20010673 Ver 1_Complete File_20010628

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Michael F, Easley, Governor
William G. Ross Jr., Secretary
North Carolina Department of Environment and Natural Resources

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Alan W_ Klimek, P.E. Director
Division of Water Quality
Coleen H, Sullins, Deputy Director
Division of Water Quality

November 28, 2006

CERTIFIED MAIL 7006 0100 0000 8379 3556
RETURN RECEIPT REQUESTED

Mr. Ed Mitchell, President
River Dunes Corporation
River Dunes Marina & ResidentialDevelopment
416-A Pollock Street
New Bern, NC 28560

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NOV 3 0 2006

Mr. James F Jordan, Registered Agent
River Dunes Marina & Residential Development
416-A Pollock Street
New Bern, NC 28560

OEI'iI~ - w/".TER QUALITY
WETlANDS AND STORMWATER BRANCH

Subject: NOTICE OF VIOLA TIONI
NOTICE OF RECOMMENDATION FOR
ENFORCEMENT
River Dunes Corporation
Mr. Ed Mitchell, President
Mr. James F Jordan, Registered Agent
416-A POllock Street
New Bern, NC 28560
Neuse River Buffer Violation
Pamlico County

Dear Mr. Mitchell and Mr. Jordan:

This letter is to notify you that the Washington Regional Office of the Division of Water Quality (DWQ) is
considering taking an enforcement action for a violation of 15A NCAC 2B .0233 Neuse River Riparian Buffer
Rules and 401 Water Quality Certification Violation. On November 3, 2006, Amy Yount and Roberto
Scheller of DWQ inspected the subject property located offSR 1317 (Orchard Creek Rd), which is bordered
by Broad Creek, Mill Creek, and CedarCreek in Pamlico County. The property of River Dunes Marina and
Residential Development is located in the Neuse River Basin and is subject to riparian buffer rules.

During the site visit, investigators observed impacts to the riparian buffer along Broad Creek, Mill Creek and
Cedar Creek. Vegetation removal consisted of clearing the understory in Zone 1 of the riparian buffer, which
is prohibited in the buffer rules. At 11 :50am, workers were recorded actively removing the understory with
handheld trimmer/brushcutters and a tractor. A DWQ file review confirms impacts to the riparian buffer
occurred without any notification or authorization from the Division of Water Quality.

Also, during the site visit, investigators observed the area surrounding the marina and the entrance channel
had no soil stabilization in place and no plantings had been undertaken to maintain or restore the required
50-foot' buffer. '

North Carolina Division of Water Quality
943 Washington Square Mall
Washington, NC 27889

Intemel: www.ncwaterqualitv.org
Phone: [phone]
FAX [phone]

N~rthCarolina
)Va/Ufa//II

An Equal Opportunity/Affirmative Action Employer - 50% Recycled/10% Post Consumer Paper

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Page 2
River Dunes Corporation
Pamlico County

As a result of the site inspection and file review, the following violations, detailed below, are noted:

1) Neuse River Buffer Rule Violation. (15A NCAC28 .0233)

The riparian buffer extends fifty feet landward of coastal marsh or from the top of bank from any feature that
shows as a surface water on either the soil survey map prepared by the Natural Resource Conservation Service
of the United States Deparbnent of Agriculture or the most recent version of the 1:24000 scale quadrangle
topographic maps prepared by the United States Geographic Survey (USGS) in buffered countieS. The purpose
of these rules is to protect and preserve riparian buffers in the Neuse River Basin to maintain the nutrient
removal,funGtions..Gf.the...streamside-areaS4leGessaryto-pr.()tect~surfaGewaters.SpeGificaUy,~this-R.ule--~--.__.
applies to the 50-foot wide riparian buffers directly adjacent to surface waters in the Neuse River 8asin
(intermittent streams, perennial streams, lakes, ponds, and estuaries). Further, the protected riparian buffer
has two zones as follows: (a) Zone 1 [measured from the most landward limit of the normal high water level,
normal water level or the landward limit of coastal wetlands as defined by Division of Coastal' Management
and extending landward a distance of 30 feet] shall consist of a vegetated area that is undisturbed except
foruses provided for in Subparagraph (6) of 15A NCAC 28.0233, and (b) Zone 2 [the outer 20 feet,
landward' from the outer edge of Zone I] shall consist of a stable vegetated area that is' undisturbed except
for activities and uses provided for in Subparagraph (6) of 15A NCAC 28.0233. Any activity within the
riparian buffer other than those uses listed as "Exempf requires approval from the DWQ. A file review has
confirmed that no approval was sought or given to impact the previously described area.,

