20220503 Ver 1_NOV-2022-CV-0002 Response_20220404

IIIDG
ENGINEERING EXCELLENCE
April 1, 2022
Mr. Andrew Moore
NCDEQ
Swannanoa, NC
Re: 310 Dula Springs Notice of Violation
Dear Mr. Moore:
Our client, Mr. Alexander Rodriguez has requested that we assist him in resolution of the Notice of
Violation (NOV) issued by your office on March 16, 2022. You and I briefly discussed the NOV on
Tuesday March 29th. That discussion was relative to my previous unsuccessful attempts to submit the
PCN online.
In accordance with the requirements of the NOV attached to this letter are the following:
1. Written response from the Owner as to why the impacts occurred without a permit or prior
authorization.
2. Proof of application for the 401 WQC application and acceptance of the PCN application online.
3. Proof of PCN application acceptance, a copy of the PCN form as submitted and the application
fee receipt.
Thank you for the opportunity to assist with this project. If you have any questions please feel free to
call. (828-645-7088)
Principal
MERCER DESIGN GROUP, PC
C-2383
P.O. Box 1516 WEAvERvILLE, NC 28787
P. 828-645-7088 F. 828-645-7714

310 Dula Springs, LLC
Alexander & Sandra Rodriguez
14301 W Palomino Drive,
Southwest Ranches, FL 33330
Attn: Mr. Andrew Moore
RE: Notice of Violation, March 16, 2022
NOV-2022-CV-0002
Good Morning Mr. Moore,
On October 18, 2021, we purchased the property on 310 Dula Springs, Weaverville, NC
28787, where the intentions were to clean up the property to allow the growth and the well-being
of current and future livestock. The property on 310 Dula Springs had been abandoned for over 40
years by the previous owners. The property was overgrown, and the creek banks were unstabilized
with livestock occupying them. Our misunderstanding was that under agriculture, I could clean up
the property and stabilize the creek banks, where I would be able to install fences and water wells
to get the livestock out of the creek. All other works performed on the property, such as
demolishing abandoned homes, structures, upgraded power, and water wells, are permitted. Our
intent was as below:
- We immediately installed a well and started working with Duke Energy to provide power.
- We removed brush along the creek, eroded areas with vertical banks sloped for less erosion.
- Installed a culvert crossing for machine access (to stay out of the creek) for later use by livestock
crossing.
- Cleaned and stabilized creek banks a section at a time.
- Reseeded, installed matting the length of the disturbance, and installed a silt fence at the top of
the stream bank.
- Working with a local architect and local contractor to install a bardominium and barn/stable.
On November 30, 2021, I received a call from Mr. Brian Anderson, our civil contractor,
who notified me that Inspector Andrew Moore had visited the property. Mr. Moore said an
anonymous individual reported a complaint that the contractors were driving through the creek
while removing the brush. Mr. Anderson informed me that the meeting with Mr. Moore was

positive and that he had requested some corrections to be made. At the same time, Mr. Moore went
back to his office to confirm if the amount of linear footage we had and were in the process of
stabilizing the creek banks that were not continuous were allowed to be performed under
agricultural exemption. Mr. Anderson called me the following day to inform me that we would
need a permit because we had exceeded the maximum length. Mr. Anderson immediately hired
Marvin Mercer of Mercer Design Group, and my understanding until recently was that everything
was going well through the process.
Please let me know if you have any further questions.
xander Rodriguez
786-942-0826

Donotreply
Mar 31
Thank you for your recent payment to NC DEQ Wetlands ePayment.
Payment Application: NC DEQ Wetlands ePayment
Payment Status: Payment completed successfully.
Confirmation Number: 22033104264471
Payment Date: 03/31/2022
Billing Address: Anderson & Son Construction
28 anderson rd
Weaverville, NC 28787
8287774092
Card Type: MC
Card Number: x8773
Payment Amount: 570.00 USD
Convenience Fee: 15.11 USD
Total Amount: 585.11 USD
Reference Information: 20220503,1,Non-DOT,310 Dula Springs,310 Dula Springs
LLC,2022WT000471
DO NOT REPLY DIRECTLY TO THIS EMAIL.

