20180896 Ver 1_Approval Letter_20180802

North Carolina Department of Environmental Quality  Division of Water Resources
2090 US 70 Highway, Swannanoa, NC 28778
828.296.4500

August 2, 2018
DWR # 18-0896
Graham County

USDA – United States Forest Service
Attn: Allen Nicholas
160 Zillicoa Street, Suite A
Asheville, NC 28801

Subject: APPROVAL OF 401 WATER QUALITY CERTIFICATION WITH
ADDITIONAL CONDITIONS
Cheoah River Mile 5.1 River Access

Dear Mr. Nicholas:

You have our approval for the impacts listed below for the purpose described in your application
dated June 18, 2018, and received by the Division of Water Resources (Division) on June 28,
2018, with payment received on July 9, 2018. These impacts are covered by the attached Water
Quality General Certification Number 4139 and the additional conditions listed below. This
certification is associated with the use of Nationwide Permit Number 42 once it is issued to you
by the U.S. Army Corps of Engineers. Please note that you should get any other federal, state or
local permits before proceeding with your project, including those required by (but not limited
to) Sediment and Erosion Control, Non-Discharge, Water Supply Watershed, and Trout Buffer
regulations.

This approval requires you to follow the conditions listed in the enclosed certification(s) or
general permit and the following additional conditions:

1. The following impacts are hereby approved provided that all of the other specific and
general conditions of the Certification are met. No other impacts are approved, including
incidental impacts. [15A NCAC 02H .0506(b) and/or (c)]
Type of Impact

Amount Approved
(units)
Permanent
Amount Approved
(units)
Temporary

Stream Impact
Impact S1 50 (linear feet)

Cheoah River Mile 5.1 River Access
DWR# 18-0896
401 Approval
Page 2 of 4

2. This approval is for the purpose and design described in your application. The plans and
specifications for this project are incorporated by reference as part of the
Certification/Authorization. If you change your project, you must notify the Division
and you may be required to submit a new application package with the appropriate fee.
If the property is sold, the new owner must be given a copy of this approval letter and
General Certification(s) and is responsible for complying with all conditions. [15A
NCAC 02H .0507(d)(2)]

3. All mechanized equipment operated near surface waters or wetlands will be regularly
inspected and maintained to prevent contamination of waters and wetlands from fuels,
lubricants, hydraulic fluids or other potential toxic chemicals. In the event of a
hydrocarbon or chemical spill, the permittee/contractor shall immediately contact the
Division of Water Resources, between the hours of 8 am to 5 pm at the Asheville
Regional Office at 828.296.4500 and after hours and on weekends call [phone].
Management of such spills shall comply with provisions of the North Carolina Oil
Pollution and Hazardous Substances Control Act. [15A NCAC 02H .0506 (b)(3) and
(c)(3), 15A NCAC 02B .0211(12), and GS 143 Article 21A]

4. The permittee shall report to the Asheville Regional Office any noncompliance with this
certification, any violation of stream or wetland standards [15A NCAC 02B .0200]
including but not limited to sediment impacts, and any violation of state regulated
riparian buffer rules [15A NCAC 02B .0200]. Information shall be provided orally
within 24 hours (or the next business day if a weekend or holiday) from the time the
applicant became aware of the circumstances. A written submission shall also be
provided within 5 business days of the time the applicant becomes aware of the
circumstances. The written submission shall contain a description of the noncompliance,
and its causes; the period of noncompliance, including exact dates and times, if the
noncompliance has not been corrected, the anticipated time compliance is expected to
continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of
the noncompliance. The Division may waive the written submission requirement on a
case-by-case basis.

5. The proposed project shall follow the recommendations stated in the North Carolina
Wildlife Resources commission (NCWRC) letter dated June 5, 2018 (attached) to the
maximum extent practicable. [15A NCAC 02H .0506 (b)(2)]

This approval and its conditions are final and binding unless contested. [G.S. 143-215.5]

This Certification can be contested as provided in Articles 3 and 4 of General Statute 150B by
filing a written petition for an administrative hearing to the Office of Administrative Hearings
(hereby known as OAH) within sixty (60) calendar days.

