20041764 Ver 4_Notice of Violation_20100312

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NCQENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins Dee Freeman
Governor Director
Secretary
March 12, 2010
CERTIFIED MAIL #7009 0080 0000 9764 8075
RETURN RECEIPT REQUESTED
Wal-Mart Stores East, LP
Attn: Mr. Fred Lutz
Sam Walton Development Complex
2001 SE 10th Street
Bentonville, AR 72716-4050
CERTIFIED MAIL #7009 0080 0000 9764 8082
RETURN RECEIPT REOUESTED
Shiloh Morrisville LLC
c/o USAA Real Estate Company
Attn: Mr. Phillip R. Moltz
9830 Colonnade Blvd Suite 600
San Antonio, TX 78230
Subject: NOTICE OF VIOLATION
NOV-2010-WQ-0012
DWQ #04-1764
Shiloh Crossing Shopping Center
401 Water Quality Certification Violations
35.8656° N 78.8445°W
Wake County and Durham County
Dear Messrs. Lutz and Moltz:
On February 26 and March 1, 2010, Natalie Landry from the Raleigh Regional Office of the
Division of Water Quality (DWQ) conducted a site inspection for the tract/project known as the
Shiloh Crossing Shopping Center, on NC54 in Morrisville, in both Wake and Durham Counties
North Carolina. The stream on the site is an unnamed tributary to Stirrup Iron Creek, Class C,
Nutrient Sensitive Waters (NSW), in the Neuse River Basin.
Accordingly, the following observations were noted during the DWQ file review and site inspection.
Mr. Todd St. John of Kimley-Horn and Associates, Inc. submitted a Pre-Construction Notification (PCN)
on or about May 14, 2007 on behalf of the owner/applicant, MBV Investors, LLC. The impacts were
requested under U.S. Army Corps of Engineers Nationwide Permit 29 and the corresponding General
Water Quality Certification. DWQ issued an approval for the impacts on July 6, 2007, DWQ Project# 04-
1764, Ver. 2. Mr. Craig M. Duerr of Kimley-Horn and Associates, Inc. submitted a Pre-Construction
Notification (PCN) on or about November 21, 2007 on behalf of the owner/applicant, MBV Investors,
LLC requesting a modification of the existing 401 Water Quality Certification (DWQ Project #04-1764,
Ver. 2). The impacts were requested under U.S. Army Corps of Engineers Nationwide Permit 39 and the
corresponding General Water Quality Certification. DWQ issued an approval for the impacts on
December 17, 2007, DWQ Project# 04-1764, Ver. 3. The approved impacts at the Shiloh Crossing
Shopping Center site include the placement of fill within or otherwise impact 0.479 acres of 404/wetland
and 274 linear feet of perennial stream, 18,533 square feet of Zone 1 protected Neuse River basin riparian
buffers, and 19,912 square feet of Zone 2 protected Neuse River basin riparian buffer to construct a
commercial development.
North Carolina Division of Water Quality Raleigh Regional Office Surface Water Protection Phone [phone]
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
No ehCarolina
Naturally
Customer
877-623-6748
Shiloh Crossing Shopping Center
March 12, 2010
Page 8
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 matters,
contact Natalie Landry at [phone].
Sin)y,
+
1
nny S
Da
Region Supervisor
Surface Water Protection Section
Attachment
cc: Raleigh RO - Water Quality
John Hennessy, NPS Assistance and Compliance Oversight Unit
Ian McMillan, 401 Wetlands Permitting Unit, 1650 MSC, Raleigh, NC 27604
USACE Raleigh Regulatory Field Office
Jennifer Mitchell, Wake County Water Quality Div., 336 Fayetteville Street, Raleigh, NC 27602
Chris Roberts, Durham County, 120 E. Parrish St., I" Floor, Durham, NC 27701
Keith Billy, Town of Morrisville, 260 Town Hall Dr., Suite B, Morrisville, NC 27560
Austin Watts, Kimley-Horn, PO Box 33068, Raleigh, NC 27636-3068
Todd St. John, Kimley-Horn, PO Box 33068, Raleigh, NC 27636-3068
Kevin Martin, S&EC, 11010 Raven Ridge Road, Raleigh, NC 27614
Bradley Bowling, Priest, Craven & Assoc., 3803B Computer Dr., Raleigh, NC 27609
Registered Agent, CT Corporation System, Box 1011, Raleigh, NC 27601
O?OF W A TF9oG
O •?
