20090757 Ver 1_NOV Recommendation_20110503

Surface Water Protection
Washington Regional Office Regional Field Office
Division of Water Quality
May 3, 2011
Memorandum:
TO: Cyndi Karoly
Wetland Z' rmwa er Branch Chief
FROM: Al Hodge
Washingt n
PREPARED BY: Roberto Schell li?
SUBJECT: Enforcement Recommendation
Warren G. Whichard
511 Bay Lake Drive
Chocowinity
Beaufort County, NC
Case Background and Assessment
• 2/24/1999 The Division of Water Quality (DWQ) received a CAMA Major Application
(DWQ# 99-0182) for Mr. Warren G. Whichard of 511 Bay Lake Drive.
• 5/5/1999 Application placed on Hold for additional information.
• 9/28/1999 Additional information requested was not provided and application was
withdrawn.
• 7/7/2009 The Division of Water Quality (DWQ) received a CAMA Major Application
(DWQ# 09-0757) for Mr. Warren G. Whichard of 511 Bay Lake Drive. Roberto
Scheller of the Washington Regional Office (WaRO) reviewed the application
for completeness and found the application contained insufficient
information in which to issue a General Certification (GC). The CAMA Major
Application proposed to construct a navigable access channel from Bay Lake
to Taylor Creek and Chocowinity Bay. The proposed channel is to be 65 foot
wide and 4 feet deep. The channel is to provide access for Bay Lake
residents to the Pamlico River.
• 8/7/2009 A request for additional information was issued from the Washington
Regional Office (Cert. # 7007 3020 0001 8861 4522) and the subject
application was placed on hold. The additional information letter requested
a three dimensional flushing model and dissolved oxygen model, notarized
letters from all property owners agreeing to have buffers placed on their
properties, buffer restoration on unsold lots, and avoidance and
minimization of wetland impacts be demonstrated in proposed construction
of connective canal.
Mr. Warren G. Whichard, Bay Lake Subdivision
Beaufort County
Page 2 of 5
• 8/24/2009 An amendment to the request for additional information was issued (Cert.
#7007 3020 0001 8861 4539) that requested a three dimensional flushing
model and dissolved oxygen model, notarized letters from all property
owners agreeing to have buffers placed on their properties, deed notification
for all unsold lots, and avoidance and minimization of wetland impacts be
demonstrated in proposed construction of connective canal. The buffer
restoration of unsold lots was removed as not being appropriate for an
existing basing proposing connection to buffered waters.
• 10/22/2009 Ms. Laura Stasavich of Land Management Group Inc. requested a meeting
with DWQ WaRO to discuss deficiency with the CMAM Major Application
submitted on behalf of Mr. Warren Whichard. During the meeting Mr. Al
Hodge (Supervisor), Chris Pullinger, and Roberto Scheller from the
Washington Regional Office were present. Ms. Stasavich proposed submitting
monitoring data in place of a flushing model. She proposed that data for
dissolved oxygen and water level fluctuations within Bay Lake would
demonstrate that Bay Lake is hydraulically connected to the Pamlico River
and the lake has sufficient dissolved oxygen and flushing within the lake and
canal system to meet water quality standards. Mr. Al Hodge accepted the
data to be reviewed and determined if the submitted data sets could be used
in place of required models.
• 11/25/2009 Data submitted to the WaRO in place of flushing and DO models was
reviewed and numerous discrepancies and omitted data within the data sets
were noted. A request for additional information was issued and the subject
application was placed on hold.
1/28/2010 Applicant did not respond to request for additional information (30 days
allowed for response but an additional 30 days was given due to complexity
of project) and application was returned as incomplete.
• 3/04/2010 A response to the hold letter issued on 1/25/2099 was received in the
Washington Regional Office on March 4, 2010.
• 11/29/2010 DWQ WaRO received a report from Division of Coastal Management that Mr.
Warren Whichard was constructing an unpermitted canal opening from Bay
lake to Taylor Creek and Chocowinity Bay.
• 11/29/2010 Investigation of the unpermitted construction was conducted by Amy Adams,
Anthony Scarbraugh, and Roberto Scheller of the WaRO.
• 12/01 /2010 Notice of Violation and Recommendation for Enforcement (NOV-2010-CV-
0014) was issued from the Washington Regional Office.
• 12/20/2010 Correspondence received from the Army Corp of Engineers (Action ID# SAW-
2009-01567) in regards to Mr. Whichard and Bay Lake stated that the project
area must be restored and all unauthorized fill material must be removed
from wetlands for placement back on high ground.
Mr. Warren G. Whichard, Bay Lake Subdivision
Beaufort County
Page 3 of 5
• 12/22/2010 Request was received from Davis Hartman Wright PLLC, Attorney's at Law,
acting on behalf of Mr. Warren Whichard, for time extension for response to
NOVRE.
