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Case 1:11-cv-00174-JRH -WLB Document 1-2 Filed 10/14/11 of 29

SCOGGINS,AlTORN YS AT LAWIOODMA.N

M&Cifl A. Sh(vl

Direct Dial:nhtofl.Com 404.420.5718

February It, 2011

VIA CERTIFIED MAIL RETURNRECEIPT REQUESTEDMichael J. Ward, CEOCSX Transportation, Inc.500 Water StreetJacksonville, Florida 32202

Steven A. Crosby, CEOCSX Real Property, Inc.301 West Hay StreetJacksonville, Florida 32202

Corporate Creations Network, Inc.Registered Agent for CSX Transportation,Inc. & CSX Real Property, Inc.2985 Gordy Parkway, 1' FloorMarietta, Georgia 30066

Notice of Intent to SueFWPCA (CWA) Section 505-33 U.S.C. § 1365

RE: Notice of violations of the Clean Water Act related to Jones Creek Culvert inEvans, Columbia County, Georgia

To whom it may concern:

This firm represents Jones Creek Investors, LLC which is the owner and operator of theJones Creek Golf Club (hereinafter "JCGC") in Columbia County, with respect to damages toWillow Lake as well its tributary stream, Jones Creek, and several golf course greens which havebeen impacted by excessive storm water and sediment discharges from upstream sources. TheCSX rail crossing and culvert at issue ("CSX Crossing' s) is located on Jones Creek upstream andto the northwest from where Southern Pines Road crosses Jones Creek. Through investigationinto the causes of these impacts, we have determined that the CSX Crossing is a source ofdischarges of eroded soils, sediment and excessive water as well as unremediated pollutants injurisdictional waters in violation of the Clean Water Act.

These Clean Water Act violations are impacting the streams, wetlands, and Willow Lakeon our client's property which is located at 777 Jones Creek Drive in Evans, Columbia County,Georgia. The impacted area of jurisdictional waters is directly downstream from the CSXCrossing though the stream crosses an intervening property before entering our client's property.The JCGC property has been in use as a golf course for more than twenty (20) years. Althoughthe JCGC has conducted periodic maintenance on Willow Lake to address historical internaldevelopment, the JCGC has never experienced off-site discharges of excessive water, eroded

Scogç)ns & Goodman P.C. I 2800 Ma*qffl% One Tower I 245 Piaditree Center Ave. N1 I AtLanta, GA 30303.1227Pt: 404.659.1000 1 Fax: 404.659.3021 I www.npc.com


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Martin A. SheltonFebruary 11, 2011Page 2

soils and sediment into Jones Creek at this scope or intensity. The JCGC's property includessignificant areas ofjurisdictional waters including streams, wetlands, and Willow Lake alongJones Creek. Water from Willow Lake continues for approximately one mile to the SavannahRiver.

This letter is written pursuant to Clean Water Act § 505(b) and 40 CFR § 135.1, 135.2 and135.3 in order to provide sufficient information to permit you to identify the specific standard,limitation, or order alleged to have been violated, the activity alleged to constitute a violation, theperson or persons responsible for the alleged violation, the location of the alleged violation, thedate or dates of such violation, and the name, address and telephone number of the person givingnotice.

Person or Persons Responsible:

The person or persons responsible for the ongoing violations identified herein are asfollows: CSX Transportation, Inc. and/or CSX Real Property, Inc, who are either owners oroperators of the CSX Crossing and the railroad line which it serves. Hereinafter, both will becollectively referred to as the "CSX Parties."

Activity Constituting Violation:

The JCGC first began to receive increased sediment and eroded soil discharges inapproximately November, 2008, After some investigation, the CSX Crossing was revealed as asource of the discharges after a Columbia County inspection on January 26, 2010, showed thatthe brick culvert under the railroad embankment where it crosses Jones Creek had deteriorated tothe point of failure with portions of the culvert caved in. The County provided photographsevidencing bank failure on the railroad embankment at the stream crossing and significantamounts of sediment and rock in the stream on the downstream side. Due to the lack ofinspection, maintenance and repair of the culvert, the CSX Crossing was a major source ofsediment and eroded soil discharges during every rain event. There is no evidence of any effortto prevent or control the discharges from this point source during this period despite significantsoil loss from the embankment that forms the CSX Crossing. Eventually, approximately twentyto twenty-five railroad car loads of medium size rock were used to fill in gaps left by thedischarged soils though some discharges continue, In June, 2010, we observed a significant dipin the railroad tracks at this crossing apparently due to the loss of supporting soils. We alsoobserved that the old brick culvert had been replaced by two much larger seventy-two (72) inchpipes which convey any increased storm water from upstream down Jones Creek much faster.Because of the location, placement and significantly increased size, these culverts both dischargesediment from upstream sources and increase the volume of water that scours the stream bed and


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banks downstream. As a result, Jones Creek downstream of the CSX Crossing has been dredgedwider and deeper resulting in significant contributions of sediment and eroded soils to JonesCreek and eventually Willow Lake. Heavy sediment deposits have been and are beingdischarged in the stream channel, wetlands and a lake on the .ICGC property.

Willow Lake is the largest water feature in Jones Creek and serves as the source of waterfor irrigation of the golf course. Sediment discharges into Willow Lake have filled in asignificant portion of the lake, reducing water quality and significantly reducing its storagevolume. Moreover, the deteriorated water quality in Willow Lake has a deleterious impact onthe greens when used for irrigation and on the sprinkler system delivering water to the greens.Eventually, the impact from the use of such contaminated water for irrigation may shorten thelife span of the greens. The impact from the increased storm water can also be seen along thestream channel which has widened from several feet to twenty (20) feet in some places. Thestream shows significant bank undercutting and sloughing, a deepening channel and as much asfour (4)feet of sediment deposits. Additionally, the Eleventh and Thirteenth Greens haveexperienced significant flooding, which had not previously occurred, periodically leaving theEleventh Hole unplayable.

