20061144 Ver 2_Notice of Violation_20090527

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North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Governor Director
Dee Freeman
Secretary
May 26, 2009
CERTIFIED MAIL #7008 1300 0000 1133 4625
RETURN RECEIPT REQUESTED
City of Raleigh
Attn: Dale Crisp
PO Box 590
Raleigh, NC 27602
Dear Mr. Crisp:
MAY Z y 2009
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Subject: NOTICE OF VIOLATIOI?T?DS?urpg
NOV-2009-PC-0383
DWQ #06-1144 Ver. 2
City of Raleigh Dempsey Benton Water Transmission Main
Construction Stormwater General Permit NCGO10000
401 Water Quality Certification Violations
35.7434°N 78.6411°W
Wake County
On April 7 and 22, 2009, Natalie Landry from the Raleigh Regional Office of the Division of Water Quality
(DWQ) conducted a site inspection for the tract/project known as the Dempsey Benton Water Transmission Main,
near Garner, in Wake County, North Carolina. Two of the streams on the site are unnamed tributaries to Wildcat
Branch, Class C, Nutrient Sensitive Waters (NSW), in the Neuse River Basin.
Accordingly, the following observations were noted during the DWQ file review and inspection.
A stormwater general permit (NCGO10000) is issued upon the approval of an Erosion and Sedimentation Control
Plan. This permit applies to projects that receive a Division of Land Resources Erosion and Sedimentation
Control Plan for land disturbance of 1 acre or greater. Specifically, the general permit (NCGO10000) authorizes
the discharge of stormwater under the National Pollutant Discharge Elimination System in accordance with Title
15A North Carolina Administrative Code 2H.0100.
Ms. Linda Diebolt of ARCADIS submitted a Pre-Construction Notification (PCN) on or about February 12, 2008
on behalf of the property owner, the City of Raleigh. The impacts were requested under U.S. Army Corps of
Engineers Nationwide Permit 12 and the corresponding General Water Quality Certification Number 3699
(GC3699). DWQ issued an approval for the impacts on or about March 19, 2008, DWQ Project# 06-1144 Ver. 2.
The approved impacts include the placement of fill within or otherwise impact 0.48 acres of 404/wetland
(temporary impacts), 182 linear feet of perennial stream (22 linear feet permanent impacts, 160 linear feet
temporary impacts), 142 linear feet of intermittent stream (22 linear feet of permanent impacts, 120 linear feet
temporary impacts), and 23,958 square feet of Zone 1 Neuse River basin protected riparian buffers, and 16,117
square feet of Zone 2 Neuse River basin protected riparian buffers to construct the proposed water transmission
main at the site.
DWQ received a copy of the March 26, 2009 Sedimentation Inspection Report from the Land Quality Section that
cited the following violations at the Dempsey Benton Water Transmission Main: Failure to follow ap???rr,Qved plan,
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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]
Dempsey Benton Water Transmission Line
May 26, 2009
Page 2
insufficient measures to retain sediment on site, failure to take all reasonable measures, inadequate buffer zone
and failure to maintain erosion control measures.
DWQ observations during the site inspections show that at Stream Impact 523, fill is in the perennial stream for
approximately 25 linear feet. The approved authorized impact at S23 is 40 linear feet of temporary excavation.
DWQ observed excavation, bank destabilization and erosion in approximately 75 linear feet of stream at Stream
Impact S21. The approved authorized impact at S21 is 40 linear feet of temporary excavation.
As a result of the site inspection and file review, the following violations, described below, are noted:
Item I. Construction Stormwater General Permit (NCGO10000) Condition Violation
Part I, Section A. No. 2
The permittee shall implement the plan, which has been approved by the approval authority. The approved plan
is considered a requirement or condition of this general permit. Deviation from the approved plan, or approved
amendment to the plan, shall constitute a violation of the terms and conditions of this general permit except that
deviation from the approved plan will be allowed (1) to correct an emergency situation where sediments are being
discharged off site or (2) when minor modifications have been made for the purpose of improving the
performance of the erosion and sedimentation control measures and notification of the minor modifications has
been made to the Division of Land Resources (or approved local program). Such a deviation from the approved
plan shall be noted on the approved plan maintained on the job site. During active construction, a copy of the
approved plan shall be maintained on the site.
