20090748 Ver 1_Notice of Violation_20090402

0 M ILCO
Ajw 3 v
??_
NCDENR
North Carolina Department of Environment and Natural Resources
Division of Water Quality
Beverly Eaves Perdue Coleen H. Sullins Dee Freeman
Governor Director Secretary
April 2, 2009
CERTIFIED MAIL #7006 0810 0002 6049 6140
RETURN RECEIPT REQUESTED
Mr. David C. Falk, Sr.
Kingsmill Farm II
5914 Kemp Rd
Durham, NC 27703
Subject: NOTICE OF VIOLATION and
RECOMMENDATION FOR ENFORCEMENT
NOV-2009-WQ-0017
Kingsmill Farm II
Removal of Best Use, Neuse River Riparian Buffer
Failure to Secure 401 Certification;
Durham County
Dear Mr. Falk:
On February 19, 2009, Martin Richmond of the NC Division of Water Quality (DWQ)
conducted a site inspection of the subject facility, an approximate 140-acre cattle farm located at
5677 Kemp Road in Durham County. A second site inspection was conducted March 31, 2009
by Martin Richmond of DWQ and Eric Alsmeyer of the US Army Corps of Engineers.
During these inspection, DWQ staff observed and noted impacts to the riparian buffers on Rocky
Branch and five unnamed tributaries Rocky Branch, Class WS-IV, Nutrient Sensitive Waters
(NSW) within the Neuse River Basin. The location of the observed impacts to the subject
stream(s) are identified on the attached Soil Survey of Durham County (Attachment A), and
include:
• Stream Feature A: an unauthorized pond was constructed, mechanical land clearing has
occurred, and the stream channel has been relocated; such that an estimated 690 linear
feet of stream and an estimated 69,000 square feet of riparian buffer has been impacted.
by pond construction, and an additional estimated 300 linear feet of stream and an
estimated 30,000 square feet of riparian buffer has been impacted by relocation of the
stream channel;
O
, Caro
dva&rat
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]-
623-6748
An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper
Notice of Violation
Kingsmill Farm II
April 2, 2009
Page 2
• Stream Feature B: an unauthorized pond was constructed, and mechanical land clearing
has occurred, such that an estimated 360 linear feet of stream and an estimated 36,000
square feet of riparian buffer has been impacted by pond construction;
• Stream Feature C: an unauthorized pond was constructed, and mechanical land clearing
has occurred, such that an estimated 625 linear feet of stream and an estimated 62,500
square feet of riparian buffer has been impacted by pond construction;
• Stream Feature D: fill material was deposited, such that an estimated 175 linear feet of
stream and an estimated 17,500 square feet of riparian buffer had been buried;
• Stream Feature E: a pasture was constructed, and mechanical land clearing has occurred
such that an estimated 800 linear feet of stream and an estimated 48,000 square feet of
riparian buffer has been impacted.
• Rocky Branch (RB): a twin-pipe culvert was installed in Rocky Branch, creating a road
crossing impacting approximately 85 linear feet of stream and approximately 8,500
square feet of riparian buffer.
A file review for the subject property was conducted, and verification made that no 401 WQ
Certification and/or Riparian Buffer Authorization Certificate has been issued for this facility.
In summary, the unauthorized impacts observed equal an estimated 3,035 linear feet of stream
and an estimated 271,500 square feet of riparian buffer.
As a result of the site inspection and a file review, the following violations are noted:
Item I. 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 II. Neuse River Riparian Buffer: 15A NCAC 02B.0233 (4)
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.
Notice of Violation
Kingsmill Farm II
April 2, 2009
Page 4
permits USACOE requires, application for a 401 Water Quality Certification and
Neuse River Riparian Buffer Authorization to DWQ will also be required.
4. 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 or buffer authorization
for the permittable or allowable impacts, when an application will be submitted.
You are encouraged to secure a consultant to assist you with your plan development, permit,
certification and authorization necessary to achieve compliance.
It is required that you contact the 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.
Thank you for your attention to this matter. This Office is considering sending a
recommendation for enforcement to the Director of the Division of Water Quality regarding
these issues and any future/continued violations that may be encountered. Your above-
mentioned response to this correspondence will be considered in this process. 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
Martin Richmond at [phone] or myself at [phone].
Sincerely,
Do /? ? /
Danny Smit
Regional S pervisor
Surface Water Protection Section
Attachment
cc: RRO File Copy
John Hennessy - NPS-ACO Unit, Archdale Building
Keith Larick - APS AFO Compliance Unit
Buster Towell - APS-RRO
Eric Alsmeyer - US Army Corps of Engineers
Notice of Violation
Kingsmill Farm II
April 2, 2009
Page 3
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.
III. Failure to Secure a 401 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 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.
Requested Response
Accordingly, you are directed to respond to this letter in writing within 30 calendar days of
receipt of this Notice. Your response should include the following:
1. Please explain why these impacts occurred without prior authorization.
2. Please provide documentation (including a detailed site map/survey) depicting all
jurisdictional water features (e.g. streams, ponds, 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 and wetland impacts on the site.
3. 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. 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.
b. 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:
http://www.nceep.net/news/reportsibuffers.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. Permit Application and Buffer Authorization - 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
r eft ? ?Y ?'e R ? n ?,{ 4°{ r ?% [^
r
Yi
rt
1 x .? t in u .
? '_ v `lam ,? /? tr S
I
,y r, k
. h. tt?)yy?, 1 ci 1
E{ ?' eft ?' {? '?A ? ?!1 4?; rj?'S?
r t '
s
y ? i.? V. ,+yk
At I .y i X 5 4 e".
?' ,?jh ?. 4 1F •??I
e ?., S ! ? ."het :f
sE 1: 4" t, - f i , ? c 4f
i
? e
w Ns' n {y w % ?? # ? 1? 3 ' .
;?.J ?'u?? } a w ,:£ R ? ?v r t ' k9 ?k S ? -.! u??'P ? ?? ??f' ?i? j., ??'!??' c -???"+.,r,? r t?`e.
^ ? t ?, ryg ?Jt 13 ! ?rs b v? y r j?, }
34 ? +yi
Crc
v ,r i a
7 dd t
4
h l F 1 ?
> A NMI
z?' Jk ?t CrG?x i
ELI ? .x? r 4 l7 4,. .? t ? y=k? ? ?$G7 .tA:':
' a. `!. ': ?4y. ?. ? 1 r, v M,4 .?i r ? ?g E •? ?f f -?, ?? ? ?a i..,? , y? , .
4?r? `i a .?5 ;T t? y ? C, _ v 'k 4 a" e
xl f z.+- PfE `;.
14
_ ?,r r wfn
L p a; t s g t 'c: 1. WSC1
ter .' @ e ? is _. ,? o? a t 7 t ? , • ?? .•. rr. s.F -
#' 2 B. U I s
O- ?... •.? 3 t }
!"? r , z !
s,
f i \?1 , t t:R ` - I z Y ?C,G ?„-
t. Iz
WsC