Since the CSX Crossing began to fail, the CSX entities have been in continuous violationof the standards and limitations found in 33 U.S.C. §1311, 1342 & 1344; NPDES PermitGARI0000I or 100002; O.C.G.A. § 12-5-20 etseq. and §12-7-1 erseq; Ga. R. & Regs. §391-3-6etseq, and §391-3-7 etseq. and the Manual for Erosion and Sediment Control in Georgia. TheCSX entities are also in violation of the CWA for failing to obtain all required permits and/or tocomply with various permit requirements including monitoring, inspections and record-keepingrequirements set forth in General Permits GAR 100001 and 100002. Moreover, there is noindication that a permit under 33 U.S.C. § 1344 was sought or obtained for any discharges,subsequent repair work which may have occurred or for the dredging and/or placement of fillmaterial into jurisdictional waters. Likewise, there is no record of any stream buffer variance orland disturbance permit for the CSX Crossing or any subsequent repairs to the same.

The CSX Parties's activities have caused and continue to cause violations of the CWA,applicable permits and applicable state laws, including, but not limited to the following:

-discharges of significant amounts of sediment, sediment-laden storm water, rocks andother debris into the streams and wetlands and a lake;-stream buffer violations;-sediment discharges of several feet in areas within the stream buffer;-the creation of sediment deltas within the streams and wetlands;-failing to remediate the pollutants which have been discharged into jurisdictional waters;


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Martin A. SheltonFebruary 11 2011Page 4

-the choking of vegetation and trees and ripping out vegetation by discharges ofsediment, rocks and other pollutants;-the extreme discoloration ofjuristhctional waters and the creation of a sedimentplume/sediment delta within such waters;-lack of adequate or properly designed, installed and maintained Best ManagementPractices at all times;-discharges of sediment laden storm water in excess of applicable effluent limitations;

The nature and consistency of a significant portion of the sediments and eroded soilsimpacting Jones Creek below the CSX Crossing and on the JCGC property are such that thesource of these sediments can be definitively identified as coming from the CSX Crossingembankment and downstream streambanks and streambed. These gravel and sandy sedimentdeposits have been and continue to be discharged into the stream channels, have covered thebanks and adjacent Tow-lying ground areas on and surrounding several greens and adjacentwetlands area on our client's property and, also, have been and continue to be discharged intoWillow Lake on our client's property.

Standard, Limitation or Order Violated:

The CSX Parties have violated and continue to violate the Clean Water Act §*301, 402and 404 by discharging pollutants from the CSX Crossing into jurisdictional streams, wetlandsand a lake and by dredging and filling these waters by such discharges. The pollutants beingdischarged include eroded soil, dirt, sand, sediment, rock, debris and stormwater laden with suchpollutants. The CSX Parties have also violated and continue to violate CWA § 301 and 402 byfailing to obtain a permit for these discharges or any activities surrounding the CSX Crossingand/or by violating the terms of said National Pollution Discharge Elimination System("NPDES") General Permit GAR 100001/100002 ("GAR 100001/100002"). Violations of GAR100001/100002 include, but are not limited to, violations of Part I (C)(4), Part 1U(A)(1), PanIII(C)(I)-(4), Part IV in its entirety, Part V(A), (D), (E), and (L) and Appendix B.

Under CWA § 301, the discharge of any pollutant into waters of the United States from apoint source without first obtaining an NPDES permit or while violating an NPDES permit isillegal. In addition, the failure to comply with the terms of the NPDES General Permitconstitutes a violation of the Act.

The CSX Parties have also failed and continue to fail to properly design, install andmaintain Best Management Practices ("BMPs") for erosion and sedimentation control inaccordance with the Georgia Manual for Erosion and Sediment Control (the "Green Book") and


SCOGGIN,ATYO*mIv% AT LAWbOODMAN


in violation of the NPDES General Permit. The failure to properly design, install and maintainBMPs constitutes an ongoing violation of CWA § 301 and 402.

The CSX Parties have also violated and continue to violate the Georgia Erosion andSedimentation Act of 1975, O.C.G.A. § 12-7-1 et seq. and the Georgia Water Quality ControlAct, O.C.G.A. § 12-5-20 et seq. and regulations promulgated thereunder. Violations of the statestandards are actionable under the CWA. The CSX Parties' land disturbance activities haveresulted and continue to result in violations of the standards found in the Rules of Georgia'sDepartment of Natural Resources, Ga. Comp. R. & Regs. § 391-3-6, including the following:

(1) 391-3-6-03(5)(b) which states that "[a]ll waters shall be free from... floatingdebris. . . or other discharges in amounts sufficient to be unsightly or that interferewith legitimate water uses";

(2) 391 -3-6-.03(5)(c) which states that "[ajIl waters shall be free from materialrelated to municipal, industrial or other discharges which produce turbidity, color,odor or other objectionable conditions which interfere with legitimate wateruses";

(3) 391-3-6-.03(5)(d) which states that [a] It waters shall be free from turbidity whichresults in a substantial visual contrast in a water body due to a man-made activity.

For land disturbing activities, proper design, installation, and maintenance ofbest management practices and compliance with issued permits shall constitutecompliance with Paragraph 391-3-6-.03(5)(d)"; and

(4) 391-3-6-. 1 5(4)(a) which states that "[a]ll pollutants shall receive such treatmentor corrective action so as to ensure compliance with... effluent limitationsestablished by the EPA pursuant to [the Clean Water Act]".

Furthermore, the CSX Parties have violated and continue to violate CWA § 404 byfailing to obtain a permit prior to the dredging and/or filling jurisdictional waters of the UnitedStates and, thereby, causing impacts to the streams, wetlands and lake. See 33 C.F.R. § 320.2(f);33 C.F.R. § 323. Each day that eroded soil and sediment discharges into jurisdictional watersremains unremediated in those waters constitutes an ongoing and continuing violation of theCWA. " See City of Mountain Park, GA v, Lakeside at Ansley, LLC et al., 560 F. Supp. 2d 1288(N.D. Ga. 2008).


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Location of Alleged Violation(s):

Violations of the CWA have occurred and continue to occur at the CSX railroad crossing,embankment and culvert at Jones Creek in Columbia County, Georgia northwest of whereSouthern Pines Road crosses Jones Creek. A Columbia County tax map showing the location ofthe CSX Crossing is attached herein as Exhibit A. These violations have caused and continue tocause increased stormwater and discharges of pollutants to enter Jones Creek and have impactedthe stream, wetlands and lake (Willow Lake) on the JCGC property which are jurisdictionalwaters under the CWA. Additionally, eroded soils sediment and other pollutants remainunremediated in the wetlands and other jurisdictional waters in and along Jones Creek on theJCGC property to this day.

