19920029 Ver 1_COMPLETE FILE_19920303

aSfATE .
r APR 91992
State of North Carolina WAi
Department of Environment, Health, and Natural Resources
V
512 North Salisbury Street • Raleigh, North Carolina 27611
James G. Martin, Governor William W. Cobey, Jr., Secretary
March 27, 1992
Dr. G. Wayne Wright
Corps of Engineers
P.O. Box 1890
Wilmington, NC 28402
Dear Dr. Wright:
In keeping with your request, this office has circulated to
interested state review agencies U. S. Army Corps of Engineers
Public Notice Action ID. 199200531 dated January 3, 1992 which
describes a project carried out by Howard E. Weiler, represented
by Max Crisp of Robbinsville. The activity to date includes
construction of a twenty-eight foot dam located on a tributary of
Tobacco Branch, near Stecoah, in Graham County.
During the course of the review, three key agencies
submitted written comments and while a pre-project review would
have been preferred, the state interposes no . objection.
Important comments and recommendations from these agencies
follow:
Division of Land Resources
modification to the dam will
agency prior to commencement
should be so notified;
- finds that the proposed
require plan approval by that
of the work. The applicant
Wildlife Resources Commission - found the tributary not to
contain fish life. Reported work carried out to date may
have caused downstream sediment impacts. However, does not
object to permit issuance provided the following conditions
are included in the Corps authorization:
1) All mitigation measures mentioned in the application
must be completed. This includes removing fill from
the waste area below the dam, lowering the dam to
create a wetland area at the head of the pond, and
replacing the two 18-inch spillway pipes with an
18-foot wide open spillway.
P.O. Box 27687, Raleigh, North Carolina 27611-7687 Telephone [phone]
An Equal Opportunity Affirmative Action Employer
s.:_0 Co
Dr. G. Wayne Wright
Page 2
March 27, 1992
2) Erosion control measures should be installed prior to
the start of construction and maintained until the
project site has been stabilized.
3) Temporary ground cover should be placed on bare
surfaces as soon as construction is completed.
Permanent vegetation in these same areas must be
established within 15 working days of project
completion to provide long term erosion control.
For the record, the Division of Environmental Management
issued the required Section 401 Water Quality Certification No.
2712 on March 20, 1992.
Should you require additional input from the state on this
matter, do not hesitate to contact this office or the commenting
agencies.
very sincerely,
Jo n R. Parker, Jr.
Inla d 404 Coordinator
JRP:jr./db
cc: Division of Environmental Management
Wildlife Resources Commission
Division of Land Resources
Corps of Engineers--Asheville
?..., -. yd on STA Z
State of North Carolina
Department of Environment, Health, and Natural Resources
Division of Environmental Management
512 North Salisbury Street • Raleigh, North Carolina 27604
James G. Martin, Governor March 20, 1992 George T. Everett, Ph.D.
William W. Cobey, Jr., Secretary Director
Mr. Howard G. Weiler
Panther Mountain Estates, Inc.
17115 N.E. 4th Place
North Miami, Florida 33162
Dear Mr. Weiler:
Subject: Certification Pursuant to Section 401 of the Federal
Clean Water Act,
Proposed dam and road construction
Project # 92029, COE # 199200531
Graham County
Attached hereto is a copy of Certification 2712 issued to
Howard Weiler dated March 20, 1992.
If we can be of further assistance, do not hesitate to
contact us.
Sincerely,
Pe ge T. Everet
vl?
Attachments
cc: Wilmington District Corps of Engineers
Corps of Engineers Asheville Regional Office
Asheville DEM Regional Office.
