NOV-2008-WQ-0092 Ver 1_Notice of Violation_20081107

F W A 1'F
9 Michael F. Easley, Governor
Q William G. Ross Jr., Secretary
o North Carolina Department of Environment and Natural Resources
j r
O Coleen H. Sullins, Director
Division of Water Quality
November 7, 2008
CERTIFIED MAIL # 7007 2680 0001 8696 7483
RETURN RECEIPT REQUESTED
Tracy L. Stout
3512 Constellation Drive
Raleigh, NC 27604
Subject: NOTICE OF VIOLATION
NOTICE OF INTENT TO ENFORCE
NOV-2008-WQ-0092
Incident # 200803030
35.83187 N, -78.57996 W
PIN Number 1725467558
Riparian Buffer Violation
Wake County
Dear Sir or Madam:
On October 9, 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 3512 Constellation Drive in Raleigh, Wake County, North Carolina. The stream on the
property is an unnamed tributary (UT) to Marsh Creek, Class C NSW waters, in the
Neuse River Basin.
During the site inspection, Ms. Witherspoon made the following observations:
The stream on the site is depicted on the Soil Survey of Wake County and the
USGS 1:24000 topographic map, was determined to be perennial, and is therefore
subject to the Neuse River Riparian Buffer Rules.
A 2-story garage had been constructed in Zone 1 and Zone 2 of the Neuse River
Riparian Buffer. This garage occupies approximately 1,000 square feet of
riparian buffer. In addition, it appeared that vegetation had been removed from
the buffer prior to building the garage.
As a result of the site inspection, the following violation, detailed below, is noted:
Item III. Neuse Riparian Buffer Violation
The Neuse River Basin is subject to the riparian (streamside) buffer rules covered under NortenCarolina
North Carolina Title 15A NCAC 02B .0233. The purpose of these rules is to protect and NWUMU4
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
3512 Constellation Drive
Wake County
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).
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 restoration to assist you
with the development and submittal of the following:
1. 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 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. Please indicate how you plan to move the garage
outside the riparian zone. It is our understanding that a small shed was in the
buffer (prior to July 22, 2007) where a portion of the garage currently exists. You
can leave the portion of the garage that is in the footprint of this shed since this is
an existing use.
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 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.
Include a detailed implementation schedule with dates explaining when the buffer
restoration will be accomplished. This schedule should include a three-year
monitoring plan to ensure that the riparian buffer is 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.
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3512 Constellation Drive
Wake County
4. Major Variance Application (attached) - If you wish to apply for approval for
any impacts to remain in place you must apply for a Major Variance since impacts
have occurred in Zone 1 of the buffer.
Finally, please explain how you propose to prevent these problems from reoccurring
on future projects.
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].
nce ely,
Gl hr7`' -.7?
Danny Smi?l'i
Regional Supervisor
Surface Water Protection Section
cc: NPS Assistance and Compliance Oversight Unit
Amy Chapman - 401 Oversight and Express Permits Unit
RRO - Water Quality Files
\o?OF WA7,- Michael F. Easley, Governor
William G. Ross Jr., Secretary
j. r North Carolina Department of Environment and Natural Resources
O ^?
Coleen H. Sullins, Director
Division of Water Quality
Variance Request Form
(For Minor and Major Variances)
Protection and Maintenance of Riparian Areas Rules
NOTE: This form may be photocopied for use as an original.
Check the appropriate box below:
? Major Variance
? Minor Variance
Please identify which Riparian Area Protection Rule applies (Note-this must be one of
North Carolina's four buffered river basins. The River Bain map is available at
http://h2o.enr.state.nc.us/admin/maps/.)
? Neuse River Basin: Nutrient Sensitive Waters Management Strategy
Protection and Maintenance of Riparian Areas Rule (15A NCAC 02B.0233)
? Tar-Pamlico River Basin: Nutrient Sensitive Waters Management Strategy
Protection and Maintenance of Riparian Areas Rule (15A NCAC 02B.0259)
Part 1: General Information
(Please include attachments if the room provided is insufficient.)
