20060061 Ver 1_Notice of Violation_20090219

OF WAIF
\O? RpG Michael F. Easley, Governor
William G. Ross Jr., Secretary
? North Carolina Department of Environment and Natural Resources
> Coleen H. Sullins, Director
Division of Water Quality
February 19, 2009
CERTIFIED MAIL #7006 2150 0000 3313 4810
RETURN RECEIPT REQUESTED
Southfork Developers, LLC
Attn: Wallace E. Peiffer
3696 Lalla Court
Wake Forest, NC 27587
CERTIFIED MAIL #7006 2150 0000 3313 4827
RETURN RECEIPT REQUESTED
Southfork Developers, LLC
Attn: Greg Benner
188 N. Bend Drive
Youngsville, NC 27596
Subject: NOTICE OF VIOLATION
NOTICE OF INTENT TO ENFORCE
NOV-2008-PC-0864
DWQ Project # 06-0061
Southfork Subdivision - Olde Brassfield Subdivision Phase 2
36.12970°N, -78.5654°W
401 Water Quality Certification Condition Violations
Other Waste (in-stream sediment)
Removal of Best Usage
Tar-Pamlico River Riparian Buffer Violation
Wetlands Standards
Stormwater General Permit (NCG010000) Condition
Granville County
Dear Sir:
On December 19, 2008, Lauren Witherspoon and Natalie Landry from the Raleigh Regional Office of the
Division of Water Quality (DWQ) conducted a site inspection for the tract/project known as Southfork
Subdivision/Olde Brassfield Subdivision Phase 2 located off of Old Franklinton Road (SR 1705) south of
Wilton in Granville County, North Carolina. The streams on the site are unnamed tributaries (UT) to
Ford Creek and Ford Creek, Class C NSW waters in the Tar-Pamlico River Basin.
Please Note: DWQ issued a Notice of Violation, dated January 8, 2009, to Bill Wynn - Wynn
Construction for the impacts listed below. However, it was brought to our attention by Allen Faulkner
that the current owner of this property is Southfork Developers, LLC.
Accordingly, the following observations were noted during the DWQ file review:
Summit Consulting Engineers submitted a Pre-Construction Notification (PCN) dated December 16, 2005
and additional information received by DWQ on February 8, 2006 on behalf of Crosswind Properties,
LLC - Mr. Bill Wynn - Wynn Construction. The impacts were requested under U.S. Army Corps of
North Carolina Division of Water Quality Raleigh Regional Office Surface Water Protection Phone [phone] Customer Service
Internet: h2o.enr.state.nc.us 1628 Mail Service Center Raleigh, NC 27699-1628 FAX [phone]
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
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Southfork/Olde Brassfield Subdivision Phase 2
Granville County
Engineers Nationwide Permit 14 and the corresponding General Water Quality Certification Number
3404 (GC3404). DWQ issued an approval for the impacts dated February 13, 2006 (DWQ Project # 06-
0061).
The 401 Water Quality Certification (DWQ Project# 06-0061) authorizes to place fill or otherwise impact
0.086 acres of wetland, 250 linear feet of stream, and 13,137 square feet of protected riparian buffers. In
addition, eight (8) level spreaders depicted on Drawing No. 1 of 2 of the plans dated February 8, 2006
were included in this approval.
A buffer determination was made by Eric Kulz (DWQ personnel) on March 1, 2005 (letter dated March 7,
2005 - TPBRRO 05-055) for this tract/project which was named the Yarborough Site at that time.
DWQ observations during the December 19, 2008 site inspection and file review include:
Impact Area #1 identified in the February 8, 2006 PCN application:
o Approximately 105 LF of stream had been impacted to include 62 LF of culvert impacts, 17 LF
of excavation both upstream and downstream of the culvert (total 34 LF), and a 9 LF check dam
downstream from the culvert;
o The 401 authorized 108 LF of stream impacts which includes a 36 LF dissipator pad that had not
been installed;
o Level Spreaders 7 and 8 had not been installed resulting in severe erosion around the headwalls
and lack of diffuse flow through the buffer;
o Level Spreaders 6 and 9 were not functioning properly resulting in severe erosion around the
headwalls and lack of diffuse flow through the buffer;
o Level Spreader 9 measured approximately 16 LF while the 401 WQC approval dated February
13, 2006 required the minimum length to be 19.74 LF;
o The stream and buffer at Impact #1 was not included in the buffer determination letter
(TPBRRO 05-055 dated March 7, 2005) and is not depicted correctly on Drawing No. 1 of 2.
The extent of the stream and buffer should be shown on maps throughout the tract.
