20061922 Ver 1_Notice of Violation_20070808

Q.T ~
~F W'~TF~y Michael F. Easley, Governor
~, ~"~ -Q p to - ~ a a, a William G. Ross Jr., Secretary
~~ ~ North Carolina Department of Environment and Natural Resources
D • - - -~ Coleen H. Sullins, Director
? _- Division of Water Quality
August 8, 2007
CERTIFIED MAIL
RETURN RECEIPT REQUESTED - 7006.3450 0002 7064 8679
Beaucatcher Heights Development Corporation
DP Realty, LLC
5960 Fairview Road
Suite 500
Charlotte, North Carolina 28210
CERTIFIED MAIL
RETURN RECEIPT REQUESTED - 7006 3450 0002 7064 8662
David A. Pendlebury
DP Realty, LLC
205 Westwood Avenue
High Point, North Carolina 27261
Subject: NOTICE OF VIOLATION and
RECOMMENDATION FOR ENFORCEMENT
Beaucatcher Heights
Removal of Best Usage
Failure to Secure a 401 Water Quality Certification
Buncombe County
Dear Sirs:
On July 26, 2007, Kevin Barnett of the North Carolina Division of Water Quality (DWQ)
inspected your site located off Kenilworth Road in Asheville. It was observed on July
26, 2007 that your contractor was observed washing sediments into storm drains leading
directly to waters of the state. Additionally, it was observed that two (2) erosion control
devices had been constructed within streams and that an off site pond had been silted in
from uncontrolled sediments from this site. The Beaucatcher Heights Subdivision
contains an un-named tributary to the Swannanoa River, Class C, waters, which drains to
the Swannanoa River, Class C, waters in Buncombe County.
As a result of the site inspection and file review, the following violations detailed below
are noted:
(1) NCGO 10000 Permit Violation
(2) Removal of Best Usage
(3) Failure to Secure a 401 Water Quality Certification
N~ehCarolina
~aturrr!!y
N. C. Division of Water Quality 2090 US HWY 70 Swannanoa, NC 28778 Phone [phone] Customer Service
Asheville Regional Office FAX [phone]
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper

Page 2
Beaucatcher Heights Subdivision
Buncombe County
Item I. NCGO10000 Permit Condition Violation
1) Approved Plan (Part I, Section A: No. 2.).
Part I Section A No. 2: Final Limitations and Controls For Stormwater Discharges
1. The permittee shall implement the plan, which the approval authority has
approved. The approved plan is considered a requirement or condition of
this general permit. Deviation from the approved plan, or approved
amendment to the plan, shall constitute a violation of the terms and
conditions of this general permit except that deviation from the approved
plan will be allowed (1) to correct an emergency situation where
sediments are being discharged off the site or (2) when minor
modifications have been made for the purpose of improving the
performance of the erosion and sediment control measures and notification
of the minor modification has been made to the Division of Land
Resources (or approved local program). Such a deviation shall be noted on
the approved plan maintained at the job site. During active construction, a
copy of the approved plan shall be maintained on the site.
2. Part II Section C(1): Proper Operation and Maintenance
The permittee shall at all times properly operate and maintain all facilities and
systems of treatment and control (and related appurtenances) which are installed
or used by the permittee to achieve compliance with the conditions of this general
permit.
Item II. Removal of Best Usage
The placement of fill (sediment basins and uncontrolled sediments) constitutes a
Removal of Best Usage as defined in 15A NCAC 02B .0211 (2) where the waters shall
be suitable for aquatic life propagation and maintenance of biological integrity, wildlife,
secondary recreation, and agriculture; sources of water pollution which preclude any of
these uses on either ashort-term or long-term basis shall be considered to be violating a
water quality standard.
Item III. Failure to Secure a Water Quality Certification
The placement of fill in waters of the State of North Carolina requires a 401 Water
Quality Certification be obtained prior to the commencement of the filling activity as
required in 15A NCAC 2H .0500. A file review indicates that the U.S. Army Corps of
Engineers (COE) has not authorized use of a 404 Permit for this activity nor has
notification been provided to the COE for this activity. The file review confirmed that a
Pre-construction Notification has not-been received by the Division of Water Quality for
this project and that a 401 Water Quality Certification has not been issued. A Pre-
Construction Notification submitted to DWQ is required prior to the above-mentioned
impacts pursuant to 15A NCAC 2H .0500.

