20231675 Ver 1_Approval Letter_20240401

ROY COOPER
Governor
ELIZABETH S. BISER
Secretary
RICHARD E. ROGERS, JR.
Director
NORTH CAROLINA
Environmental Quality
April 1, 2024
DWR # 20231675
Ashe County
USFWS Asheville Ecological Services
Attn: Laura Fogo
160 Zillicoa Street, Suite B
Asheville, NC 28801
Delivered via email to: [e-mail]
Subject: Approval of Individual 401 Water Quality Certification
UT to Three Top Creek Restoration Project
USACE Action ID. No. SAW-2023-02372
Dear Ms. Fogo:
Attached hereto is a copy of Certification No. WQC006647 issued to Laura Fogo and USFWS Asheville
Ecological Services, dated April 1, 2024. This approval is for the purpose and design described in your
application. The plans and specifications for this project are incorporated by reference as part of this
Water Quality Certification. If you change your project, you must notify the Division and you may be
required to submit a new application package with the appropriate fee. If the property is sold, the new
owner must be given a copy of this Certification and is responsible for complying with all conditions [15A
NCAC 02H .0507(d)(2)].
This Water Quality Certification does not relieve the permittee of the responsibility to obtain all other
required Federal, State, or Local approvals before proceeding with the project, including those required
by, but not limited to, Sediment and Erosion Control, Non -Discharge, Water Supply Watershed, and
Trout Buffer regulations.
This Water Quality Certification neither grants nor affirms any property right, license, or privilege in any
lands or waters, or any right of use in any waters. This Water Quality Certification does not authorize
any person to interfere with the riparian rights, littoral rights, or water use rights of any other person
and does not create any prescriptive right or any right of priority regarding any usage of water. This
Water Quality Certification shall not be interposed as a defense in any action respecting the
determination of riparian or littoral rights or other rights to water use. No consumptive user is deemed
D � ��� North Carolina Department of Environmental Quality I Division of Water Resources
Winston-Salem Regional Office 1 450 W. Hanes Mill Rd, Suite 300 1 Winston-Salem, North Carolina 27105
NORTH CAROLINA
336.776.9800

UT to Three Top Creek Restoration Project
DWR #20231675
Individual Certification #WQC006647
Page 2 of 9
by virtue of this Water Quality Certification to possess any prescriptive or other right of priority with
respect to any other consumptive user.
Upon the presentation of proper credentials, the Division may inspect the property.
This Water Quality Certification shall expire on the same day as the expiration date of the corresponding
Section 404 Permit. The conditions shall remain in effect for the life of the project, regardless of the
expiration date of this Water Quality Certification.
Non-compliance with or violation of the conditions herein set forth may result in revocation of this
Water Quality Certification for the project and may also result in criminal and/or civil penalties.
If you are unable to comply with any of the conditions of this Water Quality Certification you must notify
the Winston-Salem Regional Office within 24 hours (or the next business day if a weekend or holiday)
from the time the permittee becomes aware of the circumstances.
The permittee shall report to the Winston-Salem Regional Office any noncompliance with, and/or any
violation of, stream or wetland standards [15A NCAC 0213.0200], including but not limited to sediment
impacts to streams or wetlands. Information shall be provided orally within 24 hours (or the next
business day if a weekend or holiday) from the time the permittee became aware of the non-compliance
circumstances.
This approval and its conditions are final and binding unless contested [G.S. 143-215.5].
This Certification can be contested as provided in Chapter 150B of the North Carolina General Statutes by
filing a Petition for a Contested Case Hearing (Petition) with the North Carolina Office of Administrative
Hearings (OAH) within sixty (60) calendar days. Requirements for filing a Petition are set forth in Chapter
150B of the North Carolina General Statutes and Title 26 of the North Carolina Administrative Code.
Additional information regarding requirements for filing a Petition and Petition forms may be accessed at
http://www.ncoah.com/ or by calling the OAH Clerk's Office at [phone].
A party filing a Petition must serve a copy of the Petition on:
William F. Lane, General Counsel
Department of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601
If the party filing the Petition is not the permittee, then the party must also serve the recipient of the
Certification in accordance with N.C.G.S 15013-23(a).
This letter completes the Division's review under Section 401 of the Clean Water Act and 15A NCAC 02H
.0500. Please contact Seren Homer at 336-776-9698 or [e-mail] if you have any
questions or concerns.
t� North Carolina Department of Environmental Quality I Division of Water Resources
D � Winston-Salem Regional Office 1 450 W. Hanes Mill Rd, Suite 300 1 Winston-Salem, North Carolina 27105
NoalHCaaD_NA 336.776.9800