Impact Area #2 identified in the February 8, 2006 PCN application:
o Approximately 94 LF of stream channel had been impacted to include approximately 64 LF of
culvert impacts and 30 LF of streambank disturbance downstream of the culvert;
o Approximately 30 LF of stream channel downstream of the culvert had been impacted by
sediment deposition measuring 4-5 inches in depth;
o The 401 authorized 142 LF of stream impacts that includes a 60 LF dissipator pad that had not
been installed. The 401 authorization does not include sediment impacts which are not
permittable;
o The culvert at this road crossing is perched by at least 6 inches above the substrate of the stream;
o No level spreaders had been installed resulting in severe erosion, the instability of the headwalls,
and lack of diffuse flow through the buffer.
Stream and Wetland Impacts not identified in the PCN application and not approved by DWQ:
o Approximately 310 LF of stream channel [identified as Stream B in the buffer determination
letter (TPBRRO 05-055) dated March 7, 2005] had been impacted to include approximately 63
LF of culvert impacts associated with a road crossing, 83 LF from the placement of a sediment
basin and rip rap, and 164 LF of sediment deposition measuring 6-18 inches in depth. These
impacts were not approved by DWQ;
o Approximately 5,229 square feet of Tar-Pamlico riparian buffer was impacted adjacent to
Stream B in association with the unauthorized road crossing and installation of a sediment basin;
o A wetland adjacent to this stream channel (Stream B) was impacted as a result of sediment
deposition measuring 3-12 inches in depth.
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Southfork/Olde Brassfield Subdivision Phase 2
Granville County
o Approximately 2,783 square feet of sediment was observed outside the limits of disturbance
above the origin of Stream B. This does not include jurisdictional impacts.
A stormwater general permit is issued upon the approval of an Erosion and Sedimentation Control Plan.
This permit applies to projects that receive a Division of Land Resources (or local delegated program)
Erosion and Sedimentation Control Plan for land disturbance of 1 acre or greater. Specifically, the
stormwater general permit authorizes the discharge of stormwater under the National Pollutant Discharge
Elimination System in accordance with Title 15A North Carolina Administrative Code 2H.0100.
The site inspection and file review revealed that:
¦ The subject project has an approved Erosion and Sedimentation Control Plan and is covered by a
stormwater general permit (NCGO 10000);
¦ A copy of the approved Erosion and Sedimentation Control Plan was not observed on the subject
site; and
¦ A rain gauge was not observed on the subject site.
As a result of the site inspection and file review, the following violations, described below, are noted:
1. 401 Water Quality Certification Condition Violations
II. Other Waste (in-stream sediment)
III. Removal of Best Usage
IV. Tar-Pamlico River Basin Riparian Buffer Violation
V. Wetlands Standards
VI. Stormwater General Permit (NCG010000) Condition Violation
Item I. 401 Water Quality Certification Condition Violations
The 401 Water Quality Certification DWQ Project# 06-0061 approval letter specifies that the activities
must follow the conditions listed in the General Water Quality Certifications, as well as additional
conditions listed in the letter. Based on site observations and the file review, the following violations of
conditions (see attached 401 WQC) have occurred on the Southfork/Olde Brassfield Subdivision Phase 2:
Condition 1: Impacts Approved
The following impacts are hereby approved as long as all of the other specific general conditions of this
Certification are met. No other impacts are approved including incidental impacts.
Amount Approved (Units) Plan Location or Reference
404 Wetland 0.086 (acres) PCN a e 8 of 12
Stream 250 (linear feet) PCN a e 8 of 12
Zone 1 TPBR Buffer Impacts 9,387 (square feet) PCN page 11 of 12
Zone 2 TPBR Buffer Imp acts 3,750 (square feet) PCN a e 11 of 12
Condition 3:
No waste, spoil, solids, or fill of any kind shall occur in wetlands, waters, or riparian areas beyond the
footprint of the impacts depicted in the 404/401 Permit Application. All construction activities, including
the design, installation, operation, and maintenance of sediment and erosion control Best Management
Practices, shall be performed so that no violations of state water quality standards, statutes, or rules occur.
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Southfork/Olde Brassfield Subdivision Phase 2
Granville County
Condition 7: Culvert Installation
Culverts required for this project shall be installed in such a manner that the original stream profiles are
not altered. Existing stream dimensions (including the cross section dimensions, pattern, and longitudinal
profile) must be maintained above and below locations of each culvert. Culverts shall be designed and
installed to allow for aquatic life movement as well as to prevent head cutting of the streams. If any of
the existing pipes are or become perched, the appropriate stream grade shall be re-established or, if the
pipes are installed in a perched manner, the pipes shall be removed and re-installed correctly.
