20061416 Ver 1_Notice of Violation_20081209

F WATF
Q 9 Michael F. Easley, Governor
O? QG William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources
--i Coleen H. Sullins, Director
Division of Water Quality
December 9, 2008
CERTIFIED MAIL #7006 2150 0000 3313 4643
RETURN RECEIPT REOUESTED
Over Jordan, LLC
Attn: Jerry Radman
201 Shannon Oaks Circle, Suite 201
Cary, NC 27511
CERTIFIED MAIL #7006 2150 0000 3313 4636
RETURN RECEIPT REQUESTED
MacGregor Development Company
Attn: Jerry Radman
201 Shannon Oaks Circle, Suite 201
Cary, NC 27511
Subject: NOTICE OF CONTINUING VIOLATION
NOTICE OF INTENT TO ENFORCE
NOTICE OF INTENT TO FILE FOR INJUNCITIVE RELIEF
NOV-2008-PC-0833
DWQ Project # 06-1416
Booth Mountain/Westfall
35.8193°N, -79.0587°W
Wetlands Standards
Other Waste (in-stream sediment)
401 Water Quality Certification Condition Violations
Stormwater General Permit (NCG010000) Condition
Chatham County
Dear Mr. Radman:
On November 17, 2008, Lauren Witherspoon from the Raleigh Regional Office of the Division of Water
Quality (DWQ) conducted a site inspection for the tract/project known as Booth Mountain/Westfall
between Lystra Church Road (SR 1721) and Jack Bennett Road (SR 1717) in Chatham County, North
Carolina. The streams on the site are unnamed tributaries (UT) to Herndon Creek and Herndon Creek,
Class WS-1V NSW waters in the Cape Fear River Basin.
Accordingly, the following observations were noted during the DWQ file review:
Soil and Environmental Consultants, P.A. submitted a Pre-Construction Notification (PCN) dated August
31, 2006 and requested additional information dated October 3, 2006 on behalf of MacGregor
Development Company. The impacts were requested under U.S. Army Corps of Engineers Nationwide
Permits 12 and 39 and the corresponding General Water Quality Certifications (GC3374 and GC3402).
DWQ issued an approval for the impacts dated October 20, 2006, DWQ Project # 06-1416.
The 401 Water Quality Certification DWQ Project# 06-1416 authorizes to place fill or otherwise impact
0.249 acres of temporary/permanent wetland and 343 linear feet of temporary/permanent stream.
DWQ observations during the November 17, 2008 site inspection and file review include:
¦ Approximately 200 square feet of sediment deposition measuring 3 to 6 inches in depth in the
wetland closest to Spine Road in the sewer easement (Crossing 2);
• At Crossing 2 the wetland is grubbed in areas and is unstable; The stream banks of Herndon
Creek are also unstable;
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
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Booth Mountain/Westfall
Chatham County
¦ The 401 WQC authorized impacts to wetlands and Herndon Creek associated with a 23-foot wide
sewer easement. However, the sewer easement is 40 feet wide and has impacted additional
wetland area and 17 linear feet of stream channel beyond what was authorized;
¦ Approximately 20 linear feet of sediment deposition at Crossing 3 downstream of the culvert;
¦ The culvert at Crossing 3 is perched by at least 6 inches above the substrate of the stream;
¦ Approximately 30 linear feet of stream channel above the culvert at Crossing 3 is unstable and
has formed an approximately 12 inch head cut;
¦ A restoration plan resolving impacts to the stream and wetland noted in NOV-2008-PC-0176 at
Crossing 1 B was approved in September 2008 but no work has been conducted to restore the
jurisdictional features at this location;
¦ The impacts to streams and wetlands noted in NOV-2008-PC-0643 have not been addressed.
A stormwater general permit is issued upon the approval of an Erosion and Sedimentation Control Plan.
This permit applies to projects that receive a Division of Land Resources (or local delegated program)
Erosion and Sedimentation Control Plan for land disturbance of 1 acre or greater. Specifically, the
stormwater general permit authorizes the discharge of stormwater under the National Pollutant Discharge
Elimination System in accordance with Title 15A North Carolina Administrative Code 2H.0100.
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 found in the inspection box;
¦ A rain gauge was found on the subject site containing approximately 1.5 inches of rainfall with
the last rainfall occurring November 15, 2008;
¦ Erosion and sedimentation control facility monitoring records were found on site and reviewed by
DWQ personnel at the time of the inspection. The most recent inspection report found on site
was dated September 17, 2008.
Chatham County Public Works issued a Notice of Civil Penalty Assessment for Violation of the Chatham
County Erosion and Sediment Control Ordinance dated October 1, 2008. This Notice of Civil Penalty
covered seven (7) Notice of Violations/Continuing Notice of Violations over 16 months that included the
following violations: Insufficient Measures to Retain Sediment Onsite, Failure to Provide Adequate
Groundcover, and Failure to Provide Additional Measures.
