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HomeMy WebLinkAbout20090587 Ver 1_More Info Received_20090901LMG LAND MANAGEMENT GROUP INC. ?MW Environmental Consultants August 28, 2009 TO: Ms. Joanne Steenhuis NC Division of Water Quality 127 Cardinal Drive Extension Wilmington, NC 28405 Oq - 0's 8F) QQC?¢onr?p SEP - 1 2009 DENR - WATER QUALITY WETLANDS AND STORMWATER BRANCH RE: 401 Water Quality Certification Application; Additional Information Mill Creek Subdivision; Onslow County, NC DWQ Project # 09-0587 Dear Joanne: Thank you for your letter dated June 26th, 2009 in which you request additional information for the 401 WQC application that was submitted for the Mill Creek Subdivision. Below is a response to each of your comments. The DWQ requests that the wetland flags be reflagged around the areas where the road drosses through wetlands and areas of adjacent wetland impacts. The DWQ conducted a site visit on Monday June 22, 2009 and found areas that looked like wetlands had been impacted with sediment. The DWQ met with David Murphy on site (6122109) and told him about the area. The DWQ came back on Thursday June 25, 2009 to re-inspect the removal ofsedinzent within the wetland area. It was very difficult to determine if the impacts had been removed due to the missing flags and the existing road alignment compared to the proposed road alignment. The Corps-approved wetland line has been reestablished in the areas indicated by DWQ. It is our understanding that you recently visited the site and agreed that this issue is resolved. 2. For wetland impacts #3b, 4, 5, and 6 no pipes are shown on the plan view or cross sections. To provide for interconnectivity of hydrology between wetlands the DWQ would require pipes. Please include pipes and modify the permit application accordingly. Enclosed are revised cross-sections of all wetland impacts including Impacts #3b, 4, 5, and 6 that show culverts at these crossings. All wetland areas requiring hydrology connectivity now include culverts. Page 5 of the PCN application has been revised and is enclosed. 3. On Sheet C-1, in Section H around impact #5, the upland islands look as if there are lot lines on them. There are no proposed impacts showing road crossings to access these areas. Please address this issue and modify the permit application accordingly. www.lmgroup.net • info@lmgroup.net • Phone: 910.452.0001 • Fax: 910.452.0060 3805 Wrightsville Ave., Suite 15, Wilmington, NC 28403 • P.O. Box 2522, Wilmington, NC 28402 No lots are proposed on these upland islands. The lines were from a previous version of the site plan and were incorrectly shown on the current plan. The lines have been removed (see enclosed plan). I hope this response adequately addresses your concerns. Please let me know if you need any additional information. Thank you for your assistance with this project. Sincerely, Ashley Futral Environmental Encl. Mr. Ian McMillan, DWQ Mr. David Bailey, USACE Mr. Mark Evans, Mill Creek Developers, LLC Mr. Justin Lewis, Paramounte Engineering 2 LMG LAND MANAGEMENT GROUP INC. "iW Environmental Consultants August 28, 2009 TO: Mr. David Bailey USACE 69 Darlington Avenue Wilmington, NC 28402 RE: Additional Information for the NWP 14 Application Mill Creek, Onslow County, NC SAW-2007-2428 Mr. Bailey: i Pkg IN 0169 SLEP - 1 2009 DENR - WATER QUALITY WETLANDS AND STORMWATER BRANCH Thank you for your email dated July 10, 2009 where you requested additional information or clarification regarding the Mill Creek project. Below is a response to each of your concerns. 