20061104 Ver 1_Approval Letter_20060725

~ ~
~~ G William G. Ross Jr., Secretary
~ ~- North Carolina Department of Environment and Natural Resources
~ -~ Alan W. Klimek, P.E. Director
Division of WaterQuality
July 25, 2006
DWQ Project # 06-1104
Avery County
Ronald Kent
KMH Banner Elk, LLC
2221 North West Corporate Boulevard
Siute 240
Boca Raton, FL 33431
Subject Properly: Elk Creek Subdivision
Sugar Creek, Avery County
Approval of 401 Water Quality Certification with Additional Conditions
Dear Mr. Kent:
You have our approval, in accordance with the attached conditions and those listed
below, to place fill within or otherwise impact 100 linear feet of streams for the purpose
of providing property access at the subject property, as described within your
application received by the N.C. Division of Water Quality (DWQ) on July 7, 2005. After
reviewing your application, we have decided that the impacts are covered by General
Water Quality Certification Number(s) 3402 (GC3402). The Certification(s) allows you
to use Nationwide Permit(s) 39 when issued by the US Army Corps of Engineers
(USAGE). In addition, you should obtain or otherwise comply with any other required
federal, state or local permits before you go ahead with your project including (but not
limited to) Erosion and Sediment Control, Non-discharge, buffer and stormwater
regulations. Also, this approval to proceed with your proposed impacts or to
conduct impacts to waters as depicted in your application shall expire upon
expiration of the 404 or CAMA Permit.
This approval is for the purpose that you described in your application. If you change
your project, you must notify us and you may be required to send us a new application..
If the property is sold, the new owner must be given a copy of this Certification and
approval letter and is thereby responsible for complying with all conditions. If total fills
for this project (now or in the future) exceed one acre of wetland or 150 linear feet of
stream, compensatory mitigation may be required as described in 15A NCAC 2H .0506
(h). This approval requires you to follow the conditions listed in the attached
certification and any additional conditions listed below.
The Additional Conditions of the Certification are:
1. Impacts Approved
401 Wetlands Certification t7n~
1650 Htail Service Center. Ralegh, North Carolina 27699-10"50
2321 Crabtree Boulevard, Suhee 250, Raleigh, North Can~lina 27604
Ptlone: 919-733-17861 FAX [phone] / {ntemet http:lltr2o_enr.state.nc.us/ncweilands
No Carolina
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An Equal Opportunity/Affirmative Action Empbyer - 50% Recycled/10% Post Consumer Paper

July 25, 2006
The following impacts are hereby approved as long as all of the other specific
and general conditions of this Certification (or Isolated Wetland Permit) are met.
No other impacts are approved including incidental impacts:
Amount Approved
(Units) Plan Location or Reference
Su ar Creek 100.0 linear feet Ad'acent to Hardee's Lane
2. Erosion & Sediment Control Practices
Erosion and sediment control practices must be in full compliance with all
specifications governing the proper design, installation and operation and
maintenance of such Best Management Practices in order to protect surface
waters standards:
a. The erosion and sediment control measures for the project must be
designed, installed, operated, and maintained in accordance with the mast
recent version of the North Carolina Sediment and Erosion Control Planning
and Design Manual.
b. The design, installation, operation, and maintenance of the sediment and
erosion control measures must be such that they equal, or exceed, the
requirements specified in the most recent version of the North Carolina
Sediment and Erosion Control Manual. The devices shall be maintained on
all construction sites, borrow sites, and waste pile (spoil) projects, including
contractor-owned or leased borrow pits associated with the project.
c. For borrow pit sites, the erosion and sediment control measures must be
designed, installed, operated, and maintained in accordance with the most
recent version of the North Carolina Sun`ace Mining Manual.
d. The reclamation measures and implementation must comply with the
reclamation in accordance with the requirements of the Sedimentation
Pollution Control Act.
3. No Waste, Spoil, Solids, or Fill of Any Kind
No waste, spoil, solids, or fill of any kind shall occur in wetlands, waters, or riparian
areas beyond the footprint of the impacts depicted in the Pre-Construction
Notification. All construction activities, including the design, installation, operation,
and maintenance of sediment and erosion control Best Management Practices,
shall be performed so that no violations of state water quality standards, statutes,
or rules occur.
4. No Sediment & Erosion Control Measures win Wetlands or Waters
Sediment and erosion control measures shall not be placed in wetlands or waters
to the maximum extent practicable. If placement of sediment and erosion control
devices in wetlands and waters is unavoidable, they shall be removed and the

