19980382 Ver 1_COMPLETE FILE_19980504

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
P.O. BOX 1890
WILMINGTON, NORTH CAROLINA 28402-1890
IN REPLY REFER TO
Regulatory Division
May 12, 1999
Action ID Numbers: 199830713- Nationwide Permit 14
199830728- Nationwide Permit 26
Stephen D. Rice, President
A & H Development, LLC
Post Office Box 5883
Asheville, North Carolina 28813
Dear Mr. Rice:
Reference your March 26, 1999 letter requesting clarification on stream mitigation
requirements for the above nationwide permit verifications issued on May 12, 1998. The
authorized work consisted of a culverted road crossing and a combination earthen dam and road
crossing on an unnamed tributary to Robinson Creek at the Poplar Ridge Development off of
SR 3121 in Asheville, Buncombe County, North Carolina.
Approximately 120 li'flear feet of stream channel was impacted by the culverted crossing
of Poplar Ridge Drive near the entrance to the subdivision under nationwide permit number 14
(Road Crossings). The footprint of the base of the earthen dam, which covered approximately
90-feet of channel, was authorized by nationwide permit number 26 (Headwaters and Isolated
Waters Discharges).
Regional conditions placed on nationwide permit 26 by the Wilmington District require a
plan to mitigate for all unavoidable adverse impacts to more than 150 feet of stream channel.
This regional condition was not included in the special conditions of nationwide permit 14.
Since only 120-feet of stream channel was impacted under nationwide permit 26, stream channel
mitigation was not a requirement of your Department of the Army (DA) authorization.
As you are aware, these nationwide permit authorizations also require that you receive
valid Section 401 water quality certifications from the North Carolina Division of Water Quality
(NCDWQ). Mitigation requirements set forth by DWQ are the result of State laws and
regulations, and are solely the decision of that agency. Where there may be overlapping channel
mitigation requirements, the Corps of Engineers and the Division of Water Quality generally
coordinate such requirements in an effort to bring about regulatory consistency.
2
If you have any further questions please contact Mr. David Baker at [phone].
Sincerely,
t
Robert W. Johnson
Office Manager
Asheville Regulatory Field Office
Copy furnished:
John Dorney
NCDWQ
4401 Reedy Creek Road
Raleigh, NC 27607
William Lapsley
Post Office Box 546
Hendersonville, NC 28793

A & H DEVELOPMENT. LL C
P.O. Box 5883
Asheville, NC 28813
[phone]
FAX [phone]
March 22, 1999

