20071522 Ver 1_Notice of Violation_20110411

A WX
*410
NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Governor Director Dee Freeman
Secretary
CERTIFIED MAIL # 7008 1300 0000 1102 6360
RETURN RECEIPT REQUESTED
Walthom Group IV
Attn: Rob Bailey
442 '/z East Main Street
Clayton, NC 27520
Subject:
Dear Sirs:
Neuse River Riparian Buffer Rules Violations finds &
401 Water Quality Certification Condition Violations
Other Waste (in-stream) Sediment Violation
Construction Stormwater General Permit (NCGO10000) Condition Violations
Johnston County
April 7, 2011
CERTIFIED MAIL # 7008 1300 0000 1102 6407
RETURN RECEIPT REQUESTED
The Walthom Group
Attn: Norwood Thompson
442 %2 East Main Street
Clayton, NC 27520
NOTICE OF VIOLATION ?'"--
NOTICE OF INTENT TO ENFORCE D LA
N
OV-2011-PC-0228
DWQ Project # 2007-1522 ?
Portofino ) 2011
35.6407N, -78.3672W DENR
On March 28, 2011, Lauren Witherspoon from the Raleigh Regional Office of the Division of Water Quality (DWQ)
conducted a site inspection on the tract of land known as Portofino in Johnston County, North Carolina. The streams on
the site are unnamed tributaries (UT) to the Neuse River., Class WS-IV, Nutrient Sensitive Waters (NSW), in the Neuse
River Basin.
A stormwater general permit (NCGO 10000) 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 delegated local program Erosion and
Sedimentation Control Plan Approval Letter for land disturbance of i 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 North Carolina Administrative Code 2H.0100. DLR has approved an Erosion and
Sedimentation Plan for this project and is therefore covered by the NCGO10000 permit. The Financial Responsible Owner
for this project is the Walthom Group.
On October 10, 2007, DWQ issued a 401 Water Quality Certification (WQC) to the Walthom Group IV to impact 215
linear feet of stream, 9,583 square feet of Zone 1 of the protected buffers, and 3,267 square feet of Zone 2 of the protected
buffers to construct a residential subidivion, as described in the application dated October 1, 2007 (received October 3,
2007) and additional information received by DWQ on October 10, 2007 (DWQ Project #07-1522). These impacts are
covered by General Water Quality Certification Number 3631 and corresponding Nationwide Permit 29 when issued by
the US Army Corps of Engineers.
North Carolina Division of Water Quality Raleigh Regional Office Surface Water Protection Phone [phone]
Internet: www.ncwaterquality.org 1628 Mail Service Center Raleigh, NC 27699-1628 FAX [phone]
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Portofino
Prior to the March 28, 2011 site inspection, Ms. Witherspoon had inspected the site multiple times in the last three years.
These site inspections revealed sediment in over 200 LF of stream channel measuring approximately 12 inches in depth
below the pond near the entrance to the Equestrian Center and over a mile of gravel trails within portions of the Neuse
River riparian buffer which were not included in the buffer authorization approval. Mr. Alsey Gilbert, representing
Walthom Group, had work performed to remove the sediment from the stream. Mr. Gilbert informed Ms. Witherspoon
that portions of the trail system were existing prior to the effective date of the buffer rules. Therefore, Ms. Witherspoon
required that a complete application be submitted to DWQ for an after-the-fact buffer authorization for the portions of the
trails that did not exist prior to the effective date of the rules. Within the last three years no buffer authorization
application has been submitted to DWQ although promised by Mr. Gilbert on several occasions (most recently on
February 18, 2011).
During the March 28, 2011 site inspection, Ms. Witherspoon observed:
• Approximately 1,500 feet of new gravel trail has been constructed in within the Neuse River riparian buffer which
has not been approved by DWQ.
• Unauthorized removal of vegetation and grading has occurred in Zone 1 of the riparian buffer impacting
approximately 1,200 square feet of riparian buffer near the stream crossing on Inset 2 (October 1, 2007 PCN page
9 of 13).
• Diffuse flow is not being maintained through the riparian buffer at the recently constructed stream crossings
depcited on Inset 2 and Inset 3 (October 1, 2007 PCN page 9 of 13).
• The 401 WQC authorized 75 LF of permanent impacts at the stream crossing depcited on Inset 3 (October 1,
2007 PCN page 9 of 13). However, field observations revealed 40 LF of permanent impacts associated with (2)
culverts, 60 LF of excavated stream downstream of the culverts, and 10 LF of rip-rap in the stream channel
upstream of the culvert totalling 110 LF of permanent impacts (exceeding the 401 WQC by 35 LF).