1). The lot layout sent with the original permit application received May 22, 2009 is still a concern. I did notice the plat showing that houses could forseeably be sited within the lots of concern I referenced in my previous request. However, due to the number of lots platted with wetlands within their boundaries and the proximity of lots to those wetlands, I perceive an appreciable risk for secondary and cumulative wetland impacts once those lots are built out. As such I recommend the following: a) replat many of the lots such that houses and accesses could more reasonably be constructed and buyers could be expected to use their lots without impacting wetlands, or b) provide a preservation document such as Restrictive Covenants consistent with the USA CE preservation guidance (http //wtitin?? saw usace arrrly.nzil/WETLANDS/Mitigation/z?reservation.httnl) to provide protection for the remaining wetlands on site. The applicant has agreed to place all wetlands within lots into preservation (12 acres). Enclosed is the draft preservation language to be reviewed by you and Justin McCorkle of the USACE. Although the applicant does plan to preserve all remaining wetlands in the future, he does not want the preservation of wetlands located outside of lots to be a requirement of the permit. Preserving these wetlands will affect an upcoming appraisal of the land, and subsequently, tax benefits he may receive when the wetlands are preserved. The applicant is willing to buy into the Hofinann Forest Mitigation Bank at a 1:1 ratio in order to further satisfy mitigation requirements. We would be happy to meet with Justin and you to discuss this further, if needed. 2). Although non-riparian wetland mitigation is appropriate for the proposed impacts, your current compensatory mitigation proposal is insufficient. Consistent with our compensatory mitigation guidance and permitted projects within the Wilmington District, the compensatory mitigation proposal for wetland impacts should start at 2:1. Compelling irzformatiorz must be www.lmgroup.net • info@lmgroup.net • Phone: 910.452.0001 • Fax: 910.452.0060 3805 Wrightsville Ave., Suite 15, Wilmington, NC 28403 • P.O. Box 2522, Wilmington, NC 28402 submitted to justify a compensatory mitigation ratio less than 2:1. Keep in mind that avoidance and minimization measures, such as preserving remaining wetlands, will be taken into account when considering the final compensatory mitigation ratio. In order to satisfy compensatory mitigation requirements, our client has agreed to place all wetlands within lots into preservation (12 acres; draft language included) and will buy into the Hoffman Forest Mitigation Bank at the 1:1 ratio. 3). Avoiding impacts to the stream/wetland complex by bridging crossing # 7 at Mill Creek is duly noted and appreciated. However I need a better plan view showing the approaches, take off, and landing of the bridge in relation to the wetland line and the stream. I also need a detail of the bridge design in terms of what type of bridge it will be, how many bents it will have, etc. The enclosed bridge crossing plan (#7) and bridge details (B-1) illustrate the bridge position to the wetland and stream and include bridge design details. 4) The new sewer line temporary impact needs to be shown in greater detail than what is shown on the Crossing # 8 drawings. I believe that a 30' wide temporary impact corridor is proposed. It is my experience that the permanently maintained corridor typically only needs to be 10' wide. If possible reduce the temporary impacts to a 10' wide permanently maintained corridor including the trenchinglsoil disturbance corridor through the wetland area. I will need another cross section showing the permanently maintained corridor and clearing limits of the sewer corridor in wetlands. Further, please include a statement that the wetland area within the corridor will be returned to pre-construction grade and re-seeded with a wetland seed mix. Also, are the wetlands within this proposed corridor forested or herbaceous? The initial construction corridor will be 30' wide and will temporarily impact 0.02 acres of wetlands. This entire corridor will be returned to natural grade, and re-seeded with a wetland seed mix, however, a 20'-wide corridor will be permanently maintained and mowed, creating a permanent conversion in habitat. The additional 10' wide temporary impact area will be allowed to revegetate naturally (Wetland Crossing #8). The proposed sewer run is shown in Wetland Crossing #8. The wetlands within the proposed corridor have been impacted due to silvicultural activities but have since revegetated to a forested state. 