20090757 Ver 1_Notice of Violation_20101202

NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins Dee Freeman
Governor Director Secretary
December 1, 2010
CERTIFIED MAIL #7009 2250 0000 9252 5020
Warren G. Whichard
511 Bay Lake Drive
Chocowinity, NC 27817
Subject: NOTICE OF VIOLATION and
RECOMMENDATION FOR ENFORCEMENT
NOV-2010-CV-0014
Bay Lakes
Failure to Secure 401 WQC,
Stream and Wetland Standard Violations
Beaufort County
Dear Mr. Whichard:
This letter is to notify you that the Washington Regional Office (WaRO) of the Division of Water Quality (DWQ) is
considering taking an enforcement action and injunctive relief for violations observed during recent site inspection by
staff from the DWQ WaRO. On November 29, 2010, Amy Adams, Roberto Scheller and Anthony Scarbraugh of
the DWQ inspected the subject property known as Bay Lakes located on the Southwestern intersection of
Whichard Beach Road (SR 1166) and Bay Lake Drive near the Town of Chocowinity, Beaufort County. During
the site inspection, the investigators observed the excavation of the streambed within Taylor Creek associated
with the construction of an outlet connecting Bay Lakes to open waters of Taylor Creek. In addition,
investigators also observed excavation with 404-wetlands associated with the widening of an existing canal and
placement of spoil material and other debris within 404 jursidictional wetlands.
As a result of the site inspections and file review, the following violations, detailed below, are noted:
(1) Failure to Secure 401 Water Quality Certification
(2) Wetland Standard violation
1) Failure to Secure a 401 Permit
The impacts to the streambed of Taylor Creek and excavation of wetlands require permits and certifications from
the Division of Coastal Management (DCM), United States Army Corps of Engineers (USACOE) and the
Division of Water Quality. DWQ site visit and file review confirmed that impacts occurred without a Major
Development Permit from DCM, 404 Permit from the USACOE and 401 WQC from DWQ. The file review
confirmed that a Major Development Permit application was received by the DWQ on July 9, 2009, to impact 1.3
North Carolina Division of Water Quality Internet: www.ncwaterguality.org
943 Washington Square Mall Phone: [phone] One
Washington, NC 27889 FAX [phone] NorthCarolina
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Page 2 of 3
Warren G. Whichard
Beaufort County
acres of wetlands and 0.5 acres of open waters to construct a canal at different location to connect Bay Lakes to
Taylor Creek. On January 28, 2010, this Office returned the application due to not receiving a response to a
second request for additional information issued on November 25, 2009. A Major Development Permit and/or
Pre-Construction Notification is required to be submitted to DWQ prior to the above-mentioned impact pursuant
to 15A NCAC 2H.0500.
2) Wetland Standard Violation (15A NCAC 2B .0231)
The excavation and fill of 404 jurisdictional wetland during the on-site land disturbing activities represents
violations of 15A NCAC 02B .0231 (b) (1) Liquids, fill or other solids or dissolved gases may not be present in
amounts which may cause adverse impacts on existing wetland uses; (5) 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.
Requested Response
This Office requests that you respond to this letter in writing within 5 calendar days of receipt of this Notice.
Your response should be sent to this office at the letterhead address. Your response should address the following
items:
1. Please explain when construction (excavation, grubbing, and clearing) began at the site.
2. Please clearly explain why appropriate 401 Water Quality Certification, Major Development Permit nor
404 Permit were secured.
3. Please provide documentation (including a detailed site map/survey) depicting all jurisdictional water
features (e.g. streams and wetlands) on the site. This documentation should describe and quantify the
impacts to those jurisdictional features, and should include plans to avoid further stream and wetland
impacts on the site.
Please submit the following documents for review and approval:
a. Permit Application - If you wish for any impacts to remain in place, you must contact the DCM
and ACOE for information on the type(s) of permit required. Depending on the type of permits
DCM and USACOE requires, application for a 401 Water Quality Certification to DWQ will also
be required.
b. Stream Restoration Plan (Excavation of Streambed) -Any impacts beyond what is permitted must
be restored. Please explain how you plan to restore the pattern, profile and dimension of the
impacted stream channel. The streambed must be restored to the original profile and the stream
banks must be stabilized.
c. Wetland Restoration Plan (Wetland impacts)- The restoration plan must detail how the fill
material placed in wetlands that cannot be permitted will be removed and how the wetlands will
be restored. This information must be clearly depicted on a map that you provide as a part of this
response. This map should also indicate all of the wetlands locations on the tract as well as the
wetland areas that have been impacted.
d. Please indicate in your response a detailed schedule with dates explaining when the restoration
will be accomplished, and if you plan to seek a permit for the permittable impacts, when an
application will be submitted. It is the expectation of this office that all impacts be abated no
later than January 30, 2011. Please tailor your response and schedule to achieve compliance by
this date.
North Carolina Division of Water Quality Internet: www.ncwaterQuality.org
943 Washington Square Mall Phone: [phone] One
Washington, NC 27889 FAX [phone] NorthiCarolina
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Pa6e 3 of 3
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Beaufort County
Finally, you should include in your response an explanation of how you propose to prevent these
problems from reoccurring on this project and on future projects.
****You are encouraged to secure a consultant to assist you with your plan development, permit, certification
and authorization necessary to achieve compliance. * * * *
These violations and any future violations are subject to a civil penalty assessment of up to $25,000.00 per day for
each violation. This office is considering forwarding a civil penalty recommendation for assessment
consideration and proceedings with injunctive relief procedures through the Attorneys Generals Office.
Your response to this matter will be considered in this process. Please respond within 5 days of receipt of this
notice. Should you have any questions regarding these matters, please contact Roberto Scheller, Anthony
Scarbraugh or myself at [phone].
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'%ifonlfi?upervisor
Surface Water Protection Section
Washington Regional Office
cc: John Hennessy - NPS Assistance and Compliance Oversight Unit
WaRO File
David Moye - DCM WaRO
Tracey Wheeler - US ACOE -Washington Office
Pat McClain - DLR WaRO
Maria Dunn - Wildlife Resources Commission WaRO
Kevin Hart - Marine Fisheries WaRO
North Carolina Division of Water Quality Internet: www.ncwateroualitv.org
943 Washington Square Mall Phone: [phone]
Washington, NC 27889 FAX [phone]
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North Carolina
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