DWR
Division of Water Resources
Pre -Construction Notification (PCN) Form
For Nationwide Permits and Regional General Permits
(along with corresponding Water Quality Certifications)
December 6, 2021 Ver 4.2
Please note: fields marked with a red asterisk - below are required. You will not be able to submit the form until all mandatory questions are answered.
Also, if at any point you wish to print a copy of the E-PCN, all you need to do is right -click on the document and you can print a copy of the form.
Below is a link to the online help file.
https://edocs.deq.nc.gov/WaterResources/0/edoc/624704/PCN % 20Help % 20File % 202018-1-30.pdf
A. Processing Information
County (or Counties) where the project is located:*
Buncombe
Is this a NCDMS Project*
Yes No
Click Yes, only if NCDMS is the applicant or co -applicant.
Is this project a public transportation project?*
Yes No
This is any publicly funded by municipal,state or federal funds road, rail, airport transportation project.
la. Type(s) of approval sought from the Corps: *
Section 404 Permit (wetlands, streams and waters, Clean Water Act)
Section 10 Permit (navigable waters, tidal waters, Rivers and Harbors Act)
Has this PCN previously been submitted?*
Yes
No
Please provide the date of the previous submission.*
2/4/2022
1 b. What type(s) of permit(s) do you wish to seek authorization? *
Nationwide Permit (NWP)
Regional General Permit (RGP)
Standard (IP)
lc. Has the NWP or GP number been verified by the Corps?*
Yes No
Nationwide Permit (NWP) Number: 13 - Bank Stabilization
Nationwide Permit (NWP) Number: 27 - Restoration
NWP Numbers (for multiple NWPS):
13, 27
List all NW numbers you are applying for not on the drop down list.
ld. Type(s) of approval sought from the DWR:*
check all that apply
401 Water Quality Certification - Regular
Non-404 Jurisdictional General Permit
Individual 401 Water Quality Certification
le. Is this notification solely for the record because written approval is not required?
401 Water Quality Certification - Express
Riparian Buffer Authorization
For the record only for DWR 401 Certification: Yes No
For the record only for Corps Permit: Yes No
lf. Is this an after -the -fact permit application?*
Yes No

lg. Is payment into a mitigation bank or in -lieu fee program proposed for mitigation of impacts?
If so, attach the acceptance letter from mitigation bank or in -lieu fee program.
Yes - No
Acceptance Letter Attachment
Click the upload button or drag and drop files here to attach document
FILE TYPE MUST BE PDF
1 h. Is the project located in any of NC's twenty coastal counties?*
Yes No
1j. Is the project located in a designated trout watershed? *
Yes No
Link to trout information: http://www.saw.usace.army.mil/Missions/Regulatory-Permit-Program/Agency-Coordination/Trout.aspx
B. Applicant Information
la. Who is the Primary Contact?*
Brian Anderson
lb. Primary Contact Email:*
[e-mail]
Id. Who is applying for the permit?*
Owner
(Check all that apply)
le. Is there an Agent/Consultant for this project?*
Yes No
2. Owner Information
2a. Name(s) on recorded deed: *
310 Dula Springs, LLC
2b. Deed book and page no.:
6135/1289
2c. Contact Person:
(for Corporations)
Alexander Rodriguez
2d. Address*
Street Address
14301 W. Palomino Drive
Address Line 2
City
Southwest Ranches
Postal / Zip Code
33330
2e. Telephone Number: *
(xxx)xxx-xxxx
[phone]
2f. Fax Number:
(xxx)xxx-xxxx
2g. Email Address: *
[e-mail]
4. Agent/Consultant (if applicable)
4a. Name:*
Marvin Mercer, PE
4b. Business Name:
(if applicable)
Mercer Design Group, PC
lc. Primary Contact Phone: *
(xxx)xxx-xxxx
[phone]
Applicant (other than owner)
State / Province / Region
FL
Country
USA