Electronic cc
UT to Three Top Creek Restoration Project
DWR #20231675
Individual Certification #WQC006647
Page 3 of 9
Sincerely,
DocuSigned by:
OD2D3CE3F187456...
Jennifer F. Graznak
Assistant Regional Supervisor
Water Quality Regional Operations Section
Division of Water Resources, NCDEQ— WSRO
Melanie Carter, Brushy Fork Engineering
Ronald & Shari Rognstad (Property Owner)
Brian Parr, Nature Conservancy (Property Owner)
Amanda Jones, USACE Asheville Regulatory Field Office
Andrea Leslie, NCWRC
Amin Davis, DWR Water Resources Development Grant Program
DWR 401 & Buffer Permitting Branch Electronic File
D � ��� North Carolina Department of Environmental Quality I Division of Water Resources
Winston-Salem Regional Office 1 450 W. Hanes Mill Rd, Suite 300 1 Winston-Salem, North Carolina 27105
NOR1H CARou Na 336.776.9800

UT to Three Top Creek Restoration Project
DWR #20231675
Individual Certification #WQC006647
Page 4 of 9
NORTH CAROLINA 401 WATER QUALITY CERTIFICATION
CERTIFICATION #WQC006647 is issued in conformity with the requirements of Section 401, Public Laws
92-500 and 95-217 of the United States and subject to North Carolina's Regulations in 15 NCAC 02H .0500
and 15A NCAC 0213.0200, within the Reasonable Period of Time pursuant to 40 CFR Part 121.6, to Laura
Fogo and USFWS Asheville Ecological Services, who have authorization for the impacts listed below, as
described within the application received by the N.C. Division of Water Resources (DWR or Division) on
January 8, 2024 and subsequent information received on January 25, 2024, March 11, 2024, March 22,
2024, March 27, 2024, and March 29, 2024, and by Public Notice issued by the Division on December 12,
2023.
The State of North Carolina certifies that this activity will comply with water quality requirements and
the applicable portions of Sections 301, 302, 303, 306, 307 of the Public Laws 92-500 and PL 95-217 if
conducted in accordance with the application, the supporting documentation, and conditions
hereinafter set forth.
The following impacts are hereby approved. No other impacts are approved, including incidental
impacts. [15A NCAC 02H .0506(b)]
Site / Feature
Amount Approved
Amount
Mitigation
ID
Type of Impact
Permanent
Approved
Amount
Temporary
Required
Perennial Streams
S1 /
Restoration /
UT to Three
Stabilization
1,975 linear feet
0 linear feet
0 credits
Top Creek
Totals:
1,9751inear feet
0 linear feet
0 credits
This approval requires you to follow the conditions listed in the certification below.
CONDITIONS OF CERTIFICATION [15A NCAC 02H .0507(c)]:
1. Visual monitoring of the stabilization project shall be conducted at a minimum of quarterly for the first
year or two bankfull events (whichever is longer), and then annually until the site is stable (particularly
after storm events) and vegetation is successful. Any failures of structures, stream banks, or
vegetation may require future repairs or replacement, which requires coordination with the Winston
Salem Regional Office to ensure the stability and water quality of the stream and downstream waters.
Citation: 15A NCAC 02H .0506(b)(1) and (2)
2. The project is located in waters classified as Trout Waters. In -stream activities should be conducted
outside of the October 15 to April 15 trout moratorium to minimize impacts to trout reproduction.
When flows are diverted from the channel, any stranded trout should be rescued from the affected
reach.
Citation: 15A NCAC 02H .0506(b), 15A NCAC 02H .0507(c), 15A NCAC 048 .0125
3. In -channel work should be accomplished as quickly as possible to minimize disturbance. Disturbed
areas shall be stabilized (i.e., seeded, mulched, and/or matted) at the end of each working day if
t� North Carolina Department of Environmental Quality I Division of Water Resources
Winston-Salem Regional Office 1 450 W. Hanes Mill Rd, Suite 300 1 Winston-Salem, North Carolina 27105
""""'r��'O'"a 336.776.9800

