20061147 Ver 1_Approval Letter_20060713

Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Alan W. Klimek, P.E. Director
Division of Water Quality
October 6, 2006
Paul P. Struhar
Banner Elk Vista Properties, L.L.C.
Post Offive Box 1685
Boone, NC 28607
Subject Property: Vistas at Banner Elk
Banner Elk, Avery County
DWQ Project # 06-1147
Avery County
Approval of 401 Water Quality Certification with Additional Conditions
Dear Mr. Philips:
You have our approval, in accordance with the attached conditions and those listed
below, to place fill within or otherwise impact 30 linear feet of streams for the purpose of
property development at the subject property, as described within your application
received by the N.C. Division of Water Quality (DWQ) on July 13, 2006, and modified
information received October 5, 2006. After reviewing your application, we have
decided that the impacts are covered by General Water Quality Certification Number(s)
3402 (GC3402). The Certification(s) allows you to use Nationwide Permit(s) 39 when
issued by the US Army Corps of Engineers (USACE). In addition, you should obtain or
otherwise comply with any other required federal, state or local permits before you go
ahead with your project including (but not limited to) Erosion and Sediment Control,
Non-discharge, stormwater, and buffer regulations. Also, 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 404 or CAMA Permit.
This approval is for the culverting activities described in your application. If you change
your project, you must notify us and you may be required to send us a new application.
If the property is sold, the new owner must be given a copy of this Certification and
approval letter and is thereby responsible for complying with all conditions. If total fills
for this project (now or in the future) exceed one acre of wetland or 150 linear feet of
stream, compensatory mitigation may be required as described in 15A NCAC 2H .0506
(h). This approval requires you to follow the conditions listed in the attached
certification and any additional conditions listed below.
The Additional Conditions of the Certification are:
401 Wetlands Certification Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone: [phone] / FAX [phone] / Internet: http://h2o.enr.state.nc.us/ncwetlands
One
NorthCarolina
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An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
Vistas at Banner Elk
Page 2 of 7
October 6, 2006
1. Impacts Approved
The following impacts are hereby approved as long as all of the other specific
and general conditions of this Certification (or Isolated Wetland Permit) are met.
No other impacts are approved including incidental impacts:
Amount
Approved Units Plan Location or Reference
UT to Whitehead Creek 50 Linear Feet New impacts (perennial)
UT to Whitehead Creek 195 linear feet New Impacts (ephemeral)
UT to Whitehead Creek -20 linear feet Culvert Removal
UT to Whitehead Creek -75 Linear Feet Culvert Removal
2. Erosion & Sediment Control Practices
Erosion and sediment control practices must be in full compliance with all
specifications governing the proper design, installation and operation and
maintenance of such Best Management Practices in order to protect surface
waters standards:
a. The erosion and sediment control measures for the project must be
designed, installed, operated, and maintained in accordance with the most
recent version of the North Carolina Sediment and Erosion Control Planning
and Design Manual.
b. The design, installation, operation, and maintenance of the sediment and
erosion control measures must be such that they equal, or exceed, the
requirements specified in the most recent version of the North Carolina
Sediment and Erosion Control Manual. The devices shall be maintained on
all construction sites, borrow sites, and waste pile (spoil) projects, including
contractor-owned or leased borrow pits associated with the project.
c. For borrow pit sites, the erosion and sediment control measures must be
designed, installed, operated, and maintained in accordance with the most
recent version of the North Carolina Surface Mining Manual.
d. The reclamation measures and implementation must comply with the
reclamation in accordance with the requirements of the Sedimentation
Pollution Control Act.
3. No Waste, Spoil, Solids, or Fill of Any Kind
No waste, spoil, solids, or fill of any kind shall occur in wetlands, waters, or riparian
areas beyond the footprint of the impacts depicted in the Pre-Construction
Notification. All construction activities, including the design, installation, operation,
and maintenance of sediment and erosion control Best Management Practices,
shall be performed so that no violations of state water quality standards, statutes,
or rules occur.
Vistas at Banner Elk
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October 6, 2006
4. No Sediment & Erosion Control Measures w/n Wetlands or Waters
Sediment and erosion control measures shall not be placed in wetlands or waters
to the maximum extent practicable. If placement of sediment and erosion control
devices in wetlands and waters is unavoidable, they shall be removed and the
natural grade restored within six months of the date that the Division of Land
Resources has released the project.