4c. Address*
Street Address
P.O. Box 1516
Address Line 2
City State / Province / Region
Weaverville NC
Postal / Zip Code Country
28787 USA
4d. Telephone Number:*
[phone] 4e. Fax Number:
(xxx)xxx-xxxx (mx)xxx-xxxx
4f. Email Address: *
[e-mail]
C. Project Information and Prior Project History L^.)
1. Project Information
L^J
la. Name of project:*
310 Dula Springs
1b. Subdivision name:
(if appropriate)
lc. Nearest municipality / town: *
Weaverville
2. Project Identification
2a. Property Identification Number: 2b. Property size:
(tax PIN or parcel ID) On acres)
9743-91-861600000 108
2c. Project Address
Street Address
310 Dula Springs Road
Address Line 2
City
Weaverville
Postal / Zip Code
28787
2d. Site coordinates in decimal degrees
State / Province / Region
NC
Country
USA
Please collect site coordinates in decimal degrees. Use between 4-6 digits (unless you are using a survey -grade GPS device) after the decimal place as appropriate, based on how the location was
determined. (For example, most mobile phones with GPS provide locational precision in decimal degrees to map coordinates to 5 or 6 digits after the decimal place.)
Latitude: * Longitude: *
35.7106653 -82.5387167
ex: 34.208504 -77.796371
3. Surface Waters
3a. Name of the nearest body of water to proposed project: *
Little Flat Creek
3b. Water Resources Classification of nearest receiving water: *
C
Surface Water Lookup
3c. What river basin(s) is your project located in?*
French Broad
3d. Please provide the 12-digit HUC in which the project is located.*
060101050904
River Basin Lookup
4. Project Description and History

4a. Describe the existing conditions on the site and the general land use in the vicinity of the project at the time of this application:*
The use of the parcel is agricultural (livestock and hay). The parcel had one single family residential structure however, that residence had been abandoned for 10+ years. The general
land use int the area is low density residential and agricultural.
4b. Have Corps permits or DWR certifications been obtained for this project (including all prior phases) in the past? *
Yes No Unknown
4f. List the total estimated acreage of all existing wetlands on the property:
Unknown
4g. List the total estimated linear feet of all existing streams on the property:
(intermittent and perennial)
1800
4h. Explain the purpose of the proposed project: *
The owner wants to clean up the area for aesthetics. He wants to install two culvert crossings to keep livestock out of the creek. Currently, the livestock access Little Flat Creek in various
locations.
4i. Describe the overall project in detail, including indirect impacts and the type of equipment to be used: *
The contractor removed trees, brush and debris along the creek bank. The contractor states that he did not disturb the creek bottom but he did "smooth" the creek banks to reduce existing
erosion and provide bank stabilization.
The contractor used track hoes, bobcat and dump truck, chainsaws and hand tools.
5. Jurisdictional Determinations
5a. Have the wetlands or streams been delineated on the property or proposed impact areas?*
Yes
Comments:
No Unknown
5b. If the Corps made a jurisdictional determination, what type of determination was made?*
Preliminary Approved Not Verified Unknown N/A
Corps AID Number:
Example: SAW-2017-99999
5c. If 5a is yes, who delineated the jurisdictional areas?
Name (if known):
Agency/Consultant Company:
Other:
6. Future Project Plans
6a. Is this a phased project?*
Yes No
Are any other NWP(s), regional general permit(s), or individual permits(s) used, or intended to be used, to authorize any part of the proposed project or related activity? This includes other
separate and distant crossing for linear projects that require Department of the Army authorization but don't require pre -construction notification.
D. Proposed Impacts Inventory
1. Impacts Summary
la. Where are the impacts associated with your project? (check all that apply):
Wetlands
Open Waters
Streams -tributaries
Pond Construction
Buffers
3. Stream Impacts
If there are perennial or intermittent stream impacts (including temporary impacts) proposed on the site, then complete this question for all stream sites impacted.
"S." will be used in the table below to represent the word "stream".
3a. Reason for impact* (?)
3b.Impact type*
3c. Type of impact*
3d. S. name*
3e. Stream Type*
(?)
3f. Type of
Jurisdiction*
3g. S. width*
3h. Impact
length*
S1
Clean up banks
Temporary
Bank Stabilization
Little Flat Creek
Perennial
Both
30
Average (feet)
1,800
(linear feet)
* All Perennial or Intermittent streams must be verified by DWR or delegated local government.
31. Total jurisdictional ditch impact in square feet:
0

