NOV-2008-OP-0052 Ver 1_Notice of Violation_20081211

?F W ATF9 Michael F. Easley, Governor
Q William G. Ross Jr., Secretary
p North Carolina Department of Environment and Natural Resources
Coleen H. Sullins, Director
p Division of Water Quality
December 11, 2008
CERT MAIL #7008-1140-0002-9563-1939 CERT MAIL #7008-1140-0002-9563-1946
RETURN RECEIPT REQUESTED RETURN RECEIPT REQUESTED
Carter Mebane III Christopher Stephens
WCM Enterprises, LLC Southwood Developers, Inc.
305 Colonial Drive PO Box 4127
Wilmington, NC 28403 Wilmington, NC 28406
Subject: CONTINUING NOTICE OF VIOLATION
WITH INTENT TO ENFORCE
NOV-2008-OP-0052
Carter Mebane III and Christopher Stephens
Windsor Park Phase I & Phase II
Brunswick County
Dear Mr. Mebane & Mr. Stephens:
On November 13, 2008, Mrs. Aisha Lau, Mr. David Cox, and Mr. Chad Coburn from the
Wilmington Regional Office of the Division of Water Quality met with David Syster and
David Scibetta of Southern Environmental Group, Inc., Kimberly Garvey of the U.S.
Army Corps of Engineers, and Gary Beecher of the Division of Land Quality to conduct
a site inspection for the tract/project known as Windsor Park, located off of Enterprise
Drive, Leland, North Carolina. The site visit revealed that the subject property has the
following violations as detailed below:
(I) Failure to Secure a 401 Water Quality Certification
(II) Wetlands Standards
(III) Turbidity Standards
(IV) Removal of Best Usage
(V) Construction Stormwater General Permit NCG010000
(VI) Failure to Obtain a State Stormwater Permit.
1. Failure to Secure a 401 Water Quality Certification - DWQ site visits and file
review confirmed that impacts to wetlands and streams have occurred without a 404
Permit from the U.S. Army Corps of Engineers. A file review indicates that the U.S.
Army Corps of Engineers (COE) has not authorized use of a 404 Permit for this activity
nor has notification been provided to the COE for this activity. The file review confirmed
that a Pre-construction Notification application has not been received by the Division of
Water Quality for this project and that a 401 Water Quality Certification has not been
issued. A Pre-Construction Notification application is required to be submitted to DWQ
prior to the above-mentioned impacts pursuant to 15A NCAC 2H .0500.
North Carolina Division of Water Quality 127 Cardinal Drive Extension Phone [phone] Customer Servicel-877-623-6748
Wilmington Regional Office Wilmington, NC 28405-3845 FAX [phone] Internet: h2o.enr.state.nc.us OnehCarO
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
atum,
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Windsor Park
Brunswick County
II. Wetlands Standards - Wetlands have been impacted by excavation and fill activities
on this site. This is a violation of 15A NCAC 02B.0231 (b)(1) & (5) which states,
"Liquids, fill or other solids or dissolved gases may not be present in amounts which may
cause adverse impacts on existing wetland uses; 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 III. Turbidity Standards - Analysis of several water samples taken for turbidity
indicated multiple readings above the stream standard of 50 NTU's in the un-named
tributary of Rowel Branch. This is in violation of 15A NCAC 02B .0211 (3) k, which
states, "The turbidity in the receiving water shall not exceed 50 Nephelometric Turbidity
Units (NTU's).
Item IV. Removal of Best Usage - The site visits and file review provided evidence to
suggest that two un-named tributaries to Rowel Branch have been filled. This is in
violation of 15A NCAC 02B .0211 (2), which states, "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 shall be considered to be violating a water
quality standard."
Item V. Construction Stormwater General Permit NCGO10000 - The site visit and
file review revealed that the subject project has an approved Erosion and Sedimentation
Control Plan and is covered by Stormwater General Permit NCGO10000. The Division
of Land Resources issued a Notice of Violation for Phases I & II of Windsor Park on
October 1, 2008. This NOV identified a violation for failure to follow the approved
Erosion & Sedimentation Control Plan, which is a violation of the NCGO10000 general
permit.
Item VI. Failure to Obtain a State Stormwater Permit- The site visit and file review
revealed that the construction of impervious surfaces have occurred. This project is in
violation of 15A NCAC 2H. 1000 and NCGS 143-215.6A(2) required by NCGS 143-
215.1. On July 21, 2008, this office received a request for a permit modification. A
subsequent site visit revealed that areas labeled as drainage area 4 and 5 had partially
been constructed without approval from this office.
