20191305 Ver 1_NOV-2021-SS-0005_20210601

DocuSign Envelope ID: 522CDD04-33BE-40CC-B727-89229827CA90
ROY COOPER
Governor
DIONNE DELLI-GATTI
Secretary
S. DANIEL SMITH
Director
June 1, 2021
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
The Broadway Group
Attn: Bob Broadway
216 Westside Square
Huntsville, AL 35801
7009 1680 0000 7515 5435
NORTH CAROLINA
Environmental Quality
Subject: NOTICE OF VIOLATION
and RECOMMENDATION FOR ENFORCEMENT
Highlands Retail Development Project (DWR Project #20191305)
NOV-2021-S S-0005
401 Water Quality Certification Conditions
Stream Standard Violation — Removal of Best Usage
Macon County
Required Response Date: July 1, 2021
Dear Mr. Broadway:
On May 21, 2021, Andrew Moore from the Asheville Regional Office of the Division of Water
Resources (DWR) conducted a site inspection of the subject project on Cherrywood Drive at US
Highway 64 East, Highlands, North Carolina. During the site inspection, a recently installed
culvert was observed on Big Creek (Class WS-II; Trout; HQW). The culvert had not been installed
below the elevation of the stream bed and was perched on the lower end. As a result of the site
inspection and file review, the following violations were identified:
VIOLATIONS
I. The Broadway Group submitted a Pre -Construction Notification (PCN) dated September
26, 2019 to DWR for stream impacts associated with the subject development project.
The impacts were requested under U.S. Army Corps of Engineers Nationwide Permit 39
and the corresponding Water Quality Certification. DWR issued an approval letter for the
impacts on January 14, 2020. The approval letter specifies that the activities must follow
the conditions listed in the General Water Quality Certification, as well as additional
conditions listed in the letter. The following condition violations were noted:
-D_E
NORTH CAROLINA
MpaM enl of EnrInaannent,I 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

DocuSign Envelope ID: 522CDD04-33BE-40CC-B727-89229827CA90
The Broadway Group
June 1, 2021
Page 2 of 3
Condition II.9.- Requires the placement of culverts below the elevation of the
streambed by 20% of the culvert diameter for culverts having a diameter less than
or equal to 48 inches to allow low flow passage of water and aquatic life. The
culvert associated with the parking lot entrance was not buried.
Additional Condition 2.- The approval is for the purpose and design described in
the application. The PCN documents indicate the culvert would be buried 9.6"
below the streambed elevation.
Additional Condition 3.- Requires the permittee report any noncompliance with
the certification. No notification of noncompliance was received.
Additional Condition 7.- Requires submittal of upstream and downstream
photographs of each culvert site to document correct installation. No photographs
were submitted.
II. Removal of Best Usage — 15A NCAC 02B .0211 (2) — Title 15A NCAC 02B .0211 (2)
requires that the waters shall be suitable for aquatic propagation and maintenance of
biological integrity, wildlife, secondary recreation, and agriculture. The culvert installed
on Big Creek (WS-II; Trout; HQW) was not properly buried resulting in a barrier to
aquatic organism passage and a removal of best use.
REQUIRED RESPONSE
Accordingly, you are directed to respond to this letter by July 1, 2021. Your response should be
sent to the attention of Andrew Moore at the footer address or [e-mail] and
should address how you plan to resolve this Notice of Violation.
Two (2) options exist to resolve the violations:
1. Remove the culvert and restore the stream to its pre-existing condition.
2. Remove the culvert and re -install it in accordance with the conditions of 401 General Water
Quality Certification 4139 (GC 4139), which corresponds to the U.S. Army Corps of
Engineers Nationwide Permit 39.
If pursuing Option 1:
1. Submit a Stream Restoration Plan to this office for review and approval. The plan must
provide details regarding: how the culvert will be removed, how the stream channel will
be restored, and how the buffer along the streambanks will be restored. The Plan must be
approved by DWR before being implemented.
NO DE
naa.rmCAROLINA
re.t or Environment 0..i�
North Carolina Department of Environmental Quality 1 Division of Water Resources
Asheville Regional Office 1 2090 U.S. Highway 70 I Swannanoa, North Carolina 28778
828.296.4500

DocuSign Envelope ID: 522CDD04-33BE-40CC-B727-89229827CA90
The Broadway Group
June 1, 2021
Page 3 of 3
2. Provide a proposed schedule of when you expect to remove the culvert and restore the
stream.
If pursuing Option 2:
1. Provide a proposed schedule of when you expect to re -install the culvert.
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 Andrew Moore at (828)
296-4684 or [e-mail].
Sincerely,
,-DocuSigned by:
022
'-E397192DABFB4FF...
for
G. Landon Davidson, P.G., Regional Supervisor
Water Quality Regional Operations
Asheville Regional Office
ec: Michelle Campbell — ARC Environmental, Inc.
Melissa Ballard — The Broadway Group, LLC
Kelly Steele — The Broadway Group, LLC
David Brown — USACE Asheville Regulatory Filed Office
Andrea Leslie — North Carolina Wildlife Resources Commission
Joe Allen — Macon County
DWR 401 & Buffer Permitting Unit File
NO DE
naa.rmCAROLINA
re.t or Environment 0..i�
North Carolina Department of Environmental Quality 1 Division of Water Resources
Asheville Regional Office 1 2090 U.S. Highway 70 I Swannanoa, North Carolina 28778
828.296.4500