20050559 Ver 1_Notice of Violation_20081203

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
December 3, 2008
CERTIFIED MAIL #7007 2680 0001 8696 4789
RETURN RECEIPT REQUESTED
Community Properties
Attn: Neil Matthews
1000 St. Albans Drive, Suite 400
Raleigh, NC 27609
Subject: NOTICE VIOLATION
NOV-2008-WQ-0097
DWQ Project # 05-0559
35°56'36.67" N, 78°43'55.05" W
Victory Church Road Subdivision (Chestnut Oaks)
Wake County
Neuse River Riparian Buffer Violation
401 Water Quality Certification and Authorization
Certificate per the Neuse River Buffer Protection Rules
Violation
Dear Sir:
On October 23, 2008 N.C. Division of Water Quality (DWQ) personnel Natalie Landry from the
Raleigh Regional Office conducted a site inspection at the Victory Church Road Subdivision
(Chestnut Oaks) located off of Victory Church Road (SR 1841) in Wake County, North Carolina.
The stream on the site is an unnamed tributary (UT) to Upper Barton Creek, Class WS-IV NSW
waters, in the Neuse River Basin.
Accordingly, the following observations were noted during the DWQ file review:
Soil & Environmental Consultants, PA submitted a Pre-Construction Notification (PCN) dated
April 1, 2005 and additional information received on April 22, 2005 and May 19, 2005 on behalf
of Community Properties. The impacts were requested under U.S. Army Corps of Engineers
Nationwide Permit 39 and the corresponding General Water Quality Certification 3402. DWQ
issued a letter dated May 24, 2005 authorizing impacts to a stream and buffers (DWQ Project #
05-0559).
The 401 Water Quality Certification (WQC) and Authorization Certificate per the Neuse River
Buffer Protection Rules (DWQ Project# 05-0559) authorizes 139 linear feet of stream channel
and 21,243 square feet of protected riparian buffer impacts associated with two road crossings. In
addition, eight (8) level spreaders depicted on Wetland Impact # 1 - 2 Maps (labeled Basins A -
H) were included in this submittal and approved by DWQ.
The October 23, 2008 site inspection revealed the following:
• Level Spreaders labeled Basins C and D were not present on the site;
N..o ?` Carolina
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]
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Page 2
Victory Church Road Subdivision (Chestnut Oaks)
December 3, 2008
• Level Spreader labeled Basin A is approximately 12 LF while the approval dated May
24, 2005 required the length to be 7 LF;
• Level Spreader labeled Basin D is approximately 19 LF while the approval dated May
24, 2005 required the length to be 9 LF;
• Level Spreader labeled Basin E is approximately 24 LF while the approval dated May
24, 2005 required the length to be 20 LF;
• Level Spreaders labeled Basins F, G, and H were not maintained;
• Level Spreader labeled Basin H was built in Zone 1 of the Neuse Riparian Buffer which
was not approved has resulted in the removal of vegetation;
• Level Spreaders labeled A, D, E, F, and H showed evidence of concentrated flow
through the buffer due to corrugated plastic pipes being situated in the middle of the
level spreader lip. However, the approval dated May 24, 2005 was approved with no by-
pass;
• Diffuse flow was not observed at any of the proposed level spreader locations;
• At stream crossing Wetland Impact 1 the pipe was approximately 18 inches above the
substrate of the stream. A check dam was installed in approximately 13 LF of stream
channel.
As a result of the site inspection and file review, the following violations, detailed below, are
noted:
Item I. Neuse River 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.
Item II. 401 WQC and Authorization Certificate per the Neuse River Buffer Protection
Rules Violation
The 401 Water Quality Certification DWQ Project# 05-0559 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 the following conditions have occurred at the Victory Church Road Subdivision:
Condition 3. (see attached DWQ approval letter).
All stormwater shall be directed as diffuse flow at non-erosive velocities through the protected
stream buffers and will not re-concentrate before discharging into the stream as identified
within the 15A NCAC 2B .0233(5).