• The 401 WQC authorized 44 LF of permanent impacts at the stream crossing on Inset 2 (October 1, 2007 PCN
page 9 of 13). An existing culvert, approximately 35 LF, was shown on the October 3, 2007 maps. Therefore, the
permanent stream impacts could not exceed approximately 79 LF at this location. Field observations revealed 40
LF of permanent impacts associated with a culvert, a 28 LF rip-rap dissipator downstream from the culvert, and
10 LF of rip-rap upstream of the culvert totalling approximately 78 LF of permanent impacts (within the
authorized impact limit).
• Approximately 70 LF of stream channel (depicted on Inset 3) was impacted by sediment deposition both up and
downstream of the culvert which measured 6-18 inches in depth.
• Approximately 160 LF of stream channel (depicted on Inset 2) was impacted by sediment deposition both up and
downstream of the culvert which measured 3-18 inches in depth.
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Portofino
As a result of the site inspections, the following violations, detailed below, are noted:
Item I. Neuse Riparian Buffer Violation
The Neuse River Basin is subject to the riparian (streamside) buffer rules covered under North Carolina Title 15A NCAC
02B .0233. The purpose of these rules is to protect and preserve riparian buffers in the Neuse River Basin that help
protect surface water by removing nutrients from overland flow. The North Carolina buffer rules apply to areas
immediately adjacent to surface waters which include intermittent streams, perennial streams, lakes, ponds, and estuaries.
The protected riparian buffer has two zones: Zone 1 is measured from the stream bank landward for 30 feet.
Zone 2 is measured an additional 20 feet landward from the outer edge of zone 1. Both Zone 1 and Zone 2
consist of a stable vegetated area that is undisturbed except for activities and uses provided for in item (6) of 15A
NCAC 213.0233 (4).
Neuse Buffer - Diffuse Flow - 15A NCAC 02B .0233 (5) (a) & (b) requires that:
Diffuse flow of runoff shall be maintained in the riparian buffer by dispersing concentrated flow and
reestablishing vegetation.
(a) Concentrated runoff from new ditches or manmade conveyances shall be converted to diffuse flow before the
runoff enters Zone 2 of the riparian buffer.
(b) Periodic corrective action to restore diffuse flow shall be taken if necessary to
impede the formation of erosion gullies.
Item 11. 401 Water Quality Certification Condition Violations
The 401 WQC DWQ Project # 07-1522 approval letter specifies that the approval is only valid for the purpose and design
that you described in your application. If you change your project, you must notify DWQ and you may be required to
send us a new application. The 401 WQC requires you to follow the conditions listed in Water Quality Certification 3631
and any additional conditions listed in the certification and buffer authorization certificate. You are in violation of the
following conditions:
Condition 1: Impacts Approved
The following impacts are hereby approved as long as all the other specific and general conditions of this Certification are
met. No other impacts are approved including incidental impacts:
tm aUL 1 e Amount A roved Units
Stream ( Plan Location or Reference
(intermittent) 215 (linear feet) Oct. 1, 2007 PCN Page 9 of 13
Buffers -Zone 1 9,583 (s aure feet) Oct. 1, 2007 PI-XI a e 12 of 13
Buffers - Zone 2 3,267 (s uare feet) Oct. 1, 2007 PCN page 12 of 13
Condition 2: No Waste Spoil Soilids 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.
Condition 3: Erosion & Sediment Control Practices
Erosion and sediment control practices must be in full compliance with all specifications governing the proper design,
installation and operation and maitenance of such Best Management Practices in order to protect surface waters standards.
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Portofino
Condition 6: Diffuse Flow Measures Approved
All stormwater shall be directed as diffuse flow at non-erosive velocities through the protected stream buffers and will not
re-concentrate before discharging into the stream as identified within 15A NCAC 2B .0233(5).
Item 111. Other Waste (In-stream sediment)
The sediment deposition (as a result of the land disturbing activities) in the streams on-site represents a water quality
standard violation defined as other waste.
Specifically, 15A NCAC 02B .0211 (3)f, requires that "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 IV. Construction Stormwater General Permit (NCGO10000) Condition Violations
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 I, Section A. No. 2
d. Once land disturbance has begun onsite, a copy of the approved erosion and sediment control plan and this NPDES
construction permit shall be maintained on the site.