Date or Dates of J'iolations:

Ongoing violations of the CWA have occurred and continue to occur at or below theCSX Crossing every time it rains. Specifically, the dates of said violations begin inapproximately November, 2008, and continue to the present day. Specific dates of violationsinclude November, 2008; May, 2009; July, 2009; September, 2009; November 9, 2009; January26, 2010; March 14, 2010; August 17, 2010; September 27, 2010; October 27, 2010; November16, 2010, and other dates which we have not yet identified. Moreover, sediment, eroded soils andother pollutants which have been deposited in jurisdictional waters remain unremediated. Eachday that eroded soil and sediment discharges into jurisdictional waters remains unremediated inthose waters constitutes an ongoing and continuing violation of the CWA. " See City ofMountain Park; GA v. Lakeside at Ansley, LLC et al., 560 F. Supp. 2d 1288 (N.D. Ga. 2008).These violations are ongoing violations and each day that these waters remain impactedconstitutes a new violation of the CWA.

Full Name, Address and Telephone Number of Person Giving Notice:

The person or entity giving notice is Jones Creek Investors, LLC, which is a Georgialimited liability company. Its address is 777 Jones Creek Drive, Evans, Georgia, 30809 and itsregistered agent is Ray Mundy located at the same address. Any communications regarding thismatter shall be directed to the undersigned counsel at the address, phone number and email onthis letterhead or as follows which shall also serve as the contact information for Jones CreekInvestors:

Martin A. Shelton, Esq.404-420-518mshelton@,=&.com


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ODMAN


Additionally, this letter provides notice on behalf of the Jones Creek Owners Association,Inc., a Georgia non-profit corporation whose address is P.O.Box 1418, Evans, Georgia 30809.1418. Its registered agent is Jim Pawlak, 745 Jones Creek Drive, Evans, Georgia 30809. Anycommunications regarding this matter shall be directed to the undersigned counsel at the address,phone number and email on this letterhead or to counsel for the Jones Creek OwnersAssociation, Inc. as follows which shall also serve as the contact information for the Jones CreekOwners Association

Charles T. Huggins, Jr.Charles T. Huggins, PC7013 Evans Town Center BoulevardSuite 502Evans, Georgia 30809706.210.9063

Conclusion

The failure to remedy any of the violations set forth in this letter can result in a courtorder enjoining further violations, requiring remediation or payment for the cost of remediationand imposing civil penalties. During the sixty (60) day notice period, we are available to discussthis matter with you. As we do not intend to delay this lawsuit once the notice period hasexpired, you should immediately institute negotiations if you would like to avoid litigation ofthis matter.

Finally, in addition to the CWA violations described above, the CSX Parties are alsoliable for damages recoverable under state law including claims for trespass, nuisance,negligence, and riparian rights arising from the same activities which violate the Clean WaterAct. Therefore, this letter also serves as our client's demand that any and all interferences withtheir property rights be immediately and permanently abated.

Very truly yours,

AMaTtin A. Shelton

cc: Jones Creek Investors, LLCJones Creek Owners Association, Inc.


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Other Persons Receiving Notice Via Certified Mail Return Recet Reguested:

Lisa P. Jackson, AdministratorEnvironmental Protection AgencyMel Rios Building1200 Pennsylvania Avenue, NWWashington, DC 20460

A. Stanley Meiburg, (Acting) Regional AdministratorEnvironmental Protection Agency, Region 4Atlanta Federal Center61 Forsyth Street, SWAtlanta, GA 30303-3 104

F. Allen Barnes, DirectorGeorgia Environmental Protection Division2 Martin Luther King Jr. Drive, SESuite 1152/East TowerAtlanta, Georgia 30334-9000

Eric H. Holder, Jr. Attorney GeneralUnited States Department of Justice950 Pennsylvania Avenue, NWWashington, DC 20530-0001


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May 16, 2011

VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED

Columbia County, GeorgiaColumbia County Board of CommissionersRon Cross, ChairmanRon Thigpen, CommissionerTrey Mien, CommissionerJ. Charles Allen, Jr., CommissionerWilliam D. Morris, commissioner630 Ronald Reagan DriveBuilding 13, 2t4 FloorEvans, GA 30809

Notice olintent to SueFWPCA (CWA) Section 505 33 U.S.C. § 1365

RE: Notice of Violations of the Clean Water Act Related to the Columbia CountyMunicipal Separate Storm Sewer System in Columbia County, Georgia

To whom it may concern:

This finn represents Jones Creek Investors, tIC which is the owner and operator of theJones Creek Golf Club (hereinafter "JCGC") in Columbia County, with respect to damages toWillow Lake as well its tributary stream, Jones Creek, and several golf course greens which havebeen impacted by cxcessivc storm water and sediment discharges from upstream sources.Through investigations into the causes of these impacts, we have determined that the ColumbiaCounty Municipal separate storm sewer system ("MS4") located in Columbia County, Georgia,and several sites in Columbia County maintained in violation ofthc County's MS4 Permit aresources of eroded soils sediment and excessive water in violation of the Clean Water Act (or"CWA.") The silts which arc maintained in violation of the County's MS4 Permit are MarshallSquare Planned Unit Development ("Marshall Square"), Krystal River Commercial Park("Kryslal River"), Townhomes at Willow Lake (or "Townhomes"), Eresenius Medical Care("Fresenius Medical"), Marshall Office Park, Mucha Edgardo MD Pension Plan/ The Family Y,Young Men's Christian Association/ YWCO of the CSRA P Inc. Property ('Edgarilo MD! FamilyY Site"), Howell Construction, and the Maples Ferry Subdivision ("Maples Ferry.") ForPurposes of identification, these sites are more specifically described as follows:

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Marlin A. SheltonMay 16, 2011Page 2

• Marshall Square is located on Industrial Park Drive to the cast of the intersection ofRonald Reagan Drive and North Belair Road in Columbia County, Georgia. MarshallSquare is comprised of 57.6 acres and an estimated disturbed acreage of 57.6 acres. Theinitial receiving waters for Marshall Square are the Tributary to the Seaboard RailroadTributary orioncs Creek, and Jones Creek is the receiving waters.

