20011381 Ver 1_Court Case Correspondence_20010806

Proposed language for Settlement Agreement and 401 Certification
PTR, Inc. versus NC Department of Environment and Natural
Resources
Prepared by the N.C. Division of Water Quality
August 6, 2001
a) Stormwater management — PTR shall provide a final, written stormwater
management plan that must be approved in writing by NC DENR by October 1, 2001.
The stormwater management plan must include plans and specifications for stormwater
management facilities designed to remove 85% TSS according to the most recent version
of the NC DENR Stormwater Best Management Practices Manual. These facilities must
be designed to treat the runoff from the entire project, unless otherwise explicitly
approved by the Division of Water Quality. Also, the facilities (as approved by this
Office) shall be constructed and operational, and the stormwater management plan (as
approved by this Office) shall be implemented by December 1, 2001. The structural
stormwater practices as approved by this Office as well as drainage patterns must be
maintained in perpetuity No changes to the structural stormwater practices shall be made
without written authorization from the Division of Water Quality. PTR may design the
proposed wetland at the bottom of the relocated stream as an extended detention wetland
as described in the above manual. If the runoff from the project cannot be added to the
above wetland, bioretention areas (designed according to the above manual) must be
provided to treat the runoff from the areas not draining to the wetlands
b) The May 29, 2001 (with a monitoring supplement dated June 7, 2001) proposed
mitigation plan prepared by Mitchell and Associates, Inc states that impacts to Leak
Fork Creek will be reduced to less than 500 feet. Accordingly, approximately 350
feet of culvert removal and stream restoration is required from Leak Fork Creek such
that the total culverted length of Leak Fork Creek is no more than 500 linear feet.
This reopening of Leak Fork Creek must be completed by November 1, 2001 and the
site stabilized according to the plan referenced above This area must be replanted in
woody vegetation (preferably trees) to a width of at least 30 feet from the active
stream bank. This stream restoration shall be designed and maintained according to
the provisions in DENR's "Internal Technical Guide for Stream Work in North
Carolina (April 2001, Version 3 0). If the stream restoration outlmeds in the reports
by Gary Mitchell (mentioned above) do not correspond with the DENR Manual, they
must be modified and submitted to DWQ for written approval.
c) Stream mitigation — The proposed on -site stream mitigation plan in the May 29, 2001
proposed ntigation plan (with a monitoring supplement dated June 7, 2001) prepared
by Mitchell and Associates, Inc. is acceptable to DWQ with the following
modifications The following additional items /amendments to the mitigation plan are
required to be submitted to DWQ by October 1, 2001 for written approval. These
reports are available on our website at http. //h2o.enr.state nc.us/ncwetlands.
• Modification of the riparian (streamside) restoration to omit sycamore and sweet
gum and to achieve 320 trees per acre at maturity,

• Provide a satisfactory benthic macroinvertebrate monitoring plan as outlined in
DWQ's Interim, Internal Technical Guide — Benthic Macroinvertebrate Monitoring
Protocols for Compensatory Stream Restoration Projects (May 2001),
• Plans that adequately depict the footprint of the stream restoration efforts, detailing
the location of riffle /pools, streambed sinuosity, streambed profile, location of root
wades, and grade control structures as outlined in DENR's "Internal Technical Guide
for Stream Work in North Carolina (April 2001, Version 3 0)
• Grading and planting of the stream restoration site must begin by December 1,
2001 and be completed by April 1, 2002 DWQ shall be copied with an as -built plan
upon completion of the project within 30 days of completion of the stream
restoration,
• Annual monitoring reports shall be sent to DWQ for five years within 30 days of
the anniversary of the completion of the stream restoration These plans must outline
any planned measures to resolve any problems identified with the success of the
stream restoration, and
• DWQ shall be copied on the conservation easement that will be placed on the
stream restoration area for the stream mitigation and re- opening of Leak Fork Creek
d) At least 1160 linear feet of stream restoration shall be done on site At least 90% of
this restoration must be successful within five ( %) years. Successful restoration is
defined as 1) a channel with positive baseflow at least 90% of the time in a normal
year or mirrors the baseflow of the approved reference stream (for instance, the
remaining undisturbed portion of the stream between US 52 and the restoration site),
2) tree plantings must meet the criteria of 320 trees per acre, 3) at least 90% of the
streambank and bed is stable and not eroding, and 4) naturally maintains the
referenced pattern, dimension and profile If any of these criteria are not PTR, Inc
(Parker Enterprises, Inc ) shall purchase stream mitigation credits from the N C.
Wetlands Restoration Program by payment at no more than $125 00 a linear foot for
each foot of length of unsuccessful restoration
e) Appropriate modifications to PTR, Inc's Erosion and Sedimentation Control Plan
must be secured prior to the beginning of construction of the on -site stream
restoration and stormwater management efforts
f) One of the remaining culverts under Leak Fork Creek shall be partially plugged at the
uppermost end by November 1, 2001 to force stream base flow to enter only one pipe
rather than both pipes Higher storm flows may enter both pipes.
g) DWQ shall issue a 401 Water Quality Certification for Nationwide Permit 32
(Completed Enforcement Action) for this project incorporating the conditions of this
agreement assuming that the Corps of Engineers intends to permit the remaining
stream fill on the site through this Permit. This Certification shall be issued by
October 1, 2001 The applicant must subnut a written request to modify the existing
Individual Permit application by September 15, 2001
h) PTR, Inc. shall pay a total of $6,592 28 to DENR (add Anita's language).