Mr. John Dorney
Mr. John Parker
Central Files
REGIONAL OFFICES
Asheville Fayetteville Mooresville Raleigh Washington Wilmington Winston-Salem
704/251-6208 919/486-1541 704/663-1699 919/733-2314 919/946-6481 919/395-3900 919/896-7007
Pollution Prevention Pays
P.O. Box 29535, Raleigh, North Carolina 27626-0535 Telephone [phone]
An Equal Opportunity Affirmative Action Employer
. 1 1%
NORTH CAROLINA
Graham County
CERTIFICATION
THIS CERTIFICATION is issued in conformity with the
requirements of Section 401 Public Laws 92-500 and 95-217 of the
United States and subject to the North Carolina Division of
Environmental Management Regulations in 15 NCAC 2H, Section .0500
to Howard Weiler pursuant to an application filed on the 5 day of
February 1992 to retain after-the-fact fill for a dam and road
construction.
The Application provides adequate assurance that the
discharge of fill material into the waters of Tobacco Branch in
conjunction with the proposed dam and road in Graham County will
not result in a violation of applicable Water Quality Standards
and discharge guidelines. Therefore, the State of North Carolina
certifies that this activity will not violate Sections 301, 302,
303, 306, 307 of PL 92-500 and PL 95-217 if conducted in
accordance with the application and conditions hereinafter set
forth.
Condition(s) of Certification:
1. That the activity be conducted in such a manner as
to prevent significant increase in turbidity
outside the area of construction or construction
related discharge (increases such that the.
turbidity in the Stream is 10 NTU's or less are
not considered significant).
Violations of any condition herein set forth shall result in
revocation of this Certification.
This Certification shall become null and void unless the
above conditions are made conditions of the Federal Permit.
This the 20 day of March, 1992.
DIVISION OF ENVIRONMENTAL MANAGEMENT
verett, Director
WQC#k 2712 i
Quw
State of North Carolina
Department of Environment, Health, and Natural Resources
Asheville Regional Office
James G. Martin, Governor Ann B. Orr
William W. Cobey, Jr., Secretary Regional Manager
DIVISION OF ENVIRONMENTAL MA -*Tm-°--
WATER QUALITY SECTIO' D j11
,i
March 3, 1992 W.
9'i U a
MEMORANDUM 1 AIC???; ,??
TO: John Dorney
THROUGH: Forrest R. Westall
Water Quality Supervisor
FROM: Kerry S. Becker
SUBJECT: 401 Certification: Action I.D. 199200531
Howard Weiler Swain County
The wetland site was inspected January 31, 1992 by Roy Davis, Forrest
Westall, and me. Two wetland sites at the head of the pond and a
spillway at the dam had been constructed as planned. The waste material
below the dam had not been removed as of the above date. The waste
material should restore some of the lost wetland area; however, good
sediment control procedures will need to be established prior to removing
the waste material. The creek is extremely small and access to the waste
material will be difficult since the terrain is so steep. To remove the
dam and restore the remaining wetland would result in an excessive loss
of sediment to the stream and downstream area and would serve no useful
purpose. The two wetland sites at the head of the pond should help to
mitigate the loss of the original wetlands. The Asheville Regional
Office, therefore, recommends issuing a 401 certification for the above
referenced project.
If you have any questions, please call me.
Interchange Building, 59 Woodfin Place, Asheville, N.C. 28801 • Telephone [phone]
An Equal Opportunity Affirmative Action Employer
r n ?,
State of North Carolina
Department of Environment, Health, and Natural Resources
Division of Land Resources
James G. Martin, Governor Charles H. Gardner
William W. Cobey, Jr., Secretary February 28, 1992 Director
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Howard G. Weiler
Panther Mountain Estates, Inc.
17115 N.E. 4th Place
N. Miami, FL 33162
RE: Panther Mountain Estates Dam
Graham County
Dear Mr. Weiler:

Our office has completed field surveying and engineer-'rig
analyses to determine the hazard classification of the recently
constructed subject dam which is located on a tributary to Tobacco
Branch in Graham County. This dam is presently approximately 28
feet high with a lake surface area of approximately 1.65 acres at
the crest of the dam.