3i. Total permanent stream impacts:
0
3i. Total temporary stream impacts:
1,800
3i. Total stream and ditch impacts:
1
3j. Comments:
6. Buffer Impacts (for DWR)
If project will impact a protected riparian buffer, then complete the chart below. Individually list all buffer impacts below.
6a. Project is in which protect basin(s)?*
Check all that apply.
Neuse
Catawba
Goose Creek
Other
French Broad
Tar -Pamlico
Randleman
Jordan Lake
6b. Impact Type* (?)
6c. Per or Temp* (?)
6d. Stream name*
6e. Buffer mitigation required?*
6f. Zone 1 impact*
6g. Zone 2 impact*
Bank Stabilization
T
Little Flat Creek
No
54,000
(square feet)
0
(square feet)
6h. Total buffer impacts:
Total Temporary impacts:
Total Permanent impacts:
Total combined buffer impacts:
6i. Comments:
Zone 1
54,000.00
Zone 1
0.00
Zone 1
54,000.00
E. Impact Justification and Mitigation
1. Avoidance and Minimization
Zone 2
0.00
Zone 2
0.00
Zone 2
0.00
1a. Specifically describe measures taken to avoid or minimize the proposed impacts in designing the project:*
The reject is an "after the fact" permit. The disturbance was done without a design. The consultant met on site with the contractor and field directed
changes and additions to the existing erosion control measures noted at the time of the site visit.
1 b. Specifically describe measures taken to avoid or minimize the proposed impacts through construction techniques: *
The contractor immediately seeded the disturbed ares and installed coconut fiber matting on the disturbed areas. The work was done in linear fashion,
working from downstream to upstream.
2. Compensatory Mitigation for Impacts to Waters of the U.S. or Waters of the State
2a. Does the project require Compensatory Mitigation for impacts to Waters of the U.S. or Waters of the State?
Yes No
2b. If this project DOES NOT require Compensatory Mitigation, explain why:
Project done under agricultural use exemption
NC Stream Temperature Classification Maps can be found under the Mitigation Concepts tab on the Wilmington District's RIBITS website.
F. Stormwater Management and Diffuse Flow Plan (required by DWR)
*** Recent changes to the stormwater rules have required updates to this section ***
1. Diffuse Flow Plan

la. Does the project include or is it adjacent to protected riparian buffers identified within one of the NC Riparian Buffer Protection Rules?
Yes • No
For a list of options to meet the diffuse flow requirements, click here.
If no, explain why:
No new ditches or conveyances have been installed.
2. Stormwater Management Plan
2a. Is this a NCDOT project subject to compliance with NCDOT's Individual NPDES permit NCS000250? *
Yes No
2b. Does this project meet the requirements for low density projects as defined in 15A NCAC 02H .1003(2)?*
Yes No
To look up low density requirement click here 15A NCAC 02H .1003(2).
2c. Does this project have a stormwater management plan (SMP) reviewed and approved under a state stormwater program or state -approved local government stormwater program?*
Yes No
• N/A - project disturbs < 1 acre
Hint: projects that have vested rights, exemptions, or grandfathering from state or locally implemented stormwater programs or projects that satisfy state or locally -implemented stormwater programs through use of community in -lieu programs should answer
no to this question.
Comments:
Project done under Agricultural Use Exemption.
G. Supplementary Information
1. Environmental Documentation
la. Does the project involve an expenditure of public (federal/state/local) funds or the use of public (federal/state) land? *
Yes No
2. Violations (DWR Requirement)
2a. Is the site in violation of DWR Water Quality Certification Rules (15A NCAC 2H .0500), Isolated Wetland Rules (15A NCAC 2H .1300), or DWR Surface Water or Wetland Standards or
Riparian Buffer Rules (15A NCAC 2B .0200)?*
Yes No
2b. If you answered "yes" to the above question, provide an explanation of the violation(s):
Site is an "after the fact" application. The consultant made application online on February 4 2022 after being contacted by the owner and contractor.
Unfortunately the PCN was not uploaded/received correctly and a second attempt was also unsuccessful. We were not aware that the second attempt
was unsuccessful until the NOV was issued on March 16 and received by the owner of the property.
3. Cumulative Impacts (DWR Requirement)
3a. Will this project (based on past and reasonably anticipated future impacts) result in additional development, which could impact nearby downstream water quality?*
Yes No
3b. If you answered "no," provide a short narrative description.
No future impacts are proposed
4. Sewage Disposal (DWR Requirement)
4a. Is sewage disposal required by DWR for this project?*
Yes No N/A
5. Endangered Species and Designated Critical Habitat (Corps Requirement)
5a. Will this project occur in or near an area with federally protected species or habitat?*
Yes No
5b. Have you checked with the USFWS concerning Endangered Species Act impacts?*
Yes No
5d. Is another Federal agency involved?*
Yes
5e. Is this a DOT project located within Division's 1-8? *
Yes No
No Unknown
5f. Will you cut any trees in order to conduct the work in waters of the U.S.?*
Yes No

