20090757 Ver 1_NOV - Asssessment of Civil Penalties_20110503

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 2B .0202."
1. 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.
J. 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 213 .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. 14313-282.1 (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