Culvert(s) shall not be installed in such a manner that will cause aggradation or erosion of the stream of
the stream up or down stream of the culvert(s). Existing stream dimensions (including the cross section
dimensions, pattern and longitudinal profile) shall be maintained above and below locations of each
culvert.
Placement of culverts and other structures in waters, streams, and wetlands must be placed below the
elevation of the streambed by one foot for all culverts with a diameter greater that 48 inches, and 20
percent of the culvert diameter for culverts having a diameter less than 48 inches, to allow low flow
passage of water and aquatic life. Design and placement of culverts and other structures including
temporary erosion control measures shall not be conducted in a manner that may result in disequilibrium
of wetlands or streambeds or banks, adjacent to or upstream and down stream of the above structures.
This applicant is required to provide evidence that the equilibrium shall be maintained if requested in
writing by DWQ.
Condition 8: Diffuse Flow
All constructed stormwater conveyance outlets shall be directed and maintained as diffuse flow at non-
erosive velocities through the protected stream buffers such that it will not re-concentrate before
discharging into a stream as identified within 15A NCAC 2B .0233 (5).
Item II. Other Waste (in-stream sediment)
The documented in-stream sediment deposition is a violation of 15A NCAC 02B .0211 (3)f which reads
as follows:
Oils; deleterious substances; colored or other wastes: only such amounts as shall not render the waters
injurious to public health, secondary recreation or to aquatic life and wildlife or adversely affect the
palatability of fish, aesthetic quality or impair the waters for any designated uses.
Item III. Removal of Best Usage
The placement of the culvert and sediment basin in Stream B is a violation of 15A NCAC 02B .0211 (2)
which reads as follows:
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.
Item IV. Tar-Pamlico River Basin Riparian Buffer Violation
The Buffer Rules apply to riparian buffers directly adjacent to surface waters in the Tar-Pamlico River
Basin (intermittent streams, perennial streams, lakes, ponds and estuaries). The protected buffer extends
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Southfork/Olde Brassfield Subdivision Phase 2
Granville County
50-feet landward from the landward edge of coastal marsh (as identified by the Division of Coastal
Management) or from the top of bank of any feature shown as surface waters on either a paper copy of the
soil survey maps prepared by the Natural Resource Conservation Service of the U.S. Department of
Agriculture or the most recent version of the 1:24000 scale quadrangle topographic maps prepared by the
U. S. Geological Survey. The protected riparian buffer has two zones: Zone 1 consists of a vegetated area
that is undisturbed except for uses provided for in Item (6) of this Rule (Title 15A NCAC 02B .0259);
Zone 2 shall consists of a stable, vegetated area that is undisturbed except for activities and uses provided
for in Item (6) of this Rule (Title 15A NCAC 02B .0259). The purpose of these rules is to protect and
preserve riparian buffers in the Tar-Pamlico River Basin to maintain the nutrient removal functions of
these streamside areas necessary to protect surface waters.
15A NCAC 02B .0259 (4)
Zones 1 and 2 of the riparian buffer remain in vegetation that is undisturbed except for those uses
provided for in Item (6) of this Rule.
Tar-Pam Buffer - Diffuse Flow
15A NCAC 0213.0259 (5)
Diffuse flow of runoff shall be maintained in the riparian buffer by dispersing concentrated flow and
reestablishing vegetation.
Item V. Wetlands Standards
The observed sediment deposition in wetlands is in violation of 15A NCAC 02B .0231 (b) which reads as
follows:
(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.
Item IV. Stormwater General Permit (NCGOIOOOO) Condition Violation
Part I, Section B. No. 1, which reads, "All erosion and sedimentation control facilities shall be inspected
by or under the direction of the permittee at least once every seven calendar days (at least twice every
seven days for those facilities discharging to waters of the State listed on the latest EPA approved 303(d)
list for construction related indictors of impairment such as turbidity or sedimentation) and within 24
hours after any storm event of greater than 0.5 inches of rain per 24 hour period. A rain gauge shall be
maintained on the site and a record of the rainfall amounts and dates shall be kept by the permittee."
Part I, Section A. No. 2, which reads, "The permittee shall implement the plan, which has been approved
by the approval authority. 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 site or (2)
when minor modifications have been made for the purpose of improving the performance of the erosion
and sedimentation control measures and notification of the minor modifications has been made to the
Division of Land Resources (or approved local program). Such a deviation from the approved plan shall
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Southfork/Olde Brassfield Subdivision Phase 2
Granville County
be noted on the approved plan maintained on the job site. During active construction, a copy of the
approved plan shall be maintained on the site."