5) There are 2 amenity ponds (that I could discern) proposed directly next to crossings 2 and 3. Please provide information on the depth including cross sections of the ponds to show that they will not drain the hydrology f om the adjacent wetlands. Also, do these ponds have outlets? If so where are they? Are there any other ponds proposed? The ponds previously depicted were from an older version of the site plan. They are no longer proposed and are not depicted in any of the enclosed figures. 6) We agree with the Division of Water Quality letter dated June 26, 2009, Additional Information Request # 2. Wetland impacts 3b, 4, 5, and 6 should include pipes for conveyance of hydrology. Please include pipes and modify the permit accordingly. Enclosed are revised cross-sections of all wetland impacts including Impacts #3b, 4, 5, and 6 that 2 show culverts at these crossings. All wetland areas requiring hydrology connectivity now include culverts. Page 5 of the PCN application has been revised and is enclosed. 7) We understand that work has started on the project. Please be aware that no work in jurisdictional areas has been permitted at this time. Further, sediment washing into jurisdictional areas may or may not have occurred at this time, but evidence of sediment and erosion control problems is another indicator that secondary and cumulative impacts to wetlands could be a concern on this project and will be strongly considered during the permitting process. Joanne Steenhuis with DWQ has visited the site and this issue has been addressed. I hope this information adequately answers your concerns. Please contact me if you have any additional questions. Thank you for your assistance with this project. Y, Ashley Futral Environmental cientist Encl. C: Mr. Ian McMillan, DWQ Ms. Joanne Steenhuis, DWQ Mr. Mark Evans, Mill Creek Developers, LLC Mr. Justin Lewis, Paramounte Engineering 3 OR-05%1 C. Proposed Impacts Inventory 1. Impacts Summary NL5%?:91--u V L!:-i 1 a. Which sections were completed below for your project (check all that apply): j E P - 1 2009 ® Wetlands ? Streams - tributaries ? Buffers DENR -WATER QUALITY ? Open Waters ? Pond Construction WETLANDS AND STORMNATER BRANCH 2. Wetland Impacts If there are wetland impacts proposed on the site, then complete this question for each wetland area impacted. 2a. 2b. 2c. 2d. 2e. 2f. Wetland impact Type of jurisdiction number - Type of impact Type of wetland Forested (Corps - 404, 10 Area of impact Permanent (P) or (if known) DWQ - non-404, other) (acres) Temporary T W 1 ®P ? T Road Crossing Bottomland Hardwoods ? Yes ®No ® Corps ®DWQ 03 W2 ®P ? T Road Crossing Bottomland Hardwoods ? Yes ® No ® Corps ® DWQ 01 W3 ® P ? T Culverted Road Bottomland ? Yes ® Corps 10 Crossing Hardwoods ® No ® DWQ W4 ®P ? T Culverted Road Bottomland ? Yes ® Corps .03 Crossing Hardwoods ® No ® DWQ W5 ®P ? T Culverted Road Bottomland ? Yes ® Corps .03 Crossing Hardwoods ® No ® DWQ W6 ®P ? T Culverted Road Bottomland ? Yes ® Corps 17 Crossing Hardwoods ® No ® DWQ W8 ? P ®T Utility Placement Bottomland Hardwoods El Yes ® No ® Corps ® DWQ 02 2g. Total wetland impacts .39 2h. Comments: Road crossing #7 is not included in the impact section of this application since it will be a bridged crossing. Impact #8 is temporary. 10' feet of the impact is a temporary disturbance corridor area allowed to revegetate naturally while the other 20' is a temporary impact which will be a permanently maintained corridor. 3. Stream Impacts N/A If there are perennial or intermittent stream impacts (including temporary impacts) proposed on the site, then complete this question for all stream sites impacted. 3a. 3b. 3c. 3d. 3e. 3f. 3g. Stream impact Type of impact Stream name Perennial Type of jurisdiction Average Impact number - (PER) or (Corps - 404, 10 stream length Permanent (P) or intermittent DWQ - non-404, width (linear Temporary (T) (INT)? other) (feet) feet) S1 ? P ? T ? PER ? Corps ? INT ? DWQ S2 ? P ? T ? PER ? Corps ? INT ? DWQ S3 ? P ? T ? PER ? Corps ? INT ? DWQ S4 ? P ? T ? PER ? Corps ? INT ? DWQ S5 ? P ? T ? PER ? Corps ? INT ? DWQ S6 ? P ? T ? PER ? Corps ? INT ? DWQ 3h. Total stream and tributary impacts Page 5 of 12 PCN Form - Version 1.3 December 10, 2008 Version D. Impact Justification and Mitigation 1. Avoidance and Minimization 1 a. Specifically describe measures taken to avoid or minimize the proposed impacts in designing project. Impacts were minimized by careful site design. Lots were rearranged to reduce impacts, especially near Impacts #3 and #4. All proposed impacts are final. A bridge will be constructed at Road Crossing #7 to avoid stream impacts. Road layout utilized existing roadways through wetlands. Crossing #8 will only be a temporary impact. 