20201004 Ver 1_NOV-2021-PC-0302_20210601

DocuSign Envelope ID: D7DFE9CB-D7F6-457F-B9CA-50F03096BEBB
ROY COOPER
Governor
DIONNE DELLI-GATTI
Secretary
S. DANIEL SMITH
Director Environmental Quality
June 1, 2021
CERTIFIED MAIL 7009 1680 0000 7515 5442
RETURN RECEIPT REQUESTED
Wachhund Land Company, LLC
Attn: Shannon Slusher
3 Stansbury Drive
Asheville, NC 28803
NORTH CAROLINA
Subject: NOTICE OF VIOLATION
and RECOMMENDATION FOR ENFORCEMENT
Slusher — Sapphire Farm
NOV-2021-PC-0302
DWR #20201004
401 Water Quality Certification (WQC) Conditions
Transylvania County
Required Response Date: July 1, 2021
Dear Mr. Slusher:
On December 3, 2020 the Division of Water Resources (DWR) issued a 401 Water Quality Certification
for the subject project, which consisted of 522 linear feet of stream impact associated with the
Thompson River and unnamed tributaries to the Thompson River, 0.397 acre of wetland impact, and
0.0005 acre of open water impact. On May 26, 2021, Kaylie Yankura and Andrew Moore from the
Asheville Regional Office of the DWR conducted a site inspection at your property located off Camp Buc
Road in Sapphire, North Carolina (Parcel Identification Number 7590-98-1632-000). The inspection was
in response to reports of turbidity within the Thompson River.
During the site inspection, unauthorized impacts to the Thompson River, an unnamed tributary to the
Thompson River, and an open water draining to the Thompson River, classified C, Trout, were observed.
These unauthorized impacts include:
1. The 401 Water Quality Certification issued on December 3, 2020 authorized 150 linear feet of
stream impact (Impact S5) within the Thompson River associated with point bar improvements.
During the May 26, 2021 site inspection, the point bar was not present and the left descending
streambank of the Thompson River appeared to have been pulled back beyond the approved
limits of disturbance and stabilized with boulders.
2. During the May 26, 2021 site visit, footers associated with a bridge crossing had been installed
within an unnamed tributary of the Thompson River. Bridge crossings that span entirely from
top -of -bank to top -of -bank, without encroaching upon the ordinary high water mark (OHWM) of
1:1E
N-WTH ARC INA
Department 01 EnNronmenlaI Duallry
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: D7DFE9CB-D7F6-457F-B9CA-50F03096BEBB
Slusher — Sapphire Farm
NOV-2021-PC-0302
May 6, 2021
Page 2 of 4
the stream are generally not considered stream impacts. However, bridge footers associated
with the crossing installed onsite are located below the OHWM, and are classified as a
permanent stream impact. This impact was not included within the 401 Water Quality
Certification issued on December 3, 2020.
3. During the May 26, 2021 site visit, fill was observed within the open water onsite via the
installation of a retaining wall located within the northern limits of the open water. Impacts
associated with fill from this activity have not been authorized. The only open water impacts
authorized under the 401 Water Quality Certification issued on December 3, 2020 are for 0.0005
acre of impact (Impact 01) for dock construction.
As a result of the site inspection and file review, the following violations were identified:
VIOLATIONS
I. 401 Water Quality Certification (WQC) Conditions — Fusco Land Planning and Design, PLLC
submitted a Pre -Construction Notification (PCN) on August 4, 2020, with additional information
provided on September 23, 2020, November 10, 2020, and December 2, 2020. The impacts were
requested under U.S. Army Corps of Engineers Nationwide Permit Number 27 and Nationwide
Permit Number 29, and the corresponding General Water Quality Certifications. DWR issued an
approval letter for the impacts on December 3, 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.
Accordingly, the following observations and/or permit condition violations were noted during
the DWR inspection and file review:
General Certification Number 4134 and General Certification Number 4139, Condition
11.2. — "No waste, spoil, solids, or fill of any kind shall occur in wetlands or waters beyond
the footprint of the impacts (including temporary impacts) as authorized in the written
approval from DWR; or beyond the thresholds established for use of the Certification
without written authorization." Unauthorized stream and open water impacts observed
during the May 26, 2021 site visit and detailed above are considered fill beyond the
impacts approved within the 401 Water Quality Certification issued on December 3,
2020.
REQUIRED RESPONSE
Accordingly, you are directed to respond to this letter in writing by July 1, 2021. Your response should be
sent to this office at the footer address or via email to [e-mail] and include the
following:
1. Two options exist to resolve the violation related to the 401 WQC Conditions.
1. Apply to the U.S. Army Corps of Engineers (USACE) for and receive a 404 Permit
Modification pertaining to the unauthorized stream and open water fill activities. A 401
£D_E
NOPTH CART. INA
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
Departmento1 Environmental [Wanly