Mr. John Dorney L:„-. . .
NCDENR
Division of Water Quality ?E
Environmental Sciences Branch
G
4401 Reedy Creek Road
Raleigh, NC 27607 ?
0
Re: DWQ Project #980382
Dear Mr. Dorney:
I am in receipt of your letter dated 2/24/99. Your response that it is "untrue"
there is no provision in Nationwide Permit #14 for stream mitigation is not adequate.
I have enclosed for you copies of both Nationwide Permit #14 and Nationwide
Permit #26 conditions. I have highlighted the references to stream mitigation provisions
in the Nationwide Permit #26. There are no such references in the conditions of
Nationwide Permit #14.
As you are aware, under the terms of the Memorandum of Understanding
between the North Carolina's Department of Environment and Natural Resources and
the United States Army Corps of Engineers Wilmington District, specifically Paragraph
IV, Section B, determination of whether the use of the North Carolina Wetland
Restoration Program is appropriate is up to the Corps. The amount of linear feet of
stream that is impacted is to be specified by the Corps.
The North Carolina Wetland Restoration Program plays no role in the Corps
decision as to whether compensatory mitigation is a necessary condition of any such
permit.
As I stated in my letter to you dated February 17, 1999, our permit used
Nationwide Permit #14 for our first road crossing and Nationwide Permit #26 for the
construction of our dam. I have attached a copy of this permit.
My position in reference to this issue is as follows:
1. Whether a contribution is required to the North Carolina Wetland Restoration
Program fund is not your decision; it is the decision of the Corps (Paragraph IV,
Section B).
2. There is no provision in the Memorandum of Understanding that allows the linear
footage of streams impacted by Nationwide Permit #14 and Nationwide Permit #26
to be combined.
3. The linear footage of impacted stream on our project under Nationwide Permit #26
is 120 feet, which does not require compensatory mitigation.
4. The Corps is responsible for specifying the amount of linear feet of stream that is
impacted, not the North Carolina Wetland Restoration Program (Paragraph IV,
Section B).
5. By copy of this letter, I am requesting a decision by the Corps as to whether
compensatory mitigation is required on this project.
It appears to me that based on the Memorandum of Understanding between the
North Carolina's Department of Environment and Natural Resources and the United
States Army Corps of Engineers Wilmington District, you are operating outside your
authority. You do not have the authority to determine whether compensatory mitigation
is required, nor do you have the authority to make a determination as to the amount of
stream that has been impacted.
If you feel otherwise, then furnish me with copies of all documents that provide
you and your organization with these responsibilities by the Corps. If you do not
provide these, I am proceeding with the specific understanding that we are in full
compliance of our Corps permits on this project.
Sincerely,
A & H DEVELOPMENT, LLC
Stephen D. Rice
President
SDR/Isp
Enclosures
CC: Mr. David Baker, Corps of Engineers Asheville Field Office
Mr. Mike Parker, Asheville DWQ Regional Office
Mr. Ron Ferrell, Wetland Restoration Program
Mr. William Lapsley
U.S. ARMY CORPS OF ENGINEERS
WILMINGTON DISTRICT
Action Id. 199830713 - Nationwide permit 14 county Buncombe
199830728 - Nationwide permit 26
GENERAL PERMIT (REGIONAL AND NATIONWIDE) VERIFICATION
Property owner: Stephen Rice
Address: Post Office Box 5883
Asheville, North Carolina 28813
Telephone No.: [phone]
Size and Location of project (water body, road name/number, town, etc.):
Poplar Ridge Subdivision consisting of approximately 172 acres located off of SR 3121,
Pinners Cove Road, in Asheville, NC. Tributaries to Robinson Creek traverse the property.
Description of Activity:
to install a twin 60-inch by 120-foot long culverted road crossing (Poplar Ridge Drive) and
to construct a 90-foot wide dam to create a small recreational pond on the unnamed tributaries
to Robinson Creek.
Applicable Law: X Section 404 (Clean Water Act, 33 U.S.C.1344).
(check all that apply) Section 10 (River and Harbor Act of 1899).
Authorization: Regional General Permit Number.
14 and 26 Nationwide Permit Numbers.
Your work is authorized by this Regional General (RGP) or Nationwide Permit (NWP) provided it is accomplished in
strict accordance with the attached conditions, those outlined in the attached May 8, 1998 NC Wildlife
Resources Commission letter, and your submitted plans.
Please read and carefully comply with the attached conditions of the RGP or NWP. Any violation of the conditions
of the RGP or the NWP referenced above may subject the pennittee to a stop work order, a restoration order, and/or
appropriate legal action.
This Department of the Army RGP or NWP verification does not relieve the permittee of the responsibility to obtain
any other required Federal, State, or local approvals/permits. The permittee may need to contact appropriate State
and local agencies before beginning work.
If there are any questions regarding this authorization or any of the conditions of the General Permit or
Nationwide Permit, please contact the Corps Regulatory Official specified below.
Date: May 12, 1998
Corps Regulatory Official David Baker Telephone No. [phone]
Expiration Date of Verification May 12, 2000 (NW 14), December 13, 1998 (NW 26)
SURVEY PLATS, FIELD SKETCH, WETLAND DELINEATION FORMS, PROJECT PLANS, ETC., MUST
BE ATTACHED TO THE YELLOW (FILE) COPY OF THIS FORM, IF REQUIRED OR AVAILABLE.
CF.SAW Form 591
Revised July 1995
MHMOILA-NDUM OF UNDERSTANDING
BETWEEN THE
NORTH CAROLINA
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
AND'1hE
l?NYIIED STATES ARMY CORPS OF ENGINF,ERS, WILMfNIG'l ON DISTRICT
Phis is a Memorandum of Understanding (MOU) between the Ilniteci States Army Corps
of Engineers, l& Umington District (hereinafter "Corps") and the Nortlu Carolina Department of
Environment and Natural Resources, Wetlands Restoration Program (hereinafter "NCWRP'").
I. Purpose: The purpose of this MOU is to establish the prucxdurrs and guidelincs for
coordinating compensatory mitigation requirements for Corps permits under Section 404 of the
Clean Water Act (33 USC 1344) and the NCWRP. This MOU ie intended to provide, mom
effective mitigation for authorized impacts to wetlands, streams and other aquatic resources by
allowing perm][t applicants to choose to pay the NCWRP to provide required compensatory
mitigation in circumstances considered appropriate by the Corps, in consultation with Federal
and State review agencies,
H. Authority: The Clean Water Act (33 USC 1344) provides that Section 404 is
administered by the Secretary of the Army, The Sr=Lary has delegated the authority to
administer this permitting program to the U.S. Army Corps of Engineers. As stated in the "Final
Notice of Issuance, Reissuance and Modification of Nationwide Permits and Conditionf",
Federal Register, Volume 61, No, 241, December 13, 1996, "contributions to wetland trust
funds," where such fees contribute to the restoration, creation, replacement, enhancement, or
preservation of wetlands may be acceptable as compensatory mitigation for wetland impacts
authorized by general permits. Similarly, the "Federal Guidance for the Establishment, Use and
Operation of Mitigation Banks," Federal Register, Volume 60, No. 228, November 28, 1995,
rccoenir"cs in-lieu fcc al-rangetuetlts and staLrs that the Corps "may find there are circumstances
where such arrangements are appropriate so long ar, they meet the requirements that would
otherwise apply to an offsite, prospective mitigation effort and provide adequate assurances of
success aid timuly iuiplcuicntutiuu." Cuul[il)uliulls to such funds wuy alsu Lc used w p1uv1dc
compensatory mitigation for impacts authorized by individual Section 404 permits when the
Corps considers it appropriate. The uw of this fund for compensatory mitigation may occur only
after the relevant permitted activity has complied with Corps regulations and policy regarding
wetland avoidance and minimization.
111 North Uarnlina Wotisnds Restoration Program' The. NC'WRP was established by an act
ui the. Forth Carolina Genoa,:] r?sse:nhly in 1995. Tht N(C V'RP i,,? a non-regulatory prod am with
a statutory mandate to protect and improve water quality, flood prevention, fisheries, wildlife and
plant habitats, and recreational opportunities through the restoration, enhancement turd
preservation of wetlands and riparian areas. The goal of the NCWR.P is to restore wetland and
riparian area functions and values throughout North Carolina, which will result in a net increase
in wetland and riparian area acres, functions, and values in each of the seventeen river basins. It
is the intent of the NCWRP to improve the ecological effeclivencss of currrpensatury mitigation
through the development of restoration plans to ensure that compensatory mitigation is
conducted within an ecosystem context to address identified problems. This rrnwctive approach
can provide a consistent and simplified procedure to address compensatory mitigation
requirements turd fustc;r a cornprchensive approach to environmental protection.
The Wetlands Restoration Fund, established as a special trust fund pursuant to NCGS
143.12, will provide a repository for appropriations from the General Assembly, monetary
contributions, donations of property, payments to satisfy compensatory mitigation requirements
and grants. The enabling legislation for the NCWRP restricts the use of these funds to the
restoration; enhancement, preservation and creation of wetlands and riparian areas in aic;vuidwicc
with tht Rasinwide Wetland and Riparian Restoration Plans. In addition, this fund may be used
for directly related costs of planning, monitoring and maintenance of wetlands and riparian areas.
IV. Program Operation
A. Basinwide Wetland and Riparian Restoration Plans: Beginning Jul}' 1, 1997, the
NCWRP will develop comprehensive Basinwide Wetland and Riparian Restoration Plans
for each river basin in conjunction with the NC Division of Water (duality's Basinwide
Water Quality Motingcmcnt Plans. CTS-based mapping methodologies will bc. used to
assess the status of the existing wetlands and riparian area resources witilin the basin and
to identify degraded wetlands and riparian arms. Watcr quality, habitat, fisheries and
flood control data will he assessed to identify priority-subbasim within each rivor basin,
lit general, one or more priority subbasins will be identified for each Cataloging Unit a.?
bhown on the "Hydrologic Unit Map, 1974, State of North Carolina" prepared by the U.S.
Geological Survey (Cataloging Unit). For impacts that occur witliiti it Cutnluging Uil t,
restoration titre within the. priority subbasins will be identified and prioritized based on
the ability of the restored silts to provide the functions and values needed within the-
Cataloging Unit.
All state and federal agencies involved In the review of Section 404 permits will
be provided the opportunity to participate in the development of Basinwide Wetland and
Riparian Restoration Plans to ensure the inclii.5ion of reRtriration and preservation sites of
importance to these agencies, and will be provided copies of the Basinwide Wetland and
Riparian Restoration Plruus m they become available, All compensatory mitigation
projects implemented by the NCWRP will be consistent with the Basinwide Wetland and
Riparian Restoration Planq- The Corps will consider the Basinwide Wetland and
Riparian Restoration Plans when developing rnitigation requirements for Section 404
pcciitits.
B. Compencatnry Mitigation Requirements: Upon determination by the Corps that
impacts to waters of the United States have been avoided and minimized to the maximum
extent practicable, and that on-site mitigation is not practicable or in the best interest of
the environment, the Corps may allow uff-site mitigation for the loss of functions and
values re.stilting from the issuance of Section 104 permits. Whcrc dice Corps makaa such a
finding and otherwise deems the use of the NCWRP to he appropriate, the NCWRP,
pursuant to the terms of this MUU, may act as a recipient of a specified fee which
satisfies the compensatory ndtigwJQn requirements of the Section 404 permit, provided
that the, NCWRP determines that it can meet the mitigation requirements, The Corps will
specify the amount (in acres for wetlands or linear feet of .ctrcAni); type (riparian, non_
riparian or sttmn) as well as classitication of habitat type in accordance with Cowardin,
et al. 1979) Clay cation ofWeflevid s acid Deepwater Habitats of the sited Stat s'
--_? j,
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and/or stream type (cold, Cool, or worm wnttt Ntretun); lmdtiort (river basin and
Cataloging Unit){ and category (restoration, creation, enhancement, or prescrvation) of
the required compensatory mitigation in the conditions of the Section 404 permit. For
stream impacts, mitigation will be performed in the same Cataloging unit as the impacts
authorized, if practicable, If no opportunities exist in the same or immediately adjacent
units, then the NCWRP will notify the Corps, and the NCWRP and the Corps will consult
nn appropriate. sites to mitigate for the stream impacts. The NCWRP will play no role in
the Corps decision to approve or deny a pcr nit or die Corps decision as to wh°ther
compensatory mitigation is a necessary condition of any such permit.
C. Project Eligibility: Payment of an in-lieu fee to satisfy compensatory mitigation
requirements shall be considered by the Corps on a case-by-case basis.
D. Payment to NCWRP: WhCn the Corps determines that Compensatory mitigation is
acceptable through payment to the NCTVRP, and the NCWRP agrees to provide
Mitigation in exchange for such payment, the Cotes will send the NCWRP a copy of the
issued permit. The NCWRP will send the permittee an invoice for the appropriate
aruount of payrrrcnt.. The amount of payment shall be determined by the amount (acres of
wetlands or feet of stream) and type of wetland (riparian or non-riparian) of mitigation
specified by the Corp.,-, in the permit and the Schedule of Pees adopted by the
Environmental Management Commission, The NCWRP will notify the Corps and the
permittee upon receipt of payment of the specified fee. This letter of notification shall
contain the following statement, "Thc NCWRP, by accclrtarn;e of this payment,
acknowledges that the NICWRP is responsible for the compensatory mitigation
requirements associated with permit or action number , and agrees t.o prnvide the.
compensatory mitigation as specified in this permit," Payments from several permittees
may be aggregated by NCWRP to fund one or more restoration projects provided that the
impacts from these permits and the restoration projects are within the same Cataloging
Unit (or immediately adjacent units for stream impacts).
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L. Responsibility -- NCWRP; Upon receipt of the appropriate fee from die pertnittcc.
for eompensutory mitigation, the NCWRP will assume the responsibility of mitigation
planning, implemcntntion, mnnitnrittg, and long-term maintenance and management.
Acceptance of this fee is an acknowledgement by NCWRP that the NCWRP, and not the
applicant, is responsible for satisfying the compensatory mitigation requirements of the
Section 404 permit. In satisfaction of the compensatory mitigation requirements, the
\C'WRP shEill providf- come-cmatory mitigation of the type and in the arnount and
Cataloging Unit (o~ iirmedistely adjacent units for stream impacts) specified in the
Section 404 permit.
F. Mitigation Plans: All restoration, creation, or enhancement performed by
NCWRP to satisfy mitigation requirements of Section 404 permits shall be performed in
accordance with a site specific mitigation plan. Each such site specific mitigation plan
shall bC prepared in general compliance with the guidelines contained in Appendix A of
this document, and shall include, but not be limited to, a pro-work description and
ecological assessment of the mitigation cite, identification of the goals and objectives of
the mitigation plan, including a description of the specific aquEdc functions to be created,
restured, or enlianced, the assessment methodology to be used, a description of the work
to be performed on the site, performance criteria to determine the success of the
mitigatinn work, and a monitoring plan to evaluate the site at least annually until
performance criteria have been met,
For each mitigation site, the NCWRP shall provide to the Corps a copy of the site
specific mitigation plan, and a copy of the final report showiug, a siLt: hay met the
performance. criteria specified in the mitigation plan, within 30 days of the completion of
each such document. The NCWRP shall provide copies of annual monitoring repntis for
each site upon request.
(* Preservation Sites For each preservation site acquired by NC AIRP w Satisfy
mitigation requirements of Section 404 permits, the NCWRP shall prepare a repnn
generally describing the site, including an assessment of the functions and values of such
site, n description of the anticipated developmetlt pii;ssuios for such sites, a description of
the lorrg-tettli management plaits foe the site, and a description of how the site will be
preserved, including copies of oxecuted and recorded real estate documents implementing
preservation of the site. The N('WRP shall provide a copy of such report to the Corps
prior to utilizing the site as mitigation to satisfy requirements of Section 404 permits,
N• Time Frame: To satisfy the compensatory mitigation rcquircmcnts of Scctiou 404
permits assumed by NCIA'RP, durini, the first year of this MOU, the NCWRP agrees to
tnsti ute. prolects within 3 years of the chic of receipt of payment. During the second year,
1);ojcct5 will be instituted within 2 years of the date of receipt or payment. Beginning
with the third year, and continuing as long u this MOU is in effect, projects will be
instituted within 1 year of the date of receipt of payment. For the purposes of this MOU,
the terms "institute" and "instituted" mean that a site has been identified and acquired,
and a contract has been issued for the development and implementation of the mitigation
project. A construction completion date, not to exceed two years from the date of
contract issuance, shall be required for each project. The NCWRP is committed to
providing compensatory mitigation for the majority of wetland impacts in advance of the
loss of these wetlands,
1. Protection of Restoration Sites: The NCWRP will insuro that all restoration sites
that are used to satisfy compensatoty mitigation requirements will remain within the
public domain in perpetuity or that appropriate conservation easements in perpetuity,
approved by lire Corps, are placed on the sites. With approval by the Corps, the NCWRP
may transfer ownership or management responsibilitics of restoration site properties to
appropriate nonprofit conservation organizations, local governments, or land trusts for
management and monitoring. In all cases, the NCWRP will procure appropriate
agreements to insure that botlt public domain properties and other properties under
conservation eascincrnts are maintained in perpetuity as viable wetlands sites serving, the
functions and values required by the permit.
1. Advisory Team: In consultation with the Corps, the NCWRP will convene a tearn
that will meet at loot annually to review the mitigation projects that have been
6
implemented or pltumed to satisfy the compensatory mitigation requirements of Section
404 Permits. This team will consist of the NCWRP, the Corps and all other state and
federal agencies involved in the review of Section 404 Permits The purpose of this team
is to review implemented and planned mitigation projects and to provide
recommendations tuid guidwice to the NCWRP concerning potential mitigation sites.
The NCWRP will maintain and distribute to cacti of the members minutes of er li
meeting of the Advlkoty T?-Am
V. Fi,ca1 Acco untability and Record Keeping: The NcWRP shall hold any funds collected
pursuant to this MOU in a separate account within the Wetltuids Rcstuiutiun Fund which is a
special trust fund establiAhM by NCGS 143-214.12. Interest on these funds shall be credited to
this account by the State Treasurer pursuant to NCGS 147.69.2 and 147-69.3 . The NCWRP
shall account for the funds so held, in accordance with generally accepted accounting principles,
and the account shall bo subjw to audit by air- Corps at any time. The NCWRP will provide the
Corps with an account statement on an annual basis which states the balance of the fund and thte
interest earned by the fund. The accounting shall include a Summary of direct and administrative
costs associated with the implementation, monitoring and long term management of each
restoration project The accounting shall be bored on the State's fiscal year (July 1 - June 30) and
provided to the Corps by November I of each year.
VI. Annual Review: The Corps shall be provided with an annual report by November 1 of
each year that this MOU is ill cffLA. This report shall include the following information: the
administrative costs associated with this 114OU; a summary of the mouitoriug insults of projects
that have been implemented; an ai?connting of the amount of restoration, creation, enhancement
or preservation that has been conducted in each river basin by Cataloging I1nit; an accounting of
rile awc,? of mitigation required by Section 404 permits in each river basin by Cataloging Unit:
and documentation concerninE the implementation of projects in accordance with the time frame
specified in paragraph IV, H. The Corps shall review this report and make a determination
concerning the continued use of this MOU and/or any adjustments necessary to the MOU by,
January I of cacti yc<u-. U„lc,s the Corps requests a termination or modification of the MOU by
7
January 1 of each year, the MOU will remain in effect for the next calendar veal, except as
provided in paagraph VIII.
VII. Open Communication and Cooperation: Both the Corps and the NCWRP acknowledge
that it is their desire to facilitate the process set forth in this agreement by open communication
wid ?ouptration. Butte pwticy agree to cxcrciSC their rights altil obligations in good faith as
contained in this agreement.
VIII :amendment and Termination: Thk MOU may be amended or terminated by either party
b)' givllig 111I1Gty (90) ddyS wr1LLC11 IIULiUe Lo Llle Ulller party. AmendrllenLa, b,lt nUL LCIIIlinatlUns,
require written approval by both the Corps and NCWRP, Prior to termination, the NCWRP shall
provide an accounting of in-lieu feeR received in Ratisfaction of compensatory mitigation
requirements and in-lieu fee funds disbursed. The NCWRP shall complete all restoration,
creation, enhancement or preservation activities necessary to satisfy the compensatory mitigation
requiremcnts of the Scction 404 permits where payments have been made to the NCWRP to
Satisfy compensatory mitigation requirements. All compensatory mitigation for which in-lieu
fees have been received prior to terminadon will be satisfied according to the project
implementation schedule provided in paragraph 1V, G. of this document.
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IX. Signatures; This MOU shall become effective when signed by both the Corps and the
NC Department of Environment and Natural Resources, Division of Water Quality.
! of ilic I1..;. Army Corps of 1j:nginevnq, Wilmington Di.,?triol
Coln l; .?. Army
Dist c ngineer
h
Gl ?d? /-f PJ/
Date
For the North Carolina Department of Environment and Natural Resources
Division of Water Quality
A. Preston .2LCj) Jr., P.E.
Director
Date
Xv a CZ e e .n e %^a c
'Zv Pk- TtOvv
NATIONWIDE PERMIT #14: ROAD CROSSING. At it liori ze:; f. i 1 l r f0U roads Gros ;i.ng
waters of the United States (including wetlands and other special aquatic
sites) provided:
a. The width of Lhe fill is limited to the minimum necessary for the
actual crossing;
b. The fill placed in waters of the United States is limited to a
filled area of no more than one-third acre. Furthermore, no more than a total
of 200 linear feet of the fill for the roadway can occur in Special aquatic
sites, including wetlands;
C. The crossing is culverted, bridged or otherwise designed to prevent
the restriction of, and to withstand, expected high flows aril tidal flows, and
Lo prevent- the restriction of low flows and the movement of aquatic organisms;
d. The crossing, including all attendant features, both temporary and
permanent, is part of a single and complete project for crossing of a water of
the United States; and
e. For fills in special aquatic sites, including wetlands, the
permi.ttee notifies the District Engineer (DE) according to the "Notification"
general condition. This notification must include a delineation of affected
special aquatic sites, including wetlands.
NATIONWIDE PERMIT CONDITIONS
1. Navigation. No activity may cause more than a minimal adverse
effect on navigation.
2. Proper maintenance. Anv structure or fill authorized shall be
properly maintained, including maintenance to ensure public safety.
3. Erosion and siltation controls. Appropriate erosion and siltation
controls must be used and maintained in effective operating condition during
construction, and all exposed soil and other fills, as well as any work below
the ordinary high water mark or high tide line, must be permanently stabilized
at the earliest practicable date.
4. Aquatic life movements. No activity may substantially disrupt the
movement of those species of aquatic life indigenous to the water body,
including those species which normally migrate through the area, unless the
activity's primary purpose is to impound water.
5. Equipment. Heavy equipment- working in wetlands must be placed on
mats, or other measures must be taken to minimize soil disturbance.
6. Regional. and case-by-case conditions. The activiLy mu:t comply with
any regional conditions which may have been added by tlhe Division Engineer
(see 33 CFR 330.4(e) ) and with any case specific conditions added by the Corp:;
or by the State or- tribe in its Section 401 water quality certification.
V. Wild and Scenic Rivers. No activity may occur in a component of thf,
National Wild and Scenic River System; or in .a river offi.ciall.y designated by
Congress as a "study river" for possible inclusion in the :system, while the
river is in an official study status; unless the appropriate Federal agency,
with direct management responsibility for such river., has determined ill
writing that the proposed activity will not adversely effect the Wild and
Scenic River designation, or study status. Information on wild and Sc.eni_c
Rivers may be obtained from the appropriate Federal land management agency ill
the area (e.g., National Park Service, U.S. Forest Service, Bureau of Land
Management, U.S. Fish and Wildlife Service.)
8. Tribal righter. No activity or its operation may impair tribal
rights, including, Out not limited to, reserved water rights and treaty
fishing and hunting rights.
9. Water quality certification. The permittee must comply with all
conditions of General Water Quality Certification No. 3103, issued by the
North Carolina Division of Water Quality (NCDWQ) on February 11, 1997.
10. Coastal zone management. The North Carolina Division of Coastal
Management (NCDCM), has determined that this nationwide permit(NWP) is
conditionally consistent with the North Carolina Coastal Management Program.
Notification to and written concurrence from the NCDCM is required prior to
work in the twenty 20) coastal counties of North Carolina.
11. Endangered species.
a. No activity is authorized under any NWP which is likely to
jeopardize the continued existence of a threatened or endangered species or a
species proposed for such designation, as identified under the Federal
Endangered Species Act, or which is likely to destroy or adversely modify the
critical habitat of such species. Non-Federal permittees shall notify the
District Engineer if any listed species or critical habitat might be affected
or is in the vicinity of the project, and shall not begin work on the activity
until notified by the District Engineer that the requirements of the
Endangered Species Act have been satisfied and that the activity is
authorized.
b. Authorization of an activity by a NWP does not authorize
the take of a threatened or endangered species as defined under the
Federal Endangered Species Act. In the absence of separate authorization
(e.g., an ESA Secticn 10 Permit, a Biological opinion with incidental
take provisions, etc.) from the U.S. Fish and Wildlife Service or the
National Marine Fisheries Service, both lethal and non--lethal takes
of protected species are in violation of the Endangered Species Act.
Information on the location of threatened and endangered species and
their critical habitat can be obtained directly from the offices of the
U.S. Fish and Wildlife Service and National Marine Fisheries Service
or their world wide web pages at http://www.fws.gov/'r9endspp.html and
http://kingfi.sh.spp.nn_`s.gov/tmcintyr/prot res.html##ES and Recovery,
respectively.
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1'. Iistoric properti_('s. No activity whi-ch may affect storic
properties listed, or eligible for Iist:irig, in the Natiorial. Register of
Historic Places is authorized, until the District Eru3ineer has complied with
the provisions of 33 CFR 325, Appendix C. The prospective permittee must be
notify the District Engineer if the authorized activity may affect any
historic properties listed, determined to be eligible, or which the
prospective permittee has reason to believe may be eligible for listing on the
National Register of Historic Places, and shall not begin the activity until
notified by the District Engineer that the requirements of the National
Historic Preservation Act: have been satisfied and that the activity is
authorized. Information on the location and existence of historic resources
can be obtained from the State Historic Preservation office and the Nat iona_t
Register of Historic Placer (see 33 CFR 330.4(8)).
13. Notification.
a. Timing. Where required by the terms of the NWP, the
prospective permittee must notify the District Engineer with a Pre-
Construction Notification (PCN) as early as possible and shall not begin the
activity:
(1) Until notified by the District Engineer that the activity
may proceed under the NWP with any special conditions imposed by the District
or Division Engineer; or
(2) If notified by the District or Division Engineer that an
individual permit is required; or
(3) Unless 30 days have passed from the District Engineer's
receipt of the notification and the prospective permittee has not received
notice from the District or Division Engineer. Subsequently, the permittee's
right to proceed under the NWP may be modified, suspended, or revoked only in
accordance with the procedure set forth in 33 CFR 330.5(d)(2).
b. Contents of notification. The notification must be in writing
and include the following information:
(1) Name, address and telephone numbers of the prospective
permittee;
(2) Location of the proposed project;
(3) Brief description of the proposed project; the project's
purpose; direct and indirect adverse environmental effects the project would
cause; and other NWP(s), regional general permit(s) or individual. permit(s)
used or intended to be. used to authorize any part of the proposed project or
any related activity; and
(4) For. NWP 14, the PCN must also include a dc?li.neaton of
affected special aquatic sites, including wetlands (see pa)-agraph 13.f.).
3
c. form oI No tifi.ca tion: The r;taudard individual. porinit.
application form (Form ENG 4345) may be used a?; the not, if icatiou but mug;t
clearly indicate that iC is a PCN and must, include all the i.nformaticm
required in b.(1)-(4) of General- Condition :L3. A letter may also he used.
d. District Engineer's Decision: In reviewing the pre-
construction notification for the proposed activity, the District Engineer
will. determine whether the activity authorized by the NWP will result in more
than minimal individual or cumulative adverse environmental effects or may be
contrary to t:he public interest. The prospective permittee may, optionally,
submit a proposed mitigation plan with the pre-construction notifi.cat.ion to
expedite the ptocess acid the District. Engineer will consider any opt=ional
mitigation the applicant has included in the proposal in determining whether
the riet adverse environmental effects of the proposed work are minimal. if
the District Engineer determines that the activity complies with the= terms and
conditions of the NWP and that the effects are minimal, the District Engineer
will notify the permittee and include any conditions the District Engineer
deems necessary.
Any mitigation proposal must be approved by the District Engineer prior
to commencing work. If the prospective permittee elects to submit a
mitigation plan, the District Engineer will expeditiously review the proposed
mitigation plan, but will not commence a second 30-day notification procedure.
If the net adverse effects of the project (with the mitigation propo:_;al) are
determined by the District Engineer to be minimal, the District Engineer will
provide a timely written response to the applicant stating that the project
can proceed under the terms and conditions of the NPW.
If the District Engineer determines that the adverse effects of the
proposed work are more than minimal, then he will notify the applicant either:
(1) that the project does not qualify for authorization under
the NWP and instruct the applicant on the procedures to seek authorization
under an individual permit;
(2) that the project is authorized under the NWP subject to the
applicant's submitting a mitigation proposal that would reduce the adverse
effects to the minimal level; or
(3) that the project is authorized under the NWP with specific
modifications or conditions.
e. Agency Coordination. The District Engineer will consider any
comments from Federal and State agencies concerning the proposed activity's
compliance with the terms and conditions of the NWPs and the need for
mitigation to reduce the project's adverse environmental effects to a minimal
level.
4
The District Engint-or will, Ripon r???xipt of I nol-if ication, provide,
i_nunediat -e.Iy, e.g., f:acsimi.lc transm?.?;sion, ov??rniyht 111,1il_ or other (1xpeditious
manner a copy to the appropriate offices of the Fish and Wildlife Service,
State natural resource or water quality agency, EPA , State Historic
Preservation Officer (SHPO), and if appropriate, the National Marine Fisheries
Service. The agencies will then have 5 calendar days from the date the
material is transmitted to telephone or fax the District Engineer notice that.
they intend to provide substantive, site-specific comments. If so contacted
by an agency, the District Engineer: will wait an additional 1.0 calendar days
before making a decision on the notification. The District Engineer will
fully consider agency comments received within the specified time frame, but
will provide no response to the resource agency. Thc. District Engineer will
indicate in the administrative iecord associated with each notification that
the re:;ource agencies, conceciis were considered. Applicants are encouraged to
provide the Corps multiple copies of notifications to expedite agency
notifications.
f. Wetlands Delineations. Wetland delineations must be prepared
in accordance with the current method required by the Corps. The permittee
may ask the Corps to delineate the special aquatic site. There may be some
delay if the Corps does the delineation. Furthermore, the 30-day period will
not start until the wetland delineation has been completed and submitted to
the Corps, where appropriate.
g. Mitigation. Factors that the District Engineer will consider
when determining the acceptability of appropriate and practicable mitigation
include, but are not limited to:
(1) To be practicable, the mitigation must be available and
capable of being done considering costs, existing technology and logistics in
light of the overall project purposes; and
(2) To the extent appropriate, permittees should consider
mitigation banking and other forms of mitigation including contributions to
wetland trust funds, in lieu fees to organizations such as The Nature
Conservancy, State or county natural resource management agencies, where such
fees contribute to the restoration, creation, replacement, enhancement or
preservation of wetlands. Furthermore, examples of mitigation that may be
appropriate and practicable include but are not limited to: reducing the size
of the project; establishing wetland or upland buffer zones to protect aquatic
resource values; and replacing the loss of aquatic resource values by
creating, restoring and enhancing similar functions and values. In addition,
mitigation must address wetland impacts, such as functions and values, and
cannot be simply used to offset the acreage of wetland losses that would occur
in order to meet the acreage limits of some of the NWPs (e.g., for NWP 26, 5
acres of wetlands cannot be created to change a 6-acre loss of wetlands to a 1
acre loss; however, 2 created acres can be used to reduce the impacts of a 3-
acre loss.).
5
1-4. Compliance certification. Evr,ry peimiLtee who has received a NWP
verification from the Corps will submit a signed certification regarding the
completed work and any required mitigation. The certification will be
forwarded by t:he Corps with the authorization letter and will include:
a. A statement that the authorized work was done in accordance with
the Corps authorization, including any general or specific condition.,-,;
b. A statement that any required mitigation was completed in
accordance with the permit conditions; and
c. The signature of the per_mittee certifying the completLion of the
work and mitigation.
15. Multiple use of NWPs. In any case where NWP number 12 through 40
is combined with any other NWP number 12 through 40, as part of a single and
complete project, the permittee must notify the District Engineer in
accordance with paragraphs a., b., and c. of the Notification General
Condition number 13. Any NWP number 1 through 11 may be combined with any
other NWP without notification to the Corps, unless notification is otherwise
required by the terms of the NWPs. As provided at 33 CFR 330.6(c) two or more
different NWPs can be combined to authorize a single and complete project.
However, the same NWP cannot be used more that once for a single and complete
project.
SECTION 404 ONLY CONDITIONS
In addition to the General Conditions, the following conditions apply
only to activities that involve the discharge of dredged or fill material in
waters of the United States, and must be followed in order for authorization
by the NWPs to be valid:
1. Water supply intakes. No discharge of dredged or fill material may
occur in the proximity of a public water supply intake except where the
discharge is for the repair of the public water supply intake structure or
adjacent bank stabilization.
2. Shellfish production.: No discharge of dredged or fill material may
occur in areas of concentrated shellfish production, unless the discharge is
directly related to a shellfish harvesting activity authorized by NWP 4.
3. Suitable material. No discharge of dredged or fill material may
consist of unsuitable material (e.g., trash, debris, car bodies, asphalt,
etc.,) and material discharges must be free from toxic pollutants in toxic
amounts (see Section 307 of the Clean Water Act).
6
-1. Mit i(1It iOil . 1) ischargo.; of dredged or fill. maCeri_II into wat-r:, of
the UniI"d !,tales must be minimized or avoided to the maximum extent.
pract i(_,abl, at the project site ( i . _ . , on-site) , unless the. Di_:,ti ict. Engineer
approves a compensation plan that th,, District Engineer determines is more
beneficial to the environment than on-:;ite minimization or avoidance measures.
5. Spawning areas. Discharges in spawning areas during spawning
seasons must be avoided to the maximum extent practicable.
6. Obstructions to high flows. To the maximum extent practicable,
