20061798 Ver 6_Notice of Violation_20110218

LAW OFFICES OF
F. BRYAN BRICE, JR.
ATTORNEYS AT LAW
5 W. HARGETT ST.
SUITE 200
RALEIGH, NC 27601
February 16, 2011
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Telephone: [phone]
Facsimile: 919-573-4252
brvan;attvbrvanbrice com
cath? l?attvbrvanbrice.com
Danny Smith Via Email
Surface Water Protection Section and US Mail CMRR 7005 0390 0001 2527 0450
North Carolina Division of Water Quality
1628 Mail Service Center -----
Raleigh, NC 27699 "?[
Re: Notice of Continuing Violation and Recommendation for Enforcement F E B 2182 011
NOV-2011-PC-0051
Dear Mr. Smith:
We are submitting on behalf of Summerwind Plantation, LLC a response to your letter of January 24,
2011. Due to financial circumstances, Summerwind is not currently able to contract for the services
of a consultant specializing in stream permitting and restoration. However, Summerwind has
consulted extensively with county, state and federal officials involved with stream permitting and
restoration, and with Wetherill Engineering and with other engineers with soil and water experience
in preparing this response and restoration plans. Each of the areas of requested response is detailed
below:
Request #1: Documentation depicting all iurisdictional features
Response: Exhibit #1 provides a site plan of Summerwind Plantation Site Plan, including impact
areas identified in February of 2008 and detailed description of historic impacts and planned
restoration.
Based upon physical inspection of the stream bed on the Summerwind site, sedimentation from
upstream impacts is not evident. Sedimentation identification and quantification of any current
impacts of those events is not possible due to the underlying soil substrate matching the existing bank
and the impact (especially in Area # 6 and downstream) of significant on-going natural erosion from
upstream water velocity that originates from Mast Drive, Tetra properties, and the industrial park and
commercial development along Glen Road.
If DWQ contends that current sedimentation removal is required, then Summerwind will conduct
inspection with DWQ personnel to determine specific areas that DWQ contends are the result of
Summerwind construction activity.
Request #2: Explanation regarding Compliance with the 401 Water Quality Certification
Conditions.
February 16, 2011
Page 2
Response: Achieving compliance with the 401 Water Quality Certification is on-going. Mammoth
Grading, the general contractor who was in charge of the erosion control management at the time of
the November 1, 2008 sediment loss, has not been involved with the project since December of 2008.
Erosion control inspections and maintenance regularly occur. Adequate erosion control devices have
been installed and slopes have been stabilized and are being monitored. Overseeding, fertilizing and
mulching continue as needed. Summerwind has been consulting regularly with DLR to achieve site
compliance.
Proposed remediation will remove fill beyond the impacts depicted in the Pre-Construction
notification. The Engineer of Record (Wetherill Engineering), DLR and Johnston County
Stormwater Management are reviewing design, installation and maintenance of sediment and erosion
control Best Management Practices to ensure no future violations occur.
Following receipt of written approval by DWQ of the restoration plan, Summerwind will complete
implementation of the plan within 120 days, plus any days documented that weather conditions
prevented site work, plus any days of work stoppage by DWQ for change or inspection, or review.
Summerwind will provide DWQ written certification of completion at each location of restoration
work. Within five (5) business days of receipt of notice of certification of completion, DWQ shall
provide written confirmation of completion or direction for additional work. Failure by DWQ to
provide written response to the certification of completion within five (5) business days of receipt of
notice shall be deemed approval of and agreement with the certification.
Request #3: Submit the Followine Documents.
3(a) Stream Restoration Plan (bridge and aerial line construction impacts):
Response: See Exhibit 1 (referenced above) and Exhibit 3(a). These plans build upon the
restoration plans that were provided to DWQ on January 20, 2011 and furthers supplements that
information pursuant questions raised by Natalie Landry via email and information requested by you
in your letter dated January 24, 2011.
Exhibit 3(a) (5 pages) includes: Bridge Plan; Road Crossing Plan; Road Crossing Remediation
Sequence (Upstream and Downstream), and Check Dam Plan.
Please note, as explained further in Exhibit #1, that work at the Aerial Crossing is being managed by
and conducted pursuant to permits being issued to Johnston County. The aerial crossing is located on
an easement belonging to and managed by Johnson County. For more information, please contact
Jamie Guererro, P.E., Stormwater Administrator, Johnston County Public Utilities.
3(b) Stream Restoration Plan (sediment impacts):
Response: Based on physical inspection of the stream bed downstream and between Area #5 and
Area #6, sedimentation identification from upstream impacts is not evident nor would it be possible
due to the underlying soil substrate matching the existing bank and stream conditions throughout the
February 16, 2011
Page 3
watershed. Furthermore, natural ongoing stream bank erosion is actively generated sedimentation
into streams. If DWQ insists that current sedimentation removal is required then Summerwind will
conduct an inspection with DWQ personnel to determine specific areas that DWQ contends are the
result of Summerwind construction activity.
In the event that sediment removal is required, a proposed work sequence and plan detail is attached
as Exhibit 3(b).
These plans build upon the restoration plans that were provided to DWQ on January 20, 2011 and
furthers supplements that information pursuant questions raised by Natalie Landry via email and
information requested by you in your letter dated January 24, 2011.
Request #4: (There was no Paragraph #4 included in the Requested Response).
Request #5: Detailed Schedule:
Response: Bridge armoring and stream bank repair will begin within ten (10) days of receipt of
written approval of plan by DWQ and should be completed within 30 calendar days, plus any days
documented that weather conditions prevent site work, plus any days of work stoppage by DWQ for
change, inspection or review.
Upstream road crossing remediation will begin, assuming receipt of written approval of plan by
DWQ, at the completion of the bridge work and should be completed within 30 calendar days, plus
any days documented that weather conditions prevented site work, plus any days of work stoppage
by DWQ for change, inspection or review.
Downstream road crossing remediation will begin, assuming receipt of written approval of plan by
DWQ, at the completion of the bridge work and should be completed within 30 calendar days, plus
any days documented that weather conditions prevented site work, plus any days of work stoppage
by DWQ for change, inspection or review.
Aerial crossing work will be managed by Johnston County, who could provide a schedule for
completion upon request.
Scheduling of any in-stream remediation between Area #5 and Area #6 will be based on the outcome
of any joint inspection with Summerwind and DWQ. If such remediation is required, it will begin
after the road crossing remediation is completed and should be completed within 30 calendar days of
written DWQ approval, plus any days documented that weather conditions prevented site work, plus
any days of work stoppage by DWQ for change, inspection or review.
Request #6: Contact with Division of Land Resources and U.S. Army Corps of Engineers:
Response: Summerwind has been in consultation with Thad Valentine, Division of Land Resources,
and Thomas Brown, U.S. Army Corps of Engineers regarding its restoration plans. By copy of this
letter, Mr. Valentine and Mr. Brown are receiving a complete copy of these plans.
February 16, 2011
Page 4
We hope that this letter addresses all issues raised in your letter of January 24, 2011. However,
please let us know, at your earliest convenience, if you have further concerns. Summerwind is
anxiously awaiting approval of these plans so that work can begin on the site as soon as possible.
Sincerely,

Catherine Cralle Jones
Enclosure
cc: Brenda Menard (via email)
Ron Mikesh (via email)
Thad Valentine
Thomas Brown
Jamie Guerrero
cc: (without enclosures)
Ian McMillan (w/o enclosures)
Niki Maher (w/o enclosures