1. Applicant's name (the corporation, individual, etc. who owns the property):
2. Print Owner/Signing Official (person legally responsible for the property and its compliance)
Name:
Title:
Street address:
City, State, Zip:
Telephone:
Fax:
3. Contact person who can answer questions about the proposed project:
Name:
Telephone: )
Fax:
Email: --
Version 3: January 2008
4. Project Name (Subdivision, facility, or establishment name - consistent with project name on
plans, specifications, letters, operation and maintenance agreements, etc.):
5. Project Location:
Street address:
City, State, Zip:
County:
Latitude/longitude:
6. Directions to site from nearest major intersection (Attach an 8 '/2 x 11 copy of the USGS
topographic map indicating the location of the site).
7. Stream to be impacted by the proposed activity:
Stream name (for unnamed streams label as "UT" to the nearest named stream):
Which of the following permits/approvals will be required or have been received already for this
project?
Required: Received: Date received: Permit Type:
CAMA Major
CAMA Minor
401 Certification/404 Permit
On-site Wastewater Permit
NPDES Permit (including stormwater)
Non-discharge Permit
Water Supply Watershed Variance
Erosion/Sedimentation Control
Others (specify)
Part 2: Proposed Activity
(Please include attachments if the room provided is insufficient.)
1. Description of proposed activity [Also, please attach a map of sufficient detail (such as a plat map
or site plan in Adobe (pdf) format) to accurately delineate the boundaries of the land to be utilized
in carrying out the activity, the location and dimension of any disturbance in the riparian buffers
associated with the activity, and the extent of riparian buffers on the land. Include the area of
buffer impact in ft2.:
Variance Request Form, page 2
Version 3 January 2008
2. Fill in the table below to identify the square footage of impact to Zones 1 & 2 in the protected
riparian buffers and the required mitigation (Fill in the impacts portion of the table, even if
mitigation is not required):
Buffer Impact
Zone of Impact in Number Purpose for Multiplier
Required
Impact Square Feet (Indicate on the Impact Mitigation
Plan Sheet)
Zone 1 3
Zone 2 1.5
Total
*Zone 1 extends out 30 feet perpendicular from the most landward limit of the top of bank or the rooted herbaceous
vegetation; Zone 2 extends an additional 20 feet from the edge of Zone 1.
3. State reasons why this plan for the proposed activity cannot be practically accomplished, reduced
or reconfigured to better minimize or eliminate disturbance to the riparian buffers:
4. Description of any best management practices to be used to control impacts associated with the
proposed activity (i.e., control of runoff from impervious surfaces to provide diffuse flow, re-
planting vegetation or enhancement of existing vegetation, etc.):
5. Please provide an explanation of the following:
(1) The practical difficulties or hardships that would result from the strict application of this Rule.
(2) How these difficulties or hardships result from conditions that are unique to the property
involved.
(3) If economic hardship is the major consideration, then include a specific explanation of the
economic hardships and the proportion of the hardship to the entire value of the project.
Variance Request Form, page 3
Version 3 January 2008
Part 3: Stormwater
1. Provide a description of all best management practices (BMPs) that will be used to control
nutrients and sedimentation impacts associated with the proposed activity. Please ensure to
include all applicable operation & maintenance agreements and worksheets for the proposed
BMPs. Also, include the BMPs on your plan sheets.
2. Attach a description of how diffuse flow will be maintained through the protected riparian
buffers. Please ensure to include all applicable operation & maintenance agreements and
worksheets for the proposed diffuse flow measure(s). Also, include the diffuse flow measure(s)
on your plan sheets.
3. What will be the annual nitrogen load contributed by this site after development in pounds per
acre per year without structural BMPs (stormwater pond, wetland, infiltration basin, etc)? Attach
a detailed plan for all proposed structural stormwater BMPs.
Drainage Size of Post-development BMP nitrogen6 Final Final
basin drainage nitrogen 6 loading removal nitrogen6 nitrogen6
basin rate without BMPs4 efficiencys loading rate loading
(ac) (Ibs/ac/yr) (%) (lbs/ac/yr) from
drainage
basin Ibs
1
2
3
4
S
Totals -----
4 Attach calculations and references.
s Attach calculations and references.