Page 3
Beaucatcher Heights Subdivision
Buncombe County
Requested Response
This Office requests that you respond to this letter in writing within 15 days of receipt of
this Notice. Your response should be sent to both this office at the letterhead address and
to the attention of Mr. Danny Smith at the Wetlands and Stormwater Branch, NPS
Assistance and Compliance Oversight Unit, 1617 Mail Service Center, Raleigh, NC
27699-1617. Your response should address the following items:
1. As detailed in the attached addendum, the NCGO10000 stormwater permit
requires inspection and record keeping requirements for the project site.
Accordingly, it is requested that your response to the DWQ be provided a copy of
all rain gauge data and weekly inspection/monitoring reports related to your
inspections of the approved sedimentation and erosion control facilities. Copies
of all corresponding inspections subsequent to rain events greater than 0.5 inches
are requested as well. Also, please provide inspection information that was
recorded with respect to measures taken to clean up sediment that has left the
disturbed limits of the site. Failure to provide this information will constitute
violations of the subject NPDES NCGO10000 stormwater permit.
This information must be mailed to the Regional Office at the letterhead
address within 15 days of receipt of this letter and must include rain gauge
data and monitoring records through to the date of your written response to
this letter.
2. Your written response should detail the events that resulted in your non-
compliance with the above-mentioned NPDES NCGO10000 permit conditions.
3. Explain in your response when you anticipate being in full compliance with the
Construction Stormwater Permit and your Erosion and Sediment Control Plan.
Please provide information detailing your compliance with the minimum
monitoring and reporting requirements as requested above for each phase of the
project. Specifically, it is requested that you provide this Office with copies of all
monitoring records within 30 days of receipt of this notice. This information must
include all monitoring records up to the date of your written response to this
letter. Please explain why these impacts occurred without prior authorization.
4. Please provide documentation of all jurisdictional water features (e.g. streams,
wetlands, buffers) on site. This plan should also describe and quantify the
impacts to those jurisdictional features, and should include plans to avoid further
stream and wetland impacts on the site.

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Beaucatcher Heights Subdivision
Buncombe County
5. Please submit the following documents for review and approval:
• Stream Restoration Plan (stream bed removal impacts) -Please explain
how you plan to restore the pattern, profile and dimension of the impacted
stream channels to include the removal of pipes, fill and riprap. The
streambed must be restored to a stable profile, the stream banks must be
stabilized, and any fill material must be removed from the riparian zone.
Replanting of the riparian zone will be required.
• Stream Restoration Plan (sediment impacts) -Sediment impacts to the
streams onsite and downstream of the site must be removed. As a part of
this plan, you should provide the amount (depth) of material that has been
deposited in the floodplain, stream and any wetlands. This information
should be depicted on a map you provide. It is recommended that you use
hand labor (buckets, shovels and wheelbarrows) to remove deposited
sediment from the stream channel. The sediment should be removed from
the channel, taken to high ground away from the stream channel and
stabilized. Also, the plan must address the measures that will be used for
temporary stabilization/sediment control while this work is under way.
• Permit Application - If you wish for any impacts to remain in place, you
must contact the U.S. Army Corps of Engineers (USACOE) for
information on the type(s) of permit required. Depending on the type of
permits USACOE requires, application ,for a 401 Water Quality
Certification to DWQ will also be required. Please note that sediment
impacts to streams are not permittable.
• Please indicate in your response a detailed schedule with dates explaining
when the restoration will be accomplished. If you plan to seek a permit
for the permittable impacts and when an application will be submitted.
You are encouraged to secure an environmental consultant to assist you with
your plan development, permit, certification and authorization necessary to
achieve compliance.
6. It is required that you contact the City of Asheville Erosion Control Program and
the U.S. Army Corps of Engineers. These contacts are necessary to ensure that
your restoration efforts are in compliance with the Sedimentation Pollution
Control Act and Section 404 of the Clean Water Act.
By copy of this Notice of Violation, the Division is hereby requesting that all City
approvals (including, but not limited to, Erosion Control Plan approvals, Septic System
approvals, Sewer and Water connections, Building permits, etc.) be withheld until the site
is brought into complete compliance with all applicable regulations. No further grading,
clearing, burning, or land development (with the exception of installation and
maintenance of appropriate erosion control devices) should be occurring on this site until
these violations are resolved.

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Beaucatcher Heights Subdivision
Buncombe County
Thank you for your attention to this matter. This Office will be sending a
recommendation for enforcement to the Director of the Division of Water Quality
regarding these issues and any future/continued violations that may be encountered.
Your above-mentioned response to this correspondence will be considered in this
process. This office requires that the violations, as detailed above, be abated
immediately. These violations and any future violations are subject to a civil
penalty assessment of up to $25,000.00 per day for each violation. Should you have
any questions regarding these matters, please contact Kevin Barnett at [phone].
Sincerely,
~~ ~-. ~~~
Roger C. Edwards, Regional Supervisor
Surface Water Protection Section
Division of Water Quality
cc: Cyndi Karoly - 401 Oversight and Express Permits Unit
Danny Smith - NPS Assistance and Compliance Oversight Unit
City of Asheville Erosion Control Program
City of Asheville Building Inspectors Office
City of Asheville Health Department
Lori Beckwith, U.S. Army Corps of Engineers Asheville Regulatory Field Office
David McHenry, NC Wildlife Resources Commission
Bryan Tompkins, US Fish and Wildlife Service