20020468 Ver 1_Notice of Violation_20080924

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Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Coleen H. Sullins, Director
Division of Water Quality
September 24, 2008
CERTIFIED MAIL #7006 2150 0000 3312 8239
RETURN RECEIPT REQUESTED
Toll Brothers, Inc.
Attn: Lee Honeycutt
2310 T. W. Alexander Drive, Suite G
Raleigh, NC 27617
Subject: NOTICE OF VIOLATION
NOTICE OF INTENT TO ENFORCE
NOV-2008-SS-0033
DWQ Project # 02-0468
Brier Creek Country Club Phase 15 - Land Bay J/M
35°54'59"N, -78°47'46"W
401 Water Quality Certification Condition
Neuse River Riparian Buffer Violation - Diffuse Flow
Other Waste (in-stream sediment)
Wake County
Dear Mr. Honeycutt:
On August 29, 2008, Lauren Witherspoon from the Raleigh Regional Office of the Division of Water
Quality (DWQ) conducted a site inspection for the project known as Brier Creek Country Club
Subdivision Phase 15. This project is located off of Sporting Club Drive just south of T.W. Alexander
Drive in Raleigh in Wake County, North Carolina. The stream on the site is an unnamed tributary (UT)
to Brier Creek, Class C NSW waters in the Neuse River Basin.
Accordingly, the following observations were noted during the DWQ file review:
On March 27, 2002, Soil and Environmental Consultants, P.A. submitted a Pre-Construction
Notification (PCN) to the DWQ on behalf of Toll Brothers, Inc. The impacts were requested
under U.S. Army Corps of Engineers Nationwide Permit 14 and the corresponding General Water
Quality Certification. The jurisdictional feature at the proposed road crossing was depicted as a
linear wetland on the PCN application. On May 21, 2002, the DWQ issued an approval that
authorized impacts to 0.01 acre of the linear wetland for the road crossing. Condition number one
of the DWQ's approval required that "stormwater shall be directed to diffuse flow at non-erosive
velocities through the protected stream buffers."
On August 4, 2003, the John R. McAdams Company submitted a Stormwater Management Plan
for on behalf of Toll Brothers, Inc. in order to meet Condition number one of the Water Quality
Certification and Buffer Rules Approval. The Stormwater Management Plan, dated July 21, 2003
(modified August 1, 2003), included designs for three level spreaders: one behind Lot 714, the
second behind lot 726, and the third behind lots 737 and 738. The level spreader behind Lots 737
and 738 was designed as a pair of parallel two-foot high walls, composed of timber or masonry.
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/l0% Post Consumer Paper
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Brier Creek
Wake County
The total length of these level spreaders 116 linear feet laid in a meandering line in order to be
parallel to contour lines. No trees were to be removed on Lot 738. DWQ issued an approval for
this Stormwater Management Plan on August 5, 2003.
DWQ observations during the August 29, 2008 site inspection include:
¦ The jurisdictional feature that was impacted for the road crossing was determined to be a stream,
not a linear wetland as described in the original PCN application for this project. This stream is
depicted on the USGS topographic map and Wake County Soil Survey and would therefore, as a
result of this inspection, be subject to both the Neuse River Riparian Buffer Rules and the 401
Certification Program.
¦ No level spreaders were present behind Lots 714 and 726. Gullies have formed in both locations
resulting in a lack of diffuse flow through the Neuse Riparian Buffer.
A structure comprised of wooden ties and an aluminum slotted structure approximately 3 inches
off of the ground was present behind Lots 737 and 738. This structure is approximately 90 linear
feet in length and constructed in a straight line behind the two lots. There was abundant evidence
that this structure was not providing diffuse flow as required. There were eroded gullies within
the buffer immediately downslope of this structure that evidenced the immediate re-concentration
of stormwater flow. Additionally, DWQ staff observed severe undercutting of the slope due to
stormwater runoff. There were also problems with concentrated flow beneath the clean-out pipe,
where stormwater had seeped out through the clean-out pipe and entered the buffer in a
concentrated and erosive manner.