6 Include Phosphorus in the Tar-Pamlico Basin
Part 4: Water Quality Protection, continued
4. Attach all applicable supplement form(s) and Inspection and Maintenance (I&M) Form(s) to this
completed application. The applicable supplemental form(s) and I&M form(s) for the proposed
BMPs noted in your application can be downloaded from the following website:
http://h2o.enr.state.nc.us/su/bmp forms.htm
Variance Request Form, page 4
Version 3 January 2008
Part 5: Proposed Impacts and Mitigation
Provide a description of how mitigation will be achieved at your site pursuant to 15A NCAC
213.0242 for the Neuse Basin and 15A NCAC 213.060 for the Tar-Pamlico Basin.
If buffer restoration is the method you are requesting, be sure to include a detailed planting plan
to include plant type, date of plantings, the date of the one-time fertilization in the protected
riparian buffers and a plan sheet showing the proposed location of the plantings. A guide to
buffer restoration can be downloaded at the following website:
http://www.nceep.net/news/reports/buffers.pdf
If payment into a buffer restoration fund is how you plan to achieve your mitigation requirement,
then include an acceptance letter from the mitigation bank you propose to use stating they have
the mitigation credits available for the mitigation requested.
Part 6: Deed Restrictions
By your signature in Part 5 of this application, you certify that all structural stormwater BMPs
required by this variance shall be located in recorded stormwater easements, that the easements will
run with the land, that the easements cannot be changed or deleted without concurrence from the
State, and that the easements will be recorded prior to the sale of any lot.
Part 7: Applicant's Certification
I, (print or type name of person listed in
Part I, Item 2), certify that the information included on this permit application form is correct, that the
project will be constructed in conformance with the approved plans and that the deed restrictions in
accordance with Part 5 of this form will be recorded with all required permit conditions.
Signature:
Date:
Title:
Part 8: Plan Sheets
Be sure to include a copy of all of your completed application form, plan sheets and maps in Adobe
(pdf) format on a CD or floppy disk.
Part 9: Checklist
A complete appplication submittal consists of the following components. Incomplete submittals will
be returned to the applicant. The complete variance request submittal must be received 90 days prior
to the EMC meeting at which you wish the request to be heard. Initial below to indicate that the
necessary information has been provided.
Applicant's Item
Initials
• Original and two copies of the Variance Request Form and the attachments
listed below.
• A vicinity map of the project (see Part 1, Item 5)
Variance Request Form, page 5
Version 3 January 2008
• Narrative demonstration of the need for a variance (see Part 2)
• A detailed narrative description of stormwater treatment/management (see Part
4)
• Calculations supporting nitrogen (phosphorus in the Tar-Pamlico Basin)
loading estimates (see Part 4)
• Calculations and references supporting nitrogen (phosphorus in the Tar-
Pamlico Basin) removal from proposed BMPs (see Part 4)
• Location and details for all proposed structural stormwater BMPs (see Part 4)
• Three copies of the applicable Supplement Form(s) and I&M Form(s) for each
BMP and/or narrative for each innovative BMP (see Part 4)
• Three copies of plans and specifications, including:
0 Development/Project name
0 Engineer and firm
0 Legend and north arrow
0 Scale (1" = 50' is preferred)
0 Revision number & date
0 Mean high water line (if applicable)
0 Dimensioned property/project boundary
0 Location map with named streets or NC State Road numbers
0 Original contours, proposed contours, spot elevations, finished floor
elevations
0 Details of roads, parking, cul-de-sacs, sidewalks, and curb and gutter
0 Footprint of any proposed buildings or other structures
0 Wetlands delineated, or a note on plans that none exist
0 Existing drainage (including off-site), drainage easements, pipe sizes,
runoff calculations
0 Drainage basins delineated
0 Perennial and intermittent streams, ponds, lakes, rivers and estuaries
0 Location of forest vegetation along the streams, ponds, lakes, rivers and
estuaries
Variance Request Form, page 6
Version 3 January 2008