20081342 Ver 1_Approval Letter_20081215

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Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Coleen H. Sullins, Director
Division of Water Quality
December 15, 2008
Carlton Midyette
8310 Bandford Way
Raleigh, NC 27615
Re: Franklin County Pond, Franklin County
DWQ 420081342; USACE Action ID. No. 200802598
Ut to Cedar Creek [030301, 28-29-(2), C, NSW]
APPROVAL of 401 Water Quality Certification with Additional Conditions
Dear Mr. Midyette:
Attached hereto is a copy of Certification No. 3773 issued to Mr. Carlton Midyette, dated
December 15, 2008. In addition, you should get any other federal, state or local permits before
you go ahead with your project including (but not limited to) Solid Waste, Sediment and Erosion
Control, Stormwater, Dam Safety, Non-discharge and Water Supply Watershed regulations.
This letter shall also act as your approved Authorization Certificate for impacts to the protected
riparian buffers per 15A NCAC 2B .0259.
If we can be of further assistance, do not hesitate to contact us.
Sin r ly
oleen H. Sullins
CHS/cbk/ijm
Attachments: Certificate of Completion
Predictability Study Protocol for Sampling Reference Impoundments
cc: Becky Fox, EPA Region 4, 1307 Firefly Road, Whittier, NC 28789
U.S. Army Corps of Engineers, Raleigh Regulatory Field Office, Wilmington District
Lauren Witherspoon, DWQ Raleigh Regional Office
DLR Raleigh Regional Office
File Copy
Matt Matthews, DWQ Wetlands and Stormwater Branch
Kevin Martin, S&EC, P.A., 11010 Raven Ridge Road, Raleigh, NC 27614
Filename: 081342FranklinCountyPond(Fran Win)401_IC
401 Oversight/Express Review Permits Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone: [phone] / FAX [phone] / Internet: htta://h2o.enr.state.nc.us/nmetlands
Ne
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Nturally
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
Mr. Carlton Midyette
Page 2 of 2
December 15, 2008
NORTH CAROLINA 401 WATER QUALITY CERTIFICATION
THIS CERTIFICATION is issued in conformity with the requirements of Section 401 Public
Laws 92-500 and 95-217 of the United States and subject to the North Carolina Division of Water
Quality (DWQ) Regulations in 15 NCAC 2H, Section.0500 to Mr. Carlton Midyette to fill or
otherwise impact 0.3122 acres of 404/wetland (0.012 acres for dam fill and 0.310 flooding), 2,165
linear feet of perennial stream (128 linear feet perennial stream fill for dam, and 2,017 linear feet
perennial stream flooding), flood 262,949 square feet of Zone 1 Tar-Pamlico River basin protected
riparian buffers and 175,300 square feet of Zone 2 Tar-Pamlico River basin protected riparian
buffers in the Tar-Pamlico River Basin, and impact 480 square feet of Zone 1 Tar-Pamlico River
basin protected riparian buffers and 320 square feet of Zone 2 Tar-Pamlico River basin protected
riparian buffers in the Tar-Pamlico River Basin post impoundment construction to install two pond
8-foot wide pond access trails, to construct a recreational impoundment at the site. The site is
located between Gooseberry Lane and N. Pastures Trail, off Cedar Creek Road, near Franklinton,
Franklin County, North Carolina, pursuant to an undated and unsigned application (received by the
DWQ on September 2, 2008, and Public Notice issued by the U.S. Army Corps of Engineers on .
September 17, 2008 (received by the DWQ on September 17, 2008), and by additional information
received on September 18, 2008, and October 23, 2008.
The application and supporting documentation provides adequate assurance that the proposed
work will not result in a violation of applicable Water Quality Standards and discharge
guidelines. Therefore, the State of North Carolina certifies that this activity will not violate the
applicable portions of Sections 301, 302, 303, 306, 307 of PL 92-500 and PL 95-217 if
conducted in accordance with the application, the supporting documentation, and conditions
hereinafter set forth.
This approval is only valid for the purpose and design submitted in the application materials and
as described in the Public Notice. If the project is changed, prior to notification a new
application for a new Certification is required. If the property is sold, the new owner must be
given a copy of the Certification and approval letter and is thereby responsible for complying
with all conditions of this Certification. Any new owner must notify the Division and request the
Certification be issued in their name. Should wetland or stream fill be requested in the future,
additional compensatory mitigation may be required as described in 15A NCAC 2H .0506 (h) (6)
and (7). 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 shall be notified in writing and a new
application for 401 Certification may be required. For this approval to be valid, compliance with
the conditions listed below is required. This letter shall also act as your approved Authorization
Certificate for impacts to the protected riparian buffers per 15A NCAC 2B .0259.