UT to Three Top Creek Restoration Project
DWR #20231675
Individual Certification #WQC006647
Page 5 of 9
possible to ensure downstream water quality standards are maintained throughout construction.
Replanting should be conducted using temporary seed mix followed by native perennial plants.
Citation: 15A NCAC 02H .0506(b)(1) and (2)
4. The permittee shall provide on -site supervision of stability work including, but not limited to bank re -
sloping, culvert installation, in -stream structure placement, and riparian zone re-establishment, by an
appropriately trained individual.
Citation: 15A NCAC 02H .0506(b)(1) and (2)
5. The Permittee shall take all reasonable measures to construct in -stream structures while keeping
heavy equipment out of the stream channel. Only equipment that is being used to install structures
may enter the stream channel. This exemption does not authorize the use of equipment within the
stream channel for any other purpose such as a haul road, access, streambank reshaping, etc.
Equipment shall access the stream at the closest point possible to reduce impacts to the stream bed.
The majority of stream flow shall be diverted around work areas along the stream banks such as toe
protection and bank sloping. All reasonable steps must be taken to limit the amount of disturbance in
the channel and to therefore reduce downstream turbidity during construction. This exemption does
not relieve the Permittee of meeting stream standards as indicated in 15A NCAC 02B.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 028 .0200
6. Erosion control matting that incorporates plastic mesh and/or plastic twine shall not be used along
streambanks or within wetlands.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
7. In -stream structures installed to mimic natural channel geomorphology such as cross -vanes, sills, step -
pool structures, etc. shall be designed and installed in such a manner that allow for continued aquatic
life movement.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
8. The permittee shall report to the DWR Winston-Salem Regional Office any noncompliance with,
and/or any violation of, stream or wetland standards [15A NCAC 02B .0200], including but not
limited to sediment impacts to streams or wetlands. Information shall be provided orally within 24
hours (or the next business day if a weekend or holiday) from the time the permittee became aware
of the non-compliance circumstances.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
9. No waste, spoil, solids, or fill of any kind shall occur in wetlands or waters beyond the footprint of
the approved impacts (including temporary impacts).
Citation: 15A NCAC 02H .0506; 15A NCAC 02H .0507(c)
10. When applicable, all construction activities shall be performed and maintained in full compliance
with G.S. Chapter 113A Article 4 (Sediment and Pollution Control Act of 1973). Regardless of
applicability of the Sediment and Pollution Control Act, all projects shall incorporate appropriate
Best Management Practices for the control of sediment and erosion so that no violations of state
water quality standards, statutes, or rules occur.
t� North Carolina Department of Environmental Quality I Division of Water Resources
Winston-Salem Regional Office 1 450 W. Hanes Mill Rd, Suite 300 1 Winston-Salem, North Carolina 27105
Nnhricaao.iw 336.776.9800

UT to Three Top Creek Restoration Project
DWR #20231675
Individual Certification #WQC006647
Page 6 of 9
Design, installation, operation, and maintenance of all sediment and erosion control measures shall
be equal to or exceed the requirements specified in the most recent version of the North Carolina
Sediment and Erosion Control Manual, or for linear transportation projects, the North Caroline
Department of Transportation Sediment and Erosion Control Manual.
All devices shall be maintained on all construction sites, borrow sites, and waste pile (spoil) sites,
including contractor -owned or leased borrow pits associated with the project. Sufficient materials
required for stabilization and/or repair of erosion control measures and stormwater routing and
treatment shall be on site at all times.
For borrow pit sites, the erosion and sediment control measures shall be designed, installed,
operated, and maintained in accordance with the most recent version of the North Carolina Surface
Mining Manual. Reclamation measures and implementation shall comply with the reclamation in
accordance with the requirements of the Sedimentation Pollution Control Act and the Mining Act of
1971.
If the project occurs in waters or watersheds classified as Primary Nursery Areas (PNAs), SA, WS-I,
WS-II, High Quality Waters (HQW), or Outstanding Resource Waters (ORW), then the sedimentation
and erosion control designs shall comply with the requirements set forth in 15A NCAC 04B .0124,
Design Standards in Sensitive Watersheds.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCACO28 .0200; 15A NCAC 02B
.0231
11. Sediment and erosion control measures shall not be installed in wetland or waters except within the
footprint of temporary or permanent impacts otherwise authorized by this Certification. If placed
within authorized impact areas, then placement of such measures shall not be conducted in a
manner that results in dis-equilibrium of any wetlands, streambeds, or streambanks. Any silt fence
installed within wetlands shall be removed from wetlands and the natural grade restored within two
(2) months of the date that DEMLR or locally delegated program has released the specific area
within the project to ensure wetland standards are maintained upon completion of the project.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 028 .0200; 15A NCAC 02B
.0231
12. If the project is covered by NPDES Construction Stormwater Permit Number NCGO10000 or NPDES
Construction Stormwater Permit Number NCG250000, full compliance with permit conditions
including the erosion & sedimentation control plan, inspections and maintenance, self -monitoring,
record keeping and reporting requirements is required.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 028 .0200; 15A NCAC 02B
.0231
13. Culverts shall be designed and installed in such a manner that the original stream profiles are not
altered and allow for aquatic life movement during low flows. The dimension, pattern, and profile
of the stream above and below a pipe or culvert shall not be modified by widening the stream
channel or by reducing the depth of the stream in connection with the construction activity. The
width, height, and gradient of a proposed culvert shall be such as to pass the average historical low
flow and spring flow without adversely altering flow velocity. If the width of the culvert is wider than
the stream channel, the culvert shall include multiple boxes/pipes, baffles, benches and/or sills to
maintain the natural width of the stream channel. If multiple culverts/pipes/barrels are used, low
t� North Carolina Department of Environmental Quality I Division of Water Resources
Winston-Salem Regional Office 1 450 W. Hanes Mill Rd, Suite 300 1 Winston-Salem, North Carolina 27105
Nnhricaao.iw 336.776.9800

