem Enhancement Program
1619 Mail Service Center
Raleigh, NC 27699-1619
Ms. Renee Gledhill-Early
N.C. Department of Cultural Resources
State Historic Preservation Office
4617 Mail Service Center
Raleigh, NC 27699-4617
Mr. Mark T. Calloway
United States Attorney
Western District of North Carolina
Suite 1700, Carillon Building
227 West Trade Street
Charlotte, NC 28202
Mr. Ronald J. Mikulak, Chief
Wetlands Section-Region IV
Water Management Division
US Environmental Protection Agency
61 Forsyth Street, SW
Atlanta, GA 30303