20051967 Ver 1_Notice of Violation_20090506

A j -A a,T?7 ID Glob
P&DENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins Dee Freeman
Governor Director Secretary
May 6, 2009
CERTIFIED MAIL #7008 1300 0000 1133 4243
RETURN RECEIPT REQUESTED
Town of Hillsborough
Attn: Eric Peterson
P.O. Box 429
Hillsborough, NC 27278
Subject: NOTICE OF VIOLATION
NOV-2009-SS-0017
DWQ Project # 05-1967
Waterstone Drive
36.0368°N, -79.0858°W
401 Water Quality Certification Condition Violations
Removal of Best Usage
Neuse River Riparian Buffer Violation
Orange County
Dear Mr. Peterson:
On February 24, 2009, Lauren Witherspoon from the Raleigh Regional Office of the Division of Water Quality
(DWQ) conducted a site inspection for the tract/project known as Waterstone Drive located between Old NC 86
and NC 86 in Hillsborough, Orange County, North Carolina. The streams on the site are unnamed tributaries
(UT) to Cates Creek, Class C NSW waters in the Neuse River Basin.
Accordingly, the following observations were noted during the DWQ file review and site inspection:
Soil & Environmental Consultants, PA submitted a Pre-Construction Notification (PCN) dated October 26, 2005
and additional information received by DWQ on February 14, 2006 on the Town of Hillsborough. The impacts
were requested under U.S. Army Corps of Engineers Nationwide Permit 14 and the corresponding General Water
Quality Certification Number 3404 (GC3404). DWQ issued an approval for the impacts dated February 17, 2006
(DWQ Project # 05-1967). The 401 Water Quality Certification (DWQProject# 05-1967) authorizes to place fill
or otherwise impact 0.0974acres of wetland, 660 linear feet of streams, and 60,915 square feet of protected
riparian buffers.
Impact 1:
¦ On the upstream side of the culvert, the stream appears to have been impacted more than what was
approved on the plan.
Impact 2:
¦ Culvert does not appear to be aligned per the 401 WQC application;
¦ The pipe is perched on both the upstream and downstream sides of the crossing.
One
NorthCaroll//ina
[?
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]
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
Page 2 of 2
Waterstone Drive
May 6, 2009
Impact 3:
¦ The stream has been impacted approximately 20 LF upstream of the crossing;
¦ The culvert is perched approximately 6 inches on the upstream side of crossing;
¦ Downstream of the crossing, the elevation of the stream has been altered impacting approximately 40 LF
of stream channel. This is functioning as a pool and not a dissipator pad.
¦ A rip-rap dissipator pad is located in the buffer in the southeastern quadrant of the crossing impacting
approximately 700 square feet of Neuse River Riparian Buffer. A scour pool and level spreader is also
located in the buffer and diffuse flow is not being maintained through the buffer at this location
¦ Diffuse flow is not being maintained through the buffer in the northwestern quadrant of the crossing.
Impact 4:
¦ The stream has been impacted approximately 28 LF downstream of the crossing and the dissipator pad.
¦ Diffuse flow is not being maintained through the buffer where the scour hole and level spreader is located
in the southwestern quadrant of the crossing.
Impact 3 and 4:
¦ The Neuse River Riparian Buffer has been cleared and graded beyond the area approved in the 401 WQC.
As a result of the site inspection and file review, the following violations, described below, are noted:
1. 401 Water Quality Certification Condition Violations
II. Removal of Best Usage
III. Neuse River Basin Riparian Buffer Violation
Item I 401 Water Quality Certification Condition Violations
The 401 Water Quality Certification DWQ Project# 05-1967 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 Waterstone Drive:
Condition 1: Impacts Approved
The following impacts are hereby approved as long as all of the other specific general conditions of this
Certification are met. No other impacts are approved including incidental impacts.
404 Wetland
Stream
Buffers - Zone 1
Buffers - Zone 2
Amount Approved (Units) Plan Location or Reference
0.0974 (acres) PCN page 4 of 9
660 linear feet PCN page 4 of 9
36,445 (square feet) PCN age 8 of 9
24,470 (square feet) PCN page 8 of 9
Condition 7: Diffuse Flow
All constructed stormwater conveyance outlets shall be directed and maintained as diffuse flow at non-erosive
velocities through the protected stream buffers such that it will not re-concentrate before discharging into a stream
as identified within 15A NCAC 2B .0233 (5).
Page 4 of 4
Waterstone Drive
May 6, 2009
Neuse Buffer - Diffuse Flow - 15A NCAC 02B.0233 (5)
Diffuse flow of runoff shall be maintained in the riparian buffer by dispersing concentrated flow and
reestablishing vegetation.
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 buffer restoration and
permit preparation to assist you with the development and submittal of the following:
1. Documentation depicting all jurisdictional features (e.g. streams, buffers, and wetlands). A description
and quantification of all the impacts to those jurisdictional features and your plans to avoid further stream
and buffer impacts on the site.
2. Explain in your response how and when you anticipate being in full compliance with the 401 WQC.
3. Stream Restoration Plan - Please explain how you plan to restore the pattern, profile and dimension of the
impacted streams channels that were not approved impacts in the 401 WQC. The streambed must be
restored to the original profile, the stream banks must be stabilized, and any fill material must be removed
from the riparian zone. Replanting of the riparian zone will be required.
4. Riparian Zone planting - Please submit a Restoration Plan to this office for review and approval. This
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. 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: hLtp://www.nceep.net/news/rgports/buffers.pd . 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.
5. Please explain how you are going to provide diffuse flow through the buffer at the above referenced
locations. In addition, please explain how you plan to remove the rip rap from the buffer and how you are
going to stabilize the area.
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
Page 3 of 3
Waterstone Drive
May 6, 2009
Condition 8: 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 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 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.
Item II. Removal of Best Usage
The impacts to streams were not authorized in the 401 WQC is a violation of 15A NCAC 02B .0211 (2) which
reads as follows:
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 III. Neuse River Basin 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.
Page 5 of 5
Waterstone Drive
May 6, 2009
violation. Should you have any questions regarding these matters, please contact Lauren Witherspoon at (919)
791-4200.
me rely,
Danny Sm?upervisor
Regional Surface Water Protection Section
cc: DWQ RRO file copy
John Hennessy, NPS Assistance and Compliance Oversight Unit
lys 401"0VtqtI9*&I* s Review,Pemuing Unit
Wesley Poole - Orange County, P.O. Box 8181, Hillsborough; NC 27278