NOV-2012-PC-0311 Ver 1_Notice of Violation_20120911

AL
NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Charles Wakild, P. E.
Governor Director
September 11, 2012
CERTIFIED MAIL #70111150 0000 4205 6177
Warren G. Whichard
511 Bay Lake Drive
Chocowinity, NC 27817
Subject: NOTICE OF VIOLATION and
RECOMMENDATION FOR ENFORCEMENT
NOV- 2012 -PC -0311
Bay Lakes
Failure to Secure 401 WQC,
Stream and Wetland Standard Violations
Beaufort County
Dear Mr. Whichard:
Dee Freeman
This letter is to notify you that the Washington Regional Office (WaRO) of the Division of Water Quality
(DWQ) is considering taking an enforcement action and injunctive relief for violations observed during
recent site inspection by staff from the DWQ WaRO. On or about August 16, 2012 NCDENR staff
inspected the subject property known as Bay Lakes located on the Southwestern intersection of
Whichard Beach Road (SR 1166) and Bay Lake Drive near the Town of Chocowinity, Beaufort County.
On August 22, 2012, DWQ staff verified the violation. During the site inspection, the investigators
observed the excavation associated with the construction of an outlet connecting Bay Lakes (sand
mine) to open waters of Taylor Creek. In addition, investigators also observed the placement of spoil
material and other debris within 404 - jursidictional wetlands. However, this fill and damage to the 404
wetlands is considered minimal and will not be pursued further.
As a result of the site inspections and file review, the following violations, detailed below, are noted:
(1) Failure to Secure 401 Water Quality Certification
1) Failure to Secure a 401 Permit
The impacts from connecting a deep water sand mine to the shallow, nutrient sensitive waters of
Taylor Creek requires permits from Division of Coastal Management (DCM), United States Army Corps
of Engineers (USACOE) and the Division of Water Quality. DWQ site visit and file review confirmed that
North Carolina Division of Water Quality Internet: www.ncwaterguality.org
943 Washington Square Mall Phone: 252 - 946 -6481 One
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impacts occurred without a Major Development Permit from DCM, 404 Permit from the USACOE and
401 WQC from DWQ. A Major Development Permit and /or Pre - Construction Notification is required to
be submitted to DWQ prior to the above - mentioned impact pursuant to 15A NCAC 2H .0500.
In January 2010, this Office returned an application for a connection of Bay Lake (sand mine) with
Taylor Creek due your failure to respond to a second request for additional information issued on
November 25, 2009. In November 2010, it was reported and documented that you had constructed an
unpermitted and unauthorized connection from Bay Lake (sand mine) to Taylor Creek approximately
500 feet south of the current excavated connection. You were sent a Notice of Violation with
Recommendation for Enforcement in December 2010 that culminated in the permanent closure of the
connection by bulkhead and a civil penalty assessment. The civil penalty was paid and the case
considered resolved in July 2011. It is noted that this violation has been documented and abated
multiple times dating back to 1994. This August 2012 iteration of an unpermitted and unauthorized
connection to surface waters represents a willful and intentional action to circumvent proper
permitting procedures and a disregard to State water quality standards.
Requested Response
This Office requests that you respond to this letter in writing within 30 calendar days of receipt of this
Notice. Your response should be sent to this office at the letterhead address. Your response should
address the following items:
1. Please explain when excavation began at the site.
2. Please clearly explain why appropriate 401 Water Quality Certification, Major Development
Permit nor 404 Permit were secured.
3. Please submit the following documents for review and approval:
a. Permit Application — If you wish for any impacts to remain in place, you must contact
the DCM and ACOE for information on the type(s) of permit required. Depending on the
type of permits DCM and USACOE requires, application for a 401 Water Quality
Certification to DWQ will also be required.
b. Open Water Connection Restoration Plan —Any impacts beyond what is requested to be
permitted must be restored. Please explain how you plan to close the connection such
that only an overflow for stormwater exists at the current opening. The opening must
be returned to its prior condition, which was a non - navigable connection to Bay Lake as
was agreed upon and documented in 2008.
c. Please indicate in your response a detailed schedule with dates explaining when the
restoration will be accomplished, and if you plan to seek a permit for any permittable
impacts, when an application will be submitted. Please not, any application for
connection to surface waters will require a flushing model or comprehensive monitoring
data. It is the expectation of this office that all impacts be abated no later than
November 15, 2012. Please tailor your response and schedule to achieve compliance by
this date.

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4. Finally, you should include in your response an explanation of how you propose to prevent
these problems from reoccurring on this project and on future projects.
* ** *You are encouraged to secure a consultant to assist you with your plan development, permit,
certification and authorization necessary to achieve compliance. * * **
This Office is considering sending a recommendation for a civil penalty assessment to the Director of
the Division of Water Quality and a Injunction Request to the Attorney General's Office regarding the
ongoing violations on your site. Pursuant to G.S. 143- 215.6A, the above mentioned violations and
any future violations are subject to a civil penalty assessment of up to a maximum of $25,000.00 per
day for each violation. Pursuant to G.S. 143- 215.6C, DWQ can request injunctive relief through the
courts to obtain compliance on the site. Your response to this matter will be considered in this
process. Please respond within 30 days of receipt of this notice. Should you have any questions
regarding these matters, please contact Amy Adams or myself at (252) 946 -6481.
Sincerely,
Bill Moore, Interim Regional Supervisor
Surface Water Protection Section
Washington Regional Office
cc: Karen Higgins — WBSCP Unit
WaRO File
David Moye — DCM WaRO
Tracey Wheeler — US ACOE — Washington Office
Maria Dunn — Wildlife Resources Commission WaRO
Kevin Hart — Marine Fisheries WaRO
Filena me: BayLakes_Whichard_NOVRE_2012 /aa