20131200 Ver 5_USACE Notice of Permit Noncompliance_20180330

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
151 PATTON AVENUE
ROOM 208
ASHEVILLE, NORTH CAROLINA 28801-5006
March 30, 2018
Regulatory Division
Action ID: SAW -2013-02262
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Tryon Equestrian Partners, LLC
PO Box 2141
Rutherfordton, North Carolina 28139
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1 & BUFFER PERMITTING
Please reference the September 14, 2017, Department of the Army (DA) permit that
authorizes permanent impacts to 10,281 linear feet of jurisdictional stream and 0.09 acres of
jurisdictional wetlands associated with the ongoing development of the Tryon International
Equestrian Center (TIEC) in Mill Spring, North Carolina.
On January 25, 2018, Mr. Steve Kichefski, of the U.S. Anny Corps of Engineers
Asheville Field Office (Corps) and Mr. Andrew Moore of the North Carolina Division of Water
Resources (D WR) met on-site with your consultant, Clement Riddle of Clearwater
Environmental Consultants, Inc. and Wayne Watkins, a representative from Odem Engineering,
the third parry contractor involved in the project. During this onsite meeting we found three areas
of permit noncompliance which were detailed in an email sent February 13, 2018. That email
summarized the compliance site visit, including action items, and requested a response by
February 28, 2018. On February 28, 2018, an email response was received to the action items
requested by the Corps.
As a result of our on-site meeting and the response, we found three (3) separate issues of
permit non-compliance:
1. Construction at impact location's E4 and E5 were not completed in accordance with the
permitted plans. Specifically, the non-compliance involves the pipe network, including
the stormwater plan and bypass outlet structure, and additional fill placed within the
jurisdictional stream channel beyond those authorized. The plans submitted and approved
by the Corps with the September 14, 2017, permit authorization include a french drain as
shown on Sheet 5 of 7 for Area A: Hotel and Bam/Stables Proposed French Drain.
During the site inspection, it was observed that the Waters of the United States (WoUS)
were being diverted through culverts being placed parallel to the french drain system
already constructed, stormwater was being tied into this pipe network, the

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proposed outlet was located further downstream than the impacts/plans authorized and
the outlet of this pipe network carries the WoUS through 3 rip -rap plunge pools and
approximately 20 feet of overland flow before joining the jurisdictional stream channel
again. The Corps requested, both in the field and in the summary email, that since plans
for the outlet construction were different than those originally authorized, the revised
plans should be submitted for approval, prior to construction. Additionally, the fill placed
at impact location E4 and E5 exceeded what was authorized in this location. As such,
TIEC is non-compliant with the terms and conditions of the subject DA authorization
including special conditions 1, 3 and 5, and therefore are in violation of Section 301 of
the Clean Water Act (33 USC 1344).
2. Several areas of bank stabilization activities along the equestrian trail on the north bank
of White Oak Creek, between Bridge I and impact E3. This area was visited during the
January compliance visit and included in the Corps February visit summary. A portion of
this area had been previously authorized/constructed by the former owners in order to
construct a small trail along the creek. TIEC widened and improved this trail, adding
areas of bank stabilization and additional rock debris along the steep banks. Some of this
debris is now below the Ordinary High Water Mark (OHWM) of White Oak Creek
without authorization. An area of new bank stabilization was also constructed below the
OHWM without authorization and a portion of it is failing and encroaching into White
Oak Creek. These unauthorized impacts are also a violation of Section 301 of the Clean
Water Act (33 USC 1344). We are concerned that the high flows of White Oak Creek
will cause further failure if.not corrected soon. TIEC's February 28, 2018, response
indicated that a long term solution was being developed and would be submitted for
approval by March 30, 2018. This plan should ensure that all unauthorized fill is removed
from this section of White Oak Creek and include a design more appropriate for
stabilizing the stream bank slopes along such a large. dynamic channel.
3. Compensatory mitigation required by the September 14, 2017, permit authorization. The
majority of this compensatory mitigation is being delivered via the approved Herman
Dairy off-site, permittee -responsible compensatory mitigation. As of the January
compliance visit, very little progress had been shown on this portion of the project ..
despite the terms and condition of TIEC's permit, "Activities prescribed by this plan shall
be initiated prior to, or concurrently with, commencement of any construction activities
within jurisdictional areas authorized by this permit." In the February 28, 2018, response
email, a timeline was given for the completion of the Herman Dairy project. If there are
to be changes to this timeline, notification should be provided to the Corps with an
explanation of how and when mitigation requirements will be resolved.
In an effort to correct these issues, TIEC has the option of applying for an after -the -fact
DA permit modification for the new impacts, or removing the non-compliant structures and
replacing them in accordance with the previously approved plans. The assessment of any after -
the -fact permit modification will rely on the information you provide, which should detail the
reasons why additional impacts are needed and/or were constructed differently than the original
plans. Keep in mind that you will be required to remove all non-compliant structures if you do
not receive after -the -fact authorization.

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TIEC may submit additional information needed to complete the after -the -fact DA
authorization request or undertake full restoration of the non-compliant structures and
unauthorized by April 20, 2018. Please be aware that compliance with these directives does not
foreclose the Department of the Army's option to initiate additional appropriate legal action
including pursuing a Class I Administrative Penalty under the authority of 33 U.S.C. § 1319(g)
and 33 CFR Part 326.6 or referral to the United States Environmental Protection Agency with a
recommendation for civil action.
If you have any questions regarding this matter, please contact Mr. Steve Kichefski at
[phone] ext. 4234 with the Asheville Regulatory Field Office.
FOR THE DISTRICT ENGINEER
Sincerely,
amt .��-�-�--
M. Scott Jones
Chief
Ashville and Charlotte Regulatory Feld Offices
Enclosure
cc:
ClearWater Environmental Consultants, Inc.
Mr. Clement Riddle
32 Clayton Road
Asheville, North Carolina 28801
Odom Engineering PLLC
Mr. David Odom
169 Oak Street
Forest City, North Carolina 28043
NC Division of Water Resources
Asheville Regional Office
Mr. Andrew Moore
2090 U.S. 70 Highway
Swannanoa, North Carolina 28778-8211

me
NC Division of Water Resources
401 Buffer and Permitting Unit
Ms. Karen Higgins
1617 Mail Service Center
Raleigh, North Carolina 27699-1617
NC Division of Wildlife Resources
Ms. Andrea Leslie
645 Fish Hatchery Rd., Building B
Marion, NC 28752
Mr. Todd Bowers
U.S. EPA Region 4
61 Forsyth Street, S.W.
9T25
Atlanta, Georgia 30303-8960
Ms. Molly Davis, Chief, Wetlands Enforcement Section
Water Protection Division, Clean Water Enforcement Branch
U.S. Environmental Protection Agency
61 Forsyth Street, SW
Atlanta, Georgia 30303-8960