5. Certificate of Completion
Upon completion of all work approved within the 401 Water Quality Certification
or applicable Buffer Rules, and any subsequent modifications, the applicant is
required to return the attached certificate of completion to the 401/Wetlands Unit,
North Carolina Division of Water Quality, 1650 Mail Service Center, Raleigh, NC,
27699-1650.
6. Diffuse Flow
All constructed stormwater conveyance outlets shall be directed and maintained
as diffuse flow at non-erosive velocities through the protected stream buffers
such that it will not re-concentrate before discharging into a stream (intermittent
or perennial). If this is not possible, it may be necessary to provide stormwater
facilities that are considered to remove nitrogen. This may require additional
approval from this Office.
7. Protective Fencing
The outside buffer, wetland or water boundary and along the construction
corridor within these boundaries approved under this authorization shall be
clearly marked with orange warning fencing (or similar high visibility material) for
the areas that have been approved to infringe within the buffer, wetland or water
prior to any land disturbing activities.
8. Turbidity Standard
The turbidity standard of 10 NTUs (Nephelometric Turbidity Units) shall not be
exceeded as described in 15 A NCAC 2B. .0200. Appropriate sediment and
erosion control practices must be used to meet this standard. Continuous
monitoring by onsite, calibrated, continuous recording, equipment must be
performed both upstream and downstream of any instream work. The results of
this monitoring must be submitted along with the below required stability
monitoring. Additionally, should the results indicate a violation of the turbidity
standard, all work shall cease until such a point the measures are implemented
to protect surface waters form further violations.
I
Vistas at Banner Elk
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October 6, 2006
9. No Sediment and Erosion Control Measures in Wetlands
Sediment and erosion control measures shall not be placed in wetlands or waters
to the maximum extent practicable. If placement of sediment and erosion control
devices in wetlands and waters is unavoidable, they shall be removed and the
natural grade restored within six months of the date that the Division of Land
Resources or locally delegated program has released the project.
10. Construction Stormwater Permit NCG010000
Upon the approval of an Erosion and Sedimentation Control Plan issued by the
Division of Land Resources (DLR) or a DLR delegated local erosion and
sedimentation control program, an NPDES General stormwater permit
(NCG010000) administered by DWQ is automatically issued to the project. This
General Permit allows stormwater to be discharged during land disturbing
construction activities as stipulated by conditions in the permit. If your project is
covered by this permit [applicable to construction projects that disturb one (1) or
more acres], full compliance with permit conditions including the sedimentation
control plan, self-monitoring, record keeping and reporting requirements are
required. A copy of this permit and monitoring report forms may be found at
http://h2o. enr. state. nc. us/su/Forms Documents. htm.
11. Deed Restrictions
Deed restrictions or similar mechanisms shall be placed on all retained
jurisdictional wetlands, waters and protective buffers in order to assure
compliance for future wetland, water and buffer impact. These mechanisms shall
be put in place prior to impacting any wetlands, waters and/or buffers approved
for impact under this Certification Approval and Authorization Certificate.
12. Temporary Fills
All temporary fill and culverts shall be removed and the impacted area returned
to the original grade, including each stream's original cross sectional dimensions,
planform pattern, and longitudinal bed and bed profile after construction is
complete or within 6 months of the establishment of the crossing, which ever is
sooner, and the various sites shall be stabilized with natural woody vegetation
(except for the maintenance areas of permanent utility crossings) and restored to
prevent erosion. If the crossings are not completely removed and restored as
described above within the specified time above, additional written approval from
this Office must be obtained to modify this condition.
Vistas at Banner Elk
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October 6, 2006
13. Culvert Installation
Culverts required for this project shall be installed in such a manner that the
original stream profiles are not altered. Existing stream dimensions (including the
cross section dimensions, pattern, and longitudinal profile) must be maintained
above and below locations of each culvert. Culverts shall be designed and
installed to allow for aquatic life movement as well as to prevent head cutting of the
streams. If any of the existing pipes are or become perched, the appropriate
stream grade shall be re-established or, if the pipes installed in a perched manner,
the pipes shall be removed and re-installed correctly.
