20180819 Ver 1 _Response-to-Violation-Path _20180813

Strickland, Bev
From: vultic <[e-mail]>
Sent: Monday, August 13, 2018 5:03 PM
To: Annino, Amy M
Cc: [e-mail]
Subject: Re: [External] Re: 20180819 Riparian Buffer Authorization Add Info Request - Palmer,
2089 Starboard Ln
Attachments: image001.png; Palmer-Response-to-Violation-Path-Addendum-6-6-18.pdf
rt Spam.
Ms Annino,
Thank you for your condolences. Our sister in law fought a long battle with brain cancer. She was a strong woman who
gave it her all. We aill miss her.
I am sorry. The diagram I mentioned was actually at the end of the RePlanting Plan we submitted. It is attached to the
Addendum: Request for "No Practical Alternatives Determination"
That diagram shows the path as planned but it in reality it will be closer to the "drip field" (it will actually hug the 50
foot boundary line in Zone 2 - the other side is our waste water drip field)). I have attached it so you won't have to
dig it out.
Sorry for my mistake. In fact, I am not sure if this version was sent to you. I hope it was, that was what we intended.
Gary
On Mon, Aug 13, 2018 at 4:36 PM Annino, Amy M <[e-mail]> wrote:
Mr. Palmer,
Thank you for your response, I'm sorry for you and your family's loss. Please see my comments below in blue.
Amy Annino
Environmental Specialist — Asheville Regional Office
Water Quality Regional Operations Section
NCDEQ — Division of Water Resources
828 296 4656 office
1

amy. anninoa-ncdenr.gov
2090 U.S. Hwy. 70
Swannanoa, N.C. 28711
Email correspondence to and from this address is subject to the
North Carolina Public Records Law and may be disclosed to third parties
From: vultic [mailto:[e-mail]]
Sent: Monday, August 13, 2018 11:59 AM
To: Annino, Amy M <[e-mail]>
Cc: [e-mail]
Subject: [External] Re: 20180819 Riparian Buffer Authorization Add Info Request - Palmer, 2089 Starboard Ln
Hello Ms Annino, et al,
I apologize for the delay of my response. A sudden, but expected death in the family had me in Myrtle Beach for a few
weeks assisting my brother and nephew.
Here is my response to the items you requested regarding the path on our property.

The access trail is for pedestrian use only, not for use by motorized carts or equipment. Please confirm the type
of cart you intend to use on this trail. [15A NCAC 02B .0243 (6)] and [15A NCAC 02B .0243 (8)(a)]
The "cart" is a Harbor Freight foldable trailer modified to allow one or two individuals to push or pull it from
the hitch end. It has a tire span of 62 inches and will allow us to safely transport recreational (Kayaks, tubes,
etc.) and maintenance equipment (power washers for dock and boat, etc.) to and from the house and dock in
a single trip.
Thank you for providing this clarification.
Grading is not allowed in Zone 1 of the Catawba Buffer. For path leveling in Zone 1, the surface of the ground
must only be disturbed within the footprint of the path. [15A NCAC 02B .0243 (4)(a)]
As shown on the diagram I sent along with the request, the path we are requesting will be laid down almost
entirely in Zone 2 (no more than 20 feet from the 50 foot Riparian demarcation silt fence). There will no
planned disruption (other than replanting by hand) in Zone 1. Nearer the dock stairs/landing gravel will be
applied by hand over the existing terrain (which is fairly level) anywhere in Zone 1 up to the landing to the
dock stairs (already in place and properly permitted).
o A diagram showing the proposed path was not included in the Riparian Buffer Authorization form
submitted 6-14-18 (attached). Please let me know if I have overlooked this or if you provided a
diagram in a separate document/email. Can you please send (or resend) a diagram?
Describe what sediment and erosion control measures will be installed to protect Lake Rhodhiss at the shoreline
during construction of the access trail.
o Your response indicated silt fence would be installed at the 50 foot buffer line. Please indicate how
sediment will be kept out of the lake from activities taking place in Zone 1 and 2. [15A NCAC 02B .0243
(6)]
o During the construction that will occur in Zone 2 a reinforced silt fence will be installed on the lake
side and along the entire run of the path (but still well within Zone 2 only) to prevent sediment from
entering Lake Rhodhiss. That fence will remain until the path is completed and replanting is done and
trees and woody plant have become established. Removal of fence will not happen until spring or
early summer 2019 at the earliest.
Thank you for this clarification.
I hope these responses answer your concerns in this matter. Please let me know if there are any further
actions we are expected to take on this or any other open issue. FYI, on July 25th I sent a reply to your email
regarding issue you had with the Replanting Plan. Please acknowledge that my earlier email was received as
well as this. Also maybe an estimate on when we might expect to hear back with decisions.
Respectfully,
Gary & Debra Palmer
On Wed, Jul 25, 2018 at 2:00 PM Annino, Amy M <[e-mail]> wrote:
On June 14, 2018, the Division of Water Resources (Division) received your application dated June 12, 2018,
requesting a 401 Water Quality Certification from the Division for the subject project. The Division has determined
that your application is incomplete and cannot be processed. The application is on hold until all of the following items
are addressed:

• The access trail is for pedestrian use only, not for use by motorized carts or equipment. Please confirm the type
of cart you intend to use on this trail. [15A NCAC 02B .0243 (6)] and [15A NCAC 02B .0243 (8)(a)]
• Grading is not allowed in Zone 1 of the Catawba Buffer. For path leveling in Zone 1, the surface of the ground
must only be disturbed within the footprint of the path. [15A NCAC 02B .0243 (4)(a)]
• Describe what sediment and erosion control measures will be installed to protect Lake Rhodhiss at the shoreline
during construction of the access trail.
o Your response indicated silt fence would be installed at the 50 foot buffer line. Please indicate how
sediment will be kept out of the lake from activities taking place in Zone 1 and 2. [15A NCAC 02B .0243
(6)]
Pursuant to Title 15A NCAC 02H .0502(e), the applicant shall furnish all of the above requested information for the
proper consideration of the application. Please provide a response by or before August 25, 2018.
Please contact me if you have any questions or concerns.
Sincerely,
Amy Annino
Environmental Specialist — Asheville Regional Office
Water Quality Regional Operations Section
NCDEQ — Division of Water Resources
828 296 4656 office
amy.annino(c-)ncdenr.gov
2090 U.S. Hwy. 70
Swannanoa, N.C. 28711
Email correspondence to and from this address is subject to the

North Carolina Public Records Law and may be disclosed to third parties

MEMORANDUM FOR THE RECORD
DATE: May 24, 2018
TO:
Ms. Amy Annino
Division of Water Resources
2090 US HWY 70
Swannanoa, NC 28778
FROM:
Gary and Debra Palmer
2089 Starboard Lane
Connelly Springs, NC 28612
SUBJECT: Response to NOTICE OF VIOLATION and RECOMMENDATION FOR ENFORCMENT, dtd May 11, 2018
The following sections detail actions taken per the REQUIRED RESPONSE section found in Subject referenced
NOTICE OF VIOLATION.... letter. The item numbers below correspond to those mentioned in the letter.
Immediate action was taken, beginning on May 5th, 2018, to stabilize all disturbed areas.
a. Reinforced silt fencing was erected at the 50 -foot marker along the affected shoreline area.
b. A >_ 4 -inch layer of shredded tree mulch was spread over all bare ground in Zone 1 & 2 of the
affected slope. Care was taken not to disturb existing undergrowth which was starting to
recover rapidly.
c. A thick layer of landscaping mulch was spread on bare soil surrounding the home (still being
excavated) on its West side to absorb, slow and diffuse any flow of water as it approaches the
Catawba Buffer area
d. Established points of concentrated flow on the lot were lined with Rip -Rap (Class B and higher in
some cases). These established points were determined by our civil engineer and his Drainage
and Excavation plan was approved by Burke County and state authorities (Mr. Alan McKinney)
as part of our septic approval. There are two major established flows that empty into naturally
occurring gullies. Both are now remediated to slow and diffuse concentrated water flow and
remove any sediment before entering the river.
2. Reasons for unauthorized clearing:
Before I begin I want you and NCDWR to know that we understand that ignorance of rules and
regulations is no excuse and that we accept responsibility for the issues that have been identified. Of
course, we will work with NCDWR and Burke County toward corrective action.
Background:
Debra and I bought our lot in Paradise Harbor in June of 2007. At the time we were living and working in
Central Florida. In 2010 Debra took a job that brought us both to Italy for a 5 -year stay. While that tour
was ending we decided to build on the land and contacted an Architect, TEA in Minneapolis, MN. They
designed our home and helped us choose a builder. While still in Italy, in early 2014, we chose MCM
McMillian Builders (MCM) then out of Davidson, NC. As our General Contractor (GC), MCM pulled all the
Page 1 1 Response and Restoration Plan for Catawba Buffer on Lake Rhodhiss
Gary & Debra Palmer, 2089 Starboard Lane, Connelly Springs, NC 28612