• 12/23/2010 WaRO received hand written apology letter from Mr. Warren Whichard.
• 01 /04/2011 WaRO received response from Mr. Clark Wright, Attorney acting for Mr.
Whichard, to address NOVRE.
• 01 /25/2011 At the request of Mr. Clark Wright a meeting was held to discuss NOVRE,
corrections of violations, and review of data submitted to DWQ in-lieu of
Dissolved Oxygen and Flushing models. Present during the meeting were the
following: Chris Pullinger, Anthony Scarbraugh, Roberto Scheller, Al Hodge
(Supervisor) and Amy Adams of Water Quality, Clark Wright (Attorney for Mr.
Whichard), Jimmy Whichard and Warren Whichard, owners of Bay Lake,
Laura Stasavich, and Rob Moul of Land Management Group Inc.
• 02/18/2011 Closure plan of canal opening was received from Land Management Group
Inc. for review.
• 02/18/2011 An approval letter was issued from DWQ WaRO of closure structure for
unpermitted canal opening from Bay Lake to Taylor Creek and Chocowinity
Bay.
04/21 /2011 Meeting was held on-site with Laura Stasavich of Land Management Group to
• review closure of canal and restoration of wetland areas.
Current Status of the Site:
As of the April 21, 2011, the opening constructed from Bay Lake to Taylor Creek and
Chocowinity Bay has been closed to boat traffic and water transfer. Fill has been removed
from affected wetlands and disposed in uplands areas.
Impacts have resulted in the following Violation:
15A NCAC 2B.0211 (2) - by impacts to Taylor Creek by the excavation of the stream
channel.
15A NCAC 2B.0231 b (1), (5) and (6) - by impacts to wetlands caused by placement of
excavated spoil material and mass grading of jurisdictional wetlands.
15A NCAC 2H.0501 and .0502 - failure to secure a Water Quality Certification for
unauthorized stream and wetland impacts associated with the construction of access canal.
Mr. Warren G. Whichard, Bay Lake Subdivision
Beaufort County
Page 4 of 5
DIVISION OF WATER QUALITY
ENFORCEMENT CASE FACTORS
Type: Wetland and Stream Standard Violations and
Failure to Secure 401-WQC
Violator: Mr. Warren G. Whichard
Location: The tract known as Bay Lake located end of Bay Lake Drive off SR 1166
near the Town of Chocowinity, Beaufort County
Regional Office: Washington
1. The degree and extent of harm to the natural resources of the State, to the public
health, or to private property resulting from the violation;
See Memorandum for detailed explanation of degree and extent of harm to the natural
resources of the State, to the public health, or to private property resulting from the
violations.
2. The duration and gravity of the violation;
See timeline of events within the enforcement memo.
3. The effect on ground or surface water quantity or quality or on air quality;
Impacts to surface water quality have occurred from construction of access canal with
no sediment and erosion control and no turbidity curtains in place to isolate work area
from open waters. Additional impacts include placement of fill in 1.3 acres of
jurisdictional wetlands.
4. The cost of rectifying the damage;
The cost for rectifying the damage to the environment is difficult to provide. The main
costs would result from the restoration of wetlands impacts and construction of
bulkhead to close access canal. Additional costs will be associated with properly
permitting of dredge that occurred in old canal and stream area. The cost associated
with damage to the aquatic habitat is unknown.
5. The amount of money saved by noncompliance;
Costs associated with securing the proper permits to minimize impacts to the
environment were avoided. The total dollar amount is unknown but a flushing and
dissolved oxygen model was required for permitting. Modeling may cost from
$30,000.00 to $50,000.00.
6. Whether the violation was committed willfully or intentionally;
There is sufficient evidence to conclude the violations were committed willfully an
intentionally. Mr. Whichard is aware of requirement to secure DWQ certification.
Mr. Warren G. Whichard, Bay Lake Subdivision
Beaufort County
Page 5 of 5
7. The prior record of the violator in complying or failing to comply with programs
over which the Environmental Management Commission has regulatory authority;
DWQ has no evidence of any prior record against Mr. Warren G. Whichard.
8. The cost to the State of the enforcement procedures.
Anthony Scarbraugh 8.00 hours $213.76
Amy Adams 6.00 hours $174.96
Roberto Scheller 20 hours $583.20
Chris Pullinger 8 hours $220.08
Al Hodge, Regional Supervisor $45.42
Mileage 60 miles @ $0.43/mile $25.80
Central Office Review and Processing $100.00
Total $1,363.22
9. Type of violator and general nature of business (i.e. individual vs. large
corporation):
Mr. Warren G. Whichard is an individual involved in the development of a housing
subdivision known as Bay Lake Subdivision. Mr. Whichard owns the largest tracts of
land within the subdivision.