discharges must not permanently restrict or impede the passage of normal or
expected high flows or cause the relocation of the water (unless the primary
purpose of the fill is to impound waters).
7. Adverse effects from impoundments. If the discharge creates as
impoundment of water, adverse effects on the aquatic system caused by the
accelerated passage of water and/or the restriction of its flow shall be
minimized to the maximum extent possible.
8. Waterfowl breeding areas. Discharges into breeding areas for
migratory waterfowl must be avoided to the maximum extent practicable.
9. Removal of temporary fills. Any temporary fills must be removed in
their entirety and the affected areas returned to their preexisting elevation.
REGIONAL CONDITIONS
1. Prior to the use of any NWP in a designated "Outstanding Resource
Water" (ORW), a designated "High Quality Water" (HQW) or a designated "Primary
Nursery Area" (PNA), of North Carolina or in contiguous wetlands (as defined
by the North Carolina Division of Water Quality) to any of the above waters,
proponents must notify the Wilmington District Engineer and furnish a written
statement of compliance with all of the conditions of the applicable NWP.
Notification will include the location of work; a description of work; a
delineation of wetlands; a discussion of alternatives to working in the waters
and/or contiguous wetlands and why alternatives were not selected; and a plan
to provide compensatory mitigation for all unavoidable adverse impacts to the
waters and/or adjacent wetlands'as may be required by the applicable NWP.
Work may proceed only after the permittee has received written, telephonic, or
faxed approval from the authorized representative of the District Engineer to
proceed. Normally such notice to proceed will be furnished within 30 calendar
days of receipt of the above information.
2. Prior to use of any NWP in a designated "Area of Environmental
Concern" (AFC) in the twenty (20) counties of Eastern North Carolina covered
by the North Carolina Coastal Area Management Act (LAMA), a proponent must
first obtain the required CAMA permit and furnish a copy of the LAMA permit to
the Wilmington District.
.7
3. Prior to the use of any NWP on a barrir,r i.,-,land of North C<u?oli.na,
proponents must notify the Wilmington District Engineer and furnish a writ tell
statement of compliance with all of the conditions of the applicable NWP.
Notification will include the location of work; a description of work; a
delineation of wetlands; a discussion of alternatives to the work acid why
alternatives were not selected; and a plan to provide compensatory mitigation
for all unavoidable adverse impacts to wetlands or waters as may be required
by the conditions of the applicable NWP. Work may proceed only after the
permi.ttee has received written, telephonic, or fared approval from the
authorized representative of the District Engineer to proceed. Normally such
notice to proceed will be furnished within 30 calendar days of receipt of the
above information.
4. Prior to the use of any NWP in a "Mountain or Piedmont Bog" of North
Carolina, proponents must notify the Wilmington District Engineer and furnish
a written statement of compliance with all of the conditions of the applicable
NWP. Notification will include the location of work; a description of work; a
delineation of wetlands; a discussion of alternatives to the work and why
alternatives were not selected; and a plan to provide compensatory mitigation
for all unavoidable adverse impacts to wetlands or waters as may be required
by the conditions of the applicable NWP. Work may proceed only after the
permittee has received written, telephonic, or faxed approval from the
authorized representative of the District Engineer to proceed. Normally such
notice to proceed will be furnished within 30 calendar days of receipt of the
above information.
5. Prior to use of any NWP for construction of animal waste facilities
in waters and/or wetlands of North Carolina, proponents must notify the
Wilmington District Engineer and furnish a written statement of compliance
with all of the conditions of the applicable NWP. Notification will include
the location of work; a description of work; a delineation of wetlands; a
discussion of alternatives to the work and why alternatives were not selected;
and, a plan to provide compensatory mitigation for all unavoidable adverse
impacts to wetlands or waters as may be required by the applicable NWP. Work
may proceed only.after the permittee has received written, telephonic, or
faxed approval from the authorized representative of the District Engineer to
proceed. Normally such notice to proceed will be furnished within 30 calendar
days of receipt of the above information.
NOTE: The total area of wetlands impacted, including wetlands drained by
upland perimeter ditches or by:other means, will be considered as cumulative
impacts in making a decision to assert discretionary authority under any NWP.
6. Prior to the use of any NWP in mountain trout waters within twenty-
five (25) designated counties of North Carolina, proponents must notify the
Wilmington District Engineer and furnish a written statement of compliance
with all of the conditions of the applicable NWP. Notification will include a
letter of comments and recommendations from North Carolina Wildlife Resources
Commission (NCWRC); the location of work; a delineation of wetlands; a
discussion of alternatives to working in the mountain trout waters and why
alternatives were not selected; and a plan to provide compensatory mitigation
for all unavoidable adverse impacts to the mountain trout waters. Work may
8
proceed 01 11 y after the permi t thas rece i_vod wi it t ?,n, t , t?plu?nic, or t_i ,< (,d
approval from the authorized ret>resent ative of the Di :;tIi<-t to proceed.
Normally such notice to proceed will be furnished within 30 calendar days of
receipt of the above information.
a. The twenty-five (25) designated counties are:
Alleghany Ashe Avery
Buncombe Burke Caldwell
Cherokee Clay Graham
Haywood Henderson Jackson
Macon Madison McDowell
Mitchell Polk Rutherford
Stokes Surry Swairr
Transylvania Watauga Wilkes
Yancey
b. To obtain the required letter of approval from the North Carolina
Wildlife Resources Commission (NCWRC), a proponent should contact:
North Carolina Wildlife Resources Commission
Habitat Conservation Program Manager
512 North Salisbury Street
Raleigh, NC 27611
Telephone [phone]
7. Finished elevations of a road must not be lower than the elevation
of surrounding wetlands to prevent the road from functioning as a ditch and
draining adjacent wetlands.
8. The total area of wetlands impacted, including wetlands drained by
ditches excavated adjacent to roads or by the road itself, must not exceed the
1/3 acre limitation of this permit.
9. All wetland crossings must be from previously existing high ground
to previously existing high ground.
10. Culverts installed in crossings must be of sufficient size to allow
normal surface water exchange between the wetlands on either side of the road
and to maintain normal hydrology across the wetland.
11. All fill material must be obtained from an upland source.
12. Culverts may not be used on crossings of streams designated by the
North Carolina Division of Marine Fisheries and the North Carolina Wildlife
Resources Commission as anadromous fish spawning areas. Crossings must be
bridged. This does not apply to culverts being replaced with culverts.
13. Uncontained concrete may not be poured in streams.
9
STATE CONSISTENCY CONI)ITI:ONS
I. The roadway width shall be minimized a:; much as practicable aiid that no
practicable alternative exists.
2. All fill material must be obtained from an upland source.
3. Bridging is required in areas designated as anadromous fish spawning
areas by the North Carolina Division of Marine Fisheries or the North Carolina
Wildlife Resources Commission. in order: t.o allow the continued use of upstream
waters for spawning. Use of culverts in these situations is not authorized.
4. Where culverts are used, they should be buried one foot into the
substrate if possible to maintain and facilitate fish passage.
5. If concrete is used, care must be taken to prevent wet concrete from
contacting stream water.
6. If the proposed activity is within the North Carolina Coastal Area,
the applicant must receive written concurrence from the North Carolina
Division of Coastal Management (NCDCM) that the activity is consistent with
the North Carolina Coastal Management Program.
GENERAL CERTIFICATION CONDITIONS
1. Proposed fill or substantial modification under this General
Certification requires written concurrence from the North Carolina Division of
Water Quality (NCDWQ).
2. The width of the fill is limited to the minimum needed to the actual
crossing.
3. The roadway width shall be minimized as much as practicable and no
practicable alternative exists.
4. Pipes shall be installed under the road in all necessary stream
crossings to carry at least the 25-year storm event as outlined in the most
recent edition of the "North Carolina Sediment and Erosion Control Planning
and Design Manual" or the "North Carolina Surface Mining Manual." so as not to
impede flow.
5. Appropriate sediment and erosion control practices which equal or
exceed those outlined in the most recent version of the "North Carolina
Sediment and Erosion Control Planning and Design Manual" or the "North
Carolina Surface Mining Manual" (availabl.e from the North Carolina Division of
Land Management in the DEHNR Regional or Central Offices) will be utilized to
prevent exceedances of the appropriate turbidity water quality standard (50
NTU's in streams and rivers not designated as trout by NCDWQ, 25 NTU's in a.l
saltwater classes and all lakes and reservoirs, and 10 NI'U's in trout waters)
10
6. All sediment and erosion control measures placed in wetlands or waters
shall be removed and the natural grade restored after the North Carolina
Division of Land Resources has released the project.
7. Measures shall be taken to prevent live or fresh concrete from coming
into contact with waters of the State until the concrete has hardened.
8. If this Certification is used to access building sites, all lots must
be buildable without additional fill beyond that allowed under other General
Certifications. Deed restrictions must be placed on the remaining wetlands on
these lots to restrict future fill. The North Carolina Division of Water
Quality (NCDWQ) shall be sent copies of all deed restrictions applied to these
lots.
9. This Certification shall be utilized for roads from natural high ground
to natural high ground. The Certification for NWP No. 18 may not be used in
conjunction with this Certification to create high ground for road access.
10. If an environmental document is required, this Certification is not
valid until a FONSI or ROD is issued by the State Clearinghouse.
11. Additional site-specific conditions may be added to this Certification
to ensure compliance with all applicable water quality and effluent standards.
12. Concurrence from the North Carolina Division of Water Quality (NCDWQ)
that this Certification applies to an individual project shall expire three
years from the date of the cover letter from the NCDEM.
11
NATIONWIDE PERMIT 926. HEADWATERS AND ISOLATED WATERS. Authorizes
discharges of dredged or fill material into headwaters and isolated waters provided that the
activity meets all of the following criteria:
a. 11ic discharge does not cause the loss of nwre than three (3) acres of waters of the
United States nor cause the loss ofwaters of the United States for a distance greater than 500
linear feet of a stream bcd;
b. For discharges causing the loss of greater than 1 /3 acre of waters of the United States,
the permittee notifies the District Engineer in accordance with the "Notification" general
condition,
c. For discharges causing a loss of 1/3 acre or less of waters of the United States, the
permittee must submit a report within thirty (30) days of completion of the work, containing the
following information:
(1) Name, address and telephone number of the permittee;
(2) Location of work;
(3) Description of work; and
(4) Type and acreage (or square feet) of the loss of waters of the United States (e.g.,
1/10 acre of marsh and 50 square feet of a stream);
d. For discharges in special aquatic sites, including wetlands, the notification must also
include a delineation of all affected special aquatic sites, including wetlands; and
e. The discharge, including all attendant features, both temporary and permanent, is part
of a single and complete project.
Note: Whenever any other nationwide permit (NWP) is used in conjunction with this NWP, the
total acreage of impacts to waters of the United States of all NWPs combined cannot exceed
three (3) acres.
NATIONWIDE PERMIT CONDITIONS
1. Navigation. No activity may cause more than a minimal adverse effect on navigation.
2. Proper maintenance. Any structure or fill authorized shall be properly maintained,
including maintenance to ensure public safety.
3. Erosion and siltation controls. Appropriate erosion and siltation controls must be used
and maintained in effective operating condition during construction, and all exposed soil and
otllc?' 1111s, as well as any work below the ordinary high water mark o?' h?gh tide line, must be
permanently Stabilized at the earliest practicable date.
4. Aquatic life movements. No activity may substantially disrupt the movement of those
species of aquatic life indigenous to the water body, including those species which normally
migratc through the area, unless the activity's primary purpose is to impound water.
5. 1quipment. heavy equipment working in wetlands must be placed on mats, or other
measures must be taken to minimize soil disturbance.
6. Regional and case-by-case conditions. The activity must comply with any regional
conditions which may have been added by the Division Engineer (see 33 CFR 330.4(e)) and with
any case specific conditions added by the Corps or by the State or tribe in its Section 401 water
quality certification.
7. Wild and Scenic Rivers. No activity may occur in a component of the National Wild
and Scenic River System; or in a river officially designated by Congress as a "study river" for
possible inclusion in the system, while the river is in an official study status; unless the
appropriate Federal agency, with direct management responsibility for such river, has determined
in writing that the proposed activity will not adversely effect the Wild and Scenic River
designation, or study status. Information on wild and Scenic Rivers may be obtained from the
appropriate Federal land management agency in the area (e.g., National Park Service, U.S. Forest
Service, Bureau of Land Management, U.S. Fish and Wildlife Service.)
8. Tribal rights. No activity or its operation may impair tribal rights, including, but not
limited to, reserved water rights and treaty fishing and hunting rights.
9. Water quality certification. The pcrmittce must comply with all conditions of General
Water Quality Certification No. 3108, issued by the North Carolina Division of Water Quality
(NCDWQ) on February 11, 1997.
10. Coastal zone management. The North Carolina Division of Coastal Management
(NCDCM) has determined that this NWP is conditionally consistent with the North Carolina
Coastal Management Program. Notification to and written concurrence from the NCDCM is
required prior to work in the twenty (20) coastal counties of North Carolina.
11. Endangered species.
a. No activity is authorized under any NWP which is likely to jeopardize the continued
existence of a threatened or endangered species or a species proposed for such designation, as
identified under the Federal Endangered Species Act, or which is likely to destroy or adversely
2
modilw the critical habitat ol'sucll species. Non-federal permittecs shall notify the District
I?;nginccr ifam listed species or critical habitat might be aflectcd or is in the vicinity of the
project. and shall not begin work on the activity until notified by the District Finginecr that the
1-cqu1H rcnlcnts of the E'ridangcr'cd Species Act have been satisfied and that file activity is
authorized.
h. Authorization ofan activity by a NWP does not authorize the take of a threatened or
endanngered species as defined undo the federal Inndangered Species Act. In the absence of
separate authorization (e.g., an FSA Section 10 Permit, a Biological Opinion with incidental
take provisions, etc.) from the U .S. Dish and Wildlife Service or the National Marine Fisheries
Service, both lethal and non-lethal takes of'protected species are in violation of the Endangered
Species Act. Information on the location of threatened and endangered species and their critical
habitat can be obtained directly from the offices of the U.S. Fish and Wildlife Service and
National Marine Fisheries Service or their world wide web pages at
littp://ww",.iws.gov/'r9eiidsl)p.litml and llttp:Hkingfisli.spp.mnfs.gov/tmciiityr/prot_res.htm]#ES
and Recovery, respectively.
12. Historic properties. No activity which may affect historic properties listed, or eligible
for listing, in the National Register of Historic Places is authorized, until the District Engineer
has complied with the provisions of 33 CI-`R 325, Appendix C. The prospective permittee must
be notify the District Engineer if the authorized activity may affect any historic properties listed,
determined to be eligible, or which the prospective permittee has reason to believe may be
eligible for listing on the National Register of Historic Places, and shall not begin the activity
until notified by the District Engineer that the requirements of the National Historic Preservation
Act have been satisfied and that the activity is authorized. Information on the location and
existence of historic resources can be obtained from the State Historic Preservation Office and
the National Register of Historic Places (see 33 CFR 330.4(g)).
13. Notification (for discharges causing the loss of greater than 1/3 acre and less than 3
acres of waters of the United States.
a. Timing. Where required by the terms of the NWP, the prospective permittee must
notify the District Engineer with a Pre-Construction Notification (PCN) as early as possible and
shall not begin the activity:
(1) Until notified by the District Engineer that the activity may proceed wider the
NWP with any special conditions imposed by the District or Division Engineer; or
(2) If notified by the District or Division Engineer that an individual permit is
required; or
(3) Unless 45 days have passed from the District Engineer's receipt of the
notification and the prospective permittee has not received notice from the District or Division
Engineer. Subsequently, the permittec's right to proceed under the NWP may be modified,
suspended, or revoked only in accordance with the procedure set forth in 33 CFR 330.5(d)(2).
3
b. Contents of notification. The notification must be in writing and include the
following information:
(I) Name, address and telephone numbers of the prospective permitter;
(2) Location of the proposed project;
(3) Briefdescription of the proposed project; the project's purpose; direct and
indirect adverse envirciiunental effects the project would cause; and other NWP(s), regional
general permit(s) or individual permit(s) used or intended to be used to authorize any part of the
proposed project or any related activity; and
(4) The PCN must also include a delineation of affected special aquatic sites,
including wetlands (see paragraph 13.f.).
c. Form of Notification: The standard individual permit application form (Form ENG
4345) may be used as the notification but must clearly indicate that it is a PCN and must include
all the information required in b.(1)-(4) of General Condition 13. A letter may also be used.
d. District Engineer's Decision: In reviewing the pre-construction notification for the
proposed activity, the District Engineer will determine whether the activity authorized by the
NWP will result in more than minimal individual or cumulative adverse environmental effects or
may be contrary to the public interest. The prospective permittee may, optionally, submit a
proposed mitigation plan with the pre-construction notification to expedite the process and the
District Engineer will consider any optional mitigation the applicant has included in the proposal
in determining whether the net adverse environmental effects of the proposed work are minimal.
If the District Engineer determines that the activity complies with the terms and conditions of
the NWP and that the effects are minimal, the District Engineer will notify the permittee and
include any conditions the District Engineer deems necessary.
Any mitigation proposal must be approved by the District Engineer prior to commencing
work. If the prospective permittee elects to submit a mitigation plan, the District Engineer will
expeditiously review the proposed mitigation plan, but will not commence a second 45-day
notification procedure. If the net adverse effects of the project (with the mitigation proposal) are
determined by the District Engineer- to be minimal, the District Engineer will provide a timely
written response to the applicant stating that the project can proceed under the terms and
conditions of the NWP.
If the District I?ngineer determines that the adverse effects of the proposed work are more
than minimal, then he will notify the applicant either:
(1) that the project does not qualify for authorization under the NWP and instruct
the applicant on the procedures to seek authorization under an individual permit,
(2) that the project is authorized under the NWP subject to the applicant's submitting
a nnitigation proposal that would reduce the adverse effects to the rnininnal level; or
(3) thal the project is authorized tinder the NWP with specific modifications or
conditions.
c. Agency Coordination. The District l"Ilgincer will consider any comments from
Federal and State agencies concerning the proposed activity's compliance with the terms and
conditions of tllc NWPs and the need for mitigation to reduce the project's adverse environmental
effects to it minimal level.
(1) For NWI' 26 (between 1 and 3 acres of impact). l'hc District Engineer will,
upon receipt of a notification, provide immediately, e.g., facsimile transmission, overnight mail
or other expeditious manner a copy to the appropriate offices of the Fish and Wildlife Service,
State natural resource or water quality agency, EPA , State Historic Preservation Officer (SHPO),
and if appropriate, the National Marine Fisheries Service.
The agencies will than have 5 calendar days from the date the material is transmitted to
telephone or fax the District Engineer notice that they intend to provide substantive, site-specific
comments. If so contacted by an agency, the District Engineer will wait an additional 16
calendar days before making a decision on the notification. The District Engineer will fully
consider agency comments received within the specified time frame, but will provide no
response to the resource agency. The District Engineer will indicate in the administrative record
associated with each notification that the resource agencies' concerns were considered.
Applicants are encouraged to provide the Corps multiple copies of notifications to expedite
agency notifications.
(2) Optional Agency Coordination, 401 Denial. For NWP 26 only, where the State
has denied its 401 water quality certification for activities with less that I acre of wetland impact,
the EPA regional administrator may request agency coordination of PCNs between 1/3 and I
acre. The request may only include acreage limitations within the 1 /3 to I acre range for which
the State has denied water quality certification. In cases where the EPA has requested
coordination of projects as described here, the Corps will forward the PCN to EPA only. The
PCN will then be forwarded to the Fish and Wildlife Service and the National Marine Fisheries
Service by EPA under agreements among those agencies. Any agency receiving the PCN will be
bound by the EPA time frames for providing comments to the Corps.
f. Wetlands Delineations. Wetland delineations must be prepared in accordance with
the current method required by the Corps. The permittee may ask the Corps to delineate the
special aquatic site. There may be some delay if the Corps does the delineation. Furthermore,
the 45-day period will not start until the wetland delineation has been completed and submitted
to the Corps, where appropriate.
5
g. Mitigation. Factors that the District Engineer will consider when determining the
acccptability ofappropriate and practicable mitigation include, but are not limited to:
(1) To be practicable, the mitigation must be available and capable of being done
considering costs, existing technology and logistics in light of the overall project purposes; and
(2) To the extent appropriate, pcrmittees should consider mitigation banking and
other forms of mitigation including contributions to wetland trust 1i111ds, in lieu fees to
organizations such as 'I'lic Nature Conservancy, State or county natural resource management
agencies, where such fees contribute to the restoration, creation, replacement, enhancement or
preservation of wetlands. Furthermore, examples of mitigation that may be
appropriate and practicable include but are not limited to: reducing the size of the project;
establishing wetland or upland buffer zones to protect aquatic resource values; and replacing the
loss of aquatic resource values by creating, restoring and enhancing similar functions and values.
In addition, mitigation must address wetland impacts, such as functions and values, and cannot
be simply used to offset the acreage of wetland losses that would occur in order to meet the
acreage limits of some of the NWPs (e.g., for NWP 26, 5 acres ol'wetlands cannot be created to
change a 6-acre loss of wetlands to a 1 acre loss; however, 2 created acres can be used to reduce
the impacts of a 3-acre loss.).
14. Compliance certification. Every permittee who has received a NWP verification from
the Corps will submit a signed certification regarding the completed work and any required
mitigation. The certification will be forwarded by the Corps with the authorization letter and
will include:
a. A statement that the authorized work was done in accordance with the Corps
authorization, including any general or specific conditions;
b. A statement that any required mitigation was completed in accordance with the permit
conditions; and
c. The signature of the permittee certifying the completion of the work and mitigation.
15. Multiple use of NWPs. In any case where NWP number 12 through 40 is combined
with any other NWP number 12 through 40, as part of a single and complete project, the
permittee must notify the District Engineer in accordance with paragraphs a., b., and c. of the
Notification General Condition number 13. Any NWP number 1 through 11 inay be combined
with any other NWP without notification to the Corps, unless notification is otherwise required
by the terms of the NWPs. As provided at 33 CFR 330.6(c) two or more different NWPs can be
combined to authorize a single and complete project. However, the same NWl' cannot be used
more that once for a single and complete project.
6
SEICTION 404 ONLY CONDITIONS
In addition to the (icneral ('onditions, the following conditions apply only to activities that
involve the discharge ofdredged or 1-111 material in waters ()tape United States, and must be
fiillowed in order for authorization by the NWPs to he valid:
I. Water supply intakes. No discharge of'dredgcd or fill IMItcrial may occur in the
proximity of'a public %VItrr supply intake cxcept where the discharge is for the repair ofthe
public water supply intake structure or adjacent bank stabilization.
2. Shellfish production. No discharge of dredged or till material may occur in areas o1'
concentrated shellfish production, unless the discharge is directly related to a shellfish harvesting
activity authorized by NWP 4.
3. Suitable material. No discharge of dredged or fill material may consist ol'unsuitablc
material (e.g., trash, debris, car bodies, asphalt, etc.,) and material discharges must be free From
toxic pollutants in toxic amounts (see Section 307 of the Clean Water Act).
4. Mitigation. Discharges of dredged or fill material into waters of the United States must
be minimized or avoided to the maximum extent practicable at the project site (i.e., on-site),
unless the District Engineer approves a compensation plan that the District Engineer determines
is more beneficial to the environment than on-site minimization or avoidance measures.
5. Spawning areas. Discharges in spawning areas during spawning seasons must be
avoided to the maximum extent practicable.
6. Obstructions to high flows. To the maximum extent practicable, discharges must not
permanently restrict or impede the passage of nonnal or expected high flows or cause the
relocation of the water (unless the primary purpose of the fill is to impound waters).
7. Adverse effects from impoundments. If the discharge creates as impoundment of
water, adverse effects on the aquatic system caused by the accelerated passage of water and/or
the restriction of its flow shall be minimized to the maximum extent possible.
8. Waterfowl breeding areas. Discharges into breeding areas for migratory waterfowl
must be avoided to the maximum extent practicable.
9. Removal of temporary fills. Any temporary fills must be removed in their entirety and
the affected areas returned to their preexisting elevation.
7
REGIONAL CONDITIONS
1. Prior to the use of any NWP in a designated "Outstanding Itcsource Water-" (OR W), a
dcs],matcd "I ligh Quality Watcr" 0IQW) or a designated "Primary Nursery Area" (PNA), of
Noah Carolina or in contiguous vv01ands (as defined by the North Carolina Division of Water
(_huility) to any ofthe above waters, proponents mtist notify the Wilmington District I":ngincer
and furnish a written statement of compliance with all of the conditions of the applicable NWP.
Notification will include the location of work; a description of work; a delineation of wetlands a
discussion ofalternatives to working(, in the waters and/or contiguous wetlands and why
alternatives were not selected; and a plan to provide compensatory mitigation for all unavoidable
adverse impacts to the waters and/or adjacent wetlands as may be required by the applicable
NWP. Work may proceed only after the permittce has received written, telephonic, or faxed
approval from the authorized representative of the District Engineer to proceed. Normally such
notice to proceed will be furnished within 30 calendar days of receipt of the above information.
2. Prior to use of any NWP in a designated "Area of Environmental Concern" (AEC) in
the twenty (20) counties of Eastern North Carolina covered by the North Carolina Coastal Area
Management Act (CAMA), a proponent must first obtain the required CAMA permit and furnish
a copy of the CAMA permit to the Wilmington District.
3. Prior to the use of any NWP on a barrier island of North Carolina, proponents must
notify the Wilmington District Engineer and furnish a written statement of compliance with all of
the conditions of the applicable NWP. Notification will include the location of work; a
description of work; a delineation of wetlands; a discussion of alternatives to the work and why
alternatives were not selected; and a plan to provide compensatory mitigation for all unavoidable
adverse impacts to wetlands or waters as may be required by the conditions of the applicable
NWP. Work may proceed only after the permittee has received written, telephonic, or faxed
approval from the authorized representative of the District Engineer to proceed. Normally such
notice to proceed will be furnished within 30 calendar days of receipt of the above information.
4. Prior to the use of any NWP in a "Mountain or Piedmont Bog" of North Carolina,
proponents must notify the Wilmington District Engineer and furnish a written statement of
compliance with all of the conditions of the applicable NWP. Notification will include the
location of work; a description of work; a delineation of wetlands; a discussion of alternatives to
the work and why alternatives were not selected; and a plan to provide compensatory mitigation
for all unavoidable adverse impacts to wetlands or waters as may be required by the conditions of
the applicable NWP. Work may proceed only after the permittee has received written,
telephonic, or faxed approval from the authorized representative of the District Engineer to
proceed. Normally such notice to proceed will be furnished within 30 calendar days of receipt of'
the above information.
8
5. Prior to use of any NWP for construction of animal waste facilities in waters and/or
wetlands ol'North Carolina. proponents must notify the Wilnington District I1;11gineer anti
furnish a v%ritten statement ofconnpliance with all ot'lhc conditions ofthc applicable NA/1'.
Notification will include the location of work; a description of work; a delineation ofwctlarnds; a
discussion of alternatives to the work and why alternatives were not selected; and, a plall to
provide compensatory mith',111011 kf all unavoidable adverse impacts to wetlands or waters as
may be rcduired by the applicable NWP. Work may procccd only after the permittee has
rcccived vyrittcn, telephonic, or faxed approval f1-om the authorized representative of the District
f':noincer to procccd. Normally such notice to proceed will be furnished within 30 calendar days
of receipt of the above information.
NOTE: The total area ofwctlands impacted, including wetlands drained by upland perimeter
ditches or by other means, will be considered as cumulative impacts in making a decision to
assert discretionary authority under any NWP.
6. Prior to the use of any NWP in mountain trout waters within twenty-five (25)
designated counties of North Carolina, proponents must notify the Wilmington District Engineer
and furnish a written statement of compliance with all of the conditions of the applicable NWP.
Notification will include a letter of comments and recommendations from North Carolina
Wildlife Resources Commission (NCWRC); the location of work; a delineation of wetlands; a
discussion of alternatives to working in the mountain trout waters and why alternatives were not
selected; and a plan to provide compensatory mitigation for all unavoidable adverse impacts to
the mountain trout waters. Worn: may proceed only after the permittee has received written,
telephonic, or faxed approval from the authorized representative of the District to proceed.
Normally such notice to proceed will be furnished within 30 calendar days of receipt of the
above information.
a. The twenty-five (25) designated counties arc:
Alleghany Ashc Avery
Buncombe Burkc Caldwell
Cherokee Clay Graham
Haywood Ilenderson Jackson
Macon Madison McDowell
Mitchell Polk Rutherford
Stokes Surry Swain
"Transylvania Watauga Wilkes
Yancey
9
b. 'fo obtain the required letter of approval froth the North Carolina Wildlife Resources
onlnussion (NCWRC), a proponent should contact:
North Carolina Wildlife Resources Commission
I labitat Conservation Program Manager
512 North Salisbury Street
Raleigh, NC 27611
'Telephone [phone]
8. Proponents must notify the Wilmington District Engineer and receive written approval
prior to performing work that would impact more than 150 linear feet of a stream. Notification
will include the location of work, a description of work, a discussion of alternatives to working
in the stream and why alternatives were not selected, and a plan to mitigate for all unavoidable
adverse impacts to more than 150 linear feet of the stream.
NOTE: Flooding of a free-flowing stream by an activity requiring authorization under this NWP
will be considered an adverse impact along with filling and excavation for the purposes of
determining impacts on stream.
STATE CONSISTENCY CONDITIONS
1. All fill material must be obtained from an upland source.
2. Use of this NWP for waste disposal facilities is not authorized.
3. The proposed activity must not be inconsistent with North Carolina's Antidegradation
Policy (15ANCAC 213.0201).
4. If the proposed activity is within the North Carolina Coastal Area and the activity will
result in the loss of waters of the United States greater than 1 /3 of an acre or cause modification
of greater than 150 linear feet of a stream, the applicant must receive written concurrence from
the North Carolina Division of Coastal Management (NCDCM) that the activity is consistent
with the North Carolina Coastal Management Program. Streams are defined as blue or purple
lines for permanent or intermittent streams as shown on the most recent version of the USGS
1:24,000 topographic neap or other site-specific data.
GENI,RAL CERTIFICATION CONDITIONS
1. Proposed fill or substantial modification of greater than one-third acre (0.135 ha) of
wetlands or waters for a project requires a written concurrence from the North Carolina Division
of Water Quality (NCDWQ).
10
2. Proposed fill or substantial modification of equal to or less than one-third acre (0.135 ha) of
wetlands or waters for a proiect does not require written concurrence from the. North Carolina
Division of, Water Quality (N('D\VQ) ;is long as the proiect is in compliance with all conditions
of, tills General Certification.
>. Proposed fill or substantial modification of any amount of, wetlands, classified in
accordance with 15A NCAC 213 .0101(c)(7) as Unique Wetlands (U WI.) shall require written
concurrence from the North Carolina Division of Water Quality in accordance with 15A N('A('
21 I .0500(c).
4. Proposed fill or substantial modification of more than 150 linear lcet (45.7 meters) of
streams lOr a proiect requires a written concurrence from the North Carolina Division of Water
Quality. l'or the purpose of this Certification, streams are defined as blue or purple lines for
permanent or intermittent streams as shown on the most recent version of the [ 1SGS 1:24,000
topographic map or other site specific data.
5. Proposed fill or substantial modification of less than or equal to 150 linear feet (45.7
meters) of streams for a project does not require a written concurrence from the North Carolina
Division of Water Quality as long as the project is in compliance with all conditions of this
General Certification. For the purpose of this Certification, streams are defined as blue or purple
lines for permanent or intermittent streams as shown on the most recent version of the USGS
1:24,000 topographic map or other site specific data.
6. Appropriate sediment and erosion control practices which equal or exceed those outlined
in the most recent version of the "North Carolina Sediment and I?rosion Control Planning and
Design Manual" or the "North Carolina Surface Mining Manual" (available from the North
Carolina Division of Land Management in the DEHNR Regional or Central Offices) will be
utilized to prevent exceedanecs of the appropriate turbidity water quality standard (50 NTU's in
streams and rivers not designated as trout by NCDWQ, 25 NTU's in all saltwater classes and all
lakes and reservoirs, and 10 NTIi's in trout waters).
7. All sediment and erosion control measures placed in wetlands or waters shall be removed
and the natural grade restored after the North Carolina Division of Land Resources has released
the project.
8. Additional site-specific conditions may be added to proiects with greater- than one-third
acre impact to wetlands or 150 linear feet of streams which are proposed under this Certification
in order- to ensure compliance with all applicable water quality and effluent standards.
9. Measures shall be taken to prevent live or fresh concrete from coming into contact with
waters of the State until the concrete has hardened.
10. If an environmental document is required, this Certification is not valid until a FONSI or
ROD is issued by the State Clearinghouse.
11
1 1. Concurrence from the North Carolina Division of Water Quality (NCDWQ) that this
Certification applies to an individual project shall expire on December- 13, 1998 to coincide with
the expiration date of NWP No. 26.
12