Culvert(s) shall not be installed in such a manner that will cause aggradation or
erosion of the stream up or down stream of the culvert(s). Existing stream
dimensions (including the cross section dimensions, pattern and longitudinal
profile) shall be maintained above and below locations of each culvert. Therefore,
you must provide plans with adequate details that indicate that the current stability
of the stream will be maintained or enhanced. You must receive written approval
from this Office for the above plans before the culvert(s) is installed. Culvert(s)
must be installed according to approved plans.
The establishment of native, woody vegetation and other soft stream bank
stabilization techniques must be used where practicable instead of rip rap or
other bank hardening methods. If rip-rap is necessary, it shall not be placed in
the stream bed, unless specifically approved by the Division of Water Quality.
14. Riparian Zone Replanting
Replanting of vegetation within disturbed areas located within 25 feet of the
streambank associated with any land disturbing activity, repair, replacement and/or
maintenance must be done in a manner consistant with the Guidelines for Riparian
Buffer Restoration immediately following construction. (Please see attached.)
15. Culverts that are less than 48 inches in diameter should be installed with 20% of the
diameter of the culvert placed below the level of the stream bottom to allow the
accumulation of stream bed materials and to facilitate aquatic life passage during
periods of low stream flow. Larger diameter culverts should be placed 1 foot below
the stream bottom. Culverts should be placed in the main flow channel (i.e.
thalweg). Partial burial of culverts in this manner also may require increasing their
size to accommodate flow requirements.
16. If concrete is used during construction (e.g., headwalls), a dry work area must be
maintained to prevent direct contact between curing concrete and stream water.
Water that inadvertently contacts live concrete should not be discharged to surface
waters due to the potential for water chemistry change and a fish kill.
Vistas at Banner Elk
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October 6, 2006
17. Rock, sand, or other materials should not be dredged from the stream channels
except in the immediate vicinity of the crossings. Instream dredging has severe
effects on aquatic life and disturbance of the natural form of the channel can cause
downstream erosion problems. The natural dimension, pattern, and profile of the
channels adjacent to the crossings should not be modified by widening or changing
their depths.
18. Sandbags, flexible pipe, or other diversion structures should be used to avoid
excavation in flowing water. Materials used for flow diversions should be removed
from the stream bed after completing the construction work. Any diversion channels
must be lined with fabric and/or rock.
19.Any riprap placed for inlet or outlet stabilization should be clean and limited to the
stream bank below the high water mark and vegetation should be used above. Rip
rap must not be placed in stream channels in a manner that obstructs fish passage.
20.All mechanized equipment operated near surface waters should be inspected and
maintained regularly to prevent contamination of stream waters from fuels,
lubricants, hydraulic fluids or other toxic materials.
21. Discharging hydroseed mixtures and washing out hydroseeders and other
equipment in or adjacent to surface waters is prohibited.
22.All jurisdictional waters on the site shall be inspected weekly for stability (longitudinal
profile, cross sectional dimension, and pattern) and a monthly report submitted to
the Asheville Regional Office within 15 days of the end of each month during the
term of construction on site.
Violations of any condition herein set forth may result in revocation of this Certification
and may result in criminal and/or civil penalties. The authorization to proceed with your
proposed impacts or to conduct impacts to waters as depicted in your application and
as authorized by this Certification, shall expire upon expiration of the 404 or CAMA
Permit.
If you do not accept any of the conditions of this Certification (associated with the
approved wetland or stream impacts), you may ask for an adjudicatory hearing. You
must act within 60 days of the date that you receive this letter. To ask for a hearing,
send a written petition, which conforms to Chapter 150B of the North Carolina General
Statutes to the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh,
N.C. 27699-6714. This certification and its conditions are final and binding unless you
ask for a hearing.
Vistas at Banner Elk
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October 6, 2006
This letter completes the review of the Division of Water Quality under Section 401 of
the Clean Water Act. If you have any questions, please contact Kevin Barnett in the
DWQ Asheville Regional Office at either Kevin. Barnett(a-ncmail.net or at 828-296-4657.
Sincerely,
Alan W. Klimek, P.E., Director
Division of Water Quality
AW Klkhb
Enclosures: GC 3402
Certificate of Completion
M. Dale Pennell, McGill Associates, P.A.
USACE Asheville Regulatory Field Office
DWQ 401 Central Office
Ron Linville, NC Wildlife Resources Commission
File Copy
Central Files
Filename: 06-1147.VistasatBannerElk. approval