NOV-2008-SS-0031 Ver 1_Notice of Violation_20080910

C7 Y I M S r rro ?( v.
??F WATF,9O O Michael F. Easley, Governor
William G. Ross Jr., Secretary
0 North Carolina Department of Environment and Natural Resources
>r-I Coleen H. Sullins, Director
-? Division of Water Quality
September 10, 2008
CERTIFIED MAIL # 7006 2150 0000 3312 8130
RETURN RECEIPT REQUESTED
Norl ar Inc.
c/o Tyrone Newman
1008 Park Avenue
Durham, NC 27701
Subject: NOTICE OF VIOLATION
NOTICE OF INTENT TO ENFORCE
NOV-2008-SS-0031
Incident # 200802554
417 West Markham Avenue
36.01094 N, -78.89844W
PIN Number 0822-17-92-9461
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 517 West Markham Avenue in Durham County, North Carolina. The stream on the
site is an unnamed tributary (UT) to Ellerbe 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 Ellerbe Creek which impacted approximately
65 linear feet of perennial stream channel. In addition, rip-rap had been placed
adjacent to this pipe impacting 10 linear feet of this stream channel.
• Removal of vegetation, placement of earthen fill, and grading had impacted
approximately 5,975 square feet of Zone 1 and Zone 2 of the Neuse Riparian
Buffer along the UT to Ellerbe Creek.
No One
hCarolina
Naturally
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
417 West Markham Avenue
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 and rip-rap placement in the UT to Ellerbe 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 211.0500.
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
417 West Markham Avenue
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 Buff e
e
Restoration (October 2004) for assistance in developingyour plan
(available on the web at: http://www.nceep.net/news/reportsibuffers.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.
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 (USACE) 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
417 West Markham Avenue
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].
Srely,
+C yr ./7
Danny Sm'th
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
NC DENR - DIVISON OF WATER QUALITY 2B .0300
.0315 NEUSE RIVER BASIN
Class
Name of Stream Description Class Date Index No.
Picture Creek From a point 1.3 miles WS-IV;NSW 08/01/98 27-4-7-(2)
upstream of Granville
County SR 1112 to Knap of
Reeds Creek
Knap of Reeds Creek From a point 1.9 miles WS-IV;NSW,CA 08/01/98 27-4-(8)
downstream of Granville
County SR 1120 to Falls
Lake, Neuse River
Ellerbe Creek From source to a point 0.3 C;NSW 08/01/98 27-5-(0.3)
mile below the I-85 Bridge
Ellerbe Creek From a point 0.3 mile below WS-IV;NSW 08/01/98 27-5-(0.7)
the I-85 Bridge to a point
0.2 mile upstream of Durham
County SR 1636
Goose Creek From source to Ellerbe Creek WS-IV;NSW 08/03/92 27-5-1
Ellerbe Creek From a point 0.2 mile WS-IV;NSW,CA 08/01/98 27-5-(2)
upstream of Durham County
SR 1636 to Falls Lake,
Neuse River
NEUSE RIVER (Falls Lake From I-85 bridge to dam at WS-IV,B;NSW,CA 08/03/92 27-(5.5)
below normal pool elevation) Falls Lake
Panther Creek From source to a point 1.1 WS-IV;NSW 08/01/98 27-6-(1)
mile downstream of Durham
County SR 1818
Panther Creek From a point 1.1 mile WS-IV;NSW,CA 08/01/98 27-6-(2)
downstream of Durham County
SR 1818 to Falls Lake,
Neuse River
Rocky Branch From source to a point 0.5 WS-IV;NSW 08/01/98 27-7-(1)
mile upstream of Durham
County SR 1802
Rocky Branch From a point 0.5 mile WS-IV;NSW,CA 08/01/98 27-7-(2)
upstream of Durham County
SR 1802 to Falls Lake,
Neuse River
Little Lick Creek From source to a point 0.4 WS-IV;NSW 08/01/98 27-9-(0.5)
mile upstream of Durham
County SR 1811
Chunky Pipe Creek From source to Little Lick WS-IV;NSW 08/03/92 27-9-1
Creek
Little Lick Creek From a point 0.4 mile WS-IV;NSW,CA 08/01/98 27-9-(2)
(including portion of upstream of Durham SR 1811
Little Lick Creek Arm of to Falls Lake, Neuse River
Falls Lake)
Ledge Creek From source to a point 1.0 WS-II;HQW,NSW 08/03/92 27-10-(0.5)
mile downstream of I-85
5