Conditions of Certification:
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:
Mr. Carlton Midyette
Page 3 of 3
December 15, 2008
Type of Impact Amount Approved nits Plan Location or Reference
404/Wetland 0.3122 [(acres) 0.012 acres for dam fill and 0.310 Application materials and
flooding] USACE Public Notice
Stream - perennial 2,165 [(linear feet) 128 linear feet perennial stream Application materials and
fill for dam, and 2,017 linear feet perennial stream USACE Public Notice
flooding]
Buffers Zone 1- Pre- 262,949 (square ft.) Application materials and
Impoundment USACE Public Notice
Buffers Zone 2 - Pre- 175,300 (square ft.) Application materials and
Impoundment USACE Public Notice
Buffers Zone 1 - 480 (square ft.) Application materials and
Post-Impoundment USACE Public Notice
Buffers Zone 2 - 320 (square ft.) Application materials and
Post-Impoundment USACE Public Notice
Sediment and Erosion Control:
2. 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. Sufficient materials required for stabilization and/or repair of erosion control
measures and stormwater routing and treatment shall be on site at all times.
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 404/401 Permit Application. 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;
Sediment and erosion control measures shall not be placed in wetlands or waters without
prior approval from the Division. If placement of sediment and erosion control devices in
wetlands and waters is unavoidable, design and placement of temporary erosion control
measures shall not be conducted in a manner that may result in dis-equilibrium of wetlands
or stream beds or banks, adjacent to or upstream and down stream of the above structures.
All sediment and erosion control devices shall be removed and the natural grade restored
within two (2) months of the date that the Division of Land Resources or locally delegated
program has released the project;
Mr. Carlton Midyette
Page 4 of 4
December 15, 2008
5. 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 to ensure compliance with 15A NCAC 213 .0259;
Continuing Compliance:
6. Mr. Carlton Midyette shall conduct construction activities in a manner consistent with
State water quality standards (including any requirements resulting from compliance with
section 303(d) of the Clean Water Act) and any other appropriate requirements of State
law and federal law. If the Division determines that such standards or laws are not being
met (including the failure to sustain a designated or achieved use) or that State or federal
law is being violated, or that further conditions are necessary to assure compliance, the
Division may reevaluate and modify this Certification to include conditions appropriate
to assure compliance with such standards and requirements in accordance with 15A
NCAC 2H.0507(d). Before modifying the Certification, the Division shall notify Mr.
Carlton Midyette and the US Army Corps of Engineers, provide public notice in
accordance with 15A NCAC 21-1.0503 and provide opportunity for public hearing in
accordance with 15A NCAC 2H.0504. Any new or revised conditions shall be provided
to Mr. Carlton Midyette in writing, shall be provided to the United States Army Corps of
Engineers for reference in any Permit issued pursuant to Section 404 of the Clean Water
Act, and shall also become conditions of the 404 Permit for the project;
Deed Notifications:
Deed notifications or similar mechanisms shall be placed on all lots with remaining
jurisdictional wetlands and waters or areas within 50 feet of all streams and ponds. These
mechanisms shall be put in place within 30 days of the date of issuance of the
401 Certification letter or the issuance of the 404 Permit (whichever is later). A sample
deed notification format can be downloaded from the 401/Wetlands Unit web site at
http://h2o.enr.state.nc.us/ncwetlands DWQ shall be sent copies of all deed restrictions
applied to these lots;
Construction Stormwater Permit NCGO10000
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 (NCGO10000) 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. ;
Mr. Carlton Midyette
Page 5 of 5
December 15, 2008
9. Native wetland species and shrubs should be planted along the aquatic shelf in areas
where practicable to help promote diversity among species that may naturally propagate.
10. The minimum water release plan for the proposed dam must be approved in writing by
this Office before the approved impacts may occur. The plan must include a written
explanation of the specific discharge rate and mechanism to provide for each required
release. The plan must also include any design specifications, details and calculations to
show that the release shall be achieved in the given conditions. The plan shall also
include monitoring that ensures compliance. The plan and any associated facilities, once
approved, must be in place and implemented upon the completion of the dam.
11. The impoundment discharge should be monitored to ensure thermal impacts to
waters will not exceed the temperature standard for piedmont streams. Unless
otherwise stipulated by the Division of Water Quality, discharge water temperatures
should be routinely monitored and compared to inflow water temperatures to ensure
compliance.