• Krystal River is located at 737 and 739 industrial Park Drive in Columbia County,Georgia and is comprised of 12.25 acres and an estimated disturbed acreage of 11.5acres. The receiving water for the Kryslal River site is a tributary of Jones Creek..

• The Townbomcs also known as Willow Lake Phase 2, is adjacent to Willow Lake and iscomprised of 10.8 acres and an estimated disturbed acreage of 9.3 acres.

• Frcscnius Medical is located at 3000 McCrary Court in Columbia County. Georgia and iscomprised of 1.87 acres and an estimated disturbed acreage of 1.52 acres. The receivingwater for Fresenius Medical is a Tributary to Jones Creek.

• Marshall Office Park is located on McCrary Court and Industrial Park Drive in ColumbiaCounty, Georgia. The receiving water for the Marshall 0(11cc Park Site is a Tributary toSon es Creek.

• The Mucha Edgardo MD Pension Plan owns property at 746 Industrial Park Drive('idgardo Property?') The Edgardo Property is located immediately adjacent to propertyowned by the Family V Young Mens' Christian Association YWCO of the CSRA, Inc. at756 industrial Park Drive ("Family Y Property.") The Edgardo Property and the FamilyY Property are collectively referred to as the "Edgardo MD/ Family Y Site." Thereceiving water for the Edgardo MD/ Family V Site is a Tributary to Jones Creek.

• Howell Construction is located at 859 Triangle Industrial Court in Columbia County.Georgia. It is comprised of 1.0 acre and an estimated disturbed acreage of 056 acre, Thereceiving water for Howell Construction is a Tributary to Jones Creek.

• Maples Ferry is located on North Belair Road in Columbia County, Georgia and iscomprised of approximately 20 acres and an estimated disturbed acreage of 13.4 acres.The receiving water for Maples Ferry is a Tributary to Jones Creek.


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Martin A. SheltonMay 16, 2011Page 3

These discharges in violation of the Clean Water Act from the MS4 and tlic sitesmaintained in violation otthe MM permit are impacting the streams, wetlands, and Willow Lakeon our client's property which is located at 777 Jones Creek Drive in Evans, Columbia County,Georgia. The impacted area ofjurisdictional svalcrs is downstream of portions of the MS4,including several outfalls, adjacent to the Townhomes, and downstream front Marshall Square,Kryslal River, rrcscnius Medical, Marshall Office Park, Edgardo MD/ Family V Site, HowellConstruction, and Maples Ferry. The JCGC property has been in use as a golf course for morethan twenty (20) years. Although the waterways on the JCGC historically containedinsignificant amounts of naturally occurnng sediment. the JCGC began to receive significantlyincreased sediment and eroded soil discharges in approximately October, 2008. Although theJCGC has conducted periodic maintenance on Willow Lake to address historical internaldevelopment, the JCGC has never experienced oflsite discharges of excessive water, erodedsoils and sediment into Jones Creek at this scope or intensity. The JCGC'S property includessignificant areas ofjurisdictional waters including streams, wetlands, and Willow Lake alongJones Creek. Water from Willow Lake continues for approximately one mile to the SavannahRiver. A portion of the pollutants discharged into Willow Lake continues on to the SavannahRiver.

lliis letter is written pursuant to Clean Water Act § 505(b) and 40 CFR §135.1, 135.2 and1353 in order to provide sufficient information to permit you to identify the specific standard,limitation, or order alleged to have been violated, the activity alleged to constitute a violation, theperson or persons responsible for the alleged violation, the location of the alleged violation, thedate or dates of such violation, and the name, address and telephone number of the person givingnotice.

Person or Persons Responsible:

The person or persons responsible for the ongoing violations identified herein is asrol1o: Columbia County, Georgia ("Columbia County or "County.')

Sftn:dard, Lindladvis or Order Violated:

The County has violated and continues to violate the Clean Water Act § 301,402 & 404by discharging pollutants from the M94 into ajurisdictional stream and lake and by filling thesewaters by such discharges. The pollutants being discharged include eroded soil, did, dredgedspoii, sediment, rock, debris and storm water laden with such pollutants. The County hasviolated and continues to violate CWA § 301 and 402 by violating the terms of the General


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NSOODIAN*?I&P.#W


Permit GAG6I0000( 4MS4 Pcnnir or "General Permit") issued under the National PollutionDischarge Elimination System ("NPDI3S"). Violations olihe MS4 Permit include, but are notlimited to, violations of Part H(b)-(d), Part ltI(A)(l), Part P/, Part IV(A), (13), (13)(3)(b) & (E),Part VI(A), (0), (E), (G), (1). (L), & (N). The County has also violated its MS4 Permit andregulations at 40 C.F.R. Part 122.34(bX3)-(5) by failing to adequately implement and enforcekey components of its Storm Water Management Plan (S\VMP") as set forth in the County'sNotice of Intent ("NOL") of Coverage under the MS4 Permit including but not limited to Appx.C, Appx. C(B)I Appx. C(D), Appx. C(13), Appx. D. Appx. 0(B). Appx. 0(C), Appx. 0(D),Appx. E, Appx. E(B), and Appx. E(D). Under CVA § 301, the discharge of any pollutant intowaters of thc United States from a point source without a permit or while violating a NPDI3Spermit is illegal.

The County has also violalcd and continues to violate the Georgia Water Quality ControlAct,, O.C.G.A. § 12-5-20 ci seq. and regulations promulgated thereunder. Violations of the statestandards are actionable under the CWA. The County's failure to comply with its MS4 permit,including the SWMP, have resulted and continue to result in violations of the standards found inthe Rules of Georgia's Department of Natural Resources, Ga. Comp. R. & Regs. 391-3-6,including the following:

(I) 391-3-6-.03(5)(h) which stales that "[a]ll waters shall be frce from.floating debris. . . or other discharges in amounts sufficient to be unsightly or thatinterfere with legitimate water uses"

(2) 391 -3-6-.03($Xc) which states that "4111 waters shall be free frommaterial related to munkipal, industrial or other discharges which produceturbidity, color, odor or other objectionable conditions which iniertrc withlcgitimatc water uses";

(3) 391-3-6-.03(5)(d) which slates that [a]hl waters shall be free from turbiditywhich results in a substantial visual contrast in a water body due to a man-madeactivity.. .. For land disturbing activities, proper design, installation, andmaintenance of best management practices and compliance with issued permitsshall constitute compliance with Paragraph 391-3-6-.03(5)(d)"; and

(4) 391-3-6. .15(4)(a) which states that "(a)III pollutants shall receive suchtreatment or corrective action so as to ensure compliance with... effluentlimitations established by the EPA pursuant to (the Clean \Vater Act]".


