20070816 Ver 1_Notice of Violation_20080804

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? Q Michael F. Easley, Governor
William G. Ross Jr., Secretary
O
G North Carolina Department of Environment and Natural Resources
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-H Coleen H. Sullins, Director
Division of Water Quality
0..T F: 09-08 I to . tAOJU:e..d 9 I I B S 4
August 4, 2008
CERT MAIL #7007-0220-0000-8225-1967
RETURN RECEIPT REQUESTED
Mr. Michael Johnson
Land Craft Properties
7034 Cayman Court
Wilmington, NC 28405
CERT MAIL #7007-0220-0000-8225-1981
RETURN RECEIPT REOUESTED
Eagle Creek Subdivision, LLC
Mr. Scott A. Stover
201 North Tryon Street, Suite 2650
Charlotte NC 28202
Subject:
Dear Mr. Johnson & Mr. Stover:
CERT MAIL #7007-0220-0000-8225-1974
RETURN RECEIPT REOUESTED
Mr. Michael Johnson
Eagle Creek Subdivision, LLC
1712 Eastwood Road, Suite 216
Wilmington NC 28403
NOTICE OF VIOLATION WITH INTENT TO
ENFORCE
NOV-2008-PC-0519
Eagle Creek
401 Water Quality Certification Inspection
Construction Stormwater Permit - NCGO 10000
NCR000655, DWQ # 2007-0816
Brunswick County
On June 25, 2008, and July 24, 2008, Mr. Chad Coburn from the Wilmington Regional
Office of the Division of Water Quality conducted site inspections for the tract/project known as
Eagle Creek, located off of Highway 17 Business, Lockwood Folly, North Carolina. The site
visits and file review revealed that the subject project has an approved Erosion and Sedimentation
Control Plan and is covered by Stormwater General Permit NCGO10000.
A Construction Stormwater General Permit (NCGO10000) 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 local delegated program) Erosion and Sedimentation
Control Plan for land disturbance of 1 acre or greater. Specifically, the General Permit
(NCGO 10000) authorizes the discharge of stormwater under the National Pollutant Discharge
Elimination System (NPDES) in accordance with Title 15A North Carolina Administrative Code
2H.0100.
In addition, this project was inspected for compliance with the 401 Water Quality
Certification (WQC) #3631 with Additional Conditions granted on September 11, 2007 for the
construction of a residential subdivision known as Eagle Creek. The WQC approved the impact
of 0.364 acres of wetland impacts to complete your project as described in your December 20,
2006 application. All impacts appear to be within the limits of approval.
North Carolina Division of Water Quality 127 Cardinal Drive Extension Phone [phone] Customer Servicel-877-623-6748
Wilmington Regional Office Wilmington, NC 28405-3845 FAX [phone] Internet: h2o.enr.state.nc.us One
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Page 2
Eagle Creek
Brunswick County
2007-0816
The following observations were noted during the Division of Water Quality inspections:
1) Maintenance of Erosion Control Measures (Part I, Section C: No. 2.)
According to the Notice of Violations from the N.C. Division of Land Resources dated June 27,
2008, the project was cited for failing to maintain the erosion control measures.
2) Following the Approved Plan (Part I, Section A: No. 2.)
According to the Notice of Violations from the N.C. Division of Land Resources dated June 27,
2008, the project was cited for failing to follow the approved plan.
3) 401 Water Quality Certification
A 401 Water Quality Certification with Additional Conditions covered by certification number
3631 was granted by the DWQ on September 11, 2007.
a) Additional condition 1 states that this project was approved for 0.364 acres of 404
wetland impacts. This included 3 roadway crossings and 1 utility crossing. Neither
the Pre-Construction Notification application nor the 401 WQC mentioned or
certified stream impacts.
I) There is an unauthorized wetlands and stream crossing adjacent to lots
A78 & A79. This crossing is approximately 30 feet wide.
II) There is a second unauthorized wetlands crossing to the immediate west
of "Roadway Crossing #3" that was installed for stormwater flow into
"Pond F".
