20061798 Ver 6_Notice of Violation_20110307

r=?-'`lq8 v?
?dB
Beverly Eaves Perdue
Governor
Coleen H. Sullins
Director
Dee Freeman
Secretary
March 7, 2011
Summerwind Plantation, LLC
Attn: Mr. Ronald J. Mikesh
1402 Chester Road
Raleigh, NC 27608
Ms. Catherine Cralle Jones
Law Offices of F. Bryan Brice, Jr.
5 W Hargett St., Suite 200
Raleigh, NC 27601
Subject: DWQ Response to Summerwind Response to Notice of Continuing Violation and
Recommendation for Enforcement (NOV-2011-PC-0051)
Summerwind Plantation Phases IA & 1B and Lots
DWQ Project# 06-1798 Ver. 6
Johnston County
Dear Mr. Mikesh and Attorney Jones:
On January 20, 2011, the Raleigh Regional Office of the Division of Water Quality (DWQ)
received a restoration plan via email from Ron Mikesh for Summerwind Plantation, LLC.
Natalie Landry (DWQ) and Ron Mikesh corresponded back and forth about the Plan via email
several times between January 20th and February 2, 2011.
On January 24, 2011, DWQ issued Notice of Continuing Violation and Recommendation for
Enforcement (NOCV) to Summerwind Plantation based on a December 21, 2010 site inspection.
On February 16, 2011, DWQ received a response to the NOCV via email from Catherine Cralle
Jones (Law Office of F. Bryan Brice, Jr.) on behalf of Summerwind Plantation, LLC. A
hardcopy arrive at the Raleigh Regional Office on February 18, 2011.
The Response to the NOCV incorporated much of the Restoration Plan that Mr. Mikesh and I
had discussed, with additional details. I will use the NOCV Response Exhibit #1 Streams &
Buffers format in this response in the hope that it is makes sense to all readers. The organization
of this response uses "Impact Areas" originally assigned in the wetland application process (Pre-
Construction Notification-PCN) and used by Ms. Cralle Jones in Exhibit #1. There is one
exception to this organization and that is Impact Area #1. The original Impact Area #1 referred
to the proposed pier on the existing pond and the associated buffer impacts but in the case of
Exhibit #1, Impact Area #1 refers to off-site sedimentation impacts on the northwestern edge of
the property.
North Carolina Division of Water Quality Raleigh Regional Office
Internet: www.ncwaterquality.org 1628 Mail Service Center
NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Surface Water Protection
Raleigh, NC 27699-1628
NorthCarolina
Nattrra!!'y
Phone [phone] Customer Service
FAX [phone]
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
Summerwind Plantation, LLC
March 7, 2011
Page 2
Impact Area #1: Exhibit #1 (dated 2/10/11) refers to loss of sediment outside limits of
disturbance from a basin in this area of the subdivision. The Exhibit #1 text states that the basin
will be converted to a permanent wetland detention basin once approval for conversion is given
by DLR.
DWQ response: In addition to sediment loss outside
the limits of disturbance from this basin, there was
sediment loss from other basins in this vicinity and
from failed silt fence as documented in the initial
NOV. During the 8/14/09 site visit with Carolina
Ecosystems, sediment deposition was not observed;
however, sediment disposition has been observed
below the silt fence and basins on another
subsequent occasion (9/21/10). Summerwind should
refer to the self-reporting NPDES BMP monitoring
records to identify any areas where sediment has
been lost outside erosion and sedimentation controls
that are monitored on a weekly basis and ensure that
sediment is cleaned up appropriately.
Photo 1: sediment deposition and washed stone below a
Impact Area #2: Bridge and riser basin. sediment basin at Summerwind.
Exhibit #1 (dated 2/10/11 and hardcopy received by DWQ 2/18/11) proposes to lay back
approximately 120 linear feet of stream bank slope (both sides) to at least 1.5:1 slope and overlay
with geo-tech fabric and then install 12-18 inches of riprap armoring. The text states that the
stream bed is stable and is not planned to be entered during the work.
The NOCV Response included Exhibit 3(a) Bridge. The drawing shows an extension of the
existing riprap over new areas depicted on the drawing using 12-18" thickness over filter fabric.
The riprap will not be placed in the stream (as depicted).
DWQ response: Summerwind Plantation, LLC will need to monitor this restoration annually for
a 3-year period. The monitoring should consist of visual observations of the length of the
stabilized stream banks for signs of stream bed degradation and stream bank erosion. If the
banks begin to fail or fail, they must be immediately repaired. If the stream bed within this
remediated reach begins to degrade or incise, Summerwind must submit a stabilization plan,
including mitigation, to DWQ. (Refer to the Monitoring information below for more details.)
