NOV-2009-SS-0005 Ver 1_Notice of Violation_20090204

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NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Governor Director
February 4, 2009
CERTIFIED MAIL #7006 2150 0000 3313 4711
RETURN RECEIPT REQUESTED
Julius Harrell
1915 Southview Road
Durham, NC 27703
Subject: NOTICE VIOLATION
NOV-2009-SS-0005
35.96864, -78.75320
Parcel ID: 194929
Removal of Best Usage
Failure to Secure a 401 Water Quality Certification
Neuse River Riparian Buffer Violation
Durham County
Dear Sir:
Dee Freeman
Secretary
On January 26, 2009, N.C. Division of Water Quality (DWQ) personnel Lauren Witherspoon from the Raleigh
Regional Office conducted a site inspection located at 1875 Southview Road in Durham County, North Carolina.
The stream on the site is Rocky Branch, Class WS-IV NSW waters, in the Neuse River Basin.
During the site inspection and file review, DWQ personnel made the following observations:
• Approximately 60 linear feet of a portion of Rocky Branch had been piped without securing a 401 Water
Quality Certification.
• Removal of vegetation and placement of fill (including earthen fill and asphalt) along this portion of the
stream channel resulted in approximately 3,000 square feet of Neuse Riparian Buffer impacts.
As a result of the site inspection and file review, the following violations, detailed below, are noted:
(I) Removal of Best Use
(II) Failure to Secure a 401 Water Quality Certification
(III) Neuse River Riparian Buffer Violation
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North Carolina Division of Water Quality Raleigh Regional Office Surface Water Protection Phone [phone] Customer Service
Internet: www.ncwaterquality.org 1628 Mail Service Center Raleigh, NC 27699-1628 FAX [phone]
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Item I. Removal of Best Use
The installation of the pipes in Rocky Branch represents a water quality standard violation defined as removal of
best usage.
Specifically, 15A NCAC 213 .0211 (2) requires that "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." Please see the Requested Response
section for details concerning how to achieve compliance at the site.
Item II. Failure to Secure a 401 Water Quality Certification
A file review confirmed that a Pre-construction Notification 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 submitted to DWQ is required prior to the stream and wetland impacts pursuant to 15A NCAC 2H
.0500.
Item III. Neuse River Riparian Buffer Violation
The Buffer Rules apply to riparian buffers directly adjacent to surface waters in the Neuse River Basin
(intermittent streams, perennial streams, lakes, ponds and estuaries). The protected buffer extends 50-feet
landward from the landward edge of coastal marsh (as identified by the Division of Coastal Management) or from
the top of bank of any feature shown as surface waters on either a paper copy of the soil survey maps prepared by
the Natural Resource Conservation Service of the U.S. Department of Agriculture or the most recent version of
the 1:24000 scale quadrangle topographic maps prepared by the U.S. Geological Survey.
The protected riparian buffer has two zones: Zone 1 consists of a vegetated area that is undisturbed except for
uses provided for in Item (6) of this Rule (Title 15A NCAC 02B .0233); Zone 2 shall consists of a stable,
vegetated area that is undisturbed except for activities and uses provided for in Item (6) of this Rule (Title 15A
NCAC 02B .0233). The purpose of these rules is to protect and preserve riparian buffers in the Neuse River
Basin to maintain the nutrient removal functions of these streamside areas necessary to protect surface waters.
15A NCAC 02B .0233 (4)
Zones 1 and 2 of the riparian buffer remain in vegetation that is undisturbed except for those uses provided for in
Item (6) of this Rule.
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 stream, wetland, and buffer restoration to assist you with the development
and submittal of the following:
1. An explanation of why these impacts occurred without prior authorization.
2. Documentation depicting all jurisdictional features (e.g. streams and buffers) on the property. A
description and quantification of the impacts to those jurisdictional features and your plans to avoid
further buffer and stream impacts on the site.
3. Please submit a 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. Stream Restoration Plan - Please explain how you plan to restore the pattern, profile and
dimension of the impacted stream channel by removing the pipes. The streambed must be
restored to the original profile and the stream banks must be stabilized.
b. This riparian buffer 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 a 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/reports/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.
c. Include a detailed implementation schedule with dates explaining when the buffer and
stream restoration will be accomplished. 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.
4. If you wish for any impacts to remain in place you must contact the US Army Corps of Engineers to
determine if a 404 permit is required for this activity and submit a 401 Water Quality Certification and
Buffer Authorization for DWQ's approval.
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].
j Since ely,
\,.. nny Smith
Raleigh Regi nal Supervisor
Surface Wa r Protection Section
cc: John Hennessy - NPS Assistance and Compliance Oversight Unit
RRO - Water Quality Files
Cyndi Karoly - 401 Wetlands Unit
City of Durham - Lindsay Darden