20120602 Ver 1_Notice of Violation_20120820

W-W),
CDEHR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue
Governor
Charles Wakild, P. E.
Director
August 20, 2012
CERTIFIED MAIL 7010 0290 0003 0834 5732
RETURNED RECEIPT REQUESTED
Capt. David Luther
518 -C Roland Avenue
Surf City, NC 28445
Dee Freeman
Secretary
Subject: Notice of Violation
401 General Certification DWQ 2012 -0602
401 Conditions Violation, Water Quality Standard Violations
Century 21 Action Properties of Topsail Island, Surf City, Pender County
Dear Capt. Luther:
On June 28, 2012, the Division of Water Quality (DWQ) issued a 401 Water Quality Certification under
the General Certification No. 3883 which corresponds to the US Army Corps of Engineers Regional
General Permit (RGP) No. 198700056. The RGP 198700056 and corresponding 401 General
Certification No. 3883 authorized the construction of a commercial pier and two slip floating dock.
On August 14, 2012, Joanne Steenhuis of the Division of Water Quality (DWQ), Wilmington Regional
Office, Jennifer Frye of the US Army Corps of Engineers (USACE), Debra Wilson, Tara MacPherson and
Jason Dail of the Division of Coastal Management (DCM) and Jessi Baker of the NC Division of Marine
Fisheries (NC DMF) conducted an inspection of the site off Roland Avenue in Surf City. The inspection
was conducted due to complaints that prop dredging was being done around the docks in a Primary
Nursery Area (PNA).
Information gathered at the site, in a file review and by DCM shows that your actions as contractor for
Action Properties of Topsail Island have resulted in the following violations:
Item I. 401 Water Quality Certification condition violations
Item H. Water Quality Standard violations
Item I. General Certification # 3883 Permit Condition # 1 states:
No Impacts Beyond those Authorized in the Written Approval or Beyond the Threshold of Use of
this Certification
1617 Mail Service Center, Raleigh, North Carolina 27699 -1617
Location: 512 N. Salisbury St. Raleigh, North Carolina 27604
Phone: [phone] FAX: [phone]
Internet: www.ncwaterauality.org
An Equal Opportunity 1 Affirmative Action Employer
NorthCarohna
Nahandly

Capt. David Luther
DWQ Project # 20120602
August 20, 2012
Page 2 of 3
The investigators found additional impacts beyond what had been permitted for the commercial pier
and floating dock. The area landward of the floating dock looked to have been dredged and
sediment from the dredging was covering (filling) the adjacent bottom. It was also determined that
the area landward of the floating dock was deeper than what had been shown on the permit
application. No dredging was approved in the 401 Certification and no new dredging is allowed in
a PNA.
Item H. Water Quality Standard violations
15A NCAC 02B.0221(1) states: Best usage of waters; shellfishing for market purposes and any
other usage specified by the "SB" or "SC" classification ; [usages include aquatic life propagation
and maintenance of biological integrity (including fishing, fish and functioning PNAs), wildlife, and
secondary recreation]
15A NCAC 02B.0221(2) states: Conditions Related to Best Usage; waters shall meet the current
sanitary and bacteriological standards as adopted by the Commission for health Services and shall be
suitable for shellfish culture. Any source of water pollution which precludes any of these issues,
including their functioning as PNAs, on either a short -term or long -term basis shall be considered
violating a water quality standard;
15A NCAC 02B.0221(3)(a) states: Quality Standards applicable to Class SA Waters:
(a) Floating solids, settleable solids, or sludge deposits: none attributable to sewage, industrial
wastes or other wastes;
The investigators found that the waters landward of the floating were deeper than what was shown
on the permit application and that sediment was covering (filling) the adjacent bottom area. The
area is designated by the NCDMF as a Primary Nursery Area (PNA). No new dredging is allowed
in a PNA.
Required Response
This Office requests that you respond to this letter in writing within 30 calendar days of receipt of this
Notice. Please note, these violations and any future violations are subject to civil penalty assessment of
up to $25,000.00 per day for each violation. Your response should be sent to both this office at the
letterhead address and to the attention of Mr. Shelton Sullivan at the Wetlands and Stormwater
Branch, Compliance and Assistance Unit, 1617 Mail Service Center, Raleigh NC, 27699 -1617. Your
response in writing should address the following items:
1. An explanation of why these impacts occurred and how this will be avoided in the future;
2. A date of when the area will be restored per the DCM restoration plan;
Also include any additional items that the USACE and DCM required in your response.

Capt.'David Luther
DWQ Project # 20120602
August 20, 2012
Page 3 of 3
Thank you for your attention to this matter. This office requires that the violations, as detailed above,
be abated immediately. 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. Should you have any questions regarding these
matters, please contact Joanne Steenhuis or myself at (910) 796 -7215.
Sincerely,
Ja H. Gregson
Regional Supervisor
Surface Water Protection Section
cc: Hiram Williams — Action Properties of Topsail Island
Wetlands and Stormwater Branch — Ian McMillan
Compliance and Assistance Unit — Shelton Sullivan
Wilmington Corps of Engineers — Jennifer Frye (E -mail)
WiRO