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Home My WebLink About20090757 Ver 1_NOV Enforcement Recommendation_20110503Surface Water Protection Washington Regional Office Regional Field Office Division of Water Quality May 3, 2011 Memorandum: TO: Cyndi Karoly Wetland and Stormwater Branch Chief FROM: Al Hodge Washington Regional Office PREPARED BY: Roberto Scheller 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 • 9/28/1999 Additional information requested was not provided and application was withdrawn.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.