20071505 Ver 4_Emails_20150206

Burdette, Jennifer a
^~~~
From: Davidson, Landon
Sent: Friday, February 0620l58:44AK4
To: Higgins, Karen; 0undette' Jennifer a
Cc: Fox, Tim; Barnett, Kevin; Price, Zan (Genrge)
Subject: Seven Falls Development - Henderson Co. 4OlQuestion
Attachments: SELC Letter to Corps 120512.pdf, signed memo-injunction-seven falls IIc.pdf
Karen/Jennifer-
The ARO is requesting clarification related to a 401 certification that involves Henderson County's use of seized bond
money to complete infrastructure for only a portion of a failed subdivision development. Henderson County's
expenditure of the bond money, as ordered by the Superior Court Judge overseeing expenditures, is to cover only the
area of the development covered by the construction bond money according to He. Co. The 'bonded' area would not
include some areas of the former subdivision and not cover areas such as the golf course, areas where sediment impacts
were noted (and NOVs issued and injunctive relief sought) by DWR. SELC has also established a position on the topic (see
attached). In addition to technical staff reviewing this topic, we one also requesting DVVR counsel and possibly DENR
counsel review this situation prior to us notifying Henderson Co. of required permit conditions (see their email below).
ARO is requesting assistance in the following areas considering the financial limitations described by He. County staff
(see email below) related to their use of bond money only within the 'bonded area':
1. The requirements regarding issuing a new 401 certification, within and outside of the bonded area; and,
2. Resolution of outstanding NOVs and water quality standards violations, within and outside of the bonded area.
On January 22, 2015, ARO staff attended a pre-application meeting to discuss Seven Falls with Henderson County
officials and their consultants.
Below includes a short synopsis nf the situation.
- Project started in20O7. A 401 Water Quality Certification was issued for the proposed Golf Course development
/ residential community. The 401 Water Quality Certification was issued for approx. 1400 acre development
(DVVQ#07'1505V1, V2, and V3). There were repeated NOVs for failed erosion control (Construction
stormvvater) and stream impacts that have not been resolved. On April 27,2010, the US Army Corps of
Engineers revoked the Clean Water Act Section 404 permit for this project, rendering the 401 Water Quality
Certification invalid.
- The site is unstable with previously documented water quality violations.
- The Seven Falls development filed for bankruptcy in 2009 and failed to complete the
development infrastructure and never paid mitigation costs for stream and wetland impacts. Henderson
County seeks to use seized construction bond money to install road infrastructure to provide access to lots sold
to individuals.
DWR has requested that, as the agency views this subproject to be a portion of the previously authorized
activity, where the road network for residential development success ultimately hinges on the promised
amenities, that the streams and culvert installation are all related.
- The DWR seeks to have sediment impacts evaluated and a plan for stream cleanup be a part of any future Water
Quality Certification approval to return "best usage" to these stream segments. Additionally, the DVVRrequests
that, as there is no 404 approval for culverts outside of the road network in question, that all unauthorized
culverts be removed and stream banks stabilized. Lastly, DVVR requests that all culverts to remain in place be
evaluated for compliance with the culvert installation requirements contained within the issued 401 Water

