20052178 Ver 1_Notice of Violation_20100823

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NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins Dee Freeman
Governor Director Secretary
August 23, 2010
CERTIFIED MAIL #7008 1300 0000 1131 2654
RETURN RECEIPT REQUESTED
M/1 Homes of Raleigh, LLC
Attn: Ed Kristensen
1511 Sunday Drive, Suite 100
Raleigh, NC 27607
CERTIFIED MAIL #7008 1300 0000 1131 2661
RETURN RECEIPT REOUESTED
Jeremy Medlin
M/I Homes of Raleigh, LLC
1511 Sunday Drive, Suite 11
Raleigh, NC 27607
CERTIFIED MAIL #7008 1300 0000 1131 2678
RETURN RECEIPT REOUESTED
CT Corporation System, Registered Agent
M/I Homes of Raleigh, LLC
150 Fayetteville Street, Box 1011
Raleigh, NC 27601
CERTIFIED MAIL #7008 1300 0000 1130 0941
RETURN RECEIPT REOUESTED
Eastman Development Companies, LLC
Attn: Stephen B. Eastman, Jr.
205 West Millbrook, Suite 100
Raleigh, NC 27609
Subject: NOTICE OF VIOLATION
NOV-2010-PC-0955
Wynbrooke Subdivision
401 Water Quality Certification Violation
Other Waste (In-stream Sediment)
Neuse River Basin Riparian Buffer Violation
Wake County
Dear Sirs:
On August 2, 2010, Natalie Landry from the Raleigh Regional Office (RRO) of the Division of Water
Quality (DWQ) conducted a site inspection for the project known as Wynbrooke Subdivision, located off
of Leesville Road in Wake County, North Carolina. The stream on the site is an unnamed tributary (UT)
to Lower Barton Creek, Class WS-IV, NSW waters in the Neuse River Basin.
Accordingly, the following observations were noted during the DWQ file review:
Mr. Sean Clark of Soil and Environmental Consultants, P.A. submitted a Pre-Construction Notification
(PCN) and supplemental information on or about December 9, 2005 on behalf of the property owner,
Eastman Development Company, LLC, with additional information received on December 21, 2005. The
impacts were requested under U.S. Army Corps of Engineers Nationwide Permits 12 and 39 and the
corresponding General Water Quality Certifications. DWQ issued an approval for the impacts on or
about January 2, 2006, DWQ Project# 05-2178.
The 401 Water Quality Certification DWQ Project# 05-2178 authorizes placement of fill within or
otherwise impact 0.017 acres of wetland, 490 linear feet of stream, and 26,549 square feet of protected
Zone 1 Neuse River basin riparian buffer and 12,853 square feet of protected Zone 2 Neuse River basin
riparian buffer for the purpose of constructing the proposed residential subdivision. NorthCarolina
Natimally
North Carolina Division of Water Quality Raleigh Regional Office
Internet: www.ncwaterquality.org 1628 Mail Service Center
Surface Water Protection Phone [phone] Customer Service
Raleigh, NC 27699-1628 FAX [phone]
An Equal Opportunity/Affirmative Action Employer - 50%a Recycled/10% Post Consumer Paper
Wynbrooke Subdivision
August 23, 2010
Page 2
DWQ received a copy of a Notice of Violation (NOV) issued by the City of Raleigh on August 3, 2010
for Wynbrooke Subdivision. The NOV states that, "The City of Raleigh, Stormwater Management
Division has performed a stormwater permit compliance reinspection of this project and found the
following violation(s) of the land disturbing permit, associated approved plans & specifications, and/or
the Raleigh City Code. Specific violations and associated penalties are indicated below. Penalty
assessments, if any, will be issued under separate cover. See Immediate Corrective Actions below for
required remedies and deadlines. Failure to protect public or private property (Section 10-5006(a)(4)b,
10-5009); Failure to maintain measures (Section 10-5007); and Failure to provide adequate ground
cover (Section 10-5006(a)(3).
DWQ observations during the August 2, 2010 site inspection include:
• Sediment deposition in a stream was measured for approximately 155 linear feet at depths ranging
from approximately two to six inches. This is the stream (UT to Lower Barton Creek) that flows
parallel to Edsel Drive
• Sediment deposition in the Neuse River Basin Protected Buffer was observed in areas covering
approximately 20,770 square feet, with depths ranging from approximately two to eight inches.
These areas are located behind homes on Baybriar Drive, Saxon Way and Edsel Drive.
As a result of the site inspection and file review, the following violations, described below, are noted:
Item I. 401 Water Quality Certification Condition Violations
The 401 Water Quality Certification DWQ Prcject# 05-2178 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, violations of additional
conditions 3 and 4 occurred on the Wynbrooke Subdivision.
Item 11. Other Waste (In-Stream Sediment)
15A NCAC 02B .0211 (3)f
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. Neuse River Basin Riparian Buffer Violation
15A NCAC 02B .0233 (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.
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. Documentation depicting all jurisdictional features (e.g. streams and buffers). A description
and quantification of all the impacts to those jurisdictional features and your plans to avoid
further impacts on the site.
2. Explain in your response how and when you anticipate being in full compliance with the
Erosion and Sedimentation Control Plan. The approved Erosion and Sedimentation Control
Plan must be followed.
Wynbrooke Subdivision
August 23, 2010
Page 3
Stream and Buffer Restoration Plan (sediment removal) - Sediment impacts to the buffer and
stream onsite and downstream of the site must be removed. As a part of this plan, you should
provide the amount (depth) of material that has been deposited in the buffer and streams.