William G. Lapsley & Associates, P.A.
Consulting Engineers and Land Planners
1635 Asheville Highway ` g L?1
Post Office Box 546 g N
Hendersonville, North Carolina 28793
828-697-7334 • FAX [phone]
April 30, 1998
Mr. David Baker
U. S. Army Corps of Engineers
Asheville Regulatory Field Office
151 Patton Ave. Room 143
Asheville, NC 28801
Re: Popular Ridge Subdivision
Buncombe County, NC
Dear Mr. Baker:
MAY - 4

Enclosed for your review and approval, please find an application and supporting
information for the issuance of a Nationwide Permit for the above referenced project.
As you will see we have designed a roadway with two (2) creek crossings and the
construction of a small pond.
If you have any questions or concerns please feel free to contact our office.
WGL/ds
cc: Stephen D. Rice
John Dorney, NCDEMQ (7 Copies)
Mark Davis, NCWRC
William G. Lapslcy, P.E.
John Echeverri, P.E.
G. Thomas Jones 111, P.E.
i
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WILLIAM G. LAPSLEY & A SSOCIATES P.A.
CONSULTING ENGINEERS & LAND PLANNERS
1635 Asheville Highwav
Post Office Box 5JIi
Hendersonville, NC 2070:4
(7111) 0!17-7331 Phone
(704) 0117-7:1:3:1 F'xx
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POPLAR RIDGE SUBDIVISION
WETLAND AREAS
AND
STREAM IMPACT
FROM SHEET 2 OF 11
SCALE: 1 "=50'
_S RUN
EET #5)
WILLIAM G. LAPSLEY & ASSOCIATES P.A.
CONSULTING ENGINEERS & LAND PLANNERS
I1i35 lahvvillf? Highway
11-f Offi,p Box 546
11,ndcr4oimlle, NC 211179:1
(701) 697-73:11 Phony
(701) 697-7:3:3:3 Fax
cP. %Wbi.-W2 ` f cqb
POPLAR RIDGE SUBDIVISION
WETLAND AREAS
AND
STREAM IMPACT
FROM SHEET 3 OF 11
SCALE: 1 "=50'
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State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality
James B. Hunt, Jr., Governor
Wayne McDevitt, Secretary
A. Preston Howard, Jr., P.E., Director
1 ?•
NC ENR
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
July 30, 1998
Buncombe County
DWQ Project # 980382
APPROVAL of 401 Water Quality Certification and ADDITIONAL CONDITIONS, WRP
Mr. Stephen Rice
A & H Development, LLC
PO Box 5883
Asheville, NC 28813
Dear Mr. Rice:
You have our approval, in accordance with the attached conditions and those listed below, to place fill
material in 195 linear feet of waters for the purpose of constructing road crossings at Poplar Ridge in Buncombe
County, as you described in your application dated May 4, 1998. After reviewing your application, we have decided
that this fill is covered by General Water Quality Certification Numbers 3103 and 3108. These certifications allow
you to use Nationwide Permit Numbers 14 and 26 when the Corps of Engineers issues them. In addition, you
should get any other federal, state or local permits before you go ahead with your project including (but not limited
to) Sediment and Erosion Control, Coastal Stormwater, Non-Discharge and Water Supply Watershed regulations.
This approval will expire when the accompanying 404 or CAMA permit expires unless otherwise specified in the
General Certification.
This approval is only valid for the purpose and design that you described in your application except as
modified below. If you change your project, you must notify us and you may be required to send us a new
application for a new certification. If the property is sold, the new owner must be given a copy of this Certification
and approval letter and is thereby responsible for complying with all conditions. If total wetland fills for this
project (now or in the future) exceed one acre, compensatory mitigation may be required as described in 15A NCAC
2H .0506 (h). For this approval to be valid, you must follow the conditions listed in the attached certification and
any additional conditions listed below.
1. Deed notifications or similar mechanisms shall be placed on all lots with remaining jurisdictional
wetlands and waters to notify the state in order to assure compliance for future wetland and/or water
impact. These mechanisms shall be put in place within 30 days of the date of this letter or the issuance of
the 404 Permit (whichever is later).
We understand that you have chosen to contribute to the Wetland Restoration Program in order to compensate
for these impacts to wetlands and/or streams. In accordance with 15A NCAC 2R .0500, this contribution will
satisfy our compensatory mitigation requirements under 15A NCAC 2H.0506(h). According to 15A NCAC 2H
.0506(h), feet of restoration will be required. Until the Wetland Restoration Program receives and clears your check
(made payable to: DEHNR - Wetland Restoration Program), wetland or stream fill shall not occur. Mr. Ron Ferrell
should be contacted at 919-733-5083 ext. 358 if you have any questions concerning the Wetland Restoration
Program. You have one month from the date of this Certification to make this payment. For accounting purposes,
this Certification authorizes the till 195 feet of streams, in 040302 river and subbasin and 195 feet of stream
restoration are required. Please be aware that the wetland Restoration Program (WRP) rules require
rounding of acreage amounts to one-quarter acre increments (15A 2R.0503(b)).
If you do not accept any of the conditions of this certification, you may ask for an adjudicatory hearing. You
must act within 60 days of the date that you receive this letter. To ask for a hearing, send a written petition which
conforms to Chapter 150B of the North Carolina General Statutes to the Office of
Administrative Hearings, P.O. Box 27447, Raleigh, N.C. 27611-7447. This certification and its conditions are final
and binding unless you ask for a hearing.
This letter completes the review of the Division of Water Quality under Section 401 of the Clean Water Act.
If you have any questions, please telephone John Domey at 919-733-1786.
Division of Water Quality • Environmental Sciences Branch
Environmental Sciences Branch, 4401 Reedy Creek Rd., Raleigh, NC 27607 Telephone [phone] FAX # [phone]
An Equal Opportunity Affirmative Action Employer • 50% recycled/10% post consumer paper
Attachment
cc: Wilmington District Corps of Engineers
Corps of Engineers Asheville Field Office
Asheville DWQ Regional Office
Mr. John Dorney
Central Files
Ron Ferrell; Wetland Restoration Program
William Lapsley
kHoreon ?war , r.P.E.
980382.Itr
NORTH CAROLINA - DIVISION OF WATER QUALITY
401 WATER QUALITY CERTIFICATION
SUMMARY OF PERMITTED IMPACTS AND MITIGATION REQUIREMENTS
In accordance with 15A NCAC 2H .0500, Mr. Stephen Rice has received authorization as described below for the
purpose(s) of proposed road crossing. All activities associated with these authorized impacts must be conducted in accordance
with the conditions listed in the attached certification transmittal letter. THIS CERTIFICATION IS NOT VALID
WITHOUT THE ATTACHMENTS.
COMPENSATORY MITIGATION REQUIREMENT FOR WETLAND RESTORATION
LOCATION: Poplar Ridge subdivision
COUNTY: Buncombe
BAS IN/SUBBASIN : 040302
As required by 15A NCAC 2H .0506, and the conditions of this certification, you are required to compensate for the above
impacts through the restoration, creation, enhancement or preservation of wetlands and surface waters as outlined below prior to
conducting any activities that impact or degrade the waters of the state.
Note: Acreage requirements proposed to be mitigated through the Wetland Restoration Programs must be rounded to
one-quarter acre increments according to 15A 2R .0503(b)
acres of Class WL wetlands
acres of riparian wetlands
acres of non-riparian wetlands
acres of Class SWL wetlands
195 linear feet of stream channel
One of the options you have available to satisfy the compensatory mitigation requirements is through the payment of a fee
to the Wetlands Restoration Fund per 15A NCAC 2R .0503. If you choose this option, please sign this form and mail it to the
Wetlands Restoration Fund at the address listed below. An invoice for the appropriate amount of payment will be sent to you
upon receipt of this form. PLEASE NOTE, THE ABOVE IMPACTS ARE NOT AUTHORIZED UNTIL YOU RECEIVE
NOTIFICATION THAT YOUR PAYMENT HAS BEEN PROCESSED BY THE WETLANDS RESTORATION PROGRAM.
Signature
Date
WETLANDS RESTORATION PROGRAM
DIVISION OF WATER QUALITY
P.O. BOX 29535
RALEIGH, NC27626-0535
[phone] ext. 358
i
STATE OF NORTH CAROLINA
v
COUNTY OF JQ1M&jQhj,
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NORTH CAROLINA
DEPARTMENT OF ENVIRONMENT
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File No. WQ1
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PoPuI,R-}? ?ID??c 5'???IU?SIVN
IN THE MATTER OF: )
--R C. S k ? rJ 71 IZL C ? ?M I DJA?
FINDINGS AND DECISIONS
AND ASSESSMENT OF
CIVIL PENALTIES
FOR VIOLATIONS OF: ) 6\1
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AND CONDITIONS OF 401 CERTIFICATION ) ?) <