1 b. Specifically describe measures taken to avoid or minimize the proposed impacts through construction techniques. Construction of a bridge at Road Crossing #7 will ensure that no equipment will disturb the wetland stream area. Silt fencing will be used during construction to reduce sediment from eroding into the wetland areas. 2. Compensatory Mitigation for Impacts to Waters of the U.S. or Waters of the State 2a. Does the project require Compensatory Mitigation for impacts to Waters of the U.S. or Waters of the State? ® Yes ? No 2b. If yes, mitigation is required by (check all that apply): ? DWQ ® Corps 2c. If yes, which mitigation option will be used for this project? Payment will be made to the HFWMB if wetlands are considered non-riparian. ® Mitigation bank ? Payment to in-lieu fee program ? Permittee Responsible Mitigation 3. Complete if Using a Mitigation Bank 3a. Name of Mitigation Bank: Hofmann Forest Wetland Mitigation Bank (HFWMB) 3b. Credits Purchased (attach receipt and letter) Type Quantity 3c. Comments: Credits will not be purchased until notification of wetland type is received from the USACE. The HFWMB has been notified and they only have non-riparian credits available at this time. Also, all wetlands within lot boundaries will be placed into preservation in order to eliminate future impacts to wetlands. 4. Complete if Making a Payment to In-lieu Fee Program N/A 4a. Approval letter from in-lieu fee program is attached. ? Yes 4b. Stream mitigation requested: linear feet 4c. If using stream mitigation, stream temperature: ? warm ? cool ?cold 4d. Buffer mitigation requested (DWQ only): square feet 4e. Riparian wetland mitigation requested: acres 4f. Non-riparian wetland mitigation requested: acres 4g. Coastal (tidal) wetland mitigation requested: acres 4h. Comments: 5. Complete if Using a Permittee Responsible Mitigation Plan N/A 5a. If using a permittee responsible mitigation plan, provide a description of the proposed mitigation plan. 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WETLAND CROSSING #1-PLAN HORIZONTAL SCALE: 1"=50' 30 2' ` I z I Lij z p w1 z z Iw z J I w r O w o C) -r ?A I? 2c Z - I ? 3 I D PROPOSE I V I GRADE C I If EXISTING GRADE 2( 1 TIE SLOPE 'YP.) IETLAND (PACT AREA ROPOSED VATER MAIN -50 0 +50 WETLAND CROSSING #1 - CROSS 8EC110N HORIZONTAL SCALE: 1"=50' VERTICAL SCALE: 1"=5' GRAPHIC SCALE 0 25 50 100 150 SCALE: 1"=50' Date : 03/26/09 _ .. .. _ . ._.. e . - Scale: 1.=501 MILL CREEK DEVELOPERS, LLC PA RA M O UNTE Drawn: CWM 200 CAPE FEAR CIRCLE SUITE 1 rv c=s t N # r.ca t r4 i rtt cs_ Ch k: rcC SNEADS FERRY, NC 28460 Prof. No: 07128.PE :r y N 390 41 o PROPOSED 389 OF WAY LINE o C TI T?' N N WETLAND IMPACT 608 SF (0.01 Ac.) CROSS SECTION #2 355 PROPOSED y WATER MAIN d O SO WETLAND CROSSING #2 - PLAN HORIZONTAL SCALE: 1"=50' 30 30 W W EXISTING GRADE 25 3:1 TIE SLOPE (TYP.) PROPOSED WETLAND GRADE IMPACT AREA 20 20 PROPOSED WATER MAIN -50 0 +50 WETLAND CROSSING #2 - CROSS SECTION HORIZONTAL SCALE: 1"=50' VERTICAL SCALE: 1"=5' GRAPHIC SCALE 0 5 50 100 150 SCALE: 1"=50' Date : 03/26/09 Scale: =501 MILL CREEK DEVELOPERS, LLC F v RA N40 UNT Drawn: CWM 200 CAPE FEAR CIRCLE SUITE 1 cnk: TGC SNEADS FERRY, NC 28460 t N' N r. c N s,, . ?, E Proj. No: 07128.PE z Wl 1W z z o: z I J I r O W W O tY ( ? m-4 j J 25 i OPEN SPACE I 380 r PROPOSED N PROPOSED E, M IN SANITARY SEWER 359 w N WETLAND IMPACT 4,350 SF (0.10 Ac.) 2 CROSS SECTION #3 ?? 