UT to Three Top Creek Restoration Project
DWR #20231675
Individual Certification #WQC006647
Page 7 of 9
flows shall be accommodated in one culvert/pipe and additional culverts/pipes shall be installed
such that they receive only flows above bankfull.
Placement of culverts and other structures in streams shall be below the elevation of the streambed
by one foot for all culverts with a diameter greater than 48 inches, and 20% of the culvert diameter
for culverts having a diameter less than or equal to 48 inches, to allow low flow passage of water
and aquatic life. If the culvert outlet is submerged within a pool or scour hole and designed to
provide for aquatic passage, then culvert burial into the streambed is not required.
For structures less than 72" in diameter/width, and topographic constraints indicate culvert slopes
of greater than 2.5% culvert burial is not required, provided that all alternative options for flattening
the slope have been investigated and aquatic life movement/connectivity has been provided when
possible (e.g. rock ladders, cross -vanes, sills, baffles etc.). Notification, including supporting
documentation to include a location map of the culvert, culvert profile drawings, and slope
calculations, shall be provided to DWR 30 calendar days prior to the installation of the culvert.
When bedrock is present in culvert locations, culvert burial is not required, provided that there is
sufficient documentation of the presence of bedrock. Notification, including supporting
documentation such as a location map of the culvert, geotechnical reports, photographs, etc. shall
be provided to DWR a minimum of 30 calendar days prior to the installation of the culvert. If
bedrock is discovered during construction, then DWR shall be notified by phone or email within 24
hours of discovery.
Installation of culverts in wetlands shall ensure continuity of water movement and be designed to
adequately accommodate high water or flood conditions. When roadways, causeways, or other fill
projects are constructed across FEMA-designated floodways or wetlands, openings such as culverts
or bridges shall be provided to maintain the natural hydrology of the system as well as prevent
constriction of the floodway that may result in destabilization of streams or wetlands.
The establishment of native woody vegetation and other soft stream bank stabilization techniques
shall be used where practicable instead of rip -rap or other bank hardening methods.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
14. Application of fertilizer to establish planted/seeded vegetation within disturbed riparian areas
and/or wetlands shall be conducted at agronomic rates and shall comply with all other Federal,
State and Local regulations. Fertilizer application shall be accomplished in a manner that minimizes
the risk of contact between the fertilizer and surface waters.
Citation: 15A 02H .0506(b), 15A NCAC 02H .0507(c), 15A NCAC 02B .0200, 15A NCAC 02B .0231
15. If concrete is used during construction, then all necessary measures shall be taken to prevent direct
contact between uncured or curing concrete and waters of the state. Water that inadvertently
contacts uncured concrete shall not be discharged to waters of the state.
Citation: 15A 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 028 .0200; 15A NCAC 028 .0231
16. All proposed and approved temporary fill and culverts shall be removed and the impacted area shall
be returned to natural conditions within 60 calendar days after the temporary impact is no longer
necessary. The impacted areas shall be restored to original grade, including each stream's original
t� North Carolina Department of Environmental Quality I Division of Water Resources
Winston-Salem Regional Office 1 450 W. Hanes Mill Rd, Suite 300 1 Winston-Salem, North Carolina 27105
Noa1H raao�iNa 336.776.9800