Our analyses indicate that the Panther Mountain Estates Dam
can be classified as a Class A (Low Hazard) dam based on the
present downstream conditions. Should future development occur
downstream from this dam which could be impacted by a failure of
this dam, then the hazard classification would be reevaluated and
could be changed to Class B (Intermediate Hazard) or Class C (High
Hazard).
Our office has also reviewed the United States Army Corps of
Engineers after-the-fact permit Action ID 199200531 which indicates
that the dam will be lowered four feet, thus making the structural
height of the dam 24 feet. In accordance with the Dam Safety Law
of 1962 (G.S. 143-215.23 - 143-215.37), it appears that even this
reduction in height would not exempt the dam from the State's
jurisdiction, unless you submit surveying data and calculations
prepared by a North Carolina Registered Land Surveyor or
Professional Engineer which shows that the dam at its reduced
height will impound less than 10 acre feet as measured to the
highest point on the dam (15A NCAC 2K.0223).
P.O. Box 27687 • Raleigh, N.C. 27611-7687 • Telephone [phone]
An Equal Opportunity Affirmative Action Employer

Mr. Howard Weiler
February 28, 1992
Page Two
Otherwise, you will be required to have a North Carolina registered
Professional Engineer prepare and submit two sets of "as-built"
drawings, geotechnical information, hydrologic and hydraulic
calculations, and engineer's certification of safety for the
structure in accordance with the provisions of the Dam Safety Law
of 1967 and the North Carolina Administrative Code, Title 15A,
Subchapter 2K-Dam Safety.
As previously stated, this dam is presently under the
jurisdiction of the Dam Safety Law of 1967. In accordance with
G.S. 143-215.30 and 15A NCAC 2K.0220, this lake must be completely
drained at a rate of approximately one foot per day and maintained
in this condition until an exemption can be granted or an approval
to impound is issued by this office. Information regarding
impoundment capacity at the proposed reduced height of the dam, or
"as-built" drawings, data and engineer's certification must be
submitted within 60 days of receipt of this letter or enforcement
action will be pursued to bring this dam into compliance with the
Dam Safety Law of 1967. I have enclosed one copy each of the Law
and the Code for your reference.
Please contact this office should you have any questions
concerning this matter.
Sincerely,
?asi,?2.p k_1 .
James K. Leumas, P.E.
Dam Safety Engineer
Land Quality Section
JKL/ab
cc: Mr. Richard Phillips, P.E.
Mr. John Dorney
Mr. David Baker
Mr. Max Crisp
... ,,*.
DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
PO. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
Regulatory Branch
Action ID. 199200531
Mr. John Dorney Ct.
Water Quality Section C`,
Division of Environmental Management r
North Carolina Department of Environment,
G:
Health and Natural Resources
Post Office Box 27687
Raleigh, North Carolina 27611-7687
IN REPLY REFER TO
January 16, 1992
r
-N
Dear Mr. Dorney:
Enclosed is the after-the-fact application of Howard Weiler, for
Department of the Army (DA) authorization and a State Water Quality
Certification to retain fill discharged into tributaries of Tobacco Branch
in conjunction with dam and road construction on his property located off
Shellstand Road near Stecoah in Graham County, North Carolina. Your receipt
of this letter verifies your acceptance of a valid request for certification
in accordance with Section 325.2(b)(ii) of our administrative regulations.
We are considering authorizing the proposed activity pursuant to Section
404 of the Clean Water Act, and we have determined that a water quality
certification may be required under the provisions of Section 401 of the
same law. A DA permit will not be granted until the certification has been
obtained or waived.
In accordance with our administrative regulations, 60 days after receipt
of a request for certification is a reasonable time for State action.
Therefore, if you have not acted on the request by March 16, 1992, the
District Engineer will deem that waiver has occurred.
Questions or comments may be addressed to David Baker in our Asheville
Regulatory office at [phone].