permits and dealt with local and neighborhood groups and authorities for all required items. Our
community is governed by the Paradise Harbor (PH) Property Owners Association (POA) and building
matters are handled by the Architectural Review Committee (ARC), governed by the POA. According to
the POA Covenants plans must be submitted and approved by the ARC before building can start. A
segment of the review requires a "Tree Plan" (TP) to be approved as well.
This Tree Plan is relevant to this explanation. In early 2015 we were starting to plan to repatriate. We
had submitted our house plans to the ARC and they were approved. MCM took responsibility for the TP.
In fact, the only interaction we had with MCM in this regard was to state our desire to have as few pines
on our property and to enhance the views westward as much as possible. We had previous phone
conversations with MCM that discussed replanting said pines with native (and some ornamental)
deciduous species as well as native ground cover in places.
We arrived back in the USA in October of 2015. We rented a home in Paradise Harbor (PH) but stayed in
Florida through the winter of 2015-16 to assist Debra's father's move into assisted living. During that
time, we had many phone conversations with MCM on many topics, the TP was never mentioned during
that period. We honestly did not think of it, but we assumed, up until just recently, that MCM must have
submitted the TP to the ARC and received the requisite approval. Again, we never saw any actual TP. No
facts about the status of this TP were ever relayed to Debra or me.
MCM remained our builder until we mutually terminated our relationship in October of 2017. Before
that I remember only once hearing from MCM that he had been contacted by ARC members and needed
to submit the TP for review and approval. We left it in his hands. After the complaint was lodged with
Burke County, and they decided to involve your offices, we reached out to MCM to try and get any
information they might have regarding the Tree Plan. As has happened in earlier attempts, there was no
response, even through his attorney. As far as we know now, the TP was never completed, reviewed and
approved by the ARC.
Again, it is not an excuse, but we had not heard about Riparian Buffers and restriction related to zones
on the lake other than those related to septic systems. On that topic, we worked for close to 2 years
designing and getting approvals for our septic systems. The many meetings over that period
(approximately June 2016 to March 2018) included representatives from Burke County who decided
(since it was the first septic system of its kind installed in Burke County) to obtain the assistance of NC
DHHS/Division of Public Health in Raleigh, NC. Since that time, we worked with a representative
from that office who lead all meetings. The goal was always to protect the water quality of Lake
Rhodhiss and as such our advanced filtration/drip system is monitored 24/7/365 as required by NC
statute. Throughout that period the only mention of buffers was for designers and civil engineers to
assure that the drip field did not extend into the 50 -foot buffer from the lake and that placement
relative to watershed was strictly controlled. Again, it is not an excuse, it is obvious we did not do our
"homework" related to shoreline requirements and restrictions beyond the information we were getting
relative to the septic system.
Upon recent reading I found that the PH Covenants and Restriction document does indicate that there
should be no large tree removal beyond 20 feet from the structure without ARC approval. That approval
seems to have been contingent upon a submitted Tree Plan, which I have already discussed above. It
does not mention Riparian Buffers. However, my recent reading does show the Covenants do suggest
referring to Connelly Springs and Burke County Ordinances and Zoning Rules. We did not do that, it
Page 12 Response and Restoration Plan for Catawba Buffer on Lake Rhodhiss
Gary & Debra Palmer, 2089 Starboard Lane, Connelly Springs, NC 28612