)q fanh mere f A
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
December 17, 2007
DWQ Project # 04-1764, Ver. 3
Wake/Durham County
Mr. Karl Blackley
MBV Investors, LLC
100 Weston Estates Parkway
Cary, NC 27513
Subject Property: Shiloh Crossing
UT to Stirrup Iron Creek [030402, 27-33-4-2, C, NSW]
Approval of 401 Water Quality Certification and Authorization Certificate per the Neuse River
Buffer Protection Rules (15A NCAC 2B.0233) with Additional Conditions - MODIFICATION
Dear Mr. Blacker
You have our approval, in accordance with the attached conditions and those listed below, to place fill
within or otherwise impact 0.479 acres of 404/wetland and 274 linear feet of perennial stream, 18,533
square feet of Zone I protected Neuse River basin riparian buffers, and 19,912 square feet of Zone 2
protected Neuse River basin riparian buffers to construct the proposed commercial development; as
described in your revised application dated November 19, 2007, and received by the Division of Water
Quality (DWQ) on November 21, 2007. After reviewing your application, we have decided that the
impacts are covered by General Water Quality Certification Number(s) 3705 (GC3705). The
Certification(s) allows you to use Nationwide Permit(s) NW39 when issued by the US Army Corps of
Engineers (USACE). This letter shall also act as your approved Authorization Certificate for impacts to
the protected riparian buffers per 15A NCAC 2B .0233. In addition, you should obtain or otherwise
comply with any other required federal, state or local permits before you go ahead with your project
including (but not limited to) Erosion and Sediment Control, and Non-discharge regulations. Also, this
approval to proceed with your proposed impacts or to conduct impacts to waters as depicted in
your application shall expire upon expiration of the 404 or LAMA Permit.
This approval is for the purpose and design that you described in your application. If you change your
project, you must notify us and you may be required to send us a new application. If the property
the new owner must be given a copy of this Certification and approval letter and is thereby r sponsiblelfor
complying with all conditions. If total fills for this project (now or in the future) exceed one acre of
wetland or 150 linear feet of stream, compensatory mitigation may be required as described in 15A
NCAC 2H.0506 (h). This approval requires you to follow the conditions listed in the attached
certification and any additional conditions listed below.
The Additional Conditions of the Certification are:
1. Impacts Approved
The following impacts are hereby approved as long as all of the other specific and general
conditions of this Certification (or Isolated Wetland Permit) are met. No other impacts are
approved including incidental impacts:
401 Ovcrsight/Express Review Permitting unit N??10 Caro 'Ana
1650 Mail Service Center, Raleigh, North Caroline 27699-1650 ?YU?kM?
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone: [phone] /FAX [phone] / Internet: 1101/h2o enr ? ncwetlandc
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Papa
MBV Investors, LLC I '
Page 2 of 6
December 17, 2007
T o[ Im act Units
o
v Plan Location or Reference
404/Wetland t
V PCN a e 10 of 17
Stream - erennial (linear feet
274 PCN page 10 of 17
Buffer - Zone 1 uare
f
t
18 53 PCN page 14 of 17
Buffer - Zone 2 19,912 s uare ft. PCN a e 14 of 17
2. 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.
3. Erosion and sediment control practices must be in full compliance with all specifications governing
the proper design, installation and operation and maintenance of such Best Management Practices in
order to protect surface waters standards:
a. The erosion and sediment control measures for the project must be designed, installed,
operated, and maintained in accordance with the most recent version of the North Carolina
Sediment and Erosion Control Planning and Design Manual.
b. The design, installation, operation, and maintenance of the sediment and erosion control
measures must be such that they equal, or exceed, the requirements specified in the most
recent version of the North Carolina Sediment and Erosion Control Manual. The devices
shall be maintained on all construction sites, borrow sites, and waste pile (spoil) projects,
including contractor-owned or leased borrow pits associated with the project.
C. Sufficient materials required for stabilization and/or repair of erosion control measures and
stormwater routing and treatment shall be on site at all times.