Specifically, the inspection revealed that the removal of vegetation resulted in impacts to approximately 2.3
miles or 10560 linear feet of riparian zone. Please be advised that this activity without a valid authorization of
15A NCAC 28 .0233 subjects you to appropriate enforcement actions which provides that a civil penalty of
not more than twenty-five thousand dollars ($25,000) per violation may be assessed. As detailed above,
Zone I of the riparian buffer is required to be undisturbed except for the provisions listed in the rules.
Accordingly a restoration plan may be required and it is recommended that you contact Amy Yount of this
office to further discuss the matter. It should also be understood that any restoration must be accomplished
from planting of native species and natural succession must be allowed to continue. As such, the riparian
zone must be restored to its original condition. This includes all views and access to open water pursuant to
15A NCAC 28.0233

2) 401 WQC Condition Violations (2)

Ed Mitchell/ Weyerhaeuser Real Estate submitted a CAMA Major Application on 03/14/2001. The impacts
were requested under U.S. Army Corps of Engineers Regional General Permit 198000291, CAMA Major
Permit and the corresponding General Water Quality Certifications. DWQ issued an approval letter for the
impacts on June 28, 2001. The 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. General Water
Quality Certification 3274, Condition 6 states the following:

A thirty (30) foot wide wooded buffer and twenty (20) foot wide vegetated buffer must be maintained
.. around the marina and entrance channel as well as along the ditch which exits from the marina
except where other uses are either exempt or expressly allowed.

On November 3, 2006 investigators observed that there is no wooded or vegetated buffer being maintained
around the marina and entrance channel.

In addition, General Water Quality Certification 3274, Condition 5 states the following:

North Carolina Division of Water Quality
943 Washington Square Mall
Washington, NC 27889

Internet ~w~w,ncwater.Qlli!l!tr~oIg
Phone: [phone]
FAX [phone]

N~~h Carolina
;Natllfallll

An Equal Opportunity/Affirmative Action Employer - 5O"k Recycledl10% Post Consumer Paper

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Page 3
River Dunes Corporation
Pamlico County

Monitoring of the wetland mitigation area must be for five (5) years. DWQ in Raleigh must be sent
three (3) copies of annual report by March 1st of each year.

Afile review confirms that neither the Washington Regional Office nor the Raleigh Wetland Mitigation
Specialists has received any required reports.

Requested Response

By copy of this letter, this office requests you respond in writing within 30 days of receipt of this letter to
resolve the violation noted on this site. You should explain how the violation occurred, provide a detailed
restoration and m<:mitoring pl.an, a",.d explain how you propose to communicate this issue to any future
property owners. The riparian buffer restoration plan should include the full restoration/enhancement of all
lost uses including, but not limited to, erosion control, filtration, and nutrient uptake. The response and
restoration/enhancement plan must minimally include the following:

1) A map of the restoration site. (This would be a plat of the property indicating the total area of buffer
impacts and subsequent restoration area delineated. Please explain when construction (excavation,
grubbing, and clearing) began at the site.)

2) Riparian zone plantin9: (Note: Zone 1 of the riparian buffer will be required to be restored).
o A planting plan must be developed and implemented in order to ensure that at least two native tree
species be planted at a density sufficient to provide 320 trees per acre at maturity. This density is
usually achieved by planting approximately 436 trees/acre on a 10 x 10ft. grid or 681 trees/acre on
an 8 x 8 ft. grid. Please refer to the Guidelines for Riparian Buffer Restoration provided online
(htto:llwww.nceeo.netlnews/reoorts/buffers.odf) for assistance in developing your plan. This plan
must include the types of native woody vegetation selected, methodology of planting, and site map
indicating the location of the replanting efforts.

3) A fertilizer plan~ (A one-time application of fertilizer is allowed).