358 LZ OZ =1d 'z ° 25 w ?Ss ?" s M 0 0 N\' f? WETLAND CROSSING #3 - PLAN HORIZONTAL SCALE: 1"=50' PROPOSED GRADE WETLAND IMPACT AREA ROAD Q, / 50 R? 3:1 TIE SLOPE (TYP.) EXISTING GRADE DPOSED 84LF 18" III RCP @ 1.9% IN=23.41' OUT=21.77' -50 0 +50 WETLAND CROSSING 4 3a CROSS SECTION HORIZONTAL SCALE: 1"=50' VERTICAL SCALE: 1"=5' GRAPHIC SCALE 0 25 50 100 150 SCALE: 1"=50' Date : 03/26/09 Scale: 111=50' MILL CREEK DEVELOPERS, LLC DARAMOUNTE Drawn : Cwm 200 CAPE FEAR CIRCLE SUITE I G N C> 1 N c- L R N ?.. N G Chk: TGC SNEADS FERRY, NC 28460 Proj. No: 07128.PE \ 358 357 N O c, ROSS SECTI N 3 C) W O 1+Z' W WN m n ROAD. a 50' al?w z 4t ' Gi S SS WERAND CROSSING f 3 PLAN HORIZONTAL SCALE: 1"=50' 3:1 TIE SLOPE (TYP.) WETLAND IMPACT AREA PROPOSED GRADE EXISTING GRADE PROPOSED 124LF 18" III RCP @ 0.57% / IN=20.89' / OUT=20.17' -75 -50 0 +50 +75 WERAND CROSSING # 3b CROSS SECTION HORIZONTAL SCALE: 1"=50' VERTICAL SCALE: 1"=5' GRAPHIC SCALE 0 25 50 100 150 SCALE: 1 °=50' Date : 03/26/09 Scale: 1"=50' MILL CREEK DEVELOPERS, LLC / `RA Mtnti„_JNTE Drawn: CWM 200 CAPE FEAR CIRCLE SUITE I 111 Cnk: TGC SNEADS FERRY, NC 28460 Proj, No: 07128.PE 359 WETLAND IMPACT__, 4,350 SF (0.10 Ac.} i ti OPEN SPACE, C7 252 C, I O 3- WETLAND IMPACT LL WETLAND IMPACT 405 SF (0.01 Ac.) 656 SF (0.02 Ac.) S S CT # 4 ?/ ? a y 190 1 9 9 3 - - a Os PROPOSED N w FORCE MAIN p Ai o P ROPOSED 279 401 WATER MAIN J 278 WETLAND CROSSING f 4 PLAN HORIZONTAL SCALE: 1"=50' 25 w w 25 ' >J 01 ? C" 3:1 TIE SLOPE PROPOSED (TYP.) GRADE 20 1 ( 20 WETLAND IMPACT w w AREA (TYP.) Z w Z = I EXISTING J z ' GRADE ? J 0 PROPOSED Q w z PROPOSED FORCE MAIN w z w WATER MAIN W 15 3: 013: 15 PROP OSED 56 LF 18" RCP @ 1.4% INV IN =20.77' INV O UT =19.94' -50 0 +50 WE UND CROSSING 14 CROSS SEC11ON HORIZONTAL SCALE: 1"=50' VERTICAL SCALE: V=5' GRAPHIC SCALE 0 25 50 100 150 SCALE: 1"=50' Date : 03/26/09 Scale: 11.=50' MILL CREEK DEVELOPERS, LLC ? R 11' f? 1 k_ ! TT Drawn: CWm 200 CAPE FEAR CIRCLE SUITE I Chk: TGC SNEADS FERRY, NC 28460 L N G i N G G P2 I I N G. Proj. No: 07128.PE 3C 3:1 TIE SLOPE - (TYP.) 2E WETLAND IMPACT- AREA (TYP.) EXISTING GRADE 2C z z _ z OI W 001 U I I _I I I z Z? O Q ~ o Q ~ 30 -PROPOSED GRADE !5 -PROPOSED 70 LF 30" RCP @ 3.4% INV IN =22.37' INV OUT =19.96' )0 -50 0 +50 WETLAND CROSSING # 5 CROSS SECTION HORIZONTAL SCALL: 1 "=50' VERTICAL SCALE: 1"=5' GRAPHIC SCALE 0 25 50 100 150 SCALE: 1"=50' Date : 03/26/09 Scale: V=50' MILL CREEK DEVELOPERS, LLC ?J Drawn: CWM 200 CAPE FEAR CIRCLE SUITE I JL 'c ]k Cnk: Tcc SNEADS FERRY, NC 28460 r_ c m ( rv c t N c N c t N Proj. No: 07128.PE o f o lz? Q ? WETLAND IMPACT 7,580 SF (0.17 Ac.) ao N6 44 0 WETLAND CROSSING 16 PLAN HORIZONTAL SCALE: 1 "=50' 35 w1- 35 z _ UJI PROPOSED JI GRADE 3:1 TIE SLOPEc (TYP.)?K 30 ` 30 WETLAND IMPACT EXISTING _I I GRADE AREA (TYP.) I 1 I 1 25 25 PROPOSED 56LF 18" CL III RCP @ 1.0% INV IN=30.06' INV OUT=2 .42' -50 0 +50 WETLAND CROSSING q 6 CROSS SECTION HORIZONTAL SCALE: 1 "=50' VERTICAL SCALE: 1"=5' GRAPHIC SCALE 0 25 50 100 150 SCALE: 1"=50' Date : 04/13/09 Scale: 1"=50' MILL CREEK DEVELOPERS, LLC P'AR MOLTI` T Drawn : cwM 200 CAPE FEAR CIRCLE SUITE 1 L- N C„ 1 r„ cr-, R, N t N c Cnk: TGC SNEADS FERRY, NC 28460 Proj. No: 07128.PE 0 0 + N 0? O O 1 41' BRIDGE CROSSING (MILL CREEK) *7 - PLAN HORIZONTAL SCALE: 1"=50' 20 PROPOSED- BRIDGE CROSSING 1; 1C 1 z lij ZI J Of JI w WI z JI 1 1 _ 0 L W OI 0 -I 1 20 15 EXISTING GRADE 10 -50 0 +50 BRIDGE CROSSING (MILL CREEK) 07 - CROSS SECTION HORIZONTAL SCALE: 1"=50' VERTICAL SCALE: 1'.=5' GRAPHIC SCALE 0 25 50 100 150 SCALE: 1"=50' Date : 03/26/09 Drawn: 1°=50' MILL CREEK DEVELOPERS, LLC D A RA M O ?„?1 CWm 200 CAPE FEAR CIRCLE SUITE I I-"(-- r NE:V-" I N<--. IN E C Chk: TGC SNEADS FERRY NC 28460 Proj. No: 07128.PE A: AND TO BE ALLOWED TO 3ETATE NATURALLY 2 EXISTING GRADE 1 10' TEMPORARY IMPACT AREA (TO BE ALLOWED TO REVEGETATE NATURALLY) WETLAND CROSSING #8 - PLAN HORIZONTAL SCALE: 1"=50' 5 - 25 W : W z :.. , . z J , _1 W W W .; ` W 5 - Q Q -- 15 W w 1 5 5 P S 7 JdY. / 20' TEMPORARY WETLAND IMPACT AREA (TO BE A PERMANENTLY MAINTAINED CORRIDOR ROPOSED EWER RUN -50 0 +50 WETLAND CROSSING #8 - CROSS SECTION HORIZONTAL SCALE: 1"=50' VERTICAL SCALE: 1"=5' GRAPHIC SCALE 0 25 50 100 150 SCALE: 1 °=50' Date : 04/13/09 J? RA M O T -? E Drape: Wm MILL CREEK DEVELOPERS, LLC ?,! ?.1 Drawn : CwM 200 CAPE FEAR CIRCLE SUITE 1 t=_ (-{ 1 N t o k N Chk: TGC SNEADS FERRY, NC 28460 Proj. No: 07128.PE 9VSZ-D:# asuaol? ON ON `AINnoo MOISNO °s (J) 09L9-LU (OL6) (0) LOL9-L6L (066) 11 3SVHd a ' oynsZ ON'Adal-4 SCIVgNS E068Z eu!IOJ80 uuoN `uoK6ulwl!M I all C1S nodiJ livaj advi ooz LOZ aps'anua lapueal0 L L69 >I332JO IIIIN IV ONIONVI 3Hl NOLLVW210dN1 gNIM\4J0 ? ,z D-11r `sxaao'tanaa xaax? IIiw t s I_r 1 ff{f j'-y? T t? ?? f ` {I 1 1 .1 '1 K ?Ah, " L J ? [ 1. 