10. Violators degree of cooperation (including efforts to prevent or restore or
recalcitrance):
During the initial investigation DWQ staff visited the subject violation site via boat
based on comments from the Army Corp of Engineers that Mr. Whichard was highly
aggravated and some what hostile. During the investigation Mr. Whichard was
operating large earth moving equipment and hollering at investigation staff. The
Washington Regional Office received an apology letter from Mr. Whichard on
December 23, 2010. Mr. Whichard has since been corporative in closing the
unpermitted channel and remediation of wetland impacts.
11. Mitigating circumstances:
None known.
12. Assessment Factors:
a) IWC: NA
b) Receiving Streams: Taylor Creek (SC, NSW; 29-6-2) is a tributary of Chocowinity
Bay (SC, NSW) within the Tar-Pamlico River Basin.
c) Damage: Excavation and unauthorized impacts of 2,275 square feet of excavation
of upland to create unpermitted open channel from Bay Lake to Taylor Creek and
Chocowinity Bay. Dredging of channel in Taylor Creek and unauthorized placement
of fill material and mass grading of jurisdictional wetlands resulting in approximately
1.3 acres of impacts.
STATE OF NORTH CAROLINA
COUNTY OF BEAUFORT
IN THE MATTER OF
MR. WARREN G. WHICHARD
FOR VIOLATIONS OF
15 A NCAC 02B .0211(2),
15A NCAC 2B.0231 (b)(1), (b)(5) and (b)(6) )
15A NCAC 2H.0501
15A NCAC 2H.0502
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL
RESOURCES
CASE NO. NOV-2010-CV-0014
FINDINGS AND DECISION
AND ASSESSMENT OF
CIVIL PENALTIES
Acting pursuant to North Carolina General Statutes (hereby known as G.S.) 143-215.6A, I,
Cyndi Karoly, of the Division of Water Quality (hereby known as DWQ), make the following:
1. FINDING OF FACT
A. Mr. Warren G. Whichard is an individual property owner and developer of "Bay
Lake Subdivision residing in the State of North Carolina.
B. Mr. Warren G. Whichard is the owner of record of the site known as Bay Lake
Subdivision located approximately off Whichard's Beach Road (SR 1166) near
the Town of Chocowinity, Beaufort County.
C. On November 29, 2010 and December 3, 2010, DWQ staff conducted a site visit and
observed impacts to approximately 65 linear feet of Taylors Creek resulting from the
excavation of a channel to connect Bay Lake to Taylor Creek and Chocowinity Bay.
DWQ also observed impacts to approximately 1.3 acres of jurisdictional wetlands
from placement of excavated spoil material and mass grading of wetlands. All
impacts were associated with construction activities.
D. Title 15A North Carolina Administrative Code (hereby known as NCAC) 2B .0211
(2) requires that "The waters shall be suitable for aquatic life propagation and
maintenance of biological integrity, wildlife, secondary recreation, and
agriculture; sources of water pollution which preclude any of these uses on
either a short-term or long-term basis shall be considered to be violating a
water quality standard."
E. On November 29, 2010 and December 3, 2010, DWQ staff observed impacts to
approximately 1.3 acres of jurisdictional wetlands resulting from the placement of
excavated spoil material during streambed excavation and mass grading associated
with construction activities at the subject site.
F. Title 15A NCAC 2B .0231 (b) (1) requires "Liquids, fill or other solids or
dissolved gases may not be present in amounts which may cause adverse
impacts on existing wetland uses."
Mr. Warren G. Whichard, Bay Lake Subdivision
Beaufort County
Page 2 of 4
G. Title 15A NCAC 2B .0231 (b) (5) requires "Hydrological conditions necessary to
support the biological and physical characteristics naturally present in wetlands
shall be protected to prevent adverse impacts on: (C) The chemical, nutrient
and dissolved oxygen regime of the wetland; (D) The movement of aquatic
fauna; (F) Water levels or elevations."
H. Title 15A NCAC 2B .0231 (b) (6) requires "The population of wetland flora and
fauna shall be maintained to protect biological integrity as defined at 15A
NCAC 213 .0202."
On November 29, 2010 and December 3, 2010, DWQ staff observed that impacts
occurred to Taylor Creek and associated wetlands without a valid 401 Water Quality
Certification. Impacts consisted of 65 linear feet of excavation of stream bottom
within Taylor Creek and 65 linear feet of excavation through uplands to construct
boat access channel from Bay Lake to Taylor Creek and Chocowinity Bay.
A review of DWQ files confirmed that no 401 Water Quality Certification or
Individual Permit or Certificate of Coverage to operate under a General Permit
has been issued for the impacts that have occurred on the tract.