A petition form may be obtained from the OAH at http://www.ncoah.com/ or by calling the
OAH Clerk’s Office at [phone] for information. A petition is considered filed when the
Cheoah River Mile 5.1 River Access
DWR# 18-0896
401 Approval
Page 3 of 4

original and one (1) copy along with any applicable OAH filing fee is received in the OAH
during normal office hours (Monday through Friday between 8:00am and 5:00pm, excluding
official state holidays).

The petition may be faxed to the OAH at [phone], provided the original and one copy of
the petition along with any applicable OAH filing fee is received by the OAH within five (5)
business days following the faxed transmission.

Mailing address for the OAH:

If sending via US Postal Service: If sending via delivery service (UPS,
FedEx, etc):
Office of Administrative Hearings
6714 Mail Service Center
Raleigh, NC 27699-6714
Office of Administrative Hearings
1711 New Hope Church Road
Raleigh, NC 27609-6285

One (1) copy of the petition must also be served to DENR:

William F. Lane, General Counsel
Department of Environmental Quality
1601 Mail Service Center
Raleigh, NC 27699-1601

This letter completes the review by the Division under section 401 of the Clean Water Act as
described in 15A NCAC 02H .0500. Please contact Kevin Mitchell at 828-296-4650 or
[e-mail] if you have any questions or concerns.

Sincerely,

Zan Price, P.E., Assistant Regional Supervisor
Water Quality Regional Operations
Asheville Regional Office

Enclosures: GC 4139
Certificate of Completion
NCWRC letter dated June 5, 2018

Cheoah River Mile 5.1 River Access
DWR# 18-0896
401 Approval
Page 4 of 4

cc: David Brown – USACE Asheville Regulatory Field Office (via email)
Andrea Leslie – NCWRC (via email)
Stan Aiken – Division of Energy, Mineral and Land Resources (via email)
Barry Jones – USDA Forest Service (via email)
DWR ARO 401 files

G:\WR\WQ\Graham\401s\Non-DOT\Cheoah River Access\20180802_CheoahRiverAccessMile5.1_APPRV.docx

North Carolina Wildlife Resources Commission
Gordon Myers, Executive Director

Mailing Address: Habitat Conservation • 1721 Mail Service Center • Raleigh, NC 27699-1721
Telephone: [phone] • Fax: [phone]
June 5, 2018

Mr. David Brown
U.S. Army Corps of Engineers, Regulatory Branch
151 Patton Avenue, Room 208
Asheville, North Carolina 28801-5006

SUBJECT: Cheoah River RM 5.1 River Access
Cheoah River, Graham County

Dear Mr. Brown:

Biologists with the North Carolina Wildlife Resources Commission (NCWRC) reviewed an
application to construct a parking lot and boat launch access ramp on the Cheoah River,
impacting 50 ft of river in Graham County. Our comments on this application are offered for
your consideration under provisions of the Clean Water Act of 1977 (33 U.S.C. 466 et. seq.) and
Fish and Wildlife Coordination Act (48 Stat. 401, as amended; 16 U.S.C. 661-667d).

This project should not affect trout and the activities do not need to be avoided during the trout
spawning moratorium. However, numerous rare and listed species are found in this portion of
the Cheoah River, including Appalachian Elktoe (Alasmidonta raveneliana, US and NC
Endangered), Spotfin Chub [Erimonax monachus, US and NC Threatened (T)], Virginia Spiraea
(Spiraea virginiana, US and NC T), Junaluska Salamander (Eurycea junaluska, US Federal
Species of Concern (FSC), NC T), Wavyrayed Lampmussel [Lampsilis fasciola, NC Special
Concern (SC)], and Wounded Darter (Etheostoma vulneratum, US FSC, NC SC]. The project is
within two NC Natural Heritage Program natural areas—the Cheoah River Floodplain (rated
Exceptional) and the Cheoah River Aquatic Habitat (rated Very High).

