20060629 Ver 1_Notice of Violation_20110606

NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins Dee Freeman
Governor Director Secretary
June 6, 2011
CERTIFIED MAIL #7010 1870 0001 3423 0599
RETURN RECEIPT REQUESTED
A.B. Perry Construction
5600 Rock Service Station Road
Raleigh, NC 27603
Subject: NOTICE OF VIOLATION
NOV-2011-WQ-0022
DWQ Project #06-0629
Hilltop Pointe Estates (High Grove I and II Subdivision and Clara Farms
Subdivision)
401 Water Quality Certification Condition Violation
Wake County
Dear Sir:
On April 29, 2011, Natalie Landry from the Raleigh Regional Office (RRO) of the Division of Water
Quality (DWQ) conducted a site inspection for the project known Hilltop Point Estates (also known as
High Grove Subdivision and Clara Farms Subdivison) located off of Hilltop Needmore Road in Wake
County, North Carolina. The streams on the site are unnamed tributaries to Middle Creek, Class C NSW
waters in the Neuse River Basin.
Accordingly, the following observations were noted during the DWQ file review and site inspection:
Ms. Debbie Edwards from Soil & Environmental Consultants, PA. submitted a Pre-Construction
Notification (PCN) dated May 9, 2006 and additional information received May 25 and 30 and June 1,
2006. The impacts were requested under U.S. Army Corps of Engineers Nationwide Permit 39 and the
corresponding General Water Quality Certification Number 3402 (GC3402). DWQ issued an approval
for the impacts dated June 6, 2006 (DWQ Project # 06-0629).
The 401 Water Quality Certification (DWQ Project # 06-0629) authorized A.B. Perry Construction to
place fill or otherwise impact 0.382 acres of wetlands, 243 linear feet of streams and 22,112 square feet
(ft') of protected riparian buffer to construct Hilltop Pointe Estates as described in your application.
Additional Condition #6 of the Water Quality Certification Approval Letter required resolution of Notice
of Violation NOV-2005-OV-0002 through the implementation of a Riparian Buffer Restoration Plan. Mr.
Michael Stewart from Stewart-Proctor submitted a letter and photos documenting the completed
restoration project dated December 15, 2008. Mr. Stewart also submitted a Certificate of Completion for
Hilltop Pointe Estates, signed and stamped, dated December 15, 2008.
North Carolina Division of Water Quality Raleigh Regional Office
Internet: www,ncwaterquality.org 1628 Mail Service Center
NorthCarolina
Natmrally
Surface Water Protection Phone [phone] Customer Service
Raleigh, INC 27699-1628 FAX [phone]
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
Hilltop Point Estates (High Grove Subdivision)
1'age 12
During the inspection, DWQ staff observed concentrated flow into the Neuse Riparian Buffer at proposed
Level Spreader locations #l, 2, 3, 5, 6 and 9. And, staff observed approximately 15 linear feet of riprap
was forming a dam in the stream at Impact Area #2.
As a result of the site inspection and file review, the following violation, described below, is noted:
401 Water Quality Certification Condition Violation
The 401 Water Quality Certification DWQ Project # 06-0629 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, the following violation of
the Water Quality Certification No. 3404 items #3 and #7 occurred.
Item 3: No Sediment and Erosion Control Measures in Wetlands and Waters - Sediment and erosion
control measures shall not be placed in wetlands or waters without prior approval by the Division. If
placement of sediment and erosion control devices in wetlands and waters is unavoidable, design and
placement of temporary erosion control measures shall not be conducted in a manner that may result in
dis-equilibrium of wetlands or stream beds or banks, adjacent to or upstream or down stream of the above
structures. All sediment and erosion control devices shall be removed and the natural grade restored
within 2 (two) months of the date that the Division of Land Resources or locally delegated program has
released the project.
Item 7: Riparian Area Protection (Buffer) Rules. All buffer rule requirements, including diffuse flow,
must be met.
Requested Response
You are directed to respond to this letter in writing to DWQ at the address provided below within 30
days of receipt. You are also encouraged to secure a consultant who specializes in the restoration of
streams and the installation and maintenance of level spreaders to assist you with the development and
submittal of the following:
1. Please provide documentation (including a detailed site map/survey) depicting all jurisdictional water
features (e.g. streams, wetlands, buffers) on the site. This documentation should describe and
quantify the impacts to those jurisdictional features, and should include plans to avoid further stream
and buffer impacts on the site.
2. Please submit the following documents for review and approval:
a. Stream Restoration Plan (riprap dam impacts) - riprap dam impacts to the stream must be
removed. As a part of this plan, you should provide the manner of removal and how you plan
to return the stream to natural grade and a stable condition. Please indicate in your response a
detailed schedule with dates explaining when the restoration will be accomplished.
b. As-built drawings of all stormwater conveyances or newly engineered plans for the
conveyances; whichever end result shows diffuse flow at non-erosive velocities.
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.
Hilltop Point Estates (High Grove Subdivision)
Pay c 13
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. 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 Natalie Landry at [phone].