III) The third unauthorized impact is to a perennial stream shown on the
USACE approved Jurisdictional Determination map. Approximately 225
linear feet has been filled on the project site. This fill is not part of the
approved impacts and has essentially removed the surface hydrology
from the downstream portion of this stream.
b) Additional condition 2 states, "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."
During the inspections, there was off site sedimentation into streams and wetlands
observed at the following locations:
I) The perennial stream mentioned above in `3) a) III' was observed to have
sedimentation from construction activities over a length of approximately
300 linear feet downstream of the unauthorized fill.
II) At "Roadway Crossing #I" there are accumulations of between 2 inches
to 6 inches of sediment in the wetlands and stream over a length of
approximately 300 linear feet.
III) At "Roadway Crossing #2" there are accumulations of between 2 inches
to 7 inches of sediment in the wetlands and stream over a length of
approximately 700 linear feet.
IV) At "Roadway Crossing #3" there are accumulations of between 2 inches
to 6 inches of sediment in the wetlands over a length of approximately
100 linear feet.
V) The isolated wetland labeled as `B' on the JD survey map contained off
site sediment and highly turbid water from off-site flow.
VI) The isolated wetland labeled as `K' on the JD survey map has been
completely eliminated from the site. The area of impact is 0.06 acres.
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Eagle Creek
Brunswick County
2007-0816
VII) The isolated wetland labeled as `D' on the JD survey map measures 1.56
acres. The hydrology to this wetland has been almost completely
removed by re-grading of the site.
c) Additional condition 2 states, "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 water standards." A "Notice of Violations Of The Sedimentation Pollution
Control Act" was issued by the N.C. Division of Land Resources on June 27, 2008.
d) Additional condition 6 states, "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." During the DWQ
inspections it was observed that the wetland boundaries were not marked with
warning fencing.
4) Wetlands Standards - Wetlands have been impacted by sedimentation and fill activities on
this site as mentioned above in 3a & 3b. This is in violation of the following wetland standards:
15A NCAC 02B .0231 (b) (1) requires that:
Liquids, fill or other solids or dissolved gases may not be present in amounts which
may cause adverse impacts on existing wetland uses;
15A NCAC 02B.0231 (b) (5) (F) requires that:
Hydrological conditions necessary to support the biological and physical characteristics
naturally present in wetlands shall be protected to prevent adverse impacts on:
(F) Water levels or elevations.
5) Other Waste (In-stream sediment) - Sediment has been released into tributaries to Clark
Branch in accumulations as mentioned above in 3b. These impacts represent violations of 15A
NCAC 2B .0211 (3) f, which states: 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;
Required Response
You are directed to respond to this letter in writing within 30 days of receipt. You are
encouraged to secure a consultant to assist you with maps, plans, applications, and other
documentation necessary to bring your site into compliance. Your response must include the
following:
1) Explain when construction (excavation, grubbing, and clearing) began at the site.
2) Submit a Wetlands Restoration Plan to this office for review and approval. You are
encouraged to secure a consultant to assist you with your plan development, permit,
certification and authorization necessary to achieve compliance. This plan should include
the following:
a) The restoration plan must detail how the earthen fill material placed in wetlands
(including all side casting) will be removed and how excavated wetlands will be
restored. This information must be clearly depicted on a map that you provide as
a part of this response. This map should also indicate all of the wetlands
locations on the tract as well as the wetland areas that have been impacted.
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Eagle Creek
Brunswick County
2007-0816
b) Any fill placed in wetlands must be removed. Please thoroughly discuss your
plans for backfilling all ditches that are in or adjacent to wetlands on the site.
