20190103 Ver 2_Denial_20210520

ROY COOPER
Governor
DIONNE DELLI-GATTI
Secretary
S. DANIEL SMITH
Director
NORTH CAROLINA
Environmental Quality
May 19, 2021
DWR # 20190103 V2
Caldwell County
CERTIFIED MAIL # 7019 0700 0000 8867 6715
RETURN RECEIPT REQUESTED
Caldwell Timber Partners, LLC
Attn: Bart Shaw
1031 South Caldwell Street, STE 220
Charlotte, NC 28203
Subject: DENIAL OF 401 WATER QUALITY CERTIFICATION
Waterfront Club
USACE Action ID SAW-2019-00201
Dear Mr. Shaw:
On May 22, 2020, the Division of Water Resources (Division) received your application requesting a 401
Water Quality Certification from the Division for the subject project. Your application for a 401 Water
Quality Certification is an after -the -fact permit application in response to a Notice of Violation issued by
the Division of Water Resources on August 19, 2019. On July 10, 2020, the Division determined that your
application was incomplete and requested additional information on the subject. The Division received
additional information from you on August 10, 2020. On October 9, 2020, the Division determined that
your application was incomplete and requested additional information on the subject. The Division
received additional information from you on December 30, 2020. On February 12, 2021, the Division
determined that your application was incomplete and requested additional information on the subject.
The Division received additional information from you on April 2, 2021, April 5, 2021, April 19, 2021, and
April 26, 2021.
On March 25, 2021, staff from the Asheville Regional Office conducted a site inspection and observed
Water Quality Standard Violations of 15A NCAC 02B .0211 (12) and (2) associated with Impact S1 in the
UT to Stafford Creek for which your application sought after -the -fact authorization. A Continuing Notice
of Violation was issued on May 17, 20211 and is enclosed for reference.
The Division has determined that, as designed, the plan submitted in the 401 Water Quality Certification
application will not meet Water Quality Standard 15A NCAC 02B.0211 (2) CONDITIONS OF BEST USAGE,
The Continuing Notice of Violation (CNOV-2019-PC-0585] was issued May 14, 2021. A correction was issued May 17, 2021 to
clarify the date of the DWR staff inspection.
DE
NORTH CAROJNA
Department of Environmental Dual
North Carolina Department of Environmental Quality I Division of Water Resources
Asheville Regional Office 12090 U.S. Highway 70 I Swannanoa, North Carolina 28778
828.296.4500

Waterfront Club
DWR# 20190103 V2
Denial of Application
Page 2 of 3
nor will it meet General Condition II. 11 of Water Quality Certification No. 4135. The design of Impact S1
has resulted in destabilizing stream bed and bank, alteration of stream profiles possibly impacting
aquatic life passage, is contributing to sedimentation and degradation of the UT to Stafford Creek and
precludes the waters from meeting existing uses as listed in Wetland Standards 15A NCAC 02B.0211 (2).
Therefore, the Division cannot certify that the subject project will comply with state water quality
requirements 15A NCAC 02B .0201 ANTIDEGRADATION POLICY, and 15A NCAC 02B .0211 (2)
CONDITIONS OF BEST USAGE, or with Sections 301, 302, 303, 306, and 307 of the federal Clean Water
Act. In accordance with 15A NCAC 02H .0507(e) your application for a 401 Water Quality Certification
is hereby denied.
Attached to this letter is a list of additional items necessary for a complete application. Once you have
addressed all of the items listed in the attachment, you may reapply to the Division, including a
complete application package and the appropriate fee.
The Division's decision can be contested as provided in Chapter 150B of the North Carolina General
Statutes by filing a Petition for a Contested Case Hearing (Petition) with the North Carolina Office of
Administrative Hearings (OAH) within sixty (60) calendar days. Requirements for filing a Petition are set
forth in Chapter 150B of the North Carolina General Statutes and Title 26 of the North Carolina
Administrative Code. Additional information regarding requirements for filing a Petition and Petition
forms may be accessed at http://www.ncoah.com/ or by calling the OAH Clerk's Office at [phone].
One (1) copy of the Petition must also be served to the North Carolina Department of Environmental
Quality:
William F. Lane, General Counsel
Department of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601
This completes the review of the Division under section 401 of the Clean Water Act. Please be aware
that you have no authorization under Section 401 of the Clean Water Act for this activity and any work
done within waters of the State may be a violation of North Carolina General Statutes and
Administrative Code.