4) A schedule of implementation. (Please provide a schedule with dates detailing when the restoration will
be accomplished. This schedule should include a five-year monitoring plan to ensure that the buffers are
restored. )

5) Deed Restriction LanQuage. (As a part of the 401 Condition (1) and as a part of this plan, please provide
a list of property owners and lot numbers for each tract. It is required that a deed restriction be placed on
each respective lot, in order to ensure the riparian restoration is successful (and no interim removal of
vegetation occurs) and access to each lot is available in order to conduct necessary planting or maintenance
(that may be required during the restoration monitoring period). Deed restrictions should assure compliance
with NC Administrative Code 15A NCAC 2B .0233 Neuse River Riparian Buffer Rules, site the width and
location of the riparian buffer, convey restrictions on the Buffer Area, name the enforcing and permitting
agency (DWQ), and explain the binding nature of this restriction to any present or future owners.
o Sample deed restriction language and suggested templates are available online from the Maine
Department of Environmental Protection which has similar buffer restriction rules. These templates
can be found at: http://mainegov-
images.informe.org/dep/blwq/docstand/stormwaterlrule500and502/appg.pdf

Upon completion of the restoration of the buffer, this office must receive the following items:

North Carolina Division of Water Quality
943 Washington Square Mall
Washington, NC 27889

Internet W}'L\y.ncw1!~nll!alitY.QIg
Phone: [phone]
FAX [phone]

N~WthCarolina
Naturallll

An Equal Opportunity/Affirmative Action Employer - 50% Recycledl10% Post Consumer Paper

~

Page 4
River Dunes Corporation
Pamlico County

By March 1, 2007, you must present a detailed written report and digital photographs to the DWQ WaRO
that clearly depicts that the riparian buffer has been restored. If thisinfonnation is not presented within this
time frame, additional penalty recommendations may be forward for civil penalty assessment.

In addition, an annual report, including a written account and digital photographs, must be submitted to t/:le
DWa WaRO by June 1 of each year for a period of five years after the restoration is completed. This report
must depict whether trees that were planted have survived and that diffuse stonnwater flow through the
riparian buffer has been achieved. If your monitoring efforts reveal dead or dying plantings and/or failures to
maintain diffuse stonnwater flow you must notify DWQ WaRO staff within 20 days and correct the failures.

Thank. you for your attention to this matter. Please respond in writing to this letter within 30 days you must
include your restoration plans as requested' above for DWQ written aDDroval. Further, the violations noted
above are subject to civil penalty assessment of up to twenty-five thousand dollars ($25,000.00) per
violation. Your response to this correspondence will be considered in this process. If you have any
questions regarding this matter please contact Amy Yount at [phone].

srcerelr'l _

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AI Hodge, Regional Supervisor
Surface Water Protection Section
Washington Regional Office

Enclosure: Water Quality Certification DWQ # 01-0673
Guidelines for Riparian Buffer Restoration
Prospective Landowners Brochure (10)

cc: Danny Smith - NPS Assistance and Compliance Oversight Unit
ItWaRO -DWQ File Copy
~Q Central Files
. Roy Brownlow, CAMA Compliance Coordinator
ACOE, Washington Office

North Carolina Division of Water Quality
943 Washington Square Mall
Washington, NC 27889

Internet l\lWW~I},,-~1!!.~HU!.!IJj.lYA)Ig
Phone: [phone]
FAX [phone] I 5

N~rthCarolina
;Vall/fall!!

An Equal Opportunity/Affirmative Action Employer- 50% Recycledl10% Post Consumer Paper

Michael F. Easley
Governor

William G. Ross Jr., Secretary
Department of Environment and Natural Resources

Kerr T. Stevens
Division of '/Vater Quality

June 28, 2001
Pamlico County
DWQ Project #: 010673

APPROVAL OF 401Quality Certification and ADDITIONAL CONDITIONS and Neuse River Buffer Rules

Mr. Ed Mitchell
Weyerhaeuser Real Estate ,I .:nr::
233 Middle Street, Ste 214
New Bern, NC 28560_.J>WCL wa-tl.O___

Dear Mr, Mitchell:

You have our approval, in accordance with.the attached conditions and those listed below, to impact 0.49 acres
of wetlands and dredge 2,7 acres of waters for developing the Gum Thicket residential development by
Weyerhaeuser Real Estate Company, as you described in your CAMA application received on April 30, 2001, After
reviewing your application, we have decided that this fill is covered by General Water Quality Certification Number
3274, This approval is also valid for the Neuse River buffer rules (15A NCAC 28 ,033). In addition, you should get
any other federal, state or local permits before you go ahead wilh your project inciuding (but nollimited to) Sediment
and Erosion Control, Coastal Stormwaler, Non-Discharge and Water Supply Watershed regulations. This approval
will expire when the accompanying 404 or CAMA permit expires unless otherwise specified in the General
Certification.

This approval is only valid for the purpose and design that you described in your application except as modified
below, If you change yo~project, you must notify' us and you may be required to send us a new application., If the
property is sold, the new'owner must be given a copy of this Certification and approval letter and is thereby
responsible for complying with all conditions, If total wetland filis for this project (n,ow or in the future) exceed one
acre, compensatory mitigation may be required as described in 15A NCAC 2H ,0506 (h) (6) and (7), This approval
shall expire when the corresponding Nationwide Permit expires or as otherwise provided in the General Certification,
For this approval to be valid, you must foilow the conditions listed in the attached certification and any additional
conditions listed below.

1. Deed notifications or similar mechanisms shall be placed on all remaining jurisdictional wetlands and waters or
areas within 50 feet of all streams and ponds to notify the state in order to' assure compliance for future
wetland and/or water impact. These mechanisms shall be put in place within 60 days of the date 01 this !etter
or the issuance of the CAMA or 404 Permit (whichever is laler), .
2, Stormwater shall be directed to fiow at non-erosive velocities across the entire protected stream buffers unless
otherwise specified in the stormwater management plan discussed in Condition #3,
3, An additional condition is that a final, written stormwater management plan shall be approved by the Division
of Water Quality's Washington Regional Office under DWQ's coastal stormwater rules. Also, before any
permanent building is occupied at the subject site, the facilities, as approved by DWQ, shall be constructed
and operational, and the stormwater management plan, as approved by DWQ, shall be implemented,
4. Upon completion of the project, the applicant shall complete and return the enclosed 'Certification of
Completion Form' to notify DWQ that all the work included in the 401 Certification has been completed. The
responsible party shall complete the attached form and return it to the 401Nvetlands Unit of the Division of
Water Quality,
:J Monitoring of the wetland mitigation area must be for five (5) years, DWQ in Ral~igh must be sent three (3)
copies of annual report by March 15T of year, .
6. A thirty (30 foot wide wooded buffer and twenty (20) foot wide vegetated buffer must be maintained "round the
marina and entrance channel as well as aiong the ditch which exits irom L'le marina except where other uses
are either exempt or expressly allowed,
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NCD~

Division of Water Quality
Vletlandsf401 Unit: (919) 733-178e
Fax: (919; 733.5892

1650 Mail Service Center

Raleigh. NC 27699-1650

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Michael F" Easley
Governor

William G, Ross Jr,. Secretary
Department of Environment and Natural Resources

Kerr T, Stevens
Division of Water Quality

If you do not accept any of the conditions of this certification, you may ask for an adjudicatory hearing, You
must act within 60 days of the date that you receive this letter. To ask for a hearing, send a written petition, which
conforms to Chapter 150B of the North Carolina General Statutes to the Office of Administrative Hearings, P.O, Box
27447, Raleigh, N.C, 27611-7447, This certification and its conditions are final and binding unless you ask for a
hearing,

This letter completes the review of the Division of Water Quality under Section 401 of the Clean Water Act. If
you have any questions, please telephone John R. Dorney at 919-733-9646 or Deborah Sawyer at our Washington
Regional Office at [phone].

Attachment

cc: Corps of Engineers Raleigh Field Office
Washington DWQ Regional Office
File copy
Central Files
Raleigh Division (Land Resources
Todd St. John~v
Doug Huggett, DCM
Rob Moul; Land Management Group

A~A
NCDENR

Division of Water Quality
Wellandsl401 Untt: [phone]
Fax: [phone]

1650 Mail Service Center

Raieigh, NC 27699-1650