4. Sediment and Erosion Control Measures
Sediment and erosion control measures shall not be placed in wetlands or waters to the maximum
extent practicable. If placement of sediment and erosion control devices in wetlands and waters is
unavoidable, they shall be removed and the natural grade restored within six months of the date that
the Division of Land Resources has released the project;
5. Culvert Installation
All work in or adjacent to stream waters shall be conducted in a dry work area. Approved BMP
measures from the most current version of NCDOT Construction and Maintenance Activities manual
(httn //www ncdot or?ldolu'?pe ationsBMP manuaUdownload/BMP Manudpffi
such as sandbags, rock berms, cofferdams and other diversion structures shall be used to prevent
excavation in flowing water.
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
MBV Investors, LLC
Page 3 of 6
December 17, 2007
stream grade shall be re-established or, if the pipes 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 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 Therefore, you must provide plans with adequate details that indicate that the current
stability of the stream will be maintained or enhanced. You must receive written approval from this
Office for the above plans before the culvert(s) is installed. Culvert(s) must be installed according
to approved plans.
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 than 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 dis-equilibrium of wetlands or streambeds or banks, adjacent to or upstream and down stream
of the above structures. The applicant is required to provide evidence that the equilibrium shall be
maintained if requested in writing by DWQ.
The establishment of native, woody vegetation and other soft stream bank stabilization techniques
must be used where practicable instead of rip rap or other bank hardening methods. If rip-rap is
necessary, it shall not be placed in the stream bed, unless specifically approved by the Division of
Water Quality.
Installation of culverts in wetlands must ensure continuity of water movement and be designed to
adequately accommodate high water or flood conditions.
Upon completion of the project, the Applicant shall complete and return the enclosed "Certificate
of Completion" form to notify NCDWQ when all work included in the §401 Certification has
been completed. The responsible party shall complete the attached form and return it to the
401 /Wetlands Unit of the NC Division of Water Quality upon completion of the project. Please
send photographs upstream and downstream of each culvert site to document correct installation
along with the Certificate of Completion form.
6. Deed Notifications
Deed notifications or similar mechanisms shall be placed on all retained jurisdictional wetlands,
waters and protective buffers in order to assure compliance for future wetland, water and buffer
impact. These mechanisms shall be put in place prior to impacting any wetlands, waters and/or
buffers approved for impact under this Certification Approval and Authorization Certificate. A
sample deed notification can be downloaded from the 401/Wetlands Unit web site at
http://h2o.enr.state.nc.us/newetlands. The text of the sample deed notification may be modified
as appropriate to suit to this project.
7. Written Stormwater Management Plan (Final Plan Needed) Required For Each Phase
A final, written stormwater management plan (including a signed and notarized Operation and
Maintenance Agreement) for each phase of the endre project shall be submitted to the 401
Oversight and Express Permitting Unit (2321 Crabtree Blvd., Suite 250, Raleigh, NC, 27604) and
the stormwater management plans shall be approved in writing by this Office before the impacts,
MBV Investors, LLC
Page 4 of 6
December 17, 2007
occupied infrastructure occupancy of buildings for that particular phase may occur. You have
the option of using the Express Review Program for expedited approval of these plans. If you
propose to use the Express Review Program, remember to include the appropriate fee with the
plan. Site-specific stormwater management shall be designed to remove 85% TSS according to
the latest version of DWQ's Stormwater Best Management Practices manual at a minimum.
Additionally, in watersheds within one mile and draining to 303(d) listed waters, as well as
watersheds that are classified as nutrient sensitive waters (NSW), water supply waters (WS), trout
waters (Tr), high quality waters (HQW), and outstanding resource waters (ORW), the Division
shall require that extended detention wetlands, bio-retention areas, and ponds followed by
forested filter strips (designed according to latest version of the NCDENR Stormwater Best
Management Practices Manual) be constructed as part of the stormwater management plan when
a site-specific stormwater management plan is required.
The structural stormwater practices as approved by the Wetlands Unit as well as drainage
patterns must be maintained in perpetuity. No changes to the structural stormwater practices
shall be made without written authorization from the Division of Water Quality.
The following language is hereby incorporated into this Condition per the request contained in
your correspondence to DWQ, dated May 15, 2007, and received by the DWQ on May 16, 2007:
Phase 1:
The final stormwater management facilities for Phase 1(that includes Lot 1, Wal-Mart. Sam's
Club and Shiloh Green Glen) shall be constructed according to the approved stormwater
In Yement plans received on go 15, 2007 The stormwater drainage infrastrucrure and
treatment facilities shall be constructed and operational prior to occupavint any the a ov
buildings.
