20010635 Ver 1_More Info Received_20030206

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ROY COOPER
Anorney General
Ramona Cunningham O'Bryant, Esq.
Smith Moore L.L.P.
P.O. Box 21927
Greensboro NC 27420
~epnE-tment of Justiee
Suite 300
124 College Street
Asheville, NC 28801
3 February 2003
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Western Office
Phone: [phone]
Fax: [phone]
By facsimile transmission and first-class mail
Fax No. 336-378-5400
RE: For Settlement Purposes Only
Mountain Air Development Corp. et al. v. DENR, Division of Water Quality
OAH File No. 02 EHR 1768
(401 Certification 3390)
Dear Mona:
The staff of the Water Quality Certification Program has reviewed your letter of 17 September 2002
and would offer the following comments in response to your client's concerns. As you will note, the
respondent is willing to make certain amendments for purposes of clarification, but cannot agree to make
other requested changes. The concerns outlined in your letter are addressed seratirn below.
1. Third Paragraph. The agency would be willing to add the following language to this
paragraph: "If any plan revisions from the approved site plan result in a change in stream or wetland impact
or an increase in impervious surfaces, the DWQ must be notified in writing and a new application for 401
Certification may be required."
2. Condition 1(a). The agency believes that the language of the original condition is necessary
to adequately protect water quality standards in these waters and, therefore, cannot agree to make the
requested change to the condition.
3. Condition 1(b). The agency believes that the language of the original condition is necessary
to adequately protect water quality standards in these waters and, therefore, cannot agree to make the
requested change to the condition. The Environmental Management Commission, in making its Final
Decision in the consolidated contested cases of Burt et al. v. DENR and Highlands Cove LLC (99 EHR
0980), Whiteside Estates, Inc. et al. v. DENR and Highlands Cove LLC (99 EHR 0989), and Seals v. DENR
and Highlands Cove, LLC (99 EHR 1084), indicated that, for purposes of the 401 certification at issue in
those cases, adherence to best management practices and compliance with the numerical limits were both
required by the rule establishing the water quality standard for turbidity. 15A N.C.A.C.2B .0211(3)(k). In
the present matter, consistent with the Commission's decision in the Highlands Cove matter, the agency is
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An Equal Opportunity /Affirmative Action Employer ~N

Ramona Cunningham O'Bryant, Esq.
3 February 2003
Page 2
of the opinion that best management practices must be adhered at a minimum, and the relevant turbidity
standard of 10 NTU's must be met at ali times.
4. Condition 1Lb1(i)(A). The agency believes that the language of the original condition is
necessary to adequately protect water quality standards in these waters and, therefore, cannot agree to make
the requested change to the condition.
5. Condition 1(b~(iii). The agency would be willing to add the following phrase at the
conclusion of this condition: "...within 24 hours of the completion of the grading." We also propose to
change the word "tapping" to "tacking" (i.e., securing the erosion control matting to the ground with tacks).
6. Condition 1(b)(iv~. The agency would be willing to add the following phrase to the 401
Certification to clarify its original intent: "...within 24 hours of the completion of the grading."
7. Condition 1(b)(v). The agency believes that the language of the original condition is
necessary to adequately protect water quality standards in these waters and, therefore, cannot agree to make
any changes to the condition.
8. Condition 1(b)(vi). The agency would be willing to add the following language to this
condition: "When any material is added to a stockpile, it must be covered or stabilized within 48 hours."
9. Condition 1(b (vii). The agency would be willing to add the following language to this
condition: "Materials required for stabilization of each phase shall be on site prior to the time that such
materials are needed."
10. Condition 1(b)(ix). The agency believes that the language of the original condition is
required to adequately protect water quality standards in these waters and, therefore, cannot agree to make
any changes to the condition.
11. Condition 2. The agency believes that the language of the original condition is required to
adequately protect water quality standards in these waters and, therefore, cannot agree to make any changes
to the condition. It is the agency's position that advance notification ofDWQ site inspection is inappropriate.
However, it has no objection to allowing your client to split samples with DWQ's representatives at the time
of sampling.
12. Condition 5. The agency believes that the language of the original condition is necessary
to adequately protect water quality standards in these waters and, therefore, cannot agree to make any
changes to the condition. The stormwater plan that has been submitted is preliminary. A final plan must be
approved by DWQ before stream and wetland impacts can occur.
13. Condition 9. The agency would be willing to modify this condition to add the following
language: "...or as otherwise approved by DWQ in writing after review and comment by the NC Wildlife
Resources Commission, to protect...".
14. Condition 10. The Certificate of Completion is hereby attached.

Ramona Cunningham O'Bryant, Esq.
3 February 2003
Page 3
15. Next to Last Paragraph. The agency would be willing to modify this condition to read as
follows: "Violations of any condition herein set forth may result in revocation of this Certification and may
result in criminal and/or civil penalties."
Further, although not included in your letter of 17 September 2003, the agency is aware of your
request that the existing Certification, issued to William A. Banks, Mountain Air Development Company,
be reissued to Randy Banks, Mountain Air Development Company. However both the Public Notice
distributed by the US Army Corps of Engineers and the application submitted directly to DWQ by your client
list William Banks, Mountain Air Development Company as the applicant. The agency will need additional
information supporting this request.
In addition, it is the respondent's understanding that your client may request a modification to the
application to allow for a water line and intake in the Cane River, in order to provide water for the golf
course. Please clarify this situation and indicate why this issue was not addressed in the application for the
subject certification. As recited therein, such is subject to revocation if "...information contained in the
application or presented in support thereof is incorrect...".
Finally, as you have requested, a copy of a 401 Certification issued to Mr. Jim Anthony, The Cliffs
At Walnut Cove LLC, is attached. Please note that the project will be proceeding under Nationwide Permit
Number 39, as opposed to an individual certification, and that the waters at issue in that matter are not
designated trout waters.
If you have any questions regarding the foregoing, please call me.
Sincerely,
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Sueanna P. Sumpter
Assistant Attorney General
/SPS
Enclosure
xc: (by first-class mail or courier)
John Dorney
Forrest R. Westall