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Furthermore, the County has violated and continues to violate CWA § 404 by tailing toobtain a permit prior to the dredging and/or filling jurisdictional waters of the United States and,thereby, causing impacts to the streams, wetlands and lake. Sec 33 C.F.R. § 320.2(0; 33 C.F.R. §323.

Activity Constituthig Violation:

The County is permitted to discharge storm water under the 2001 MS4 Permit. The MS4pennit covers "all new and existing point source discharges of storm water' from the County'sMS4. The County submitted a NOl under the 2007 MS4 Permit, although the NO! is not datedor signed by the responsible County official. By submitting the NO!, the County agreed tocomply with the ten'ns of the MS4 Permit, including the SWMP summarized in the NOl. TheSWMP is required to specify plans for implementing six Minimum Measures" designed toprotect water quality. Every operator of a small MS4 who tiles a NOl under Phase 11 "mustcomply with other applicable WPDES permit requirements, standards, and conditions establishedin the general pcnni1.' See 40 C.F.R. §* 122.34 & 122.34(i).

A. The County has violated the MS4 Permit and the CWA bvdischargingpollutantsfrom thQMS4 resulting in repealed execedances of water gmtiity criteria.

By discharging pollutants from the MS4 into Jones Creek and its tributaries, the Countyhas failed to meet the MS4 permit requirement to not cause water quality to be exceeded to themaximum extent practicable. The applicable water quality criteria set forth in the permitestablish that: waters must be free from floating debris resulting from discharges that are in anamount that is unsightly or interferes with legitimate water uses; waters must be free frommaterials related to discharges that produce turbidity, color, odor or other objectionabledischarges which produce turbidity, co1or, odor, or other objectionable conditions which interferewith legitimate water uses; and waters must be free from turbidity which results in a substantialvisual contrast in a water body due to a man-made activity. Several portions of the MS4 arelocated upstream from JCGC and Willow Lake. The upstream portions of the MS4 include thestorm water system for Maples Ferry, which the County accepted by letter dated August 29,2007. The detention pond for the Estates at Jones Creek was also accepted Into the MS4 onFebruary 22, 2001. The Estates at Jones Creek is located on Evans to Locks Road and itsdetention pond discharges into a tributary of Jones Creek which flows into Willow Lake on theJCGC property. The county alsoowns a portion of Marshall Square that contains a detentionpond. Because the detention ponds and/or storm watrsystcms at Maples Ferry, Estates at Jones


SCOGGINSIjOODMAN


Creek, and Marshall Square are part of the MS4, the outlets of these detention ponds and/orsystems are outfalls of the MS4. In addition, the MS4 has several outfalls that discharge intoJones Creek and its tributaries as reflected in the storm system maps that the County has createdand submitted with Annual Reports required by the MS4 Permit. . Attached as Exhibit A is anexcerpt from Columbia County's storm system map which identifies all of the MS4 outfalls inthe Willow Lake watershed. The specific MS4 outfalls discussed herein are included in theoutlails identified on Exhibit A and are found at the following general locations: MarshallSquare, Krysial River, the Townhomcs at Willow Lake, the Estates at Jones Creek, FrcscniusMedical, Marshall Office Park, Howell Construction. Edgardo MD! Family Y Site, and MaplesPerry.. Violations of the CWA have occurred and continue to occur at these MS4 oulfalls.

From October 2008 through and until the present, our client has observed and continuesto observe turbid water in violation of water quality criteria in portions of the MS4 located aboveoutlalls identified above and on the County's storm system map. Our client has subsequentlyobscrvcd and continues to observe the discharge of such polluted water, which is comprised ofsediment, sediment-laden storm water and increased storm water, from the MS4 into tributariesof Jones Creek, Jones Creek, and Willow Lake. Upon information and belief, the detention pondat Maples Ferry collects sediment laden storm water runoff and discharges the sediment anderoded soils into a tributary of Jones Creek, from which they are deposited on our client'sproperty, including the streams, wetlands, and Willow Lake. The detention pond on the portionof Marshall Square owned by the County likewise collects sediment laden storm water runoffand discharges the sediment and eroded soils into the Seaboard Railroad Tributary of JonesCreek and then Jones Creek, from which they are deposited on our client's properly, includingthe streams, wetlands, and Willow Lake. Similarly, the detention pond at Estates at Jones Creek,collects sediment laden storm water runoff and discharges the sediment and eroded soils into aseparate tributary of Jones Creek which also flows into Willow Lake (referred to as 54 by JCGC)In addition, testing has revealed that NT(J limits at the MS4 outfall from Marshall Square havebeen exceeded on numerous occasions, including September 27. 2010 and October 28, 2010;

1U limits were also exceeded on October 28, 2010 in the stream below the Estates at JonesCreek pond. Photographic evidence shows discharged sediments on JCGC property and in JCGCwaterways downstream from MS4 outl'a]ls on January 9, 2009, December 25, 2009, January 20,2010, January 26, 2010, March 27,2011 and May 12, 2011. The majorftyotdic County'sillegally discharged sediment and fill material remains unremediated in Jones Creek and thestream, wetlands, and lake (Willow Lake) on our Client's property to date, though a portionregularly continues on to the Savannah River.


SCOGG1NS- OODtANMIOIhlWl £f


Recent caselaw has solidified a ?%rlS4.ernhitIee's liability for polluted storm waterdischarges from the MS4, regardless of whether the storm water discharges contain pollutantscreated by other entities or NPDES permittecs. Sec Natural Res. Def. Council, hic. v. County ofLos Angeles,- F.3d - ,2011 WL 815099 (Ni C. Mar. 10. 2011) (MS4 permit violation occurswhere pollutants are detected in the M54 in excess of standards set forth in the MS4 permit andpollutedwaiec is discht.rgcd fron the 11-44 ima waters of the United States).