KeY-Y-T S-?,veons
Acting pursuant to North Carolina General Statute (G.S.) 143-215.6A, I, A,-X4:estsn
u w ftr`' T n Director of the Division of Water Quality (DWQ), make the following:
1. FINDINGS OF FACT: 1 0?4 vzje
P4 R Tew "a44-1 Lj,,L- (P
A. ("Winn-Dixie") is a corporation organized and existing
under the laws of the tate of No h ,Caro)ina.
B. q"eisteher and d eloper of the `" - " 11111 "LA"
located on SR .1,? near C in John,4-?m County, North Carolina ("the site").
6, visio Land urces ed Wi
me to ' n an sion of PI n f e
D. Velte mber ] 99 6, Winn-Dixas also ' ed a Ge Permit
0 to isrg stor ate un the at' al Poto sch rge
mi'on Syste (NPD
E. On November , 19 the Division of Lan ources inspected the site to
determine mpliance ith the Sedi ation Pollut' n Control Act of 19
inspecti revealed tha Winn- ' ie was in violation o its Se ation and
Ero ' n Control Plana Sedimentation Pollution Control Act ol' 1973.
F. On ovember 1996, the D?sion of Lan ces issued a letter to Winn-
Dixi , det ' 'ng the violations obs on November 21, violations
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to be di urbed During its December 2, 1996 site inspection, DWQ staff
observed at Wi -Dixie ha ?th ?this t d area, ' turbed the soils, and
permitted th edime toe L . Winn-Pie failed to s it ' s wetland mitigat' n ormwater management
or to const tion nd did not not' the Div' ion of changes in facility
1 , as requ' by it 401 Certifi 'on. -
h sts to the St e of enforcement pr cedur is matt otaled
$491.25.
Bas upon e above in o m e the foil
II. CONCLUSIONS OF LAW LAG
rn
A.e Via "person" within the meaning of G.S. 143-215.6A pursuant to
G.S. 143-212(4).
B. The unnamed tributary to ?Noql
k Class Xlocated
ary ( 66°1 a_,j aeefint+4st'ote
constitutes waters of the State within the meaning
of G.S. 143-212(6).
DES Pe o. 0 is requi - 15.1.
D. e req irements e S dimentatio onion C o Plan are terms,
conditio equirement ES Permit . NC A10000.
E. B ailing to install temporary sedimentation and erosion control-devices and
failin o maintain adequate buffer to protect the stream from siltation, as set forth
in the ap ved Sedimentation and Erosion Co 1 Flan, Winn-Dixie Raleigh,
Inc. violate art I, Section A: 2 of NPD en-nit No. NCGO 10000.
F. By failing to noti he Division ater Quality of planned changes in project
design or activities w h t result in noncompliance, Winn-Dixie violated the
conditions of NPDI P it No. NCGO 10000 Part 11 Section E: 2.
G. Winn-Dixie ma e assessed ci ' penalties in this matter pursuant to G.S. 143-
215.6A(a) (2 which provides that ivil penalty of not more than ten-thousand
dollars pe ay of violation may be assessed against a person who violates or fails
to act i accordance with the terms, conditi or requirements of a permit
requ' ed by G.S. 143-215.1.
H. 'Winn-Dixie violated G.S. 143-215.1 (a)(]) on December 1996, in the manner
and to the extent described in Attachment A, by permitting se vcnts to be

