NOV-2009-PC-0137 Ver 1_Notice of Violation_20090218

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North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves.Perdue Coleen H. Sullins Dee Freeman
Governor Director Secretary
February 18, 2009
CERTIFIED MAIL #7006 2150 0000 3313 4780
RETURN RECEIPT REOUESTED
New Vester Missionary Baptist Church
Attn: Reverend Jeffrey Simms
8304 Byrd Road
Sims, NC 27880
CERTIFIED MAIL #7006 2150 0000 3313 4797
RETURN RECEIPT REOUESTED
Pearl B. Hinnant
2015 Forest Hills Road
Wilson, NC 27893
Subject: NOTICE VIOLATION
NOV-2009-PC-0137
35.72448, -78.12341
PINS: 2762-11-2042 & 2762-00-1264
Wetlands Standards Violation
Failure to Secure a 401 Water Quality Certification
Neuse River Riparian Buffer Violation
Removal of Best Usage
Failure to Secure Stormwater General Permit NCGO10000
Wilson County
Dear Sir or Madam:
On January 30, 2009, N.C. Division of Water Quality (DWQ) personnel Lauren Witherspoon and N.C. Division
of Land Resources (DLR) personnel Thad Valentine from the Raleigh Regional Office conducted a site inspection
located north of the intersection of Byrd Road and NC 581 in Sims in Wilson County, North Carolina. The
stream on the site is an unnamed tributary (UT) to Contentnea Creek, Class WS-V NSW waters, in the Neuse
River Basin.
During the site inspection and file review, DWQ personnel made the following observations:
• Grading, grubbing, and the construction of a pond in a wetland resulted in 0.1 acre of jurisdictional
impacts. Some of the impacts have occurred within the NCDOT right-of-way.
• The stream on the site is depicted on the Soil Survey of Wilson County, NC and was determined by DWQ
to be subject to the Neuse River Riparian Buffer Rules on January 30, 2009.
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NJprt hCarolliina
North Carolina Division of Water ouality Raleigh Regional Office Surface Water Protection Phone [phone] turQ[l?
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Internet: www.ncwaterquality.org 1628 Mail Service Center Raleigh, NC 27699-1628 FAX [phone]-623 6 48rv'ce
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Page 2 of 2
Removal of vegetation and grading along approximately 50 linear feet of the UT to Contentnea Creek
resulted in approximately 2,500 square feet of Neuse Riparian Buffer impacts.
Water had been diverted from the stream (via a ditch) into a recently constructed pond removing
hydrology in approximately 200 linear feet of the UT to Contentnea Creek downstream of the pond.
Approximately 1 acre of land was disturbed on the site. Thad Valentine (DLR) confirmed that there is no
approved Erosion and Sedimentation Control Plan for the subject site. A plan is required when 1 or more
acres of land are disturbed. A construction stormwater permit is issued upon the approval of an Erosion
and Sedimentation Control Plan. Therefore, a construction stormwater permit is also required for this
activity.
As a result of the site inspection and file review, the following violations, detailed below, are noted:
(I) Wetlands Standards Violation
(I1) Failure to Secure a 401 Water Quality Certification
(II11) Neuse River Riparian Buffer Violation
(IV) Removal of Best Use
(V) Failure to Secure Stormwater General Permit NCGO10000
Item I. Wetlands Standards Violation
15A NCAC 02B .0231 (b)
(1) Liquids, fill or other solids or dissolved gases may not be present in amounts which may cause adverse
impacts on existing wetland uses;
(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. 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 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 I 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.
Page 3 of 3
15A NCAC 02B .0233 (4)
Zones I and 2 of the riparian buffer remain in vegetation that is undisturbed except for those uses provided for in
Item (6) of this Rule.
Item IV. Removal of Best Use
The diversion of water from the stream on the site 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 V. Failure to Secure Stormwater General Permit NCGO10000
The site visit and a DLR file review confirmed that Sedimentation and Erosion Control plan approval has not
been applied for or secured for the land disturbing activity; therefore, coverage under the NPDES General Permit
to discharge stormwater from land disturbing activities has not been secured in accordance with the provision of
North Carolina General Statute 143-215. L This General Permit is applicable to point source discharges from
construction activities disturbing five acres of land prior to March 10, 2003. As of March 10, 2003, this permit
will be applicable to point source discharges of stormwater from construction activities disturbing one or more
acres of land. The submission of a proposed Erosion and Sedimentation Control Plan to the Division of Land
Resources or delegated local program shall be considered to take the place of a Notice of Intent for coverage
under this General Permit for those projects requiring this Permit coverage. Coverage under this General Permit
shall become effective upon issuance of an approval for the Erosion and Sedimentation Control Plan by the Land
Quality Section of the Division of Land Resources or delegated local program. Prior to the commencement of
construction and land disturbing activities approval of the Erosion and Sedimentation Control Plan shall be
obtained.
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, wetlands, and buffers) on the property.
A description and quantification of the impacts to those jurisdictional features and your plans to avoid
further buffer, wetland, 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. Wetland Restoration Plan - Please explain when you are going to remove the fill in the wetland
that is associated with the pond. The area should be stabilized and replanted. 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.
Page 4 of 4
b. Stream Restoration Plan - Please explain how you plan to restore the hydrology in the stream.
This should include removing the dam in the stream where the water has been diverted via a ditch
into the pond. This area should be stabilized to prevent further damage to the stream.
c. 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/bu rspdf). 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.
d. Please explain when you will submit an Erosion and Sedimentation Control Plan.
e. Include a detailed implementation schedule with dates explaining when the buffer, wetland,
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. You should contact the Thad Valentine (DLR) at [phone] to determine if you are required to
submit an Erosion and Sedimentation Control Plan. In addition, you should contact Byron Bateman
(NCDOT) [phone] to determine how you need resolve the issues of disturbance in the NCDOT
right-of-way.
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].
iS ncerely, /
tfiiy'S lit /J
Raleigh R; ional Supervisor
Surface Water Protection Section
cc: John Hennessy - NPS Assistance and Compliance Oversight Unit
RRO - Water Quality Files
Cyndi Karoly - 401 Wetlands Unit
Thad Valentine - DLR RRO