Quality Certification (and required by any future issued Water Quality Certification) in order to comply with the
requirements of 15A NCAC 02H .0500.
Email Correspondence from Henderson County, dated February 4L2014:
Thonli you ollfor meeting with the County o.Jetv weeks ago to disc.uss the Seven Falls prc)ject Az discussed, the
developer of Ore property.laded to con-)plete the bonded subdivision irifrostructure (roods, mioter lirws ondsem/er line) ond
tire County con only rise the funds rollec tedfrom irnprmlernent guarontee boncis tocmnnp/ete the /nhostructurehrrthe
recorded lots, Since it isun0ke/ythehunos will poyfur the con"p6et/onofu//1he/nf ostructurew//thinthebondedone4
the("ountyhosengogedthecourtsystexntopruv/de guidance nn how toproceed,
Recently theSuperiurCourt}udge overseeing �hbcosedirected the County to secure fh r/n costs for the co/np/et/onofthe
roudvvovronsbucbon. As port q/ this process, w/e knew m/eneeded to engage the regu/otoq/ogenr/estodiscuss
pernn/tbng this work os the prev/ousSeven Fulls perrn/ls have been revoked,
Bused on our cunversodonot our, nnoetiog,vueunderstand thot both the Division of0/mter Resources (E)N/R/ and th(,,
Corps o'f Engineers (L)SACE) will require submitta) of new perrnil opplicotions for the iml.-was ossociated with the roods it)
SevenFo/ls. Further our undeotond/ngfrono the /oco/DWR staff is thot the ƒm//ow//ngm////be required /n association with
o new pern7/topp//cot/un�
Conduct ostrvmmevoh,wionforu0streornson the bonded oreuon d the rerrc���� the origin al Seven FoN,
developrneril tracts.
-Prepareoreportodd(ess/ng how onyouta1onding 4O2conditiomvhocionsjor&heoig/no/SeuenFm8s
deme6opnnent tracts, including those outside uf the bonded areq will beaddressed,
Preporems/obilizot/onondresturobonp/onfor&hestteunnson1heorig/no/SeuenFo0oeve/oprnent tracts,
Uponof.)provo/ofthes{ob//irot/on and restor*8mnp/mnbyDNIR connp/eteo// work recorn/nended/n the plan,
VNh//e the Countv understonds MAIR's position related to the items above, the Cotinty has no leqol ciuthoritv to soend 1he
irnprove/nent auoronteefunosfuronycc1/x/t/esmther1honthm/nfrostructuremui6xed/n1hemri�/no//nnproverneot
!Guarantee Aoreennentond the /nooeyconon/vbesoent*n the bondedsubd/vis/on/ols Fur1heC the (.ounttl6osng
orcesrtothe ork(Ijno/ Seven FaVs tracts outside of the recordedsuboYuisi000s the Cuuntvdues not have /eoG/oulhoritK to
Uesposson the un-bunded troc1s nor the outhur/ �s,
To nnoke sure m/e ore correct,/nour de ur�os/�/on'�/eusenrov/deo/e�erto the [guntydesc�b/nq the
Ieqyirernents for o new o e//useut)6on/ng.t/esu9p/ennen/o/ actions described above. Any
/nfornnot/onDkKR can g)rovidc will 6everahe/o/ui/nunderstond/ng the re(4u/utoryrqqg/rennents,
P/eoseƒee/free �'o call /ne to discuss,
SurmhZonobon — Henderson[ountyCounse/
DWR ARO believes that all new applications need to meet 15A NCAC 02H .0500 rules and resolve 15A NCAC 02B .0211
(2) (Removal of Best Usage) and 15A NCAC 0213.0211 (3) f (in-stream sediment) issues before a new 401 water quality
certification h approved and issued.
ARO has had a similar situation regarding a failed Development in Rutherford County. Queens Gap Development had an
extensive permitting history that included approximately 3,58Oacres. The permits expired or had been revoked and no
longer applied to the project. A new permit application was submitted for a nationwide permit for a project called
Queens Gap Phase 1 which was approximately 61Oacres. This was the only area covered bva Performance Bond called
by Rutherford County.
During the 401 review process ARO requested the re-evaluation of streams impacted by previous NOVs and to provide a
sediment removal plan to address current sediment impacts including the neighboring property. A plan was provided
and approved in the application process.
Is ARO correct with its requirements for any new applications to provide the following for the Seven Falls site?
0 Evaluation of all stream impacts for the entire original project area.
• Resolve outstanding N0bon the entire project area.
• Submit restoration plan to address stream impacts/violations onthe entire project.
• Once approved, complete the work approved in the plan.

Additional background information:
Southern Environmental Law Firm Interpretation —DatedDecemker5, 2012 (file attached[
DWQ Memo: Request for Injunctive Relief — Dated February 26, 2010 (file attached)
Thanks, We are available to meet or conference call for further discussion. Karen, I did not copy any upper management
yet on this topic but will instead rely on your discretion to involve them at any point in this process.
Landon
G. Landon Davidson, P.G.
NCDENR - Dk/isionofVVaterResources
Water Quality Regional Operations Section
Regional Supervisor - Asheville Regional Office
2O9OU.S. Hwy. 7O
Swannunoa,N.C.2O778
ph.: 828-296-4500
fax: [phone]
email: [e-mail]
website:swwoowaterquaiityorg
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