disc ha ed into the waters of the State in violati o e water quality turbidity
star ds set forth NCAC 2B .021 (3) (k/.
1
-Dixie be as essed civil nalties in thi mat pursuant to 143-
21 . 6A (a 1), whic prov7avy at a civil penalty of not more than t n thousand
do lays r day of vio atio be assessed against a person who v' lates any
st d established uant to 143-214.1
J. WinnEEF; h t and tions ' s 401 Certi ication re g
it etlands im ediately adjacent unnamed
abut K. Wi =Dixi led to co ly with the condition i n its 401 Certification requ' ing
it t sub it a anal pl for w d itigation t at agement
pri o const ion.
Winn-D' ailed to comply with the condition in its 401 Certification requiring
it to
YVIIIJ
Vi?rmi='Hix'ie may be assessed a civil penalty of up to $10,000 per day of violation
for failure to comply with conditions of its 401 Certification pursuant to GS 143- U
215.6A (a)(2), which provides that any person who fails to act in accordance with
the conditions of a certification issued pursuant to authority conferred in Part I of
Article 21 of the North Carolina General Statutes.
The State's enforcement costs in this matter may be assessed against
pursuant to G.S. 143-215.3(a) (9) and G.S. 143B-282.1(b) (8).
?7
The Director, Division of Water Quality , pursuant to delegation provided for by\
_JV G.S. 143-215.6A(h), has the authority to assess civil penalties in this matter.
Based upon the above Findings of Fact and Conclusions of Law, I make the following:
III. DECISION: 1 S/"
Accordingly, Winn-Dixie is hereby assessed a civil penalty of:
For 'lure to ins 1 tempora q;n osion control
ea u Ns as re ire by NP S CGO1 h?
A. .
$failure to notify t ision of Water Quality f planned
acti ' ies at the si which migi% result in non- mpliance with
NofN DE emit o. NCGO10000, s rcquir pursuant to Part IL E.
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State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality
AOM e0?
James B. Hunt, Jr., Governor NC ENR
Wayne McDevitt, Secretary NORTH CAROLINA DEPARTMENT OF
A. Preston Howard, Jr., P.E., Director ENVIRONMENT AND NATURAL RE50URCES
June 29, 1998
DWQ Project # 980382
Buncombe County
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Stephen Rice
PO Box 5883
Asheville, NC 28813
Dear Mr. Rice:
The Division of Water Quality has reviewed your plans for the discharge of fill material into 195 feet of streams
and/or wetlands located at SR 3121 in Buncombe County for development of Popular Ridge S/D. Based on this review,
we have identified significant uses, which would be removed or degraded by this project. These uses are aquatic life
uses in the stream. Furthermore, insufficient evidence is present in our files to conclude that your project must be built
as planned in waters and/or wetlands in accordance with 15A NCAC 2H .0506. Therefore, unless modifications of the
proposal are made as described below, we will have to move toward denial of your 401 Certification as required by 15A
NCAC 2H .0507(e) and will place this project on hold as incomplete until we receive this additional information. Until
we receive additional information, we are requesting (by copy of this letter) that the U.S. Army Corps of Engineers
place your project on administrative hold.
Please provide us with information supporting your position that states your project must be constructed as
planned and that you have no practicable alternative to placing fill in these waters and/or wetlands. Specifically can you
construct your development and further minimize stream impact? Any documentation such as maps and narrative that
you can supply to address alternative designs for your project may be helpful in our review of your 401 Certification.
Also this project will require compensatory mitigation since stream impacts exceed 150 linear feet as described in 15A
NCAC 2H .0506(h). Your mitigation proposal is insufficient because none was proposed
Please respond within two weeks of the date of this letter by sending a copy of this information to me and one
copy to Mr. Mike Parker Asheville Regional Office at Interchange Building 59 Woodlin Place Asheville NC 28801. If
we do not hear from you in two weeks, we will assume that you no longer want to pursue this project and we will
consider the project as withdrawn. I can be reached at 919-733-1786 if you have any questions.
e
Jer . Dom
Quality Certific Lion rogram
cc: Asheville DWQ Regional Office
Wilmington Office Corps of Engineers
Central Files
John Domey
Asheville Field Office Corps of Engineers
William Lapsley, William Lapsley and Associates
980382.nty
Division of Water Quality • Non-Discharge Branch
4401 Reedy Creek Rd., Raleigh, NC 27626-0535,o Telephone [phone] • FAX [phone]
An Equal Opportunity Affirmative Action Employer 50% recycled/ 10% post-consumer paper
State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality
eAWW"
James B. Hunt, Jr., Governor NC ENR
Wayne McDevitt, Secretary NORTH CAROLINA DEPARTMENT OF
A. Preston Howard, Jr., P.E., Director ENVIRONMENT AND NATURAL RESOURCES
February 24, 1999
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Stephen Rice
A&H Development, LLC
PO Box 5883
Asheville, NC 28813
Dear Mr. Rice:
Re: Stream mitigation requirement
Popular Ridge subdivision
Buncombe County
DWQ # 980382
Thank you for your letter of February 17, 1999 concerning stream mitigation
requirements for the impact of 195 feet of stream for road crossings for this subdivision. As
stated in my February 1, 1999 letter, stream mitigation will be needed for this impact.
Your letter questions whether mitigation is needed for the use of Nationwide Permit 14
since Nationwide Permit 26 was used for the dam construction. Our General Certification for
Nationwide Permit 14 states that application for is required for all use of this Permit which also
triggers the stream mitigation requirement. Your statement that "...compensatory mitigation is
only applicable for streams disturbed under type 26 Permits." is not true.
It is only reasonable to give you additional time to receive this final letter and send a
check for the mitigation to the Wetlands Restoration Program beyond the February 22, 1999
deadline in February 1, 1999 letter. Therefore, if payment to the N.C. Wetlands Restoration
Program is not received by March 15, 1999 we will proceed to take enforcement actions for non-
compliance with this Certification which may include revocation of the/Certification as well as
fines.
Please call me at 919-733-1786 if you have any questions.
cc: Asheville DWQ Regional Office
Ron Ferrell, WRP
John Dorney
Central Files
William Lapsley, Lapsley and Associates
Asheville US Army Corps of Engineers
Tie Dorsey
Wetlands/401 Unit 4401 Reedy Creek Road Raleigh, North Carolina 27607
Telephone [phone] FAX # [phone]
An Equal Opportunity Affirmative Action Employer 50% recycled/ 10% post consumer paper
,..AD,
A& H DEVELOPMENT, L L C
P.O. Box 5883
Asheville, NC 28813
[phone]
FAX [phone]
February 17, 1999
Mr. John Dorney
NCDENR
Division of Water Quality
Environmental Sciences Branch
4401 Reedy Creek Road
Raleigh, NC 27607
Re: DWQ Project #980382
Dear Mr. Dorney:
r
I am in receipt of your letter dated February 1, 1999. As we discussed in the
field, when we started this project I was not aware of the requirements of your program
and have been trying to get up to speed on the specifics. At this point, I have one
additional question.
Our U.S. Army Corps of Engineers Permit issued on May 12, 1998 was issued
as both a Nationwide Permit 14 and Nationwide Permit 26. The Nationwide Permit 14
was issued for our twin 60' road crossing. Because a Permit 14 can only be used for
(1) stream crossing, a Nationwide Permit 26 was issued to construct the pond.
It is my understanding that compensatory mitigation is only applicable for
streams disturbed under type 26 Permits. If so, the first road crossing under our type
14 Permit should not have been counted toward the 150' maximum disturbed length.
Based on having 120' of impact under the Permit 26 at our pond crossing, we
have not exceeded the 150' maximum of our type 26 Permit. If so, we are not in
violation of the 150' maximum.
Please advise if I am interpreting these regulations correctly. I appreciate your
assistance and look forward to hearing from you.
Sincerely,
A & H DEVELOPMENT, LLC
-=:? -=?- T?- ,
Stephen D. Rice
President
S D R/ty
CC: Wilmington District Corps of Engineers
Corps of Engineers Asheville Field Office
Asheville DWQ Regional Office
Ron Ferrell; Wetland Restoration Program
William Lapsley
State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality
James B. Hunt, Jr., Governor
Wayne McDevitt, Secretary
A. Preston Howard, Jr., P.E.,
Mr. Stephen Rice, President
A & H Development Inc.
PO Box 5883
Asheville, NC 28813
Dear Mr. Rice:
Re: Popular Ridge subdivision
Buncombe County
DWQ # 980382