As c'idcnd by the ongoing LiischargcofpoflLlcd water from the MS4 and thedischarged sediment and flit material on our Clicnt& property and in Willow Lake, the County isnot prohibiting discharges from the MS4 that result in water quality criteria exceedances to themaximum c,-,tent possible. The County has failed to properly operate and maintain its facilitiesand systems of lreahncnt and control to achieve compliance with pcnnit terms and conditions,including the water quality critcria, as required by the MS4 permit. For instance, the County hasnot adequately and cfltxtively implcmcitcd' Best Mimagcrncnt Practice ("DM1") included inits SWMP to :niin County-owned tICtCHI1I ponds in order to control runoff horn newdvclopimmt and redevclopmeit stc. Asa rull, discharges that result in water quality criteriacxcccdanccs arid violate the CWA1vc ntcJ ad continue to occur from the dc' enti*n pondsat Mttplcs Ferry, Marha1l Square, and Eita-tes, at Jones Creek as described above.,

III

atidJujorported cut,

The County has Iailcd to xncct the M4 permit rquircrnent to develop, impkicnt, andenforce a SWMP to reduce the discharge o' lttar.s into the MS4 to the maximum extentpracticable in order to protect water qualitidto satisfy the Georgia water quality standards setforth above. Pursuant to the SWMP, the coinny is required to implement BMPs for six stormwater minimum control mcastncs, which ic:dc illicit discharge detection iid cIinination;construction site storm water runoff control;,-*,-I4 post-construction storm water managetient innew devclopmenland redevelopment. 3 eeusc the BMPs arc part of the SWM?, the County isrequired to inip1cmcjit =din force them 0, t'c niaxii1ium extent practicabla to protect wat&quality anJ satisfy water quality stpndards.

•Sti £pndi:io.:s

As discussed in detail bclw, the sac cociditicns at Marshall Square, Krystal Rvcr, theTo nhotucs, Fiesciiiu Medical, Masba.l Cfflc I-a the £dgardo MD! Family Y Sac, Howell

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SCOGGINOODIANVTO Ififi £T L & ;_J

Martin A. SheltonMay 16,2011Page 8

Construction, and Maples Ferry demonstrate that the County is not adequately implementing andenforcing its SWMP.

• Marshall Square currently hts extensive bare or inadequately vegetated areas, includinghigh. wide, steep slopes. As a result, eroded sediments are entering the Marshall Squarestorm drainage system and discharging froni the site into a tributary of Jones Creek.Since land disturbance and other development activities at Marshall Square wereinitiatcd, appropriate BMPs have not been designed, installed or maintained. Examplesof BMP violations include, but arc not limited to: the failure to provide requiredinformation for or install storm drain outlet protection; the failure to properly install andmaintain the sediment basin: the failure to stabilize exposed areas: the failure toappropriately design, install or maintain check dams, retrofit, silt fences or inlet sedimenttraps; the installation of a check dam in State Waters; and the failure to maintain therequired daily and weekly logs. Site conditiotis had not stabilized as of May I 2, 2011 asevidenced by the ong&nj sediment discharges occurring from Marshall Square as a resultof inadequate vegetation on graded slopes, lack of required erosion control blankets andinlet sediment traps, and iniploperlyrdaintained drainage structures.

Curie ittly. Krysial River is primarily bare exposed soil with almost no vegetation; nostabilization has occurred at the sit. As a result, extremely high ra&á of soli erosion areoccurring am]. the croicd scdimcns.rc 6scharging from Krystal River Since landdisturbance and other development ativitics ru Krysial River were initiated, appropriateBME's have not been designed, installed and ,najntaincd. The many BMP violations haveincluded, but are not limjtcd to: the liilure to stabilize exposed areas; the failure to installand appropriately maintain sediment barriers, the failure to install scilment traps fordrainage structures or storm drain inlet structures; the failure to install, property retrofit,and/or maintain sediment basins; and the failure to maintain the required daily andweekly logs. Observed site conditions on May 12, 2011 revealed numerous BMPviolations, including but not limited to: bare exposed soil with virtually no vegetation ontwo-thirds of the site; inadequate and poorly maintained silt fenecs, which included awide breech allowing storm votcr to sass the barrier, below the bare exposed soil; andsediment basins too small and improperly rc.rofittcd to reduce sediment in storm waterdischarges from the site.

The Townhomes is being and has been developed with Fatally flawed erosion andsediment control plans ("ESCP.") $jncc Ianl disturbance and other developmentactivities at the Tuwn,liomes.wcic iniliatçd, even the inadequate BMPs specified on the


9i'OODMAN


delicicot ESCP have not been installed and maintained. The many BMP violations haveincluded, but arc not limited to; the failure to design erosion and sediment control plansto protect against erosion and sediment discharges into Willow Lake; the failure to installand appropriately maintain silt fences; the failure to install hay bales or check dams; thefailure to install required inlet sediment traps; the failure to install sediment basins inmajor drainage paths; the failure to install storm drain outlet protection at pipe outlets; thefailure to stabilize exposed areas; and the failure to maintain the required daily andweekly logs. l3MPs have not been designed, installed and maintained on numerous lotsin the Townliomcs. For instance, many lots are not stabilized but instead arc primarilybare soil, and sift fences have not been installed.

• Fresenius Medical has on-going erosion problcnis including gully erosion and erodingbare soils that begin at the southern properly line. A sparsely vegetated embankmentsupports the building at Frcscnius Medical, and the detention pond berm is sparselyvegetated as well. A silt fence remains on the Frcsenius Medical site between the

- detention pond berm and the tributary to Jones Creek, but it is filled with sediment andallows sediment discharges directly into the stream.

• At Marshall Office Park, a cul-de-sac street and storm water detention pond have beenconstructed. An area on the sleep slope at the end of the cul-de-sac is bare, eroding soil.In addition, an area of exposed soil exists on the detention pond dam near the outletstructure.

• The Edgardo MD/ Family Y Site have cleared areas that have crodcd to form significantrills on the exposed soil slopes. Sediment is discharged directly from this site into theTributary to the Seaboard Rail Road Tributary of Jones Creek.

• At Howell Construction, significant areas of the driveway have limited gravel, resultingin exposed soils and clay dust discharges.

• Maples Ferry has several lots with steep slopes and eroded soils and lots with exposedsoils and/or gravel piles.