Impact Area #3: North of Colonial Pipeline
Exhibit #1 text describes the loss of sediment from basins in 2008 and subsequent stabilization of
slopes. The proposed action for this area by Summerwind is to overseed and fertilize upslope
areas once the daily temperature averages 50 degrees.
DWQ response: Agreed
Summerwind Plantation, LLC
March 7, 2011
Page 3
Impact Area #4: North of Impact Area #3
Exhibit #1 text describes loss of sediment from basins in 2008 and states that
slopes were stabilized and a larger basin was designed and installed.
DWQ response: During the 12/21/10 inspection by DWQ, Traps 9 and 9A
(in the vicinity of Impact Area #4) as depicted on the Erosion and
Sedimentation Control Plan were not being maintained properly and
concentrated flow below these traps was occurring in the riparian buffer zone.
These traps must be maintained and monitored regularly as part of the
required NPDES Construction Stormwater Permit Conditions and the trap
outlets must be fixed to provide diffuse flow into the Neuse Riparian Buffer.
Impact Area #5: Downstream of #3 and #4 and the location of retaining wall road crossing.
Exhibit #1 text describes that sediment basin #11 which is situated NW of the road crossing was
undersized, although approved, and overflowed in rain events during road crossing construction
and sediment migrated into buffer and stream and deposited behind the temporary check dam.
Summerwind proposes to install a silt fence downstream of the temporary check dam at the
retaining wall corrugated metal pipe (CMP). And, a temporary check dam will be installed
upstream of sediment and a 4" gravity pipe will be installed and accompany hose will be run
through the silt fence and into the retaining wall CMP. The gravity hose connection will serve to
de-water the sediment to be removed. Care will be taken to not affect the existing stream bed
and no additional impacts to the buffer will occur. No mechanical equipment will be used in the
stream although an excavator bucket will be utilized on a 25-foot arm and a spotter will be in-
stream to guide sediment removal. Work along the stream bank and in the buffer will be done by
hand. Sediment will be removed from the buffer area and laid out in lifts in the area under
construction along Marsh Creek Drive and then seeded and stabilized. At the completion of the
clean-up, temporary construction check dams upstream and downstream will be removed. The
buffer and banks will be reseeded and mulched and silt fences will be reinstalled along the
retaining slopes.
Exhibit 3A Road Crossing shows the locations of the check dams and provides the detail for the
check dam. Exhibits 3A Road Crossing A & B provide the sequencing for the upstream work
and downstream work for the sediment removal at Impact Area #5.
DWQ response: All mechanical equipment must remain outside of jurisdictional areas, unless
areas were previously authorized for impacts. Use a silt bag, or similar BMP, to filter any water
pumped from the work area before discharging it back to the stream. This device must be placed
outside the Buffer and in a location where it can be retrieved after use. After sediment is
removed from the stream and wetland areas at Impact Area #5, install coir matting and live
stakes into any stream bank areas, apply a wetland seed mix to any wetland areas and plant
native trees and/or shrubs appropriate for the site in any buffer areas that were impacted by
sediment deposition. Some suggested shrubs include sweet fern, silky dogwood, witch hazel,
winterberry and spicebush. The drawing below shows the locations of jurisdictional streams,
buffers and wetlands in the area of Impact Area #5.
Impact Area #4: concentrated flow
in the protected buffer.
Surn merwind Plantation, LLC
March 7, 2011
Page 4
In addition, sediment outside the limits of disturbance must be reported and removed in
accordance with the NCGO10000 General Permit conditions. This includes sediment deposition
off-site, in addition to impacts to surface waters downstream of the site. If sediment deposition
removal will be phased, please indicate this in an addendum restoration plan and additional
construction sequence. If you need to know the locations of sediment deposition, please contact
DWQ.
----------------
------------
- --------------------
n
Impact Area: between #5 and #6
The NOCV Response stated that 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 be possible due to the underlying soil substrate matching the existing bank and stream
conditions throughout the 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.
Summerwind continues in the Scheduling section of the NOCV Response that scheduling of any
in-stream remediation between Area #5 and Area 46 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 approval, plus days documented that weather conditions prevented site work, plus any
days of work stoppage by DWQ for change, inspection or review.
DWQ response: DWQ agrees that a joint inspection of the stream between Impact Areas #5 and
#6 should occur following the completion of sediment removal activities at Impact Area #5.
DWQ will inform Summerwind in writing after the joint inspection if sediment removal in this
stream segment is necessary.