Waterfront Club
DWR# 20190103 V2
Denial of Application
Page 3 of 3
Please contact Amy Annino at 828-296-4656 or [e-mail] if you have any questions or
concerns.
Sincerely,
S
age
S. Daniel Smith, Director
Division of Water Resources
Enclosures: Attachment A — Information Needed in Re -Application for 401 Certification
Continuing Notice of Violation and Recommendation for Enforcement CNOV-2019-
PC-0585 dated May 17, 2021
cc: Jan Gay, Acer Environmental (via email)
Brandee Boggs - USACE, Asheville Regulatory Field Office (via email)
Todd Bowers, EPA (via email)
EPA Region 4 ([e-mail] )
DWR 401 Wetlands & Buffer Permitting Branch
Filename: 20210521 WaterfrontClub Denial.doc

Attachment A
Information Needed in Re -Application for 401 Certification
Waterfront Club (Caldwell County)
DWR# 20190103v2
USACE Action ID SAW-2019-00201
1. Due to the significant streambank degradation observed at Crossing 1, please reevaluate
the current design and propose design modifications that specifically addresses the
following:
a. The use of one 72" culvert and two associated 48" floodplain culverts. This current
design is not appropriate for the flow regime of the stream and has resulted in over
widening of the channel.
b. The sizing and orientation of the culvert(s) at Crossing 1. The current design is
resulting in destabilizing of the channel.
The ongoing bank failure and resultant sediment loss downstream of Crossing 1 is
resulting in continuing sedimentation impacts in the UT to Stafford Creek and must be
addressed.
2. Please Submit a Stream Restoration Plan for Crossing 1 to this office for review and
approval as requested in the Continuing Notice of Violation issued [DWR# CNOV-2019-
PC-0585]. The Stream Restoration Plan must address the following:
a. How the stream channel above and below Crossing 1 will be restored to its previous
pattern, profile, and dimension;
b. How the streambanks will be restored and stabilized; and how the buffer along the
streambanks will be restored.
c. The Stream Restoration Plan must also include the measures that will be used for
temporary stabilization and sediment control while this work is under way.
d. Once the restoration is complete, you must notify this office so that a follow-up
inspection may be conducted.
e. The Stream Restoration Plan must be approved by DWR before being implemented.
f. Include a 3-year monitoring plan to ensure success. Send monitoring reports to
DWR ARO by June 1 of each year.
Filename: 20210521_WaterfrontClub_Information Needed in Re -Application for 401 Certification

DocuSign Envelope ID: 1OE8DCE0-0442-48B4-BF74-06077EAB52B3
ROY COOPER
Governor
DIONNE DELLI-GATT]
Secretary
S. DANIEL SMITH
Director
May 17, 2021
NORTH CAROLINA
Environmental Quality
CERTIFIED MAIL
RETURN RECEIPT REQUESTED 7009 1680 0000 7515 5343
Caldwell Timber Partners LLC —
Managers
1400 16th St, STE 320
Denver, CO 80202
CERTIFIED MAIL
RETURN RECEIPT REQUESTED 7009 1680 0000 7515 5350
The Shaw Tate Group
Attn: Bart Shaw
1031 S Caldwell Street, Suite 220
Charlotte, NC 28203
SUBJECT: CONTINUING NOTICE OF VIOLATION and
RECOMMENDATION FOR ENFORCEMENT
Waterfront Club — Phase II
CNOV-2019-PC-0585
Wetland Standard Violation
Stream Standard Violation — Other Waste (In -stream sediment)
Stream Standard Violation — Removal of Best Use
Caldwell County
Response deadline: June 14, 2021
Dear Sirs:
This Continuing Notice of Violation and Recommendation for Enforcement is intended to
replace the previous Continuing Notice of Violation issued on May 14, 2021.
On August 19, 2019, the Division of Water Resources (DWR) issued Notice of Violation (NOV)
NOV-2019-PC-0585 to you for stream standard violations of 15A NCAC 02B .0211 (2) and
(12), associated with sediment impacts to unnamed tributaries (UTs) of Stafford Creek and
Stafford Creek, for wetland standard violations of 15A NCAC 02B .0231 (b), and for a failure to
secure a 401 Water Quality Certification (WQC) as required under Title 15A NCAC 02H .0500,
NO D_E _
I/eeerbnenl of Environmental Cual�
North Carolina Department of Environmental Quality I Division of Water Resources
Asheville Regional Office 12090 U.S. Highway 70 I Swannanoa, North Carolina 28778
828.296.4500

