20041672 Ver 1_Notice of Violation_20081022

F WAIF
R Michael F. Easley, Governor
0 William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
i Coleen H. Sullins, Director
Division of Water Quality
October 22, 2008
CERTIFIED MAIL #7006 2150 0000 3312 8109
RETURN RECEIPT REQUESTED
The Retreat on the Haw, LLC
Attn: Mr. P. Greg Garrett
8450 Falls of the Neuse Road, Suite 102
Raleigh, NC 27615
CERTIFIED MAIL #7007 2680 0001 8696 7209
RETURN RECEIPT REQUESTED
Polk-Sullivan, LLC
Attn: Mr. Robert Swain
PO Box 5689
Cary, NC 27513
Subject: NOTICE OF VIOLATION
NOV-2008-PC-0714
DWQ EXP # 04-1672
The Retreat on Haw River (formerly Williams Pond Subdivision)
35°46'2.38"N, -79°07'4.91"W
401 Water Quality Certification Condition
Removal of Best Usage
Other Waste (in-stream sediment)
Stormwater General Permit (NCG010000) Condition
Chatham County
Dear Mr. Garrett and Mr. Swain:
On October 2, 2008, Natalie Landry from the Raleigh Regional Office of the Division of Water Quality
(DWQ) conducted a site inspection for the tract/project known as The Retreat on Haw River (formerly
Williams Pond Subdivision) on Bynum Ridge Road, Chatham County, North Carolina. The stream on
the site is an unnamed tributary (UT) to Pokeberry Creek, Class WS-IV, NSW waters in the Cape Fear
River Basin.
Accordingly, the following observations were noted during the DWQ inspection and file review:
Mr. Sean Clark of Soil and Environmental Consultants, P.A. submitted a Pre-Construction Notification
(PCN) and supplemental information on or about November 8, 2004 on behalf of the property owner,
Polk-Sullivan, LLC. The impacts were requested under U.S. Army Corps of Engineers Nationwide
Permit 39 and the corresponding General Water Quality Certifications. DWQ issued an approval for the
impacts on or about November 19, 2004, DWQ EXP# 04-1672.
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
The Retreat on Haw River
Chatham County
The 401 Water Quality Certification DWQ EXP# 04-1672 authorizes 194 feet of perennial stream impact
and 109 feet of intermittent stream impact.
DWQ observations during the October 2, 2008 site inspection show that a check dam was constructed in
the stream channel, rocks were placed in the channel and sediment has built up behind the check dam,
upstream of Crossing #1. Downstream of Crossing #1, silt fence was placed in the stream channel,
sediment deposition was observed in the stream and the constructed riprap dissipater pad measured
approximately 23 linear feet. This impact was authorized to include a dissipater riprap pad of 35 linear
feet.
Observations also include the placement of approximately 6 linear feet of non-native rock upstream of
Crossing #2 and two pre-existing, black plastic corrugated pipes in the stream channel. The stream
channel and banks were destabilized. Downstream of Crossing #2, a gully formed in the right bank
(looking downstream) and the constructed riprap dissipater pad measured approximately 56 linear feet of
rock, including boulder-size rocks. This impact was authorized to include a dissipater pad of 40 linear
feet of riprap.
Observations also include approximately 50 linear feet of unstable stream banks under the bridge
constructed at Crossing #4. This impact was authorized to include a total impact length of 94 linear feet
for twin culverts and dissipater pad installation but instead a bridge was constructed.
Observations also include a loss of sediment outside limits of disturbance at the reconstructed spillway,
just above the jurisdictional wetland and stream. DWQ did not receive a report within 24 hours from the
time the permittee became aware of the noncompliance circumstances.
The site inspection and file review revealed that the subject project has an approved Erosion and
Sedimentation Control Plan and is covered by a stormwater general permit (NCGO10000).
A copy of the approved Erosion and Sedimentation Control Plan was not found on the subject site. A rain
gauge was not observed on the subject site. Erosion and sedimentation control facility monitoring records
were not available at the time of the inspection.
As a result of the site inspection and file review, the following violations, described below, are noted:
1. 401 Water Quality Certification Condition Violation
II. Removal of Best Usage
III. Other Waste (in-stream sediment)
IV. Stormwater General Permit (NCGO10000) Condition Violation
Item I. 401 Water Ouality Certification Condition Violation
The 401 Water Quality Certification DWQ EXP# 04-1672 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. Based on site observations and the file review, violations of Conditions 1, 8, 9 and 10
occurred on The Retreat on Haw River property (refer to attached DWQ Approval Letter.)
Item H. Removal of Best Usage
15A NCAC 2B .0211 (2)
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.
