20050732 Ver 13_Notice of Violation_20090820

DEPARTMENT OF THE ARMY
WILMINGTON DISTRICT, CORPS OF ENGINEERS
69 DARLINGTON AVENUE
WILMINGTON, NORTH CAROLINA 28403-1343
REPLY TO
ATTENTION OF:
SUBJECT: Action ID: 200121252
August 19, 2009
Ms. Cyndi Karoly
Division of Water Quality
North Carolina Department of Environment
and Natural Resources
2321 Crabtree Boulevard, Suite 250
Raleigh, NC 27604
Dear Ms. Karoly:
L:l
A U G 2 0 2009
DENR - WATER QUALITY
WETLANDS AND STORN,WATE SRANCY,
This is in reference to our letter of August 3, 2006, in which you were provided a copy of
a Proposed Class 1 Administrative Penalty for alleged violations of Department of the Army
Permit No. 200121252, issued to NNP-Briar Chapel, LLC, for the construction of the Briar
Chapel subdivision in Chatham County, North Carolina.
A Final Order has been issued assessing a Class 1 Administrative Penalty against .NT-NP-
Briar Chapel, LLC in the amount of $27,500. A copy is enclosed.
Sincerely,
C?'
S. Kenneth Jolly
Chief, Regulatory Division
Enclosure
Permit: USACE Permit No. 200121252
FINAL ADMINISTRATIVE PENALTY ORDER
Under the authority granted by 33 U.S.C. § 1319(g) and 33 CFR Part 326.6, I, Colonel Jefferson M.
Ryscavage, District Commander, Wilmington District, issue this order assessing a Class 1 Administrative
Penalty for violation of the above-referenced permit.
Name/Address of Permittee:
NNP-Briar Chapel, LLC
Attn: Mr. Bill Mumford
16 Windy Knoll Circle
Chapel Hill, North Carolina 27516
Permitted Activity:
The development of a residential subdivision known as Briar Chapel, located on property located west of
US Highway 151501, north of Andrew's Store Road, and south of Mann's Chapel Road, approximately 5
miles south of Chapel Hill, Chatham County, North Carolina, consistent with the application and plans
for USACE Permit No. 200121252.
Condition(s) or Limitation(s) of Permit Reportedly Violated:
NNP-Briar Chapel, LLC failed to comply with Individual Permit Special Conditions 1, 2, 3, 8, and 14 as
stated below:
1) Individual Permit Special Condition #1 which states; "All work authorized by this permit
must be performed in strict compliance with the attached plans (Exhibit A), which are a part of this
permit. Any modification to these plans must be approved by the US Army Corps of Engineers (USACE)
prior to implementation."
2) Individual Permit Special Condition #2 which states; " Except as authorized by this permit or
any USACE approved modification to this permit, no excavation, fill or mechanized land-clearing
activities shall take place at any time in the construction or maintenance of this project, within waters or
wetlands. This permit does not authorize temporary placement or double handling of excavated or fill
material within waters or wetlands outside the permitted area. This prohibition applies to all borrow and
fill activities connected with this project."
3) Individual Permit Special Condition #3 which states; "Except as specified in the plans
attached to this permit, no excavation, fill or mechanized land-clearing activities shall take place at any
time in the construction or maintenance of this project, in such a manner as to impair normal flows and
circulation patterns within waters or wetlands or to reduce the reach of waters or wetlands."
4) Individual Permit Special Condition #8 which states; "The permittee shall employ all
sedimentation and erosion control measures necessary to prevent an unacceptable increase in
sedimentation or turbidity within waters and wetlands outside the permit area. This shall include, but is
not limited to, the immediate installation of silt fencing or similar appropriate devices around all areas
subject to soil disturbance or the movement of earthen fill, and the immediate stabilization of all disturbed
areas. Additionally, the project must remain in full compliance with all aspects of the Sedimentation
Pollution Control Act of 1973 (North Carolina General Statutes Chapter 113A Article 4)."
5) Individual Permit Special Condition #14 which states; " The Permittee (and any successors
and assigns) shall cause to be recorded in the Register of Deeds for Chatham County the "Declaration of
Covenants and Restrictions - Riparian Areas," the draft form of which is attached as Exhibit C, for the
purpose of preserving and protecting all jurisdictional streams and wetlands located on the project site,
including parcels not currently owned by Permittee, in their natural state in perpetuity. The covenants
and restrictions, as approved by the USACE, shall be recorded on any parcel within the project within
thirty (30) days following the execution of this permit or within thirty (30) days following acquisition of
the parcel in question, whichever is later. In addition, the covenants and restrictions shall be recorded on
any parcel within the project, and a copy of the recorded covenants and restrictions provided to the
USACE, prior to any impacts to waters and wetlands on the parcel and prior to the sale or conveyance of
any lots, phases, or other property within the parcel. The permittee shall enforce the terms of the
restrictions set forth in the deed, and, prior to conveyance of the property, shall take no action on the
property described in the deed inconsistent with the terms thereof."
Description of the Nature of the Violation(s):
NNP-Briar Chapel, LLC placed fill material within jurisdictional features outside the permit area at 12
roadway and/or utility crossings. Portions of this work were started prior to official permit modification
reflecting plan changes. In addition, improperly placed sediment and erosion control check-dams
impaired normal flows and circulation patterns within waters or wetlands and allowed sedimentation to
occur outside the permit area on several of the above mentioned roadway/utility crossings. Some
crossings revealed unchecked erosion impacting jurisdictional waters.
Overall, fill material and improper sedimentation practices resulted in impacts to approximately 585
linear feet of perennial stream channel, 115 linear feet of intermittent stream channel, and 0.1103-acres of
wetlands. Furthermore, the mitigation component had not been completed as prescribed within the
Special Conditions of the Permit in that impacts occurred to jurisdiction features prior to recording the
covenants and restrictions.
It is my decision that a Class 1 Administrative Penalty in the amount of $27,500 shall be assessed against
the permittee. Permittee will pay the penalty by cashier's or certified check, payable to FAO, USAED
Wilmington, and delivered to the Office of Counsel, U.S. Army Engineer District, 69 Darlington Avenue,
Wilmington, North Carolina, 28403, within 30 days from the effective date of this letter.
The issuance of this Order constitutes final U.S. Army Corps of Engineers action in this case for purposes
of judicial review.
2
This order will become effective 30 calendar days following its issuance unless an appeal is taken
pursuant to 33 U.S.C. § 1319(g)(8) or a hearing is granted. Since no hearing was held prior to the
issuance of thi Order, a prior commenter may file a petition for a hearing within the 30-day period.
Issued this -day of August 2009.
Jefferson M. Ryscavage
Colonel, U.S. Army
District Commander