Part II, Section C. No. 1
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.
Item II. 401 WOC Condition Violations
The approval of the 401 Water Quality Certification and Neuse Buffer Authorization with Additional Conditions
letter specifies that the activities must follow the conditions listed in the General Water Quality Certification, as
well as additional conditions listed in the letter.
General Water Quality Certification #06-1144, Ver. 2, Additional Condition 1 states the following:
"Impacts Approved. The following impacts are hereby approved as long as all of the other specific and general
conditions of the Certification (or Isolated Wetland Permit) are met. No other impacts are approved including
incidental impacts:"
Photo 2. Stream Impact S21 excavated stream
Photo 1. Stream Impact S23 fill in stream
Dempsey Benton Water Transmission Line
May 26, 2009
Page 3
Type of Impact Amount Approved (Units) Plan Location or Reference
404/Wetland 0.48 (acres) - temporary PCN page 10 of 16
Stream - perennial 182 [(linear feet) 22 linear feet PCN page 10 of 16
permanent impacts, 160 linear
feet temporary impacts]
Stream - 142 [(linear feet) 22 linear feet PCN page 10 of 16
intermittent permanent impacts, 120 linear
feet temporary impacts]
Buffer -Zone 1 23,958 (square ft.) PCN page 14 of 16
Buffer - Zone 2 16,117 (square ft.) PCN page 14 of 16
General Water Quality Certification #06-1144, Ver. 2, Additional Condition 2 states the following:
"No Waste, Spoil, Solids, or Fill of Any Kind. 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."
Water Quality Certification No. 3699, Condition 6 states:
"Work in the Dry. All work in or adjacent to stream waters shall be conducted in a dry work area. Approved best
management practices from the most current version of the NC Sediment and Erosion Control Manual, or the NC
DOT Construction and Maintenance Activities Manual, such as sandbags, rock berms, cofferdams, and other
diversion structures shall be used to minimize excavation in flowing water."
Water Quality Certification No. 3699, Condition 19 states:
"The construction corridor (including access roads and stockpiling of materials) is limited to 40 feet (12.2 meters)
in width in wetlands and across stream channels and must be minimized to the maximum extent practicable."
Requested Response
You are directed to respond to this letter in writing to DWQ at the address provided below within 30 days of
receipt.
1. Explain in your response when you anticipate being in full compliance with your Erosion and
Sedimentation Control Plan.
2. Please provide documentation (including a detailed site map/survey) depicting all jurisdictional water
features (e.g. streams and buffers) on the site. This documentation should describe and quantify the
impacts to those jurisdictional features, and should include plans to avoid further stream, buffer and
wetland impacts on the sites.
3. Stream Restoration Plan - Please explain how you plan to restore the pattern, profile and dimension of
the impacted stream channels. The streambed must be restored to the original profile, the stream banks
must be stabilized and any fill material must be removed from the stream channel and riparian zone.
Replanting of the riparian buffer zone is required.
4. 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.
Dempsey Benton Water Transmission Line
May 26, 2009
Page 4
5. Please indicate in your response a detailed schedule with dates explaining when the restoration will be
accomplished, and if you plan to seek a permit for the permittable impacts, when an application will be
submitted.
Submit Requested Items To:
Natalie Landry
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 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
Natalie Landry at [phone].
JS y,
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Danny S/aterProtection RegionaSurface Section
cc: Raleigh RO - Water Quality
Raleigh RO-Land Quality (Karyn Pageau)
John Hennessy, NPS Assistance and Compliance Oversight Unit
Ian McMillan, 401 Wetlands Permitting Unit, 1650 MSC, Raleigh, NC 27604
USACE Raleigh Regulatory Field Office