Failure to Implement and Enforce Required liMPsto Detect and Eliminate Illicit Discharges into the MS4


SCOGGINS-


The County has failed to implement and enforce required BMPs to detect and eliminateillicit discharges into the MS4. At a minimum. the County is required to prohibit non-stormwater discharges into the MS4 and implement appropriate enforcement procedures and actions.The County asserts in its NOt that the specific r.gu1atory mechanism that satisfies the permitrequirement to "prohibit, through ordinance, at other egulatory mechanisms, non-stomi waterdischarges Into the MS4 and implement apprcptiac enforcement procedures and actions" isfound in Article IV, Section 34-148 and 34-149 of the County Environmental Ordinance. Sec.34-148 prohibits discharges to the MS4 of any matter otnaturc excepting only such storm wateror surface water as authorized in the storm water concept management plans ordinance for theCounty. (Columbia County Environmental Ordinance, Art. IV, Sec. 34-148(a). Sec. 34-149concerns illicit discharges, making it unlawful for any person to connect any pipe, open channelor any other conveyance system that discharges anything to the MS4 except unpolluted stormwater, improper connections in violation of Coe prohibition must be disconnected and redirected.(hL at Sec. 34-149). As demonstrated by the ongain conditions of Mrrshall Square, KryscdRiver, the Towithoines, Fresenius MedicL MrsliaU'Offlce Park, Edgardo MD/ Family i Site,Howell Construction, and Maples Ferry, enforcement procedures or actions lnvc not beenadequately implemented by the County pursuant to these Environmental Ordinance provisions.The County has also failed to implement a BMP to identify and eliminate illicit disclurgcs to theM54 despite knowledge of sitc issues and the rcsalting discharges as described herein.

Fafli.re to inpk.iii qsjd.Enforcc lIMPsRui, cdfor Cc'nstrüc;ir,i Site 5 gwu water Rwioff Control

• The Coumy . bas lailedlo itnpkiie.t aiJ qforcc BMPs required for construction sitestorm water runoff control. Also, the CojmtyLs failed to implement and enforce its Erosion andSedimentation Ordinance ("US Ordinancc")wlich.it identified as a BMP to control stormwater run-off from tonstruction sitC. A rcquriniicnt for implementation and enforcement of thisI3MP is that commercial and subdivision stc inspcctons must be initiated prior to any landdisturbing activities and occur on a daily bask until permanent stabilization or disturbed areas isachieved. A review of erosion and .scdimcn control inspections sumrntirizcd in the AnnualReports for 2008 and 2009 rvca1cd that Manludl Sçuarc and Krystal River, which are still notpermanently stabilized, were not inspccid daily. The County also failed to implemett andenforce another BMP to control con$ruction cite storm water runoff that was described as "[theErosion and Sedimentation Oidinance] gives [the County) the authority to enforce approvederosion and sediment cotrol BMPL" As demonstrated by the ongoing conditions of MarshallSquare, Kiystal Riv, the Townhom es, Fzesen3is Medical, Marshall Office Park, EJgardo MD/

- .. ... t,


SCOGGINS...AT *'. rOODIIAN


Family V Site, Howell Construction, and Maples Ferry, enforcement procedures or actions havenot been adequately implemented by the County pursuant to its E&S Ordinance.

By failing to adequately implement and enforce the E&S Ordinance, the County alsofailed to implement and enforce a BMP to approve site plans through an extensive reviewprocess and require implementation of mandatory BMPs. As discussed above, the ESCPs forMarshall Square. Krystal River1 and the Towuhomes were deficient as approved by the County.In addition, mandatory BMPs were not required to be implemented on site.

Failure to Implement and Enforce liMPsRequired/or Post-Construction Storm water Management

In New Development and Rcdevelopnient

The County has also failed to implement and enforce required J3MPs for post-construction storm water management in new development and redevelopment. As discussedabove, the County has failed to implement and enforce the BMP to inspect and maintain County-owned detention and retention ponds. Even though the rationale for this BMP is thatmaintenance of the County storm water discharge facilities will provide better water qualitycontrol, the detention ponds and/or storm water systems at Maples Fcrry, Estates at Jones Crcck,and the County owned portion of Marshall Square collect sediment-laden storm waxer anddischarge sediment and eroded soils in a manner that continually degrades downstream waterquality. Also, structural BMP requirements are a BMP that the County has failed to enforce inorder to manage storm water from new development and redevelopment. This failure is evidentfrom the perpetual lack of appropriate structural BMP installation and maintenance at MarshallSquare, Kryslal River, the Townhomcs at Willow Lake, Frcscnius Medical, Marshall OfficePark, Edgardo MD/ Family Y Site, Howell Construction, and Maples Ferry as discussed above.

Failure to Protect Water Qualityto the Alarintuns Event Pradilcabie Standard

The County's failure to adequately implement and enforce she foregoing BMPs haveresulted in the violation of Georgia Water Quality Standards at Ga. Comp. R. & Reg. 391 3-6-.03(5)(b)-(d) & 391-3-6-. 15(4)(a) as evidenced by the ongoing discharge of polluted water fromMarshall Square, Krystal River, the Townhomcs, Frcscnius Medical, Marshall 0111cc Park,Edgardo MD! Family Y Site, Howell Construction, and Maples Ferry and the illegallydischarged sediment and fill material that remains unrcmcdiatcd in Jones Creek and WillowLake. As such, the County has not met the maximum extent practicable standard to reduce


SCOGGINSGOODIANtTcISN1t At


discharges to the MS4 because compliance with the standard of reducing pollutants to themaximum extent practicable requires submitting an NOl and implementing the minimummeasures set forth therein. 20 C.F.R. 122.34(a) (emphasis added).

Location ofAlleged Vlolaliou(s):

Attached as Exhibit A is an excerpt (rum Columbia County's storm system map whichidentifies all of the MS4 outfalls in the Willow Lake watershed. The specific MS4 outfallsdiscussed herein are included in the outfiuils identified on Exhibit A and are found at thefollowing general locations: Marshall Square, 1(rysial River, the Townhomcs at Willow Lake.the Estates at Jones Creek, Frcscnius Medical, Marshall Office Park, Howell Construction,Edgardo MD/ Family V Site. and Maples Ferry. These outfahls include, but are not limited to,the outlets of the Maples ferry detention pond/storm water system, the Estates at Jones Creekdetention pond, and the Marshall Square detention pond. Violations of the CWA have alsooccurred and continue to occur at the sites maintained in violation of the MS4 permit: MarshallSquare, Kiystal River, the Townhomcs at Willow Lake, Frcscnius Medical, Marshall OfficePark, Edgardo MD/ Family V site, Howell Construction, and Maples Ferry. The locations ofthese sites arc specifically described above. These violations have caused and continua to causeincreased storm water and discharges of pollutants to enter Jones Creek and 54 and haveimpacted the stream, wetlands and lake (Willow Lake) on the JCGC property which arejurisdictional waters under the CWA. As staled above, eroded soils, sediment and otherpollutants remain unremediated in the wetlands and othcrjurisdiciional waters on the JCQCproperty to this day.