As a result of the site inspection and file review, the following violations, described below, are noted:
1. Wetlands Standards
II. Other Waste (in-stream sediment)
III. 401 Water Quality Certification Condition Violation
IV. Stormwater General Permit (NCGO10000) Condition Violation
Item I. Wetlands Standards
The observed sediment deposition in wetlands is in violation of 15A NCAC 02B .0231 (b) which reads as
follows:
(1) Liquids, fill or other solids or dissolved gases may not be present in amounts which may cause
adverse impacts on existing wetland uses;
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Booth Mountain/Westfall
Chatham County
(5) Hydrological conditions necessary to support the biological and physical characteristics naturally
present in wetlands shall be protected to prevent adverse impacts on:
(C) The chemical, nutrient and dissolved oxygen regime of the wetland;
(D) The movement of aquatic fauna;
(F) Water levels or elevations.
Item II. 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.
Item III. 401 Water Quality Certification Condition Violations
The 401 Water Quality Certification DWQ Project# 06-1416 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, the following violations of
conditions (see attached 401 WQC) have occurred on the Booth Mountain/Westfall property:
Additional Condition 2:
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.
Additional Condition 3:
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.
Additional Condition 6:
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 location 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 are 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 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.
Placement of culverts and other structures in waters, streams, and wetlands must be placed below the
elevation of the streambed by one foot for all culverts with a diameter greater that 48 inches, and 20
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Booth Mountain/Westfall
Chatham County
percent of the culvert diameter for culverts having a diameter less than 48 inches, to allow low flow
passage of water and aquatic life. Design and placement of culverts and other structures including
temporary erosion control measures shall not be conducted in a manner that may result in disequilibrium
of wetlands or streambeds or banks, adjacent to or upstream and down stream of the above structures.
This applicant is required to provide evidence that the equilibrium shall be maintained if requested in
writing by DWQ.
Condition 17 (see WQC #3374):
This General Certification does not authorize any permanent change in pre-construction elevation
contours in waters or wetlands or stream dimension, pattern or profile. The permittee will have a specific
plan for restoring wetland contours. Any excess material will be removed to a high ground disposal area.
Item IV. Stormwater General Permit (NCGO10000) Condition Violation
General Permit NCGO 10000
Part 1, Section B. No. 1, which reads, "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 indictors 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 C. No. 1, which reads, "The permittee shall at all times operate and maintain all facilities
and systems of treatment and control (and related appurtenances) which are installed or used by the
permittee to achieve compliance with the conditions of this general permit."
Requested Response
You are directed 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 and wetlands). A description
and quantification of the impacts to those jurisdictional features and your plans to avoid further
stream and wetland impacts on the site.
2. Stream and Wetland Restoration Plan (sediment impacts) - Sediment impacts to the stream and
wetland must be removed. As a part of this plan, you should provide the amount (depth) of
material that has been deposited in the stream and wetland. 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 wetland and the stream. The sediment
should be removed from the stream and the wetland, taken to high ground and stabilized. Also,
the plan must address the measures that will be used for temporary stabilization/sediment control
while this work is under way.
3. Wetland Restoration Plan - Please explain how you are going to stabilize the wetland at Crossing
2 and when you will return it back to its original grade.
4. Stream Restoration Plan - Please explain how you plan to stabilize the stream banks of Herndon
Creek at Crossing 2. Please explain how you plan to remediate the perched culvert impacting the
stream at Crossing 3 (i.e. culvert replacement or stream restoration). Please explain how you plan
to stabilize and restore the stream upstream of Crossing 3. Please explain how you plan to restore
the pattern, profile and dimension of the impacted stream channel. The streambed must be
restored to the original profile and the stream banks must be stabilized. Please provide the as
builts for Crossing 3.
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Chatham County
5. Explain in your response how and when you anticipate being in full compliance with the 401
WQC.
6. Explain in your response how and when you anticipate being in full compliance with the
stormwater general permit and your Erosion and Sedimentation Control Plan.
7. Provide all rain gauge data collected to include the past four months of monitoring through to the
date of your written response to this letter. If you do not have data, explain why.
8. Provide inspection records to include the past four months of monitoring records through to the
date of your written response to this letter. If you do not have data, explain why.
9. 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 stream and wetland
restoration will be accomplished. This schedule should include a three-year monitoring plan to
ensure that the stream and wetland 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.
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 is considering forwarding a civil penalty
recommendation for assessment consideration and proceedings with injunctive relief procedures through
the Attorneys Generals Office. 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].
$`iinc)erely,
Danny S th
Regional Supervisor
Surface Water Protection Section
cc: Raleigh RO - Water Quality
John Hennessy, NPS Assistance and Compliance Oversight Unit
Monte Mathews, USACOE, 3331 Heritage Trade Drive, Stel05, Wake Forest, NC 27587
y di Karoly, 401 Oversight/Express Review Permitting Unit
Jim Willis, Chatham County, PO Box 130, Pittsboro, NC 27312