Required Response
Accordingly, you are directed to respond to this letter in writing within 30 calendar days
of receipt of this Notice. Your response should be sent to both this office at the letterhead
address and to the Wetlands and Stormwater Branch, NPS Assistance and Compliance
Oversight Unit, attention John Hennessy, 1617 Mail Service Center, Raleigh, NC 27699-
1617. Your response should include the following:
1) Explain when construction (excavation, grubbing, and clearing) began at the site.
Page 3 of 4
Windsor Park
Brunswick County
2) An explanation of why the impacts to the two un-named tributaries to Rowel
Branch and the unauthorized wetland impacts occurred without obtaining the
necessary permits.
3) Submit a Wetlands & Stream Restoration Plan to this office for review and
approval. You are encouraged to secure a consultant to assist you with your plan
development, permit, certification and authorization necessary to achieve
compliance. This plan should include the following:
a) The restoration plan must detail how the earthen fill material placed in
wetlands and streams will be removed and how any excavated wetlands
will be restored. This information must be clearly depicted on a map that
you provide as a part of this response. Provide a map that exactly details
all juri sdictional waters on the tract, the areas of wetlands and streams that
were impacted, and the length and location of jurisdictional ditches.
b) Any fill placed in wetlands and streams must be removed*. Please
thoroughly discuss your plans for backfilling all ditches that are in or
adjacent to wetlands on the site. Also, please address the measures that
will be used for temporary stabilization/ sediment control while this work
is under way. Please provide a schedule with dates by which this work
will be completed. *Note: Fill material not used for backfilling of ditches
must be removed from wetlands, placed on high ground and stabilized.
This restoration effort must also be addressed in a manner that is in full
compliance with the Division of Land Resources and the US Army Corps
of Engineers;
c) Satisfactory wetland restoration requires the replanting of at least 2 native
hardwood wetland species and the maintenance of a stem
density/survivorship of at least 320 trees per acre at the end of 3 years.
Also, this plan will require an herbaceous wetland seed mix for all
wetlands that are disturbed. Streambeds must be restored to the original
profile and the stream banks must be stabilized where necessary.
d) Permit Application - If you wish for any impacts to remain in place., you
must contact the U.S. Army Corps of Engineers (USACOE) for
information on the type(s) of permit required. Depending on the type of
permits USACOE requires, application for a 401 Water Quality
Certification to DWQ will also be required. Please note that sediment
impacts to wetlands cannot be permitted.
4) Indicate in your response a schedule with dates detailing when the restoration will
be accomplished. This schedule should include a three-year monitoring plan to
ensure that the wetlands and streams are restored.
5) It is required that you contact the Division of Land Resources and the U.S. Army
Corps of Engineers. These contacts are necessary to ensure that your restoration
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Windsor Park
Brunswick County
6) efforts are in compliance with the Sedimentation Pollution Control Act and
Section 404 of the Clean Water Act.
7) Submit to this office a complete State Stormwater Management Permit
Application for Windsor Park Subdivision. A preliminary review of the
application submitted on July 21, 2008 was considered incomplete. A complete
submittal must include the following information to continue the stormwater
review:
a. Delineate all wetlands on site, disturbed or undisturbed, or note on the
plans that none exist.
b. All BUA reported on the application, plans, supplements, and deed
restrictions must agree with one another. Correct and resubmit the affected
documents accordingly.
C. Provide an engineer's certification and supporting "as built" conditions for
the permitted ponds that currently have impervious surfaces draining to
them. Ponds #I and #3 are not built per the approved plans.
d. Provide a copy of the recorded deed restrictions for Windsor Park
Subdivision.
This additional information (for the State Stormwater application) must be
received by January 5, 2009 in order to avoid the return of this project.
These violations, as detailed above, are required to be immediately and
properly resolved and 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 Chad Coburn or Jean Conway or David Cox at [phone].
Sincerely,

Rick Shiver
Surface Water Protection Section
Wilmington Regional Supervisor
cc: John Hennessey - NPS-ACO Unit
Cyndi Karoly - Wetlands 401 Unit
Kim Garvey - USACE Wilmington, P.O.Box 1890, Wilmington, NC
28402
Central Files
WiRO files