20161217 Ver 1_NOV-2017-WP-0002_20170222

r; n
Water Resources
Environmental Quality
February 22, 2017
ROY COOPER
Governor
MICHAEL S. REGAN
Secretary
S. JAY ZIMMERMAN
Director
CERTIFIED MAIL #70161370 002 2184 6183 CERTIFIED MAIL #70161370 002 2184 6187
RETURN RECEIPT REQUESTED RETURN RECEIPT REQUESTED
Duke Energy Renewables NC Solar, LLC
SunEnergyl, LLC
Attn: Mr. Tom McNay, Vice -President
Attn: Mr. Kenny Habul, President
550 South Tyron Street
192 Raceway Drive
Charlotte, NC 28202
Mooresville, NC 28117
Subject: NOTICE OF VIOLATION and RECOMMENDATION FOR ENFORCEMENT
NOV-2017-W P-0002
Windsor Solar Site
DWR Project k 2016-1217 (withdrawn)
Bertie County
Dear Messrs. McNay and Habul:
On February 16, 2017, Anthony Scarbraugh, Robert Tankard and Chris Pullinger of Division of Water
Resources (DWR) Washington Regional Office and Shelton Sullivan of DWR Central Office conducted a site
inspection of the constructed Windsor Solar Site, located off of Cooper Hill Road in Bertie County, NC.
Inspections were also conducted by Richard Peed, Gary Novak and Jay Edwards of NC Division of Energy,
Mineral and Land Resources (DEMLR) and Kyle Barnes and Krysta Stygar of the US Army Corps of Engineers
(USACE). In attendance during the site visit were representatives from SunEnergyl, Duke Energy, Carolina
Ecosystems Inc., and Keller Environmental.
During the visit, the group observed the two areas of installed solar panels including the access road. On
the southern field of installed panels, the USACE confirmed that jurisdictional wetlands have been
impacted from grading, earthen fill and the installation of solar panels and associated infrastructure. A
review of DEMLR's Erosion & Sedimentation Control Plan files shows a wetland area in the southern field
of installed panels to be avoided, without panels installed. On December 9, 2016, DWR received an after -
the -fact 401 Water Quality Certification (WQC) application for wetland impacts, however, the application
did not propose the extent of impacts as observed on 2-16-17. On February 17. 2017, the 401 WQC
application was withdrawn at the request of SunEnergyl.
The site visit and file review have revealed over Y2 acre of wetland impacts from grading, earthen fill, the
installation of solar panels, associated infrastructure, and road improvements. These impacts have
occurred without the issuance of a 401 Water Quality Certification.
As a result of the site inspections and file review, the following violations, detailed below, are noted:
(1) Failure to Secure a 401 WaQualit Certification
Notting Compares"-.,.
State of North Carolina I Environmental Quality I Water Resources -Water Quality Regional Operations Section -Washington Regional Office
943 Washington Square Mall, Washington, North Carolina 27889
252-946-6481

(2) Wetland Standard Violation
1) Failure to Secure 401 Water Quality Certification (Title 15A NCAC 02H .0500)
The impacts to the wetlands require permits from both the Army Corps of Engineers and the Division of
Water Resources. DWR site visits and file review confirmed that impacts occurred without a 404 Permit
from the U.S. Army Corps of Engineers. A file review indicates that the U.S. Army Corps of Engineers (COE)
has not authorized use of a 404 Permit for this activity nor has notification been provided to the COE for
this activity. The file review confirmed that the Division of Water Resources has not issued 401 Water
Quality Certification for the subject site. A 401 Water Quality Certification is required prior to the above -
mentioned impacts pursuant to 15A NCAC 02H .0500.
2) Wetland Standard Violation (15A NCAC 02B .0231)
The wetland impacts from clearing, grading, earthen fill, the installation of solar panels, associated
infrastructure, and road improvements 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 15 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:
1. Within 15 calendar days of receipt of this Notice, please provide a plan of action with specific time
frames and dates to accomplish the below items.
2. Please explain when construction (clearing, grading, earthen fill, the installation of solar panels,
associated infrastructure, and road improvements) began at the site and how these impacts
occurred.
3. Please clearly explain why appropriate 401 Water Quality Certification and a 404 Permit were not
secured.
4. Please provide documentation (including a detailed site map/survey) depicting all jurisdictional water
features (e.g. streams, wetlands and/or waters) on the site. This documentation should describe and
quantify the impacts to those jurisdictional features, and should include plans to avoid further
unauthorized impacts on the site.
5. Please submit a Restoration Plan to this Office for review and approval. You are encouraged to secure
a consultant to assist you with your plan development and with obtaining any permit, certification,
and/ or authorization necessary to achieve compliance. This plan should include the following:
a.) 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 DWR will also be required.
b.) Wetland Restoration Plan (Wetland impacts) - The restoration plan must detail how the
unauthorized impacts to 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.
Satisfactory wetland restoration requires the replanting of at least 2 native hardwood wetland
species and the maintenance of a stem density/survivorship of at least 320 trees per acre at
the end of years. This plan will also require an herbaceous wetland seed mix for all wetlands
that are disturbed.
c.) Please indicate in your response a schedule with dates detailing when the restoration will be
accomplished. This schedule should include a three-year monitoring plan to ensure that the
wetlands and stream are restored. It is the expectation of this Office that the restoration
will be completed by December 1, 2017.
6. 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. ****
Thank you for your attention to this matter. DWR requires that the violations, as detailed above, be
abated immediately and -properly resolved. This Office is considering a recommendation for civil penalty
assessment to the Director of the Division of Water Resources and/or an injunction request to the
Attorney General's Office regarding the ongoing violations on your site.
Pursuant to G.S.143-215.6A, the above mentioned violations and any future violations are subject to a
civil penalty assessment of up to a maximum of $25,000.00 per day for each violation. Pursuant to G.S.
143-215.6C, DWR can request injunctive relief through the courts to obtain compliance on the site. Your
above -mentioned response to this correspondence will be considered in any further process that may
occur.
This Office appreciates your attention to this matter and efforts to resolve the above noted concerns.
Should you have any questions regarding these matters, please contact Anthony Scarbraugh at (252) 948-
3924 or myself at [phone].
Sincerely,
?k4-
Robert TankaT�Astantegional Supervisor
Water Quality Regional Operations Section
Division of Water Resources, NCDENR

cc: Shelton Sul lNan —401 & Buffer Permitting Branch
WaRO Files
Kyle Barnes— US ACOE- Washington Office (via e-mail)
Samir Dumpor— DELMR WaRO (via e-mail)
Jay Keller— Keller Environmental, LLC (via e-mail: [e-mail])
Chris Hooper, Carolina Ecosystems, Inc. (via e-mail: [e-mail])
Scott Saver, County Manager, Bertie County —Town of Windsor,
PO Box 530, Windsor, NC 27983

7016 1370 0002 2184 6176
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