July 25, 2006
natural grade restored within six months of the date that the Division of Land
Resources has released the project.
5. Certificate of Completion
Upon completion of all work approved within the 401 Water Quality Certification
or applicable Buffer Rules, and any subsequent modifications, the applicant is
required to return the attached certificate of completion to the 401/V1/etlands Unit,
North Carolina Division of Water Quality, 1650 Mail Service Center, Raleigh, NC,
27699-1650.
6. Diffuse Flow
Alt constructed stormwater conveyance outlets shall be directed and maintained
as diffuse flow at non-erosive velocities through the protected stream buffers
such that it will not re-concentrate before discharging into a stream. If this is not
possible, it may be necessary to provide stormwater facilities that are considered
to remove nitrogen. This may require additional approval from this Office.
7. Protective Fencing
The outside of any and all buffer, wetland ar water boundaries and along the
construction corridor within these boundaries approved under this authorization
shall be clearly marked with orange warning fencing (or similar high visibility
material) for the areas that have been approved to infringe within the buffer,
wetland or water prior to any land disturbing activities.
8. Turbidity Standard
The turbidity standard of 10 NTUs (Nephelometric Turbidity Units) shall not be
exceeded as described in 15 A NCAC 2B. .0200. Appropriate sediment and
erosion control practices must be used to meet this standard.
9. No Impacts Beyond those in Application
No waste, spoil, solids, or fill of any kind shall occur in wetlands, waters, or
riparian areas beyond the footprint of the impacts depicted in the Pre-
construction Notification. All construction activities, including the design,
installation, operation, and maintenance of sediment and erosion control Best
Managernent Practices, shall be performed so that no violations of state water
quality standards, statutes, or rules occur.
10. Construction stormwater Permit NCG010000
Upon the approval of an Erasion and Sedimentation Control Plan issued by the
Division of Land Resources (DLR) or a DLR delegated local erosion and
sedimentation control program, an NPDES General stormwater permit

July 25,2006
(NCG010000) administered by DWQ is automatically issued to the project. This
General Permit allows stormwater to be discharged during land disturbing
construction activities as stipulated by conditions in the permit. If your project is
covered by this permit [applicable to construction projects that disturb one (1) or
more acres), full compliance with permit conditions including the sedimentation
control plan, self-monitoring, record keeping and reporting requirements are
required. A copy of this permit and monitoring report forms may be found at
http://h2o.enr.state.nc.us/su/Fonns Documents.htm.
11. Riparian Zone Replanting
Replanting of vegetation within 25 feet of any'; streambank located within the
entire project must be done in a manner consistant with the Guidelines for
Riparian Buffer Restoration immediately following construction. (Please see
attached.}
12. Trout Moratorium
The stream is a Class
Class C Trout Waters
work conducted within
15 through April 15.
13. Deed Restrictions
C Trout Waters. In order to protect downstream uses for
a requirement of this Certification is that any additional
the stream may not occur between the dates of October
Deed restrictions or similar mechanisms shall be placed on all retained
jurisdictional wetlands, waters and protective buffers in order to assure
preservation against future wetland, water and buffer impact. These
mechanisms shall be put in place prior to impacting any wetlands, waters and/or
buffers approved for impact under this Certification Approval and Authorization
Certificate.
14. Temporary Fills
All temporary fill and culverts shall be removed and the impacted area returned
to the original grade, including each stream's original cross sectional dimensions,
planform pattern, and longitudinal bed and bed profile after construction is
complete or within 6 months of the establishment of the crossing, which ever is
sooner, and the various sites shall be stabilized with natural woody vegetation
(except for the maintenance areas of permanent utility crossings} and restored to
prevent erosion. If the crossings are not completely removed and restored as
described above within the specified time above, additional written approval from
this Office must be obtained to modify this condition.
15.Notification of Construction

July 25,2006
The applicant and/or authorized agent shall contact the DWQ Express Review
Program in writing at the letterhead address within 10 days of the commencement
of construction.
Violations of any condition herein set forth may result in revocation of this Certification
and may result in criminal and/or civil penalties. The authorization to proceed with your
proposed impacts or to conduct impacts to waters as depicted in your application and
as authorized by this Certification, shall expire upon expiration of the 404 or CAMA
Permit.
If you do not accept any of the conditions of this Certification (associated with the
approved wetland or stream impacts), you may ask for an adjudicatory hearing. You
must act within 60 days of the date that you receive this letter. To ask far a hearing,
send a written petition, which conforms to Chapter 1506 of the North Carolina General
Statutes to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh,
N.C. 27699-6714. This certification and its conditions are final and binding unless you
ask for a hearing.
This letter completes the review of the Division of Water Quality under Section 401 of
the Clean Water Act. If you have any questions, please telephone Cyndi Karoly in the
Central Office in Raleigh at 919-733-9721 or Kevin Barnett in the DWQ Asheville
Regional Office at either Kevin.Barnett(a.ncmail.net or at 828-296-4657.
Sincerely,
Alan W. Klimek, P.E., Director
Division of Water Quality
AW K/khb
Enclosures: GC 3402
Certificate of Completion
Guidelines for Riparian Buffer Restoration
cc: Richard Franklin, Atlantic Plan Engineering Corp.
Post Office Box 1691
Hickory, NC 28603
USACEAsheville Regulatory Field Office
DWQ Asheville Regional Office
DLR Asheville Regional Office
File Copy
Central Files
Filename: 06-1104.EIkCreek.Avery.Approval