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Victory Church Road Subdivision (Chestnut Oaks)
December 3, 2008
In an effort to comply with the diffuse flow provision of the Buffer Rule (15A NCAC 02B
.0233(5)), you have provided the DWQ with level spreader designs dated April 1, 2005. The
DWQ believes that if implemented, as per these plans, diffuse flow will be achieved.
However, if diffuse flow as per 15A NCAC 02B .0233(5) is not achieved, then the DWQ shall
be notified and corrective actions to restore diffuse flow shall be taken if necessary to impede
the formation of erosion gullies. At no time shall stormwater from the proposed development
be piped directly through the buffer without prior DWQ written permission.
Condition 5.
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 ...If any of the existing pipes are or become perched, the appropriate stream grade shall
be re-established or, if the pipes are installed in a perched manner, the pipes shall be removed
and reinstalled correctly.
Required Response
You are directed to respond to this letter in writing within 30 days of receipt. You are
encouraged to secure a consultant to assist you with your response development, permit,
certification and authorization necessary to achieve compliance.
1. Documentation depicting jurisdictional features (e.g. stream and buffers). A description
and quantification of the impacts to those jurisdictional features and your plans to avoid
further impacts on the site.
Please submit a Restoration Plan to this office for review and approval. This plan should
include the following:
a. The riparian buffer where level spreader labeled Basin H is must be addressed.
This level spreader must be removed and put in the location that was authorized.
The riparian buffer in this location must be restored. A buffer restoration 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 in the buffer. 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/rgports/buffers pdf).
This plan must include the types of native woody vegetation selected,
methodology of planting, and a site map indicating the location of the replanting
efforts.
3. Please explain in your response when and how you anticipate achieving compliance with
the 401 WQC and Neuse River Riparian Buffer Authorization. You can only be
compliant if the design of the level spreaders was approved by DWQ in the 401 WQC
and they are able to provide diffuse flow through the buffer.
4. If you cannot achieve compliance then you will have to apply for a modification of the
401 WQC. Your modification should ensure that stormwater is directed as diffuse flow
at non-erosive velocities through the protected stream buffers. This design of the level
spreaders must meet the current level spreader design requirements per Chapter 8 of the
most recent NCDENR stormwater BMP manual, available at:
http://b2o.enr.state.nc.us/su/bLnp 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
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Victory Church Road Subdivision (Chestnut Oaks)
December 3, 2008
spreader or 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.
5. Stream Restoration Plan - Please explain how you plan to remediate the perched culvert
impacting the stream at Wetland Impact #1 (i.e. culvert replacement or stream
restoration).
6. Include a detailed implementation schedule with dates explaining when the buffer and
stream restoration will be accomplished and when you will be in compliance with your
401 WQC and Buffer Authorization. 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.
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 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 Natalie Landry at (919) 79 -4200.
Sinc rely,
Danny Smi
Raleigh Regional Supervisor
Surface Water Protection Section
cc: John Hennessy - NPS Assistance and Compliance Oversight Unit
Cyndi Karoly - 401 Wetlands Unit
RRO - Water Quality Files
Kathryn Hobbie - Wake County Stormwater Section, 336 Fayetteville Street, Raleigh, NC 27602
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TF9oG
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Michael F. Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
Alan W. Klimek, P.E. Director
Division of Water Quality
May 24, 2005
DWQ Project # 05-0559
Wake County
Community Properties
Attn: Neil Matthews
1000 St. Alban's Drive, Suite 400
Raleigh, NC 27609
Subject Property: Victory Church Road Site
UT to Upper Barton Creek (03-04-01, 27-15-(1), WS-IV, NSW (nutrient sensitive]
Approval of 401 Water Quality Certification and Authorization Certificate per the Neuse River
Buffer Protection Rules (15A NCAC 2B .0233) with Additional Conditions
Dear Mr. Matthews
You have our approval, in accordance with the attached conditions and those listed below, to place fill
within or otherwise impact 139 feet of streams and 21,243 square feet (ft) of protected riparian buffers
for the purpose of a residential subdivision at the subject property, as described within your application
dated April 1, 2005 and received by the N.C. Division of Water Quality (DWQ) on April 1, 2005 and all
additional information submitted and received on April 22, 2005 and May 19, 2005. After reviewing
your application, we have decided that the impacts are covered by General Water Quality Certification
Number(s) 3402 (GC3402). The Certification(s) allows you to use Nationwide Permit(s) 39 when issued
by the US Army Corps of Engineers (USACE). This letter shall also act as your approved Authorization
Certificate for impacts to the protected riparian buffers per 15A NCAC 2B .0233. 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, and Non-discharge
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.