Page 3
The Retreat on Haw River
Chatham County
Item III. Other Waste (in-stream sediment)
15A NCAC 02B .0211 (3)f
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.
Item IV. Stormwater General Permit (NCG010000) Condition Violation
General Permit NCGO 10000
Part I, Section A. No. 2
The permittee shall implement the plan, which has been approved by the approval authority. The
approved plan is considered a requirement or condition of this general permit. Deviation from the
approved plan, or approved amendment to the plan, shall constitute a violation of the terms and conditions
of this general permit except that deviation from the approved plan will be allowed (1) to correct an
emergency situation where sediments are being discharged off site or (2) when minor modifications have
been made for the purpose of improving the performance of the erosion and sedimentation control
measures and notification of the minor modifications has been made to the Division of Land Resources
(or approved local program). Such a deviation from the approved plan shall be noted on the approved
plan maintained on the job site. During active construction, a copy of the approved plan shall be
maintained on the site.
Part 1, Section B. No. 1
All erosion and sedimentation control facilities shall be inspected by or under the direction of the
permittee at least once every seven calendar days (at least twice every seven days for those facilities
discharging to waters of the State listed on the latest EPA approved 303(d) list for construction related
indicators of impairment such as turbidity or sedimentation) and within 24 hours after any storm event of
greater than 0.5 inches of rain per 24 hour period. A rain gauge shall be maintained on the site and a
record of the rainfall amounts and dates shall be kept by the permittee.
Part II, Section E, No. 3(a)
The permittee shall report to the central office or the appropriate regional office any noncompliance
which may endanger health or the environment. Any information shall be provided orally within 24
hours from the time the permittee became aware of the circumstances. A written submission shall also be
provided within 5 days of the time the permittee becomes aware of the circumstances.
The written submission shall contain a description of the noncompliance, and its causes; the period of
noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the
anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent
reoccurrence of the noncompliance.
Requested Response
You are requested to respond to this letter in writing to DWQ at the address provided below within 30
days of receipt. You are also encouraged to secure a consultant who specializes in stream and wetland
restoration to assist you with the development and submittal of the following:
1. Documentation depicting all jurisdictional features (e.g. streams). A description and
quantification of the impacts to all jurisdictional features and your plans to avoid further stream
impacts on the site.
2. Streams Restoration Plan - Please explain how you plan to restore the pattern, profile and
dimension of the impacted stream channels to include the removal of boulders from stream,
Page 4
The Retreat on Haw River
Chatham County
removal of the check dam and stabilization of the banks. The streambeds must be restored to the
original profiles and the stream banks must be stabilized.
3. Stream Clean Up Report (sediment impacts) - Sediment impacts to the stream must be removed.
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. Provide a report that describes the measures taken to remove
sediment deposition and include photos.
4. Permit Application - If you wish for any unauthorized impacts to remain in place, you must
contact the U.S. Army Corps of Engineers (USA(t) and the DWQ to modify your 404 and 401
permits. Please note that sediment impacts to streams are not permittable.
5. Please provide a statement documenting that the approved Erosion and Sedimentation Control
Plan is on-site and available for review. A rain gauge must be properly installed as required by
the permit. Please provide a statement documenting the location of the rain gauge. Provide all
rain gauge data collected to include the past three months of monitoring through to the date of
your written response to this letter. If you do not have data, explain why. Provide inspection
records to include the past three months of monitoring records through to the date of your written
response to this letter. If you do not have records, explain why. Explain the steps taken to ensure
future compliance with the Twenty-four Hour Reporting requirement.
Include a detailed implementation schedule with dates explaining when the various stream
restoration activities will be accomplished. This schedule should include a three-year monitoring
plan to ensure that the streams are restored. It is important that you adhere to this new plan once
approved by DWQ. If you make any modifications to the approved plan, DWQ must approve them
prior to implementation.
Submit Requested Items To:
Natalie Landry
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 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 Natalie Landry at [phone].