F?WAA •
A I 412
NC ENR
NORTH CAROLINA DEPARTMENT OF
Director ENVIRONMENT AND NATURAL RESOURCES
February 1, 1999
As a follow up to the site visit conducted by Mike Parker of our Asheville Regional Office, Todd
St. John and myself on January 27, 1999 I observed the following conditions. About 121 feet of culvert
and 37 feet of riprap had been installed at road crossing No. 1 while at least 79 feet of culvert and 30 feet
of riprap had been installed at road crossing No. 2 (which also serves as the dam for the pond). In the
stream channel itself, DWQ staff found numerous biological indicators of perennial flow including fish,
crayfish, several kinds of caddisflies, several kinds of mayflies, snails and salamanders.
The 401 Certification issued on July 30, 1998 required compensatory mitigation for 195 feet of
stream impact. Based on our site visit, this requirement is still valid. As we discussed, mitigation should
have been required for the riprap impact (approximately 67 additional feet). However DWQ staff did not
notice the riprap on your submittal and therefore. the Certification will not be modified for this additional
amount of mitigation.
As we discussed in the field, you will have until February 22, 1999 to decide whether to pay the
N.C. Wetland Restoration Program for mitigation or to locate a suitable off-site mitigation area and
conduct mitigation on your own. If we do not hear from you by February 22, 1999 with a final decision,
we will proceed to take enforcement actions for non-compliance with this Certification, which may
include civil penalties and fines.
Please call me at 919-733-1786 if you have any questions.
Si y?
Jo R. Dorney
cc: Asheville DWQ Regional Office
Ron Ferrell, WRP
John Dorney
Central Files
William Lapsley, Lapsley and Associates
Asheville Field Office, US Army Corps of Engineers
Wetlands/401 Unit 4401 Reedy Creek Road Raleigh, North Carolina 27607
Telephone [phone] FAX # [phone]
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uow, V? d ?
P.O. Box 5883
Asheville, NC 28813
[phone]
FAX [phone] January 4, 1999
Mr. John Dorney
NCDENR
Division of Water Quality
Environmental Sciences Branch
4401 Reedy Creek Road
Raleigh, NC 27607
Re: DWQ Project #980382
Dear Mr. Dorney:

am in receipt of your letter dated December 22, 1998, but I don't understand it.
We have 120 feet of stream impact at Site 1 which is a road crossing. We have
90 feet of stream impact at Site 2 which is the construction of the dam which created
the pond. There is not 75 feet plus 120 feet at Site 2 that your letter references.
I do not understand why you are adding Site 2 to the total, as it is what created
the pond. I realize that this is confusing where our application was filled out originally
in error, however, the plans that were submitted were correct and show Site 2 as
construction of the pond.
If you still feel that we have more than 120 feet of stream impact, I would like a
meeting at the site to clarify. Thank you for your help and consideration.
Sincerely,
A & H DEVELOPMENT, LLC
Stephen D. Rice
President