3..1. ?I. +3 ',-?17 w J Q U rn 0 F- I- 0 z s M i. a i' Li C4 I w f Jl 9 c? C? _- 3 w u; z ? k1 W s-y. xa 1 r Ca F- 1 4( tl 1 i ? 7 ? .3 k G1 ? I } 17.1 . , w . ?, ? ? I t ? Sri 5 i y I y,^ t '? 't ??? 3 ? rr I r' ss? , I 1 V. tl t ` I I s •? r 1 4 I % - ?1 k - ? ? ? 1 1'.t=K _ 4 I 1 I• _ r ?__? i IIS f ?-Y `? 7 ? I 1 .` 1 ( I f1 -`'N 4 t" , Prepared by: ERWIN, SIMPSON & STROUD, PLLC 825 Gum Branch Road, Suite 115 Jacksonville, NC 28540 Index in the Grantor Book LANDING AT MILL CREEK CNYA INVESTMENTS (NC), LLC MILL CREEK DEVELOPMENT CORPORATION, INC. LANDING AT MILL CREEK ARCHITECTURAL CONTROL COMMITTEE THE LANDING AT MILL CREEK COMMUNITY SERVICES ASSOCIATION, INC. STATE OF NORTH CAROLINA ONSLOW COUNTY CONSERVATION DECLARATION This DECLARATION of CONSERVATION COVENANTS, CONDITIONS, and RESTRICTIONS ("Conservation Easement") is made on this day of SEPTEMBER, 2009, by CNYA INVESTMENTS (NC), LLC and MILL CREEK DEVELOPMENT CORPORATION, INC., ("Declarant"). RECITALS & CONSERVATION PURPOSES A. Declarant is the sole owner in fee simple of the certain Conservation Property (Property) being approximately acres, more particularly described in Exhibit A attached hereto and by this reference incorporated herein; and ERWIN, SIMPSON & STROUD Attorneys, P.L.L.C. - Telephone: (910) 455-1800 825 Gum Branch Road, Suite 115, Jacksonville, NC 28540 B. The purpose of this Conservation Easement is to maintain wetland and/or riparian resources and other natural values of the Property, and prevent the use or development of the Property for any purpose or in any manner that would conflict with the maintenance of the Property in its natural condition. The preservation of the Property in its natural condition is a condition of Department of the Army permit Action ID SAW-2007-02428 issued by the Wilmington District Corps of Engineers (Corps), required to mitigate for unavoidable impacts to waters of the United States authorized by that permit, and this Conservation Declaration may therefore be enforced by the United States of America. NOW, THEREFORE the Declarant hereby unconditionally and irrevocably declares that the Property shall be held and subject to the following restrictions, covenants and conditions as set out herein, to run with the subject real property and be binding on all parties that have or shall have any right, title, or interest in said property. ARTICLE L PROHIBITED AND RESTRICTED ACTIVITIES Any activity on, or use of, the Property inconsistent with the purposes of this Conservation Declaration is prohibited. The Property shall be maintained in its natural, scenic, and open condition and restricted from any development or use that would impair or interfere with the conservation purposes of this Conservation Declaration set forth above. Without limiting the generality of the foregoing, the following activities and uses are expressly prohibited or restricted. A. Disturbance of Natural Features. Any change disturbance, alteration or impairment of the natural features of the Property or any introduction of non-native plants and/or animal species is prohibited. B. Construction. There shall be no constructing or placing of any building, mobile home, asphalt or concrete pavement, billboard or other advertising display, antenna, utility pole, tower, conduit, line, pier, landing, dock or any other temporary or permanent structure or facility on or above the Property. C. Industrial, Commercial and Residential Use. Industrial, residential and/or commercial activities, including any right of passage for such purposes are prohibited. D. Agricultural, Grazing and Horticultural Use. Agricultural, grazing, animal husbandry, and horticultural use of the Property are prohibited. E. Vegetation. There shall be no