12. The discharge should be aerated to enhance dissolved oxygen levels.
13. Forested areas, buffers and littoral shelves should be preserved as undisturbed (to the
extent practicable) and protected as restricted use conservation areas. Maximum
available forested buffers should be provided and protected. It is our understanding
that a minimum 30-foot vegetated buffer is required pursuant to water supply
regulations and that these buffers will be enhanced with an additional 20-foot
vegetated exterior buffer.
14. Buffer Replanting
Replanting of vegetation within disturbed areas located within 30 feet of the
impoundment shoreline must be done in an "in kind" manner immediately following
construction. (Example: Disturbed areas with pre-existing grassed lawns must be
replanted with grass. Disturbed areas with pre-existing trees or woody vegetation must
be replanted with trees and woody vegetation. Disturbed areas with pre-existing forest
vegetation must be replanted with forest vegetation including at least two different native
hardwood tree species at a density sufficient to provide 320 trees per acre at maturity.
This density can usually be achieved by planting approximately 436 (10 x 10 spacing) to
681 (8 x 8 spacing) trees per acre.) We understand based on materials submitted on
December 11, 2008, that 14,480 square feet of new Zone 1 buffer around the
impoundment that is currently pastureland will be replanted as forested land.
15. Littoral shelves and native vegetation should be provided along the shoreline for
stability, safety, shading and habitat.
16. The use of motorized equipment as well as fertilizers and other chemicals in the
lake and around the shoreline and buffer zones should be strictly controlled so as not to
cause direct or ancillary pollutant issues downstream.
Mr. Carlton Midyette
Page 6 of 6
December 15, 2008
17. An impoundment sampling schedule and methodology as agreed to by your agent must
be finalized before the proposed impacts may occur. This Office recommends utilizing
the attached guidance document Predictability Study Protocol for Sampling Reference
Impoundments (NCDWQ, March 12, 2008).
18. Final design details for the dam and impoundment shall be submitted to DWQ for
approval in writing before the proposed impacts may occur. The final plan shall include
a discussion of how water quality standards will be monitored and maintained within the
impoundment. The final plan shall also include the structural design drawings and details
for the dam, including the plan and profile views illustrating the height, toe, materials,
spillway, as well as the operation and maintenance plan.
19. Deed Restrictions
Mr. Carlton Midyette shall execute and cause to be recorded in the Franklin County
Register of Deeds restrictive covenants acceptable to the Division of Water Quality for
the purpose of maintaining the riparian buffers, as shown on the recorded plat ("Franklin
County Pond" located at Gooseberry Lane and N. Pastures Trail, off Cedar Creek Road,
near Franklinton, Franklin County), in their natural state in perpetuity, prior to the sale of
the subject property.
No person or entity shall perform any of the following activities on such buffer
conservation area:
a. fill, grade, excavate or perform any other land disturbing activities
b. cut, mow, burn, remove, or harm any vegetation
c. construct or place any roads, trails, walkways, buildings, mobile homes, signs,
utility poles or towers, or any other permanent or temporary structures
d. drain or otherwise disrupt or alter the hydrology or drainage ways of the
conservation area
e. dump or store soil, trash, or other waste
f. graze or water animals, or use for any agricultural or horticultural purpose
This covenant is intended to ensure continued compliance with the Neuse Buffer
Rules (15A NCAC 2B.0259) of the Division of Water Quality and therefore may be
enforced by the Division of Water Quality. This covenant is to run with the land, and
shall be binding on the Owner, and all parties claiming under it."
The permittee shall enforce the terms of the restrictive covenants and, prior to sale of the
subject property, shall take no action on the subject site described in the covenants
inconsistent with the terms thereof. This requirement excludes riparian areas authorized
for impacts in accordance with this minor variance approval. The permittee shall provide
a copy of the recorded restrictive covenants to the Division of Water Quality within 15
days of recording.
20. 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
Mr. Carlton Midyette
Page 7 of 7
December 15, 2008
return the attached certificate of completion to the 401 Oversight/Express Review
Permitting Unit, North Carolina Division of Water Quality, 1650 Mail Service Center,
Raleigh, NC, 27699-1650.
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 Permit.
If this Certification is unacceptable to you, you have the right to an adjudicatory hearing upon
written request within sixty (60) days following receipt of this Certification. This request must be
in the form of a written petition conforming to Chapter 150B of the North Carolina General
Statutes and filed with the Office of Administrative Hearings, 6714 Mail Service Center,
Raleigh, N.C. 27699-6714. If modifications are made to an original Certification, you have the
right to an adjudicatory hearing on the modifications upon written request within sixty (60) days
following receipt of the Certification. Unless such demands are made, this Certification shall be
final and binding.
CHS/cbk/ijm
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