5g. Does this project involve bridge maintenance or removal?*
Yes No
Link to the NLEB SLOPES document: http://saw-reg.usace.army.mil/NLEB/1-30-17-signed_NLEB-SLOPES&apps.pdf
5h. Does this project involve the construction/installation of a wind turbine(s)?**
Yes No
5i. Does this project involve (1) blasting, and/or (2) other percussive activities that will be conducted by machines, such as jackhammers, mechanized pile drivers, etc.? *
Yes No
5j. What data sources did you use to determine whether your site would impact Endangered Species or Designated Critical Habitat?*
Search on Endangered Species in local area
6. Essential Fish Habitat (Corps Requirement)
6a. Will this project occur in or near an area designated as an Essential Fish Habitat?*
Yes No
6b. What data sources did you use to determine whether your site would impact an Essential Fish Habitat? *
NOAA Essential Fish Habitat Mapper
7. Historic or Prehistoric Cultural Resources (Corps Requirement)
Link to the State Historic Preservation Office Historic Properties Map (does not include archaeological data: http://gis.ncdcr.gov/hpoweb/
7a. Will this project occur in or near an area that the state, federal or tribal governments have designated as having historic or cultural preservation status (e.g., National Historic Trust
designation or properties significant in North Carolina history and archaeology)?*
Yes No
7b. What data sources did you use to determine whether your site would impact historic or archeological resources?*
Google search of area
8. Flood Zone Designation (Corps Requirement)
Link to the FEMA Floodplain Maps: https://msc.fema.gov/portal/search
8a. Will this project occur in a FEMA-designated 100-year floodplain?*
Yes No
8c. What source(s) did you use to make the floodplain determination?*
Buncombe County GIS
Miscellaneous
Comments
Please use the space below to attach all required documentation or any additional information you feel is helpful for application review. Documents should be combined into one file when
possible, with a Cover Letter, Table of Contents, and a Cover Sheet for each Section preferred.
Click the upload button or drag and drop files here to attach document
21-161_310 dula springs ec for pcn.pdf 48.85MB
310 dula springs pcn letter.pdf 219.75KB
File must be PDF or KMZ
Signature
By checking the box and signing below, I certify that:
• The project proponent hereby certifies that all information contained herein is true, accurate, and complete to the best of my knowledge and belief'; and
• The project proponent hereby requests that the certifying authority review and take action on this CWA 401 certification request within the applicable reasonable period of time.
• I have given true, accurate, and complete information on this form;
I agree that submission of this PCN form is a "transaction" subject to Chapter 66, Article 40 of the NC General Statutes (the "Uniform Electronic Transactions Act");
I agree to conduct this transaction by electronic means pursuant to Chapter 66, Article 40 of the NC General Statutes (the "Uniform Electronic Transactions Act");
I understand that an electronic signature has the same legal effect and can be enforced in the same way as a written signature; AND
I intend to electronically sign and submit the PCN form.
Full Name:*
James Marvin Mercer

Signature*
Date
3/29/2022