20040331 Ver 1_Notice of Violation_20090527

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NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins
Govern or Director
May 26, 2009
CERTIFIED MAIL #7008 1300 00001133 4632
RETURN RECEIPT REOUESTED
Sherron Road Ventures, LLC
Attn: Mr. Jerry Radman
201 Shannon Oaks Cr Suite 201
Cary, NC 27511
CERTIFIED MAIL #7008 1300 0000 1133 4656
RETURN RECEIPT REQUESTED
Mr. Brent D. Barringer
Registered Agent
111 Commonwealth Court Suite 101
Cary, NC 27511
Dee Freeman
Secretary
CERTIFIED MAIL #7008 1300 00001133 4649
RETURN RECEIPT REQUESTED
MacGregor Development Company
Attn: Michael F. Whitehead
201 Shannon Oaks Cr Suite 201
Cary, NC 27511
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DW-WAIL • ,fY
WE"= ANOSTOR WAMRBRANCH
Subject: NOTICE OF CONTINUING VIOLATION
NOV-2009-PC-0266
DWQ Project # 04-0331
Ravenstone Subdivision
35°58'17.81"N, 78°47'32.03"W
Failure to Obtain 401 Water Quality Certification
Removal of Best Usage
Other Waste (in-stream sediment)
Neuse Buffer-Vegetation
Neuse Buffer-Diffuse Flow
Durham County
Dear Sirs:
On March 19, 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 Ravenstone Subdivision located on Rondelay Drive,
Durham County, North Carolina. The streams on the site are Lick Creek and two unnamed tributaries (UT) of
Lick Creek, all Class WS-N, Nutrient Sensitive Waters (NSW), in the Neuse River Basin.
Accordingly, the following observations were noted during the DWQ inspection and file review:
DWQ issued a Notice of Violation for the subject property on June 9, 2008. As a result of the site inspection and
file review at that time, the following violations were noted: Stormwater General Permit (NCGO10000) Condition
Violation, Failure to Obtain 401 Water Quality Certification, Removal of Best Usage, Other Waste (in-stream
sediment), Neuse Buffer-Vegetation and Neuse Buffer-Diffuse Flow.
On or about March 10, 2004, Soil and Environmental Consultants, P.A. submitted a Pre-Construction Notification
(PCN) on behalf of Mr. Jerry Radman of Sherron Road Ventures, LLC. On May 28, 2004, DWQ issu4a
No Carolina
aturallry
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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Ravenstone
May 26, 2009
Page 2
"Waiver of the 401 Water Quality Certification" for the plans to impact waters as describe in the application
materials for DWQ Project #04-0331. The Waiver of 401 Water Quality Certification, dated May 28, 2004, stated
the following, "...if additional impact occurs or your development plans change, this waiver is no longer valid
and a 401 Water Quality Certification and Neuse Buffer Rules approval will be required."
A Pre-construction Notification that reflects the additional impacts documented in the Notice of Violation has not
been received by the Division of Water Quality for this project and a 401 Water Quality Certification has not been
issued.
On July 10, 2008, DWQ received a written response to the Notice of Violation (NOV-2008-PC-0391) from
Horvath Associates. The letter states that Sherron Road Ventures has retained Horvath Associates and Soil and
Environmental Consultants, PA to address the concerns in the NOV. Horvath agreed that some impacts were not
constructed in strict accordance to the plans provided within the original application for various reasons. They
also stated that the site is currently in compliance with the Stormwater & Erosion Control Division of the Durham
County Engineering Department. They stated that a "Sediment Clean-up Plan" of the streams as noted in the
NOV will be addressed in a separate submittal. They also stated that a new permit application will be submitted
through the DWQ-with each of the, impact areas identified and will be brought to the July 29th meeting for
discussion': The written response identified each impact area, described what the concern appears to be, included
some history where needed and suggested how they would rectify the situation in general terms.
On July 25, 2008, DWQ received a written Site Observations & Sediment Clean-up Plan from Soil and
Environmental Consultants, PA. On August 8, 2008, DWQ received a written Sediment Clean-up Plan
Addendum from Soil and Environmental Consultants, PA. On August 13, 2008, DWQ sent a response letter to
Soil and Environmental Consultants approving the Sediment Clean-up Plan and Addendum.
On July 27, 2008, DWQ staff met at the S&EC office in Raleigh to discuss the issues in the NOV. The history of
the DWQ and US Army Corps of Engineers (USACE) permitting was discussed. Construction design changes
related to the City of Durham regulations were discussed. It was agreed that S&EC would submit a PCN
application to DWQ for the additional impacts by the end of August 2008. The sediment removal plan was
discussed and the USACE requested a site visit to view the sediment deposition prior to approval of the plan. A
verbal explanation of the jurisdictional impacts was provided to DWQ and USACE by S&EC.