UT to Three Top Creek Restoration Project
DWR #20231675
Individual Certification #WQC006647
Page 8 of 9
cross -sectional dimensions, planform pattern, and longitudinal bed profile. All temporarily impacted
sites shall be restored and stabilized with native vegetation.
Citation: 15A NCAC 02H.0506(b); 15A NCAC 02H .0507(c)
17. All proposed and approved temporary pipes/culverts/rip-rap pads etc. in streams or wetlands shall
be installed as outlined in the most recent edition of the North Carolina Sediment and Erosion
Control Planning and Design Manual or the North Carolina Surface Mining Manual or the North
Carolina Department of Transportation Best Management Practices for Construction and
Maintenance Activities so as not to restrict stream flow or cause dis-equilibrium during use of this
Certification.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
18. Any rip -rap required for proper culvert placement, stream stabilization, or restoration of temporarily
disturbed areas shall be restricted to the area directly impacted by the approved construction
activity. All rip -rap shall be placed such that the original streambed elevation and streambank
contours are restored and maintained and shall consist of clean rock or masonry material free of
debris or toxic pollutants. Placement of rip -rap or other approved materials shall not result in de-
stabilization of the stream bed or banks upstream or downstream of the area or be installed in a
manner that precludes aquatic life passage.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
19. Any rip -rap used for stream or shoreline stabilization shall be of a size and density to prevent
movement by wave, current action, or stream flows, and shall consist of clean rock or masonry
material free of debris or toxic pollutants. Rip -rap shall not be installed in the streambed except in
specific areas required for velocity control and to ensure structural integrity of bank stabilization
measures.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0201
20. All mechanized equipment operated near surface waters shall be inspected and maintained
regularly to prevent contamination of surface waters from fuels, lubricants, hydraulic fluids, or other
toxic materials. Construction shall be staged in order to minimize the exposure of equipment to
surface waters to the maximum extent practicable. Fueling, lubrication, and general equipment
maintenance shall be performed in a manner to prevent, to the maximum extent practicable,
contamination of surface waters by fuels and oils.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0200; 15A NCAC 02B
.0231
21. Heavy equipment working in wetlands shall be placed on mats or other measures shall be taken to
minimize soil disturbance and compaction.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c); 15A NCAC 02B .0231
22. In accordance with 143-215.85(b), the permittee shall report any petroleum spill of 25 gallons or
more; any spill regardless of amount that causes a sheen on surface waters; any petroleum spill
regardless of amount occurring within 100 feet of surface waters; and any petroleum spill less than
25 gallons that cannot be cleaned up within 24 hours.
t� North Carolina Department of Environmental Quality I Division of Water Resources
Winston-Salem Regional Office 1 450 W. Hanes Mill Rd, Suite 300 1 Winston-Salem, North Carolina 27105
Nnhricaao.iw 336.776.9800

UT to Three Top Creek Restoration Project
DWR #20231675
Individual Certification #WQC006647
Page 9 of 9
Citation: 15A NCAC 02H .0507(c); N.C.G.S 143-215.85(b)
23. The permittee and their authorized agents shall conduct all activities in a manner consistent with
State water quality standards (including any requirements resulting from compliance with §303(d)
of the Clean Water Act), and any other appropriate requirements of State and Federal Law.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
24. The permittee shall require its contractors and/or agents to comply with the terms and conditions of
this certification in the construction and maintenance of this project, and shall provide each of its
contractors and/or agents associated with the construction or maintenance of this project with a
copy of this Water Quality Certification. A copy of this Water Quality Certification shall be available
at the project site during the construction and maintenance of this project.
Citation: 15A NCAC 02H .0506(b); 15A NCAC 02H .0507(c)
This approval to proceed with your proposed impacts or to conduct impacts to waters as depicted in
your application shall expire upon expiration of the Section 404 Permit. The conditions in effect on the
date of issuance shall remain in effect for the life of the project, regardless of the expiration date of this
Certification [15A NCAC 02H .0507(c)].
This, the 15T day of April 2024
DocuSigned by:
OD2D3CE3F187456...
Jennifer F. Graznak
Assistant Regional Supervisor
Water Quality Regional Operations Section
Division of Water Resources, NCDEQ— WSRO
D � ��� North Carolina Department of Environmental Quality I Division of Water Resources
Winston-Salem Regional Office 1 450 W. Hanes Mill Rd, Suite 300 1 Winston-Salem, North Carolina 27105
NOR1H CARou Na 336.776.9800