inc
Danny Sn3A
Regional Supervisor
Surface Water Protection Section
cc: Raleigh RO - Water Quality
John Hennessy, NPS Assistance and Compliance Oversight Unit
Monte Matthews, USACOE, 3331 Heritage Trade Drive, Stel05, Wake Forest, NC 27587
Cyndi Karoly, 401 Oversight/Express Review Permitting Unit
Jim Willis, Chatham County, Chatham County, PO Box 130, Pittsboro, NC 27312
Nicole Thomson, S&EC, 11010 Raven Ridge Road, Raleigh, NC 27614
?0F WATF9o Michael F. Easley, Governor
'0 G William G. Ross Jr., Secretary
CIO (&7 North Carolina Department of Environment and Natural Resources
O T Alan W. Klimek, P.E. Director
Division of Water Quality
November 19, 2004
DWQ EXP # 04-1672
Chatham County
Page 1 of 4
Polk-Sullivan, LLC
Attn: Robert Swain
PO Box 5689
Cary, NC 27573
Subject Property: Williams Pond Subdivision
Pokeberry Creek (03-06-04, 16-37, WS-1V, NSW), Haw River (03-06-
04,16, WS-IV, NSW CA), Williams Pond (03-06-04,16-37-2, WS-IV,
NSW)
Approval of 401 Water Quality Certification with Additional Conditions-Express
Review Program
Dear Mr. Swain: \
You have our approval, in accordance with the attached conditions and those listed
below, to place fill within or otherwise impact 303 feet of streams for the purpose of a
subdivision at the subject property, as described within your application dated October
22, 2004 and received by the N.C. Division of Water Quality (DWQ) on October 22,
2004 and all additional information submitted and received on October 28, 2004,
November 8, 2004, November 16, 2004 and November 18, 2004. After reviewing your
application, we have decided that the impacts are covered by General Water Quality
Certification Number 3402 (GC3402). The Certification(s) allows you to use Nationwide
Permit 39 when issued by the US Army Corps of Engineers (USACE). In addition, you
should obtain or otherwise comply with any other required federal, state or local permits
before you go ahead with your project including (but not limited to) Erosion and
Sediment Control, Non-discharge, and Water Supply Watershed regulations. Also, this
approval to proceed with your proposed impacts or to conduct impacts to waters
as depicted in your application shall expire upon expiration of the 404 or CAMA
Permit.
This approval is for the purpose and design that you described in your,application. If
you change your project, you must notify us and you may be required to send us a new
application. If the property is sold, the new owner must be given a copy of this
Certification and approval letter and is thereby responsible for complying with all
conditions. If total fills for this project (now or in the future) exceed one acre of wetland
or 150 linear feet of stream, compensatory mitigation may be required as described in
15A NCAC 2H .0506 (h). This approval requires you to follow the conditions listed in
the attached certification and any additional conditions listed below.
401 Wetlands Certification Unit
1650 Mail Service Center, Raleigh, North Carolina 27699.1650
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone: [phone]/ FAX [phone] Intemet:http://h2o.enr.state.nc.us/ncwetlands
Noy` Carolina
NaturaUJ
Polk-Sullivan, LLC
Page 2 of 5
11/I9/04
The Additional Conditions of the Certification are:
1. Impacts Approved
The following impacts are hereby approved as long as all of the other specific
and general conditions of this Certification (or Isolated Wetland Permit) are met.
No other impacts are approved including incidental impacts:
Amount Plan Location or Reference
Approved Units
Stream 194' perennial, Impact Maps 1, 2 & 4 (dated
109' intermittent 10/26/04) and 3 (dated
11/10/04)
2. Compensatory Mitigation Using the Ecosystem Enhancement Program (EEP)
Mitigation must be provided for the proposed impacts as specified in the table
below. We understand that you wish to makc,a payment to the Wetlands
Restoration Fund administered by the NC Ecosystem Enhancement Program
(EEP) to meet this mitigation requirement. This has been determined by the
DWQ to be a suitable method to meet the mitigation requirement. Until the EEP
receives and clears your check (made payable to: DENR - Ecosystem
Enhancement Program Office), no impacts specified in this Authorization
Certificate shall occur. The EEP should be contacted at [phone] if you
have any questions concerning payment into a restoration fund. You have one
month from the date of this approval to make this payment. For accounting
purposes, this Authorization Certificate authorizes payment into the
Wetlands Restoration Fund to meet the following compensatory mitigation
requirement:
Compensatory Mitigation
Required River and Sub-basin
Number
Stream 194 feet 03-06-04
3. Protective Fencing
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 to ensure compliance with GC 3402.

Polk-Sullivan, LLC
Page 3 of 5
11/19/04
4. Turbidity Standard
The turbidity standard of 50,NTUs (Nephelometric Turbidity Units) shall not be
exceeded as described in 15 A NCAC 28..0200. Appropriate sediment and
erosion control practices must be used to meet this standard.
5. Deed Notifications
Deed notifications or similar mechanisms shall be placed on all retained
jurisdictional wetlands, waters and protective buffers in order to assure
compliance for future wetland, water and buffer impact. These mechanisms shall
be put in place prior to impacting any wetlands, waters and/or buffers approved
for impact under this Certification Approval and Authorization Certificate. A
sample deed notification can be downloaded from the 40IMetlands Unit web
site at http://h2o.enr.state.nc.us/ncwetlands. The text of the sample deed
notification may be modified as appropriate to suit to this project.