Date or Dates of Violations:

Ongoing violations of the CWA have occurred and continue to occur from the MS4out Iàl Is and the sites in violation of the MS4 Permit every time it rains. Specifically, the dales ofthe violations as discussed herein begin in approximately October, 2008, and continue to thepresent day. Specific dales of violations include July 10, 2008, August 13, 2008, October 25,2008, November 4, 2008, November 13, 2008, November 14, 2008, January 8, 2009,F cbruary27, 2009, April 23, 2009, November 9, 2009, December 25, 2009, January 20, 2010, January 26,W 10, February 4, 2010. March 28, 2010, September 27, 2010, October 28, 2010, March 27.2011, March 28,2011, May 12, 2011 and other dales which we have not yet identified.Moreover, sediment, eroded soils and other pollutants which have been deposited injurisdictional waters remain unremediatcd. Each day that eroded soil and sediment dischargesinto jurisdictional waters remains unrcmcdiatcd in those waters constitutes an ongoing and


SCOGGINOODIANTtDP.t

Martin A. SheltonMay 18,2011Page 13

continuing violation of the CWA. See C'ity ofMowitain Park GA P. Lakeside at iinsky, LLC cial., 560 F. Supp. 24 1288 (N.D. Ga. 2008) These violations arc ongoing violations and each daythat these waters remain impacted constitutes a new violation of the CWA.

Full Name, 4ddrcss and Telephone Number of Persos: Giving Notice:

The person or entity giving notice is Jones Creek Investors, LLC, which is a Georgialimited liability company. Its address is 777 Jones Creek Drive, Evans, Georgia, 30809 and itsregistered agent is Ray Mundy located at the same address. Any communications regarding thismatter shall be directed to the undersigned counsel at the address, phone number and email onthis letterhead or as lo11ows which shall also serve as the contact information for Jones Creek-Investors:

Martin A. Shelton Esq.404-420-518mshelton(?isgpc.com

Additionally, this letter provides notice on behalf of the Jones Creek Owners Association,Inc., a Georgia non-prolit corporation whose address is P.O. Box 1418, Evans, Georgia 30809-1418. Its registered agent is Jim Pawlak, 745 Jones Creek Drive, Evans, Georgia 30809. Anycommunications regarding this matter shall he directed to the undersigned counsel at the address,phone number and email on this letterhead or to counsel for the Jones Creek OwnersAssociation, Inc. as follows which shall also serve as the contact information tbr the Jones CreekOwners Association:

Chanles T. Huggins, Jr.Charles T. Huggins, PC7013 Evans Town Center BoulevardSuite 502Evans, Georgia 30809706-210-9063

Additionally, this letter provides notice on behalf of the Savannah Rivcrkceper, Inc. aGeorgia non-profit corporation whose address is P.O. Box 14908, Augusta, Georgia, 30919. Itsdirector is Tonya Bonitibus on 706-826-8991.

SuppkmuenvalAn:e Lilem Notice of State Law Claims:


SCOGGINSGOODIANAT1GIIVI AT kA4V


This letter also serves as our Client's supplementation to its earlier presentation to theCounty of state law causes of action that it will assert against the County unless any and allintcrfcrcnces with its property rights are immediately and permanently abated. As described inJCGC's previous antc litem letter to Columbia County, the County is liable for damagesrecoverable under state law claims including inverse condemnation arising from a continuingnuisance and trespass and taking without compensation in violation of the Georgia Constitution,Art. I, § 3, Par. I. These claims arise from the County's activities discussed in detail above thatviolate the Clean Water Act.

Under these claims, our client is entitled to injunctive relief and damages in the amountof the depreciation of value of its property caused by the County's actions and inactions asdescribed herein. Furthermore, our client is entitled to seek its attorney's fees under O,C.CIA. §13-6-11, which can be awarded against a county defendant where it has acted in bad faith, hasbeen stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. ForsythCouiiy v. Martin, 279 Ga. 215,219,610 S.E.2d 512, 517 (2005). An award of damages fortrespass, an intentional tort, or for the violation of environmental statutes supports a claim forexpenses pursuant to O.C.G.A. § 13-6-11 under the theory that the intention evokes the "badfaith" necessary for recovery under that statute.

Conclusion

The failure 10 remedy any of the violations set forth in this letter can result in a courtorder enjoining further violations and imposing civil penalties. During the sixty ((i0) day noticeperiod, we are available to discuss this matter with you. As we do not intend to delay this lawsuitonce the notice period has expired, you should immediately institute negotiations if you wouldlike to avoid litigation of this matter.

A

ytru yyours

A. hel

cc: Jones Creek Invcstors, LLCJones Creek Owners Association. Inc.Savannah Rivcrkccper, Inc.


SCOGGINS.IM0410,1VI 401 1$'* ...rOOD1vIAN

Martin A. SheltonMay 1 6, 2011Page 15

Other Prsnns Receiving Notice Via Certified Mnll flf urn Recdpt Reituested:

Lisa P. Jackson, AdministratorEnvironmental Protection AgencyMel Rios Building1200 Pennsylvania Avenue, NWWashington, DC 20460

A. Stanley Mciburg, (Acting) Regional AdministratorEnvironmental Protection Agency, Region 4Atlanta Federal Center61 Forsyth Street, SWAtlanta, GA 30303-3 104

F. Allen Barnes, DirectorGeorgia Environmental Protection Division2 Martin Luther King Jr. Drive, SESuite 1 lS2IEast TowerAtlanta, Georgia 303349000

Eric H. Holder, Jr. Attorney GeneralUnited Stales Department of Justice950 Pennsylvania Avenue, NWWashington. DC 20530-0001


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