removal, burning, destruction, hanning, cutting or mowing of trees, shrubs, or other vegetation on the Property. ERWIN, SIMPSON & STROUD Attorneys, P.L.L.C. - Telephone: (910) 455-1800 825 Gum Branch Road, Suite 115, Jacksonville, NC 28540 F. Roads and Trails. There shall be no construction of roads, trails or walkways on the property. G. Si na e. No signs shall be permitted on or over the Property, except the posting of no trespassing signs, signs identifying the conservation values of the Property, signs giving directions or proscribing rules and regulations for the use of the Property and/or signs identifying the Grantor as owner of the property. H. Dumping or Storage. Dumping or storage of soil, trash, ashes, garbage, waste, abandoned vehicles, appliances, machinery or hazardous substances, or toxic or hazardous waste, or any placement of underground or aboveground storage tanks or other materials on the Property is prohibited. 1. Excavation. Dredging or Mineral Use. There shall be no grading, filling, excavation, dredging, mining or drilling; no removal of topsoil, sand, gravel, rock, peat, minerals or other materials, and no change in the topography of the land in any manner on the Property, except to restore natural topography or drainage patterns. J. Water Quality and Drainage Pattern. There shall be no diking, draining, dredging, channeling, filling, leveling, pumping, impounding or related activities, or altering or tampering with water control structures or devices, or disruption or alteration of the restored, enhanced, or created drainage patterns. In addition, diverting or causing or permitting the diversion of surface or underground water into, within or out of the easement area by any means, removal of wetlands, polluting or discharging into waters, springs, seeps, or wetlands, or use of pesticide or biocides is prohibited. K. Development Rights. No development rights that have been encumbered or extinguished by this Conservation Declaration shall be transferred pursuant to a transferable development rights scheme or cluster development arrangement or otherwise. L. Vehicles. The operation of mechanized vehicles, including, but not limited to, motorcycles, dirt bikes, all-terrain vehicles, cars and trucks is prohibited. M. Other Prohibitions. Any other use of, or activity on, the Property which is or may become inconsistent with the purposes of this grant, the preservation of the Property substantially in its natural condition, or the protection of its environmental systems, is prohibited. ARTICLE II. ENFORCEMENT & REMEDIES A. This Declaration is intended to ensure continued compliance with the mitigation condition of authorizations issued by the United States ofAmerica, U.S. ArmyCorps of Engineers, Wilmington District, and therefore may be enforced by the United States of America. This covenant ERWIN, SIMPSON & STROUD Attorneys, P.L.L.C. - Telephone: (910) 455-1800 825 Gum Branch Road, Suite 115, Jacksonville, NC 28540 3 is to run with the land and shall be binding on all parties and all persons claiming under the Declarant. B. Corps, its employees and agents and its successors and assigns, have the right, with reasonable notice, to enter the Property at reasonable times for the purpose of inspecting the Property to determine whether the Declarant, Declarant's representatives, or assigns are complying with the terms, conditions and restrictions of this Conservation Declaration. C. Nothing contained in this Conservation Declaration shall be construed to entitle Corps to bring any action against Declarant for any injury or change in the Conservation Property caused by third parties, resulting from causes beyond the Declarant's control, including, without limitation, fire, flood, storm, and earth movement, or from any prudent action taken in good faith by the Declarant under emergency conditions to prevent, abate, or mitigate significant injury to life, damage to Property or harm to the Property resulting from such causes. ARTICLE III. PUBLIC ACCESS A. This Conservation Declaration does not convey to the public the right to enter the Property for any purpose whatsoever. ARTICLE IV. DOCUMENTATION AND