would have been our assumption that MCM should have seen to that. In hind sight, it was our
responsibility.
On two separate occasions, using two different companies (the first with MCM's assistance), we hired
arborists to assess the makeup and condition of trees remaining on the lot after the house was built and
"dried in". Both identified and marked trees they found to be diseased and/or a potential hazard to us
and our guests. The second firm did the culling, under our direction, that instigated the complaint that
started your investigation. Please refer to Figure 1 for the location and makeup of existing trees in the
50 -foot buffer. It shows the location of trees identified as diseased. These were all marked and
removed. In addition, some of the non -diseased trees that were removed were identified as potential
hazards. Unfortunately, we did not record the identification of those trees.
To summarize we removed trees for the following reasons (not in any order):
• To maximize scenic/aesthetic views from the house and grounds
• To clear the way for permeable path to the dock and to remove potential hazards on that path
• To minimize pines and their needles on the property
• To allow our replanting of other preferred native, and possible ornamental, tree species as part
of an overall landscape plan
• To clear space for ground cover species that would add to our aesthetic goal as well as reducing
slope erosion potential
• We were not aware of the Riparian Buffer rule
• We assumed that a Tree Plan was submitted by our original General Contractor and approved by
the Architectural Review Committee here in Paradise Harbor
• Almost 3 total years of design, engineering and installation on-site meetings, with Burke county
and NC State officials, regarding our septic system focused us on trees from the house to the 50 -
foot line. We were not informed, and did not pursue, information about restrictions beyond that
line toward the water.
Page 13 Response and Restoration Plan for Catawba Buffer on Lake Rhodhiss
Gary & Debra Palmer, 2089 Starboard Lane, Connelly Springs, NC 28612

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Page 14 Response and Restoration Plan for Catawba Buffer on Lake Rhodhiss
Gary & Debra Palmer, 2089 Starboard Lane, Connelly Springs, NC 28612

3. Restoration Plan
Calculations to determine number of trees needed to fulfill tree density requirement:
Note: Item 3.a of the REQUIRED RESPONSE section was somewhat confusing when giving examples of
"in kind" planting. It seems a distinction was made between two types of disturbed areas. 1) those that
had "trees or woody vegetation" and 2) those with "forest vegetation". Also, it seemed that the Tree
Density (320/Acre) applied only to item 2 of the examples. So, not really knowing which example to
follow I performed the calculations but question the result if we are required to use the density on our
replanting.
Variables:
a. (SL) Shoreline Length in Feet
i. Figure 3 — LINE TABLE from lot 256 survey, 4/2014 — Distance L2 thru L6
ii. L7 was not used because the two trees taken were removed during earlier dock
construction not from our recent actions
b. (ABA) Approximate Buffer Area in Square Feet
c. (PA) Percentage of Acre as a decimal percentage
d. (RT) Required Trees an Integer
Constants:
e. (MTD) Mature Tree Density = 320 trees per acre
f. (BW) Buffer Width in Feet
g. (A) Acre Area = 43,560 Ft2
Calculations:
SL x BW = ABA
227 x 50 = 11,350
ABA - A = PA
11,350 _ 43,560 = .26
PA x MTD = RT
.26x320=83
Discussion:
Refer to Figure 1 above to see that before our actions there were approximately 63 trees with >_10" DBH in the
50 -foot zone. These trees were recorded by our site surveyor in April 2014. That represents a density
approximately 25% lower than the MTD provided to us. Said another way having to replant 83 trees in an area
that previously held 63 (in a mature state) seems unnecessary.
Figure 2 is the required Site Map. It provides the same survey graphic that shows the position of larger, healthy
trees remaining in the 50 -foot zone. It also shows shaded areas numbered 1 thru 4. These areas represent
sections of the 50 -foot zone with different planting efforts which are explained below.
Page 15 Response and Restoration Plan for Catawba Buffer on Lake Rhodhiss
Gary & Debra Palmer, 2089 Starboard Lane, Connelly Springs, NC 28612