DocuSign Envelope ID: 1OE8DCE0-0442-48B4-BF74-06077EAB52B3
Waterfront Club — Phase II
CNOV-2019-PC-0585
Page 2 of 5
associated with the installation of two culverts on an unnamed tributary to Stafford Creek and on
Stafford Creek, as documented during a site inspection conducted August 13, 2019.
On March 25, 2021, Amy Annino from the Asheville Regional Office of the Division of Water
Resources (DWR) conducted a follow-up site inspection to evaluate the status of site
stabilization activities at stream crossings and the wetland. Jan Gay with Acer Environmental,
and Bart Shaw and Stewart Tate with The Shaw Tate Group were present for this site visit.
During the site inspection, staff observed that the streambanks above and below Crossing 1
(Stream Impact 1) on a UT to Stafford Creek were degraded and failing. The single 72-inch
culvert and two 48-inch floodplain culverts installed by the applicant in 2019 are adversely
altering flow velocity in the channel and this is degrading the left and right streambanks below
the crossing. In addition, the silt fence installed for erosion control along the left and right
streambanks are being undermined and are failing. The channel upstream from Crossing 1 was
observed to have large sheets of black plastic in the streambed and on the streambanks, along
with multiple large, construction sand bags that were buried below the ordinary high water line
and below the streambed. Active streambank erosion, a lack of construction stormwater velocity
control, and inadequate sediment and erosion control measures are resulting in continued off -site
sedimentation into surface waters at this crossing.
During the site inspection of Crossing 3 (Stream Impact 3), an arch culvert installed on a UT to
Stafford Creek, staff observed that inadequate sediment and erosion control measures were
contributing in -stream sediment into surface waters. Up to eight inches of instream sediment was
observed in the reach immediately above the arch culvert.
Wetland Standard Violations for fill were noted in a wetland adjacent to Scenic Lane above
Basin 2, where 11 inches of sediment was observed. Inadequate sediment and erosion control
and inadequate construction stormwater velocity control is resulting in the observed wetland fill.
As a result of the site inspection and file review, the following violations were identified:
VIOLATIONS
I. Wetland Standard Violation 15A NCAC 02B .0231 (b) — The unauthorized fill in the
wetland adjacent to Scenic Lane are violations of the following: 15A NCAC 02B .0231
(b)
(1) Liquids, fill or other solids or dissolved gases may not be present in amounts which
may cause adverse impacts on existing wetland uses;
(5) Hydrological conditions necessary to support the biological and physical
characteristics naturally present in wetlands shall be protected to prevent adverse
impacts on:
(C) The chemical, nutrient and dissolved oxygen regime of the wetland;
(D) The movement of aquatic fauna;
(F) Water levels or elevations
NORTH cnfaauNnDE �/
fi...... of Emimn..aMai luei
North Carolina Department of Environmental Quality I Division of Water Resources
Asheville Regional Office 12090 U.S. Highway 70 I Swannanoa, North Carolina 28778
828.296.4500

