20050661 Ver 1_Other Agency Comments_20051013

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KILPATRICK
\ STOCKTON LLP
Attorneys at Law
September 28, 2005
Mr. Danny Smith
NPS Assistance and Compliance Oversight
Division of Water Quality
1617 Mail Service Center
Raleigh, NC 27699-1617
Suite 400 3737 Glenwood Avenue
Raleigh NC 27612
t 919 420 1700 f 919 420 1800
www.Kilpatrickstockton.com
Steven J. Levitas
direct dia1 919 420 1707
direct fax [phone]
SLevitas@Kilp atrickstockton. com
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0 C i" 1 3 2005
DENR - WAl'ER QUALITY
~1-ANDS AWp STOR-~yygTER BRANCh
Re: Village of Penland Development, Communities of Penland, LLC
Mitchell County, North Carolina
DWQ Project No. OS-0661
US Army Corps of Engineers ID No. 200431306
Dear Danny:
Thanks for taking the time to meet with Patrick Smith and me on Friday to discuss the
Communities of Penland (COP) 401 Certification (Certification), dated September 8, 2005.
As we discussed, COP is requesting a number of modifications to the Certification to clarify
the scope of the impacts approved and those requiring restoration and to revise certain
conditions that present compliance problems for COP. COP's requested modifications are as
follows:
1. Revise the first sentence on page 2 to read as follows:
" ...resulting in the inundation ofti and/or discharge of earthen fill, culverting, sidecasting,
and the excavation to 1,7785-5 linear feet of streams and 3.2 acres of jurisdictional wetlands
2. Revise the last sentence of the first paragrap~l on page 2 and add an additional
sentence as follows:
"Additionally, this Certification satisfies the "after-the-fact" requirements for 255 linear feet
of culvert previously installed by.,Communities of Penland, L.L.C. and associated impacts
and for 765 linear feet of culvert and associated impacts that occurred after 1998, but prior to
purchase of the property by Communities of Penland, L.L.C. Reaches A and B described in
ATLANTA AUGUSTA CHARLOTTE LONDON NEW YORK RALEIGH STOCKHOLM WASHINGTON WINSTON-SALEM

Mr. Danny Smith
September 28, 2005
Page 2
the Application, where Communities of Penland, L.L.C. caused 330 and 4001inear feet of
stream impacts respectively, must be restored in accordance with the Application and
Condition 4 of this Certification."
3. Revise the table in Condition 1 on page 3 as follows:
Amount Approved (Units) Plan Location or
Reference
Stream 2,03355 (feet) Culverts C22, C23, C29a,
C30 and Diamond Lake
Foot Print
404/CAMA Wetlands 3.2 (acres) Diamond Lake Foo rint
Waters N/A (acres) N/A
Buffers N/A (s uare feet) N/A
4. Revise the fifth sentence in Condition 2 on page 3 to read as follows:
"You have one month from the si ng_ature date of this Certification, , or
from the date of the issuance of the Section 404 permit by the U.S. Army Corps of Engineers
for the impacts requiring mitigation, whichever is later to make this payment.
5. Revise Condition 3.a. on page 4 to eliminate the ambiguity in the second sentence.
The simplest solution may be to eliminate that sentence altogether (which we're not sure is
needed in light of the preceding sentence). Alternatively, the sentence should make clear, by
changing the word "and" to "or" that the stormwater management plan for areas with greater
than 30% impervious cover does not require extended detention wetlands, bio-retention
areas, and ponds followed by forested filter strips. The plan, which will have to be approved
by DWQ pursuant to the Certification, simply needs to achieve the required TSS removal in
accordance with the BMP manual. (As indicated in the Application, COP is likely to rely
most heavily on bio-retention areas.)
6. Revise Condition 4.a. on page 5 to read as follows:
"a. ~-Within 12039 days from e~the signature date of this Certification, or from the
date of the issuance of the Section 404 permit by the U.S. Armv Coros of Engineers.
whichever is later, Communities of Penland, L.L.C. must provide two copies of a (i detailed
restoration plan for Reach A and Reach B, and (ii a 5 near stream, riparian zone, and
benthic monitoring plan_to the North Carolina Division of Water Quality, Asheville Regional