Replanting Areas
Note: Since the site visit, in early May, understory trees and woody vegetation derived from existing seed
sources, stump sprouts or other volunteer species have been establishing a good foundation for restoration
efforts to follow.
1. Since this area was not disturbed by our recent actions it is not included in our restoration efforts
2. Although somewhat steep the slope here is more gradual and easier to plant. There are mature trees
here already so a mix of shade and sun tolerant species of trees and shrubs are in the plan
3. This area boarders the natural gully. Its banks were not heavily forested in its natural state so tree
plantings will be limited to some mid to high moisture, sun tolerant species and moisture tolerant
woody plants and shrubs
4. The most difficult of the areas to replant. Although stump sprouts and volunteers have been breaking
through the shredded hardwood mulch that was laid, we will use a combination of hearty saplings and
bare root stock along with more native woody plants to fill in this area.
Types of vegetation selected
Trees & Shrubs — All trees and Shrubs have been chosen from the Master List of Native Plants provided within
the Guidelines for Riparian Buffer Restoration. Along with our aesthetic criteria, factors related to Region, Light
and Moisture were very help in deciding which areas to place the selected species.
Area 2:
•
Eastern Hemlock
•
Redbud
•
Flowering Dogwood
•
Catawba Rhododendron
•
Lowbush Blueberry
Area 3:
• River Birch
• Silver Maple
• Eastern Cottonwood
• Virginia Willow
• Strawberry Bush (hearts a bustin)
Area 4:
• Common Silverbell
• Swamp Chestnut Oak
• Redbud — up slope
• River Birch
• Red Chokeberry—slope cover (NCDOT recommended)
Methodology
As mentioned earlier, restoration efforts have already started as required. Replanting of trees and woody plants
will begin in the fall of 2018 (Late September thru Early November). Our landscaper/designer has started to look
at the species we have selected and the site map to decide on an approach. Our landscaper has always used
local materials and the purchase of trees and shrubs will be no different.
Page 16 Response and Restoration Plan for Catawba Buffer on Lake Rhodhiss
Gary & Debra Palmer, 2089 Starboard Lane, Connelly Springs, NC 28612

Trees and shrubs will be planted in a random pattern to allow for a natural appearance and to allow for less
competition while plants become established.
Areas 4 & 3 will most likely have to be planted by hand due to the steep terrain. For trees, bare root stock might
be the easiest and most successful in these two areas. Our landscaper has read and agreed with Planting
Practices outlined in the Guide to Restoration of Riparian Buffers that was provided to us. He uses those
methods. It is likely that Tree Protectors will be used on most or all the tree species planted. This will greatly
limit the grazing stress from our deer population. Proper maintenance toward a high survivability rate of the
replanted species will be a high priority from fall and into the following spring.
Cnnrlusinn
We hope that this report provides all the required information the NCDWR was seeking from us. Thank you for
the opportunity to restore the buffer as close to its natural state as is possible.
Debra and I look forward to hearing your decision regarding this information soon
Respectfully,
Gary & Debra Palmer
2089 Starboard Lane
Connelly Springs, NC 28612
Page 17 Response and Restoration Plan for Catawba Buffer on Lake Rhodhiss
Gary & Debra Palmer, 2089 Starboard Lane, Connelly Springs, NC 28612

