20181409 Ver 1_Approval Letter_20181121

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

November 21, 2018
DWR # 18-1409
Buncombe County

Frederick B. Spiegel
21 Palm Avenue
Miami Beach, FL 33139-5137

Subject: APPROVAL OF 401 WATER QUALITY CERTIFICATION WITH
ADDITIONAL CONDITIONS
The Preserve at Avery’s Creek

Dear Mr. Spiegel:

You have our approval for the impacts listed below for the purpose described in your application
dated October 15, 2018 and received by the Division of Water Resources (Division) on October
15, 2018, 2018, with payment received on October 17, 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 29 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)]

The Preserve at Avery’s Creek
DWR# 18-1409
401 Approval
Page 2 of 4

Type of Impact

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

Stream Impact
Impact S1 101 (linear feet)
Impact S2 112 (linear feet)
Impact S3 5 (linear feet)
Impact S4 20 (linear feet)
Wetland Impact
Impact W1 0.06 (acres)
Impact W2 0.01 (acres)

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. The turbidity standard of 50 NTUs (Nephelometric Turbidity Units) shall not be
exceeded as described in 15 A NCAC 02B .0200. Appropriate sediment and erosion
control practices must be used to meet this standard. [15A NCAC 02B .0200]

4. Any additional impacts to streams and/or wetlands as a result of future roads, buildings,
driveways, utility lines or other development related activities within this subdivision
will require a modification of this 401 Water Quality Certification approval. [15A
NCAC 02H .0506(4) and 15A NCAC 02H .0501 and .0502]

5. Please be aware that by having impacted streams without first applying for and securing
the issuance of a 401 Water Quality Certification, you have violated Title 15A of the
North Carolina Administrative Code (NCAC) 2H .0500. Title 15A NCAC 2H .0500
requires certifications pursuant to Section 401 of the Clean Water Act whenever
construction or operation of facilities will result in a discharge into navigable waters,
including wetlands, as described in 33 Code of Federal Regulations (CFR) Part 323. It
also states any person desiring issuance of the State certification or coverage under a
general certification required by Section 401 of the Federal Water Pollution Control Act
shall file with the Director of the North Carolina Division of Water Quality. Pursuant to
G.S. 143-215.6A, these violations and any future violations are subject to a civil penalty
assessment of up to a maximum of $25,000.00 per day for each violation. [15A NCAC
2H .0500]

The Preserve at Avery’s Creek
DWR# 18-1409
401 Approval
Page 3 of 4

6. 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. 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.

7. Upon completion/installation of the Permanent Basin adjacent to Stream 2 (S2) as noted
on the provided plan sheets, a monitoring plan should be submitted yearly for two
consecutive years that shows this basin is adequately maintaining hydrology in the
remaining reaches of S2. If this basin does not adequately maintain hydrology as
proposed, a permit modification and/or additional permit authorization along with
associated stream mitigation may be required for the remaining portions of stream
channel impacted by this development.

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

This Certification can be contested as provided in 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
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
The Preserve at Avery’s Creek
DWR# 18-1409
401 Approval
Page 4 of 4

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 Zan Price at 828-296-4662 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

cc: Amanda Jones – USACE Asheville Regulatory Field Office (via email)
Andrea Leslie – NCWRC (via email)
Buncombe County Planning (via email)
Clement Riddle – ClearWater Environmental (via email)
DWR ARO 401 files

G:\WR\WQ\Buncombe\401s\Non-DOT\Preserve at Averys Creek\20181121_Preserves at Avery Creek_APPRV.docx

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

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 ____________________