¦ The lack of proper installation and maintenance on the above structure has resulted in severe
erosion and sediment deposition in the stream behind Lots 737 and 738. The sediment impacted
approximately 100 linear feet of stream channel and measured 2-8 inches in depth.
As a result of the site inspection and file review, the following violations, described below, are noted:
(n 401 Water Quality Certification Condition Violation
(In Neuse River Riparian Buffer - Diffuse Flow Violation
(III) Other Waste (in-stream sediment)
Item I. 401 Water Quality Certification Condition Violation
The 401 Water Quality Certification DWQ Project #02-0468 approval letter specifies that the activities
must follow the conditions listed in the General Water Quality Certifications, as well as additional
conditions listed in the letter. The DWQ approval letter specifies that, "stormwater shall be directed to
diffuse flow at non-erosive velocities through the protected stream buffers." It also specifies that, "if you
change your project, you must notify us in writing and you may be required to send us a new application
for a new certification."
Item H. Neuse River Riparian Buffer - Diffuse Flow Violaion
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 according to the following two
items:
(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.

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Brier Creek
Wake County
Item III. Other Waste (in-stream sediment)
The documented in-stream sediment deposition is in violation of 15A NCAC 02B .0211 (3)(f) which
reads as follows:
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.
Requested Response
You are directed to respond to this letter in writing to DWQ at the address provided below within 30
days of receipt. Your response must include submittal of the following items:
1. An explanation of why the conditions of the Approved 401 Water Quality Certification and
Buffer Rules Approval, DWQ Project # 02-0468, were not followed.
2. Provide documentation of all jurisdictional features (e.g. streams, wetlands, and buffers),
including a DWQ buffer letter determination for the feature behind Lots 737 and 738 and at the
Sporting Club Drive culvert.
3. Please explain when you will be in compliance with your stormwater management plan as
approved by DWQ. You can only be compliant if the design of the level spreaders is what was
approved by DWQ in the stormwater management plan and they are providing diffuse flow
through the buffer.
4. If you cannot achieve compliance then you will have to apply for a modification of the
stormwater management plan. This plan should be designed to insure that stormwater is directed
as diffuse flow at non-erosive velocities through the protected stream buffers. This stormwater
management plan must meet the current level spreader design requirements per Chapter 8 of the
most recent NCDENR stormwater BMP manual, available at:
http://h2o.enr.state. nc us/su/bmp forms htm. Per the BMP Manual, level spreaders may not be
installed on sites where flows are too high to be conveyed by a 130-foot level spreader of the
topography of the filter strip is too steep. Please see Section 8.3.6 of the BMP Manual for
allowable options if this is the case on the project site.
A Stream Restoration Plan to address the sediment impacts to the stream. As a part of this plan,
you should provide the amount (depth) of material that has been deposited in the stream. 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. The
sediment should be removed from the stream, taken to high ground and stabilized outside of the
buffer. Also, the plan must address the measures that will be used for temporary
stabilization/sediment control while this work is under way.
Include a detailed implementation schedule with dates explaining when the site will be in
compliance.
Finally, please explain how you propose to prevent these problems from reoccurring on future
projects.
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Brier Creek
Wake County
Submit Requested Items To:
Lauren Witherspoon Annette Lucas
DWQ Raleigh Regional Office and DWQ - 401 Oversight/Express Review Permitting Unit
3800 Barrett Drive 2321 Crabtree Blvd, Suite 250
Raleigh, NC 27609 Raleigh, NC 27604
Thank you for your attention to this matter. This office requires that the violations, as described
above, be 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. Should you have any questions
regarding these matters, please contact Lauren Witherspoon at [phone] or
[e-mail] or Annette Lucas at [phone].
Sincerely,
nny Smith
Regional Supervisor
Surface Water Protection Section
cc: Raleigh RO - Water Quality
John Hennessy - NPS Assistance and Compliance Oversight Unit
Water Quality Central Files
Annette Lucas - 401 Oversight/Express Review Permitting Unit