+D
LaKe RhodhIag
i
r � �
:nary L
PIN 371
{ o.a.
1 P 6. 25 P5 PG
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b
Figure 2 — Site Map Showing Area for the Replanting Effort
Page 18 Response and Restoration Plan for Catawba Buffer on Lake Rhodhiss
Gary & Debra Palmer, 2089 Starboard Lane, Connelly Springs, NC 28612

LINE TABLE
BEARING DISTANCE
Ll 5303,9"19" W 5.00 O
P
L2 N 87
i'* 1 .
L3 N '" T.,
L 20'58 #0 " E 2. 79
L5 N 48'33 J2'I E 22.84 0
L7 N 28#20#7'A E 28.28"
LIO S 85 m56 "0 1 E 35.48
Figure 3 - Survey Line Table of lengths
Page 19 Response and Restoration Plan for Catawba Buffer on Lake Rhodhiss
Gary & Debra Palmer, 2089 Starboard Lane, Connelly Springs, NC 28612

Addendum: Request for "No Practical Alternatives Determination"
Requestor: Gary & Debra Palmer
Location: Lot 256 — Paradise Harbor Development — on Lake Rhodhiss
Address: 2089 Starboard lane, Connelly Springs, North Carolina 28612
Subject: Request for No Practical Alternatives Determination
According to 15A NCAC 02B .0243, Section 6 (Table of Uses) Access Trails more than 4 feet are Allowable with
written permission by the Division.
• No trees will be removed to install this Access Path
• The Path will be constructed of small crushed stone and gravel. No Impervious or Impermeable
materials will be used in the construction of this path
• The width of the Access Path is planned to be 6 -foot within the 50 -foot buffer zone (See Figure 4)
DETERMINATION OF "NO PRACTICAL ALTERNATIVES
This section is pursuant to 15A NCAC 0213.0243, Section 8.
(i) The basic project purpose cannot be practically accomplished in a manner that would better
minimize disturbance, preserve aquatic life and habitat, and protect water quality.
• Access to our existing, properly permitted and approved dock is the reason for the request to
install an Access Path. As noted in the main body to this addendum, steps have been and will
continue to be taken to restore the 50 -foot buffer zone to support habitat, diffuse flow and
filtering of waters finding their way from our property into the lake waters. For safety and some
convenience an Access path to the existing dock is a necessity that cannot, safely, be avoided.
(ii) The use cannot practically be reduced in size or density, reconfigured or redesigned to better
minimize disturbance, preserve aquatic life and habitat, and protect water quality.
• As noted above the disturbance will be minimized already using permeable materials as a base
material. In fact, the Access Path and the materials used will only aid in diffusing and filtering
runoff waters flowing into Lake Rhodhiss. As to the size: we have carts with axels over 5 -feet
(outside edge of tires) that would not be accommodated by a 4 -foot Access Path. It would not
be practical to build a path that would not allow senior citizens to use carts to gain access to and
carry supplies to the existing dock.
(iii) Best management practices shall be used if necessary to minimize disturbance, preserve aquatic life
and habitat, and protect water quality.
• Our landscape designer/landscaper will use minimal equipment to provision the site with
necessary materials for the build. Inside the 50 -foot buffer hand tools will be used to perform
the actual laying out and depositing of substrate along the route of the path. If small (bobcat
type) equipment must be used, they will operate only within the confines of the Access Path and
will not venture into the buffer. Since our planned Access Path skirts the 50 -foot line for a major
portion of its run (see Figure 4) this means that any small equipment usage will not operate on
the lake side of the Access Path.
Page 1 10 Response and Restoration Plan for Catawba Buffer on Lake Rhodhiss
Gary & Debra Palmer, 2089 Starboard Lane, Connelly Springs, NC 28612

Permeable `.
path to
Dock (6-focit
width)
50 foot
Line i
Figure 4 - Planned Access Path
Page 1 11 Response and Restoration Plan for Catawba Buffer on Lake Rhodhiss
Gary & Debra Palmer, 2089 Starboard Lane, Connelly Springs, NC 28612