TITLE A. Conservation Property Condition. The Declarant represents and acknowledges that the Property is currently undeveloped land, with no improvements other than any existing utility lines, Declarations and rights of way. B. Title. The Declarant covenants and represents that the Declarant is the sole owner and is seized of the Property in fee simple and has good right to make the herein Declaration; that there is legal access to the Property, that the Property is free and clear of any and all encumbrances, except Declarations of record. ARTICLE V. MISCELLANEOUS A. Conservation Purpose. Declarant, for itself, its successors and assigns, agrees that this Conservation Property shall be held exclusively for conservation purposes. B. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Conservation Declaration and supersedes all prior discussions, negotiations, understandings or agreements relating to the Conservation Declaration. If any provision is found to be invalid, the remainder of the provisions of this Conservation Declaration, and the application of ERWIN, SIMPSON & STROUD Attorneys, P.L.L.C. - Telephone: (910) 455-1800 825 Gum Branch Road, Suite 115, Jacksonville, NC 28540 4 such provision to persons or circumstances other than those as to which it is found to be invalid, shall not be affected thereby. C. Recordinia. Declarant shall record this instrument and any amendment hereto in timely fashion in the official records of Onslow County, North Carolina, and may re-record it at any time as may be required to preserve its rights. D. Environmental Condition of Conservation Property. The Declarant warrants and represents that to the best of its knowledge after appropriate inquiry and investigation: (a) the Property described herein is and at all times hereafter will continue to be in full compliance with all federal, state and local environmental laws and regulations, and (b) as of the date hereof there are no hazardous materials, substances, wastes, or environmentally regulated substances (including, without limitation, any materials containing asbestos) located on, in or under the Property or used in connection therewith, and that there is no environmental condition existing on the Property that may prohibit or impede use of the Property for the purposes set forth in the Recitals. IN WITNESS WHEREOF, as the above date, Grantor (whether person, corporation, limited liability company, general partnership, limited partnership, or other entity) has signed this instrument in the ordinary course of business, by the signature(s) below if its duly authorized representative(s), as the act of such entity. CNYA INVESTMENTS (NC), LLC BY: MARK S. EVANS, Manager MILL CREEK DEVELOPMENT CORPORATION, INC. BY: MARK S. EVANS, PRESIDENT ERWIN, SIMPSON & STROUD Attorneys, P.L.L.C. - Telephope: (910) 455-1800 825 Gum Branch Road, Suite 115, Jacksonville, NC 28540 Onslow County North Carolina I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated: MARK S. EVANS (for CNYA INVESTMENTS (NC), LLC) Date: (Official Signature of Notary) (Notary's printed or typed name) (Official Seal) My commission expires: Notary Public Onslow County North Carolina I certify that the following person(s) personally appeared before me this day, each acknowledging to me that he or she voluntarily signed the foregoing document for the purpose stated therein and in the capacity indicated: MARK S. EVANS (for Mill Creek Development Corporation, Inc.) Date: (Official Signature of Notary) (Notary's printed or typed name) (Official Seal) My commission expires: Notary Public r:/ rescovs /conserv RC pref 032008.wpd K:\EVANS,MARK\MILLCREEK\RC\CONSERV RC MILL CREEK 11 080309 080409fwe ERWIN, SIMPSON & STROUD Attorneys, P.L.L.C. - Telephone: (910) 455-1800 825 Gum Branch Road, Suite 115, Jacksonville, NC 28540 6 EXHIBIT A Being all of that property depicted and shown on that plat entitled "Wetlands Delineation for Lots at The Landing at Mill Creek," date , and recorded in Map Book , Page , Onslow County Registry. ERWIN, SIMPSON & STROUD Attorneys, P.L.L.C. - Telephone: (910) 455-1800 825 Gum Branch Road, Suite 115, Jacksonville, NC 28540 7