DocuSign Envelope ID: 1OE8DCE0-0442-48B4-BF74-06077EAB52B3
Waterfront Club — Phase II
CNOV-2019-PC-0585
Page 3 of 5
II. Stream Standard Violation - Other Waste (In -stream sediment) 15A NCAC 02B
.0211 (12) — An undetermined length of unnamed tributaries to Stafford Creek (Classified
C) were impacted by sediment deposition from degraded stream banks and inadequate
sediment and erosion control measures, representing Water Quality Stream Standard
violation of 15A NCAC 02B .0211 (12).
III. Removal of Best Usage - 15A NCAC 02B.0211 (2) — The in -stream sediment impacts
from the degraded stream banks and inadequate sediment and erosion control measures
are violations of Title 15A North Carolina Administrative Code 02B .0211 (2) which
requires that "The waters shall be suitable for aquatic life propagation and maintenance
of biological integrity, wildlife, secondary recreation, and agriculture; sources of water
pollution which preclude any of these uses on either a short-term or long-term basis shall
be considered to be violating a water quality standard."
REQUIRED RESPONSE
The DWR requests that you respond in writing by June 14, 2021. Your response should be sent
to the attention of Amy Annino at the footer address or via email to [e-mail]
and should include the following items:
1. The site must be stabilized immediately and/ or proper erosion control measures installed
to prevent ongoing and continuing sedimentation impacts. Please coordinate with the NC
Division of Energy, Mineral, and Land Resources for guidance to address stabilization
and construction stormwater concerns.
2. Due to the significant streambank degradation observed at Crossing 1, please reexamine
the 72" culvert and two associated 48" floodplain culverts installed at this crossing in
regard to proper sizing and orientation. The ongoing bank failure and resultant loss of
sediment below this culvert is resulting in continuing sedimentation impacts in the UT to
Stafford Creek and must be addressed.
3. Please Submit a Stream Restoration Plan to this office for review and approval. The
Stream Restoration Plan must provide details regarding: how the stream channel above
and below Crossing 1 will be restored to its previous pattern, profile, and dimension; how
the black plastic and construction sandbags will be removed from the channel; how the
streambanks will be restored and stabilized; and how the buffer along the streambanks
will be restored. The Stream Restoration Plan must be approved by DWR before being
implemented. The Stream Restoration Plan must also include the measures that will be
used for temporary stabilization and sediment control while this work is under way. Once
the restoration is complete, you must notify this office so that a follow-up inspection may
be conducted. This office recommends you secure an environmental consultant
NORTH cnfaauNnDE
m
fiEpe.pivaM of EnW,n4ntel luei�
North Carolina Department of Environmental Quality I Division of Water Resources
Asheville Regional Office 12090 U.S. Highway 70 I Swannanoa, North Carolina 28778
828.296.4500

DocuSign Envelope ID: 1OE8DCE0-0442-48B4-BF74-06077EAB52B3
Waterfront Club — Phase II
CNOV-2019-PC-0585
Page 4 of 5
experienced in stream restoration to assist you with developing your Stream
Restoration Plan.
4. Please submit a Sediment Removal Plan to this office for review and approval. The
Sediment Removal Plan must address removal of accumulated sediment from all surface
waters and wetlands. This office recommends you secure an environmental consultant
experienced in stream restoration to assist you with developing your Sediment Removal
Plan. The Sediment Removal Plan should include:
a. The amount (depth) of material that has been deposited in the stream and wetland.
This information should be depicted on a map you provide.
b. A narrative explaining how disturbed areas will be stabilized to prevent the
discharge of sediment to streams and the wetland.
c. A narrative explaining how sediment will be removed including techniques,
manpower, and tools to be used. It is recommended that you used hand labor
(buckets, shovels, and wheelbarrows) to remove deposited sediment from the
stream.
d. A proposed schedule with dates that indicate when you expect to begin and
complete the removal of sediment.
e. A narrative explaining how and where the removed sediment will be disposed and
stabilized.
f. A narrative explaining how turbidity will be minimized during the sediment
removal work.
g.
Once the work is complete, a final report documenting the results of the sediment
removal should be submitted to Amy Annino.
5. Two (2) options exist to resolve the wetland violation:
1. Apply to the U.S. Army Corps of Engineers (USACE) for and receive a 404
Permit pertaining to the wetland unauthorized fill. A 401 WQC will be required if
the activities are permitted by the Corps. The application process as described
does not guarantee the impacts will be approved.
2. Remove all fill material and restore the wetland to pre-existing conditions.
If pursuing Option 1:
a. Contact the USACE to determine the permitting needs of the activities you have
undertaken. The Asheville office phone number is [phone].
Noan+cnfaaur�nDE
fispe.pivaM of Fmimn..aMei luei�
North Carolina Department of Environmental Quality I Division of Water Resources
Asheville Regional Office 12090 U.S. Highway 70 I Swannanoa, North Carolina 28778
828.296.4500

