20050172 Ver 4_Notice of Violation_20090505

NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins Dee Freeman
Governor Director Secretary
May 5, 2009
CERTIFIED MAIL #70081300 0000 1133 4618
RETURN RECEIPT REQUESTED
Land Ventures I, LLC
Attn: Mark O'Neal
PO Box 52118
Durham, NC 27717
Subject: NOTICE OF VIOLATION
NOV-2009-PC-0422
DWQ #05-0172
DWQ #05-0172 Ver. 4
Tree Farm Subdivision Phases II and III
401 Water Quality Certification Violations
Other Waste (In-stream Sediment)
36.0304°N 79.1603°W
Orange County
Dear Mr. O'Neal:
On March 6, 2009, Natalie Landry from the Raleigh Regional Office of the Division of Water Quality (DWQ)
conducted a site inspection for the tracts/projects known as Tree Farm Subdivision Phases H and III, on Tree
Farm Road, Orange County, North Carolina. The streams on the sites are an unnamed tributary to Cane Creek,
Class WS-II, HQW, Nutrient Sensitive Waters (NSW), in the Cape Fear River Basin and an unnamed tributary to
Crabtree Creek, Class WS-II, HQW, NSW, in the Neuse River Basin.
Accordingly, the following observations were noted during the DWQ file review and inspection.
Mr. Kevin Martin of Soil and Environmental Consultants, PA submitted a Pre-Construction Notification (PCN)
on or about March 10, 2005 on behalf of the property owner, Land Ventures I, LLC for Tree Farm Subdivision
Phase H. The impacts were requested under U.S. Army Corps of Engineers Nationwide Permit 14 and the
corresponding General Water Quality Certifications. DWQ issued an approval for the impacts on or about May 5,
2005, DWQ Project# 05-0172. The approved impacts include placement of fill or otherwise impact 237 linear
feet of perennial streams, including all stream stabilization measures, for the purpose of constructing road
crossings at the subject property.
DWQ observations during the site inspection revealed the following unauthorized impacts. At Impact #1, there is
a rock check dam in the stream for approximately 5 linear feet on the upstream side of the culvert. At Impact #2,
there is a rock check dam in the stream for approximately 12 linear on the upstream side of the crossing. At
Impact #3, there is a rock check dam for approximately 3 linear feet and approximately 20 linear feet of riprap
stone in the stream on the upstream side of the culvert.
Ms. Nicole Thomson of Soil and Environmental Consultants, PA submitted a Pre-Construction Notification
(PCN) on or about January 28, 2008 on behalf of the property owner, Land Ventures I, LLC for Tree Farm
Subdivision Phase III-Resubmittal. The impacts were requested under U.S. Army Corps of Engineers Nationwide
NorthCarolina
Naturally
North Carolina Division of Water Quality Raleigh Regional Office Surface Water Protection Phone [phone] Customer Service
Internet: www.ncwaterquality.org 1628 Mail Service Center Raleigh, NC 27699-1628 FAX [phone]
An Equal Opportunity/Affirmative Action Employer- 50% Recycled/10% Post Consumer Paper
Tree Farm Subdivision Phases II and III
May 5, 2009
Page 2
Permit 29 and the corresponding General Water Quality Certifications. DWQ issued an approval for the impacts
on or about February 13, 2008, DWQ Project# 05-0172, Ver. 4. The approved impacts include to place fill or
otherwise impact 145 linear feet of stream (122 linear feet intermittent stream impact and 23 linear feet perennial
stream impact), and 6,875 square feet of Zone 1 Neuse River basin protected riparian buffers, and 3,995 square
feet of Zone 2 Neuse River basin protected riparian buffers to construct the residential development at the site.
DWQ observations during the site inspection revealed the following unauthorized impacts. At Impact #l, there is
a rock check dam in the stream for approximately 8 linear feet and the dam creates an elevation change of at least
3 feet in the streambed. There is a dissipater pad in the stream for approximately 17 linear feet and a small check
dam of approximately 2 linear feet on the downstream side of the culvert. Observed buffer impacts include
approximately 30 square feet of riprap stone in Zone 1 (right bank) and approximately 60 square feet of riprap
stone in Zone 1 (left bank) on the downstream side of the crossing.
As a result of the site inspection and file review, the following violations, described below, are noted:
Item I. 401 WOC Condition Violations
The approval of the 401 Water Quality Certifications and Neuse Buffer Authorization with Additional Conditions
letters specify that the activities must follow the conditions listed in the General Water Quality Certifications, as
well as additional conditions listed in the letters.
General Water Quality Certification 05-0172, Additional Condition 1 states the following:
"Impacts Approved.
The following impacts are hereby approved as long as all of the other specific and general conditions of the
Certification (
or Isolated Wetland Permit) are met. No other impacts area roved including incidental im
Amount Approved (Units) Plan Location or Reference
Stream 237 (feet) PCN form
acts:"
General Water Quality Certification 05-0172, Additional Condition 3 states the following:
"No Waste, Spoil, Solids, or Fill of Any Kind.
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 Pre-Construction Notification. 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."
General Water Quality Certification 05-0172, Ver. 4, Additional Condition 1 states the following:
"Impacts Approved.
The following impacts are hereby approved as long as all of the other specific and general conditions of the
Certification (or Isolated Wetland Permit) are met. No other impacts area roved including incidental im acts:"
Type of Impact Amount Approved (Units) Plan Location or Reference
Stream 145 (feet) A plication
Buffer - Zone 1 6,875 (square ft.) A plication
Buffer - Zone 2 3,995 (square ft.) Applica ion
General Water Quality Certification 05-0172, Ver. 4, Additional Condition 2 states the following:
"No Waste, Spoil, Solids, or Fill of Any Kind.
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 Pre-Construction Notification. 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."
Item II. Other Waste (In-stream Sediment)
15A NCAC 02B .0211 (3)f
Tree Farm Subdivision Phases II and III
May 5, 2009
Page 3
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;
Requested Response
You are directed to respond to this letter in writing to DWQ at the address provided below within 30 days of
receipt.
1. Please explain why these impacts occurred without prior authorization.
Please provide documentation (including a detailed site map/survey) depicting all jurisdictional water features
(e.g. streams and buffers) on the sites. This documentation should describe and quantify the impacts to those
jurisdictional features, and should include plans to avoid further stream, buffer and wetland impacts on the
sites.
3. Stream Restoration Plan - Please explain how you plan to restore the pattern, profile and dimension of the
impacted stream channels to include the removal of 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.
Restoration and replanting of the riparian buffer zone is required.
4. Permit Application - If you wish for any impacts to remain in place, you must contact the U.S. Army Corps
of Engineers (USACOE) for information on the type(s) of permit required. Depending on the type of permits
USACOE requires, application for a 401 Water Quality Certification to DWQ will also be required.
5. 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.
Submit Requested Items To:
Natalie Landry
DWQ Raleigh Regional Office
3800 Barrett Drive
Raleigh, NC 27609
Thank you for your attention to this matter. 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 matt rs, please contact
Natalie Landry at [phone].
Oannny ly,
cle
Smith
Regional Su rvisor
Surface Water Protection Section
cc: Raleigh RO - Water Quality
John Hennessy, NPS Assistance and Compliance Oversight Unit
Ian McMillan, 401 Wetlands Permitting Unit, 1650 MSC, Raleigh, NC 27604
Ren Ives, Orange County Erosion Control Division, POB 8181, Hillsborough, NC 27278
Nicole Thomas, S&EC, 11010 Raven Ridge Rd., Raleigh, NC 27614