20240063 Ver 1_Notice of Violation (NOV)_20230816

DocuSign Envelope ID: D5726073-5FC4-4504-B7D0-AD6B50B865CA
ROY COOPER
Governor
ELIZABETH S. BISER
Secretary
RICHARD E. ROGERS, JR.
Director
August 16, 2023
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Jose Rosado
11 Nantahala Terrace
Lake Santeelah, NC 28771
7022 2410 0003 1349 7847
NORTH CAROLINA
Environmental Quality
Maria Luisa Blanco Barquin
100 Andalusia Avenue, #605-6
Coral Gables, FL 33134
7022 2410 0003 1349 7854
Subject: NOTICE OF VIOLATION
and RECOMMENDATION FOR ENFORCEMENT
Franks Creek Road Site (PINS 568000000009171, 56800000000901, and
5670000018950)
NOV-2023-CV-0013
Failure to Secure 401 Water Quality Certification
Wetland Standards Violation
Stream Standard Violation —Conditions of Best Usage
Graham County
Required Response Date: September 15, 2023
Dear Mr. Rosado and Ms. Barquin:
On August 8, 2023, Andrew Moore from the Asheville Regional Office of the Division of Water
Resources (DWR) conducted a site inspection of the subject property. The inspection was
conducted in response to a complaint alleging excavation within Franks Creek (WS-III; Trout).
Contractor Darren Stewart was present at the time of the inspection.
During the site inspection, two recently constructed stream diversions consisting of soil fill were
observed within two separate unnamed tributaries (UTs) of Franks Creek. The diversions were
installed to provide flow to two ponds, one of which was constructed within a wetland. The
diversions resulted in a significant reduction in flow within the UTs below the diversions to their
confluence with Franks Creek. A recently installed culvert was installed on the westernmost UT
of Franks Creek to provide property access. As a result of the site inspection and file review, the
following violations were identified:
DffNorth Carolina Department of Environmental Quality I Division of Water Resources
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Asheville Regional Office 12090 U.S. Highway 70 I Swannanoa, North Carolina 28778
M828.296.4500
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DocuSign Envelope ID: D5726073-5FC4-4504-B7D0-AD6B50B865CA
August 16, 2023
Page 2 of 3
VIOLATIONS
I. Failure to Secure a 401 Water Quality Certification (WQC) — Title 15A NCAC 02H
.0500 requires water quality certifications pursuant to Section 401 of the Clean Water Act
whenever construction or operation of facilities will result in a discharge into
jurisdictional waters, including wetlands, as described in 33 CFR Part 323. A file review
confirmed that a 401 WQC has not been issued for the two stream diversions, the wetland
impact, or the culvert.
II. Wetland Standards Violation — 15A NCAC 02B .0231(c)
(c) The following standards shall be used to assure the maintenance or enhancement of
the existing uses of wetlands identified in Paragraph (b) of this Rule:
(1) Liquids, fill or other solids, or dissolved gases shall not be present in amounts that
may cause adverse impacts on existing wetland uses;
(6) Hydrological conditions necessary to support the biological and physical
characteristics naturally present in wetlands shall be protected to prevent detrimental
impacts on:
(A) Water currents, erosion or sedimentation patterns
(F) Water levels or elevations
(7) The populations of wetland flora and fauna shall be maintained to protect biological
integrity as defined in Rule .0202 of this Section.
III. Stream Standard Violation — Conditions of Best Usage - 15A NCAC 02B .0211 (1) and
(2). Title 15 NCAC 02B .0211 lists the fresh surface water quality standards for Class C
waters. Title 15A NCAC 02B .0211 (1) lists the best usage of Class C waters and all
freshwaters shall be classified to protect these uses at a minimum. These uses are listed
as aquatic life propagation, survival, and maintenance of biological integrity (including
fishing and fish); wildlife; secondary contact recreation as defined in Rule .0202 of this
Section; agriculture; and any other usage. Title 15A NCAC 02B .0211 (2), for Class C
waters, includes "The conditions of waters shall be such that waters are suitable for all
best uses specified in this Rule. Sources of water pollution that preclude any of these on
either a short-term or long-term basis shall be deemed to violate a water quality
standard;"
REQUIRED RESPONSE
Accordingly, you are directed to respond to this letter by September 15, 2023. Your response
should be sent to the attention of Andrew Moore at the footer address or
Andrew.W.Moore(c-r�,deq.nc.gov and should address the following:
1. Please explain when construction began at the site and why a 401 WQC was not secured
prior to the work.
2. If you wish for the unauthorized stream and wetland impacts to remain in place, you must
contact the US Army Corps of Engineers for information on the type(s) of permit

DocuSign Envelope ID: D5726073-5FC4-4504-B7D0-AD6B50B865CA
August 16, 2023
Page 3 of 3
required. Depending on the type of permit required, application for a 401 Water Quality
Certification to DWR will also be required.
If you do not intend to pursue after -the -fact permitting, you must submit a stream and
wetland restoration plan for review and approval. The plan must include the removal of
the fill and restoration of the stream channel and wetland, including restoring grade and
re-establishing wetland vegetation.
Please include in your response a detailed schedule with dates explaining when the
restoration will be accomplished or, if you plan to seek a permit for the permittable
impacts, when an application will be submitted.
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 Andrew.W.Moorekdeq.nc. og_v.
Sincerely,
DocuSigned by:
7E617A38285848C...
G. Landon Davidson, P.G, Regional Supervisor
Water Quality Regional Operations
Asheville Regional Office
ec: Brooke Davis — US Army Corps of Engineers
Stan Aiken — Division of Energy, Mineral and Land Resources
Andrea Leslie — North Carolina Wildlife Resources Commission
DWR 401 & Buffer Permitting Unit file