6. Culvert Installation
Culverts required for this project shall be installed in such a manner that the
original stream profiles are not altered. Existing`\stream dimensions (including the
cross section dimensions, pattern, and longitudinal profile) must be maintained
above and below locations of each culvert. Culverts shall be designed and
installed to allow for aquatic life movement as well as to prevent head cutting of the
streams. If any of the existing pipes are or become perched, the appropriate
stream grade shall be re-established or, if the pipes installed in a perched manner,
the pipes shall be removed and re-installed correctly.
Culvert(s) shall not be installed in such a manner that will cause aggradation or
erosion of the stream up or down stream of the culvert(s). Existing stream
dimensions (including the cross section dimensions, pattern and longitudinal
profile) shall be maintained above and below locations of each culvert. Therefore,
you must provide plans with adequate details that indicate that the current stability
of the stream will be maintained or enhanced. You must receive written approval
from this Office for the above plans before the culvert(s) is installed. Culvert(s)
must be installed according to approved plans.
7. No Stream Impacts (Open Bottom & Bottomless Arch Culverts)
Your application states that an Open Bottom Arch Culvert will be used to cross
the stream at crossing #3 and that no impacts will occur to either wetlands or
streams. This letter does not approve any impacts to streams or wetlands at
crossing #3. The proposed project must comply with all applicable water quality
standards as listed in 15A NCAC 02B .0200. The placement of the culverts shall
not be conducted in a manner that may result in aggradation, degradation or
Polk-Sullivan, LLC
Page 4 of 5
11/19/04
significant changes in hydrology of the stream bed and bank, adjacent to or
upstream and downstream of the structure. The openings must be provided to
maintain the natural hydrology of the system as well as prevent constriction of
the floodway that may result in aggradation, degradation or significant changes in
hydrology of streams.
8. Erosion & Sediment Control Practices
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
waters standards:
a. The erosion and sediment control measures for the project must be
designed, installed, operated, and maintained in accordance with the most
recent version of the North Carolina Sediment and Erosion Control Planning
and Design Manual.
b. The design, installation, operation, and maintenance of the sediment and
erosion control measures must be such tfi t they equal, or exceed, the
requirements specified in the most recent %rsion of the North Carolina
Sediment and Erosion Control Manual. The devices shall be maintained on
all construction sites, borrow sites, and waste pile (spoil) projects, including
contractor-owned or leased borrow pits associated with the project.
9. No Waste, Spoil, Solids, or Fill of Any Kind
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.
10. No Sediment & Erosion Control Measures w/n Wetlands or Waters
Sediment and erosion control measures shall not be placed in wetlands or waters
to the maximum extent practicable. If placement of sediment and erosion control
devices in wetlands and waters is unavoidable, they shall be removed and the
natural grade restored within six months of the date that the Division of Land
Resources has released the project.
11. Notification of Construction
The applicant and/or authorized agent shall contact the DWQ Express Review
Program in writing at the letterhead address within 10 days of the
commencement of construction.
Polk-Sullivan, LLC
Page 5 of 5
11/19/04
12. Certificate of Completion
Upon completion of all work approved within the 401 Water Quality Certification
or applicable Buffer Rules, and any subsequent modifications, the applicant is
required to return the attached certificate of completion to the 401/Wetlands Unit,
North Carolina Division of Water Quality, 1650 Mail Service Center, Raleigh, NC,
27699-1650.
Violations of any condition herein set forth may result in revocation of this Certification
and may result in criminal and/or civil penalties. The authorization to proceed with your
proposed impacts or to conduct impacts to waters as depicted in your application and
as authorized by this Certification, shall expire upon expiration of the 404 or CAMA
Permit.
If you do not accept any of the conditions of this Certification (associated with the
approved wetland or stream impacts), you may ask for an adjudicatory hearing. You
must act within 60 days of the date that you receive,this letter. To ask for a hearing,
send a written petition, which conforms to Chapter 1,1013 of the North Carolina General
Statutes to the Office of Administrative Hearings, 671.4 Mail Service Center, Raleigh,
N.C. 27699-6714. This certification and its conditions'are final and binding unless you
ask for a hearing.
This letter completes the review of the Division of Water Quality under Section 401 of
the Clean Water Act. If you have any questions, please telephone Cyndi Karoly at 919-
733-9721 or Deborah Edwards at 919-733-9502 in the Central Office in Raleigh.
AWK/dae
Enclosures: GC 3402
Certificate of Completion
cc: Sean Clark-S&EC
USACE Raleigh Regulatory Field Office
Mike Horan -DWQ Raleigh Regional Office
DLR Raleigh Regional Office
File Copy
Central Files
Sinc
af VIC-,, erely, /
/?
Alan W. Klimek, P.E.
Filename: 041672Willlams Pond (Chatham)EXP+401