Summerwind Plantation, LLC
March 7, 2011
Page 5
Impact Area #6: Aerial Crossing
Exhibit #1 states that erosion control devices were repaired on the western side of stream and the
eastern side is in the oxbow which will be permanently matted. The outside is currently covered
in a geo-tech fabric that will remain in place and will be armored to prevent future erosion of the
aerial footing. This work is being managed by Johnston County, as the property is a permanent
Johnston County Utility Easement.
DWQ response: DWQ maintains that Summerwind is responsible for the bank stabilization at
the aerial crossing based on the approved PCN submitted by Summerwind in February 2008.
Summerwind agreed to stabilize the banks once the aerial crossing construction was completed.
On January 31, 2011, DWQ approved a Buffer Authorization request submitted by Johnston
County (DWQ Project #2011-0032) for the purpose of installing riprap for stream bank
stabilization; however, this request only included the stream bank that is eroding near the
sanitary sewer line footing and support column. Ms. Cralle Jones provided an Affidavit signed
by Mr. Jamie Guerrero that stated that Johnston County will be submitting a permit request to
restore and stabilize the bank on the eastern side of the stream within the bounds of the utility
easement. As of March 1, 2011, DWQ has not received a Buffer Authorization request for this
specific activity from the County.
NOCV Request #2 Response:
Summerwind included a paragraph in the NOCV Response (Page 2, paragraph 5) that described
DWQ future actions. It stated, "Summerwind will provide DWQ written certification of
completion of 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.
DWQ Response: DWQ does not agree to these terms. Summerwind will provide DWQ a
written report, detailing the results of the restoration and how each of the jurisdictional areas
were addressed, within thirty (30) days of the completion of all activities in the restoration plan.
NOCV Request #5 Detailed Schedule:
Summerwind provided a narrative schedule in the N(-)C'V recnnnca
Activi Start Finish
pact Area #2 Bridge Begin within 10 days of approval Complete within 30 calendar
r da s*
pact Area #5 Upstream Road At the completion of the bridge work Complete within 30 calendar
ossin Sediment Removal da s*
Impact Area #5 Downstream At the completion of the bridge work Complete within 30 calendar
Road Crossing Sediment days*
Removal
Stream between Impact Areas At the completion of the sediment removal Complete within 30 calendar
#5 & #6 Sediment Removal work at Impact Area #5 based on the days*
outcome of a joint DWQ/Summerwind site
inspection
*plus any days documented that weather conditions prevent site work, plus any days of work stoppage by DWQ for
change, inspection or review.
Summerwind Plantation, LLC
March 7, 2011
Page 6
DWQ Response: The schedule should also include the following items.
1. Within 30 days of completion of restoration activities, Summerwind will submit a written
report to DWQ, detailing the results of the restoration, including photos and text, of how
each of the jurisdictional areas were addressed (streams, wetlands, buffers).
2. Monitoring reports will be submitted annually, by June 1 of each year, to the DWQ RRO.
The monitoring reports will include the following items:
a. A monitoring timeline that begins upon the completion of the restoration plan and
continues for a minimum of three (3) years.
b. Contains a map that shows established monitoring stations on all restored stream
features.
c. Written documentation of routine field inspections of the streams to determine if
restoration efforts have been successful or unsuccessful and recommendations for
stabilization measures, if necessary.
d. Quarterly (March, June, September and December) inspection and review of the
restored streams.
e. The reports must describe each quarterly inspection result, include digital
photographs of each station, include the date of each inspection and describe any
repairs or corrections including dates of completion.
Activity Start Finish
Impact Area #3 seed and As daily temperatures permit
fertilize as appropriate
Impact Area #4 repair outlets to Begin within 10 days of approval Complete within 30 calendar
traps to ensure diffuse flow days*
through buffer
Impact Area #6 Provide DWQ Immediately
with Buffer Authorization
application from County for
eastern bank.
Submit a Plan for removal of Immediately
Off-site sedimentation impacts
*plus any days documented that weather conditions prevent site work, plus any days of work stoppage by DWQ for
change, inspection or review.
Thank you for your response to the NOCV and for working with DWQ toward a restoration
plan. Please proceed with the restoration plan as described above, including responses by DWQ.
Feel free to contact me or Natalie Landry at 919-791-4200 if you have questions or
concerns.
Oan ly,
j/4???/?
Smi
Raleigh Regional Supervisor
Surface Water Protection Section
Summerwind Plantation, LLC
March 7, 2011
Page 7
cc: DWQ RRO-file copy
Thad Valentine - DLR PRO
Thomas Brown, Raleigh Regulatory Office, USACE
fan McMillan, WBSCP, DWQ, 1650 MSC, Raleigh, NC 27699
Niki Maher, WBSCP, DWQ, 1617 MSC, Raleigh, NC 27699
Jamie Guerrero, Johnston County Public Utilities, P.O. Box 2263, Smithfield, NC 27577