Part I, Section B. No. 2, which reads, "Once land disturbance has begun on the site, stormwater runoff
discharges shall be inspected by observation for stormwater discharge characteristics as defined below at
the frequency in #1 above to evaluate the effectiveness of the pollution control facilities or practices. If
any visible sedimentation is leaving the disturbed limits of the site, corrective action shall be taken
immediately to control the discharge of sediments outside the disturbed limits."
Requested Response
You are directed to respond to this letter in writing to DWQ at the address provided below within 30
days of receipt. You are also encouraged to secure a consultant who specializes in stream and wetland
restoration to assist you with the development and submittal of the following:
1. Documentation depicting all jurisdictional features (e.g. streams, buffers, and wetlands). A
description and quantification of all the impacts to those jurisdictional features and your plans to
avoid further stream, buffer, and wetland impacts on the site.
2. Explain in your response how and when you anticipate being in full compliance with the 401
WQC.
3. Please provide a correct depiction of the level spreader locations including the Level Spreader
number. In addition, please include corresponding level spreader calculations.
4. Streambank stabilization around headwalls - Please explain how you plan to stabilize the stream
banks at Impact #I and Impact #2.
5. Stream and Wetland Restoration Plan (sediment impacts) - The sediment deposition in the
streams and wetland must be removed. As a part of this plan, you should provide the amount
(depth) of material that has been deposited in the streams and wetland. 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 wetland and the streams. The
sediment should be removed from the streams and the wetland, taken to high ground (outside the
buffer) and stabilized. Also, the plan must address the measures that will be used for temporary
stabilization/sediment control while this work is under way.
6. Stream Restoration Plan (culvert and sediment basin impacts) - Please explain how you plan to
restore the pattern, profile and dimension of the impacted stream channel to include the removal
of the culvert in Stream B, the sediment basin, and the riprap. The streambed must be restored to
the original 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.
7. Riparian Zone planting - Please submit a Restoration Plan to this office for review and approval.
This plan must be developed to ensure that at least two native tree species are planted at a density
sufficient to provide 320 trees/acre at maturity. This density is usually achieved by planting
approximately 436 trees/acre on a 10 ft. x 10 ft. grid or 681 trees/acre on a 8 ft. x 8 ft. grid.
Please see the Guidelines for Riparian Buffer Restoration (October 2004) for assistance in
developing your plan (available on the web at: http://www.nceep.net/news/reports/buffers.pdf).
This plan must include the types of native woody vegetation selected, methodology of planting,
and a site map indicating the location of the replanting efforts.
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Southfork/Olde Brassfield Subdivision Phase 2
Granville County
8. Explain in your response how and when you anticipate being in full compliance with the
stormwater general permit and your Erosion and Sedimentation Control Plan.
9. Please provide photographs of the rain gauge and a copy of the approved Sedimentation and
Erosion Control Plan maintained on the site and a written description of where on the site the rain
gauge is located.
10. Provide all rain gauge data collected to include the past four months of monitoring through to the
date of your written response to this letter. If you do not have data, explain why.
It. Provide inspection records to include the past four months of monitoring records through to the
date of your written response to this letter. If you do not have data, explain why.
12. Explain the steps taken to ensure future compliance with the Twenty-four Hour Reporting
requirement.
Include a detailed implementation schedule with dates explaining when the stream and wetland
restoration will be accomplished. This schedule should include a three-year monitoring plan to
ensure that the stream and wetland are restored. It is important that you adhere to this new plan
once approved by DWQ. If you make any modifications to the approved plan, DWQ must approve
them prior to implementation.
Finally, please explain how you propose to prevent these problems from reoccurring on future
projects.
Submit Requested Items To:
Lauren Witherspoon
DWQ Raleigh Regional Office
3800 Barrett Drive
Raleigh, NC 27609
Thank you for your attention to this matter. This office is considering forwarding a civil penalty
recommendation for assessment consideration and proceedings with injunctive relief procedures through
the Attorneys Generals Office. This office requires that the violations, as described above, be
properly resolved. 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 Lauren Witherspoon at [phone].
S' cer ly,
_.,--?; ?> ,? ? ?-?- rya • ?``?
Danny Smit
Regional Supervisor
Surface Water Protection Section
cc: DWQ RRO file copy
John Hennessy, NPS Assistance and Compliance Oversight Unit
Eric Alsmeyer, USACOE, 3331 Heritage Trade Drive, Ste 105, Wake Forest, NC 27587
Cyndi Karoly, 401 Oversight/Express Review Permitting Unit
Gabi Jones - DLR PRO