Si)nny ly,
D Smit
Regional Supervisor
Surface Water Protection Section
Enclosure
cc: DWQ RRO file copy
Katie Merritt, WBSCP Unit, 1617 MSC, Raleigh, NC 27699
Ian McMillan, WBSCP Unit, 1650 MSC, Raleigh, NC 27699
Jennifer Mitchell, Wake County, PO Box 550, Raleigh, NC 27602
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O?O? WAT?9QG
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O Y
Michael F. Easley, Governor
William G. Ross Jr.. Secretary
North Carolina Department of Environment and Natural Resources
Alan W. Klimek, P.E. Director
Division of Water Quality
June 6, 2006
DWQ Project # 06-0629
Wake County
A.B. Perry Construction
Attn: Mr. Brian Perry
5600 Rock Service Station Road
Raleigh, NC 27603
Subject Property: Hilltop Pointe Estates, Fuquay-Varina, NC
Middle Creek [03-04-03, 27-43-15{4), C 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. Perry:
You have our approval, in accordance with the attached conditions and those listed below, to place fill
within or otherwise impact 0.382 acres of wetland, 2431inear feet of stream, and 22,112 SF of protected
riparian buffer for the purpose of constructing the above-referenced project, as described within your
application dated May 9, 2006, and received by the N.C. Division of Water Quality (DWQ) on May 9,
2006 and additional information received on May 25 and 30 and June 1, 2006. After reviewing your
application, we have decided that these impacts are covered by General Water Quality Certification
Number(s) 3402 (GC3402). The Certification(s) allows you to use Nationwide Permit(s) 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. 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 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 ISO 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 Water Quality
Certification (General Certification) and the following Additional Conditions:
401 Ovensight/Express Review Permitting Unit
1650 Mail Service Center, Raleigh, North Carolina 27699-1650
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone: [phone] / FAX [phone] / Internet: htto://h2o. enr. state nc uc/ncwertanrle
V N°il Cara'na
An Equal Opportunity/Affirmative Action Employer - 50'A Recyclcd/10% Post consumer Paper
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Hilltop Pointe Estates, A.B. Pent' Construction Co.
Page 2 of 5
June 6, 2006
The Additional Conditions of this ,Certification are:
1. Impacts Approved and Compensatory Mitigation
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.
Under the requirements of this General Certification and Authorization Certificate (15A NCAC 2B
.0242), you are required to mitigate for these impacts. The restoration component of your mitigation
plan was proposed within your application materials as described in the table below. We understand
that you wish to make a payment to the NC Ecosystem Enhancement Program (EEP) to meet this
mitigation requirement. DWQ has received a letter from EEP verifying acceptance of these impacts into
their mitigation program. The attached impact and mitigation summary may be used to make payment
to the EEP. The check should be made payable to: DENR - Ecosystem Enhancement Program Office.
The EEP should be contacted at [phone] if you have any questions concerning payment into a
restoration fund. For accounting purposes, the following compensatory mitigation may be
requested of the Stream and Buffer Restoration Funds to meet the conditions of the 404 Permit at
the discretion of the U.S. Army Corps of Engineers:
Impact a Amount (Units) Afifi ation Re erence
404 Wetland 0.382 acres 0.61 ac. PCN page 4 of 9
Stream 243 linear feet 243 linear feet PCN page 4 of 9
Buffers Zone 1 15,215 SF N/A PCN page 8 of 9
Buffers Zone 2 6,897 SF N/A PCN page 8 of 9
Total Buffers 22,112 (SF) I N/A
Until the EEP receives and clears your check, no impacts specified in this Water Quality Certification
and Authorization Certificate shall occur. You have one (1) month from the date of this approval to
make this payment.
2. 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.
3. Erosion and Sediment Control Practices
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:
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.

Hilltop Pointe Estates, A.B. Perry Construction Co.
Page 3 of 5
June 6, 2006
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.
4. 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 3402.
5. Culvert Installation
Culverts, including bottomless 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 or become perched, the appropriate
stream grade shall be re-established or, if new pipes are 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 rip rap or other bank hardening methods. If rip-rap is necessary, it
shall not be placed in the stream bed, 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.
V
Hilltop Pointe Estates, A.B. Perry Construction Co.
Page 4 of 5
June 6, 2006
6. Resolution of the Notice of Violation (NOV)/Riparian Buffer Restoration Plan
In response to a Neuse River Riparian Buffer Violation, you have submitted a Riparian Buffer
Restoration Plan dated May 25, 2006. This planting plan, including the list of species to be used, is
acceptable to the NC Division of Water Quality so long as the following requirements are met:
¦ A density of 320 trees/acre at maturity.
• Twenty (20 %) percent of the trees to be planted must consist of balled and burlapped,
1.5-2.0" caliper nursery stock.
¦ The restoration (replanting) of the riparian buffer shall be completed by December 1,
2006.
• The restored buffer shall be monitored for three (3) years. Two (2) copies of an annual
report shall be submitted-one to the attention of the DWQ Raleigh Regional Office, and
one to the attention of Ms. Cyndi Karoly, DWQ Central Office.
7. Construction Stormwater Permit NCGO 10000
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 (NCGO 10000) 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
http://h2o.enr.state.nc.us/su/Forms Documents.
htm.;
8. Notification of Construction
The applicant and/or authorized agent shall contact the DWQ Express Review Program in writing at
the letterhead address within ten (10) days of the commencement of construction.
9. Certificate of Completion
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/Wedands
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.
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 t[ a 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
Hilltop Pointe Estates, A.B. Perry Construction Co.
Page 5 of 5
June 6, 2006
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. 15013.
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 I SA NCAC 2B .0233. If you
have any questions, please telephone Cyndi Karoly or Cynthia Van Der Wiele at 919-733-1786.
Sincerely,
Alan W. Klimek, P.E.
AWK/cvdw
Enclosures: GC 3404
Certificate of Completion
NC EEP-Summary of Permitted Impacts and Mitigation Requirements
cc: Eric Kulz, DWQ Raleigh Regional Office
DLR Raleigh Regional Office
USACE Raleigh Regulatory Field Office
NC Ecosystem Enhancement Program
File Copy
Central Files
Debbie Edwards, S&EC, 11010 Raven Ridge Road, Raleigh, NC 27614
Filename: 060629HilltopPointeEstates(Wake)EXP+401NBR EEP