Sincerely,
ei W n e Wrigh
ef, Regulatory Branch
Enclosure
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9.North Carolina Wildlife Resources Commission
512 N. Salisbury Street, Raleigh, North Carolina 27604-1188, 919>733-3391
Charles R. Fullwood, Executive Director
MEMORANDUM
TO: John R. Parker, 404 Coordinator
Division of Coastal Management
FROM: Dennis Stewart, Manager
Habitat Conservation Section 4.?,Pa
DATE: January 27, 1992
SUBJECT: U.S. Army Corps of Engineers Public Notice No.
199200531, application by Mr. Howard E. Weiler for an
after-the-fact permit to retain fill material
discharged into two tributaries of Tobacco Branch in
'conjunction with construction of a dam and pond at his
property off of SR 1268 near Stecoah Community, Graham
County.
The North Carolina Wildlife Resources Commission (NCWRC) has
reviewed the information provided by the U.S. Army Corps of
Engineers, and biological field staff conducted a site visit on
January 23, 1992. Our comments are provided in accordance with
provisions of the Clean Water Act of 1977 (33 U.S.C. 466 et
seq.), and the Fish and Wildlife Coordination Act (48 Stat. 401,
as amended; 16 U.S.C. 661-667d.).
The applicant is requesting authorization to retain fill
material discharged into two,tributaries of Tobacco Branch in
conjunction with construction of a dam and pond. Plans submitted
with the application show the discharge of about 800 cubic yards
of fill within the confluence of two tributary streams for the
construction of an approximately 150-foot wide, 28-foot high, by
140-foot wide dam. The dam presently impounds about 1.5 acres.
About 78 cubic yards of earthen fill material were discharged
into two streams in conjunction with culverted road crossings
providing access to the dam. 'A waste area on the downstream side
of the dam involved fill within a 50-foot by 10-foot area of
wetlands. The applicant has agreed to remove the fill from the
wetlands to restore pre-construction contours. The applicant
also proposes to reduce the impoundment area by lowering the dam
site by 4 feet and to create a wetland/buffer/filter area at the
head of the pond for mitigation. The purpose of the pond is for
private recreation and aesthetics.
Memo Page 2 January 27, 1992
Tobacco Branch (LTN 1-4-26-4-1) and its tributaries are not
Designated Public Mountain Trout Water. The unnamed tributaries
at the dam site have a bank full width of 1-2 feet and a
substrate of sand/silt and gravel. Both tributaries are too
small and shallow to support fish, but may provide habitat for
amphibians and aquatic invertebrates. Downstream habitats may
have been damaged by sedimentation during construction. Fish
movementupstream is not a concern considering the size of the
streams at the dam site. Riparian vegetation is dominated by
rhododendron, and doghobble with an overstory of mixed hardwoods
and hemlock. No federal or state listed threatened or endangered
species are known to be present. The pond also has a cold water
release structure which will provide cooler water to downstream
habitats. The applicant has done a good job of stabilizing the
area by the installation of silt fences and seeding of the entire
area.
The NCWRC does not object to the issuance of the after-the-
fact permit, provided the following conditions are implemented by
the applicant:
1) All mitigation measures mentioned in the application must be
completed. This includes removing fill from the waste area
below the dam, lowering the dam to create a wetland area at
the head of the pond, and replacing the two 18-inch spillway
pipes with an 18-foot wide open spillway.
2) Erosion control measures should be installed prior to the
start of construction.and maintained until the project site
has been stabilized.
3) Temporary ground cover should be placed on bare surfaces
as soon as construction is completed. Permanent
vegetation in these same areas must be established
-within 15 working days of project completion to provide
long term erosion control.
We appreciate the opportunity to review and comment on this
project. If we can provide further assistance, please advise.
DLS/lp
cc: Mr. Mark S. Davis, D-9 Assistant Fisheries. Biologist
Mr. Micky Clemmons, D-9 Fisheries Biologist
Ms. Stephanie Goudreau, Mt. Region Habitat Biologist
Mr. David Baker, USACOE, Asheville
r. Allen Ratzlaff, USFWS, Asheville
r/INMr. John Dorney, DEM