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:
Caro ina
401 Oversi9ht/ i10 Express AUnit .XXtuml( y
1650 Mail Service Center, , Raleigh, North Carolina 27699-1650 ??'a
2321 Crabtree Boulevard, Suite 250, Raleigh, North Carolina 27604
Phone: [phone]/ FAX [phone]/ Internet http://h2o.enr,state,ne.us/ncwettands
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Community Properties
Page 2 of 4
5/24/05
Amount Approved
(Units) Plan Location or Reference
I
Stream 139 feet Sheet 2 of 3, 3 of 3 5/18105
Buffers 21,243 (square ft. Sheet 2 of 3, 3 -of 3 5/18/05
2. 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 that they equal, or exceed, the requirements specified in the most
recent version 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.
3. Diffuse Flow
All stormwater shall be directed as diffuse flow at non-erosive velocities through the protected
stream buffers and will not re-concentrate before dischar'giing into the stream as identified within
15A NCAC 2B.0233(5).
In an effort to comply with the diffuse flow provision of the Buffer Rule (15A NCAC 02B
.0233(5)), you have provided the DWQ with level spreader designs dated April 1, 2005. The
DWQ believes that if implemented, as per these plans, diffuse flow will be achieved. However, if
diffuse flow as per 15A NCAC 02B .0233(5) is not achieved, then the DWQ shall be notified and
corrective actions to restore diffuse flow shall be taken if necessary to impede the formation of
erosion gullies. At no time shall stormwater from the proposed development be piped directly
through the buffer without prior DWQ written authorization.
4. Construction Stormwater Permit NCGO 10000
Upon the approval of an Erosion and Sedimentation Control Plan issued by the Division of Land
Resources (DLR) or a DLR delegated local erosion and sedimentation control program, an
NPDES General stormwater permit (NCGO10000) administered by DWQ is automatically issued
to the project. This General Permit allows stormwater to be discharged during land disturbing
construction activities as stipulated by conditions in the permit. If your project is covered by this
permit (applicable to construction projects that disturb one (1) or more acres], full compliance
with permit conditions including the sedimentation control plan, self-monitoring, record keeping
and reporting requirements are required. A copy of this permit and monitoring report forms may
be found at httn://li2o.enr.state.nc.trs/su/Forn:s Documents hhn.
5. 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
Community Properties
Page 3 of 4
5124105
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.
6. 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 15A NCAC 2B .0233 and GC 3402.
7. 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. ?.
8. 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.
9. 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/Wctlands 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 adj udicatory 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 150B of
the North Carolina General Statutes to the Office of Administrative Hearings, 6714 Mail Service Center,
Raleigh, N.C. 27699-6714. This certification and its conditions are final and binding unless you ask for a
hearing.
Any disputes over determinations regarding this Authorization Certificate (associated with the approved
buffer impacts) shall be referred in writing to the Director for a decision. The Director's decision is
subject to review as provided in Articles 3 and 4 of G.S. 150B.
I

Community Properties
Page 4 of 4
5/24/05
This letter completes the review of the Division of Water Quality under Section 401 of the Clean Water
Act and the Neuse riparian buffer protection rule as described within 15A NCAC 2B .0233. If you have
any questions, please telephone John Dorney or Cyndi Karoly at 919-733-1786.
Sincerely,
6r"V4
.? Alici W. Klimek, P.E.
AWK/dae
Enclosures: GC 3402
Certificate of Completion
cc: Sean Clark-S&EC, 11010 Raven Ridge Road, Raleigh, NC 27614
USACE Raleigh Regulatory Field Office
DWQ Raleigh Regional Office
DLR Raleigh Regional Office
File Copy
Central Files
Filename: 050559 VictoryChurchRd(Wake)401 +buffer