Part I, Section B. No. 1-3
1. A rain gauge shall be maintained in good working order on the site.
2. A written record of the daily rainfall amounts shall be retained and all records shall be made available to DWQ or
authorized agent upon request (note: if no rainfall occurred, the permittee must record "zero")
3. The control measures shall be inspected to ensure that they are operating correctly. Inspection records must be
maintained for each inspection event and for each measure. Paragraph 6 of the Section outlines additional inspection
record requirements. At a minimum inspection of measures must occur at a frequency indicated below.
a. All erosion and sedimentation control measures must be inspected by or under the direction of the permittee at
least once every seven calendar days, and
b. All erosion and sediment control measures must be inspected by or under the direction of the permittee within
24 hours after any storm event of greater than 0.50 inches of rain per 24 hour period.
Part I, Section B. No. 5
If any visible sedimentation is leaving the site or entering a water of the state, corrective on-site action shall be taken
immediately to control the discharge of sediments. Where visible deposition of sediment has occurred in surface waters
or wetlands, the permittee must contact the Division within 24 hours of becoming aware of the deposition.
Required Response
You are directed to respond to this letter in writing within 30 days of receipt. You are also encouraged to secure a
consultant who specializes in stream and buffer restoration to assist you with the development and submittal of the
following:
Documentation depicting all jurisdictional features (e.g. streams, wetlands, and buffers). A description and
quantification of the impacts to those jurisdictional features and your plans to avoid further riparian buffer and
stream impacts on the site.
2. A Riparian Buffer Restoration Plan to this office for review and approval. Please clearly indicate the site
conditions as they currently exist and how you propose to restore the riparian buffers.
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Portofino
a. The trails/or portions of trails that were not in the riparian buffer prior to the effective date of the buffer
rules must be restored to original condition. In addition, the riparian area that has been graded and
grubbed must be restored. A restoration plan should include removing gravel from the trails and must be
developed to ensure that at least two native tree species are planted at a density sufficient to provide 320
trees/acre at maturity. This density is usually achieved by planting approximately 436 trees/acre on a 10
ft. x 10 ft. grid or 681 trees/acre on a 8 ft. x 8 ft. grid. Please see the Guidelines for Riparian Buffer
Restoration (October 2004) for assistance in developing your plan (available on the web at:
http://www.nceep.net/news/reportsibuffers.pdf). This plan must include the types of native woody
vegetation selected, methodology of planting, and a site map indicating the location of the replanting
efforts.
b. Diffuse Flow - Please indicate when you will start implementing your diffuse flow plan that is included
in the 401 WQC. If you cannot implement the approved plan at this time please explain how you will
provide diffuse flow prior to entering Zone 2 of the buffer in the interim.
c. If you wish for the trails to remain, then you must secure a buffer authorization.
3. Please explain when you will be in full compliance with your 401 WQC.
4. Stream Restoration Plan - (Sediment impacts)
Sediment deposition in the streams must be removed. As a part of this plan, you should provide the amount
(depth) of material that has been deposited in the 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 streams. The sediment should be removed from the stream, taken to high ground away from
the stream channel and 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.
5. The approved Erosion and Sedimentation Control Plan must be followed. Please provide a statement
documenting that the approved Erosion and Sedimentation Control Plan is on-site and available for review.
6. A rain gauge must be properly installed as required by the NCG010000 permit. Please provide a statement
documenting the location of the rain gauge.
7. Provide all rain gauge data collected to include the past four months of monitoring through to the date of your
written response to this letter. If you do not have data, explain why.
8. Provide inspection records to include the past four months of monitoring records through to the date of your
written response to this letter. If you do not have records, explain why.
9. Include a detailed implementation schedule with dates explaining when the buffer and stream restoration
will be accomplished. This schedule should include a three-year monitoring plan to ensure that the buffer
is restored. 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.
Finally, please explain how you propose to prevent these problems from reoccurring on future projects.
Submit Requested Items To:
Lauren Witherspoon
DWQ Raleigh Regional Office
3800 Barrett Drive
Raleigh, NC 27609
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Portofino
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. This Office is considering sending a recommendation for enforcement to the Director of the Division
of Water Quality regarding these issues and any future or continued violations that may be encountered. Your above-
mentioned response to this correspondence will be considered in this process. Environmental damage and/or failure to
secure proper authorizations have been documented on the subject tract as stated above. Your efforts to undertake
activities to bring the subject site back into compliance is not an admission, rather it is an action that must be taken in
order to begin to solve ongoing environmental issues. Should you have any questions regarding these matters, please
contact Lauren Witherspoon at [phone].
Si cer ly,
Danny Smit
Regional S pervisor
Surface Water Protection Section
cc: Katie Merritt - WeBSCaPE - 1617 Mail Service Center
Ian McMillan - WeBSCaPe -1650 Mail Service Center
Thad Valentine - DLR
RRO - Water Quality Files