Ph e
Final grading and impacts to Wetlands #3C #4 #6A and #6B will be basest on the preliminarv
stormwater management plans received Mat IS 2007 None of the buildings a in tr to
associated with Phase 2 (that includes Lots 2 through 10 and Lower Shiloh Way) will be
occupied until the stormmwater drainage infrastructure and treatment ficilitie
and operational according to the approved stormwater management plans.
Phase 3:
Final grading based on the preliminary stormwater management plans_ received Map 15, 2007.
None of the buildings and infrastructure associated with Phase 3 (that includes Lot 12) will be
occupied until the stormmwater drainage infrastructure and treatment facilities are constructed
ayd operational according to the approved stormwater management plans.
8. Protective Fencing
The outside buffer, wetland or water boundary and along the construction corridor within these
boundaries approved under this authorization shall be clearly marked with orange warning fencing
(or similar high visibility material) for the areas that have been approved to infringe within the
buffer, wetland or water prior to any land disturbing activities to ensure compliance with 15A
NCAC 2B.0233 and GC3627;
MBV Investors, LLC
Page 5 of 6
December 17, 2007
Miti act tion:
9. Compensatory Mitigation Using the Ecosystem Enhancement Program (EEP)
Mitigation must be provided for the proposed impacts as specified in the table below. We
understand that you wish to make a payment to the Wetlands Restoration Fund administered by
the NC Ecosystem Enhancement Program (EEP) to meet this mitigation requirement. This has
been determined by the DWQ to be a suitable method to meet the mitigation requirement. Until
the EEP receives and clears your check (made payable to: DENR - Ecosystem Enhancement
Program Office), no impacts specified in this Authorization Certificate shall occur. The EEP
should be contacted at [phone] if you have any questions concerning payment into a
restoration fund. You have 60 calendar days from the date of this approval to make this
payment. For accounting purposes, this Authorization Certificate authorizes payment into
the Wetlands Restoration Fund to meet the following compensatory mitigation
requirement:
Type of Impact Compensatory Mitigation Required River and Sub-basin Number
Stream _ perennial 274 (feet) I Neuse/03020201
Buffer Zone 1 32,649 (square feet) I Neuse/03020201
Buffer Zone 2 12,926 (square feet) I Neuse/03020201
10. Certificate of Completion
Upon completion of all work approved within the 401 Water Quality Certification or applicable
Buffer Rules, and any subsequent modifications, the applicant is required to return the attached
certificate of completion to the 401 Oversight/Express Review Permitting Unit, North Carolina
Division of Water Quality, 1650 Mail Service Center, Raleigh, NC, 27699-1650.
Violations of any condition herein set forth may result in revocation of this Certification and may result in
criminal and/or civil penalties. The authorization to proceed with your proposed impacts or to conduct
impacts to waters as depicted in your application and as authorized by this Certification, shall expire upon
expiration of the 404 or CAMA Permit.
If you do not accept any of the conditions of this Certification (associated with the approved wetland or
stream impacts), you may ask for an adjudicatory hearing. You must act within 60 days of the date that
you receive this letter. To ask for a hearing, send a written petition, which conforms to Chapter 150B of
the North Carolina General Statutes to the Office of Administrative Hearings, 6714 Mail Service Center,
Raleigh, N.C. 27699-6714. This certification and its conditions are final and binding unless you ask for a
hearing.
Any disputes over determinations regarding this Authorization Certificate (associated with the approved
buffer impacts) shall be referred in writing to the Director for a decision. The Director's decision is
subject to review as provided in Articles 3 and 4 of G.S. 150B.
MBV Investors, LLC
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December 17, 2007
This letter completes the review of the Division of Water Quality under Section 401 of the Clean Water
Act and the Neuse riparian buffer protection rule as described within 15A NCAC 2B .0233. If you have
any questions, please telephone Cyndi Karoly or Ian McMillan at 919-733-1786.
CHS/ijm
Enclosures: GC3705
Certificate of Completion
T Sin ly,
oleen H. Sullins
cc: USACE Raleigh Regulatory Field Office
Lauren Witherspoon, DWQ Raleigh Regional Office
DLR Raleigh Regional Office
File Copy
Central Files
Craig M. Duerr, Kimley-Horn and Associates, Inc., P.O. Box 33068, Raleigh, NC 27636-3068
Filename: 041764Ver3ShilobCrossing(Wake Durham)401 NBR