DocuSign Envelope ID: 1OE8DCE0-0442-48B4-BF74-06077EAB52B3
Waterfront Club — Phase II
CNOV-2019-PC-0585
Page 5 of 5
b. Provide a proposed schedule of when you expect to have the required permit
application (401 WQC application) submitted to DWR.
If pursuing Option 2:
a. Please submit a wetland restoration plan to this office for review and approval.
You are encouraged to secure an environmental consultant experienced in wetland
restoration to assist you with development of your plan and authorization
necessary to achieve compliance. The plan must include the removal of the
sediment and restoration of wetland contours.
b. Satisfactory wetland restoration will also require the application of a DWR
approved herbaceous wetland seed mix to all wetlands that are disturbed.
c. It is recommended that your consultant contact Amy Annino of the Asheville
Regional Office for additional guidance during plan development. The plan
should include a proposed schedule with dates that indicate when you expect to
begin and complete the work. Once the plan has been implemented and is
complete, a final report documenting work should be submitted to Amy Annino.
Thank you for your attention to this matter. This office requires that the violations, as detailed
above, be abated immediately and properly resolved. Environmental damage and/or failure to
secure proper authorizations have been documented on the subject tract as stated above. Your
efforts to undertake actions to bring the subject site back into compliance is not an admission,
rather it is an action that must be taken in order to begin to resolve ongoing environmental issues.
Pursuant to G.S. 143-215.6A, these violations and any future violations are subject to a civil
penalty assessment of up to a maximum $25,000.00 per day for each violation. Your above -
mentioned response to this correspondence, the degree and extent of harm to the environment,
and the duration and gravity of the violation(s) will be considered in any civil penalty assessment
process that may occur.
Should you have any questions regarding these matters, please contact Amy Annino at (828)
296-4656 or [e-mail].
Nonn+cnfaaur�nDE
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Sincerely,
,-DocuSigned by:
`-7E617A38285848C...
Landon Davidson, P.G., Regional Supervisor
Water Quality Regional Operations
Asheville Regional Office
North Carolina Department of Environmental Quality I Division of Water Resources
Asheville Regional Office 12090 U.S. Highway 70 I Swannanoa, North Carolina 28778
828.296.4500

DocuSign Envelope ID: 1OE8DCE0-0442-48B4-BF74-06077EAB52B3
Waterfront Club — Phase II
CNOV-2019-PC-0585
Page 6 of 5
cc: Brandee Boggs — USACE (email copy)
Stan Aiken — DEMLR (email copy)
ARO File Copy
G:\WR\WQ\Caldwell\401s\Non-DO'I\Waterfront Club\V2\20210517 WaterfrontClub CNOV-2019-PC-0585.docx
Noan+cnfaaur�nDE �/
fi....anl of EnWm,n4ntpl luei
North Carolina Department of Environmental Quality I Division of Water Resources
Asheville Regional Office 12090 U.S. Highway 70 I Swannanoa, North Carolina 28778
828.296.4500