On October 16, 2008, DWQ requested an update on the status of the PCN application and the sediment clean-up
from S&EC via Email. A response was received on October 17, 2008 from Bob Zarzecki of S&EC stating that at
this point in time, S&EC did not have the funding from the client to proceed with the work.
DWQ observations during the March 19, 2009 site inspection include:
¦ At Impact Area 1B, riprap dissipater pad is in Neuse Riparian Buffer and perennial stream.
¦ At Impact Area IA, sediment accumulation observed above in stream device for -20 linear feet in stream.
Emergency value is open, allowing stormwater flow to bypass stormwater pond.
¦ At Impact Area 2, stream impacts remain as previously documented.
¦ At Impact Area 4, stream relocation impacts remain as previously documented.
¦ At Impact Area 5, stream impacts remain as previously documented and a rock swale is constructed in the
buffer allowing concentrated flow into the stream.
As a result of the site inspection and file review, the following violations, described below, are noted:
Item I. Failure to Secure a 401 Water Quality Certification
Title 15A NCAC 2H.0501 requires certifications pursuant to Section 401 of the Clean Water Act whenever
construction or operation of facilities will result in a discharge into navigable waters, including wetlands, as
described in 33 CFR Part 323. Title 15A NCAC 2H .0502 states any person desiring issuance of the State
certification or coverage under a general certification required by Section 401 of the Federal Water Pollution
Control Act shall file with the Director of the North Carolina Division of Water Quality. The file review
Ravenstone
May 26, 2009
Page 3
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.
Item II. Removal of Best Usage
15A NCAC 02B.0211 (2)
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. Other Waste (in-stream sediment)
15A NCAC 02B .0211 (3)f
Oils; deleterious substances; colored or other wastes: only such amounts as shall not render the waters injurious to
public health, secondary recreation or to aquatic life and wildlife or adversely affect the palatability of fish,
aesthetic quality or impair the waters for any designated uses.
Item IV. Neuse Buffer - Vegetation
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.
Item V. 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 wetland restoration to assist
you with the development and submittal of the following:
1. Please provide documentation (including a detailed site map/survey) depicting all jurisdictional water
features (e.g. streams, wetlands, 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 site.
2. Please submit the following documents for review and approval:
a. Stream Restoration Plan - Please explain how you plan to restore the pattern, profile and dimension
of the impacted stream channels to include the removal of fill and riprap. 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. Within 30 days of
completion of the restoration, submit as-built cross sections, photos and text describing the restoration
activity to the DWQ Raleigh Regional Office. Establish a total of three cross sections, two cross
Ravenstone
May 26, 2009
Page 4
sections in the restored segment (one riffle and one pool) and one upstream (riffle) of the restored
segment. This schedule should include a three-year monitoring plan to ensure the stream has been
restored and stabilized. Monitoring reports must include photos and should be written and submitted
once per year by June 1" of each year you perform monitoring.
b. Stream Restoration Plan (sediment impacts) - Sediment impacts to the streams onsite and
downstream of the site must be removed. Implement approved Sediment Clean-up Plan and
Addendum.
c. Permit Application - If you wish for any impacts to remain in place, you must apply for a 401 Water
Quality Certification. Please note that sediment impacts to streams are not permittable. A PCN must
be submitted within 30 days of receipt of this NOV.
d. Please indicate in your response a detailed schedule with dates explaining when the restoration will be
accomplished, and the status of your PCN.
3. Riparian Zone planting and restoring diffuse flow - 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 clearly indicate the site conditions as they currently exist and how you propose to restore diffuse
flow in the riparian buffer.
4. It is required that you contact the County of Durham Stormwater and Erosion Control Division, Division
of Land Resources and the U.S. Army Corps of Engineers. These contacts are necessary to ensure that
your restoration efforts are in compliance with the Sedimentation Pollution Control Act and Section 404
of the Clean Water Act.
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.
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 atters, please contact
Natalie Landry at [phone].
)nny ly,
Smit
Regional Supervisor
Surface Water Protection Section
cc: Raleigh RO - Water Quality
John Hennessy, NPS Assistance and Compliance Oversight Unit
Raleigh Regulatory Office, USACE, 3331 Heritage Trade Drive, Ste105, Wake Forest, NC 27587
?Cyhdi Kat"ly,x441,,Oversight/Express Review Permitting Unit"
Chris Roberts, County of Durham, 120 E. Parrish Street, Durham, NC 27701