SDR/ty
CC: Wilmington District Corps of Engineers
Corps of Engineers Asheville Field Office
Asheville DWQ Regional Office
Ron Ferrell; Wetland Restoration Program
William Lapsley
State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality
James B. Hunt, Jr., Governor
Wayne McDevitt, Secretary
A. Preston Howard, Jr., P.E.,
Aowft
NC ENR
NORTH CAROLINA DEPARTMENT OF
Director ENVIRONMENT AND NATURAL RESOURCES
December 22, 1998
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Stephen Rice
A & H Development, LLC
PO Box 5883
Asheville, NC 28813
Dear Mr. Rice:
Re: Mitigation requirement
Poplar Ridge Subdivision
Buncombe County
Thank you for your December 1, 1998 letter concerning mitigation requirements for this
project. Your letter stated that you believe that compensatory stream mitigation should not be
required since some of your stream impacts are due to pond construction, which according to
DWQ's stream mitigation policy do not require mitigation. However you have 120 feet of
stream impact at road crossing #1, 75 feet of stream impact at site #2 due to a road crossing and
120 feet of stream impact at site #2 due to pond construction. DWQ's requirement for 195 feet
of stream restoration reflects the sum of the two road crossings (120 feet plus 75 feet for a total
of 195 feet) and does not involve the stream impact from the pond. Therefore you are required
to provide 195 feet of stream restoration as stated in our Water Quality Certification of July 30,
1998.
Please submit your payment and return the enclosed form to the WRP (address listed on
the form) within 21 days upon your receipt. If this matter is not resolved by this time, NC DWQ
will proceed to revoke your Certification and initiate an enforcement action against you for this
matter if any stream impacts have occurred.
Please call me at 919-733-1786 if you have any questions.
cer
o . Dorney
cc: Asheville Field Office US COE
Asheville Regional Office
John Dorney
Ron Ferrell; WRP
Central Files
William Lapsley
Wetlands/401 Unit 4401 Reedy Creek Road Raleigh, North Carolina 27607
Telephone [phone] FAX # [phone]
An Equal Opportunity Affirmative Action Employer 50% recycled/ 10% post consumer paper
NORTH CAROLINA - DIVISION OF WATER QUALITY
401 WATER QUALITY CERTIFICATION
SUMMARY OF PERMITTED IMPACTS AND MITIGATION REQUIREMENTS
In accordance with 15A NCAC 2H .0500, A & H Development has permission as outlined below for the purpose(s) of
proposed impacts. All activities associated with these authorized impacts must be conducted with the conditions listed in the
attached certification transmittal letter. THIS CERTIFICATION IS NOT VALID WITHOUT THE ATTACHMENTS.
COMPENSATORY MITIGATION REQUIREMENT WETLAND RESTORATION PROGRAM
LOCATION: Poplar Ridge subdivision
COUNTY: Buncombe
BASIN/SUBBASIN:
As required by 15A NCAC 2H .0506, and the conditions of this certification, you are required to compensate for the above
impacts through the restoration, creation, enhancement or preservation of wetlands and surface waters as outlined below prior to
conducting any activities that impact or degrade the waters of the state.
Note: Acreage requirements proposed to be mitigated through the Wetland Restoration Programs must be rounded to
one-quarter acre increments according to 15A 2R .0503(b)
acres of Class WL wetlands
acres of riparian wetlands
acres of non-riparian wetlands
acres of Class SWL wetlands
195 linear feet of stream channel
(other)
One of the options you have available to satisfy the compensatory mitigation requirements is through the payment of a fee
to the Wetlands Restoration Fund per 15A NCAC 2R.0503. If you choose this option, please sign this form and mail it to the
Wetlands Restoration Fund at the address listed below. An invoice for the appropriate amount of payment will be sent to you
upon receipt of this form. PLEASE NOTE, THE ABOVE IMPACTS ARE NOT AUTHORIZED UNTIL YOU RECEIVE
NOTIFICATION THAT YOUR PAYMENT HAS BEEN PROCESSED BY THE WETLANDS RESTORATION PROGRAM.
Signature Date
WETLANDS RESTORATION PROGRAM
DIVISION OF WATER QUALITY
P.O. BOX 29535
RALEIGH, NC 27626-0535
[phone] ext. 358
State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality
James B. Hunt, Jr., Governor
Wayne McDevitt, Secretary
A. Preston Howard, Jr., P.E.,
eNCDENR
NORTH CAROLINA DEPARTMENT OF
Director ENVIRONMENT AND NATURAL RESOURCES
December 22, 1998
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Stephen Rice
A & H Development, LLC
PO Box 5883
Asheville, NC 28813
Dear Mr. Rice:
Re: Mitigation requirement
Poplar Ridge Subdivision
Buncombe County
Thank you for your December 1, 1998 letter concerning mitigation requirements for this
project. Your letter stated that you believe that compensatory stream mitigation should not be
required since some of your stream impacts are due to pond construction, which according to
DWQ's stream mitigation policy do not require mitigation. However you have 120 feet of
stream impact at road crossing #1, 75 feet of stream impact at site #2 due to a road crossing and
120 feet of stream impact at site #2 due to pond construction. DWQ's requirement for 195 feet
of stream restoration reflects the sum of the two toad crossings (120 feet plus 75 feet for a total
of 195 feet) and does not involve the stream impact from the pond. Therefore you are required
to provide 195 feet of stream restoration as stated in our Water Quality Certification of July 30,
1998.
Please submit your payment and return the enclosed form to the WRP (address listed on
the form) within 21 days upon your receipt. If this matter is not resolved by this time, NC DWQ
will proceed to revoke your Certification and initiate an enforcement action against you for this
matter if any stream impacts have occurred.
Please call me at 919-733-1786 if you have any questions.
cer
o . Dorney
cc: Asheville Field Office US COE
Asheville Regional Office
John Dorney
Ron Ferrell; WRP
Central Files
William Lapsley
Wetlands/401 Unit 4401 Reedy Creek Road Raleigh, North Carolina 27607
Telephone [phone] FAX # [phone]
A n Equal 0 rtunity Affirmative Action Employer 50% recycled/l0% post consumer paper
ppo
NORTH CAROLINA - DIVISION OF WATER QUALITY
401 WATER QUALITY CERTIFICATION
SUMMARY OF PERMITTED IMPACTS AND MITIGATION REQUIREMENTS
In accordance with 15A NCAC 2H.0500, A & H Development has permission as outlined below for the purpose(s) of
proposed impacts. All activities associated with these authorized impacts must be conducted with the conditions listed in the
attached certification transmittal letter. THIS CERTIFICATION IS NOT VALID WITHOUT THE ATTACHMENTS.
COMPENSATORY MITIGATION REQUIREMENT WETLAND RESTORATION PROGRAM
LOCATION:
COUNTY:
BASIN/SUBBASIN:
Poplar Ridge subdivision
Buncombe
As required by 15A NCAC 2H.0506, and the conditions of this certification, you are required to compensate for the above
impacts through the restoration, creation, enhancement or preservation of wetlands and surface waters as outlined below prior to
conducting any activities that impact or degrade the waters of the state.
Note: Acreage requirements proposed to be mitigated through the Wetland Restoration Programs must be rounded to
one-quarter acre increments according to 15A 2R.0503(b)
acres of Class WL wetlands
acres of riparian wetlands
acres of non-riparian wetlands
acres of Class SWL wetlands
195 linear feet of stream channel
(other)
One of the options you have available to satisfy the compensatory mitigation requirements is through the payment of a fee
to the Wetlands Restoration Fund per 15A NCAC 2R.0503. If you choose this option, please sign this form and mail it to the
Wetlands Restoration Fund at the address listed below. An invoice for the appropriate amount of payment will be sent to you
upon receipt of this form. PLEASE NOTE, THE ABOVE IMPACTS ARE NOT AUTHORIZED UNTIL YOU RECEIVE
NOTIFICATION THAT YOUR PAYMENT HAS BEEN PROCESSED BY THE WETLANDS RESTORATION PROGRAM.
Signature Date
WETLANDS RESTORATION PROGRAM
DIVISION OF WATER QUALITY
P.O. BOX 29535
RALEIGH, NC 27626-0535
[phone] ext. 358
A& H DEVELOPMENT, LL C
P. O. Box 5883 p
Asheville, NC 28813 December 1, 1998
[phone]
FAX [phone]
Mr. John R. Dorney
Wetlands/401 Unit
NC Division of Water Quality
4401 Reedy Creek Road
Raleigh, NC 27607
RE: 401 Water Quality Certification
DWQ #980382
Poplar Ridge Subdivision
Buncombe County
Dear Mr. Dorney:
J6
.n oEC 3
w,
am in receipt of your letter dated October 22, 1998, regarding the stream
impacted by the road construction in our development. Your explanation of the State's
position on this matter is clear on the timing of the permits.
I reviewed once again the policy statement on these situations. Our application
to the U.S. Army Corps of Engineers for this project identified 195 LF of the stream
impact and the construction of a pond. The length of the stream included in this impact
is 120 LF of 60" culvert at one crossing (Site #1) and 75 LF of 48" crossing at a second
location (Site #2). The second location was the construction of a pond designed for
fish and wildlife propagation.
According to the policy statement under Section III:
"Stream impact associated with construction of a pond for stormwater, irrigation or other
purposes will not require mitigation for the stream impact as long as the pond is
designed to support aquatic life (i.e., with littoral shelves). However, pond creation may
not be used to mitigate for additional stream or wetland loss."
If we are interpreting this policy correctly, the second crossing should not have
been included in our total stream impact. Therefore, our total stream impact is 120 LF
which is under the threshold of 150 LF.
i Our development will comply with all of the Federal and State regulations, but I
feel like this project does not require a contribution to the wetland mitigation fund.

cmk. ???/K?58 ?

If you would like to discuss this situation, please feel free to call me at 828-681-0081.
Sincerely,
A & H DEVELOPMENT, LLC
Stephen D. Rice
President
SDR/ty
CC: Wilmington District Corps of Engineers
Corps of Engineers Asheville Field Office
Asheville DWQ Regional Office
Ron Ferrell; Wetland Restoration Program
William Lapsley
State of North Carolina
Department of Environment
and Natural Resources
Division of Water Quality
James B. Hunt, Jr., Governor
Wayne McDevitt, Secretary
A. Preston Howard, Jr., P.E., Director
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Stephen Rice
A&H Development, LLC
P.O. Box 5883
Ashevile, N.C. 28813
FAA
1 ? •
NCDENR
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES
November 19, 1998
NCDWQ# 980382
SUBJECT: WRP-FAILURE OF PAYMENT NOTIFICATION
Poplar Ridge Subdivision
Buncombe County
Dear Mr. Rice:
On July 30, 1998 you were issued a 401 Water Quality Certification authorizing you to
impact wetlands and or waters of the State. As part of this Certification you were required to
make a payment to the N.C. Wetland Restoration Program for impacts to 195 feet of stream. As
of this date, no payment for these activities has been received.
You are hereby notified that the wetland and or water impacts approved by your 401
Certification must not be initiated PRIOR to payment into the WRP. Failure to make payment
for wetland or stream impacts as required by your 401 Water Quality Certification may result in
an enforcement action being initiated against you. Additionally, a Civil Penalty assessment not to
exceed $10,000 per day may also be levied against you.
Please submit your payment and return the enclosed form to the WRP (address listed on
the form) within 21 days upon your receipt. If this matter is not resolved by this time, NCDWQ
will proceed to revoke your Certification and initiate an enforcement action you for this matter.
If you should have any questions regarding this matter please feel free to call me at (919)
733-1786 or Ron Ferrell at (919-733-5083 EXT. 358).
Sincerely,
Domey
Water Quality Certificado Program
Cc: Ron Ferrell, WRP
Mike Parker, Asheville Regional Office
Wetlands/401 Unit 4401 Reedy Creek Road Raleigh, North Carolina 27607
Telephone [phone] FAX # [phone]
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i
10/16/1998 12:35 4
PAGE 01
N. C. DEPARTMENT OF ENVIRONMENT MW
NATURAL RESOURCES
DIVISION OF NAT= QUALITY
WATER QUALITY SECTION
ASHEVILLE REGIONAL OFFICE
59 WOODFIN PLACE
ASHEVILLE, NORTH CAROLINA 28801
PHONE: [phone] FAX: [phone]
TO:
FAX #:
FRAM:
DATE
# OF PAGES INCI' MTNG THIS COVUR:
N. C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
ASHEVILLE REGIONAL OFFICE
MSS3AGE: If questions. Please call 828/251-6208.
10/16/1998 12:35
P.C). HOX 5883
ASHEVILL . NC 28813
704/66 1 -0081
FAX 70XCIR 1.0068

August 18, 1998
Mr. John Dorney
NCDENR
Division of Water Quality
Environmental Sciences Branch
4401 Ready Creek Road
Raleigh, NC 27607
Re- pWQ Project #980382
PAGE 02
Dear Mr. Domey:
I am in receipt of your letter dated July 30, 1998, approving our project at poplar
Ridge. '
At this point, I am taking exception to making e contribution 13o the Weill d d
Restoration Program. As I had stated earner in my lett (,cation on April You ere
our not respond to our application within 29th 90 days Water, sent
Per Section .0500 -Water
30th; your response was dated Jun
Quality Certification, Paragraph .0507, Subsection n (a) ailuretto take the i l action within
60 days shall result in a waiver of the certification requirement
Please advise with an explanation if I am misinterpreting this paragraph. Even
though I am assuming the certification requirement is waived, I will comply with your
request of the Deed Notification to be put in place.

hVOW&
-
rui 00 0 4WNWW Is
10/16/1998 12:35 4
Thank you for your assistance.
Sincerely,
A & M DEVELOPMENT, LLC
"'V?
Stephen D. Rice
President
SDR/ty
CC: Wilmington District Corps of Engineers
Corps of Engineers Asheville Field Office
ASheville DWQ Regional Office
Ron Ferrell; Wetland Restoration Program
William Lapsley
PAGE 03
r
FROM: KILNTEK FHA: 8286810868 Ju1-13-98 We? :26 PROE: O1
is
A & H DEWEL OPMENT, LL C
A 0, Box 5883
Asheville, NC 28873
[phone] July 13, 1998
FAX (82BJ W-0068
Mr, John R. Dorney
Water Quality Certification Program
North Carolina Department of Environment and Natural Resources
4401 Reedy Creek Rd.
Raleigh, NG 27626-0535
Re: DWQ Project # 980382
Dear Mr. Dorney:

?NM
was surprised to receive your letter dated Juno 29, 1998, as our package was
sent to your office approximately 90 days ago. Having not heard from you, I assumed
you did not have any problem with the project. Unfortunately, the stream crossing you
are commenting on will be completed this week per the approved plans.
am assuming from your comments that nobody actually looked at this property.
There was a significant amount of work and thought put into the plans you have, all of
which was done with field Inspections, recommendations and approvals of the U.S.
Army Corps of Engineers.
Mr. 1-apsley has contacted Mr. Mike Parker as you requested and has been
Informed that it will be some time next week or longer before Mr. Parker can schedule a
visit to the site.
As you are apparently passing judgment on our project without a field evaluation,
I will try to help you with some additional information.
Tho specific location for this stream crossing was selected in the field with my
Project Engineer, William Lapsley, and David Baker from the Asheville office of the
U.S. Army Corps of Engineers, Not only is there no way to physically get to this
property without crossing this stream, we relocated the road from our original plan at
significant expense to put this crossing whore it would have the least impact.
We received our 1_1 . S- Army Corps of Engineers permit on May 12, 1998, and
proceeded with the project at that time.
pfa?
We had some specific recommendations from the North Carolina Wildlife
Resource Commission that were quite helpful to the execution of the stream crossing.
Based on their recommendations, the following occurred:
FRON: KILNTEK FRX: 8286810068 Jul-13-98 Wed 10:26 PAGE: 02
1. We made adequate sedimentation and erosion control measures so we avoided
impacts on downstream aquatic resources.
z. The culverts were placed with the floor of the barrels approximately one foot below
the level of the stream bottom to allow natural stream bottom materials to become
established In the culvert.
3. Culverts were constructed in a dry work area. A temporary culvert was used to
handle the water flow so we did not have any flowing water around the excavation
and construction of the permanent culverts.
4. We did no dredging from the stream channel.
6. We used no concrete during culvert installation to make sure we had no contact
between curing concrete and stream water.
6. We constructed a temporary retention basin so no storm water would get into the
stream.
will assume that with this explanation and tho Not that we hevo alroody
completed construction with all the permits we understood to be necessary for this
project, you will rescind your objections to the project in writing to all parties that
received copies of your letter to me dated June 29, 1998.
can be reached at 628-681-0081 if you have any questions,
Sincerely,
A & H DEVELOPMENT, LLC
Stephen D. Rice
President
SDR/Isp
CC: Mr. William Lapsley
Asheville DWQ office
U.S. Army Corps of Engineers, Wilmington office
U.S. Army Corps of Engineers, Asheville office
05/11/1990 00:33
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