Mr. Danny Smith
September 28, 2005
Page 3
Office at 2090 US Highway 70, Swannanoa, NC 28778 and North Carolina Division of
Water Quality Central Office at 1650 Mail Service center, Raleigh NC, 27699-1650. &~
The monitoring plan must detail
~,
7. Revise the first paragraph of Condition 5 on pages 5 and 6 to read as follows:
"5. Riparian Buffers. Communities of Penland, L.L.C., must establish a 25-foot riparian
buffer (on each side of the stream) for restored Reach A and Reach B a 50-foot riparian
buffer (on each side of the stream) for intermittent streams and a 100-foot riparian buffer (on
each side of the stream) for perennial streams other than Reach A and reach B such that
building, grading, and the removal of woody plants within the riparian zone is prohibited.
Conservation easements or deed restrictions must be maintained in perpetuity where
protection is provided to all streams and riparian areas (approximately 69,000 linear feet), as
depicted in the map labeled: "Overall Development Plan Alternative B"" Attachment 6 with
the exception of Reach A and Reach B which shall be protected as provided herein) in the
February 11, 2005 Individual Permit Application by Communities of Penland, L.L.C. This
requirement excludes wetlands, streams and riparian areas authorized for impacts in
accordance with this 401 Water Quality Certification."
8. Revise the second sentence in the second paragraph of Condition 5 on page 6, and
delete the third sentence (which is redundant since the Certification has already said twice
that the conservation easements/deed restrictions must be maintained in perpetuity), to read
as follows:
"These riparian (stream-side) areas must remain in conservation easements or under a
protective deed restrictions in perpetuity. r~~Dex'~~~.r ,,,,,°* Y,.,.,;„+~:~ +i,°
9. Revise the third paragraph of Condition 5 on page 6 to read as follows:
"For lots that have been convened sew-prior to the signature date i;~-of this
Certification, the requirement that riparian buffers be established ~°*'~~°'~° +'~~+
p~exts within which building, grading, and the removal of woody plants ~~ke-r-~
~~areprohibited shall not appl~(i to activities that ,
have already occurred in and along the riparian zone as of
the signature date of this Certification, or~ii) to the extent that such requirement would

Mr. Danny Smith
September 28, 2005
Page 4
render a lot unbuildable. As proposed in the. February 1 1, 2005 Individual Permit
Application by Communities of Penland, L.L.C., for Village of Penland Development, the
use of restrictive covenants to establish protected riparian buffers for previously conveyed
lots is satisfactory...."
10. Replace the last sentence of the second paragraph of Condition 6 on page 7 with
the following::
"If culverts installed prior to the signature date of this Certification are determined to have
been improperlYinstalled, Communities of Penland, L.L.C. may propose an alternative to
retrofittin tg_ he culvert in accordance with this condition, which_proposal will be reviewed
and responded to DWQ."
11. Revise the first sentence of Condition 10.a. to read as follows:
"a ~x':*'~;~ ti~ a^..~ ^~°:,,..,~*"r~ ^~*'~;° ~'~~:~^^*:~~, At the time that it submits the
detailed restoration plan re uiq red b~Condition 4 of this Certification, Communities of
Penland, L.L.C. shall request modification ..."
Finally, I want to mention an issue that we did not discuss last week. The restoration
of Reach A and Reach B will require minor stream impacts in connection with the diversion
of existing stream channels to the new alignments. If these impacts require authorization
under the Certification, it should be amended accordingly.
Thank you again for working with us to address these issues. We look forward to
hearing from you.
With best wishes,
Sincerely yours,
KILPATRICK STOCKTON LLP
Steven J. Levitas
SJL/j s

Mr. Danny Smith
September 28, 2005
Page 5
cc: Mary Penny Thompson, Esq.
Ms. Cyndi Karoly
Mr. John Dorney
Mr. Kevin Barnett
Mr. David Baker
Justin McCorcle, Esq.
Mr. Neil O'Rourke
Mr. Patrick Smith