NOV-2008-SS-0032 Ver 1_Notice of Violation_20080910

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?F W ATF9 Michael F. Easley, Governor
O? QG William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
>r-f Coleen H. Sullins, Director
O Y Division of Water Quality
September 10, 2008
CERTIFIED MAIL # 7006 2150 0000 3312 8147
RETURN RECEIPT REQUESTED
Derrick Lee Rhodes
710 Locust Drive
Durham, NC 27713
Subject: NOTICE OF VIOLATION
NOV-2008-SS-0032
Incident # 200802564
710 Locust Drive
35.98108 N, -78.84157 W
PIN Number 0841-19-60-0741
Removal of Best Use
Failure to Secure a 401 Water Certification
Riparian Buffer Violation
Durham County
Dear Sir:
On 25 August 2008, Lauren Witherspoon from the Raleigh Regional Office of the
Division of Water Quality (DWQ) conducted a site inspection for a tract of land located
at 710 Locust Drive in Durham County, North Carolina. The stream on the site is an
unnamed tributary (UT) to Little Lick Creek, Class WS-IV NSW waters, in the Neuse
River Basin.
During the site inspection, Ms. Witherspoon made the following observations:
• A pipe had been placed in the UT to Little Lick Creek which impacted
approximately 75 linear feet of intermittent stream channel.
• Removal of vegetation, placement of earthen fill, and grading had impacted
approximately 3,750 square feet of Zone 1 and Zone 2 of the Neuse Riparian
Buffer along the UT to Little Lick Creek.
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N hCarolina
Aa&ra!!y
North Carolina Division of Water Quality Raleigh Regional Office Surface Water Protection Phone [phone] Customer Service
Internet: h2o.enr.state.nc.us 1628 Mail Service Center Raleigh, NC 27699-1628 FAX [phone]
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
Page 2
710 Locust Drive
Durham County
As a result of the site inspection, the following violations, detailed below, are noted:
(1) Removal of Best Use
(2) Failure to Secure a 401 Water Certification
(3) Neuse Riparian Buffer Violation
Item I. Removal of Best Use
The culvert placement in the UT to Little Lick Creek represents a water quality standard
violation defined as removal of best usage.
Specifically, 15A NCAC 2B .0211 (2) requires that "The waters shall be suitable for
aquatic life propagation and maintenance of biological integrity, wildlife, secondary
recreation, and agriculture; sources of water pollution which preclude any of these uses
on either a short-term or long-term basis." Please see the Requested Response section for
details concerning how to achieve compliance at the site.
Item II. Failure to Secure a 401 Water Quality Certification
A file review confirmed that a Pre-construction Notification has not been received by the
Division of Water Quality for this project and that a 401 Water Quality Certification has
not been issued. A Pre-Construction Notification submitted to DWQ is required prior to
the culvert impacts pursuant to 15A NCAC 2H.0500.
Item III. 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 includes 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 2B
.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.
Page 3
710 Locust Drive
Durham County
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 buffer, stream, and wetland
restoration to assist you with the development and submittal of the following:
Documentation depicting all jurisdictional features (e.g. streams and buffers). A
description and quantification of the impacts to those jurisdictional features and
your plans to avoid further riparian 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.
a. Riparian Zone planting - Please submit a Restoration Plan to this office
for review and approval. This plan 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
an 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/reports/buffers.pdf).
Be sure to include the types of native woody vegetation selected,
methodology of planting, and a site map indicating the location of the
replanting efforts.
3. Stream Restoration Plan (culvert impacts) - Please explain how you plan to
restore the pattern, profile and dimension of the impacted stream channels to
include the removal of the culvert and associated fill. 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.
4. 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 riparian buffer and stream are
restored. It is important that you adhere to this new plan once approved by DWQ
and if you make any modifications to it, that DWQ approve them.
5. Permit Application - If you wish to apply for approval for any impacts to remain
in place, you must contact the U.S. Army Corps of Engineers (USAGE) for
information on the type(s) of permit required. Depending on the type of permits
USACE requires, application for a 401 Water Quality Certification to DWQ will
also be required.
Finally, please explain how you propose to prevent these problems from reoccurring
on future projects.
Page 4
710 Locust Drive
Durham County
Submit Requested Items To:
Lauren Witherspoon
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
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. Should you have any questions regarding these matters, please contact Lauren
Witherspoon at [phone].
erely,
? ,:??Yyl
Danny Smith
Regional Supervisor
Surface Water Protection Section
cc: NPS Assistance and Compliance Oversight Unit
DWQ Central Files
Cyndi Karoli - 401 Oversight and Express Permits Unit
RRO - Water Quality Files
Durham City-County Planning, Attn: Lindsay Darden, 101 City Hall Plaza, Durham, NC 27701