20181409 Ver 1_20181002_NOV2018-CV-0008_20181002

ROY COOPER
coves
[MICHAEL S. REGAIN
Ser 1-Y
LINDA CULPEPPER
lrtrfrfm airecw
October 2, 2018
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Avery's Creek LLC
Attention: Mr. Frederick Spiegel
21 Palm Avenue
Miami Beach, FL 33139
Return Receipt #
7017 2620 0000 9759 5909
NCq'rH CAROLINA
Errlrironmeretal QEfarily
SUBJECT: NOTICE OF VIOLATION and
RECOMMENDATION FOR ENFORCEMENT
The Preserves at Avery Creek Subdivision
NOV-2018-CV-0008
Failure to Secure 401 Water Quality Certification
Stream Standard Violation — Removal of Best Usage
Buncombe County
Response deadline: November 2, 2018
Dear Mr. Spiegel:
On September 28, 2018, Zan Price from the Asheville Regional Office of the Division of Water
Resources (DWR) conducted a site inspection at your property known as The Preserves at Avery
Creek on Starwood Valley Trail (Buncombe County Parcel Identification Number 9634-23-
2258-00000) as a follow up inspection to an Unauthorized Activity letter issued to you from the
US Army Corps of Engineers (SAW -2016-02051). You were present during the site inspection.
During the site inspection, an unnamed tributary to Avery Creek, classified B, was observed to
have been impacted by the placement of fill material without authorization. The tributary was
identified as stream segment S2 on a delineation map dated June 11, 2015 created by C1earWater
Environmental. A Nationwide Permit was issued to you by the Corps of Engineers on December
14, 2016 for approximately 44 linear feet of stream channel and 0.07 acres of wetlands. This
permit and subsequent modification request did not include the impacts to stream S2.
As a result of the site inspection and file review, the following violations were identified:
e;�-�D.EQ
North Carolina Department of Environmental Quality I Division of Water Resources
2090 US 70 Highway, Swannanoa, NC 28778
828.296.4500

The Preserves at Avery Creek Subdivision
NOV-2018-CV-0008
Page 2 of 3
VIOLATIONS
I. Failure to Secure a 401 Water Quality Certification — A review of records confirmed
that the DWR nor the US Army Corps of Engineers (USACE) has received an application
for a 404 permit or 401 Water Quality Certification (WQC), prior to the impacts noted
above for stream S2. Such an application is required pursuant to Section 404 of the
Clean Water Act and Part 15A of North Carolina Administrative Code 2H .0500.
II. Conditions of Best Usage - 15A NCAC 02B.0211 (2) — The stream impact from
unauthorized fill material, is a violation of Title 15A North Carolina Administrative Code
02B .0211 (2) which requires that "The waters shall be suitable for aquatic life
propagation and maintenance of biological integrity, wildlife, secondary recreation, and
agriculture; sources of water pollution which preclude any of these uses on either a short-
term or long-term basis shall be considered to be violating a water quality standard."
REQUIRED RESPONSE
Accordingly, you are directed to respond to this letter in writing by November 2, 2018. Your
response should be sent to this office at the footer address or via email to zan.price(pncdenr.gov
and include the following:
1. Two (2) options exist to resolve the violations related to the 401 WQC:
Apply to the U.S. Army Corps of Engineers (USACE) for and receive a 404
Permit pertaining to the unauthorized fill. A 401 WQC will be required if the
activities are permitted by the USACE. The application process as described does
not guarantee the impacts will be approved.
2. Remove the fill and restore the stream to pre-existing conditions.
If pursuing Option 1:
a. Contact the USACE to determine the permitting needs of the activities you have
undertaken. The Asheville office phone number is [phone].
b. Provide a proposed schedule of when you expect to have the required permit
application (401 WQC application) submitted to DWR. As discussed during the
site visit, the permit application must address how you plan to maintain hydrology
in the unimpacted portion of stream S2.

The Preserves at Avery Creek Subdivision
NOV-2018-CV-0008
Page 3 of 3
If pursuing Option 2:
a. Please submit a stream restoration plan to this office for review and approval.
You are encouraged to secure an environmental consultant experienced in stream
restoration to assist you with development of your plan and authorization
necessary to achieve compliance. The plan must include the removal of the
impacts, restoration of the stream channel, and restoration of the streambanks,
buffers, and wetlands if applicable.
c. It is recommended that your consultant contact Zan Price of the Asheville
Regional Office for additional guidance during plan development. The plan
should include a proposed schedule with dates that indicate when you expect to
begin and complete the work. Once the plan has been approved, implemented
and is complete, a final report documenting work should be submitted to Zan
Price.
Thank you for your attention to this matter. This Office is considering sending a
recommendation for enforcement to the Director of the Division of Water Resources regarding
these issues, issues presented in NOV-2018-SS-0013, and any future/continued violations that
may be encountered. Your above-mentioned response to this correspondence will be considered
in this process. This office requires that the violations, as detailed above, be abated
immediately. These violations and any future violations are subject to a civil penalty
assessment of up to $25,000.00 per day for each violation.
Should you have any questions regarding these matters, please contact Zan Price at (828) 296-
4662 or zan.pricegncdenr.gov.
Sincerely,
Zan Price, P.E., Assistant Regional Supervisor
Water Quality Regional Operations
Asheville Regional Office
cc: Amanda Jones — USACE (email copy)
Andrea Leslie — NCWRC (email copy)
Jason Guess — Buncombe County (email copy)
Clement Riddle — C1earWater Environmental (email copy)
Nick Bowman — Davis Civil Solutions (email copy)
Karen Higgins - 401 & Buffer Permitting Unit
ARO File Copy
G:\WR\WQ\Buncombe\401s\Non-DOT\Preserve at Averys Creek\20181002_Preserves Avery Creek_NOV2018-CV-0008.docx