The project involves the construction of a parking area of up to 9 spaces, a hardened area for
toilets, and a concrete access launch with a retaining wall. The concrete slab will be poured in
place. The launch will be placed above the baseflow water level and will not come in contact
with the stream bottom. Two rain gardens will treat stormwater from the site, which will be
discharged to the Cheoah River over a Class B riprap apron.

There are multiple older records of Junaluska Salamander in the vicinity of the project, and we
are concerned about direct impacts to this rare species. We recommend that both visual night
Cheoah R RM 5.1 Access Page 2 June 5, 2018
Cheoah R, Graham Co
surveys and snorkel surveys be conducted in the project area before any tree clearing and ground
disturbance occurs. Please coordinate with NCWRC biologist Lori Williams
([e-mail]) about these surveys. In addition, the site should be surveyed for
Virginia Spiraea before the project begins; these surveys should be conducted in coordination
with the US Fish and Wildlife Service.

We offer the following recommendations to minimize impacts to aquatic and terrestrial wildlife
resources:
1. Be vigilant with sediment and erosion control during site staging, construction, and cleanup.
Disturbed areas should be seeded, mulched and/or matted as soon as possible, at least at the
end of each work day.
2. Any erosion control matting used should be free of nylon or polypropylene mesh, as this
frequently entangles wildlife and is slow to degrade, resulting in a hazard that may last for
years.
3. Concrete must be poured in the dry and allowed to cure at least 24 hours in order to avoid
toxic pH levels in the contact water.
4. Minimize the footprint of disturbance within the riparian area, avoiding the removal of
riparian vegetation as much as possible when mobilizing equipment and during construction.
If needed, replant the disturbed area with native riparian trees, shrubs, forbs, and grasses.
5. Surveys for Junaluska Salamander and Virginia Spiraea should be conducted before the
project commences.

Thank you for the opportunity to review and comment on this project. Please contact me at
[phone] if you have any questions about these comments.

Sincerely,

Andrea Leslie
Mountain Region Coordinator, Habitat Conservation Program

ec: Barry Jones, USFS
Kevin Mitchell, NC Division of Water Resources
Byron Hamstead, US Fish and Wildlife Service
Lori Williams, NCWRC

State of North Carolina | Environmental Quality | Water Resources
2090 U.S. Highway 70, Swannanoa, North Carolina 28778
828-296-4500
ROY COOPER
Governor
MICHAEL S. REGAN
Secretary
LINDA CULPEPPER
Interim Director
Water Resources
Environmental Quality

WR Project No.: __________________ County: ____________________________________
Applicant: __________________________________________________________________________
Project Name: ______________________________________________________________________
Date of Issuance of 401 Water Quality Certification: ________________________________________

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 this certificate to the 401 and
Buffer Permitting Unit, North Carolina Division of Water Resources, 1650 Mail Service Center, Raleigh,
NC, 27699-1650. This form may be returned to DWR by the applicant, the applicant’s authorized agent, or
the project engineer. It is not necessary to send certificates from all of these.
Applicant’s Certification
I, _____________________________________, hereby state that, to the best of my abilities, due care and
diligence was used in the observation of the construction such that the construction was observed to be built
within substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the
approved plans and specifications, and other supporting materials.
Signature: ______________________________ Date:_________________________________
Agent’s Certification
I, _____________________________________, hereby state that, to the best of my abilities, due care and
diligence was used in the observation of the construction such that the construction was observed to be built
within substantial compliance and intent of the 401 Water Quality Certification and Buffer Rules, the
approved plans and specifications, and other supporting materials.
Signature: ______________________________ Date:_________________________________
If this project was designed by a Certified Professional
I, ____________________________________, as a duly registered Professional ___________ (i.e.,
Engineer, Landscape Architect, Surveyor, etc.) in the State of North Carolina, having been authorized to
observe (periodically, weekly, full time) the construction of the project, for the Permitee hereby state that, to
the best of my abilities, due care and diligence was used in the observation of the construction such that the
construction was observed to be built within substantial compliance and intent of the 401 Water Quality
Certification and Buffer Rules, the approved plans and specifications, and other supporting materials.
Signature: ______________________________________ Registration No. ________________
Date ____________________