Proposed language for Settlement Agreement and 401 Certification
PTR, Inc. versus NC Department of Environment and Natural
Resources
Prepared by the N.C. Division of Water Quality
August 5, 2001
a) Stormwater management — Applicant shall design, construct and maintain the
proposed wetland area (shown at the terminus of the proposed stream mitigation site)
as an extended detention wetland as described in the most recent version of the NC
DENR DWQ's Stormwater Best Management Practices Design Manual. In addition
the existing stormwater outfalls from the developed portion of the site shall either be
1) redirected to flow into the extended detention wetland or 2) redesigned and
reconstructed to create bioretention areas at the end of each stormwater outfall before
they reach Leak Fork Creek or the relocated tributary. These plans shall be submitted
to DWQ for written approval by October 1, 2001. Construction of these facilities
shall begin by December 1, 2001. (Do we want to add the statement that the
stormwater facilities (wetland plus any bioretention) must be designed to remove
85% TSS ?)
b) The May 29, 2001 (with a monitoring supplement dated June 7, 2001) proposed
mitigation plan prepared by Mitchell and Associates, Inc. states that impacts to Leak
Fork Creek will be reduced to less than 500 feet. Accordingly, approximately 350
feet of culvert removal and stream restoration is required from Leak Fork Creek such
that the total culverted length of Leak Fork Creek is no more than 500 linear feet.
This reopening of Leak Fork Creek must be completed by November 1, 2001 and the
site stabilized according to the plan outlined above.
c) Stream mitigation — The proposed on -site stream mitigation plan in the May 29, 2001
proposed mitigation plan (with a monitoring supplement dated June 7, 2001) prepared
by Mitchell and Associates, Inc. is acceptable to DWQ with the following
modifications. The following additional items /amendments to the mitigation plan are
required to be submitted to DWQ by October 1, 2001 for written approval:
Modification of the riparian (streamside) restoration to omit Sycamore and * * * **
and to achieve 320 trees per acre at maturity.
Provide a satisfactory benthic macroinvertebrate monitoring plan as outlined in
DWQ's May 10, 2000 "Rexible StFeam Mitigation Polieyt,- Interim, Internal
DWQ Policies on Stream Mitigation Options and Associated Macrobenthos
Monitoring, (You may want to use the "official" title of this document — so as
not to confuse them any more than they already seem to be.)
Plans that adequately depict the footprint of the stream restoration efforts,
detailing the location of riffle /pool complexes, streambed sinuosity, streambed
profile, location of root wades, cross - sectional details, and grade control
structures as outlined in DENR's " " Internal

Technical Guide for Stream Work in North Carolina (April 2001). Also
include details regarding the morphological stream classification, table of
morphological characteristics and sediment transport analysis.
• Grading and planting of the stream restoration site must begin by December 1,
2001 and be completed by April 1, 2002. DWQ shall be copied with an as -built
plan upon completion of the project within 30 days of completion of the stream
restoration.
• Annual monitoring reports for 5 years? shall be sent to DWQ within 30 days of
the anniversary of the completion of the stream restoration. These plans must
outline any planned measures to resolve any problems identified with the success
of the stream restoration.
d) At least 1160 linear feet of stream restoration shall be done on site. At least 90% of
this restoration must be successful within five ( %) years. Successful restoration is
defined as 1) a channel with positive baseflow at least 90% of the time in a normal
year or mirrors the baseflow of the remaining undisturbed portion of the stream
between US 52 and the restoration site, 2) tree plantings must meet the criteria of 320
trees per acre, 3) at least 90% of the streambank is stable and not eroding. If any of
these criteria are not met, PTR, Inc. (Parker Enterprises, Inc.) shall purchase stream
mitigation credits from the N.C. Wetlands Restoration Program by payment at no
more than $125.00 a linear foot for each foot of length of unsuccessful restoration.
e) Appropriate modifications to PTR, Inc's. Erosion and Sedimentation Control Plan
must be secured prior to the beginning of construction of the on -site stream
restoration and stormwater management efforts.
f) One of the remaining culverts under Leak Fork Creek shall be partially plugged at the
uppermost end by November 1, 2001 to force stream base flow to enter only one pipe
rather than both pipes. Higher storm flows may enter both pipes.
g) DWQ shall issue a 401 Water Quality Certification for Nationwide Permit 32
(Completed Enforcement Action) for this project incorporating the conditions of this
agreement. This Certification shall be issued by September 1, 2001. We need to
make certain that this is the avenue (a NWP 32) that the USACE is taking. It seems to
me that even though this is a certification that does not require written concurrence
from us — we could consider this project one that does (using Condition 10 of the
Cert.) — mainly because of the stormwater and restoration issues. Also, we need to
note that a written application must be submitted by a particular date.
h) PTR, Inc. shall pay a total of $6,592.28 to DENR. (add Anita's language).