DocuSign Envelope ID: D7DFE9CB-D7F6-457F-B9CA-50F03096BEBB
Slusher — Sapphire Farm
NOV-2021-PC-0302
May 6, 2021
Page 3 of 4
WQC modification 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 the fill material and restore the streams and open water to pre-existing
conditions.
If pursuing Option 1:
a. Contact the USACE to determine the permitting needs of the unauthorized activities you
have undertaken. The Asheville office phone number is [phone].
b. Provide a proposed schedule of when you expect to have the required Permit
Modification Application (401 WQC application) submitted to DWR.
i. Due to rule changes that became effective on September 11, 2020, a pre -filling
meeting request form will need to be submitted at least 30 days prior to
submitting the Permit Modification Application. This requirement applies to all
projects requesting a 401 Water Quality Certification. The pre -filling -meeting
request form can be located here: https://edocs.deq.nc.gov/Forms/DWR-Pre-
Filing-Meeting-Request
c. The Permit Modification Application should address any changes to the approved
stream, wetland, and open water impact totals, and account for any additional impacts
proposed for the site. This includes but is not limited to Impact S5, the bridge crossing
on the unnamed tributary to the Thompson River, and the retaining wall located within
the open water.
Modifications to the size or expansion of the open water onsite were not included
within the original application submittal/impact table and were not authorized under
the 401 Water Quality Certification issued on December 3, 2020. During the May 26,
2021 site inspection, it appeared as though the expansion of the open water boundary
would be required in order to facilitate a connection to recent/ongoing dam
construction. This open water expansion will need to be evaluated and included within
the permit modification request prior to impact.
Additionally, the installation of a channel below the new dam construction was
discussed during the May 26, 2021 site inspection. Channel construction in this area
would potentially impact a jurisdictional wetland. To date, wetland impacts associated
with this feature have not been approved. Construction of the channel must be
approved prior to installation.
d. The 401 Water Quality Certification issued on December 3, 2020 authorized 0.328 acre
of wetland impact associated with lake edge enhancements. During the May 26, 2021
site visit, wetlands associated with the approved enhancements had been impacted due
to grading activities along the lake edge. It was unclear if these impacts were temporary
until permanent enhancement could take place. Please indicate how these areas will be
enhanced.
£D_E
NOPTH CART. INA
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
Departmento1 Environmental [Wanly

DocuSign Envelope ID: D7DFE9CB-D7F6-457F-B9CA-50F03096BEBB
Slusher — Sapphire Farm
NOV-2021-PC-0302
May 6, 2021
Page 4 of 4
If pursuing Option 2:
a. Please submit a plan for how fill material will be removed from the streams and open
water, and how these areas will be restored to pre-existing conditions.
b. It is recommended that you contact Kaylie Yankura 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 Kaylie Yankura.
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 Kaylie Yankura at (828) 296-
4685 or [e-mail].
Sincerely,
,—DocuSigned by:
>3022
`— E397192DABFB4FF...
for
G. Landon Davidson, P.G, Regional Supervisor
Water Quality Regional Operations
Asheville Regional Office
ec: David Brown — USACE
Andrea Leslie — WRC
Stan Aiken — DEMLR
DWR 401 & Buffer Permitting Unit file
LD_E
NOPTH CARO.. INA
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
Departmento1 Environmental [Wanly