K. Title 15A NCAC 2H .0502 states any person desiring issuance of the State
certification or coverage under a general certification required by Section 401
of the Federal Water Pollution Control Act shall file with the Director of the
North Carolina Division of Water Quality.
L. On December 1, 2010, DWQ issued a Notice of Violation and Recommendation for
Enforcement for the observed violations.
M. On December 22, 2010 DWQ received extension request on behalf of Mr. Warren
Whichard in order to allow sufficient time to address the violations at the subject site.
DWQ required the submittal of a notice response by December 8, 2010. Completion
of associated restoration is no later than January 30, 2011. As of April 26, 2011
violations to wetlands and channel opening have been resolved on the subject site.
N. The impacts occurred to Taylor Creek and associated wetlands, Class SC; NSW
waters within the Tar-Pamlico River Basin.
0. The cost to the State of the enforcement procedures in this matter totaled
$1,363.22.
Based upon the above Finding of Fact, I make the following:
CONCLUSION OF LAW
A. Mr. Warren G. Whichard is a "person" within the meaning of G.S. 143-215.6A
pursuant to G.S. 143-212 (4).
B. Taylor Creek, located at the site, constitutes waters of the State within the meaning
of G.S. 143-212 (6).
Mr. Warren G. Whichard, Bay Lake Subdivision
Beaufort County
Page 3 of 4
C. Mr. Warren G. Whichard violated Title 15A NCAC 213 .0211 (2) by impacts to
approximately 65 linear feet of Taylor Creek from the excavation of the stream
channel.
D. Mr. Warren G. Whichard violated Title 15A NCAC 26 .0231(a) and (b) (1), (5)
and (6) by impacts to approximately 1.3 acres of wetlands caused by placement
of excavated spoil material and mass grading.
E. Mr. Warren G. Whichard violated Title 15A NCAC 2H .0501 and .0502 by
impacting Taylor Creek and its associated wetlands without first applying for
and securing the issuance of a 401 Water Quality Certification as required by
Section 401 of the Federal Water Pollution Control Act.
F. Mr. Warren Whichard may be assessed civil penalties in this matter pursuant to
G.S. 143-215.6A (a)(1), which provides that a civil penalty of not more than twenty-
five thousand dollars ($25,000) per violation per day may be assessed against a
person who violates any classification, standard, limitation, or management practice
established pursuant to G.S. 143-214.1, 143-214.2, or 143-215.
G. Mr. Warren Whichard may be assessed civil penalties pursuant to G.S. 143-215.6A
(a)(6) which provides that a civil penalty of not more than twenty-five thousand
dollars ($25,000.00) per violation may be assessed against a person who violates a
rule of the Commission implementing this Part, Part 2A of this Article, or G.S. 143-
355(k).
H. The State's enforcement cost in this matter may be assessed against Mr. Warren
Whichard pursuant to G.S. 143-215.3 (a)(9) and G.S. 143B-282.1 (b)(8).
Cyndi Karoly of the Division of Water Quality, pursuant to delegation provided by the
Secretary of the Department of Environment and Natural Resources and the Director
of the Division of Water Quality, 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
Accordingly, Mr. Warren G. Whichard is hereby assessed a civil penalty of:
for one (1) violation of 15A NCAC 213 .0211 (2) by impacts to
approximately 65 linear feet of Taylor Creek from excavation of
the streambed such that the best use of the stream was
removed.
$ for one (1) violation of 15A NCAC 213 .0231(a) and (b) (1), (5) and
(6) by impacts to approximately 1.3 acres of wetlands caused by
placement of excavated material and mass grading which may
cause adverse impacts to existing wetland uses.
Mr. Warren G. Whichard, Bay Lake Subdivision
Beaufort County
Page 4 of 4
$ for one (1) violation of failing to secure a Water Quality
Certification according to 15A NCAC 2H .0501 and .0502
$ TOTAL CIVIL PENALTY, authorized by G.S. 143-215.6A
$ 1,363.22 Enforcement Cost
$ TOTAL AMOUNT DUE
As required by G.S. 143-215.6A(c), in determining the amount of penalty, I considered the
factors set out in G.S. 1436-282.1(b), which are:
(1) The degree and extent of harm to the natural resources of the State, to the public
health, or to private property resulting from the violations;
(2) The duration and gravity of the violations;
(3) The effect on ground or surface water quantity or quality or on air quality;
(4) The cost of rectifying the damage;
(5) The amount of money saved by noncompliance;
(6) Whether the violations were committed willfully or intentionally;
(7) The prior record of the violator in complying or failing to comply with programs over
which the Environmental Management Commission has regulatory authority; and
(8) The cost to the State of the enforcement procedures
Date Cyndi Karoly
Division of Water Quality