20080580 Ver 1_Notice of Violation_20100830

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North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins Dee Freeman
Governor Director Secretary
August 30, 2010
CERTIFIED MAIL #7008 1300 0000 11312890
RETURN RECEIPT REQUESTED
Buffaloe Forest, LLC
Attn: Pablo Reiter
6404 Falls of Neuse Road, Suite 103
Raleigh, NC 27615
Subject: NOTICE OF VIOLATION
NOTICE OF INTENT TO ENFORCE
NOV-2010-PC-0987
Construction Stormwater General Permit NCGO 10000
Stream Standards Violation
Neuse River Riparian Buffer Violations
35.84124 N, -78.50883W
Wake County
Dear Mr. Reiter:
On May 28, 2010; June 14, 21, and 28, 2010; July 30, 2010; and August 9, 20, and 25, 2010, Lauren
Witherspoon from the Raleigh Regional Office of the Division of Water Quality (DWQ) conducted site
inspections at Buckhorn Place, a tract of land located south of Buffaloe Road and between Old Milburnie
Road and Forrestville Road, in Wake County, North Carolina. The streams on the site are unnamed
tributaries to the Neuse River, Class C, Nutrient Sensitive Waters (NSW), in the Neuse River Basin.
Accordingly, the following observations were noted during the DWQ file review and site inspections.
On March 28, 2008, DWQ received a Pre-Construction Notification (PCN) Application seeking
authorization to impact jurisdictional wetlands, streams, and Neuse River Riparian Buffers. Soil and
Environmental Consultants, PA (S&EC) submitted the application on behalf of Buffaloe Land
Developers, LLC (Pablo Reiter). On April 15, 2008, DWQ sent a request for more information letter and
on July 16, 2008, S&EC supplied this additional information. On August 5, 2008, DWQ authorized
impacts to 0.0977 acres of 404/wetland (0.0947 acres permanent impact and 0.0030 acres temporary
impact), 110 linear feet of perennial stream channel, and 7,180 square feet of Zone 1 Neuse River basin
protected riparian buffers and 4,605 square feet of Zone 2 Neuse River basin protected riparian buffers as
described in the application received by DWQ on March 28, 2008 and additional information dated July
16, 2008 (DWQ Project# 08-0580 - Revised).
None hCarolina
Ntmnallrf
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
Buckhorn Place
Page 2
During the June 21 and 28, 2010 site visits, DWQ observed that over 200 linear feet of stream channel
and associtaed Neuse River riparian buffer had been impacted by the construction of a sediment basin
(Sediment Basin 1) without prior DWQ approval. These unauthorized impacts to the stream were
addressed in the DWQ letter dated July 22, 2010. An on-site meeting on July 30, 2010 with DWQ,
S&EC, and the US Army Corps of Engineers (Corps) was held to discuss this issue.
A stormwater general permit (NCG010000) is issued upon the approval of an Erosion and Sedimentation
Control Plan. This permit applies to projects that receive a Division of Land Resources (DLR) (or
designated local program) Erosion and Sedimentation Control Plan Approval Letter for land disturbance
of 1 acre or greater. Specifically, the general permit (NCGO10000) authorizes the discharge of
stormwater under the National Pollutant Discharge Elimination System in accordance with Title 15A
NCAC 2H.0100. Buckhorn Place has an approved Erosion and Sedimentation Control Plan (issued by
the City of Raleigh) and is therefore covered under the NCGO10000 permit.
During the site inspections a rain gauge and inspection records were observed on-site.
DWQ received copies of the June 3, 2010, August 20, 2010, and August 23, 2010 Not in Compliance
reports from the City of Raleigh regarding Erosion and Sedimentation Control issues on the site. The
reports required attention in and around the sediment basins on the site. Also required in the reports was
confirmation by an engineer that the basins are large enough to handle the amount of discharge from the
site.
On August 9, 2010, DWQ collected water samples at the outfall of Basin 2 and downstream from the site
at the culvert on Blackard Pond Road for turbidity. The results of this test showed turbidity at the outfall
of Basin 2 to be 1000 NTU and at the culvert on Blackard Pond Road to be 550 NTU. On August 20 and
25, 2010, DWQ visually observed the stream and wetland downstream of Basin 2 and the stream
downstream of Basin 1 (as far downstream of Forrestville Road). The site visit on August 20 and 25,
2010, visually confirmed that the streams coursing from Buckhorn Place continued to be markedly turbid.
As a result of the site inspection and file review, the following violations, described below, are noted:
Item I Construction Stormwater General Permit MG010000) Conditions
Part II, Section B. No. 12
Projects and their corresponding activities permitted under the previous version of the NC general permit
for construction activities are covered under this general permit. The requirements for these projects are
the same as those previously required in the general permit until the project is completed or terminated.
Part 1, Section A. No. 2
The permittee shall implement the plan, which has been approved by the approval authority.
Part I, Section C. No. 2
During construction and until the completion of construction or development and the establishment of a
permanent ground cover, the permittee shall provide the operation and maintenance necessary to operate
the stormwater control measures and all erosion and sedimentation control measures at optimum
efficiency.
Buckhorn Place
Page 3
Item II. Stream Standards Violation
Fresh Surface Water Quality Standards for Class C Waters: Turbidity 15A NCAC 02B.0211 (k)
The turbidity in the receiving water shall not exceed 50 Nephelometric Turbidity Units (NTU) in streams
not designated as trout waters. Compliance with this turbidity standard can be met when land
management activities employ Best Management Practices (BMPs) [as defined by Rule .0202 of this
section] recommended by the Designated Nonpoint Source Agency [as defined by Rule .0202 of this
Section]. BMPs must be in full compliance with all specifications governing the proper design,
installation, operation and maintenance of such BMPs.
Item III. Neuse River Riparian Buffer Violations
The Buffer Rules apply to riparian buffers directly adjacent to surface waters in the Neuse River Basin
(intermittent streams, perennial streams, lakes, ponds and estuaries). The protected buffer extends 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 .0233); 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 .0233). The purpose of these rules is to protect and preserve
riparian buffers in the Neuse River Basin to maintain the nutrient removal functions of these streamside
areas necessary to protect surface waters.
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. Construction Stormwater General Permit (NCGO 10000) Requirements -
a. Explain in your response when you anticipate being in full compliance with your Erosion
and Sedimentation Control Plan and City of Raleigh requirements.
2. Please explain how you intend to control the turbidity (on-site) to ensure that turbidity violations
are not occuring in surface waters on- and off-site.
3. This buffer violation should be addressed per the DWQ letter dated July 22, 2010 under seperate
correspondence. We expect that a permit modification request be submitted to DWQ within 30
days of the date of this letter or that a restoration plan is sumbitted within 60 days.
4. Please indicate in your response a detailed schedule with dates explaining when the site will be in
compliance.
Buckhom Place
Page 4
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 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 Lauren Witherspoon at [phone].
incerely,
i '
Danny Smith
Regional Supervisor
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
USACE Raleigh Regulatory Field Office
Ben Brown - City of Raleigh