Also, please address the measures that will be used for temporary stabilization/
sediment control while this work is under way. Please provide a schedule with
dates by which this work will be completed. Note: Fill material not used for
backfilling of ditches must be removed from wetlands, placed on high ground and
stabilized. This restoration effort must also be addressed in a manner that is in
full compliance with the Division of Land Resources and the US Army Corps of
Engineers;
c) Satisfactory wetland restoration requires the replanting of at least 2 native
hardwood wetland species and the maintenance of a stem density/survivorship of
at least 320 trees per acre at the end of 3 years. Also, this plan will require an
herbaceous wetland seed mix for all wetlands that are disturbed.
d) Permit Application - If you wish for any impacts to remain in place, you must
contact the U.S. Army Corps of Engineers (USACOE) for information on the
type(s) of permit required. Depending on the type of permits USACOE requires,
application for a 401 Water Quality Certification to DWQ will also be required.
Please note that sediment impacts to wetlands cannot be permitted.
e) Sedimentation was also observed in the roadside ditches. These were conveying
sediment and highly turbid water downstream of the site. As a part of your
restoration plan, it is required that you include a permanent stabilization plan
for these areas. You are encouraged to contact Division of Land Resources for
assistance.
f) Hydrology must be returned to the isolated wetland mentioned above in 3) b)
VII. Describe you plans to return the hydrology to this wetland.
g) Indicate in your response a schedule with dates detailing when the restoration
will be accomplished. This schedule should include a five-year monitoring plan
to ensure that the wetlands are restored and maintain the proper wetland criteria.
3) Submit a Stream Restoration Plan to this office for review and approval. You are
encouraged to secure a consultant to assist you with your plan development, permit,
certification and authorization necessary to achieve compliance. This plan should include
the following:
a) Explain how you plan to restore the pattern, profile, dimension, and hydrology
of the impacted stream channel mentioned above in 3) a) 111. The streambed
must be restored to the original profile, the stream banks must be stabilized, and
any fill material must be removed from the riparian zone. Replanting of the
riparian zone will be required.
b) Sediment impacts to the streams onsite and downstream of the site must be
removed. As a part of this plan, you should provide the amount (depth) of
material that has been deposited in the floodplain, stream and any wetlands. 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 stream channel. The sediment should be removed from the
channel, taken to high ground away from the stream channel and stabilized.
Also, the plan must address the measures that will be used for temporary
stabilization/sediment control while this work is under way.
c) Permit Application - If you wish for any impacts to remain in place, you must
contact the U.S. Army Corps of Engineers (USACOE) for information on the
type(s) of permit required. Depending on the type of permits USACOE requires,
application for a 401 Water Quality Certification to DWQ will also be required.
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Eagle Creek
Brunswick County
2007-0816
Please note that sediment impacts to streams cannot be permitted.
d) 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 the
permittable impacts, when an application will be submitted.
4) It is required that you contact the Division of Land Resources and the U.S. Army Corps
of Engineers. These contacts are necessary to ensure that your restoration efforts are in
compliance with the Sedimentation Pollution Control Act and Section 404 of the Clean
Water Act.
5) Detail the events that resulted in non-compliance with the above-mentioned NPDES
NCG010000 permit conditions.
6) Explain when you anticipate being in full compliance with the Construction Stormwater
Permit and your Erosion and Sediment Control Plan.
7) Provide information detailing your compliance with the minimum monitoring and
reporting requirements as requested above for each phase of the project. This
information must include monitoring records through to the date of your written response
to this letter. Specifically, it is requested that DWQ be provided a copy of all rain gauge
data and weekly inspection/monitoring reports related to your inspections of the approved
sedimentation and erosion control facilities and stormwater outfalls. Copies of all
corresponding inspections subsequent to rain events greater than 0.5 inches are requested
as well. Failure to provide this information will constitute violations of the subject
NPDES NCGO10000 stormwater permit.
This office requires that the violations, as detailed above, be immediately and 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. If you have any questions, comments, or need
assistance with understanding any aspect of your permit, please do not hesitate to contact me at
[phone] or by email at chad.coburn a,ncmail.net.
Sin ely,
t/a?
Edward Beck
Surface Water Protection Section
Wilmington Regional Supervisor
cc: John Hennessey - NPS-ACO Unit
Cyndi Karoly - Wetlands 401 Unit
Kim Garvey - USACE Wilmington, P.O.Box 1890, Wilmington, NC 28402
Central Files
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