20010460 Ver 1_Mitigation Plan Review_20090112

?0? W A T?9P
,o
0 ii ?
Beverly Eaves Perdue, Governor
Dee Freeman, Secretary
North Carolina Department of Environment and Natural Resources
Coleen H. Sullins, Director
Division of Water Quality
January 12, 2009
Mr. Manny Hernandez
7274 Poinciana Court
Miami Lakes, FL 33014
Re: Hernandez Mitigation Project - Slow Creek Restoration
Cherokee County
DWQ #01-0460
Dear. Mr. Hernandez:
The Division of Water Quality (DWQ) 401 Oversight and Express Review Permitting Unit has once
again received a letter from Fish and Wildlife Associates, Inc. (FWA) dated December 19, 2008 stating
that FWA will not be completing the stream mitigation monitoring for the above-referenced site. This
site was utilized to provide compensatory mitigation for your commercial shopping center development
in Cherokee County.
Condition 5 of your 401 Water Quality Certification, dated February 26, 2002, states that stream
mitigation must be constructed and monitored according to the approved Mitigation Plan. The Plan
called for a minimum five years of successful monitoring. To date, we have received four (4) years of
monitoring data. Therefore, you must demonstrate success of your mitigation project through the
submittal of monitoring reports which document monitoring activities and provide monitoring results for
monitoring activities conducted in 2008 and 2009.
Our review of the past two monitoring reports (February 2007 and August 2008 identified a number of
concerns with respect to the monitoring data submitted and the success to date of the project. Structural
and vegetation issues were both noted in our letter to FWA dated December 8, 2008). These issues were
supposed to have been addressed following our comments on the 2007 report.
Completion of the monitoring requirements and correction of signs of deterioration or failure of the
stream restoration project was specifically required in Condition 5 of your 401 Water Quality
Certification. Please note that your 401 Water Quality Certification also stated that violations of
any of the conditions set forth in the Certification can result in revocation of this certification and
assessment of civil or criminal penalties.
401 Oversight/Express Review Permitting Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone [phone] / Fax [phone]
Internet: htto://h2o.enr.state.nc.us/ncwetlands
NhCarolina
oce
Naturally
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
Mr. Hernandez
Hemandez/Slow Creek Mitigation
Page 2 of 2
Please submit a written response providing a timetable for completion of your 2007 monitoring activities
and submittal of a monitoring report. In addition, the concerns outlined in both our March 9, 2007 and
December 8, 2008 letters need to be addressed. Failure to respond to this letter may result in this Office
forwarding a recommendation for enforcement to the Director of the Division of Water Quality
regarding these issues and any future/continued violations that may be encountered. Your response to
this correspondence will be considered in this process. This violation and any future violations are
subject to civil penalty assessment of up to $25,000.00 per day for each violation.
Please feel free to contact Eric Kulz at [phone] if you have any questions regarding this project
or our comments.
Sincerely,
Cyndi B. Karoly, Program Manager
401 Oversight and Express Review Program
cc: File Copy (Eric Kulz)
Matt Matthews - DWQ Wetlands and Stormwater Branch
John Hennessy - Non-Point Source Assistance and Compliance Oversight Unit
Kevin Barnett - Asheville Regional Office
David Baker - USACE, Asheville Regulatory Field Office
Barbara Wiggins - Fish and Wildlife Associates, 25 Water Tower Lane, P.O. Box 241,
Whittier, NC 28789
401 Oversight/Express Review Permitting 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
NorthCarolina
Naturally
An Equal Opportunity/Affirmative Action Employer- 50% Recycled/10% Post Consumer Paper