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
stream channels and buffer. The sediment should be removed from the channels, taken to
high ground away from the stream channels, 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. Impacts identified by DWQ (as described above) and any
additional jurisdictional impacts documented by the Permittee must be addressed in this Plan.
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.
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 matters,
please contact Natalie Landry at [phone].
i
Sinc rely,
anny iater Regionaervisor
Surface Protection Section
Enclosed
cc: DWQ RRO file copy
John Hennessy, NPS Assistance and Compliance Oversight Unit
Ian McMillan, 401, Wetlands and Permitting Unit
Jeanette Powell, City of Raleigh, One Exchange Plaza, 10`h Floor, Raleigh, NC 27601
Nicole Thomson, S&EC, 11010 Raven Ridge Road, Raleigh, NC 27614
O?O? W AT ,4-,9pG
D `C
Michael F. Easley, Governor
William G. Ross Jr., Sccrctary
North Carolina Department of Environment and Natural Resources
Alan W. Klimek, P.E. Director
Division of Watcr Quality
to
January 2, 200-1 A.
DWQ Project # 05-2178
Wake County
Mr. Stephen Eastman, Jr.
Eastman Development Company, LLC
205 W. Millbrook
Raleigh, NC 27609
Subject Property: Wynbrooke Subdivision
Lower Barton Creek [030401, 27-16-(1)WSIV, NSW]
Approval of 401 Water Quality Certification and Authorization Certificate per the Neuse
River Buffer Protection Rules (15A NCAC 2B .0233) with Additional Conditions
Dear Mr. Eastman:
You have our approval, in accordance with the attached conditions and those listed below, to
place fill within or otherwise impact 0.017 acres of wetland, 490 linear feet of steam, and 26,549
square feet (ft) of protected Zone 1 Neuse River basin riparian buffer and 12,853 square feet
(ft) of protected Zone 2 Neuse River basin riparian buffer for the purpose of constructing the
proposed residential subdivision, as described within your application dated December 9, 2005,
and received by the N.C. Division of Water Quality (DWQ) on December 9, 2005, with
additional information received on December 21, 2005. After reviewing your application, we
have decided that the impacts are covered by General Water Quality Certification Number(s)
3374 and 3404 (GC3374 and GC3404). The Certification(s) allows you to use Nationwide
Permit(s) NW 12 and 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 CAMA 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 is sold, the new owner must be given a copy of this Certification and approval letter and
is thereby responsible for 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.
One
401 Oversight/Express Rcview Permitting Unit Np
r hCarolina
1650 Mail Scrvice Center, Raleigh, North Carolina 27699-1650 "Vatulai!f
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone: [phone]/ FAX [phone] / Internet: h"ro://h2o,cnr.st,-Itc.nc.us/ncwctiands
An Equal Opportunity/Affirmative Action Employer- 50% Recyclod/10% Post Consumer Paper
Eastman Development Company, LLC
Page 2 of 5
January 2, 2006
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:
Amount Approved
Units Plan Location or Reference
Wetland 0.017 acres PCN pages 4 & 5 of 9
Stream 490 linear feet PCN pages 4 & 5 of 9
Buffers - Zone 1 26,549 (square ft. PCN - pages 7 & 8 of 9
Buffers - Zone 1 12,853 (square ft. PCN - pages 7 & 8 of 9
2. 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 one month
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:
Impact Compensatory
NUti ation Required River and Sub-basin
Number
Stream 298 Neuse - 03020201
3. 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.
4. 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:
i
Eastman Development Company, LLC
Page 3 of 5
January 2, 2006
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.
5. 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;
6. 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 GC 3404;
7. Construction Stormwater Permit NCGO10000
Upon the approval of an Erosion and Sedimentation Control Plan issued by the Division
of Land Resources (DLR) or a DLR delegated local erosion and sedimentation control
program, an NPDES General stormwater permit (NCGO10000) administered by DWQ is
automatically issued to the project. This General Permit allows stormwater to be
discharged during land disturbing construction activities as stipulated by conditions in the
permit. If your project is covered by this permit [applicable to construction projects that
disturb one (1) or more acres], full compliance with permit conditions including the
sedimentation control plan, self-monitoring, record keeping and reporting requirements
are required. A copy of this permit and monitoring report forms may be found at
htt,v://h2o.enr.state.nc us/su/Forms Documents him.
8. 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
Eastman Development Company, LLC
Page 4 of 5
January 2, 2006
or become perched, the appropriate 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.
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 riprap or other bank hardening
methods. If riprap is necessary, it shall not be placed in the streambed, 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.
9. Diffuse Flow (No Review)
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). If this is not possible, it maybe necessary to provide stormwater facilities
that are considered to remove nitrogen. This may require additional approval from this
Office.
10. 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
Eastman Development Company, LLC
Page 5 of 5
January 2, 2006
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/ncwetlands. The text of the
sample deed notification may be modified as appropriate to suit to this project;
11. 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.
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.
Sincerely,
r4 r4-
Alan W. Klimek, P.E.
m
AW K/ijEnclosures: GC 3374 and GC 3402
DWQ/EEP Summary of Permitted Impacts and Mitigation Requirements
Certificate of Completion
cc: Sean Clark, Soil & Environmental Consultants, P.A., 11010 Raven Ridge Road, Raleigh, NC 26614